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[ { "docid": "23491630", "title": "", "text": "June 7, 1918. There is no question but that the tax involved in this suit was an overpayment innocently made. In order to have it refunded, however, it was necessary that a claim be filed with the Commissioner of Internal Revenue within four years from the date of payment. It is unfortunate and to be regretted that the plaintiff finds himself in the position.in which his negligence, misunderstanding, or the unauthorized statement of the field agent, Timberlake, places him, but the sovereign government may not be sued, except upon its consent, and then only upon the conditions under which it has consented to be sued, even though they be purely formal. Cheatham v. United States, 92 U. S. 85, 23 L. Ed. 561; Rings County Savings Institution v. Blair, 116 U. S. 200, 6 S. Ct. 353, 29 L. Ed. 657; Rock Island, Arkansas & Louisiana Railroad Co. v. United States, 254 U. S. 141, 41 S. Ct. 55, 65 L. Ed. 188; Baltimore & Ohio R. R. Co. v. United States, 260 U. S. 565, 43 S. Ct. 169, 67 L. Ed. 406; United States v. Richards (C. C. A.) 27 F. (2d) 284. One of those conditions in this case is that the claim for refund must have been filed with the Commissioner of Internal Revenue within four years after the time of payment of such tax. The plaintiff urges that there was no need or necessity for the filing of the claim for refund, because the field agent of the Commissioner had gone into the taxpayer’s office and made the discovery, and therefore the Commissioner knew of the overpayment; but the ease of Rock Island v. United States, supra, settles this question, contrary to plaintiff’s contention. The plaintiff says that his oral statement to Field Agent Timberlake constituted a claim for a refund, and was, within the meaning of the statute and regulations pursuant thereto, a filing of the same with the Commissioner. He further says that the statement of the field agent to the effect that the overpayment would in due time be refunded- as a" } ]

[ { "docid": "19030194", "title": "", "text": "would more definitely inform plaintiff that the claim for refund thereof had been rejected, and when it was rejected the statute of limitations began to run. That plaintiff instead of accepting the refund could have refused it and forthwith brought suit for the amount of the credit is so clear as to leave no room for argument or discussion. It is contended by plaintiff that section 609 (a) of the act of 1928 created a new cause of action. This again is an error. This provision merely declared the status of an improper credit to be that of an overpayment, but it remained subject to all the statutory provisions with reference to the recovery of overpayments. This precise question was in effect determined in the case of R. H. Stearns Co. v. United States, 291 U. S. 54, a similar case to the one at bar except that the payment in settlement of the account was made by the taxpayer instead of the defendant, as was done in the instant case. In the original opinion we said that section 3226 of the Kevised Statutes was not repealed by the act of 1928, and in the Stearns Co. case, supra, where the effect of section 609 (a) of the act of 1928 was being considered, the Supreme Court applied section 3226 to an action for recovery of an overpayment applied upon a barred tax, and held in two different places in the opinion that the limitations provided by section 3226 barred plaintiff’s action. Following the rule laid down in the Stearns Co. case, it is clear that the plaintiff cannot recover the portion of the overpayment which was applied on the 1917 taxes. It is contended, however, by plaintiff that its suit is not only for principal but for interest, and that it had six years in which to bring its suit for interest from the time when its claim was rejected. This may be conceded so far as the limitation on bringing suits for interest is concerned; but it is also argued that plaintiff is entitled to interest for the" }, { "docid": "21821355", "title": "", "text": "(26 USCA § 156). I shall first consider the second of the two questions involved. 1. Section 3226, as amended (45 Stat. 343), provides that “no suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, * * * until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof.” Undoubtedly this means, where strict compliance with the statute is insisted upon by the government, not only that a suit cannot be maintained unless a prior claim for a refund has been duly filed, but that a suit cannot be maintained upon a claim of a different nature than that shown to have been filed. So it has been held. Tucker v. Alexander, 15 F.(2d) 356, 357 (8th Circuit Court of Appeals). While this ease later was reversed by the Supreme Court of the United States (275 U. S. 228, 48 S. Ct. 45), the decision reversing it does not question the principle stated, but holds that the government may by stipulation waive strict compliance with the statute. The plaintiff’s petition as amended pleads the filing and rejection of three separate and distinct claims. It pleads, in the twelfth paragraph, “that * * * on or about September 10, 1923, plaintiff filed with the defendant a claim for refund * * * which said claim for refund was allowed for $7,649.28 * * * and rejected for $16,-336.32 on May 19, 1924.” And it pleads in the same paragraph (by way of amendment allowed at the inception of the trial) “that the plaintiff did * * * on April 10,' 1925, file a claim with the Commissioner of Internal Revenue requesting that plaintiff’s claim for refund be reopened, reconsidered and allowed on the basis of classification under section 209 of the Revenue Act of 1917 * * * and that plaintiff did, * * *" }, { "docid": "13700605", "title": "", "text": "testing sand error. In support of its position, plaintiff relies on Red River Lumber Co. v. United States, 134 Ct.Cl. 444, 446, 139 F.Supp. 148, 149-50 (1956). Although Red River Lumber does state that an error affecting only the amount of recovery may be raised at trial for the first time if the taxpayer has already established its right to recover by timely filing a refund claim, plaintiff’s reliance on the case is misplaced. The Red River Lumber case does not allow a taxpayer to introduce new factual bases of another ground for recovery for the first time at trial. This is essentially what plaintiff is attempting to use the case for. The computation of the gross income from mining figure for the testing sand is distinct from the issue concerning the appropriate rate of depletion raised in the refund claim. The erroneous gross income from mining figure constitutes a separate ground upon which plaintiff might have sought a refund had it been timely discovered. Certainly this error affected the amount of the depletion deduction and, in turn, the amount of plaintiff’s potential recovery. But it does so only insofar as any separate ground for a refund necessarily affects the amount a litigant may be entitled to recover. The Red River Lumber case is distinguishable from the present one. There, the figure allowed to be changed was the sales price — a figure integral to determining gain, which was an issue properly before the court. Here, however, plaintiff wishes to raise the issue of the gross income from mining for the testing sand, which is not at all related to the issue of the rate of depletion that had been properly raised. There are many distinct tax issues under the general heading of depletion. Plaintiff may not confer on itself the right to litigate on any one of them by the simple expedient of including one depletion issue in its claim for a refund. The purpose of the variance rule is to limit, not expand, the issues subject to litigation in a tax refund suit. Union Pacific Railroad v. United" }, { "docid": "1604124", "title": "", "text": "the suit was good on the merits, the plaintiff should recover, notwithstanding the necessity of amending his claim; all this apparently took place before the time to file the claim had expired. The ease is clearly to be distinguished, in the first place because a claim had' been filed for refund of a specific part of the tax, and the amendment merely set up a new ground; second, because there was an express stipulation by the trial counsel; last, because, as we have said, the limitation had not yet expired — at least this appears to have been true from the opinion in the court below. (C. C. A.) 15 F.(2d) 356. See, also, Maryland Casualty Ins. Co. v. U. S., 251 U. S. 342, 354, 40 S. Ct. 155, 64 L. Ed. 297. It is quite true that in Felt & Tarrant Mfg. Co. v. U. S., 37 F.(2d) 977 (Ct. Cl.), a claim, in as general language as that before us, was^held sufficient, and that the other de- eisions of that court [Feather River Lumber Co. v. U. S., 66 Ct. Cl. 54; Jonesboro Co. v. U. S., 66 Ct. Cl. 320; Taylor-Lockwood Co. v. U. S. (Ct. Cl.) 45 F.(2d) 284, December 8, 1930], can he reconciled with the ruling, though by somewhat close distinction. Swift & Co. v. U. S., 67 Ct. Cl. 322, is clearly different. However, in Ordway v. U. S., 37 F. (2d) 19, we held a similar claim to he a nullity in an especially aggravated case; and U. S. ex rel. Endicott v. Mellon, 39 F.(2d) 505 (App. D. C.), is to the same effect. There the Commissioner had assessed an added tax which the taxpayer filed a claim to abate. In it he inserted a claim for refund of one dollar, and so far as appears, never made any effort to amend. The claim was thought had, though it is difficult to see why, if the plaintiff here is correct, since a claim for one dollar would ordinarily he read as comprising an unknown sum. The addendum in the case" }, { "docid": "41859", "title": "", "text": "nobody else, and at all times the record shows the factories to have been subject to the plaintiff’s orders, and plaintiff at all times maintained exclusive control of its designs, specifications, and molds. Plaintiff was the only one who could contract for the sale of the lenses in question, and also made the profits from the sales of these lenses, and from these profits paid to the fac tories the cost of raw material, which varied, plus a certain ■specified profit, as well as the cost of labor. The Patterson lenses were sold exclusively for use on .automobiles and trucks. According to one witness 60% and according to another 70% of the Warner lenses were sold to the automotive trade. On July 28, 1925, plaintiff filed a claim for refund with the Commissioner of Internal Eevenue for manufacturer’s excise tax so paid on the lenses in question for the period from June, 1923, to June, 1925, inclusive, in the amount of $6,109.97. This claim was rejected by the Commissioner of Internal Eevenue on December 2, 1925. Said claim was based solely on the ground that plaintiff was not the manufacturer or producer of the lenses in question. (Finding V.) Plaintiff in its petition seeks to add another ground for its claim, namely, that the lenses in question are not parts or accessories of automobiles. This ground was not urged as a basis for refund before the Commissioner of Internal Eevenue and can not be urged here. See Kaltenbach v. United States, No. D-584, decided by this court January 7, 1929 (66 C. Cls. 581), quoting from Red Wing Malting Co. v. Willcuts, 15 Fed. (2d) 626, where the court said: “ The precise ground upon which the refund is demanded must be stated in the application to the commissioner, and we think, if that is not done, a party can not base a recovery in •the court upon an entirely different and distinct ground from that presented to the commissioner.” The sole question for decision is whether plaintiff is a “ manufacturer ” or “ producer ” of the lenses" }, { "docid": "4715769", "title": "", "text": "607 to 611 of the Revenue Act of 1928 that no refund' should be made where a claim for abatement had been filed, but that a credit made after the expiration of the limitation period on collection should be void, were, I think, the result of the difference in the nature and purpose of the two claims. In view of such difference in the claims and in view of the fact that the statute made it mandatory upon the commissioner to credit any overpayments against any tax due, it was not thought proper to deprive the taxpayer, who had only filed a claim for credit of overpayments, of the benefit of the statute of limitation on collection where the commissioner failed, because of the department’s erroneous interpretation of the limitation in the statute, to make such credit within the time required. The majority opinion does not expressly hold that the claims for credit in this ease constituted a waiver of the statute of limitation for collection of the additional assessments. This point was urged by the defendant. I am clear that such holding is not justified'by the record. National Refining Co. of Ohio et al., 1 B. T. A. 236; Peerless Paper Box Mfg. Co. v. Routzahn (D. C.) 22 F. (2d) 459; National Tool Co. v. Routxahn (1). C.) 28 F.(2d) 914. The Revenue Act of .1921 provided for waivers as well as for claims for credit, and it is clear that it was not intended that one should accomplish the purpose of the other. A “waiver” is the voluntary relinquishment of a known right and the facts must leave no doubt that the person who, it is claimed, waived said rights intended to do so. There is another reason which alone seems to me to he sufficient to justify the position taken by the plaintiff in this ease that the claims for credit did not give the government the right to collect the tax for 1917 and 1918 after the expiration of the period of limitation relating thereto. In December, 1925, this court decided the case of Toxaway" }, { "docid": "19881190", "title": "", "text": "to be recovered in both cases, and its failure to take such proceedings in the former case would operate as a bar to the cause of action presented in the suit now before this court. This brings us to the question of whether plaintiff could, during the pendency of the first suit, have maintained an action for the entire amount of refund to which it was entitled by reason of a proper allowance for depreciation. In other words, the question is whether plaintiff had the right, during the pendency of the former suit, to bring action on the claim now before us. The decision of the case must ultimately depend upon the form of the application for refund upon which the first suit was based. If this claim for refund was sufficient to enable the plaintiff to maintain an action to recover the total amount of its overpayment upon taxes for 1917, we think it clear that plaintiff can not recover in the pending action. It is urged on behalf of plaintiff that the grounds for the refund, as ■stated in the claim upon which the first suit was founded, were insufficient to entitle the plaintiff to a recovery of anything more than was claimed in that suit. It is therefore said that plaintiff has not in fact split a cause of action, but in the two suits has set out two different causes of action. The regulations with reference to refund require that “all the facts relied upon in support of the claim shall be clearly set forth”; and it was held in United States v. Felt & Tarrant Co., 283 U. S. 269, with reference to the matters required to be stated in an application for refund, that “one object of such requirements is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue.” If the argument made on behalf of plaintiff is well founded, it would seem that the claim for refund was so defective that it would not have afforded a basis" }, { "docid": "7355005", "title": "", "text": "had demanded and received a tax levied upon the estate of plaintiff’s testator in excess of the¡ amount lawfully due. It is not the .correct-tax measured by the net estate in view of decisions of the court. Defendant now seeks to defeat a recovery of this illegally exacted tax by urging: (1) That the Court is without jurisdiction to entertain the suit since it was prematurely brought. (2) That no claim for refund upon the grounds now relied upon was filed within four years from date of payment of the tax. Other objections to plaintiff’s suit were raised in the pleadings and in argument, hut the above are the only defenses that merit consideration. A denial of substantial rights, based on purely technical grounds .of a relatively insignificant character, is a result to be avoided, if possible. If further amendments are necessary to bring the allegations of the declaration in conformity with facts admitted by the defendant, the law will permit such amendments. In any event, I have elected to dispose of this controversy on its merits but with a due regard for the statutory limitations presently to he considered. Minor errors or irregularities in these proceedings I am inclined to overlook. I regard the defense, so far as it stands on the failure of the plaintiff to formally protest the payment of the tax, as now waived, since it was not treated in defendant’s briefs. In any event, I must regard the defense as untenable, in view of the provisions of Rev. St. § 3226, as amended by section 1014(a) of the Revenue Act of 1924 (26 USCA § 156). Beatty v. Heiner (D. C.) 10 F.(2d) 390; Warner v. Walsh (D. C.) 24 F.(2d) 449. First, as to the jurisdictional question. It will be noted that it was not until the second trial on the merits had begun that this question was raised. The provision of statute invoked is in section 3226, as amended, which reads in part that: “No such suit or proceeding shall be begun before the expiration of six months from the date of filing" }, { "docid": "17602417", "title": "", "text": "for which the suit is brought, and refers to no facts upon which it may be founded.” ' In Tucker v. Alexander, 275 U. S. 228, 231, 48 S. Ct. 45, 46, 72 L. Ed. 253, the court said: “lateral compliance with statutory requirements that a claim or appeal be filed with the Commissioner before suit is brought for a tax refund may be insisted upon by the defendant, whether the collector or the United States. Kings County Savings Institution v. Blair, 116 U. S. 200, 6 S. Ct. 353, 29 L. Ed. 657; Maryland Casualty Co. v. U. S., 251 U. S. 342, 353, 354, 40 S. Ct. 155, 64 L. Ed. 297; Nichols v. U. S., 7 Wall. 122, 130, 19 L. Ed. 125.\" . „ ..... In Red Wing Malting Co. v. Willcutts, 15P.(.2d) 626, 634, 49 A. L.R.459 (C. C.A. 8), the court said: “The precise ground upon which the refund is demanded must be stated in the application to the Commissioner, and we think, if that is not done, a party cannot base a recovery in the court upon an entirely different and distinct ground from that presented to the Commissioner.” See, also, Bemis Bros. Bag Co. v. U. S., 60 F.(2d) 944, 948 (C. C. A. 8). We are not dealing with a situation wherein a refund claim was imperfectly presented before the statute of limitations had run, for the claim in-controversy, was not presented at all within that p.eriod. ' -The-necessity for the-requirement of-the. statute is obvious. The reasons for it have often-been stated by the courts. A Repetition would seem to be useless for the words of .the statute “mark the conditions of the claimant’s right.” U. S. v. Felt & Tarrant Mfg. Co., supra. Plaintiff insists District Court erred faii£ng- to find as a fact that plaintiff filed tbe revise¿ claim of 0etober 31 1927. It was agreed that piaintiff did file this claim, but tbere was n0 reversibie error in failing to find the faot beeause the finding wouId haYe been immaterial. The esseiitial and insurmollntable feature is that the" }, { "docid": "1488574", "title": "", "text": "recovery for the total amount sought to be recovered in both cases, and its failure to take such proceedings in the former ease would operate as a bar to the cause of action presented in the suit now before this court. This brings us to the question of whether plaintiff could, during the pendency of the first suit, have maintained an action for the entire amount of refund to which it was entitled by reason of a proper allowance for depreciation. In other words, the question is whether plaintiff had the right, during the pendency of the former suit, to bring action on the claim now before us. The decision of the case must ultimately depend upon the form of the application for refund upon which the first suit was based. If this claim for refund was sufficient to enable the plaintiff to maintain an action to recover the total amount of its overpayment .upon taxes for 1917, we think it clear that plaintiff cannot recover in the pending action. It is urged on behalf of plaintiff that the grounds for the refund, as stated in the claim upon which the first suit was founded, were insufficient to entitle the plaintiff to a recovery of anything more than was claimed in that suit. It is therefore said that plaintiff has not in fact split a cause of action, but in the two suits has set out two different causes of action. The regulations with reference to refund require that “all the facts relied upon in support of the claim shall be clearly set forth”; and it was held in United States v. Felt & Tarrant Mfg. Co.; 283 U. S. 269, 51 S. Ct. 376, 377, 75 L. Ed. 1025, with reference to the matters required to be stated in an application for refund, that “one object of such requirements is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue.” If the .argument made on behalf of plaintiff is well founded, it would seem that" }, { "docid": "16380296", "title": "", "text": "business.” It is questionable whether the language of (4) is before us for construction. It does not appear that plaintiff predicated his claim for refund before the Commissioner of Internal Bevenue on - (4). On the contrary, it appears in Finding XI, which was one of the findings of the commissioner of this court, and which was not objected to by plaintiff, that plaintiff’s claim for refund, aside from the claim of sale, was predicated solely on obsolescence, under (8). This identical point was commented upon by the court in Red Wing Malting Co. v. Willcuts, supra, where the court said: “ It does not appear from the record that any claim under subsection (4) for refund covering the loss of good will as a sustained loss during the taxable year was presented to the Commissioner of Internal'Bevenue prior to bringing this action and a refund requested. The application for refund does not appear in the record. Such application is a condition precedent to the jurisdiction of this court in matters of this character. The precise ground upon which the refund is demanded must be stated in the application to the commissioner, and we think, if that is not done, a party can not base a recovery in the court upon an entirely different and distinct ground from that presented to the commissioner.” However this may be, we do not think that (4) is applicable in this case. It does not appear that plaintiff suffered actual loss, within the purview of (4), when his secret process was superseded by the Swiss process referred to in Finding VI. Plaintiff’s process was discovered and developed by himself. Its cost to him was problematical. It does not appear in the record. If the language of (4) were properly before us for construction we would feel compelled to hold, under the authority of United States v. Flannery (268 U. S. 98, 105), that plaintiff sustained no actual loss, within the purview of (4). We have reached the conclusion that the Commissioner of Internal Revenue was correct in denying plaintiff’s claim for refund. It is" }, { "docid": "12724808", "title": "", "text": "the extent indicated below.” Then follows a calculation in which it is shown that the valuation of March 1, 1913, was not exhausted by allowed depletion before the end of the year 1925. The calculation is based upon the allowed depletion for the years prior to 1925 and ignores the fact that if the sustained depletion for the years 1913 to 1915 inclusive is considered the depletion value of March 1, 1913, was exhausted before the end of the year 1925. The claim does not intimate that the estimate for March 1, 1913, had through “information subsequently obtained” been found to be “materially erroneous.” Approval of a new estimate by the Commissioner is not requested. Nowhere does the claim contain a new estimate nor any data whatever necessary for a revision of the original estimate. An examination of the claim is convincing that appellant’s second contention as a theory of recovery is not sustained by the record. First, it is well settled that where a claim for refund is made upon a specific ground the taxpayer, after the statute of limitations has run, or in an action in court to recover the tax, cannot shift “to a totally different ground for such refund.” United States v. Garbutt Oil Company, 58 S.Ct. 320, 322, 82 L.Ed. —, decided January 3, 1938. “The United States has consented to be sued by a taxpayer for the recovery of a tax alleged to have been illegally exacted and paid only in cases where the grounds asserted in the suit have been presented to and passed upon by the Commissioner of Internal Revenue.” Taber v. United States, 8 Cir., 59 F.2d 568, 571; United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025. The second ground of recovery not having been called to the attention of the Commissioner appellant cannot rely upon it in an action in court. Second, the taxpayer, before he can maintain a suit in court to recover a tax erroneously paid, must first pursue the administrative remedy to a conclusion. Anniston Mfg. Co. v." }, { "docid": "22776787", "title": "", "text": "was done did not constitute a filing of a claim. No statute provides for review of the Commissioner’s determinations in favor of taxpayers when made within the scope of his authority. Such rulings are entitled to much weight. In this case he had already found that in 1919 plaintiff had overpaid its tax in the amount stated. He needed no additional information to enable him to determine whether credit or refund should then be made. There is no suggestion that the allowance was induced by or resulted from fraud or mistake. The facts found disclose that there was a reasonable or substantial compliance with the amendment. The Commissioner, within the time allowed, was advised of the grounds on which plaintiff’s right to refund rested, and was not misled or deceived by plaintiff’s failure to file formal claim, and was fully warranted in holding that the waiver and earlier documents were sufficient. Tucker v. Alexander, 275 U. S. 228, 231. The Government further contends. that, even if the Commissioner’s allowance was authorized, this suit is barred by R. S., § 3226, as amended. 26 U. S. C., § 156. It provides that no suit for the recovery of any internal revenue tax alleged to have been erroneously collected shall be begun after five yearn from the payment of such tax. The overpayment made was more than five years before the complaint was filed. This case is not within the clause giving two years after disallowance, because here the claim was allowed. Plaintiff pleads its claim in two forms. The first is based upon the issue and delivery of the Commissioner’s certificate showing plaintiff entitled to a refund in the amount specified. The second alleges an account stated showing that there is due plaintiff the amount claimed. The action is not for the overpayment of the tax in 1919 but is grounded upon the determination evidenced by the certificate issued by the Commissioner May 12, 1927. Upon delivery of the certificate to plaintiff, there arose the cause of action on which this suit was brought. United States v. Kaufman, 96 U. S." }, { "docid": "13700604", "title": "", "text": "subsequent litigation to those grounds that the IRS has already had an opportunity to consider and is willing to defend. Union Pacific Railroad v. United States, 182 Ct.Cl. at 109, 389 F.2d at 442; see Forward Communications Corp. v. United States, 221 Ct.Cl. at 623, 608 F.2d at 508. The case at bar presents precisely this sort of situation. To allow plaintiff to litigate the matter of the depletion deduction allowable for the testing sand would frustrate the purpose of the statute and regulations and would create an exception that would effectively nullify the substantial variance rule. Plaintiff has attempted to escape the effect of the substantial variance rule by arguing that it established its right to recover on the depletion deduction by timely filing a refund claim in which it challenged the IRS’s reduction of its rate of depletion. Plaintiff further asserts that the error made in computing the depletion deduction for the testing sand affects only the amount of recovery, not plaintiff’s right to recover, and that the court may properly consider the testing sand error. In support of its position, plaintiff relies on Red River Lumber Co. v. United States, 134 Ct.Cl. 444, 446, 139 F.Supp. 148, 149-50 (1956). Although Red River Lumber does state that an error affecting only the amount of recovery may be raised at trial for the first time if the taxpayer has already established its right to recover by timely filing a refund claim, plaintiff’s reliance on the case is misplaced. The Red River Lumber case does not allow a taxpayer to introduce new factual bases of another ground for recovery for the first time at trial. This is essentially what plaintiff is attempting to use the case for. The computation of the gross income from mining figure for the testing sand is distinct from the issue concerning the appropriate rate of depletion raised in the refund claim. The erroneous gross income from mining figure constitutes a separate ground upon which plaintiff might have sought a refund had it been timely discovered. Certainly this error affected the amount of the depletion deduction" }, { "docid": "13700602", "title": "", "text": "the rate issue established its right to sue for a refund on the whole depletion issue and that the testing sand error affects only the amount plaintiff is entitled to recover. This court cannot accept plaintiff’s argument. The statute and the regulations are quite clear. A taxpayer must specify the grounds and the factual bases from which they arise in its claim for a refund if it later wishes to litigate on those grounds. Plaintiff concedes that it failed to mention the testing sand error in its refund claims, but nonetheless relies on the above-stated argument to bring the testing sand error before this court. Simply put, plaintiff’s argument is without merit — the jurisdiction of this court to hear the dispute over the appropriate depletion rate to be used for some of plaintiff’s products does not extend to the effect of the testing sand error on the depletion deduction and net operating loss. The errors plaintiff made in computing the depletion deduction for the Ottawa Testing Sand constitute a separate ground for relief, distinct from the issue of the appropriate rate asserted in the claims for refund. Each issue has a different factual basis and neither is a subsidiary of or integral to the other. That being the case, the rule of substantial variance precludes this court from exercising jurisdiction over the issues arising from the testing sand error because they were not first raised in the claim for a refund. See L.E. Meyers Co. v. United States, 673 F.2d 1366 (Ct.Cl., 1982); Forward Communications Corp. v. United States, 221 Ct.Cl. at 623, 608 F.2d at 508; John B. Lambert & Associates v. United States, 212 Ct.Cl. at 86-87. Essentially, plaintiff is urging this court to embrace an expansive view of our jurisdiction over tax refund suits. To adopt plaintiff’s view, however, would fly in the face of the statute and regulations that govern the grounds upon which a taxpayer may sue for a refund of taxes. One reason for requiring a taxpayer to specify the grounds for relief in its claim for a refund is to limit any" }, { "docid": "13700603", "title": "", "text": "from the issue of the appropriate rate asserted in the claims for refund. Each issue has a different factual basis and neither is a subsidiary of or integral to the other. That being the case, the rule of substantial variance precludes this court from exercising jurisdiction over the issues arising from the testing sand error because they were not first raised in the claim for a refund. See L.E. Meyers Co. v. United States, 673 F.2d 1366 (Ct.Cl., 1982); Forward Communications Corp. v. United States, 221 Ct.Cl. at 623, 608 F.2d at 508; John B. Lambert & Associates v. United States, 212 Ct.Cl. at 86-87. Essentially, plaintiff is urging this court to embrace an expansive view of our jurisdiction over tax refund suits. To adopt plaintiff’s view, however, would fly in the face of the statute and regulations that govern the grounds upon which a taxpayer may sue for a refund of taxes. One reason for requiring a taxpayer to specify the grounds for relief in its claim for a refund is to limit any subsequent litigation to those grounds that the IRS has already had an opportunity to consider and is willing to defend. Union Pacific Railroad v. United States, 182 Ct.Cl. at 109, 389 F.2d at 442; see Forward Communications Corp. v. United States, 221 Ct.Cl. at 623, 608 F.2d at 508. The case at bar presents precisely this sort of situation. To allow plaintiff to litigate the matter of the depletion deduction allowable for the testing sand would frustrate the purpose of the statute and regulations and would create an exception that would effectively nullify the substantial variance rule. Plaintiff has attempted to escape the effect of the substantial variance rule by arguing that it established its right to recover on the depletion deduction by timely filing a refund claim in which it challenged the IRS’s reduction of its rate of depletion. Plaintiff further asserts that the error made in computing the depletion deduction for the testing sand affects only the amount of recovery, not plaintiff’s right to recover, and that the court may properly consider the" }, { "docid": "23580272", "title": "", "text": "in their claims that the Commissioner and the Tax Court had held that they did not have any cash in their possession on January 1, 1945, and denied that taxpayers were entitled to recovery of the additional tax paid for 1944. The case was called for trial before the Court and a jury. In response to the Court’s inquiry as to the fact issue upon which taxpayers would rely, their counsel replied: “The fact issue which the plaintiffs will rely on in this case is whether or not the plaintiffs had net poker winnings [in any amount] for the taxable year of 1944.” The Court held that this ground for recovery is at variance with the grounds for recovery relied upon by taxpayers in their claim for refund, as amended. In view of this holding and taxpayers’ election to rely solely upon the ground stated, the Court instructed the jury to return a verdict for appellee. Judgment was entered accordingly. The filing of a timely claim for refund is a statutory prerequisite to a suit to recover taxes alleged to have been illegally collected. 26 U.S.C.A. § 3772(a) (1); U. S. v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025. The principal requirement of the statute, supra, and regulations supplementary thereto, is that the Commissioner be apprised by the timely filing of a claim of the exact basis upon which the claim for refund is predicated. U. S. v. Pierotti, 9 Cir., 154 F.2d 758. A taxpayer is not permitted to advance one ground for refund in his claim filed with the Commissioner and thereafter rely upon an entirely different ground in a subsequent suit for refund, but is confined to the scope of the grounds for refund asserted in his claim filed with the Commissioner. J. P. Stevens Engraving Co. v. U. S., 5 Cir., 53 F.2d 1; Snead v. Elmore, 5 Cir., 59 F.2d 312; B. F. Goodrich v. U. S., 9 Cir., 135 F.2d 456, affirmed on other grounds 321 U.S. 126, 64 S.Ct. 471, 88 L.Ed. 602; Ney v. U." }, { "docid": "19881191", "title": "", "text": "for the refund, as ■stated in the claim upon which the first suit was founded, were insufficient to entitle the plaintiff to a recovery of anything more than was claimed in that suit. It is therefore said that plaintiff has not in fact split a cause of action, but in the two suits has set out two different causes of action. The regulations with reference to refund require that “all the facts relied upon in support of the claim shall be clearly set forth”; and it was held in United States v. Felt & Tarrant Co., 283 U. S. 269, with reference to the matters required to be stated in an application for refund, that “one object of such requirements is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue.” If the argument made on behalf of plaintiff is well founded, it would seem that the claim for refund was so defective that it would not have afforded a basis even for the first suit. No objection, however, was made to it in that action, and the court therefore had no occasion to pass on the question of its sufficiency. In this connection we think it can be properly said that although the nature of plaintiff’s claim could have been better stated in the first application for refund, it sufficiently appeared when the claim for refund was examined for the purpose of determining what were in fact the grounds upon which the application for refund was based. The determination of the matters alleged in plaintiff’s application for refund required an audit of plaintiff’s taxes for the year 1917, particularly with reference to the allowance of depreciation in its income for that year and the effect of such allowance upon the amount of plaintiff’s taxes. We have heretofore held that “a taxpayer is not precluded in a suit from recovering the true overpayment of tax merely because he may have made a mistake in arriving at the figure in the return,” which was repeated in the" }, { "docid": "8135602", "title": "", "text": "am in taxpayer’s blood stept in so far that returning were as tedious as go o’er. Besides, as recently as November 22, 1946, did not the Old Lion, over the outraged cries of our brother, Waller, say with me, in Jeffries v. Commissioner, 5 Cir., 158 F.2d 225, 226, “Whether a transaction or result is taxable and what the tax is is not a matter to be determined in law upon considerations of general justice or equity. It is a matter of statutes and valid regulations, and what they mean”. As well settled as the law we applied in the Jeffries case is the law: That taxation goes by years and that for taxes overpaid in any one year, the taxpayer has not many causes of action but one. Equally well settled is it that: the. cause of action for overpayment of taxes in any year cannot be split; and that a judgment in a suit for taxes overpaid in a particular year bars not only the claims actually asserted but those which could have been asserted there. The refund claim of which the dissent makes so much is not the cause of action. It is but a procedural step in asserting it. There was never any impediment in the way of the taxpayer’s claiming on the grounds he now sues on. Having pitched his prior suit on other grounds, he may not complain if he finds his recovery barred by the judgment in that suit. Let the Old Lion roar and shake his shaggy mane for justice. I’ll not follow him. 2 Cir., 148 F.2d 722. SIBLEY, Circuit Judge (dissenting). I must concede that the cited cases support the majority decision, but the Supreme Court has not spoken on the precise point and I venture to express my opposing view. That view is that it is an abuse of the principles of res judicata to say that the refusal of the Commissioner to entertain the present application for a refund timely made is justified on the ground that an application for refund on another ground and on directly opposite" }, { "docid": "1488575", "title": "", "text": "of plaintiff that the grounds for the refund, as stated in the claim upon which the first suit was founded, were insufficient to entitle the plaintiff to a recovery of anything more than was claimed in that suit. It is therefore said that plaintiff has not in fact split a cause of action, but in the two suits has set out two different causes of action. The regulations with reference to refund require that “all the facts relied upon in support of the claim shall be clearly set forth”; and it was held in United States v. Felt & Tarrant Mfg. Co.; 283 U. S. 269, 51 S. Ct. 376, 377, 75 L. Ed. 1025, with reference to the matters required to be stated in an application for refund, that “one object of such requirements is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue.” If the .argument made on behalf of plaintiff is well founded, it would seem that the claim for refund was so defective that it would not have afforded a basis even for the first suit. No objection, however, was made to it in that action, and the court therefore had no occasion to pass on the question of its sufficiency. In this connection we think it can be properly said that, although the nature of plaintiff’s claim could have been better stated in the first application for refund, it sufficiently appeared when the claim for refund was examined for the purpose of determining what were in fact the grounds upon which the application for refund was based. The determination of the matters alleged in plaintiff’s application for refund required an audit of plaintiff’s taxes for the year 1917, particularly with reference to the allowance of depreciation in its income for that year and the effect of such allowance upon the amount of plaintiff’s taxes. We have heretofore held that “a taxpayer is not precluded in a suit from recovering the true overpayment of tax merely because he may have made" } ]

[ { "docid": "23381048", "title": "", "text": "Cir.2005); Livingston v. Associates Fin., Inc., 339 F.3d 553 (7th Cir.2003). We see no reason not to do the same here. The class arbitration bar is unmistakable. Because the denial of class arbitration in the pursuit of antitrust claims has the potential to prevent Plaintiffs from vindicating their statutory rights, Plaintiffs present a question of ar-bitrability with respect to the 2002/2003 arbitration agreements’ class arbitration prohibition. ii. The merits a. Relevant federal law On the merits, the decisions of other courts of appeal appear to weigh against Plaintiffs, although not overwhelmingly so. Four of our sister circuits — the Third, Fourth, Seventh, and Eleventh — enforce consumer arbitration clauses barring the use of class mechanisms (class action and/or class arbitration). See Johnson v. West Suburban Bank, 225 F.3d 366, 374 (3d Cir.2000) (“Because there is no irreconcilable conflict between arbitration and the goals of the TILA [Truth in Lending Act], we similarly hold that claims arising under the EFTA [Electronic Fund Transfer Act] may also be subject to arbitration notwithstanding the desire of a plaintiff who previously consented to arbitration to bring his or her claims as part of a class.”); Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 638 (4th Cir.2002) (“We also reject [the plaintiffs] argument that the Arbitration Agreement is unenforceable as unconscionable because without the class action vehicle, she will be unable to maintain her legal representation given the small amount of her individual damages.”); Livingston, 339 F.3d at 559 (“[H]aving found the Arbitration Agreement enforceable we must give full force to its terms.... The Arbitration Agreement at issue here explicitly precludes ... class claims or pursuing ‘class action arbitration’ ”); Randolph II, 244 F.3d at 819 (“[W]e hold that a contractual provision to arbitrate TILA claims is enforceable even if it precludes a plaintiff from utilizing class action procedures in vindicating statutory rights under TILA.”). These four decisions have two important commonalities. First, attorney’s fees and costs were either recoverable by the plaintiffs who contested the arbitral forum on the basis of the class arbitration ban, or the fees and costs issue was moot. For" } ]

[ { "docid": "18243144", "title": "", "text": "cases render class action arbitration waivers per se enforceable. But a careful reading of the cases demonstrates that neither one addresses the issue presented here: whether a class-action arbitration waiver clause is enforceable even if the plaintiffs are able to demonstrate that the practical effect of enforcement would be to preclude their ability to vindicate their federal statutory rights. The specific preemption question addressed by the Supreme Court in Concepcion was “whether the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.” Id. at 1744. Under California’s common law, class action waivers contained in arbitration clauses were regularly found unconscionable, especially in consumer contracts. Id. at 1746. The Supreme Court began its analysis by reaffirming the “liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Id. at 1749 (internal quotation marks). By re quiring the “availability of classwide arbitration,” the Court held, the California rule “interfere[d] with fundamental attributes of arbitration and thus create[d] a scheme inconsistent with the FAA.” Id. at 1748. In response to the dissent’s discussion of the benefits of class-arbitration as a means of addressing multiple small claims, the majority concluded that “[sjtates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. Concepcion plainly offers a path for analyzing whether a state contract law is preempted by the FAA. Here, however, our holding rests squarely on “a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability.” Amex I, 554 F.3d at 320; see also Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (severing as unenforceable provision of arbitration agreement limiting availability of treble damages under antitrust statute); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (severing restriction on available remedies from arbitration agreement after finding that “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding that “[w]hen an arbitration" }, { "docid": "18243155", "title": "", "text": "• an adequate forum in which to resolve their statutory claims and because the broader social purposes behind the statute are adhered to. This supposition ] falls apart, however, if the terms of an arbitration agreement actually prevent an individual from effectively vindicating his or her statutory rights. Shankle v. B-G Maint. Mgmt of Colo., Inc., 163 F.3d 1230, 1234 (10th Cir.1999) (citations omitted); see also Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1060 (11th Cir.1998) (holding that arbitration agreement which proscribed award of Title VII damages was unenforceable because it was fundamentally at odds with the purposes of Title VII); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1468 (D.C.Cir.1997) (‘We do not read Gilmer as mandating enforcement of all mandatory agreements to arbitrate statutory claims; rather we read Gilmer as requiring the enforcement of arbitration agreements that do not undermine the relevant statutory scheme.”) Neither Stolt-Nielsen nor Concepcion overrules Mitsubishi, and neither makes mention of Green Tree. We continue to find Green Tree “controlling here to the extent that it holds that when ‘a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.’” Amex II, 634 F.3d at 197 (quoting Green Tree, 531 U.S. at 92, 121 S.Ct. 513). Other Circuits per mit plaintiffs to challenge class-action waivers on the grounds that prosecuting such claims on an individual basis would be a cost prohibitive method of enforcing a statutory right. See, e.g., In re Cotton Yarn Antitrust Litig., 505 F.3d 274, 285 (4th Cir.2007) (“[I]f a party could demonstrate that the prohibition on class actions likely would make arbitration prohibitively expensive, such a showing could invalidate an agreement.”) (citation omitted); Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 557 (7th Cir.2003) (“In the present case, the [plaintiffs] have not offered any specific evidence of arbitration costs that they may face in this litigation, prohibitive or otherwise, and have failed to provide any evidence of their inability to pay such costs____”); Adkins v. Labor Ready, Inc.," }, { "docid": "17464067", "title": "", "text": "arbitration agreement was unenforceable because it contained a class waiver forcing Plaintiff merchants into individual arbitration of Sherman Act claims. 667 F.3d at 219. We concluded that given the complexities of antitrust litigation, individual arbitration would render the costs associated with these actions prohibitive and would effectively preclude plaintiffs from bringing such claims. Id. Second, a number of Circuits have altered or invalidated arbitration agreements where they interfered with the recovery of statutorily authorized damages. See, e.g., Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (severing as unenforceable a provision of an arbitration agreement limiting availability of treble damages under the Sherman Act); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (severing a restriction on available remedies from an arbitration agreement after finding that a “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute ... the arbitration clause is not enforceable” and that the language insulating an employer from damages and equitable relief renders the clause unenforceable). Parisi asserts Title VII claims and, as a general matter, “[c]ourts have consistently found that such claims can be subject to mandatory arbitration.” Ragone v. Atl. Video, 595 F.3d 115, 120 (2d Cir.2010). Congress specifically approved arbitration of Title VII claims in the Civil Rights Act of 1991, expressly stating that the “use of alternative means of dispute resolution, including ... arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title.” Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071 (1991). Moreover, Parisi does not claim that prohibitive costs of individual arbitration would effectively prevent her from bringing her Title VII claims, nor does she claim that arbitration would interfere with her access to statutorily authorized damages. Instead, Parisi contends, and the district court agreed, that individual arbitration would preclude her from vindicating her right to bring a substantive “pattern-or-practice” claim" }, { "docid": "7397228", "title": "", "text": "F.3d at 194; see also American Express I, 554 F.3d at 320 (“We do not follow these cases because they all rely on findings of unconscionability under state law, while we have relied here on a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability.”); Sutherland, 768 F.Supp.2d at 554 (“[T]he Court finds that the class waiver provision here at issue is unenforceable because it prevents [the plaintiff] from vindicating her statutory rights.”); see also Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (severing as unenforceable provision of arbitration agreement limiting availability of treble damages under antitrust statute); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (severing restriction on available remedies from ar bitration agreement after finding that “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute, [ ] the arbitration clause is not enforceable” and finding that insulation of employer from damages and equitable relief rendered clause unenforceable); DeGaetano v. Smith Barney, Inc., 983 F.Supp. 459, 464-65 (S.D.N.Y.1997) (“[The defendant’s] Arbitration Policy — to the extent that it prevents prevailing plaintiffs from obtaining an award of attorney’s fees in employment discrimination cases — is void as a matter of public policy.”); cf. Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 15-16 (1st Cir.1999) (finding possibility of high forum fees or refusal to award statutory attorneys’ fees not fatal to arbitration agreement where arbitrator has capacity to award all remedies and court could review arbitrator’s imposition of “unreasonable fees” on employee). In American Express I, the Second Circuit concluded that a class action waiver contained within an arbitration agreement was unenforceable because, given the great expense of pursuing antitrust litigation and the small individual recovery each plaintiff could expect, the waiver would have the practical effect of ensuring no claims would be brought at all, granting the defendant “de facto immunity from" }, { "docid": "5005084", "title": "", "text": "131 S.Ct. at 1745 (emphasis added). . Other Courts of Appeal considering the issue have also found that agreements waiving statutory rights may be unenforceable. See e.g., Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (finding provision of arbitration agreements barring the recovery of treble damages in an antitrust case invalid because it prevented the vindication of a federal statutory right); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (finding agreement waiving punitive and exemplary damages in a Title VII case unenforceable); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (finding agreement insulating defendant from damages and equitable relief unenforceable). In different context, the National Labor Relations Board also recently found that pursuant to the Norris-LaGuardia Act \"an arbitration agreement imposed upon individual employees as a condition of employment cannot be held to prohibit employees from pursuing an employment-related class, collective, or joint action in a Federal or State court.” D.R. Horton, Inc., N.L.R.B. No. 12-CA-25764 (Jan. 3, 2012). . Indeed, the \"Court’s decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee’s right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would 'nullify the purposes' of the statute and thwart the legislative policies it was designed to effectuate.” Barrentine, 450 U.S. at 740, 101 S.Ct. 1437; but see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33-35, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (distinguishing Barrentine’s holdings regarding arbitration under a collective-bargaining agreement from agreements to arbitrate statutory claims). . The Court in Randolph held that where “a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” 531 U.S. at 92, 121 S.Ct. 513. The Court found that the record in that case did not establish that the plaintiff would be unable to vindicate her rights, and did not address how detailed the showing of" }, { "docid": "14877932", "title": "", "text": "S.Ct. 1647); see also Desiderio, 191 F.3d at 205-06. Arbitration of a claim of statutory rights will only be compelled if that claim can be effectively vindicated through arbitration. See Mitsubishi, 473 U.S. at 637 n. 19, 105 S.Ct. 3346 (noting that if arbitration clause and other contractual provisions “operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies,” “we would have little hesitation in condemning the agreement as against public policy”); Green Tree, 531 U.S. at 90, 121 S.Ct. 513 (noting that “even claims arising under a statute designed to further important social policies may be arbitrated because so long as the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum the statute serves its functions.” (citations and internal quotation marks and brackets omitted)). Federal substantive law of arbitrability requires federal courts to declare otherwise operative arbitration clauses unenforceable when enforcement would prevent plaintiffs from vindicating their statutory rights. American Express II, 634 F.3d at 199; see also Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998); Sutherland v. Ernst & Young LLP, 768 F.Supp.2d 547, 549 (S.D.N.Y.2011); Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394 (S.D.N.Y.2011); DeGaetano v. Smith Barney, Inc., 983 F.Supp. 459, 469 (S.D.N.Y.1997). The Second Circuit addressed this issue in American Express I, 554 F.3d 300. The Court concluded that the class action waiver in that case was unenforceable because plaintiffs had demonstrated that they otherwise would not be able to vindicate their statutory rights “in either an individual or collective capacity,” id. at 314 (emphasis in original), due to the great expense of pursuing that antitrust litigation and the small individual recovery each plaintiff could expect. As such, the waiver would have the practical effect of ensuring no claims would be brought at all, granting the defendant “de facto immunity from ... liability.” Id. at 320. The Supreme Court vacated American Express I and remanded for" }, { "docid": "16428774", "title": "", "text": "Section 7’s rights are “substantive” is plain from the structure of the NLRA: Section 7 is the NLRA’s only substantive provision. Every other provision of the statute serves to enforce the rights Section 7 protects. Compare 29 U.S.C. § 157 with id. §§ 151-169. One of those rights is “to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection,” id. § 157; “concerted activities” include collective, representative, and class legal proceedings. See Eastex, 437 U.S. at 566, 98 S.Ct. 2505; Brady, 644 F.3d at 673; D.R. Horton, 357 N.L.R.B. No. 184, at *2-3. The Supreme Court has held that “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Ply mouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). (Contrary to the Fifth Circuit’s assertion in D.R. Horton, the Supreme Court has never held that arbitration does not “deny a party any statutory right.” 737 F.3d at 357.) Arbitration agreements that act as a “prospective waiver of a party’s right to pursue statutory remedies” — that is, of a substantive right — are not enforceable. Italian Colors, 133 S.Ct. at 2310 (quoting Mitsubishi Motors, 473 U.S. at 637 n.19, 105 S.Ct. 3346). Courts routinely invalidate arbitration provisions that interfere with substantive statutory rights. See, e.g., McCaskill v. SCI Mgmt. Corp., 285 F.3d 623, 626 (7th Cir. 2002) (holding unenforceable arbitration agreement that did not provide for award of attorney fees in accordance with right guaranteed by Title VII); Kristian v. Comcast Corp., 446 F.3d 25, 48 (1st Cir. 2006) (holding unenforceable arbitration provision precluding treble damages available under federal antitrust law); Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 83 (D.C. Cir. 2005) (holding unenforceable and severing clause in arbitration agreement proscribing exemplary and punitive damages available under Title VII); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 (5th Cir. 2003) (same); Morrison v. Circuit City Stores, Inc., 317" }, { "docid": "18931969", "title": "", "text": "Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998). The Supreme Court has stated, “ ‘[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.’ ” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 1653, 114 L.Ed.2d 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 3359, 87 L.Ed.2d 444 (1985).) Nevertheless,, we held in Paladino that some procedural flaws present such barriers to a would-be litigant’s exercise of his or her statutory rights that they render an arbitration clause unenforceable. “When an arbitration clause has provisions that defeat the remedial purpose of [a] statute, ... the arbitration clause is not enforceable.” Paladino, 134 F.3d at 1062 (citation omitted). As the Tenth Circuit has stated, As Gilmer emphasized, arbitration of statutory claims works because potential litigants have an adequate forum in which to resolve their statutory claims and because the broader social purposes behind the statute are adhered to. This supposition ] falls apart, however, if the terms of an arbitration agreement actually prevent an individual from effectively vindicating his or her statutory rights. Accordingly, an arbitration agreement that prohibits use of the judicial forum as a means of resolving statutory claims must also provide for an effective and accessible alternative forum. Shankle v. B-G Maintenance Management of Colorado, Inc., 163 F.3d 1230, 1234 (10th Cir.1999) (citations omitted). While the arbitral forum usually serves as just such an alternative, some barriers of access .to that forum may render an arbitration clause unenforceable. See id. at 1234 n. 3. In particular, we held in Paladino that forcing a plaintiff to bear the brunt of “hefty” arbitration costs and “steep filing fees” constitutes “a legitimate basis for a conclusion that the [arbitration] clause does not comport with statutory policy.” Paladino, 134 F.3d at 1062. Thus, we held that an employer’s arbitration agreement did not “comport with [the] statutory policy” .of Title VII because the plaintiff would have had" }, { "docid": "16428775", "title": "", "text": "arbitration does not “deny a party any statutory right.” 737 F.3d at 357.) Arbitration agreements that act as a “prospective waiver of a party’s right to pursue statutory remedies” — that is, of a substantive right — are not enforceable. Italian Colors, 133 S.Ct. at 2310 (quoting Mitsubishi Motors, 473 U.S. at 637 n.19, 105 S.Ct. 3346). Courts routinely invalidate arbitration provisions that interfere with substantive statutory rights. See, e.g., McCaskill v. SCI Mgmt. Corp., 285 F.3d 623, 626 (7th Cir. 2002) (holding unenforceable arbitration agreement that did not provide for award of attorney fees in accordance with right guaranteed by Title VII); Kristian v. Comcast Corp., 446 F.3d 25, 48 (1st Cir. 2006) (holding unenforceable arbitration provision precluding treble damages available under federal antitrust law); Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 83 (D.C. Cir. 2005) (holding unenforceable and severing clause in arbitration agreement proscribing exemplary and punitive damages available under Title VII); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 (5th Cir. 2003) (same); Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 670 (6th Cir. 2003) (holding unenforceable arbitration agreement that limited remedies under Title VII); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir. 1998) (same). Epic pushes back with three arguments, but none changes the result. It points out the Federal Rule of Civil Procedure 23 simply creates a procedural device. We have no quarrel with that, but Epic forgets that its clause also prohibits the employees from using any collective device, whether in arbitration, outside of any tribunal, or litigation. Rule 23 is not the source of the collective right here; Section 7 of the NLRA is. Epic also notes that courts have held that other employment statutes that provide for Rule 23 class actions do not provide a substantive right to a class action. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (Age Discrimination in Employment Act (ADEA)); D.R. Horton, 737 F.3d at 357 (citing court of appeals cases for FLSA). It bears repeating: just as the NLRA" }, { "docid": "7397227", "title": "", "text": "provisions “operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies,” “we would have little hesitation in condemning the agreement as against public policy”). Indeed, “the arbitration of a statutory claim will be compelled only if that claim can be effectively vindicated in the arbitral forum.” Sutherland, 768 F.Supp.2d at 549; see also Herrera v. Katz Communications, Inc., 532 F.Supp.2d 644, 646 (S.D.N.Y.2008) (“[A] statutory cause of action will not be appropriate for arbitration if ‘the prospective litigant [cannot] effectively ... vindicate [his or her] statutory cause of action in the arbitral forum.’ ” (alterations in original) (quoting Gilmer, 500 U.S. at 28, 111 S.Ct. 1647)); Pyett, — U.S. at -, 129 S.Ct. at 1474 (“[A] substantive waiver of federally protected civil rights will not be upheld.”). When a plaintiffs statutory rights are not capable of vindication through arbitration, the “federal substantive law of arbitrability,” grounded in the FAA, allows federal courts to declare otherwise operative arbitration clauses unenforceable through a “vindication of statutory rights analysis.” American Express II, 634 F.3d at 194; see also American Express I, 554 F.3d at 320 (“We do not follow these cases because they all rely on findings of unconscionability under state law, while we have relied here on a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability.”); Sutherland, 768 F.Supp.2d at 554 (“[T]he Court finds that the class waiver provision here at issue is unenforceable because it prevents [the plaintiff] from vindicating her statutory rights.”); see also Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (severing as unenforceable provision of arbitration agreement limiting availability of treble damages under antitrust statute); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (severing restriction on available remedies from ar bitration agreement after finding that “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute, [ ] the arbitration" }, { "docid": "18243145", "title": "", "text": "FAA.” Id. at 1748. In response to the dissent’s discussion of the benefits of class-arbitration as a means of addressing multiple small claims, the majority concluded that “[sjtates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. Concepcion plainly offers a path for analyzing whether a state contract law is preempted by the FAA. Here, however, our holding rests squarely on “a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability.” Amex I, 554 F.3d at 320; see also Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (severing as unenforceable provision of arbitration agreement limiting availability of treble damages under antitrust statute); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (severing restriction on available remedies from arbitration agreement after finding that “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute ... the arbitration clause is not enforceable” and language insulating employer from damages and equitable relief rendered clause unenforceable). Concepcion and Stoltr-Nielsen, taken together, stand squarely for the principle that parties cannot be forced to arbitrate disputes in a class-action arbitration unless the parties agree to class action arbitration. Concepcion, 131 S.Ct. at 1750-51 (“class arbitration, to the extent it is manufactured by [state law] rather than consensual, is inconsistent with the FAA”) ; Stolt-Nielsen, 130 S.Ct. at 1775 (“a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”). We plainly acknowledged in Amex II that we could not, and thus were not, ordering the parties to participate in class arbitration. 634 F.3d at 200 (“Stolt-Nielsen plainly precludes us from ordering class-wide arbitration.”). What Stolt-Nielsen and Concepcion do not do is require that all class-action waivers be deemed per se enforceable. That leaves open the" }, { "docid": "5005083", "title": "", "text": "claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, moreover, denies AT & T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT & T’s last written settlement offer, requires AT & T to pay a $7,500 minimum recovery and twice the amount of the claimant's attorney’s fees. 131 S.Ct. at 1744 (emphasis added). The Court also emphasized that the District Court: ... described AT & T's arbitration agreement favorably, noting, for example, that the informal dispute-resolution process was ‘quick, easy to use’ and likely to ‘prompft] full or ... even excess payment to the customer without the need to arbitrate or litigate’; that the $7,500 premium functioned as 'a substantial inducement for the consumer to pursue the claim in arbitration’ if a dispute was not resolved informally; and that consumers who were members of a class would likely be worse off. 131 S.Ct. at 1745 (emphasis added). . Other Courts of Appeal considering the issue have also found that agreements waiving statutory rights may be unenforceable. See e.g., Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (finding provision of arbitration agreements barring the recovery of treble damages in an antitrust case invalid because it prevented the vindication of a federal statutory right); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (finding agreement waiving punitive and exemplary damages in a Title VII case unenforceable); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (finding agreement insulating defendant from damages and equitable relief unenforceable). In different context, the National Labor Relations Board also recently found that pursuant to the Norris-LaGuardia Act \"an arbitration agreement imposed upon individual employees as a condition of employment cannot be held to prohibit employees from pursuing an employment-related class, collective, or joint action in a Federal or State court.” D.R. Horton, Inc., N.L.R.B. No. 12-CA-25764 (Jan. 3, 2012). . Indeed, the \"Court’s decisions interpreting" }, { "docid": "23431312", "title": "", "text": "of contract (counts 90-129). For the purposes of this appeal, it is enough to say that the dispute generally involves Terminix’s provision of termite protection services for Palmer Ranch’s 31-building apartment complex from 1997 through at least 2002. Terminix then filed the present action in the United States District Court for the Middle District of Florida, seeking an order compelling arbitration under § 4 of the Federal Arbitration Act (FAA), 9 U.S.C. § 4. Jurisdiction was based on diversity of citizenship. In its answer, Palmer Ranch did not deny that' all of its contracts with Terminix included broadly worded arbitration clauses, but it asserted that the federal action should be dismissed or stayed under the Colorado River abstention doctrine. See generally Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). In the alternative, Palmer Ranch contended that the arbitration agreements are unenforceable because they “illegally deprive [Palmer Ranch] of statutory remedies and rights,” including punitive damages, treble damages, damages and injunctive and declaratory relief under the FDUTPA, and attorney’s fees. The district court denied Terminix’s motion to compel arbitration. In its order, the court reasoned that “[t]he current state of the law in this circuit is that an arbitration agreement that contains remedial restrictions and a severability clause is enforceable, but an arbitration agreement that contains remedial restrictions and no severability clause is unenforceable. See Paladino v. Avnet Computer Technologies. Inc., 134 F.3d 1054 (11th Cir.1998) and Anders v. Hometown Mortgage Services, Inc., 346 F.3d 1024 (11th Cir.2003).” Terminix Int’l Co. v. Palmer Ranch L.P., 2004 WL 1879965, at *1 (M.D.Fla. Aug.4, 2004). Because the arbitration agreements at issue here contain remedial restrictions but not severability clauses, the district court held that they were unenforceable. Id. The district court misread our decisions in Paladino and Anders. Paladino does not hold that any remedial restriction contained in an arbitration agreement is necessarily unenforceable or necessarily renders the agreement null and void in its entirety. And Anders does not hold that any arbitration agreement that contains an unenforceable remedial restriction is completely null" }, { "docid": "17464066", "title": "", "text": "command.” CompuCredit, 132 S.Ct. at 669 (internal quotation marks omitted); see also Gilmer, 500 U.S. at 26, 111 S.Ct. 1647. “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the stat ute; it only submits to their resolution in an arbitral, rather than a judicial forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Moreover, even claims arising under a statute designed to further important social policies may be arbitrated because “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (emphasis added). In line with Mitsubishi, this Court and other Circuit courts have found two circumstances in which motions to compel arbitration must be denied because arbitration would prevent plaintiffs from vindicating their statutory rights. First, in In re American Express Merchants’ Litigation, this Court held that an arbitration agreement was unenforceable because it contained a class waiver forcing Plaintiff merchants into individual arbitration of Sherman Act claims. 667 F.3d at 219. We concluded that given the complexities of antitrust litigation, individual arbitration would render the costs associated with these actions prohibitive and would effectively preclude plaintiffs from bringing such claims. Id. Second, a number of Circuits have altered or invalidated arbitration agreements where they interfered with the recovery of statutorily authorized damages. See, e.g., Kristian v. Comcast Corp., 446 F.3d 25, 47-48 (1st Cir.2006) (severing as unenforceable a provision of an arbitration agreement limiting availability of treble damages under the Sherman Act); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003) (severing a restriction on available remedies from an arbitration agreement after finding that a “ban on punitive and exemplary damages is unenforceable in a Title VII case”); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding that “[w]hen an arbitration clause has provisions that defeat the remedial purpose of the statute ... the arbitration" }, { "docid": "23677017", "title": "", "text": "Motors, 473 U.S. at 635-37, 105 S.Ct. 3346. The Court noted “ ‘[s]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.’ ” Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (quoting Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346). Thus, Gilmer reaffirmed the Arbitration Act’s presumption in favor of enforcing agreements to arbitrate — even where those agreements cover statutory claims. While we recognize this presumption, Metz, 39 F.3d at 1487, we conclude that it is not without limits. As Gilmer emphasized, arbitration of statutory claims works because potential litigants have an adequate forum in which to resolve their statutory claims and because the broader social purposes behind the statute are adhered to. Gilmer, 500 U.S. at 28, 111 S.Ct. 1647. This supposition, falls apart, however, if the terms of an arbitration agreement actually prevent an individual from effectively vindicating his or her statutory rights. See Cole, 105 F.3d at 1482-85 (concluding an arbitration agreement cannot force an employee to waive substantive rights provided by statute nor access to a neutral forum in which to enforce those rights); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1060 (11th Cir.1998) (holding that arbitration agreement which proscribed award of Title VII damages was unenforceable because it was fundamentally at odds with the purposes of Title VII); Graham Oil Co. v. ARCO Prod. Co., 43 F.3d 1244, 1248-49 (9th Cir.1994) (striking arbitration clause that compelled parties to surrender important statutorily mandated rights in contravention of the statute), cert. denied, 516 U.S. 907, 116 S.Ct. 275, 133 L.Ed.2d 195 (1995). Accordingly, an arbitration agreement that prohibits use of the judicial forum as a means of resolving statutory claims must also provide for an effective and accessible alternative forum. In this case, Mr. Shankle signed the Agreement as a condition of continued employment. The Agreement requires Mr. Shankle to arbitrate all disputes arising between he and his former employer. In order to invoke the procedure mandated by his employer, however," }, { "docid": "14877933", "title": "", "text": "446 F.3d 25, 47-48 (1st Cir.2006); Hadnot v. Bay, Ltd., 344 F.3d 474, 478 n. 14 (5th Cir.2003); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998); Sutherland v. Ernst & Young LLP, 768 F.Supp.2d 547, 549 (S.D.N.Y.2011); Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394 (S.D.N.Y.2011); DeGaetano v. Smith Barney, Inc., 983 F.Supp. 459, 469 (S.D.N.Y.1997). The Second Circuit addressed this issue in American Express I, 554 F.3d 300. The Court concluded that the class action waiver in that case was unenforceable because plaintiffs had demonstrated that they otherwise would not be able to vindicate their statutory rights “in either an individual or collective capacity,” id. at 314 (emphasis in original), due to the great expense of pursuing that antitrust litigation and the small individual recovery each plaintiff could expect. As such, the waiver would have the practical effect of ensuring no claims would be brought at all, granting the defendant “de facto immunity from ... liability.” Id. at 320. The Supreme Court vacated American Express I and remanded for reconsideration in light of Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. —, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010). American Express Co. v. Italian Colors Rest., 130 S.Ct. 2401. On remand, the Circuit again found the arbitration provision unenforceable because “the class action waiver in this case precludes plaintiffs from enforcing their statutory rights” due to the prohibitive cost of litigating on an individual basis. American Express II, 634 F.3d at 197-99. In Ragone, 595 F.3d 115, the Court of Appeals again confirmed the importance of the statutory rights analysis, indicating its willingness, if in dicta, to hold unenforceable an arbitration agreement containing a shortened statute of limitations and a fee-shifting provision that would “significantly diminish a litigant’s rights under Title VII.” 595 F.3d at 125-26. The Court of Appeals discussion in Ragone demonstrates “that the holdings of American Express apply not only to ‘negative value’ class action claims, that is, claims that are so small in value that it is not economically viable to pursue them as individual claims.” Chen-Oster, 785 F.Supp.2d at" }, { "docid": "18931968", "title": "", "text": "Because the district court’s dismissal of Randolph’s action with prejudice left it with “nothing ... to do but execute the judgment,” Morewitz, 62 F.3d at 1361 (quotation and citation omitted), we hold that its order compelling arbitration was an appealable “final decision” under 9 U.S.C. § 16(a)(3). B. ■ THE ENFORCEABILITY OF THE ARBITRATION CLAUSE Having determined that we have jurisdiction over this appeal, we now turn to the question whether the TILA precludes the enforcement of the arbitration clause in the retail installment agreement signed by Randolph. Because the arbitration clause signed by Randolph in this case fails to provide the minimum guarantees required to ensure that she can vindicate her statutory rights under the TILA, we conclude that the arbitration clause in this case is unenforceable. As an initial matter, we recognize that “[ajrbitration ordinarily brings hardships for litigants along with potential efficiency. ... In light of a strong federal policy favoring arbitration,” some “inherent weaknesses” in the procedural apparatus of an arbitration “should not make an arbitration clause unenforceable.” Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998). The Supreme Court has stated, “ ‘[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.’ ” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 1653, 114 L.Ed.2d 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 3359, 87 L.Ed.2d 444 (1985).) Nevertheless,, we held in Paladino that some procedural flaws present such barriers to a would-be litigant’s exercise of his or her statutory rights that they render an arbitration clause unenforceable. “When an arbitration clause has provisions that defeat the remedial purpose of [a] statute, ... the arbitration clause is not enforceable.” Paladino, 134 F.3d at 1062 (citation omitted). As the Tenth Circuit has stated, As Gilmer emphasized, arbitration of statutory claims works because potential litigants have an adequate forum in which to resolve their statutory claims and because the broader" }, { "docid": "9833186", "title": "", "text": "upon Gilmers, rationale that statutory claims can be resolved in arbitration because arbitration is an adequate alternative forum to litigation, some courts have concluded that fee-splitting provisions render arbitration agreements unenforceable because the cost of fee splitting deters or prevents employees from vindicating their statutory rights in arbitral forums. See Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (citing Gilmer and concluding that high costs of arbitration that may be imposed against an employee provide a legitimate basis for nullifying an arbitration agreement in part because “the arbitrability of [statutory claims] rests on the assumption that the arbitration clause permits relief equivalent to court remedies. When an arbitration clause has provisions that defeat the remedial purpose, therefore, the arbitration clause is not enforceable.” (internal citations omitted)); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1483-85 (D.C.Cir.1997) (relying upon Gil-mer and stating that employers cannot require as a condition of employment that employees waive access to a neutral forum in which to resolve their statutory claims and that arbitration is not a reasonable substitute for a judicial forum if the employee must pay for the arbitrator because “they would never be required to pay for a judge in court”). Other courts, however, have refused to conclude that fee splitting, by itself, necessarily renders an arbitration provision unenforceable. See Williams v. Cigna Financial Advisors, Inc., 197 F.3d 752, 763-64 (5th Cir.1999) (stating that “[i]n our opinion, ... Gilmer does not so clearly imply that no part of arbitral forum fees may ever be assessed against federal anti-discrimination claimants, although it plainly indicates that an arbitral cost allocation scheme may not be used to prevent effective vindication of federal statutory claims,” and upholding an arbitration agreement that required a Title VII claimant to pay half of the costs), cert. denied, 529 U.S. 1099, 120 S.Ct. 1833, 146 L.Ed.2d 777 (May 1, 2000); Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 15-16 (1st Cir.1999) (refusing to invalidate arbitration scheme simply because of the possibility that the arbitrator would charge the plaintiffs a forum fee “which" }, { "docid": "7397229", "title": "", "text": "clause is not enforceable” and finding that insulation of employer from damages and equitable relief rendered clause unenforceable); DeGaetano v. Smith Barney, Inc., 983 F.Supp. 459, 464-65 (S.D.N.Y.1997) (“[The defendant’s] Arbitration Policy — to the extent that it prevents prevailing plaintiffs from obtaining an award of attorney’s fees in employment discrimination cases — is void as a matter of public policy.”); cf. Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 15-16 (1st Cir.1999) (finding possibility of high forum fees or refusal to award statutory attorneys’ fees not fatal to arbitration agreement where arbitrator has capacity to award all remedies and court could review arbitrator’s imposition of “unreasonable fees” on employee). In American Express I, the Second Circuit concluded that a class action waiver contained within an arbitration agreement was unenforceable because, given the great expense of pursuing antitrust litigation and the small individual recovery each plaintiff could expect, the waiver would have the practical effect of ensuring no claims would be brought at all, granting the defendant “de facto immunity from ... liability.” 554 F.3d at 320. The court found that this was a “valid ground” for the revocation of the class waiver under Section 2 of the FAA, and as such the provision was unenforceable. Id. at 320. Although the Supreme Court vacated this decision and remanded it for reconsideration in light of its decision in Stolt-Nielsen, — U.S. -, 130 S.Ct. 2401, 176 L.Ed.2d 920, on further review the Second Circuit upheld its conclusion that “as the class action waiver in this case precludes plaintiffs from enforcing their statutory rights, we find the arbitration provision unenforceable.” 634 F.3d at 199. The court distinguished Stolt-Nielsen, finding that it established “that parties cannot be forced to engage in a class arbitration absent a contractual agreement to do so,” but did not render “a contractual clause barring class arbitration [ ] per se enforceable.” Id. at 193-94. The court again cited Supreme Court dicta indicating there might be “instances in which an arbitration agreement contained provisions that would be unenforceable because they would prevent a prospective litigant" }, { "docid": "17207257", "title": "", "text": "Terms and Conditions” states the following: MANUFACTURERS WARRANTIES. I UNDERSTAND THAT THERE MAY BE WRITTEN WARRANTIES COVERING THE UNIT PURCHASED ... WHICH HAVE BEEN PROVIDED BY THE MANUFACTURER OF THE UNIT.... I ACKNOWLEDGE THAT THESE EXPRESS WARRANTIES MADE BY THE MANUFACTURER(S) HAVE NOT BEEN MADE BY YOU EVEN IF THEY SAY YOU MADE THEM OR SAY YOU MADE SOME OTHER EXPRESS WARRANTY. YOU ARE NOT AN AGENT OF THE MANUFACTURER(S) FOR WARRANTY PURPOSES EVEN IF YOU COMPLETE, OR ATTEMPT TO COMPLETE REPAIRS FOR THE MANUFACTURER(S). (Ex. 3, Resp. to Pl.'s Opp'n to Dels.’ Mot. to Compel Arb.) . The court notes the recent Eleventh Circuit opinion in Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054 correctly refused to compel arbitration of plaintiff's Title VII claim pursuant to an arbitration agreement on grounds that the arbitration clause deprived the employee of any prospect for meaningful relief. Paladino, 134 F.3d at 1060. The court based its holding on the proposition that, when an arbitration clause has provisions that defeat the remedial purpose of the statute, the arbitration clause is unenforceable. Paladino, 134 F.3d at 1062 (citing Cole v. Burns Int’l Sec. Services, 105 F.3d 1465, 1468 (D.C.Cir. 1997)). Specifically, the court examined two provisions of the arbitration clause at issue in that case and held that the provisions, read together, made plaintiff's Title VII claims subject to arbitration, yet circumscribed the arbitrator's authority to grant relief for those claims. Id. at 1061. The court found that, by precluding relief for the Title VII claims, these provisions violated the remedial purpose of Title VII, thereby rendering the arbitration clause unenforceable. Id. at 1062. The court also stated that arbitration would impose a \"hefty cost” on the Plaintiff, thereby further violating the remedial purpose of Title VII. Id. The court stated: The difficulty of obtaining meaningful relief is not, moreover, the only infirmity of this clause. Because [the employer] makes no promises to pay for an arbitrator, employees may be liable for at least half the hefty cost of an arbitration and must, according to the American Arbitration Association rules the clause explicitly" } ]

[ { "docid": "7102925", "title": "", "text": "KRAVITCH, Circuit Judge: Frederick Francis, currently on parole from the Alabama penal system, was convicted of robbery and sentenced to prison for twenty-five years. Prison officials twice recommended Francis for participation in Alabama’s work-release program. See Ala.Code § 14-8-2 (1982). Francis was denied work-release both times by the Central Review Board of the Department of Corrections’ Classification and Records Division because his crime involved serious physical injury to his victim and the Board expected negative community reaction to a grant of work-release to Francis. The Director of Corrections denied Francis’ appeals. Francis filed this action against various prison officials under 42 U.S.C. § 1983, alleging that the Corrections Department’s decision to deny him work-release violated the due process clause of the fourteenth amendment. Francis also alleged that the application to him of the Department’s Regulation 410, establishing the criteria for eligibility to participate in the work-release program, violated the ex post facto clause of the Constitution. The district court granted summary judgment for all appellees, holding that Francis had no liberty interest protected by the due process clause in obtaining work-release. We affirm. Liberty interests protected by the due process clause of the fourteenth amendment may arise either from the Constitution itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). Francis does not contend that the Constitution gives him a right to work-release. Rather, he argues that the state of Alabama has created a liberty interest in work-release. The existence of a liberty interest in work-release arising from state law depends on the extent to which official discretion has been constrained by statute, regulation, or practice. Accord Board of Pardons v. Allen, — U.S. -, 107 S.Ct. 2415, 2419, 96 L.Ed.2d 303 (1987); Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Whitehorn v. Harrelson, 758 F.2d 1416, 1423 (11th Cir.1985). In particular, “[w]hen the statute is framed in discretionary terms there is not a liberty interest created.” Thomas v. Sellers, 691 F.2d 487, 489 (11th" } ]

[ { "docid": "5063133", "title": "", "text": "or transfer him to a Canadian prison. The plaintiff alleges that, by refusing to effect a Treaty transfer or deport him, the defendants caused him to be imprisoned more than four thousand miles from his family, and for two year’s longer than he would have been had he been transferred to Canada. With respect to his deportation, the plaintiff alleges that the refusal to expeditiously deport him caused him to be imprisoned six months more than would a United States citizen under similar circumstances. He also alleges that he was denied access to various release programs available to United States citizens in similar circumstances. Liberally construed, the plaintiffs claim is that, by refusing to transfer, deport, or enroll him in any release programs, the defendants have effectively subjected him to longer incarceration and more severe conditions than he otherwise would have faced. In essence, the plaintiff claims that he has an enforceable liberty interest in being transferred or deported, and enrolled in certain release programs, in that it was incumbent upon the defendants to ameliorate his situation in such a manner. Liberty interests protected by the Fourteenth Amendment may arise directly from the Due Process Clause itself or from the laws of the states. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). However, “lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Helms, 459 U.S. at 467, 103 S.Ct. at 869. See also Hernandez v. Coughlin, 18 F.3d 133, 136-37 (2d Cir.1994). Thus, the Court has held that an inmate has no inherent liberty interest in commutation of his sentence, Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981); in being paroled, Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979); in receiving good-time credit for satisfactory behavior while in prison, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963," }, { "docid": "3601636", "title": "", "text": "1883, 104 L.Ed.2d at 475]. The Court approved the standard set forth in Turner v. Safley, supra, 482 U.S. at 89, 107 S.Ct. at 2261-62, to the effect that regulations are valid if they are reasonably related to legitimate penological interests [— U.S. at -, 109 S.Ct. at 1879, 104 L.Ed.2d at 470] and rejected the “least restrictive means” test in considering rights of inmates [at -, 109 S.Ct. at 1880, 104 L.Ed.2d at 471], The Court further recognized that prison officials are due considerable deference in regulating the delicate balance between prison order and security and the legitimate demands of outsiders who seek to enter the prison environment and of the legitimate demands of inmates. Both Thornburgh, supra, and Turner, supra, recognize the considerable deference due the decisions of prison officials in regulating prison order and security and in recognizing the “inordinately difficult undertaking” that is modern prison administration. See also Procunier v. Martinez, 416 U.S. 396, 404-405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); McCorkle v. Johnson, 881 F.2d 993 (11th Cir.1989). PREPARATION FOR RELEASE. Paragraphs 62 and 63 of the Complaint seek, pursuant to the Equal Protection Clause of the Fourteenth Amendment, full and equal rights with other inmates in the field of work release and other conditional release programs, education, employment, religious services, recreation, good time and parole. While such ambitions are commendable, applicability of such programs have generally not been considered applicable to persons not likely to provide the long hours necessary for success therein. Several seropositive inmates have met with little success in asserting rights to early conditional release and similar efforts to prepare at State expense for a productive future in the free world. While a liberty interest protected by the Due Process Clause of the Fourteenth Amendment may arise either from the Constitution itself or from State law, the Court in Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983), found that Alabama State law creates no liberty interest in work release. CODE OF ALABAMA [1975], § 14-8-2(a), frames work release in discretionary terms. Francis" }, { "docid": "2747753", "title": "", "text": "that continued participation in Alabama’s work release program was a liberty interest inherently protected by the due process clause); see Olim v. Wakinekona, 461 U.S. 238, 244-48, 103 S.Ct. 1741, 1744-46, 75 L.Ed.2d 813 (1983) (interstate prison transfer is not a liberty interest arising under the Constitution); Hewitt, 459 U.S. at 466-68, 103 S.Ct. at 868-69 (no constitutional right of prisoner to be confined in general population rather than more restrictive setting); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (no “constitutional or inherent right” to parole); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976) (no constitutional right protecting inmate against transfer to different prison facility); Meachum, 427 U.S. at 225, 96 S.Ct. at 2538 (no constitutional right protecting an inmate against transfer from less secure to more secure facility); but see Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) (involuntary transfer from prison to mental hospital is a liberty interest inherently protected by the due process clause); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973) (constitutionally protected liberty interest in probation revocation); Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (constitutionally protected liberty interest in parole revocation). Nevertheless, it is clear that a state may create a constitutionally protected liberty interest through enactment of statutes, e.g., Hewitt, 459 U.S. at 470-71, 103 S.Ct. at 870-71, or through other forms of state action. E.g., Vitek, 445 U.S. at 489-90, 100 S.Ct. at 1261-62 (state regulations and practice created liberty interest); Dace v. Mickelson, 816 F.2d 1277, 1279 (8th Cir.1987) (en banc) (state rules, regulations, or practices may create liberty interest). Under this umbrella, Hake contends that the DCS rules, regulations, policies and practices created a liberty interest in not being removed from work detail without the appropriate procedural due process. In holding to the contrary, we believe the district court erred. In Parker v. Corrothers, 750 F.2d 653" }, { "docid": "5303447", "title": "", "text": "Opinion for the Court filed PER CURIAM. PER CURIAM: The main question presented by this appeal is whether the District of Columbia Code creates a liberty interest in parole that is protected by the Due Process Clause of the Fourteenth Amendment. We hold that it does not. James Edward Price, an inmate at Lorton Correctional Complex, brought this action under 42 U.S.C. § 1983, claiming that the District of Columbia Board of Parole had violated his ■civil rights. Specifically, appellant alleges that the Board violated his due process rights when it failed to parole him in a “timely manner.” The district court determined that the District of Columbia Code does not create an “expectancy of release” and thus appellant cannot claim a liberty interest entitling him to due process protections. We agree. A liberty interest may arise from two sources — the due process clause itself or state law. See Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). The Supreme Court has explicitly held that the Constitution does not provide a liberty interest in parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). Therefore, appellant must look to District of Columbia law for his asserted liberty interest in parole. State regulations may give rise to a constitutionally protected liberty interest if they contain substantive limitations on official discretion, embodied in mandatory statutory or regulatory language. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In Greenholtz, the Supreme Court determined that the language in the Nebraska parole statute established a presumption that release would be granted absent specified findings. The Nebraska statute directed that whenever the Board of Parole considers whether to release an inmate who has served the minimum time necessary for parole, it “shall order his release unless it is of the opinion his release should be deferred because [one of four specific risk factors exists].” Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2106 (emphasis added). The mandatory language sufficiently restricted the Board’s" }, { "docid": "2747752", "title": "", "text": "to grant a new trial. The district court denied all of these motions. Hake appeals from all of the above rulings. We address Hake’s removal from work detail and his classification demotion separately. II. DISCUSSION. A. Liberty Interest in Remaining on Post Care Work Detail. The due process clause of the fourteenth amendment protects liberty interests arising from the Constitution itself and those created by state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983) (citing Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-39, 49 L.Ed.2d 451 (1976)). In this appeal, Hake does not contend that his liberty interest in continued participation in the post care work detail program is derived from the due process clause itself, and indeed, although the Supreme Court has never addressed this specific issue, we agree with the views of the Eleventh Circuit that such an argument would be dubious in light of recent decisions of the Court. Whitehorn v. Harrelson, 758 F.2d 1416, 1420-22 (11th Cir.1986) (rejecting inmate’s claim that continued participation in Alabama’s work release program was a liberty interest inherently protected by the due process clause); see Olim v. Wakinekona, 461 U.S. 238, 244-48, 103 S.Ct. 1741, 1744-46, 75 L.Ed.2d 813 (1983) (interstate prison transfer is not a liberty interest arising under the Constitution); Hewitt, 459 U.S. at 466-68, 103 S.Ct. at 868-69 (no constitutional right of prisoner to be confined in general population rather than more restrictive setting); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (no “constitutional or inherent right” to parole); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976) (no constitutional right protecting inmate against transfer to different prison facility); Meachum, 427 U.S. at 225, 96 S.Ct. at 2538 (no constitutional right protecting an inmate against transfer from less secure to more secure facility); but see Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) (involuntary transfer from prison to mental hospital" }, { "docid": "18795447", "title": "", "text": "PER CURIAM. Michael A. Mahfouz appeals pro se and in forma pauperis from a final judgment entered in the District Court for the Eastern District of Arkansas dismissing his civil rights complaint. For reversal, Mahfouz argues that the denial of the opportunity to apply for participation in one of Arkansas’ work/study release programs violated his fourteenth amendment rights to due process and equal protection. For the reasons discussed below, we affirm the judgment of the district court. Mahfouz, an Arkansas state prisoner, brought this civil rights action pursuant to 42 U.S.C. § 1983 (1982), against the Director of the Arkansas Department of Correction (ADC) and its board members, the Attorney General, and the Governor. He is serving a six-year sentence as a result of his 1984 conviction on three counts of sexual abuse involving minors. Mahfouz alleges his constitutional rights were violated when he was arbitrarily denied the opportunity to apply for participation in the Arkansas work/study release program for inmates housed outside ADC facilities because he is a sex offender. Mahfouz contends that because the Arkansas legislature has statutorily excepted certain convicts from the program, the ADC is without discretion to further limit and restrict participation in the program. In addition, Mahfouz raises an equal protection objection to the ADC policy excluding sex offenders from eligibility for the work release program, while not excluding inmates convicted of what he feels are equally or more serious offenses. The district court determined that Mahfouz’s claims were without merit and granted defendants’ motion to dismiss. This appeal followed. DUE PROCESS A liberty interest protectible under the due process clause of the fourteenth amendment “ ‘may arise from two sources — the Due Process Clause itself and the laws of the States.’ ” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983), quoted in Clark v. Brewer, 776 F.2d 226, 230 (8th Cir.1985). Although there is no constitutionally based liberty interest in participating in a work release program, see Johnson v. Stark, 717 F.2d 1550 (8th Cir.1983) (per curiam) (Johnson); Matz v. Kelsch, 638 F.2d 48 (8th" }, { "docid": "6999861", "title": "", "text": "first matter to be resolved is whether we are to look for such an interest in the fourteenth amendment itself or in the various sources of state law. When a prisoner is still under confinement, the Supreme Court has consistently held that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (quoting Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)). Thus, for prisoners under confinement, the Court has generally failed to find a liberty interest deriving independently from the Constitution. An independent liberty interest was not found for prisoners under confinement even in cases concerning parole and good time credits. See Hewitt, 459 U.S. at 467-68, 103 S.Ct. at 869 (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) and Wolff v. McDonnell, 418 U.S. at 557, 94 S.Ct. at 2975). On the other hand, the Court has found independent constitutional liberty interests where total release from institutional life has been revoked, as in the case of a parolee, or where the restrictions imposed go beyond the original conditions of confinement. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (independent constitutional due process protection in case of revocation of parole); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1262-64, 63 L.Ed.2d 552 (1980) (independent due process protection in involuntary transfer to mental hospital). An inmate in a halfway house is granted a measure of liberty that lies between that of a parolee and that of an inmate incarcerated in prison. While the prisoner in this situation enjoys some significant liberty, he remains under confinement in a correctional institution. His position is, therefore, not like that of a parolee. See, e.g., Whitehorn v." }, { "docid": "12424619", "title": "", "text": "summary judgment and in their brief to this Court, plaintiffs argue that section 2947.151 is unconstitutional on its face and as applied by the defendants. They assert that defendants categorically deny homosexual inmates access to work assignments and the opportu nity to reduce their sentences because they are homosexual, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The defendants answer that inmates have no protected liberty interest in this discretionary program for sentence reductions and that homosexuals were not denied work opportunities, therefore, no constitutional violation occurred. A. Due Process Claim The United States Supreme Court has held that inmates have no inherent constitutional right to good time credit. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). But it has also recognized that a state may nevertheless “create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures.” Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). The Court further explained that, by the use of “language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed,” a state may create in its prisoners a protected liberty interest. Id. at 471, 103 S.Ct. at 871. Plaintiffs claim that Ohio has created a protected liberty interest in the plaintiffs’ right to the sentence reductions at issue here through the promulgation of Ohio Administrative Code, § 5120:l-8-15(G). This section reads: Prisoners placed in administrative segregation shall receive all regular privileges and rights unless they pose a serious threat to the security of the facility or the health and welfare of the individual. This section guarantees that those in administrative segregation will have the same rights and privileges as do those in the general population. It does not concern or in any way establish a right on the part of any prisoner to earn the credits involved here. That right is governed by section 2947.151 of the Ohio Revised Code. Under this section, a sheriff has complete discretion in recommending a" }, { "docid": "1039937", "title": "", "text": "has consistently refused to recognize liberty interests arising from the Constitution itself in situations involving the alteration of a more conditional right or status afforded a lawfully confined prisoner. The Court’s recent decisions emphasize that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the constitution, the Due Process Clause does not in and of itself subject an inmate’s treatment by prison authorities to judicial oversight”. Montanye v. Haymes, 1976, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466; see also, e.g., Hewitt v. Helms, 1983, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675. Accordingly, the Court has found no constitutionally based liberty interest in the involuntary transfer of a prisoner to a different prison facility, Olim v. Wakinekona, 1983, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813; Montanye v. Haymes, 1976, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466; in the transfer of a prisoner from the general prison population to administrative confinement, Hewitt v. Helms, 1983, 459 U.S. 460,103 S.Ct. 864, 74 L.Ed.2d 675; in the transfer of a prisoner from a less restrictive facility to a more restrictive facility, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, reh’g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155; or in the initial determination whether discretionary parole-release should be granted a prisoner, Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 1979, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. The liberty afforded a prisoner in a work release program falls somewhere in between the less restricted liberties enjoyed by a parolee or probationer and the more restricted status conferred upon prisoners incarcerated within the general prison population. Whitehorn asserts that his loss of work-release status — a status which enables the prisoner to leave the general prison population and allows him some of the same liberties enjoyed by parolees and probationers — is a loss so grievous as to trigger a right to due process protections" }, { "docid": "1136477", "title": "", "text": "discretion to reassign a prisoner. We intially note that the Supreme Court has recognized “that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). “Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States,” Hewitt, 459 U.S. at 466, 103 S.Ct. at 868, but “to hold ... that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Id. (emphasis original) (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)). Thus, the Supreme Court has: “consistently refused to recognize more than the most basic liberty interests in prisoners. ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Thus, there is no ‘constitutional or inherent right’ to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), and ‘the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,’ Wolff v. McDonnell, supra, 418 U.S. [539], at 557, 94 S.Ct. [2963], at 2975 [41 L.Ed.2d 935 (1974) ], despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra, 427 U.S., at 225, 96 S.Ct., at 2538, the" }, { "docid": "22204073", "title": "", "text": "seropositive male inmates with security classifications of close, maximum or protective are kept in cells at Limestone. . Specifically, as the trial court found, plaintiffs argued that the DOC had violated various constitutional and federal rights of the inmates by allegedly engaging in the following practices: 1) requiring all prisoners to submit involuntarily to blood tests upon entrance into and exit from Alabama penal institutions; 2) failing to advise prisoners as to the inconclusive and sometimes misleading significance of the results; 3) failing to provide essential emotional support and mental health counseling to those prisoners who test positive; 4) compelling seropositive prisoners to live in segregated units (like “leper colonies”) with all other prisoners who have tested positive for HIV; 5) publically branding the inmates, through the fact of their segregation, as carriers of a dread, socially unacceptable and fatal disease; 6) causing the infected inmates to lose the opportunity to participate in vocational and educational programs, to earn good time credits, and to participate in work release and similar programs, thus limiting the prisoners' opportunities for early release and parole; and 7) providing the inmates with grossly deficient medical, mental health, and dental care. Harris v. Thigpen, 727 F.Supp. 1564, 1566 (M.D.Ala.1990). . At the time of trial, named defendants to the action were as follows: 1) Morris Thigpen, Commissioner of the DOC, responsible for the DOC's control, as well as the enforcement of rules concerning the testing and segregation of inmates; 2) Jean Hare, the Warden of Tutwiler, charged with administering the HIV segregation unit there; 3) J.D. White, the Warden of Limestone, charged with the administration of the HIV segregation unit at Limestone; Lynn Har-relson, Warden of the Kilby Prison in Mt. Meigs, Alabama, charged with implementing the HIV testing program at Kilby; Correctional Health Care, Inc. (“CHC\"), an entity under contract with the DOC to provide medical care services to Alabama state prisoners; and Dr. George Sutton, Medical Director for CHC. Harris, 727 F.Supp. at 1566. Prior to the trial’s commencement, defendant CHC stipulated that it was the DOC’s contractual health care provider, and that it" }, { "docid": "16576747", "title": "", "text": "information. ICC resumed the hearing on August 27, 1991 recommended a P & I score of 4/1 with an override and placement in SMU. The warden approved. However, Central Classification ordered a rehearing because the required documents relied on by the ICC were not submitted. Conclusions of Law The first issue relevant to this issue are whether inmates within the Arizona Department of Corrections have a due process right in remaining in general population. Specifically, the issue is whether the inmates have a protected liberty interest in not having their public/institutional scores increased and remaining in general population, rather than being housed in higher custody facilities that segregate inmates. A. Do Plaintiffs have a protected liberty interest? The Fourteenth Amendment to the U.S. Constitution states that no state shall “deprive any person of life, liberty, or property without due process of law_” U.S. Const, amend. XIV, see. 1. Therefore, the first step in a due process analysis is the determination of whether plaintiffs have a protected liberty interest in being included in the general prison population. See Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986). Without a liberty interest, the constitution does not require prison officials to grant inmates any procedural protection before placing those inmates in administrative segregation. Toussaint, 801 F.2d at 1089 (citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). Liberty interests protected by the Fourteenth Amendment may arise from two sources: (1) the due process clause or (2) the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). 1. Due Process Clause The Supreme Court has held that the due process clause itself does not create a liberty interest in remaining within the general prison population or being free from administrative segregation. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869; Toussaint, 801 F.2d at 1091 (citing Hewitt, 459 U.S. at 468, 103 S.Ct. at 869). A liberty interest is not created even when administrative segregation involves “severe hardships”, i.e. denial of access to educational, recreational, vocational, and rehabilitative programs," }, { "docid": "16576748", "title": "", "text": "population. See Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986). Without a liberty interest, the constitution does not require prison officials to grant inmates any procedural protection before placing those inmates in administrative segregation. Toussaint, 801 F.2d at 1089 (citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). Liberty interests protected by the Fourteenth Amendment may arise from two sources: (1) the due process clause or (2) the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). 1. Due Process Clause The Supreme Court has held that the due process clause itself does not create a liberty interest in remaining within the general prison population or being free from administrative segregation. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869; Toussaint, 801 F.2d at 1091 (citing Hewitt, 459 U.S. at 468, 103 S.Ct. at 869). A liberty interest is not created even when administrative segregation involves “severe hardships”, i.e. denial of access to educational, recreational, vocational, and rehabilitative programs, confinement to cells for long periods, or restrictions in exercise privileges. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869. The Supreme Court has also held that there is no liberty interest implicated in a prison’s reclassification and transfer decisions. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. Given a valid criminal conviction, a criminal defendant has been constitutionally deprived of his liberty to the extent that the state may confine him and subject him to the rules of its prison systems so long as the conditions of confinement do not otherwise violate the Constitution. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. The Constitution does not require that the state have more than one prison for convicted felons, nor does it guarantee that the convicted prisoner will be placed in any particular prison. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538. The conviction has sufficiently extinguished the defendant’s liberty interest to empower the state to confine him in any of its prisons. Meachum, 427 U.S. at 224-25, 96 S.Ct. at 2538." }, { "docid": "1039933", "title": "", "text": "at 1-2. The court then examined the Alabama statute establishing work release for Alabama inmates, which authorizes the Board of Corrections, at its discretion, to allow inmates “as to whom there is reasonable cause to believe [the Board] will know [the prisoner’s] trust” to participate in the work release program. Ala.Code § 14-8-2(a) (1975). The court concluded that the statute did not limit the Board’s discretion to determine who would be eligible to participate in the work release program; therefore, the plaintiff had no protected interest in participating in the program. Id. at 2. In his appellate brief submitted by appointed counsel, Whitehorn asserts that although the district court correctly determined that, in order to prevail, the plaintiff must make a preliminary showing that he was deprived of a protected liberty interest, the court erred in too narrowly circumscribing the source and the nature of the plaintiff’s alleged liberty interest. First, Whitehorn contends that the court should have looked not only to the Alabama statute but to the regulations carrying out the statute and to the practices of the prison administration in operating the work release program as well to determine whether any of these sources created a constitutionally protected liberty interest. Second, Whitehorn contends that the relevant inquiry is not whether he had a liberty interest in the initial determination of eligibility for work release, but whether his continuing work release status could be revoked without due process protections. We agree. Accordingly, our inquiry on appeal must be whether the Constitution itself or the State of Alabama, through its statutes, regulations, or practices, has created a liberty interest in a prisoner’s continued participation in the work release program. II. A section 1983 claim is conditioned on two essential elements: first, the conduct complained of must have been committed by a person acting under color of state law; second, this conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983 (1982) ; see also, e.g., Parratt v. Taylor, 1982, 451 U.S. 527, 535, 101" }, { "docid": "3601638", "title": "", "text": "v. Fox, 838 F.2d 1147 (11th Cir.1988). In Hayes v. Cuyler, 475 F.Supp. 1347 (E.D.Pa. 1979), the Court held that rehabilitation opportunities have not been deemed to be a constitutional right but, rather, a privilege. In an Alabama case, Marsh v. Alabama Department of Corrections, supra, the Court determined that, in any event, disqualification for work release programs due to seropositivity were justifiable on the basis of institutional security and health. In Williams v. Sumner, 648 F.Supp. 510 (D.Nev.1986), a seropositive Nevada inmate sought to reverse his exclusion from a community work program. The Court denied the claim on the ground that prisoners have no independent constitutional rights to employment. The number of jobs available to nonsuspect applicants is at times limited and parole authorities working with prison authorities are best equipped to determine to what extent it is practical to make extensive plans for placing unfortunate inmates with terminal diseases in free-world employment. Certainly, in a prison setting, there are those who must deal with needles which have been infected by use on persons with AIDS and with bodily fluids or secretions from AIDS patients. There appear to be no well-developed principles of law as to the liability of correctional systems for failure to mandatorily test, segregate and identify AIDS carriers in the prison setting. There may well be a potential liability for a State or its officials or agencies to inmates or officials who contract AIDS as a result of some claimed negligence for failure to warn or to protect inmates or officers or employees of institutions from known carriers of AIDS within the institution. Homosexual activities and personal violence as yet appear to be an inescapable part of life in the volital prison setting. Correctional systems or their officials have been held liable for damages resulting from homosexual rapes and other inmate-on-inmate assaults on the ground that inadequate supervision has been provided to prevent such incidents or on other grounds suggesting failure to protect or warn. Campbell v. Bergeron, 486 F.Supp. 1246 (M.D.La.1980), affm’d. 654 F.2d 719 (5th Cir.1981); Streeter v. Hopper, 618 F.2d 1178 (5th Cir.1980);" }, { "docid": "3601637", "title": "", "text": "PREPARATION FOR RELEASE. Paragraphs 62 and 63 of the Complaint seek, pursuant to the Equal Protection Clause of the Fourteenth Amendment, full and equal rights with other inmates in the field of work release and other conditional release programs, education, employment, religious services, recreation, good time and parole. While such ambitions are commendable, applicability of such programs have generally not been considered applicable to persons not likely to provide the long hours necessary for success therein. Several seropositive inmates have met with little success in asserting rights to early conditional release and similar efforts to prepare at State expense for a productive future in the free world. While a liberty interest protected by the Due Process Clause of the Fourteenth Amendment may arise either from the Constitution itself or from State law, the Court in Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983), found that Alabama State law creates no liberty interest in work release. CODE OF ALABAMA [1975], § 14-8-2(a), frames work release in discretionary terms. Francis v. Fox, 838 F.2d 1147 (11th Cir.1988). In Hayes v. Cuyler, 475 F.Supp. 1347 (E.D.Pa. 1979), the Court held that rehabilitation opportunities have not been deemed to be a constitutional right but, rather, a privilege. In an Alabama case, Marsh v. Alabama Department of Corrections, supra, the Court determined that, in any event, disqualification for work release programs due to seropositivity were justifiable on the basis of institutional security and health. In Williams v. Sumner, 648 F.Supp. 510 (D.Nev.1986), a seropositive Nevada inmate sought to reverse his exclusion from a community work program. The Court denied the claim on the ground that prisoners have no independent constitutional rights to employment. The number of jobs available to nonsuspect applicants is at times limited and parole authorities working with prison authorities are best equipped to determine to what extent it is practical to make extensive plans for placing unfortunate inmates with terminal diseases in free-world employment. Certainly, in a prison setting, there are those who must deal with needles which have been infected by use on persons" }, { "docid": "12084936", "title": "", "text": "the writ of habeas corpus should be issued. In a later order, issued in response to motions to clarify filed by both Edwards and Lock-hart, the magistrate held that any hearing concerning the removal of Edwards from the 814 program could only be conducted by Jackson Jones, Parole Hearing Examiner for the State Parole Board and the ADC. Lockhart appeals from both orders. I. We first turn to the issue of whether Edwards has a liberty interest in remaining in the 814 program which would entitle her to due process protection. Lockhart argues that Edwards, as a work release inmate, has not been vested with such an interest. Edwards maintains that her status under the 814 program is akin to that of a parolee or probationer. “Liberty interests protected by the Fourteenth Amendment may ' arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). The Supreme Court has found liberty interests arising from the due process clause for petitioners resisting the revocation of parole, see Morrissey, 408 U.S. 471, 92 S.Ct. 2593, and for petitioners resisting the revocation of probation, see Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). “A liberty interest inherent in the Constitution arises when a prisoner has acquired a substantial, although conditional freedom such that ‘the loss of liberty entailed [by its revocation] is a serious deprivation requiring that the [prisoner] be accorded due process’.” Whitehorn v. Harrelson, 758 F.2d 1416, 1420 (11th Cir.1985) (footnote omitted) (quoting Gagnon, 411 U.S. at 781, 93 S.Ct. at 1759). Participants in the 814 program must: (1) have a sponsor; (2) maintain a job; (3) not work for relatives or be self-employed; (4) not consume alcoholic beverages; (5) obey all ADC rules and regulations; (6) receive prior approval before making any changes in their work release agreement, such as changing their residence, changing their place of employment, leaving the county in which they reside or the State, or getting married. Participants in the" }, { "docid": "1039938", "title": "", "text": "prison population to administrative confinement, Hewitt v. Helms, 1983, 459 U.S. 460,103 S.Ct. 864, 74 L.Ed.2d 675; in the transfer of a prisoner from a less restrictive facility to a more restrictive facility, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, reh’g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155; or in the initial determination whether discretionary parole-release should be granted a prisoner, Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 1979, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. The liberty afforded a prisoner in a work release program falls somewhere in between the less restricted liberties enjoyed by a parolee or probationer and the more restricted status conferred upon prisoners incarcerated within the general prison population. Whitehorn asserts that his loss of work-release status — a status which enables the prisoner to leave the general prison population and allows him some of the same liberties enjoyed by parolees and probationers — is a loss so grievous as to trigger a right to due process protections inherent in the Constitution itself. The Supreme Court has, however, rejected “the notion that any grevious loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause”. Meachum v. Fano, 427 U.S. at 224, 96 S.Ct. at 2538 (emphasis added). The Meachum Court refused to hold that “any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause”, because to do so would “subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts”. Id. at 225, 96 S.Ct. at 2538. Indeed, the Supreme Court has inferred inherent due process protections only in cases in which the prisoner’s “release from institutional life altogether” has been revoked, Hewitt v. Helms, 459 U.S. at 468, 103 S.Ct. at 869, see Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and Gagnon v. Scarpelli, 411 U.S. at 778, 93 S.Ct. at 1756; or in cases in which" }, { "docid": "15431554", "title": "", "text": "the “law enforcement agency” that had objected to his furloughs was the Shrewsbury Police Department. Bowser filed suit under 42 U.S.C. § 1983 in October 1989. He claimed that defendants violated his civil rights under federal and state law by suspending him from the furlough program and subsequently transferring him to medium security. In particular, he alleged a due process violation in that community opposition was an impermissible basis for denying furloughs. And he alleged an equal protection violation in that no other inmate had been denied furloughs on that ground. Plaintiff sought declaratory and injunctive relief and damages; his prayer for injunctive relief asked that he be returned to MCI-Shirley, be restored to “positive furlough status” and be approved for furlough participation equal to that which he had earlier enjoyed. The district court, as mentioned, dismissed the complaint for failure to state a claim, and plaintiff now appeals. The due process argument is the sole issue raised. II. “Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). Plaintiff argues that each of these sources provides him with a liberty interest in continued participation in the Massachusetts furlough program. We disagree in both respects. It is clear that the denial of a furlough implicates no inherent liberty interest. Various courts have so held, see, e.g., Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841, 843-44 (9th Cir.1985); Morris v. McCotter, 773 F.Supp. 969, 971 (E.D.Tex.1991); cf. Joihner v. McEvers, 898 F.2d 569, 571 (7th Cir.1990) (no such interest in receiving transfer to work camp), and plaintiff does not seriously contend otherwise. Indeed, the Supreme Court has found no inherent liberty interest in the receipt of parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2104-06, 60 L.Ed.2d 668 (1979), or good-time credits, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)-each of which involves a quantum of liberty greater than" }, { "docid": "4256794", "title": "", "text": "liberty interest. Because we conclude that additional discovery would not disturb this result, we need not consider the legitimacy of the magistrate judge’s reasons for cutting off discovery. Liberty interests protected by the Fourteenth Amendment may arise directly from the Due Process Clause itself or from the laws of the states. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). However, “lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Helms, 459 U.S. at 467, 103 S.Ct. at 869; see also Hernandez v. Coughlin, 18 F.3d 133, 136-37 (2d Cir.1994). Thus, the Court has held that an inmate has no inherent liberty interest in commutation of his sentence, Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981); in being paroled, Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979); in receiving good-time credit for satisfactory behavior while in prison, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); in remaining in one correctional institution rather than another, Olim v. Wakinekona, 461 U.S. 238, 248, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976); or in avoiding “administrative” (nonpunitive) segregation from the general prison population, Helms, 459 U.S. at 468, 103 S.Ct. at 869-70. Cf. Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980) (holding that prisoner retained a “residuum of liberty” that was infringed by his summary transfer to a mental hospital). Klos, of course, does not contend that he has an inherent right to remain in the shock program. Rather, he contends that New York, by promising participants in its shock program that their successful completion of the program will lead to their early release, has conferred an enforceable liberty interest on those participants. A" } ]

[ { "docid": "22644147", "title": "", "text": "its purpose as follows: “The committee recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess-profits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination of the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in non-liquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his 'liability for the tax prior to its payment.” Petitioner argues that the “hardship” the Board of Tax Appeals was created to alleviate was not the taxpayer’s inability to sue without paying the whole tax — -for petitioner erroneously concludes that the 1921 amendment conferred that right — but the Government’s power to collect the balance due while a refund suit was in progress. But the Committee Report quoted above clearly demonstrates that the hardship about which the Congress was concerned was the hardship of pre-litigation payment, not post-litigation collection. Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U. S. 716, 721. The final step in the evolvement of 28 U. S. C. § 1346 (a)(1) took place in the Act of July 30, 1954, which removed the $10,000 jurisdictional limitation and eliminated the condition about the collector being dead or out of office. Far from indicating an intent to allow suit without" } ]

[ { "docid": "13439737", "title": "", "text": "CROAKE, District Judge. MEMORANDUM This is a motion under Rule 12(c) for a judgment on the pleadings. Defendant, United States of America, urges this court to grant a judgment in its favor on the ground that the court does not have subject matter jurisdiction. The complaint of Frank H. Amundson, administrator of the Estate of Edward C. Amundson, seeks the return of $100.00 paid to the Commissioner of Internal Revenue. This amount was in fact part of a $931.34 deficiency assessment for the year 1961. Jurisdiction is founded on 28 U.S.C. § 1346(a) (1) (1964). The United States argues that on the face of the pleadings the District Court lacks jurisdiction to entertain the above-captioned action because such an action may not be brought until such time as the assessed amount has been paid in full. In response to this argument the plaintiff states that the taxpayer had paid $100.00 before his death and that following his death no person had the authority to pay the remainder of the deficiency assessment. Therefore, if this action is dismissed for want of jurisdiction, the estate will in effect be denied all relief. This court considers itself bound by the United States Supreme Court decision in Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623, rehearing denied, 362 U.S. 972, 80 S.Ct. 953, 4 L.Ed.2d 902 (1960), which held that 28 U.S.C. § 1346(a) (1) (1964), must be construed as requiring full payment of the assessment before an income tax refund suit can be maintained in federal district court. See also, Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1957). Jurisdiction of the subject matter is an absolute prerequisite for continuance of an action in the district court and absent same this court must dismiss the action. See Rule 12(h) (3), Fed.R.Civ.P. While it is clear that we lack subject matter jurisdiction, we also do not believe that the plaintiff has demonstrated he is in an impossible procedural position. First, before paying the assessment he could have had a determina tion of his tax" }, { "docid": "6937746", "title": "", "text": "by reference to the “first to file” rule: where two courts have concurrent jurisdiction, the court that first has possession of a case should decide it. The first court in which jurisdiction attaches has priority to consider the case. Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir.1985). The circumstance that plaintiff properly has invoked the refund jurisdiction of this court does not preclude suspension of the action in this court. Essentially, effective case management is a matter of discretion that involves many elements additional to the jurisdictional power to act. Plaintiffs arguments that the motion to suspend should be denied and that the IRS collection action should be enjoined have their genesis in footnotes that are dicta in Supreme Court decisions that concern the “full payment” rule for tax refunds, or restraints on revocation of letter rulings relative to tax exempt status under IRC § 501(c)(3). Flora v. United States, 362 U.S. 145, 171 n. 37, 80 S.Ct. 630, 644-46 n. 37, 4 L.Ed.2d 623 (1960), & Bob Jones Univ. v. Simon, 416 U.S. 725, 748 n. 22, 94 S.Ct. 2038, 2051 n. 22, 40 L.Ed.2d 496 (1974). These footnotes concern refund suits for installment payments, pre-enforcement injunctive suits by organizations claiming IRC § 501(c)(3) status, and specifically did not decide whether injunctive relief is possible in a refund case. Neither of these cases was concerned with the issues involved in this case or in these motions. The exception to the “full payment” rule that applies to refunds of partial payments in employment taxes is a benefit conferred in the arcane complexities of the IRC. Plaintiffs argument turns this taxpayer benefit into a procedural sword that weakens statutory policies that apply to refunds in employment tax cases. Defendant has not filed a counterclaim for the unpaid balance owed for the 1990 quarter. A counterclaim is not compulsory. Flora, 362 U.S. at 166, 80 S.Ct. at 641. Defendant has the statutory right to file a collection action in the district court for the unpaid assessments. Plaintiff is not the only person who has been assessed penalties pertaining" }, { "docid": "15783012", "title": "", "text": "portion thereof, is sufficient to corner jurisdiction. . Flora v. United States, 362 U.S. 145, 157, 80 S.Ct. 630, 637, 4 L.Ed.2d 623 (1960). . The cases involving this issue simply validate the practice of retaining the Government counterclaim after dismissal of the refund suit without discussion of its effect. See, e. g., Spivak v. United States, 370 F.2d 612 (2d Cir. 1967), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); Anderson v. Myers, 170 F.Supp. 419 (N.D.N.Y.1958). It is, however, interesting to note that in Flora, the Government counterclaimed for the unpaid taxes after partial payment by the taxpayer. Although apparently with the Government’s consent, on appeal to the 10th Circuit, and affirmed twice by the Supreme Court, the case was remanded to the District Court with instructions to vacate the judgment of the Government on its counterclaim and dismiss the entire action. Flora v. United States, 246 F.2d 929 (10th Cir. 1957), affirmed 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), affirmed on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). . We do not view Freeman as controlling on the issue of whether jurisdiction of the counterclaim should have been retained. Freeman treated the nonpayment of the full taxes as a possible failure to state a claim upon which relief could be granted, citing the first Flora opinion by the Supreme Court. Freeman v. United States, 265 F.2d 66, 69 n.3 (9th Cir. 1959). The decision on rehearing in that case, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), rendered after Freeman, made clear that the nonpayment of the assessed taxes was a jurisdictional defect. Moreover, the Freeman court was addressing the issue of whether full payment of the assessed tax was necessary, not whether retention of the counterclaim was proper. Thus, the issue under consideration here was not squarely confronted in Freeman. . We can envision further extensions of the jurisdictional approach used below that would be even more patently subversive of the “pay first, litigate later” principle designed by Congress and affirmed by the" }, { "docid": "3229795", "title": "", "text": "of the months in said period * -!t- The pre-trial Order concluded with the following: “Now It Is Ordered that the admissions and denials as aforesaid, and the stipulations and contentions of the parties as aforesaid, be and they are hereby made of record herein; that all pleadings herein be and they are hereby ordered amended to conform to the foregoing; that the issues on the trial of said cause be limited to those hereinabove set forth; and that this order shall control the subsequent course of this cause unless modified at the trial'to prevent manifest injustice.”' Defendant, relying upon the Flora case, argues that the Court lacks jurisdiction over this suit for refund for the reason that the taxpayer has failed to pay the full amount of the claimed tax deficiency for cabaret excise taxes, and contends that the Court has jurisdiction over the Government’s counterclaim for the unpaid balance of the assessment. Plaintiff distinguishes the Flora case. He states in his opening brief: “Since income taxes flow from calculations involving considerations of exemptions, deductions and credits, the taxable item or event for income taxes is the taxpayer’s tax year. Therefore, in order to raise the jurisdiction of the District Court in an income tax suit, it is necessary to pay the full amount of the deficiency assessed for the tax year. This rule, however, is not applicable to cabaret taxes, where the taxable item or event is not the tax year, but one month’s or one day’s gross receipts, or the total amount paid by one patron. Therefore, applying the holding of the court in the Jones case to the facts of the case at bar, it is necessary to conclude that the plaintiff’s payment of $3,500.00 constitutes a payment in full of the cabaret taxes for any one or all of these periods, and thus, the Federal District Court has jurisdiction.” The Jones case referred to by counsel is Jones v. Fox, D.C.Md., 162 F.Supp. 449, 468 which is a case similar to this and where, like here, it was urged that the Court lacked jurisdiction for" }, { "docid": "3229796", "title": "", "text": "deductions and credits, the taxable item or event for income taxes is the taxpayer’s tax year. Therefore, in order to raise the jurisdiction of the District Court in an income tax suit, it is necessary to pay the full amount of the deficiency assessed for the tax year. This rule, however, is not applicable to cabaret taxes, where the taxable item or event is not the tax year, but one month’s or one day’s gross receipts, or the total amount paid by one patron. Therefore, applying the holding of the court in the Jones case to the facts of the case at bar, it is necessary to conclude that the plaintiff’s payment of $3,500.00 constitutes a payment in full of the cabaret taxes for any one or all of these periods, and thus, the Federal District Court has jurisdiction.” The Jones case referred to by counsel is Jones v. Fox, D.C.Md., 162 F.Supp. 449, 468 which is a case similar to this and where, like here, it was urged that the Court lacked jurisdiction for refund because the taxpayer had failed to pay the full amount of the tax deficiency for cabaret taxes. District Judge R. Dorsey Watkins, in opinions written shortly before and after the Supreme Court’s decision in the Flora case, held that the District Court had jurisdiction in a suit for refund of an excise tax where only a part ■of the tax assessed had been paid. In the course of his addendum, the Judge .stated: “[11] The Flora case dealt with a deficiency in income tax. The instant case deals with a deficiency assessment of excise taxes. Without elaborating upon what has already been said in this opinion regarding the lack of jurisdiction in the Tax ■Court over excise taxes with concomitant hardship to the taxpayer and the absence of alternative remedies, such as the Supreme Court indicated would be present in the case ■of suit for recovery of income tax, it is necessary to re-examine the divisible nature of the excise tax. “ ‘Income taxes and estate taxes ■flow from calculations involving ■complicated considerations of" }, { "docid": "15783011", "title": "", "text": "refund action in the Court of Claims. . Since the Government obviously is not required to counterclaim in a jurisdictionally improper refund suit, it might be contended that the ability of the taxpayer to utilize this procedure is dependent solely on the grace of the Government’s decision to file a counterclaim rather than merely seeking a dismissal. Nonetheless, the taxpayer is yet able to assume the initiative in timing the suit and have the controlling issues resolved in the District Court without first properly paying the taxes when the Government does file a counterclaim. Moreover, the practice smacks odiously of a collusive attempt by the parties to confer federal subject matter jurisdiction by consent. Should the Government desire to press its claim, it should do so directly and not at the instigation of a taxpayer who is improperly utilizing the judicial process as a prod. We find it unlikely that some 17 years after Flora and Steele any plaintiff could reasonably believe that payment of only part of an assessment, or part of a divisible portion thereof, is sufficient to corner jurisdiction. . Flora v. United States, 362 U.S. 145, 157, 80 S.Ct. 630, 637, 4 L.Ed.2d 623 (1960). . The cases involving this issue simply validate the practice of retaining the Government counterclaim after dismissal of the refund suit without discussion of its effect. See, e. g., Spivak v. United States, 370 F.2d 612 (2d Cir. 1967), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); Anderson v. Myers, 170 F.Supp. 419 (N.D.N.Y.1958). It is, however, interesting to note that in Flora, the Government counterclaimed for the unpaid taxes after partial payment by the taxpayer. Although apparently with the Government’s consent, on appeal to the 10th Circuit, and affirmed twice by the Supreme Court, the case was remanded to the District Court with instructions to vacate the judgment of the Government on its counterclaim and dismiss the entire action. Flora v. United States, 246 F.2d 929 (10th Cir. 1957), affirmed 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), affirmed on rehearing, 362 U.S. 145," }, { "docid": "3335752", "title": "", "text": "174 F.Supp. 338 (W.D.Mo.1959), rev’d on other grounds, 281 F.2d 174 (8th Cir. 1960) (taxpayer filing refund claim more than three years after filed return; refund limited to amounts paid within two years of refund claim); Bechelli v. Hofferbert, 111 F.Supp. 631 (D.Md.1953) (same). The provision appears to have been intended by Congress to prevent a taxpayer from extending the time for filing a claim for the entire tax by making small payments from time to time. See S.Rep.No. 398, 68th Cong., 1st Sess. 33 (1924). The thrust of taxpayer’s principal argument against this construction is that it results in unjustly harsh treatment of a taxpayer not able to liquidate the entire tax liability within two years. The IRS routinely denies refund claims filed before the tax is paid in full, and until the tax is paid the district court cannot consider the validity of the taxpayer’s position. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), op. on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). The fatal difficulty with this argument, however, is that Congress has provided an alternative forum for a taxpayer faced with an assessment believed to be erroneous. Without paying any of the disputed tax, Snyder could have petitioned the Tax Court for a redetermination of the deficiency assessed against him and therein litigate the question of his liability for the tax. I.R.C. § 6213. He would not have a right to a jury trial, which may be had only in the district court, but that is the only essential difference. Here taxpayer attempted to petition the Tax Court, but asserts the neglect of his attorney resulted in the dismissal of that petition, which was filed one day out of time. We sympathize with his plight, but writing in a related context, Chief Justice Warren aptly treated the argument taxpayer makes here: A word should also be said about the argument that requiring taxpayers to pay the full assessments before bringing suits will subject some of them to great hardship. This contention seems to ignore entirely the" }, { "docid": "3229801", "title": "", "text": "to do with an excise tax, is not vulnerable under the Flora rule, the Freeman case does support this Court’s view that it has jurisdiction of defendant’s counterclaim. The reasoning of Judge Hamley is applicable under the situation in the present case. The same identical question is presented by the counterclaim as that presented by plaintiff’s complaint, namely, the legality of the cabaret tax assessment. In the course of his opinion Judge Hamley stated: “[1] In 1952 for the first time the Navy withheld sums from his retirement pay for taxes, the total amount withheld for the year being $22.10. On March 22, 1953, following the procedure specified in § 51 (f), the Commissioner of Internal Revenue assessed Freeman’s 1952 income tax at $279. Notice of this assessment together with demand for payment, less the $22.10 withheld, was made upon Freeman. “Freeman did not pay the sum demanded, but instead filed a claim for the amount withheld. His claim was denied, whereupon Freeman instituted this action on October 11, 1954, without first paying the full amount of tax assessed for 1952. As before indicated, the government then counterclaimed to recover the amount of taxes claimed to be owing for 1952. “We turn first to the question of whether Freeman can maintain this refund suit, having failed to allege that he had paid the full amount of income tax assessed against him for 1952. Arguing that under these circumstances Freeman’s complaint must be dismissed, the government cites Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165. “In Flora it was held that a taxpayer must pay the full amount of an income tax deficiency assessed by the Commissioner of Internal Revenue before he may challenge its correctness by a suit in a federal district court for a refund under 28 U.S.C.A. § 1346(a)(1). Appellant argues that our case is to be distinguished from Flora because there has been no deficiency assessment here and, unlike Flora, Freeman does not seek refund of a part payment of a deficiency assessment. “In view of the counterclaim which has been interposed," }, { "docid": "3335751", "title": "", "text": "6, 1974. A plain reading of the statutes involved compels the conclusion that the IRS is correct. For cases in which no return has ever been filed, section 6511(a) establishes a two-year period of limitations from the date the tax was paid in full. But .Congress further qualified the time limitation by restricting the amount recoverable as a refund in certain circumstances. Section 6511(b)(2)(B), applicable here, thus provides in pertinent part, LIMIT ON AMOUNT OF CREDIT OR REFUND.— (B) . . . the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim. (Emphasis added.) The interpretation that a taxpayer must pay all of the assessment within two years of bringing suit or be limited to recovery of the amounts paid within the two-year period has been consistently applied. See Treas.Reg. § 301.6511(b)—1(b)(1)(iii); San Joaquin Light & Power Corp. v. McLaughlin, 65 F.2d 677 (9th Cir. 1933) (construing predecessor of § 6511). Cf. Hutchens Metal Products, Inc. v. Bookwalter, 174 F.Supp. 338 (W.D.Mo.1959), rev’d on other grounds, 281 F.2d 174 (8th Cir. 1960) (taxpayer filing refund claim more than three years after filed return; refund limited to amounts paid within two years of refund claim); Bechelli v. Hofferbert, 111 F.Supp. 631 (D.Md.1953) (same). The provision appears to have been intended by Congress to prevent a taxpayer from extending the time for filing a claim for the entire tax by making small payments from time to time. See S.Rep.No. 398, 68th Cong., 1st Sess. 33 (1924). The thrust of taxpayer’s principal argument against this construction is that it results in unjustly harsh treatment of a taxpayer not able to liquidate the entire tax liability within two years. The IRS routinely denies refund claims filed before the tax is paid in full, and until the tax is paid the district court cannot consider the validity of the taxpayer’s position. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), op. on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960)." }, { "docid": "12490341", "title": "", "text": "remedy.” Tutun v. United States, 270 U.S. 568 at 576-577, 46 S.Ct. 425, 426, 70 L.Ed. 738 (1926); Glidden Co. v. Zdanok, 370 U.S. 530 at 573, 82 S.Ct. 1459, 8 L.Ed.2d 67 (1962). As the Supreme Court recognized in Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), Congress has given the taxpayer two possible remedies: In certain circumstances he may litigate in the Tax Court subject to review by the courts of appeals and by the Supreme Court; in certain other circumstances he may sue in the district court or Court of Claims subject to appellate review. The real thrust of petitioners’ complaint is simply that ihey would have preferred to litigate their case in the district court without first having paid the taxes. This equal protection type argument was also, we believe, disposed of by the rationale of Willmut. Cf. Flora v. United States, 362 U.S. 145 (1960) at 175-177, 80 S.Ct. 630, 4 L.Ed.2d 623. In Willmut the taxpayer could only raise its contention that its tax bill was too high in the Tax Court, because Congress under the statutory section there in question had vested exclusive jurisdiction in the Tax Court. The rationale of Willmut is that the sovereign’s power over taxes is very broad and that it can require the payment of the assessed tax on a determination by the Commissioner as a precondition to judicial review. See Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Surely then the sovereign can permit delay of payment pending an administrative review of the Commissioner’s determination. In this case petitioners have had a full administrative review and every reasonable opportunity to build a record to support their position. This Court has fully reviewed that record and the arguments presented by petitioners. Thus they have been before both an administrative body and an Article III court. The ease having reached this posture, we can see no constitutional objection to the sovereign now collecting the taxes and civil penalties found to be due and owing. The decision is" }, { "docid": "22094839", "title": "", "text": "fact, that court’s jurisdiction is limited to income, estate, and gift taxes. It must be made clear that, whether the taxpayer whose taxable period has been terminated files a short-period refund claim or one for a full taxable year, he still may sue for refund even if the value of the property seized is less than the amount of the assessment made against him. There is no requirement in this situation that he pay the full amount of the assessment before he may claim and sue for a refund. At this point, Flora v. United States, 357 U. S. 63 (1958), on rehearing, 362 U. S. 145 (1960), deserves comment. In that case the Court held that a federal district court does not have jurisdiction of an action for refund of a part payment made by a taxpayer on an assessment. It ruled that the taxpayer must pay the full amount of the assessment before he may challenge its validity in the court action. Payment of the entire deficiency thus was made a prerequisite to the refund suit. The ruling, however, was tied directly to the jurisdiction of the Tax Court where litigation prior to payment of the tax was the usual order of the day. 362 U. S., at 158-163. The holding thus kept clear and distinct the line between Tax Court jurisdiction and district court jurisdiction. The Court said specifically: “A word should also be said about the argument that requiring taxpayers to pay the full assessments before bringing suits will subject some of them to great hardship. This contention seems to ignore entirely the right of the taxpayer to appeal the deficiency to the Tax Court without paying a cent.” Id., at 175. This passage demonstrates that the full-payment rule applies only where a deficiency has been noticed, that is, only where the taxpayer has access to the Tax Court for redetermination prior to payment. This is the thrust of the ruling in Flora, which was concerned with the possibility, otherwise, of splitting actions between, and overlapping jurisdiction of, the Tax Court and the district court. Id.," }, { "docid": "21582595", "title": "", "text": "under the applicable statute the suits were not authorized for the particular tax years at issue. First, the full payment rule requires as a prerequisite for federal court jurisdiction over a tax refund suit, that the taxpayer make full payment of the assessment, including penalties and interest. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Since plaintiffs had paid accrued interest only for the year 1979, they did not make the required full payment of the interest accrued from the delinquencies up to the time of payment. Nevertheless, plaintiffs contend they complied with the single-year rule which provides that the jurisdictional prerequisite is satisfied when a taxpayer makes “full payment of a tax liability for any given year.” Green v. United States, 618 F.2d 122, 220 Ct.Cl. 712, 713 (1979). We agree with Judge Mukasey’s interpretation of the rule that a payment of interest “constitute^] full payment only if it includes all interest relating to the year for which the deficiency has been assessed, but not if it is simply one year’s worth of interest on a past deficiency”, as it was here. Thus, under either rule plaintiffs have not met the jurisdictional requirement. Second, under the prior-claim rule, a taxpayer must bring the claim for refund to the IRS as a prerequisite to jurisdiction for the suit in federal court. 26 U.S.C. § 7422(a). Consequently, in pursuing such a suit, a taxpayer may not raise different grounds than those brought to the IRS. Union Pacific RR Co. v. United States, 389 F.2d 437, 442 (Ct.Cl.1968). In their IRS claim, plaintiffs relied on 26 U.S.C. § 6601(c) and sought suspension of all interest accrued on each of the three deficiency assessments. Their federal court complaint relied on 26 U.S.C. § 6404(e) and sought abatement only of that interest which had accrued on those deficiencies in the year 1979. As Judge Mukasey described in detail, these claims are entirely different and therefore cannot satisfy the jurisdictional requirement of the prior-claim rule. Finally," }, { "docid": "21582594", "title": "", "text": "PER CURIAM: Michael Magnone and Joseph V. and Rose Magnone appeal from a judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, dismissing their suits for abatement of interest on tax deficiency assessments. We affirm for the reasons given by Judge Mukasey in his thorough opinion reported at 733 F.Supp. 613. We write only to clarify the circuit law. In 1987 the Internal Revenue Service (IRS) assessed plaintiffs for tax deficiencies in the tax years 1974-1976. In 1988 plaintiffs paid all taxes due for those years as well as the interest accrued in 1979. They did not pay the interest accrued for the other years. Relying on 26 U.S.C. § 6601(c), they filed for an abatement of the interest charges claiming IRS delay. When the IRS failed to respond, plaintiffs commenced these suits seeking refund of the interest. Judge Mukasey held that jurisdiction was lacking because plaintiffs did not satisfy either the full-payment rule or the prior-claim rule; and that no claim had been stated because under the applicable statute the suits were not authorized for the particular tax years at issue. First, the full payment rule requires as a prerequisite for federal court jurisdiction over a tax refund suit, that the taxpayer make full payment of the assessment, including penalties and interest. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Since plaintiffs had paid accrued interest only for the year 1979, they did not make the required full payment of the interest accrued from the delinquencies up to the time of payment. Nevertheless, plaintiffs contend they complied with the single-year rule which provides that the jurisdictional prerequisite is satisfied when a taxpayer makes “full payment of a tax liability for any given year.” Green v. United States, 618 F.2d 122, 220 Ct.Cl. 712, 713 (1979). We agree with Judge Mukasey’s interpretation of the rule that a payment of interest “constitute^] full payment only if it includes all interest relating to the" }, { "docid": "15783013", "title": "", "text": "80 S.Ct. 630, 4 L.Ed.2d 623 (1960). . We do not view Freeman as controlling on the issue of whether jurisdiction of the counterclaim should have been retained. Freeman treated the nonpayment of the full taxes as a possible failure to state a claim upon which relief could be granted, citing the first Flora opinion by the Supreme Court. Freeman v. United States, 265 F.2d 66, 69 n.3 (9th Cir. 1959). The decision on rehearing in that case, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), rendered after Freeman, made clear that the nonpayment of the assessed taxes was a jurisdictional defect. Moreover, the Freeman court was addressing the issue of whether full payment of the assessed tax was necessary, not whether retention of the counterclaim was proper. Thus, the issue under consideration here was not squarely confronted in Freeman. . We can envision further extensions of the jurisdictional approach used below that would be even more patently subversive of the “pay first, litigate later” principle designed by Congress and affirmed by the Supreme Court. For example in United States v. Lease, 63-2 U.S. Tax Cas. ¶ 9503 (D.Ct.N.Y.1963), the Government brought suit for the collection of taxes. The taxpayer, who had made a partial payment of the assessed tax, asserted a counterclaim for the refund of that payment. The court held that the counterclaim for refund could be maintained notwithstanding the taxpayer’s failure to comply with the jurisdictional prerequisites, since the counterclaim arose from the same transaction or taxable event which was the basis of the Government’s suit. Extending the logic of the Lease case to the situation wherein the taxpayer initiates the litigation by improper partial payment of the taxes followed by a refund suit, it might be possible for the original plaintiff-taxpayer to reassert his dismissed refund suit as a compulsory counterclaim, since it would then be, in effect, a counterclaim and fall under the court’s ancillary jurisdiction. This approach has already been approved in non-tax litigation situations. See Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961); Crest Auto" }, { "docid": "3806110", "title": "", "text": "collected under the internal-revenue laws. In Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), and later on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), the Supreme Court decided that full payment of the assessed taxes is a prerequisite to filing a refund suit in a federal district court. The Currys do not dispute their failure to prepay their assessed taxes, but ask this court to carve out a “hardship” exception to the Flora prepayment rule where, as here, the taxpayer cannot seek refund in the Tax Court but must proceed in a. federal district court. Although it is true that in Flora the taxpayer had a choice of forums and the Currys did not, this is not a distinction which should make a difference. The Flora Court specifically rejected this distinction, stating that [wjhere the time to petition [the tax] court has expired, or where for some other reason a suit in the District Court seems more desirable, the requirement of full payment may in some instances work a hardship. But since any hardship would grow out of an opinion whose effect Congress in successive statutory revisions has made no attempt to alter, if any amelioration is required it is now a matter for Congress, not this Court. 357 U.S. at 75-76, 78 S.Ct. at 1086-87 (emphasis added). Flora counsels that the Currys’ hardship is a matter for legislative, not judicial remedy. Another reason we decline the invitation to carve out a “hardship” exception to the Flora rule is that it would endanger the “public purse” and disrupt the smooth functioning of the tax system, two tax policy considerations that led the Flora Court to adopt the prepayment rule in the first place: [T]he Government has a substantial interest in protecting the public purse, an interest which would be substantially impaired if a taxpayer could sue in a District Court without paying his tax in full____ It is quite true that the filing of an appeal to the Tax Court normally precludes the Government from requiring payment of the tax," }, { "docid": "1833280", "title": "", "text": "satisfied for purposes of maintaining a refund suit in the district court, even though the asserted satisfaction is dependent solely upon the application of a credit that is the subject of an unresolved dispute between the taxpayer and the Commissioner. We decline to so hold. Full satisfaction of the income tax assessment upon which refund is sought is a jurisdictional prerequisite to maintenance of a suit for refund in the district court. Flora v. United States, 362 U.S. 145, 146, 80 S.Ct. 630, 631, 4 L.Ed.2d 623 (1960). Hutchinson’s allegation that he had paid the 1973 assessment in full at the time he filed suit rests entirely upon the claim that the outstanding liability for 1973 should have been satisfied by transfer of his asserted overpayment from 1971. Hutchinson knew when he filed suit in the district court that the Commissioner did not recognize the asserted overpayment and that the matter was still pending before the tax court. His mere claim that the 1973 liability was satisfied by a then-disputed credit from 1971 does not establish full satisfaction of the 1973 liability. Were it to do so, any taxpayer could sue for a refund in the district court upon a mere claim that a liability had been satisfied by a transfer of credits from another tax period. Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), requires full satisfaction of any reported liability, not merely the claim thereof. Accordingly, the dismissal of this claim was proper because the affidavits and pleadings establish that Hutchinson had not fully satisfied his 1973 income tax liability at the time summary judgment was granted. B. Injunctive Relief Under the Anti-Injunction Act, I.R.C. § 7421(a), courts are without jurisdiction to grant injunctions restraining the assessment or collection of taxes. This proscription, however, is subject to the exception provided in I.R.C. § 6213(a), which authorizes a court to restrain the assessment or collection of taxes if the Commissioner has failed to issue a statutory notice of deficiency under I.R.C. § 6212. It is undisputed that the Commissioner did not issue such" }, { "docid": "3806109", "title": "", "text": "issued a notice of deficiency they could not proceed in the Tax Court. See I.R.C. § 6521; Rule 13, Rules of Practice and Procedure of the United States Tax Court (May 1, 1979). They therefore filed for refund in the federal district court where notice of deficiency is not a jurisdictional prerequisite. The government filed a motion to dismiss for lack of subject matter jurisdiction arguing that the district court lacked jurisdiction under 28 U.S.C. § 1346(a)(1) because the Currys had not prepaid the approximately $60,000 in taxes shown to be owed on their original returns. Judge Dillin granted the government’s motion to dismiss. We affirm. 28 U.S.C. § 1346(a)(1) provides that (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws. In Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), and later on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), the Supreme Court decided that full payment of the assessed taxes is a prerequisite to filing a refund suit in a federal district court. The Currys do not dispute their failure to prepay their assessed taxes, but ask this court to carve out a “hardship” exception to the Flora prepayment rule where, as here, the taxpayer cannot seek refund in the Tax Court but must proceed in a. federal district court. Although it is true that in Flora the taxpayer had a choice of forums and the Currys did not, this is not a distinction which should make a difference. The Flora Court specifically rejected this distinction, stating that [wjhere the time to petition [the tax] court has expired, or where for some other reason a suit in the District Court seems more desirable, the requirement of full payment may in" }, { "docid": "9484169", "title": "", "text": "statutory scheme, otherwise sovereign immunity would bar such a suit. United States v. Brockamp, 519 U.S. 347, 350-351, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997); Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Congress has determined that district courts have original jurisdiction of “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collect ed....” 28 U.S.C. § 1346(a)(1). However, the waiver of sovereign immunity is not unconditional. In United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990), the Supreme Court held that in order for refund to be maintained, the taxpayer must have paid the disputed tax in full and have “duly filed” an administrative claim for a refund. See also Flora, 362 U.S. at 152-56, 80 S.Ct. 630. If a taxpayer-estate has elected to defer the payment of taxes under section 6166, and has taken advantage of the maximum period of deferral, it would not have to fully pay its taxes for 15 years. The estate here claimed it had fully paid all its taxes at the end of the 15 year period and could bring a claim in district court for a redetermination notwithstanding the fact that the IRS had sent demand letters and had accelerated the amounts of tax due. The estate relied on I.R.C. section 7422(j), which had been added to the code by the IRS Restructuring and Reform Act of 1998. That section states generally that a district court shall not lose jurisdiction to hear a determination action solely because the full amount of the taxes have not been paid by an estate that made an election to pay in installments in aceor-dance with section 6166. However, as the district court pointed out: [t]he Estate’s argument, however, ignores completely the jurisdictional preconditions listed in § 7422(j) that are pertinent to this case. First, § 7422(j) (2) (B) requires that all installments are paid in full at" }, { "docid": "9923557", "title": "", "text": "has been construed by the Supreme Court as requiring full payment of the assessed tax liability before suit can be commenced. In Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on reh’g, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), a tax refund suit was initiated in the district court before full payment of the tax had been made. The Supreme Court held that “§ 1346(a)(1), correctly construed, requires full payment of the assessment before an income tax refund suit can be maintained in a Federal District Court.” Flora, 362 U.S. at 177, 80 S.Ct. at 647. The full payment rule of Flora has long been applied by the Claims Court, and before that by the Court of Claims, to dismiss tax refund suits against the United States when the assessment has not been paid in full prior to commencement of the action. See, e.g., Lambropoulos v. United States, 18 Cl.Ct. 235 (1989) (.Flora rule barred a tax refund suit when the plaintiff had not paid the full amount of the interest and penalties assessed against it); DiNatale v. United States, 12 Cl.Ct. 72 (1987) (Flora rule barred a tax refund suit when all of the deficiencies, penalties, and interest assessed had not been paid); Rodewald v. United States, 231 Ct.Cl. 962 (1982) {Flora rule barred a tax refund suit when the plaintiff had paid only some of the installments under an agreed payment plan); Green v. United States, 618 F.2d 122, 220 Ct.Cl. 712 (1979) {Flora rule held applicable when the plaintiff had not made full payment of the income tax liability assessed). It is undisputed that the deferred estate tax of $42,338 was not paid at the time suit was commenced in the Claims Court. In an attempt to establish jurisdiction, Rocovich contended before the Claims Court that the tax shown on the return of $81,388 (including the $42,338 deferred) had never in fact been assessed. If the tax was not assessed at the time the refund suit was initiated, then payment of the deferred amount would not be" }, { "docid": "9484168", "title": "", "text": "estate’s tax liability. The court found that the estate was required to have fully paid each installment of principal and interest due before the suit had been filed and continue to make timely payments during the pendency of the suit. The court then held that, because the estate had not fully paid all installments due at the commencement of the suit, it was jurisdictionally barred from bringing this action. The estate was further barred from suit because it had not paid installments due during the litigation and had not paid the full amount of its tax liability after acceleration by the IRS. II. This court has jurisdiction under 28 U.S.C. § 1291 to hear the appeal from the order of the district court dismissing plaintiffs complaint. Because the district court based dismissal on its lack of subject matter jurisdiction, we review the decision de novo. Charchenko v. City of Stillwater, 47 F.3d 981, 982-83 (8th Cir.1995). The United States has given its consent to be sued for refunds of federal taxes in a carefully articulated statutory scheme, otherwise sovereign immunity would bar such a suit. United States v. Brockamp, 519 U.S. 347, 350-351, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997); Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Congress has determined that district courts have original jurisdiction of “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collect ed....” 28 U.S.C. § 1346(a)(1). However, the waiver of sovereign immunity is not unconditional. In United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990), the Supreme Court held that in order for refund to be maintained, the taxpayer must have paid the disputed tax in full and have “duly filed” an administrative claim for a refund. See also Flora, 362 U.S. at 152-56, 80 S.Ct. 630. If a taxpayer-estate has elected to defer the payment of taxes under section 6166, and has taken" } ]

[ { "docid": "23482075", "title": "", "text": "of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.” . 18 U.S.C. § 3500(e) provides: “The term ‘statement’, as used in * * * this section in relation to any witness called by the United States, means— (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by such witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” . Ogden v. United States, 323 F.2d 818 (9th Cir. 1963), cert. denied, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964) (Ogden II), followed the decision of this Court in Ogden v. United States, 303 F.2d 724 (9th Cir. 1962) (Ogden I), wherein the case was remanded to the trial court for a determination of whether certain notes taken by FBI agents during an interview with a government witness were producible statements under the Jencks Act. Upon remand, the trial judge found that notes were taken by the FBI agents during the interview with the witness, that the witness examined and initialed the notes, and that the FBI prepared a typed statement from the notes, which was later signed by the witness. This typed statement was turned over to the defense at trial and the notes were destroyed. The district court concluded, based on the uncontradicted testimony of the witness and the agents, that the signed statement contained the same information as the notes, and that there were no material changes or" } ]

[ { "docid": "5925512", "title": "", "text": "recorded surveillance notes. C. Motion for a New Trial Cuevas appeals from the district court’s denial of his motion for a new trial on the grounds of newly discovered exculpatory evidence improperly withheld by the government. Specifically, Cuevas contends that the government improperly redacted portions of police reports that it was required to disclose under Brady and the Jencks Act. He also contends that the government lied about not knowing the whereabouts of Jose Herrera, a potential material witness for the defense. The district court’s denial of a motion for new trial is reviewed for an abuse of discretion. United States v. Lopez, 803 F.2d 969 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987). 1. Improper Redactions After the conclusion of the trial, the defense discovered that the government had surreptitiously redacted portions of police reports it disclosed in pretrial discovery. The defense discovered this because defense counsel happened to receive the same report but unredacted in the course of representing an unrelated defendant in a separate matter. Before trial, the defense sought all surveillance reports under the Jencks Act and Brady. The government admits that it redacted portions of surveillance reports and that “[t]he deletions were not obvious from reviewing the redacted report because the paragraphs in question were “whited out’ to the end of the page” and other paragraphs “had been completely eliminated from the report provided to Cuevas, not simply “whited out’ or ‘blacked out.’ ” In one instance, rather than blacking out certain information, the AUSA directed the investigator to regenerate a second official investigative report omitting that information. The government’s actions were entirely improper. Under the Jencks Act, the government did not have a right unilaterally to redact the reports. The Jencks Act provides that the United States shall “produce any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). “There are no exceptions to the Jencks rule that all statements relevant to the subject matter of the witness’" }, { "docid": "5752031", "title": "", "text": "or rough notes, made by a third party, of a witness’ utterances. By contrast, the present case concerns a direct transcription of Agent York’s oral statements and hence involves none of the problems associated with the type of third-party summary at issue in Palermo. The concerns of Palermo are completely inapplicable to the present case: there is no doubt that the tape of Agent York’s radio transmissions literally recorded Agent York’s own words and not the “selections, interpretations, and interpolations” of a third party. The tape recording of Agent York’s own statements obviously does not involve the problem of third-party “distortion” discussed in Palermo. Cf. United States v. Griffin, 659 F.2d 932, 937 (9th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2019, 72 L.Ed.2d 473 (1982) (“Whether original notes can be considered ‘statements’ under the Jencks Act depends, first, on whose statement allegedly is contained therein; that is, against whose testimony at trial they could be used as impeachment material.”) (emphasis in original). In short, Palermo offers no support whatsoever for the majority’s claim that production of the tape of Agent York’s verbatim statements to other border patrol agents is not required by the Jencks Act. The majority next attempts to distance itself from the command of the text of the Jencks Act by citing cases which involve government agents’ rough surveillance or investigatory notes. These “rough notes” cases include United States v. Andersson, 813 F.2d 1450 (9th Cir.1987); United States v. Spencer, 618 F.2d 605 (9th Cir.1980), United States v. Bernard, 623 F.2d 551 (9th Cir.1979), and United States v. Lane, 574 F.2d 1019 (10th Cir.), cert. denied, 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177 (1978). Each of these cases held that the requirements of the Jencks Act do not apply to rough notes regarding a government agent’s surveillance or investigatory work — notes made for the agent’s own use in refreshing his memory when preparing a final written report (which the defendant would be entitled, under the Jencks Act, to obtain). See Andersson, 813 F.2d at 1459; Spencer, 618 F.2d at 605-07; Bernard, 623 F.2d" }, { "docid": "5925508", "title": "", "text": "the materiality of a piece of evidence, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” Id. (quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399-2400, 49 L.Ed.2d 342 (1976)); see also id. (The prosecutor is “the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.”) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). In spite of the government’s apparent misunderstanding of its discovery obligations, we conclude that no reversible Brady error occurred. The prosecutor did in fact disclose Ramirez’s statement to the defense. The prosecutor also eventually reviewed the officers’ rough notes and turned over those notes that contained discrepancies. Although this should have been done earlier, we are confident that Cuevas was not prejudiced by the government’s delay. Cuevas was able to cross-examine Investigator Smith fully regarding the discrepancies in his report. Although Cuevas complains that the government was able to examine Smith first about the discrepancy, thereby diffusing its force, the government would have been able to do so anyway even if it had disclosed the information in a timely manner. After the prosecutor finally turned over this material, and Cuevas made no. showing that there was additional exculpatory information the government was suppressing, the district court was under no duty to review the surveillance notes in camera. United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). B. Tape-Recorded Surveillance Notes Cuevas contends that the district court committed reversible error under the Jencks Act, 18 U.S.C. § 3500, when it denied discovery of transcribed copies of dictated surveillance notes by Investigator Smith. The district court’s denial of discovery pursuant to the Jencks Act is reviewed for abuse of discretion. Michaels, 796 F.2d at 1115. Investigator Smith tape recorded some of his surveillance notes. The tape recorded surveillance notes were typed by a secretary. Smith used these typed surveillance notes to create" }, { "docid": "5752015", "title": "", "text": "any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). If the government claims the statement is not relevant to the witness’ testimony, the trial court must inspect the material in camera, and excise any irrelevant portions. 18 U.S.C. § 3500(c). If the government chooses not to produce material as ordered by the court, “the court shall strike from the record the testimony of the witness.” 18 U.S.C. § 3500(d). Subsection (e) of the Act defines the term “statement” as: (1) a written statement made by [a government] witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. § 3500(e). Both the history of the statute and the decisions interpreting it have stressed that for production to be required, the materials should not only reflect the witness’ own words, but should also be in the nature of a complete recital that eliminates the possibility of portions being selected out of context. For example, the Supreme Court in Palermo v. United States, 360 U.S. 343, 352, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287 (1959), stated that “the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital.” Because the drafters did not intend to grant access to materials which take a witness' words out of context, courts have considered the nature and completeness of the alleged “statement.” Thus in United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979), we held that an agent’s rough notes jotted during surveillance were not producible under the Jencks Act due to the incomplete nature of the" }, { "docid": "4771854", "title": "", "text": "redacting any portion of the grand jury transcripts without a court order allowing the same. In response, the government explains the redactions concern matters affecting a current and continuing investigation of other alleged criminal violations and of other possible referral sources to Parkview., The government opposes production of investigatory reports at this time arguing that the reports must relate to matters addressed in direct examination. The Jencks Act directs the district court to order the government to produce, upon defense motion, any statement of the witness which relates to the subject matter to which the witness has testified during direct examination. 18 U.S.C. § 3500(b); see United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir.), cert, denied, 484 U.S. 914, 108 S.Ct. 262, 98 L.Ed.2d 220 (1987). The Jencks Act provides a three-part definition of “statement”: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. § 3500(e). “Interview notes could be ‘statements’ under the Act [18 U.S.C. § 3500(e)(2) ] if they are substantially verbatim” recitals of a witness’s oral statement and are recorded contemporaneously with the interview. United States v. Smith 984 F.2d 1084, 1086 (10th Cir.) (citation omitted), cert, denied, — U.S.-, 114 S.Ct. 204,126 L.Ed.2d 161 (1993); see United States v. Rewald, 889 F.2d 836, 867 (9th Cir.1989), modified on other grounds, 902 F.2d 18 (9th Cir.), cert, denied, 498 U.S. 819, 111 S.Ct. 64, 112 L.Ed.2d 39 (1990). On the other hand, reports that embody only the agent’s “ ‘epitomization, interpretation, or impression of an interview are not producible----’” Rewald, 889 F.2d at 867 (quoting Ogden v. United States, 303 F.2d 724, 732 (9th Cir.1962)). “[T]he task of characterizing the report is for the court, not the" }, { "docid": "5752012", "title": "", "text": "the two suspects and their location. He testified that he was not aware that any tapes were made of the transmissions and he did not use the tapes in making his final report, which the government did produce. The district court ruled the recordings were not Jencks Act material. The district court reasoned that the recordings were a form of rough surveillance notes and not “statements” as contemplated by the Act. See United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir.1980) (rough, incomplete notes not Jencks Act statements); United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979) (same). The trial proceeded, Agent York testified and Bobadilla was convicted on both counts. This appeal followed. The Tapes as Jencks Act Material We deal for the first time in this circuit with the claim that recordings of investigative surveillance observations must be retained and turned over to defense counsel for impeachment purposes in the event the officer making the surveillance is called as a witness. Some history of the origin and purpose of the Jencks Act is therefore appropriate. In Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), the Supreme Court held that a criminal defendant had a due process right to inspect, for impeachment purposes, statements which had been made to government agents by government witnesses. Such statements were to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness’ direct testimony, and if a demand had been made for specific statements of the witness. 353 U.S. at 667-72, 77 S.Ct. at 1013-15. The Jencks Act, 18 U.S.C. § 3500, was enacted in response to the Jencks decision. The Act was intended to preserve the defendant’s right to obtain access to materials which would aid in impeaching government witnesses. See S.Rep. No. 981, 85th Cong., 1st Sess., reprinted in 1957 U.S.Code Cong. & Admin.News 1861, 1862. However, the legislative history expresses a much greater concern with limiting the application of the Jencks decision so that it would not hamper the workings" }, { "docid": "5752032", "title": "", "text": "that production of the tape of Agent York’s verbatim statements to other border patrol agents is not required by the Jencks Act. The majority next attempts to distance itself from the command of the text of the Jencks Act by citing cases which involve government agents’ rough surveillance or investigatory notes. These “rough notes” cases include United States v. Andersson, 813 F.2d 1450 (9th Cir.1987); United States v. Spencer, 618 F.2d 605 (9th Cir.1980), United States v. Bernard, 623 F.2d 551 (9th Cir.1979), and United States v. Lane, 574 F.2d 1019 (10th Cir.), cert. denied, 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177 (1978). Each of these cases held that the requirements of the Jencks Act do not apply to rough notes regarding a government agent’s surveillance or investigatory work — notes made for the agent’s own use in refreshing his memory when preparing a final written report (which the defendant would be entitled, under the Jencks Act, to obtain). See Andersson, 813 F.2d at 1459; Spencer, 618 F.2d at 605-07; Bernard, 623 F.2d at 557-58; Lane, 574 F.2d at 1022. B. The holdings in the rough notes cases cited by the majority are light-years apart from the issue involved here. The majority completely fails to recognize that all of the case it relied upon construe a different subsection of the Jencks Act that the one involved in the case before us. Andersson, Spencer, Bernard, and Lane involve 18 U.S.C. § 3500(e)(1), while the present case involves (e)(2) — a subsection which gives a wholly different definition of the term “statement” than is found in (e)(1). Agent York’s statements were not subsection (1) statements — they were not written statements at all. Instead, they were subsection (2) statements — recorded oral statements. A recording or writing is a “statement” if it meets either of the definitions set forth in section (e): in other words, it is sufficient that an item comply with either (e)(1) or (e)(2). Cases which interpret subsection (1) (which applies solely to written statements) are of little if any significance in cases in which the question" }, { "docid": "23416631", "title": "", "text": "and completes his direct testimony. Id. § 3500(a). It is also subject to categorical, content-based restrictions delineated in the statute: a statement is not open to production under the Jencks Act unless it (i) relates to the same subject matter as the witness’s direct testimony, id. § 3500(b), and (ii) either comprises grand jury testimony, id. § 3500(e)(3), or falls within one of two general classes of statements, namely, (1) a written statement made by [the] witness'and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement. ... 18 U.S.C. § 3500(e)(l)-(2). In this case, the government agents who led the investigation instructed all but the most senior prosecutors to refrain from taking notes during pretrial interviews. The appellants decried this practice in the district court, but Judge Young found that even the deliberate use of investigatory techniques designed to minimize the production of written reports would not violate the Jencks Act. Before us, the appellants renew their challenge. We, too, think that it lacks force. The Jencks Act does not impose an obligation on government agents to record witness interviews or to take notes during such interviews. After all, the Act applies only to recordings, written statements, and notes that meet certain criteria, not to items that never came into being (whether or not a prudent investigator- — cynics might say an unsophisticated investigator — would have arranged things differently). See United States v. Lieberman, 608 F.2d 889, 897 (1st Cir.1979) (rejecting a claim that the government has “a duty to create Jencks Act material by recording everything a potential witness says”), cert. denied, 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980); accord United States v. Bernard, 625 F.2d 854, 859 (9th Cir.1980); United States v. Head, 586 F.2d 508, 511-12 (5th Cir.1978); United States v. Feilbogen, 494 F.Supp. 806, 814 (S.D.N.Y.1980), aff'd, 657 F.2d 265 (2d Cir.1981) (table). It has been suggested" }, { "docid": "23607853", "title": "", "text": "motion to suppress. 2. Jencks Act Angela Evans was interviewed before trial by Assistant U.S. Attorney Ronald Sievert, who took notes during their conversation. At trial, after Evans testified on behalf of the government, Pierce moved for production of these notes under the Jencks Act. He now alleges that the failure of the government to turn over Evans’s pretrial “statement” violates the Jencks Act. We disagree. The Jencks Act provides that upon a defendant’s motion the court shall: order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. 18 U.S.C. § 3500(b) (emphasis added). Pierce was not entitled to view Sievert’s notes because they do not constitute a “statement” of the witness. The Jencks Act defines a statement as: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such statement.... 18 U.S.C. § 3500(e). This court has previously held that an agent’s interview notes are not “statements” of the witness under § 3500(e) unless the witness “signed or otherwise adopted or approved the report,” 18 U.S.C. § 3500(e)(1), or the notes were “substantially verbatim reports” of the witness interview, 18 U.S.C. § 3500(e)(2). United States v. Welch, 810 F.2d 485, 490 (5th Cir.), cert. denied, 484 U.S. 955, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987). Neither is the case here. In order for interview notes to qualify as a statement under § 3500(e)(1) the witness must have signed, read, or heard the entire document read. United States v. Hogan, 763 F.2d 697, 704 (5th Cir.1985). Although Pierce’s counsel thoroughly cross-examined Angela Evans, he was unable to produce any evidence that one of these three conditions was met. Similarly, there is no evidence that any portion of Sievert’s notes was a substantially verbatim transcription of Evans’s" }, { "docid": "12825518", "title": "", "text": "opportunity to cross-examine Agent Taylor, and that we cannot do. See generally, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The District Court abused its discretion by admitting exhibits 7 and 8. E. Jencks Act Ruling On September 12, 1979, Agent Taylor made a handwritten draft of a report pertaining to his purchase of heroin from defendant House on September 5. He gave the draft to his secretary for typing, made some revisions on the typewritten draft, and had it typed in final form. At the time of trial, he produced the typewritten report, but was unable to produce the original handwritten draft. The court found a violation of the Jencks Act, 18 U.S.C. § 3500, and ordered Agent Taylor’s testimony stricken. We agree with the Government’s contention that Agent Taylor’s destruction of his handwritten rough draft of an investigative report did not constitute a violation of the Jencks Act. The Jencks Act requires, in part, that the Government produce written statements made by a witness and “signed or otherwise adopted or approved by him.” 18 U.S.C. § 3500(e)(1). The draft of the report here was not intended as a final report. Nor was the draft similar to witness interview notes which are intended only to be factual accounts of what a witness said. See United States v. Harris, 543 F.2d 1247, 1252 (9th Cir. 1976). Although the draft here differs in some respects from surveillance notes, which were held not to be producible “statements” in United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir. 1979), it was neither intended as a final statement nor as simply a contemporaneously written factual account of what a witness said. But see Harris, 543 F.2d at 1252. It was, therefore, not “adopted or approved” by Agent Taylor within the meaning of 18 U.S.C. § 3500(e)(1), and thus was not producible. F. Consequences of Evidentiary Errors We cannot say that the evidentiary errors were more probably than not harmless, and we must, therefore, reverse the conspiracy convictions of Schafer and Remsing. United States v. Berry, 627 F.2d 193" }, { "docid": "22734554", "title": "", "text": "were not produced; but each agent who had had contact with the recording was called, except Mendelson who was in Norfolk. James testified that there was a tape but no one knew where it was or what had happened to it. The defense urged that Mendelson, to whom the tapes had apparently once been delivered, be called; but the law officer after reading the record of Mendelson’s testimony on the tape recording at a pretrial investigation, refused. The question of the production of Mendelson’s “notes” as well as the question of the production of the tapes bring into focus the Jencks Act, 18 U. S. C. § 3500. This Act, enacted after our decision in Jencks v. United States, 353 U. S. 657, provides that when a witness testifies for the United States the Government may be required to produce “any statement” of the witness which relates to his testimony. §3500 (b). The term “statement” is defined in subsection (e) as: “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or “(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.” There is considerable doubt if Mendelson’s “notes” fall within the definition of subsection (e). He testified at the court of inquiry that he made “rough pencil notes”; and he said at the pretrial investigation, “I did jot down a couple of rough notes.” Both the law officer and the Board of Review concluded that these “notes” were not a “substantially verbatim” statement producible under the Jencks Act. It is difficult to tell from this record the precise nature of Mendelson’s “notes,” whether they recorded part of Hodges’ interview or whether they were merely a memorandum giving names, places, and hours. Certainly they were not a statement covering the entire interview; and if they were a truncated version, they would pose the question reserved in Palermo v. United States, 360" }, { "docid": "5752026", "title": "", "text": "York over the radio to other border patrol agents unquestionably would be subject to production under any reasonable reading of the plain language of the Act. The Act requires the government to permit criminal defendants to inspect “any statement of the witness [who testifies for the government at trial] that is in [the government’s] possession and that relates to the subject matter concerning which the witness has testified.” 18 U.S.C. § 3500(a). It is undisputed that Agent York was a witness for the government, that his radio communications to other border patrol agents while observing Bobadilla-Lopez related to the subject matter concerning which Agent York testified, and that a tape recording of these communications was (prior to its destruction) in the possession of the government. The only possible issue, then, is whether or not Agent York’s oral radio transmissions are “statements” as that term is used in the Jencks Act. The Jencks Act explicitly defined the term “statement”: (e) The term “statement”, as used in ... this section in relation to any witness called by the United States means— (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3)a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. § 3500. The tape recording of Agent York’s radio communications clearly is a “statement” as that term is defined in 18 U.S.C. § 3500(e)(2). There is no doubt that the tape made by the government constitutes a “recording.” The tape also unquestionably contains a “substantially verbatim recital” — indeed, a completely verbatim recital — of Agent York’s communications. Similarly, there is no doubt that Agent York’s communications constitute an “oral statement” made by a witness for the government. Finally, it is undisputed that this tape was “recorded contemporaneously” with Agent York’s statements. The plain language" }, { "docid": "23489437", "title": "", "text": "turned over to the defense under the provisions of the Jencks Act, 18 U.S.C. § 3500: (a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness * * * to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. Under subsection (e) the term “statement” as used in subsection (b) is defined as: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement. The court below declined to order the tapes turned over to defense counsel under section 3500. The apparent ground for the ruling was that Crake had not testified about any recorded conversation other than the one on January 18 — the transcript and tape of which were turned over since the Government introduced them into evidence — and there was no showing that the remaining tapes related to the subject matter of the direct testimony. We need not consider the correctness of this restrictive interpretation of section 3500 (b), see United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964), since we find that the tapes were not “statements” within the meaning of the Jencks Act. The tapes of these telephone conversations do not come within subsection (e)(2) as they are not recordings of oral statements made to a government agent. Nor, as" }, { "docid": "5925509", "title": "", "text": "to examine Smith first about the discrepancy, thereby diffusing its force, the government would have been able to do so anyway even if it had disclosed the information in a timely manner. After the prosecutor finally turned over this material, and Cuevas made no. showing that there was additional exculpatory information the government was suppressing, the district court was under no duty to review the surveillance notes in camera. United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). B. Tape-Recorded Surveillance Notes Cuevas contends that the district court committed reversible error under the Jencks Act, 18 U.S.C. § 3500, when it denied discovery of transcribed copies of dictated surveillance notes by Investigator Smith. The district court’s denial of discovery pursuant to the Jencks Act is reviewed for abuse of discretion. Michaels, 796 F.2d at 1115. Investigator Smith tape recorded some of his surveillance notes. The tape recorded surveillance notes were typed by a secretary. Smith used these typed surveillance notes to create final reports. The final reports were disclosed to the defense. Cuevas contends that the government was required to turn over the transcripts of the original taped surveillance notes. Under the Jencks Act, the government must turn over pretrial statements made by prosecution witnesses related to the subject matter of their trial testimony. 18 U.S.C. § 3500. This court has held that reports of government agents made in the course of criminal investigation are subject to production under the Jencks Act if the government agent testifies. See, e.g., United States v. Harris, 543 F.2d 1247, 1250 (9th Cir.1976). However, the court has held that an agent’s rough notes jotted during surveillance are not producible under the Jencks Act due to the incomplete nature of the notes. United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979). Cuevas contends that because Smith’s notes were tape-recorded rather than written, they are subject to disclosure under subsection (e)(2) of the Jencks Act. See 18 U.S.C. § 3500(e)(2) (defining “statement” as, among other things, “a stenographic, mechanical, electrical, or other" }, { "docid": "5752011", "title": "", "text": "trees and turn west, where they were stopped by agents. Bobadilla’s companion, Marina Lara-Lara, told the agents they had been carrying bags and directed the agents to the clump of trees where three dark-colored garbage bags were found containing individually wrapped packages of marijuana. Both Bobadilla and Lara were arrested. That recordings were made of Agent York’s surveillance transmissions came to the district court’s attention during the course of a pretrial hearing on a motion to suppress. The motion to suppress itself is not relevant to any issues on appeal. Agent York’s testimony at the hearing, however, made it clear that he had broadcast messages to other patrol agents. Defense counsel sought to suppress the testimony of Agent York as a sanction for the government’s routine destruction of the tape. The district court, still prior to trial, held a hearing to determine whether or not the material was Jencks Act material and concluded that it was not. During the course of that hearing, Agent York testified that his transmissions were sporadic and intended to describe the two suspects and their location. He testified that he was not aware that any tapes were made of the transmissions and he did not use the tapes in making his final report, which the government did produce. The district court ruled the recordings were not Jencks Act material. The district court reasoned that the recordings were a form of rough surveillance notes and not “statements” as contemplated by the Act. See United States v. Spencer, 618 F.2d 605, 606-07 (9th Cir.1980) (rough, incomplete notes not Jencks Act statements); United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979) (same). The trial proceeded, Agent York testified and Bobadilla was convicted on both counts. This appeal followed. The Tapes as Jencks Act Material We deal for the first time in this circuit with the claim that recordings of investigative surveillance observations must be retained and turned over to defense counsel for impeachment purposes in the event the officer making the surveillance is called as a witness. Some history of the origin and purpose of the Jencks" }, { "docid": "10111371", "title": "", "text": "deal with the DEA in order to take his business from him. Neither Keith nor Andrea Newman testified in their own defense. The jury returned verdicts of guilty against Keith Newman, but could not reach a verdict in Andrea Newman’s case. Keith Newman appeals alleging four grounds for reversal. We affirm. II. A) Jencks Act Newman alleges that the government violated the Jencks Act by failing to turn over the pretrial statement of government witness, Paula Trim. Trim’s statement was on a DEA 6 form investigative report which DEA agent Holifield had filled out on Trim after her post-arrest interview. Holifield took notes during his interview with Trim and later incorporated them into the DEA 6 report. The Jencks Act provides that in a criminal prosecution brought by the United States, the court, upon motion by the defendant, shall: “order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b) (1985). “Statement” is defined as: “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making-of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” 18 U.S.C. § 3500(e). The government first contends that it was not obligated to produce the report because Newman didn’t move to secure it after Trim’s direct examination as required by § 3500(b). The government further claims that Newman has waived appellate review of the issue by his failure to make a contemporaneous objection. United States v. Petito, 671 F.2d 68, 73 (2d Cir.1982); Wilson v. United States, 554 F.2d 893, 894 (8th Cir.1977), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977). Newman claims that he was under no obligation" }, { "docid": "5925511", "title": "", "text": "recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement”). Cuevas’s argument is foreclosed by United States v. Bobadilla-Lopez, 954 F.2d 519 (9th Cir.1992), cert. denied, 506 U.S. 1056, 113 S.Ct. 987, 122 L.Ed.2d 139 (1993). In Bobadilla-Lopez, we held that a Border Patrol officer’s recorded radio transmissions made during surveillance were not discoverable under the Jencks Act: The border patrol agent’s radio transmissions share the same rough, incomplete nature as notes hurriedly jotted during surveillance---- [T]he spotty, impressionistic and incomplete on-site transmissions of the agent in this case do not amount to the same kind of narrative ‘statement’ of a witness producible under the Jencks Act---- [Sjurveillance transmissions ... [do] not become ‘statements’ under section 3500(e)(2) simply because they were recorded. Id. at 522-23. As in Bobadilla-Lopez, Smith’s surveillance notes did not become Jencks Act statements simply because they were recorded. The district court did not err in denying Cuevas’ motion for disclosure of tape recorded surveillance notes. C. Motion for a New Trial Cuevas appeals from the district court’s denial of his motion for a new trial on the grounds of newly discovered exculpatory evidence improperly withheld by the government. Specifically, Cuevas contends that the government improperly redacted portions of police reports that it was required to disclose under Brady and the Jencks Act. He also contends that the government lied about not knowing the whereabouts of Jose Herrera, a potential material witness for the defense. The district court’s denial of a motion for new trial is reviewed for an abuse of discretion. United States v. Lopez, 803 F.2d 969 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987). 1. Improper Redactions After the conclusion of the trial, the defense discovered that the government had surreptitiously redacted portions of police reports it disclosed in pretrial discovery. The defense discovered this because defense counsel happened to receive the same report but unredacted in the course of representing an unrelated defendant in a separate matter. Before" }, { "docid": "7216974", "title": "", "text": "of the training log) are not statements by prospective government witnesses. Cf. United States v. Armstrong, 517 U.S. 456, 462-63, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (characterizing Rule 16(a)(2) as precluding discovery of “government work product in connection with [the defendant’s] case”). Accordingly, we find that the district court judge erred in denying defense counsel’s motion for discovery of the dog’s training and certification records under Fed.R.Crim.P. 16. B. Jencks Act disclosure Although the records are discoverable under Rule 16, we conclude that they are not Jencks Act material. This Court has explained: Under the Jencks Act, the government must turn over pretrial statements made by prosecution witnesses related to the subject matter of their trial testimony. 18 U.S.C. § 3500. This court has held that reports of government agents made in the course of criminal investigation are subject to production under the Jencks Act if the government agent testifies. See, e.g., United States v. Harris, 543 F.2d 1247, 1250 (9th Cir.1976). However, the court has held that an agent’s rough notes jotted during surveillance are not producible under the Jencks Act due to the incomplete nature of the notes. United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979). United States v. Alvarez, 86 F.3d 901, 906 (9th Cir.1996). Cedano-Arellano argues that, under Carrasco, supra, the dog’s training logs were subject to disclosure under the Jencks Act and Fed.R.Crim.P. 26.2. The district court disagreed, ruling that the notes taken in the training logs did not constitute “statements” under the Jencks Act. We agree with the district court. In deciding whether something constitutes a “statement” under the Jencks Act, this Court has focused on the distinction between investigative interviews and surveillance observations, rather than on whether the material was communicated to another person. United States v. Bobadilla-Lopez, 954 F.2d 519, 522-23 (9th Cir.1992). The training logs are more like surveillance observations than witness statements. The logs were not “intended to form the basis for evidence at trial.” Id. Therefore, the district court did not err in ruling that the logs were not statements for purposes of the Jencks Act." }, { "docid": "5925510", "title": "", "text": "final reports. The final reports were disclosed to the defense. Cuevas contends that the government was required to turn over the transcripts of the original taped surveillance notes. Under the Jencks Act, the government must turn over pretrial statements made by prosecution witnesses related to the subject matter of their trial testimony. 18 U.S.C. § 3500. This court has held that reports of government agents made in the course of criminal investigation are subject to production under the Jencks Act if the government agent testifies. See, e.g., United States v. Harris, 543 F.2d 1247, 1250 (9th Cir.1976). However, the court has held that an agent’s rough notes jotted during surveillance are not producible under the Jencks Act due to the incomplete nature of the notes. United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir.1979). Cuevas contends that because Smith’s notes were tape-recorded rather than written, they are subject to disclosure under subsection (e)(2) of the Jencks Act. See 18 U.S.C. § 3500(e)(2) (defining “statement” as, among other things, “a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement”). Cuevas’s argument is foreclosed by United States v. Bobadilla-Lopez, 954 F.2d 519 (9th Cir.1992), cert. denied, 506 U.S. 1056, 113 S.Ct. 987, 122 L.Ed.2d 139 (1993). In Bobadilla-Lopez, we held that a Border Patrol officer’s recorded radio transmissions made during surveillance were not discoverable under the Jencks Act: The border patrol agent’s radio transmissions share the same rough, incomplete nature as notes hurriedly jotted during surveillance---- [T]he spotty, impressionistic and incomplete on-site transmissions of the agent in this case do not amount to the same kind of narrative ‘statement’ of a witness producible under the Jencks Act---- [Sjurveillance transmissions ... [do] not become ‘statements’ under section 3500(e)(2) simply because they were recorded. Id. at 522-23. As in Bobadilla-Lopez, Smith’s surveillance notes did not become Jencks Act statements simply because they were recorded. The district court did not err in denying Cuevas’ motion for disclosure of tape" }, { "docid": "21572587", "title": "", "text": "a reasonable doubt. VII. PRODUCTION OF THE AGENT’S NOTES Finally, Pisello argues that his trial was unfair because the district court denied his motion to compel production of the handwritten notes made by the government’s agents. Pisello maintains that the court should have ordered production under either the Jencks Act, 18 U.S.C. § 3500 (1982), or Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). We disagree. A. Jencks Act The Jencks Act gives criminal defendants a fair opportunity to impeach government witnesses. After a government witness has testified at trial, the Act requires the government to produce, upon demand, any “statement” made by the witness in its possession that relates to the subject matter of his testimony. 18 U.S.C. § 3500(b). The term “statement” includes: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. Id. § 3500(e). Pisello contends that the agents’ handwritten notes contain statements as defined in § 3500(e)(2) because the government produced typed, formal memoranda based on the notes. This does not establish that notes contain statements. Although this court has stated that notes taken by FBI agents in interviews with prospective government witnesses may contain such statements, see United States v. Harris, 543 F.2d 1247, 1252 (9th Cir.1976), whether they do in any particular case remains a question of fact, see United States v. Miller, 771 F.2d 1219, 1231 (9th Cir.1985). Pisello’s argument that the government admitted that the notes came within the Jencks Act merely because it produced the formal memoranda based on the notes goes too far. The government produced the formal memoranda more or less voluntarily. We decline to hold that the government must surrender all material connected with any formal" } ]

[ { "docid": "17063549", "title": "", "text": "to overtime and sought advice from the Department of Labor informally Section 15(a)(3) of the FLSA provides: [I]t shall be unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.... Although the Fifth Circuit has not yet considered the question, several circuits have addressed whether an informal complaint of FLSA violations to a supervisor is activity protected from retaliation under section 15(a)(3). The Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that an oral, internal complaint is sufficient to trigger the protection of section 15(a)(3). See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); Bren nan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); see also Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40-43 (1st Cir.1999) (holding that section 15(a)(3) protects an employee who has “lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint”). Only the Second Circuit has held otherwise. See Lambert v. Genesee Hosp., 10 F.3d 46, 54-56 (2d Cir.1993) (holding that “[t]he plain language of [section 15(a)(3) ] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor”). This court follows the majority view. Courts have observed that the language of section 15(a)(3), prohibiting discrimination against any employee who has “filed any complaint ... under or related to this chapter,” plausibly extends to complaints “filed” with employers. See Lambert, 180 F.3d at 1004; Valerio, 173 F.3d at 40-42. The Supreme Court has stated that the provisions of the FLSA" } ]

[ { "docid": "593114", "title": "", "text": "triggers anti-retaliation protection under the FLSA. Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 41 (1st Cir.1999); EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Chisholm v. Foothill Capital Corp., 940 F.Supp. 1273, 1283 (N.D.Ill.1996); DeGrange v. Richard Wolf Medical Instruments Corp., No. 99 C 3614, 2000 WL 1368043, *2 (N.D.Ill. Sept. 15, 2000). The Court agrees with the reasoning of the overwhelming majority view, which is based on the broad, remedial purposes of the FLSA. See generally Tennessee Coal. Iron, and R. Co. v. Muscoda Local No. 128, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Plaintiffs’ complaints to the head of human resources constituted protected activity under the FLSA. AIUO argues that even if plaintiffs’ activities were protected, they fail to present direct evidence of retaliation and therefore must proceed under the McDonnell Douglas burden-shifting method. AIUO’s argument represents a misunderstanding of the requirements of the direct method of proof. The direct method of proof permits a plaintiff to show, “by way of direct or circumstantial evidence,” that her termination was motivated by an impermissible purpose. Rhodes v. Ill. Dept. of Transportation, 359 F.3d 498, 504 (7th Cir.2004) (emphasis added). Plaintiffs have presented the Court with both direct and circumstantial evidence of retaliatory discharge. This direct evidence includes deposition testimony from a fellow admissions advisor that Savasta told her he fired Skelton for complaining to human resources, and that she would suffer the same fate if she complained, Harrison Dep. at 240, and testimony from Van-der Vennet that Savasta threatened to fire him if he complained “behind his back again” to human resources. Vander Ven-net Dep. at 16. Plaintiffs also present circumstantial evidence of retaliatory discharge. The Seventh Circuit has identified three types of circumstantial evidence. See Troupe" }, { "docid": "22290647", "title": "", "text": "this chapter” protects an employee who complains to his employer about violations of the Act. The district court, in denying the defendants’ motion for judgment as a matter of law, held that the statute extends protection to employees who make such complaints. The defendants contend, to the contrary, that the anti-retaliation provision protects only those employees who file formal proceedings with the Department of Labor or in a federal court. Our court has never before addressed this question, although we did reserve it in Knickerbocker v. City of Stockton, 81 F.3d 907, 912 n. 3 (9th Cir.1996). To date, however, seven other Circuits have reached the specific question raised here. The First, Third, Sixth, Eight, Tenth, and Eleventh circuits have all held that complaints similar to, and even far more “informal” than those lodged by the plaintiffs here entitle. the employee to coverage under the anti-retaliation provision of the FLSA. See Valerio v. Putnam Assocs. Inc., 173 F.3d 35 (1st Cir.1999); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); EEOC v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989). The Second Circuit is the only circuit to reach the contrary conclusion, although it did so in a case in which the only complaint made was an oral complaint to a supervisor that a pay disparity was “not fair.” See Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993). Over fifty years ago, the Supreme Court determined the approach that must be followed in construing the provisions of the Fair Labor Standards Act. A number of the other circuits have explicitly followed .that approach. It is a simple one, often used in construing statutes designed to protect individual rights. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944), the Court explained that because the FLSA is a remedial statute," }, { "docid": "22290692", "title": "", "text": "to a supervisor that an employee was being paid less than the complainants thought she should have been.” Id. at 56. The present case is much more closely analogous to Genesee than to Casey. Here, neither Lambert nor any of the other plaintiffs actually “filed” a formal complaint or instituted or testified in an FLSA proceeding. Rather, Lambert merely complained about overtime to her supervisor and to other Full House employees; called the DOL for information, and informed her superiors that she had done so; had her lawyers send a letter to Barry Ackerly regarding the overtime issue; and had a complaint delivered to the Sonics. Because such conduct is not encompassed by the plain and unambiguous language of § 215(a)(3), the plaintiffs have failed to state a retaliation claim under the FLSA. We recognize that several other circuits have come to the conclusion that informal complaints and requests for information from the DOL do constitute protected activities under § 215(a)(3). See E.E.O.C. v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992) (holding that complaining to a school district of unlawful sex discrimination and expressing the belief that the law is being broken are sufficient to state a retaliation claim); E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989) (holding that unofficial complaints to an employer about unequal pay constitute an assertion of rights protected under the statute); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987) (holding that retaliation based on employer’s mere belief that an employee filed a formal complaint is sufficient to bring employer’s conduct under the FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383, 387 (10th Cir.1984) (holding that it is the assertion of statutory rights, not the filing of a formal complaint, which triggers a retaliation claim); Crowley v. Pace Suburban Bus Div., 938 F.2d 797, 798 (7th Cir.1991) (broadly construing the statute to protect against retaliation for an employee’s assertion of rights under the FLSA); Brennan, 513 F.2d at 181. These circuits have reached this conclusion by extending the language of § 215(a)(3) beyond its plain meaning so" }, { "docid": "6818510", "title": "", "text": "v. Goodyear Tire & Rubber Co., 278 F.2d 562 (8th Cir.1960); Goldberg v. Boma Mfg. Corp., 302 F.2d 152 (5th Cir. 1962) (record revealed that, despite the fact that employee could have been terminated for \"half a dozen” other reasons, she was in fact only fired for asserting FLSA rights); see also Hageman v. Park West Gardens, 480 N.W.2d 223, 231, 30 Wage & Hour Cas. (BNA) 1198, 120 Lab.Cas. p. 35,589 (N.D.1992) citing Mitchell and Goodyear. . Because we affirm the District Court's finding of no retaliation, we do not need to decide whether or not Knickerbocker's informal complaints and advice to fellow officers were protected conduct under the FLSA. See Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir.1993) (informal complaints to supervisors are not protected conduct), cert. denied, - U.S. -, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994); contra EEOC v. Romeo Community Sch., 976 F.2d 985, 990 (6th Cir.1992); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975); Love v. RE/MAX of Am. Inc., 738 F.2d, 383, 387 (10th Cir.1984); EEOC v. White & Son Enters, 881 F.2d 1006, 1011 (11th Cir.1989); see also Brock v. Richardson, 812 F.2d 121, 124 (3rd Cir.1987) (noting that courts have applied § 215 to activities not explicitly covered by language of the statute); Crowley v. Pace Suburban Bus. Div., 938 F.2d 797, 798 n. 3 (7th Cir.1991) (noting that § 215 has been construed broadly)." }, { "docid": "23511963", "title": "", "text": "capacity as a field service manager in behalf of the company to acting in an adversarial role against Echos-tar.” Id. Moreover, the district court noted that Hagan lacked a good faith belief that Echostar had violated the law in implementing the schedule change. Thus, the district court held, Hagan had failed to present any evidence that he had engaged in protected activity under Section 215(a)(3), and Echostar was entitled to judgment as a matter of law. We address each of the three rules relied upon by the district court: the “informal complaint” rule; the “stepping outside the role” rule; and the “good faith” rule. VI(A) The district court correctly noted the majority interpretation of Section 215(a)(3) is that even an informal, internal complaint may constitute protected activity: This Court has followed the majority position that an employee’s informal complaint to his employer may constitute protected activity under Section 215(a)(3). See Dearmon v. Tex. Migrant Council, Inc., 252 F.Supp.2d 367, 367-68 (S.D.Tex.2003) (Kazen, J.); Truex v. Hearst Commc’ns, Inc., 96 F.Supp.2d 652, 665-66 (S.D.Tex.2000) (Rosenthal, J.); see also, e.g., Lambert v. Ackerley, 180 F.3d 997, 1003-05 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 44-45 (1st Cir.1999); EEOC v. Romeo Comty. Schs., 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975). But see Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993) (requiring the filing of a formal complaint with a government agency). At the same time, however, not all “abstract grumblings” or vague expressions of discontent are actionable as complaints. Lambert, 180 F.3d at 1007 Hagan, 2007 WL 543441, at *4. The “informal complaint” interpretation is not the only one. For example, in Lambert v. Genesee Hospital, cited by the district court as contrary authority, the Second Circuit stated that “[t]he plain language of [Section 215(a)(3)] limits the cause of action to retaliation for" }, { "docid": "10314987", "title": "", "text": "appropriate whenever “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If no reasonable jury could find for the party opposing the motion, it must be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Retaliation Krause contends that the district court improperly granted summary judgment on her claims of retaliation under Title VII and the Equal Pay Act. As is common in such suits, Krause presented no direct evidence of discrimination, but proceeded under the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, Krause must make a prima facie case of retaliation. The prima facie case includes three elements: (1) that she engaged in statutorily-protected expression by complaining about discrimination covered by Title VII and/or the Equal Pay Act; (2) that she suffered an adverse job action; and (3) that there is a causal link between the protected expression and the adverse job action. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1007 (7th Cir.2000). 1. Pi’otected Expression With regard to the first factor, both Krause and the district court relied upon Krause’s informal complaint of discrimination at a February 1998 merit review meeting as proof that she had engaged in statutorily protected expression. Although we have not yet ruled on the issue, several other circuits have held that informal complaints of discrimination constitute protected expression under Title VII. See, e.g., Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir.1999); EEOC v. Romeo Cmty. Schs., 976 F.2d 985, 989 (6th Cir.1992); EEOC v. White & Son Enter., 881 F.2d 1006, 1011-12 (11th Cir.1989); Love v. RE/MAX of America, Inc., 738 F.2d 383, 387 (10th Cir.1984). Because we are of the opinion that" }, { "docid": "10671067", "title": "", "text": "\"inquiry,” the Nicolaou court did not view its holding to be in conflict with the Fourth Circuit’s decision in King. See Nicolaou, 402 F.3d at 330. . As it is not necessary for the disposition of this case, we decline to elaborate on the level of formality required for protection under Section 510. At the very least, the provision would protect information given in legal and administrative proceedings. . The First, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that internal complaints are protected under the FLSA. See Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41 (1st Cir.1999); E.E.O.C. v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992); E. E.O.C. v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975). The Second and Fourth Circuits have held to the contrary. See Ball, 228 F.3d at 364; Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993). Finally, the Seventh Circuit has taken a middle approach. See Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838, 840 (7th Cir.2009) (holding that written, but not oral, internal complaints are protected based on the inclusion of the verb '‘filed”), cert. granted, - U.S. -, 130 S.Ct. 1890, 176 L.Ed.2d 361 (2010). We have cited the majority approach with approval in dicta. See Brock, 812 F.2d at 124. . In light of our disposition, we decline to address A.H. Cornell’s additional arguments that Edwards cannot maintain a claim against Cornell and Closterman because they \"merely served as the company’s agents,” (A.H. Cornell Br. at 7), and that, regardless of the outcome of this appeal, the allegations in Edwards’s complaint fail to satisfy the pleading requirements articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). COWEN, Circuit Judge, dissenting. Unlike" }, { "docid": "593113", "title": "", "text": "with Clinton, the head of human resources at AIUO, qualified as a protected activity under the FLSA. The FLSA protects workers from retaliation on the basis of filing a complaint, instituting a proceeding, or testifying in a proceeding regarding a complaint made under the Act. 29 U.S.C. § 215(a)(3). AIUO argues that internal verbal complaints, such as plaintiffs’ complaints to Clinton, are not protected by the FLSA. In so arguing, AIUO relies on Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993), in which the Second Circuit held that the plain language of the FLSA retaliation provision “limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to human resources representatives.” Lambert, however, represents the minority view of the breadth of coverage of § 215(a)(3). Though the Seventh Circuit has so far declined to rule on this exact issue, the First, Third, Sixth, Eleventh, Ninth, and Tenth Circuits, and several judges in this District, have all found that an oral, internal complaint triggers anti-retaliation protection under the FLSA. Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 41 (1st Cir.1999); EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Chisholm v. Foothill Capital Corp., 940 F.Supp. 1273, 1283 (N.D.Ill.1996); DeGrange v. Richard Wolf Medical Instruments Corp., No. 99 C 3614, 2000 WL 1368043, *2 (N.D.Ill. Sept. 15, 2000). The Court agrees with the reasoning of the overwhelming majority view, which is based on the broad, remedial purposes of the FLSA. See generally Tennessee Coal. Iron, and R. Co. v. Muscoda Local No. 128, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Plaintiffs’ complaints to the head of human resources constituted protected activity under the FLSA. AIUO argues that even" }, { "docid": "20664521", "title": "", "text": "that plaintiff can bring FLSA retaliation claim against employer not covered by the FLSA overtime provision); Wirtz v. Ross Packaging Co., 367 F.2d 549 (5th Cir.1966) (same); but see Lamont v. Frank Soup Bowl, Inc., No. 99-civ-12482, 2001 WL 521815 (S.D.N.Y.2001) (holding that FLSA’s anti-retaliation provision only applies to those subject to individual or enterprise coverage). . The Fund also notes that Ms, Benton’s statement of facts includes a contention that she engaged in statutorily protected activity when speaking to an EJC volunteer about the overtime issue, but that no such assertion was included in her complaint. Def.’s Mot. Summ. J. at 15-16. In any case, the Fund argues, because the director and board were not aware of that action it could not support a claim of retaliation. Id, In her opposition, Ms. Benton makes no mention of her interaction with EJC when arguing that she engaged in protected activity, and thus the Court deems the matter, conceded. See Burke v. Inter-Con Sec. Sys., Inc., 926 F.Supp.2d 352, 356 (D.D.C.2013) (plaintiff conceded arguments raised in defendant's motion for summary judgment by failing to oppose those arguments in plaintiff's opposition memorandum and sur-reply); Hopkins v. Women's Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded[.]”). . Although this Circuit Court has yet to address the issue, the overwhelming majority of circuits have held that making an appropriate complaint to an employer is protected activity under the FLSA, See Greathouse v. JHS Sec. Inc., 784 F.3d 105, 113 (2d Cir.2015); Minor v. Bostwick Labs., Inc., 669 F.3d 428, 436 (4th Cir.2012); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999); Valerio v. Putnam Assocs., 173 F.3d 35, 44 (1st Cir.1999); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enters., 881" }, { "docid": "23511962", "title": "", "text": "215(a)(3) in the context of filing a complaint, so the district court looked to other courts that have addressed the issue for guidance. In this effort, the district court found that even an informal, internal complaint could constitute protected activity under the FLSA. Hagan, 2007 WL 543441, at *4. Next, the district court found that Hagan could not recover under the FLSA unless he “stepped out of his role as an Echostar field service manager, either to complain to his employer in behalf of the technicians, or in his own behalf, about a supposed violation or irregularity under or related to the FLSA.” Id. Third and finally, the district court found that the FLSA protects employees engaged in otherwise protected activity if that employee possesses a good faith belief that the employer had violated the law. Id. at *5. The district court ultimately determined that Hagan’s actions did not rise to the level of an informal complaint, because there was “no evidence that [Hagan] at any point crossed the line from acting in his appointed capacity as a field service manager in behalf of the company to acting in an adversarial role against Echos-tar.” Id. Moreover, the district court noted that Hagan lacked a good faith belief that Echostar had violated the law in implementing the schedule change. Thus, the district court held, Hagan had failed to present any evidence that he had engaged in protected activity under Section 215(a)(3), and Echostar was entitled to judgment as a matter of law. We address each of the three rules relied upon by the district court: the “informal complaint” rule; the “stepping outside the role” rule; and the “good faith” rule. VI(A) The district court correctly noted the majority interpretation of Section 215(a)(3) is that even an informal, internal complaint may constitute protected activity: This Court has followed the majority position that an employee’s informal complaint to his employer may constitute protected activity under Section 215(a)(3). See Dearmon v. Tex. Migrant Council, Inc., 252 F.Supp.2d 367, 367-68 (S.D.Tex.2003) (Kazen, J.); Truex v. Hearst Commc’ns, Inc., 96 F.Supp.2d 652, 665-66 (S.D.Tex.2000) (Rosenthal, J.);" }, { "docid": "10671066", "title": "", "text": "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]'' 29 U.S.C. § 215(a)(3). In Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360 (4th Cir. 2000), the Fourth Circuit held that Section 15(a)(3) does not protect internal complaints. Id. at 364. This is the minority view. See note 8, infra. . Section 704(a) of Title VII provides, \"It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). . Although its analysis was more nuanced with regard to the term \"inquiry,” the Nicolaou court did not view its holding to be in conflict with the Fourth Circuit’s decision in King. See Nicolaou, 402 F.3d at 330. . As it is not necessary for the disposition of this case, we decline to elaborate on the level of formality required for protection under Section 510. At the very least, the provision would protect information given in legal and administrative proceedings. . The First, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that internal complaints are protected under the FLSA. See Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41 (1st Cir.1999); E.E.O.C. v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992); E. E.O.C. v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975). The Second and" }, { "docid": "16278389", "title": "", "text": "part, that it is unlawful for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding ...” 29 U.S.C. § 215(a)(3). Defendant argues that because plaintiff only made an informal complaint with the company, she is not protected by this anti-retaliation provision. The Fifth Circuit has not addressed this issue, but the majority of other courts of appeals addressing it have found that informal complaints are protected by the anti-retaliation provision in the FLSA. See Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 41-42 (1st Cir.1999) (concluding that the FLSA “will protect an employee who has filed a sufficient complaint with an employer”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (holding that the anti-retaliation provision “must protect employees who complain about violations to their employers”); EEOC v. White and Son Enter., 881 F.2d 1006, 1011 (11th Cir.1989) (explaining that the anti-retaliation provision of the FLSA “was designed to prevent fear or economic retaliation by an employer against an employee who chose to voice ... a grievance”); Love v. Re/Max of America, 738 F.2d 383, 387 (10th Cir.1984) (holding that the FLSA applies to employee who sent memorandum to employer requesting a raise with a copy of the Equal Pay Act attached and was fired within two hours); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (holding that “where the immediate cause or motivating factor of a discharge is the employee’s assertion of statutory rights, the discharge is discriminatory under [section] 215(a)(3) whether or not grounds for other discharge exist.”). It is axiomatic that a Rule 12(b)(6) motion is decided solely on the pleadings and the Court has not seen any of the potential evidence in this case. Suffice to say that Plaintiffs allegations go well beyond mere “abstract grumblings” about wages. Valerio, 173 F.3d at 44. See also Lambert, 180 F.3d at 1007 (explaining that “so long as" }, { "docid": "23511964", "title": "", "text": "see also, e.g., Lambert v. Ackerley, 180 F.3d 997, 1003-05 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 44-45 (1st Cir.1999); EEOC v. Romeo Comty. Schs., 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975). But see Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993) (requiring the filing of a formal complaint with a government agency). At the same time, however, not all “abstract grumblings” or vague expressions of discontent are actionable as complaints. Lambert, 180 F.3d at 1007 Hagan, 2007 WL 543441, at *4. The “informal complaint” interpretation is not the only one. For example, in Lambert v. Genesee Hospital, cited by the district court as contrary authority, the Second Circuit stated that “[t]he plain language of [Section 215(a)(3)] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Lambert, 10 F.3d at 55 (citing Romeo, 976 F.2d at 990 (Surheinrich, J., dissenting)). We do not read Section 215(a)(3) so narrowly as the Lambert court. Section 215(a)(3) speaks of an employee “fil[ing] any complaint,” and we cannot agree that the plain language is limited to filing a formal complaint. We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section. We also accept that there are necessary qualifications to the majority rule. For instance, as the district court also noted, “not all ‘abstract grumblings’ or vague expressions of discontent are actionable as complaints.” Hagan, 2007 WL 543441, at *4. Thus, although Section 215(a)(3) allows informal complaints to constitute protected activity, the only immediate effect here is that Hagan’s anti-retaliation claim is not automatically precluded because he did not file a formal complaint. We must still determine whether he actually filed" }, { "docid": "8171485", "title": "", "text": "hand, comports with the statute’s objectives as described by Congress’s findings and the Supreme Court’s interpretation of those findings. Amici offer several persuasive policy arguments in support of this conclusion. They point out that protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation — and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint. Our sister circuits have voiced the same concerns in concluding that § 215(a)(3) protects intracompany complaints. See Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 43 (1st Cir.1999) (“By protecting only those employees who kept secret their belief that they were being illegally treated until they filed a legal proceeding, the Act would discourage prior discussion of the matter between employee and employer, and would have the bizarre effect both of discouraging early settlement and creating an incentive for the employer to fire an employee as soon as possible after learning the employee believed he was being treated illegally.”). Indeed, the majority of circuits to consider the question of whether intracompany complaints are protected activity within the meaning of “filed any complaint” have answered in the affirmative, basing their decisions on the FLSA’s remedial purpose. See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir.2008) (“We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section.”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc) (finding that § 215(a)(3) covered internal complaints based on its remedial purpose); Valerio, 173 at 42 (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (same); see also EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992) (holding that an employee’s complaints to her employer were sufficient to trigger protection of the" }, { "docid": "23554322", "title": "", "text": "direct Massachusetts analogue to Section 114 is, therefore, immaterial. To our knowledge, no Massachusetts court has even suggested the distinction Valerio seeks to advance, and, tellingly, she cites to no such case. We conclude that both the FLSA and Massachusetts law compel the same outcomes. Cf. Fakouri v. Pizza Hut of America, Inc., 824 F.2d 470 (6th Cir.1987). B. The Retaliation Claim The district court granted summary judgment for Putnam on Valerio’s claim for retaliatory termination, ruling that her internal complaint on September 12, 1995 was, not protected activity under either the FLSA or Massachusetts law. We consider the federal law and state law issues in turn. (1) Retaliation Under the FLSA The FLSA’s anti-retaliation provision states: [I]t shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in 'any such proceeding, or has served or is about to serve on an industry committee[.] 29 U.S.C. § 215(a)(3). The question raised here is of first impression in this Circuit: whether FLSA’s prohibition on terminating an employee who “has filed any complaint or instituted or caused to be instituted any proceeding” under or related to the FLSA protects an employee who has lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint. Federal courts of appeals grappling with this issue have differed. To date, the Sixth, Eighth, Tenth, and Eleventh Circuits have held that an internal complaint to the employer may satisfy § 215(a)(3), see EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989); Love v. Re/Max of America, Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975), while the Second Circuit, as well as a previous panel of the Ninth Circuit, have held that a formal complaint to the government agency" }, { "docid": "20664522", "title": "", "text": "defendant's motion for summary judgment by failing to oppose those arguments in plaintiff's opposition memorandum and sur-reply); Hopkins v. Women's Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded[.]”). . Although this Circuit Court has yet to address the issue, the overwhelming majority of circuits have held that making an appropriate complaint to an employer is protected activity under the FLSA, See Greathouse v. JHS Sec. Inc., 784 F.3d 105, 113 (2d Cir.2015); Minor v. Bostwick Labs., Inc., 669 F.3d 428, 436 (4th Cir.2012); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999); Valerio v. Putnam Assocs., 173 F.3d 35, 44 (1st Cir.1999); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975). . Ms. Benton’s opposition to the Fund’s motion for summary judgment contains a lengthy list of other allegedly retaliatory adverse actions, including: changing her \"work environment,” being treated \"worse” by Mr. Meighan, not getting an explanation about why her work phone was, cancelled, taking away her automobile insurance coverage, being \"micromanaged,” being \"yelled at and treated unprofessionally,” and haying her responsibilities reduced. Pl.’s Opp’n at 10. None of these alleged retaliatory acts, however, were included in her complaint, and many are without support in the summary judgment record. See, e.g., Benton Dep. 261:5-9 (conceding that she was given the explanation that she would not need a work cell phone anymore since she would only be working out of the D.C. office); id. at 227:5-18 (admitting that Ms. McNelis, who took over \"a lot of” Ms. Benton’s responsibilities, did so as of January 2013, well before Ms. Benton" }, { "docid": "8171486", "title": "", "text": "was being treated illegally.”). Indeed, the majority of circuits to consider the question of whether intracompany complaints are protected activity within the meaning of “filed any complaint” have answered in the affirmative, basing their decisions on the FLSA’s remedial purpose. See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir.2008) (“We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section.”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc) (finding that § 215(a)(3) covered internal complaints based on its remedial purpose); Valerio, 173 at 42 (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (same); see also EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992) (holding that an employee’s complaints to her employer were sufficient to trigger protection of the FLSA’s antiretaliation provision without explaining its rationale). Cf. Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987) (holding that, because of the FLSA’s remedial purpose, a retaliatory firing based on an employer’s belief that an employee had filed a complaint— even when he had not — was prohibited by § 215(a)(3)). Thus, we adopt the majority view by holding that the remedial purpose of the FLSA requires intracompany complaints to be considered protected activity within the meaning of its antiretaliation provision. 2. Supporting our conclusion is the Secretary of Labor and the EEOC’s consistent position that intracompany complaints are included within the meaning of “filed any complaint.” We afford agency interpretations that do not have the force of law, like agency manuals and litigation documents, respect to the extent that they possess the “power to persuade.” Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Factors we consider when determining whether an" }, { "docid": "23554323", "title": "", "text": "to serve on an industry committee[.] 29 U.S.C. § 215(a)(3). The question raised here is of first impression in this Circuit: whether FLSA’s prohibition on terminating an employee who “has filed any complaint or instituted or caused to be instituted any proceeding” under or related to the FLSA protects an employee who has lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint. Federal courts of appeals grappling with this issue have differed. To date, the Sixth, Eighth, Tenth, and Eleventh Circuits have held that an internal complaint to the employer may satisfy § 215(a)(3), see EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989); Love v. Re/Max of America, Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975), while the Second Circuit, as well as a previous panel of the Ninth Circuit, have held that a formal complaint to the government agency or a court is required. Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir.1993); see also Lambert v. Ackerly, 156 F.3d 1018 (9th Cir.1998); withdrawn and reh’g granted, 169 F.3d 666 (9th Cir.1999). This is indeed a close question, but we side with the Sixth, Eighth, Tenth, and Eleventh Circuits. In deciding that the FLSA’s protections against retaliation are triggered only by a formal filing with a court or agency, the Second Circuit concluded that § 215(a)(3) is unambiguous. See Genesee Hospital, 10 F.3d at 55. We do not agree. We read the phrase “has filed any complaint” as susceptible to differing interpretations. The word “complaint” itself is certainly ambiguous. Webster defines “complaint” as either “the act or action of expressing protest, censure, or resentment: expression of injustice ([for example] about poor housing)” or as a “formal allegation or charge against a party made or presented to the appropriate court or officer (as for a wrong done or a crime committed) and variously applied ... ” Webster’s Third New Int’l Dictionary 464 (1971). By failing" }, { "docid": "15850935", "title": "", "text": "v. Richardson, 812 F.2d 121 (3d Cir.1987) (stating that the FLSA’s anti-retaliation provision necessarily protects informal complaints because the purpose of the Act is to “prevent employees’ ‘fear of economic retaliation’ for voicing grievances”); EEOC v. Romeo Cmty. Schools, 976 F.2d 985 (6th Cir.1992) (recognizing a protected activity in the plaintiffs assertion to her employer that it was “breaking some sort of law” by paying her lower wages than men); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975) (concluding that because the act “prohibits discrimination against an employee who asserts or threatens to assert his or her FLSA rights,” an employee’s termination violated the FLSA where it followed her complaint, that her. rights under the FLSA were being violated); Lambert v. Ackerley, 180 F.3d 997 (9th Cir.1999) (stating that to “ensure that employees are not compelled to risk their jobs in order to assert their rights under the Act ... it must protect employees who complain about violations to their employers, as well as employees who turn to the Labor Department or the courts for a remedy”); Love v. RE/MAX of Am., Inc. 738 F.2d 383 (10th Cir.1984) (recognizing a protected activity where the plaintiff sent a memo to her employer requesting a raise and attached a copy of the EPA because the “Act applies to the unofficial assertion of rights through complaints at work”); EEOC v. White & Son Enter., 881 F.2d 1006 (11th Cir.1989) (concluding that the anti-retaliation provision protected an informal, verbal assertion of rights under the statute). These circuits appear to rely on the premise that courts ought not apply the EPA in a “narrow, grudging manner” because the “remedial and humanitarian” purpose of the statute deserves a liberal application. Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). The D.C. Circuit has not yet reached this issue. When a statute is unambiguous on its face, however, courts ought to apply the clearly expressed intent of the statute’s language. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43," }, { "docid": "15850934", "title": "", "text": "should narrowly construe the EPA’s anti-retaliation provision. See Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 363-65 (4th Cir.2000) (holding that the FLSA’s language did not protect a plaintiff who told his employer that he might testify if a co-worker brought an employment discrimination lawsuit because the Act protects the act of giving testimony, not merely voicing opposition to an em ployer); Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993) (comparing the FLSA’s restrictive language to Title VII’s inclusive language and concluding that voicing complaints to supervisors is not a protected activity under the FLSA). A majority of circuits, on the other hand, have broadly interpreted the provision, finding that the EPA protects informal charges. See e.g., Valerio v. Putnam, Assoc. Inc., 173 F.3d 35 (1st Cir.1999) (expressing concern that a “narrow construction of the anti-retaliation provision could create an atmosphere of intimidation,” thereby defeating the FLSA’s purpose in protecting employees’ attempts to secure their rights, but noting that the provision does not protect “all abstract grumblings” or even all written complaints); Brock v. Richardson, 812 F.2d 121 (3d Cir.1987) (stating that the FLSA’s anti-retaliation provision necessarily protects informal complaints because the purpose of the Act is to “prevent employees’ ‘fear of economic retaliation’ for voicing grievances”); EEOC v. Romeo Cmty. Schools, 976 F.2d 985 (6th Cir.1992) (recognizing a protected activity in the plaintiffs assertion to her employer that it was “breaking some sort of law” by paying her lower wages than men); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975) (concluding that because the act “prohibits discrimination against an employee who asserts or threatens to assert his or her FLSA rights,” an employee’s termination violated the FLSA where it followed her complaint, that her. rights under the FLSA were being violated); Lambert v. Ackerley, 180 F.3d 997 (9th Cir.1999) (stating that to “ensure that employees are not compelled to risk their jobs in order to assert their rights under the Act ... it must protect employees who complain about violations to their employers, as well as employees who turn to the Labor Department or the" } ]

[ { "docid": "7123038", "title": "", "text": "for a limited retention of jurisdiction, as expressed in paragraph 9 of the debtor’s confirmed plan. In these circumstances, any executory contract or lease not expressly assumed or rejected by the debtor before confirmation, or in the plan of arrangement, rode through the proceedings and was thereafter binding on the debtor. See In re Greenpoint Metallic Bed Co., 113 F.2d 881 (2d Cir.1940); Mohonk Realty Corp. v. Wise Shoe Stores, Inc., 111 F.2d 287 (2nd Cir.1940), cert. den. 311 U.S. 654, 61 S.Ct. 47, 85 L.Ed. 418 (1940). Consequently, there is no jurisdictional predicate for this court to entertain the debtor’s application to stay the landlord’s eviction case pending in the Justice Court for the Village of Dobbs Ferry, New York. THE SEVEN YEAR STAY Section 314 of the former Bankruptcy Act empowered the bankruptcy court to stay the commencement or continuation of suits and proceedings “until final decree.” Additionally, the automatic stay provided under Bankruptcy Rule 11 — 14(a) continued until the case was closed, dismissed, or converted to bankruptcy. This court was about to close this case when the debtor filed for the relief in question. The debtor argues that the landlord’s successful eviction of the debtor from its premises would put the debtor out of business and prevent the debtor from making the payments called for under the confirmed Chapter XI plan. However, the debtor is not entitled to a permanent umbrella shielding it from all law suits while it makes its payments under the plan of arrangement. The order of confirmation marked the commencement of the period when a debtor was weaned from dependence on the bankruptcy court’s injunctive powers so as to stand on its own feet with respect to post-confirmation matters. Therefore, apart from jurisdictional limitations, there is no logical basis for issuing a stay under Section 314 of the Act or for extending the automatic stay under Rule 11-44 to protect the debtor from post-confirmation suits bottomed on claims arising after the entry of the order confirming the plan of arrangement. The debtor’s performance for seven years in this bankruptcy court has had" } ]

[ { "docid": "637365", "title": "", "text": "Inc., 368 F.2d 922, 924 (2d Cir.1966) (bankruptcy’s court’s jurisdiction continues post-confirmation to \"protect its confirmation decree, to prevent interference with the execution of the plan and to aid otherwise in its operation,” until entry of a final decree). Accord, In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir.) (jurisdiction of bankruptcy court depends upon provisions of confirmed and reservations, not inconsistent therewith, contained in order of confirmation.”), cert. denied sub nom., Pittsburgh Terminal Realization Corp. v. Heiner, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re Greenley Energy Holdings, Inc., 110 B.R. 173, 185 (Bankr. E.D.Pa.1990) (jurisdiction retained to resolve patent ambiguities or disputes which affect operation of plan between interested parties). . Section 1142 provides in relevant part: (b) The court may direct the debtor and any other necessary party to execute or deliver or to join in the execution or delivery of any instrument required to effect a transfer of property dealt with by a confirmed plan, and to perform any other act, including the satisfaction of any lien, that is necessary for the consummation of the plan. 11 U.S.C. § 1142. . Bankruptcy Rule 3022 states in full: FINAL DECREE IN CHAPTER 11 REORGANIZATION CASE After an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party in interest, shall enter a final decree closing the case. Rule 3022 works together with section 350 of the Code which requires the closing of a bankruptcy case \"after an estate is fully administered.” 11 U.S.C. § 350(a). . The advisory committee note to the 1991 amendments to Rule 3022 reads in full: Entry of a final decree closing a chapter 11 case should not be delayed solely because the payments required by the plan have not been completed. Factors that the court should consider in determining whether the estate has been fully administered include (1) whether the order confirming the plan has become final, (2) whether deposits required by the plan have been distributed, (3) whether the property proposed by the" }, { "docid": "13166279", "title": "", "text": "dismissed; and (C) if the case is a case under Chapter 7 of this title concerning an individual or a case under Chapter 9, 11, or 13 of this title, the time a discharge is granted or denied. Judge Brumbaugh found that pursuant to 11 U.S.C. § 1141(b), the confirmation of the plan vested all property of the estate in the debtor, and that the stay was therefore not in effect under 362(c)(1) when the suit was commenced. Further, 11 U.S.C. § 1141(d)(1)(A) states that confirmation of a plan discharges the debtor, which also renders a stay ineffective under 11 U.S.C. § 362(c)(2)(C). Numerous courts have come to similar conclusion. For example, in In re Westholt Manufacturing, Inc., 20 B.R. 368, 372 (Bkrtcy.Kan.1982) Chief Judge Robert Morton held: The automatic stay of section 362 remains in effect while a Chapter 11 plan is pending confirmation. Upon the plan’s confirmation, and simultaneous discharge of the debtor under section 1141(d), however, the automatic stay terminates pursuant to section 362(c) and creditors may proceed to collect post-confirmation debts from the debtor, thereby terminating the estate’s existence, although the court has continued jurisdiction under section 1142 to oversee the plan’s execution. In the instant case Judge Brumbaugh correctly concluded: Since confirmation of a Chapter 11 plan has the dual effect of revesting the debt- or with title to its property and discharging the debtor from all dischargeable pre-petition debts, there can be no further application of the automatic stay subsequent to confirmation. The second argument by the debt- or involves the extent of jurisdiction granted to the bankruptcy courts under 28 U.S.C. § 1471(d). Judge Brumbaugh’s order acknowledged that provisions in the confirmation plan might have provided a jurisdictional basis for the bankruptcy court to entertain a motion to enjoin Sun Valley from proceeding with an eviction suit in state court. The order also states, however, that the plan did not preclude Sun Valley from going to state court to enforce a newly created post-petition obligation. This is exactly what Sun Valley did, and Paradise participated in litigating the issue over a four month" }, { "docid": "14336479", "title": "", "text": "on Bankruptcy, ¶ 11.01, at 644 (14th ed. 1978) (a standard akin to Fed.R.Civ.P. 60 may be applied). Thus, the applicants concede that even if their worst fears about the debtor and its principal were realized, pursuant to 11 U.S.C. § 1144 it is now too late to set aside the order of confirmation entered in April 1987. (Applicants’ memorandum, at 10). That being so, the question becomes whether this court retains the discretion to order 2004'exami-nations and, if so, whether that discretion should be exercised. A. The first issue concerns the power of a bankruptcy court to order 2004 examinations of the debtor’s principals and non-debtor parties post-confirmation. Since at least 1944, courts have recognized the competing interests between retaining jurisdiction after confirmation until entry of the final decree {see Bankr.R. 3020), and ending the “tutelage” status of reorganization, a period “which may limit and hamper [the corporation’s] activities and throw doubt upon its responsibility.” North American Car Corp. v. Peerless Weighing & Vending Mach. Corp., 143 F.2d 938, 940 (2d Cir.1944). Courts have balanced these two concerns in various ways, see Matter of Coral Air, Inc., 40 B.R. 979 (D.V.I.1984) (jurisdiction retained); In re Paradise Valley Country Club, 26 B.R. 990 (Bankr.D.Colo.1983), aff'd, 31 B.R. 613 (D.Colo.1983) (concurrent jurisdiction with state court); In re J.T. Gerken Trucking, Inc., 10 B.R. 203 (Bankr.N.D.Ohio 1981) (jurisdiction denied), and differ on the significance of a reservation of jurisdiction clause in either the order of confirmation or the plan itself. Compare In re Tri-L Corp., 65 B.R. 774, 778 (Bankr.D.Utah 1986) (reservation clause in plan or order does not extend jurisdiction beyond that permitted by statute) and In re J.T. Gerken Trucking, Inc. (no jurisdiction retained over enforcement of an assumed executory contract) with Matter of Hudson Feather & Down Products, Inc., 36 B.R. 466 (E.D.N.Y.1984) (plan’s retention of jurisdiction permits resolution of adversary proceeding, the proceeds of which will not go to creditors). However, it has long been recognized, without dispute, that the bankruptcy court’s jurisdiction continues post-confirmation: to protect its [confirmation] decree, to prevent interference with the execution of the" }, { "docid": "18842617", "title": "", "text": "court concluded, id. at 778, that “the court may expressly retain jurisdiction over the plan, during its consummation, under a provision of the plan itself or the order of confirmation.” In support of this conclusion, the court refers to 5 COLLIER, supra, fl 1142.01[1], at 1142-4 to 1142-5. Similarly, in In re Allied Technology, Inc., 25 B.R. 484, 499 (Bankr.S.D.Ohio 1982), the court concluded that § 1142 grants post-confirmation jurisdiction to bankruptcy courts and that “[t]he key document for determination of this Court’s post confirmation jurisdiction is ... the Plan itself, which is binding on all creditors.” The court in Allied Technology found that it had jurisdiction to resolve the post-confirmation dispute between the debtor and its lessor at issue therein because the plan specifically stated that it retained such jurisdiction. However, the court in Tri-L cautions, id. at 778, that a reservation of jurisdiction in the plan or confirmation order “beyond what is necessary to effectuate the plan of reorganization is beyond the power of the bankruptcy court.” See also Claybrook Drilling Co. v. Divanco, 336 F.2d 697, 700-01 (10th Cir.1964); Reese v. Beacon Hotel Corp., 149 F.2d 610, 611 (2d Cir.1945); In re Flatbush Ave.-Nevins St. Corp., 133 F.2d 760, 762 (2d Cir.1943); and Almarc, 94 B.R. at 365-66. In In re Hudson Feather & Down Products, Inc., 36 B.R. 466, 467-68 (E.D.N.Y.1984), the court held that where the confirmed plan of reorganization specifically provided that the bankruptcy court would retain jurisdiction over adversary proceedings pending at the time of confirmation, the bankruptcy court retained post-confirmation jurisdiction over a pending state court action. Other courts finding the reservation of jurisdiction clauses in the plan or confirmation order very persuasive on the issue of the bankruptcy court’s post confirmation jurisdiction are In re Tilco, Inc., 558 F.2d 1369 (10th Cir.1977); and In re J.M. Fields, Inc., 26 B.R. 852 (Bankr.S.D.N.Y.1983). See also In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir.1950), cert. denied sub nom. Pittsburgh Terminal Realization Corp. v. Heiner, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (when a debtor corporation has" }, { "docid": "18757167", "title": "", "text": "“apparent” inconsistency derives from appellant’s implicit assumption that if the plan for reorganization does not include a provision tailored to § 757(7), it may not include any provision at all for the retention of jurisdiction over an adversary proceeding. The statute, however, contains the word “may”, which ordinarily grants discretion; thus, subdivision 7 is an option, but hardly the only option for treating pending adversary proceedings in light of § 768. Additionally, appellant’s restrictive interpretation of these statutory provisions has been rejected. In re J.M. Fields, Inc., 26 B.R. 852 (Bkrtcy.S.D.N.Y.1983); see In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir.1950) (“Whether when a debtor corporation has been reorganized, the jurisdiction of the bankruptcy court is concluded depends upon the ‘provisions of the plan as confirmed and reservations, not inconsistent therewith, contained in the order of confirmation.’ ” (citations omitted)), cert, denied sub nom. Pittsburgh Terminal Realization Corp. v. Heiner, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re Tilco, Inc., 558 F.2d 1369, 1372 (10th Cir.1977) (“Reorganization courts have been permitted to retain jurisdiction after transfer of assets to assure the consummation of the approved plan, (citations omitted).”). There being no merit to appellant’s argument, the order of the bankruptcy court is affirmed. SO ORDERED. . Plaintiffs papers in the bankruptcy court aver that appellant was a creditor, a matter not addressed by appellant. If this averment is true, appellant should have had notice of the provision; yet it never objected. . Appellant also refers to authority concerning the rules of pendent jurisdiction. The exercise of such jurisdiction by federal courts is discretionary. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). On appeal appellant does not suggest that the bankruptcy court should have transferred the adversary proceeding to this court pursuant to Bankr.R.P. 915(b), although it recognized that possibility below: “In the absence of diversity of citizenship, it is urged that there is no basis not only for the Bankruptcy Court to retain jurisdiction, but also no basis to remand the case to the" }, { "docid": "13166280", "title": "", "text": "from the debtor, thereby terminating the estate’s existence, although the court has continued jurisdiction under section 1142 to oversee the plan’s execution. In the instant case Judge Brumbaugh correctly concluded: Since confirmation of a Chapter 11 plan has the dual effect of revesting the debt- or with title to its property and discharging the debtor from all dischargeable pre-petition debts, there can be no further application of the automatic stay subsequent to confirmation. The second argument by the debt- or involves the extent of jurisdiction granted to the bankruptcy courts under 28 U.S.C. § 1471(d). Judge Brumbaugh’s order acknowledged that provisions in the confirmation plan might have provided a jurisdictional basis for the bankruptcy court to entertain a motion to enjoin Sun Valley from proceeding with an eviction suit in state court. The order also states, however, that the plan did not preclude Sun Valley from going to state court to enforce a newly created post-petition obligation. This is exactly what Sun Valley did, and Paradise participated in litigating the issue over a four month period before raising the jurisdiction issue after receiving an unfavorable judgment. I agree with the bankruptcy court holding that “[t]he retained jurisdiction of this court to aid in the completion of the plan is not exclusive of the state courts’ jurisdiction to remedy violation of contracts entered into by the reorganized debtor.” Several other jurisdictions have made similar findings, including the District of Oklahoma which held that the statutory language of Section 1471 distinguishes between cases “under Title 11” which deal with the courts’ exclusive jurisdiction of bankruptcy cases in 1471(a), and “civil proceedings related to or arising in those cases” which deals with original but not exclusive jurisdiction in 1471(b). In re Unit Parts Co., 9 B.R. 386, 389 (D.C.D.Okl.1981); citing 1 Collier on Bankruptcy, 3-37. See also In re J.T. Gerken Trucking, Inc., 10 B.R. 203 (Bkrtcy.N.Y.1981), (bankruptcy court does not have jurisdiction over a controversy arising from the post confirmation breach of a contract adopted by the debtor in its plan of arrangement); In re Hawaii Mini-Storage Systems, Inc., 4 B.R. 489" }, { "docid": "14336480", "title": "", "text": "balanced these two concerns in various ways, see Matter of Coral Air, Inc., 40 B.R. 979 (D.V.I.1984) (jurisdiction retained); In re Paradise Valley Country Club, 26 B.R. 990 (Bankr.D.Colo.1983), aff'd, 31 B.R. 613 (D.Colo.1983) (concurrent jurisdiction with state court); In re J.T. Gerken Trucking, Inc., 10 B.R. 203 (Bankr.N.D.Ohio 1981) (jurisdiction denied), and differ on the significance of a reservation of jurisdiction clause in either the order of confirmation or the plan itself. Compare In re Tri-L Corp., 65 B.R. 774, 778 (Bankr.D.Utah 1986) (reservation clause in plan or order does not extend jurisdiction beyond that permitted by statute) and In re J.T. Gerken Trucking, Inc. (no jurisdiction retained over enforcement of an assumed executory contract) with Matter of Hudson Feather & Down Products, Inc., 36 B.R. 466 (E.D.N.Y.1984) (plan’s retention of jurisdiction permits resolution of adversary proceeding, the proceeds of which will not go to creditors). However, it has long been recognized, without dispute, that the bankruptcy court’s jurisdiction continues post-confirmation: to protect its [confirmation] decree, to prevent interference with the execution of the plan and to aid otherwise in its operation. In re Dilbert’s Quality Supermarkets, Inc., 368 F.2d 922, 924 (2d Cir.1966). Accord, e.g., In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir.1950), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re New York, N.H. & H.R. Co., 169 F.2d 337 (2nd Cir.1948), cert. denied, 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412 (1948); In re Lombard-Wall, Inc., 44 B.R. 928, 935 (Bankr.S.D.N.Y.1984), aff'd in relevant part, 48 B.R. 986 (S.D.N.Y. 1985). Whether emanating from the general power of courts to enforce their decrees, see generally 11 U.S.C. § 105(a); In re Timbers of Inwood Forest Assocs., Ltd., 808 F.2d 363, 373-74 (5th Cir.1987) (en banc), aff'd sub nom United Sav. Assoc. v. Timbers of Inwood Forest Assocs., Ltd., — U.S.-, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); In re Chinichian, 784 F.2d 1440, 1442-43 (9th Cir.1986), or from specific bankruptcy code sections such as 11 U.S.C. § 1112 (allowing for conversion or dismissal after confirmation), § 1127 (allowing" }, { "docid": "14336481", "title": "", "text": "plan and to aid otherwise in its operation. In re Dilbert’s Quality Supermarkets, Inc., 368 F.2d 922, 924 (2d Cir.1966). Accord, e.g., In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir.1950), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re New York, N.H. & H.R. Co., 169 F.2d 337 (2nd Cir.1948), cert. denied, 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412 (1948); In re Lombard-Wall, Inc., 44 B.R. 928, 935 (Bankr.S.D.N.Y.1984), aff'd in relevant part, 48 B.R. 986 (S.D.N.Y. 1985). Whether emanating from the general power of courts to enforce their decrees, see generally 11 U.S.C. § 105(a); In re Timbers of Inwood Forest Assocs., Ltd., 808 F.2d 363, 373-74 (5th Cir.1987) (en banc), aff'd sub nom United Sav. Assoc. v. Timbers of Inwood Forest Assocs., Ltd., — U.S.-, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); In re Chinichian, 784 F.2d 1440, 1442-43 (9th Cir.1986), or from specific bankruptcy code sections such as 11 U.S.C. § 1112 (allowing for conversion or dismissal after confirmation), § 1127 (allowing for plan modification after confirmation), § 1142 (allowing for plan enforcement post-confirmation), and § 1144 (allowing for revocation of confirmation), there exists a residue, albeit limited, of court authority over a confirmed chapter 11 case. See, e.g., Goodman v. Phillip R. Curtis Enterprises, Inc., 809 F.2d 228 (4th Cir.1987) (jurisdiction retained under § 1127); In re Harlow Properties, Inc., 56 B.R. 794 (B.A.P. 9th Cir.1985) (creditors may obtain specific performance against debtor pursuant to § 1142). B. The utilization of Bankr.Rule 2004 post-confirmation must be considered in the context of this limited court jurisdiction. The primary purpose of a 2004 examination “is to permit the trustee to quickly ascertain the extent and location of the estate’s assets.” Matter of Wilcher, 56 B.R. 428, 433 (Bankr.N.D.Ill.1985). As the Supreme Court noted in discussing former § 21(a) of the Bankruptcy Act, from which former Bank.Rule 205 and current Rule 2004 are, in part, derived: The object of the examination of the bankrupts and other witnesses to show the condition of the estate is to enable the court" }, { "docid": "1442442", "title": "", "text": "whether it be labeled an interest in realty or a “chattel real” as appellant urges. The foreclosure action seeks, under the subordination language of the lease, to extinguish the debtor’s interest. 2. The contention that adoption of the reorganization plan ousted the court of jurisdiction must be rejected. The reorganization court may retain jurisdiction of the debtor until the final decree. See generally 6A Collier Bankruptcy (14th ed. 1965) Sec. 11.13. By its order of August 25, 1964 the court expressly reserved jurisdiction “to hear and determine any and all questions as to the title to and possession of the assets and property vested or revested pursuant to this order, and the character and extent of such assets.” As indicated above, the lease, specifically confirmed by order of July 28, 1964, was an asset of the corporation in reorganization. 3. Under the circumstances of this case we hold that the court did not abuse its discretion in deciding to pass on the validity of the lease and mortgage claims. When reorganization has been completed and the new corporation is fully functioning as an economic unit, a court should not attempt to keep it indefinitely under the judicial wing. North Am. Car Corp. v. Peerless Weighing and Vending Mach. Corp., 143 F.2d 938, 940 (2d Cir. 1944). Here, however, the claimed default was during administration, on July 14, 1964 two weeks prior to affirmance of the lease. Jurisdiction was properly retained by the court to protect its decree, to prevent interference with the execution of the plan and to aid otherwise in its operation. Compare In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir. 1950), cert. denied 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654; In re New York, New Haven & Hartford RR Co., 169 F.2d 337, 340 (2d Cir.), cert. denied, Mulcahy v. New York, N. H. & H. R. Co., 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412 (1948). Much remained to be done before final decree could be entered — determination of intercompany claims, participation of classes of creditors, confirmation of other leases." }, { "docid": "18842618", "title": "", "text": "Divanco, 336 F.2d 697, 700-01 (10th Cir.1964); Reese v. Beacon Hotel Corp., 149 F.2d 610, 611 (2d Cir.1945); In re Flatbush Ave.-Nevins St. Corp., 133 F.2d 760, 762 (2d Cir.1943); and Almarc, 94 B.R. at 365-66. In In re Hudson Feather & Down Products, Inc., 36 B.R. 466, 467-68 (E.D.N.Y.1984), the court held that where the confirmed plan of reorganization specifically provided that the bankruptcy court would retain jurisdiction over adversary proceedings pending at the time of confirmation, the bankruptcy court retained post-confirmation jurisdiction over a pending state court action. Other courts finding the reservation of jurisdiction clauses in the plan or confirmation order very persuasive on the issue of the bankruptcy court’s post confirmation jurisdiction are In re Tilco, Inc., 558 F.2d 1369 (10th Cir.1977); and In re J.M. Fields, Inc., 26 B.R. 852 (Bankr.S.D.N.Y.1983). See also In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir.1950), cert. denied sub nom. Pittsburgh Terminal Realization Corp. v. Heiner, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (when a debtor corporation has been organized, whether the jurisdiction of the bankruptcy court is concluded depends upon the “provisions of the plan as confirmed and reservations, not inconsistent therewith, contained in the order of. confirmation”). But see Almarc, supra, 94 B.R. at 363, 365, 366 (parties cannot agree to confer jurisdiction upon a bankruptcy court which extends its otherwise appropriate range of subject matter; court holds that a plan provision that this court had jurisdiction of all service contracts made prior to or during proceedings, but that local state court or this federal district court had exclusive jurisdiction of post-petition service contracts required dismissal of a claim based on post-petition service agreement in this court). Section XI of the Debtor’s Plan retains jurisdiction for this court over several post-confirmation matters. We are not persuaded that the grant of jurisdiction contained in Section XI of the Plan extends to the issues raised by the Plaintiffs in their Complaint. Section XI, paragraph (a) of the Plan states that this court retains jurisdiction to “determine the allowance or dis-allowance of Claims and" }, { "docid": "12800954", "title": "", "text": "508 F.Supp. 578 (D.Kan.1981). Here, the plaintiff appears to be relying solely upon the pleadings and their documentary attachments. B. Just recently, in In re Cinderella Clothing Industries, Inc., 93 B.R. 373 (Bankr.E.D.Pa.1988) I had occasion to address the jurisdiction of bankruptcy courts post-confirmation until entry of the final decree, which occurs after the estate has been fully administered and which closes the case. See Bankr.Rule 3022. Bankruptcy courts retain jurisdiction over a chapter 11 case, after confirmation, to protect its [confirmation] decree, to prevent interference with the execution of the plan, and to aid otherwise in its operation. In re Dilbert’s Quality Supermarkets, Inc., 368 F.2d 922, 924 (2d Cir.1966). Accord, e.g., In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir.1950), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re New York, N.H. & H.R. Co., 169 F.2d 337 (2d Cir.1948), cert. denied, 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412 (1948); In re Lombard-Wall, Inc., 44 B.R. 928, 935 (Bankr.S.D.N.Y.1984), aff'd in relevant part, 48 B.R. 986 (S.D.N.Y.1985). Whether such jurisdiction would exist absent a provision in the confirmed plan or order of confirmation — that is, whether the failure of the plan proponent or the court to expressly note such retention of power would constitute a waiver of jurisdiction— is an issue not before me, as the instant confirmed plan expressly provided such jurisdiction. See generally, 5 Collier on Bankruptcy 111142.01[1] (15th ed. 1988). The converse, though, is raised by the defendant. Can a confirmed plan or confirmation order confer subject matter jurisdiction beyond that provided by federal statute? At least one court has held that a retention of jurisdiction clause found in a confirmed plan would justify bankruptcy court resolution of an adversary proceeding, pending at the time of confirmation, even though the outcome of the proceeding would have no effect upon the plan. Matter of Hudson Feather & Down Products, Inc., 36 B.R. 466 (E.D.N.Y.1984). Respectfully, I disagree with this holding. Bankruptcy courts, like other federal courts, possess limited jurisdiction, the outermost boundary of which is found" }, { "docid": "23219461", "title": "", "text": "evaluation cannot be found, to a legal certainty, to be less than jurisdictional amount), vacated on other grounds, 100 F.R.D. 336 (D.Mass.1983). Plaintiffs satisfy the prerequisites of diversity jurisdiction pursuant to 28 U.S.C. § 1332. 2. Bankruptcy Jurisdiction; Jurisdiction Retained Under Plan A post-confirmation bankruptcy court retains jurisdiction over matters concerning the implementation or execution of a confirmed plan. 11 U.S.C. § 1142 (1988); see Goodman v. Phillip R. Curtis Enterprises, Inc., 809 F.2d 228, 232 (4th Cir.1987) (court retains authority to implement confirmed plan); In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir.), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (court retains power to protect its decree and prevent interference with execution of plan). See also In re Johns-Manville Corp., 97 B.R. 174, 180 (Bankr.S.D.N.Y.1989) (jurisdiction of bankruptcy court “continues post-confirmation as to fundamental questions of interpretation and administration of a plan”). Section 1142 invokes the district court’s bankruptcy jurisdiction under the Federal Rules of Civil Procedure. See 28 U.S.C. § 1334 (1988); see also 28 U.S.C. § 157(d) (1988) (withdrawal of reference of case to bankruptcy court). In this case the Plan itself in Article X explicitly reserves the courts’ jurisdiction. See Plan § 10.1 at C-36, C-37; In re Johns-Manville Corp., 97 B.R. at 180. Several of the stated purposes appropriate for the invocation of jurisdiction pursuant to Article X apply to this equitable action, most significantly ensuring the feasibility and survival of the Plan itself. See, e.g., Plan § 10.1.L at C-37 (“To enter such orders as may be necessary or appropriate in aid of confirmation and to facilitate implementation of the Plan.”); Plan § 10.1.K, at C-37 (“To enforce all orders, judgments, injunctions and rulings entered in connection with the Cases”). In contrast with other judicial proceedings which end with the entry of a final judgment, a bankruptcy case does not clearly end at the point a plan of reorganization is confirmed. As the court in In re A.J. Mackay, 50 B.R. 756 (D.Utah 1985) stated: A bankruptcy proceeding where a chapter 11 reorganization plan is confirmed" }, { "docid": "18757166", "title": "", "text": "to the extent necessary, the plan of arrangement should be modified to divest the Court of its originally retained jurisdiction. If the Court should do otherwise, ‘it would smack of the tail wagging the dog to continue with a federal hearing of the state claim.’ McFadden [McFaddin] Express, Inc. v. Adley Corp., 346 F.2d 424, at 427 (2d Cir.1965).” Appellant’s Brief at 11 (emphasis added). This modification is premised upon repealed 11 U.S.C. § 757 (in pertinent part): “An arrangement within the meaning of this chapter may include — ... (7) provisions for retention of jurisdiction by the court until provisions of the arrangement, after its confirmation, have been performed; and (8) any other appropriate provisions not inconsistent with this chapter.” Appellant asserts that once the plan is confirmed and the arrangement consummated, retention of jurisdiction of an adversary proceeding is a provision inconsistent with the chapter, i.e., subdivision 7 quoted above. It is, however, perfectly consistent with repealed 11 U.S.C. § 768: “The court shall retain jurisdiction, if so provided in the arrangement.” This “apparent” inconsistency derives from appellant’s implicit assumption that if the plan for reorganization does not include a provision tailored to § 757(7), it may not include any provision at all for the retention of jurisdiction over an adversary proceeding. The statute, however, contains the word “may”, which ordinarily grants discretion; thus, subdivision 7 is an option, but hardly the only option for treating pending adversary proceedings in light of § 768. Additionally, appellant’s restrictive interpretation of these statutory provisions has been rejected. In re J.M. Fields, Inc., 26 B.R. 852 (Bkrtcy.S.D.N.Y.1983); see In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir.1950) (“Whether when a debtor corporation has been reorganized, the jurisdiction of the bankruptcy court is concluded depends upon the ‘provisions of the plan as confirmed and reservations, not inconsistent therewith, contained in the order of confirmation.’ ” (citations omitted)), cert, denied sub nom. Pittsburgh Terminal Realization Corp. v. Heiner, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re Tilco, Inc., 558 F.2d 1369, 1372 (10th Cir.1977) (“Reorganization courts" }, { "docid": "12800953", "title": "", "text": "This proposition is no less true for bankruptcy courts which, despite their expanded jurisdictional grant now found in 28 U.S.C. § 1334, remain courts of limited jurisdiction. See Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984); In re Chargit, Inc., 81 B.R. 243, 247 (Bankr.S.D.N.Y.1987). “The burden of establishing the requisite jurisdictional facts rests on the plaintiff as the party alleging their existence.” Lucas v. Gulf & Western Industries, Inc., 666 F.2d at 805. See also Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474 (9th Cir.1986); Dadzie on Behalf of Int’l Kal-Sakara Corp. v. Leslie, 550 F.Supp. 77 (E.D.Pa.1982). In presenting those facts necessary to establish jurisdiction, plaintiff is free to go outside the pleadings, see, e.g., Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc., 568 F.2d 1074 (5th Cir.1978), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 133 (1978), by utilizing discovery tools, and by submitting affidavits. See Satz v. ITT Financial Corp.; Midwest Elevator Systems, Inc. v. St. Paul Fire and Marine Ins. Co., 508 F.Supp. 578 (D.Kan.1981). Here, the plaintiff appears to be relying solely upon the pleadings and their documentary attachments. B. Just recently, in In re Cinderella Clothing Industries, Inc., 93 B.R. 373 (Bankr.E.D.Pa.1988) I had occasion to address the jurisdiction of bankruptcy courts post-confirmation until entry of the final decree, which occurs after the estate has been fully administered and which closes the case. See Bankr.Rule 3022. Bankruptcy courts retain jurisdiction over a chapter 11 case, after confirmation, to protect its [confirmation] decree, to prevent interference with the execution of the plan, and to aid otherwise in its operation. In re Dilbert’s Quality Supermarkets, Inc., 368 F.2d 922, 924 (2d Cir.1966). Accord, e.g., In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir.1950), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re New York, N.H. & H.R. Co., 169 F.2d 337 (2d Cir.1948), cert. denied, 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412 (1948); In re Lombard-Wall, Inc., 44 B.R. 928, 935 (Bankr.S.D.N.Y.1984), aff'd in relevant part, 48" }, { "docid": "1442443", "title": "", "text": "the new corporation is fully functioning as an economic unit, a court should not attempt to keep it indefinitely under the judicial wing. North Am. Car Corp. v. Peerless Weighing and Vending Mach. Corp., 143 F.2d 938, 940 (2d Cir. 1944). Here, however, the claimed default was during administration, on July 14, 1964 two weeks prior to affirmance of the lease. Jurisdiction was properly retained by the court to protect its decree, to prevent interference with the execution of the plan and to aid otherwise in its operation. Compare In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir. 1950), cert. denied 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654; In re New York, New Haven & Hartford RR Co., 169 F.2d 337, 340 (2d Cir.), cert. denied, Mulcahy v. New York, N. H. & H. R. Co., 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412 (1948). Much remained to be done before final decree could be entered — determination of intercompany claims, participation of classes of creditors, confirmation of other leases. The lease in question was essential to the functioning of the corporation in reorganization. Serious claims were made of irregularities in the purported creation and transfer of the mortgage liens, foreclosure of which might operate to frustrate a substantial portion of the plan of reorganization. The court was not unfamiliar with the tangled affairs of Zeckendorf and Webb & Knapp from its supervision of these bankruptcy proceedings, and the testimony before it here justified its refusal to permit the foreclosure to proceed in the state courts. Appellant has chosen not to attack the order on the merits, relying on the attack on jurisdiction. The record supports the court’s determination. The order appealed from is affirmed." }, { "docid": "18557656", "title": "", "text": "are doubtful that this Court has jurisdiction to adjudicate the merits of a dispute over the settlement agreement. In considering this question, we must apply the bankruptcy laws in effect prior to October 1, 1979. See § 403(a) Pub.L. No. 95-598, Title IV, Nov. 6, 1978, 92 Stat. 2683. In interpreting the provisions of the prior Bankruptcy Act, courts have laid down the general rule that, subsequent to confirmation of a plan, reorganization courts retain jurisdiction as specified in the plan or the order of confirmation of the plan. See, e. g., In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir., 1950). In the present case, article VIII of the amended Plan of Arrangement provides: “The Referee in Bankruptcy shall retain jurisdiction to allow or disallow any and all claims filed herein to which objections are filed by the Debtor.” The District Court ordered the plan confirmed in all respects on June 3, 1973. Because the settlement agreement arose not from his claim in the Chapter XI proceeding, but from a plenary action in the District Court, the Plan does not afford us jurisdiction to consider Matthews’ rights under the settlement agreement with debt- or. Accordingly, debtor’s motion to dismiss will be granted. . Although a judgment rendered in a prior action is usually asserted as res judicata in a subsequent action, debtor here contends that the District Court’s order dismissing Matthews’ cross-claim precludes us from considering his claim in the Chapter XI proceeding even though that claim was filed prior to the District Court’s order. It is immaterial, however, that the action in which the prior judgment is asserted as res judicata was commenced prior to rendition of the judgment or the action in which the judgment was rendered. See Williams v. Ward, 556 F.2d 1143, 1154 (2d Cir.), cert. dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977); Moore, supra, para. 0.405[1], at p. 627; Restatement of the Law of Judgments § 43 (1942)." }, { "docid": "1515768", "title": "", "text": "of the contracts. No hearing could be had without the reservation of jurisdiction. The power of the court to reserve jurisdiction must be determined. In Consolidated Gas Elec. L. & P. Co. v. United Rys. & Elec. Co., 4 Cir., 85 F.2d 799, the court disapproved a reorganization court’s attempt to retain jurisdiction over the issue of disaffirmance of an executory contract after confirmation of the reorganization plan. In so doing the court pointed out that the plan submitted to the creditors did not reserve the rejection issue. Ibid. at 803. The plan before us says that the court may authorize the Trustee to reject the executory gas contracts. The jurisdiction and power of the reorganization court must appear in the Bankruptcy Act. See e. g. Ruhter v. Internal Revenue Service, 10 Cir., 339 F.2d 575, 577, and O’Dell v. United States, 10 Cir., 326 F.2d 451, 455. Section 226 of the Act, 11 U.S.C. § 626, provides that property transferred in accordance with the plan shall be free and clear of claims of the debtor, the creditors, and stockholders “except such claims and interests as may otherwise be provided for in the plan or in the order confirming the plan or in the order directing or authorizing the transfer or retention of such property.” Thus the Act contemplates retention of jurisdiction in some circumstances. Reorganization courts have been permitted to retain jurisdiction after transfer of assets to assure the consummation of the approved plan. See e. g. In re Seminole Park and Fairgrounds, Inc., 5 Cir., 502 F.2d 1011, 1014; National City Bank of New York v. O’Connell, 2 Cir., 155 F.2d 329, 332, and In re George F. Nord Bldg. Corp., 7 Cir., 129 F.2d 173, 176, cert. denied Kausal v. 79th and Escanaba Corp., 317 U.S. 670, 63 S.Ct. 75, 87 L.Ed. 538. The retention by the bankruptcy court of jurisdiction over the reorganized debtor or its successor corporation depends on the particular facts. In re Pittsburgh Terminal Coal Corp., 3 Cir., 183 F.2d 520, 522, cert. denied 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654." }, { "docid": "23219460", "title": "", "text": "98 L.Ed.2d 647 (1988) (court has no affirmative obligation to question amount pled by plaintiffs absent some reason to make further inquiry). The district court charged with the instant case tried to conclusion scores of plaintiffs’ claims and has also assisted in many hundreds of settlements of asbestos cases. In addition, we have studied settlements and judgments in other courts, many of which are published, and have had available appropriate records of the Trust including settlements of tens of thousands of claimants. The courts take judicial notice of the fact that the value of every claim in the complaint can in good faith be said to exceed $50,000 for the purposes of pleading. The courts cannot find, to a legal certainty, that any of the claims of the class members are worth less than the statutory minimum. See In re A.H. Robins Co., 880 F.2d 709, 723 (4th Cir.), cert. denied, — U.S. -, 110 S.Ct. 377, 107 L.Ed.2d 362 (1989); Payton v. Abbott Labs, 83 F.R.D. 382, 395 (D.Mass.1979) (unliquidated claims subject to jury evaluation cannot be found, to a legal certainty, to be less than jurisdictional amount), vacated on other grounds, 100 F.R.D. 336 (D.Mass.1983). Plaintiffs satisfy the prerequisites of diversity jurisdiction pursuant to 28 U.S.C. § 1332. 2. Bankruptcy Jurisdiction; Jurisdiction Retained Under Plan A post-confirmation bankruptcy court retains jurisdiction over matters concerning the implementation or execution of a confirmed plan. 11 U.S.C. § 1142 (1988); see Goodman v. Phillip R. Curtis Enterprises, Inc., 809 F.2d 228, 232 (4th Cir.1987) (court retains authority to implement confirmed plan); In re Pittsburgh Terminal Coal Corp., 183 F.2d 520, 522 (3d Cir.), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (court retains power to protect its decree and prevent interference with execution of plan). See also In re Johns-Manville Corp., 97 B.R. 174, 180 (Bankr.S.D.N.Y.1989) (jurisdiction of bankruptcy court “continues post-confirmation as to fundamental questions of interpretation and administration of a plan”). Section 1142 invokes the district court’s bankruptcy jurisdiction under the Federal Rules of Civil Procedure. See 28 U.S.C. § 1334 (1988); see also 28" }, { "docid": "637364", "title": "", "text": "[F]ollowing a hearing on April 14, 1993 to consider ... whether or not this Chapter 11 case should be closed, and it appearing that all parties in interest in attendance at said hearing consented to the entry of this Order, it is ... ORDERED that the Chapter 11 case of the above-named Debtor is CLOSED. See Defendants' Memorandum Of Law In Support Of Their Motion To Dismiss, Exhibit F. . As one court stated: Theoretically, one may ask first whether there is an \"estate” after the confirmation of a Chapter 11 plan.... see also In re H. White Constr. Co., Inc., 92 B.R. 656, 659 (Bankr. W.D.La.1988) (cases hold estate terminates upon confirmation); In re Westholt Mfg., Inc., 20 B.R. 368, 372 (Bankr.D.Kan.1982) . .. (“At confirmation, all the property of the estate is vested in the debtor, thereby terminating the estate’s existence, although the court has continued jurisdiction under Section 1142 to oversee the plan’s execution.”). In re Mold Makers, Inc., 124 B.R. 766, 767 (Bankr.N.D.Ill.1990). . See also In re Dilbert's Quality Supermarkets, Inc., 368 F.2d 922, 924 (2d Cir.1966) (bankruptcy’s court’s jurisdiction continues post-confirmation to \"protect its confirmation decree, to prevent interference with the execution of the plan and to aid otherwise in its operation,” until entry of a final decree). Accord, In re Pittsburgh Terminal Coal Corp., 183 F.2d 520 (3d Cir.) (jurisdiction of bankruptcy court depends upon provisions of confirmed and reservations, not inconsistent therewith, contained in order of confirmation.”), cert. denied sub nom., Pittsburgh Terminal Realization Corp. v. Heiner, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); In re Greenley Energy Holdings, Inc., 110 B.R. 173, 185 (Bankr. E.D.Pa.1990) (jurisdiction retained to resolve patent ambiguities or disputes which affect operation of plan between interested parties). . Section 1142 provides in relevant part: (b) The court may direct the debtor and any other necessary party to execute or deliver or to join in the execution or delivery of any instrument required to effect a transfer of property dealt with by a confirmed plan, and to perform any other act, including the satisfaction of" }, { "docid": "1588211", "title": "", "text": "relief was sought on basis of a violation of the confirmed plan), or where resolution of the dispute turns on interpretation of the bankruptcy court’s orders. Bannister Bank & Trust v. City Management Company, (In re AmerEco Environmental Services, Inc.), 138 B.R. 590, 592 (Bankr.W.D.Mo.1992). Jurisdictional authority of a bankruptcy judge is sharply reduced following confirmation. Pettibone Corporation v. Easley, 935 F.2d 120,122 (7th Cir.1991) (jurisdiction lacking to consider stay annulment post-confirmation when that did not affect plan implementation). However, as found by many authorities, jurisdiction is retained to a limited extent post-confirmation to ensure that reorganization plans are implemented. See, e.g., Goodman v. Phillip R. Curtis Ent., 809 F.2d 228, 232 (4th Cir.1987) (Bankruptcy Code § 1142 “limits the authority of the court to matters concerning the implementation or execution of a confirmed plan”); Blair v. Finan (In re Elless Co., 174 F.2d 925, 929 (6th Cir.1949) (“In confirming a plan of reorganization, the court may only retain jurisdiction in order to protect its decree, to prevent interference with the execution of the plan, and to aid otherwise in its operation ...”); Chase Manhattan Bank v. Sultan Corp. (In re Sultan Corp.), 81 B.R. 599, 602 (9th Cir. BAP 1987) (“The confirmation of a Chapter 11 plan does not automatically terminate the jurisdiction of the bankruptcy court ... The court must retain some jurisdiction after confirmation to ensure that the plan is properly consummated.” (citations omitted)); General Motors Acceptance Corp. v. Fortner Oilfield Serv., Inc. (In re Fortner Oilfield Serv., Inc.), 49 B.R. 9, 10 (Bankr.N.D.Tex.1984) (“[T]he court maintains [post-confirmation] jurisdiction sufficient to oversee the execution of the plan ... However ... there are certain preeonfirmation incidences of jurisdiction that are lost or altered by the confirmation.” (citation omitted)); In re Morgan & Morgan, Inc., 24 B.R. 518, 521 (Bankr.S.D.N.Y.1982) (“The order of confirmation marked the commencement of the period when a debtor is weaned from dependence on the bankruptcy court’s injunctive powers so as to stand on its own feet with respect to postconfirmation matters.”); In re Westholt Mfg., Inc., 20 B.R. 368, 372 (Bankr.D.Kan.1982), aff'd sub. nom." } ]

[ { "docid": "22542804", "title": "", "text": "the State courts, and if the Federal officers need more, it belongs to Congress to provide the remedy in some mode authorized by the Constitution. 1 Kent, Com. (12th ed.) 340. Adjudged cases admit that the power of removal instead of the writ of error, as prescribed in the twenty-fifth section of the Judiciary Act, may also be exerted when the subject-matter of the suit is such as to bring the case within the first clause of the second section of the article describing the Federal judicial power. Frequent cases of the hind of a civil nature arise, and if they could not be transferred to the circuit courts by removal under proper regulations, it might often happen that the object intended to be accomplished by the appellate tribunal would be defeated. Appellate power in the cases mentioned in the provision before referred to is given in the Constitution, and it is left to Congress to enact the manner of its exercise. Curtis, Com., sect. 148 ; Martin v. Hunter's Lessee, 1 Wheat. 304, 349. Whether the appellate power is employed by removal or writ of error, the right and extent of jurisdiction is the same; and in both the extent is limited by the constitutional grant, and cannot be extended beyond cases in law and equity arising under the Constitution, the acts of Congress, and such treaties as are therein described. Legislative provision of a restricted character for the removal of civil causes from the State courts into the circuit courts was made by the Judiciary Act which was passed to organize our judicial' system. 1 Stat. 79. Since that many other acts of Congress have been passed upon the subject, by which the power in civil cases has been very much enlarged. Proceedings were also prescribed by a later act, not now in force, which authorized the officers appointed for the collection of the customs to remove any suit or prosecution commenced or pending against them in a State court, for acts done by them as such, officers or under color of their respective offices, into the Circuit" } ]

[ { "docid": "11486972", "title": "", "text": "may be made available. The Eleventh Amendment presents no bar to a suit by the United States against a state, United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). Congress can authorize a suit by the federal government on a private plaintiff’s behalf and it has done so in Title VII. See 42 U.S.C. § 2000e-5(f)(l). A suit by the United States against a state to recover back benefits on behalf of persons protected by a federal statute is permissible. Brennan v. State of Iowa, 494 F.2d 100, 104 (8th Cir. 1974); see Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966). Furthermore, although Congress did not suggest that jurisdiction over private actions under Title VII extends to state courts, it might have done so. State courts would have faced no constitutional barrier to granting the retrospective damage relief Congress authorized since they are free from the limitations of the Eleventh Amendment, which restrict only federal judicial power. We need not consider whether Congress could, consistently with the Tenth Amendment, compel a state to permit its citizens to enforce their Fourteenth Amendment rights against it in its courts except to note that under the Supremacy Clause and the general principle that state courts are co-equal partners with the federal courts in the enforcement of federal law, see Employees v. Department of Public Health and Welfare, 411 U.S. 279, 298, 93 S.Ct. 1614, 36 L.Ed.2d 251 (Marshall, J., concurring); Martin v. Hunter’s Lessee, 1 Wheat. 304, 339-40, 14 U.S. 304, 4 L.Ed. 97 (1816), state courts have been obligated to entertain congressionally-authorized private suits where state court jurisdiction extends to suits of the same character, see Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947). Thus there is no reason in this case to depart from the balance between the Eleventh Amendment and other constitutional interests which was most recently reaffirmed in Edelman. In any event it may not still be open to this court to accept plaintiffs’ invitation to disregard the Eleventh Amendment in" }, { "docid": "8670156", "title": "", "text": "consented to suits in its own courts did not waive its immunity against suits by its citizens in federal court seeking retrospective or monetary relief; and (3) the fact that state officials sought removal did not amount to a waiver of immunity. The following language of the Frances J. case, commencing at p. 341 of 19 F.3d and ending at the top of p. 342 explains its holding: We note that while our holding today is compelled by the text of § 1441(a), it is not without policy support. As the Supreme Court has taught from early in this Nation’s history — state courts are competent and capable to decide those federal questions that, as under § 1441(a), would not be removable to a federal forum. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816). Since the Constitution’s framers specifically chose to make the creations of lower federal courts optional, see U.S. Const. Art. Ill, had Congress decided not to exercise that option, state courts would necessarily act as the initial forum for the adjudication of nearly all federal questions. Today, as a general matter, state courts still have jurisdiction concurrent with that of lower federal courts to hear suits arising directly under federal law. See Stone v. Powell, 428 U.S. 465, 493 n. 35, 96 S.Ct. 3037, 3051 n. 35, 49 L.Ed.2d 1067 (1976). Since state courts have the power to adjudicate such federal questions, preventing a defendant from splitting a single case into two, one state and the other federal, furthers judicial economy. In any event, whatever the policy behind Congresses’ language in § 1441(a), when applying a statute “we assume that the statute’s operative words carry the plain meaning within their context.” Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 683 (7th Cir.1993); see also Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (“When the words of a statute are unambiguous, then, this first cannon is also the last: ‘judicial inquiry is complete.’ ”). As we read § 1441(a), a defendant cannot remove" }, { "docid": "23566777", "title": "", "text": "jurisdiction. See, e.g., Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078 (7th Cir.1987). In the end, the majority concludes that this “jurisdiction to determine jurisdiction” does not encompass “jurisdiction to de termine personal jurisdiction”; that a court without subject matter jurisdiction lacks the power to dismiss the case for lack of personal jurisdiction. As we have stated, there is no authority, either in the Constitution or the ease law, to support this conclusion. Ironically, if the district court lacked the power to dismiss for want of personal jurisdiction because it lacked (had not decided) subject matter jurisdiction, the dismissal would have no. binding effect on the state court. Yet binding effect is the premise of the majority’s invoking of federalism. B. Much is made here of the fact that this case was removed from state court. Indeed, the majority opinion attempts to limit itself to removal situations. It is presumed that removal is an affront to states’ interests and federalism. This argument fails to grasp the centrality of removal in our complex of state and federal courts. Removal jurisdiction is an integral part of our federalism, having been present since the Judiciary Act of 1789. Sec. 14, The Judiciary Act of 1789 (1 Stat. 73). Indeed, in the famous and early debate about the scope of federal jurisdiction in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816), both sides proceeded from the assumption that removal was a fundamental, and noncontroversial, aspect of our federalist judicial system. See id. at 348-51 (Story, J.); id. at 378 (Johnson, J., concurring). In 28 U.S.C. §§ 1331 & 1332, Congress allocated the concurrent jurisdiction of the federal and state courts. Congress has periodically expanded the scope of removal jurisdiction where it was believed necessary to afford federal defendants or interests a federal forum or otherwise to promote uniformity in federal law. See, e.g., 28 U.S.C. § 1443 (civil rights removal statute). Under this system, the statutory scheme is tilted toward adjudication of removable cases in federal court, for state proceedings may not go forward unless both" }, { "docid": "22423591", "title": "", "text": "as this one, or unless Congress could not have intended to do so when it enacted FIRREA, the district court erred in remanding this action to the state court. B. Article III Power to Create Jurisdiction in Federal District Courts. While it is black letter law that “Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution,” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 491, 103 S.Ct. 1962, 1970, 76 L.Ed.2d 81 (1983), the power of Congress to authorize removal of cases on appeal has been repeatedly affirmed. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349, 4 L.Ed. 97 (1816) (“Congress ... may authorize removal either before or after judgment.”); Gaines v. Fuentes, 92 U.S. 10, 18, 23 L.Ed. 524 (1876); Tennessee v. Davis, 100 U.S. 257, 269, 25 L.Ed. 648 (1880). Congress, however, has seldom chosen to exercise this power, and we must decide whether it has done so by enacting the FDIC removal statute. C. The FDIC Removal Statute. 1. History. Special considerations arise because § 1819 is a jurisdictional statute. Jurisdictional statutes must be interpreted with an eye towards history. The opponents would have us believe that adopting the FDIC’s view of § 1819 thoughtlessly and improvidently pushes “arising under” jurisdiction into a brave new world of expanded and uncontrollable growth, with no historical basis for this broadened approach. A review of the history of federal jurisdiction reveals that this statute does not carve out a new type of arising under jurisdiction never before seen. Rather, FIRREA returns us to an older version of arising under jurisdiction that existed until the early part of this century. In Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822, 6 L.Ed. 204 (1824), Justice Marshall expounded on the outer limits of Article III jurisdiction: “when a question to which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause.”" }, { "docid": "13737090", "title": "", "text": "coercive joinder of State even though State would be realigned as a plaintiff). . 792 F.Supp. 84. . 900 F.Supp. 26. . 792 F.Supp. at 86. . 900 F.Supp. at 30. . CA Mem. at 9. . See 134 U.S. at 19, 10 S.Ct. 504. . See id. at 12, 10 S.Ct. 504 (\"Any such power such as that of authorizing the federal judiciary to entertain suits by individuals against the states had been expressly disclaimed, and even resented, by the great defenders of the constitution while it was on its trial before the American people.”). . Martin v. Hunter’s Lessee, 1 Wheat. 304, 14 U.S. 304, 335, 4 L.Ed. 97 (1816). . Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, 470. . See Hunter’s Lessee, 14 U.S. at 347. . See id. at 348-49. . See Gordon v. Longest, 41 U.S. 97, 103, 16 Pet. 97, 10 L.Ed. 900 (1842). . Tennessee v. Davis, 100 U.S. 257, 265, 25 L.Ed. 648 (1879). . See generally, Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 56-69 (1928) (discussing judicial developments during the Reconstruction era); Michael G. Collins, The Unhappy History of Federal Question Removal, 71 Iowa L. Rev. 717, 727 (1986) (\"[M]any commentators now believe that the federal question provisions were added to removal legislation, not only to provide a congenial forum to enforce and give meaning to newly enacted federal legislation and the Civil War Amendments, but also to insure a federal haven at the trial level for burgeoning industrial, financial, and other 'entrepreneurial’ interests.”). . 100 U.S. 257, 25 L.Ed. 648. . Id. at 265-66. . Id. at 267. . Cf. Coeur d’Alene Tribe, 521 U.S. at 277, 117 S.Ct. 2028 (\"The course of our case law indicates the wisdom and necessity of considering, when determining the applicability of the Eleventh Amendment, the real affront to a State of allowing a suit to proceed.”). . See Lapides, 535 U.S. at 620, 122 S.Ct. 1640 (”[A]n interpretation of the Eleventh Amendment that finds waiver in" }, { "docid": "22423590", "title": "", "text": "that it did not and stated: “Had Congress intended to limit the removal, power of FSLIC to suits pending before a state trial court, it could have explicitly stated as much, as it did in ... 12 U.S.C. § 632....” Id. at 966. In the instant case, it is true, removal is sought from the state appellate court whereas in Savers no appeal had yet been filed. The significant factor, however, is that state appellate proceedings had not yet been exhausted when removal was effected. Accord Murray v. Ford Motor Company, 770 F.2d 461, 463 (5th Cir.1985) (per curiam); Butner v. Neustadter, 324 F.2d 783 (9th Cir.1963); Munsey v. Testworth Laboratories, Inc., 227 F.2d 902, 903 (6th Cir.1955) (per curiam). In FDIC v. Yancey Camp Development, 889 F.2d 647, 648 (5th Cir.1989), a case which was on appeal, we allowed removal and the district court set aside a default judgment. Therefore, unless Congress lacks the power under Article III of the United States Constitution to confer federal jurisdiction upon federal district courts in cases such as this one, or unless Congress could not have intended to do so when it enacted FIRREA, the district court erred in remanding this action to the state court. B. Article III Power to Create Jurisdiction in Federal District Courts. While it is black letter law that “Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution,” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 491, 103 S.Ct. 1962, 1970, 76 L.Ed.2d 81 (1983), the power of Congress to authorize removal of cases on appeal has been repeatedly affirmed. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349, 4 L.Ed. 97 (1816) (“Congress ... may authorize removal either before or after judgment.”); Gaines v. Fuentes, 92 U.S. 10, 18, 23 L.Ed. 524 (1876); Tennessee v. Davis, 100 U.S. 257, 269, 25 L.Ed. 648 (1880). Congress, however, has seldom chosen to exercise this power, and we must decide whether it has done so by enacting the FDIC removal statute. C. The FDIC Removal Statute. 1." }, { "docid": "16889980", "title": "", "text": "language of § 1442 closely resembles the FIRREA language granting removal powers to the FDIC and RTC and does not distinguish cases that have proceeded to judgment from cases that have not. There is no question of Congress’ power to grant this sort of removal jurisdiction, since Congress can grant federal removal jurisdiction over state court cases that are still on appeal, see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349, 4 L.Ed. 97 (1816); Gaines v. Fuentes, 92 U.S. 10, 18, 23 L.Ed. 524 (1876); Tennessee v. Davis, 100 U.S. 257, 269, 25 L.Ed. 648 (1880). As for the intent of Congress, the legislative history of § 1442 does not exclude and is in fact consistent with allowing post-judgment removals. The statute was first enacted in 1815 to help federal customs agents enforce federal trade embargos, and since then Congress has enacted several other versions of the federal officer removal statute to protect federal officials and policies from misapplication (and nonapplieation) in state courts. See. e.g., Act of March 3, 1863, ch. 80, 12 Stat. 755, 756 (1863); Act of May 11, 1866, ch. 80, 14 Stat. 446 (1866); Cong. Globe, 37th Cong., 3d Sess. 535-37 (1862). The most recent enactment, the 1996 amendment of § 1442, expanded removal jurisdiction by allowing agencies, and not only federal officers, to remove. Pub.L. 104-317,110 Stat. 3850 (1996). It appears, accordingly, that DOD’s removal of this action was lawful, and that the subject matter jurisdiction of this court has been properly invoked. Further, because the plaintiff has conceded vacation of the Superior Court’s order, this court is free to examine the issues presented by this case without regard to the strictures of Fed. R.Civ.P. 59(e) Background On June 14,1996, plaintiff obtained a judgment against defendant Willa Kynard in District of Columbia Superior Court for $5,210. Thereafter, plaintiff filed a writ of attachment in Superior Court for $5,222.74, the unsatisfied balance of the judgment plus costs, and served it on the Department of Defense (“DOD”), Kynard’s employer. DOD, relying upon § 5520a(j)(2) and its own regulations, notified plaintiff by letter dated" }, { "docid": "6827953", "title": "", "text": "(1975) (“service by mail without a return-receipt requirement complies with . . . due process”). . Appellants, who pleaded, inter alia, a conspiracy between appellees and Goodwin, see note 7 supra, take the position that discovery would reveal that appellees did have substantial contacts with the District of Columbia, Brief for Appellants at 10 and footnote, but that they were prevented from conducting discovery during the pendency of appellees’ motion to dismiss. Id. at 6. Since we do not accept appellees’ lack-of-contacts contention, we need not pass on this question. . Hansen v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). . McGee v. International Life Ins. Co., supra note 62, 355 U.S. at 222, 78 S.Ct. at 200, 2 L.Ed.2d at 225. Cf. Hansen v. Denckla, supra note 64, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298 (“it is essential [to state court or diversity jurisdiction] in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws”). . See Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8, 17 (1965). . U.S.Const, art. Ill § 1 provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court and in such inferi- or Courts as the Congress may from time to time ordain and establish.” . Compare Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576, 581 (1845), with Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330-331, 4 L.Ed. 97, 104 (1816). Compare J. Goebel, History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, 246-247 (1971), with 1 Records of the Federal Convention of 1787, 124-127 (M. Ferrand ed. 1966). See also Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 65-67 (1923). . United States v. Union" }, { "docid": "17019885", "title": "", "text": "Vas-Cath appealed, as authorized by 35 U.S.C. § 146, to the United States District Court for the District of Columbia. On the University’s motion that court transferred the case to the Western District of Missouri pursuant to 28 U.S.C. § 1406(a). In Missouri the University asserted Eleventh Amendment immunity from suit in federal court, and on this ground the district court granted the University’s motion to dismiss. DISCUSSION The Eleventh Amendment limits the judicial authority of the federal courts and bars unconsented suit against a state. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 268, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (a state cannot be sued in federal court without its consent); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (stating that “federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitution when establishing the judicial power of the United States.’ ”) (quoting Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). The entitlement of the University of Missouri to the constitutional immunity of the state is not disputed. Mo. Const. Article IX, § 9(a); Mo.Rev.Stat. § 172.020 (2000). Issues of Eleventh Amendment immunity receive plenary appellate review. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 30, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 348, 4 L.Ed. 97 (1816); Xechem Int’l, Inc. v. Univ. of Texas M.D. Anderson Cancer Center, 382 F.3d 1324, 1326-27 (Fed.Cir.2004). A The district court held that since there was not a waiver of immunity by the University, Vas-Cath’s suit must be dismissed on Eleventh Amendment grounds. The court relied on Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir.1994), wherein the court addressed the question of whether participation in contested proceedings before the Interior Board of Indian Appeals constituted a waiver by the winning tribe of tribal immunity as to the ensuing appeal by the losing tribe. The court held that the prevailing tribe" }, { "docid": "23566778", "title": "", "text": "of state and federal courts. Removal jurisdiction is an integral part of our federalism, having been present since the Judiciary Act of 1789. Sec. 14, The Judiciary Act of 1789 (1 Stat. 73). Indeed, in the famous and early debate about the scope of federal jurisdiction in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816), both sides proceeded from the assumption that removal was a fundamental, and noncontroversial, aspect of our federalist judicial system. See id. at 348-51 (Story, J.); id. at 378 (Johnson, J., concurring). In 28 U.S.C. §§ 1331 & 1332, Congress allocated the concurrent jurisdiction of the federal and state courts. Congress has periodically expanded the scope of removal jurisdiction where it was believed necessary to afford federal defendants or interests a federal forum or otherwise to promote uniformity in federal law. See, e.g., 28 U.S.C. § 1443 (civil rights removal statute). Under this system, the statutory scheme is tilted toward adjudication of removable cases in federal court, for state proceedings may not go forward unless both parties agree to forsake federal jurisdiction. Under 28 U.S.C. § 1441, defendants (unless they are local defendants) have the unilateral right to remove cases from the state courts. Similarly, if a plaintiff files a removable case in federal court, there is no corresponding statutory provision permitting the defendant to remand the case to state court. Accordingly, contrary to the position taken by the majority opinion, there is no substantive distinction between cases removed and those originally filed in federal court; both reflect a party’s choice not to proceed in state court. Neither situation represents a constitutional misallo-cation of power to federal courts at the expense of state courts. Absent bad-faith removal, a federal court’s decision to address a defect in personal jurisdiction before one in subject matter jurisdiction therefore does not somehow frustrate the plaintiffs choice of forum, for Congress explicitly limits the presumptive status of concurrent jurisdiction by defining a defendant’s right of removal. Its federal defenses aside, a defendant has a right equal to the plaintiff to invoke the jurisdiction of the federal" }, { "docid": "22705866", "title": "", "text": "Act of 1871, Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871), and Lynch v. Household Finance Corp., 405 U. S. 538, 545 n. 9. In addition to proposing the Thirteenth, Fourteenth, and Fifteenth Amendments, Congress; from 1866 to 1875 enacted the following civil rights legislation: Act of April 9, 1866, 14 Stat. 27; Act of May 31, 1870, 16 Stat. 140; Act of April 20, 1871, 17 Stat. 13; and Act of March 1, 1875, 18 Stat. 335. In 1875, Congress also passed the general federal-question provision, giving federal courts the power tq hear suits arising under Art. Ill, §2, of the Constitution. Act. of March 3, 1875, 18 Stat. 470. This is the predecessor of 28 U. S. C. § 1331. See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323 (1952); Note, 75 Yale L. J. 1007 (1966); F. Frankfurter & J, Landis, The Business of the Supreme. Court 65 (1928). As one commentator has put it: \"That statutory plan [of the Fourteenth Amendment and Acts of Congress to enforce it] did supply the means of vindicating those rights [of person and property] through the instrumentalities of the federal government... . . It did constitute the federal government the protector of the civil rights . . . .” TenBroek, at 185. See. also United States v. Price, 383 U. S. 787, 801 n. 9; K. Stampp, The Era of Reconstruction (1965). As Representative Shellabarger stated, the Civil Rights Act of 1871 “not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). And as Representative Hoar stated: “The principal danger that menaces us to-day is from the effort within the States to deprive considerable numbers of persons of the civil and equal rights which the General Government is endeavoring to" }, { "docid": "22705865", "title": "", "text": "no change.” H. R. Rep. No. 308, 80th Cong., 1st Sess., A181-182 (1947). Ibid. Cf. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 521 (dissenting opinion). See nn. 12, 13, 14, 15, 16, and 17, supra. See nn. 12, 13, and 17, supra. The federal courts have found that other Acts- of Congress that do not refer to § 2283 or to injunctions against state court proceedings nonetheless come within ' the “expressly authorized” language of the anti-injunction statute. See; e. g., Walling v. Black Diamond Coal Mining Co., 59 F. Supp. 348, 351 (WD Ky.) (the Fair Labor Standards Act); Okin v. SEC, 161 F. 2d 978, 980 (CA2) (the Public Utility Holding Company Act) ; Dilworth v. Riner, 343 F. 2d 226, 230 (CA5) (the 1964 Civil Rights Act); Studebaker Corp. v. Gittlin, 360 F. 2d 692 (CA2) (the Securities and Exchange Act). Cf. Baines v. City of Danville, 337 F. 2d 579 (CA4). See remarks of Representative Shellabarger, chairman of the House Select Committee which drafted the Civil Rights Act of 1871, Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871), and Lynch v. Household Finance Corp., 405 U. S. 538, 545 n. 9. In addition to proposing the Thirteenth, Fourteenth, and Fifteenth Amendments, Congress; from 1866 to 1875 enacted the following civil rights legislation: Act of April 9, 1866, 14 Stat. 27; Act of May 31, 1870, 16 Stat. 140; Act of April 20, 1871, 17 Stat. 13; and Act of March 1, 1875, 18 Stat. 335. In 1875, Congress also passed the general federal-question provision, giving federal courts the power tq hear suits arising under Art. Ill, §2, of the Constitution. Act. of March 3, 1875, 18 Stat. 470. This is the predecessor of 28 U. S. C. § 1331. See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323 (1952); Note, 75 Yale L. J. 1007 (1966); F. Frankfurter & J, Landis, The Business of the Supreme. Court 65 (1928). As one commentator has put it: \"That statutory plan [of the Fourteenth Amendment and Acts of" }, { "docid": "6827954", "title": "", "text": "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws”). . See Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8, 17 (1965). . U.S.Const, art. Ill § 1 provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court and in such inferi- or Courts as the Congress may from time to time ordain and establish.” . Compare Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576, 581 (1845), with Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330-331, 4 L.Ed. 97, 104 (1816). Compare J. Goebel, History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, 246-247 (1971), with 1 Records of the Federal Convention of 1787, 124-127 (M. Ferrand ed. 1966). See also Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 65-67 (1923). . United States v. Union Pac. R. R. Co., 98 U.S. (8 Otto) 569, 602-603, 25 L.Ed. 143, 150 (1878). Accord, Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339, 1342-1343 (1943); Cary v. Curtis, supra note 68, 44 U.S. at 245, 11 L.Ed. at 581. Cf. J. Goebel, supra note 68, at 247; 1 The Records of the Federal Convention of 1787, supra note 68, at 125. . See, e. g., Martin v. Hunter’s Lessee, supra note 68, 14 U.S. at 331, 4 L.Ed. at 104. The early drafts of what became Article III provided for “one or more” inferior federal courts, but that provision was stricken without apparent explanation. 1 Records of the Federal Convention of 1787, supra note 68, at 116. See J. Goebel, supra note 68, at 210 n. 68. Indeed, The Federalist No. 81 (A. Hamilton) 544 (P. Ford ed. 1898) proposed that Congress “divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one" }, { "docid": "12947616", "title": "", "text": "73 U.S. (6 Wall.) 247, 251, 18 L.Ed. 851 (1867); Michael G. Collins, The Unhappy History of Federal Question Removal, 71 Iowa L.Rev. 717, 720-21 (1986). The pre-1875 removal statutes are collected in Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 61-62 n. 22 (1927), and discussed in Stanley I. Kutler, Judicial Power and Reconstruction Politics 143-60, 168 (1968). . Although the 1863 Act provided for suit in federal court and did not mention state court, see Mercantile Nat’l Bank at Dallas v. Langdeau, 371 U.S. 555, 558-59, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), when Congress replaced the 1863 Act in 1864, section 57 of the Act provided for suit in either federal or state court: \" ‘[S]uits, actions and proceedings, against any association under this act, may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established; or in any state, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases....’ ” Id. at 568, 83 S.Ct. 520 (quoting 13 Stat. 116-17). . Federal law governs the amount of interest a national bank may charge, Marquette Nat’l Bank of Minneapolis v. First of Omaha Serv. Corp., 439 U.S. 299, 308, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), and provides the exclusive remedy for usury claims against a national bank, McCollum v. Hamilton Nat’l Bank of Chattanooga, 303 U.S. 245, 247, 58 S.Ct. 568, 82 L.Ed. 819 (1938); Evans v. Nat’l Bank of Savannah, 251 U.S. 108, 109, 40 S.Ct. 58, 64 L.Ed. 171 (1919); Farmers’ & Mechanics’ Nat’l Bank v. Dearing, 91 U.S. 29, 32, 23 L.Ed. 196 (1875). But this does not provide am answer to the complete preemption inquiry- — \" '[C]omplete preemption principally determines not whether state or federal law governs a particular claim, but rather whether that claim will, irrespective of how it is characterized by the complainant, [serve as the basis for federal question jurisdiction].’ ” BLAB T.V.," }, { "docid": "22679372", "title": "", "text": "Stat. 92, but it was repealed only a year later by § 1 of the Act of March 8, 1802, c. 8, 2 Stat. 132. An earlier version of the Judiciary Act of 1789, which died in committee, provided for jurisdiction in the federal courts “ ‘of all cases of federal jurisdiction, whether in law or equity above the value of five hundred dollars’...” Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 61 (1923). See generally Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, c. 1. “The history of the federal courts is woven into the history of the times. The factors in our national life which came in with reconstruction are the same factors which increased the business of the federal courts, enlarged their jurisdiction, modified and expanded their structure.” Frankfurter & Landis, supra, at 59; see also Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L. Q. 499, 507-511 (1928). The statute granted the district courts “original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority ...” Act of March 3, 1875, § 1, 18 Stat. 470. See generally Hart & Wechsler, The Federal Courts and the Federal System 727-733; Wright, Federal Courts § 17; Chadboum & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa. L. Rev. 639 (1942); Forrester, Federal Question Jurisdiction and Section 5, 18 Tulane L. Rev. 263 (1943); Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev. 362 (1942); Mishkin, The Federal “Question” in the District Courts, 53 Col. L. Rev. 157 (1953). “This development in the federal judiciary, which in the retrospect seems revolutionary, received hardly a contemporary comment.” Frankfurter & Landis, supra, at 65." }, { "docid": "12947615", "title": "", "text": "Bd., 463 U.S. at 10 n. 9, 103 S.Ct. 2841. However, since 1887, \"[f]or better or for worse ... a defendant may not remove a case to federal court unless the plaintiff s complaint establishes that the case 'arises under' federal law.” Id. at 10, 103 S.Ct. 2841. . Act of June 3, 1864, 13 Stat. 99 (repealing and superseding the similar Act of Feb. 25, 1863). The Act originally was titled \"An Act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,” but its title was changed in 1874 to \"The National Bank Act.” 12 U.S.C. § 38. . For instance, in the Act of March 3, 1863, 12 Stat. 755 (amended by the Act of May 11, 1866, 14 Stat. 46), Congress provided for a federal defense and provided the right of removal of civil or criminal actions arising out of acts committed under federal authority during the Civil War. See Mayor & Aldermen of City of Nashville v. Cooper, 73 U.S. (6 Wall.) 247, 251, 18 L.Ed. 851 (1867); Michael G. Collins, The Unhappy History of Federal Question Removal, 71 Iowa L.Rev. 717, 720-21 (1986). The pre-1875 removal statutes are collected in Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 61-62 n. 22 (1927), and discussed in Stanley I. Kutler, Judicial Power and Reconstruction Politics 143-60, 168 (1968). . Although the 1863 Act provided for suit in federal court and did not mention state court, see Mercantile Nat’l Bank at Dallas v. Langdeau, 371 U.S. 555, 558-59, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), when Congress replaced the 1863 Act in 1864, section 57 of the Act provided for suit in either federal or state court: \" ‘[S]uits, actions and proceedings, against any association under this act, may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established; or in any state, county, or municipal court in the county" }, { "docid": "12605687", "title": "", "text": "90 L.Ed. 499. Cases cited supra, note 15, and Ex parte Milligan, 1866, 4 Wall. 2, 18 L.Ed. 281, and Duncan v. Kahanamoku, 1946, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688. Wolfson, Americans Abroad and Habeas Corpus; The Trap Begins to Close, 10 Fed.Bar.J. 69 (1948). Bl.Comm. *9; Story, Constitution of the United States § 1614, 5th Ed. 1891. 3 Bl.Comm. *131, *133. U.S.Const. Art. 1, § 9, cl. 2. Marshall, Ch.J., in Ex parte Boll-man and Ex parte Swartwout, 1807, 4 Cranch 75, 93, 2 L.Ed. 554, 561. See Dobie, Habeas Corpus in the Federal Courts, 13 Va.L.Rev. 433, 441 (1927). Ableman v. Booth, 1859, 21 How. 506, 523, 16 L.Ed. 169, 176; Robb v. Connolly, 1884, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542. U.S.Const. Art. III, § 2, d. 1. U.S.Const. Art. III, § 1. Martin v. Hunter’s Lessee, 1816, 1 Wheat. 304, 4 L.Ed. 97; Story, Constitution of the United States §§ 1590-1597, 1702, 5th Ed. 1891. Ex parte Betz, 1916, 329 U.S. 672, 67 S.Ct. 39, 91 L.Ed. 593. if it were to be held that Congress failed to confer upon the inferior federal courts the full judicial power vested in those courts by the Constitution, and that the residuum not so conferred remains in the common law courts until its exercise by federal courts is authorized by the Congress (reasoning similar to that employed with reference to constitutional grants of legislative power), the United States District Court for the District of Columbia could issue the writ in cases falling within that classification. That court is not only a federal court but also has the full common law powers originally held by the courts of Maryland. Organic Act of 1801, §§ 3, 5, 2 Stat. 103, D.C.Code p. XXXIII (1940). Tarble’s Case, 1872, 13 Wall. 397, 20 L.Ed. 097. There are numerous other cases involving that problem. Discussion of this topic usually goes hack to the concurring opinion of Judge Cooley in Re Jackson, 1867, 15 Mich. 417, 433. McGowan v. Moody, 1903, 22 App. D.C. 148, rested upon the view that" }, { "docid": "13737091", "title": "", "text": "Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 56-69 (1928) (discussing judicial developments during the Reconstruction era); Michael G. Collins, The Unhappy History of Federal Question Removal, 71 Iowa L. Rev. 717, 727 (1986) (\"[M]any commentators now believe that the federal question provisions were added to removal legislation, not only to provide a congenial forum to enforce and give meaning to newly enacted federal legislation and the Civil War Amendments, but also to insure a federal haven at the trial level for burgeoning industrial, financial, and other 'entrepreneurial’ interests.”). . 100 U.S. 257, 25 L.Ed. 648. . Id. at 265-66. . Id. at 267. . Cf. Coeur d’Alene Tribe, 521 U.S. at 277, 117 S.Ct. 2028 (\"The course of our case law indicates the wisdom and necessity of considering, when determining the applicability of the Eleventh Amendment, the real affront to a State of allowing a suit to proceed.”). . See Lapides, 535 U.S. at 620, 122 S.Ct. 1640 (”[A]n interpretation of the Eleventh Amendment that finds waiver in the litigation context rests upon the Amendment’s presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of 'immunity' to achieve litigation advantages.”). . Hunter’s Lessee, 14 U.S. at 348. . Because I hold that sovereign immunity only applies to States as defendants, I do not address defendants' argument that the Sacramento District Attorney does not represent the People of the State of California." }, { "docid": "13737089", "title": "", "text": "plaintiff.”); Vermont v. Oncor Communications, Inc., 166 F.R.D. 313, 321 (D.Vt.1996) (\"It has long been the case that suits brought by a state against parties who are not other states may 'be brought in or removed to the [District Courts] ...\"') (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 101, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972)); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., No. 89-1983, 1989 WL 140217, at *1 (E.D.La. Nov. 9, 1989) (Eleventh Amendment inapplicable to removal of a suit filed by a state as a plaintiff); Banco y Agencia de Financiamiento v. Urbanizadora Villalba, 681 F.Supp. 981, 982-83 (D.P.R.1988) (holding that Eleventh Amendment does not bar removal). But see Moore v. Abbott Labs., Inc., 900 F.Supp. 26, 30 (S.D.Miss.1995) (finding that the court lacked federal subject matter jurisdiction because Mississippi did not consent to removal); Steelcase, 792 F.Supp. at 86 (Eleventh Amendment applies to case where the state is a plaintiff and the state's case is removed to federal court); cf. Thomas, 50 F.3d at 507 (Eleventh Amendment prohibits coercive joinder of State even though State would be realigned as a plaintiff). . 792 F.Supp. 84. . 900 F.Supp. 26. . 792 F.Supp. at 86. . 900 F.Supp. at 30. . CA Mem. at 9. . See 134 U.S. at 19, 10 S.Ct. 504. . See id. at 12, 10 S.Ct. 504 (\"Any such power such as that of authorizing the federal judiciary to entertain suits by individuals against the states had been expressly disclaimed, and even resented, by the great defenders of the constitution while it was on its trial before the American people.”). . Martin v. Hunter’s Lessee, 1 Wheat. 304, 14 U.S. 304, 335, 4 L.Ed. 97 (1816). . Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, 470. . See Hunter’s Lessee, 14 U.S. at 347. . See id. at 348-49. . See Gordon v. Longest, 41 U.S. 97, 103, 16 Pet. 97, 10 L.Ed. 900 (1842). . Tennessee v. Davis, 100 U.S. 257, 265, 25 L.Ed. 648 (1879). . See generally, Felix Frankfurter & James M." }, { "docid": "16889979", "title": "", "text": "The use of § 1442 to remove a case that has proceeded to judgment in state court is an untried practice and is the subject of no reported cases. Five courts of appeals have considered whether the special removal power granted to the RTC and FDIC by 12 U.S.C. §§ 1441 & 1819(b)(2) permits removal of state court cases in which final judgments have been entered at the trial level. All have decided in the affirmative. See Lester v. Resolution Trust Corp., 994 F.2d 1247 (7th Cir.1993); Resolution Trust Corp. v. Nernberg, 3 F.3d 62 (3d Cir.1993); Meyerland, 960 F.2d at 515-16; Ward v. Resolution Trust Corp., 972 F.2d 196 (8th Cir.1992); Jackson v. American Sav. Mortgage Corp., 924 F.2d 195 (11th Cir.1991). Those cases teach that, “[W]e must look to the plain language and meaning of [the removal statute], the Constitutional authority of Congress to grant this sort of removal jurisdiction, and whether there is any reason to think that Congress could not have intended this result.” Meyerland, 960 F.2d at 516. The plain language of § 1442 closely resembles the FIRREA language granting removal powers to the FDIC and RTC and does not distinguish cases that have proceeded to judgment from cases that have not. There is no question of Congress’ power to grant this sort of removal jurisdiction, since Congress can grant federal removal jurisdiction over state court cases that are still on appeal, see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349, 4 L.Ed. 97 (1816); Gaines v. Fuentes, 92 U.S. 10, 18, 23 L.Ed. 524 (1876); Tennessee v. Davis, 100 U.S. 257, 269, 25 L.Ed. 648 (1880). As for the intent of Congress, the legislative history of § 1442 does not exclude and is in fact consistent with allowing post-judgment removals. The statute was first enacted in 1815 to help federal customs agents enforce federal trade embargos, and since then Congress has enacted several other versions of the federal officer removal statute to protect federal officials and policies from misapplication (and nonapplieation) in state courts. See. e.g., Act of March 3, 1863, ch." } ]

[ { "docid": "16486712", "title": "", "text": "description of a “cooperative”; its officers and agents call it a “cooperative”; the complaint and several of plaintiff’s documents (which are now defendants’ exhibits) refer to Southeastern as a “cooperative”; and the court will do likewise. The remaining thirty-three defendants (“Bottlers”) are bottlers licensed by The Coca-Cola Company to bottle and sell its soft drink products. They own and operate bottling facilities for Coke and other soft drink products in North and South Carolina, Georgia, Virginia, Tennessee, and Alabama. Under their agreements with The Coca-Cola Company, the Bottlers have exclusive sales territories. By 1981, Sewell was supplying the defendant bottlers with over ninety percent of their plastic two-liter soft drink bottles. In 1981, those sales of soft drink bottles to defendants amounted to more than one hundred million bottles. In 1982, the bottler defendants organized Southeastern to make plastic bottles for them and they started purchasing most of their plastic bottles from Southeastern. Thereafter, through 1986, they bought only about seventeen percent (28.8 million dollars worth) of their bottle requirements from Sewell. Economic consequences in the relevant market of the bottle-making actions of defendants were dramatic. Prices for plastic bottles dropped to about half what they had been when Sewell had the regional bottle manufacturing market mostly to itself. Prices have remained low. The number of competitors in the market has remained the same, but market concentration has decreased. Some competitors have left the bottling business, and others have entered it. Consumers benefit from lower bottle prices. Production of plastic bottles has increased. Production processes have continued to become more efficient. Although some competitors may be making less profit, there has been no adverse effect on competition. “The antitrust laws ... were enacted for ‘the protection of competition, not competitors,' ” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962) (emphasis in original)). The court concludes that defendants are entitled to judgment as a matter of law and that the complaint should" } ]

[ { "docid": "16486713", "title": "", "text": "the relevant market of the bottle-making actions of defendants were dramatic. Prices for plastic bottles dropped to about half what they had been when Sewell had the regional bottle manufacturing market mostly to itself. Prices have remained low. The number of competitors in the market has remained the same, but market concentration has decreased. Some competitors have left the bottling business, and others have entered it. Consumers benefit from lower bottle prices. Production of plastic bottles has increased. Production processes have continued to become more efficient. Although some competitors may be making less profit, there has been no adverse effect on competition. “The antitrust laws ... were enacted for ‘the protection of competition, not competitors,' ” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962) (emphasis in original)). The court concludes that defendants are entitled to judgment as a matter of law and that the complaint should be dismissed. II. PROCEDURAL HISTORY Plaintiff filed the complaint on August 5, 1986. Docket No. 1. Sewell alleges that through continuing violations of federal antitrust laws and the North Carolina Unfair Trade Practices Act defendants have foreclosed Sewell “from effectively competing for a substantial portion of the market for the sale of [plastic beverage] bottles to soft drink bottlers within the southeastern United States.” Complaint para. 1. Specifically, Sewell claims that defendants have conspired to form and have formed a combination in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (1982); have attempted to monopolize and have monopolized a line of commerce in a distinct geographic market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (1982); have engaged in an exclusive dealing arrangement in violation of Section 3 of the Clayton Act, 15 U.S.C. § 14 (1982); have acquired stock with the effect of substantially lessening competition in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18 (1982 &" }, { "docid": "16486747", "title": "", "text": "plant in Clinton, Mississippi. Sewell Adm. 3.10. C. The Formation of Southeastern. According to plaintiffs internal memo-randa, in May and June, 1981, before the formation of Southeastern, representatives of South Atlantic Canners told Sewell that they wanted to discuss a self-manufacturing arrangement and/or group purchasing through a buying co-op in order to reduce packaging costs and better compete with Carolina Canners. DTX 678; DTX 706. In 1981, the bottler members of SAC decided to pursue the possibility of forming a plastic bottle manufacturing “cooperative” in order to produce bottles for themselves. DTX 1061. They formed Southeastern Container in 1982. The plant was constructed in Enka, North Carolina, that year and Southeastern began shipping bottles in October, 1982. Id. Southeastern sells plastic bottles to its owner-members. Southeastern does not supply containers to Pepsi or Royal Crown bottlers, or to purchasers of non-beverage containers. Sewell Adm. 17.1. Furthermore, “Southeastern does not sell to nonmember [Coke] bottlers nor does it allow its members to re-sell empty bottles to nonmember bottlers.” Plaintiff’s response, Tab 1 at 101 (citing PTX 2307; PTX 3339); Defendants Adm. 208. Plaintiff challenges several aspects of Southeastern’s formation and operation as violative of federal antitrust law. 1. Southeastern’s Supply Contracts. The parties agree that a plastic beverage bottle production plant requires some minimum amount of volume to justify the investment in plant and equipment. Plaintiff’s response, Tab 1 at 56. The parties dispute what minimum amount was necessary in 1982 to make self-manufacture economically viable and whether any one of the Bottlers could have engaged in self-manufacture alone. However, in deciding defendants’ motion for summary judgment, this dispute is not material. When Southeastern was formed in 1982, the stockholders invested $1.2 million of equity and guaranteed $6 million of debt. DTX 937, Exh. I. All of Southeastern’s members signed supply contracts under which they agreed to purchase 80% of their two-liter plastic bottle requirements for five years. Defendants Adm. 46. After the initial five-year period, the supply contracts allow cancellation “at any time by providing sixty (60) days written no-tice_” E.g., PTX 10,117. Some of the Bottlers signed the supply" }, { "docid": "16486765", "title": "", "text": "Docket No. 205 at 36-37), the court finds no reason to believe that Southeastern could overcome the “cat and dog” competition and charge a price above the competitive level. Plaintiff has consistently argued that defendants have engaged in a buyer price-fixing conspiracy, in which the object is to depress market prices below the competitive level through combined purchasing power. In the complaint plaintiff alleges that: 19. Sometime in 1981, a number of the bottler defendants, encouraged by Coke, sought to fix the price at which they purchased plastic beverage bottles at lower than free market prices. Those defendants attempted to coerce lower bottle prices from their major supplier, Sewell, by threatening Sewell that if it failed to meet their demands, they would form their own captive manufacturer, which would foreclose Sewell from competing from their business for the foreseeable future. 20. Sewell did not agree to the bottlers’ demands. True to their threats, the bottlers — assisted by defendant Coke and one or more persons affiliated with another Coke co-ooperative, Western Container of Texas — undertook the information of a collective manufacturing enterprise, which ultimately became Southeastern. The purpose and intent in forming Southeastern was to lock out Sewell and other plastic beverage bottle suppliers out of the Coke-bottler business in the areas where the bottlers were located. The complaint itself casts doubt on plaintiff’s theory that the Bottlers as a group of buyers possess market power, because it acknowledges that Sewell rejected the Bottlers’ requests for lower prices. Plaintiff now alleges that the Bottlers “successfully obtained lower-than-market price offers from Sewell through combined purchasing power” before the formation of “Southeastern.” Plaintiff’s response, Tab 1 at 122 (emphasis added). The evidence regarding two offers made by Sewell to the Bottlers does not support this allegation. First, there is evidence in the record that Sewell was charging at least one other customer, Atlantic Pepsi, less than it offered to charge the South Atlantic Canners group after the meeting at Litchfield Beach Inn on July 31, 1981. See Docket No. 224 at Addendum B (citations collected therein). Second, Sewell admits that in" }, { "docid": "16486762", "title": "", "text": "in Is Not Shown To Be a Material Element in the Case. Because the Coca-Cola bottlers sell products of The Coca-Cola Company in exclusive territories, the decision by a Coke bottler to sell its product in a certain type of package will necessarily deprive consumers in its territory of choice to buy Coke products in a different type of package. Sewell argues that by choosing to sell its products in the one-piece bottle manufactured by Southeastern, the Bottlers “forfeited the consumers’ indisputable preference for the two-piece bottle.” Plaintiff’s response, Tab 1 at 112. Although there is evidence that in some surveys consumers, other things being equal, preferred the two-piece bottle with a base cup to the one-piece “petaloid” design, there is no evidence that consumers prefer a two-piece bottle over a less expensive one-piece bottle. 9. Defendants Do Not Have “Market Power. ” Plaintiff does not allege that Southeastern has the ability to sell its bottles at prices above those that would be charged in a competitive market. Southeastern’s share of the Southeast area market was 33.5% in 1986. See Table 4. Since Southeastern seeks to produce bottles only for Coca-Cola bottlers (Sewell Adm. 17.1), and plaintiff contends that Southeastern already “controls virtually every Coca-Cola bottler within its market” (Plaintiff’s response, Tab 1 at 123), it seems unlikely that Southeastern will increase its market share materially in the future. According to Se-well’s economists, the Coca-Cola bottler defendants had a 40% share of the soft drink market in the Southeast area in 1986. PTX 14,107. Thus, if Southeastern began to supply 100% of those Bottlers’ requirements, its share of the plastic bottle market would only grow to approximately 40%. Even with a 40% market share, there is no evidence that Southeastern would be able to increase prices profitably above the competitive level. Sewell’s 1987 acquisition of Owens-Illinois gave Sewell a 39.2% share of the Southeast area market (based on 1986 data). See Table 4. Sewell’s president testified that competition from other suppliers would prevent Sewell from increasing prices as a result of the acquisition. Nickels dep. at 293-94. Thus, there is" }, { "docid": "16486854", "title": "", "text": "bottle and sell Coke products within a specific territory. Thus, on paper, the bottlers do not directly compete for sales to customers located within their exclusive territories. This territorial sales market division is not the subject of any of plaintiff’s legal claims. Prior to the formation of Southeastern in 1982, the bottlers were competitors or potential competitors with one another on the buying side of their business, in obtaining a supply of plastic bottles at the lowest cost, of the highest quality, and on the best terms from one or more suppliers such as plaintiff. In 1981, plaintiff supplied over 90% of the bottlers’ aggregate requirements for plastic bottles. Some of the bottler defendants had engaged in a joint venture known as South Atlantic Canners, Inc. (“SAC”) prior to 1982. SAC was a corporation which filled with soft drink products cans the bottlers purchased from merchant can suppliers. Based on information supplied by Coke, the bottlers who formed SAC and other bottlers considered the possibility of investing in a company to manufacture plastic bottles to supply their requirements, and formed Southeastern. Southeastern is wholly owned by the bottlers to whom it supplies plastic bottles. Employees of the bottlers and of Southeastern serve as Southeastern’s board of directors. In 1981, representatives of certain of the bottler defendants met with representatives of plaintiff. The bottlers’ representatives told plaintiff’s representatives that the bottlers would join together to manufacture their own bottles if plaintiff was unable to supply 2-lit bottles for $200 per thousand. This price was lower than any other price then being offered in the Southeast area. Before Southeastern was capable of making and delivering bottles, the bottlers entered into supply contracts with Southeastern. Under these contracts, the bottlers agreed to purchase 80% of their annual requirements for a five year period. The bottlers were obligated to accept Southeastern’s set price for the first year of the contract. After the first year, the contracts provided that the bottlers could purchase in excess of 20% of their requirements from another source only if they proved that two other suppliers offered lower prices over" }, { "docid": "16486761", "title": "", "text": "1807; DTX 1998. 6. Spending for Research and Development Does Not Appear to Have Been Substantially Affected. It is undisputed that certain companies have decreased research and development expenditures; they got out of the plastic bottle making business! Plaintiff’s response, Tab 1 at 108. However, the evidence does not support a finding that overall research and development expenditures have decreased or increased. Since Southeastern was formed, new bottle sizes and types have been introduced in the market and as discussed, supra, production processes have become more efficient. 7. Quality and Service Have Not Substantially Changed. There is evidence that Southeastern has at times experienced quality problems with its bottles. However, the evidence does not support a finding that overall quality or overall service in the market has declined since the formation of Southeastern. A Sewell internal document suggests that competition from cooperatives has provided an impetus for Sewell to improve the quality of its bottles. DTX 1763 at 2. 8. Choice of Consumers as to the Kind of Bottle They Like to Buy Their Coke in Is Not Shown To Be a Material Element in the Case. Because the Coca-Cola bottlers sell products of The Coca-Cola Company in exclusive territories, the decision by a Coke bottler to sell its product in a certain type of package will necessarily deprive consumers in its territory of choice to buy Coke products in a different type of package. Sewell argues that by choosing to sell its products in the one-piece bottle manufactured by Southeastern, the Bottlers “forfeited the consumers’ indisputable preference for the two-piece bottle.” Plaintiff’s response, Tab 1 at 112. Although there is evidence that in some surveys consumers, other things being equal, preferred the two-piece bottle with a base cup to the one-piece “petaloid” design, there is no evidence that consumers prefer a two-piece bottle over a less expensive one-piece bottle. 9. Defendants Do Not Have “Market Power. ” Plaintiff does not allege that Southeastern has the ability to sell its bottles at prices above those that would be charged in a competitive market. Southeastern’s share of the Southeast area market" }, { "docid": "16486764", "title": "", "text": "no reason to infer market power solely on the basis of Southeastern’s 1986 market share or its potential market share if it supplied all of the Bottlers’ requirements. This conclusion is reinforced by plaintiff’s argument that in 1981, when Sewell had a 50% market share and the Southeast area market was more concentrated, Sewell was forced to meet lower price offers made to its customers by other suppliers. Furthermore, there is no evidence that Southeastern could charge supracompetitive prices if it attempted to increase its market share by selling plastic bottles to bottlers other than Coke bottlers. During the March 22, 1989, reargument, plaintiff’s counsel admitted that since the formation of Southeastern, Sewell and the other competitors in the Southeast area market “fight like cats and dogs” on price, service and quality for the business of plastic bottle purchasers in the Southeast area other than the defendant Bottlers. Docket No. 205 at 40-41. Given the strength of Sewell and the other “major” players in the Southeast area market (such as Amoco and Johnson Controls, see Docket No. 205 at 36-37), the court finds no reason to believe that Southeastern could overcome the “cat and dog” competition and charge a price above the competitive level. Plaintiff has consistently argued that defendants have engaged in a buyer price-fixing conspiracy, in which the object is to depress market prices below the competitive level through combined purchasing power. In the complaint plaintiff alleges that: 19. Sometime in 1981, a number of the bottler defendants, encouraged by Coke, sought to fix the price at which they purchased plastic beverage bottles at lower than free market prices. Those defendants attempted to coerce lower bottle prices from their major supplier, Sewell, by threatening Sewell that if it failed to meet their demands, they would form their own captive manufacturer, which would foreclose Sewell from competing from their business for the foreseeable future. 20. Sewell did not agree to the bottlers’ demands. True to their threats, the bottlers — assisted by defendant Coke and one or more persons affiliated with another Coke co-ooperative, Western Container of Texas —" }, { "docid": "16486774", "title": "", "text": "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact. 477 U.S. at 323, 106 S.Ct. at 2553. The court concludes that defendants have met their initial burden of production under Rule 56. The Supreme Court, in another antitrust case, explained the next step in the summary judgment process. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ It follows from these settled principles that if the factual context renders respondents’ claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986) (citations and footnotes omitted). Sewell contends that defendants’ “purpose and intent in forming Southeastern was to lock Sewell and other plastic beverage bottle suppliers out of the Coke-bottler business in the areas where the bottlers were located.” Complaint para. 20. This claim makes no economic sense in the factual context of this case, because Sewell cannot explain how the Bottlers would benefit in a way prohibited by the antitrust laws (i.e., earning monopoly profits) by forming a corporation to manufacture plastic bottles for sale to themselves. Because the Bottlers’ profits ultimately derive from the sale of soft drinks packaged in plastic bottles, the Bottlers have no economic incentive to invest in a cooperative manufacturing enterprise and “lock" }, { "docid": "16486741", "title": "", "text": "Carolina, bottler in August 1977. PTX 6. Dorsey’s 1978 Annual Report referred to Sewell as the “dominant supplier of the PET 2 liter soft drink package in its marketplace.” DTX 2 at 3. “[Cjhoice of plant location has been an important competitive element in the [plastic bottle] industry: nearness to the customer [is] an advantage, as it [makes] service easier and [results] in lower freight charges.” Complaint para. 13. “Sewell’s ability to set up plant in locations where Sewell would be well-positioned to supply surrounding bottlers contributed to Se-well's success.” Plaintiff’s response, Tab 1 at 29. “Prior to October 1980, Sewell was the only company with a plant for manufacturing plastic beverage bottles physically located in North Carolina, South Carolina, or Virginia that was authorized to supply bottlers of Coca-Cola. (Sewell had no Virginia plant.) As of October 1980, however, there were other suppliers with manufacturing plants located outside North Carolina, South Carolina, and Virginia that were authorized to supply plastic beverage bottles to Coca-Cola bottlers, including bottlers located within those states; and in October 1980, Coca-Cola USA authorized Incon’s Columbia, SC, plant to supply plastic beverage bottles to bottlers of Coca-Cola. By 1981, Incon's plant in Clinton, NC, was authorized to supply bottlers of Coca-Cola. According to invoices produced by the bottler defendants, in 1981, with the exception of 15,984 two-liter bottles shipped by Owens-Illinois to Columbia Coke in May 1981, the only purchases of plastic bottles by bottler defendants located in North Carolina, South Carolina or Virginia were from Sewell or Incon.” Stip. A para. 15. By 1981, Sewell was the leading supplier in the Southeast area market, producing and selling just over 50% of the plastic bottles in the Southeast area. See Section III.D.3, infra. Sewell also was the leading supplier for the defendant Bottlers. “Based on bottler defendant records produced in this litigation, during calendar year 1981, Sewell sold more than 90% of the two-liter and half-liter plastic beverage bottles purchased by the bottler defendants in the aggregate.” Stip. A para. 5. The complaint alleges and the data compiled by the parties confirms that Sewell’s sales" }, { "docid": "16486763", "title": "", "text": "was 33.5% in 1986. See Table 4. Since Southeastern seeks to produce bottles only for Coca-Cola bottlers (Sewell Adm. 17.1), and plaintiff contends that Southeastern already “controls virtually every Coca-Cola bottler within its market” (Plaintiff’s response, Tab 1 at 123), it seems unlikely that Southeastern will increase its market share materially in the future. According to Se-well’s economists, the Coca-Cola bottler defendants had a 40% share of the soft drink market in the Southeast area in 1986. PTX 14,107. Thus, if Southeastern began to supply 100% of those Bottlers’ requirements, its share of the plastic bottle market would only grow to approximately 40%. Even with a 40% market share, there is no evidence that Southeastern would be able to increase prices profitably above the competitive level. Sewell’s 1987 acquisition of Owens-Illinois gave Sewell a 39.2% share of the Southeast area market (based on 1986 data). See Table 4. Sewell’s president testified that competition from other suppliers would prevent Sewell from increasing prices as a result of the acquisition. Nickels dep. at 293-94. Thus, there is no reason to infer market power solely on the basis of Southeastern’s 1986 market share or its potential market share if it supplied all of the Bottlers’ requirements. This conclusion is reinforced by plaintiff’s argument that in 1981, when Sewell had a 50% market share and the Southeast area market was more concentrated, Sewell was forced to meet lower price offers made to its customers by other suppliers. Furthermore, there is no evidence that Southeastern could charge supracompetitive prices if it attempted to increase its market share by selling plastic bottles to bottlers other than Coke bottlers. During the March 22, 1989, reargument, plaintiff’s counsel admitted that since the formation of Southeastern, Sewell and the other competitors in the Southeast area market “fight like cats and dogs” on price, service and quality for the business of plastic bottle purchasers in the Southeast area other than the defendant Bottlers. Docket No. 205 at 40-41. Given the strength of Sewell and the other “major” players in the Southeast area market (such as Amoco and Johnson Controls, see" }, { "docid": "16486745", "title": "", "text": "argument, plaintiff has submitted hundreds of “Competitive Price Requests” dated from July, 1979, to October, 1982. PTX 16,000-16,684. Although the evidence was not part of the summary judgment record as of March 28, 1989, what it shows is that there was substantial price competition in the Southeast area beginning in approximately 1980 which often caused Sewell to sell plastic bottles at prices lower than its list prices. B. Formation of Other “Cooperatives” By Soft Drink Bottlers. “South Atlantic Canners (SAC) is a corporation (sometimes called a ‘canning coop erative’) formed in or about 1975 by a group of Coca-Cola bottlers in or about the Southeast area. Several of the bottler defendants are, or have been, members of SAC.” Stip A. para. 11. SAC was formed “for the purpose of owning and operating an expensive, high-speed metal can filling line,” because “[n]one of its members then sold or now sell a sufficient number of filled metal cans to support the expense of buying and operating a can filling line.” Mizell Aff., September 24, 1987, at para. 2. By September 1987, there were eleven canning “cooperatives” operating in the Coca-Cola system. Woodlee Aff., September 14, 1987, at para. 5. Starting in or about 1980, before the formation of Southeastern, manufacturers of plastic bottle manufacturing equipment began encouraging bottlers to consider self-manufacture of plastic bottles. Sewell Coke Adm. 18.3. Pepsi-Cola bottlers such as the Pepsi bottler in Cranston, Rhode Island, and Carolina Packaging, the Pepsi plastic bottle manufacturing “cooperative” in Cheraw, South Carolina, began manufacturing plastic bottles for their use before any Coca-Cola bottlers did. Sewell Coke Adm. 15.3. Carolina Packaging was formed in late 1978 by Carolina Canners, Inc., a Pepsi canning “cooperative.” Mizell Aff., September 24, 1987, at para. 6. In 1979, Western Container, a plastic bottle manufacturing “cooperative” was formed in Big Spring, Texas, by Coca-Cola bottlers; several of these bottlers were members of Southwest Canners, a Coca-Cola bottler canning “cooperative.” Sewell Adm. 3.9. In late 1981 and early 1982, members of Gulf States Canners, another Coca-Cola bottler canning “cooperative,” formed a “cooperative” to manufacture plastic bottles at Gulf States’" }, { "docid": "16486794", "title": "", "text": "at 697. In Cargill, 479 U.S. 104, 107 S.Ct. 484, the Court held that in order to obtain in- junctive relief under § 16 of the Clayton Act, 15 U.S.C. § 26, a private plaintiff must show a threat of antitrust injury. In Car-gill, plaintiff, the country’s fifth largest beef packer, brought an action to enjoin the proposed merger of the second and third largest beef packers in the country. Plaintiff alleged that it was threatened with a loss of profits by the possibility that defendants, after the merger, would lower prices to a level at or above its costs in an attempt to increase market share. The Court held that “the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury.” Id. at 117, 107 S.Ct. at 493. Plaintiff now claims that from 1983 through 1986 it lost $20.7 million in profits due to the loss of $101.2 million in sales to the Bottlers. PTX 14,000. Assuming plaintiff could prove that defendants’ conduct violates one of the substantive provisions of the Sherman Act or the Clayton Act, plaintiff’s lost sales to the Bottlers would be causally linked to the “illegal” formation and operation of Southeastern. However, it does not follow that Sewell’s lost sales would have occurred by reason of that which made Southeastern’s formation and operation illegal. Brunswick, 429 U.S. at 488, 97 S.Ct. at 697 (“while respondents’ loss occurred ‘by reason of’ the unlawful acquisitions, it did not occur ‘by reason of’ that which made the acquisitions unlawful”). Plaintiff's counsel admits that this “is not in antitrust parlance a predatory pricing case.” Docket No. 218 at 138 (Trial Transcript, March 23, 1989). Sewell does not claim that its plastic bottle operations in the Southeast area have been unprofitable. Moreover, there is no evidence that if Southeastern had not been formed or that if it had been formed without the restraints challenged by Sewell, that Sewell would have retained the Bottlers’ business from 1983 through 1986. “Mindful that antitrust law aims to protect competition, not competitors, we" }, { "docid": "16486775", "title": "", "text": "if the factual context renders respondents’ claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986) (citations and footnotes omitted). Sewell contends that defendants’ “purpose and intent in forming Southeastern was to lock Sewell and other plastic beverage bottle suppliers out of the Coke-bottler business in the areas where the bottlers were located.” Complaint para. 20. This claim makes no economic sense in the factual context of this case, because Sewell cannot explain how the Bottlers would benefit in a way prohibited by the antitrust laws (i.e., earning monopoly profits) by forming a corporation to manufacture plastic bottles for sale to themselves. Because the Bottlers’ profits ultimately derive from the sale of soft drinks packaged in plastic bottles, the Bottlers have no economic incentive to invest in a cooperative manufacturing enterprise and “lock out” existing suppliers if that will raise the cost of an input such as the plastic bottle to themselves. Once the decision to invest is made, the Bottlers do have an economic incentive to cause their cooperative manufacturing enterprise to produce plastic bottles of the highest quality at the lowest possible price. As plaintiff points out, when Southeastern was formed it “used the same basic technology ... generally in use in the industry.” Plaintiff’s response, Tab 1 at 106. Thus, assuming that Southeastern would experience economies of scale similar to its competitors, one would expect Southeastern to be as efficient as its competitors and produce a bottle of the same or similar quality. Because Southeastern only sells bottles to its owner-members, there is no economic incentive for Southeastern to sell bottles at any price other than a price at or slightly above its total cost of production (including, for example, research and development expenditures). Selling at a price below cost would simply require the Bottlers to make capital contributions to Southeastern in the amount of" }, { "docid": "16486752", "title": "", "text": "Southeastern.” Docket No. 146 at 7 (May 6, 1988, order). A Sewell competitive information report, dated October 31, 1985, states that Carolina Packaging quoted delivered prices to its members in a mailing on October 23, 1985, and that “[f]reight costs are divided equally among the membership.” DTX 1787. 3. Southeastern’s Price Competition Clause. The Bottlers were obligated to accept Southeastern’s set price for the first year of their supply contract. After the first year, a member-bottler could purchase any percentage of its requirements elsewhere if it proved that two other suppliers offered lower prices over a six month period and Southeastern was unable to meet the aver age of the two lower prices within sixty-days. E.g., PTX 10,117. Sewell’s contracts normally required it to meet a lower price by a “reputable supplier” or allow the bottler to purchase elsewhere. However, by 1981, Sewell’s contracts began to exclude “inplant production, bottle co-op organization and self-manufacturing” from their definition of “reputable supplier.” Eg., DTX 3272 at 3. There is ample evidence from Sewell’s internal documents that it considered and pursued a strategy of offering pricing concessions to certain of the defendant Bottlers in order to make the “investment of self-manufacture unattractive” and prevent “South Atlantic Canners from obtaining the necessary volume to support machinery.” DTX 816. See also DTX 790; DTX 865. D. Competition Increased After Southeastern Was Formed. 1. Plastic Bottle Prices Decreased. Southeastern’s computer records reflect the following invoice prices for two-liter bottles (per thousand, delivered) to its member-bottlers from 1982 through 1986: October 1982 $220 March 1983 $210 April 1983 $205 June 1983 $195 September 1983 $190 April 1984 $170 January 1985 $166 May 1985 $156 May 1986 $146 Stipulation A, para. 1. Southeastern’s invoice prices are subject to year-end adjustments. Southeastern’s computer records reflect that Southeastern has never increased invoice prices (which are subject to year-end adjustment) in its history. Id. It is undisputed that: (1) Sewell’s prices in the Southeast area for two-liter bottles have declined from 1982 through 1986; (2) Sewell’s prices for three-liter and 16-ounce bottles have declined through 1986; and (3) prices of other" }, { "docid": "16486795", "title": "", "text": "violates one of the substantive provisions of the Sherman Act or the Clayton Act, plaintiff’s lost sales to the Bottlers would be causally linked to the “illegal” formation and operation of Southeastern. However, it does not follow that Sewell’s lost sales would have occurred by reason of that which made Southeastern’s formation and operation illegal. Brunswick, 429 U.S. at 488, 97 S.Ct. at 697 (“while respondents’ loss occurred ‘by reason of’ the unlawful acquisitions, it did not occur ‘by reason of’ that which made the acquisitions unlawful”). Plaintiff's counsel admits that this “is not in antitrust parlance a predatory pricing case.” Docket No. 218 at 138 (Trial Transcript, March 23, 1989). Sewell does not claim that its plastic bottle operations in the Southeast area have been unprofitable. Moreover, there is no evidence that if Southeastern had not been formed or that if it had been formed without the restraints challenged by Sewell, that Sewell would have retained the Bottlers’ business from 1983 through 1986. “Mindful that antitrust law aims to protect competition, not competitors, we must analyze the antitrust injury question from the viewpoint of the consumer.” Alberta Gas, 826 F.2d at 1241. Where, as here, the Bottlers and other consumers of plastic bottles in the Southeast area have benefitted from decreased, nonpredatory prices, to allow Se-well to recover treble damages for lost sales to the Bottlers would be to allow a windfall. Even if Sewell had set forth specific facts demonstrating an actual or probable adverse impact on competition, Sewell has failed to set forth specific facts demonstrating actual or threatened antitrust injury. Because Sewell would not be entitled to any relief, its federal claims should be dismissed. Under N.C.Gen.Stat. § 75-16, which establishes private causes of action and provides for treble damages, the North Carolina courts apply the standard of proximate cause articulated in federal antitrust cases. American Rockwool, Inc. v. Owens-Corning Fiberglas, 640 F.Supp. 1411, 1444 (E.D.N.C.1986) (citing North Carolina Pattern Jury Instructions — Civil § 813.70) Thus, plaintiff’s state law claims also should be dismissed for failure to prove antitrust injury. Y. EPILOGUE Judge J. Dickson" }, { "docid": "16486711", "title": "", "text": "MEMORANDUM OF DECISION McMILLAN, District Judge. I. SUMMARY OF DECISION Plaintiff Sewell Plastics, Inc. (“Sewell”) is a sizeable Delaware corporation headquartered in Atlanta, Georgia. Sewell is a wholly-owned subsidiary of Constar International, Inc., formerly known as The Dorsey Corporation. Sewell is the largest manufacturer of plastic soft drink bottles in the United States. Starting about 1977, Sewell was a pioneer in making plastic two-liter soft drink bottles from polyethylene terephthalate (“PET”). Defendant The Coca-Cola Company (“Coke”) is a sizeable Delaware corporation also headquartered in Atlanta, Georgia. It sells syrups and concentrates to licensed bottlers. Its licensees sell soft drink products to consumers under the names “Coke” and Coca-Cola and other trademarks owned by The Coca-Cola Company. The Coca-Cola Company has ownership interests in certain bottlers, one of which is also a defendant. Defendant Southeastern Container, Inc. (“Southeastern”), is a North Carolina corporation, owned by the defendant bottlers, which manufactures plastic soft drink bottles for sale to its owners. Although it is not organized as a cooperative association under North Carolina law, Southeastern fits the lay description of a “cooperative”; its officers and agents call it a “cooperative”; the complaint and several of plaintiff’s documents (which are now defendants’ exhibits) refer to Southeastern as a “cooperative”; and the court will do likewise. The remaining thirty-three defendants (“Bottlers”) are bottlers licensed by The Coca-Cola Company to bottle and sell its soft drink products. They own and operate bottling facilities for Coke and other soft drink products in North and South Carolina, Georgia, Virginia, Tennessee, and Alabama. Under their agreements with The Coca-Cola Company, the Bottlers have exclusive sales territories. By 1981, Sewell was supplying the defendant bottlers with over ninety percent of their plastic two-liter soft drink bottles. In 1981, those sales of soft drink bottles to defendants amounted to more than one hundred million bottles. In 1982, the bottler defendants organized Southeastern to make plastic bottles for them and they started purchasing most of their plastic bottles from Southeastern. Thereafter, through 1986, they bought only about seventeen percent (28.8 million dollars worth) of their bottle requirements from Sewell. Economic consequences in" }, { "docid": "16486748", "title": "", "text": "2307; PTX 3339); Defendants Adm. 208. Plaintiff challenges several aspects of Southeastern’s formation and operation as violative of federal antitrust law. 1. Southeastern’s Supply Contracts. The parties agree that a plastic beverage bottle production plant requires some minimum amount of volume to justify the investment in plant and equipment. Plaintiff’s response, Tab 1 at 56. The parties dispute what minimum amount was necessary in 1982 to make self-manufacture economically viable and whether any one of the Bottlers could have engaged in self-manufacture alone. However, in deciding defendants’ motion for summary judgment, this dispute is not material. When Southeastern was formed in 1982, the stockholders invested $1.2 million of equity and guaranteed $6 million of debt. DTX 937, Exh. I. All of Southeastern’s members signed supply contracts under which they agreed to purchase 80% of their two-liter plastic bottle requirements for five years. Defendants Adm. 46. After the initial five-year period, the supply contracts allow cancellation “at any time by providing sixty (60) days written no-tice_” E.g., PTX 10,117. Some of the Bottlers signed the supply contracts before Southeastern was capable of making and delivering bottles. Defendants Adm. 49. Long-term supply contracts for such a significant portion of a bottler’s requirements were common in the plastic bottle market prior to the formation of Southeastern. Between 1977 and 1981, the majority of Sewell’s plastic beverage bottles were sold pursuant to three-year and/or five-year supply contracts with its customers. Sewell Adm. 7.5. Between 1978 and 1982, Sewell entered into five-year supply contracts with more than 50 of its customers. Sewell Adm. 7.4. Amoco, Owens-Illinois, Hoover and Continental also have used three-year and/or five-year plastic beverage bottle supply contracts. Sewell Adm. 7.16. Plaintiff does not dispute that Western Container’s members entered into supply contracts with Western under which they agreed to purchase at least 80% of their two-liter plastic bottle requirements for ten years and that Southeastern used those contracts as models for its supply contracts. Plaintiff’s response, Tab 1 at 78. Sewell complains of efforts made by Southeastern to hold its members to their contractual agreement to purchase 80% of their requirements of" }, { "docid": "16486744", "title": "", "text": "liter bottles in a 6 pack of 200# test HSC carton with H-divider was “representative of Eastern markets.” DTX 612. Nevertheless, in November, 1980, several of the defendant Bottlers were paying Sewell’s list prices. DTX 614; DTX 608; Sewell Adm. 1.10. In 1977, Sewell earned net profits of $3,867,000. Sewell Adm. 1.11. In 1980, Sewell earned net profits of $35,689,000, an 823% increase over 1977. Sewell Adm. 1.12. In 1980, Sewell’s return on net operating assets was 42.2%. Sewell Adm. 1.13. Sewell’s profitability in 1980 was at least partly due to the fact that without major regional competition its prices remained well above its manufacturing costs. For example, while prices in November, 1980, were within the $275-$332 range discussed supra, Sewell’s true two liter manufacturing cost was only $210. DTX 612. Plaintiff argues that by 1980 the number of merchant suppliers had increased and, as a result of an oversupply of this product, merchant suppliers in the Southeast area engaged in substantial price competition. Plaintiff’s response, Tab 1 at 31, 37. In support of this argument, plaintiff has submitted hundreds of “Competitive Price Requests” dated from July, 1979, to October, 1982. PTX 16,000-16,684. Although the evidence was not part of the summary judgment record as of March 28, 1989, what it shows is that there was substantial price competition in the Southeast area beginning in approximately 1980 which often caused Sewell to sell plastic bottles at prices lower than its list prices. B. Formation of Other “Cooperatives” By Soft Drink Bottlers. “South Atlantic Canners (SAC) is a corporation (sometimes called a ‘canning coop erative’) formed in or about 1975 by a group of Coca-Cola bottlers in or about the Southeast area. Several of the bottler defendants are, or have been, members of SAC.” Stip A. para. 11. SAC was formed “for the purpose of owning and operating an expensive, high-speed metal can filling line,” because “[n]one of its members then sold or now sell a sufficient number of filled metal cans to support the expense of buying and operating a can filling line.” Mizell Aff., September 24, 1987, at para." }, { "docid": "16486760", "title": "", "text": "and (2) in Nielsen’s Southeastern United States market, the average price for two-liter Coca-Cola brands declined from $1.31 per bottle in 1982 to $1.24 in 1986. Plaintiffs response, Tab 1 at 102-03; DTX 302 at Tables 2.1, 4.2, 5.1. Although this decision does not depend upon a causal connection between the formation of Southeastern and lower soft drink prices, it is true that lower soft drink bottle prices facilitate lower retail soft drink prices. 5. Production Costs Have Decreased. Plaintiff states that “[production costs for plastic soft drink bottles were declining before Southeastern was formed.” Plaintiffs response, Tab 1 at 106 (citing PTX 14,120; O.J. Peacher aff. dated April 10, 1989, at ¶ 10). Production costs have continued to decline since Southeastern was formed. For example, Sewell’s standard cycle time for production of plastic bottles steadily decreased from 1977 through January, 1986. PTX 14,120, Table 7. Various Sewell internal documents state that Sewell must continue to reduce production costs in order to compete with cooperatives. E.g., DTX 1515; DTX 1694; DTX 1763; DTX 1796; DTX 1807; DTX 1998. 6. Spending for Research and Development Does Not Appear to Have Been Substantially Affected. It is undisputed that certain companies have decreased research and development expenditures; they got out of the plastic bottle making business! Plaintiff’s response, Tab 1 at 108. However, the evidence does not support a finding that overall research and development expenditures have decreased or increased. Since Southeastern was formed, new bottle sizes and types have been introduced in the market and as discussed, supra, production processes have become more efficient. 7. Quality and Service Have Not Substantially Changed. There is evidence that Southeastern has at times experienced quality problems with its bottles. However, the evidence does not support a finding that overall quality or overall service in the market has declined since the formation of Southeastern. A Sewell internal document suggests that competition from cooperatives has provided an impetus for Sewell to improve the quality of its bottles. DTX 1763 at 2. 8. Choice of Consumers as to the Kind of Bottle They Like to Buy Their Coke" }, { "docid": "16486746", "title": "", "text": "2. By September 1987, there were eleven canning “cooperatives” operating in the Coca-Cola system. Woodlee Aff., September 14, 1987, at para. 5. Starting in or about 1980, before the formation of Southeastern, manufacturers of plastic bottle manufacturing equipment began encouraging bottlers to consider self-manufacture of plastic bottles. Sewell Coke Adm. 18.3. Pepsi-Cola bottlers such as the Pepsi bottler in Cranston, Rhode Island, and Carolina Packaging, the Pepsi plastic bottle manufacturing “cooperative” in Cheraw, South Carolina, began manufacturing plastic bottles for their use before any Coca-Cola bottlers did. Sewell Coke Adm. 15.3. Carolina Packaging was formed in late 1978 by Carolina Canners, Inc., a Pepsi canning “cooperative.” Mizell Aff., September 24, 1987, at para. 6. In 1979, Western Container, a plastic bottle manufacturing “cooperative” was formed in Big Spring, Texas, by Coca-Cola bottlers; several of these bottlers were members of Southwest Canners, a Coca-Cola bottler canning “cooperative.” Sewell Adm. 3.9. In late 1981 and early 1982, members of Gulf States Canners, another Coca-Cola bottler canning “cooperative,” formed a “cooperative” to manufacture plastic bottles at Gulf States’ plant in Clinton, Mississippi. Sewell Adm. 3.10. C. The Formation of Southeastern. According to plaintiffs internal memo-randa, in May and June, 1981, before the formation of Southeastern, representatives of South Atlantic Canners told Sewell that they wanted to discuss a self-manufacturing arrangement and/or group purchasing through a buying co-op in order to reduce packaging costs and better compete with Carolina Canners. DTX 678; DTX 706. In 1981, the bottler members of SAC decided to pursue the possibility of forming a plastic bottle manufacturing “cooperative” in order to produce bottles for themselves. DTX 1061. They formed Southeastern Container in 1982. The plant was constructed in Enka, North Carolina, that year and Southeastern began shipping bottles in October, 1982. Id. Southeastern sells plastic bottles to its owner-members. Southeastern does not supply containers to Pepsi or Royal Crown bottlers, or to purchasers of non-beverage containers. Sewell Adm. 17.1. Furthermore, “Southeastern does not sell to nonmember [Coke] bottlers nor does it allow its members to re-sell empty bottles to nonmember bottlers.” Plaintiff’s response, Tab 1 at 101 (citing PTX" } ]

[ { "docid": "668948", "title": "", "text": "the designers or manufacturers would be amenable to process or otherwise liable to suit in any other nation of the world. On June 17, 1974, in arguing a motion to dismiss on the ground of forum non conveniens, counsel for McDonnell Douglas suggested that if the Court granted its motion in connection with a suit brought on behalf of an English decedent, McDonnell Douglas would agree to a condition that it consent to jurisdiction in England, without assurance that England would accept this attempt to confer jurisdiction. McDonnell Douglas refused to agree that it was or would be amenable to suit in every foreign country and state of the United States potentially involved. Clearly it is not compatible with American principles of justice and fairness that liability and damages should be determined in accordance with the whim or volition of a. defendant designer or manufacturer. Title 14, Code of Federal Regulations, Part 25, which deals with “Airworthiness Standards: Transport Category Airplanes,” alone has 365 sections dealing in hundreds of explicit details (among others, “Pressurized Cabin Loads”) concerning the requirements in the construction of an airplane before it can be certified as “airworthy.” The FAA recently issued an Air Directive to change the design of all wide-bodied jets in the interests of safety. Thus, it is clear that the United States interest in and control over the design, manufacture, and maintenance of all aircraft designed and manufactured in the United States are continuing concerns. The Court can take judicial notice that; The DC-10 plane was designed, constructed, manufactured, and tested in California; it is known throughout the world; it is in direct domestic, foreign, and international competition with wide-bodied jets manufactured abroad as well as with other American-made jets; McDonnell Douglas advertises that the DC-10 is sold to and used by 34 carriers, 25 of which are foreign; according to FAA statistics, there were 110 DC-10’s in service throughout the world on March 4, 1974; the airlines using the DC-10 fly into 83 countries or protectorates; 113 foreign cities are serviced by regularly scheduled flights of the DC-10. The number of" } ]

[ { "docid": "21164287", "title": "", "text": "of repose purposes. On the contrary, we are unaware of any federal regulation requiring a maintenance manual to be onboard the aircraft. A maintenance manual, unlike a flight manual, can be used on multiple (albeit identical model) aircraft, which signifies the possibility that a maintenance hangar or other similar facility may be the appropriate place to keep a maintenance manual. For example, the Federal Aviation Regulations expressly contemplate that carriers will arrange for independent contractors to perform maintenance: “A certificate holder may make arrangements with another person for the performance of any maintenance, preventive maintenance, or alterations.” 14 C.F.R. § 121.363(b). For these reasons, the district court’s reliance on the cases involving flight manuals is misplaced. Accordingly, we reject the district court’s conclusion, based on the line of case authority involving flight manuals, that a maintenance manual is part of the aircraft as a matter of law. Next, Colgan contends that the district court erroneously concluded that Federal Aviation Regulations support treating a maintenance manual and the Aircraft as a single, integrated product. The district court ruled that because “an aircraft’s maintenance manual is essential to maintaining an aircraft’s airworthiness” under the Federal Aviation Regulations, “an aircraft’s maintenance manual is analogous to an ‘on-off switch that must be turned on before the aircraft can be flown.” Colgan Air, Inc., 404 F.Supp.2d at 904. Although we agree federal regulations require aircraft operators to obtain airworthiness certificates before flying the aircraft, the airworthiness standards specifically contemplate and approve alternate methods to maintain the aircraft. Indeed, 14 C.F.R. § 43.13 (2007) provides: Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator .... (Emphasis added). Recognizing that a maintenance manual is an acceptable means of compliance, it is not the sole means by which an operator may obtain airworthiness. Therefore, because a maintenance manual is not “essential” to maintaining an aircraft’s airworthiness under the Federal" }, { "docid": "1064346", "title": "", "text": "congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Preemption may be express or implied. Morales, 504 U.S. at 383, 112 S.Ct. 2031. Under the implied preemption doctrines of field preemption and conflict preemption, a state claim is preempted where “Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme” or where “state law conflicts with federal law or interferes with the achievement of federal objectives.” Hodges, 44 F.3d at 335 n. 1. In the pending case, field preemption and conflict preemption are both applicable, because there exists a comprehensive scheme of federal regulation, and the imposition of state standards would conflict with federal law and interfere with federal objectives. The FAA not only authorizes but affirmatively directs the Administrator of the Federal Aviation Administration to promulgate air safety standards and regulations, including standards and regulations relating to aircraft design, aircraft maintenance and inspections, “the maximum hours or periods of service of airmen and other employees of air carriers,” and as a catchall provision, “other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a). The administrator is generally charged with carrying out the FAA “in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation.” Id. § 44701(c). Pursuant to its congressional charge to regulate air safety, the Federal Aviation Administration has issued a broad array of safety-related regulations codified in Title 14 of the Code of Federal Regulations. These regulations cover airworthiness standards, crew certification and medical standards, and aircraft operating requirements. The regulations include a general federal standard of care for aircraft operators, requiring that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” 14 C.F.R. § 91.13(a) (2003). There are a number of federal regulations governing the warnings and instructions which must be given to airline passengers. These regulations require, for example, that “no smoking” placards be placed in lavatories, id. §" }, { "docid": "19015522", "title": "", "text": "a class of turbine-powered, propeller-driven, executive transport airplanes designed and manufactured by defendant Beech. The majority of King Airs are flown by professional pilots, rather than owner-pilots. In its original complaint, Commander alleged, inter alia, that the wing structure was defective, not airworthy, did not conform to federal aviation regulations, and was in need of a substantial design modification. Because the Federal Aviation Administration (“FAA”) has primary jurisdiction over aircraft certification and airworthiness and aviation safety standards, the court ordered Commander to pursue an administrative determination from the FAA regarding the airworthiness of the King Air models in question. Commander filed a complaint with the FAA seeking a determination of whether the Beech wing design was defective and, if so, whether Commander’s proposed wing modification would remedy the defective condition and make the aircraft airworthy. On July 2, 1991, and April 2, 1992, the FAA issued opinions on the issues raised in Commander’s complaint. The April 2, 1992, FAA opinion dismissing Commander’s complaint provided, in pertinent part, as follows: The Beech wing design is not defective in terms of its structural strength so long as the airworthiness directives (ADs) are complied with and the aircraft is flown within its approved flight envelope---Over the life of the King Air aircraft the manufacturer has corrected problems such as stress corrosion of bolts, or manufacturing defects leading to cracking of Inconel nuts in the lower forward spar attachments, that might have had an effect on the integrity of the wing structure of each type of King Air. Some of these corrections have been made mandatory by the issuance of ADs by the FAA. None of the problems addressed by the manufacturer or by ADs are the result of inadequate design or strength testing of the wing structure. Commander sought review of the FAA’s dismissal of its complaint in the United States Court of Appeals for the District of Columbia Circuit. Commander argued that in determining that the aircraft were not “defective,” the FAA exceeded its authority in that it rendered a judgment on Commander’s common law claims. The court denied review, stating that" }, { "docid": "23198286", "title": "", "text": "of the aircraft.” 49 U.S.C. § 41112(a). Congress could not have intended to abolish a damage remedy for injury or death if it required airlines to maintain insurance coverage to recompense ■ injured persons. Furthermore, there is no federal remedy for personal injury or death caused by the operation or maintenance of aircraft to be found in the FAA itself. See In re Mexico City Air-crash, 708 F.2d 400, 408 (9th Cir.1983). We must conclude, therefore, that the insurance proceeds are to be available as a remedy under state or territorial law. See Elsworth v. Beech Aircraft Corp., 37 Cal.3d 540, 208 Cal.Rptr. 874, 691 P.2d 630, 634-35 (1984) (“[T]here is nothing inherently inconsistent in the proposition that even if the federal government has entirely occupied the field of regulating an activity a state may simultaneously grant damages for violation of such regulations.”) The Court in Silkwood recognized nevertheless that an inherently regulatory effect is created by a state law damage remedy. 464 U.S. at 258, 104 S.Ct. 615. Accord Cipollone, 505 U.S. at 521, 112 S.Ct. 2608; Cleveland, 985 F.2d at 1441. The Silkwood Court observed, however, that Congress had decided to “tolerate whatever tension there was” between finding the standard of care preempted and allowing state remedies, and that the “regulatory consequence [of an award of damages] was something that Congress was quite willing to accept.” 464 U.S. at 256, 104 S.Ct. 615. Similarly, with aviation safety, in light of the Silkwood decision, we cannot infer from Congress’s intent to federally preempt the standards of care, that Congress also intended to bar state and territorial tort remedies. See id. Indeed, as the Seventh Circuit Court of Appeals stated in Bieneman v. City of Chicago: The identity of common law damages and penalties for disobedience to substantive rules could lead to a conclusion that where a state is forbidden to alter the substantive rule, it is forbidden to award damages. Silkwood v. Kerr-McGee rejects this equation, however.... Notwithstanding the argument (indeed the truism) that an award of hefty compensatory and punitive damages is a method of regulating safety, the" }, { "docid": "13093183", "title": "", "text": "or property might be endangered by accidents resulting from unsafe aircraft or other unsafe flying conditions. We are satisfied that it is these persons and they alone who constitute “the class for whose especial benefit the safety provisions of the statute were enacted.” It does not follow, of course, that upon a violation of the Act or the regulations with respect to aircraft safety every potential passenger or crew member of the affected aircraft has an implied cause of action for damages under the Act. For an essential element of such a cause of action, express or implied, is injury resulting from such a statutory violation which has been inflicted upon the plaintiff in his capacity as a member of the protected class and which has caused him measurable damage. Consequently, potential victims of aircraft accidents which, had they occurred, might have been caused by someone’s failure to observe the Administrator’s safety regulations, cannot be the intended beneficiaries of an implied federal cause of action for damages under the Federal Aviation Act, whatever may be the case with the actual victims of such an accident when it does occur. Ac cordingly the plaintiffs cannot claim an implied federal remedy for damages under the Act based upon their membership in a class of potential aircrash victims who have not actually been victims of a crash and have, therefore, in fact suffered no injury. Actually the injury to the plaintiffs was of quite a different kind. It was incurred when they complied, as was their legal duty, with the Administrator’s airworthiness directive which required them as owners of an aircraft containing an altimeter manufactured by and supplied to them by the defendants to correct the defective condition of the altimeter or to limit the operation of their plane to daytime flying. Thus, the damages to the plaintiffs, which amounted to $75.00, were suffered solely in their capacity as the owners of an aircraft who were responsible under the Act and regulations to see to its airworthiness and who controlled its use, and not in their capacity as members of a class of" }, { "docid": "13093195", "title": "", "text": "have occurred as a result of a violation of the safety regulations may recover damages by way of an implied federal right of action under the Act is not an issue in this case and need not be decided here. For cases dealing with this issue see and compare In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732 (C.D.Cal.1975); Gabel v. Hughes Air Corp., 350 F.Supp. 612 (C.D.Cal.1972); Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761, 762 (N.D.Ohio 1929) with Rosdail v. Western Aviation, Inc., 297 F.Supp. 681, 683-684 (D.Colo.1969); Yelinek v. Worley, 284 F.Supp. 679, 681 (E.D.Va.1968); Moungey v. Brandt, 250 F.Supp. 445, 453 (W.D.Wis.1966); Porter v. Southeastern Aviation, Inc., 191 F.Supp. 42 (M.D.Tenn.1961); Moody v. McDaniel, 190 F.Supp. 24, 26 (N.D.Miss.1960); Mozingo v. Consolidated Construction Co., 171 F.Supp. 396, 398 (E.D.Va.1959). See also Note, The Applicability of Federal Common Law to Aviation Tort Litigation, 63 Geo.L.J. 1083 (1975) and The Case for a Federal Common Law of Aircraft Disaster Litigation: A Judicial Solution to a National Problem, 51 N.Y.U.L.R. 231 (1976). . The Administrator’s power to issue airworthiness directives derives from §§ 601 and 603 of the Act, 49 U.S.C.A. §§ 1421 and 1423. The aviation regulations provide that when an unsafe condition exists in an aircraft, aircraft engine, propeller or appliance which is likely to exist or develop in other aircraft products of the same design, the Administrator must issue an airworthiness directive. 14 C.F.R. § 39.1. The regulations further provide that “No person may operate a product to which an airworthiness directive applies except in accordance with the requirements of that airworthiness directive.” 14 C.F.R. § 39.3. . See, e. g., General Instrument Corp., etc. v. Pennsylvania Pressed Metals, Inc., 366 F.Supp. 139, 146-147 (M.D.Pa.1973), aff'd, 506 F.2d 1051 (3d Cir. 1974); Pennsylvania Uniform Commercial Code — Sales §§ 2-313, 2-314, 2- 315, 2-714, 2-715 and 2-721, 12A P.S. §§ 2-313, 2-314, 2-315, 2-714, 2-715 and 2-721. . See, e. g., Gatenby v. Altoona Aviation Corp., 407 F.2d 443, 446 (3d Cir. 1968). . See, e. g., Dennis v. Ford Motor" }, { "docid": "22721787", "title": "", "text": "consider whether the discretionary function exception immunizes from tort liability the FAA certification process involved in these cases. Respondents in No. 82-1349 argue that the CAA was negligent in issuing a type certificate for the Boeing 707 aircraft in 1958 because the lavatory trash receptacle did not satisfy applicable safety regulations. Similarly, respondents in No. 82-1350 claim negligence in the FAA’s issuance of a supplemental type certificate in 1965 for the DeHavilland Dove aircraft; they assert that the installation of the fuel line leading to the cabin heater violated FAA airworthiness standards. From the records in these cases there is no indication that either the Boeing 707 trash receptacle or the DeHavilland Dove cabin heater was actually inspected or reviewed by an FAA inspector or repre sentative. Brief for Respondent Varig Airlines in No. 82-1349, pp. 8, 15; Brief for United States 10, n. 10, and 37. Respondents thus argue in effect that the negligent failure of the FAA to inspect certain aspects of aircraft type design in the process of certification gives rise to a cause of action against the United States under the Act. The Government, on the other hand, urges that the basic responsibility for satisfying FAA air safety standards rests with the manufacturer, not with the FAA. The role of the FAA, the Government says, is merely to police the conduct of private individuals by monitoring their compliance with FAA regulations. According to the Government, the FAA accomplishes its monitoring function by means of a “spot-check” program designed to encourage manufacturers and operators to comply fully with minimum safety requirements. Such regulatory activity, the Government argues, is the sort of governmental conduct protected by the discretionary function exception to the Act. We agree that the discretionary function exception precludes a tort action based upon the conduct of the FAA in certificating these aircraft for use in commercial aviation. As noted supra, at 804, the Secretary of Transportation has the duty to promote safety in air transportation by promulgating reasonable rules and regulations governing the inspection, servicing, and overhaul of civil aircraft. 49 U. S. C. §" }, { "docid": "19015521", "title": "", "text": "MEMORANDUM AND ORDER EARL E. O’CONNOR, District Judge. This matter is before the court on the motion of plaintiff Commander Properties Corporation (“Commander”) for class action certification (Doc. #225) and the related motion by defendants Beech Aircraft Corporation (“Beech”) and Raytheon Company Corporation (“Raytheon”) to strike certain affidavits filed in support of Commander’s motion for certification (Doc. # 234). Commander seeks certification of its complaint as a class action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3). Defendants oppose class action certification. The parties have fully briefed the certification motion and the court held a hearing on the motion September 22, 1995. For the reasons set forth below, Commander’s motion for class action certification will be denied and defendants’ motion to strike will be granted in part. Factual Background On April 14, 1988, Commander filed the instant action individually, and on behalf of a class of others similarly situated, to recover alleged damages relating to the design of the wing structure of King Air aircraft models 90 and 100. “King Air” refers to a class of turbine-powered, propeller-driven, executive transport airplanes designed and manufactured by defendant Beech. The majority of King Airs are flown by professional pilots, rather than owner-pilots. In its original complaint, Commander alleged, inter alia, that the wing structure was defective, not airworthy, did not conform to federal aviation regulations, and was in need of a substantial design modification. Because the Federal Aviation Administration (“FAA”) has primary jurisdiction over aircraft certification and airworthiness and aviation safety standards, the court ordered Commander to pursue an administrative determination from the FAA regarding the airworthiness of the King Air models in question. Commander filed a complaint with the FAA seeking a determination of whether the Beech wing design was defective and, if so, whether Commander’s proposed wing modification would remedy the defective condition and make the aircraft airworthy. On July 2, 1991, and April 2, 1992, the FAA issued opinions on the issues raised in Commander’s complaint. The April 2, 1992, FAA opinion dismissing Commander’s complaint provided, in pertinent part, as follows: The Beech wing design is not" }, { "docid": "8995332", "title": "", "text": "however, that their “use of the term ‘aviation safety’ in Abdullah to describe the field preempted by federal law was [ ] limited to in-air safety.” Id. at 127. Thus, as the plaintiff in Elassaad was asserting common-law negligence claims regarding an injury he sustained while disembarking an airplane, the plaintiff could avail himself of common-law standards of care because the issue did not implicate the preempted field of in-air safety. Notably for purposes of the action sub judice, when distinguishing in-air safety and safety measures when disembarking an aircraft, the Court detailed in great length the sort of measures that are encompassed within in-air safety and thus are preempted. For example, the Court noted that the FAA directs the Aviation Administration to issue regulations to reduce or eliminate the possibility or recurrence of aircraft accidents. Further, in highlighting that “most of the regulations adopted pursuant to the [FAA] concern aspects of safety that are associated with flight”, the Court propounded as an example that “the regulations detail certification and ‘airworthiness’ requirements for aircraft parts.” Id. at 128. Thus, although Elassaad slightly narrowed the broad definition of the “field of aviation” that could be interpreted from Abdullah, it strongly, and perhaps explicitly, suggests that the manufacture of aircraft parts is nonetheless contained in this field and, thus, subject solely to federal standards of care. Notably, Elassaad was decided by the Third Circuit after the Supreme Court’s decision in Wyeth, which Plaintiff claims contradicts the Third Circuit’s field-preemption framework articulated in Abdullah. The Third Circuit declined to decide whether Wyeth has any effect on the holding in Abdullah because Abdullah did not apply to the facts of Elassaad. 3. Conclusion There is certainly not an absence of authority that agrees with Plaintiffs proffered interpretation of the law. Indeed, we find the logic therein alluring, and perceive the wisdom of the various decisions in other Circuits that have failed to find preemption in circumstances similar to the case at bar. Nonetheless, no matter how compelling their reasoning, those authorities are not controlling for our purposes as we must follow the state of" }, { "docid": "21164288", "title": "", "text": "court ruled that because “an aircraft’s maintenance manual is essential to maintaining an aircraft’s airworthiness” under the Federal Aviation Regulations, “an aircraft’s maintenance manual is analogous to an ‘on-off switch that must be turned on before the aircraft can be flown.” Colgan Air, Inc., 404 F.Supp.2d at 904. Although we agree federal regulations require aircraft operators to obtain airworthiness certificates before flying the aircraft, the airworthiness standards specifically contemplate and approve alternate methods to maintain the aircraft. Indeed, 14 C.F.R. § 43.13 (2007) provides: Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator .... (Emphasis added). Recognizing that a maintenance manual is an acceptable means of compliance, it is not the sole means by which an operator may obtain airworthiness. Therefore, because a maintenance manual is not “essential” to maintaining an aircraft’s airworthiness under the Federal Aviation Regulations, it follows that the federal regulations do not support a conclusion that, as a matter of law, a maintenance manual is a component of an aircraft, nor do the regulations indicate that the two constitute a single, integrated product as a matter of law. Finally, Colgan argues the district court erred in concluding that “it is immaterial whether Colgan received the maintenance manuals pursuant to a subscription it paid for ... or whether the particular manuals in issue were provided by Raytheon free of charge.” Colgan Air, Inc., 404 F.Supp.2d at 905. The record clearly demonstrates an issue of fact exists as to whether the maintenance manual was provided to Col-gan in connection with the Lease Agreement and other documents related to the Used Airliner Warranty. Specifically, the parties dispute the relationship between the maintenance manual and the Aircraft, including the temporal and financial circumstances under which Colgan acquired the manuals. As mentioned above, the parties disagree as to whether RAAS actually provided Colgan with a maintenance manual under the terms of the" }, { "docid": "14898566", "title": "", "text": "during a period of emergency, or in the interest of public safety.” We agree with the petitioners and amicus Northwest Airlines, however, that the government’s interpretation of Article 9(b) disregards the context of that provision and hence does not reflect its true meaning. Article 9 appears in Chapter II of the Convention — “Flight Over Territory of Contracting States” — while. Article 33 is in Chapter V — “Conditions to Be Fulfilled With Respect to Aircraft.” In addition, Article 9 is marginally annotated with the phrase “Prohibited Areas”. We think Article 9 is aimed at restricting the territorial access of all aircraft, rather than at restricting the movements of particular types of aircraft. Thus, Article 9(a) authorizes a permanent prohibition on flight over “certain areas” (strategically sensitive areas), while Article 9(b) permits a government, in “exceptional circumstances”, temporarily to restrict or prohibit “flying over the whole or any part of” that country’s territory. In short, Article 9 permits a country to safeguard its airspace when entry by all aircraft would be dangerous or intrusive because of conditions on the ground. Article 9 does not allow one country to ban landing and take-off because of doubts about the airworthiness of particular foreign aircraft, in derogation of Article 33. If doubts about airworthiness exist, one country may refuse to recognize another country’s certificate of airworthiness, but only if the certificating nation has not observed the minimum standards of airworthiness established in Annex 8 pursuant to Articles 33 and 37 of the Chicago Convention. As we have emphasized, the Administrator at no time ques tioned the foreign governments’ compliance with the minimum standards of airworthiness. B. The Bilateral Aviation Agreements The government further argues that a provision of the various bilateral aviation agreements authorized the FAA Administrator to take emergency action banning landings and take-offs in the United States by foreign-registered DC-10s. The standard form of bilateral air transport agreement used by the United States provides in Article 4 as follows: (1) Each Party may revoke, suspend or limit the operating authorizations or technical permissions of an airline designated by the other Party" }, { "docid": "19015524", "title": "", "text": "the FAA decided only whether the aircraft was properly certified and, thus, airworthy. Commander Properties, Inc. v. Federal Aviation Admin., 11 F.3d 204, 206 (D.C.Cir.1994) (as amended). The court said: In discussing the wing design, the FAA said not a word about the common law. Instead, the agency referred to its regula tions concerning testing for strength and load requirements and found that the aircraft was “airworthy” (complied with FAA standards), because the past problems had been corrected. Id. In a footnote to that statement, the court also said: The FAA referred to the aircraft’s current status, not to problems arising after initial certification. The FAA ultimately concluded that the aircraft is not defective ‘so long as Airworthiness Directives are complied with,’ which presumably means that compliance with the Airworthiness Directives was necessary to bring the aircraft up to the FAA standards. Id. at n. 3. The court concluded, “Whether Commander is correct that the Airworthiness Directives, increased inspections, and accident reports show that the wing design was ‘defective’ as a matter of tort law is not for us to say.” Id. at 206. Following the FAA and District of Columbia Circuit Court’s action, defendants filed a motion to dismiss, urging that the FAA had determined that the wing design was not defective. Because the FAA determination did not speak to the status of the King Air aircraft post-manufacture and pre-modification (pursuant to FAA ADs), we held that the FAA determination did not resolve plaintiffs claims and denied defendants’ motion to dismiss. This brings us to the instant motion for class action certification by Commander. The claims presently pursued by Commander differ significantly' from those originally brought. Commander now seeks to recover the cost of replacing the defective wing bolts, loss of use of the aircraft, and increased inspection costs. As has been true from the beginning, Commander does not claim any damages for personal injury as a result of the allegedly defective design. Commander’s present allegations are that Beech breached express state-of-the-art warranties and implied warranties of merchantability by selling the planes with the defective wing bolts and then" }, { "docid": "23198285", "title": "", "text": "has so completely occupied the field of safety, that state remedies are foreclosed, but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law.” Id. In the present case, we find no “irreconcilable conflict between federal and state standards.” Nor do we find that “imposition of a [territorial] standard in a damages action would frustrate the objectives of the federal law.” Quite to the contrary, it is evident in both the savings and the insurance clauses of the FAA that Congress found state damage remedies to be compatible with federal aviation safety standards. The savings clause provides that “a remedy under this part is in addition to any other remedies provided by law.” Clearly, Congress did not intend to prohibit state damage remedies by this language. Moreover, the insurance clause requires airlines to maintain liability insurance “for bodily injury to, or death of, an individual ... resulting from the operation or maintenance of the aircraft.” 49 U.S.C. § 41112(a). Congress could not have intended to abolish a damage remedy for injury or death if it required airlines to maintain insurance coverage to recompense ■ injured persons. Furthermore, there is no federal remedy for personal injury or death caused by the operation or maintenance of aircraft to be found in the FAA itself. See In re Mexico City Air-crash, 708 F.2d 400, 408 (9th Cir.1983). We must conclude, therefore, that the insurance proceeds are to be available as a remedy under state or territorial law. See Elsworth v. Beech Aircraft Corp., 37 Cal.3d 540, 208 Cal.Rptr. 874, 691 P.2d 630, 634-35 (1984) (“[T]here is nothing inherently inconsistent in the proposition that even if the federal government has entirely occupied the field of regulating an activity a state may simultaneously grant damages for violation of such regulations.”) The Court in Silkwood recognized nevertheless that an inherently regulatory effect is created by a state law damage remedy. 464 U.S. at 258, 104 S.Ct. 615. Accord Cipollone, 505 U.S. at 521," }, { "docid": "22721775", "title": "", "text": "or their representatives to determine an applicant’s compliance with minimum safety standards are generally the same as those employed for basic type certification. FAA Order 8110.4, Type Certification 32 (1967) (hereinafter FAA Order 8110.4); CAA Manual of Procedure, Flight Operations and Airworthiness, Type Certification § .5106(a) (1957) (hereinafter CAA Manual of Procedure). With fewer than 400 engineers, the FAA obviously cannot complete this elaborate compliance review process alone. Accordingly, 49 U. S. C. § 1355 authorizes the Secretary to delegate certain inspection and certification responsibilities to properly qualified private persons. By regulation, the Secretary has provided for the appointment of private individuals to serve as designated engineering representatives to assist in the FAA certification process. 14 CFR §183.29 (1984). These representatives are typically employees of aircraft manufacturers who possess detailed knowledge of an aircraft’s design based upon their day-to-day involvement in its development. See generally Improving Aircraft Safety 29-30. The representatives act as surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification. 14 CFR §183.1 (1984). In determining whether an aircraft complies with FAA regulations, they are guided by the same requirements, instructions, and procedures as FAA employees. FAA Order 8110.4, p. 151; CAA Manual of Procedure §.70(b). FAA employees may briefly review the reports and other data submitted by representatives before certificating a subject aircraft. Improving Aircraft Safety 31-32; FAA Order 8110.4, p. 159; CAA Manual of Procedure § .77. rH I — I I — I The Federal Tort Claims Act, 28 U. S. C. § 1346(b), authorizes suits against the United States for damages “for injury or loss of property, or personal injury or . death caused by the negligent or wrongful act or omis sion of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The Act further provides that the United States shall be liable with respect to tort claims “in the same manner" }, { "docid": "16843830", "title": "", "text": "junction box caused her husband’s death; and (2) the enforcement of the mandatory safety standard on conveyors had either created or enhanced the risk of injury from the defective junction box. This court, with Judge Bauer dissenting, found viable plaintiff’s second theory of recovery and rejected the government’s contention that the FTCA’s discretionary function exception, 28 U.S.C: § 2680(a), barred plaintiff’s claim. We determined that the discretionary function exception erects no immunological barrier to governmental liability for conduct that consists of “merely implementing and enforcing mandatory regulations.” Hylin, 715 F.2d at 1213. Accordingly, we held the exception inapplicable to the MESA inspectors’ issuance of the order to decedent’s employer to abate the violation of the mandatory safety standard on conveyors, compliance with which negligently enhanced the risk of harm from the defective electrical junction box. Aided by the parties’ Circuit Rule 19 statements, we now must reconsider this holding in light of the Supreme Court’s recent general discussion of the parameters of the discretionary function exception, gleaning guidance from the Court’s application of the exception to the specifics of Varig Airlines. I. Our starting point is the general principle expounded in Varig Airlines: the discretionary function exception “was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.” Varig Airlines, 104 S.Ct. at 2765. At issue in Varig Airlines was the Federal Aviation Administration’s procedure for certificating aircraft for use in commercial aviation. Plaintiffs sought to impose liability upon the government for the FAA’s allegedly negligent failure to inspect certain elements of aircraft type design before certificating the aircraft. Under the Act, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator; the FAA’s duty consists solely of policing compliance with FAA safety regulations, a responsibility it has decided, in its discretion, to fulfill through implementation of a “spot check” program. The manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with FAA regulations. “Spot checks”" }, { "docid": "14898567", "title": "", "text": "of conditions on the ground. Article 9 does not allow one country to ban landing and take-off because of doubts about the airworthiness of particular foreign aircraft, in derogation of Article 33. If doubts about airworthiness exist, one country may refuse to recognize another country’s certificate of airworthiness, but only if the certificating nation has not observed the minimum standards of airworthiness established in Annex 8 pursuant to Articles 33 and 37 of the Chicago Convention. As we have emphasized, the Administrator at no time ques tioned the foreign governments’ compliance with the minimum standards of airworthiness. B. The Bilateral Aviation Agreements The government further argues that a provision of the various bilateral aviation agreements authorized the FAA Administrator to take emergency action banning landings and take-offs in the United States by foreign-registered DC-10s. The standard form of bilateral air transport agreement used by the United States provides in Article 4 as follows: (1) Each Party may revoke, suspend or limit the operating authorizations or technical permissions of an airline designated by the other Party where: (a) substantial ownership and effective control of that airline are not vested in the other Party or the other Party’s nationals; (b) that airline has failed to comply with the laws and regulations referred to in Article 5 of this Agreement [Application of Laws]; or (c) the other Party is not maintaining and administering the Standards as set forth in Article 6 ... [Safety and Airworthiness]. (2) Unless immediate action is essential to prevent further non-compliance with subparagraphs (l)(b) or (l)(c) of this Article, the rights established by this article shall be exercised only after consultation with the other Party. (J.A. 118) See also Article 5, Bermuda II, supra n.7. We agree that this provision allows the United States to take immediate action, without consultations, if such action is necessary to prevent further non-compliance with U.S. laws and regulations (sub-paragraph (l)(b)) or with the applicable airworthiness standards (subparagraph (l)(c)). However this provision cannot help the Administrator here, for the reason that none of these alleged justifications for revoking, suspending or limiting operating authorizations was" }, { "docid": "16843831", "title": "", "text": "to the specifics of Varig Airlines. I. Our starting point is the general principle expounded in Varig Airlines: the discretionary function exception “was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.” Varig Airlines, 104 S.Ct. at 2765. At issue in Varig Airlines was the Federal Aviation Administration’s procedure for certificating aircraft for use in commercial aviation. Plaintiffs sought to impose liability upon the government for the FAA’s allegedly negligent failure to inspect certain elements of aircraft type design before certificating the aircraft. Under the Act, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator; the FAA’s duty consists solely of policing compliance with FAA safety regulations, a responsibility it has decided, in its discretion, to fulfill through implementation of a “spot check” program. The manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with FAA regulations. “Spot checks” of the manufacturer’s work to ascertain that the design complies with minimum airworthiness requirements are then conducted. Encompassed in plaintiffs’ contention that the FAA was negligent in failing to inspect certain elements of aircraft design were challenges to the FAA’s decision to implement the “spot check” system of compliance review and the application of that system to the aircraft involved. The Court found both challenges barred by the discretionary function exception. When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind____ Here, the FAA has determined that a program of “spot-checking” manufacturers’ compli-anee with minimum safety standards best accommodates the goal of air transportation safety and the reality of finite agency resources. jjt * s}c sfc * % It follows that the acts of FAA employees in executing the “spot-check” program in accordance with agency directives are protected by the discretionary function exception as well____ The FAA employees who conducted compliance reviews of the aircraft involved in" }, { "docid": "19015523", "title": "", "text": "defective in terms of its structural strength so long as the airworthiness directives (ADs) are complied with and the aircraft is flown within its approved flight envelope---Over the life of the King Air aircraft the manufacturer has corrected problems such as stress corrosion of bolts, or manufacturing defects leading to cracking of Inconel nuts in the lower forward spar attachments, that might have had an effect on the integrity of the wing structure of each type of King Air. Some of these corrections have been made mandatory by the issuance of ADs by the FAA. None of the problems addressed by the manufacturer or by ADs are the result of inadequate design or strength testing of the wing structure. Commander sought review of the FAA’s dismissal of its complaint in the United States Court of Appeals for the District of Columbia Circuit. Commander argued that in determining that the aircraft were not “defective,” the FAA exceeded its authority in that it rendered a judgment on Commander’s common law claims. The court denied review, stating that the FAA decided only whether the aircraft was properly certified and, thus, airworthy. Commander Properties, Inc. v. Federal Aviation Admin., 11 F.3d 204, 206 (D.C.Cir.1994) (as amended). The court said: In discussing the wing design, the FAA said not a word about the common law. Instead, the agency referred to its regula tions concerning testing for strength and load requirements and found that the aircraft was “airworthy” (complied with FAA standards), because the past problems had been corrected. Id. In a footnote to that statement, the court also said: The FAA referred to the aircraft’s current status, not to problems arising after initial certification. The FAA ultimately concluded that the aircraft is not defective ‘so long as Airworthiness Directives are complied with,’ which presumably means that compliance with the Airworthiness Directives was necessary to bring the aircraft up to the FAA standards. Id. at n. 3. The court concluded, “Whether Commander is correct that the Airworthiness Directives, increased inspections, and accident reports show that the wing design was ‘defective’ as a matter of tort law" }, { "docid": "13093187", "title": "", "text": "explain why the safety or accident prevention objectives of Congress require that a federal right of action for damages be implied in favor of persons who suffer mere economic injury by reason of a violation of the Act. Prevention of injury before it occurs, the principal purpose of the Act, was accomplished, in this instance, when the unsafe altimeters were ordered to be corrected and were corrected. The plaintiffs’ injury, the cost of their compliance with the Administrator’s order, result ed solely from the performance of their duty, under the Act, as owners of an aircraft to comply with the air safety requirements of the Act and regulations with respect to that aircraft. Whether they may have a cause of action against the defendants under state law is a wholly different question to which we shall refer later. The plaintiffs contend that there is a “pervasive legislative scheme” governing their relationship as owners of aircraft with manufacturers of aircraft and aircraft appliances under the Act comparable to the scheme apparent in § 14(a) of the Securities & Exchange Act of 1934 governing corporate management’s relations with stockholders in connection with proxy solicitation. They conclude that they are, therefore, entitled to a private remedy under the Federal Aviation Act under the authority of J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). It may well be that the regulations which the defendants are alleged to have violated do place certain duties upon manufacturers of aircraft appliances which arguably are akin to the duties imposed under § 14(a) of the Securities & Exchange Act upon corporate management. It is clear in any event, however, that the principal beneficiaries of the proper performance of these duties are not the aircraft owners, but rather the air travelers and airplane crews whose safety was the chief concern of Congress. Moreover, the regulations impose duties upon the owners and operators of aircraft as well as upon manufacturers. See 14 C.F.R. Parts 39, 47 and 49. In fact, the airworthiness directive, which the plaintiffs submit as evidence of their injury" }, { "docid": "22721774", "title": "", "text": "is satisfied that duplicate aircraft will conform to the approved type design, the FAA issues a production certificate, and the manufacturer may begin mass production of the approved aircraft. Before any aircraft may be placed into service, however, its owner must obtain from the FAA an airworthiness certificate, which denotes that the particular aircraft in question conforms to the type certificate and is in condition for safe operation. 49 U. S. C. § 1423(c). It is unlawful for any person to operate an aircraft in air commerce without a valid airworthiness certificate. § 1430(a). An additional certificate is required when an aircraft is altered by the introduction of a major change in its type design. 14 CFR §21.113 (1983). To obtain this supplemental type certificate, the applicant must show the FAA that the altered aircraft meets all applicable airworthiness requirements. § 21.115(a). The applicant is responsible for conducting the inspections and tests necessary to demonstrate that each change in the type design complies with the regulations. §§ 21.115(b), 21.33(b). The methods used by FAA employees or their representatives to determine an applicant’s compliance with minimum safety standards are generally the same as those employed for basic type certification. FAA Order 8110.4, Type Certification 32 (1967) (hereinafter FAA Order 8110.4); CAA Manual of Procedure, Flight Operations and Airworthiness, Type Certification § .5106(a) (1957) (hereinafter CAA Manual of Procedure). With fewer than 400 engineers, the FAA obviously cannot complete this elaborate compliance review process alone. Accordingly, 49 U. S. C. § 1355 authorizes the Secretary to delegate certain inspection and certification responsibilities to properly qualified private persons. By regulation, the Secretary has provided for the appointment of private individuals to serve as designated engineering representatives to assist in the FAA certification process. 14 CFR §183.29 (1984). These representatives are typically employees of aircraft manufacturers who possess detailed knowledge of an aircraft’s design based upon their day-to-day involvement in its development. See generally Improving Aircraft Safety 29-30. The representatives act as surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification. 14 CFR §183.1 (1984). In determining whether an" } ]

[ { "docid": "22997603", "title": "", "text": "convicted of both offenses. If he were convicted of the greater offense, the members would simply announce no findings as to the lesser offense, and it would be dismissed. Teters, et al., Applied How then are the Teters, Schmuck; and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “elements tests” applied to a particular case? What is meant by the phrase in Schmuck, “unless the elements of the lesser offense are a subset of the elements of the charged offense”? 489 U.S. at 716, 109 S.Ct. at 1450. Initially, one can logically conclude that, if proof of a greater offense proves all the elements of another offense and more, then the other offense is a “subset of the elements.” Conversely, if proof of the “subset” is necessary to prove the greater offense, then the “elements test” is met. The Manual for Courts-Martial itself provides the following examples of lesser-included offenses: (a) All of the elements of the lesser offense are included in the greater offense, and the common elements are identical (for example, larceny as a lesser included offense of robbery); (b) All of the elements of the lesser offense are included in the greater offense, but one or more elements is legally less serious (for example, housebreaking as lesser included offense of burglary); or (c) All of the elements of the lesser offense are included and necessary parts of the greater offense, but the mental element is legally less serious (for example, wrongful appropriation as a lesser included offense of larceny). Para. 2b(1), Part IV, Manual for Courts-Martial, United States, 1984. Thus, subset elements can be either quantitatively or qualitatively lesser. See United States v. Schoolfield, 40 MJ 132 (CMA 1994). This case presents an opportunity to apply-the reasoning of Teters to the facts at bar. The sodomy charge arose on June 25, 1990, when Airman Basic Larson had a farewell party for Airman KLT, who was scheduled to leave the following day. During the party in Larson’s dormitory room, Larson and Airman KLT consumed large amounts of alcohol. Appellant arrived at the" } ]

[ { "docid": "21598152", "title": "", "text": "tried) because it was deemed by Congress to be prejudicial to good order and discipline and service discrediting. See United States v. Morgan, 33 M.J. 1055, 1060 (A.C.M.R.1991), aff'd, 37 M.J. 407 (C.M.A. 1993) (quoting United States v. Clardy, 13 M.J. 308, 315 (C.M.A.1982)) (“Regulations which accompany legislation are a guide to legislative intent.”). Therefore, a finding of guilty of murder incorporates an unarticulated finding that the accused’s conduct was prejudicial to good order and discipline and service discrediting sufficient to support the Manual’s listing of negligent homicide as a lesser included offense. As alluded above, Patterson contains an important caveat. After stating the general affirmance power of appellate courts, the Court of Military Appeals stated that: this Court has consistently sustained appellate affirmance of an offense included within that found by the court-martial when, on review, it is determined that the evidence of record is insufficient to support one of the elements of the offense of which the accused was convicted, but sufficient to support the lesser offense. 34 C.M.R. at 224 (emphasis added). Even when acting under this presumption that the findings at the trial level include those of prejudice to good order and discipline and service discrediting conduct, we cannot affirm a lesser included offense under Article 134 if we find that the evidence of record is insufficient to support that finding. It is important, for analytical purposes, to distinguish between the record containing a specific finding (Patterson says it is there) and containing sufficient evidence. When we are faced with a situation where neither of the two lesser included offense scenarios (“law of the case” and specific Manual listing) applies, then we can only affirm a lesser included offense where there are findings with respect to a greater offense which include all the elements of the lesser offense. This means that a lesser offense under Article 134 is probably not affirmable in this situation. United States v. Martin, 50 C.M.R. 314 (A.C.M.R.), aff'd, 1 M.J. 75 (C.M.A.1975). In Martin, the convening authority erred in approving a “wrongful possession” of drugs under Article 134 in lieu of" }, { "docid": "15300870", "title": "", "text": "introduction and distribution of LSD because the offenses were at the same time and place. The Government asserts that the offenses were not multiplicious because appellant’s possession began on July 10 and the distribution did not occur until July 12. Furthermore, the Government asserts that any issue of multiplicity was waived. ROM 907(b)(3), Manual for Courts-Martial, United States (1995 ed.), provides: “A specification may be dismissed upon timely motion by the accused if ... [t]he specification is multiplicious with another specification----” The non-binding Discussion of ROM 907(b)(3) explains that “[a] specification is multiplicious with another if it alleges the same offense, or an offense necessarily included in the other.” In United States v. Savage, 50 MJ 244 (1999), this Court held that possession of marijuana with intent to distribute was a lesser-included offense of distribution of marijuana where both the possession and the distribution were on the same day. Ordinarily, an unconditional guilty plea waives a multiplicity issue. United States v. Lloyd, 46 MJ 19, 23 (1997). Furthermore, double jeopardy claims, including those founded in multiplicity, are waived by failure to make a timely motion to dismiss, unless they rise to the level of plain error. United States v. Britton, 47 MJ 195, 198 (1997) . Appellant has the burden of persuading us that there was plain error. United States v. Powell, 49 MJ 460, 464-65 (1998) . An appellant may show plain error and overcome waiver by showing that the specifications are “‘facially duplicative,’ that is, factually the same.” Britton, supra at 198, quoting Lloyd, supra at 23. Whether specifications are facially duplicative is determined by reviewing the language of the specifications and “facts apparent on the face of the record.” Lloyd, supra at 24; see also United States v. Harwood, 46 MJ 26, 28-29 (1997). Each specification in this case alleges an offense “on or about 12 July 1997,” at the same place. Unlike the situation in United States v. Savage, supra, the stipulation of fact and guilty plea inquiry establish that appellant possessed the LSD in his off-base residence for 2 days before bringing it onto Hickam" }, { "docid": "12138557", "title": "", "text": "v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find no error and affirm. CUMULATIVE PUNISHMENTS? Appellant contends the unlawful entry into Airman AS’ room and subsequent assault consummated by a battery upon her were part of one transaction motivated by a single impulse. Thus, he argues, the maximum sentence calculation in his case should have included only the maximum punishment for the greater offense of the two, not both. See R.C.M. 1003(c)(1)(C), Discussion. In reply, appellate government counsel concedes the reported case law does not answer the issue squarely. However, in an ably argued brief, appellate government counsel asserts we should apply the elements test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and consider the “long line of case law” holding that the greater offenses of burglary and housebreaking are separately punishable from the underlying offenses committed after the entry. We agree. Congress authorized the President to establish sentence limits in military trials. Article 56, UCMJ, 10 U.S.C. § 856. In Rule for Courts-Martial 1003(c)(1)(C), the President prescribed the sentence limit when an accused is convicted of multiple offenses: When the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense. Except as provided in paragraph 5 of Part IV [Conspiracy], offenses are not separate if each does not require proof of an element not required to prove the other. If the offenses are not separate, the maximum punishment for those offenses shall be the maximum authorized punishment for the offense carrying the greatest maximum punishment. So the question is, are the offenses separate? If so, the appellant may be convicted of, and sentenced for both. Multiple statutory violations for the same act or course of conduct allege separate offenses where each offense requires proof of an element not included in the other and Congress has not expressed a contrary legislative intent. United States v. Teters, 37 M.J. 370 (C.M.A.1993). We conclude unlawful entry and assault consummated by a battery allege separate offenses. The two offenses contain different elements and one is" }, { "docid": "23497545", "title": "", "text": "be sustained in this light. . R.C.M. 307(c)(4). Multiple offenses. Charges and specifications alleging till known offenses by an accused may be preferred at the same time. Each specification shall state only one offense. R.C.M. 907(b)(3)(B). (3) Permissible grounds. A specification may be dismissed upon timely motion by the accused if: ****** (B) The specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice. R.C.M. 1003(c)(1)(C). (C) Multiplicity. When the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense. Except as provided in paragraph 5 of Part IV, offenses are not separate if each does not require proof of an element not required to prove the other. If the offenses are not separate, the maximum punishment for those offenses shall be the maximum authorized punishment for the offense carrying the greatest maximum punishment. The discussion and analysis of these provisions in the Manual for Courts-Martial, United States, 1984, also make clear that no exclusive test for determining the separateness of offenses is established by any of these rules. R.C.M. 1003(c)(1)(C), Discussion; Drafters’ Analysis, Appendix 21, R.C.M. 907(b)(3), and 1003(c)(1)(C). COX, Judge (concurring in the result): I agree with the majority opinion as it pertains to the granted issue. I concur in the result simply because I do not believe it necessary to rely on United States v. Baker, 14 M.J. 361 (C.M.A. 1983), or United States v. Holt, 16 M.J. 393 (C.M.A. 1983), to resolve the multiplicity issue. This case is easily resolved under R.C.M. 907(b)(3), Manual for Courts-Martial, United States, 1984. Larceny is neither the same offense as uttering a forged instrument nor an offense necessarily included in the other." }, { "docid": "5856525", "title": "", "text": "with the “constitutional and statutory restrictions against Double Jeopardy.” United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.2001). The related policy against the unreasonable multiplication of charges, Rule for Courts-Martial (R.C.M.) 307(c)(4), addresses the danger of prosecutorial overreaching. Quiroz, 55 M.J. at 337. Appellant asserts that an unconditional guilty plea does not waive multiplicity claims and that “the policy behind multiplicity dictates that the existence of a pretrial agreement does not prevent an appellant from raising issues waived at trial.” Citing United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F.2000), and United States v. Britton, 47 M.J. 195, 198-99 (C.A.A.F.1997), Appellant argues that this is a case of plain error, in that the specifications complained of are “facially duplicative,” that plain error exists, and that the waiver provision in the PTA is therefore ineffective. This case is distinct from the cases relied upon by Appellant because here Appellant’s pretrial agreement expressly waived all waivable motions. We hold that Appellant waived, rather than forfeited these issues. In United States v. Lloyd, this Court recognized that even in cases in which an appellant failed to raise multiplicity at trial, he would be entitled to relief if the specifications were facially duplicative. 46 M.J. 19, 23 (C.A.A.F. 1997). But we added a caveat: “Express waiver or voluntary i consent, however, will foreclose even this limited form of inquiry.” Id. Although Lloyd only addressed multiplicity, we see no reason why the same caveat regarding express waiver or consent should not apply to the concept of unreasonable multiplication of charges, and therefore adopt it. Admittedly, motions relating to multiplicity and unreasonable multiplication of charges were not among those subsequently discussed by the military judge and the civilian defense counsel. However, this does not affect the validity of the waiver. The text of the PTA unambiguously agrees to “waive any waiveable [sic] motions,” and after the military judge conducted a detailed, careful, and searching examination of Appellant to ensure that he understood the effect of the PTA provision, Appellant explicitly indicated his understanding that he was giving up the right “to make any motion which by" }, { "docid": "21598151", "title": "", "text": "simple matter to see that the elements of the lesser are different only in degree from that of the greater (“the intent to kill or inflict great bodily harm” is similar in nature but lesser in degree to “a premeditated design to MU”). The area of concern has been when a lesser included offense is found in Article 134 as an offense prejudicial to good order and discipline or service discrediting. The Court of Military Appeals has held that “[njecessarily, all the elements of offenses lesser included within that charged are ‘found by the trial court’ when it convicts the accused of the greater offense.” Id. (citation omitted). For this to be true in the case where the Manual specifically lists an offense under Article 134 (for example, negligent homicide) as a lesser included offense (here, of murder), we must indulge in a presumption. This presumption is that any offense contained in a specific article of the Code was legislated as a military offense (that is, an offense for which a military member should be tried) because it was deemed by Congress to be prejudicial to good order and discipline and service discrediting. See United States v. Morgan, 33 M.J. 1055, 1060 (A.C.M.R.1991), aff'd, 37 M.J. 407 (C.M.A. 1993) (quoting United States v. Clardy, 13 M.J. 308, 315 (C.M.A.1982)) (“Regulations which accompany legislation are a guide to legislative intent.”). Therefore, a finding of guilty of murder incorporates an unarticulated finding that the accused’s conduct was prejudicial to good order and discipline and service discrediting sufficient to support the Manual’s listing of negligent homicide as a lesser included offense. As alluded above, Patterson contains an important caveat. After stating the general affirmance power of appellate courts, the Court of Military Appeals stated that: this Court has consistently sustained appellate affirmance of an offense included within that found by the court-martial when, on review, it is determined that the evidence of record is insufficient to support one of the elements of the offense of which the accused was convicted, but sufficient to support the lesser offense. 34 C.M.R. at 224 (emphasis added)." }, { "docid": "15191880", "title": "", "text": "plain-error doctrine was not appropriate where specifications were not facially duplicative); but see United States v. Heryford, 52 M.J. 265 (2000)(sug-gesting that an appellant may demonstrate plain error and overcome waiver by simply showing that the specifications are facially duplicative). We find no plain error in this case. See United States v. Powell, 49 M.J. 460 (1998). Our decision in United States v. Oat-. ney unequivocally held that: [I]f offenses are multiplicious for findings, they are also multiplicious for sentencing; if they are not multiplicious for finding[s] purposes, then they are not multiplicious for sentencing. Thus, if offenses are separate for findings, they are separate for punishment, and the maximum authorized punishment is found by combining the punishments authorized for each individual offense. Oatney, 41 M.J. at 623. From this now bedrock principle, the appellant extrapolates a converse proposition; if offenses are found multiplicious for sentencing, they must necessarily also be multiplicious for findings. The appellant’s syllogism is simply invalid. There are circumstances where a military judge may exercise discretion in the interest of fundamental fairness and properly find offenses “the same” for purposes of sentencing, even though they are clearly not multiplicious for findings, as was the case here. Limiting the maximum allowable sentence, as was done here, is an equitable remedy a military judge is free to employ when separately punishing each offense would cause an unjust or inappropriate result. United States v. Britton, 47 M.J. 195, 202 (1997); United States v. Oatney, 45 M.J. 185, 189 (1996); United States v. Morrison, 41 M.J. 482, 484 n. 3 (1995); see also Art. 66(c), UCMJ; Rule for Courts-Martial 1003(c)(1)(C), Manual for Courts-Martial, United States (1998 ed.), Discussion. Also, our decision in Oatney, supra, addresses only the concept of multiplicity, not unreasonable multiplication of charges. We have since unambiguously held that a claim based upon an unreasonable multiplication of charges is conceptually different from a claim of multiplicity. United States v. Qiur-oz, 53 M.J. 600 (N.M.Ct.Crim.App.2000)(ew banc); United States v. Joyce, 50 M.J. 567 (N.M.Ct.Crim.App.1999). “The longstanding principle prohibiting unreasonable multiplication of charges helps fill the gap, particularly after Teters" }, { "docid": "15191879", "title": "", "text": "the appellant, relying on United States v. Oatney, 41 M.J. 619 (N.M.Ct.Crim.App.1994), affd, 45 M.J. 185 (1996), argues that this holding by the military judge mandated the dismissal of the Article 134, UCMJ, sexual misconduct offenses. We disagree. First, we note that we will not apply forfeiture in this case as the record demonstrates the challenged offenses are “facially duplica-tive.” See United States v. Lloyd, 46 M.J. 19, 20 (1997); United States v. Harwood, 46 M.J. 26, 28 (1997) (holding that no fact hearing is required where challenged specifications literally repeat each other as a matter of fact, and the appellant can demonstrate on the basis of the existing record that the specifications punished the same factual conduct). Once we elect not to apply forfeiture, we examine challenged offenses utilizing traditional principles enunciated in existing multiplicity jurisprudence to determine whether plain-error exists. Harwood, 46 M.J. at 28 (holding that once offenses are found to be facially duplicative, multiplicity issues are then reviewed under the plain-error doctrine); cf. Lloyd, supra (holding that appellate review under the plain-error doctrine was not appropriate where specifications were not facially duplicative); but see United States v. Heryford, 52 M.J. 265 (2000)(sug-gesting that an appellant may demonstrate plain error and overcome waiver by simply showing that the specifications are facially duplicative). We find no plain error in this case. See United States v. Powell, 49 M.J. 460 (1998). Our decision in United States v. Oat-. ney unequivocally held that: [I]f offenses are multiplicious for findings, they are also multiplicious for sentencing; if they are not multiplicious for finding[s] purposes, then they are not multiplicious for sentencing. Thus, if offenses are separate for findings, they are separate for punishment, and the maximum authorized punishment is found by combining the punishments authorized for each individual offense. Oatney, 41 M.J. at 623. From this now bedrock principle, the appellant extrapolates a converse proposition; if offenses are found multiplicious for sentencing, they must necessarily also be multiplicious for findings. The appellant’s syllogism is simply invalid. There are circumstances where a military judge may exercise discretion in the interest of fundamental" }, { "docid": "15191881", "title": "", "text": "fairness and properly find offenses “the same” for purposes of sentencing, even though they are clearly not multiplicious for findings, as was the case here. Limiting the maximum allowable sentence, as was done here, is an equitable remedy a military judge is free to employ when separately punishing each offense would cause an unjust or inappropriate result. United States v. Britton, 47 M.J. 195, 202 (1997); United States v. Oatney, 45 M.J. 185, 189 (1996); United States v. Morrison, 41 M.J. 482, 484 n. 3 (1995); see also Art. 66(c), UCMJ; Rule for Courts-Martial 1003(c)(1)(C), Manual for Courts-Martial, United States (1998 ed.), Discussion. Also, our decision in Oatney, supra, addresses only the concept of multiplicity, not unreasonable multiplication of charges. We have since unambiguously held that a claim based upon an unreasonable multiplication of charges is conceptually different from a claim of multiplicity. United States v. Qiur-oz, 53 M.J. 600 (N.M.Ct.Crim.App.2000)(ew banc); United States v. Joyce, 50 M.J. 567 (N.M.Ct.Crim.App.1999). “The longstanding principle prohibiting unreasonable multiplication of charges helps fill the gap, particularly after Teters in promoting fairness considerations separate from an analysis of the statutes, their elements, and the intent of Congress.” Quiroz, 53 MJ at 604 (citing Joyce, 50 M.J. at 568-69; United States v. Erby, 46 M.J. 649, 651-52 (AF.Ct.Crim.App. 1997)). Multiplicity is an issue of law grounded in the constitutional and statutoiy protections against double jeopardy and the infringement of an accused’s due process rights. The prohibition against unreasonable multiplication of charges is a policy pronouncement intended to serve as a check on “prosecutorial enthusiasm” and to ensure fundamental fairness in sentencing of military accused. Erby, 46 M.J. at 651. Where a military judge determines that the charged offenses are not multiplicious under the “elements test” of Block burger and Teters, but nevertheless have been unreasonably multiplied against an accused, dismissal of the offending specifications is allowed, but not mandated. Compare Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Savage, 50 M.J. 244 (1999). Because double jeopardy prohibitions are not involved in this arena, the judge has" }, { "docid": "5856534", "title": "", "text": "v. Lloyd, 46 M.J. 19, 22 (C.A.A.F.1997) (“[I]n the absence of an express waiver or consent, we have not abandoned the doctrine of plain error with respect to multiplicious offenses.”). Waiver of waivable motions should be done on the record and expressly. Otherwise, the military judge and appellate courts will not be in a position to assess whether the waiver is knowing and voluntary. That being said, I concur in the result because, waiver or not, there is no plain error in this case. There is no error because the charges were not facially duplicative and did not represent an unreasonable multiplication of charges. See United States v. Roderick, 62 M.J. 425, 433 (C.A.A.F.2006) (“Multiplicity and unreasonable multiplication of charges are two distinct concepts. While multiplicity is a constitutional doctrine, the prohibition against unreasonable multiplication of charges is designed to address prose-cutorial overreaching.”) (citing United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.2001)). First, the charges were not “facially dupli-cative, that is, factually the same.” United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F.2000) (quotation marks omitted). To the contrary, the charges included distinct elements. See United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F.2004) (“Under [the elements] test, the court considers ‘whether each provision requires proof of a fact which the other does not.’ ”) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Although Specifications 1 and 4 of Additional Charge II both address Appellant’s “solicitation of] an undercover law enforcement known to the accused as ‘Mike Williams’ to murder Staff Sergeant Jeremy Green,” they are distinct because Specification 1 includes the additional element that the solicitation impeded Appellant’s trial by court-martial. Whereas solicitation requires “intent that the offense actually be committed,” Specification 1 requires additional proof that Appellant committed the offense of solicitation to “endeavor to impede a trial by court-martial.” Manual for Courts-Martial, United States pt. IV, para. 105.b(2) (2005 ed.) (MCM). Further, the specification of the Second Additional Charge departs from Specification 3 of Additional Charge II because, even though it similarly addresses the role of Christopher Carter," }, { "docid": "15757332", "title": "", "text": "v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957). This assignment of error is without merit. Assignment of Error IV After considering various multiplicity motions, the military judge ruled that all of these offenses could be separately punished. Record at 283-84. Citing the discussion following Rule for Courts-Martial 307(c)(4), Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.], the appellant contends that the Government unreasonably multiplied the charges against the appellant under Charge II and Charge III. We disagree. Under the applicable Rule, “offenses are not separate if each does not require proof of an element not required to prove the other.” R.C.M. 1003(c)(1)(C). In United States v. Teters, 37 M.J. 370, 371 (C.M.A.1993), ceri. denied, 510 U.S. 1091, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994), our superior court abandoned the “fairly embraced” test of United States v. Baker, 14 M.J. 361, 368 (C.M.A. 1983), and adopted the “elements test” of Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). The separate elements involved in each of the two charges which the appellant alleges are multiplicious occurred on distinct dates and periods of time. Once the military judge found them to be “separate offenses” under the Teters analysis, he properly considered them separate for all purposes, including sentencing. Record at 284; see also United States v. Morrison, 41 M.J. 482 (1995). While the Government could have combined all 20 instances of courts-martial during which the appellant falsely represented his credentials and the entire period of time in which he wore medals to which he was not entitled into single specifications under the two charges, the specifications as drafted were separate offenses for findings and sentencing. Therefore, we conclude that the military judge acted consistent with the law when he denied the appellant’s motion. This assignment of error is without merit. Assignment of Error V After a careful review of the record, including the nature of the charges and voluminous documents and extensive testimony supporting the argument that the appellant was an outstanding Marine officer, we find that the" }, { "docid": "12029842", "title": "", "text": "(1985) APPEALS — SUMMARY DISPOSITIONS, cert. denied — U.S. -, 106 S.Ct. 259, 88 L.Ed.2d 265 (1985); United States v. Collins, 20 M.J. 298 (1985) APPEALS — SUMMARY DISPOSITIONS; United States v. Peeler, 20 M.J. 374 (1985) APPEALS — SUMMARY DISPOSITIONS. II The appellant next argues, citing United States v. Mallery, 14 M.J. 212 (C.M. A.1982), United States v. Dorothy, 17 M.J. 508 (A.F.C.M.R.1983) and United States v. McMaster, 15 M.J. 525 (A.C.M.R.1982), that the negligent homicide and drunk driving allegations are multiplicious for both findings and sentence. He maintains that the drunk driving charge must be dismissed and the sentence reassessed. We disagree and find the cited cases, which involved only drunk driving, to be factually distinguishable from the instant case which requires the prosecution to establish that the appellant’s drunk driving resulted in personal injuries. The drunk driving allegations in Mallery, Dorothy and McMaster did not have this additional element. See MCM 1984, Part IV, para. 35b(3). This additional element of proof increases the maximum punishment significantly. In United States v. Sheffield, 20 M.J. 957 (A.F.C.M.R.1985), we held that an accused could be separately punished for killing two riders on a motorcycle he struck with his car. There we determined that each specification required proof of a separate element not found in the other, i.e., specification 1 required proof that the accused caused the death of REB and specification 2 that the accused caused the death of UD. In discussing the issue of multiple punishment, we must determine whether the separate elements criteria reflect a distinct societal interest in punishing the offense challenged as multiplicious or if it just reflects the manner in which the specifications were drafted. See United States v. Ridgeway, 19 M.J. 681 (A.F.C.M.R.1984). The increased punishment for those whose drunk driving injures others demonstrates the heightened interest the drafters of the Manual had in this offense. To say that an accused’s behavior that killed one person and seriously injured three others in two separate vehicles is the result of a single course of conduct does not reflect, in our view, the intent of Congress," }, { "docid": "12029841", "title": "", "text": "DECISION HODGSON, Chief Judge: The appellant, who had been drinking, was the driver of a vehicle that collided with an oncoming automobile. The collision caused the death of his passenger and serious injuries to the occupants of the other car. Under the terms of a pretrial agreement he plead guilty to negligent homicide and driving while intoxicated resulting in personal injuries. The approved sentence extends to a bad conduct discharge, 24 months confinement and reduction to airman basic. I Appellate defense counsel initially contend that the negligent homicide conviction alleged under Article 134 of the Code, 10 U.S.C. § 934 cannot stand because it “creates” a homicide offense with a minimum standard below that set by Congress in Article 119,10 U.S.C. § 919, i.e., culpable negligence as the lower limit for criminal liability in homicide offenses. This issue need not detain us long for the Court of Military Appeals has repeatedly held that negligent homicide through simple negligence is an offense under the Uniform Code of Military Justice. United States v. Spicer, 20 M.J. 188 (1985) APPEALS — SUMMARY DISPOSITIONS, cert. denied — U.S. -, 106 S.Ct. 259, 88 L.Ed.2d 265 (1985); United States v. Collins, 20 M.J. 298 (1985) APPEALS — SUMMARY DISPOSITIONS; United States v. Peeler, 20 M.J. 374 (1985) APPEALS — SUMMARY DISPOSITIONS. II The appellant next argues, citing United States v. Mallery, 14 M.J. 212 (C.M. A.1982), United States v. Dorothy, 17 M.J. 508 (A.F.C.M.R.1983) and United States v. McMaster, 15 M.J. 525 (A.C.M.R.1982), that the negligent homicide and drunk driving allegations are multiplicious for both findings and sentence. He maintains that the drunk driving charge must be dismissed and the sentence reassessed. We disagree and find the cited cases, which involved only drunk driving, to be factually distinguishable from the instant case which requires the prosecution to establish that the appellant’s drunk driving resulted in personal injuries. The drunk driving allegations in Mallery, Dorothy and McMaster did not have this additional element. See MCM 1984, Part IV, para. 35b(3). This additional element of proof increases the maximum punishment significantly. In United States v. Sheffield, 20" }, { "docid": "13527803", "title": "", "text": "than our Court has. See, e.g., United States v. Inthavong, 48 MJ. 628, 630 n. 5 (Army Ct.Crim.App.1998); United States v. Erby, 46 M.J. 649, 651-52 (A.F.Ct.Crim. App.1997); United States v. Thomas, 43 M.J. 903, 906 (Army Ct.Crim.App.1996). . For another case where the CAAF treated multiplicity and unreasonable multiplication of charges as distinct, see United States v. Wingate, 50 M.J. 118 (1998)(summary disposition). After finding an unreasonable multiplication of charges, the CAAF also found the charges to be facially duplicative under a multiplicity analysis, citing United States v. Lloyd, 46 M.J. 19 (1997). . After Teters, there is ptherwise no prohibition against governmental abuse in overcharging as long as the elements of all of the charged offenses are different. . Any indication in United States v. Tollinchi, 50 M.J. at 878, that the language in Joyce finding the concepts distinct is merely obiter dictum is rejected. . William Winthrop, Military Law and Precedents 143 (2d ed.1920). . See A.B.A. Standards for Criminal Justice, Standard 3-39 and Discussion (2d ed.1986) (The Prosecution Function, \"Discretion in Selecting the Number and Degree of Charges”). We agree with the appellant's assertion in his brief that \"Teters didn’t mean that the unreasonable multiplication of charges is a good thing.” Appellant’s Brief on Reconsideration of 11 Feb. 2000 at 12. . Although Quiroz I used the word \"waiver,\" the correct word in this case is \"forfeiture.” The latter results when a trial participant is silent and does not object or assert a right. The former occurs when the party voluntarily or intentionally agrees to relinquish or abandon a known right. Freytag v. Commissioner, 501 U.S. 868, 894 n. 2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in the result); United States v. Toro, 37 M.J. 313, 320 (C.M.A.1993)(SulIivan, C.J., concurring in the result)(quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); United States v. Cunningham, 44 M.J. 758, 761-62 (N.M.Ct.Crim. App.1996)(en banc); Black’s Law Dictionary 1574 (7th ed. 1999). . Considering the holdings in Teters, Morrison, and Oatney that offenses that are separate for findings" }, { "docid": "3914982", "title": "", "text": "the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Manual for Courts-Martial, United States, pt. IV, para. 85.b. (2008 ed.). The ACCA issued a one-sentence per curiam order denying Appellant’s petition for reconsideration. United States v. Girouard, No. ARMY 20070299 (A.Ct.Crim.App. May 25, 2010) (order). Appellant then filed a petition for review on July 23, 2010, and on September 24, 2010, we granted Appellant’s petition. Girouard, 69 M.J. 277 (order granting review). II. Article 79, UCMJ, provides the statutory authority for a military judge to instruct on, and for an appellate court to affirm, an LIO. Article 79, UCMJ, 10 U.S.C. § 879 (2006) (permitting an accused to “be found guilty of an offense necessarily included in the offense charged”). Whether an offense is an LIO is a question of law that is reviewed de novo. United States v. Miller, 67 M.J 385, 387 (C.A.A.F.2009). In determining whether an offense is an LIO, this Court applies the elements test. United States v. Jones, 68 M.J. 465, 469-70 (C.A.A.F.2010) (citing Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)); see United States v. Alston, 69 M.J. 214, 216 (C.A.A.F.2010) (noting that the elements test encompasses ordinary principles of statutory construction, “ ‘permitting] lesser offense instructions only in those cases where the indictment contains the elements of both offenses,’ and as a result ‘gives notice to the defendant that he may be convicted on either charge’”) (quoting Schmuck, 489 U.S. at 718, 109 S.Ct. 1443). Appellant was charged with premeditated murder under Article 118, UCMJ, which requires: (1) a death; (2) that the accused caused the death by an act or omission; (3) the killing was unlawful; and (4) at the time of the killing, the accused had a premeditated design to kill. MCM pt. IV, para. 43.b.(l). Appellant was convicted, however, of negligent homicide, Article 134, UCMJ, which requires: (1) that a certain person is dead; (2) that this death resulted from" }, { "docid": "17068732", "title": "", "text": "[hereinafter MCM, 1995.] It is not, however, a statutory element of the offense of sodomy. Rather, it is a circumstance which increases the maximum authorized period of confinement (from confinement for five years to confinement for life in the current version of the Manual for Courts-Martial). Such punishment increasing circumstances enjoy a long history and are well within the authority of the President to prescribe in the exercise of his powers under Articles 18, 36, and 56, UCMJ. Cf. United States v. Loving, 41 MJ. 213 (1994), aff'd,-U.S.-, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). For practical purposes, they are often treated like elements. The distinction may be important for some purposes, however, such as multiplicity analysis. See United States v. Weymouth, 43 M.J. 329 (1995); United States v. Teters, 37 M.J. 370 (C.M.A.1993), cert, denied, 510 U.S. 1091, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). But cf. United States v. Oatney, 45 M.J. 185, 188-189, slip op. at 9-12 (U.S. Armed Forces 30 Sep. 1996)(holding suggests that whether elements are statutory or not is immaterial to multiplicity determination). In any event, in this case the issue is not, technically speaking, whether the appellant pleaded providently to an offense. There is no question here that appellant providently pleaded guilty to the statutory offense of sodomy. Rather, the issue is whether he admitted facts adequate to establish the basis for finding a circumstance which the President has prescribed authorizing an increased maximum punishment. This could affect the computation of the maximum sentence which could have been adjudged. In turn, a substantial error in computing the maximum punishment could result in a determination that the sentence itself was unfairly determined, or, in an extreme case, even affect the overall providence of an accused’s guilty pleas. For reasons discussed below, we find none of these problems here. Resolution of this issue could also affect the language in the summarized specification in the promulgating order; see our decretal paragraph below. . The stipulation contains two paragraphs describing the sodomy. The first, summarized above, contains appellant’s description of the acts. The next paragraph begins: ”[M]" }, { "docid": "17068731", "title": "", "text": "sustain only sodomy with children under the age of sixteen. The court affirms only so much of the findings of guilty of Specifications 1, 2, and 3 of Charge II as find that appellant committed sodomy with a child under the age of sixteen years in violation of Article 125, UCMJ. The remaining findings of guilty are affirmed. Reassessing the sentence based on our action above, we affirm the sentence approved by the convening authority. United States v. Sales, 22 M.J. 305 (C.M.A.1986). We are satisfied, given the severity of the remaining offenses, and all the circumstances surrounding them, that the court-martial would have adjudged and the convening authority would have approved a sentence no less severe than the approved sentence before us. Judge GORDON and Judge ECKER concur. . The parties before us have characterized \"by force and lack of consent” as an “element” of the offense. This is understandable and not entirely inaccurate, in view of its inclusion as an \"element” in paragraph 51b(3), Part IV, Manual for Courts-Martial, United States, (1995 edition), [hereinafter MCM, 1995.] It is not, however, a statutory element of the offense of sodomy. Rather, it is a circumstance which increases the maximum authorized period of confinement (from confinement for five years to confinement for life in the current version of the Manual for Courts-Martial). Such punishment increasing circumstances enjoy a long history and are well within the authority of the President to prescribe in the exercise of his powers under Articles 18, 36, and 56, UCMJ. Cf. United States v. Loving, 41 MJ. 213 (1994), aff'd,-U.S.-, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). For practical purposes, they are often treated like elements. The distinction may be important for some purposes, however, such as multiplicity analysis. See United States v. Weymouth, 43 M.J. 329 (1995); United States v. Teters, 37 M.J. 370 (C.M.A.1993), cert, denied, 510 U.S. 1091, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). But cf. United States v. Oatney, 45 M.J. 185, 188-189, slip op. at 9-12 (U.S. Armed Forces 30 Sep. 1996)(holding suggests that whether elements are statutory or not is" }, { "docid": "15275474", "title": "", "text": "them. Appellate consideration of multiplicity claims is waived by unconditional guilty pleas, except where the record shows that the challenged offenses are facially duplicative, i.e., factually the same. United States v. Lloyd, 46 M.J. 19 (1997). We conclude that the possession of the 20 marijuana seeds was not facially duplicative with the manufacture of marijuana, and was a discrete offense ‘that took place before their cultivation into marijuana plants. United States v. Neblock, 45 M.J. 191 (1996). The appellant carried them from Waikiki to his residence, and at least for some period of time, possessed them before he planted them. He could have resold them, ingested them, or thrown them away during the time he possessed them. Therefore, specifications 1 and 2 are not facially duplicative, and the appellant has waived consideration of his multiplicity claim for those offenses. On the other hand, as conceded by the Government, specification 2 (manufacture of marijuana) and specification 3 (possession of the marijuana plants) of Charge III are facially duplicative because the appellant possessed the plants while he grew them. Wrongful possession of marijuana is a lesser included offense of wrongful manufacture. Manual for Courts-Martial, United States (1998 ed.), Part IV, 1137d(4)(a). Consequently, we will not apply waiver in this instance and will take corrective action by dismissing specification 3 of Charge III. Unreasonable Multiplication of Charges for the Drug Offenses Regarding the fourth assignment of error, the appellant waived consideration of the issue of unreasonable multiplication of charges pertaining to specifications 1 and 2 of Charge III by not objecting at trial and by unconditionally pleading guilty. R.C.M. 905(e). Based on the factors discussed earlier, we do not find appellate intervention under Articles 59(a) and 66(e), UCMJ, to be warranted. The possession of the seeds and their eventual cultivation were separate criminal acts. The appellant’s criminality was not exaggerated. The number of specifications has not unfairly increased his punitive exposure, and there is no evidence of prosecutorial overreaching or abuse. Providence of Guilty Pleas The appellant also argues that his guilty pleas to specifications 1 and 2 of Charge IV were improvident." }, { "docid": "14920799", "title": "", "text": "act” and concluded that the “the government alleged them [separately] for exigencies of proof and for other purposes.” We conduct a de novo review of multiplicity claims. United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.2002). A threshold concern is whether the two offenses allege the same underlying act. In this regard, there is no real dispute between the parties that the underlying factual basis involved a single act of shaking. Indeed, the military judge found as much. Moreover, the elements and pleadings all allege the same date, place, and victim. The next step in our analysis is to ascertain congressional intent because an “accused may not be convicted and punished under more than one statute for the same act, if it would be contrary to the intent of Congress.” United States v. Britton, 47 M.J. 195, 197 (C.A.A.F.1997) (citing United States v. Peters, 37 M.J. 370, 373 (C.M.A.1993)). Thus, our specific task is to determine whether Congress intended an accused to be convicted at a single court-martial of both involuntary manslaughter through culpable negligence under Article 119(b)(1), UCMJ, and maiming under Article 124, UCMJ, where the underlying factual basis is the same for both offenses. In order to ascertain and implement legislative intent, we look at the statute, not the pleadings or proof. In this endeavor, our superior court has provided guidance on how to ascertain legislative intent. Thus, we look to see if Congress stated its intent expressly in the pertinent statute(s) violated or in their legislative histories. Absent such an overt expression of legislative intent, it can also be presumed or inferred based on the elements of the violated statutes and their relationship to each other. Finally, other recognized guidelines for discerning congressional intent may then be considered to determine whether the ... presumption of separateness is overcome by clear indication of a contrary legislative intent. United States v. Teters, 37 M.J. at 376-77 (internal citations omitted). We are unable to identify any overt expressions of legislative intent. See generally Index and Legislative History, Uniform Code of Military Justice (1950). Nonetheless, we believe intent can be inferred" }, { "docid": "3914981", "title": "", "text": "negligent homicide by failing to offer any evidence of the standard of care, any evidence appellant violated that standard, or any evidence any conduct by appellant proximately caused the deaths of the military detainees.” Girouard, 2010 CCA LEXIS 49, at *15, 2010 WL 3529415, at *5. The ACCA unanimously affirmed the findings of guilty and sentence as approved by the convening authority. Girouard, 2010 CCA LEXIS 49, at *20, 2010 WL 3529415, at *7. However, four days before the ACCA decision, on April 19, 2010, this Court’s decision in United States v. Jones, 68 M.J. 465, 467 (C.A.A.F.2010), was released where we returned to the elements test approach to defining lesser included offenses. Id. at 470. Based on Jones, Appellant petitioned for reconsideration arguing that negligent homicide was not an LIO of premeditated murder under the elements test. Specifically, Appellant asserted that negligent homicide requires two elements that premeditated murder does not: (1) “that the act or failure to act of the accused which caused the death amounted to simple negligence,” and that (2) “under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Manual for Courts-Martial, United States, pt. IV, para. 85.b. (2008 ed.). The ACCA issued a one-sentence per curiam order denying Appellant’s petition for reconsideration. United States v. Girouard, No. ARMY 20070299 (A.Ct.Crim.App. May 25, 2010) (order). Appellant then filed a petition for review on July 23, 2010, and on September 24, 2010, we granted Appellant’s petition. Girouard, 69 M.J. 277 (order granting review). II. Article 79, UCMJ, provides the statutory authority for a military judge to instruct on, and for an appellate court to affirm, an LIO. Article 79, UCMJ, 10 U.S.C. § 879 (2006) (permitting an accused to “be found guilty of an offense necessarily included in the offense charged”). Whether an offense is an LIO is a question of law that is reviewed de novo. United States v. Miller, 67 M.J 385, 387 (C.A.A.F.2009). In determining whether an offense is an" } ]

[ { "docid": "2387850", "title": "", "text": "the quoted language to define the term “materiality” has been a matter of some dispute. In Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1301-02 (2d Cir. 1973), Chief Judge Friendly persuasively argued that it did not. . This district has noted similarities in treatment of Rule 10b-5 and Rule 14a-9. Puma v. Marriott, 363 F.Supp. 750, 757 & n. 10 (D.Del.1973). . iSee 9 Del.Code Ann. § 141(b) (Michie Supp.1975). . Defendants do not seek dismissal of the third count stated in CA-106 for failure to state a legally-cognizable claim; accordingly, the Court expresses no opinion with respect to its sufficiency. . The total number of voting shares outstanding during the relevant period was 2,-634,752. . “[T]he only available jurisdictional basis in this District as regards the individual defendants is that an ‘act or transaction’ constituting a violation of the Exchange Act occurred here.” Defendants’ Main Brief at 60. . See also Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974) ; Townsend Corp. of America v. Davidson, 222 F.Supp. 1 (S.D.N.J.1963). . “ ‘Any’ covers everything in a category or class. Its use excludes exceptions unless they are specifically given.” United States v. Swift & Co., 158 F.Supp. 551, 555-56 (D.D.C.1958), citing United States v. National City Lines, Inc., 80 F.Supp. 734, 741-42 (S.D.Cal.1948) (construction of phrase “any civil action” in 28 U.S.C. § 1404(a)). . Gf. Coburn v. Warner, 110 F.Supp. 850 (S.D.N.Y.1953), wherein the mere mailing of a confirmation of sale from the forum district, which mailing itself constituted a violation of the Exchange Act, was held to confer venue under Section 27. In Prettner v. Aston, the view was expressed that the allegedly unlawful solicitation of the votes of 14 shareholders and one brokerage house, holding a record total of 1,639 shares out of nearly 5 million, might be sufficient to establish venue in this district. 339 F.Supp. at 280. Qualitatively, there is little difference if any between the solicitation of 1,639 shares out of 5 million and 6 shares out of 2.6 million. In both cases, the number of shares solicited in relation" } ]

[ { "docid": "18353351", "title": "", "text": "not sufficiently volitional, defendant argues, to constitute an “act or transaction” within the meaning of Section 27. A party will be deemed to have effected an “act or transaction” within the meaning of the statute if there has been “any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in ... [the] consummation” of the allegedly fraudulent scheme. State Teachers Retirement Board v. Fluor Corp., 500 F.Supp. 278, 289-90 (S.D.N.Y.1980) aff'd in part, rev’d in part on other grounds, 654 F.2d 843 (2d Cir.1981) (citations omitted) (emphasis supplied). See also, Sarratt v. Walker, 405 F.Supp. 132, 133-4 (D.S.C. 1975), citing, inter alia, Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir.1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961). The venue provision “is intended to require some actual contact with the judicial district.” Fluor, 500 F.Supp. at 290. This court must disagree with Bradford’s underlying argument that as a matter of law the receipt of telephone calls, as opposed to the initiation of calls, does not qualify as “contact” with the forum and therefore is an improper basis for the establishment of venue. Several cases have held that venue “lies in both the district where the fraudulent communication was transmitted and the district where it was received.\" Black & Co. v. Nova-Tech, Inc., 333 F.Supp. 468, 473 (D.Ore.1971) (citations omitted) (emphasis added); Schneider v. H.A. Sears, 265 F.Supp. 257, 262 (S.D.N.Y.1967). In Wassel v. Eglowsky, 399 F.Supp. 1330 (D.Md. 1975), aff'd, 542 F.2d 1235 (4th Cir.1976), for example, venue was properly laid in the plaintiff’s forum where the plaintiff contacted the defendants by telephone and left a message with the defendants' answering service. The defendants returned the call several days later. 399 F.Supp. at 1342. Parenthetically, it may be noted that in Wassel the plaintiff made his call in response to an advertisement placed by the defendants in the Wall Street Journal. There, the placing of such an advertisement constituted a volitional use of the forum in that the defendant could reasonably expect" }, { "docid": "11653327", "title": "", "text": "the corporations controlled by . . . Dahl and Diliberto; . and in furtherance of the existing scheme and to avoid detection of their previously fraudulent practices, the defendants maintained the fraudulent scheme through February of 1974.” Plaintiff affirms that all communications received from the defendants while he resided in Charlottesville, including Mr. Dahl’s repurchase of stock, continued the alleged scheme of misrepresentation. Affidavits of Gregory Sohns, plaintiff. Based on the above allegations and affidavits, this court rules that the plaintiff has sufficiently shown that venue properly lies in this district. In determining whether venue is proper in this district, this court is guided at the threshold by certain settled points of law. Since venue properly laid for claims arising under either the 1933 or 1934 Act satisfactorily establishes venue for those claims arising under the other, SEC v. National Student Marketing, supra note 6a, 360 F.Supp. at 291; Zorn v. Anderson, 263 F.Supp. 745 (S.D.N.Y.1966); and venue for state law claims may lie where the federal claims properly lie under the doctrine of pendent jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ; this court need consider only whether venue is proper in this district under the broader venue provision of the 1934 Act. Secondly, although venue is a notion personal to each defendant, this court’s jurisdiction over this action does not depend on whether each defendant performed an “act or transaction” in this forum district. In a multi-defendant and multi-forum securities action where plaintiff alleges a common scheme of acts and transactions to violate the securities laws, venue once established for any of the defendants in the forum, establishes venue for all defendants wherever found; this is so even in the absence of any acts by a particular defendant within that district. SEC v. National Student Marketing Corp., supra note 6a, 360 F.Supp. at 289-90 and cases cited therein. Since plaintiff has alleged defendants’ joint participation in a common scheme, this court has considered the alleged acts of all defendants in reaching its decision. Thirdly, and most importantly," }, { "docid": "13782691", "title": "", "text": "if any act or transaction constituting the violation occurred in the Western District of Pennsylvania. Although neither Homans nor Berner may have had any substantial contact with this District, venue as to them may be proper under the co-conspirator theory of venue. See Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir.), cert. denied 393 U.S. 977, 89 S.Ct. 444, 21 L. Ed.2d 438 (1968); Hooper v. Mountain States Securities Corp., 282 F.2d 195 (5th Cir. 1960), cert. denied 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); SEC v. National Student Marketing Corp., supra; In re Penn Central Securities Litigation, supra. In SEC v. National Student Marketing Corp., the United States District Court for the District of Columbia stated the co-conspirator theory of venue as follows: “in a multi-defendant securities proceeding, where a common scheme of acts or transactions to violate the securities acts is alleged, if venue is established for any of the defendants in the forum district there is sufficient justification to establish venue as to the other defendants, even in the absence of any contact or substantial contact by any one defendant within that district.” 360 F.Supp. at 291-92. The court went on to hold that venue as to the New York law firm White & Case and one of its partners, who claimed to have acted only in a representative capacity as attorneys, was properly lodged in the District of Columbia under the co-conspirator doctrine without considering the question of whether these defendants, by their conduct alone, committed violations within that district. 360 F.Supp. at 292. In a multi-defendant securities action alleging a common fraudulent scheme, this doctrine permits a plaintiff to present his claim in a single forum, rather than filing in several districts which may be scattered throughout the country. We find that venue properly lies in this court under Section 27 of the Securities Exchange Act of 1934. The “act or transaction” portion of this section does not require that the violative acts in this district form the core of the claim. Rather, venue is proper if there is but one" }, { "docid": "13782690", "title": "", "text": "suit under that act in any district “ . . . wherein any act or transaction constituting the violation occurred . or in the district wherein the defendant is found or is an inhabitant or transacts business . . . ”. Both of these sections provide that “ . process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found”. We agree with other courts which, by analogy to the doctrine of pendent jurisdiction, have held that venue properly laid for claims arising under one federal securities act satisfactorily establishes venue for claims arising under the other. See SEC v. National Student Marketing Corp;, 360 F.Supp. 284 (D.D.C.1973); In re Penn Central Securities Litigation, 338 F.Supp. 438 (E.D. Pa.1972); Zorn v. Anderson, 263 F. Supp. 745 (S.D.N.Y.1966); Coburn v. Warner, 110 F.Supp. 850 (S.D.N.Y. 1953); 3 L. Loss, Securities Regulation 2009 (1961 Ed.); 6 L. Loss, Securities Regulation 4147 (1969 Supp.). Venue is proper under the Securities Exchange Act of 1934 if any act or transaction constituting the violation occurred in the Western District of Pennsylvania. Although neither Homans nor Berner may have had any substantial contact with this District, venue as to them may be proper under the co-conspirator theory of venue. See Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir.), cert. denied 393 U.S. 977, 89 S.Ct. 444, 21 L. Ed.2d 438 (1968); Hooper v. Mountain States Securities Corp., 282 F.2d 195 (5th Cir. 1960), cert. denied 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); SEC v. National Student Marketing Corp., supra; In re Penn Central Securities Litigation, supra. In SEC v. National Student Marketing Corp., the United States District Court for the District of Columbia stated the co-conspirator theory of venue as follows: “in a multi-defendant securities proceeding, where a common scheme of acts or transactions to violate the securities acts is alleged, if venue is established for any of the defendants in the forum district there is sufficient justification to establish venue as to the other defendants, even in" }, { "docid": "11653328", "title": "", "text": "jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ; this court need consider only whether venue is proper in this district under the broader venue provision of the 1934 Act. Secondly, although venue is a notion personal to each defendant, this court’s jurisdiction over this action does not depend on whether each defendant performed an “act or transaction” in this forum district. In a multi-defendant and multi-forum securities action where plaintiff alleges a common scheme of acts and transactions to violate the securities laws, venue once established for any of the defendants in the forum, establishes venue for all defendants wherever found; this is so even in the absence of any acts by a particular defendant within that district. SEC v. National Student Marketing Corp., supra note 6a, 360 F.Supp. at 289-90 and cases cited therein. Since plaintiff has alleged defendants’ joint participation in a common scheme, this court has considered the alleged acts of all defendants in reaching its decision. Thirdly, and most importantly, section 27 of the 1934 Act, 15 U.S.C. § 78aa, prescribes special venue rules for actions instituted under the Act. That section provides that venue is proper in the district wherein any act or transaction constituting the violation occurs, the defendant is found, or the defendant transacts business. Plaintiff apparently concedes that the defendants neither are “found” nor “transact business” in this district, as those terms are used in section 27, and asserts venue only on the basis of “acts” or “transactions” occurring in this district. For a defendant’s contacts with a particular forum to be sufficient to establish venue under section 27, courts have required not that the alleged acts within the forum district constitute the core of the claim, but only that there exists but one act within the district which represents more than an immaterial part of the alleged violations. Jacobs v. Tenney, 316 F.Supp. 151, 158 (D.Del.1970); Puma v. Marriott, 294 F.Supp. 1116, 1120 (D.Del.1969). Conceptually, courts have thought satisfied the requirement of section 27 that venue-supporting acts be acts “constituting" }, { "docid": "18671318", "title": "", "text": "importance to’ the commission of the violation of the ’34 Act were sufficient to establish venue in this jurisdiction.” Jacobs v. Tenney, 316 F.Supp. 151, 158 (D.Del.1970). Defendants acknowledge that as a general rule the use of interstate mail to distribute a proxy solicitation or, as here, a tender offer can constitute adequate ground for venue under § 27. Authority for this proposition was analyzed in Sarratt v. Walker, 405 F.Supp. 132, 134 (D.S.C.1975): “The Fifth Circuit concluded in 1961 that ‘any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in the execution of the fraudulent, deceitful scheme or in its consummation is sufficient’ for venue to lie in that district. Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); cf. Mariash v. Morrill, 496 F.2d 1138 (2nd Cir. 1974). Other district courts considering this question have also reached the same conclusion and held that venue is proper in a district although the defendant committed only a single act there and was never in fact physically present. See, e. g., Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974); Prettner v. Aston, 339 F.Supp. 273 (D.Del.1972); Stern v. Gobeloff, 332 F.Supp. 909 (D.C.Md.1971); Livingston v. Weis, 294 F.Supp. 676 (D.C.N.J.1968); Schneider v. Sears, 265 F.Supp. 257 (D.C.N.Y.1967).” See also Travis v. Anthes Imperial, Ltd., 473 F.2d 515 (8th Cir. 1973). Cf. Goldberg v. Touche Ross & Co., 390 F.Supp. 290 (S.D.N.Y.1975). Despite the broad language of the cited decisions and the wide accessibility that § 27 is designed to provide, cf. Kane v. Central American Mining & Oil, Inc., 235 F.Supp. 559, 565 (S.D.N.Y.1964), defendants urge the Court to consider the distribution of the tender offer to plaintiffs in Rhode Island immaterial because only a small number of the shareholders live here. In support of this position, defendants cite dicta in Puma v. Marriott, 294 F.Supp. 1116, 1120 (D.Del.1969); and Blanning v. Tisch, 378 F.Supp. 1058, 1063 (E.D.Pa.1974). With all due" }, { "docid": "12934341", "title": "", "text": "in order for there to be in personam jurisdiction, “contacts” of a nature similar to those required by due process are necessary to establish that venue has been properly laid. In part, Section 77v(a) permits actions to be brought in any district where the defendant “transacts business,” or where “the offer or sale took place.” Section 78aa similarly authorizes actions to be brought in any district where the defendant “transacts business.” In applying these provisions, courts have borrowed the “minimum contacts” due process approach in determining the threshold amount of. within-forum activity that may be considered “transacting business.” In Mariash, the Second Circuit adopted the standard first articulated in Hooper v. Mountain State Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961): ‘[A]ny use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in ... [the] consummation [of the fraudulent scheme] is sufficient’ for venue to lie in that district. Mariash, 496 F.2d at 1144 (quoting Hooper, 282 F.2d at 204-05). Proper venue has consequently been found to have been established by reason of the defendants’ mailing of incomplete and misleading proxy statements to debenture holders residing in the forum, Savin v. CSX Corp., 657 F.Supp. 1210, 1215 (S.D.N.Y.1987), and by the mailing of dividends from the forum district, International Controls Corp. v. Vesco, 490 F.2d 1334, 1347 (2d Cir.1974). The difficulty in the present case is that the defendant Lepore has failed to discuss venue in connection with his motion to dismiss or for summary judgment. He has argued exclusively that the federal default judgment is void for lack of personal jurisdiction. Treating this as a Rule 60(b)(4) motion, however, it is clear that, for the reasons stated earlier, the Arizona district court e had in personam jurisdiction over Mr. Lepore by virtue of the nationwide service of process provisions appurtenant to the 1933 and 1934 Acts. The federal judgment cannot, therefore, be found void due to lack of personal jurisdiction. Rule 60(b)(4) also cannot be used to" }, { "docid": "14226339", "title": "", "text": "the time of sale of the policy.” Hilgeman v. National Ins. Co. of North America, No. 69-602 (N.D.Ala., July 16, 1974). . To establish jurisdiction and venue under § 27 the defendant need not be physically present in the forum district nor need he commit more than a single act in the district if that act is important to the consummation of the scheme. E. g., Hooper v. Mountain States Securities, supra; Sarratt v. Walker, 405 F.Supp. 132 (D.S.C.1975); Mayer v. Development Corp. of America, 396 F.Supp. 917 (D.Del.1975); Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974). . The “co-conspirator theory” was described by one court in the following terms: “Plainly stated, this doctrine provides that in a multi-defendant securities proceeding, where a common scheme of acts or transactions to violate the securities act is alleged, if venue is established for any of the defendants in the forum district there is sufficient justification to establish venue as to the other defendants, even in the absence of any contact or substantial contact by any one defendant within that district.” (Footnote omitted.) S.E.C. v. National Student Marketing Corp., 360 F.Supp. 284, 291-92 (D.D.C.1973). This theory has been adopted by many federal courts, including this circuit, e. g., Sargent v. Genesco, Inc., 492 F.2d 750, 759 (CA5, 1974); Klepper Krop, Inc. v. Hanford, 411 F.Supp. 276 (D.Neb.1976); Zorn v. Anderson, 263 F.Supp. 745 (S.D.N.Y. 1966)." }, { "docid": "22005285", "title": "", "text": "purposes, the Forman test is satisfied. Therefore, the decision of Judge Friendly in Exchange National Bank is consistent with the Court’s decision in Forman and the result in this case. Accordingly, the Court finds that the purchase money note issued by Penn-Dixie to the JDL Trust as part payment for the Florida real estate is a security within the meaning of the federal securities laws as construed by all of the available standards. II. VENUE IN THE DISTRICT OF COLUMBIA IS PROPER IN THIS ACTION. The defendants contend that venue does not lie in the District of Columbia and the action should be dismissed or transferred. The Commission relies on section 27 of the Securities Exchange Act, and the co-conspirator venue theory. Section 27 provides that a “proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. . . . . ” The co-conspirator venue theory, in essence, provides: [A]ny allegation of a securities act violation is sufficient for venue purposes even as to a defendant who did not commit an act within the district if that defendant is in league with a defendant who did act within the district. Levin v. Great Western Sugar Co., 274 F.Supp. 974, 978 (D.N.J.1967). All that is required is one act within the district which represents more than an immaterial part of the allegedly illegal events. Securities and Exchange Commission v. National Student Marketing Corp., 360 F.Supp. 284, 293 (D.D.C.1973). In this case, Penn-Dixie filed with the Commission in Washington, D.C., an annual report on Form 10-k. This report was publicly disseminated to, among others, Penn-Dixie shareholders in this District. At this time, the defendant Castle was president and chairman of Penn-Dixie. The report did not refer to the purchase by Penn-Dixie of the Florida land from the JDL Trust. The Court finds that the allegedly false filing was a material part of the scheme and that an act of an alleged co-conspirator occurred in this District. Thus, all the alleged conspirators are subject to suit by the Commission in this jurisdiction. III. THE COMPLAINT STATES A" }, { "docid": "18671321", "title": "", "text": "dicta in Puma, supra, and Blanning, su pra, is factually as well as legally .misplaced. Defendants do not take issue with the applicability of the “co-conspirator” theory of venue to make all the defendants amenable to suit in the forum if venue is proper under § 27 as to any one of them. Plaintiffs have alleged that the individual defendants herein joined together with King Louie in the assertedly fraudulent tender offer. The Court has ruled that King Louie’s distribution of the tender offer by interstate mail to plaintiffs in Rhode Island satisfies the venue provisions of § 27. It is further alleged that, as directors of King Louie, the individual defendants directly caused the tender offer to be mailed into the state. This need not be established, however, in order to hold the individual defendants amenable to suit in the forum under § 27, since the “co-conspirator” theory of venue is clearly applicable: “It is well recognized that in multi-defendant and multi-forum securities fraud actions any act committed material to and in furtherance of an alleged fraudulent scheme will satisfy the venue requirement of the Exchange Act [§ 27] as to all defendants wherever the defendants are found. . . . [A]s Judge Wyatt observed in Clapp v. Stearns & Co., 229 F.Supp. 305, 307 (S.D.N.Y.1964) ‘[i]t is enough if “any act or transaction” by any defendant occurred here . . . This not only appears from the wording of the Act and from its policy to provide a forum for suits involving multi-state frauds, no matter of how many states the defendants are citizens . . ..’ See also Wyndham Associates v. Bintliff, 398 F.2d 614, 620 (2d Cir. 1968), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Zorn v. Anderson, [263 F.Supp. 745 (S.D.N.Y.1966)]; Wharton v. Roth, 263 F.Supp. 922 (E.D.N.Y.1964).” SEC v. National Student Marketing, Corp., 360 F.Supp. 284, 292 (D.D.C.1973). See also Arpet, Ltd. v. Homans, 390 F.Supp. 908, 911-912 (W.D.Pa.1975). The Court therefore concludes that jurisdiction and venue are properly laid in this district as to each of the defendants" }, { "docid": "18671317", "title": "", "text": "an inhabitant or wherever the defendant may be found”. In support of the first ground, plaintiffs point to the allegation that the defendants caused copies of the tender offer to be sent, presumably by interstate mail, to plaintiffs, almost all of whom reside in Rhode Island. Both plaintiffs and defendants agree upon the standard to be applied to test the adequacy of this action to support venue and cite many of the same cases. “In considering the extent and nature of the contact with a jurisdiction necessary to establish venue under section 27, this Court concluded in Puma v. Marriott, 294 F.Supp. 1116, 1120 (D.Del.1969) that section 27 ‘does not require that the violative act or acts form the core of the claim. All that is required is but one act within the forum district which represents more than an immaterial part of the allegedly illegal events.’ In Dauphin Corp. v. Redwall Corp., 201 F.Supp. 466, 469-470 (D.Del.1962) this Court ruled that acts committed in the jurisdiction which were ‘integral parts of’ or of ‘material importance to’ the commission of the violation of the ’34 Act were sufficient to establish venue in this jurisdiction.” Jacobs v. Tenney, 316 F.Supp. 151, 158 (D.Del.1970). Defendants acknowledge that as a general rule the use of interstate mail to distribute a proxy solicitation or, as here, a tender offer can constitute adequate ground for venue under § 27. Authority for this proposition was analyzed in Sarratt v. Walker, 405 F.Supp. 132, 134 (D.S.C.1975): “The Fifth Circuit concluded in 1961 that ‘any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in the execution of the fraudulent, deceitful scheme or in its consummation is sufficient’ for venue to lie in that district. Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); cf. Mariash v. Morrill, 496 F.2d 1138 (2nd Cir. 1974). Other district courts considering this question have also reached the same conclusion and held that venue is proper" }, { "docid": "19843755", "title": "", "text": "who did participate in the transactions in Nebraska. The court in Keene v. Weber, supra, held: [Vjenue and jurisdiction over the person of all the knowing participants in an alleged fraudulent scheme are proper under the federal securities laws as long as one of the participants commits an act in furtherance of the scheme in the forum district. 394 F.Supp. at 790. In requiring “knowing participation” for proper venue, Keene v. Weber, supra, appears to stand alone. The “co-conspirator” theory of venue provides that if proper venue is established for any of the defendants in a multi-defendant securities proceeding, where a common scheme of acts or transactions violating the securities acts is alleged, there is sufficient justification to establish venue as to the other defendants, even in the absence of any contact or substantial contact by any one defendant within the forum district. Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Zorn v. Anderson, 263 F.Supp. 745 (S.D.N.Y.1966). Furthermore, venue under 15 U.S.C. § 78aa, Section 27 of the Securities Exchange Act of 1934, is proper in any district “wherein any act or transaction constituting the violation occurred ... or in the district wherein the defendant is found or is an inhabitant or transacts business . . . .” Under Section 27, the “participation” requirement of the venue provision of § 22(a) need not be met, and venue properly laid for claims arising under either of the securities acts satisfactorily establishes venue for those arising under the other. See Zorn v. Anderson, supra, at 747—748. C. Controlling Persons. Plaintiffs allege that defendants Dalco and Tarbel are “controlling persons” as defined by the Securities Exchange Act of 1934, 15 U.S.C. § 78t, Rule 10b — 5, of the Securities and Exchange Commission, 17 C.F.R. § 240, 10-5 and the Securities Exchange Act of 1933, 15 U.S.C. § 77a, et seq. Defendants Dalco and Tarbel have submitted motions to dismiss for lack of personal jurisdiction, asserting that the discovery has revealed no evidence indicating they were controlling persons. Since" }, { "docid": "18353350", "title": "", "text": "a claim under the 1934 Act”); Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D. Pa.1974). Thus, if the defendant is served in the United States, the only objection to in personam jurisdiction that may be raised is “that the actual method of service employed was not reasonably calculated to inform the defendant of the pendency of the proceedings.” Lehman Brothers Kuhn Loeb, Inc. v. Lawrence, [1981-1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) 1198, 314 (S.D.N.Y.1981). Bradford has raised no such objection. Therefore, the focus of the motion to dismiss must be considered to be Bradford’s objections to placing venue in the Middle District of Pennsylvania. As cited above, Section 27 of the 1934 Act provides that venue is proper in a judicial district in which “any act or transaction constituting the violation occurred.” 15 U.S.C.A. § 78aa. Defendant contends that its alleged misrepresentation and omissions did not “occur” in Pennsylvania, because its sole communication with the City consisted of two telephone calls, initiated by the plaintiff, to which Bradford merely responded. Such response was not sufficiently volitional, defendant argues, to constitute an “act or transaction” within the meaning of Section 27. A party will be deemed to have effected an “act or transaction” within the meaning of the statute if there has been “any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in ... [the] consummation” of the allegedly fraudulent scheme. State Teachers Retirement Board v. Fluor Corp., 500 F.Supp. 278, 289-90 (S.D.N.Y.1980) aff'd in part, rev’d in part on other grounds, 654 F.2d 843 (2d Cir.1981) (citations omitted) (emphasis supplied). See also, Sarratt v. Walker, 405 F.Supp. 132, 133-4 (D.S.C. 1975), citing, inter alia, Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir.1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961). The venue provision “is intended to require some actual contact with the judicial district.” Fluor, 500 F.Supp. at 290. This court must disagree with Bradford’s underlying argument that as a matter of law the receipt of telephone calls, as" }, { "docid": "12934340", "title": "", "text": "exercised: It is not the [forum] State[] but the United States which would exercise its jurisdiction over [the defendant]. And plainly where ... the defendants reside within the territorial boundaries of the United States, the ‘minimal contacts’ required to justify the federal government’s exercise of power over them, are present. Mariash v. Morrill, 496 F.2d 1138,1143 (2d Cir.1974) (footnotes omitted). As the late Judge Blumenfeld wrote, with typical succinctness: In determining whether jurisdiction exists under [15 U.S.C. § 78aa] analysis under the standards of a state statute or under International Shoe v. Washington and its progeny are irrelevant. Clute v. Davenport Co., 584 F.Supp. 1562, 1580-81 (D.Conn.1984). Judge Blumenfeld went on to state, however, that plaintiffs need only show that [the defendant] participated in some manner in a scheme which resulted in a violitive act or transaction occurring in [the forum district]. Id. at 1584. This comment suggests the “twist” that §§ 77v and 78aa place on jurisdictional questions: while there is no requirement that a defendant have had any contacts with the forum district in order for there to be in personam jurisdiction, “contacts” of a nature similar to those required by due process are necessary to establish that venue has been properly laid. In part, Section 77v(a) permits actions to be brought in any district where the defendant “transacts business,” or where “the offer or sale took place.” Section 78aa similarly authorizes actions to be brought in any district where the defendant “transacts business.” In applying these provisions, courts have borrowed the “minimum contacts” due process approach in determining the threshold amount of. within-forum activity that may be considered “transacting business.” In Mariash, the Second Circuit adopted the standard first articulated in Hooper v. Mountain State Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961): ‘[A]ny use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in ... [the] consummation [of the fraudulent scheme] is sufficient’ for venue to lie in that district. Mariash, 496 F.2d at" }, { "docid": "19810823", "title": "", "text": "jurisdiction over the defendant. Included in Section 78aa are four possible alternatives for proper venue in an action under this Act: (1) where the defendant may be found, (2) where the defendant is an inhabitant, (3) where the defendant transacts business, or (4) where an act or transaction constituting the violation occurred. Only the final alternative is applicable here, but it appears sufficient to estab lish proper venue in the District of South Carolina, since the complaint and accompanying affidavit allege that defendant on two occasions employed the mails to transmit to the plaintiff in South Carolina materials which effected the illegal actions. The Fifth Circuit concluded in 1961 that “any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in the execution of the fraudulent, deceitful scheme or in its consummation is sufficient” for venue to lie in that district. Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L. Ed.2d 693 (1961) ; cf. Mariash v. Morrill, 496 F.2d 1138 (2nd Cir. 1974). Other district courts considering this question have also reached the same conclusion and held that venue is proper in a district although the defendant committed only a single act there and was never in fact physically present. See, e. g., Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa. 1974); Prettner v. Aston, 339 F.Supp. 273 (D.Del.1972); Stern v. Gobeloff, 332 F.Supp. 909 (D.C.Md.1971); Livingston v. Weis, 294 F.Supp, 676 (D.C. N.J.1968); Schneider v. Sears, 265 F. Supp. 257 (D.C.N.Y.1967). The clear authority above and a consideration of the pleadings in the light most favorable to the non-moving party, as Rule 12 requires, compel this court to conclude that venue and jurisdiction in this district are proper and that defendant’s motions must be denied. Under the provisions of Rule 12, defendant shall serve his answer within 10 days after notice of this order. And it is so ordered. . 15 U.S.C. § 78aa provides: Jurisdiction of offenses and suits The" }, { "docid": "14226337", "title": "", "text": "that a state’s provision for personal jurisdiction over insurance companies can never be used where federal securities claims are asserted. We base our decisions solely on our interpretation of the Alabama statute. . Cf. Ross v. American Income Life Ins. Co., 232 S.C. 433, 102 S.E.2d 743 (1958), where it was held that a similar statute containing “arising under” language did not cover suits for fraud in the inducement. We have been given no explanation of why, given the liberal nationwide service of process provisions of the federal Securities Acts, particularly § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, the plaintiff made use of the Alabama insurance statute to effect service of process when the whole thrust of his action was that he held a security rather than an insurance policy. Plaintiff obtained service of process on the two non-corporate defendants under the federal statute. . While the plaintiff in this case states claims under the 1933 Securities Act as well as the t 1934 Act, the general rule' is that where a plaintiff states claims under both the ’33 and ’34 Acts, the less restrictive jurisdiction and venue provisions contained in § 27 of the 1934 Act are to be applied, e. g., Arpet Ltd. v. Homans, 390 F.Supp. 908, 911 (W.D.Pa.1975); Sohns v. Dahl, 392 F.Supp. 1208, 1214 (W.D.Va.1974); Burkhart v. Allson Realty Trust, 363 F.Supp. 1286, 1292 (N.D.Ill.1973); S.E.C. v. National Student Marketing Corp., 360 F.Supp. 284, 291 (D.D.C.1973). . 15 U.S.C. § 78aa. . Other courts have expressed this standard in slightly different terms, e. g., Bath Industries, Inc. v. Blot, 427 F.2d 97, 114 (CA7, 1970) (“All that is required is but one act within the forum district which represents more than an immaterial part of the allegedly illegal events.”) We see no significant difference between such a formulation and the “material importance” language in Hooper. . “It is clear from the complaint that the ‘offer and sale’ took place in the State of Washington. . . . The alleged securities law violation was misrepresentations allegedly made in Washington at" }, { "docid": "23488273", "title": "", "text": "of 1939, 15 U.S.C. § 77zzz, and the Investment Company Act of 1940, 15 U.S.C. § 80a-49, contain similar provisions. Only the Securities Act of 1933’s provision does not include a proviso similar to “insofar as such jurisdiction does not conflict with any provision of this chapter,” but it has been so construed. Travelers Health Ass’n v. Commonwealth, 188 Va. 877, 895-897, 51 S.E.2d 263, 271 (Va.1949), affd, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950). . See part IB supra. . Because § 27 authorizes nationwide service but does not prescribe the manner of service, Fed.R.Civ.P. 4(e) might be read to allow the Texas long-arm statute to provide the manner of service, even though the statute would not provide for service under the same circumstances. See Black v. Acme Markets, Inc., 564 F.2d 681 (C.A.5, 1977) (dictum). But see Hilgeman v. National Insurance Co. of America, 547 F.2d 298 (C.A.5, 1977). . Although some courts have required minimum contacts with the forum district, arguably the due process concerns raised when a state exercises extraterritorial jurisdiction have no application to a federal court’s exercise of ex- . tradistrict jurisdiction when a federal statute authorizes nationwide service. See, e. g., Mar-iash v. Morrill, 496 F.2d 1138, 1142-43 (C.A.2, 1974). . See part IC supra. . Section 27 is quoted in full at note 7 supra. . As I have already pointed out, see note 7 supra. I agree with the majority that the statutory violation need not be a criminal violation, even though § 27 suggests otherwise. . The court situated the acts by relying on the rule, discussed in the next paragraph, that interstate communications occur in both the place of sending and the place of receipt. See 473 F.2d at 524 n.16. . See Sarratt v. Walker, 405 F.Supp. 132 (D.S. C.1972) (mailing financial statement and solicitation); Stern v. Gobeloff, 332 F.Supp. 909 (D.Md.1971) (telephone solicitation); Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974) (transmission of false information); Prettner v. Aston, 339 F.Supp. 273 (D.Del.1972) (solicitation of proxies by mail); Schneider v. Sears, 265" }, { "docid": "19843754", "title": "", "text": "S.Ct. at 1139, 16 L.Ed.2d at 228. B. Venue. 15 U.S.C. § 77v(a), Section 22 of the Securities Act of 1933, provides in relevant part that “[a]ny such suit or action may be brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the offer or sale took place, if the defendant participated therein . . . .” Although plaintiffs have not alleged venue in their complaint, contrary to defendants’ assertions, venue is an affirmative defense which need not be included in plaintiffs’ complaint. See Ripperger v. A. C. Allyn & Co., 113 F.2d 332 (2nd Cir.), cert. denied, 311 U.S. 695, 61 S.Ct. 136, 85 L.Ed. 450 (1940); Croney v. Louisville & N. R. Co., 14 F.R.D. 356 (S.D.N.Y.1953). Dalco Petroleum, Inc., relying upon Keene v. Weber, 394 F.Supp. 787 (S.D.N.Y.1975), asserts that it has performed no acts either in or outside Nebraska in connection with any of the transactions at issue and that it has no relationship with any of the defendants who did participate in the transactions in Nebraska. The court in Keene v. Weber, supra, held: [Vjenue and jurisdiction over the person of all the knowing participants in an alleged fraudulent scheme are proper under the federal securities laws as long as one of the participants commits an act in furtherance of the scheme in the forum district. 394 F.Supp. at 790. In requiring “knowing participation” for proper venue, Keene v. Weber, supra, appears to stand alone. The “co-conspirator” theory of venue provides that if proper venue is established for any of the defendants in a multi-defendant securities proceeding, where a common scheme of acts or transactions violating the securities acts is alleged, there is sufficient justification to establish venue as to the other defendants, even in the absence of any contact or substantial contact by any one defendant within the forum district. Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Zorn v. Anderson, 263 F.Supp. 745 (S.D.N.Y.1966). Furthermore, venue under 15" }, { "docid": "18671319", "title": "", "text": "in a district although the defendant committed only a single act there and was never in fact physically present. See, e. g., Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974); Prettner v. Aston, 339 F.Supp. 273 (D.Del.1972); Stern v. Gobeloff, 332 F.Supp. 909 (D.C.Md.1971); Livingston v. Weis, 294 F.Supp. 676 (D.C.N.J.1968); Schneider v. Sears, 265 F.Supp. 257 (D.C.N.Y.1967).” See also Travis v. Anthes Imperial, Ltd., 473 F.2d 515 (8th Cir. 1973). Cf. Goldberg v. Touche Ross & Co., 390 F.Supp. 290 (S.D.N.Y.1975). Despite the broad language of the cited decisions and the wide accessibility that § 27 is designed to provide, cf. Kane v. Central American Mining & Oil, Inc., 235 F.Supp. 559, 565 (S.D.N.Y.1964), defendants urge the Court to consider the distribution of the tender offer to plaintiffs in Rhode Island immaterial because only a small number of the shareholders live here. In support of this position, defendants cite dicta in Puma v. Marriott, 294 F.Supp. 1116, 1120 (D.Del.1969); and Blanning v. Tisch, 378 F.Supp. 1058, 1063 (E.D.Pa.1974). With all due respect, the Court is not convinced that an act which “constitutes] an important step in the execution of the fraudulent, deceitful scheme or in its consummation”, Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-205 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693, loses its materiality because its multistate consequences are diffuse and not concentrated in the forum state. Plaintiffs’ federal claims are based upon an allegedly fraudulent and manipulative tender offer: without the mailing of that tender offer to the public shareholders of King Louie, the scheme could never be realized. Thus, the use of interstate mails to distribute the tender offer in Rhode Island must be considered an integral and material part of the allegedly fraudulent scheme. In addition, according to the July 8, 1976, affidavit of Paul F. Greene, plaintiffs owned 12.1%, not 2.5% as asserted by defendants, of the publicly held shares of King Louie stock at the time the tender offer was commenced. As a result, the Court concludes that defendants’ reliance on" }, { "docid": "14226338", "title": "", "text": "that where a plaintiff states claims under both the ’33 and ’34 Acts, the less restrictive jurisdiction and venue provisions contained in § 27 of the 1934 Act are to be applied, e. g., Arpet Ltd. v. Homans, 390 F.Supp. 908, 911 (W.D.Pa.1975); Sohns v. Dahl, 392 F.Supp. 1208, 1214 (W.D.Va.1974); Burkhart v. Allson Realty Trust, 363 F.Supp. 1286, 1292 (N.D.Ill.1973); S.E.C. v. National Student Marketing Corp., 360 F.Supp. 284, 291 (D.D.C.1973). . 15 U.S.C. § 78aa. . Other courts have expressed this standard in slightly different terms, e. g., Bath Industries, Inc. v. Blot, 427 F.2d 97, 114 (CA7, 1970) (“All that is required is but one act within the forum district which represents more than an immaterial part of the allegedly illegal events.”) We see no significant difference between such a formulation and the “material importance” language in Hooper. . “It is clear from the complaint that the ‘offer and sale’ took place in the State of Washington. . . . The alleged securities law violation was misrepresentations allegedly made in Washington at the time of sale of the policy.” Hilgeman v. National Ins. Co. of North America, No. 69-602 (N.D.Ala., July 16, 1974). . To establish jurisdiction and venue under § 27 the defendant need not be physically present in the forum district nor need he commit more than a single act in the district if that act is important to the consummation of the scheme. E. g., Hooper v. Mountain States Securities, supra; Sarratt v. Walker, 405 F.Supp. 132 (D.S.C.1975); Mayer v. Development Corp. of America, 396 F.Supp. 917 (D.Del.1975); Oxford First Corp. v. PNC Liquidating Corp., 372 F.Supp. 191 (E.D.Pa.1974). . The “co-conspirator theory” was described by one court in the following terms: “Plainly stated, this doctrine provides that in a multi-defendant securities proceeding, where a common scheme of acts or transactions to violate the securities act is alleged, if venue is established for any of the defendants in the forum district there is sufficient justification to establish venue as to the other defendants, even in the absence of any contact or substantial contact by" } ]

[ { "docid": "18580792", "title": "", "text": "for the addition of sums owed for insurance premiums incurred by VNB. The amended Order also denied debtor an extension of the time to redeem its equity. On the day of redemption, November 15, 1985, the debtor filed a voluntary Chapter 7 petition. The property and the foreclosure were disclosed in the petition. This is the debtor’s second petition in bankruptcy, the preceding petition having been withdrawn or dismissed before this case was filed. After the hearing on December 18, 1985 debtor filed a motion to have the case converted to one under Chapter 11. Before the hearing, the trustee, by his attorney, filed a trustee’s report of property to abandon for the property at issue here. The ground for the proposed abandonment is the absence of equity in the property for the estate in excess of valid and perfected liens or security interests. The trustee also had no objection to the modification of the stay so that VNB might proceed with its foreclosure. A stipulation to this effect signed by VNB and the trustee was filed with the Court. After the hearing of December 18, 1985 the trustee moved to withdraw his report of property to abandon because he now thought the property might have some equity. We have before us two issues that have proved fertile ground for numerous decisions by the bankruptcy courts and the appellate courts that review their decisions. The first issue involves the relation of 11 U.S.C. Section 108(b) (the extension of time provisions) and 11 U.S.C. Section 362 (the automatic stay provision). The second involves the relation of 11 U.S.C. Section 362(d) (the relief from stay provisions) and 11 U.S.C. Section 362(g) (the burden of proof provisions governing 11 U.S.C. Section 362(d)). ISSUE I The first issue arises in VNB’s complaint for a declaratory judgment. VNB asks us to declare that 11 U.S.C. Section 362 does not operate to toll or suspend the running of the period of redemption set forth in the foreclosure decree. The debtor never answered the complaint. At the hearing we reserved decision. We now decide that the issue" } ]

[ { "docid": "21607535", "title": "", "text": "KING, Circuit Judge: The appellant seeks reversal of the district court’s order, 87 B.R. 20, which held that the bankruptcy court had erroneously denied the debtor/appellee’s motion to convert her case from Chapter 7 to Chapter 13 of the Bankruptcy Code. We affirm. I. The debtor/appellee, Virginia F. Martin Giacontiere (“debtor”), filed a voluntary petition under Chapter 7 of the Bankruptcy Code (the “Code”), 11 U.S.C. §§ 701-66 (1979 & Supp.1989), on December 22, 1986. John T. Pender (“trustee”) was appointed interim trustee. A creditors meeting was held on January 22, 1987, at which the appellant, Lehman A. Martin (“Martin”), was present and at which Pender was made permanent trustee. Martin is the debtor’s former husband. Although the debtor is divorced, she and Martin have not entered into a final property settlement dividing the former community estate. The bankruptcy court entered an order discharging the debtor on March 24, 1987, pursuant to section 727 of the Code. A notice of discharge was mailed on April 8, 1987. On April 9, 1987, Martin made a written offer to the trustee to purchase the bankruptcy estate’s interest in formerly community-owned real and personal property. In consideration for the property, Martin offered to assume the mortgages on the real properties involved, to assume the tax liabilities listed on the debtor’s Chapter 7 schedules, to disclaim his interest in United States Savings Bonds and a Chevrolet which were listed among the debtor’s assets on her Chapter 7 schedule, and to withdraw his proof of claim in the amount of $55,878.42 for reimbursement for his payment of community debts. On June 24, 1987, the trustee filed an application for authority to enter into a private sale, seeking to consummate the transaction proposed by Martin. The bankruptcy court set July 20, 1987, as the date for a hearing on the motion for the sale. On July 10, the debtor filed a motion for a continuance of the hearing along with an application to convert her Chapter 7 case to one under Chapter 13 of the Code. With the latter motion, the debtor filed a proposed Chapter" }, { "docid": "14470648", "title": "", "text": "Marino, 893 F.2d 1143, 1146 (10th Cir.1990), “[w]e will reverse the district court’s determination ‘only if we find a complete absence of a reasonable basis and are certain that the district court’s decision is wrong.’ ” John ston, 14 F.3d at 497 (quoting Pelican Prod. Corp., 893 F.2d at 1147). Applying these principles to the instant case, we believe the district court correctly concluded that under the exceptional circumstances of this case the bankruptcy court did not abuse its discretion in granting the Trustee’s motion for relief from the order lifting the stay under Rule 60(b)(6). The bankruptcy court emphasized that the circumstances of the case had changed significantly since it granted State Bank relief from stay to foreclose the property. The bankruptcy court granted State Bank relief from stay in part because Debtors had filed a serial petition in bad faith to prevent State Bank from foreclosing the property. Thus, in the context of the Chapter 11 reorganization, the February 17, 1993 order lifting the stay “punished” Debtors for seeking bankruptcy protection in bad faith, and allowed State Bank to foreclose its judgment lien. By December 1993, however, the case had been converted to a Chapter 7 liquidation. A foreclosure sale in the Chapter 7 would not punish Debtors, but other creditors because the estate would receive less from a foreclosure sale to distribute to creditors than it would by permitting the Trustee to liquidate the property in a commercially reasonable manner. At the Rule 60(b) hearing, the Trustee and State Bank presented evidence that the value of the property had increased since the court lifted the stay. The bankruptcy court found that the value of the property exceeded $170,000, although it “may not be as high as $956,000.” With a property value over $170,-000, the court observed that there was equity in the property in excess of State Bank’s $148,423.92 claim. Total secured and unsecured claims were $207,601.76. Based on the sharply increased property value and the total claims against the estate, the bankruptcy court determined the estate could distribute more money to the creditors if the Trustee" }, { "docid": "1068630", "title": "", "text": "financed the construction of an Orfa-process demonstration plant on the Property. At the time that the Debtors commenced their bankruptcy cases, their indebtedness to SPNB was approximately $8 million. This debt was secured by a lien on the property from OR-FAPHIL, and by certain other assets of the Debtor, notably a guarantee from ORFA-DEL secured by the Licenses. After weathering the challenges to the filings of these cases, the Debtors’ original management team was unable to secure financing to operate the Debtors. On or about May 22, 1990, SPNB filed its initial Motion for Relief from the Automatic Stay (“the Stay Motion”) to permit it to foreclose on the Property. The hearing on the Stay Motion was continued to a later date as of June 25, 1990, when the Official Unsecured Creditors’ Committee (“the Committee”) of all three Debtors, see Orfa II, supra, filed a Motion for the Appointment of Chapter 11 Liquidating Trustee or in the Alternative for Conversion to a Chapter 7 Proceeding (“the Trustee Motion”). The Trustee Motion contended that a trustee was required because the Debtors were (1) incurring significant costs of administration, (2) mismanaging their affairs, (3) incompetent to manage their affairs, (4) unable to generate any sales causing a loss in the value of the estate, and (5) unable to effectuate a plan and had no reasonable likelihood of rehabilitation. SPNB, on July 6, 1990, filed a Joinder to the Trustee Motion (“the Joinder”). This court held a hearing on the Trustee Motion on July 19, 1990. Thereafter, we granted the Trustee Motion, although we deleted the term “liquidating” from the proposed Order appointing the Trustee, and we denied the request to convert the cases to Chapter 7. On August 9, 1990, we entered an order appointing the Trustee. SMR filed a successful Application for appointment as counsel for the Trustee on August 17, 1990. Also, on August 17, 1990, SPNB filed a praecipe re-listing the Stay Motion for a hearing on August 30, 1990. We learned, at that hearing, that the Trustee’s initial decision was to liquidate the Debtors by agreeing to allow" }, { "docid": "10217249", "title": "", "text": "trustee to pay into the estate all funds which they maintain have been unlawfully disbursed. Debtors filed their petition for relief under Chapter 11 of the Bankruptcy Code on September 12, 1983. The major asset of the estate is a corporation, K.R.O.R. Broadcasting, Inc., an Oregon corporation (the corporation). The corporation owned and operated a radio station in Myrtle Creek, Oregon. The debtors were the only shareholders of the corporation at the time the petition was filed. The debtors continued as debtors-in-possession until August, 1984, when their attorney, (upon discovering that the debtors were no longer residing within this district and were no longer available to operate the radio station) moved to have a Chapter 11 trustee appointed. In response to the motion of debtors’ attorney, the Chapter 11 trustee was appointed as interim trustee herein on August 17, 1984. Thereafter, a hearing was set on motion of the debtors’ attorney and an order was entered making the Chapter 11 trustee’s appointment permanent. On August 23, 1984, the Chapter 11 trustee filed an application to employ Thomas A. Huntsberger to act as his attorney in this case (Huntsberger). Huntsber-ger was duly appointed to act as the Chapter 11 trustee’s attorney pursuant to an order entered herein on September 13, 1984. On March 22, 1985, Timber Community Bank, a secured creditor, filed a motion to convert this case to a case under Chapter 7 of the Bankruptcy Code or, in the alternative, to set a time certain for the filing of a Chapter 11 plan and disclosure statement and to require the Chapter 11 trustee to render an accounting. Several days later William Petersen, another secured creditor, filed a motion to dismiss this case and to require an accounting. In his motion, Mr. Petersen alleged that the Chapter 11 trustee had failed to account for all property held or received by him and that he had failed to furnish information concerning the estate and its administration which had been requested by creditors. He further maintained that the Chapter 11 trustee had disposed of secured collateral and had failed to distribute the" }, { "docid": "1642089", "title": "", "text": "28 U.S.C. §§ 157 and 1334. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(A), (E), (0). II. Background On July 30, 2010, Michael J. Free d/b/a Electra Lighting commenced this bankruptcy case by filing a petition for relief under Chapter 13. On February 1, 2011, the case was converted to a case under Chapter 7 and James R. Walsh was appointed as trustee. At the time of conversion, the case was assigned to the Honorable Bernard Markovitz. At the Meeting of Creditors, the Trustee requested that Debtor produce within ten days, inter alia, the keys to Debtor’s North Huntingdon Property, keys to two ski chalets located in Westmoreland County near Seven Springs, an accounting of rent from the Seven Springs properties, and the rent itself. The Debtor was also advised that he must cease business operations. When the Trustee did not receive the items requested, he reiterated his demands and warned that he would be forced to commence turnover litigation if he could not obtain cooperation. His efforts were to no avail. On March 30, 2011, the Trustee filed at Adv. No. 11-2187 a Complaint to Compel Turnover of Property of the Bankruptcy Estate Pursuant to 11 U.S.C. § 542, Recover Unauthorized Post-Petition Transfers Pursuant to 11 U.S.C. § 549, to Deny Discharge Pursuant to 11 U.S.C. § 727, for Injunctive Relief and/or Temporary Restraining Order Pursuant to Rule 7065, and Request for an Expedited Preliminary Hearing Thereon. The Complaint was premised upon Debtor’s failure to turnover assets as requested by the Trustee, his continued business operations, and post-petition sale of inventory. On April 1, 2011, an expedited hearing before the Honorable Jeffrey A. Deller was held on the Trustee’s request for a preliminary and permanent injunction. At the hearing, no defense was offered in response to the request for preliminary injunction. In ruling, Judge Deller stated the undisputed facts: Debtor continued to dispose of property of the bankruptcy estate in violation of the automatic stay, breached his duties pursuant to §§ 521, 541, and 542 of the Bankruptcy Code, in terfered with the Court’s jurisdiction, and" }, { "docid": "4749190", "title": "", "text": "ORDER WILLIAM A. HILL, Bankruptcy Judge. This matter is before the court on motion for reconsideration filed on July 7,1992, by Equitable Life Assurance Society of the United States (Equitable) and Guardian Life Insurance Company of America (Guardian). By the instant motion the movants ask the court to vacate both its order of contempt entered June 8, 1992, as well as its earlier order for turnover entered August 19, 1991. Although both orders were entered after notice and opportunity for hearing and although both mov-ants acknowledge having received copies of the trustee’s motion for turnover and later motion for contempt, neither filed a formal response with the court. Both claim not to have been aware of the Debtor’s bankruptcy filing until receipt of the trustee’s motion for turnover by which time neither was in actual possession of estate property. Before discussing the merits of these arguments, a brief history of the relevant facts will be recounted. The Debtor filed for relief under Chapter 7 on October 11, 1983. Schedules filed contemporaneously with the petition revealed IRA funds held by Equitable in the sum of $2,041.11 and by Guardian in the sum of $3,572.18. The predecessor trustee, William Daner, by letters dated February 25, 1985, and addressed to Equitable and Guardian respectively, advised them of the date of the Debtor’s Chapter 7 filing, his status as trustee and formally demanded that they surrender possession of the respective sums to him pursuant to provisions of the United States Bankruptcy Code. The letters were copied to the Debt- or’s attorney, Ross H. Espeseth, who in turn sent identical letters to Equitable and Guardian again advising them of the date of the Debtor’s bankruptcy filing but further advising them of a dispute between the Debtor and the trustee over rights to the IRA accounts. Mr. Espeseth asked that the funds not be turned over to the trustee until the dispute was resolved. Es-peseth’s letter was dated March 4, 1985. No further correspondence took place until Trustee Armstrong assumed control of the case as successor trustee. On November 20, 1990, he made another letter demand" }, { "docid": "21695131", "title": "", "text": "Judge Carter. In November 1982, Dorothy Eisenberg was appointed Chapter 7 trustee for Tiana Queen, Todem Homes and DeMarco. In early February 1983, the trustee gave notice of her intention to auction the Tiana Queen motel site and residential property and the Todem Homes option. DeMarco, apparently acting pro se, requested Bankruptcy Judge Abram to stay the auction, and, upon her refusal to do so, again appealed to the district court. The auction was held on February 23, 1983, and Robert Mantin made the highest bid for the Tiana Queen motel site. In June 1983, Judge Galgay authorized the acceptance of this bid; the debtors appealed to the district court from this order as well. In September 1983, Judge Carter rejected the debtors’ attack on the three orders. The district court held that the conversion orders were fully consistent with the requirements of 11 U.S.C. § 1112(b), that the appeal from Judge Abram’s denial of a stay was moot and that the trustee could accept Mantin’s bid. This appeal followed. B. The Conversion Orders Under the Bankruptcy Code, 11 U.S.C. § 1112(b), a Chapter 11 reorganization proceeding may be converted to a Chapter 7 liquidation case only upon the request of a party in interest, after notice and hearing, and for cause. Appellants contend that the district court erred in affirming the conversion orders because the bankruptcy court failed to comply with these requirements. We shall discuss each of them in turn. In the Tiana Queen and Todem Homes Chapter 11 proceedings, counsel for the official creditors committees filed written conversion petitions in February 1982 and March 1982, respectively. Though these petitions do not appear to have been signed, appellants do not dispute that motions for conversion were made in both these cases. Appellants do argue, however, that no such motion was ever made with respect to DeMarco’s personal estate. Appellee replies that during the course of the various hearings DeMarco’s attorney suggested the inclusion of the DeMarco estate in the conversion hearings and the United States Trustee made such a motion. We have recently held that a bankruptcy judge" }, { "docid": "17476593", "title": "", "text": "until October 11, 2001, and specifically ordered the Debtor to personally appear. The Debtor did not appear in person on October 11, 2001, and the Court set a hearing for November 15, 2001 to consider and act upon the Trustee’s Motion to Compel Turnover and Beard’s complaint in the adversary proceeding (which is discussed later in this opinion). Again, the Court ordered the Debtor to appear in person. On October 15, 2001, the Court entered an order granting termination of the Dickerson Law Firm’s representation. On November 15, 2001, the Debtor appeared without counsel and the Court continued the matter until December 4, 2001 to allow Debtor the opportunity to hire counsel. At the December 4, 2001 status hearing, Michael Knollmeyer, Esq. of Knollmeyer Law Office, P.A. appeared on behalf of Debtor and stated that the Debtor would most likely file a motion to convert in the near future. The Court then scheduled another status hearing for ■ January 10, 2002. The Debtor moved to convert his bankruptcy case from Chapter 7 to Chapter 13 on December 14, 2001. The Trustee withdrew the Motion to Compel Turnover at the January 10, 2002 hearing due to the Debtor’s motion to convert. At the January 10 hearing, Debtor’s attorney was instructed to serve a Notice and Opportunity to Object to the other parties in connection with the Debtor’s Motion to Convert to Chapter 13. A final status hearing was held on January 29, 2002. Beard filed his objection to Debtor’s motion to convert on January 30, 2002, and the Court scheduled a hearing on the matter for March 7, 2002. At the March 7, 2002 hearing, at which the Debtor failed to appear, Laura Grimes, Esq. made an oral motion on behalf of Knollmeyer Law Office, P.A. to withdraw from Debtor’s representation because she had not heard from Debtor since the firm had been retained, and because the firm would be seeking collection remedies against Debtor due to an insufficient retainer. The Adversary Proceeding Beard filed an adversary proceeding against Debtor on April 19, 2001, seeking an exception to Debtor’s discharge for" }, { "docid": "5890526", "title": "", "text": "ORDER DENYING DEBTOR’S MOTION TO CONVERT TO CHAPTER 13 AND GRANTING TRUSTEE’S MOTION FOR TURNOVER JAMES K. COACHYS, Bankruptcy Judge. This matter comes before the Court on Debtor Natasha Marie Wampler’s Motion to Convert to which Richard L. Darst, Jr., Chapter 7 Trustee (the “Trustee”), objected. Following a hearing on June 30, 2003, the Court took the matter under advisement and now issues the following order. Facts and Procedural History The Debtor commenced a voluntary case under Chapter 7 of the United States Bankruptcy Code on March 13, 2003. On Schedule B of her petition, the Debtor indicated that she had a claim, valued at $0.00, in a class action lawsuit against Rent-a-Center. At her first meeting of creditors, conducted April 18, 2003, the Debtor first indicated that the recovery from the class action could be as high as $10,000. However, she and her attorney ultimately represented that they were actually not expecting a significant award. In any event, the Trustee instructed the Debtor to inform him if she recovered an amount from the lawsuit in excess of $3,000. Subsequently, the Trustee filed a Report of No Distribution and Statement of Abandonment of Property, wherein he stated that the “there appears to be no assets in the estate over and above the valid and perfected liens of creditors and exemptions of debtor.” The Court entered its Order in No Asset Case on May 25, 2003. In the meantime, on or about April 28, 2003, the Debtor received a check in the amount of $15,265.42 from the class action lawsuit (the “Recovery”). In a letter to the Trustee dated May 12, 2002, counsel for the Debtor informed the Trustee of the Recovery and asked that he consider certain factors — that the Debtor is a single mother who does not receive child support, that she was unemployed for a period of time and now only nets $306.00 per week-in deciding whether to pursue the Recovery for distribution to the Debtor’s creditors. Notwithstanding this plea, the Trustee instructed counsel for the Debtor to turnover the Recovery. Instead, the Debtor moved to convert" }, { "docid": "10219644", "title": "", "text": "request to convert the case from chapter 7 to chapter 13” on the ground that the debtor had more than $100,000 in unsecured debts and was therefore not eligible for chapter 13 relief. It appears that no action was taken on the motion at that time. Shortly thereafter, on July 28, 1981, appellants Becker and Bershad deposed Jane Engel, a friend of the debtor’s, in the presence of appellant Leis. Ms. Engel stated that the debtor was storing items previously displayed at the debtor’s store (and presumably subject to Continental’s security interest) at her apartment and at the garage of a Mrs. Spector, and that the debtor stated to her that he had deliberately concealed three valuable lithographs from the Bank. The debtor had previously stated under oath that no one other than he had possession of any furnishings or art work belonging to his estate. The Blank, Rome firm informed the Bankruptcy Court of the deposition testimony, and the court ordered that the debtor’s residence and business and the Spector garage be padlocked pending an inventory by the trustee. Leis, Becker, and Bershad immediately brought Ms. Engel to the United States Attorney’s Office, where she gave a sworn statement. Subsequently, early in 1982, the individual appellants reported these events to Guardian. Guardian then terminated payments on all of the disability policies it had issued to the debtor. In the spring of 1982 the Bankruptcy Court conducted an evidentiary hearing on Continental’s motion to deny conversion to chapter 13. On October 3, 1983 the Bankruptcy Court issued an order granting “the motion of Continental Bank to convert this chapter 13 proceeding to one under chapter 7.” On February 22, 1983, the debtor commenced this action in the Court of Common Pleas of Philadelphia County. On March 18, 1983, the appellants filed an application pursuant to former 28 U.S.C. § 1478(a) (1982) for removal of the action to the Bankruptcy Court, stating that the debtor’s action in the state court was a “civil proceeding related to a case under title 11” and that therefore the Bankruptcy Court had jurisdiction over the" }, { "docid": "5832961", "title": "", "text": "EIF of approximately $15 million bearing a higher interest rate than the Softbank debt. EIF, on the other hand, while advancing no money of its own in any of the transactions, now had approximately $30 million in cash, as well as a claim against the Debtor for approximately $15 million. Notwithstanding some payments made to creditors as a result of the foregoing transactions, the Debtor remained beset by financial problems. On March 26, 2004, an involuntary case was commenced against it under Chapter 7 of the Bankruptcy Code. Eventually, the Debtor filed a motion to convert the involuntary case to a voluntary case under Chapter 11, and an order granting the motion was entered on December 2, 2004. On December 16, 2004, the United States Trustee appointed the Creditors Committee, and Alan Nisselson was appointed to serve as the Chapter 11 Trustee on January 28, 2005. Thereafter, the Trustee took discovery pursuant to Bankruptcy Rule 2004, including the deposition of Ashraf, which took place on February 16, 2005. On March 17, 2005, the Trustee commenced this adversary proceeding, claiming that the Debtor had been insolvent at the time of the transaction with EIF and had not received reasonably equivalent value from EIF or that, alternatively, the transaction was intentionally designed to hinder, delay or defraud the Debtor’s creditors. The Complaint also includes claims of breach of contract, that the transactions were avoidable preferences and that the Defendants’ claims, if any, should be equitably subordinated or disallowed. Along with the Complaint, the Trustee filed a motion for a preliminary injunction, seeking to restrain some $16 million that was allegedly traceable to the STARS and Collar transactions and still in the possession of the Defendants. In connection with the motion, the Trustee moved for a tempo rary restraining order providing for substantially the same relief as the preliminary injunction. A hearing was held on the motion for a TRO on March 18, 2005 (the “March 18 Hearing”). Defendants appeared at the March 18 Hearing represented by Joseph R. Sahid of the Law Offices of Joseph R. Sahid, who had previously represented Ashraf" }, { "docid": "18497626", "title": "", "text": "were missed, the case was to be converted to a Chapter 7. During the proceedings in Chapter 11, Mr. Hall filed a number of proceedings: (a) On February 3, 1991, he filed a Motion To Reconvert to Chapter 7 or alternatively to appoint a trustee in the Chapter ii; (b) on April 4, 1991, he objected to the Debtor’s choice of counsel when an Application to Authorize Employment was filed; (c) on March 19, 1992, he filed a motion to have the court appoint an attorney to bring preference actions on behalf of the estate; (d) on November 14, 1991, he filed a motion to compel marshalling of certain assets on which Planters and Merchants Bank had a lien, (e) on November 18, 1991, he filed another motion to convert this case back to Chapter 7, the first one having been denied, and (f) on December 6, 1991, for the first time, he filed an objection to the Debtor’s claimed exemption of an IRA account which is held by the Planters and Merchants Bank. This case was ultimately reconverted to Chapter 7 on or about December 6, 1991, and a new creditors meeting was scheduled for January 16, 1992. On January 14, 1992, the newly appointed Chapter 7 trustee objected to the Debt- or’s claimed exemption of the IRA and on January 17, 1992, Mr. Hall amended his objection to the IRA. The Debtor never amended his original exemption schedules in this case. QUESTIONS PRESENTED Whether, in a case converted from Chapter 11 to Chapter 7, the appointed trustee in the Chapter 7 case or any other creditor may object to the claim of exemptions originally filed in the Chapter 11 case and not amended by the Debtor in the Chapter 7 case? If this question is answered in the affirmative, the second question presented is whether or not the Debtor is entitled to claim the IRA under the facts of this case? STIPULATIONS AND UNDISPUTED FACTS At the hearing on the merits, the parties presented the court with a written set of stipulations marked and admitted as Plaintiff’s Exhibit" }, { "docid": "21695130", "title": "", "text": "DeMarco and the two corporations also faced a number of judgments obtained by unsecured creditors, many of' whom had represented DeMarco in his legal battles. The largest of these judgments dated back to December, 1979. The only significant assets in DeMarco’s estate were his interests in the two corporations. Dissatisfied with the progress of the reorganization proceedings, the creditors committee petitioned the bankruptcy court in February 1982 to convert the Chapter 11 proceeding for Tiana Queen into a Chapter 7 liquidation. Shortly thereafter, the debtors responded with plans of reorganization for all three estates. In March 1982, the creditors committee filed a motion to convert the Todem Homes Chapter 11 proceeding. Thereafter, in several hearings stretching over a period of many months, the creditors urged liquidation before Judge Galgay. Finally, at the conclusion of a hearing on October 26, 1982, over the debtors’ objections, the judge ordered the conversion of the three Chapter 11 cases to Chapter 7 liquidations. The debtors appealed from that order to the district court, and the case was assigned to Judge Carter. In November 1982, Dorothy Eisenberg was appointed Chapter 7 trustee for Tiana Queen, Todem Homes and DeMarco. In early February 1983, the trustee gave notice of her intention to auction the Tiana Queen motel site and residential property and the Todem Homes option. DeMarco, apparently acting pro se, requested Bankruptcy Judge Abram to stay the auction, and, upon her refusal to do so, again appealed to the district court. The auction was held on February 23, 1983, and Robert Mantin made the highest bid for the Tiana Queen motel site. In June 1983, Judge Galgay authorized the acceptance of this bid; the debtors appealed to the district court from this order as well. In September 1983, Judge Carter rejected the debtors’ attack on the three orders. The district court held that the conversion orders were fully consistent with the requirements of 11 U.S.C. § 1112(b), that the appeal from Judge Abram’s denial of a stay was moot and that the trustee could accept Mantin’s bid. This appeal followed. B. The Conversion Orders Under" }, { "docid": "11115869", "title": "", "text": "The offer was contingent upon the purchaser being allowed to inspect the Okemos property prior to closing. Despite repeated court orders and warnings, the Debtor allegedly continued to refuse to grant the Trustee access to the Okemos property. The Debtor’s actions eventually prompted the Trustee to file a Motion for Contempt and Sanctions against the Debtor (hereinafter “the Trustee’s Contempt Motion”) on April 28, 2003. Dkt. No. 73. The Trustee’s Contempt Motion details five occasions between March 19 and April 24, 2003, on which the Trustee’s realtor had scheduled appointments to view the Okemos property. The Debtor provided the Trustee’s realtor access to the Okemos property on only one of these occasions. At a hearing held on May 8, 2003, the court granted the Trustee’s Sale Motion. Due to the Debtor’s failure to permit the purchaser’s inspection of the Okemos property, the ultimate purchase price was reduced to $131,500. The court entered an order approving the sale on May 27, 2003. Dkt. No. 82. On May 12, 2003, the Debtor filed his request to convert his chapter 7 case to chapter 13. Dkt. No. 77. The Trustee filed a response to the Debtor’s motion to convert on May 22, 2003. Dkt. No. 81. The Trustee’s response alleged that the Debtor was ineligible for chapter 13 relief due to his lack of “regular income” and that the Debtor’s request had been filed in bad faith. A hearing on the Debtor’s motion to convert was held before this court on May 28, 2003. Although both the Debtor and the Trustee presented comprehensive argument at the hearing, neither party offered formal testimony. The foregoing factual findings have thus been gleaned from a thorough review of the court’s file. At the conclusion of the hearing, the court took the matter under advisement pending this written opinion. IV. DISCUSSION Section 706(a) of the Bankruptcy Code states: The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this" }, { "docid": "5664764", "title": "", "text": "MEMORANDUM OF DECISION JOHN K. PEARSON, Bankruptcy Judge. On November 13,1986, the debtors in the above captioned Chapter 11 filed a motion to convert their case to Chapter 12. The matter came on for hearing before the Court after the effective date of the new Chapter 12 provision. The parties were directed to submit briefs and the United States Trustee, Farmers Home Administration and the debtors have done so. The United States Trustee objects to conversion of the case as does the Farmers Home Administration. The matter is ready for ruling. The material facts are not in dispute. The debtors operate a dairy farm and decorating business in the vacinity of Fort Scott, Kansas. The total scheduled debt is $569,558.02. The debtors filed a Chapter 11 petition on December 19, 1985 and a creditors’ meeting under § 341 of the Code was held by the United States Trustee on January 31, 1986. The Federal Land Bank was granted relief from the stay to begin its foreclosure proceeding April 3, 1986. On June 18, 1986 the Farmers Home Administration filed a motion for a deadline for the filing of the plan. The Court entered an order setting the deadline as August 25, 1986. The debtors filed a plan and disclosure statement August 22, 1986. Both the Farmers Home Administration and the Federal Land Bank have lodged objections to the plan and disclosure statement. On October 9, 1986 the disclosure statement came on for approval. Upon the objections of the creditors, the Court noted several material problems with the disclosure statement and directed the debtors to make another attempt. It now appears that the creditors will not agree to any Chapter 11 plan that the debtors can perform, because of the amount of the debt and differences over the values of the assets. The debtors now seek to convert to Chapter 12 and allege that they intend to file a plan within thirty (30) days of the entry of an order of conversion. As indicated, the United States Trustee and the Farmers Home Administration oppose the conversion. ISSUES BEFORE THE COURT Does" }, { "docid": "18497625", "title": "", "text": "was ultimately dismissed by order dated June 13, 1990. After dismissal, Mr. Hall acquired several claims against the Debtor and on October 12, 1990 he, along with several other creditors, initiated an involuntary petition in Chapter 7 against Dr. Halbert. An order for relief was entered on January 15, 1991. The Debtor immediately converted this case to a Chapter 11 on or about January 28, 1991 and after receiving an extension of time, the Debtor filed his schedules on February 25, 1991. The Debtor did not attend the first meeting of creditors as originally scheduled, however, and it was not finally held and concluded until August 23, 1991. Because of the Debtor’s failure to attend, the U.S. Trustee had filed a Motion To Dismiss or Convert this case which resulted in an agreed order compelling the Debtor to appear, to have sold a certain asset by October 1, 1991, and to have his Chapter 11 Plan of Reorganization confirmed ño later than December 31, 1991. If any of the three hurdles in the Trustee’s order were missed, the case was to be converted to a Chapter 7. During the proceedings in Chapter 11, Mr. Hall filed a number of proceedings: (a) On February 3, 1991, he filed a Motion To Reconvert to Chapter 7 or alternatively to appoint a trustee in the Chapter ii; (b) on April 4, 1991, he objected to the Debtor’s choice of counsel when an Application to Authorize Employment was filed; (c) on March 19, 1992, he filed a motion to have the court appoint an attorney to bring preference actions on behalf of the estate; (d) on November 14, 1991, he filed a motion to compel marshalling of certain assets on which Planters and Merchants Bank had a lien, (e) on November 18, 1991, he filed another motion to convert this case back to Chapter 7, the first one having been denied, and (f) on December 6, 1991, for the first time, he filed an objection to the Debtor’s claimed exemption of an IRA account which is held by the Planters and Merchants Bank. This" }, { "docid": "20175530", "title": "", "text": "or before the date of the § 341 meeting of creditors, whichever is earlier, or within such additional time as the court, for cause, fixes. 11 U.S.C. § 521(a)(2)(A). When a case has been converted to chapter 7, the statement of intention must be filed within 30 days after entry of the order of conversion or before the first date set for the meeting of creditors, whichever is earlier, or within an extended time if sought and granted. Rule 1019(1)(B). . The consequential value or benefit motion must be made \"before the expiration of the applicable time set by § 521(a)(2).” 11 U.S.C. § 362(h)(2). . The June 30, 2009 Stay Relief Motion regarding the property located at Porcupine Creek was continued to November and later withdrawn by Western Capital. . The Schedules and Amended Schedules are collectively referred to in this Opinion as the Schedules. . We note that the Trustee’s position on appeal is somewhat inconsistent with his prior conduct. The March Sale included a sale of some Collateral not identified on the Debtor’s Schedules or covered by the Order Granting Relief, but the Trustee did not seek to enforce the stay until the May Sale. . Section 362(h): (1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, ... and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)— (A) to file any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender ... or retain it.... (B) to take timely the action specified in such statement.... (2) Paragraph (1) does not apply if the court determines, on the motion of the trustee filed before the expiration of the applicable time set by 521(a)(2), after notice and a hearing, that such personal property is of consequential value or benefit" }, { "docid": "1097915", "title": "", "text": "real estate to be $98,000 per Schedule B while in the Chapter 12 Plan she is attempting to treat the whole property which she values at $122,500. A final updated valuation has yet to be determined. On or about July 3, 1984, FLB commenced a foreclosure action against the Debtor and her husband in the Iowa District Court for Worth County. A Decree of Foreclosure was entered on December 26, 1984, and a Sheriffs Sale was set for March 5, 1985. Debtor and/or her husband, Francis Ouverson, has subsequently filed the following seven bankruptcy petitions: A. OUVERSON I. (Chapter 11 petition) 1. On March 4, 1985, Debtor and her husband filed a petition, No. 85-00432M, for relief under Chapter 11 of the Bankruptcy Code. A Sheriffs Sale was scheduled for March 5, 1985. 2. FLB moved for Modification of the Automatic Stay on March 27, 1985. 3. On September 25, 1985, the Automatic Stay was lifted for lack of adequate protection and to allow FLB to proceed in its foreclosure action. 4. March 3, 1986, the case was dismissed upon the Motion of First State Bank of Manly, Iowa, for failure to file a disclosure statement and plan of reorganization. B. OUVERSON II. (Chapter 7 petition) 1.March 25, 1986, Debtor and Francis Ouverson filed a Chapter 7 petition without schedules, No. 86-00637M. This filing occurred one day before a Sheriffs Sale was scheduled pursuant to the FLB foreclosure action. 2. April 8, 1986, Debtor and her husband sought voluntary dismissal. 3. The Court dismissed the proceeding without prejudice on May 23, 1986. C. OUVERSON III. (Chapter 13 petition) 1. Francis Ouverson filed this Chapter 13 petition, No. 86-00940M, on April 22, 1986. 2. Trustee filed Motion to Dismiss or Convert on May 30, 1986. 3. Francis Ouverson sought voluntary dismissal on June 26, 1986. 4. The Court granted the voluntary dismissal. D. OUVERSON IV. (Chapter 13 petition) 1. On October 24, 1986, FLB filed an Application for Appointment of a Receiver and an Application to Determine that Ouverson’s right of redemption no longer exists. These Applications were set for hearing" }, { "docid": "10198817", "title": "", "text": "MEMORANDUM ORDER ALFRED C. HAGAN, Bankruptcy Judge. The Trustee, represented by attorney H. James Magnuson, requests the debtors comply with the provisions of 11 U.S.C. § 521(2)(A) and (B). The debtors object on the grounds: 1. The trustee is trying to force the debtors to reaffirm a debt to M & I Bank of Adams-Friendship; 2. The debtor has already complied with § 521(2)(A) and (B); 3. The action of the trustee constitutes malicious harassment of the debtor for the sole purpose of enriching one secured creditor; without any possibility of enriching the bankruptcy estate of the debtors; and 4. If the Bank is funding the action then Mr. Magnuson has a conflict of interest. The debtors filed their Chapter 7 petition on January 14, 1987. The debtors filed a statement of intent pursuant to § 521(2)(A) stating their intention regarding the 1985 Plymouth Horizon as follows: Retain vehicle; keep payments and insurance current, but do not reaffirm debt. The amount of debt on the vehicle is approximately $5,467.84. The parties do not dispute the fair market value of $3,300.00 for the vehicle. The parties agree the debtors have no equity in the vehicle. The debtors received their discharge May 5, 1987. On March 15,1987, the motion, affidavit, and order for appointment of Mr. Magnu-son as counsel for the trustee was entered. Review of the file and the evidence presented at the hearing does not reveal any evidence that Mr. Magnuson is representing the interests of anyone in this action other than the trustee. The trustee brings this action to ensure the debtors shall perform his intention as specified in § 521(2). The debtor is required to file with the Clerk of the Court a statement of his intention with respect to retention or surrender of secured property subject to consumer debt, specifying whether such property is claimed exempt, or if debtor intends to reaffirm the debt or redeem the property. A Chapter 7 debtor may return, exempt, or redeem the collateral subject to secured debt or reaffirm the debt. A debtor may reaffirm a debt by agreement with the" }, { "docid": "14629479", "title": "", "text": "MEMORANDUM DECISION PEDER K. ECKER, Bankruptcy Judge. This case is before the Court on objections by the Chapter 7 trustee, Kathleen K. Kilmer, pro se, to an application for allowance of administrative expenses filed by Roger W. Damgaard, counsel for Creditors Randall and Diane Graff. A hearing on these objections was held on October 4, 1985. The debtor filed a Chapter 7 petition on December 12, 1984. Kathleen K. Kilmer was appointed trustee, and a Section 341 meeting of creditors was set for January 28, 1985. The debtor was unable to attend the meeting on January 28, and it was continued to March 25, 1985. On January 29, 1985, Roger W. Dam-gaard, attorney for Randall and Diane Graff, sent a letter to the trustee informing her of various irregularities in the debtor’s schedules, including the existence of a lake cabin owned by tlié debtor on Bass Beach, Pickeral Lake, South Dakota, which was not listed as an asset on the bankruptcy schedules. In February, Mr. Damgaard filed a motion for Section 2004 examination, which was granted by the Court. Mr. Damgaard conducted the Section 2004 examination of the debtor on March 11, 1985. During the examination, the debtor admitted that he had failed to list as assets on his schedules a lake cabin, which he estimated to be worth $14,000.00; a Melroe Bobcat; some accounts receivable; and some items of personal property in a ministorage facility in Minnesota. The debtor said that he had granted his grandfather-in-law a security interest in the lake cabin, and he turned over copies of the security documents to Mr. Damgaard. Following the Section 2004 examination, Mr. Damgaard filed a motion requesting an extension of time to file a complaint objecting to discharge, which the Court granted. Mr. Damgaard asks that his fees be paid as an administrative expense because his efforts were instrumental in the discovery of concealed assets for the estate. The trustee objects, arguing that Mr. Dam-gaard’s efforts did not contribute significantly to the discovery of assets and that, even if the Court determines otherwise, his fees include charges for work not" } ]

[ { "docid": "22674426", "title": "", "text": "that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission.” Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940) (footnotes omitted). We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures. Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart’s opinion in United States v. Mendenhall, 446 U. S. 544, 554 (1980), and adopted by the Court in later cases, see Michigan v. Chesternut, 486 U. S. 567, 573 (1988); INS v. Delgado, 466 U. S. 210, 215 (1984): “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 446 U. S., at 554. See also Florida v. Royer, 460 U. S. 491, 502 (1983) (opinion of White, J.). In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized “only if,” not that he has been seized “whenever”; it states a necessary, but not a sufficient, condition for seizure — or, more precisely, for seizure effected through a “show of authority.” Mendenhall establishes that the test for existence of a “show" } ]

[ { "docid": "18889057", "title": "", "text": "what a courier is. Baskin also objected to the use of a government diagram and the scope of the expert testimony. Finally, Rawls opined that it would be uncommon for a consumer to buy as much as 50 grams since that would be about 200 usages. The defense presented no evidence at trial. II. Analysis A. Suppression of Evidence The government admits that at the time the officers approached the defendant, identified themselves and asked him questions, they did not have probable cause to arrest him. In addition, the government states that we can assume that the police lacked articulable suspicion to stop the defendant when they accosted him. Instead, the government’s theory throughout has been and remains that the defendant was not “seized” until arrested after he had voluntarily consented to the search that yielded drugs. Whether or not the defendant was seized depends on the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct.1975, 1979, 100 L.Ed.2d 565 (1988). “Only when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The question becomes whether or not “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (footnote omitted). According to the government, questioning the defendant was not a seizure because a reasonable person would have felt free to leave and the defendant later voluntarily consented to the search of his bag. The government claims that we need not decide whether the dog’s signals gave the police probable cause to arrest the defendant and search his bag. The police officers admit that they did not tell the defendant prior to searching his bag that he did not have to talk to them, was free to leave and did not have to consent to the" }, { "docid": "8931199", "title": "", "text": "defendant on the bus, which was conducted on a strictly random basis, amounted to a “seizure” under the Fourth Amendment. A seizure occurs when a citizen’s liberty is restrained by a police officer through physical force or a show of authority. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Whether the defendant was seized depends on the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). The question is whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). The subjective beliefs of the person approached are irrelevant to whether a seizure has occurred. United States v. Winston, 892 F.2d 112, 115-16 (D.C.Cir.1989); United States v. Carrasquilla, 877 F.2d 73, 76 (D.C.Cir.1989). Rather the test assumes a reasonable citizen “innocent of any crime.” Gomez v. Turner, 672 F.2d 134, 140 (D.C.Cir.1982). The Court of Appeals for this Circuit has held that “the Fourth Amendment is not necessarily implicated when a police officer initiates an encounter with a citizen he has no articulable reason to suspect of a crime.” Winston, supra at 117; See also United States v. Baskin, 886 F.2d 383 (D.C.Cir.1989). As this Court noted in United States v. Lewis, supra, both Winston and Baskin were cases in which the police approached and interviewed individuals after they had deboarded their trains and were walking in the open and public concourses in and outside of Union Station. In both cases, the Court held that under the circumstances a reasonable person would have felt free simply to walk away from the officer and, therefore, a seizure did not take place. As I stated in Lewis, I do not believe that a reasonable person would feel free to leave under the circumstances of a “bus stop,” in which officers board a narrow, cramped bus en route to another destination in" }, { "docid": "6454496", "title": "", "text": "cause and exigent circumstances, warrant-less arrests in the home are prohibited by fourth amendment); Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (warrantless arrest in home for nonjailable traffic offense not justified by exigent circumstances). The United States Supreme Court has recognized, however, that there are times when it is not practicable for the police to obtain a warrant before engaging in certain kinds of legitimate police activity. Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879. The constitutionality of these types of situations is judged by the fourth amendment’s general proscription against unreasonable searches and seizures. Id. In Terry the Court held that the police may, without probable cause and without a warrant, seize an individual and conduct a protective “pat-down” search for weapons when there exists an articulable reasonable suspicion that the individual is engaged, or will be engaged, or has engaged in criminal activity. Id. at 30, 88 S.Ct. at 1884. The Terry Court also recognized that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. [Wjhen the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen ... a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16; Michigan v. Chesternut, — U.S. -, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (unanimous Court); United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1979) (opinion of Stewart, J.). See generally 3 W. La-Fave, Search and Seizure § 9.2(h) (2d ed. 1987) (discussing police action not constituting a Terry stop). In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Justice Stewart, in an opinion joined in by then Associate Justice Rehnquist, formulated a test, inspired by the above-quoted language from Terry, to be used to determine when a person has been “seized” within the meaning of the fourth amendment: [A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of" }, { "docid": "23203747", "title": "", "text": "evidence of “confusion,” Valdiosera-Godinez points to a note from the jury that asked the court to “Please define conspiracy.” Citing United States v. Cowan, 819 F.2d 89 (5th Cir.1987), in which the court reversed a conviction because the trial judge impermissibly influenced the jury to return a verdict, Valdios-era-Godinez speculates that the district court conducted ex parte communication with the jury. It is somewhat troubling that the record contains no indication of what, if any, response the court made to the jury’s note. In the absence of any colorable suggestion of ex parte contact, however, we assume that the jury simply received a written copy of the charge. Because the charge accurately stated the law of conspiracy, the jury’s verdict against Valdiosera-Godinez was not infirm. II. DEFENDANT GARCIA-GIL A. Motion to Suppress Garcia-Gil first argues that the district court erred in denying his motion to suppress the results of the storage unit search. He claims that the customs agents “seized” him for Fourth Amendment purposes when they first confronted him and that this seizure was not justified by reasonable suspicion, much less probable cause. Because he gave his consent to search the unit only after an illegal investigative stop, the consent was tainted and therefore invalid. The district court found that “[t]he initial contact between Agent Urbina and the three Defendants was merely the sort of consensual encounter that does not implicate Fourth Amendment rights.” That is, Garcia-Gil was not “seized” until sometime after he had consented to the search of the storage unit. We affirm the district court’s rulings. According to the Supreme Court, “the police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)). The test has an “objective standard—looking to the reasonable man’s interpretation of the" }, { "docid": "6151933", "title": "", "text": "becomes a seizure when ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” United States v. Jones, 562 F.3d 768, 772 (6th Cir.2009) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). We have noted that, “[circumstances indicative of a seizure include ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” Id. (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870). However, absent the intentional application of physical force, even if there is a show of authority and a reasonable person would not feel free to leave, in order for a seizure to occur there must also be submission to the show of authority: “there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Brendlin, 551 U.S. at 254, 127 S.Ct. 2400 (citations omitted) (the Court, noted that “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, ‘by means of physical force or show of authority,’ terminates or restrains his freedom of movement ... through means intentionally applied ” (emphasis in original) (citations omitted)); see also Hodari D., 499 U.S. at 626 n. 2, 111 S.Ct. 1547. Concerning submission, the Court noted that: “what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” Brendlin, 551 U.S. at 262, 127 S.Ct. 2400. ii. Investigatory Terry stops In evaluating an investigatory Terry stop, this court engages “in a two-part analysis of the reasonableness of the stop.” Caruthers, 458 F.3d at 464 (quoting United States v. Davis, 430" }, { "docid": "23303544", "title": "", "text": "— is difficult. Nevertheless, it is at least clear that such a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16). Justice Stewart’s opinion has since been cited and relied on for establishing the test for a fourth amendment seizure: “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. 446 U.S. at 554, 100 S.Ct. at 1877. Accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); Delgado, 466 U.S. at 215, 104 S.Ct. at 1762; Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). As the Supreme Court’s cases make clear, this test requires, generally, that we “take into account ‘all of the circumstances surrounding the incident’ in each individual case.” Chesternut, 486 U.S. at 572, 108 S.Ct. at 1978 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). The Supreme Court has explicitly set forth several factors which might aid in applying the Mendenhall test. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Applying the test in Mendenhall, Justice Stewart found no fourth amendment seizure. Agents of the DEA stopped Mendenhall in the airport concourse, identified themselves as federal agents, asked to see her identification and her airline ticket, noted discrepancies between the two, and" }, { "docid": "16428806", "title": "", "text": "district court’s ruling on the motion, and we review the district court’s findings of fact and credibility determinations for clear error.” United States v. Fermin, 771 F.3d 71, 76 (1st Cir.2014) (quoting United States v. Camacho, 661 F.3d 718, 723 (1st Cir.2011)). We review conclusions of law, including the ultimate conclusion whether a seizure occurred, de novo. Camacho, 661 F.3d at 724. Fields bears the burden of establishing that he was seized. Id. A. The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const, amend. IV. “The protections of the Fourth Amendment apply not only to traditional arrests, but also to those brief investigatory stops generally known as Terry stops.” Camacho, 661 F.3d at 724. An officer may ordinarily execute a Terry stop without running afoul of the Fourth Amendment if the officer “reasonably suspects that the person apprehended is committing or has committed a crime.” Id. at 726 (quoting Arizona v. Johnson, 555 U.S. 323, 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)). The police need not have taken physical custody of a person in order to be deemed to have effected a Terry stop for which at least reasonable suspicion is required. Such a stop instead may occur merely upon law enforcement making what the Supreme Court has termed a “show of authority.” See United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Such a “show of authority” occurs, however, only when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554, 100 S.Ct. 1870. And, further, the show of authority effects a seizure only when the defendant actually yields or submits to the show of authority. See California v. Hodari D., 499 U.S. 621, 628-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). We appreciate “that few people ... would ever feel free to walk away from any police question.” United States v. Cardoza, 129 F.3d 6, 16 (1st Cir.1997). But that reality obviously does not mean that every police-citizen encounter results in a show of" }, { "docid": "3227255", "title": "", "text": "of the encounter do not qualify it as a seizure. A reasonable person is less likely to feel the coercive pressure of law enforcement officers when the encounter takes place in a public place. Foyers of airport terminals are non-coercive, public places. The baggage area at Midway was such a place. See $73,277 United States Currency, 710 F.2d at 289 (noting that “all of the events transpired in an open, public area of the concourse with many other travelers present”). We conclude, therefore, that the initial questioning of Sterling by the agents did not constitute an unreasonable Terry stop. Under these circumstances, it is irrelevant whether the agents had a reasonable suspicion that “criminal activity may be afoot” when they first approached her. Terry, 392 U.S. at 30, 88 S.Ct. at 1884. 2. The Ripening of the Consensual Encounter into a Permissible Terry Stop. The standard employed in determining whether that initial, consensual interview ripened into an investigative detention is an objective one. “ ‘[A] person has been “seized” within the meaning of the Fourth Amendment ... only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)). Obviously a consensual encounter can become an investigatory detention as a result of police conduct. See, e.g., United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (holding that a seizure occurred when defendant refused to consent to search of his luggage and agents said they were going to take it to a judge to get a search warrant); United States v. Jaramillo, 891 F.2d 620, 624 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1791, 108 L.Ed.2d 792 (1990) (consensual encounter ripened into a stop when patdown search was initiated); United States v. Palen, 793 F.2d 853, 857 (7th Cir.1986) (statement by agent" }, { "docid": "7945644", "title": "", "text": "the meaning of the Fourth Amendment. See Withers, 972 F.2d at 841 (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), and Edwards, 898 F.2d at 1277). In Johnson, and more recently in Withers, this court reviewed the three categories of police-citizen encounters and the Fourth Amendment requirements imposed on each of them: “The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment ‘seizure,’ but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer 'seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment.” Withers, 972 F.2d at 841 (quoting Johnson, 910 F.2d at 1508). The test for determining whether a seizure has occurred for purposes of the Fourth Amendment is expressed in objective terms:. “ ‘[A] person has been .“seized” within the meaning of the Fourth Amendment ... only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989). Although this inquiry is highly fact-specific' and requires a court to view the facts and circumstances confronting the individual in their totality, certain factors have emerged as being probative of whether a reasonable person would have felt free to leave. These include: whether the encounter took place in a public area or whether police" }, { "docid": "3384820", "title": "", "text": "of the Terry stop to detentions grounded on reasonable suspicion of other criminal activity, see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (border patrol may detain automobiles briefly for questioning upon reasonable suspicion that passengers are illegal aliens), and provided an objective test for determining when a “seizure” has actually occurred. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (“a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”); Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (explicitly adopting Mendenhall test). In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a plurali ty of the Supreme Court sought to clarify the distinctions among the categories identified in Terry. With respect to the difference between an arrest and a Terry stop, the Court described Terry and its progeny as limited exceptions to the general rule requiring probable cause for seizures, and extended this reasonable suspicion exception to temporary detentions for questioning a suspect about illegal drug transactions. See 460 U.S. at 498-99, 103 S.Ct. at 1324-25. While the Royer plurality did not dispute the existence of reasonable suspicion on the facts of that case (where the suspect had purchased a one-way ticket from Miami to New York in cash under an assumed name), it concluded that the detention had escalated into a more serious seizure, requiring probable cause, when the police held onto the suspect’s ticket and identification and took him into a small room for questioning. See id. at 502-03, 103 S.Ct. at 1326-27. As to the propriety of police encounters with suspects absent reasonable suspicion (“non-seizures”), the plurality noted that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is" }, { "docid": "23203748", "title": "", "text": "not justified by reasonable suspicion, much less probable cause. Because he gave his consent to search the unit only after an illegal investigative stop, the consent was tainted and therefore invalid. The district court found that “[t]he initial contact between Agent Urbina and the three Defendants was merely the sort of consensual encounter that does not implicate Fourth Amendment rights.” That is, Garcia-Gil was not “seized” until sometime after he had consented to the search of the storage unit. We affirm the district court’s rulings. According to the Supreme Court, “the police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)). The test has an “objective standard—looking to the reasonable man’s interpretation of the conduct in question.” Id. at 574, 108 S.Ct. at 1980. In Chesternut, the Court decided that a suspect was not seized when he assertedly was “chased” by a squad car. It was important that “[t]he record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or that they operated the car in an aggressive manner to block respondent’s course.” Id. at 575, 108 S.Ct. at 1980. Moreover, the fact that the officers’ conduct “could be somewhat intimidating” does not mean a seizure has occurred. Id. In Garcia-Gil’s case, Agents Urbina and Compton showed their badges and announced that they were federal officers, but displayed no weapons. They parked far enough away from the storage unit that the automobile inside could have been driven out. When Agent Urbina asked to speak to the defendants, he motioned them outside the unit instead of barging into it. He twice asked Garcia-Gil to drop the pliers he was holding, but did not confiscate them. An officer of the El Paso" }, { "docid": "22566173", "title": "", "text": "a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized. See Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Next she must show that she suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable. Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.2000). We hold that Flores satisfactorily alleged each element of a Fourth Amendment excessive force claim. 1. SEIZURE Kalina argues that the Fourth Amendment does not apply to Flores’s excessive force claim because he had not yet seized Flores when he shot her car. Thus, he argues, the allegedly excessive force was applied before the seizure. See California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that the Fourth Amendment is not triggered until the moment a person is actually seized). We disagree. An officer seizes a person when he, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added). In addition, the “governmental termination of freedom of movement” must be made “through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (emphasis in original). Kalina argues that Flores was not seized by the gunshot because she was not aware of its existence and so did not submit to a show of authority when she stopped. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (holding that when a person has been restrained through a show of authority, that person has been seized “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct." }, { "docid": "6454497", "title": "", "text": "involves ‘seizures’ of persons. [Wjhen the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen ... a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16; Michigan v. Chesternut, — U.S. -, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (unanimous Court); United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1979) (opinion of Stewart, J.). See generally 3 W. La-Fave, Search and Seizure § 9.2(h) (2d ed. 1987) (discussing police action not constituting a Terry stop). In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Justice Stewart, in an opinion joined in by then Associate Justice Rehnquist, formulated a test, inspired by the above-quoted language from Terry, to be used to determine when a person has been “seized” within the meaning of the fourth amendment: [A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. Id. at 554-555, 100 S.Ct. at 1877 (opinion of Stewart, J.) (citations and footnote omitted). In Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), a plurality of the Court used Justice Stewart’s “not free to leave” test in an airport drug courier case, and in Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104" }, { "docid": "23402659", "title": "", "text": "citizenry. are Fourth Amendment seizures. In Terry v. Ohio, the Supreme Court noted, “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The appellants claim that the officers’ knocking on their motel room’s door and window and shining a flashlight through the room’s window amounted to such a restraint on their liberty. The Supreme Court has formulated two approaches for determining whether a person has been “seized” within the meaning of the Fourth Amendment. The first of these approaches is employed when the police approach an individual in a place such as an airport, train terminal or on the street. As a general matter, law enforcement officers may approach a willing individual in a public place and ask that person questions without violating the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984). In these situations, a “seizure” of the person occurs only if a reasonable person in similar circumstances would not have felt “free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); United States v. Boden, 854 F.2d 983, 991 (7th Cir.1988). The second approach articulated by the Supreme Court applies when the police approach an individual in a confined space such as a bus. In such a situation, it no longer “makes sense to inquire whether a reasonable person would feel free to continue walking.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Because a person on a bus or in an otherwise confining space “has no desire to leave”" }, { "docid": "23018863", "title": "", "text": "has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). For purposes of invoking Fourth Amendment protection, a person is deemed “seized ... ‘only if ... a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see also INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). This so-called “Mendenhall test” was discussed by the Supreme Court in its recent case, California v. Hodari D., — U.S. —, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), where the court emphasized that the language “only if” employed by the test “states a necessary, but not a sufficient condition for seizure ... effected through a ‘show of authority.’ ” The Court then held that assuming the police officer’s actions constituted a show of authority seeking to enjoin the defendant to halt, “since [the defendant] did not comply with that injunction he was not seized until he was tackled.” Id. at 1552. Here, the intrusion on Mr. Morgan in regard to the initial attempted questioning by Officer Eubanks and the subsequent exchange between the two was minimal. However, since Officer Eubanks had followed the car in which Defendant was a passenger for several blocks with his red lights flashing; since Officer Eubanks exited from a marked police car, in uniform, and asked the Defendant to hold up; and since Defendant, at least momentarily, yielded to the Officer’s apparent show of authority, we find Mr. Morgan was seized for purposes of the Fourth Amendment during the initial portion of the encounter. Cf. Hodari D., 111 S.Ct. at 1550 (“[On] [t]he narrow question ... [of] whether, with respect to a show of authority ... a seizure occurs even though the subject does not yield. We hold that it does not.” (Emphasis added.)) We further find, however, this initial" }, { "docid": "6715697", "title": "", "text": "F.Supp. at 144. Finally, Colon’s words and actions indicated that she consented to the search. There is no evidence that Colon had any trouble understanding the agents’ request to look in her bag. She spoke primarily in English at all relevant times, and no one testified that she had any difficulty understanding questions or framing answers. There is, therefore, no reason to discount Colon’s direct and unambiguous answer to the request to search her bag. B. The Initial Encounter and Questioning We now consider whether Colon’s consent was vitiated because she and Montilla were illegally seized when the agents initially approached and questioned them. We reiterate that if a seizure occurred, it was illegal, because the government makes no claim that the agents had probable cause for an arrest or that the encounter was a stop valid under Terry v. Ohio. As the Supreme Court has repeatedly observed: Obviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred. Michigan v. Chestemut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1878 n. 16). A person has been seized for purposes of the Fourth Amendment “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion of Stewart, J.); see also Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979 (unanimous Court applying Mendenhall standard); INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion of White, J.); United States v. Moreno, 897 F.2d 26, 30 (2d Cir.), cert. denied, — U.S. —, 110 S.Ct. 3250, 111 L.Ed.2d 760" }, { "docid": "14498117", "title": "", "text": "FBI agents had no right to arrest Awadallah before obtaining a warrant. The Fourth Amendment to the United States Constitution mandates: “The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. If the agents believed that they had sufficient evidence to arrest Awadallah prior to questioning him and searching his property, they could have sought a warrant from the court. Their failure to do so may indicate that the purpose of the confrontation with Awadallah was to obtain sufficient evidence via consent searches and interrogation in order to obtain a warrant. A key question is whether FBI agents improperly arrested Awadallah. The Supreme Court has stated that “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). “As long as the person to whom questions are put remains, free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Accordingly, “[a]n arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (emphasis in original). Examples of what might constitute a seizure include “the threatening presence of several officers, the display of weapon by an officer, some physical touching of the person of the citizen, or the use of" }, { "docid": "5432952", "title": "", "text": "the defendant’s initial encounter with the police was merely an investigative stop justified by the circumstances of the encounter. The government also contends that the circumstances of the initial encounter between the officers and Mr. McKenzie justify characterizing it as a mere contact which did not implicate the fourth amendment. A “seizure” under the fourth amendment takes place “when (an) officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen”. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). In determining whether a particular defendant was seized, the Court must examine the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). “The question becomes whether or not ‘a reasonable person would have believed that he was not free to leave.’ ” United States v. Baskin, 886 F.2d 383, 386 (D.C.Cir.1989), quoting United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Under the circumstances presented here, the Court concludes that defendant McKenzie was seized when he fled and officers Adams and Mead pursued him down the seventh floor hallway of the apartment building. The officers, upon arriving in the hallway, found the defendant standing near a man who was tampering with the door of apartment 721. They took-steps to apprehend the man tampering with the door, and ordered the defendant to cooperate. When the defendant fled instead of following their commands, two officers pursued him. A reasonable person under these circumstances would not have felt free to leave and calmly go about his business. The situation here is distinguishable from the facts in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), where the Supreme Court found that a police pursuit of a person did not constitute a seizure under the fourth amendment. In Chesternut, police officers on routine patrol observed a man get out of a car and join defendant Chesternut on a street corner. When the defendant saw the police cruiser he" }, { "docid": "7271939", "title": "", "text": "all § 1983 cases, the plaintiff must prove that the defendant’s action was a proximate cause of the plaintiffs injury.”). IV. Fourth Amendment With respect to the plaintiffs’ claim under the Fourth Amendment, as applied to the States under the Fourteenth Amendment, the district court held that only Mora, and not her mother, had standing to assert a claim, that Mora was not “searched” within the meaning of the Fourth Amendment when the Hospital ex amined her urine, and that Mora was not subject to an unreasonable “seizure” in violation of the Fourth Amendment when she was kept from her parents’ custody. See Kia P., 2 F.Supp.2d at 292-93. The plaintiffs appeal only the last of these determinations. The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. We have observed that the Fourth Amendment applies in the context of the seizure of a child by a government-agency official during a civil child-abuse or maltreatment investigation. See Tenenbaum, 193 F.3d at 602. And there is no doubt that Mora’s retention by the Hospital was a “seizure” within the meaning of the Fourth Amendment. A “seizure” occurs where, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (plurality opinion of Stewart, J.); accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). Although the usual phrasing of the seizure test is difficult to apply here — Mora P. is unlikely to have had a “belief’ as to whether or not she was free to leave the Hospital — Kia P. was told in no uncertain terms that she could not take Mora home from the" }, { "docid": "12648991", "title": "", "text": "court rejected defendant’s request for a downward departure and imposed a sentence within the guideline range. II ANALYSIS A. Suppression of Evidence We turn first to Mr. Sullivan’s argument that the district court erred in not suppressing the narcotics evidence. 1. Mr. Sullivan asserts, as he did in the district court, that a seizure took place when he was questioned at Union Station, and that the officers did not have a reasonable suspicion of illegal activity. The fourth amendment to the Constitution of the United States protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In arguing that he was unreasonably seized, it is axiomatic that Mr. Sullivan must first succeed in proving that his encounter with the officers at Union Station was a “seizure.” If, however, Mr. Sullivan consented to the encounter, we have repeatedly held that such a situation is not a “seizure” for purposes of the fourth amendment. See, e.g. United States v. Jaramillo, 891 F.2d 620, 625 (7th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1791, 108 L.Ed.2d 792 (1990); United States v. Dunigan, 884 F.2d 1010, 1015 (7th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 & n. 6 (7th Cir.1989); United States v. Espinosa-Alvarez, 839 F.2d 1201, 1205 (7th Cir.1987). A person is “seized” when “ ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see also Teslim, 869 F.2d at 321. The district court, after conducting a suppression hearing in which it heard and evaluated the testimony of Mr. Sullivan and the police officers, found that Mr. Sullivan consented to the questioning by the officers. Based upon the defendant’s own testimony, it seems to me that it’s clear that the defendant was free to leave during his encounter with" } ]

[ { "docid": "16513552", "title": "", "text": "petitioned the Door County Board of Adjustment (“Board”) to overturn the administrator’s decision. The Board conducted a public hearing on the issue and ultimately determined that single family time-share condominiums were not permitted under the relevant zoning ordinance. As a result, the Board revoked Harding’s building permit. Harding unsuccessfully appealed the Board’s decision to the Circuit Court of Wisconsin. The Wisconsin Court of Appeals, however, eventually reversed the lower court and ordered the Board to reinstate the permit. By this time, however, Harding lacked the financial capability to complete the project. After triumphing in the appellate court, Harding, pursuant to 42 U.S.C. § 1983, filed suit against Door County in the district court alleging that the revocation of his building permit violated his substantive due process rights. The parties filed cross-motions for summary judgment and, in July 1988, the district court granted Door County’s motion. Harding appeals from this decision. II. Harding’s principal argument on appeal is that the Board violated his substantive due process rights by revoking his building permit. A zoning decision denies substantive due process only if it is invidious or irrational. Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988). Therefore, Harding must demonstrate that the Board’s decision revoking his building permit was invidious or irrational. Plaintiff argues that the Board’s zoning decision was irrational because it lacked authority under Wisconsin law to revoke a building permit once it determined that the building complied with the zoning ordinance’s structure or use requirements. This court, however, rejected a similar argument in Coniston stating: This case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law — a sure sign of masquerading being that the plaintiffs do not challenge the constitutionality of the zoning ordinance s.... but argue rather that the Board of Trustees had no authority under those ordinances to reject their site plan once the Village Plan Commission had approved it. If the plaintiffs can get us to review the merit of the Board of Trustees decision under state law, we cannot imagine what zoning dispute could not be shoehorned" } ]

[ { "docid": "5318432", "title": "", "text": "1, 4, 8, 94 S.Ct. 1536, 1538, 1540, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388-90, 395, 47 S.Ct. 114, 118-19, 121, 71 L.Ed. 303 (1926). Moreover, unless they impinge upon a constitutionally protected fundamental interest, we review zoning ordinances only to determine whether they are arbitrary or unreasonable, see RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 914-15 (2d Cir.1989) (“zoning regulations will survive substantive due process challenge unless they are ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare’ ”) (quoting Am bier Realty Co., 272 U.S. at 395, 47 S.Ct. at 121); Brady v. Town of Colchester, 863 F.2d 205, 215-16 (2d Cir.1988); Horizon Concepts, Inc. v. City of Balch Springs, 789 F.2d 1165, 1167 (5th Cir.1986) (because zoning is a quasi-legislative process, local zoning ordinances are reviewed only to determine if arbitrary and capricious). A federal court typically will not “sift through the record to determine whether policy decisions are squarely supported by a firm factual foundation”. City of Cleburne, 473 U.S. at 458, 105 S.Ct. at 3264 (Marshall, J., concurring in judgment in part and dissenting in part) (citations omitted). Significantly, Greene does not contend that the R-80 classification of his property destroys its value or deprives him of any reasonable use of the land. Instead, he argues that the boundary between the R-80 and R-30 districts that crosses his property follows a straight line at approximately 800 feet of elevation until it veers sharply from what Greene calls its “natural, rational and logical course” to an elevation of 620 feet, placing more of Greene’s property in the more restrictive district. Greene contends that in drawing this boundary line, the town acted arbitrarily and capriciously, with the sole purpose of depriving him of the same property rights afforded similarly situated landowners. We agree with the district court that the R-80 districts are rationally related to Blooming Grove’s legitimate state interests of (1) preventing overcrowding and (2) providing adequate support for single family dwellings on land that is" }, { "docid": "3479801", "title": "", "text": "And as we pointed out in Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 95 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993), a substantive due process claim is not ripe for review absent the rendering of a final decision by the governmental entity, and also requires the plaintiff to have sought compensation if the state provides a “reasonable, certain and adequate provision for obtaining compensation.” (quoting Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985)). OLA’s substantive due process and taking claims fail both these tests. There is nothing to indicate that the zoning ordinance in question here bears anything other than a rational relationship to a legitimate government objective. Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926) (a property owner can challenge the constitutionality of a zoning restriction if it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare”); Greene v. Town of Blooming Grove, 879 F.2d 1061, 1063-64 (2d Cir.1989). The limitation of future development around Orange Lake, an environmentally critical area according to the town’s planning consultants, is a. perfectly legitimate goal. C. Equal Protection, OLA argues that the actions taken on behalf of the Town Board constitute “a concerted plan and conspiracy to deprive inter alia minority people of their equal protection rights and Fair Housing Act rights.” Brief for Appellant at 45 (citing Complaint, ¶¶ 15, 142, and 147). The members of the Town Board argue that OLA mischaracterizes their actions with accusations that are eonclusory, and that do not-create a genuine issue of material fact. Brief for Appellee at 43-49. Specifically, OLA argues that the zoning amendment in question has a disparate impact on minorities and asks us to apply strict scrutiny accordingly. In this case, the law is a facially neutral amendment to a pre-exist-ing zoning law." }, { "docid": "3479800", "title": "", "text": "safety and general welfare prevented expectation of success from rising to the level of a property right meriting protection under the Fifth and Fourteenth Amendments). See also RRI Realty, 870 F.2d at 919 (where Village officials have wide discretion to deny housing application, there can be no certainty or very strong likelihood that Village officials, absent alleged due process violation, would have approved the permit; therefore, the applicant did not have an entitlement sufficient to invoke the protection of the due process clause); Ellentuck v. Klein, 570 F.2d 414, 429 (2d Cir.1978) (“Under New York law ... a landowner has no vested interest in the existing classification of his property.”). Nor is OLA aided by Lucas v. South Carolina Coastal Council, — U.S. -, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). There the Court explicitly stated that “it seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State.” — U.S. at -, 112 S.Ct. at 2899. And as we pointed out in Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 95 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993), a substantive due process claim is not ripe for review absent the rendering of a final decision by the governmental entity, and also requires the plaintiff to have sought compensation if the state provides a “reasonable, certain and adequate provision for obtaining compensation.” (quoting Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985)). OLA’s substantive due process and taking claims fail both these tests. There is nothing to indicate that the zoning ordinance in question here bears anything other than a rational relationship to a legitimate government objective. Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926) (a property owner can challenge the constitutionality of a zoning" }, { "docid": "23113173", "title": "", "text": "of the Due Process Clause of the Fourteenth Amendment protects landowners in disputes with local agencies empowered to limit the permissible uses of their property. Though appellate courts frequently invoke Justice Marshall's observation that the role of the Supreme Court (and presumably of every other federal court as well) “should not be to sit as a zoning board of appeals,” Village of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 1543, 39 L.Ed.2d 797 (1974) (Marshall, J., dissenting), their willingness to entertain a claim that a local land use regulator has acted arbitrarily or capriciously sometimes leads them to require trial courts to make an inquiry similar to the sort of determination that zoning boards of appeal routinely make. The initial effort to subject local land use decisions to constitutional scrutiny involved challenges to new zoning restrictions imposed upon property owners. The Supreme Court’s first consideration of such a challenge, though occurring in an era when substantive due process was often a formidable protection against governmental regulation, met with a significant rebuff. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.2d 303 (1926). The Supreme Court ruled that zoning regulations will survive substantive due process challenge unless they are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Id. at 395, 47 S.Ct. at 121. With the decline of substantive due process as a protection against economic regulation, zoning regulation continued easily to survive constitutional challenge. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). Pertinent to the later development of the case law concerning land use regulation is the fact that in the early zoning cases, there was no dispute as to whether the plaintiff had a property interest within the meaning of the Fourteenth Amendment; his property interest was in the land he owned, land that the local regulating body sought to restrict as to use. The next phase of land regulation cases involved applications by property owners to obtain a change in existing" }, { "docid": "22125448", "title": "", "text": "272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)). In more recent decisions, the Supreme Court has narrowed the scope of substantive due process protection in the zoning context so that such a claim can survive only if the alleged purpose behind the state action has no conceivable rational relationship to the exercise of the state’s traditional police power through zoning. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); but cf. Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (city’s requirement that families exclude blood relatives violates substantive due process). In short, the doctrine of substantive due process is a constitutionally imposed limitation, see Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985) (Powell, J., concurring), which is intended only “to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.’ ” Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S.Ct. 1061, 1069, 117 L.Ed.2d 261 (1992) (quoting De-Shaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989)). In addition to the fact that Sylvia Development and Dohnal cannot demonstrate, as we noted above, that Calvert County deprived them of a property interest, their substantive due process claim must fail also because of their inability to show that the County Board’s action bore no rational relationship to the exercise of the state’s traditional police power through zoning. The state court which reversed the Board found that the Board had rejected Sylvia Development’s application for two main reasons: (1) the Board’s impression that Blue Dolphin Estates would create a traffic hazard and deplete water supplies; and (2) the Board’s desire to placate the citizens at the hearing who opposed the project. While the state court held that the first reason could not stand up under state law without admissible evidence to support it, one cannot deny that the impact of development on traffic safety" }, { "docid": "19060229", "title": "", "text": "with the statute’s procedural requirements. Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 465 (7th Cir.1988). In Coniston Corp., supra, the plaintiff had waived her takings claim, and was proceeding solely on a claim of denial of due process. In holding that an adverse zoning decision was not a denial of substantive due process, the Seventh Circuit held that “the fact ‘that town officials are motivated by parochial views of local interest which work against plaintiffs’ plan and which may contravene state subdivision laws’ (or we add, local ordinances) does not state a claim of denial of substantive due process.” Id. 844 F.2d at 467 (citing, Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982)). In order to prevail on a substantive due process claim, the plaintiffs must allege and prove that “the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare.” Id. Of course, the difference between Coniston Corp. and the instant action is that the alleged taking here was private, not public, as it was in Coniston. This factual distinction does not assist the court in deciding this motion, however, because, as stated in Gamble, the court “can find no case in the last half century where a taking was squarely held to be for a private use.” Id. 5 F.3d at 287. In any event, to state a due process claim, the plaintiffs must first show that they possess a legitimate claim of entitlement to the right being asserted. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). According to the plaintiffs, their legitimate claim of entitlement arises from Chapter 236, Wis. Stats. “If the final plat conforms substantially to the preliminary plat as approved, including any conditions of that approval, and to local plans and ordinances adopted as authorized by law, it is entitled to approval.” § 236.11(b), Wis.Stats. The plaintiffs argue that because their first Canyon Meadow Estates’ final plat substantially conformed to the preliminary plat, they were entitled to approval" }, { "docid": "5047778", "title": "", "text": "on his substantive due process claim. Accordingly, defendants are entitled to judgment as a matter of law on Clark’s substantive due process claim. We further note that where a substantive due process claim is predicated on the deprivation of a property interest, the Seventh Circuit has held that “in addition to alleging that the decision was arbitrary and irrational, ‘the plaintiff must also show either a separate constitutional violation or the inadequacy of state law remedies.’” New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir.1990) (quoting Polenz v. Parrott, 883 F.2d 551, 558 (7th Cir.1989)). We have already discussed Clark’s failure to adduce any evidence or argument as to the inadequacy of state law remedies. Here, we note that Clark’s substantive due process claim does not involve any separate constitutional violation. The crux of Clark’s substantive due process claim is that the temporary suspension of Como’s license was arbitrary or irrational by virtue of the fact that the DCS personnel were unauthorized or unqualified to effect such a shut-down under the Municipal Code. This contention is insufficient to support a substantive due process claim, however, because it involves only a matter of local or state law. The Seventh Circuit’s remarks in Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988), are entirely appropriate here and so we quote them in full: This case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law — a sure sign of masquerade being that the plaintiffs do not challenge the constitutionality of the zoning ordinances of the Village of Hoffman Estates but argue rather tha[t] the Board of Trustees had no authority under those ordinances to reject their site plan once the Village Plan Commission had approved it. If the plaintiffs can get us to review the merits of the Board of Trustees’ decision under state law, we cannot imagine what zoning dispute could not be shoehomed into federal court in'this way____ Something more is necessary than dissatisfaction with the rejection of a site plan to turn a zoning case into" }, { "docid": "19060228", "title": "", "text": "law remedies. See, Polenz v. Parrott, 883 F.2d 551, 556 (7th Cir.1989). Recent Seventh Circuit eases have discussed the interplay between substantive due process and takings claims: The due process clause of the Fourteenth Amendment has been interpreted, though absorption of the takings clause of the Fifth Amendment, to entitle a landowner to just compensation if a state or one of its subdivisions takes his land. Gamble v. Eau Claire County, 5 F.3d 285, 285-86 (7th Cir.1993). The other objection to the due process route in a ease such as the present one is that it depends on the idea of “substantive” due process. This is the idea that depriving a person of life, liberty or property can violate the due process clause of the Fourteenth Amendment even if there are no procedural irregularities — even if for example, the state after due deliberation has passed a statute establishing procedure for taking private homes and giving them to major campaign contributors or people with red hair, and in taking the plaintiffs home has complied scrupulously with the statute’s procedural requirements. Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 465 (7th Cir.1988). In Coniston Corp., supra, the plaintiff had waived her takings claim, and was proceeding solely on a claim of denial of due process. In holding that an adverse zoning decision was not a denial of substantive due process, the Seventh Circuit held that “the fact ‘that town officials are motivated by parochial views of local interest which work against plaintiffs’ plan and which may contravene state subdivision laws’ (or we add, local ordinances) does not state a claim of denial of substantive due process.” Id. 844 F.2d at 467 (citing, Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982)). In order to prevail on a substantive due process claim, the plaintiffs must allege and prove that “the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare.” Id. Of course, the difference between Coniston Corp. and the instant action is that the alleged taking here was" }, { "docid": "5318431", "title": "", "text": "202 (1986). To defeat such a motion, the nonmoving party must offer “ ‘concrete evidence from which a reasonable juror could return a verdict in his favor’ ”. Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988) (quoting Anderson v. Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514). We must analyze Greene’s claims under these standards. A. The R-80 Classification Greene asserts that material factual issues preclude summary judgment on his claim that inclusion of approximate thirty-five acres of his land in the R-80 district rather than the less restrictive R-30 district deprived him of due process and equal protection in violation of the fourteenth amendment. We disagree. Generally a municipal zoning ordinance is presumed be valid, see City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985), and will not be held unconstitutional if its wisdom is at least fairly debatable and it bears a rational relationship to a permissible state objective. Id.; Village of Belle Terre v. Boraas, 416 U.S. 1, 4, 8, 94 S.Ct. 1536, 1538, 1540, 39 L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388-90, 395, 47 S.Ct. 114, 118-19, 121, 71 L.Ed. 303 (1926). Moreover, unless they impinge upon a constitutionally protected fundamental interest, we review zoning ordinances only to determine whether they are arbitrary or unreasonable, see RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 914-15 (2d Cir.1989) (“zoning regulations will survive substantive due process challenge unless they are ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare’ ”) (quoting Am bier Realty Co., 272 U.S. at 395, 47 S.Ct. at 121); Brady v. Town of Colchester, 863 F.2d 205, 215-16 (2d Cir.1988); Horizon Concepts, Inc. v. City of Balch Springs, 789 F.2d 1165, 1167 (5th Cir.1986) (because zoning is a quasi-legislative process, local zoning ordinances are reviewed only to determine if arbitrary and capricious). A federal court typically will not “sift through the record to determine whether policy decisions are squarely supported by" }, { "docid": "6955091", "title": "", "text": "Amendments. The magistrate interpreted the Himelsteins’ claim as asserting a substantive due process claim. The Himel-steins have not contested this characterization and we accept it. The magistrate dismissed the Himel-steins due process claim for lack of finality and for failure to pursue state compensation procedures. Even if the Himelsteins’ due process claim were ripe for review, it would still not survive a motion to dismiss. “[I]n order to prevail on a substantive due process claim, [the Himelsteins] must allege and prove that the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare.” Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir.1987) (citing Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). Hence, an analysis of the Himelsteins’ substantive due process claim centers upon whether they have successfully alleged that the Common Council acted arbitrarily or irrationally. See also Harding v. County of Door, 870 F.2d 430, 431 (7th Cir.1989). The Himelsteins assert that the Common Council “required [them] to endure an arbitrary and capricious zoning process” by demanding that they, for example, appear before the Common Council, unlike other petitioners. Complaint ¶¶ 25-26, Appellants’ Appendix at D-9. We cannot say that the actions of the Common Council were irrational or arbitrary. This court has held that government decisions motivated by local interests do not violate a plaintiff’s right to substantive due process. Coniston Cory. v. Village of Hoffman Estates, 844 F.2d 461, 466-467 (7th Cir.1988). Requiring the petitioners in a hotly contested zoning dispute to appear before the governmental body that is largely responsible for a rezoning decision does not seem to us to be irrational or arbitrary. In fact, it seems quite rational and thorough. Because the complaint does not allege any “irrational” or “arbitrary” acts in support of the allegation that the Himelsteins have been denied substantive due process, Magistrate Lee correctly dismissed this claim. This court is not a zoning board of appeals" }, { "docid": "4380527", "title": "", "text": "prison security context, the Due Process Clause affords...no greater protection than does” the Eighth Amendment); see also Montgomery, 226 F.3d at 758 (“The takings clause itself addresses whether and under what circumstances the government may take an individual’s private property, which is why a number of circuits have concluded that no room is left for the concept of substantive due process.”) (citing Armendariz v. Penman, 75 F.3d 1311, 1323-27 (9th Cir.1996) (en banc), and Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 464 (7th Cir. 1988)); cf. Choate’s Air Conditioning & Heating v. Light, Gas & Water Div., 16 Fed. Appx. 323, 330-31 (6th Cir.2001) (rejecting an effort to repackage a takings claim as a substantive due process violation). We therefore decline to endorse a substantive due process theory based on a claim that erection of the barriers amounted to an unconstitutional taking of property. A final avenue exists for assertion of a substantive due process claim, but this avenue appears outside the scope of the Warrens’ complaint and their argument on appeal. This court has recognized that a substantive due process violation occurs when arbitrary and capricious government action deprives an individual, of a constitutionally protected property interest. See Tri-Corp Mgmt. Co. v. Praznik, 33 Fed. Appx. 742, 747 (6th Cir.2002); Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216, 1217 (6th Cir.1992); see also Nectow v. City of Cambridge, 277 U.S. 183, 187-88, 48 S.Ct. 447, 72 L.Ed. 842 (1928) (holding that a court should not interfere with local zoning decisions unless the locality’s action “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense”) (internal .quotation marks and citation omitted); Eide v. Sarasota County, 908 F.2d 716, 721-22 (11th Cir.1990). While challenges to arbitrary and capricious government action appear most frequently in cases involving zoning and other ordinances, see, e.g., Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974)," }, { "docid": "23061274", "title": "", "text": "431 (7th Cir.), cert. denied, — U.S.-, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989); Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir.1987). However, we also have made it clear that “[t]his court is not a zoning board of appeals.” Himelstein, 898 F.2d at 578; see also Polenz, 883 F.2d at 558; Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir.1988). Consequently, our recent cases have required that, in addition to alleging that the decision was arbitrary and irrational, “the plaintiff must also show either a separate constitutional violation or the inadequacy of state law remedies.” Polenz, 883 F.2d at 558; see also Kauth v. Hartford Ins. Co., 852 F.2d 951, 958 (7th Cir.1988) (“[I]n cases where the plaintiff complains that he has been unreasonably deprived of a state-created property interest, without alleging a violation of some other substantive constitutional right or that the available state remedies are inadequate, the plaintiff has not stated a substantive due process claim.”) Some circuits perhaps have interpreted these contours more liberally than our cases have done. See, e.g., Brady v. Town of Colchester, 863 F.2d 205, 216 (2d Cir.1988) (substantive due process claim may be maintained when there is evidence that party was denied building permit due to political animus); Bello v. Walker, 840 F.2d 1124, 1129-30 (3d Cir.) (denial of permit for partisan political or personal reasons can support a substantive due process claim), cert. denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 107 (1988); Scott v. Greenville County, 716 F.2d 1409, 1419-21 (4th Cir.1983) (moratorium on building permits that affected only one piece of property made out a substantive due process claim). Nevertheless, in conformity with the precedent of this circuit, we cannot say that the allegations in this complaint set forth a claim upon which relief can be granted; the complaint fails either to allege the violation of another constitutional interest or to establish the inadequacy of state remedies for arbitrary action. D. Equal Protection The district court granted summary judgment on the equal protection claim because it decided that “a trier of" }, { "docid": "18850130", "title": "", "text": "to grant conditional use permits under § 62.23(7)(e). The Town’s zoning action in violation of state law, however, does not in itself rise to the level of a violation of substantive due process. We made that quite clear in Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988). There, the plaintiffs had argued that a village’s Board of Trustees lacked the authority under state law to disapprove its project and that the rejection denied it substantive due process. We rejected this argument and stated: “Something more is necessary than dissatisfaction with the rejection of a site plan to turn a zoning case into a federal ease; and it should go without saying that the something more cannot be merely a violation of state (or local) law. A violation of state law is not a denial of due process of law.” Id. at 467. Our court requires that “in addition to showing that [a zoning] decision was arbitrary and irrational, the plaintiff must show either a separate constitutional violation or the inadequacy of state law remedies.” Polenz v. Parrott, 883 F.2d 551, 558-59 (7th Cir.1989). It is true that Coniston and Polenz involved denials of new applications for a particular use, whereas here, we are confronted with the Town Board’s decision to deprive Hartland of a vested right to use its property in a particular manner. It is also true that other circuits have sometimes recognized substantive due process claims when a municipality eliminated a property owner’s right to use its property in a particular manner, see, e.g., Resolution Trust Corp. v. Town of Highland Beach, 18 F.3d 1536 (11th Cir.1994); Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th Cir.1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847 (1982). We, however, have limited substantive due process challenges to government land-related decisions in this context as well. In Harding v. County of Door, 870 F.2d 430 (7th Cir.), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989), for example, Harding had sought and received a building permit from a zoning administrator" }, { "docid": "23061273", "title": "", "text": "the validity of any statute or regulation. R.19 at 6. Because state law provides a remedy for the alleged unauthorized deprivation, the district court did not err in dismissing the procedural due process claim. Easter House II, 910 F.2d at 1387; see also Zinermon, 110 S.Ct. at 984-85, 987 (postdeprivation process may be sufficient if deprivation is random and unpredictable); Fields v. Durham, 909 F.2d 94, 95-96 (4th Cir.1990) (same); Katz v. Klehammer, 902 F.2d 204, 207 & n. 1 (2d Cir.1990) (postdeprivation process sufficient when public official fails to follow a rule or regulation). The substantive .due process claim also must fail. Whatever may be the eventual contours of substantive due process in the context of property interests, this complaint cannot sustain a cause of action. This court has acknowledged that a substantive due process claim can be brought in the context of property interests. See Estate of Himelstein v. City of Fort Wayne, 898 F.2d 573, 577 (7th Cir.1990); Polenz, 883 F.2d at 558; Harding v. Coun ty of Door, 870 F.2d 430, 431 (7th Cir.), cert. denied, — U.S.-, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989); Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir.1987). However, we also have made it clear that “[t]his court is not a zoning board of appeals.” Himelstein, 898 F.2d at 578; see also Polenz, 883 F.2d at 558; Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir.1988). Consequently, our recent cases have required that, in addition to alleging that the decision was arbitrary and irrational, “the plaintiff must also show either a separate constitutional violation or the inadequacy of state law remedies.” Polenz, 883 F.2d at 558; see also Kauth v. Hartford Ins. Co., 852 F.2d 951, 958 (7th Cir.1988) (“[I]n cases where the plaintiff complains that he has been unreasonably deprived of a state-created property interest, without alleging a violation of some other substantive constitutional right or that the available state remedies are inadequate, the plaintiff has not stated a substantive due process claim.”) Some circuits perhaps have interpreted these contours more liberally than" }, { "docid": "6955090", "title": "", "text": "Hoffman Estates, 844 F.2d 461, 463-464 (7th Cir.1988). In response, the Himelsteins assert that the utilization of Indiana’s inverse condemnation procedure would prove futile in their case because Indiana law does not recognize temporary, regulatory actions as constituting unconstitutional “takings.” Our research has shown, however, that this is not the ease. As the Himelsteins themselves concede, “Indiana has not decided whether or not a temporary taking is compensable.” Appellants’ Brief at 17. Moreover, an Indiana Court of Appeals recently held that governmental regulation can constitute an unconstitutional taking in violation of the Fifth Amendment and Article I of the Indiana Constitution. Clem v. Christole, Inc., 548 N.E.2d 1180, 1183 (Ind.App.1990). Because the Himelsteins have not shown that a state inverse condemnation procedure is unavailable or inadequate, their takings claim is premature. Accord ingly, the dismissal of the Himelsteins’ takings claim for lack of jurisdiction was correct. B. Substantive Due Process The Himelsteins also allege that the Common Council deprived them of their property without due process of law, in violation of the Fifth and Fourteenth Amendments. The magistrate interpreted the Himelsteins’ claim as asserting a substantive due process claim. The Himel-steins have not contested this characterization and we accept it. The magistrate dismissed the Himel-steins due process claim for lack of finality and for failure to pursue state compensation procedures. Even if the Himelsteins’ due process claim were ripe for review, it would still not survive a motion to dismiss. “[I]n order to prevail on a substantive due process claim, [the Himelsteins] must allege and prove that the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare.” Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir.1987) (citing Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). Hence, an analysis of the Himelsteins’ substantive due process claim centers upon whether they have successfully alleged that the Common Council acted arbitrarily or irrationally. See also Harding v. County" }, { "docid": "5047779", "title": "", "text": "under the Municipal Code. This contention is insufficient to support a substantive due process claim, however, because it involves only a matter of local or state law. The Seventh Circuit’s remarks in Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988), are entirely appropriate here and so we quote them in full: This case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law — a sure sign of masquerade being that the plaintiffs do not challenge the constitutionality of the zoning ordinances of the Village of Hoffman Estates but argue rather tha[t] the Board of Trustees had no authority under those ordinances to reject their site plan once the Village Plan Commission had approved it. If the plaintiffs can get us to review the merits of the Board of Trustees’ decision under state law, we cannot imagine what zoning dispute could not be shoehomed into federal court in'this way____ Something more is necessary than dissatisfaction with the rejection of a site plan to turn a zoning case into a federal case; and it should go without saying that the something more cannot be merely a violation of state (or local) law. A violation of state law is not a denial of due process of law. Id. at 467. Although perhaps not “a garden-variety” health/sanitation code ease, this case — at least as far as plaintiffs’ substantive due process claim is concerned — presents only a question of state or municipal law. As the remarks in Coniston make clear, it is well-established that such questions do not give rise to a constitutional claim. See also White v. Olig, 56 F.3d 817, 820 (7th Cir.1995) (reiterating “that mere allegations of state law infraction are insufficient to support a section 1983 claim” and remarking “we fail to see how the mandates of Wisconsin state law alter the constitutional validity of [a civil bodily attachment] order”). For all of the foregoing reasons, defendants are entitled to judgment as a matter of law as to plaintiffs’ substantive due process claim. (b.) EQUAL PROTECTION The essence of plaintiff's’ equal" }, { "docid": "14260171", "title": "", "text": "substantive due process violation fails because plaintiffs have not been deprived of a constitutional right. Creative Environments, Inc., v. Estabrook, 680 F.2d 822 (1st Cir.1982). Moreover, a review of the evidence reveals that the decisions of the Plan Commission and the City were reasoned applications of the PURD Ordinance and that the City’s reliance on the negative findings prepared by Palzer satisfied the writing requirement under Section 8. Assuming, arguendo, that plaintiffs’ allegations are true, their claim does not state a constitutional deprivation under Section 1983 because plaintiffs have not been deprived of a constitutional right. In Estabrook, the First Circuit Court of Appeals held that “property is not denied without due process simply because a local planning board rejects a proposed development for erroneous reasons or makes demands which arguably exceed the authority under the relevant state’s statute.” 680 F.2d at 832. Thus, in order to prevail on a substantive due process claim, plaintiffs must allege and prove that the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). There is no evidence to suggest that the Plan Commission or the City rejected plaintiffs’ proposal on the basis of race or color. On the contrary, the evidence suggests that the City acted pursuant to good faith concerns for the public interest. We agree with the district court that the plaintiffs have not been denied due process of law based on the allegations before us. Next plaintiffs argue that the Plan Commission unreasonably relied on four findings of fact that are erroneous or improper considerations under the PURD Ordinance. Plaintiffs challenge the Plan Commission’s first finding, that the proposals were inconsistent with the City’s Comprehensive Plan. They argue that the City had designated plaintiffs’ site for multifamily development by designating it as a PURD site. However, Thomas Palzer, testified that the “Goals and Objectives” found in the City’s Comprehensive" }, { "docid": "19360521", "title": "", "text": "a fundamental right, the test for determining whether Nelson was denied equal protection of the laws is the same as the standard determining whether he was denied due process — the city council’s action should be upheld if it bears a rational relationship to a legitimate state interest. See Burlington Northern Railroad Co. v. Department of Public Services, 763 F.2d 1106, 1109 (9th Cir.1985). The Supreme Court has recently east doubt upon the viability of a “substantive due process” cause of action as a supplement to a cause of action involving a specific provision of the constitution. See Graham v. Connor, — U.S. -, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). Because we hold that the district court was correct in granting judgment to the defendant on both Nelson’s substantive due process and equal protection claims, for which the standards in this case are interchangeable, we need not address the question of whether the complaint stated a claim for violation of substantive due process in addition to the claim of denial of equal protection. To uphold the council’s action, we need not find that the zoning requested by appellant would actually have adversely affected the public health, safety or welfare; the issue before us is whether the decision to change the zoning of the 13 acres to low-density residential was itself rationally related to the promotion of the public health, safety or welfare. See Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254; Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974); Construction Industry Ass’n of Sonoma County v. City of Petaluma, 522 F.2d 897, 906 (9th Cir.1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976). If we find that the rational relation of the zoning actions to legitimate governmental interests is at least fairly debatable, the action must be upheld. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d" }, { "docid": "23508189", "title": "", "text": "may supplement the complaint with factual narration in an affidavit or brief. If the extra assertions make out a claim, then the complaint stands.” Albiero, 122 F.3d at 419 (citation omitted). B. The Applicability of Williamson In Williamson County Reg. Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 193-94, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court articulated a special ripeness doctrine for constitutional property rights claims which precluded federal courts from adjudicating land use disputes until: (1) the regulatory agency has had an opportunity to make a considered definitive decision, and (2) the property owner exhausts available state remedies for compensation. Indeed, this Circuit has followed Williamson and held, “[A] property owner may not avoid Williamson by applying the label ‘substantive due process’ to the claim. So too with the label ‘procedural due process.’ Labels do not matter. A person contending that state or local regulation of the use of land has gone overboard must repair to state court.” River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994) (citation omitted). Because we have subject matter jurisdiction over only those cases that are “ripe for adjudication”, we must initially determine whether the Forseths’ federal claims are subject to Williamson’s ripeness requirements. 1. Plaintiffs’ Substantive Due Process Claim The Forseths’ substantive due process claim arises from Defendants’ act of conditioning approval of the final plat on the Forseths’ agreement to convey a buffer strip to Village Board President John Tews personally. Although we have recognized the potential for a plaintiff to maintain a substantive due process claim in the context of land use decisions, see, e.g., Doherty v. City of Chicago, 75 F.3d 318, 325 (7th Cir.1996); Harding v. County of Door, 870 F.2d 430, 431 (7th Cir.1989); Polenz v. Parrott, 883 F.2d 551, 558 (7th Cir.1989); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467-68 (7th Cir.1988), we have yet to excuse any substantive due process claim in the land-use context from Williamson’s ripeness requirements. In Gamble v. Eau Claire County, we distinguished substantive due process claims from takings claims and" }, { "docid": "22125447", "title": "", "text": "a far narrower concept than procedural; it is an absolute cheek on certain governmental actions notwithstanding ‘the fairness of the procedures used to implement them.’ ”). The protection of substantive due process is indeed narrow and covers only state action which is “so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any pre-deprivation procedural protections or of adequate rectification by any post-deprivation state remedies.” Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.1991), cert. denied, 502 U.S. 1097, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992). And in the context of a zoning action'involving property, it must be clear that the state’s action “‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.’ ” Nectow v. Cambridge, 277 U.S. 183, 187-88, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928) (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)). In more recent decisions, the Supreme Court has narrowed the scope of substantive due process protection in the zoning context so that such a claim can survive only if the alleged purpose behind the state action has no conceivable rational relationship to the exercise of the state’s traditional police power through zoning. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); but cf. Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (city’s requirement that families exclude blood relatives violates substantive due process). In short, the doctrine of substantive due process is a constitutionally imposed limitation, see Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985) (Powell, J., concurring), which is intended only “to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.’ ” Collins v. City of Harker Heights, 503 U.S. 115," } ]

[ { "docid": "8188542", "title": "", "text": "74 F.2d 664, 28 Am.Bankr.Rep.,N.S., 110; 6 Remington, § 2335, § 2653 note 17. His good faith is not a defense. 1 Remington, § 348. He may of course have rights to recover money paid to the other creditors which has unjustly enriched them, according to the principles of the law of restitution; but regardless of any such rights he is liable to the disappointed creditor.' Here, the appellant had obtained a court order directing the Receiver to pay its claim. It appears to us that the effect of that order is neither that sought to be established by the appellee nor precisely that urged on us by appellant. On the one hand, it did not merely ascertain a right to participate in an eventual distribution of the estate; nor was it an adjudication that a certain and immutable sum was due and had priority over other administrative expenses. It amounted, we think, to an authorization to the Receiver to pay that amount immediately as the reasonable value of use and occupancy, such authorization protecting him against the objections of all creditors then in the same priority class, who had been given notice of the order and an opportunity to contest it. This would seem to be the fair import of that order; not the appellant’s interpretation that it should be granted preferential treatment over other creditors in the same class whether or not these creditors had notice of that order. The latter would, we think, result in appellant’s unjust enrichment. We conclude, then, that appellant is entitled to recover from the Receiver to the extent that officer made disbursements without a court order on notice to appellant and also without its waiver or acquiescence therein with full knowledge of the facts. The quantum of appellant’s recovery appears on the present state of the record to be limited to that pro rata share of the assets which it would have received if all payments had been delayed until the Receiver’s and the Trustee’s final accounting. But it may be that when the Receiver files a new final report, and a" } ]

[ { "docid": "17903848", "title": "", "text": "as property held by the trustee in a constructive trust for the purchasers pending rejection. Under this approach, where the executory contract is affirmed, the payments at the moment of affirmance become property of the estate. On the other hand, where the exec-utory contract is ultimately rejected, the interim payments are returned dollar-for-dollar to the purchasers. Under this theory, the use of such payments to pay the administrative expenses of the estate would be improper since the payments never become property of the estate. Perry argues in response that payments made in the interim between the original filing and rejection or affirmance should be treated the same as payments on executed contracts. Under Perry’s theory, the lot purchasers are as to these payments mere general creditors of the bankrupt estate. We reject both positions. In light of the policies underlying the treatment of execu-tory contracts under the Act, we conclude that payments received by the trustee on an executory contract during the period between the date of filing and the date of rejection do become property of the estate. However, these payments give rise to claims against the estate of an administrative expense priority in the amount of the reasonable value of the consideration tendered to the trustee. In reaching this conclusion, we find support both in previous case law and in the policies underlying the Act. This treatment of executory contracts is supported by the well-settled principles governing treatment of creditors of a bankrupt who confer benefit on the bankrupt estate after the date of filing of a bankruptcy petition. Where the consideration supporting the claimant’s right to payment is both supplied to and beneficial to the trustee in the operation of the bankrupt’s post-filing business, the consideration becomes property of the estate but the right to payment is accorded first priority under section 64a(l) of the Bankruptcy Act. See 4A J. Moore & L. King, Collier on Bankruptcy ¶ 70.43, at 524 (14th ed. 1978); cf. In re Health Maintenance Foundation, 680 F.2d 619, 621 (9th Cir.1982) (denying priority to severance pay claims based on consideration that was" }, { "docid": "1191829", "title": "", "text": "365(d)(3) to avoid the application of Section 507(a)(1) which specifies the priorities afforded claims against the estate. According to the Debtor, Rouse’s claim should share pro rata with all other Section 507 administrative expenses allowed under Section 503(b). As this Court previously explained, the rejection of Rouse’s lease occurred on the day the Debtor served its motion to reject. Thus, the issue of payment of post-petition obligations runs from the petition date through and including February 29, 1992. As earlier mentioned, Congress intended to afford lessors some additional protections not afforded others. The lessor to whom Section 365(d)(3) applies is uniquely situated because the lessor becomes necessarily involved both in the debtor’s reorganization (since the lease is an asset of the estate) as well as the debtor’s ongoing business (since the debtor controls the lessor’s property while deciding whether to assume or reject the lease). In re CSVA, Inc., 140 B.R. 116, 120 (Bankr.W.D.N.C.1992). Unlike utilities, trade creditors, or post-petition employees, the lessor cannot utilize self-help remedies and terminate its rela- • tionship with the debtor if payment is not forthcoming. In many bankruptcy cases, when a claim is paid makes the difference as to whether it will be paid at all. In re Virginia Packaging Supply Co., 122 B.R. 491, 495 (Bankr.E.D.Va.1990). Consequently, the benefits afforded the lessor under Section 365(d) are numerous. Unlike the practice under the Act, the trustee is obligated to perform all obligations regardless of the “reasonable value” afforded the estate. Additionally, the trustee can make these payments without prior court approval. Finally, and most importantly, any such payment obligations are elevated to priority status regardless of the benefit conferred upon the estate. For example, Section 503(b)(1) defines administrative expenses as those actual, necessary expenses and costs of preserving the estate, and Section 507 provides the exclusive list of priorities in bankruptcy. Section 365(d)(3) provides that the “trustee shall timely perform all the obligations of the debtor ... until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title.” 11 U.S.C. § 365(d)(3) (emphasis added). By waiving the application of Section 503(b)(1), Congress" }, { "docid": "8188543", "title": "", "text": "him against the objections of all creditors then in the same priority class, who had been given notice of the order and an opportunity to contest it. This would seem to be the fair import of that order; not the appellant’s interpretation that it should be granted preferential treatment over other creditors in the same class whether or not these creditors had notice of that order. The latter would, we think, result in appellant’s unjust enrichment. We conclude, then, that appellant is entitled to recover from the Receiver to the extent that officer made disbursements without a court order on notice to appellant and also without its waiver or acquiescence therein with full knowledge of the facts. The quantum of appellant’s recovery appears on the present state of the record to be limited to that pro rata share of the assets which it would have received if all payments had been delayed until the Receiver’s and the Trustee’s final accounting. But it may be that when the Receiver files a new final report, and a properly adverse proceeding is conducted, some payments made by the Receiver may have to be disallowed, so that appellant would be entitled to a larger share of its claim; or perhaps a smaller share, if it develops that appellant had notice of court orders permitting the Receiver to make payments to other members of the same class, that such payments were actually made, and yet the appellant did nothing to protect its right to equal priority. Reversed and remanded for further proceedings consistent with this opinion. . This report showed cash receipts during the period of continuing the business, in the sum of $139,226.30. All but the $8.71 transferred to the Trustee’s account was reported as disbursed for supplies, payroll, licenses, utilities, taxes, etc., and $15,600 was disbursed as rent. According to the affidavit supporting the motion to vacate, which must be accepted as true for the purposes of this appeal, the Receiver failed to pay any rent to appellant, but all of this $15,600 went to other lessors. Neither the names of the payees" }, { "docid": "8188539", "title": "", "text": "the trial court the principles which must determine what relief may be accorded to appellant. Bankruptcy Act, § 64, sub. a (1), 11 U.S.C.A. § 104, sub. a(l), defines costs and expenses of administration and gives them first priority among the payments to be made from the bankrupt’s assets. The expenses of the receiver in carrying on the bankrupt’s business are a part of these costs. However, the present Act, unlike former ones, does not create any priority among the various administrative costs themselves when, as here, the assets are insufficient even to pay those costs. “All the costs and expenses lumped together * * * are now obviously on a parity, and if funds are insufficient to pay all of them they must individually suffer pro rata.” 6 Remington on Bankruptcy (5th Ed.) § 2632. Although some old cases gave priority to expenses of the receiver and trustee over other expenses in this class (See authorities collected in 6 Remington on Bankruptcy (5th Ed.) § 2640), the later eases divided the assets on a strictly pro rata basis. United States v. Killoren, 8 Cir., 119 F.2d 364, certiorari denied 314 U.S. 640, 62 S.Ct. 78, 86 L.Ed. 513; Todd v. Zoda, 2 Cir., 188 F.2d 84; In re Delaware Hosiery Mills, Inc., 3 Cir., 202 F.2d 951; In re M.K.C. Cafeteria, Inc., D.C.E.D.N.Y., 47 F.Supp. 14; 3 Collier on Bankruptcy (14th Ed.) 1413. The statutory inclusion of all these expenses in one class is a clear indication that they must be treated with absolute equality, unless, of course, some creditors in the class have agreed to subordinate their claims or acquiesced in the receiver’s preferential payment of another creditor, with full knowledge of the facts. Cf. Restatement, Trusts § 216. It is for this precise reason that a receiver should obtain court approval, on notice to all creditors who might be affected, before paying any creditors in this class, however necessary it may be to preserving the estate. 1 Remington, § 327. See Shipe v. Consumers’ Service Co., D.C.N.D.Ind., 28 F.2d 53; 8 Miami L.Q. 132. Such an order" }, { "docid": "1935898", "title": "", "text": "courts as giving rise to at least three lessor remedies: (1) The lessor may seek an order of the court compelling surrender of the premises and rejection of the lease, See 4 COLLIER ON BANKRUPTCY PRACTICE GUIDE 11 68.05[3] p. 68-36 (1987); (2) The lessor may move for relief from the automatic stay, Dieckhaus, 73 B.R. at 974, But see, In re Sweetwater, 40 B.R. 733 (Bkrtcy.D.Utah 1984); (3) A trustee will not be allowed to assume a nonresidential real property lease unless current on lease payments, In re Matter of Condominium Administrative Services, Inc., 55 B.R. 792, 799 (M.D.Fla.1985). Moreover, the Court is not suggesting by its opinion that a lessor is not entitled to an order compelling immediate payment in an appropriate case. CONCLUSION As a general rule, when the debtor’s estate lacks sufficient funds to pay all administrative expenses in full, administrative claimants must share pro rata in the available funds. Counsel for McCune would have this Court find a priority not indicated by the statute, its legislative history, or case authority, and not supported by any logical view of Congress’ scheme of priorities under the Code. We therefore hold that unpaid Section 365(d)(3) expenses do not enjoy a superpriority status over other Section 507(a)(1) administrative claims. When immediate payment of those expenses is properly sought, full payment must be made absent a showing by the trustee of “substantial doubt” that there will ultimately be sufficient funds available to pay all administrative expenses. In distinction to IML where there was a high probability that funds would be insufficient, in this case the trustee has simply stated that there are currently insufficient liquid assets and that an actual determination of the estate’s ability to pay all administrative claims in full cannot yet be made with certainty. As recognized by the Dieckhaus court, the failure of the trustee (or debtor in possession) to perform his statutory duties under Section 365(d)(3) has thrust the lessor into the position of an involuntary postpetition creditor. Equity demands that full payment be made to the lessor by the trustee unless “there is a" }, { "docid": "17903880", "title": "", "text": "re Minges, 602 F.2d 38, 43-44 (2d Cir.1979) (rejection of executory contract proper where no potential for “greater profit for the debtor’s estate” by affirming contract); In re Jackson Brewing Co., 567 F.2d 618, 621, 624 (5th Cir.1978) (“rejection of ... onerous [executory] contract is manifestly for the benefit of creditors, will enhance the possibility of reorganization, and even in the event of a liquidation, will permit an equitable distribution of the debtor’s assets among its creditors”); In re American Nat’l Trust, 426 F.2d 1059, 1064 (7th Cir.1970) (rejection of executory contract proper where contract is “detrimental or onerous”). . See supra note 16. . If the trustee chooses to affirm an executory contract within the prescribed time limit, the trustee may sue the other party for damages if the other party has meanwhile failed to perform. 4A J. Moore & L. King, Collier on Bankruptcy ¶ 70.43, at 536 (14th ed. 1978). . We recognize that a party to an executory contract who is injured or fears injury by a delay on the affirmance/rejection decision may request a court order directing the trustee to affirm or reject the executory contract immediately. See generally Mohonk Realty Corp. v. Wise Shoe Stores, Inc., 111 F.2d 287, 290 (2d Cir.), cert. denied, 311 U.S. 654, 61 S.Ct. 47, 85 L.Ed. 418 (1940); 6 3. Moore & L. King, Collier on Bankruptcy ¶ 3.23[6], at 583-86 (14th ed. 1978). However, we do not believe that the mere possibility of petitioning the court for such relief precludes special priority for claims based on payments that are made by a party who does not request relief. Likewise, the requirement that a trustee may not assume an executory contract unless at the time of assumption the trustee cures the default, together with the fact that Cochise had apparently defaulted on the land sale contracts long before June 5, 1972, does not require that the purchasers be treated as unsecured general creditors as to post-filing payments. As unlikely as the trustee’s assumption of the execu-tory land sale contract may have been, each purchaser was entitled to believe" }, { "docid": "17903851", "title": "", "text": "J. Moore & L. King, Collier on Bankruptcy ¶ 70.44[4], at 550-52 (14th ed. 1978). The lessor obtains, however, a claim with administrative expense priority in the amount of the reasonable value of the leasehold used during the interim period by the trustee for the benefit of the estate. S. & W. Holding Co. v. Kuriansky, 317 F.2d 666, 667-68 (2d Cir.1963); see In re First Research Corp., 457 F.2d 331, 332 (5th Cir.1972). This special administrative expense priority maintains parity among all of the creditors of an estate who confer benefits on the estate after the date of filing. If a lessor, or for that matter any individual, who confers economic benefit on a bankrupt estate, were not given such a priority, it is likely he would refuse to confer such benefits and would thereby jeopardize the orderly reorganization or administration of the estate. Moreover, the Act gives the trustee the power to affirm or reject executory contracts on the theory that the value of the consideration still owed to the estate under some executory contracts exceeds the cost of the remaining obligations owed under the contract to the other party. The theory is that advantageous contracts should be affirmed by the trustee as a means of enhancing the likelihood of successful reorganization, or, if the estate is in liquidation, as a means of increasing creditor dividends. The Act provides that any claim arising from the trustee’s post-filing obligations under the contract has an administrative expense priority where the trustee ultimately affirms, yet does not specify how payments made to the estate during the period while the trustee is deciding whether to affirm or to reject are to be treated if the trustee subsequently decides to reject. We think the claim for return of such payments must receive a like priority. If payments made after the initial filing but before rejection were not given an administrative priority, a party who owes the bankrupt payments under an executory contract would face the risk that his claim for post-petition payments would be treated as a mere unsecured claim if the executory" }, { "docid": "17903882", "title": "", "text": "that the trustee might cure the default and assume the contract, to continue making payments on the contract, and to expect to have a claim against the estate for those payments of administrative expense priority, regardless of whether the trustee did or did not eventually affirm the contract. . All administrative expense creditors must be treated with “absolute equality,” unless, of course, some creditors, with full knowledge of the facts, have agreed to subordinate their claims. Thomas Corp. v. Nicholas, 221 F.2d 286, 289 (5th Cir.1955). In this case, previous disbursements to other administrative expense creditors of the Cochise estate could possibly prevent the appellants from recovering that pro rata share of the assets of the estate that they would have received if all disbursements had been delayed until the trustee’s final accounting. The trustee, not having given notice to the land purchasers, is therefore personally liable for the difference. Thomas, 221 F.2d at 289-90 (where assets are “insufficient even to pay [administrative] costs,” trustee is personally liable to lessor for portion of lessor’s administrative expense claim which lessor would have received if trustee had postponed other administrative expense disbursements until final accounting); In re B.A. Montgomery & Son, 17 F.2d 404 (N.D.Ohio 1927) (where assets remaining in estate are insufficient to pay priority wage claim, trustee is personally liable, where trustee exhausted estate by paying general creditors). Under principles of restitution, the trustee may well have rights to recover money paid to other creditors that has unjustly enriched them; regardless of those rights, however, he is liable to the land sale purchasers for the share they otherwise would have received. Thomas, 221 F.2d at 290. . See supra note 10. . To the extent that Perry used these funds in the administration of the estate to satisfy claims which would otherwise be administrative expense claims, he is subrogated to those claims and is entitled to share pro rata in such dividends. He, and not the estate, however, is personally liable to the appellants for payments received by him or by Computer Graphics on his behalf after August 6, 1973." }, { "docid": "18791107", "title": "", "text": "available to the trustee to pay the expenses of administering the debt- or’s estate in full. This Chapter 11 case has been sustained largely at the expense of Crocker. Any payment authorized by the Court at this time must come from assets secured by valid liens or superpriority claims of Crocker or go unpaid. Crocker has consented to payment of certain administrative expenses, but has limited the amount of its collateral which may be paid to the accountants and attorneys employed by the creditors’ committee to an aggregate sum of $15,000. The creditors’ committee suggests that this arrangement is inequitable and contrary to the requirement that there are insufficient assets in the estate to pay all administrative expenses in full, claimants must share pro-rata from the available funds. The central question here is one of policy. Should a secured creditor holding a senior lien on all assets of the debtor’s estate and a superpriority claim for all post-petition advances be able to selectively waive its claims so as to permit the trustee and professional persons employed by him to receive full payment of their fees, but restrict payment of allowed fees to the professionals employed by the creditors’ committee? In answering this question the Court must weigh the policy of the Code that there should be equality of treatment among administrative claimants against the necessity of permitting trustees to incur debt in order to continue to operate the debtor’s business. The Court is satisfied, based on the statements of the parties and the record in this proceeding, that in the absence of financing from Crocker the trustee could not have continued to operate the debtor’s business or to preserve and maintain the assets of the estate. The creditors’ committee received notice and was given a fair opportunity to be heard. It did not oppose either stipulation, and has not shown that there was coercion, undue influence or overreaching by Crocker in connection with the financing arrangements. Cf. In re Texlon Corp., 596 F.2d 1092 (2d Cir.1979). On the contrary, the stipulations appear to be arm’s length transactions. The trustee’s urgent" }, { "docid": "17903852", "title": "", "text": "executory contracts exceeds the cost of the remaining obligations owed under the contract to the other party. The theory is that advantageous contracts should be affirmed by the trustee as a means of enhancing the likelihood of successful reorganization, or, if the estate is in liquidation, as a means of increasing creditor dividends. The Act provides that any claim arising from the trustee’s post-filing obligations under the contract has an administrative expense priority where the trustee ultimately affirms, yet does not specify how payments made to the estate during the period while the trustee is deciding whether to affirm or to reject are to be treated if the trustee subsequently decides to reject. We think the claim for return of such payments must receive a like priority. If payments made after the initial filing but before rejection were not given an administrative priority, a party who owes the bankrupt payments under an executory contract would face the risk that his claim for post-petition payments would be treated as a mere unsecured claim if the executory contract were rejected. A party placed in that situation would often be well-advised to cease making payments, even though he could be sued for breach of contract, because he might well recover little or nothing as an unsecured claimant if the trustee rejects. Providing an administrative expense priority for post-filing payments in the event of rejection encourages parties to continue performance of their executory contracts with the debtor during the interim period and thus furthers the statutory policy of encouraging the continued performance of executory contracts which may be beneficial to the estate until the trustee makes his decision. In this case, the trustee was entitled to use post-filing payments in the administration of the estate. The lot purchasers have claims provable against the estate of administrative expense priority on parity with any other administrative expense claims against the estate. 3. Ownership of Payments Received After August 6, 1973. Payments made on an executory contract after rejection are not property of the bankrupt estate. The underlying contracts having been rejected and thus breached, these payments" }, { "docid": "17903881", "title": "", "text": "decision may request a court order directing the trustee to affirm or reject the executory contract immediately. See generally Mohonk Realty Corp. v. Wise Shoe Stores, Inc., 111 F.2d 287, 290 (2d Cir.), cert. denied, 311 U.S. 654, 61 S.Ct. 47, 85 L.Ed. 418 (1940); 6 3. Moore & L. King, Collier on Bankruptcy ¶ 3.23[6], at 583-86 (14th ed. 1978). However, we do not believe that the mere possibility of petitioning the court for such relief precludes special priority for claims based on payments that are made by a party who does not request relief. Likewise, the requirement that a trustee may not assume an executory contract unless at the time of assumption the trustee cures the default, together with the fact that Cochise had apparently defaulted on the land sale contracts long before June 5, 1972, does not require that the purchasers be treated as unsecured general creditors as to post-filing payments. As unlikely as the trustee’s assumption of the execu-tory land sale contract may have been, each purchaser was entitled to believe that the trustee might cure the default and assume the contract, to continue making payments on the contract, and to expect to have a claim against the estate for those payments of administrative expense priority, regardless of whether the trustee did or did not eventually affirm the contract. . All administrative expense creditors must be treated with “absolute equality,” unless, of course, some creditors, with full knowledge of the facts, have agreed to subordinate their claims. Thomas Corp. v. Nicholas, 221 F.2d 286, 289 (5th Cir.1955). In this case, previous disbursements to other administrative expense creditors of the Cochise estate could possibly prevent the appellants from recovering that pro rata share of the assets of the estate that they would have received if all disbursements had been delayed until the trustee’s final accounting. The trustee, not having given notice to the land purchasers, is therefore personally liable for the difference. Thomas, 221 F.2d at 289-90 (where assets are “insufficient even to pay [administrative] costs,” trustee is personally liable to lessor for portion of lessor’s administrative" }, { "docid": "17903883", "title": "", "text": "expense claim which lessor would have received if trustee had postponed other administrative expense disbursements until final accounting); In re B.A. Montgomery & Son, 17 F.2d 404 (N.D.Ohio 1927) (where assets remaining in estate are insufficient to pay priority wage claim, trustee is personally liable, where trustee exhausted estate by paying general creditors). Under principles of restitution, the trustee may well have rights to recover money paid to other creditors that has unjustly enriched them; regardless of those rights, however, he is liable to the land sale purchasers for the share they otherwise would have received. Thomas, 221 F.2d at 290. . See supra note 10. . To the extent that Perry used these funds in the administration of the estate to satisfy claims which would otherwise be administrative expense claims, he is subrogated to those claims and is entitled to share pro rata in such dividends. He, and not the estate, however, is personally liable to the appellants for payments received by him or by Computer Graphics on his behalf after August 6, 1973. The appellants’ own claim for these payments is not a claim allowable against the estate. . The trustee apparently obtained several ex parte orders from the bankruptcy court ordering Computer Graphics to turn over funds it held to the trustee and permitting the trustee to use various funds in the administration of the estate. Even if these orders were meant to cover payments after August 6, 1973, since no notice of these transactions was given to the individual land purchasers, despite their obvious status as “interested parties,” these orders are insufficient to relieve the trustee of personal liability. See Mosser v. Darrow, 341 U.S. 267, 274, 71 S.Ct. 680, 683, 95 L.Ed. 927 (1951). . We reject the approach of the Tenth and Sixth Circuits which, in an apparent misreading of the seminal case of Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951), have concluded that a bankruptcy or reorganization trustee may be held personally liable for damages only for injuries arising from intentional — as opposed to negligent —" }, { "docid": "13937432", "title": "", "text": "words “or turned over” are sufficient to include property at the value received, as well as moneys disbursed. The Third Circuit came to a similar conclusion in In re Prindible, 115 F.2d 21, 23-24 (3d Cir.1940). There the court stated: “The cost of protecting a fund in court is a dominant charge against the fund.” The court went on to note that “the trustee must show some act of administration with respect to encumbered property in order to be entitled to compensation.” Id. at 24. In this instance, the trustee did not merely protect the property of the estate, but created new property, the guaranteed contracts. To then say that administration expenses cannot be obtained on that property would be unjust given that the creditors and stockholders have obtained the benefits of the trustee’s actions. The fact that the trustee created the fund is of importance, and serves to distinguish this case from one where the trustee merely turns the debtor’s own property back to the debtor. Cf. In re Brigantine Beach Hotel Corp., 197 F.2d 296 (3d Cir.1952) (the principal asset of the estate, the beach front hotel, which was turned back to debtor, could not be used as a basis on which to calculate compensation). The guaranteed contracts have been constructively disbursed to creditors and therefore have been “turned over” to creditors. The contract funds thus qualify as being money turned over to the estate upon which trustee’s commissions may be based pursuant to section 326(a). The valuation of the contracts should be at their present value because that is the amount which is presently being constructively turned over to creditors and shareholders. See In re Carden, Bankr.L.Rep. ¶ 60,104 (S.D.N.Y. Dec. 22, 1960) (trustee may be able to receive commissions upon the discounted value of future payments). Time Records The bankruptcy court stated that any future applications for attorney’s fees must meet the criteria established by the Third Circuit in In re Meade Land and Development Co., 527 F.2d 280 (3d Cir. 1975). However, the bankruptcy court then proceeds to misread the requirements of Meade Land. In" }, { "docid": "17903853", "title": "", "text": "contract were rejected. A party placed in that situation would often be well-advised to cease making payments, even though he could be sued for breach of contract, because he might well recover little or nothing as an unsecured claimant if the trustee rejects. Providing an administrative expense priority for post-filing payments in the event of rejection encourages parties to continue performance of their executory contracts with the debtor during the interim period and thus furthers the statutory policy of encouraging the continued performance of executory contracts which may be beneficial to the estate until the trustee makes his decision. In this case, the trustee was entitled to use post-filing payments in the administration of the estate. The lot purchasers have claims provable against the estate of administrative expense priority on parity with any other administrative expense claims against the estate. 3. Ownership of Payments Received After August 6, 1973. Payments made on an executory contract after rejection are not property of the bankrupt estate. The underlying contracts having been rejected and thus breached, these payments remain the property of the payors. See In re Gravure Paper & Board Corp., 234 F.2d 928, 930, 932 (3d Cir.1956) (once trustee rejects lease, he no longer has any “right, title or interest” in lease or its proceeds); Green v. Finnigan Realty Co., 70 F.2d 465, 466-67 (5th Cir.1934) (once trustee rejects lease, trustee is trespasser and has no right to use or occupancy). Where the trustee takes or retains possession of property that is not an asset of the estate, he is personally liable for damages arising from this illegal act, unless he acts both in good faith and with reasonable grounds for believing that his possession is proper. See Leonard v. Vrooman, 383 F.2d 556, 560-61 (9th Cir.1967) (trustee is personally liable for damages arising from his wrongful possession of “property which is not asset of the estate”); Green, 70 F.2d at 466-67 (trustee who occupies leasehold beyond date of rejection of lease is trespasser and is liable to lessor for reasonable worth of consideration conveyed to trustee after that date); cf." }, { "docid": "17903842", "title": "", "text": "that were executory at the time of filing did not necessarily vest in the trustee as property of the estate. The ownership and treatment of each of those payments, and claims arising therefrom, vary according to the date upon which the particular payment was received. 1. Payments Received Before June 5, 1972. Payments received by Cochise or by Computer Graphics before June 5, 1972 on land sale contracts that were execu-tory on June 5, 1972 were property of the bankrupt. Title to those payments vested in the trustee as of the date of filing of the original petition. Act §§ 70a(5), 186 (1976). Compare In re Superior Motor Truck Co., 275 F. 623, 624 (N.D.Ga.1921) (payments to seller received by seller prior to filing held by bankrupt seller as his property not “on any sort of trust, or as the property of the buyer,” even though trucks not delivered prior to filing) with Gulf Petroleum, S.A. v. Collazo, 316 F.2d 257, 261 (1st Cir.1963) (pre-filing payments to seller of land to be held in escrow by bankrupt seller until closing of sale must be returned to buyer, where trustee rejects executory land sale contract before closing). While Perry has title to all pre-filing payments, appellants, of course, have claims against the estate arising from payments made prior to filing. Since those payments are property of the estate, Perry had no duty to notify the payors before using those funds to pay administrative expenses or other claims against the estate. 2. Payments Received On or After June 5, 1972 and Before August 6, 1978. Payments received on executory contracts on or after the date of filing but prior to August 6, 1973 became property of the estate yet give rise to administrative expense claims against the estate in the amount of those payments. An executory contract of the bankrupt vests in the trustee, if at all, only if the trustee affirms the contract. Palmer v. Palmer, 104 F.2d 161, 163 (2d Cir.), cert, denied, 308 U.S. 590, 60 S.Ct. 120, 84 L.Ed. 494 (1939); 4A J. Moore & L. King, Collier" }, { "docid": "18871419", "title": "", "text": "950, 34 L.Ed. 379 (1890), and In re Fred Sanders Co., 22 B.R. 902 (Bankr.E.D.Mich.1982), to support its claim of entitlement to administrative expense status. Kneeland, a case dealing with a receivership and foreclosure sale of a railroad, was decided long before enactment of the Bankruptcy Code of 1978 and was even decided prior to the 1978 Code’s predecessor, the Bankruptcy Act of 1898. Because the Bankruptcy Code exclusively governs administrative expense determinations, we do not find Kneeland controlling. Sanders, 22 B.R. 902, a case directly contrary to our holding today, holds that a lessor is entitled to administrative payment for the pre-rejection period at the contract rate, regardless of whether the trustee used the asset. For a number of reasons, we reject the Sanders rationale and cases which have followed that rationale, see, e.g. In re Curry Printers, Inc., 135 B.R. 564 (Bankr.N.D.Ind.1991), to the extent that those cases hold that pre-rejection, a creditor is entitled to administrative expense status, regardless of use. One of the goals of Chapter 11 is to keep administrative costs to a minimum in order to preserve the debtor’s scarce resources and thus encourage rehabilitation. In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891, 897 (Bankr.E.D.Pa.1987); see also In re Dant & Russell, 853 F.2d 700, 706 (9th Cir.1988). In keeping with this goal, § 503(b)(1)(A) was not intended to “saddle debtors with special post-petition obligations lightly or give preferential treatment to certain select creditors by creating a broad category of administrative expenses.” Grant Broadcasting, 71 B.R. at 897. The policy behind giving priority to administrative expenses in Chapter 11 proceedings is “to encourage creditors to supply necessary resources to debtors post-petition.” Id. This policy is “diminished where, as here, the creditor is asserting that its administrative claims arise as a result of pre-petition executory contracts,” for equipment which has not been used by nor been a direct benefit to the estate, “as opposed to contracts which are formulated post-petition” or serve to benefit the estate post-petition. Id. Acceptance of GATX’s argument would make debtors liable for their full contract obligations on executory" }, { "docid": "10215503", "title": "", "text": "claim” receiving fifth priority under § 726(a)(5). Because post-petition interest is given the lowest priority in distribution under § 726, the general rule is that interest on post-petition debts is not available in bankruptcy. In re Mark Anthony Constr., Inc., 78 B.R. 260, 262 (Bankr. 9th Cir.1987), rev’d on other grounds, 886 F.2d 1101 (9th Cir.1989). This does not suggest, however, that interest cannot be a part of the debt itself. The land sale contract provided for interest at 10% per annum on the unpaid balance of the contract, interest at 18% per annum on the unpaid balance of the contract after default, and the defaulting party’s payment of the other party’s attorneys’ fees and costs. When the trustee assumed the land sale contract in 1982, he obligated himself to full performance of all of the contract’s obligations, including the payment of interest at the contract rate. We agree with the bankruptcy court that these provisions were an integral component of the contract. When the trustee rejected the contract, all liabilities flowing from that rejection became administrative expenses of the estate, and all claims under the contract were therefore entitled to administrative priority. See Multech, 47 B.R. at 750-51. The trustee argues that giving the interest first priority conflicts with the Bankruptcy Code’s requirement that, for plan confirmation, each holder of a claim must receive “not less than the amount that such holder would so receive or retain if the debtor were liquidated under chapter 7.” 11 U.S.C. § 1129(a)(7)(A)(ii) (1988). We find no such conflict. Because the interest is provided for in the terms of the land contract and is therefore entitled to administrative priority status, Four Seasons would receive that interest in a Chapter 7 liquidation before anything would be distributed to the creditors. See 11 U.S.C. § 726(a) (1988). Thus treating the interest under the contract as an administrative expense does not give unsecured creditors less than they would receive in a Chapter 7 liquidation. As has previously been recognized, “the price for securing the potential margin of benefit through assumption of an executory contract may be" }, { "docid": "1191830", "title": "", "text": "debtor if payment is not forthcoming. In many bankruptcy cases, when a claim is paid makes the difference as to whether it will be paid at all. In re Virginia Packaging Supply Co., 122 B.R. 491, 495 (Bankr.E.D.Va.1990). Consequently, the benefits afforded the lessor under Section 365(d) are numerous. Unlike the practice under the Act, the trustee is obligated to perform all obligations regardless of the “reasonable value” afforded the estate. Additionally, the trustee can make these payments without prior court approval. Finally, and most importantly, any such payment obligations are elevated to priority status regardless of the benefit conferred upon the estate. For example, Section 503(b)(1) defines administrative expenses as those actual, necessary expenses and costs of preserving the estate, and Section 507 provides the exclusive list of priorities in bankruptcy. Section 365(d)(3) provides that the “trustee shall timely perform all the obligations of the debtor ... until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title.” 11 U.S.C. § 365(d)(3) (emphasis added). By waiving the application of Section 503(b)(1), Congress expressly elevated what may have been a general unsecured claim to one of priority under Section 507(a)(1). Rouse, however, urges the Court to elevate its claim even higher, which raises some interesting priority issues. If, for example, this Court permits immediate full payment to Rouse without considering the estate’s possible administrative insolvency, then creditors with administrative claims of equal priority under Section 507(a)(1) may receive a dividend smaller than that awarded to the lessor. Permitting such payment in essence gives the lessor “super-priority” status by elevating the lessor ahead of other administrative creditors. Recognizing such status operates to the detriment of other administrative creditors by precluding recovery of these funds in the event the estate becomes administratively insolvent. In re Cardinal Industries, Inc., 109 B.R. 738, 741 (Bankr.S.D.Ohio 1989) (“[I]f such claim has a super-priority status, payments may not be recoverable if the estate has insufficient funds to pay all administrative expense claims.”). Several number of courts have approved of such “super-priority” status for Section 365(d)(3) obligations. A large number of cases, however, requires the" }, { "docid": "8311828", "title": "", "text": "Chapter 7, as administrative expenses pursuant to § 503(b), entitled to priority pursuant to § 507(a)(1). An order has been entered directing the trustee to disburse to Silver King an amount equal to twenty-five percent of its deposit, with any further payment to await the hearing on the trustee’s final account. . Section 507(a)(1) states: (a) The following expenses and claims have priority in the following order: (1) First, administrative expenses allowed under Section 503(b) of this title, . . . . Section 503(b) reads, in pertinent part: (b) After notice and a hearing, there shall be allowed, administrative expenses, other than claims allowed under Section 502(f) of this title, including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case . . . . The only executory contracts which a debtor in possession can assume are those which are in existence prior to the time of the filing of the Chapter 11 petition. Executory contracts which arise after the filing of a Chapter 11 petition are entered into by the debtor in possession, as opposed to being assumed. Section 502(g), by its terms, applies only to “an execu-tory contract ... of the debtor that has not been assumed. . . . ” . Section 64 of the Bankruptcy Act, former 11 U.S.C. § 104, read, in pertinent part, as follows: a. The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition .... Section 62 of the Bankruptcy Act, former 11 U.S.C. § 102, read, in pertinent part, as follows: a. (1) The actual and necessary costs and expenses incurred by officers ... in the administration of estates shall ... be reported in detail under oath, and examined and approved or disapproved by the court.... . The 1967 amendment, 81" }, { "docid": "14647644", "title": "", "text": "trustee will promptly cure, such default; (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default; and (C) provides adequate assurance of future performance under such contract or lease. 11 U.S.C. § 365(b)(1). Once an assumption order is entered, the creditor must perform in accordance with the terms of the assumed agreements. However, as a matter of fairness, before requiring the creditor to perform, courts require the debtor in possession to “give[ ] the other contracting party the full benefit of [its] bargain.” H.R.Rep. No. 95-595, at 348 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6304-05; see also Matter of Superior Toy & Mfg. Co., Inc., 78 F.3d 1169, 1174 (7th Cir.1996). In other words, the debtor must cure all defaults, assure future performance, and make the other contracting party whole before it may be permitted to assume the agreement. As we explained in Columbia Gas System, “[bjecause assumption acts as a renewed acceptance of the terms of the executory bargain, the Bankruptcy Code provides that the cost of performing the debtor’s obligations is an administrative expense of the estate, which will be paid first out of the assets of the estate.” In re Columbia Gas System Inc., 50 F.3d 233, 238-39 (3d Cir.1995). By contrast, general unsecured creditors are entitled to receive only a pro rata distribution of the debtor’s unencumbered assets that remain after such priority claims and others are paid. See generally 11 U.S.C. §§ 726, 507, 506. See also In re Baker & Getty Financial Services, Inc., 106 F.3d 1255, 1259 n. 7 (6th Cir.1997). For this reason, a creditor whose contract is assumed under § 365 is not similarly situated to general unsecured creditors. The trustee’s characterization of the defendants’ claims as unsecured on the filing date seems to presuppose that a hypothetical Chapter 7 trustee would have elected to. reject the debtor’s agreements with them. Had the agreements been rejected, the breach of the agreements would have been deemed to" } ]

[ { "docid": "23688843", "title": "", "text": "oath or solemn affirma tion, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action.” All the information required in the claim Bruno provided in her sworn answer which was submitted within the 20 day time limit of Rule C(6), but admittedly not within the Rule’s 10 day period for filing of claim. However, the district judge has discretion to grant a claimant additional time to file a claim. See, e.g., U.S. v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1435 (9th Cir.1985); U.S. v. 1967 Mooney M20-F Aircraft, 597 F.Supp. 531, 532 (N.D.Ga.1983); United States v. One 1979 Oldsmobile-Cutlass Supreme, 589 F.Supp. 477, 478 (N.D. Ga.1984). The district judge presumably struck the answer of Bruno because she had failed to file a claim within the express time limit of Rule C(6) prior to filing an answer. This action contradicts both old-fashioned common sense and the time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally. So that to the greatest extent possible controversies are decided on the merits, a district judge should exercise his discretion to grant additional time for the filing of a claim or treat an answer containing all the elements of a claim as a claim when “the goals underlying the time restrictions and the verification [of the claim] are not thwarted.” 1982 Yukon Delta Houseboat, 774 F.2d at 1436. Those goals are to force claimants to come forward as soon as possible after forfeiture proceedings have begun and to prevent false claims. Those goals were met in this case by Bruno’s verified answer filed less than one month after she was served with copies of the complaint and warrant of arrest. In view of the stiff penalty (a default judgment) of striking the answer and the complete absence of any prejudice to the Government, equity and fairness required that the district judge exercise his discretion to treat the filing of Bruno’s answer as a claim, and extend the deadline for its filing so that it satisfied" } ]

[ { "docid": "3945041", "title": "", "text": "Cir.1989). When the purpose for seeking intervention under Rule 24(a)(2) is to assert a claim to property seized under 21 U.S.C. § 881, Supplemental Rule C(6) provides that a verified claim must be filed within 10 days after process has been executed, or within such additional time as may be granted by the court. See One Dairy Farm, 918 F.2d at 311. The government contends that Elisa Colon’s motion to intervene failed in the following three respects: it was untimely, it failed to demonstrate an interest in the property, and it was not accompanied by a verified claim. We disagree. First we consider the issue of timeliness. It is a “time-honored admiralty principle that pleadings and procedural practices should be applied liberally.” United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir. 1989). District courts should strive, “to the greatest extent possible” to ensure that “controversies are decided on the merits.” Id. Toward that end, the district courts should exercise their “discretion to grant additional time for the filing of a claim ... when ‘the goals underlying the time restrictions ... are not thwarted.’ ” Id. (quoting United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985); see also One Dairy Farm, 918 F.2d at 311 (the decision whether to allow a claim is entrusted to the sound discretion of the district court). The reason for imposing time restrictions is “to force claimants to come forward as soon as possible after forfeiture proceedings have begun.” One Urban Lot, 885 F.2d at 1001. Whether a belated claim will be recognized often depends upon the existence of mitigating factors. See One Dairy Farm, 918 F.2d at 311-12 (citing, inter alia, United States v. One (1) 1979 Mercedes 450SE, 651 F.Supp. 351 (S.D.Fla.1987); United States v. One 1979 Oldsmobile Cutlass Supreme, 589 F.Supp. 477 (N.D.Ga.1984); United States v. 1967 Mooney M20-F Aircraft, N9588M, 597 F.Supp. 531 (N.D.Ga.1983)); One Urban Lot, 885 F.2d at 1000 (citing United States v. Beechcraft Queen Airplane Serial Number LD-24, 789 F.2d 627, 630 (8th Cir.1986), for the proposition" }, { "docid": "3945045", "title": "", "text": "One Urban Lot, 885 F.2d at 999-1001 (an answer setting forth all the information necessary to a verified claim may be treated as a verified claim provided the purpose behind Supplemental Rule C(6) — to guard against false claims — is not thwarted); accord, One Dairy Farm, 918 F.2d at 313; see also One Urban Lot 885 F.2d at 1000 (the “traditional admiralty view” is that “procedural practices should be construed liberally”). We think that, if the unverified documents, when read together as a whole, evidence a sufficient interest in the seized property, the district court may treat them as satisfying the verified claim requirement. In the instant case, the relevant documents included a motion to intervene, its supporting memorandum and an unverified answer. We believe that these documents, when read together, adequately apprised the government of Elisa’s claim and the basis upon which that claim rested. There was no abuse of discretion in allowing the case to proceed despite the absence of a verified claim. Finally we address the issue of whether Elisa’s declared interest in the property was sufficient to gain access to the courts. “It is well established that a party seeking to challenge a forfeiture of property must first demonstrate an ownership or possessory interest in the seized property in order to have standing to contest the forfeiture.” United States v. Miscellaneous Jewelry, 667 F.Supp. 232, 235-36 (D.Md.1987) (and supporting cases cited therein), aff'd sub nom. One 1985 Nissan, 889 F.2d 1317 (4th Cir.1989) (en banc). At this preliminary juncture, however, the claimant need not prove the full merits of her underlying claim. All that needs to be shown is a “facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirement and ‘prudential considerations defining and limiting the role of the court.’ ” United States v. $321,470.00, United States Currency, 874 F.2d 298, 302 (5th Cir.1989) (quoting United States v. One 18th Century Columbian Monstrance, 797 F.2d 1370, 1373 (1986), reh’g denied, 802 F.2d 837 (5th Cir.), cert. denied sub nom. Newton v. United States, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496" }, { "docid": "14929523", "title": "", "text": "(denying the pro se claimant standing after he filed an order to show cause instead of a verified claim); United States v. One Dairy Farm, 918 F.2d 310, 312 (1st Cir.1990) (explaining that the appellants lacked standing to contest forfeiture because they failed to file a claim within the time prescribed by Rule C(6)). In stark contrast to the strict-compliance approach, numerous courts interpret “pleadings and procedural practices under the Supplemental Rules liberally enough” to allow for an appropriate degree of discretion in cases where the underlying goals of Rule C(6) are not frustrated to ensure that courts decide controversies on the merits. United States v. $80,760.00 in U.S. Currency, 781 F.Supp. 462, (N.D.Tex.1991); see also United States v. $9,020.00 in United States Currency, 30 Fed. Appx. 855, 858-59 (10th Cir.2002) (limited prece-dential value); Various Computers & Computer Equip., 82 F.3d at 585 (recognizing the “time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally”); United States v. One Parcel Real Prop., 942 F.2d 74, 77 (1st Cir.1991); United States v. 1 Street A-1, 885 F.2d 994, 999-1000 (1st Cir.1989) (construing a “verified answer” as both a claim and an answer under Rule C(6)); United States v. Prop. at 4492 S. Livonia Rd., 889 F.2d 1258, 1262 (2d Cir.1989) (excusing technical noncompliance with procedural rules governing the filing of claims where the claimant made a sufficient showing of interest in the forfeited property); United States v. United States Currency in the Amount of $103,387.27, 863 F.2d 555, 563 (7th Cir.1988) (reasoning that a claimant’s good-faith effort to comply with procedural rules is a basis for permitting an extension of time to file a proper claim). For example, in $9,020.00 in United States Currency, the pro se claimant filed neither a verified claim, nor an answer, instead filing a “Petition for Remission” that “self-verified ... under penalty of perjury” a claim to the seized funds. $9,020.00 in United States Currency, 30 Fed.Appx. at 857-58. The Tenth Circuit held that, in light of the claimant’s pro se status and because the claimant’s petition satisfied the requirements and" }, { "docid": "5061773", "title": "", "text": "v. Property at 4492 S. Livonia Rd., Livonia, 889 F.2d 1258, 1262 (2nd Cir.1989); see also United States v. $38,000 in United States Currency, 816 F.2d 1538, 1544 (11th Cir.1987) (“A claimant need not own the property in order to have standing to contest its forfeiture; a lesser property interest, such as a possessory interest, is sufficient for standing.”). We do not believe that we may equitably deny Lun-dis standing where his actions have not thwarted the goals of Rule C(6). See United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir.1989); Property at 4492 S. Livonia, 889 F.2d at 1262; 1982 Yukon Delta Houseboat, 774 F.2d at 1436. To dismiss Lundis’s claim for failure to include a verified statement would “contradict[ ] both old-fashioned common sense and the time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally.” One Urban Lot, 885 F.2d at 1001. Under the extraordinary circumstances we have here, an inability to timely appeal from the forfeiture of the disputed property because of the erroneous denial of standing, we will allow the defendant to appeal. III. Whether the forfeiture of the computers violated the Double Jeopardy Clause is an interesting question of law subject to plenary review. See United States v. Baird, 63 F.3d 1213, 1215 (3rd Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 909, 133 L.Ed.2d 841 (1996). Although the Double Jeopardy Clause provides that no person “subject for the same offence to be twice put in jeopardy of life or limb,” U.S. Const, amdt. 5, the Supreme Court has explained that the Clause “protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” See United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Lundis contends that the district court violated the prohibition against multiple punishments by first ordering him to pay restitution for the value of the computers, and later, in a subsequent forfeiture" }, { "docid": "5061771", "title": "", "text": "action in rem shall file a claim within 10 days after process has been executed, or within such additional time as may be allowed by the court.... The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend this action. Supplemental Rule C(6) for Certain Admiralty and Maritime Claims (emphasis added). ■After the Government initiated forfeiture proceedings, Lundis duly filed a “Claim and Cost Bond and Affidavit informa pauperis ” in which he asserted that the computer equipment the Government confiscated rightfully belonged to him. This claim conformed to the rules in every respect except it lacked a verification. The purpose of Rule C(6) is to require claimants to come forward as quickly as possible after the initiation of forfeiture proceedings, so that the court may hear all interested parties and resolve the dispute without delay. See United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985). The Rule requires claims to be verified upon oath or solemn affirmation to minimize the danger of false claims. Id. We understand the importance of these goals. On the facts of this ease, however, a verification by Lundis, as we note below, would have been superfluous. The fundament of Lundis’s claim to ownership of the computers is his obligation to make restitution to the owners of the computer equipment. This order of restitution came from the district court. Both the court and the Government were aware of the source of Lundis’s interest in the property and the basis for his claim of ownership. Thus, the verification would not have added to the authenticity of Lundis’s petition. We therefore believe that it was error under these circumstances to reject Lundis’s claim merely because of the absence of verification, especially in light of Lundis’s pro se status and his lack of any knowledge of Rule C(6). With his colorable claim to ownership of the computers, we believe that Lundis had standing at least to challenge the forfeiture proceedings. See United States" }, { "docid": "3945040", "title": "", "text": "as well as Federal Rule of Civil Procedure 24(a)(2) (intervention as a matter of right). See Supplemental Rule for Certain Admiralty and Maritime Claims A (with respect to civil forfeiture actions, the “general Rules of Civil Procedure ... are ... applicable ... except to the extent that they are inconsistent with these Supplemental Rules”); United States v. One Dairy Farm, 918 F.2d 310, 311 (1st Cir.1990) (“Proceedings in forfeiture cases are governed by the Federal Rules of Civil Procedure and the Supplemental Rules for Certain Admiralty and Maritime [C]laims”). According to Federal Rule of Civil Procedure 24(a)(2), the following criteria must be met in order to intervene as a matter of right: (1) the party must claim an interest in the property; (2) disposition of the case without intervention, would, “as a practical matter, impair or impede [the party’s] ability to protect that interest”; (3) the party’s interest is inadequately represented by the existing parties; and (4) the motion for intervention is timely made. See Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir.1989). When the purpose for seeking intervention under Rule 24(a)(2) is to assert a claim to property seized under 21 U.S.C. § 881, Supplemental Rule C(6) provides that a verified claim must be filed within 10 days after process has been executed, or within such additional time as may be granted by the court. See One Dairy Farm, 918 F.2d at 311. The government contends that Elisa Colon’s motion to intervene failed in the following three respects: it was untimely, it failed to demonstrate an interest in the property, and it was not accompanied by a verified claim. We disagree. First we consider the issue of timeliness. It is a “time-honored admiralty principle that pleadings and procedural practices should be applied liberally.” United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir. 1989). District courts should strive, “to the greatest extent possible” to ensure that “controversies are decided on the merits.” Id. Toward that end, the district courts should exercise their “discretion to grant additional time for the" }, { "docid": "5061769", "title": "", "text": "upon Lundis at the Allegheny County Jail on February 1, 1995. Lundis timely filed a claim to the computers and an answer to the Government’s complaint, along with a motion to proceed in forma pauperis and for appointment of counsel. The Government opposed Lundis’s request to proceed in forma pauperis and his request for counsel. It also filed a motion to dismiss Lundis’s claim. In the motion to dismiss, the Government asserted that Lun-dis’s claim to the computers was defective because it was not verified as required by Supplemental Rule C(6) for Certain Admiralty and Maritime Claims (“Rule C(6)”). Lun-dis timely filed a response in opposition to the Government’s motion to dismiss, admitting that his claim was neither verified nor properly served, but asserting that the procedural defects were due to his pro se and prison status. The district court dismissed Lundis’s claim and entered a Judgment and Final Order of Forfeiture on March 28, 1995, in favor of the United States. Throughout these proceedings, Lundis filed many documents pro se with the district court, including three “Notices of Appeal.” Lundis filed motions for leave to appeal in forma pauperis and for appointment of counsel with this court, and this court granted the motions. II. The Government raises jurisdictional issues contending that Lundis has not appealed from the final order of forfeiture. We have plenary review over questions of jurisdiction. See Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1002 (3rd Cir.1992). The district court's dismissal of Lundis’s claim to the property had the effect of denying him standing, and thus barred him from appealing the final forfeiture order. Without a colorable claim to the computers, Lundis lacked standing to challenge the forfeiture proceedings. Thus, as a threshold question, we must address whether the court properly denied Lundis’s pro se motion to intervene in the forfeiture proceedings. A. Rule C(6) requires a claimant to property in a civil forfeiture to file a verified claim with the district court. The rule provides, in relevant part: (6) Claim and Answer; Interrogatories. The claimant of property that is the subject of an" }, { "docid": "23593753", "title": "", "text": "9-68 (2002). But cf. United States v. $557,938.89, 287 F.3d 66, 79 & n. 9 (2d Cir.2002) (questioning whether claimant needs to demonstrate Article III standing since plaintiff typically bears burden to show standing and government is plaintiff). The federal forfeiture statute defines rules as to who may intervene and when they must do it. By virtue of the roots of in rem jurisdiction in admiralty law, the procedures for intervention in civil forfeitures are governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. See 18 U.S.C. § 981(b)(2) (1994) (amended 2000); United States v. One Dairy Farm, 918 F.2d 310, 311 (1st Cir.1990). Supplemental Rule C(6), as it read in 1995, required a party to submit a “claim” to the property within ten days. “A party who fails to file a claim normally lacks standing to contest a forfeiture.” One Dairy Farm, 918 F.2d at 311; see, e.g., United States v. 3,888 Lbs. of Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir.1988) (failure to file timely claim disqualifies would-be intervenor); see also United States v. One Urban Lot, 885 F.2d 994, 998-1000 (1st Cir.1989) (allowing standing without claim where verified answer was timely filed and there was no prejudice to government from delay, but dismissing where claimant filed neither claim nor answer). As to constitutional standing, “It is well established that a party seeking to challenge a forfeiture of property must first demonstrate an ownership or possessory interest in the seized property in order to have standing to contest the forfeiture.” United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir.1991) (quotation omitted). Courts should not, however, conflate the constitutional standing inquiry with the merits determination that comes later. See United States v. 5 S 351 Tuthill Rd., 233 F.3d 1017, 1023-24 (7th Cir.2000) (criticizing tests of straw ownership that deny standing rather than denying claims on their merits). At the initial stage of intervention, the requirements for a claimant to demonstrate constitutional standing are very forgiving. In general, any colorable claim on the defendant property suffices. $81,000, 189 F.3d at 35 (“Courts generally" }, { "docid": "3945042", "title": "", "text": "filing of a claim ... when ‘the goals underlying the time restrictions ... are not thwarted.’ ” Id. (quoting United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985); see also One Dairy Farm, 918 F.2d at 311 (the decision whether to allow a claim is entrusted to the sound discretion of the district court). The reason for imposing time restrictions is “to force claimants to come forward as soon as possible after forfeiture proceedings have begun.” One Urban Lot, 885 F.2d at 1001. Whether a belated claim will be recognized often depends upon the existence of mitigating factors. See One Dairy Farm, 918 F.2d at 311-12 (citing, inter alia, United States v. One (1) 1979 Mercedes 450SE, 651 F.Supp. 351 (S.D.Fla.1987); United States v. One 1979 Oldsmobile Cutlass Supreme, 589 F.Supp. 477 (N.D.Ga.1984); United States v. 1967 Mooney M20-F Aircraft, N9588M, 597 F.Supp. 531 (N.D.Ga.1983)); One Urban Lot, 885 F.2d at 1000 (citing United States v. Beechcraft Queen Airplane Serial Number LD-24, 789 F.2d 627, 630 (8th Cir.1986), for the proposition that “Rule C(6) may be construed liberally in the event of ‘mitigating factors’ ”). Similarly, courts should consider the extent to which the government will be prejudiced if the claim is allowed. See One Urban Lot, 885 F.2d at 1001. (when the government will suffer no prejudice, equity and fairness may require the district court to exercise its discretion in the claimant's favor). With respect to the instant case, we find the following factors persuasive: (1) Elisa Colón was neither named in nor served with a copy of the summons and complaint, and while notice of the pending forfeiture action appeared on three separate occasions in the Providence Journal Bulletin, Elisa does not have a significant command of the English language, see, e.g., Beechcraft Queen Airplane, 789 F.2d at 630 (a more liberal approach may be warranted when the claimant has not received actual notice of the complaint); (2) although forfeiture proceedings were originally instituted in June 1989, as a result of the vacated default judgment against Esteban, preparation for trial did not actually begin" }, { "docid": "14571949", "title": "", "text": "The first and threshold issue is whether the claimant to the property has standing. Id. at 1543-47. A. Standing The court agrees with the government that claimants Santos and Lonnie Gomez lack the necessary standing. There are two different forms of standing in a forfeiture case: Article III standing and statutory standing. $38,000 in United States Currency, 816 F.2d at 1543. “It is well established that in order to contest a forfeiture, a claimant first must demonstrate a sufficient interest in the property to give him Article III standing; otherwise, there is no ‘case or controversy,’ in the constitutional sense, capable of adjudication in the federal courts.” Id. A claimant need not own the property in order to have Article III standing; a lesser property interest, such as the possessory interest of a bailee, is sufficient for standing. Id. at 1544. However, “In addition to establishing Article III standing, claimants also must satisfy applicable statutory standing requirements.” Id. The statutory provisions governing standing include Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims (West 1992). United States v. $260,242 United States Currency, 919 F.2d 686 (11th Cir.1990) (per curiam); $38,000 in United States Currency, 816 F.2d at 1544-45. Rule C(6) provides, in relevant part, that “If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee, or attorney is duly authorized to make the claim.” The “plain language of this rule,” therefore, “does not permit [a claimant] simply to state that he is a bailee; he must state that he is ‘duly authorized to make the claim.’” $260,212 United States Currency, 919 F.2d at 688. And, as part of this obligation, “one claiming to have been acting as a bailee or assignee in a forfeiture action must identify the owner of the property.” Id. Here, Santos and Lonnie Gomez contend that Rule C’s standing requirement does not apply to them because they were actual owners and not mere bailees of the money. They testified at trial that the mattress was given to" }, { "docid": "23593754", "title": "", "text": "also United States v. One Urban Lot, 885 F.2d 994, 998-1000 (1st Cir.1989) (allowing standing without claim where verified answer was timely filed and there was no prejudice to government from delay, but dismissing where claimant filed neither claim nor answer). As to constitutional standing, “It is well established that a party seeking to challenge a forfeiture of property must first demonstrate an ownership or possessory interest in the seized property in order to have standing to contest the forfeiture.” United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir.1991) (quotation omitted). Courts should not, however, conflate the constitutional standing inquiry with the merits determination that comes later. See United States v. 5 S 351 Tuthill Rd., 233 F.3d 1017, 1023-24 (7th Cir.2000) (criticizing tests of straw ownership that deny standing rather than denying claims on their merits). At the initial stage of intervention, the requirements for a claimant to demonstrate constitutional standing are very forgiving. In general, any colorable claim on the defendant property suffices. $81,000, 189 F.3d at 35 (“Courts generally do not deny standing to a claimant who is either the colorable owner of the res or who has any colorable possessory interest in it.”); see United States v. 7725 Unity Ave. N., 294 F.3d 954, 957 (8th Cir.2002) (“The claimant need only show a colorable interest in the property, redressable, at least in part, by a return of the property.”); 5 S 351 Tuthill Rd., 233 F.3d at 1023 (claimant must show only “actual stake in the outcome” of forfeiture); Cambio Exacto, 166 F.3d at 527 (“[W]hile ownership and possession generally may provide evidence of standing, it is injury to the party seeking standing that remains the ultimate focus.”); United States v. One 18th Century Colombian Monstrance, 797 F.2d 1370, 1375 (5th Cir.1986) (claimant “must be able to show at least a facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirement and prudential considerations”) (internal quotation omitted); see also United States v. 221 Dana Ave., 261 F.3d 65, 71 & n. 5 (1st Cir.2001) (noting congressional intent that ownership be broadly" }, { "docid": "14929539", "title": "", "text": "245 F.Supp.2d 41. Viewing this litigation in its present posture, the court notes that the only remaining issue presently before it is whether the claimant has satisfied the substantive requirements of Rule C(6). Fed. R. Civ. P. Supp. R. C(6); Pl.’s Opp'n at 2. . Rule C(6)'s verification requirement is an “essential element of any claim because of the substantial danger of false claims.” United States Currency in the Amount of $103,387.27, 863 F.2d at 559. Verification forces the claimant to place herself at risk of perjury for false claims and, consequently, the requirement of oath or affirmation is not a’ mere technicality that the court easily excuses. Commodity Account No. 549 54930, 219 F.3d at 597. Courts have, however, allowed claimants to proceed without verification in certain circumstances. E.g., Various Computers & Computer Equip., 82 F.3d at 585; 1 Street A-1, 885 F.2d at 999-1000 (interpreting a timely verified answer to serve as both a verified claim and an answer pursuant to Rule C(6)). For instance, in Various Computers & Computer Equipment, the claimant, proceeding in forma pauperis, filed a claim that failed to include a verification. Various Computers & Computer Equip., 82 F.3d at 584. The Third Circuit relied on equitable principles in allowing the claim to proceed even in the absence of a verification because [bjoth the court and the [gjovernment were aware of the source of [the claimant's] interest in the property and the basis for his claim of ownership. Thus, the verification would not have added to the authenticity of [his] petition.... We do not believe that we may equitably deny [his] standing where his actions have not thwarted the goals of Rule C(6).... .To dismiss [his] claim for failure to include a verified statement would contradict[] both old-fashioned common sense and the time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally. Id. at 585. . . The claimant's claim appears at first glance to be subscribed to and sworn before a notary public. Upon further study, however, it becomes clear that the document is \"self-verified'' because it was" }, { "docid": "23501207", "title": "", "text": "77 L.Ed.2d 180 (1983)). Accordingly, we conclude that the Government gave Patel sufficient notice of the commencement of forfeiture proceedings against his property. B. Patel was not a “party” to the forfeiture proceedings such that his consent was a precondition to the magistrate judge’s jurisdiction. Patel urges us to hold that the record owner of a property must consent to a magistrate judge’s jurisdiction over an in rem civil forfeiture action against the property, even if the owner has failed to respond to the civil forfeiture complaint. The Ninth Circuit has not had occasion to address this issue. In deciding related questions, several other circuit courts have conditioned a person’s standing to contest forfeiture or garnishment actions on strict compliance with filing requirements. See United States v. One Urban Lot, 978 F.2d 776, 778 (1st Cir. 1992) (finding that putative claimant lacks standing to contest forfeiture unless she files claim); United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1112-15 (5th Cir.1992) (noting that putative claimant must file claim demonstrating interest in property in order to establish standing to oppose forfeiture and affirming lower court’s decision to strike untimely claim and answer to forfeiture complaint); United States v. Eng, 951 F.2d 461, 467 (2d Cir.1991) (determining that alleged owner of property who failed to file verified claim to property lacked standing to challenge forfeiture of property); Giove v. Stanko, 882 F.2d 1316, 1318 (8th Cir.1989) (determining that judgment debtor who failed to intervene in garnishment action was not automatically a party to that action and need not have consented to magistrate judge’s jurisdiction). But see United States v. Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1262 (2d Cir.1989) (excusing technical noncompliance with procedural rules governing filing of claims on ground that claimant made sufficient showing of interest in property). The Seventh Circuit, however, has come closest to addressing the issue presented by this case. See United States v. 8136 S. Dobson Street, 125 F.3d 1076 (7th Cir.1997) (“Dobson Street ”). In Dobson Street, a Seventh Circuit panel found that, absent the filing of a claim to a property" }, { "docid": "14571948", "title": "", "text": "if he had covered up the mattress he, Lonnie, would have “made it worth his while later.” The Gomezes were arrested for possession of marijuana. The truck and the items in it were taken to a Dothan trooper station. It was later determined that the mattress contained $511,780.00. The money was in various denominations from $5 to $100, and was rolled up in separate bundles of $1,000 each. The officers who unpacked the money found that it reeked of the smell of marijuana. II. DISCUSSION Under § 881(a)(6), “the United States may obtain forfeiture of all moneys furnished or intended to be furnished in exchange for a controlled substance in violation of Title 21 of the United States Code, as well as all proceeds traceable to, and all moneys used or intended to be used to facilitate, such an exchange.” United States v. $38,000 in United States Currency, 816 F.2d 1538, 1540 (11th Cir.1987). In determining whether the government is entitled to forfeiture, the court must apply a number of shifting burdens to the parties. The first and threshold issue is whether the claimant to the property has standing. Id. at 1543-47. A. Standing The court agrees with the government that claimants Santos and Lonnie Gomez lack the necessary standing. There are two different forms of standing in a forfeiture case: Article III standing and statutory standing. $38,000 in United States Currency, 816 F.2d at 1543. “It is well established that in order to contest a forfeiture, a claimant first must demonstrate a sufficient interest in the property to give him Article III standing; otherwise, there is no ‘case or controversy,’ in the constitutional sense, capable of adjudication in the federal courts.” Id. A claimant need not own the property in order to have Article III standing; a lesser property interest, such as the possessory interest of a bailee, is sufficient for standing. Id. at 1544. However, “In addition to establishing Article III standing, claimants also must satisfy applicable statutory standing requirements.” Id. The statutory provisions governing standing include Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime" }, { "docid": "6401821", "title": "", "text": "to unjustifiably delay filing their claims. See 7A Moore’s Federal Practice 11 C.16 at 700.14 (“A claimant with actual knowledge, of course, should not [wait until after publication] lest he be deemed guilty of laches.”) The purpose of the Rule C(6) time limit is “to force claimants to come forward as soon as possible after forfeiture proceedings have begun and to prevent false claims.” United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir.1989); United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985). Furthermore, newspaper notice is not required in all cases, see Supp. R. C(4), and “a claimant with actual notice of the arrest, especially if such notice was obtained by service upon him, cannot object to a failure to advertise.” 7A Moore’s Federal Practice 11 C.14 at 700.1; see also $38,-570 U.S. Currency, 950 F.2d at 1115 n. 8 (rejecting argument that process is not executed until the final day of publication of notice). For these reasons, we have little difficulty rejecting appellant’s reading of Rule C(6). We add that the case law in this circuit is consistent with treating the date on which adequate notice was first given to a particular claimant, whether by personal service or publication, as the trigger of the Rule C(6) time period. See, e.g., United States v. One 1987 BMW 325, 985 F.2d 655, 657 (1st Cir.1993); One Urban Lot, 978 F.2d at 777; One Urban Lot Located at 1 Street A-1, 885 F.2d at 1001; United States v. One 1978 BMW, 624 F.Supp. 491, 492 (D.Mass.1985); see also United States v. Estevez, 845 F.2d 1409, 1412 (7th Cir.1988) (considering date that claimant received notice in mail to commence filing period under 21 U.S.C. § 853(n)); United States v. United States Currency Totalling $3,817.49, 826 F.2d 785, 786 (8th Cir.1987) (assuming that claim filed within ten days of notice, but five months after seizure, was timely); United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1545-46 (11th Cir.1987) (refusing to apply Rule C(6) deadline to claim where government failed to" }, { "docid": "14929540", "title": "", "text": "proceeding in forma pauperis, filed a claim that failed to include a verification. Various Computers & Computer Equip., 82 F.3d at 584. The Third Circuit relied on equitable principles in allowing the claim to proceed even in the absence of a verification because [bjoth the court and the [gjovernment were aware of the source of [the claimant's] interest in the property and the basis for his claim of ownership. Thus, the verification would not have added to the authenticity of [his] petition.... We do not believe that we may equitably deny [his] standing where his actions have not thwarted the goals of Rule C(6).... .To dismiss [his] claim for failure to include a verified statement would contradict[] both old-fashioned common sense and the time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally. Id. at 585. . . The claimant's claim appears at first glance to be subscribed to and sworn before a notary public. Upon further study, however, it becomes clear that the document is \"self-verified'' because it was the claimant herself that notarized the document \"as true to [her] own knowledge.” See Cl.'s Verified Claim. The validity of the document’s notarization, however, has no bearing on the court's ruling, and the court therefore puts the issue to one side. . The liberal construction afforded to pro se filings by our court of appeals further buttresses the court’s decision to recognize the claimant's standing. See Sparrow v. United Air Lines Inc., 216 F.3d 1111 (D.C.Cir.2000) (recognizing that courts may relax procedural requirements governing civil actions involving pro se litigants); see also Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C.Cir.1993) (noting that pro se litigants \"are allowed more latitude than litigants represented by counsel to correct defects in ... pleadings”). . The plaintiff failed to cite any law supporting its blanket assertion that the claimant has \"indisputably failed to comply with ... Rule C(6) by failing to file a verified claim setting forth an interest in the defendant funds ...\" Pl.’s Opp’n at 8. . The D.C. Circuit’s indulgent treatment of pro" }, { "docid": "5061772", "title": "", "text": "to be verified upon oath or solemn affirmation to minimize the danger of false claims. Id. We understand the importance of these goals. On the facts of this ease, however, a verification by Lundis, as we note below, would have been superfluous. The fundament of Lundis’s claim to ownership of the computers is his obligation to make restitution to the owners of the computer equipment. This order of restitution came from the district court. Both the court and the Government were aware of the source of Lundis’s interest in the property and the basis for his claim of ownership. Thus, the verification would not have added to the authenticity of Lundis’s petition. We therefore believe that it was error under these circumstances to reject Lundis’s claim merely because of the absence of verification, especially in light of Lundis’s pro se status and his lack of any knowledge of Rule C(6). With his colorable claim to ownership of the computers, we believe that Lundis had standing at least to challenge the forfeiture proceedings. See United States v. Property at 4492 S. Livonia Rd., Livonia, 889 F.2d 1258, 1262 (2nd Cir.1989); see also United States v. $38,000 in United States Currency, 816 F.2d 1538, 1544 (11th Cir.1987) (“A claimant need not own the property in order to have standing to contest its forfeiture; a lesser property interest, such as a possessory interest, is sufficient for standing.”). We do not believe that we may equitably deny Lun-dis standing where his actions have not thwarted the goals of Rule C(6). See United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir.1989); Property at 4492 S. Livonia, 889 F.2d at 1262; 1982 Yukon Delta Houseboat, 774 F.2d at 1436. To dismiss Lundis’s claim for failure to include a verified statement would “contradict[ ] both old-fashioned common sense and the time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally.” One Urban Lot, 885 F.2d at 1001. Under the extraordinary circumstances we have here, an inability to timely appeal from the forfeiture of the" }, { "docid": "6401820", "title": "", "text": "Rule C(6) had run out by the time he filed his claim on January 31, 1992. See Dist. Ct. Order at 3. Cotto-Garcia’s reading of Rule C(6) is perhaps not entirely inconceivable, see United States v. Various Parcels of Real Property, 650 F.Supp. 62, 64 n. 2 (N.D.Ind.1986), given the confusion surrounding the requirements of Rule C. See United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1114 (5th Cir.1992); 7A Moore’s Federal Practice If C.16 at 700.13-700.14. However, a deadline tied to the notice publication date would, for someone who had already received notice by personal service, make little sense. Personal service is virtually certain to alert the intended noticee. Notice by publication, on the other hand, is far less reliable, being a stop gap for persons whose identities and possible interests are unknown. Once alerted by personal service, an individual has nothing left to learn by awaiting publication of notice in the newspaper. All that would occur, were we to adopt appellant’s position, would be to permit claimants who have been personally notified to unjustifiably delay filing their claims. See 7A Moore’s Federal Practice 11 C.16 at 700.14 (“A claimant with actual knowledge, of course, should not [wait until after publication] lest he be deemed guilty of laches.”) The purpose of the Rule C(6) time limit is “to force claimants to come forward as soon as possible after forfeiture proceedings have begun and to prevent false claims.” United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir.1989); United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985). Furthermore, newspaper notice is not required in all cases, see Supp. R. C(4), and “a claimant with actual notice of the arrest, especially if such notice was obtained by service upon him, cannot object to a failure to advertise.” 7A Moore’s Federal Practice 11 C.14 at 700.1; see also $38,-570 U.S. Currency, 950 F.2d at 1115 n. 8 (rejecting argument that process is not executed until the final day of publication of notice). For these reasons, we have little difficulty rejecting" }, { "docid": "12401976", "title": "", "text": "by the statute pursuant to which the action is brought. See Fed.R.Civ.P. Supp., Rule C(2). Claimants to the property at risk of forfeiture must file a verified claim within ten days after process has been executed, stating the interest in the property by virtue of which the claimant demands restitution and a right to defend against the action, and must file an answer within twenty days after the filing of the claim. See Fed.R.Civ.P. Supp., Rule C(6). Lindstrpm filed a claim to the account but lacks standing to contest the forfeiture because he failed to verify his claim on oath or solemn affirmation and failed to file an answer within twenty days of his claim. We review the grant of summary judgment de novo. See United States v. All Assets & Equip, of W. Side Bldg. Corp., 58 F.3d 1181, 1186 (7th Cir.1995). Lindstrpm admits that his claim was unverified but argues that copies of a court order establishing himself as judgment creditor to the Saul Stone account provide sufficient proof of his interest to satisfy the verified claim requirement. However, verification is an “essential element of any claim because of the substantial danger of false claims.” See United States v. $103,387.27, 863 F.2d 555, 559 (7th Cir.1988) (citations omitted); see also United States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d 1306, 1318 (10th Cir.1994); United States v. $2,857.00, 754 F.2d 208, 213 (7th Cir.1985). Verification forces the claimant to place himself at risk of perjury for false claims, and the requirement of oath or affirmation is not a mere technical requirement that we easily excuse. Other courts have permitted standing without a verified claim in special circumstances. See, e.g., United States v. Various Computers & Computer Equipment, 82 F.3d 582, 585 (3d Cir.1996) (ruling that a pro se claimant who filed a timely claim and answer could proceed when his claim was based on the district court’s prior order of restitution); United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 1001 (1st Cir.1989) (allowing a claimant to proceed after she filed" }, { "docid": "5061770", "title": "", "text": "including three “Notices of Appeal.” Lundis filed motions for leave to appeal in forma pauperis and for appointment of counsel with this court, and this court granted the motions. II. The Government raises jurisdictional issues contending that Lundis has not appealed from the final order of forfeiture. We have plenary review over questions of jurisdiction. See Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1002 (3rd Cir.1992). The district court's dismissal of Lundis’s claim to the property had the effect of denying him standing, and thus barred him from appealing the final forfeiture order. Without a colorable claim to the computers, Lundis lacked standing to challenge the forfeiture proceedings. Thus, as a threshold question, we must address whether the court properly denied Lundis’s pro se motion to intervene in the forfeiture proceedings. A. Rule C(6) requires a claimant to property in a civil forfeiture to file a verified claim with the district court. The rule provides, in relevant part: (6) Claim and Answer; Interrogatories. The claimant of property that is the subject of an action in rem shall file a claim within 10 days after process has been executed, or within such additional time as may be allowed by the court.... The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend this action. Supplemental Rule C(6) for Certain Admiralty and Maritime Claims (emphasis added). ■After the Government initiated forfeiture proceedings, Lundis duly filed a “Claim and Cost Bond and Affidavit informa pauperis ” in which he asserted that the computer equipment the Government confiscated rightfully belonged to him. This claim conformed to the rules in every respect except it lacked a verification. The purpose of Rule C(6) is to require claimants to come forward as quickly as possible after the initiation of forfeiture proceedings, so that the court may hear all interested parties and resolve the dispute without delay. See United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir.1985). The Rule requires claims" } ]

[ { "docid": "10539039", "title": "", "text": "such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case under this title; or (B) any right of the estate to a tax refund, before the earlier of— (i) 120 days after the trustee properly requests such refund from the governmental unit from which such refund is claimed; or (ii) a determination by such governmental unit of such request. Section 505 has been interpreted to permit the bankruptcy court to determine the amount of any tax , including real estate tax assessments. See In re A.W.B. Assocs., G.P., 144 B.R. 270 (Bankr.E.D.Pa.l992)(court applied section 505 for the purpose of challenging several years of prepetition real estate tax assessments); In re Morelyn Plaza, L.P., 1997 WL 68578 (Bankr.E.D.Pa. January 23, 1997)(same); In re Piper Aircraft Corp., 171 B.R. 415 (Bankr.S.D.Fla.1994)(same). The ability of a bankruptcy court to determine any and all issues of tax liability of debtors, when there has been no prior determination by any state, judicial or judicial body, is well established in the Third Circuit. In re A.W .B. Assocs., 144 B.R. at 278 (citing In re Century Vault Co., 416 F.2d 1035 (3d Cir.1969); and In re Monongahela Rye Liquors, Inc., 141 F.2d 864, 866-68 (3d Cir.1944)). In making such determination, section 505 grants a bankruptcy court broad discretionary powers to determine tax liabilities. In re Penking Trust, 196 B.R. 389 (Bankr.E.D.Tenn.1996). A debtor’s failure to meet state procedural requirements (such as payment of tax obligation) or the lapse of time between a tax year and the time of the filing does not limit the applicability of 11 U.S.C. § 505. In re A W.B.Assocs., 144 B.R. at 278. In that case, the court held that a debtor’s failure to comply with state law procedures does not preclude the bankruptcy court from determining the amount and legality of a property tax for up to seven years prior to the filing of the debtor’s bankruptcy petition. Id. The court in Morelyn Plazo, L.P., 1997 WL 68578 at *3, reasoned that state law procedural requirements" } ]

[ { "docid": "18523920", "title": "", "text": "raises issues which should and can be resolved between Group and the City alone. We disagree with the City’s suggestion that this court lacks jurisdiction to decide the issues raised in the Objections because these issues were not previously raised before appropriate administrative appellate tax bodies. Subject to its discretion to abstain, this bankruptcy court, by reason of 11 U.S.C. § 505, has been accorded the power to decide tax disputes, irrespective of whether the Debtor exhausted any available administrative remedies. See In re AWB Associates, 144 B.R. 270, 275-78 (Bankr.E.D.Pa.1992). However, in AWB, supra, id. at 276, this court, citing In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990), thusly recited the factors which a bankruptcy could should consider in deciding whether to in fact proceed to determine a particular tax dispute: (1) the complexity of the tax issue to be decided; (2) the need to administer the bankruptcy case in an orderly and efficient manner; (3) the burden on the bankruptcy court’s docket; (4) the length of time required for trial and decision; (5) the asset and liability structure of debtors; and (6) any prejudice or potential prejudice to both the debtor and taxing authority. Apart from the context of when it should exercise its § 505 powers, a bankruptcy court should generally refrain from deciding any issues which constitute disputes between creditors which will have little, if any, effect on the administration of the debtor’s case. See In re Selig, 135 B.R. 241, 243-45 (Bankr.E.D.Pa.1992); and In re City Wide Press, Inc., 107 B.R. 68, 70-72 (Bankr.E.D.Pa.1989). The lack of a need to decide an issue involving taxes to administer a debt- or’s estate is one of the factors to be considered in deciding whether to exercise jurisdiction under § 505. See AWB, supra, 144 B.R. at 276. We find that the dispute about the 1988-89 taxes is, in essence, a dispute between Group and the City which they can and should litigate elsewhere. Other considerations point to resolution of the 1988-89 real estate tax dispute between Group and the City in another forum. The issues presented in" }, { "docid": "5883642", "title": "", "text": "full of all claims had been confirmed and therefore only the Debtor stood to benefit from a ruling on the merits. See, e.g., In re Swan, 152 B.R. 28, 30 (Bankr.W.D.N.Y.1992) (“discretion should not be exercised where the unsecured creditors derive no benefit from the remedy under Section 505”); In re El Tropicano, Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991) (Congress in § 505 “was primarily concerned with protecting creditors from the disposition of the estate’s assets which could result if the creditors were bound by a tax judgment which the debtor ... did not contest”). Judge Feeney properly looked to the following as factors to consider: 1. the complexity of the tax issue to be decided; 2. the need to administer the bankruptcy case in an orderly and efficient manner; 3. the burden on the Bankruptcy Court’s docket; 4. the length of time required for trial and decision; 5. the asset and liability structure of debtors; and 6. any prejudice or potential prejudice to both the debtor and taxing authority. In re St John’s, 154 B.R. at 125-26 (citing In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990)). Her evaluation of those factors was well within the range of her informed discretion in this matter and provides an appropriate alternative ground for affir-mance. CONCLUSION For the foregoing reasons, the ruling of the Bankruptcy Court is hereby AFFIRMED. . The actual tax is \"based upon the assessor’s determination of the fair market value of the subject property.” In re St. John’s Nursing Home, Inc., 154 B.R. 117, 118 (Bankr.D.Mass.1993) (citing M.G.L. ch. 59, §§11 and 38). . In their briefing, the parties indicate that the 1993 taxes have since been paid and no abatement has been sought regarding them. See, e.g., Appellant’s Brief at 3. Consequently, the legal issues presented in respect to those taxes are now indistinguishable from the issues presented by the taxes for 1988 through 1992. . M.G.L. ch. 59, § 59 sets forth the various time limits within which an aggrieved taxpayer may apply for an abatement. See note 7, infra. It is not contested that the relevant" }, { "docid": "18103754", "title": "", "text": "or addition to a tax is not unfettered. In re Continental Airlines, Inc., 149 B.R. 76, 84 (D.Del.1993), aff'd in part, rev’d in part, 8 F.3d 811 (3d Cir.1993) (Table), cert. denied, 510 U.S. 1192, 114 S.Ct. 1297, 127 L.Ed.2d 650 (1994). Section 505(a)(2)(A) expressly precludes a bankruptcy court “from reviewing any determination of a debtor’s tax liability where that liability has already been contested or adjudicated.” 11 U.S.C. § 505(a)(2)(A); In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990) (a policy of § 505 is to “ensure the finality of determinations of tax liability reached prior to Bankruptcy”). Section 505 was enacted to alleviate two concerns. First, is the necessity of “afford[ing] a forum for the ready determination of the legality or amount of tax claims, which determination, if left to other proceedings, might delay conclusion of the administration of the bankruptcy estate.” In re Diez, 45 B.R. 187, 139 (Bankr.S.D.Fla.1984). Second, “Congress was concerned with protecting creditors from the dissipation of an estate’s assets which could result if creditors were bound by a tax judgment which the debtor, due its ailing financial condition, failed to contest.” In re American Motor Club, Inc., 139 B.R. 578, 581 (Bankr.E.D.N.Y.1992). The purposes of § 505 have been analyzed using a six-factor test. Gossman v. United States (In re Gossman), 206 B.R. 264, 266 (Bankr.N.D.Ga.1997). The six-factor test for applying discretionary abstention in the realm of tax liability determinations, developed by the courts, is: 1. the complexity of the tax issues to be decided; 2. the need to administer the bankruptcy case in an orderly and efficient manner; 3. the burden on the bankruptcy court’s docket; 4. the length of time required for the trial and the decision; 5. the asset and liability structure of the debtor; and 6. the prejudice to the debtor and the potential prejudice to the taxing authority. Bldg. Techs. Corp. v. City of Hannibal (In re Bldg. Techs. Corp.), 167 B.R. 853, 858 (Bankr.S.D.Ohio 1994) (citing In re Galvano, 116 B.R. 367 (Bankr.E.D.N.Y.1990)). As some of the six factors in the above test overlap, they will be combined" }, { "docid": "16062433", "title": "", "text": "amount of the tax that purportedly is due and owing. Requiring her to proceed in the district court, she concludes, effectively would deprive her of the opportunity to contest the tax liability because she lacks the wherewithal to pay such a tax. The circumstances present in this ease persuade us that abstention is warranted. General unsecured creditors, not the debtor, are the intended beneficiaries of § 505(a). See In re El Tropicano Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). Bankruptcy courts uniformly have refused to exercise jurisdiction in § 505(a) actions when it is obvious that the intended beneficiaries unquestionably will derive no benefit from the outcome of the case. See, e.g., In re Swan, supra; In re Millsaps, 133 B.R. 547, 554 (Bankr.M.D.Fla.), aff'd, 138 B.R. 87 (M.D.Fla.1991); In re Cain, 142 B.R. 785, 789 (Bankr.W.D.Tex.1992). As was noted previously, debtor has only one general unsecured creditor to which she owes $232.28. This creditor will not benefit from the outcome of this case because debtor has reaffirmed her obligation to it and has agreed to pay the creditor in full in installments. Moreover, this is a no-asset case. Abstention is especially appropriate in such cases. See, e.g., In re Kaufman, 115 B.R. 378, 379 (S.D.Fla.1990). Hearing and deciding this ease will not further any bankruptcy interest. No assets will be made available for distribution to creditors if debtor prevails. Conversely, no assets will be available to satisfy the debt owed to IRS should it prevail. Creditors will receive no distribution from the estate under either scenario. See In re Queen, 148 B.R. 256, 259 (S.D.W.Va.1992), aff'd, 16 F.3d 411 (4th Cir.1994). Debtor will be the only beneficiary if she prevails in this adversary action. One of the primary purposes of § 505(a) is to avoid delays in the administration of the bankruptcy estate by providing a forum where certain tax liability disputes may be decided expeditiously. See In re Diez, 45 B.R. 137, 139 (Bankr.S.D.Fla.1989). Congress did not intend for a bankruptcy court to provide a forum for such litigation when the outcome of the case will have no impact" }, { "docid": "10844658", "title": "", "text": "EUA Power Corp., 184 B.R. at 634. The court acknowledges that there are reported decisions holding that the lapse of time or the failure to comply with the mechanisms put in .place by state law for seeking a refund of real property taxes does not prevent the court from making such a determination under § 505(a). See In re AWB Associates, G.P., 144 B.R. 270 (Bankr.E.D.Pa. 1992); Ledgemere Land Corp. v. Town of Ashland (In re Ledgemere Land Corp.), 135 B.R. 193 (Bankr.D.Mass.1991); El Tropicano, Inc. v. Garza (In re El Tropicano), 128 B.R. 153 (Bankr.W.D.Tex.1991). However, both AWB Associates and El Tropicano failed to specifically address § 505(a)(2)(B) and its proper request requirement. Furthermore, as observed by the court in EUA Power Corp., all of the cases cited by AWB Associates as authority for its holding dealt with unpaid taxes, not tax refunds. In re EUA Power Corp., 184 B.R. at 635. Although Ledgemere did discuss the issue of whether a “proper request” for a refund of real property taxes could be made after the time for doing so under state law had lapsed, Judge Queenan reversed his position in Led-gemere in his Cumberland Farms decision in 1994, rendering the holding of Ledgemere in this regard unpersuasive. See In re Cumberland Farms, Inc., 175 B.R. at 142. Because payment under protest is a condition precedent under Tennessee law to the recovery of paid county and municipality taxes, the Trustee has not made and can not make a proper refund request with respect to the taxes paid prepetition by the debtor without protest. Accordingly, this court has no authority to determine the right of the estate to a refund of these taxes. See Matter of Qual Krom South, Inc., 119 B.R. at 329 (with respect to taxes paid prepetition, “§ 505 does not serve to revive a period of limitation if it has otherwise expired prior to the filing of the petition”). IV. The court will next consider whether the Trustee has made a “proper request” for a refund of the real property taxes which he paid postpetition under protest." }, { "docid": "2683959", "title": "", "text": "Inc. v. Garza (In re El Tropicano, Inc.), 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). Courts agree that the policy underlying § 505 is the protection of the estate from a tax liability that a negligent or indifferent debtor failed to challenge. “[T]he primary purpose behind Section 505 is protection of the estate from the potential loss incurred because of a debtor’s failure, due either to financial inability or mere indifference, to contest potentially incorrect tax assessments.” In the Matter of East Coast Brokers & Packers, Inc., 142 B.R. 499, 501 (Bankr.M.D.Fla.1992) (citation omitted). See also City Vending of Muskogee, Inc., 898 F.2d at 125; Northwest Beverage, Inc. v. Johnson (In re Northwest Beverage, Inc.), 46 B.R. 631, 635 (Bankr.N.D.Ill.1985); Ledgemere Land Corp. v. Town of Ashland (In re Ledgemere Land Corp.), 135 B.R. 193, 196-97 (Bankr.D.Mass.1991); In re Galvano, 116 B.R. at 372; In re AWB Assocs., 144 B.R. at 277. Congress’s concern that a debtor’s inaction might prejudice the rights of creditors is not implicated in this adversary proceeding. Any benefit obtained by a redetermi-nation of the Debtor’s tax liability to the MESC would inure directly and solely to the Debtor, not the creditors of the estate. On March 4, 1993, this court signed an order confirming the Debtor’s First Amended Plan of Reorganization (the “Plan”). The Plan recognizes the Debtor’s challenge to the MESC’s claim. See Debt- or’s First Amended Plan of Reorganization at 3.03, 4.03. The Plan, however, does not provide for additional payments to any creditor in the event that the Debtor is successful in its challenge to the MESC’s tax liability claim. In fact, if the unsecured portion of the MESC’s claim were disallowed, the money escrowed by the Debtor during the pendency of this adversary proceeding would “be forfeited and utilized by Debtor as working capital, a sinking fund for equipment needs, and salary for Don Pastorick.” Debtor’s First Amended Plan of Reorganization at 4.11. In addition, if the Debtor were successful before this court in challenging the MESC tax liability, the creditors of the Debtor would not be able to amend the Plan in" }, { "docid": "18103753", "title": "", "text": "1995 WL 606099, *4 (Bankr.S.D.Ga.1995); Teeslink v. United States (In re Teeslink), 165 B.R. 708, 718 (Bankr.S.D.Ga.1994); In re Frary, 117 B.R. 541, 549 (Bankr.D.Alaska 1990). Accordingly, the interest on the penalties associated with the Millers’ underlying tax liabilities is dischargeable. III. Determination of amount of tax liabilities The IRS asks the court to abstain from determining the amount of the Millers’ tax liabilities pursuant to 11 U.S.C. § 505(a)(1). Section 505(a)(1) provides in pertinent part: [T]he court may determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction. 11 U.S.C. § 505(a)(1) (emphasis added). “This jurisdiction has been held to be discretionary, not mandatory.” 15 Collier on Bankruptcy, KTX5.10, n.2 (15th ed. rev. 2002) (citing Queen v. United States, 148 B.R. 256 (S.D.W.Va.1992)). However, the court’s authority to determine the legality of a tax, fine or penalty, or addition to a tax is not unfettered. In re Continental Airlines, Inc., 149 B.R. 76, 84 (D.Del.1993), aff'd in part, rev’d in part, 8 F.3d 811 (3d Cir.1993) (Table), cert. denied, 510 U.S. 1192, 114 S.Ct. 1297, 127 L.Ed.2d 650 (1994). Section 505(a)(2)(A) expressly precludes a bankruptcy court “from reviewing any determination of a debtor’s tax liability where that liability has already been contested or adjudicated.” 11 U.S.C. § 505(a)(2)(A); In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990) (a policy of § 505 is to “ensure the finality of determinations of tax liability reached prior to Bankruptcy”). Section 505 was enacted to alleviate two concerns. First, is the necessity of “afford[ing] a forum for the ready determination of the legality or amount of tax claims, which determination, if left to other proceedings, might delay conclusion of the administration of the bankruptcy estate.” In re Diez, 45 B.R. 187, 139 (Bankr.S.D.Fla.1984). Second, “Congress was concerned with protecting creditors from the dissipation of an estate’s assets which could result if creditors were bound by a tax" }, { "docid": "1187675", "title": "", "text": "whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction. (2) The court may not so determine— (A) the amount or legality of a tax, fine, penalty or addition to tax if such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before commencement of the case under this title; ... See, e.g., In re East Coast Brokers & Packers, Inc., 142 B.R. 499, 500-01, 23 B.C.D. 262, 263 (Bankr.M.D.Fla.1992); In re Fairchild Aircraft Corp., 124 B.R. 488, 491 (Bankr.W.D.Tex.1991); and In re Lipetzky, 64 B.R. 431, 434 (Bankr.D.Mont.1986). The provisions of § 505 are, to a certain degree, discretionary (“the court may determine the amount or legality of any tax”), and a bankruptcy court may elect to abstain from determining the tax dispute. In deciding whether to exercise this discretionary § 505 power, bankruptcy courts have considered several factors. In In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990), relied upon by Camden in its claim of the propriety of abstention, the court enumerated several factors which it deemed appropriate to consider in deciding whether to determine a tax dispute. These included (1) the complexity of the tax issue to be decided; (2) the need to administer the bankruptcy case in an orderly and efficient manner; (3) the burden on the bankruptcy court’s docket; (4) the length of time required for trial and decision; (5) the asset and liability structure of debtors; and (6) any prejudice or potential prejudice to both the debtor and taxing authority. Id. This matter is not very complex. It was already heard by this court in a trial lasting only a couple of hours and we are ready to decide it. The issue of AWB’s liability to Camden could be significant to the success of AWB’s plan, which will be before us for confirmation very shortly. Given the limited number of creditors of the Debtor and its apparent resolution of its differences with Rohrer and the RTC, this dispute is the only critical contested matter in issue in determining the assets" }, { "docid": "15120655", "title": "", "text": "If the tax rate were the subject of this motion, perhaps abstention might be appropriate. Because the trustee only challenges the excessiveness of the appraisal district’s valuation of the estate’s property, the taxes to be paid by other taxpayers will not be affected, nor will uniformity of assessment be placed in issue (i.e., the overall valuation methodology used by the appraisal district is not being generally attacked). In re Fairchild Aircraft Corp., 124 B.R. 488, 491 (Bankr.W.D.Tex.1991) (citations omitted). The bankruptcy court in In re AWB Assoc., 144 B.R. 270, 277-78 (Bankr.E.D.Pa.1992), later quoted approvingly from the same opinion, finding “that the correct analysis of the abstention issue is thusly enunciated in Fairchild Aircraft.” Id. at 276. Debtor relies, therefore, on the explicit language of these cases that “abstention from deciding a tax adjudication question under Section 505 is only appropriate upon a showing that uniformity of assessment is of significant importance.” Fairchild Aircraft, 124 B.R. at 491 (emphasis added); AWB, 144 B.R. at 276 (quoting Fairchild Aircraft, 124 B.R. at 491). To the extent that Fairchild Aircraft and AWB hold that a bankruptcy court’s jurisdiction under Section 505 is mandatory in the absence of “uniformity of assessment” concerns, we firmly reject this interpretation of the statute. To understand- why, we look first to the plain language of the statute that provides that “the court may determine the amount or legality of any tax....” 11 U.S.C. § 505(a)(1) (emphasis added). This Court has observed that “[t]he verb ‘may’ generally denotes a grant of authority that is merely permissive.” International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1005 (2d Cir.1993). We are persuaded that the ordinary meaning of the word “may” applies here because nothing in § 505 suggests otherwise and because Congress elsewhere in the Bankruptcy Code has chosen the word “shall” to denote mandatory requirements. Compare 11 U.S.C. § 505(a)(1) (1994) (“the court may determine ...”) (emphasis added), with 11 U.S.C. § 503(b) (1994) (“After notice and a hearing, there shall be allowed administrative expenses _”) (emphasis added). As the Supreme Court has explained, “[i]t is generally presumed that" }, { "docid": "10844657", "title": "", "text": "or estate. That is exactly what § 505(a) provides for, a determination of the amount or legality of any tax, whether previously contested or not. This case, however, involves a determination of a request for a tax refund, which is subject to the additional requirement of section 505(a)(2)(B) that the Trustee properly request a refund. A “proper request” under § 505(a)(2)(B) connotes correctness and dictates conformity with the pertinent taxing authority’s mechanism for seeking a refund. In re St. John’s Nursing Home, Inc., 154 B.R. at 125. As stated by the court in EUA Power Corp., “the 1978 Bankruptcy Code was the first time the bankruptcy court was granted any power whatsoever to determine the legality of a paid tax claim. Until that point, the court had power to determine only unpaid tax liabilities. If Congress intended to significantly extend the bankruptcy court’s jurisdiction to include the redetermination of paid taxes by preempting the state law time limitations, as the plaintiff suggests, it would have more clearly expressed its intent to do so.” In re EUA Power Corp., 184 B.R. at 634. The court acknowledges that there are reported decisions holding that the lapse of time or the failure to comply with the mechanisms put in .place by state law for seeking a refund of real property taxes does not prevent the court from making such a determination under § 505(a). See In re AWB Associates, G.P., 144 B.R. 270 (Bankr.E.D.Pa. 1992); Ledgemere Land Corp. v. Town of Ashland (In re Ledgemere Land Corp.), 135 B.R. 193 (Bankr.D.Mass.1991); El Tropicano, Inc. v. Garza (In re El Tropicano), 128 B.R. 153 (Bankr.W.D.Tex.1991). However, both AWB Associates and El Tropicano failed to specifically address § 505(a)(2)(B) and its proper request requirement. Furthermore, as observed by the court in EUA Power Corp., all of the cases cited by AWB Associates as authority for its holding dealt with unpaid taxes, not tax refunds. In re EUA Power Corp., 184 B.R. at 635. Although Ledgemere did discuss the issue of whether a “proper request” for a refund of real property taxes could be made after" }, { "docid": "15120658", "title": "", "text": "an overwhelming number of courts have observed that § 505(a)(1) vests the bankruptcy court with general discretionary authority to redetermine a debtor’s tax liability. See, e.g., In re Onondaga Plaza Maintenance Co., 206 B.R. 653, 656 (Bankr.N.D.N.Y.1997) (stating that a court’s authority under Section 505 is “discretionary”); In re Marcellus Wood & Trucking, Inc. v. Michigan Employment Sec. Comm’n (In re Marcellus Wood & Trucking, Inc.), 158 B.R. 650, 654 (Bankr.W.D.Mich.1993) (same); In re Swan, 152 B.R. 28, 30 (Bankr.W.D.N.Y.1992) (same); AWB, 144 B.R. at 275-76 (same); Queen v. United States (In re Queen), 148 B.R. 256, 259 (S.D.W.Va.1992) (same); El Tropicano, Inc. v. Garza (In re El Tropicano, Inc.), 128 B.R. 153, 161 (Bankr.W.D.Tex.1991) (same); Galvano, 116 B.R. at 372 (same). Therefore, based on the plain language of the statute, its legislative history, and relevant case law, we interpret the verb “may” in 11 U.S.C. § 505(a)(1) as vesting the bankruptcy court with discretionary authority to redetermine a debtor’s taxes. This authority is not limited solely to instances where- uniformity of tax assessments is of significant importance. See Northbrook Partners, LLP v. Hennepin (In re Northbrook Partners, LLP), 245 B.R. 104, 118 n. 26 (Bankr.D.Minn.2000) (“The Fairchild Aircraft Co. court was correct in recognizing that abstention under § 505(a) is appropriate where ‘uniformity of assessment is of significant importance.’ It was not correct in holding that abstention is appropriate only then.”) (emphasis added). The exercise of such discretion is, of course, subject to the explicit limitations in Section 505 itself, and must be informed by the purpose underlying the statute. Specifically, in determining whether to abstain from redetermining tax liability in a given case, a court must assure itself that the legislative purpose for drafting this provision, namely to protect the interests of both debtors and creditors, is met. Creditors are entitled to protection from the “dissipation of an estate’s assets” in the event that the debtor failed to contest the legality and amount of taxes assessed against it. Having the bankruptcy court adjudicate the matter may also afford an alternative forum for proceedings that might otherwise delay the" }, { "docid": "16062432", "title": "", "text": "under appropriate circumstances. IRS argues that we should abstain because the outcome of this case will have no effect whatsoever upon administration of the bankruptcy estate as this is a no-asset case. Abstention, it asserts, will not deprive debtor of all opportunity to litigate this dispute. Other administrative and judicial forums wherein debtor may contest her tax liability are available. Debtor concedes that this is a no-asset case and that the outcome of this case will not result in any distribution either to IRS or to any other creditor. She nonetheless insists that we should not abstain because the issues in this case are neither difficult nor complex; because a lengthy period of time would not be needed to try the case; and because she would suffer “extreme prejudice” if we abstained. Her only opportunity to contest the tax liability other than in this court, debtor insists, would be in federal district court, where she could seek a refund. Before she can do this, however, debtor avers that she will have to pay the entire amount of the tax that purportedly is due and owing. Requiring her to proceed in the district court, she concludes, effectively would deprive her of the opportunity to contest the tax liability because she lacks the wherewithal to pay such a tax. The circumstances present in this ease persuade us that abstention is warranted. General unsecured creditors, not the debtor, are the intended beneficiaries of § 505(a). See In re El Tropicano Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). Bankruptcy courts uniformly have refused to exercise jurisdiction in § 505(a) actions when it is obvious that the intended beneficiaries unquestionably will derive no benefit from the outcome of the case. See, e.g., In re Swan, supra; In re Millsaps, 133 B.R. 547, 554 (Bankr.M.D.Fla.), aff'd, 138 B.R. 87 (M.D.Fla.1991); In re Cain, 142 B.R. 785, 789 (Bankr.W.D.Tex.1992). As was noted previously, debtor has only one general unsecured creditor to which she owes $232.28. This creditor will not benefit from the outcome of this case because debtor has reaffirmed her obligation to it and has agreed to" }, { "docid": "1187674", "title": "", "text": "estate” and “allowance or disallowance of claims against the estate.” 28 U.S.C. §§ 157(b)(2)(A), (b)(2)(B). Camden contends that this matter is a non-core proceeding because it involves an issue of a state municipality’s taxes and application of New Jersey law, and therefore is not within this court’s jurisdiction or competence to decide. Camden’s position is incorrect for several reasons. Firstly, a matter is not rendered non-core simply because its resolution requires application of state law. 28 U.S.C. § 157(b)(3). Secondly, by filing a proof of claim in this case, as it admittedly did, Camden subjected the determination of its rights against AWB to this court’s equitable powers. See Langenkamp v. Culp, 498 U.S. 42, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990). Finally, 11 U.S.C. §§ 505(a)(1) and (2)(A) expressly provide, as follows, that a bankruptcy court may determine a debtor’s tax liability: (a)(1) Except as provided in paragraph (2) of this subsection, the court may determine the amount or legality of any tax, ... whether or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction. (2) The court may not so determine— (A) the amount or legality of a tax, fine, penalty or addition to tax if such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before commencement of the case under this title; ... See, e.g., In re East Coast Brokers & Packers, Inc., 142 B.R. 499, 500-01, 23 B.C.D. 262, 263 (Bankr.M.D.Fla.1992); In re Fairchild Aircraft Corp., 124 B.R. 488, 491 (Bankr.W.D.Tex.1991); and In re Lipetzky, 64 B.R. 431, 434 (Bankr.D.Mont.1986). The provisions of § 505 are, to a certain degree, discretionary (“the court may determine the amount or legality of any tax”), and a bankruptcy court may elect to abstain from determining the tax dispute. In deciding whether to exercise this discretionary § 505 power, bankruptcy courts have considered several factors. In In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990), relied upon by Camden in its claim of the propriety of abstention," }, { "docid": "15120657", "title": "", "text": "Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.” BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). Second, contrary to Debtor’s contention, nothing in the legislative history of Section 505 favors the interpretation articulated by the Fairchild Aircraft court. Subsections (a) and (b) of § 505 were derived, with only stylistic changes, from section 2a(2A) of the Bankruptcy Act [section ll(a)(2A) of former Title 11].... As under Bankruptcy Act [former] section 2a(2A), Arkansas Corp. Comm’n v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244 (1941), remains good law to permit abstention where uniformity of assessment is of significant importance. 11 U.S.C.A. § 505, Historical and Statutory Notes at 723 (1993) (emphasis added). In our view, this language simply clarifies that under the current version of Section 505, a bankruptcy court has the discretion to abstain from redetermining a debtor’s tax liability where uniformity of assessment is of significant importance. Finally, we note that an overwhelming number of courts have observed that § 505(a)(1) vests the bankruptcy court with general discretionary authority to redetermine a debtor’s tax liability. See, e.g., In re Onondaga Plaza Maintenance Co., 206 B.R. 653, 656 (Bankr.N.D.N.Y.1997) (stating that a court’s authority under Section 505 is “discretionary”); In re Marcellus Wood & Trucking, Inc. v. Michigan Employment Sec. Comm’n (In re Marcellus Wood & Trucking, Inc.), 158 B.R. 650, 654 (Bankr.W.D.Mich.1993) (same); In re Swan, 152 B.R. 28, 30 (Bankr.W.D.N.Y.1992) (same); AWB, 144 B.R. at 275-76 (same); Queen v. United States (In re Queen), 148 B.R. 256, 259 (S.D.W.Va.1992) (same); El Tropicano, Inc. v. Garza (In re El Tropicano, Inc.), 128 B.R. 153, 161 (Bankr.W.D.Tex.1991) (same); Galvano, 116 B.R. at 372 (same). Therefore, based on the plain language of the statute, its legislative history, and relevant case law, we interpret the verb “may” in 11 U.S.C. § 505(a)(1) as vesting the bankruptcy court with discretionary authority to redetermine a debtor’s taxes. This authority is not limited solely to instances where- uniformity of tax assessments is" }, { "docid": "2683958", "title": "", "text": "in January, 1991, the Debtor took its final action before the MESC. In early February, 1991, the Board of Review determined that it would not reopen and review the Debtor’s case. The Debtor took no further action before the MESC or Michigan state courts, thus rendering the Board’s decision final. See Mich.Comp.Laws Ann. § 421.34. B. Section 505(a)(1) Assuming arguendo that the Debtor’s tax liability was not contested and adjudicated by an administrative tribunal of competent jurisdiction prior to the commencement of bankruptcy proceedings, this court would still decline to redetermine the Debtor’s tax liability to the MESC. The Bankruptcy Code does not confer on debtors an absolute right to review by a bankruptcy court of state tax assessments. Section 505(a)(1) provides that “the court may determine the amount or legality of any tax_” 11 U.S.C. § 505(a)(1) (emphasis added). Thus, the court’s power to review the Debtor’s tax liability to the MESC is discretionary. See In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990); In re AWB Assocs., 144 B.R. 270, 275-76 (Bankr.E.D.Pa.1992); El Tropicano, Inc. v. Garza (In re El Tropicano, Inc.), 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). Courts agree that the policy underlying § 505 is the protection of the estate from a tax liability that a negligent or indifferent debtor failed to challenge. “[T]he primary purpose behind Section 505 is protection of the estate from the potential loss incurred because of a debtor’s failure, due either to financial inability or mere indifference, to contest potentially incorrect tax assessments.” In the Matter of East Coast Brokers & Packers, Inc., 142 B.R. 499, 501 (Bankr.M.D.Fla.1992) (citation omitted). See also City Vending of Muskogee, Inc., 898 F.2d at 125; Northwest Beverage, Inc. v. Johnson (In re Northwest Beverage, Inc.), 46 B.R. 631, 635 (Bankr.N.D.Ill.1985); Ledgemere Land Corp. v. Town of Ashland (In re Ledgemere Land Corp.), 135 B.R. 193, 196-97 (Bankr.D.Mass.1991); In re Galvano, 116 B.R. at 372; In re AWB Assocs., 144 B.R. at 277. Congress’s concern that a debtor’s inaction might prejudice the rights of creditors is not implicated in this adversary proceeding. Any benefit obtained by a redetermi-nation" }, { "docid": "20964006", "title": "", "text": "omitted). There is nothing terribly complex about determining the valuation of the Property for assessment purposes. Indeed, this Court made similar determinations in both 4.9 9 W. Warren Street and Tippp Hill Associates. Furthermore, any burden on the Court’s docket and the length of time necessary to conduct the hearing would be minimal. It is the asset and liability structure of the Debtor which concerns the Court. Not only is the Debtor a single asset real estate case, it also has only a single creditor, the City of Syracuse. There are no unsecured creditors awaiting distribution by the Debtor. Under similar circumstances, the courts generally have abstained from reviewing tax disputes. See In re Shapiro, 188 B.R. 140, 144 (Bankr.E.D.Pa.1995) (citations omitted). For example, in In re Swan, 152 B.R. 28 (Bankr.W.D.N.Y.1992), the debtor’s only creditors were the mortgage holders on her residence and the taxing authorities, including the Internal Revenue Service. The bankruptcy court, citing to El Tropicano, declined to exercise its discretion under Code § 505. See id. at 30. The court pointed out that the debtor had exercised her rights in challenging the tax claims but had failed to file the documents necessary to appeal the decision of the Tax Bureau in a timely fashion. Id. The court noted that “[w]hat the Debtor is requesting in this case is nothing more than an attempt to gain a second bite of the apple, which would only benefit her and not her creditors; a result never intended under Section 505.” Id., citing El Tropicano, 128 B.R. at 161. In the matter now before this Court, it is apparent that the Debtor’s only reason for filing its Petition was to stay the tax foreclosure of the Property by the City. Like the situation in Swan, there has been active involvement in the assessment review process concerning the Property. In fact, the parties have indicated that they anticipate a decision by the state court with respect to the years 1991, 1992, 1994, 1995/96 and 1996/97 in approximately eight weeks. Whether or not the Debtor will be able to reorganize will have" }, { "docid": "2683957", "title": "", "text": "They had the opportunity to present evidence on good cause, including additional information, and to call and examine witnesses. See Mich.Admin.Code rr. 421.1202(2), 421.1207 (1988). After that hearing, the Debtor was entitled to appeal the referee’s determination, and it did so. Therefore, the Debtor actually challenged the MESC’s determination. The Debtor was unsuccessful, in part, due to the untimely filing of its request for redetermination. In this court’s view, under the procedural history before the MESC tribunal, the requirement of a contest and adjudication pursuant to § 505(a)(2)(A) has been satisfied. All other requirements of § 505(a)(2)(A) also are met. First, the referee’s decision was that of an administrative tribunal of competent jurisdiction. MESC referee hearings are quasi-judicial proceedings. See State Bar v. Galloway, 422 Mich. 188, 190, 369 N.W.2d 839, 840 (1985). Evidence is offered, witnesses may be called and examined, and testimony is taken under oath. See Mich.Admin.Code r. 421.1207 (1988). Second, the adjudication of the Debtor’s tax liability was final prior to its filing for bankruptcy in November, 1991. Ten months earlier, in January, 1991, the Debtor took its final action before the MESC. In early February, 1991, the Board of Review determined that it would not reopen and review the Debtor’s case. The Debtor took no further action before the MESC or Michigan state courts, thus rendering the Board’s decision final. See Mich.Comp.Laws Ann. § 421.34. B. Section 505(a)(1) Assuming arguendo that the Debtor’s tax liability was not contested and adjudicated by an administrative tribunal of competent jurisdiction prior to the commencement of bankruptcy proceedings, this court would still decline to redetermine the Debtor’s tax liability to the MESC. The Bankruptcy Code does not confer on debtors an absolute right to review by a bankruptcy court of state tax assessments. Section 505(a)(1) provides that “the court may determine the amount or legality of any tax_” 11 U.S.C. § 505(a)(1) (emphasis added). Thus, the court’s power to review the Debtor’s tax liability to the MESC is discretionary. See In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990); In re AWB Assocs., 144 B.R. 270, 275-76 (Bankr.E.D.Pa.1992); El Tropicano," }, { "docid": "5883641", "title": "", "text": "not). I conclude that where an estate representative seeks to dispute taxes that were levied following the fundamental juridical changes wrought by a Chapter 11 filing, the representative is fully bound by the procedural requirements that otherwise govern such a challenge. Where, as here, a plan for payment of all claims has been confirmed, there can be no creditor protection rationale to override the concern for adequate administrative notice discussed above. Accordingly, the appellant’s motion seeking a refund of taxes was properly denied by the Bankruptcy Court. V. Having generally affirmed the Bankruptcy Court’s decision on the merits, I will discuss briefly my determination to affirm also on the alternative abstention grounds. As is evident from the terms of the statute, § 505(a)(1) gives a bankruptcy court discretionary authority to determine the tax liability of a debtor, subject to the limitations set forth in paragraph (2). I find no abuse of that discretion in Judge Feeney’s alternative ruling to abstain from adjudicating this mat ter on the grounds that a plan providing for payment in full of all claims had been confirmed and therefore only the Debtor stood to benefit from a ruling on the merits. See, e.g., In re Swan, 152 B.R. 28, 30 (Bankr.W.D.N.Y.1992) (“discretion should not be exercised where the unsecured creditors derive no benefit from the remedy under Section 505”); In re El Tropicano, Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991) (Congress in § 505 “was primarily concerned with protecting creditors from the disposition of the estate’s assets which could result if the creditors were bound by a tax judgment which the debtor ... did not contest”). Judge Feeney properly looked to the following as factors to consider: 1. the complexity of the tax issue to be decided; 2. the need to administer the bankruptcy case in an orderly and efficient manner; 3. the burden on the Bankruptcy Court’s docket; 4. the length of time required for trial and decision; 5. the asset and liability structure of debtors; and 6. any prejudice or potential prejudice to both the debtor and taxing authority. In re St John’s, 154" }, { "docid": "15120664", "title": "", "text": "clear that an insider creditor-the Maidman Trust-is the only party that would likely benefit from Section 505 review. At the same time, a reassessment of the Properties would threaten to prejudice the Tax Lien Purchasers and the City of New Haven as outside creditors. Section 505 was enacted to protect creditors from the prejudice caused by an ailing debtor’s failure to contest tax assessments. See, e.g., City Vending of Muskogee, 898 F.2d at 125; Piper Aircraft, 171 B.R. at 418; AWB, 144 B.R. at 277. It was not enacted to afford debtors a second bite at the apple at the expense of outside creditors. Because the exercise of Section 505 review in this case would frustrate the purpose of the statute, we affirm the bankruptcy court’s decision to abstain from redetermining Debtor’s tax liability. CONCLUSION We have considered Debtor’s arguments and find them to be without merit. Accordingly, the district court order affirming the bankruptcy court’s decision is affirmed. . The phrase “any tax” encompasses both federal and state tax liabilities, including state real property taxes, state sales taxes, city ad valorem taxes, federal income taxes, and federal employment taxes. See In re Galvano, 116 B.R. 367, 372 n. 6 (Bankr.E.D.N.Y.1990) (citing cases). . Congress has also built into Section 505 \"certain safeguards to protect states from unwarranted federal intrusion.” In re Super Van, Inc., 161 B.R. 184, 192 (Bankr.W.D.Tex.1993). For example, if the amount or legality of a tax was contested before and adjudicated by any judicial or administrative tribunal of competent jurisdiction before the commencement of the bankruptcy case, then relief under Section 505 is not available. See 11 U.S.C. § 505(a)(2)(A). See also See Northbrook Partners, 245 B.R. at 118 (recognizing the need to weigh the goals of promoting bankruptcy relief against the state’s interest in applying and enforcing its own law). . Debtor also contends that the Maidman Trust must, as a matter of law, be deemed an outsider creditor of Debtor because, as a successor to the FDIC, it is \"cloaked with all of the FDIC’s rights and privileges,” including the right to outsider status." }, { "docid": "10178819", "title": "", "text": "the IRS. As the language of Section 505 indicates, the Court’s authority to determine a debtor’s tax liability is discretionary. In re El Tropicano, Inc., 128 B.R. 153, 161 (Bankr.W.D.Tex.1991). The primary intended beneficiaries of Section 505 are an estate’s unsecured creditors and not the debtor or its principals. Id. “In enacting § 505, Congress was primarily concerned with protecting creditors from the disposition of the estate’s assets which could result if the creditors were bound by a tax judgment which the debtor due to his ailing financial condition did not contest.” In re Northwest Beverage, Inc., 46 B.R. 631, 635 (Bankr.N.D.Ill.1985). In addition, the history of this provision makes it clear that its purpose was to afford a forum for the ready determination of the legality or amount of tax claims which might delay conclusion of the administration of the bankruptcy estate if left to other proceedings. In re Diez, 45 B.R. 137, 139 (Bankr.S.D.Fla.1984). This case only involves the Debtor, fully secured mortgage holders and the taxing authorities. Therefore, unsecured creditors will not benefit from a determination in the Debtor’s favor. “When the intended beneficiaries of the remedy in question will realize no particular benefit from its use, much of the rationale for its employment disappears, and with it this Court’s willingness to exercise discretion afforded by the statute.” Tropicano, 128 B.R. at 161. This Court agrees with Bankruptcy Judge Leif M. Clark’s reasoning in Tropicano that discretion should not be exercised where the unsecured creditors derive no benefit from the remedy under Section 505. The Debtor in this case was not one who was not always vigilant in the exercise of her rights to 'challenge tax claims or inept, incompetent, uninterested, or dishonest where § 505 may be exercised but had professional accountants working with her to amend previously filed and incorrectly prepared returns. See City of Amarillo v. Eakens, 399 F.2d 541, 441 (5th Cir.1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969). The problem was that the required documentation was not properly filed within the applicable statute of limitations period in" } ]

[ { "docid": "2419065", "title": "", "text": "spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth Amendment. II The Equal Pay Act of 1963, 29 U.S.C. § 206(d), was enacted by Congress as an amendment to the FLSA. It was based on a Congressional finding that sex-based wage differentials have a substantial adverse impact on interstate commerce, and accordingly mandated that all persons performing equal work must receive equal pay, unless the differential is justified by a consideration other than sex. In holding the EPA unconstitutional as applied to a state hospital, the District Court stated, 423 F.Supp. at 845: Although the League ruling did leave unanswered questions as to which state activities were essential to state sovereignty and therefore protected by the Tenth Amendment from federal regulation under the Commerce Clause, that decision explicitly stated that hospitals were encompassed within its ruling. Thus, the term “employers”, as defined for the entire Act, no longer includes state-operated hospitals or their employees. At the outset it should be noted that to date three Circuits have considered the claims asserted by defendants in the District Court, and have uniformly rejected them. Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978); Usery v. Charleston County School Dist., 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). We agree with the decisions in Charleston and Allegheny which held that, although Congress did not expressly state the constitutional basis of its extension of the FLSA to the States in 1974, this action with respect to the equal pay provisions was authorized by § 5 of the Fourteenth Amendment. 558 F.2d at 1170; 544 F.2d at 155. In contrast to the commerce power, Congress’ enforcement power under the Fourteenth Amendment is not limited by the Tenth Amendment. Ex parte Virginia, 100 U.S. 339, 346-48, 25 L.Ed. 676 (1879). As stated above, the Supreme Court in National League of Cities expressly did not pass judgment upon Congress’ Fourteenth Amendment power. 426 U.S. at 852 n. 17," } ]

[ { "docid": "23373071", "title": "", "text": "power to abrogate Eleventh Amendment immunity. See id. at — - —, 116 S.Ct. at 1125; see also id. at — n. 15, 116 S.Ct. at 1131 n. 15 (criticizing Justice Stevens’ dissent for ignoring the fact that many of the eases he used to support his argument “arose in the context of a statute passed under the Fourteenth Amendment, where Congress’ authority to abrogate is undisputed”). As the Fitzpatrick Court explained, the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment, expanded federal power at the expense of state autonomy, and thereby fundamentally altered the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. 427 U.S. at 453-56, 96 S.Ct. at 2670-71. In Seminole Tribe, the Court reaffirmed this view of § 5. — U.S. at —, 116 S.Ct. at 1128. In Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116, 119 (6th Cir.1978), this Circuit held, in response to a Tenth Amendment challenge, that the extension of the Equal Pay Act to state employees was a valid exercise of Congress’ power under § 5 of the Fourteenth Amendment. Accord Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1170-71 (4th Cir.1977); Usery v. Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). We acknowledged that Congress did not expressly state the constitutional basis of its extension of the FLSA to the States in 1974, but we found such action with respect to the Equal Pay Act authorized by § 5 of the Fourteenth Amendment. See 581 F.2d at 119. Moreover, we explained that “[i]t was not necessary for Congress to expressly rely on § 5 in exercising its power because such power clearly existed.” Id. at 120. “ ‘In exercising the power of judicial review, as distinguished from the duty of statutory interpretation, we are concerned with the actual powers of the national government.’ ” Id. (quoting Allegheny County Inst. Dist., 544 F.2d at 155); see also Charleston County Sch. Dist., 558 F.2d at 1171 (“Our duty in" }, { "docid": "5551806", "title": "", "text": "of Congress's power. See Elrod, 674 F.2d at 604-08 (considering the 1974 amendments to the ADEA, as opposed to the original legislation enacted in 1967). Accord, e.g., Mills v. Maine, 118 F.3d 37, 43 (1st Cir.1997) (considering the 1974 amendments to the FLSA as opposed to the original legislation); Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 838 n. 7 (6th Cir.1997) (\"[T]he court properly focused on the 1974 amendments as opposed to the 1963 version of the Equal Pay Act. Although the 1974 legislation was an amendment to an already existing act, it was nevertheless a separate act of Congress.”). . The report states, in part: The Committee believes that there is no doubt that the activities of public sector employers affect interstate commerce and therefore that the Congress may regulate them pursuant to its power to regulate interstate commerce. Without question, the activities of government at all levels affect commerce. S.Rep. No. 93-690, 93d Cong., 2d Sess. 24 (1974). See also H.R.Rep. No. 93-913, 93d Cong., 2d Sess. 2 (1974) (\"It is hereby declared to be the policy of this Act, through the exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct and as rapidly as practicable to eliminate the conditions above referred to....”). . We note that this conclusion is not dispositive of the issue of whether the extension of the Equal Pay Act to the States is constitutionally-valid legislation, which we consider infra at 714-717. . Two other courts of appeals, in addition to the Sixth Circuit in Timmer, have arrived at the same conclusion. See Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir.1977); Usery v. Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). Those courts both rejected Tenth Amendment challenges to the Equal Pay Act under the then-prevailing rule of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), by holding that the Equal Pay Act was enacted pursuant" }, { "docid": "16439560", "title": "", "text": "was made of other provisions, such as the ADEA or Equal Pay Act, which incorporate the 1974 Fair Labor Standards Amendments’ definition of “employer.” Several courts have considered the effect of National League of Cities on provisions other than the minimum wage and maximum hour sections of the Fair Labor Standards Act. The majority of these courts have held that National League of Cities is not necessarily controlling, and an independent inquiry is necessary to determine whether the application of such provisions to states and their political subdivisions can be sustained under the Commerce Clause or another constitutional grant of congressional authority. E. g., Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977) (Equal Pay Act); Usery v. Allegheny County Institution District, 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977), (Equal Pay Act); Aaron v. Davis, 424 F.Supp. 1238 (E.D. Ark. 1976) (ADEA); Usery v. Board of Education of Salt Lake City, 421 F.Supp. 718 (D. Utah 1976) (ADEA). Only three courts have held that National League of Cities controls the application of other provisions to states and their political subdivisions as employers. Adams v. Richland County School District, Civ.No. 75-1330 (D. S.C. April 29, 1977), Usery v. Owensboro-Daviess County Hospital 423 F.Supp. 843 (W.D.Ky. 1976); Howard v. Ward County, 418 F.Supp. 494 (D. N.D. 1976) (Van Sickle, J.) (all three cases involving the Equal Pay Act). This court finds the analysis of the majority of these courts persuasive, and therefore an inquiry into the application of the ADEA to Defendant Barnes County must be undertaken independently from the National League of Cities decision on the FLSA wage and hour provisions. It must be determined whether application of the ADEA to the states and their political subdivisions as employers can be sustained under the Commerce Clause or another grant of authority to Congress. Unlike the Fair Labor Standards Act’s wage and hour provisions, the ADEA can be viewed as an exercise of congressional authority under § 5 of the Fourteenth Amendment to enforce that amendment’s equal protection" }, { "docid": "13637022", "title": "", "text": "prior to the filing of his consent. . The Equal Pay Act was made applicable to state and local governments by the 1974 Amendments to the Fair Labor Standards Act, 29 U.S.C. §§ 203(d) and 216(b). Defendant-appellee NIU contends that the Board of Regents is an arm of the state for Eleventh Amendment purposes. Relying on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), NIU moved to dismiss the claim of plaintiffs-appellants under Rule 12(b) F.R.Civ.P. contending that the extension of the Equal Pay Act to the States is precluded and the district court lacked jurisdiction to consider plaintiffs’ claims. The district court denied the motion, concluding that Congress acted constitutionally in abrogating the States’ Eleventh Amendment immunity by enacting the 1974 Amendments to the Fair Labor Standards Act. All circuit courts which have considered this question, including the Seventh Circuit, have upheld the Equal Pay Act’s application to the States. See Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir.1978) (1974 extension of the Equal Pay Act to the States and their political subdivisions in a sex discrimination case is a valid exercise of Congress’ power under the Commerce Clause); Pearce v. Wichita Cty., City of Wichita Falls, etc., 590 F.2d 128 (5th Cir. 1979). See also Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116 (6th Cir.1978) (Amendments to Fair Labor Standards Act extending Equal Pay Act protection to employees of States and their political subdivisions is a constitutional exercise of Congress’ power under section five of the Fourteenth Amendment); Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir.1977); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3rd Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). In addition, the Supreme Court has recently overruled its decision in National League of Cities v. Usery. Garcia v. San Antonio Metropolitan Transit Authority,U.S. —, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Accordingly, the district court had jurisdiction. . The district court opinion does not examine the applicability of Dawes to the present facts, it" }, { "docid": "23373072", "title": "", "text": "valid exercise of Congress’ power under § 5 of the Fourteenth Amendment. Accord Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1170-71 (4th Cir.1977); Usery v. Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). We acknowledged that Congress did not expressly state the constitutional basis of its extension of the FLSA to the States in 1974, but we found such action with respect to the Equal Pay Act authorized by § 5 of the Fourteenth Amendment. See 581 F.2d at 119. Moreover, we explained that “[i]t was not necessary for Congress to expressly rely on § 5 in exercising its power because such power clearly existed.” Id. at 120. “ ‘In exercising the power of judicial review, as distinguished from the duty of statutory interpretation, we are concerned with the actual powers of the national government.’ ” Id. (quoting Allegheny County Inst. Dist., 544 F.2d at 155); see also Charleston County Sch. Dist., 558 F.2d at 1171 (“Our duty in passing on the constitutionality of legislation is to determine whether Congress had the authority to adopt legislation, not whether it correctly guessed the source of that power.”). Owensboro-Daviess compels us to find that a federal eourt has jurisdiction to consider actions brought by employees against their state employers under the Equal Pay Act. We have long held that “[a] panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Salmi v. Secretary of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985). Defendant asserts that we should overrule Owensboro-Daviess because (1) we only assumed that Congress was relying on the Fourteenth Amendment; (2) we relied on the legislative history of Title VII of the CM Rights Act of 1964, 42 U.S.C. § 2000e, to support the view that Congress exercised its § 5 authority when it enacted the Equal Pay Act; and" }, { "docid": "2777701", "title": "", "text": "§ 5 of the Fourteenth Amendment, and that the Act is an exercise of congressional power under § 5. This does not mean, however, that Congress' action in subjecting state employers to the Equal Pay Act was a valid exercise of its authority under § 5, a subject which is addressed infra. . Although the Equal Pay Act constitutes a separate act of Congress, it was originally enacted in 1963 as an amendment to the FLSA. In 1974, the Equal Pay Act was applied to the States by virtue of an amendment extending the protections of the FLSA to state employees. . In so holding, we join the other Circuits who have considered this issue in the context of the Equal Pay Act. See Kovacevich v. Kent St. Univ., 224 F.3d 806 (6th Cir.2000); Hundertmark v. Florida Dep’t of Transp., 205 F.3d 1272 (11th Cir.2000); O'Sullivan v. Minnesota, 191 F.3d 965 (8th Cir.1999); Ussery v. Louisiana, 150 F.3d 431 (5th Cir.1998), cert. dismissed, 526 U.S. 1013, 119 S.Ct. 1161, 143 L.Ed.2d 225 (1999); Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833 (6th Cir.1997); Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4th Cir.1977); Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977)." }, { "docid": "1505218", "title": "", "text": "DONALD RUSSELL, Circuit Judge: The Charleston County (South Carolina) School District and its superintendent appeal from the denial of their motion to dismiss a suit brought against them by the Secretary of Labor to enforce the provisions of the Equal Pay Act. The sole question presented is whether the Supreme Court’s decision in National League of Cities v. Usery precludes application of those provisions to state and local governments. Concluding that it does not, we affirm the denial of appellants’ motion. The Equal Pay Act prohibits sex-based wage differentials. It was enacted in 1968 as an amendment to the Fair Labor Standards Act (FLSA). At that time the FLSA (and thus the Equal Pay Act) did not apply to state and local government employment. However, the Fair Labor Standards Amendments of 1966 and 1974 substantially eliminated that exemption. In National League of Cities the Supreme Court held that extension of the minimum wage and overtime provisions of the FLSA to state and local government employees was not a permissible exercise of Congress’ power under the Commerce Clause. The Court reasoned that the Tenth Amendment and principles of federalism inherent in the Constitution place an affirmative limitation on use of the commerce power to regulate the conduct of the states as states. Application of the FLSA’s minimum wage and overtime standards to states and their subdivisions transgressed that limitation because it “operate[d] to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Like the provisions at issue in National League of Cities, the Equal Pay Act purports to regulate employment policies. However, unlike those provisions, the Equal Pay Act is an anti-discrimination measure; and, as such, may be viewed as an exercise of Congress’ power to adopt legislation enforcing the Fourteenth Amendment’s guarantee of equal protection of the law. Usery v. Allegheny County Institution Dist., (3d Cir. 1976) 544 F.2d 148, cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793, 1977; Note, Applying the Equal Pay Act to State and Local Governments: The Effect of National League of Cities v. Usery, 125 U.Pa.L.Rev." }, { "docid": "7726950", "title": "", "text": "holding, we join the Court of Appeals for the Seventh Circuit. Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978). Accord, Christensen v. State of Iowa, 417 F.Supp. 423 (N.D.Iowa 1976). A number of courts have upheld the application of the Equal Pay Act to the states on alternative grounds: the commerce clause and § 5 of the Fourteenth Amendment. Since we find the Equal Pay Act constitutional under the commerce clause, we find it unnecessary to consider other constitutional sources of legislative power. However, we note that the Courts of Appeals for the Third and Fourth Circuits have upheld the application to the states of the Equal Pay Act in reliance upon § 5 of the Fourteenth Amendment alone. Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution District, 544 F.2d 148 (3rd Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). Accord, National League of Cities v. Marshall, 429 F.Supp. 703 (D.D.C.1977). Cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). See, generally, Comment, Applying the Equal Pay Act to State and Local Governments: The Effect of National League of Cities v. Usery, 125 U.Pa.L.Rev. 665 (1977). . “[T]he element of working conditions encompasses two subfactors: ‘surroundings’ and ‘hazards.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 202, 94 S.Ct. 2223, 2232, 41 L.Ed.2d 1 (1974). . While the regulations published by the Secretary of Labor interpreting the Equal Pay Act are not binding upon the courts, Brennan v. City Stores, Inc., 479 F.2d 235, 239-40 (5th Cir. 1973), they should be given great weight, Hodgson v. Security National Bank, 460 F.2d 57, 59 (8th Cir. 1972)." }, { "docid": "7726949", "title": "", "text": "In 1966, coverage was extended to employees of state and local hospitals, institutions, schools, and public transit. In 1974, coverage was further extended to virtually all public employees, except public office holders and their staffs. . See Hearings Before the House Subcomm. on Labor on H.R. 3861, and Related Bills, 88th Cong., 1st Sess. (1963); Hearings Before the Senate Subcomm. on Labor on S. 882 and S. 910, 88th Cong., 1st Sess. (1963). . H.R.Rep.No.309, 88th Cong., 1st Sess. (1963), U.S.Code Cong. & Admin.News 1963, pp. 687, 688, states in part: Because of the long history and experience of Government and business and workers with the Fair Labor Standards Act, a simple expansion of that act to include the equal pay concept offers the most efficient and least difficult course of action. * * * First, it eliminates the need for a new bureaucratic structure to enforce equal pay legislation; and second, compliance should be made easier because both industry and labor have a long-established familiarity with existing fair labor standards provisions. . In so holding, we join the Court of Appeals for the Seventh Circuit. Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978). Accord, Christensen v. State of Iowa, 417 F.Supp. 423 (N.D.Iowa 1976). A number of courts have upheld the application of the Equal Pay Act to the states on alternative grounds: the commerce clause and § 5 of the Fourteenth Amendment. Since we find the Equal Pay Act constitutional under the commerce clause, we find it unnecessary to consider other constitutional sources of legislative power. However, we note that the Courts of Appeals for the Third and Fourth Circuits have upheld the application to the states of the Equal Pay Act in reliance upon § 5 of the Fourteenth Amendment alone. Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution District, 544 F.2d 148 (3rd Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). Accord, National League of Cities v. Marshall, 429 F.Supp. 703 (D.D.C.1977). Cf. Fitzpatrick v. Bitzer, 427 U.S." }, { "docid": "23388078", "title": "", "text": "person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.’” Walsh, 618 F.2d at 158 (emphasis added) (quoting Lewis, 101 U.S. at 31); see, e.g., Employees, 411 U.S. at 286, 93 S.Ct. at 1618 (noting the significant difference between private employers and states as employers owing to federalism concerns). Accordingly, we conclude that we will not “attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment,” Pennhurst, 451 U.S. at 16, 101 S.Ct. at 1539, because on the record before us there is no evidence that the 1974 FLSA amendments are rationally related to the elimination of any unreasonable and arbitrary state action, or the effects of such action, which Congress is empowered to remedy pursuant to section five of the Fourteenth Amendment. Thus, we do not believe that Congress can, consistent with Seminole Tribe and Fitzpatrick v. Bitzer, abrogate the states’ sovereign immunity to suit in federal court in this context. In arriving at this conclusion, our analysis does not suggest any reason or need for us to revisit our earlier pronouncements regarding the FLSA wage and hour provisions at issue here. Specifically, we have previously determined that Congress’ “authority” to impose on the states the FLSA’s wage and hour requirements was “squarely bottomed on the commerce clause.” New Hampshire Dep’t of Employment Sec. v. Marshall, 616 F.2d 240, 247 (1st Cir.1980). In so doing, we indicated that the FLSA provisions at issue here differed from other congressional legislation, like the Equal Pay Act, which, we explained, was applied “to the states as a legitimate exercise of congressional authority to adopt legislation enforcing the fourteenth amendment’s guaranty of equal protection of the law.” Id. (citing Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4th Cir.1977); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir.1976)). Today we state the corollary that we did not explicitly state in so many words in Marshall: whatever constitutional basis they may have in the" }, { "docid": "5047575", "title": "", "text": "in claims that the FLSA had another source of authority under which the substantive provisions of the act could be applied to state employers. Such claims of alternative sources of authority, however, seem to have been limited to particular amendments to the FLSA, most notably the Equal Pay Act. Courts found that this act, passed to remedy discrimination in the workplace, could be seen as legislation to enforce the Fourteenth Amendment. Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 119-20 (6th Cir.1978) (Equal Pay Act); Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir.1978) (Equal Pay Act); Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4th Cir.1977) (Equal Pay Act); Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir.1976) (Equal Pay Act), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). The question whether the original core of the FLSA might be an enactment to enforce the Fourteenth Amendment has not been answered. A source of power has been held to justify an act of Congress even if Congress did not state that it rested the act on the particular source of power. We have held that: “(i)n exercising the power of judicial review, as distinguished from the duty of statutory interpretation, we are concerned with the actual powers of the national government.” Marshall v. Owensboro-Daviess County Hosp., 581 F.2d at 120 (citing Allegheny County Inst. Dist., 544 F.2d at 155). See also Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 68 S.Ct. 421, 424, 92 L.Ed. 596 (1948); (“the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”); Katzenbach v. Morgan, 384 U.S. 641, 647 n. 5, 86 S.Ct. 1717, 1721 n. 5, 16 L.Ed.2d 828 (1966) (listing possible sources of congressional authority despite absence of mention of those sources in the statute); Fullilove v. Klutznick, 448 U.S. 448, 473, 100 S.Ct. 2758, 2772, 65 L.Ed.2d 902 (1980) (upholding legislation as valid exercise of Congress’s enforcement clause power even though statute is unclear as to the source of power Congress" }, { "docid": "21898402", "title": "", "text": "F.Supp. 843, 845-46 (W.D.Key. 1976); appeal docketed, No. 77-2069 (6th Cir. 1977). The ready answer is that Congress itself has not considered the coverage of the minimum wage and equal pay provisions coextensive. For example, professional, executive, and administrative employees who have always been exempt from the minimum wage and overtime requirements are entitled to the protections of the EPA. See note 6 supra. . The Court noted that to comply with the FLSA provisions in question, States would have to either increase taxes to meet the additional financial burden or reduce the number of employees so that revenues would not have to be increased. 426 U.S. at 848, 96 S.Ct. 2465. . The Court noted that a State may have legitimate reasons for not complying with the FLSA wage and hour requirements. A State may wish to hire the unskilled or to offer summer employment to students, opportunities which may not be feasible if States were required to comply with the FLSA. Id. . While the City may suffer increased costs as a result of complying with the EPA (it may not lower wages paid to men to comply with the Act, 29 U.S.C. § 206(d)(1)), the effect of that impact is minimal when compared to the potential costs in the minimum wage and overtime provisions. Furthermore, we cannot ignore the fact that the City has not alleged that it will have to raise taxes or, alternatively, release employees to comply with the EPA. . Because we find the EPA constitutional under the Commerce Clause, it is unnecessary to consider other sources of' legislative power. We note, however, that the two courts of appeals which have addressed the question held that the EPA was a constitutional exercise of congressional authority against the States pursuant to section five of the Fourteenth Amendment. Usery v. Charleston County School Dist., 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977)." }, { "docid": "5551807", "title": "", "text": "hereby declared to be the policy of this Act, through the exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct and as rapidly as practicable to eliminate the conditions above referred to....”). . We note that this conclusion is not dispositive of the issue of whether the extension of the Equal Pay Act to the States is constitutionally-valid legislation, which we consider infra at 714-717. . Two other courts of appeals, in addition to the Sixth Circuit in Timmer, have arrived at the same conclusion. See Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir.1977); Usery v. Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). Those courts both rejected Tenth Amendment challenges to the Equal Pay Act under the then-prevailing rule of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), by holding that the Equal Pay Act was enacted pursuant to Congress's § 5 powers. We applied a different rationale to reject a Tenth Amendment challenge to the Equal Pay Act in Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir.1978), but we expressly reserved the question of whether the statute was also a proper exercise of Congress's § 5 powers. See id. at 6 n. 19. . The Court in City of Boerne asserted that \"[a]ny suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” — U.S. at —, 117 S.Ct. at 2167. It did recognize that Morgan \"could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in § 1 of the Fourteenth Amendment.” Id. at —, 117 S.Ct. at 2168. However, the Court believed that this was \"not a necessary interpretation, ... or even the best one.” Rather, the Court asserted that the legislation at issue in Morgan could be justified as a reasonable attempt by Congress to combat unconstitutional discrimination. See id. ." }, { "docid": "3296661", "title": "", "text": "Congress’ authority to enact the 1974 amendment was the Fourteenth Amendment. See EEOC v. County of Calumet, 519 F.Supp. 195 (E.D.Wis.1981), appeal pending, No. 81-2120 (7th Cir., argued January 7, 1982); Marshall v. Delaware River & Bay Auth., 471 F.Supp. 886 (D.Del.1979); Usery v. Bd. of Ed. of Salt Lake City, 421 F.Supp. 718 (D.Utah 1976). The federal courts, including this circuit, reached similar conclusions when the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (“EPA”), was challenged on the basis of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). The Equal Pay Act incorporates the FLSA to an even greater extent than does the ADEA. In particular the EPA uses the FLSA definitions section. It was the change in definitions which extended the FLSA, and with it the EPA, to state and local government employees under the 1974 amendments to the FLSA. After Na tional League of Cities invalidated the amendments as to the FLSA, the argument was made that the EPA should likewise fail. The specific arguments parallel those before us in this case. The federal courts have unanimously upheld the EPA, with the majority of courts finding the EPA was passed pursuant to the Fourteenth Amendment and thus was not subject to Tenth Amendment attack. See Marshall v. Owensboro—Daviess County Hospital, 581 F.2d 116 (6th Cir. 1978); Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution District, 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). This court and others have upheld the EPA even if it is viewed as an exercise of Commerce Clause authority. See Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978); Pearce v. Wichita County, etc., 590 F.2d 128 (5th Cir. 1979). See also Note, National League of Cities v. Usery: Its Implications for the Equal Pay Act and the Age Discrimination in Employment Act, 10 U.Mich.J.L.Ref. 239 (1976). . No challenge has been raised on appeal to the relevancy of specific items of" }, { "docid": "6284909", "title": "", "text": "enforcement would involve changes in traffic programs, licensing procedures, parking regulations and would require the city of New York to provide funds for toll facilities and garages. Since the policy choices involved in developing a plan to meet the federal requirements were left to the state and political subdivisions, no impermissible federal interference with state functions was found. Similarly, this court has upheld the extension of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1976), to state and local government employees as a valid exercise of Congress’s power under the commerce clause, finding that the intrusion into the area of state sovereignty was permissible. Pearce v. Wichita County, 590 F.2d 128 (5th Cir. 1979); accord, Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978). Other courts have reached the same result, but have placed their reliance on section 5 of the fourteenth amendment as the source of congressional power, finding it not subject to tenth amendment limitation. Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116 (6th Cir. 1978); Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution District, 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). Another court has relied on the fourteenth amendment to uphold the application of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 630(b) (1976) as amended by Fair Labor Standards Amendments of 1974, Pub. L.No.93—259, 88 Stat. 55, to state and local governments. Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977). Thus, by weighing the legitimate exercise of congressional power against the intrusion into areas of state sovereignty, the courts have determined whether the tenth amendment prevents congressional action. Here, we find the balance in favor of the reemployment provisions of the Act; therefore the tenth, like the eleventh amendment, is no bar to enforcing the remedies provided by the Act. Consequently, the judgment of the district court is AFFIRMED. . U.S.Const. amend. X provides: The powers not delegated to the United States by the Constitution, nor prohibited by" }, { "docid": "13637023", "title": "", "text": "Pay Act to the States and their political subdivisions in a sex discrimination case is a valid exercise of Congress’ power under the Commerce Clause); Pearce v. Wichita Cty., City of Wichita Falls, etc., 590 F.2d 128 (5th Cir. 1979). See also Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116 (6th Cir.1978) (Amendments to Fair Labor Standards Act extending Equal Pay Act protection to employees of States and their political subdivisions is a constitutional exercise of Congress’ power under section five of the Fourteenth Amendment); Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir.1977); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3rd Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). In addition, the Supreme Court has recently overruled its decision in National League of Cities v. Usery. Garcia v. San Antonio Metropolitan Transit Authority,U.S. —, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Accordingly, the district court had jurisdiction. . The district court opinion does not examine the applicability of Dawes to the present facts, it merely notes that \"NIU readily admits that its salary schedule would appeár to be unlawful under the dictates of Dawes.\" 565 F.Supp. at 506. We could find no such admission in the record. In its brief to this court NIU argues that Dawes is distinguishable on its facts. In any event we find Dawes inapplicable to the present facts. . It must be remembered that plaintiffs have not sought recovery by Ende of $215 per month. Rather they seek the $240 he would have gotten if the formula had been applied to him, maintaining the prima facie discrimination against Bishop to the extent of $25 per month. . The court differed from Lyon v. Temple Univ. of Com. System of Higher Educ., 543 F.Supp. 1372 (E.D.Pa.1982)." }, { "docid": "7791312", "title": "", "text": "appellants then brought their suit claiming sex discrimination. . Because of the result we have reached, concluding that appellants did not adequately demonstrate discrimination against them because of their sex, it is unnecessary to reach the constitutional question raised of whether the Equal Pay Act permissibly may be extended to cover units of state and local government in light of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). There, the Supreme Court held that the overtime and minimum wage provisions of the Fair Labor Standards Act (FLSA) could not be applied to state and local governments as an exercise of the federal power to regulate interstate commerce. The Court held that such an extension operated “to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions,” (id. at 852, 96 S.Ct. at 2474) and, as such, was not within Congress’ authority under the Commerce Clause. We do note, however, that the Courts of Appeals that have reached the constitutional question have considered National League of Cities to have decided only the limited issue raised by the extension of overtime and minimum wage standards to state governments. The trend has been to uphold the 1974 amendments as a legitimate exercise of congressional power, either under Section 5 of the Fourteenth Amendment (see Marshall v. Owensboro-Daviess Cty. Hosp., 581 F.2d 116, 119-20 (6th Cir. 1978); Usery v. Charleston Cty. School Dist., 558 F.2d 1169, 1170-72 (4th Cir. 1977); Usery v. Allegheny Cty. Inst. Dist., 544 F.2d 148, 155-56 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977)), or under the commerce clause (see Pearce v. Wichita Cty., City of Wichita Falls, Texas, Hosp. Bd., 590 F.2d 128, 132 (5th Cir. 1979); Marshall v. City of Sheboygan, 577 F.2d 1, 6 (7th Cir. 1978))." }, { "docid": "23388079", "title": "", "text": "court in this context. In arriving at this conclusion, our analysis does not suggest any reason or need for us to revisit our earlier pronouncements regarding the FLSA wage and hour provisions at issue here. Specifically, we have previously determined that Congress’ “authority” to impose on the states the FLSA’s wage and hour requirements was “squarely bottomed on the commerce clause.” New Hampshire Dep’t of Employment Sec. v. Marshall, 616 F.2d 240, 247 (1st Cir.1980). In so doing, we indicated that the FLSA provisions at issue here differed from other congressional legislation, like the Equal Pay Act, which, we explained, was applied “to the states as a legitimate exercise of congressional authority to adopt legislation enforcing the fourteenth amendment’s guaranty of equal protection of the law.” Id. (citing Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4th Cir.1977); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir.1976)). Today we state the corollary that we did not explicitly state in so many words in Marshall: whatever constitutional basis they may have in the Commerce Clause, the 1974 amendments to the FLSA in dispute again here did not apply the Act’s wage and hour provisions to the states and state employees as a legitimate exercise of congressional authority to adopt legislation under section five of the Fourteenth Amendment. This conclusion, of course, is fatal to the plaintiff probation officers’ argument on appeal because in Seminole Tribe, see — U.S. at---, 116 S.Ct. at 1131-32, the Supreme Court held that Congress cannot exercise its Commerce Clause power, or any of its other Article I powers, to abrogate a state’s Eleventh Amendment immunity from suit in federal court, thereby overruling the contrary rule of Union Gas. See 491 U.S. at 15, 109 S.Ct. at 2282 (plurality opinion). The force of the above line of reasoning helps to explain why every post-Seminole Tribe federal district court decision of which we are aware has dismissed private FLSA actions for lack of subject matter jurisdiction, even if the reasons stated were summary or did not always squarely address the section five, Fourteenth Amendment argument" }, { "docid": "5047574", "title": "", "text": "the Eleventh Amendment does not limit the effectiveness of legislation passed pursuant to Congress’s power under the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 453-55, 96 S.Ct. 2666, 2670-71, 49 L.Ed.2d 614 (1976). For such legislation to confer federal jurisdiction over actions against states by private individuals, therefore, all that is necessary is a sufficiently clear statement of Congress’s intent to abrogate Eleventh Amendment immunity. See generally Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985) (“Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself’). The Commission does not dispute that the clear statement rule laid out in Atascadero is satisfied by the FLSA. We are therefore faced with the question of .whether the FLSA is within the powers given to Congress by Section 5 of the Fourteenth Amendment. There is no precedent on point. One might expect that the limit on the commerce power imposed by National League of Cities from 1976 to 1985 would have resulted in claims that the FLSA had another source of authority under which the substantive provisions of the act could be applied to state employers. Such claims of alternative sources of authority, however, seem to have been limited to particular amendments to the FLSA, most notably the Equal Pay Act. Courts found that this act, passed to remedy discrimination in the workplace, could be seen as legislation to enforce the Fourteenth Amendment. Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 119-20 (6th Cir.1978) (Equal Pay Act); Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir.1978) (Equal Pay Act); Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4th Cir.1977) (Equal Pay Act); Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir.1976) (Equal Pay Act), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). The question whether the original core of the FLSA might be an enactment to enforce the Fourteenth Amendment has not been answered. A source of power has been held to justify an act of Congress even if" }, { "docid": "1505219", "title": "", "text": "Commerce Clause. The Court reasoned that the Tenth Amendment and principles of federalism inherent in the Constitution place an affirmative limitation on use of the commerce power to regulate the conduct of the states as states. Application of the FLSA’s minimum wage and overtime standards to states and their subdivisions transgressed that limitation because it “operate[d] to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Like the provisions at issue in National League of Cities, the Equal Pay Act purports to regulate employment policies. However, unlike those provisions, the Equal Pay Act is an anti-discrimination measure; and, as such, may be viewed as an exercise of Congress’ power to adopt legislation enforcing the Fourteenth Amendment’s guarantee of equal protection of the law. Usery v. Allegheny County Institution Dist., (3d Cir. 1976) 544 F.2d 148, cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793, 1977; Note, Applying the Equal Pay Act to State and Local Governments: The Effect of National League of Cities v. Usery, 125 U.Pa.L.Rev. 665, 677 (1977). Cf. Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614. If the Act is so viewed, there is no doubt that application of its provisions to state and local governments is a valid exercise of Congress’ constitutional authority. In contrast to the commerce power, Congress’ power to enforce the substantive provisions of the Fourteenth Amendment is not circumscribed by the Tenth Amendment. This is so, said the Supreme Court in Ex parte Virginia, because [t]he prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, . . . Such enforcement is no invasion of State sovereignty. * * * the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment. In Fitzpatrick v. Bitzer, supra, decided four days after National League of Cities, the Court reaffirmed its adherence to the analysis in Ex parte Virginia," } ]

[ { "docid": "18441930", "title": "", "text": "Inc., 380 U.S. 248, 249, 85 S.Ct. 934, 13 L.Ed. 2d 817, 818 (1965), is merely an example of a correctly applied dismissal sanction. In determining whether the district court has erred in these matters, the particular facts of the case must control. The question is one of discretion, and in exercising it Judge Murphy was permitted to take into account the full record of the case before him. Cf. Link v. Wabash R. R. Co., 370 U.S. 626, 633-635, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). On that record, we will support the conclusion of an experienced trial court judge that the discovery rules were so flagrantly ignored that dismissal was justified. Cf. Jones v. Uris Sales Corp., 373 F.2d 644 (2d Cir. March 2, 1967). Finally, plaintiff separately appeals from another order of Judge Murphy, dated August 24, 1966, denying a motion under Rule 60(b) for relief from the earlier dismissal of the complaint. Although plaintiff’s motion was made in the district court in July 1966, over two months after it had filed a notice of appeal from the April 27 dismissal, it was proper procedurally, because permission of this court to so move in the trial court had been obtained. Weiss v. Hunna, 312 F.2d 711, 713 (2d Cir.), cert, denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Plaintiff contended in the district court that it was entitled to relief under Rule 60(b) because its attorney first learned of the February 21 discovery order upon receipt on April 7, 1966 of defendant’s motion to dismiss. Although defendant sharply disputes this, we need not deal with the issue. There is no doubt that between April 7 and April 14, when Judge Murphy heard argument on the motion to dismiss, plaintiff knew about the February 21 order. It decided to construe that order as it saw fit and its answering affidavit to the motion to dismiss does not offer true compliance with the February 21 order, but merely relitigates the basic issue of copying. In the context of the dispute, this could not have been the" } ]

[ { "docid": "15108920", "title": "", "text": "(7th Cir.1985) (dismissal of a RICO action on collateral estoppel grounds because “the propriety of each element of the alleged scheme to defraud was previously decided in the state court ... all the essential features of the alleged scheme to defraud were already considered, and found to be without merit ... ”). Plaintiff cannot escape the effect of a prior determination by “clothing the claim in a different garb.” Frost v. Bankers Commercial Corp., 11 F.R.D. 195 (S.D.N.Y.1951), aff'd, 194 F.2d 505 (2d Cir.1952). The elements required by Mackey v. Frazier, supra, to establish a defense of res judicata are also satisfied with respect to the RICO claim. The Court concludes that, (1) the parties are in privity with each other; (2) the subject matter of the pending action is closely akin to that of the litigation completed in South Carolina; and (3) the state court judgment stands as an absolute bar not only of what was decided at the state level but what might have been decided had all of the claims which arose out of the controversy between the parties been raised in the South Carolina action. There is no dispute that plaintiff, Aries Realty, Inc., is in privity with DFB as the assignee of the latter’s claim. The Court concurs with defendants’ assertion that since an assignor cannot assign an interest greater than his own, plaintiff is bound by the decision of the state court to the full extent that DFB, Berkeley and Horwitz are bound thereby. Moreover, it is alleged that both DFB and Aries are wholly owned by Horwitz. With respect to the second part of the standard set out in Mackey, the “subject matter” requirement of res judicata is also met here. South Carolina law refers to the “general concern” of a prior action for purposes of determining the preclusive effect of a state court judgment in a subsequent proceeding. See Hines v. Farr, 235 S.C. 436, 112 S.E.2d 33 (1960); Murphy v. Brown, 262 S.C. 513, 205 S.E.2d 839 (1974). By following South Carolina’s practice, this Court finds the core of the controversy" }, { "docid": "15341687", "title": "", "text": "to grant a motion to vacate while an appeal is pending. Krock v. Electric Motor & Repair Co., 339 F.2d 73, 74 n.1 (1st Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). Other circuits have spoken, but not with uniformity. Some adhere to the position that once a notice of appeal is filed, a district court is divested of jurisdiction to act on a Rule 60(b) motion. Norman v. Young, 422 F.2d 470, 474 (10th Cir. 1970) (but see Aune v. Reynders, 344 F.2d 835, 841 (10th Cir. 1965)); Weiss v. Hunna, 312 F.2d 711, 713-14 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963), reaffirmed in Diapulse Corp. of America v. Curtis Publishing Co., 374 F.2d 442, 447 (2d Cir. 1967). These courts require the obtaining of an order of remand from the court of appeals before a party desiring relief from judgment may file a Rule 60(b) motion in the district court. The appellate court bases it decision whether to remand upon its view of the substantiality of the motion to vacate. If it finds the motion to vacate lacking in substance, it will refuse to remand, and the unsuccessful party must wait until mandate issues before he may file a 60(b) motion in district court. Other circuits do not require parties to obtain circuit court leave prior to moving in district court to vacate a judgment from which an appeal is pending. The motion may be both filed and considered in the district court without leave from the court of appeals. Furthermore, the district court may, bn its own, proceed to deny the 60(b) motion without permission of the court of appeals. Only if the district court is inclined to grant the motion need a remand be .sought and obtained; until a remand is obtained, the district court may not actually grant 60(b) relief. Pioneer Insurance Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1977); Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930-32 (5th Cir. 1976); First National Bank of Salem, Ohio v. Hirsch, 535" }, { "docid": "2310512", "title": "", "text": "not timely filed. In view of the fact that prior timely appeals were filed by Citibank and by the SEC, we regard the timely filing of CMI’s notice of appeal as a rule of practice rather than as a jurisdictional requirement. See Grunin v. International House of Pancakes, 513 F.2d 114, 126 n. 12 (8th Cir. 1975), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). Cf. In the Matter of Combined Metals Reduction Co., 557 F.2d 179, 201 (9th Cir. 1977) (by implication, appeal would be timely under Federal Rule of Appellate Procedure 4(a) had another party filed a prior timely notice of appeal). Particularly because the late filing was within the limits of an extension granted by the bankruptcy judge under Rule 802(c) and only two days beyond that literally allowed by that rule, it would be manifestly inequitable to dismiss CMI’s appeal for tardiness. II A second jurisdictional challenge is that the order of adjudication was an interlocutory order which is not appealable. This Court has jurisdiction over “either interlocutory or final orders” in proceedings in bankruptcy under section 24 of the Bankruptcy Act. This seemingly broad grant of appeal by right has been judicially limited in the case of interlocutory orders to those that “have the character of a formal exercise of judicial power affecting the asserted right of a party.” In re Homer Arth Well No. 1, 529 F.2d 1272, 1274 (6th Cir. 1976); Cope v. Aetna, 412 F.2d 635, 639 (1st Cir. 1969). We are of the opinion that the adjudication of bankruptcy in the instant case is appealable as an order which substantially decided a step in the course of the Chapter XI proceedings. See Aune v. Reynders, 344 F.2d 835 (10th Cir. 1965); In re Stanley Karman Inc., 279 F.Supp. 828 (S.D.N.Y.1967). Cf. In re Homer Arth Well No. 1, 529 F.2d at 1273-1274 (an order appointing a trustee is appealable); In the Matter of Rice Barton Corp., 312 F.Supp. 1316 (D.Mass.1970) (confirmation of a Chapter XI plan of arrangement is appealable). Ill Appellees raise the claim that these" }, { "docid": "22218883", "title": "", "text": "regarding the present motions does plaintiff allege that it was engaged in any religious activity which was interfered with by the defendants. A. 378 (emphasis in original). Judge Pierce also rejected the plaintiff’s contention that, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, it should have been allowed to conduct discovery prior to the determination of the defendants’ motion for summary judgment. Judge Pierce determined that, contrary to the contention of the plaintiff, none of the factual issues raised in its submission constituted a genuine issue of material fact. On July 14, 1980 plaintiff filed its notice of appeal. Thereafter, plaintiff claims that it learned that the Postal Service had decided on June 26, 1980 finally to revoke its permit. On August 15, 1980 plaintiff made a post-judgment motion under Fed.R.Civ.P. 60(b) coupled with another preliminary injunction motion. Judge Pierce denied the motion on October 7, 1980 on the ground that the notice of appeal filed by the plaintiff on July 14, 1980 divested the district court of jurisdiction over the action. See Weiss v. Hunna, 312 F.2d 711, 713 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Nevertheless, Judge Pierce noted that he would have denied the motion in any event. Plaintiff filed a notice of appeal from that decision on October 17, 1980, and thereafter that appeal was consolidated with plaintiff’s appeal from Judge Pierce’s June 30, 1980 decision. DISCUSSION Contemporary Mission’s principal contention on appeal is that Judge Pierce erred in denying the plaintiff an opportunity to conduct discovery prior to ruling on the defendant’s motion to dismiss or for summary judgment. Specifically, the plaintiff claims that, pursuant to Fed.R. Civ.P. 56(f), Judge Pierce should have rejected the defendants’ application pending the completion of sufficient discovery to enable the plaintiff to respond adequately to the affidavits submitted by the defendants in support of their motion. Rule 56(f) provides: (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify" }, { "docid": "23287028", "title": "", "text": "the increasing amount of protection afforded to creditors by successive revisions of 11 U.S.C. § 21(a)(5). In addition, Crateo’s proposed test would be so indefinite as to be unworkable. The trial judge properly declined to modify his instructions. II. Motions to Vacate the Adjudication of Bankruptcy Approximately eight months after judgment was entered adjudicating Crateo to be a bankrupt, and while the appeal from the judgment was pending, Crateo filed a motion in the District Court to vacate the judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Because of the pending appeal, the District Court had no jurisdiction to enter an order under Rule 60(b). The most the District Court could do was to either indicate that it would “entertain” such a motion or indicate that it would grant such a motion. If appellant had received such an indication, its next step would have been to apply to this Court for a remand. Canadian Ingersoll-Rand Co. v. Peterson Products, 350 F.2d 18, 27-28 (9th Cir. 1965). In this case, however, the District Court found that it was inappropriate to either grant or entertain the Rule 60(b) motion. This was only a procedural ruling and not a final determination of the merits of the Rule 60(b) motion. Such an order is not appealable. Crateo’s “appeal” from the District Court’s order must therefore be considered as a motion for remand of the case for consideration of the Rule 60(b) motion. Weiss v. Hunna, 312 F.2d 711, 713 (2d Cir. 1963) cert. denied, 374 U.S. 753, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); Canadian Ingersoll-Rand Co. v. Peterson Products, supra, 350 F.2d at 27 n. 16. We decline to order such a remand. The basis of Crateo’s motion was an attack upon the validity of a judgment from the United States District Court for the Southern District of Texas in favor of the Southern National Bank of Houston and against Crateo. See Southern National Bank of Houston v. Tri Financial Corporation, 317 F.Supp. 1173 (S.D.Tex.1970), affirmed sub nom., Southern National Bank of Houston v. Crateo, Inc., 458 F.2d 688 (5th" }, { "docid": "5948503", "title": "", "text": "the attorney for plaintiff. (3) The Memorandum of Law submitted by the same attorney to the contents of which he refers in his affidavit as setting forth the facts. Again, these documents do not meet the standards prescribed by Rule 56(e). Certainly, statements in briefs are not considered as evidence on a summary judgment motion and do not controvert evidence submitted by the movants. Lane v. Greyhound Corp., 13 F.R.D. 178 (E.D.Ky.1952); United States v. Jones, 155 F.Supp. 52, 56 (M.D.Ga.1957); Allen v. Radio Corp. of America, 47 F. Supp. 244, 246 (D.Del.1942). Moreover, even if we were to regard the memorandum as being incorporated by reference into the attorney’s affidavit, the result is an affidavit clearly made without personal knowledge and clearly insufficient. Berkley v. Clark Equipment Co., 22 F.R.D. 487 (E.D.N.Y.1958); Abel v. Morey Machinery Co., 10 F.R.D. 187 (S. D.N.Y.1950); Frost v. Bankers Commercial Corp., 11 F.R.D. 195 (S.D.N.Y.1951), aff’d sub nom. The Constellation (Frost v. Bankers Commercial Corp.), 194 F.2d 505 (2d Cir. 1952). The papers thus present a situation where as to certain vital factual matters defendants have submitted impressively sound, credible evidence as against plaintiff’s barrenness. On summary judgment, as at trial, resolution of the factual contention must be made in favor of the party supporting his position with evidence. To do otherwise would emasculate summary judgment, making it but another motion for judgment on the pleadings or to dismiss for legal insufficiency. And it is well established that on summary judgment the court is not limited to the questions raised by the pleadingSj- for summary judgment may be granted when the affidavits in support of the motion pierce the alleged issues of fact raised by the pleadings. 6 Moore, supra ¶ 56.11 [3], pp. 2161, 2167-68; 3 Barron & Holtzoff § 1235.1 (1958); Topp-Cola Co. v. Coca-Cola Co., 185 F.Supp. 700, 707 (S.D.N.Y. 1960); Dale Hilton, Inc. v. Triangle Publications, Inc., 27 F.R.D. 468, 470 (S.D. N.Y.1961); Dressier v. MV Sandpiper, 331 F.2d 130, 132-133 (2d Cir. 1964). Jurisdiction In determining jurisdiction the Aquitaine and Paribas transactions are regarded as distinct and separate." }, { "docid": "21365311", "title": "", "text": "notice of appeal. Although defendant argues here .that the motion was not timely because not made within the ten-day period set by F.R. Civ.Proc. 59(b) for a motion for a new trial, we will assume that it could properly have been entertained after that period as a motion under Rule 60 (b) based on “newly discovered evidence” or on “any other reason justifying relief from the operation of the judgment.” See Sternstein v. “Italia”, 275 F.2d 502 (2 Cir.1960); 6 Moore, Federal Practice (2d ed. 1953), at 3719. But once plaintiff had filed a notice of appeal, the district court was divested of jurisdiction to grant or deny relief under either Rule 59 or Rule 60(b) except with our permission. Freedman v. Overseas Scientific Corp., 150 F.Supp. 394 (S.D.N.Y.1957); Ritter v. Hilo Varnish Corp., 186 F.Supp. 625 (S.D.N.Y.1960); Daniels v. Goldberg, 8 F.R.D. 580 (S.D.N.Y.1948), aff’d, 173 F.2d 911 (2 Cir.1949); 7 Moore, Federal Practice (2d ed. 1953), at 335-338. We therefore cannot recognize the August 6 order as validly entered and appealed from; rather we shall treat the appeal as a motion asking us to remand so that the district judge may rule on the issue of disqualification. See Zig Zag Spring Co. v. Comfort Spring Corp., 200 F.2d 901, 907-908 (3 Cir.1953); Baruch v. Beech Aircraft Corp., 172 F.2d 445 (10 Cir. 1949). So treating it, we deny the motion. The statute, 28 U.S.C. § 455, directs that “any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.” As stated in MacNeil Bros. Co. v. Cohen, 264 F.2d 186, 189 (1 Cir.1959), disqualification for being “so related or connected” is generally “a matter confided to the conscience of the particular judge.” Plaintiff’s lengthy presentation on this subject, when stripped of its intemperate accusations and" }, { "docid": "23287029", "title": "", "text": "Court found that it was inappropriate to either grant or entertain the Rule 60(b) motion. This was only a procedural ruling and not a final determination of the merits of the Rule 60(b) motion. Such an order is not appealable. Crateo’s “appeal” from the District Court’s order must therefore be considered as a motion for remand of the case for consideration of the Rule 60(b) motion. Weiss v. Hunna, 312 F.2d 711, 713 (2d Cir. 1963) cert. denied, 374 U.S. 753, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); Canadian Ingersoll-Rand Co. v. Peterson Products, supra, 350 F.2d at 27 n. 16. We decline to order such a remand. The basis of Crateo’s motion was an attack upon the validity of a judgment from the United States District Court for the Southern District of Texas in favor of the Southern National Bank of Houston and against Crateo. See Southern National Bank of Houston v. Tri Financial Corporation, 317 F.Supp. 1173 (S.D.Tex.1970), affirmed sub nom., Southern National Bank of Houston v. Crateo, Inc., 458 F.2d 688 (5th Cir. 1972). This judgment was introduced as evidence tending to prove that Crateo was unable to pay its debts as they matured and comprised a large proportion of Crateo’s unpaid debts. In its Rule 60(b) motion, Crateo claimed that the Texas judgment was obtained by fraud and should not have been considered at Crateo’s bankruptcy trial. The District Court in Texas had determined that Tri Financial, a predecessor of Crateo, was obligated to purchase a promissory note from the bank. While that decision was on appeal to the Fifth Circuit, the bank brought an action against one of the signers of the note in the United States District Court for the District of Nevada. After the defendant in the Nevada action raised the claim that her signature on the note had been forged, the bank decided not to prosecute its suit and the case was dismissed. The Fifth Circuit’s decision came after the events in Nevada. The bank, however, was not a party in Crateo’s bankruptcy proceeding. The Texas judgment was merely introduced into evidence" }, { "docid": "21987025", "title": "", "text": "question whether the district court loses jurisdiction at some earlier time, as when the notice of appeal is filed.” 303 F.2d at 434, n. 1. In a more recent case, however, Judge Friendly, without referring to the dicta in Ryan, stated that the district court lost jurisdiction when the notice of appeal was filed. Weiss v. Hunna, 312 F.2d 711 (2d Cir. 1963), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963), rehearing denied, 375 U.S. 874, 84 S.Ct. 37, 11 L.Ed.2d 104 (1963). We conclude that applicant is not entitled to intervention as of right under Rule 24(a). Even construing that section liberally, see Cascade Natural Gas Corporation v. El Paso Natural Gas Co., 386 U.S. 129, 133-134, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967), applicant fails to claim “an interest relating to the property or transaction which is the subject of the [Rolle] action”. Judge Ryan’s opinion, and a comparison of applicant’s and Mrs. Rolle’s claims, while revealing some common issues, disclose substantial differences in the factual and legal interests of the two claimants (see infra p. 577). If the Court of Appeals affirms Judge Ryan’s decision in Rolle, applicant’s claims will not be bound thereby, except to the extent that the decision may be relevant as a legal precedent in this Court’s consideration of applicant’s claims. Fox v. Glickman Corp., 355 F.2d 161, 163 (2d Cir. 1965); Bodkin v. United States, 266 F.2d 55 (2d Cir. 1959); In re Advocate, 140 F.2d 783 (2d Cir. 1944); see Fox Publishing Co. v. United States, 366 U.S. 683, 694-695, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). If, on the other hand, the Court of Appeals holds that the Rolle suit is a class action, intervention as of right is not called for unless applicant’s interest may be impaired or impeded and be prejudiced by inadequate representation. No such showing is made here. On the contrary, any interest applicant might have appears to be adequately protected and represented. Mrs. Rolle is represented by the same counsel who represents applicant. Applicant’s only claim of inadequate representation is that" }, { "docid": "9706903", "title": "", "text": "Gains Research Bureau, 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1965). . See Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); see also McClure v. Borne Chem. Co., 292 F.2d 824 (3d Cir.), cert, denied, 368 U.S. 939, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961); Hooper v. Mountain States Securities Corp., 282 F.2d 195 (5th Cir. 1960): Texas Continental Life Ins. Co. v. Dunne, 307 F.2d 242 (6th Cir. 1962); Jordan Bldg. Corp. v. Doyle, O’Connor & Co., 401 F.2d 47 (7th Cir. 1968); Boone v. Baugh, 308 F.2d 711 (8th Cir. 1962); Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961); Stevens v. Vowell, 343 F.2d 374 (10th Cir. 1965). . McClure v. Borne Chem. Co., 292 F.2d 824, 835 (2d Cir.), cert, denied, 368 U.S. 939, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961). . See Fleischer, “Federal Corporation Law”: An Assessment, 78 Harv.L.Rev. 1146, 1168-1169 (1965). . 162 F.2d at 536, 540 (7th Cir. 1947). . Gallup v. Caldwell, 120 F.2d 90, 93 (3d Cir. 1941); Bankers Nat’l Corp. v. Barr, 7 F.R.D. 305, 307 (S.D.N.Y.1945); cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Weitzen v. Kearns, 262 F.Supp. 931 (S.D.N.Y.1966), aff’d sub nom. Epstein v. Solitron Devices, Inc., 388 F.2d 310 (2d Cir. 1968); Levine v. Bradlee, 248 F.Supp, 395, 398 (E.D.Pa.1965). . 430 F.2d 355 (2d Cir. 1970), aff’g 300 F.Supp. 1083 (S.D.N.Y.), cert, granted, 401 U.S. 973, 91 S.Ct. 1191, 28 L.Ed.2d 321 (1971). . 193 F.2d 461 (2d Cir.), cert, denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Birnbaum, the progenitor of much of the law and conventional wisdom in the 10b-5 area, and the natural enemy of these appellants, stands as authority for the following propositions which bear upon this case: (1) § 10(b) protects only defrauded “buyers” and “sellers”, (2) § 10(b) “was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities” (this statement was broadened by this court in A. T. Brod &" }, { "docid": "12441422", "title": "", "text": "conclude that no violation of the Code is indicated here, we do not enter the debate. . The Government informs us that its position was simply a preference for a definitive resolution of the disqualification issue before trial. It explains that it did not anticipate pretrial appellate scrutiny of Judge Sirica’s ruling on the petition for mandamus, text supra at notes 281-282, and was amenable to decision of the question by the Calendar Committee “since the considered judgment of the three-judge panel would be given the heaviest weight on appeal from conviction in a protracted and important case.” Government’s Response to Petition for Writ of Mandamus at 9. . See, e. g., United States v. Grinnell Corp., 384 U.S. 563, 582-83 n.13, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Tenants & Owners in Opposition to Redevelopment v. United States Dep’t of Housing & Urban Dev., 338 F.Supp. 29, 31 (N.D.Cal.1972). . Berger v. United States, 255 U.S. 22, 32-35, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Eisler v. United States, 83 U.S.App.D.C. 315, 319-320, 170 F.2d 273, 278, cert. granted, 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404 (1948), cert. dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949); United States v. Bell, 351 F.2d 868, 878 (6th Cir. 1965), cert. denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966). . See note 275 supra. See also MacNeil Bros. Co. v. Cohen, 264 F.2d 186, 189 (1st Cir. 1959); Weiss v. Hunna, 312 F.2d 711, 714 (1st Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); Shadid v. Oklahoma City, 494 F.2d 1267, 1268 (10th Cir. 1974). . United States v. Mitchell, supra note 280, 377 F.Supp. at 1315. . See Green v. Murphy, 259 F.2d 591, 593 (3d Cir. 1958). . See note 311 infra and accompanying text. . Berger v. United States, supra note 287, 255 U.S. at 33, 35, 41 S.Ct. 230, 65 L.Ed. 481; Tynan v. United States, 126 U.S.App.D.C. 206, 207, 376 F.2d 761, 762, 2 A.L.R.Fed. 909, cert. denied, 389 U.S. 845, 88 S.Ct. 95," }, { "docid": "948159", "title": "", "text": "of a judge in the American Bar Association, for example, did not require recusal in a case where the ABA was a party. See Advisory Comm, on Judicial Activities, Advisory Opinion No. 52 (August 15,1977). Analogies to other cases where recusal has been denied also support the result we reach here. See generally Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98 (5th Cir.1975); Weiss v. Hunna, 312 F.2d 711 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); MacNeil Brothers Co. v. Cohen, 264 F.2d 186 (1st Cir.1959). Further, where the interest asserted bears only a tangential relationship to the subject matter of the suit, the alleged bias is even further attenuated. See, Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 754 (1973) . This is certainly true here: an alumnus’ interest in the general welfare of his alma mater hardly seems likely to manifest itself in a bias concerning a single staff employment decision. We would add, especially at a time when the judiciary is responsible for handling an ever mounting sea of litigation, that, “There is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is,” In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir.1961); see Blizard v. Frechette, 601 F.2d 1217, 1220-21 (1st Cir.1979); H.R.Rep.No. 93-1453, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 6351, 6355 (amendments to section 455 abolished so-called “duty to sit” doctrine). Without deciding whether on this record appellant can argue bias based on the judge’s conduct at trial, we find that appellant has failed to convince us that the judge’s failure to record a pre-trial conference and to grant a discovery motion, his disapproval of appellant’s Rule 10(c) statement of evidence, the granting of a motion in limine, and the judge’s findings of fact showed the appearance of prejudice. To the extent that appellant may be understood in connection with these and other points to ask us" }, { "docid": "23410734", "title": "", "text": "other witnesses offered by Lawrenson to contradict Couch. We find no abuse in the district court’s overruling Lawrenson’s motion in these circumstances. See Taylor v. Reo Motors, Inc., 275 F.2d 699 (10 Cir. 1960); Johnson v. United States, 270 F.2d 488 (9 Cir. 1959), cert. denied, 362 U.S. 924, 80 S.Ct. 677, 4 L.Ed.2d 742 (1960). See also Jones v. United States, 279 F.2d 433 (4 Cir.), cert. denied, Princeler v. United States, 364 U.S. 893, 81 S.Ct. 226, 5 L.Ed.2d 190 (1960). See generally 3 BARRON and Holtzoff, Federal Practice and Procedure, §§ 1305, 1328 (Wright ed. 1958). Lawrenson also seeks relief from judgment under rule 60(b) (6) because the trial judge had failed to disqualify himself from presiding at the civil trial. Lawrenson, after the adverse judgment, had written to the judge to inquire of his stock ownership in Guaranty Company. In reply, the judge informed Lawrenson that he had owned such stock, but had disposed of it twenty-five years prior to the trial. We find no impropriety in the judge’s failure to disqualify himself and, moreover, such decisions are generally entrusted to the conscience of the individual judge. 28 U.S.C § 455; Weiss v. Hunna, 312 F.2d 711 (2 Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Lawrenson next contends that the district court erred in refusing to permit a hearing on his motion for a new trial. Lawrenson views rule 7 of the Rules of the United States District Court for the District of Maryland as requiring a hearing on any motion before the court at the request of either party. Rule 7 states in pertinent part: “All motions, objections and exceptions shall be decided on the memo-randa filed with the Clerk unless otherwise ordered by the Court, or unless either side shall in writing request a hearing.” (Emphasis added.) The district court interpreted the rule to mean that while motions “will automatically be decided on the memoranda filed unless the court or either side requests a hearing, it is still within the discretion of the court to grant or re" }, { "docid": "19858847", "title": "", "text": "(S.D.N. Y.1974); Frost v. Bankers Commercial Corp., 11 F.R.D. 195 (S.D.N.Y. 1951), aff'd, 194 F.2d 505 (2d Cir. 1952). . Montana v. United States, - U.S. -, -, 99 S.Ct. 970, 974, 59 L.Ed.2d 210 (1979). . See Tang v. Appellate Division, 487 F.2d 138, 142-43 (2d Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); Gambocz v. Yelencsics, 468 F.2d 837, 840-42 (3d Cir. 1972). . Morpurgo v. Board of Higher Educ., 423 F.Supp. 704, 713 (S.D.N.Y.1976); accord, Arroyo v. Schaefer, 548 F.2d 47, 51 (2d Cir. 1977) (“Respondeat superior is not a doctrine that is applicable to § 1983 actions.”). . Boruski v. Stewart, 381 F.Supp. 529, 535 (S.D.N.Y.1974); accord, Browning Debenture Holders' Comm. v. DASA Corp., Nos. 78-7083, 78-7084, slip op. at 4601 (2d Cir. Aug. 31, 1978); Villarreal v. Brown Exp. Inc., 529 F.2d 1219 (5th Cir. 1976); Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972); Ruderer v. United States, 462 F.2d 897 (8th Cir.), cert. denied, 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Ward v. Pennsylvania New York Central Transp. Co., 456 F.2d 1046 (2d Cir. 1972); Ex parte Tyler, 70 F.R.D. 456 (E.D.Mo. 1975); Ruderer v. Dep’t of Justice, 389 F.Supp. 549 (S.D.N.Y.1974). . Ex parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo. 1975); see Ruderer v. United States, 462 F.2d 897, 899 (8th Cir.), cert. denied, 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972). . Judge Brieant so described Kane in the final action before him, Kane v. Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, 442 F.Supp. 733, 735 (S.D.N.Y.1977). . See Browning Debenture Holders’ Comm. v. DASA Corp., Nos. 78-7083, 78-7084, slip op. at 4601 (2d Cir. Aug. 31, 1978); Ward v. Pennsylvania New York Central Transp. Co., 456 F.2d 1046 (2d Cir. 1972); Ruderer v. Dep’t of Justice, 389 F.Supp. 549 (S.D. N.Y.1974); Boruski v. Stewart, 381 F.Supp. 529 (S.D.N.Y.1974). . He appealed the grant of summary judgment by Judge Brieant in the wrongful discharge action. The Court of Appeals dismissed for lack of jurisdiction. . 421 U.S. 240, 95 S.Ct. 1612," }, { "docid": "22218884", "title": "", "text": "See Weiss v. Hunna, 312 F.2d 711, 713 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Nevertheless, Judge Pierce noted that he would have denied the motion in any event. Plaintiff filed a notice of appeal from that decision on October 17, 1980, and thereafter that appeal was consolidated with plaintiff’s appeal from Judge Pierce’s June 30, 1980 decision. DISCUSSION Contemporary Mission’s principal contention on appeal is that Judge Pierce erred in denying the plaintiff an opportunity to conduct discovery prior to ruling on the defendant’s motion to dismiss or for summary judgment. Specifically, the plaintiff claims that, pursuant to Fed.R. Civ.P. 56(f), Judge Pierce should have rejected the defendants’ application pending the completion of sufficient discovery to enable the plaintiff to respond adequately to the affidavits submitted by the defendants in support of their motion. Rule 56(f) provides: (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Plaintiff contends that had Judge Pierce permitted it to conduct discovery, it would have been able to demonstrate that “someone in the Postal Service, motivated as we have alleged in the complaint, decided to put into motion a harassing investigation of the Mission, with the results alleged in the [cjomplaint.” A. 346. We believe that the district court acted well within its discretion in preventing the plaintiff from burdening the defendants with a needless round of discovery in this frivolous lawsuit. In connection with the plaintiff’s First Amendment claim, the affidavits of the individual defendants submitted in support of the defendants’ motion soundly negate the unsupported allegation of the plaintiff that the actions between 1976 and 1979 of Gaetano and Evans were motivated by a desire to harass the members of Contemporary Mission because of" }, { "docid": "15341686", "title": "", "text": "those documents, a motion for a further enlargement and a motion for our leave to file a motion under Rules 60(b) and 1, Fed.R. Civ.P., in the district court. In their motion for leave appellants claimed they were uncertain as to whether, during the pendency of this appeal, the district court could act without such leave on their motion for relief from judgment. Both the motion for leave and the motion for enlargement of time were opposed on the grounds that the motion for relief from judgment was frivolous and made solely for purposes of delay. By order entered June 11, 1979, we denied appellants’ motion for leave, without prejudice. We indicated in our order that parties situated as are appellants would not be required to obtain leave from this court prior to filing a motion for relief from judgment in the district court. We also indicated that the present opinion, explaining the basis of our decision, would follow. We have not previously addressed this matter except to state that a district court lacks jurisdiction to grant a motion to vacate while an appeal is pending. Krock v. Electric Motor & Repair Co., 339 F.2d 73, 74 n.1 (1st Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). Other circuits have spoken, but not with uniformity. Some adhere to the position that once a notice of appeal is filed, a district court is divested of jurisdiction to act on a Rule 60(b) motion. Norman v. Young, 422 F.2d 470, 474 (10th Cir. 1970) (but see Aune v. Reynders, 344 F.2d 835, 841 (10th Cir. 1965)); Weiss v. Hunna, 312 F.2d 711, 713-14 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963), reaffirmed in Diapulse Corp. of America v. Curtis Publishing Co., 374 F.2d 442, 447 (2d Cir. 1967). These courts require the obtaining of an order of remand from the court of appeals before a party desiring relief from judgment may file a Rule 60(b) motion in the district court. The appellate court bases it decision whether to remand upon its" }, { "docid": "3424052", "title": "", "text": "on the Order to Show Cause, the Court denied Plaintiffs’ oral request that the Court construe their Order to Show Cause application as a motion for reconsideration of the Opinion. The arguments on these two motions were largely bound up with each other. On March 14, 1996, Plaintiffs filed the instant motion to reconsider the denial of the Oral Order. The Government was served with the notice of this motion by first-class mail in an envelope postmarked March 26, 1996. Thé Government filed its memorandum in opposition on April 9, 1996. The motion was taken on submission without oral argument on April 10,1996. On April 12, 1996, Plaintiffs filed their notice of appeal to the Court of Appeals for the Second Circuit. No mandate has yet been issued by that court. Discussion I. The Court Has No Jurisdiction to Consider the Motions A Court lacks jurisdiction over a matter—including jurisdiction to grant or deny relief under Rule 60(b)—after appeal has been taken. Weiss v. Hunna, 312 F.2d 711, 713-14 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). However, a timely motion made under Rule 59 and not disposed of nullifies a subsequent notice of appeal. Rule 4(a)(4), F.R.A.P.; Lowrance v. Achtyl, 20 F.3d 529, 533 (2d Cir.1994). Because the Rule 59 motion here was not timely as meant by Rule 4, neither it nor the Rule 60 motion can be addressed. Local Civil Rule 3(j) requires that “[a] notice of motion for reargument shall be served within ten (10) days after the docketing of the court’s determination of the original motion.” Rule 59(e) similarly requires that “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Rule 6 of the Federal Rules of Civil Procedure denies a district court discretion to extend the time within which a party may make a Rule 59(e) motion for reconsideration. See Rule 6(b), Fed.R.Civ.P.; Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975) (“[T]he 10-day period prescribed by Rule 59(e) ... cannot be enlarged.”); Corbett v." }, { "docid": "21987024", "title": "", "text": "exception was permitted for the reason that no appeal would otherwise have existed and the district court’s decision was necessary to preserve the appeal. 9 Moore, Federal Practice 3210 (1968). There is no contention here, however, that Mrs. Rolle is not going to prosecute the appeal. It therefore appears that a valid and timely appeal having been taken, this Court is without jurisdiction to grant applicant’s motion in the absence of a remand of the question from the Court of Appeals. In accordance with the procedure approved by the Court of Appeals for the Second Circuit with respect to motions brought under Rule 60(b), F.R.C.P., after appeal has been taken, however, and in order to facilitate efficient consideration of the matter by the Court of Appeals, this Court will indicate what its decision on the motion to intervene would be if it had jurisdiction. Ryan v. United States Lines Co., 303 F.2d 430 (2d Cir. 1962). “In this case the record had already been filed and the appeal docketed. We need not pass upon the question whether the district court loses jurisdiction at some earlier time, as when the notice of appeal is filed.” 303 F.2d at 434, n. 1. In a more recent case, however, Judge Friendly, without referring to the dicta in Ryan, stated that the district court lost jurisdiction when the notice of appeal was filed. Weiss v. Hunna, 312 F.2d 711 (2d Cir. 1963), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963), rehearing denied, 375 U.S. 874, 84 S.Ct. 37, 11 L.Ed.2d 104 (1963). We conclude that applicant is not entitled to intervention as of right under Rule 24(a). Even construing that section liberally, see Cascade Natural Gas Corporation v. El Paso Natural Gas Co., 386 U.S. 129, 133-134, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967), applicant fails to claim “an interest relating to the property or transaction which is the subject of the [Rolle] action”. Judge Ryan’s opinion, and a comparison of applicant’s and Mrs. Rolle’s claims, while revealing some common issues, disclose substantial differences in the factual and legal interests" }, { "docid": "21365310", "title": "", "text": "FRIENDLY, Circuit Judge. Plaintiff, a citizen and resident of New York, acting pro se, appeals from a judgment of the District Court for the Southern District of New York entered March 16, 1962, on an opinion by Judge Bonsai. The judgment dismissed the complaint in a tort action against defendant, an Austrian citizen and leading member of the Vienna bar, which had been tried! to the court without a jury. Plaintiff! appeals also from an order dated August 6, 1962, in which Judge Bonsai, in ai memorandum, denied his motion to set the judgment aside on the ground that, under 28 U.S.C. § 455, the judge should have disqualified himself from trying the 'case. Review of the August 6 order encounters an obstacle of which we must take note although neither party has raised it here. Plaintiff’s motion to vacate the'judgment on the. ground of disqualification was made on July 23, 1962, more than four months after the judgment had been entered and over three months after the plaintiff, on April 10, had filed a notice of appeal. Although defendant argues here .that the motion was not timely because not made within the ten-day period set by F.R. Civ.Proc. 59(b) for a motion for a new trial, we will assume that it could properly have been entertained after that period as a motion under Rule 60 (b) based on “newly discovered evidence” or on “any other reason justifying relief from the operation of the judgment.” See Sternstein v. “Italia”, 275 F.2d 502 (2 Cir.1960); 6 Moore, Federal Practice (2d ed. 1953), at 3719. But once plaintiff had filed a notice of appeal, the district court was divested of jurisdiction to grant or deny relief under either Rule 59 or Rule 60(b) except with our permission. Freedman v. Overseas Scientific Corp., 150 F.Supp. 394 (S.D.N.Y.1957); Ritter v. Hilo Varnish Corp., 186 F.Supp. 625 (S.D.N.Y.1960); Daniels v. Goldberg, 8 F.R.D. 580 (S.D.N.Y.1948), aff’d, 173 F.2d 911 (2 Cir.1949); 7 Moore, Federal Practice (2d ed. 1953), at 335-338. We therefore cannot recognize the August 6 order as validly entered and appealed from; rather" }, { "docid": "2310513", "title": "", "text": "interlocutory or final orders” in proceedings in bankruptcy under section 24 of the Bankruptcy Act. This seemingly broad grant of appeal by right has been judicially limited in the case of interlocutory orders to those that “have the character of a formal exercise of judicial power affecting the asserted right of a party.” In re Homer Arth Well No. 1, 529 F.2d 1272, 1274 (6th Cir. 1976); Cope v. Aetna, 412 F.2d 635, 639 (1st Cir. 1969). We are of the opinion that the adjudication of bankruptcy in the instant case is appealable as an order which substantially decided a step in the course of the Chapter XI proceedings. See Aune v. Reynders, 344 F.2d 835 (10th Cir. 1965); In re Stanley Karman Inc., 279 F.Supp. 828 (S.D.N.Y.1967). Cf. In re Homer Arth Well No. 1, 529 F.2d at 1273-1274 (an order appointing a trustee is appealable); In the Matter of Rice Barton Corp., 312 F.Supp. 1316 (D.Mass.1970) (confirmation of a Chapter XI plan of arrangement is appealable). Ill Appellees raise the claim that these appeals are moot in that the order of adjudication resulted in no prejudice to the parties. An appeal is considered. moot if it cannot affect the matter in issue or cannot grant effectual relief. See, e. g., In the Matter of Combined Metals Reduction Co., 557 F.2d at 187, 190. It is contended that the option of reorganization under Chapter X was not foreclosed by the order of adjudication, that a reversal would not affect the Chapter X proceedings, and that, therefore, this Court can render only an advisory opinion on the matter of the adjudication. We disagree. The adjudication of bankruptcy prior to the filing of the Chapter X petition, necessitating separate proceedings, resulted in this case in adverse consequences to the debtor that in our opinion are contrary to the intent and purposes of the Bankruptcy Act. These consequences consisted of the following: 1) the possibility of prejudgment or prejudice on the part of the bankruptcy judge who declared CMI bankrupt and who is now presiding over the Chapter X hearings; 2) the" } ]

[ { "docid": "22446952", "title": "", "text": "were preempted by § 1305(a)(1). O’Carroll did not discuss the scope of § 1305(a)(1) because the state law claims arising from the alleged wrongful exclusion undeniably related only to the services provided by the airline. No claim was made that the airline breached any safety-related tort duty by bumping O’Carroll. Enforcement of O’Carroll’s state law claims would result in significant de facto regulation of the airlines’ boarding practices and, moreover, would interfere with federal law granting the airlines substantial discretion to refuse to carry passengers. 49 U.S.C.App. § 1511(a). Similarly, the claims asserted by the plaintiff in West v. Northwest Airlines, 995 F.2d 148 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1053, 127 L.Ed.2d 374 (1994), would be preempted under our interpretation of “services”. Plaintiff West sued because he was “bumped” from the overbooked airline flight for which he had reserved a seat. After remand for reconsideration in light of Morales, the Ninth Circuit held, over a dissent, that West’s state law claims were too tenuously connected to “rates, routes and services” to be preempted by § 1305(a)(1). The majority did find West’s punitive damage claim preempted. Under either Morales or the analysis advanced here, it is difficult to see how a lawsuit for overbooking would not “relate to” the airline’s contract for “services” with its passenger. Hodges’ Claims Hodges alleged that Delta was negligent in allowing the case of rum to be stowed in an overhead storage bin. This tort claim for personal injury has no specific “reference to” airline services, see Morales, — U.S. at -, 112 S.Ct. at 2039, although it does derive from the operation of the aircraft. Nor would enforcement of her claim significantly affect Delta’s services, as defined above. As other eases have recently held, this type of claim does not relate to Delta’s services and is not preempted by § 1305(a)(1). See, e.g., Public Health Trust of Dade Cty., Fla. v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir.1993); Margolis v. United Airlines, Inc., 811 F.Supp. 318 (E.D.Mich.1993); but see Williams v. Express Airlines I, Inc., 825 F.Supp. 831 (W.D.Tenn.1993). The" } ]

[ { "docid": "16961953", "title": "", "text": "a result, plaintiffs breach of contract claim in this case shall not be preempted. 2. Tort Claims Based on the Morales ruling, the scope of the word “services” has proven critical in preemption analysis with respect to tort claims, although no singular definition has emerged despite repeated scrutiny. See, e.g., Travel All, 73 F.3d at 1433; Peterson v. Continental Airlines, Inc., 970 F.Supp. 246, 249-50 (S.D.N.Y.1997); Trinidad v. American Airlines, Inc., 932 F.Supp. 521, 524-26 (S.D.N.Y.1996); In re Hijacking of Pan American World Airways, Inc., 920 F.Supp. 408 (S.D.N.Y.1996); Von Hundertmark v. Boston Professional Hockey Ass’n, Inc., No. CV-93-1369(CPS), 1996 WL 118538, *5-7 (E.D.N.Y. March 7, 1996); Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 219-222 (S.D.N.Y.1994); Stagl v. Delta Air Lines, Inc., 849 F.Supp. 179, 181-83 (E.D.N.Y.1994), rev’d on other grounds, 52 F.3d 463 (2d Cir.1995); Cannava v. USAir, Inc., No. 91-30003-F, 1993 WL 565341, *4-5 (D.Mass. Jan 7, 1993); Lawal v. British Airways, PLC, 812 F.Supp. 713, 719-20 (S.D.Tex.1992); Howard v. Northwest Airlines, Inc., 793 F.Supp. 129, 132 (S.D.Tex.1992); Von Anhalt v. Delta Air Lines, Inc., 735 F.Supp. 1030, 1031 (S.D.Fla.1990). See also Abdu-Brisson v. Delta Air Lines, Inc., No. 96-7721, 128 F.3d 77, 83-84, 1997 WL 631842, at *5 (2d Cir. Oct.15, 1997) (“The ‘related to’ language of the ADA provides neither a predictable nor practical formula for distinguishing preempted from non-preempted state and local laws____”). In fact, I have previously adopted a definition of service that includes activities that eleai’ly have ties to the economy of the industry such as overbooking and bumping. See Lanza v. American Airlines, No. 93-CV-4246(JMA), (E.D.N.Y. May 23, 1996) (memo & order). Hence, in this case defendant American Airlines contends that plaintiffs’ claims are preempted because they are connected to services that the airline provides, specifically, ticketing, seating, and upgrade procedures. But while some courts have made the preemption determination solely by deciding whether the airline’s con duct directly relates to a service, a recent trend suggests that the service definition is only one element of the analysis. See Peterson, 970 F.Supp. at 250-51; Rombom, 867 F.Supp. at 221-22. In" }, { "docid": "2736869", "title": "", "text": "Ritetime. With regard to both types of claims, the Court finds that although the first two prongs of the Rombom test for preemption are satisfied, the third is not. Clearly, the carriage of ticketed passengers on international flights is an “airline service” under the ADA; the same reasonably could be said of contracting with another carrier to operate such flights. Likewise, claims based on an airline’s decision to cancel passengers’ flights, and claims based on an airline’s selection and supervision of contractors, directly implicate the services at issue. See Rombom, 867 F.Supp. at 222 (citing Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993) (holding that claims “stemming from an airline’s refusal to seat a passenger directly implicate airline services because they ‘immediately arise from the denial, or allegedly inadequate provision of, such services.’ ”)). However, neither an airline’s total and indefinite refusal to transport ticketed passengers, nor its selection of a contracting carrier that engages in the same conduct, is “reasonably necessary to the provision” of the services just described. Nor does either action fall within “a spectrum of reasonable conduct.” Id. at 222. The fraudulent and negligent conduct of which defendants are accused is better described as “outrageous.” Id. Thus the ADA does not preempt plaintiffs’ state law tort claims. E. Supplemental Jurisdiction World’s final argument is that if plaintiffs’ federal claims are dismissed, the Court should decline to exercise jurisdiction over their state law claims. Under 28 U.S.C. § 1367(c)(3), a district court “may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.” (emphasis supplied). The Second Circuit has explained, “as a general proposition, that ‘if [all] federal claims are dismissed before trial ..., the state claims should be dismissed as well.’ ” Motorola Credit Corp. v. Uzan, 388 F.3d 39, 46-47 (2d Cir.2004), cert. denied, 544 U.S. 1044, 125 S.Ct. 2270, 161 L.Ed.2d 1080 (2005) (quoting Castellano v. Bd. of Trustees, 937 F.2d 752, 758 (2d Cir.1991)) (alterations and emphasis in original). But it has also held that “when" }, { "docid": "7015640", "title": "", "text": "to a price, route, or service of an air carrier.” Smith, however, argues that tort claims are not preempted if premised upon unreason able conduct that is unnecessary to the provision of a service. Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 222 (S.D.N.Y.1994). He characterizes Comair’s conduct during his encounter as so outrageous as to be unrelated to the provision of a service. To the extent Smith’s intentional tort claims are premised on Comair’s refusal to permit him to board his flight, we believe they are preempted. To determine whether a claim has a connection with, or reference to an airline’s prices, routes, or services, we must look at the facts underlying the specific claim. Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir.1996). Smith’s tort claims are based in part upon Comair’s refusal of permission to board. Undoubtedly, boarding procedures are a service rendered by an airline. Hodges, 44 F.3d at 336, 339; Chukwu v. Board of Directors British Airways, 889 F.Supp. 12,13 (D.Mass.1995), aff'd mem., 101 F.3d 106 (1st Cir.1996). Therefore, to the extent Smith’s claims are based upon Comair’s boarding practices, they clearly relate to an airline service and are preempted , under the ADA. Chukwu, 889 F.Supp. at 13-14; Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993). We agree with Smith that, to the extent his claims are based on conduct distinct from Comair’s determination not to grant permission to board, his false imprisonment and intentional infliction of emotional distress claims are not preempted. Suits Stemming from outrageous conduct on the part of an airline toward a passenger will not be preempted under the ADA if the conduct too tenuously relates or is unnecessary to an airline’s services. Rombom, 867 F.Supp. at 222, 224. If, for example, an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted. See Chrissafis v. Continental Airlines, Inc., 940 F.Supp. 1292, 1298-99 (N.D.Ill.1996) (distinguishing false imprisonment claims held preempted" }, { "docid": "11418783", "title": "", "text": "against an airline are preempted by Section 41713 is whether the activity at issue is an airline service. Id. If the Court determines that the activity is not an airline service for Section 41713 purposes, then the preemption inquiry ceases and the state law claims are actionable. Id. at 222. If, however, the activity at issue implicates an airline service, the Court must then address the second prong: Whether plaintiffs claims affect the airline service directly as opposed to “tenuously, remotely, or peripherally.” Id. If the state claims have only an incidental effect on the airline service, there is no preemption. The third prong of the preemption inquiry focuses on whether the underlying tortious conduct was reasonably necessary to the provision of the service. Id.; Curley v. American Airlines, Inc., 846 F.Supp. 280, 284 (S.D.N.Y.1994). In other words, Section 41713 “cannot be construed in a way that insulates air carriers from liability for injuries caused by outrageous conduct that goes beyond the scope of normal aircraft operations.” Rombom v. United Air Lines, Inc., 867 F.Supp. at 222. If, in contrast, the service was provided in a reasonable manner, then preemption is appropriate. It is clear that the first prong of the preemption inquiry is satisfied in the present case. A flight crew’s conduct during the boarding stage of a flight, specifically, flight attendants’ efforts to locate appropriate seat assignments and resolve seat conflicts, constitutes an airline service within the meaning of Section 41713. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (air carrier service includes, inter alia, ticketing boarding procedures, baggage handling and provision of food and drink). Whether the requirements of the second prong are met, however, proves to be a more difficult question. Continental argues that Peterson’s allegations are based merely on the manner in which the flight attendants provided this service, and thus that her tort claims affect the service directly rather than tenuously. Such an interpretation of Peterson’s claims weighs in favor of preemption. Yet the very nature of Peterson’s allegations, ie., intentional infliction of emotional distress and civil rights violations, suggest" }, { "docid": "16137491", "title": "", "text": "a passenger’s removal from an airplane”) and Galbut v. American Airlines, 27 F.Supp.2d 146 (E.D.N.Y.1997) (slander per se, false arrest, false imprisonment, intentional and negligent infliction of emotional distress and negligence claims arising out of airline’s requirement that passenger pay for upgrade and its purportedly false allegations that passenger had stolen upgrade stickers preempted by 1978 Act) with Trinidad v. American Airlines, 932 F.Supp. 521 (S.D.N.Y.1996) (personal injury action based on negligence of pilot and other airline personnel not preempted by 1978 Act or FAA) and Peterson v. Continental Airlines, Inc., 970 F.Supp. 246 (S.D.N.Y.1997) (negligence, assault and battery, false arrest, false imprisonment and defamation claims arising from seating conflict not preempted by 1978 Act). In so doing, however, they generally apply the case-by-case tripartite preemption test outlined by Judge Sotomayer in Rombom v. United Air Lines, Inc., 867 F.Supp. 214 (S.D.N.Y.1994). Under this test, the Court must first determine whether “the activity at issue in the claim is an airline service.” Id. If it is a service, then the Court must decide whether the claim affects the airline service “directly or tenuously, remotely or peripherally.” Id. at 222. Finally, the Court must decide whether “the underlying tortious conduct was reasonably necessary to the provision of the service.” Id. “[I]f the tortious act did not occur during the service ... or ... did not further the provision of the service in a reasonable manner, then the state tort claim should continue.” Id. In Rombom, a passenger aboard a United Air Lines flight was removed from the plane after she allegedly “misbehaved” while the flight attendant was giving flight safety instructions and was subsequently arrested by the Chicago Police Department. She sued the airline, claiming that the flight attendant was rude, and that the airline employee’s actions caused her “great mental and physical distress, of a temporary and permanent nature, was humiliated, made sick and injured her character and reputation.” Rombom, 867 F.Supp. at 217. Applying the tripartite test, the court found that claims stemming from the flight crew’s rude and unprofessional conduct and claims based on the pilot’s refusal to" }, { "docid": "21895906", "title": "", "text": "1433 (2d Cir.1983) (pilot vested with “wide discretion” to decide whether to transport passenger in order to protect passengers). Captain Burbech’s decision to return to the gate was a federally authorized service. Nothing in the record even remotely suggests that Captain Burbech’s decision fell outside the spectrum of reasonable conduct. At best, Rombom alleges that the Captain overreacted to the threat Rombom and her companions posed. I find, therefore, that any claims based on the Captain Burbech’s decision to return to the gate fail the third prong of the analysis, and are preempted under § 1305. 3. Claims Stemming from Rombom’s Arrest As noted, Rombom alleges that well after she ceased to pose a safety threat, the flight crew decided to have her arrested. Rombom argues that this decision was motivated by spite. Under the first prong of the preemption inquiry, I find that the decision to have a passenger arrested may be a service if it is the only way to remove a passenger who refuses to disembark. See Fenn at 1223 (discussing provision of services related to safety). United’s papers suggest that this is the reason why the police were summoned. Rombom’s claims arising from the arrest survive the second step of the preemption inquiry, however, because she claims she departed the plane without arrest and the decision to have her arrested was motivated by spite. In cases such as the one at bar where the essence of the claim is-that the air carrier abused its authority to provide a given service, the air carrier is not entitled to the protection of § 1305. Because the flight crew’s decision to have Rombom arrested was allegedly motivated by spite or some unlawful purpose, Rombom’s subsequent tort claims arising out of this decision are at best tenuously related to an airline service. Even if Rombom’s claims directly implicated a service, United’s preemption argument would still fail under the third prong of the inquiry because the issue of whether the airline ordered the arrest remains in dispute. Assuming that the flight crew’s decision was entirely motivated by a desire to protect" }, { "docid": "16961956", "title": "", "text": "permit plaintiff to upgrade using the gold stickers and the demand for payment for the upgrade, are services. Travel All 73 F.3d at 1434; Lanza v. American Airlines, Inc., No. 93-CV-4246(JMA) (E.D.N.Y. May 23, 1996) (memo & order); Rombom, 867 F.Supp. at 221-22, 223; Cannava, No. 91-30003-F, 1993 WL 565341, at *4-6; Lawal, 812 F.Supp. at 719-20. Second, the claim affects airline service directly, rather than tenuously, in that it relates specifically to defendant’s upgrade policies and the manner in which defendant’s employees carry out those policies when they believe that a passenger is not properly ticketed. Rombom, 867 F.Supp. at 222 (citing Williams v. Express Airlines I, Inc., 825 F.Supp. 831 (W.D.Tenn.1993) (claims stemming from airline’s refusal to allow plaintiff on board directly implicate airline services because they “immediately arise from the denial or allegedly inadequate provision of such services”) (emphasis added)). Cf. Abdu-Brisson, 128 F.3d 77, 85-86, 1997 WL 631842, at *8 (seniority policies which discriminate on basis of age do not affect airline services). And finally, assuming plaintiffs version of facts to be true, I find that the underlying, allegedly tortious conduct furthered the provision of service in a reasonable manner. Specifically, plaintiffs allegations amount to the following: that defendant did not provide an upgrade to first class with the stickers owned by plaintiff, that defendant wrongfully accused plaintiff of stealing the stickers, that defendant required payment for the upgrade to first class, that defendant entered remarks into plaintiffs PNR indicating a problem with his ticketing, that defendant mistakenly permitted plaintiff to purchase upgrade stickers at the Admiral’s Club, that defendant confronted plaintiff on the plane in an overbearing manner and again accused him of stealing stickers causing plaintiffs panic attack to escalate, that defendant announced a request for plaintiff to identify himself at the gate, and that defendant detained plaintiff and told him that the Metro-Dade police had been summoned. Plaintiff does not dispute that he was permitted to upgrade to first class, that he was permitted to remain in first class on both flights, that he never was physically restrained by defendant’s agents, and that" }, { "docid": "2736866", "title": "", "text": "[airline rates, routes or services] in too tenuous, remote or peripheral a manner’ to have a pre-emptive effect.”) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Neither the Supreme Court nor the Second Circuit has offered a per se rule with regard to the ADA’s preemption of tort claims. See Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 81 (2d Cir.1997) (“The Supreme Court has not drawn any distinct preemption lines for guidance, and that may not be possible.”). Rather, the Second Circuit has explained that the ADA’s preemption provision must be applied “on a case-by-case basis,” and that state and local laws must “directly affect prices, routes or services” to be preempted. Id. at 86. In Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 221-22 (S.D.N.Y.1994), a district court of this circuit developed a three-part test for determining whether tort claims are preempted by the ADA. Rombom involved a tort claim by passengers whom the defendant airline alleged had behaved disruptively prior to takeoff. The court held that the ADA would preempt their tort claims only if (1) “the activity at issue in the claim [was] an airline service”; (2) “the claim affect[ed] the airline service directly [rather than] tenuously, remotely, or peripherally”; and (3) “the underlying tortious conduct was reasonably necessary to the provision of the service.” Id. Regarding the third prong, the court added that “where [a] service was provided in a manner that falls within a spectrum of reasonable conduct,” preemption should occur, but the ADA should not be “construed in a manner that insulates air carriers from tort liability for injuries caused by outrageous conduct that goes beyond the scope of normal aircraft operations.” Id. at 222. Applying this analysis, the court found that although the plaintiffs claims based on flight attendants’ allegedly rude behavior and on the pilot’s decision to return the airplane to the gate, rather than taking off, were preempted, her claim based on the flight crew’s decision to have her arrested was not. The decision to remove a" }, { "docid": "16137495", "title": "", "text": "appear to arise from Plaintiffs removal are claims stemming from Osorio’s “rude” comments to Plaintiff at the boarding gate and Osorio’s allegedly slanderous comments made in front of other passengers (to the extent the allegedly slanderous comments were made to the pilot and the flight crew, they relate to the Captain’s decision to remove Plaintiff, and are therefore preempted). Applying Rombom, I conclude that any of Plaintiffs state tort claims that are based on Osorio’s “rudeness” are preempted, but her slander claim is not. While any claim based on Osorio’s unprofessional conduct may directly implicate an airline service, such conduct “cannot be categorized as outrageous or unreasonable,” and the claim is therefore preempted. Rombom, 867 F.Supp. at 223. On the other hand, Oso-rio’s allegedly slanderous comments about Plaintiff in front of other passengers, taken in a light most favorable to Plaintiff, could be found to have been made out of spite, and not “reasonably necessary” to protecting the safety of the other passengers. See Id. at 224 (“Because the flight crew’s decision to have [plaintiff] arrested was allegedly motivated by spite or some unlawful purpose, [plaintiffs] subsequent tort claims arising out of this decision are at best tenuously related to an airline service.”). Accordingly, Plaintiffs slander claim is not preempted by the 1978 Act. III. ADA Claim Plaintiffs claim for violation of the Americans with Disabilities Act is not preempted by the 1978 Act (which speaks only to State law preemption), but is barred by the terms of the ADA itself. 42 U.S.C. § 12181(10) specifically provides that the provision allegedly violated by Defendant — 42 U.S.C. § 12184 — does not apply to or encompass travel by aircraft. Title II of the ADA simply does not cover air travel, and Plaintiffs claim under that section for refusal to carry is, accordingly, not actionable. Puckett v. Northwest Airlines, Inc., 131 F.Supp.2d 379, 382 (E.D.N.Y.2001); see also Love v. Delta Air Lines, 179 F.Supp.2d 1313, 1316 (M.D.Ala.2001), rev’d on other grounds, 310 F.3d 1347 (11th Cir.2002). Plaintiff seeks to avoid this result by-attempting to recharacterize her claim as a claim for" }, { "docid": "11418785", "title": "", "text": "that Continental acted outside the scope of its authority. Thus, because Peterson’s claims are based on the notion that Continental abused its authority to provide a given service, preemption under Section 41713 is not warranted. See id. at 224 (“Because the flight crew’s decision to have [plaintiff] arrested was allegedly motivated by spite or some unlawful purpose, [plaintiff’s subsequent tort claims arising out of this decision are at best tenuously related to an airline service.”). Even assuming that Peterson’s claims directly implicate an airline service, Continental’s preemption argument fails under the third prong of the inquiry because the issue of whether Continental acted reasonably remains in dispute. Under Peterson’s version of the facts surrounding her arrest, Continental cannot be said to have provided any airline service in a reasonable manner. Specifically, Peterson claims that after the seat conflict arose, she was directed to leave the airplane without explanation. Moreover, Peterson argues that by contacting the police without justification, the flight crew acted in an abusive, unprofessional and malicious manner. As such, Peterson’s claims allege “outrageous conduct that goes beyond the scope of normal aircraft operations.” Id.; see also Doricent v. American Airlines, Inc., No. 91 Civ. 12084Y, 1993 WL 437670, at *5 (D.Mass. Oct.19, 1993) (no preemption because plaintiff’s claims of “[r]acial discrimination, the intentional infliction of emotional distress, and assault and battery have nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service”); Diaz-Aguasviva v. Iberia Lineas Aereas de España, 902 F.Supp. 314, 319 (D.P.R.1995) (“tortious conduct of an airline is not a regular or typical ‘service’ provided by the airline industry”), vacated in part on reconsideration on other grounds, 937 F.Supp. 141 (D.P.R.1996). Continental erroneously relies on Rombom v. United Air Lines, Inc., 867 F.Supp. at 219-23 for the proposition that any unprofessional conduct by a flight crew during the course of a flight constitutes a “service,” and thus that all claims based on such conduct are preempted under Section 41713. In Rombom, the district court distinguished mere acts of rudeness on the part of the crew from acts which can be categorized" }, { "docid": "2736868", "title": "", "text": "passenger might, under some circumstances, be a service, the court said, but because the plaintiff alleged that the decision was motivated by “spite or some unlawful purpose,” her claim was “at best tenuously related to an airline service.” Id. at 224. Moreover, even if her claim had been directly related to the service, the decision to have her arrested, at least on her version of the facts, did not appear to have been reasonably necessary to protect the safety of the flight. Id. Although the Second Circuit has not explicitly adopted the Rombom approach, numerous district courts of this circuit have done so. See, e.g., Donkor v. British Airways Corp., 62 F.Supp.2d 968, 972 & n. 5 (E.D.N.Y.1999); Peterson v. Cont’l Airlines, Inc., 970 F.Supp. 246, 250-51 (S.D.N.Y.1997); Galbut v. Am. Airlines, Inc., 27 F.Supp.2d 146, 152-53 (E.D.N.Y. 1997). The Court finds the Rombom approach sensible, and applies it here. Plaintiffs’ fraud claims are rooted in the allegation that defendants refused to fly ticketed passengers, and their negligence claims in defendants’ allegedly negligent supervision of Ritetime. With regard to both types of claims, the Court finds that although the first two prongs of the Rombom test for preemption are satisfied, the third is not. Clearly, the carriage of ticketed passengers on international flights is an “airline service” under the ADA; the same reasonably could be said of contracting with another carrier to operate such flights. Likewise, claims based on an airline’s decision to cancel passengers’ flights, and claims based on an airline’s selection and supervision of contractors, directly implicate the services at issue. See Rombom, 867 F.Supp. at 222 (citing Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993) (holding that claims “stemming from an airline’s refusal to seat a passenger directly implicate airline services because they ‘immediately arise from the denial, or allegedly inadequate provision of, such services.’ ”)). However, neither an airline’s total and indefinite refusal to transport ticketed passengers, nor its selection of a contracting carrier that engages in the same conduct, is “reasonably necessary to the provision” of the services just described. Nor does" }, { "docid": "2736867", "title": "", "text": "prior to takeoff. The court held that the ADA would preempt their tort claims only if (1) “the activity at issue in the claim [was] an airline service”; (2) “the claim affect[ed] the airline service directly [rather than] tenuously, remotely, or peripherally”; and (3) “the underlying tortious conduct was reasonably necessary to the provision of the service.” Id. Regarding the third prong, the court added that “where [a] service was provided in a manner that falls within a spectrum of reasonable conduct,” preemption should occur, but the ADA should not be “construed in a manner that insulates air carriers from tort liability for injuries caused by outrageous conduct that goes beyond the scope of normal aircraft operations.” Id. at 222. Applying this analysis, the court found that although the plaintiffs claims based on flight attendants’ allegedly rude behavior and on the pilot’s decision to return the airplane to the gate, rather than taking off, were preempted, her claim based on the flight crew’s decision to have her arrested was not. The decision to remove a passenger might, under some circumstances, be a service, the court said, but because the plaintiff alleged that the decision was motivated by “spite or some unlawful purpose,” her claim was “at best tenuously related to an airline service.” Id. at 224. Moreover, even if her claim had been directly related to the service, the decision to have her arrested, at least on her version of the facts, did not appear to have been reasonably necessary to protect the safety of the flight. Id. Although the Second Circuit has not explicitly adopted the Rombom approach, numerous district courts of this circuit have done so. See, e.g., Donkor v. British Airways Corp., 62 F.Supp.2d 968, 972 & n. 5 (E.D.N.Y.1999); Peterson v. Cont’l Airlines, Inc., 970 F.Supp. 246, 250-51 (S.D.N.Y.1997); Galbut v. Am. Airlines, Inc., 27 F.Supp.2d 146, 152-53 (E.D.N.Y. 1997). The Court finds the Rombom approach sensible, and applies it here. Plaintiffs’ fraud claims are rooted in the allegation that defendants refused to fly ticketed passengers, and their negligence claims in defendants’ allegedly negligent supervision of" }, { "docid": "16961955", "title": "", "text": "Rombom v. United Air Lines, Inc., 867 F.Supp. 214 (S.D.N.Y.1994), Judge Sotoma-yor set forth a tripartite test for preemption. The Court must first determine whether the activity at issue in the claim is a service. If the activity is deemed to be a service, the court must then ascertain whether the claim affects the airline service directly or tenuously, remotely, or peripherally. Finally, the Court must determine whether the underlying tortious conduct was reasonably necessary to the provision of the service. Id. at 222. The Court warned that “[I]f the tortious act did not occur during the service ... or ... did not further the provision of a service in a reasonable manner, then the state tort claim should continue.” Id. The Rombom test has been employed recently by other judges within this Circuit. See, e.g.,. Peterson, 970 F.Supp. at 250-251; Von Hundertmark, 1996 WL 118538, at *6. Application of the Rombom test clearly indicates that plaintiffs claims should be preempted. First, the activities at issue in plaintiffs claim, that is the agent’s refusal to permit plaintiff to upgrade using the gold stickers and the demand for payment for the upgrade, are services. Travel All 73 F.3d at 1434; Lanza v. American Airlines, Inc., No. 93-CV-4246(JMA) (E.D.N.Y. May 23, 1996) (memo & order); Rombom, 867 F.Supp. at 221-22, 223; Cannava, No. 91-30003-F, 1993 WL 565341, at *4-6; Lawal, 812 F.Supp. at 719-20. Second, the claim affects airline service directly, rather than tenuously, in that it relates specifically to defendant’s upgrade policies and the manner in which defendant’s employees carry out those policies when they believe that a passenger is not properly ticketed. Rombom, 867 F.Supp. at 222 (citing Williams v. Express Airlines I, Inc., 825 F.Supp. 831 (W.D.Tenn.1993) (claims stemming from airline’s refusal to allow plaintiff on board directly implicate airline services because they “immediately arise from the denial or allegedly inadequate provision of such services”) (emphasis added)). Cf. Abdu-Brisson, 128 F.3d 77, 85-86, 1997 WL 631842, at *8 (seniority policies which discriminate on basis of age do not affect airline services). And finally, assuming plaintiffs version of facts to" }, { "docid": "18190445", "title": "", "text": "by knowingly and surreptitiously conspiring to obtain and by obtaining, maintaining, and manipulating class members’ personal data that was received in direct violation of JetBlue’s privacy policy. (Am.Compl.1ffl 93-94.) This claim fits squarely within the range of state law actions that the Supreme Court concluded, in Wolens and Morales, are expressly preempted by the ADA, because it represents a direct effort to regulate the manner in which JetBlue communicates with its customers in connection with reservations and ticket sales, both of which are services provided by the airline to its customers. See In re Northwest, 2004 WL 1278459, at *4 (privacy policy-related claims under the Minnesota Deceptive Trade Practices Act “at least relate to Northwest’s services”); Copeland, No. 04-2156 Ml/v, at 8 (claims against Northwest under the Tennessee Consumer Protection Act concerning disclosure of passengers’ personal information are expressly preempted by the ADA); Travel All Over The World, 73 F.3d at 1434 (airline “services” include ticketing as well as the transportation itself); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc) (ticketing is an element of the air carrier service bargain that Congress intended to deregulate and broadly protect from state regulation). Where a state law claim is said to relate to an airline service, courts in this and other circuits apply a tripartite test for preemption set forth in Rombom v. United Air Lines, Inc., 867 F.Supp. 214 (S.D.N.Y.1994) (Sotomayor, D.J.). See Donkor v. British Airways, Corp., 62 F.Supp.2d 963, 972 n. 5 (E.D.N.Y.1999) (collecting federal district court and appellate cases that cite the Rombom test). First, a court must determine “whether the activity at issue in the claim is an airline service.” Rombom, 867 F.Supp. 214 at 221. Second, “[i]f the activity impli cates a service, the court must then determine whether the claim affects the airline service directly or tenuously, remotely, or peripherally.” Id. at 222. If the effect is only incidental, the state law claim is not preempted. Id. Where the activity in question directly implicates a service, the court should proceed to the third prong of the preemption inquiry, “whether the" }, { "docid": "18190446", "title": "", "text": "(ticketing is an element of the air carrier service bargain that Congress intended to deregulate and broadly protect from state regulation). Where a state law claim is said to relate to an airline service, courts in this and other circuits apply a tripartite test for preemption set forth in Rombom v. United Air Lines, Inc., 867 F.Supp. 214 (S.D.N.Y.1994) (Sotomayor, D.J.). See Donkor v. British Airways, Corp., 62 F.Supp.2d 963, 972 n. 5 (E.D.N.Y.1999) (collecting federal district court and appellate cases that cite the Rombom test). First, a court must determine “whether the activity at issue in the claim is an airline service.” Rombom, 867 F.Supp. 214 at 221. Second, “[i]f the activity impli cates a service, the court must then determine whether the claim affects the airline service directly or tenuously, remotely, or peripherally.” Id. at 222. If the effect is only incidental, the state law claim is not preempted. Id. Where the activity in question directly implicates a service, the court should proceed to the third prong of the preemption inquiry, “whether the underlying tortious conduct was reasonably necessary to the provision of the service.” Id. If the challenged conduct did not occur during the course of the service in question or did not further the provision of the service in a reasonable manner, then there is no express preemption and the state court action should continue. Id. The Rombom court observed that this three-factor analysis is important because “[c]on-fining the question of whether the tasks implicated in the complaint ... are services under the [ADA] is inadequate.” Id. at 221. “The manner in which an ... activity is conducted also bears on the question of preemption.” Id. Applying the Rombom test to the facts of this case, the first prong is clearly satisfied. As this claim concerns the lawfulness of representations made by Jet-Blue in the course of communicating with potential passengers, the relevant activity for purposes of preemption analysis is the provision of reservations and the sale of tickets to travel with JetBlue. In arguing that the service in question is the disclosure of passenger data" }, { "docid": "21895902", "title": "", "text": "the flight crew when they had her arrested out of spite. Analyzing each of these actions in turn, I find only Rombom’s last claims to be actionable. 1. Claims Based on Rude and Unprofessional Service Prior to the Captain’s Decision to Return to the Gate All of Rombom’s claims arising out of the rude and unprofessional way she was told to be quiet concern services within the meaning of that term under § 1805, and therefore satisfy the first prong of the preemption analysis. Even under the narrowest definition of services, a flight attendant who asks for quiet so that others may hear safety instructions is clearly performing a service. Indeed, plaintiff does not dispute that the purpose of the reprimands was to promote flight safety. This set of claims also satisfies the second prong of the analysis. Because Rombom’s allegations openly attack the manner in which the flight crew provided a service, her claims directly implicate a service. See Williams at 833 (claims stemming from airline’s refusal to allow passenger to board directly implicate airline services because they “immediately arise from the denial, or allegedly inadequate provision of, such services.”). Rombom’s claims based on the rudeness of the flight crew do not, however, survive the scrutiny of the third prong. As noted, plaintiff does not dispute that the flight attendants were performing a service when they asked Rombom to be quiet so that all the passengers could hear the safety instructions. All that plaintiff alleges is that the crew delivered these reprimands in a rude manner. See Augustin Aff. at ¶ 10 (“[t]he stewardess treated all of us like school children.”). While the manner in which the flight crew may have reprimanded Rombom may not have been ideal, even when viewed in the light most favorable to Rombom, the actions of the flight crew cannot be categorized as outrageous or unreasonable. Thus, I find that § 1305 preempts claims for any emotional or other type of injury suffered as a result of the reprimands Rombom received before the pláne returned to the gate. 2. Claims Based on the Pilot’s" }, { "docid": "16961954", "title": "", "text": "Delta Air Lines, Inc., 735 F.Supp. 1030, 1031 (S.D.Fla.1990). See also Abdu-Brisson v. Delta Air Lines, Inc., No. 96-7721, 128 F.3d 77, 83-84, 1997 WL 631842, at *5 (2d Cir. Oct.15, 1997) (“The ‘related to’ language of the ADA provides neither a predictable nor practical formula for distinguishing preempted from non-preempted state and local laws____”). In fact, I have previously adopted a definition of service that includes activities that eleai’ly have ties to the economy of the industry such as overbooking and bumping. See Lanza v. American Airlines, No. 93-CV-4246(JMA), (E.D.N.Y. May 23, 1996) (memo & order). Hence, in this case defendant American Airlines contends that plaintiffs’ claims are preempted because they are connected to services that the airline provides, specifically, ticketing, seating, and upgrade procedures. But while some courts have made the preemption determination solely by deciding whether the airline’s con duct directly relates to a service, a recent trend suggests that the service definition is only one element of the analysis. See Peterson, 970 F.Supp. at 250-51; Rombom, 867 F.Supp. at 221-22. In Rombom v. United Air Lines, Inc., 867 F.Supp. 214 (S.D.N.Y.1994), Judge Sotoma-yor set forth a tripartite test for preemption. The Court must first determine whether the activity at issue in the claim is a service. If the activity is deemed to be a service, the court must then ascertain whether the claim affects the airline service directly or tenuously, remotely, or peripherally. Finally, the Court must determine whether the underlying tortious conduct was reasonably necessary to the provision of the service. Id. at 222. The Court warned that “[I]f the tortious act did not occur during the service ... or ... did not further the provision of a service in a reasonable manner, then the state tort claim should continue.” Id. The Rombom test has been employed recently by other judges within this Circuit. See, e.g.,. Peterson, 970 F.Supp. at 250-251; Von Hundertmark, 1996 WL 118538, at *6. Application of the Rombom test clearly indicates that plaintiffs claims should be preempted. First, the activities at issue in plaintiffs claim, that is the agent’s refusal to" }, { "docid": "21895901", "title": "", "text": "asks the offending passenger to be quiet in order to finish the instructions, the passenger refuses, and the attendant shoots the passenger to obtain quiet, would the passenger’s state tort claim be preempted under § 1305? Counsel for United had great difficulty answering this hypothetical, and conceded the need to proffer an analysis of § 1305 that would distinguish shooting a passenger and asking for quiet in a rude or unprofessional manner. Transcript of Oral Argument, dated July 8,1994, at 32. Indeed, it would be illogical to assume that Congress intended to preempt a subsequent tort suit where a flight crew member performs a service in an unreasonable and unnecessary manner. Rombom’s tort claims center around three chronologically distinct actions taken by the flight crew. First, Rombom complains that the flight crew, especially Cunningham, acted in a “rude” and “unprofessional” manner when they told her to be quiet. The second activity for which Rombom seeks to recover is the pilot’s decision to return to the gate. Finally, Rombom argues that tortious acts were committed by the flight crew when they had her arrested out of spite. Analyzing each of these actions in turn, I find only Rombom’s last claims to be actionable. 1. Claims Based on Rude and Unprofessional Service Prior to the Captain’s Decision to Return to the Gate All of Rombom’s claims arising out of the rude and unprofessional way she was told to be quiet concern services within the meaning of that term under § 1805, and therefore satisfy the first prong of the preemption analysis. Even under the narrowest definition of services, a flight attendant who asks for quiet so that others may hear safety instructions is clearly performing a service. Indeed, plaintiff does not dispute that the purpose of the reprimands was to promote flight safety. This set of claims also satisfies the second prong of the analysis. Because Rombom’s allegations openly attack the manner in which the flight crew provided a service, her claims directly implicate a service. See Williams at 833 (claims stemming from airline’s refusal to allow passenger to board directly implicate" }, { "docid": "11418784", "title": "", "text": "at 222. If, in contrast, the service was provided in a reasonable manner, then preemption is appropriate. It is clear that the first prong of the preemption inquiry is satisfied in the present case. A flight crew’s conduct during the boarding stage of a flight, specifically, flight attendants’ efforts to locate appropriate seat assignments and resolve seat conflicts, constitutes an airline service within the meaning of Section 41713. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (air carrier service includes, inter alia, ticketing boarding procedures, baggage handling and provision of food and drink). Whether the requirements of the second prong are met, however, proves to be a more difficult question. Continental argues that Peterson’s allegations are based merely on the manner in which the flight attendants provided this service, and thus that her tort claims affect the service directly rather than tenuously. Such an interpretation of Peterson’s claims weighs in favor of preemption. Yet the very nature of Peterson’s allegations, ie., intentional infliction of emotional distress and civil rights violations, suggest that Continental acted outside the scope of its authority. Thus, because Peterson’s claims are based on the notion that Continental abused its authority to provide a given service, preemption under Section 41713 is not warranted. See id. at 224 (“Because the flight crew’s decision to have [plaintiff] arrested was allegedly motivated by spite or some unlawful purpose, [plaintiff’s subsequent tort claims arising out of this decision are at best tenuously related to an airline service.”). Even assuming that Peterson’s claims directly implicate an airline service, Continental’s preemption argument fails under the third prong of the inquiry because the issue of whether Continental acted reasonably remains in dispute. Under Peterson’s version of the facts surrounding her arrest, Continental cannot be said to have provided any airline service in a reasonable manner. Specifically, Peterson claims that after the seat conflict arose, she was directed to leave the airplane without explanation. Moreover, Peterson argues that by contacting the police without justification, the flight crew acted in an abusive, unprofessional and malicious manner. As such, Peterson’s claims allege “outrageous" }, { "docid": "16137492", "title": "", "text": "claim affects the airline service “directly or tenuously, remotely or peripherally.” Id. at 222. Finally, the Court must decide whether “the underlying tortious conduct was reasonably necessary to the provision of the service.” Id. “[I]f the tortious act did not occur during the service ... or ... did not further the provision of the service in a reasonable manner, then the state tort claim should continue.” Id. In Rombom, a passenger aboard a United Air Lines flight was removed from the plane after she allegedly “misbehaved” while the flight attendant was giving flight safety instructions and was subsequently arrested by the Chicago Police Department. She sued the airline, claiming that the flight attendant was rude, and that the airline employee’s actions caused her “great mental and physical distress, of a temporary and permanent nature, was humiliated, made sick and injured her character and reputation.” Rombom, 867 F.Supp. at 217. Applying the tripartite test, the court found that claims stemming from the flight crew’s rude and unprofessional conduct and claims based on the pilot’s refusal to transport her were preempted by the 1978 Act. Noting that the decision whether to transport a given passenger in order to protect other passengers constitutes a “service,” the court reasoned that “the decision to have a passenger arrested may be a service if it is the only way to remove a passenger who refuses to disembark.” Id. at 224. To the extent plaintiff Rombom’s claims stemmed from her arrest, which was subsequent to her departure from the plane, and therefore only tenuously related to the pilot’s “service” of protecting other passengers— i.e. “where the essence of the claim is that the air carrier abused its authority to provide a given service” — the court found that her claims were not preempted. Using the Rombom test, I find that all of Plaintiffs state tort claims, except her defamation claim, are preempted. First, the Captain’s decision to refuse to transport Plaintiff constitutes a “service” under the 1978 Act. Rombom, 867 F.Supp. at 223. Second, the alleged emotional and physical harm suffered by Plaintiff was a direct result" } ]

[ { "docid": "22636317", "title": "", "text": "regulation relies upon “the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude [enumerated categories of] inmates.” Id., at 53690. The regulation, designed to achieve consistent administration of the incentive, now provides: “(a) Additional early release criteria. (1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release: “(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses; “(vi) Inmates whose current offense is a felony: “(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon . . . .” 28 CFR § 550.58(a) (2000). In sum, the 1995 rule defined the statutory term “prisoner convicted of a nonviolent offense” to exclude categorically an inmate who possessed a firearm in connection with his offense. The current regulation categorically excludes such an inmate, not because § 3621(e)(2)(B) so mandates, but pur suant to the Bureau’s asserted discretion to prescribe additional early release criteria. Drug traffickers who possess firearms when they engage in crimes are no longer characterized as “violent” offenders within the meaning of the statute. But they are bracketed, for sentence reduction purposes, with persons currently incarcerated for “nonviolent offense[sj” who in the past committed crimes qualifying as violent. The preconviction conduct of both armed offenders and certain redicivists, in the Bureau’s view, “suggests] that they pose a particular risk to the public.” Brief for Respondents 30. B In 1997, petitioner Christopher A. Lopez was convicted of possession with intent to distribute methamphetamine, in violation of 21 U. S. C. §841. Upon finding that Lopez possessed a firearm in connection with his offense, the District Court enhanced his sentence by two levels pursuant to USSG §2D1.1(b)(1). Lopez is currently scheduled to be released from prison in June 2002. While incarcerated, Lopez requested substance abuse treatment. The Bureau found him qualified for its residential drug abuse program, but categorically ineligible, under 28 CFR § 550.58(a)(1)(vi), for early release." } ]

[ { "docid": "1956024", "title": "", "text": "of the 1995 regulation, the Courts of Appeals reached differing conclusions on the question of whether the Bureau had discretion to further defíne a crime of violence as an offense involving a firearm, and thus exclude from eligibility for the early release incentive those prisoners who were incarcerated for such offenses. See Lopez v. Davis, 531 U.S. 230, 234-35, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). In light of the split among the Circuits, the Bureau promulgated an interim regulation, which is the subject of this litigation, on October 15, 1997 and made the regulation effective approximately one week prior, on October 9, 1997. 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997); 62 Fed.Reg. 53,690. The 1997 interim regulation, like the one it superceded, made ineligible for the early release incentive those prisoners currently incarcerated for an offense that involved the possession, use, or carrying of a firearm. 28 C.F.R. § 550.58(a)(1)(vi)(B). The 1997 interim regulation differs from the 1995 regulation by relying on “the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude [enumerated categories of] inmates,” 62 Fed.Reg. at 53,690, rather than defining the statutory terms “prisoner convicted of a nonviolent offense” or “crime of violence.” The commentary accompanying the 1997 interim regulation noted that the Bureau was “publishing this change as an interim rule in order to solicit public comment while continuing to provide consideration for early release to qualified inmates.” 62 Fed.Reg. at 53,690. However, the effect of the implemented interim regulation was to deny program eligibility to certain categories of inmates, including the petitioners. The commentary further provided that comments on the interim rule were due on December 15,1997, and that the comments would be considered before final action was taken. Id. On December 22, 2000, the Bureau replaced the 1997 interim regulation with a final regulation, which adopted the 1997 regulation without change. See 65 Fed.Reg. 80,745. The commentary accompanying the final regulation noted that the Bureau had received approximately 150 comments from individuals and organizations, 138 of them identical. Id. at 80,747. The Bureau’s summary of those comments" }, { "docid": "22636313", "title": "", "text": "Justice Ginsburg delivered the opinion of the Court. Congress has provided, in 18 U. S. C. § 3621(e)(2)(B), that the Bureau of Prisons (Bureau or BOP) may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony, if the prisoner successfully completes a substance abuse program. The Bureau’s implementing regula tion categorically denies early release to prisoners whose current offense is a felony attended by “the carrying, possession, or use of a firearm.” 28 CFR § 550.58(a)(1)(vi)(B) (2000). The validity of the Bureau’s regulation is the question presented in this case. We hold, in accord with the Court of Appeals for the Eighth Circuit, that the regulation is a permissible exercise of the Bureau’s discretion under 18 U.S. C. § 3621(e)(2)(B). I A Title 18 U. S. C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute to provide that “[t]he Bureau shall. .. make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Pub. L. 101-647, §2903, 104 Stat. 4913. Four years later, Congress again amended § 3621, this time to provide incentives for prisoner participation in BOP drug treatment programs. The incentive provision at issue reads: “The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” Pub. L. 103-322, §32001, 108 Stat. 1897 (codified at 18 U. S. C. § 3621(e)(2)(B)). In 1995, the Bureau published a rule to implement the early release incentive. 60 Fed. Reg. 27692-27695; 28 CFR § 550.58. Because the statute explicitly confined the incentive to prisoners convicted of “nonviolent offensefs],” 18 U. S. C. § 3621(e)(2)(B), the BOP ranked ineligible for early release all inmates currently incarcerated for “crime[s] of violence,” 60 Fed. Reg. 27692. As explained in the Bureau’s program statement, the BOP defined “crimes of violence” to include a drug trafficking" }, { "docid": "22191763", "title": "", "text": "Release Qualifications Chapter of its Drug Abuse Manual, in which it declared, as pertinent here: As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release ... [ijnmates whose current offense is a felony ... that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device).... CN — 03, P.S. 5330.10 (October 9,1997). On October 15, 1997, the Bureau also published an interim regulation, in which it explained, in pertinent part, that: This interim rule avoids this complication [various court decisions] by using the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude inmates whose current offense is a felony ... that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device).... Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed.Reg. 53690 (1997) (interim rule). True to its explanation, the rule provided that “as an exercise of discretion ... inmates whose current offense is a felony ... that involved the carrying, possession, or use of a firearm” were categorically excluded from early release. Id. at 53691, 28 C.F.R. § 550.58(a)(l)(vi)(B). The Gavis Group claimed that the Bureau exceeded its authority when it adopted that position. The district court agreed. See Gavis I, 28 F.Supp.2d at 1266-67. Of course, if that is so, the Bowen Group would also be entitled to relief. For its part, however, the Bowen Group specifically asserted that the Bureau exceeded its authority because it retroactively applied that position to the members of the group. Each had previously received a provisional favorable eligibility determination, but had not yet entered the program. Again, the district court agreed. See Bowen I, 22 F.Supp.2d. at 1135. These appeals followed. III. JURISDICTION AND STANDARDS OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 2241. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 & 2253(a). We" }, { "docid": "1956023", "title": "", "text": "statute in 1994 to provide federal prisoners with incentives to complete a Bureau substance abuse treatment program by authorizing the reduction of incarceration for prisoners “convicted of a nonviolent offense” who successfully completed such a program. The incentive provision reads: “The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 32001, 108 Stat. 1796, 1897 (codified at 18 U.S.C. § 3621(e)(2)(B)). The Bureau published a regulation to implement the early release incentive one year later. The Bureau defined prisoners who had not been convicted of a nonviolent offense and thus were ineligible for early release as those prisoners who were currently incarcerated for committing a crime of violence as defined in 18 U.S.C. § 924(c)(3). 28 C.F.R. § 550.58 (1995); see 60 Fed.Reg. 27,692, at 27,695. Following the promulgation of the 1995 regulation, the Courts of Appeals reached differing conclusions on the question of whether the Bureau had discretion to further defíne a crime of violence as an offense involving a firearm, and thus exclude from eligibility for the early release incentive those prisoners who were incarcerated for such offenses. See Lopez v. Davis, 531 U.S. 230, 234-35, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). In light of the split among the Circuits, the Bureau promulgated an interim regulation, which is the subject of this litigation, on October 15, 1997 and made the regulation effective approximately one week prior, on October 9, 1997. 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997); 62 Fed.Reg. 53,690. The 1997 interim regulation, like the one it superceded, made ineligible for the early release incentive those prisoners currently incarcerated for an offense that involved the possession, use, or carrying of a firearm. 28 C.F.R. § 550.58(a)(1)(vi)(B). The 1997 interim regulation differs from the 1995 regulation by relying on “the discretion allotted to the Director of the Bureau of Prisons in granting a" }, { "docid": "22636314", "title": "", "text": "of substance addiction or abuse.” Pub. L. 101-647, §2903, 104 Stat. 4913. Four years later, Congress again amended § 3621, this time to provide incentives for prisoner participation in BOP drug treatment programs. The incentive provision at issue reads: “The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” Pub. L. 103-322, §32001, 108 Stat. 1897 (codified at 18 U. S. C. § 3621(e)(2)(B)). In 1995, the Bureau published a rule to implement the early release incentive. 60 Fed. Reg. 27692-27695; 28 CFR § 550.58. Because the statute explicitly confined the incentive to prisoners convicted of “nonviolent offensefs],” 18 U. S. C. § 3621(e)(2)(B), the BOP ranked ineligible for early release all inmates currently incarcerated for “crime[s] of violence,” 60 Fed. Reg. 27692. As explained in the Bureau’s program statement, the BOP defined “crimes of violence” to include a drug trafficking conviction under 21 U. S. C. § 841, if the offender received a two-level sentence enhancement under United States Sentencing Commission, Guidelines Manual (USSG) §2D1.1(b)(1) (Nov. 2000), for possessing a dangerous weapon during commission of the drug offense. Bureau of Prisons Program Statement No. 5162.02, § 9 (July 24, 1995), reprinted in App. to Brief for Petitioner 17-18. “[E]xercising [its] discretion in reducing a sentence,” the Bureau also excluded from early release eligibility inmates who had a prior conviction “for homicide, forcible rape, robbery, or aggravated assault.” 60 Fed. Reg. 27692 (codified at 28 CFR §550.58 (1995)). The Courts of Appeals divided over the validity of the Bureau’s definition of crimes of violence to include drug offenses that involved possession of a firearm. A majority of Circuits, including the Eighth, held that § 3621(e)(2)(B) required the Bureau to look only to the offense of conviction (drug trafficking), and not to sentencing factors (firearm possession), in determining whether an offender was convicted of a “nonviolent offense,” and was therefore eligible under the statute for the early" }, { "docid": "17561597", "title": "", "text": "C.F.R. § 550.58 defined crimes of violence by reference to 18 U.S.C. § 924(c)(3), which contains no language that would include mere possessory offenses, that section now specifically renders ineligible for early release any felony inmate whose offense “involved the carrying, possession, or use of a firearm....” 28 C.F.R. § 550.58(a)(l)(vi)(B) (emphasis added). II. 18 U.S.C. § 3621(e)(1)(C), passed in 1994, requires that “the Bureau of Prisons ... provide residential substance abuse treatment ... for all eligible prisoners by the end of fiscal year 1997....” As an incentive for prisoner participation in such treatment programs, the statute allows an inmate convicted of a “nonviolent offense” to receive a reduction in sentence of up to one year. 18 U.S.C. § 3621(e)(2)(B). Nothing in the statute requires the BOP to grant early release to any eligible prisoner. Thus, it suggests that the agency has substantial discretion in its deci-sionmaking. Because the statute does not define “nonviolent offense,” the BOP chose to define the term by looking to what are not nonviolent offenses, ie., crimes of violence. This court, as well as a number of other courts, has held that in interpreting the otherwise undefined term “nonviolent offense,” courts must do so by reference to the term “crime of violence.” See United States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989); United States v. Mayotte, 76 F.3d 887, 889 (8th Cir.1996); United States v. Dailey, 24 F.3d 1323, 1325-26 (11th Cir.1994); United States v. Poff, 926 F.2d 588, 592 (7th Cir.1991); United States v. Russell, 917 F.2d 512, 517 (11th Cir.1990); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir.1990); United States v. Rosen, 896 F.2d 789, 791 (3d Cir.1990). The agency therefore initially adopted the definition of crime of violence set forth in 18 U.S.C. § 924(e)(3). 28 C.F.R. § 550.58 (1997), amended by 62 Fed.Reg. 53,691 (1997)(to be codified at 28 C.F.R. § 550.58). Under that regulation, a prisoner was expressly ineligible for early release if his offense was a felony (1) that “ha[d] as an element the use, attempted use, or threatened use of physical force against the person" }, { "docid": "23446965", "title": "", "text": "REINHARDT, Circuit Judge: This case is the most recent in a series of challenges to the Bureau of Prisons’ (“Bureau” or “BOP”) implementing regulation governing early release of prisoners who successfully complete a residential substance abuse program. The relevant statute provides that the Bureau may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony if the prisoner successfully completes such a program. 18 U.S.C. § 3621(e)(2)(B). The Bureau’s implementing regulation categorically excludes from eligibility for early release under the law those whose “current offense is a felony.... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives[.]” 28 C.F.R. § 550.58(a)(l)(vi)(B)(2000). The question presented is whether the Bureau of Prisons violated Section 706(2)(A) of the Administrative Procedure Act (“APA”) when it promulgated this regulation. We hold that it did. I. Factual and Procedural Background Title 18 U.S.C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute by directing the Bureau of Prisons to provide residential substance abuse treatment programs for prisoners determined to have a treatable condition of substance addiction or abuse. Crime Control Act of 1990, Pub.L. No. 101-647, § 2903, 104 Stat. 4789, 4913 (codified at 18 U.S.C. § 3621(b)). Four years later, in response to under-utilization of treatment programs, Congress again amended the statute to provide an early release incentive to encourage prisoner participation. Violent Crime Control and Law Enforcement Act of 1994, 103 Pub.L. No. 322, § 32001, 108 Stat. 1796, 1896-97. The statute provides that the Bureau may reduce by up to one year the sentence of a prisoner who (1) was convicted of a nonviolent offense and (2) successfully completes a program of residential substance abuse treatment. 18 U.S.C. § 3621(e)(2)(B). In May 1995, the Bureau promulgated its first rule and corresponding regulation detailing procedures to determine eligibility for early release under § 3621(e). 60 Fed.Reg. 27692 (May 25, 1995); 28 C.F.R. § 550.58 (1995). In defining “non-violent offense,” the Bureau relied on the definition of “crime of violence” contained in 18" }, { "docid": "22191797", "title": "", "text": "well be that the Bureau’s position is good public policy, but that is not for the Bureau — or this Court for that matter — to decide. That is a judgment reserved to the wisdom of Congress. The Bureau cannot categorically declare ineligible those inmates that Congress categorically declared eligible. Thus, I respectfully dissent from the judgment as it applies to the Gavis Group. . As of 1997, 63% of federal prisoners were imprisoned on drug-related offenses; more than a third admitted being under the influence of drugs or alcohol when they committed the crimes that caused their incarceration. See Christopher J. Mumola, U.S. Dep’t of Justice, Substance Abuse and Treatment, State and Federal Prisoners, 1997, at 1-2 (1999). . For example, preliminary results for a study conducted for the Bureau of Prisons indicates that inmates who completed prison substance abuse treatment programs were 73% less likely to be re-arrested with in the first six months after release than those who did not receive the treatment. See Federal Bureau of Prisons Office of Research and Evaluation, TRIAD Drug Treatment Evaluation Project: Six-Month Interim Report, at 1 (1998). Earlier studies had reported similar results. See, e.g. Dess A. Grangetto, Reducing Recidivism by Substance Abusers who Commit Drug and Alcohol Related Crimes, 10 J. Contemp. Legal Issues 383, 393 (1999). . In this regulation, as it had previously, the Bureau listed several offenses, categorized as \"crimes of violence,” that are excludable from early-release eligibility. See Federal Bureau of Prisons Program Statement 5162.04 §§ 1-2, §§ 5-6, § 9. The Bureau separately denied early release eligibility to inmates who committed an offense falling within a category \"identified at the discretion of the Director of the Bureau of Prisons.” Id. at §§ 1-2, § 7; see 28 C.F.R. § 550.58(a)(l)(vi)(B). Among the offenses excludable under the Director's discretionary authority include, as before, inmates \"whose current offense is a felony that ... involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives ...\" Id. at § 7. . As the majority points out, it is beyond cavil that the Bureau" }, { "docid": "22191791", "title": "", "text": "Bureau may avoid the Congressional directive that non-violent offenders be eligible for sentence reductions by categorically excluding inmates convicted of certain non-violent crimes under the guise of exercising its discretionary authority to grant sentence reductions under 18 U.S.C. § 3621(e). The majority answers this question in the affirmative. I would join the Tenth and Eleventh Circuits in concluding otherwise. Faced with a burgeoning federal prison population incarcerated for drug-related offenses and evidence that prison substance abuse treatment programs sharply reduce recidivism, Congress has required the Bureau to provide substance abuse treatment to federal inmates for whom the Bureau determines has a treatable condition of substance addiction or abuse. 18 U.S.C. § 3621(b). Concerned by an apparent lack of program interest, Congress amended the statute in 1994 to provide an incentive to inmates to enter and participate in a substance abuse treatment program. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322,108 Stat. 1796 (1994). The carrot Congress provided, which is the subject of this litigation, allows the Bureau to reduce by up to one year the period that a prisoner “convicted of a nonviolent offense remains in custody after successfully completing a treatment program.” 18 U.S.C. § 3621(e)(2)(B). From the inception of the early release program, the Bureau has pertinaciously insisted that inmates who possessed, carried, or used a firearm during the commission of their crime or who received sentence enhancements because of firearm possession should not be eligible for early release. At first, the Bureau implemented this position by adopting a regulation after public notice and comment excluding from early release eligibility any prisoner whose offense was a “crime of violence” as set forth under 18 U.S.C. § 924(c)(3). See 28 C.F.R. § 550.58 (1995). In subsequent program statements, the Bureau interpreted “crime of violence” to include both felon firearm possessors and prisoners whose sentences were enhanced because of firearm possession. See Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997); Downey v. Crabtree, 100 F.3d 662, 668-69 (9th Cir.1996). Upon challenge, however, we found the Bureau’s position to be untenable by hold ing that" }, { "docid": "22636315", "title": "", "text": "conviction under 21 U. S. C. § 841, if the offender received a two-level sentence enhancement under United States Sentencing Commission, Guidelines Manual (USSG) §2D1.1(b)(1) (Nov. 2000), for possessing a dangerous weapon during commission of the drug offense. Bureau of Prisons Program Statement No. 5162.02, § 9 (July 24, 1995), reprinted in App. to Brief for Petitioner 17-18. “[E]xercising [its] discretion in reducing a sentence,” the Bureau also excluded from early release eligibility inmates who had a prior conviction “for homicide, forcible rape, robbery, or aggravated assault.” 60 Fed. Reg. 27692 (codified at 28 CFR §550.58 (1995)). The Courts of Appeals divided over the validity of the Bureau’s definition of crimes of violence to include drug offenses that involved possession of a firearm. A majority of Circuits, including the Eighth, held that § 3621(e)(2)(B) required the Bureau to look only to the offense of conviction (drug trafficking), and not to sentencing factors (firearm possession), in determining whether an offender was convicted of a “nonviolent offense,” and was therefore eligible under the statute for the early release incentive. Martin v. Gerlinski, 133 F. 3d 1076, 1079 (CA8 1998); see also Fristoe v. Thompson, 144 F. 3d 627, 631 (CA10 1998); Byrd v. Hasty, 142 F. 3d 1395, 1398 (CA11 1998); Roussos v. Menifee, 122 F. 3d 159, 164 (CA3 1997); Downey v. Crabtree, 100 F. 3d 662, 668 (CA9 1996). The Fourth and Fifth Circuits, however, upheld the Bureau’s classification of drug offenses attended by firearm possession as violent crimes. Pelissero v. Thompson, 170 F. 3d 442, 447 (CA4 1999); Venegas v. Henman, 126 F. 3d 760, 763 (CA5 1997). This split among the Circuits prompted the Bureau in 1997 to publish the regulation now before the Court. See 62 Fed. Reg. 53690-53691. Like the 1995 rule, the current regulation excludes from early release eligibility offenders who possessed a firearm in connection with their offenses. In contrast to the earlier rule, however, the 1997 regulation does not order this exclusion by defining the statutory term “prisoner convicted of a nonviolent offense” or the cognate term “crimes of violence.” Instead, the current" }, { "docid": "23446970", "title": "", "text": "prisoners eligible for early release under § 3621(e). See Bellis v. Davis, 186 F.3d 1092, 1095 (8th Cir.1999); Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir.2000). Two circuit courts reached the contrary result. See Ward v. Booker, 202 F.3d 1249, 1256-57 (10th Cir.2000); Kilpatrick v. Houston, 197 F.3d 1134, 1135 (11th Cir.1999). The Supreme Court granted certiorari to resolve the circuit split. In Lopez v. Davis, the Court upheld the validity of the 1997 interim rule, reasoning that the Bureau permissibly exercised the discretion afforded the agency by the statute to narrow the class of prisoners eligible for early release. 531 U.S. 230, 239-41, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). Four years later, we struck down the rule on procedural grounds, holding that the Bureau failed to comply with the APA’s notice and comment provisions. Paulsen v. Daniels, 413 F.3d 999, 1004 (9th Cir.2005) (holding “[t]he Bureau plainly violated [Section 553 of] the APA in its promulgation of the 1997 interim regulation”). In December 2000, the Bureau promulgated a final rule. The final rule, identical to the 1997 interim rule, relied on the Bureau’s discretion to narrow the class of prisoners eligible for early release by excluding those convicted of offenses involving the carrying, possession, or use of a firearm or other dangerous weapon or explosives. 65 Fed.Reg. 80745, 80747-748 (Dec. 22, 2000) (stating that “Congress did not mandate that all eligible inmates must receive the early release incentive. The reduction in sentence is an incentive to be exercised at the discretion of the Bureau of Prisons”). The Bureau offered the following explanation for its rule: The first interim rule attempted to define the term “crime of violence” pursuant to 18 U.S.C. § 924(c)(3). Due to varying interpretations of the regulation and caselaw, the Bureau could not apply the regulation in- a uniform and consistent manner. The third interim rule sought to resolve this complication. In the third interim rule, we used the discretion allotted to the Director for granting a sentence reduction to exclude inmates whose current offense is a felony ... that involved the carrying, possession," }, { "docid": "23446966", "title": "", "text": "provide residential substance abuse treatment programs for prisoners determined to have a treatable condition of substance addiction or abuse. Crime Control Act of 1990, Pub.L. No. 101-647, § 2903, 104 Stat. 4789, 4913 (codified at 18 U.S.C. § 3621(b)). Four years later, in response to under-utilization of treatment programs, Congress again amended the statute to provide an early release incentive to encourage prisoner participation. Violent Crime Control and Law Enforcement Act of 1994, 103 Pub.L. No. 322, § 32001, 108 Stat. 1796, 1896-97. The statute provides that the Bureau may reduce by up to one year the sentence of a prisoner who (1) was convicted of a nonviolent offense and (2) successfully completes a program of residential substance abuse treatment. 18 U.S.C. § 3621(e)(2)(B). In May 1995, the Bureau promulgated its first rule and corresponding regulation detailing procedures to determine eligibility for early release under § 3621(e). 60 Fed.Reg. 27692 (May 25, 1995); 28 C.F.R. § 550.58 (1995). In defining “non-violent offense,” the Bureau relied on the definition of “crime of violence” contained in 18 U.S.C. § 924(c)(3). The regulation rendered ineligible for early release those “inmates whose current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3).” 28 C.F.R. § 550.58 (1995). In a program statement issued several months later, the Bureau purported to further restrict eligibility under the statute by categorizing as “crimes of violence” firearms convictions under 18 U.S.C. § 922(g) as well as drug trafficking convictions under 21 U.S.C. § 841 or § 846, if the offender received a two-level enhancement for weapons possession under United States Sentencing Commission Guidelines Manual § 2D1.1(b)(1). Bureau of Prisons Program Statement No. 5162.02, §§ 7, 9 (July 24, 1995). We subsequently held that neither of these disqualifications was for a “crime[] of violence” under the statutory definition contained in § 924(c)(3). See Davis v. Crabtree, 109 F.3d 566, 568-70 (9th Cir.1997); Downey v. Crabtree, 100 F.3d 662, 666-70 (9th Cir.1996). We concluded that the Bureau must consider eligible for early release as nonviolent offenders those with convictions under 18 U.S.C. § 922(g)" }, { "docid": "1956025", "title": "", "text": "sentence reduction to exclude [enumerated categories of] inmates,” 62 Fed.Reg. at 53,690, rather than defining the statutory terms “prisoner convicted of a nonviolent offense” or “crime of violence.” The commentary accompanying the 1997 interim regulation noted that the Bureau was “publishing this change as an interim rule in order to solicit public comment while continuing to provide consideration for early release to qualified inmates.” 62 Fed.Reg. at 53,690. However, the effect of the implemented interim regulation was to deny program eligibility to certain categories of inmates, including the petitioners. The commentary further provided that comments on the interim rule were due on December 15,1997, and that the comments would be considered before final action was taken. Id. On December 22, 2000, the Bureau replaced the 1997 interim regulation with a final regulation, which adopted the 1997 regulation without change. See 65 Fed.Reg. 80,745. The commentary accompanying the final regulation noted that the Bureau had received approximately 150 comments from individuals and organizations, 138 of them identical. Id. at 80,747. The Bureau’s summary of those comments did not mention any challenge by any eom-menter to the procedural regularity of the 1997 regulation. See id. at 80,747-80,748. The petitioners are a group of sixteen prisoners or former prisoners who were convicted of various offenses involving the carrying, possession, or use of firearms, and who were sentenced to terms of imprisonment, at least in part, at the Federal Correctional Institution in Sheridan, Oregon (“FCI Sheridan”). Between December 1997 and October 2000, while the petitioners were serving their terms of imprisonment at FCI Sheridan, they were informed that they were eligible to participate in the Bureau’s in-prison substance abuse treatment program. The petitioners were further informed that because their offenses involved the carrying, possession, or use of firearms, they were not eligible for early release under the Bureau’s 1997 interim regulation. Between December 1998 and August 2001, the petitioners filed for habeas corpus relief under 28 U.S.C. § 2241, asserting that they were categorically eligible for a sentence reduction for participation in the treatment program under 18 U.S.C. § 3621(e). After we issued our" }, { "docid": "23221200", "title": "", "text": "to be “based on criteria established and applied by the Bureau of Prisons.” H.R.Rep. 103-320, 103rd Cong., 1st Sess. (1993). For prisoners convicted of “nonviolent” offenses who have successfully completed treatment, the period of continued custody “may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” 18 U.S.C. § 3621(e)(2)(B) (1997) (emphasis added). The Bureau issued regulations governing substance abuse treatment programs, see 28 C.F.R., Subpt. F, § 550.50, et seq., which exclude inmates “whose current offense is determined to be a crime of violence as defined in 18 U.S.C. 924(c)(3)” from eligibility for early release. 28 C.F.R. § 550.58 .(1997). Section 924(c)(3) defines a crime of violence as a felony: (A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3) (1997). Bureau of Prison Program Statement No. 5162.02 explicitly excludes from the category of “nonviolent” offenders eligible for early release those prisoners convicted of possession of a firearm by a convicted felon and those prisoners serving enhanced sentences under United States Sentencing Guideline section 2Dl.l(b)(l) due to possession of a dangerous weapon during the underlying offense. Discussion The Bureau did not exceed its statutory authority by using its discretion to exclude from consideration for early release those prisoners convicted of possession of a weapon by a felon and offenses enhanced under the sentencing guidelines for possession of a weapon. The Bureau of Prisons’ internal agency guidelines, an interpretive rule not subject to the Administrative Procedure Act’s notice-and-comment requirements, is entitled to some deference from a reviewing court as long as the Bureau’s interpretation is based on a “permissible construction of the statute.” Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 2027, 132 L.Ed.2d 46 (1995) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council," }, { "docid": "4849255", "title": "", "text": "regulation and the 1995 program statement defined “crimes of violence” to include .drug-trafficking convictions in which the offender received a two-level enhancement under U.S.S.G. § 2D1.1 for possessing a dangerous weapon during the commission of a drug offense. The circuits were split as to the validity of that provision of 28 C.F.R. § 550.58 and the 1995 program statement; this circuit rejected its validity in Downey, 100 F.3d at 668. The BOP then issued a revised program statement and an amended interim regulation. First, on October 9, 1997, the BOP issued Program Statement 5162.04. That program statement does not define the term “nonviolent offense.” Rather, it states: As an exercise of the discretion vested in the Director [of the BOP], an inmate serving a sentence for an offense that falls under the provisions described below shall be precluded from receiving certain Bureau program benefits [including the sentence-reduction benefit at issue here]. Inmates whose current offense is a felony that: • involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device)!.] A few days later, on October 15, 1997, the BOP published an amended version of 28 C.F.R. § 550.58 which, in relevant part, is almost identical to the 1997 program statement quoted above. 62 Fed.Reg. 53690. That amended interim regulation provided for public comment until December 15, 1997; however, the regulation’s effective date was October 9, 1997. Id. As relevant here, the 1997 program statement and interim regulation both have the same effect as their 1995 predecessors had. Both categorically exclude from the early-release provision of 18 U.S.C. § 3621(e) inmates, like Petitioner, who possessed firearms in connection with certain drug offenses. But rather than accomplishing that result through a definition of “nonviolent offense,” the 1997 program statement and interim regulation both rely on the discretion to grant or deny early release that 18 U.S.C. § 3621(e) vests in the BOP. A number of prisoners challenged the 1997 program statement and interim regulation in district court. Several district courts in this circuit held that the program statement and" }, { "docid": "1956022", "title": "", "text": "THOMAS, Circuit Judge. We consider in this appeal whether the Bureau of Prisons (“Bureau”) violated the Administrative Procedure Act (“APA”) in adopting an interim regulation pertaining to an early release incentive program for federal prisoners who had successfully completed a substance abuse program. We conclude that the district court correctly held that the Bureau violated the APA, and that the petitioners were entitled to relief. I This appeal is the latest chapter in a series of cases concerning a program created by Congress for the purpose of supplying substance abuse treatment to prisoners. In 1990, faced with a burgeoning federal prison population incarcerated for drug-related offenses and evidence that prison substance abuse treatment programs sharply reduce recidivism, Congress required the Bureau to “make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Crime Control Act of 1990, Pub.L. 101-647, § 2903, 104 Stat. 4789, 4913 (codified as amended at 18 U.S.C. § 3621(b)). Concerned by an apparent lack of program interest, Congress amended the statute in 1994 to provide federal prisoners with incentives to complete a Bureau substance abuse treatment program by authorizing the reduction of incarceration for prisoners “convicted of a nonviolent offense” who successfully completed such a program. The incentive provision reads: “The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 32001, 108 Stat. 1796, 1897 (codified at 18 U.S.C. § 3621(e)(2)(B)). The Bureau published a regulation to implement the early release incentive one year later. The Bureau defined prisoners who had not been convicted of a nonviolent offense and thus were ineligible for early release as those prisoners who were currently incarcerated for committing a crime of violence as defined in 18 U.S.C. § 924(c)(3). 28 C.F.R. § 550.58 (1995); see 60 Fed.Reg. 27,692, at 27,695. Following the promulgation" }, { "docid": "17561596", "title": "", "text": "States Sentencing Commission’s definition set forth at USSG § 4B1.2, comment, (n. 2). Finally, Orr alleged that by treating him differently from other nonviolent offenders, the BOP had denied him his right to the equal protection of the laws. The district court dismissed Orr’s petition. It held that: (1) Orr had no liberty interest in his early release and thus stated no due process claim; (2) the BOP’s decision whether to grant early release is not subject to judicial review; (3) applying minimal scrutiny to Orr’s equal protection claim, the “classification” involved is not arbitrary and furthers a legitimate government interest; and (4) the BOP did not exceed its statutory authority by excluding those convicted under 18 U.S.C. § 922(g) from consideration for early release because the BOP could have denied Orr early release for any or no reason even if the agency had not so broadly defined the term “crime of violence.” Since the filing of the briefs in this appeal, the BOP has changed its regulations concerning eligibility for early release. Whereas 28 C.F.R. § 550.58 defined crimes of violence by reference to 18 U.S.C. § 924(c)(3), which contains no language that would include mere possessory offenses, that section now specifically renders ineligible for early release any felony inmate whose offense “involved the carrying, possession, or use of a firearm....” 28 C.F.R. § 550.58(a)(l)(vi)(B) (emphasis added). II. 18 U.S.C. § 3621(e)(1)(C), passed in 1994, requires that “the Bureau of Prisons ... provide residential substance abuse treatment ... for all eligible prisoners by the end of fiscal year 1997....” As an incentive for prisoner participation in such treatment programs, the statute allows an inmate convicted of a “nonviolent offense” to receive a reduction in sentence of up to one year. 18 U.S.C. § 3621(e)(2)(B). Nothing in the statute requires the BOP to grant early release to any eligible prisoner. Thus, it suggests that the agency has substantial discretion in its deci-sionmaking. Because the statute does not define “nonviolent offense,” the BOP chose to define the term by looking to what are not nonviolent offenses, ie., crimes of violence. This" }, { "docid": "22191792", "title": "", "text": "up to one year the period that a prisoner “convicted of a nonviolent offense remains in custody after successfully completing a treatment program.” 18 U.S.C. § 3621(e)(2)(B). From the inception of the early release program, the Bureau has pertinaciously insisted that inmates who possessed, carried, or used a firearm during the commission of their crime or who received sentence enhancements because of firearm possession should not be eligible for early release. At first, the Bureau implemented this position by adopting a regulation after public notice and comment excluding from early release eligibility any prisoner whose offense was a “crime of violence” as set forth under 18 U.S.C. § 924(c)(3). See 28 C.F.R. § 550.58 (1995). In subsequent program statements, the Bureau interpreted “crime of violence” to include both felon firearm possessors and prisoners whose sentences were enhanced because of firearm possession. See Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997); Downey v. Crabtree, 100 F.3d 662, 668-69 (9th Cir.1996). Upon challenge, however, we found the Bureau’s position to be untenable by hold ing that the Bureau cannot define “nonviolent offense” to include firearm possession, either as an element of the criminal offense or for sentence enhancement. See Davis, 109 F.3d at 569; Downey, 100 F.3d at 667-68; compare Warren v. Crabtree, 185 F.3d 1018, 1023 (9th Cir.1999) (Bureau properly determined inmates convicted for use or carrying of a firearm in relation to drug trafficking crime categorically ineligible for a sentence reduction). In part, we so held because “parity of reasoning” from our prior case law dictated that inmates convicted of firearm possession could not be denied sentence-reduction eligibility on the grounds that their offense was not nonviolent. See Davis, 109 F.3d at 569 (quoting Downey, 100 F.3d at 667). In response to Davis and Downey, the Bureau issued an operations memorandum instructing its staff that it could not restrict early release eligibility based on sentence enhancement factors or on an interpretation of “crime of violence” to include felon firearm possession. See Federal Bureau of Prisons Operations Memorandum No. 038-97 (5330) (May 30,1997). The Bureau subsequently amended its regulation and" }, { "docid": "13277261", "title": "", "text": "effective May 25, 1995, the BOP issued Program Statement 5330.10 to outline the qualifications for early release under section 3621(e) and regulation 550.58; the language of the program statement essentially mirrors that in the regulation. See U.S. Dept, of Justice, Bureau of Prisons Program Statement No. 5330.10 (May 25, 1995). In July 1995, the BOP released Program Statement 5162.02, to elaborate the meaning of crime of violence in the context of section 3621. That version of the Program Statement listed 21 U.S.C. § 846, Warren’s offense of conviction, as an offense that could be considered a crime of violence if the facts surrounding the offense demonstrate “substantial risk” that force could have been used during its commission. See U.S. Dept, of Justice, Bureau of Prisons Program Statement No. 5162.02 (July 24, 1995). This was the regulatory framework in place in February 1996 when the BOP first denied Warren consideration for early release under section 3621(e). On April 23, 1996, the BOP clarified its interpretation of crime of violence in Change Notice CN-01 to Program Statement 5162.02. As an example of a prisoner ineligible for early release because of the commission of a crime of violence, the Change Notice described a defendant serving a sentence for drug conspiracy (21 U.S.C. § 846) that had been enhanced for possession of a firearm. See U.S. Dept of Justice, Change Notice CN-01 to Program Statement 5162.02 (April 23, 1996). By May 17, 1996, the BOP had modified 28 C.F.R § 550.58, explaining that “as an ex- erase of the discretion vested in the Director of the Federal Bureau of Prisons,” several categories of prisoners would not be considered for early release. See 28 C.F.R. § 550.58 (1996). The regulation then defined as one such category, “inmates whose current offense is a felony ... that, involved the carrying, possession, or use of a firearm or other dangerous weapon.” Id. at (a)(l)(vi)(B). Though the BOP has made additional clarifications to regulation 550.58 since May 1996, those changes are not relevant to the present appeal. I. Ex Post Facto Claim Imposition of punishment more severe than that" }, { "docid": "13277260", "title": "", "text": "When reviewing the denial of a habeas corpus petition, we review the district court’s determinations of law de novo and its findings of fact for clear error. See Venegas v. Henman, 126 F.3d 760 (5th Cir.1997), cert. denied, 523 U.S. 1108, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998). Since Warren claims the right to early release under section 3621(e), or at least consideration for such release, we begin with a detailed review of that legislation and the BOP’s regulations interpreting it. Section 3621(e)(2)(B), effective September 13, 1994, allows prisoners convicted of “nonviolent” offenses who complete a DAP to apply for a sentence reduction of up to one year at the discretion of the BOP director. See 18 U.S.C. § 3621(e)(2)(b). The statute does not define a nonviolent offense. Effective May 25, 1995, the BOP promulgated regulation 550.58 that defined “nonviolent offense” by identifying as not eligible for early release those inmates whose current offense “is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3).” 28 C.F.R. § 550.58 (1995). Also effective May 25, 1995, the BOP issued Program Statement 5330.10 to outline the qualifications for early release under section 3621(e) and regulation 550.58; the language of the program statement essentially mirrors that in the regulation. See U.S. Dept, of Justice, Bureau of Prisons Program Statement No. 5330.10 (May 25, 1995). In July 1995, the BOP released Program Statement 5162.02, to elaborate the meaning of crime of violence in the context of section 3621. That version of the Program Statement listed 21 U.S.C. § 846, Warren’s offense of conviction, as an offense that could be considered a crime of violence if the facts surrounding the offense demonstrate “substantial risk” that force could have been used during its commission. See U.S. Dept, of Justice, Bureau of Prisons Program Statement No. 5162.02 (July 24, 1995). This was the regulatory framework in place in February 1996 when the BOP first denied Warren consideration for early release under section 3621(e). On April 23, 1996, the BOP clarified its interpretation of crime of violence in Change Notice CN-01 to Program Statement" } ]

[ { "docid": "16708800", "title": "", "text": "on the instructions of Winchester & Co. Lavino’s activities with respect to the Josefina included obtaining stores, arranging for repairs, tugs, and docking, and redelivery of the ship from the charterer. Lavino presumably acted similarly with respect to the Barbara Freitche. Lavino’s last transaction involving either vessel was the sending of the disbursement account of the Josefina on December 26,1956. There was no continuing agency agreement with Lavino, and arrangements were made individually as each ship was bound for Philadelphia. Beyond the facts above stated, the only evidence that Lavino was agent for the defendants at those times consists of statements in the marshal’s returns that Lavino was served “as agent.” F.R.Civ.P. 4(d) (3), 28 U.S.C. authorizes service “Upon a domestic or foreign corporation or upon a partnership * * by delivering [the process] * * * to * * * a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process * * I find this evidence insufficient to establish that at the time when process was served on it Lavino was the agent of Winchester or Liberty, and since it was not then their agent the service was invalid. Holland v. Parry Navigation Co., D.C.E.D.Pa.1947, 7 F.R.D. 471.' The motions of Liberty Navigation and Trading Co., Inc. to set aside service in both actions will be granted. The motion of J. H. Winchester & Co. to set aside service in the civil action will be granted. The motions to dismiss will be refused. Thompson v. Trent Maritime Company, D.C.E.D.Pa.1957, 149 F.Supp. 468. The motion of Liberty Navigation and Trading Co., Inc. for leave to file an amended affidavit is granted." } ]

[ { "docid": "4955751", "title": "", "text": "1946, the date when service was made on Rice, the latter acted on behalf of Parry in connection with seven vessels which arrived in this port. Rice did not act with respect to any vessel with which Parry had any connection between May 12, 1946 and the date of service of process, nor was any vessel with which Parry had any connection in the Port of Philadelphia, or within this jurisdiction, on May 23, 1946. The first contention of the defendant Parry is that it is not doing business in Pennsylvania. However, I think that the facts which I have recited above refute this contention. I do not think that it is possible to lay down any hard and fast rule as to how may vessels operated by a steamship company must call at a port during a given period of time in order to say that the steamship company is “doing business” in the state where the port is located. The test seems to be whether, under the circumstances of a given case, the steamship company’s activities can be said to be continuous, and to follow a regular and habitual pattern, as distinguished from occasional or sporadic activities. Jenkins v. Lykes Bros. S. S. Co., D.C., 48 F.Supp. 848; The Hanover, D.C., 6 F.2d 335; Marcum v. Owens-Parks Lumber Co., D.C., 31 F.Supp. 748. The defendant does not here contend that it is not doing business, qualitatively speaking, in Pennsylvania. Quantitatively speaking, I think that, judging from the number of vessels operated by defendant which have put in at the Port of Philadelphia during recent years, and the intervals between their visits, the conclusion is justified that the defendant is doing sufficient business in Pennsylvania to make it amenable to service of process in this jurisdiction. The defendant’s second contention is that service on Rice as Parry’s agent is legally insufficient to constitute service on Parry. The plaintiff, on the other hand, contends that service on Rice is legally sufficient to constitute service on Parry under either Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A." }, { "docid": "3229895", "title": "", "text": "longshoreman aboard the defendant’s ship S.S. Louis Pasteur in March 1958 when the ship was docked in Philadelphia. He claims that while so employed he suffered personal injuries resulting from the unseaworthy condition of the ship and from the negligence of the defendant. The defendant, sole owner of the ship on which the alleged injuries occurred, is an individual residing in Naples, Italy. The ship involved has visited the port of Philadelphia on three occasions within the last five years: November 1954, September 1955, and March 1958. On each occasion a different shipping agency acted as agent for the charterer of the ship, attending to all business matters arising from the ship’s presence in the Philadelphia port. In March 1958, that agent was Charles Kurz Company, acting for the charterer, Campsider, of Milan, Italy. No other ship connected with the defendant has been in Pennsylvania within the past five years. Other than for the three visits of his ship to Philadelphia in that period, the defendant has done no business in Pennsylvania. He has no employees or representatives in Pennsylvania, and he owns no property here. On January 8, 1959, when service of the summons and complaint was attempted by the United States Marshal on Charles Kurz Company, no vessel owned or operated by the defendant was in Pennsylvania. On that date Charles Kurz Company waS'.not engaged in the performance of any services whatsoever for the defendant. The issue is whether the relationship of Charles Kurz Company, as agent for the charterer of the defendant’s ship at the time of the alleged injury on which this action is based, was such as to make it the defendant shipowner’s agent for service of legal process. We conclude that it was not. At the time the complaint was served on Charles Kurz Company, it was no longer engaged in performing services as agent for the defendant’s ship. As there is no showing of any permanent or continuing relationship between the Kurz Company and the defendant, it cannot be said that the Kurz Company was the defendant’s agent on whom service could be" }, { "docid": "7591528", "title": "", "text": "BARD, District Judge. This case is now before me on the defendant’s motion to vacate the service of the summons and complaint. On March 29, 1949 the plaintiff, a seaman, filed a complaint against Lykes Steamship Company (hereinafter called Lykes) for injuries allegedly sustained through the negligence of the defendant’s agents and employees and for maintenance and cure. On April 4, 1949 service of the summons and a copy of the complaint was made upon Chas. Kurz Co. (hereinafter called Kurz) at the latter’s office in Philadelphia, Pennsylvania, on the theory that Kurz was Lykes’ agent. The defendant disputes the validity of this service of process on the grounds that it is not “doing business” within the jurisdiction of this Court. The defendant Lykes is a Louisiana corporation which has its office and principal place of business in New Orleans, Louisiana. Its vessels normally ply between United States Gulf ports and South America. The defendant is not and never has been registered to do business within the Commonwealth of Pennsylvania. It has no office or registered -agent within Pennsylvania, nor does it have any employees in Pennsylvania. . Kurz is a ship brokerage firm which has an office in Philadelphia. Whenever one of the defendant’s vessels of a government vessel which the defendant was husbanding would come into the Port of Philadelphia, the defendant would request Kurz to act as the defendant’s agent to handle -and service that vessel. In each such instance the contract for handling the ship was on per ship basis, and payment was made accordingly. There never was any contract or agreement, either written or oral, establishing a continuing agency relationship between Kurz and the defendant Lykes. In 1946 seven visits were made to this port by vessels for which Lykes was the government’s General Agent. In 1947 one visit was made to this port by a vessel for which Lykes was the government’s General Agent, and two visits were made by vessels owned by Lykes. In 1948 one visit was made to this port by a vessel owned by Lykes. In 1949 one visit was" }, { "docid": "3229897", "title": "", "text": "made with binding force. Zhemeck v. J. H. Winchester & Co., D.C.E.D.Pa.1958, 23 F.R.D. 8; Higgins v. California Tanker Co., D. C.E.D.Pa.1957, 166 F.Supp. 569; Novitski v. Lykes Steamship Co., D.C.E.D. Pa.1950, 90 F.Supp. 971; Holland v. Parry Navigation Co., D.C.E.D.Pa.1947, 7 F.R.D. 471. Furthermore, even if the Kurz Company were the defendant’s agent, it is clear from the facts stated above that the defendant has not been doing business in this State so as to subject him to service of process. Higgins v. California Tanker Co., supra; Novitski v. Lykes Steamship Co., supra. We turn now to the plaintiff’s contention that the defendant shipowner Is subject to the provisions of the Pennsylvania Nonresident Motorist Act. The question is whether the defendant’s ship is a motor vehicle within the meaning of the statute. While a liberal construction of the statute might permit such a finding, we are bound by the Pennsylvania rule that statutes providing for substituted service must be strictly construed. McCall v. Gates, 1946, 354 Pa. 158, 161, 47 A.2d 211; Williams v. Meredith, 1937, 326 Pa. 570, 192 A. 924, 115 A.L.R. 890; Breskman v. Williams, D.C.E.D.Pa.1957, 154 F. Supp. 51; see 46 P.S. § 558(8). Accordingly, we hold that the defendant’s ship is not a motor vehicle within the contemplation of the Nonresident Motorist Act and that service could not be made on the defendant under that statute. The motion to set aside service of the summons and complaint will be granted. Counsel for defendant will submit an appropriate order." }, { "docid": "12640483", "title": "", "text": "McDonald v. Superior Court, supra, a nonresident rental company which rented trucks through its agents in California was held amenable to service pursuant to California’s Non-Resident Motorist Statute when a renter sustained injury while unloading one of the trucks. The Court said at 466 of 275 P.2d: “We conclude therefore that petitioner’s agents operated the truck within the meaning of the statute when they rented it for immediate use upon the highways of this state.” In Bowman v. Atlanta Baggage & Cab Company, supra, defendant nonresident company rented a truck to another nonresident company which allowed its employee to drive the vehicle into Florida in contravention of the lease agreement between the companies. An accident ensued and the lessor nonresident company was held subject to service under the Florida Non-Resident Motorist Statute. The Court held that under Florida law the lessor “consented” to creation by the lessee of the right of action and the lessor would not be heard to say that such “consent” was lacking for service of process under the Non-Resident Motorist Statute. 285-286 of 173 F.Supp. Neither the Rose case nor the McDonald case is directly in point. These are respondeat superior cases. In the case at bar, there is no master-servant relationship on which to predicate operation or use of the trailer in Nebraska. Inasmuch as U-Haul did not rent the trailer to Neuhalfen in Nebraska, U-Haul cannot be deemed to have operated the trailer in the state under the authority of the McDonald case. The Bowman case supports plaintiff’s theory, if it is assumed that a cargo trailer is a motor vehicle and that U-Haul is the lessor. Adverse to plaintiff’s “use” contention is Hayes Freight Lines v. Cheatham, 277 P.2d 664 (Okl.1954). A nonresident company loaned or interchanged a semi-trailer to another company by virtue of an interline agreement. The bailee company was licensed to do business in Oklahoma and an accident occurred there killing its driver. An action was brought against the nonresident owner. The Court denied service under the Oklahoma Non-Resident Motorist Statute and held inter alia that “ * * *" }, { "docid": "7649736", "title": "", "text": "by adverse weather conditions. In such a situation it was held that the shipowner was not “doing business” in that state because it had not entered the state in the course of its regular business. United States v. Tug Parris Island, 215 F.Supp. 149 (E.D.N.C.1963). . Wingert v. Navarie Aznar, S.A. Bilbao, 196 F.Supp. 585 (D.Or.1961) (30). . Alcalde v. The Los Mayas, 184 F.Supp. 873 (E.D.Va.1960); Higgins v. California Tanker Co., 166 F.Supp. 569 (E.D. Pa.1957); Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950); L. H. Hamel Leather Co. v. Steamship City of Auckland, 1957 A.M.C. 89 (D.Mass. 1948) (The opinion made no reference to any case decided after 1941). . Rutter v. Louis Dreyfus Corp., 181 F. Supp. 531 (E.D.Pa.1960); Wade v. Romano, 179 F.Supp. 72 (E.D.Pa.1959). . See National Equipment Rental v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), where Justice Stewart indicated that the actual receipt of notice will moot questions of its adequacy when service is made pursuant to Federal Rule of Civil Procedure 4(d) (1). Quaere whether this reasoning applies when a state service procedure is used for federal purposes pursuant to Federal Rule of Civil Procedure 4(d) (7)." }, { "docid": "4955749", "title": "", "text": "BARD, District Judge. This case is before the court on defendant’s motion to vacate service of process. The plaintiff, a seaman, instituted the present action to recover damages for personal injuries which he allegedly sustained while employed as an oiler aboard a vessel operated by the defendant. From the record, and from the affidavits submitted in connection with the motion now under consideration, the following facts appear: The defendant, Parry Navigation Company, Inc. (hereinafter referred to as Parry), is a Delaware corporation with its principal place of business in New York City. Service was made upon one Klemm, cashier of Rice, Unruh & Co. (hereinafter referred to as Rice). Rice is a Philadelphia concern which acts as agent for various steamship companies. Parry is not registered to do business, nor has it any office, in Pennsylvania. It has no agent authorized by appointment to receive or accept service of process in Pennsylvania. Parry has customarily designated Rice as its agent in the Port of Philadelphia to assist the masters of vessels operated by Parry when they are in this port. The duties of Rice consist of communicating with various unions on behalf of the master with respect to the employment of replacements for members of the crews; providing clerical and stenographic assistance when required in connection with the ship’s business ; assisting the master in securing clearance for the vessels; and ordering such food and supplies as the master requests. Rice has never been engaged by Parry under any written contract. On each occasion when Rice has performed services for Parry, it has been a separate engagement to cover a specific vessel on a specific call at the Port of Philadelphia; there is no agreement, written or otherwise, requiring the continuation of any agency agreement between Parry and Rice. During the year 1944 Rice acted on behalf of Parry in connection with five vessels which arrived in the Port of Philadelphia. During the year 1945 Rice acted on behalf of Parry in connection with eight vessels which arrived at this port. During the year 1946, and prior to May 23," }, { "docid": "7591529", "title": "", "text": "registered -agent within Pennsylvania, nor does it have any employees in Pennsylvania. . Kurz is a ship brokerage firm which has an office in Philadelphia. Whenever one of the defendant’s vessels of a government vessel which the defendant was husbanding would come into the Port of Philadelphia, the defendant would request Kurz to act as the defendant’s agent to handle -and service that vessel. In each such instance the contract for handling the ship was on per ship basis, and payment was made accordingly. There never was any contract or agreement, either written or oral, establishing a continuing agency relationship between Kurz and the defendant Lykes. In 1946 seven visits were made to this port by vessels for which Lykes was the government’s General Agent. In 1947 one visit was made to this port by a vessel for which Lykes was the government’s General Agent, and two visits were made by vessels owned by Lykes. In 1948 one visit was made to this port by a vessel owned by Lykes. In 1949 one visit was made to this port by a vessel owned by Lykes. Thus, since 1947 only five ships with which Lykes has had any connection have visited Philadelphia. The last such vessel left this port more than a month prior to the service of process upon Kurz. Qualitatively, the defendant is doing business in Pennsylvania when it transports cargo to arid from Philadelphia. Jenkins v. Lykes Bros. S. S. Co. et al., D.C., 48 F.Supp. 848; Holland v. Parry Nav. Co., Inc., D.C., 7 F.R.D. 471. Quantitatively, however, I think that the defendant is not doing business in Pennsylvania. In Jenkins v. Lykes Bros. S. S. Co., Inc. supra, thirty-five ships called at this port during a two year period. In Holland v. Parry Nav. Co., Inc., supra, twenty ships stopped here during a two and one-half year period. The frequency of the visits in those cases established Philadelphia as a regular or habitual port of call. But in this case only five vessels with which the defendant has had any connection have stopped here during the" }, { "docid": "4955752", "title": "", "text": "steamship company’s activities can be said to be continuous, and to follow a regular and habitual pattern, as distinguished from occasional or sporadic activities. Jenkins v. Lykes Bros. S. S. Co., D.C., 48 F.Supp. 848; The Hanover, D.C., 6 F.2d 335; Marcum v. Owens-Parks Lumber Co., D.C., 31 F.Supp. 748. The defendant does not here contend that it is not doing business, qualitatively speaking, in Pennsylvania. Quantitatively speaking, I think that, judging from the number of vessels operated by defendant which have put in at the Port of Philadelphia during recent years, and the intervals between their visits, the conclusion is justified that the defendant is doing sufficient business in Pennsylvania to make it amenable to service of process in this jurisdiction. The defendant’s second contention is that service on Rice as Parry’s agent is legally insufficient to constitute service on Parry. The plaintiff, on the other hand, contends that service on Rice is legally sufficient to constitute service on Parry under either Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, or under Rule 2180 of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix. Both Federal Rule 4(d) (3) and Rule 2180 of the Pennsylvania Rules provide for service upon a corporation by serving certain enumerated agents of the corporation. We are thus faced with the problem of whether Rice was in fact an. agent of Parry at the time of the service in the instant case. I think that on May 23, 1946, when service was made on Rice, there was no relationship of principal and agent in existence between Parry and Rice. As I have previously indicated, Rice performed duties for Parry on a ship to ship basis. It seems to me that the nature of the authority conferred upon Rice by Parry can be viewed in either of two ways: First, that the authority was to exist for a specific time — namely, the duration of the vessel’s stay in the Port of Philadelphia, plus any length of time prior to its arrival or subsequent to its departure during which" }, { "docid": "3229894", "title": "", "text": "EGAN, District Judge. The defendant has moved to set aside service of the summons and complaint and to dismiss the action on the ground that neither service of the summons and complaint on Charles Kurz Company nor service of an alias summons and complaint on the Secretary of the Commonwealth of Pennsylvania was a valid service on the defendant, a non-resident of Pennsylvania. The plaintiff originally made service on Charles Kurz Company, a corporation engaged in the business of acting as agent for owners, charterers, and operators of steamships, with its offices and principal place of business in Philadelphia. Subsequently the plaintiff caused service to be made upon the Secretary of the Commonwealth of Pennsylvania, under the provisions of the Pennsylvania Nonresident Motorist Act (75 P.S. § 1201). The plaintiff argues that (1) service on Charles Kurz Company was effective as service on the defendant since Charles Kurz Company was the general agent of the defendant, and (2) the defendant is subject to service under the Nonresident Motorist Act. The plaintiff was employed as a longshoreman aboard the defendant’s ship S.S. Louis Pasteur in March 1958 when the ship was docked in Philadelphia. He claims that while so employed he suffered personal injuries resulting from the unseaworthy condition of the ship and from the negligence of the defendant. The defendant, sole owner of the ship on which the alleged injuries occurred, is an individual residing in Naples, Italy. The ship involved has visited the port of Philadelphia on three occasions within the last five years: November 1954, September 1955, and March 1958. On each occasion a different shipping agency acted as agent for the charterer of the ship, attending to all business matters arising from the ship’s presence in the Philadelphia port. In March 1958, that agent was Charles Kurz Company, acting for the charterer, Campsider, of Milan, Italy. No other ship connected with the defendant has been in Pennsylvania within the past five years. Other than for the three visits of his ship to Philadelphia in that period, the defendant has done no business in Pennsylvania. He has no" }, { "docid": "15301432", "title": "", "text": "another wholly-owned subsidiary of Atlantic, while Service operated as a dealer under the new corporation in 1966. Although Atlantic Philadelphia and Service are separate corporations, their officers are identical, their places of business are the same and no part of the officers’ salaries are allocated to Atlantic Philadelphia. As counsel for plaintiffs suggests, perhaps the best evidence of the ethereal nature of Atlantic Philadelphia is the fact that, beginning in 1967, it became entirely inactive and was succeeded as the Beech distributor by still another wholly-owned subsidiary of Atlantic, Atlantic Aircraft Sales Corporation. Hence, for all practical purposes, and at least for disposition of the instant motion to quash service of process, Atlantic Philadelphia and Service will be considered as one and the same. Consequently, although the marshal’s return indicates that service of process was made only on Atlantic Aviation Service, Inc., service of process upon Atlantic Aviation Service, Inc. will be deemed service of process upon Atlantic Philadelphia, Inc. In the instant suit, service of process was made on Service and Atlantic Philadelphia on August 22, 1966. Hence, although the 1964 agreement clearly establishes, and Judge Higginbotham so held, supra, that Beech was doing business in Pennsylvania by virtue of said agreement, under the clearly established rule that when the person served is not the alter ego of the defendant at the time of the attempted service of process, the attempted service is ineffectual, the issue upon which this motion to quash service of process lies is whether or not Beech was present in this jurisdiction at the time of the purported service: i. e., were the contacts of Beech, vis-a-vis the 1966 distributor agreement, and the implementation thereof, sufficient to say that it was “doing business” in Pennsylvania at the time of the purported service? Granite Chemical Corporation v. Northeast Coal & Dock Corporation, 249 F.Supp. 597 (D.C.Me.1966); Novit ski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950); Holland v. Parry Nav. Co., 7 F.R.D. 471 (E.D.Pa.1947); Johnson v. Black Diamond Lines, 36 F. Supp. 721 (E.D.Pa.1941). The amount of control exercised by Beech is readily apparent upon" }, { "docid": "7591530", "title": "", "text": "made to this port by a vessel owned by Lykes. Thus, since 1947 only five ships with which Lykes has had any connection have visited Philadelphia. The last such vessel left this port more than a month prior to the service of process upon Kurz. Qualitatively, the defendant is doing business in Pennsylvania when it transports cargo to arid from Philadelphia. Jenkins v. Lykes Bros. S. S. Co. et al., D.C., 48 F.Supp. 848; Holland v. Parry Nav. Co., Inc., D.C., 7 F.R.D. 471. Quantitatively, however, I think that the defendant is not doing business in Pennsylvania. In Jenkins v. Lykes Bros. S. S. Co., Inc. supra, thirty-five ships called at this port during a two year period. In Holland v. Parry Nav. Co., Inc., supra, twenty ships stopped here during a two and one-half year period. The frequency of the visits in those cases established Philadelphia as a regular or habitual port of call. But in this case only five vessels with which the defendant has had any connection have stopped here during the last three years. This infrequency paints as vivid a picture of occasional or sporadic activity as the Jenkins and Holland cases painted a picture of regular or habitual activity. For this reason, I find that the defendant Lykes is not doing business within the Eastern District of Pennsylvania. Holliday, Adm’x, v. Pacific Atlantic Steamship Corp., 1945 A.M.C. 49, affirmed 354 Pa. 271, 47 A.2d 254. Moreover, at the time the service of the summons and complaint was made upon Kurz on April 4, 1949, Kurz was not acting as agent for Lykes. The last vessel of the defendant’s to visit Philadelphia had left on March 1, 1949. For this reason also, the service of process is invalid. Holland v. Parry Nav. Co., Inc., supra; Holli day, Adm’x v. Pacific Atlantic Steamship Corp., supra. Accordingly, the motion of the defendant Lykes Bros. Steamship Co., Inc. to vacate the service of the summons and complaint is hereby granted. . The defendant’s correct name, as shown by an affidavit filed by the defendant, is Lykes Bros. Steamship Co.," }, { "docid": "11640805", "title": "", "text": "1956, and a third such vessel under charter discharged cargo twice in this district in 1957. Texas is not authorized to accept service of process for defendant, has only acted for defendant when its vessels were in the port of Philadelphia, and was not acting for defendant when service was made. Under these facts, it is clear that the defendant’s occasional and sporadic activity in this district is not sufficient to subject it to service of process. See Novitski v. Lykes Steamship Co., D.C.E.D.Pa.1950, 90 F. Supp. 971. Also, it is clear that the service on Texas was ineffective under F. R.Civ.P. 4(d), 28 U.S.C.A., even if defendant was doing business here, under the decisions of this court since Texas was not acting as agent for defendant at the time of service. See Holland v. Parry Nav. Co., Inc., D.C.E.D.Pa.1947, 7 F.R.D. 471, 472-473. The undersigned believes that defendant is entitled to the dismissal of a •civil action in a case such as this, brought by a non-resident plaintiff involving an alleged injury on the high seas, where defendant was not doing business in this district at the time the Complaint was filed, at the time the service was made, or at the time of the argument on defendant’s Motion to Dismiss. Philadelphia & Reading Railway Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; James-Dickinson Farm Mortg. Co. v. Harry, 1927, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569; Cannon Mfg. Co. v. Cudahy Co., 1925, 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, 875. . Paragraphs 4 ancl 5 of Affidavit of Ervin, attached to the Motion, provide: “4. On some occasions when its vessels call at the Port of Philadelphia, Texas Transport & Terminal Co., Inc. have been designated to attend to owner’s business during the particular time when such vessel may be in port, but there is no written or oral agreement between the defendant and that company whereby it is designated to act as agent for" }, { "docid": "7649735", "title": "", "text": "claim. The contract in suit was made and allegedly breached by Crescent Lines in New York. For such activities respondent-appellee could clearly be made subject to suit in New York * * See also Kourkene v. American BBR, Inc., 313 F.2d 769, 773 (9th Cir. 1963); L. D. Reeder Contractors of Ariz. v. Higgins Industries, Inc., 265 F.2d 768 (9th Cir. 1959); Developments in the Law— State-Court Jurisdiction, 73 Harv.L.Rev. 909, 926 (1960). . See Blount v. Peerless Chemicals (P. R.) Inc., 316 F.2d 695, 697, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (2d Cir. 1963), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963): “[T]he state has an interest in subjecting to its judicial process a corporation whose activities in that state expose its residents to a risk of physical harm or economic loss; the state’s interest in regulating such objection able conduct within its borders is apparent even though the plaintiff may be a nonresident * * . Contrast this case with one where the ship was forced into the state by adverse weather conditions. In such a situation it was held that the shipowner was not “doing business” in that state because it had not entered the state in the course of its regular business. United States v. Tug Parris Island, 215 F.Supp. 149 (E.D.N.C.1963). . Wingert v. Navarie Aznar, S.A. Bilbao, 196 F.Supp. 585 (D.Or.1961) (30). . Alcalde v. The Los Mayas, 184 F.Supp. 873 (E.D.Va.1960); Higgins v. California Tanker Co., 166 F.Supp. 569 (E.D. Pa.1957); Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950); L. H. Hamel Leather Co. v. Steamship City of Auckland, 1957 A.M.C. 89 (D.Mass. 1948) (The opinion made no reference to any case decided after 1941). . Rutter v. Louis Dreyfus Corp., 181 F. Supp. 531 (E.D.Pa.1960); Wade v. Romano, 179 F.Supp. 72 (E.D.Pa.1959). . See National Equipment Rental v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), where Justice Stewart indicated that the actual receipt of notice will moot questions of its adequacy when service is made pursuant to Federal Rule of Civil Procedure" }, { "docid": "4955754", "title": "", "text": "business matters with respect to the vessel which Rice handled for Parry would normally have to be attended to; or, that the authority conferred on Rice was to perform a specified act or to accomplish a specified result — the expeditious “turning around” of Parry’s vessel. In either view of the nature of Rice’s authority, I think it is clear that since Rice had completed the transaction of its last previous item of business for Parry on May 12, 1946, the authority of Rice to act as Parry’s agent had terminated before May 23, 1946, when service was made on Rice. Restatement of Agency, § 105, 106. I agree with the plaintiff that there is a striking similarity in the facts between the instant case and Jenkins v. Lykes Bros. S. S. Co., supra. Had Rice actually been performing the duties of an agent for Parry at the time service was made, I would have no hesitation in holding, as I did in the Jenkins case, that service on the agent constituted a valid service upon the steamship company. Although it did not appear in the opinion in the Jenkins case, the fact there was that on the date when service was made on the alleged agent, the latter was actually performing its duties as an agent for the defendant steamship company. However, in the instant case, inasmuch as there was no relationship of principal and agent in existence between Parry and Rice at the time service was made on the latter, the conclusion seems to me to be inescapable that .the service upon Rice cannot legally constitute service upon Parry on the theory that Rice was Parry’s agent. The defendant’s motion to vacate service of process is granted." }, { "docid": "11640804", "title": "", "text": "VAN DUSEN, District Judge. This case (filed in July 1957) comes before the court on defendant’s Motion To Set Aside Service and Dismiss the Complaint (Document No. 4 in Clerk’s file). The Complaint alleges that plaintiff (an oiler) received in 1955 personal injuries at sea aboard the S. S. Kettle Creek due to unseaworthiness of this vessel, then owned by defendant, and to the negligence of defendant. The record discloses that defendant is a Delaware corporation, having a place of business in Perth Amboy, New Jersey, and no business or property in this jurisdiction at the time service was made on Texas Transport & Terminal Co., Inc., steamship agents (hereinafter called “Texas”). During the period since January 11,1955, defendant has operated no more than four vessels, chiefly for its own account (at which time the vessels never entered this district), and occasionally chartered them to outside interests for single voyages. One such vessel under charter discharged cargo once in this district in 1955, another such vessel under charter discharged cargo once in the district in 1956, and a third such vessel under charter discharged cargo twice in this district in 1957. Texas is not authorized to accept service of process for defendant, has only acted for defendant when its vessels were in the port of Philadelphia, and was not acting for defendant when service was made. Under these facts, it is clear that the defendant’s occasional and sporadic activity in this district is not sufficient to subject it to service of process. See Novitski v. Lykes Steamship Co., D.C.E.D.Pa.1950, 90 F. Supp. 971. Also, it is clear that the service on Texas was ineffective under F. R.Civ.P. 4(d), 28 U.S.C.A., even if defendant was doing business here, under the decisions of this court since Texas was not acting as agent for defendant at the time of service. See Holland v. Parry Nav. Co., Inc., D.C.E.D.Pa.1947, 7 F.R.D. 471, 472-473. The undersigned believes that defendant is entitled to the dismissal of a •civil action in a case such as this, brought by a non-resident plaintiff involving an alleged injury on the" }, { "docid": "5052351", "title": "", "text": "systematically conducted business within the state and therefore subjected itself to the exercise of the Court’s in personam jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 289, 100 S.Ct. 559, 563, 62 L.Ed.2d 490, 496 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Accordingly, the first prong of the test (which plaintiffs do not contest) is met. The test’s second prong, whether Samick could be found for service of process within the district, is sharply contested. Defendant contends it was amenable to service of process through its local port agent, Olympic Steamship Company. Generally, in order to serve a party through its sub-agent, an agent’s actions must be substantial, continual and on more than just a ship-to-ship basis. Marvirason Compania Naviera, S.A. v. H. J. Baker & Bro., 1979 A.M.C. 625, 628 (S.D.N.Y.1978). Although some courts have found that service upon a local port agent providing ordinary husbanding services on a ship-to-ship basis is valid service on a foreign shipowner, see, e.g., Murphy v. Arrow Steamship, 124 F.Supp. 199, 1954 A.M.C. 1423 (E.D.Pa.1954), the majority of courts have held that subagents or husbanding agents are not authorized to accept service of process which will bind the vessel’s owner. See Serpe v. Eagle Ocean Transport Agency Co., 53 F.R.D. 21, 1971 A.M.C. 748 (E.D.Wis.1971); Amicale Industries, Inc. v. The S.S. Rantum, 259 F.Supp. 534, 1967 A.M.C. 96 (D.S.C.1966). Having reviewed the file and the briefs herein, I find that the defendant could not be found with reasonable diligence within the district for service. Tug GO GETTER at 398 F.2d 874. Before the SAMICK ATLANTIC was attached, plaintiff’s counsel checked the following in an unsuccessful attempt to locate the defendant in the district: (1) the 1981 List of Active Corporations in the State of Washington, (2) the 1980 Coast Marine Transportation Directory, (3) the 1979-80 Pacific Coast Maritime Directory, (4) Pacific Northwest Bell telephone book and the Information operators, (5) Pacific Marine Directory, (6) Shipping News Directory, (7) Lloyd’s Shipping Directory, (8) Northwest Shipping Directory, and (9) the Seattle City Directory. Counsel also" }, { "docid": "5052350", "title": "", "text": "effects in the hands of the garnishees named in the complaint to the amount sued for, if the defendant shall not be found within the district. Supp. R. B., Fed. R. Civ. P. The rule does not define “found within the district.” However, in cases construing Rule B’s precursor, Admiralty Rule 2, the requirement presented a two-pronged inquiry: first, whether the respondent could be found within the district in terms of jurisdiction, and second, whether it could be found for service of process. 398 F.2d at 874; see generally Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, 450 F.Supp. 447, 452-53 (W.D.Wash.1978). A corporation is found within the court’s jurisdiction if in the recent past it has conducted commercial activity within the district and will probably continue to do so in the future. Oregon Lumber Export v. Tohto Shipping Co., 53 F.R.D. 351 (W.D.Wash.1970). In 1981, the defendant’s vessels made eighteen voyages to Washington ports to take on cargo. These ports included Aberdeen, Kalama, Longview, Port Angeles, Tacoma, Vancouver, and Seattle. By so doing, defendant systematically conducted business within the state and therefore subjected itself to the exercise of the Court’s in personam jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 289, 100 S.Ct. 559, 563, 62 L.Ed.2d 490, 496 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Accordingly, the first prong of the test (which plaintiffs do not contest) is met. The test’s second prong, whether Samick could be found for service of process within the district, is sharply contested. Defendant contends it was amenable to service of process through its local port agent, Olympic Steamship Company. Generally, in order to serve a party through its sub-agent, an agent’s actions must be substantial, continual and on more than just a ship-to-ship basis. Marvirason Compania Naviera, S.A. v. H. J. Baker & Bro., 1979 A.M.C. 625, 628 (S.D.N.Y.1978). Although some courts have found that service upon a local port agent providing ordinary husbanding services on a ship-to-ship basis is valid service on a foreign shipowner, see, e.g., Murphy v. Arrow Steamship," }, { "docid": "3229896", "title": "", "text": "employees or representatives in Pennsylvania, and he owns no property here. On January 8, 1959, when service of the summons and complaint was attempted by the United States Marshal on Charles Kurz Company, no vessel owned or operated by the defendant was in Pennsylvania. On that date Charles Kurz Company waS'.not engaged in the performance of any services whatsoever for the defendant. The issue is whether the relationship of Charles Kurz Company, as agent for the charterer of the defendant’s ship at the time of the alleged injury on which this action is based, was such as to make it the defendant shipowner’s agent for service of legal process. We conclude that it was not. At the time the complaint was served on Charles Kurz Company, it was no longer engaged in performing services as agent for the defendant’s ship. As there is no showing of any permanent or continuing relationship between the Kurz Company and the defendant, it cannot be said that the Kurz Company was the defendant’s agent on whom service could be made with binding force. Zhemeck v. J. H. Winchester & Co., D.C.E.D.Pa.1958, 23 F.R.D. 8; Higgins v. California Tanker Co., D. C.E.D.Pa.1957, 166 F.Supp. 569; Novitski v. Lykes Steamship Co., D.C.E.D. Pa.1950, 90 F.Supp. 971; Holland v. Parry Navigation Co., D.C.E.D.Pa.1947, 7 F.R.D. 471. Furthermore, even if the Kurz Company were the defendant’s agent, it is clear from the facts stated above that the defendant has not been doing business in this State so as to subject him to service of process. Higgins v. California Tanker Co., supra; Novitski v. Lykes Steamship Co., supra. We turn now to the plaintiff’s contention that the defendant shipowner Is subject to the provisions of the Pennsylvania Nonresident Motorist Act. The question is whether the defendant’s ship is a motor vehicle within the meaning of the statute. While a liberal construction of the statute might permit such a finding, we are bound by the Pennsylvania rule that statutes providing for substituted service must be strictly construed. McCall v. Gates, 1946, 354 Pa. 158, 161, 47 A.2d 211; Williams v." }, { "docid": "7591531", "title": "", "text": "last three years. This infrequency paints as vivid a picture of occasional or sporadic activity as the Jenkins and Holland cases painted a picture of regular or habitual activity. For this reason, I find that the defendant Lykes is not doing business within the Eastern District of Pennsylvania. Holliday, Adm’x, v. Pacific Atlantic Steamship Corp., 1945 A.M.C. 49, affirmed 354 Pa. 271, 47 A.2d 254. Moreover, at the time the service of the summons and complaint was made upon Kurz on April 4, 1949, Kurz was not acting as agent for Lykes. The last vessel of the defendant’s to visit Philadelphia had left on March 1, 1949. For this reason also, the service of process is invalid. Holland v. Parry Nav. Co., Inc., supra; Holli day, Adm’x v. Pacific Atlantic Steamship Corp., supra. Accordingly, the motion of the defendant Lykes Bros. Steamship Co., Inc. to vacate the service of the summons and complaint is hereby granted. . The defendant’s correct name, as shown by an affidavit filed by the defendant, is Lykes Bros. Steamship Co., Inc. . The plaintiff incorrectly alleged in his complaint that the defendant was a New York corporation." } ]

[ { "docid": "22749676", "title": "", "text": "(1975). The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. See Arnett v. Kennedy, 416 U. S., at 170-171 (opinion of Powell, J.); id., at 195-196 (opinion of White, J.); see also Goss v. Lopez, 419 U. S., at 581. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee. V Our holding rests in part on the provisions in Ohio law for a full post-termination hearing. In his cross-petition Louder-mill asserts, as a separate constitutional violation, that his administrative proceedings took too long. The Court of Appeals held otherwise, and we agree. The Due Process Clause requires provision of a hearing “at a meaningful time.” E. g., Armstrong v. Manzo, 380 U. S. 545, 552 (1965). At some point, a delay in the post-termination hearing would become a constitutional violation. See Barry v. Barchi, 443 U. S., at 66. In the present case, however, the complaint merely recites the course of proceedings and concludes that the denial of a “speedy resolution” violated due process. App. 10. This reveals nothing about the delay except that it stemmed in part from the thoroughness of the procedures. A 9-month adjudication is not, of course, unconstitutionally lengthy per se. Yet Loudermill offers no indication that his wait was unreasonably prolonged other than the fact that, it took nine months. The chronology of the proceedings set out in the complaint, coupled with the assertion that nine months is too long to wait, does not state a claim of a constitutional deprivation. VI We conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post- termination administrative procedures as provided by the Ohio statute. Because respondents allege in their complaints that they had no chance to respond, the District Court erred in dismissing for failure to state a claim. The judgment of the Court of Appeals is affirmed, and the" } ]

[ { "docid": "3945296", "title": "", "text": "constructive discharge, a plaintiff must allege particular facts showing either that the employee found herself “between the Scylla of voluntary resignation and the Charybdis of forced termination,” or that “the employer’s conduct ... [was] motivated by a desire to avoid subjecting its actions to the scrutiny of a termination-related hearing.” Fowler v. Carrollton Public Library, 799 F.2d 976, 981 (5th Cir.1986). Under the standards set forth above, Brown’s amended complaint is completely deficient. Brown states in conclusory terms that he had a property interest in his job and that he did not receive constitutionally adequate process. The complaint alleges that: Plaintiff was an employee of an agency of the State of Texas, and was subject to being discharged only for good cause. Plaintiff had a property interest in continued employment with Defendant University, and Defendant Reynolds refused to give Plaintiff his due process rights upon termination. Rec.Ex. at 503-04. Brown’s bare recitation that he could only be fired for cause is insufficient to establish a property interest. In order to show that he had a constitutionally protected property interest, Brown would have had to allege with specificity the particular state rule, regulation, law or understanding between the parties giving rise to the requirement of just cause prior to termination. In this particular case, the University candidly concedes that Brown had a property interest in his job. But as we explain below, this concession is of little help to Brown. Brown has failed to allege with particularity what processes he was due upon his separation from the University that he did not receive. Normally, we would give Brown an opportunity to replead his case to allege the procedural deprivation with particularity. Even though the district court already has permitted Brown to replead his case, the liberal pleading and amendment standards established by the Federal Rules of Civil Procedure mandate that we remand to allow Brown to have another opportunity to plead a cognizable case, if such a case can be made. Fed.R.Civ.P. 15(a) (“leave [to amend the pleadings] shall be freely given when justice so requires.”); see Conley v. Gibson, 355" }, { "docid": "11010123", "title": "", "text": "law claims. II. DISCUSSION We review orders granting summary judgment de novo, applying the same standards as the district court. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e). When reviewing an order granting summary judgment, we are not limited to the district court’s conclusions but can affirm a district court’s judgment on any grounds supported by the summary judgment record. Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1414, 122 L.Ed.2d 785 (1993). In reviewing 42 U.S.C. § 1983 actions where qualified immunity is asserted, our first inquiry concerns whether a constitutional violation occurred. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Thus, we turn to a review of the three constitutional claims, after which we address Cabrol’s additional contentions, which include the issue of the mayor’s entitlement to qualified immunity. A. Deprivation of a Property Interest without Due Process Cabrol contends that his due process rights were violated by the mayor’s termination of him, rather than such occurring following a vote of the town council. Cabrol argues that even though no written contract vested him with a property interest, the town council practice of voting when hiring issues are presented to the council created an understanding that a town council vote would precede any dismissal. He contends that this understanding functioned as an implicit contract regarding termination procedure that acted to secure a property interest. The Fourteenth Amendment’s Due Process Clause does not create a property interest in government employment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Blackburn v. City of Marshall, 42 F.3d 925, 936 (5th Cir.1995). Rather, property interests stem from independent sources. Id. A government employee may possess such an interest by operation of contract or state law, see Board of Regents of State Colleges, 408 U.S. at 577, 92" }, { "docid": "7330239", "title": "", "text": "not a violation of Fowler’s First Amendment rights. Having reviewed the evidence in the record, we find that Fowler did not raise a genuine issue of material fact concerning whether or not his termination was motivated by his speech against privatization. FOURTEENTH AMENDMENT CLAIMS Fowler alleges violations of both substantive and procedural due process. Procedural due process entitles a public employee with a property right in his employment to notice of the charges against the employee, an explanation of the employer’s evidence, and an opportunity to present his side of the story. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Delahoussaye v. New Iberia, 937 F.2d 144, 151 (5th Cir.1991). There is no dispute that Fowler received notice and an extensive pre-termination hearing. His procedural due process claim rests on his contention that he was denied an opportunity to present his side of the story, due to the hearing officer’s exclusion of a proffered witness affidavit. The affidavit was a report by a school employee of an out of court statement made by Terrell suggesting that Fowler would be fired or forced out of his position. Because the specific statement identified by Fowler is inadmissible hearsay, see Fed.R.Evid. 801(c), Fowler raised no genuine issue of material fact concerning his procedural due process claim. Public officials violate substantive due process rights if they act arbitrarily or capriciously. Spuler v. Pickar, 958 F.2d 103, 107-108 (5th Cir.1992). In Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir.), cert. denied, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980), this Court held that a plaintiff who failed to show that his employer discharged him for exercising his First Amendment rights also failed to establish a substantive due process claim when both were “based primarily on” his factual allegation that his employer discharged him for speaking to a reporter. Similarly, Fowler’s substantive due process claim cannot withstand summary judgment if it is based on his claim that he was discharged for speaking against privatization because he failed to present a genuine issue of" }, { "docid": "7330235", "title": "", "text": "affidavit just because a portion is inadmissible.) Therefore, we will review the hearing transcript and Fowler’s affidavit, which have been included in the record on appeal, as well as all other evidence which was before the district court, to determine if there are genuine issues of material fact raised by competent evidence. FIRST AMENDMENT CLAIMS Fowler makes two types of First Amendment claims. He claims first that he was discharged in violation of his right to free speech and secondly, that his discharge violated his right of association. The district court summarily dismissed his freedom of association claim, and Fowler does not challenge that ruling on appeal. While “a public employee may not be discharged for exercising his or her right to free speech” under the First Amendment, it is clear that only certain speech is protected. Thompson v. Starkville, 901 F.2d 456, 460 (5th Cir.1990). This Court has established a three-part test to determine whether particular speech by a public employee is protected. Id. First, the speech must have involved a matter of public concern. Id. Second, the public employee’s interest in commenting on matters of public concern must outweigh the public employer’s interest in promoting efficiency. Id. The third prong of the test is based on causation; the employee’s speech must have motivated the decision to discharge the employee. Id. The district court granted summary judgment on Fowler’s free speech claim based on the third prong of this test, holding that the evidence did not raise a genuine issue of material fact regarding whether Fowler’s dis charge was motivated by his speech. Appel-lees argue that summary judgment should be affirmed, since Fowler points to no evidence supporting his assertion that he was fired because of — or even partially because of — his speech. Fowler contends that a fact finder could conclude, based on inferences drawn from the evidence in the record, that his speech criticizing privatization motivated his termination. This Court has held that direct evidence in proving illegitimate intent is not required to avoid summary judgment in unconstitutional retaliation claims; circumstantial evidence will suffice. Tompkins v." }, { "docid": "3945295", "title": "", "text": "Texas, 793 F.2d 737, 739 (5th Cir.1986); Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir.1986); Hale v. Harney, 786 F.2d 688, 690 (5th Cir.1986). Rather, the plaintiff must plead specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery, including those necessary to negative the defense of qualified immunity. Elliott v. Perez, 751 F.2d at 1479, 1482. Brown inartfully alleges in his § 1983 claim that the procedures incidental to his separation offended the Due Process Clause of the Fourteenth Amendment. In order to make out a Procedural Due Process claim in the context of a wrongful discharge complaint, a former public employee must allege with particularity: (i) the state or federal law or understanding giving rise to the property interest; (ii) the particular process that plaintiff was entitled to and failed to receive; and (iii) that the official’s failure to provide these particular processes violated “clearly established constitutional law” at the time of the alleged infraction. In addition, in order to establish a cognizable claim of constructive discharge, a plaintiff must allege particular facts showing either that the employee found herself “between the Scylla of voluntary resignation and the Charybdis of forced termination,” or that “the employer’s conduct ... [was] motivated by a desire to avoid subjecting its actions to the scrutiny of a termination-related hearing.” Fowler v. Carrollton Public Library, 799 F.2d 976, 981 (5th Cir.1986). Under the standards set forth above, Brown’s amended complaint is completely deficient. Brown states in conclusory terms that he had a property interest in his job and that he did not receive constitutionally adequate process. The complaint alleges that: Plaintiff was an employee of an agency of the State of Texas, and was subject to being discharged only for good cause. Plaintiff had a property interest in continued employment with Defendant University, and Defendant Reynolds refused to give Plaintiff his due process rights upon termination. Rec.Ex. at 503-04. Brown’s bare recitation that he could only be fired for cause is insufficient to establish a property interest. In order to show that he had a" }, { "docid": "7330237", "title": "", "text": "Vickers, 26 F.3d 603, 608-09 (5th Cir.1994). We recognize that direct evidence of improper motive is usually difficult, if not impossible, to obtain and requiring direct evidence would effectively insulate from suit public officials who deny an improper motive in cases such as this. Id. at 609. When viewed in the light most favorable to Fowler, there is admissible evidence that (1) Smith had a previous friendship with Ray Terrell, an employee of the company that conducted the privatization study and sought a privatization contract with AISD; (2) when he was superintendent of two other school district, Smith had suggested that the school district privatize portions of their work force and contract with the company for which Terrell worked; (3) Terrell helped Smith obtain information about AISD and the superintendent job before he interviewed for the position; (4) as superintendent of AISD, Smith called Terrell and asked him to submit a privatization study proposal; (5) Fowler was a well-respected maintenance supervisor of AISD when Smith arrived; (6) Smith was determined to discharge Fowler. There is no direct evidence that Smith knew that Fowler was speaking out against privatization. Fowler’s Affidavit asserts that he told his supervisor Peterson, coworkers, subordinates, and some of his neighbors that he was against privatization; he did not aver that he told Smith directly. Fowler argues that Smith’s knowledge can be inferred from Smith’s May 11, 1990 letter to the AISD Board, in which Smith stated that he was not recommending that the Board accept the privatization proposal because of “[t]he negative morale effect on personnel in these departments including our supervisors, Glynis Ramsey and Stan Fowl-erf.]” Fowler points to no other evidence, direct or indirect, and we find none in the record that supports a finding of illegal motivation. Fowler also contends that the evidence supports the inference that Fowler’s efficiency in running the maintenance department impeded Smith’s plan for privatization. Rather than supporting Fowler’s cause of action, this contention actually refutes his position. Smith’s alleged motivation of forcing Fowler out so that a deteriorating maintenance department made privatization more attractive to the Board is" }, { "docid": "7330236", "title": "", "text": "concern. Id. Second, the public employee’s interest in commenting on matters of public concern must outweigh the public employer’s interest in promoting efficiency. Id. The third prong of the test is based on causation; the employee’s speech must have motivated the decision to discharge the employee. Id. The district court granted summary judgment on Fowler’s free speech claim based on the third prong of this test, holding that the evidence did not raise a genuine issue of material fact regarding whether Fowler’s dis charge was motivated by his speech. Appel-lees argue that summary judgment should be affirmed, since Fowler points to no evidence supporting his assertion that he was fired because of — or even partially because of — his speech. Fowler contends that a fact finder could conclude, based on inferences drawn from the evidence in the record, that his speech criticizing privatization motivated his termination. This Court has held that direct evidence in proving illegitimate intent is not required to avoid summary judgment in unconstitutional retaliation claims; circumstantial evidence will suffice. Tompkins v. Vickers, 26 F.3d 603, 608-09 (5th Cir.1994). We recognize that direct evidence of improper motive is usually difficult, if not impossible, to obtain and requiring direct evidence would effectively insulate from suit public officials who deny an improper motive in cases such as this. Id. at 609. When viewed in the light most favorable to Fowler, there is admissible evidence that (1) Smith had a previous friendship with Ray Terrell, an employee of the company that conducted the privatization study and sought a privatization contract with AISD; (2) when he was superintendent of two other school district, Smith had suggested that the school district privatize portions of their work force and contract with the company for which Terrell worked; (3) Terrell helped Smith obtain information about AISD and the superintendent job before he interviewed for the position; (4) as superintendent of AISD, Smith called Terrell and asked him to submit a privatization study proposal; (5) Fowler was a well-respected maintenance supervisor of AISD when Smith arrived; (6) Smith was determined to discharge Fowler. There is" }, { "docid": "7330241", "title": "", "text": "material fact that his discharge was motivated by his speech. If Fowler’s substantive due process claim is based on something other than his First Amendment claim, then this Court need only determine that Appellees’ action was a rational means of advancing a legitimate government purpose. Delahoussaye v. New Iberia, 937 F.2d at 149. The district court held that “a review of the evidence reveals that the School had ample reason to terminate Fowler,” supporting this finding with the facts that Fowler admitted to using a school truck to pull his boat on a weekend trip, kept a pool table in the maintenance building, stored his boat on school property, drove the school vehicle to pool halls, and sent school employees on personal errands. Fowler’s position is that he had authorization for these activities, such that they did not amount to cause for his dismissal. However, the appropriate inquiry is not whether Fowler engaged in the misconduct at issue, but whether the Appellees “had sufficient reason to believe that he engaged in misconduct so that [their] action was not wholly arbitrary or irrational.” Id. at 151. Even when viewed in the light most favorable to Fowler, the record clearly indicates sufficient reason to believe that Fowler engaged in the misconduct. Thus, Fowler failed to raise a genuine issue of material fact as to his substantive due process claim. CONCLUSION For the foregoing reasons, we AFFIRM the summary judgment entered by the district court. . Smith testified to facts (1) through (5) listed below, making any conceivable hearsay problems irrelevant because his testimony would be admissible as admissions of a party opponent. Fed. R.Evid. 801(d)(2). For the same reason, the fact listed in item (6), which was based on the testimony of Donny Davis regarding what Smith said to him, would have been admissible. See id. . We recognize that the Eleventh Circuit subsequently repudiated a portion of this opinion. See Monroe v. U.S. Dep't of Labor, 690 F.2d 1359, 1363 (11th Cir.1982). However, Monroes criticism concerned the Bass holding on procedural due process, and did not call into question the portion" }, { "docid": "21844216", "title": "", "text": "warrants issued for Jerry High, Bobby Gore and three male Hispanics of Cuban nationality. An incident report was also prepared by Beckham and Foreman containing the fictitious information. A preliminary hearing was held on February 26, 1981 in relation to the arrests of High, Gore and the Cuban nationals. Foreman advised Beckham a few minutes before the hearing that he was going to stick with the fabricated story contained in the affidavit and in the incident report. At this point Beckham refused to present perjured testimony. He advised Captain George “Buddy” Fowler, his supervisor, and James O. Dunn, the county solicitor, that the information contained in the affidavit and incident report was false. He also admitted destroying a statement by another police officer which made reference to a set of keys found at the county jail. Beckham did not testify at the preliminary hearing. On February 28, 1981 Beckham was discharged from the Horry County Police De partment for furnishing false information. Foreman was discharged for testifying falsely at the preliminary hearing. Beck-ham did not request a hearing to challenge the charges against him. On March 12, 1981, Beckham was indicted by the State of South Carolina on charges of false swearing, conspiracy and obstruction of justice. He was later tried and acquitted of those charges. Dunn and Chief of Police Harris called a press conference after the terminations. A press release was issued on February 28, 1981 announcing that both Beckham and Foreman had been discharged and several articles subsequently appeared in a local newspaper detailing the circumstances surrounding the officers’ discharge and the dismissal of drug charges against the five previously arrested men. II. A. Harris initially contends that detective Beckham had no constitutionally protected property interest in his continued employment with the police department. Therefore, the department was not constitutionally obligated to provide Beckham with an opportunity to rebut the charges against him prior to his termination from the police force. In order to be entitled to the procedural safeguards encompassed by the due process clause of the fourteenth amendment (notice and an opportunity to be heard)" }, { "docid": "6380954", "title": "", "text": "Supreme Court precedents in determining that the pre-trial identification process in this case was not impermissibly suggestive. We agree. Law enforcement presented two photographic arrays to Guzman that included Fowler’s photograph. Fowler does not argue that the photographic arrays, as individually composed, were unduly suggestive. Rather, Fowler complains only that the pre-trial procedures were unduly suggestive because he appeared in both arrays and because Guzman was told that Fowler would be seated between his counsel prior to the suppression hearing. However, while a photograph of Fowler appeared in both arrays, the same photograph did not appear in both, and it is undisputed that Fowler’s appearance in the January 8 array was quite different from his appearance in the January 14 array and from the description provided by Guzman to the authorities in the immediate aftermath of the crime. Moreover, although Guzman selected the photograph of Fowler from the April 14 array as the one most closely resembling the man he saw, he would not positively identify anyone as being the man he saw on the night of the robbery and he was unable to select the same photograph at the suppression hearing. Nor are we persuaded by Guzman’s claim that the state court unreasonably concluded that the prosecutor’s pre-hear-ing meeting with Guzman was not so suggestive — singularly or in combination with the photographic arrays — as to violate Fowler’s due process rights, or by his argument that the state court erroneously imposed upon him a burden of proving that the prosecutors were driven by improper motives. There is nothing in the record that calls into question the state court’s reasonable determination that the meeting between the prosecutors and Guzman was simply “an opportunity to go over what would happen in court,” and that the challenged statement only provided Guzman with information that would “have been readily apparent to him during the proceedings.” Fowler, 548 S.E.2d at 698; of. United States v. Murray, 65 F.3d 1161, 1169 (4th Cir.1995) (noting that a witness’s prior knowledge of a defendant’s location at counsel table in a courtroom proceeding was not per se" }, { "docid": "8593850", "title": "", "text": "Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Berlin, 858 F.2d at 1161; Hand v. Central Transport, 779 F.2d 8, 10 (6th Cir.1985). The City of Highland Park does not dispute that Buckner had a property interest in his continued employment. The only factual dispute concerned the evidence that Chief Ford sent Officer Brookman to visit Buckner before the termination and Officer Brookman’s first affidavit which stated that he visited the hospital after the termination. At the hearing on the motion to reconsider, Officer Brookman's second affidavit revealed the mistake in his first affidavit and resolved the factual dispute. However, the district court ruled that this dispute was not an issue of material fact because Brookman’s visit as a union representative was not an opportunity for Buckner to make a statement that could suffice as an opportunity to be heard under Loudermill. Moreover, the court ruled that although Act 78 did not apply to the case, the Loud-ermill standards were not satisfied. Consequently,-there is no genuine issue of material fact on the record before us and summary judgment is appropriate for the disposition of this case. Because Act 78 does not apply to this case and the collective bargaining agreement in force between the City and the police officers’ union does not set out particular pretermination procedure, the question becomes whether, as a matter of law, the pretermin-ation procedure afforded to Buckner failed to provide the minimal protections secured by the due process clause of the Constitution. The due process clause requires that, prior to termination, a public employee, with a property interest in his or her public employment, be given oral or written notice of the charges against him or her, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story to the employer. Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 310 (6th Cir. 1988), on remand from, Loudermill, 470 U.S. 532, 105 S.Ct. 1487. An application of Loudermill requires us to balance the competing interests of the government in terminating" }, { "docid": "1623329", "title": "", "text": "cognizable due process claim against them. An employee who has a property interest in his employment “is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story,” before he is subjected to the loss of employment. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Defendants do not dispute that Munafo “had a ‘property interest’ in his [employment with SIRTOA], the deprivation of which implicates the Due Process Clause” (Defendants’ brief on appeal at 58), and there is no question that Munafo’s right to due process was clearly established at the time his employment was terminated. However, “procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided after-wards.” Locurto v. Safir, 264 F.3d at 171; see Cleveland Board of Education, v. Loudermill, 470 U.S. at 545-48, 105 S.Ct. 1487. Further, if the state affords a remedy for alleged violations of due process, the plaintiff may not complain about the sufficiency of a due process remedy by singling out one stage in the administrative proceedings and ignoring the rest of the array of procedures available to him. See, e.g., Campo v. NYCERS, 843 F.2d 96, 101-02 (2d Cir.1988), cert. denied, 488 U.S. 889, 109 S.Ct. 220, 102 L.Ed.2d 211 (1988). The district court, in denying the individual defendants’ qualified-immunity-based motions for summary judgment dismissing Munafo’s due process claims, made only the terse statement that “given the extensive protections of the union[-]employer procedures involved,” Mu-nafo’s due process claims were “even more tenuous” than his First Amendment claims. (Tr. 21.) The district court did not identify any particular issue to be tried with respect to the due process claims. Accordingly, this Court, in order to review the individual defendants’ contention that the district court’s ruling on this branch of their qualified immunity motions mistakenly identified clearly established law, must “undertake a cumbersome review of the record to determine what" }, { "docid": "11010122", "title": "", "text": "the state law claims without prejudice. It issued no written opinion but its statements at the summary judgment hearing indicate that it found that Cabrol had no property interest in his job and, as an at-will employee, could be terminated for any reason. Cabrol appeals the district court’s judgment to this court, arguing the following: (1) that his termination failed to comply with the Due Process Clause of the Fourteenth Amendment in that he had a property interest in his continued employment of which he was deprived without due process; (2) that stigmatizing allegations were made in connection with his termination implicating a liberty interest of which he was deprived without due process; (3) that the reason for his termination from his at-will position was his verbal and symbolic opposition to the proposed amendment to Youngsville’s nuisance ordinance in violation of his right to expression under the First Amendment; (4) that the district court erred in finding the mayor entitled to qualified immunity; and (5) that the district court erred in dismissing the supplementary state law claims. II. DISCUSSION We review orders granting summary judgment de novo, applying the same standards as the district court. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e). When reviewing an order granting summary judgment, we are not limited to the district court’s conclusions but can affirm a district court’s judgment on any grounds supported by the summary judgment record. Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1414, 122 L.Ed.2d 785 (1993). In reviewing 42 U.S.C. § 1983 actions where qualified immunity is asserted, our first inquiry concerns whether a constitutional violation occurred. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Thus, we turn to a review of the three constitutional claims, after which we address Cabrol’s additional contentions, which include the issue of the mayor’s entitlement to qualified immunity. A." }, { "docid": "7330232", "title": "", "text": "of his contract. Although Fowler was entitled to appeal AISD’s decision to the Texas Commissioner of Education and then to state district court, he failed to avail himself of these avenues of relief. As a consequence of this failure, Fowler’s subsequent state court suit for wrongful termination was dismissed for failure to exhaust administrative remedies. Fowler filed suit in federal district court against Smith and AISD on May 11, 1993, alleging, inter alia, that his discharge (1) was unconstitutional retaliation for his exercise of First Amendment freedoms and (2) was in violation of substantive and procedural due process under the Fourteenth Amendment. Fowler’s First Amendment claims are premised on his contention that Smith wanted to get rid of him because he spoke out in opposition to a proposal to privatize AISD’s maintenance, custodial and food service departments. Appellees filed a Motion for Sum mary Judgment and Fowler responded. The district court, holding that Fowler failed to produce evidence sufficient to raise a genuine issue of material fact that his discharge violated either the First or Fourteenth Amendment, granted Appellees’ motion as to all federal law claims and dismissed the remaining claims by declining to exercise its supplemental jurisdiction over the state law causes of action. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo, applying the same standard as did the district court. Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions of 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). For purposes of summary judgment determination, all fact questions are viewed in the light most favorable to the nonmovant. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.1995). But only materials which were included in the pretrial record and that would have been admissible evidence may be considered. See Martin v. John W. Stone Oil Distrib., Inc.," }, { "docid": "11010135", "title": "", "text": "stigma of the magnitude compromising a liberty interest. Thus, the Fourteenth Amendment did not require any procedural safeguards in connection with Cabrol’s discharge, and his argument on this issue fails. C. First Amendment Claim Cabrol alleges that he was discharged in retaliation for exercising his First Amendment right to free speech and political expression. Specifically, he maintains that the mayor terminated his employment because he actively opposed the ordinance amendment sponsored by the mayor. The defendants contend that Cabrol was not fired for any type of opposition to the ordinance, but rather because he did not rid his yard of the chickens as requested by the mayor. An at-will public employee may not be discharged for exercising his First Amendment right to freedom of expression. Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir.1990). To prove a retaliation claim cognizable under the First Amendment, Cabrol must (1) show that his speech was constitutionally protected, i.e., that it involved a matter of public concern; (2) that his interest in commenting on the matters of public concern outweighs the public employer’s interest in promoting efficiency; and (3) that his speech was a motivating or substantial factor in the termination decision. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). 1. Cabrol’s Conversations Cabrol argues that he spoke with some council members about the ordinance amendment, and also that he spoke with some Youngsville residents at the post office as well as fellow chicken fighters about the issue. These are the sole conversations alleged by Cabrol as the basis of his claim. Accepting Cabrol’s testimony as true for summary judgment purposes, we skip ahead in our inquiry to the third element, the causation issue. Cabrol submitted no evidence regarding how the mayor, the person who terminated him, was made aware of any of these conversations. By failing to do so, Cabrol fails to address an essential element of his claim. In the absence of evidence that such conversations made their way back to the mayor, this First Amendment claim fails. See Fowler, 68 F.3d at 127 (no genuine issue of material" }, { "docid": "7330238", "title": "", "text": "no direct evidence that Smith knew that Fowler was speaking out against privatization. Fowler’s Affidavit asserts that he told his supervisor Peterson, coworkers, subordinates, and some of his neighbors that he was against privatization; he did not aver that he told Smith directly. Fowler argues that Smith’s knowledge can be inferred from Smith’s May 11, 1990 letter to the AISD Board, in which Smith stated that he was not recommending that the Board accept the privatization proposal because of “[t]he negative morale effect on personnel in these departments including our supervisors, Glynis Ramsey and Stan Fowl-erf.]” Fowler points to no other evidence, direct or indirect, and we find none in the record that supports a finding of illegal motivation. Fowler also contends that the evidence supports the inference that Fowler’s efficiency in running the maintenance department impeded Smith’s plan for privatization. Rather than supporting Fowler’s cause of action, this contention actually refutes his position. Smith’s alleged motivation of forcing Fowler out so that a deteriorating maintenance department made privatization more attractive to the Board is not a violation of Fowler’s First Amendment rights. Having reviewed the evidence in the record, we find that Fowler did not raise a genuine issue of material fact concerning whether or not his termination was motivated by his speech against privatization. FOURTEENTH AMENDMENT CLAIMS Fowler alleges violations of both substantive and procedural due process. Procedural due process entitles a public employee with a property right in his employment to notice of the charges against the employee, an explanation of the employer’s evidence, and an opportunity to present his side of the story. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Delahoussaye v. New Iberia, 937 F.2d 144, 151 (5th Cir.1991). There is no dispute that Fowler received notice and an extensive pre-termination hearing. His procedural due process claim rests on his contention that he was denied an opportunity to present his side of the story, due to the hearing officer’s exclusion of a proffered witness affidavit. The affidavit was a report by a school employee" }, { "docid": "7330242", "title": "", "text": "action was not wholly arbitrary or irrational.” Id. at 151. Even when viewed in the light most favorable to Fowler, the record clearly indicates sufficient reason to believe that Fowler engaged in the misconduct. Thus, Fowler failed to raise a genuine issue of material fact as to his substantive due process claim. CONCLUSION For the foregoing reasons, we AFFIRM the summary judgment entered by the district court. . Smith testified to facts (1) through (5) listed below, making any conceivable hearsay problems irrelevant because his testimony would be admissible as admissions of a party opponent. Fed. R.Evid. 801(d)(2). For the same reason, the fact listed in item (6), which was based on the testimony of Donny Davis regarding what Smith said to him, would have been admissible. See id. . We recognize that the Eleventh Circuit subsequently repudiated a portion of this opinion. See Monroe v. U.S. Dep't of Labor, 690 F.2d 1359, 1363 (11th Cir.1982). However, Monroes criticism concerned the Bass holding on procedural due process, and did not call into question the portion of the opinion dealing with substantive due process." }, { "docid": "7330240", "title": "", "text": "of an out of court statement made by Terrell suggesting that Fowler would be fired or forced out of his position. Because the specific statement identified by Fowler is inadmissible hearsay, see Fed.R.Evid. 801(c), Fowler raised no genuine issue of material fact concerning his procedural due process claim. Public officials violate substantive due process rights if they act arbitrarily or capriciously. Spuler v. Pickar, 958 F.2d 103, 107-108 (5th Cir.1992). In Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir.), cert. denied, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980), this Court held that a plaintiff who failed to show that his employer discharged him for exercising his First Amendment rights also failed to establish a substantive due process claim when both were “based primarily on” his factual allegation that his employer discharged him for speaking to a reporter. Similarly, Fowler’s substantive due process claim cannot withstand summary judgment if it is based on his claim that he was discharged for speaking against privatization because he failed to present a genuine issue of material fact that his discharge was motivated by his speech. If Fowler’s substantive due process claim is based on something other than his First Amendment claim, then this Court need only determine that Appellees’ action was a rational means of advancing a legitimate government purpose. Delahoussaye v. New Iberia, 937 F.2d at 149. The district court held that “a review of the evidence reveals that the School had ample reason to terminate Fowler,” supporting this finding with the facts that Fowler admitted to using a school truck to pull his boat on a weekend trip, kept a pool table in the maintenance building, stored his boat on school property, drove the school vehicle to pool halls, and sent school employees on personal errands. Fowler’s position is that he had authorization for these activities, such that they did not amount to cause for his dismissal. However, the appropriate inquiry is not whether Fowler engaged in the misconduct at issue, but whether the Appellees “had sufficient reason to believe that he engaged in misconduct so that [their]" }, { "docid": "7330231", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Plaintiff-Appellant, William Stanley Fowler (“Fowler”) appeals the district court’s grant of summary judgment in favor of Defendants-Appellees, James Smith, Ed.D. (“Smith”) and Angleton Independent School District (“AISD”). We affirm. FACTS AND PROCEEDINGS BELOW Fowler was employed under a term contract as the Director of Maintenance Operations for AISD beginning June 1977. Smith was hired as Superintendent of AISD in August 1989. In May 1990, Smith began an investigation of Fowler that resulted in his recommending that AISD discharge Fowler pursuant to the “for cause” term of his contract. Specifically, Smith alleged that Fowler used an AISD truck and gas for personal use, including trips to the lake and to a local pool hall, stored his boat and trailer on AISD property, kept a pool table in the maintenance building, used AISD personnel to run personal errands and took district property for his own use, sometimes declaring it scrap or salvage. AISD’s Board of Trustees, after holding a pre-termination hearing, discharged Fowler for cause on October 3,1990, prior to the end of his contract. Although Fowler was entitled to appeal AISD’s decision to the Texas Commissioner of Education and then to state district court, he failed to avail himself of these avenues of relief. As a consequence of this failure, Fowler’s subsequent state court suit for wrongful termination was dismissed for failure to exhaust administrative remedies. Fowler filed suit in federal district court against Smith and AISD on May 11, 1993, alleging, inter alia, that his discharge (1) was unconstitutional retaliation for his exercise of First Amendment freedoms and (2) was in violation of substantive and procedural due process under the Fourteenth Amendment. Fowler’s First Amendment claims are premised on his contention that Smith wanted to get rid of him because he spoke out in opposition to a proposal to privatize AISD’s maintenance, custodial and food service departments. Appellees filed a Motion for Sum mary Judgment and Fowler responded. The district court, holding that Fowler failed to produce evidence sufficient to raise a genuine issue of material fact that his discharge violated either the First or" }, { "docid": "7330234", "title": "", "text": "819 F.2d 547, 549 (5th Cir.1987). EVIDENTIARY RULINGS Fowler challenges the district court’s ruling that the transcript of the school board’s pre-termination hearing and Fowler’s affidavit are inadmissible under the Federal Rules of Evidence. Appellees, for their part, challenge Fowler’s interpretation of the district court’s holding, stating that a close reading of the Order of Dismissal reveals that the court rejected only those parts of the transcript and affidavit that it considered incompetent. While we agree that the Order of Dismissal rejects only incompetent evidence, it is not clear which specific portions of the proffered evidence were considered and which were rejected. Further, the district court states in its subsequent Order Denying Motion to Amend or Vacate Judgment, “This Court reiterates that the transcript of the school board hearing is inadmissible under the Federal Rules of Evidence.” Evidence on summary judgment may be considered to the extent not based on hearsay or other information excludable at trial. Martin, 819 F.2d at 549; Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir.1992) (should not disregard entire affidavit just because a portion is inadmissible.) Therefore, we will review the hearing transcript and Fowler’s affidavit, which have been included in the record on appeal, as well as all other evidence which was before the district court, to determine if there are genuine issues of material fact raised by competent evidence. FIRST AMENDMENT CLAIMS Fowler makes two types of First Amendment claims. He claims first that he was discharged in violation of his right to free speech and secondly, that his discharge violated his right of association. The district court summarily dismissed his freedom of association claim, and Fowler does not challenge that ruling on appeal. While “a public employee may not be discharged for exercising his or her right to free speech” under the First Amendment, it is clear that only certain speech is protected. Thompson v. Starkville, 901 F.2d 456, 460 (5th Cir.1990). This Court has established a three-part test to determine whether particular speech by a public employee is protected. Id. First, the speech must have involved a matter of public" } ]

[ { "docid": "22293762", "title": "", "text": "goods as those of the plaintiff. Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go farther than this. In the case of Handon’s Trade-mark, 37 Chan. Div. 112, in which a trademark was claimed for a red, white and blue label, in imitation of the French tri-color, for French coffee, it was held not entitled to registration under the English statute, which requires a trade-mark to be distinctive in order to.be valid. The court remarked as follows: “It is the plain intention of the act that, where the distinction of a mark depends upon color, that will not do. You may register a mark, which is otherwise distinctive, in color, and that gives you the right to use it in any color you like; but you cannot register a'mark of which the only distinction is the use of a color, because practically under the terms of the act that would give you a monopoly of all the colors of the rainbow. ” It is unnecessary to express an opinion whether, if the trademark had been restricted to a strand of rope distinctively colored, it would have been valid. As already observed, the claim is much broader than this. Nor can we assume jurisdiction of this- case as one wherein the defendant had made use of plaintiff’s device for the purpose of defrauding the plaintiff and palming off its goods upon the public as of the plaintiff’s manufacture. Our jurisdiction depends solely upon the question whether plaintiff has a registered trade-mark valid under the act of Congress, and, for the reasons above given, we think it has. not. Affirmed." } ]

[ { "docid": "17194683", "title": "", "text": "has been upheld by any court where the issue involved a mark disclaimed in its entirety. In the absence of any persuasive authority to the contrary, we feel constrained to uphold the view of the commissioner in this case. The holding, in our opinion, is based upon a sound principle, and moreover it is in harmony with certain of the reasoning in a number of cases among which may be cited: Fishbeck Soap Co. v. Kleeno Mfg. Co., 44 App. D. C. 6; Nairn Linoleum Co. v. Ringwalt Linoleum Works, 46 App. D. C. 64; Krank v. Philippe, 54 App. D. C. 180, and three cases of this court, each styled In re Canada Dry Ginger Ale, Inc., reported in 24 C. C. P. A. (Patents) at pages 804, 872, and 879, respectively. In the second of those cases we said : In view of the fact that appellant is not entitled to register either the words “Canada Dry,” standing alone, or the map on which the words appear, for reasons hereinbefore stated, it is clear, from the facts and circumstances of the case, that it is not entitled to the registration of the two combined. In the Beckwith case, supra, the Supreme Court pointed out that “No question * * * that the design of the trade-mark is so simple as to be a mere device or contrivance to evade the law and secure the registration of non-registrable words” was involved. Obviously, the granting of applicant’s application in this case would result in registering, when combined, words non-registrable separately. The combination of the words in no way changes their significance in any trade-mark sense. Each continues to have the same meaning that it would have as a separate word. The decision of the Commissioner of Patents is affirmed." }, { "docid": "23607138", "title": "", "text": "use ‘Slim’ — i. e., with the word mark ‘Hawthorne Mel-lody’ above the word ‘Vita-Slim’.” Apparently, it was the view .of the Assistant Commissioner that “Slim” as used by appellant-was a weak mark, and that the addition of the notation “Vita” to it was sufficient to avoid any likelihood of confusion. As was pointed out by the Examiner of Interferences, it is the general rule “that one may not appropriate the entire mark of another and avoid a likelihood of confusion by the addition thereto of descriptive or otherwise subordinate matter.” This court has made holdings to that effect in each of the following cases: Miller Becker Co. v. King of Clubs, Inc., 19 C. C. P. A: (Patents) 1024, 56 F. 2d 888, 12 U. S. Pat. Q. 480 (Ace and Ace-of-Clubs); Na tional Biscuit Co. v. Joseph W. Sheridan, 18. C. C. P. A. (Patents) 720, 44 F. 2d 987, 7 U. S. Pat. Q. 117 (American Beauty and American Beauty Rose); E-Z Mills, Inc. v. Martin Brothers Company, 25 C. C. P. A. (Patents) 992, 95 F. 2d 269, 37 USPQ 199 (E-Z and Klad-ezee); In re Cohen, Goldman & Co., Inc., 28 C. C. P. A. (Patents) 1141, 119 F. 2d 599, 49 USPQ 455 (Knockabout and British Knockabout Model); Vi-Jon Laboratories, Inc. v. Lentheric Incorporated, 30 C. C. P. A. (Patents) 916, 133 F. 2d 947, 56 USPQ 586 (Shanghai and Night in Shanghai); In re Wings Publishing Co. Inc., 32 C. C. P. A. (Patents) 926, 148 F. 2d 214, 65 USPQ 123 (Wings and Wings Comics); and Penrith-Akers Manufacturing Co. v. Ju-C-Orange of America, 37 C. C. P. A; (Patents) 1056, 182 F. 2d 211, 86 USPQ 75 (Ju-See and Ju-C-Orange). As shown by appellee’s evidence, its skim milk is fortified by the addition of vitamins, and the use of the notation “Vita” on such a product obviously has a descriptive connotation. The use of that, notation on vitamins and products which contain them is conventional. The Vitab Corporation v. Knox Company and Endo Products Inc., 31 C. C. P. A. (Patents) 1205," }, { "docid": "23607141", "title": "", "text": "in trade. The fact that each of the parties applies an additional name or trademark to its product is not sufficient to remove the likelihood of confusion. The right to register a trademark- must be determined on the basis of what is set forth in the application rather than the manner in which the mark may be actually used. Intercontinental Mfg. Co. v. Continental Motors Corp., 43 C. C. P. A. (Patents) 841, 230 F. 2d 621, 109 USPQ 105; Kiekhaefer Corp. v. Willys-Overland Motors, Inc., 43 C. C. P. A. (Patents) 1013, 236 F. 2d 423, 111 USPQ 105. Appellee notes that an application by appellant for registration of “Slim” as a trademark was dropped after the filing of an opposition based on the mark “Klim.” However, it is not necessary that an opposer shall be the registrant or exclusive owner of the mark on which it relies. It is sufficient to show that the opposer would prob-. ably be damaged by the registration which it opposes. Vi-Jon Laboratories, Inc. v. Lentheric Inc., 30 C. C. P. A. (Patents) 916, 133 F. 2d 947, 56 USPQ 586. Likelihood of confusion affords sufficient evidence of probable damage, even though the opposer may not have used its mark as a technical trademark. George H. Ruth Gandy Co. v. The Curtiss Candy Co., 18 C. C. P. A. (Patents) 1471, 49 F. 2d 1033, 9 U. S. Pat. Q. 452; Virginia Dare Extract Co. Inc. v. Adah Mae Dare, 21 C. C. P. A. (Patents) 1086, 70 F. 2d 118, 21 U. S. Pat. Q. 334, and cases there cited. Appellee contends that, in view of the suggestive nature of “Slim,” appellant should not be allowed to prevent others from using that word, at least in its descriptive sense. However, the issue here is not' whether appellee is entitled to use the mark “Vita-Slim,” but whether it is entitled to register that mark. Since we are of the opinion that, concurrent use of “Slini” and “Vita-Slim” by the respective parties, on identical merchandise would be likely to result in confusion 'in-trade, we" }, { "docid": "23607142", "title": "", "text": "C. C. P. A. (Patents) 916, 133 F. 2d 947, 56 USPQ 586. Likelihood of confusion affords sufficient evidence of probable damage, even though the opposer may not have used its mark as a technical trademark. George H. Ruth Gandy Co. v. The Curtiss Candy Co., 18 C. C. P. A. (Patents) 1471, 49 F. 2d 1033, 9 U. S. Pat. Q. 452; Virginia Dare Extract Co. Inc. v. Adah Mae Dare, 21 C. C. P. A. (Patents) 1086, 70 F. 2d 118, 21 U. S. Pat. Q. 334, and cases there cited. Appellee contends that, in view of the suggestive nature of “Slim,” appellant should not be allowed to prevent others from using that word, at least in its descriptive sense. However, the issue here is not' whether appellee is entitled to use the mark “Vita-Slim,” but whether it is entitled to register that mark. Since we are of the opinion that, concurrent use of “Slini” and “Vita-Slim” by the respective parties, on identical merchandise would be likely to result in confusion 'in-trade, we conclude that the latter mark is not registrable to appellee in view of appellant’s prior use of the former, and the decision of the. Assistant Commissioner is accordingly reversed. Jackson, J., retired, recalled to participate." }, { "docid": "14831747", "title": "", "text": "his decision, the Examiner of Trade-Marks said : * * * The ground of refusal to register is that the mark is merely the name of an individual not distinctively displayed. The basis for refusal is the decision of the Assistant Commissioner in Cluett, Peabody & Co., Inc. v. Adelphi Shirt Co., 159 Ms. D., 778 [31 U. S. P. Q. 162], wherein, the mark “Lord Kent\" was refused registration under the 1905 Act. Therein the Assistant Commissioner said: “* * * I do not think the addition thereto of the title ‘Lord’ saves it from being merely the name of an individual within the meaning of the statute.” [Italics ours.] In the case of Cluett, Peabody & Co., Inc. v. Adelphi Shirt Co., 159 Ms. D. 778, 31 U. S. P. Q. 162, which was the basis for the holding of the Examiner of Trade-Marks in the instant case, the Commissioner of Patents, in holding that the trade-mark “Lord Kent” was confusingly similar to the trade-mark “Kent,” stated that, in addition to the term “Kent” being a geographical term, it was “admittedly a common surname,” and that the addition of the title “Lord” did not prevent the trade-mark “Lord Kent” from being merely the name of an individual within the meaning of the proviso contained in section 5 (b), supra. In support of sucb holding, the Commissioner cited the case of In re Artesian Mfg. Co., 37 App. D. C. 113, wherein it Ttas held that the trade-mark “Deacon Brown” was not registrable under the Trade-Mark Act of February 20, 1905, because the mark was merely the name of an individual, not displayed in a distinctive manner. In so holding, the court said: We agree with tbe Commissioner that “the name ‘Brown’ is a common surname, and the prefixing of the word ‘Deacon’ thereto no more renders it registrable than would the prefixing of the word ‘Mr.,’ ‘Dr.,’ ‘General,’ or the like.” The court then stated that the decision of the Commissioner was in harmony with other decisions on the subject which it cited, but which we deem unnecessary" }, { "docid": "2825139", "title": "", "text": "PAULINE NEWMAN, Circuit Judge. Owens-Corning Fiberglas Corporation (OCF) appeals from the decision of the United States Patent and Trademark Office’s Trademark Trial and Appeal Board (the Board) affirming the examining attorney’s denial of registration of the color “pink” as a trademark for fibrous glass residential insulation. We reverse. I. Alleging use in commerce since 1956, OCF applied on January 25, 1980, application Serial No. 247,707, for registration on the Principal Register of the color “pink” as uniformly applied to OCF’s fibrous glass residential insulation. The Board held that the overall color of goods is capable of functioning as a trademark, but affirmed the examiner’s denial of registration on the ground that OCF had not adequately demonstrated that the color “pink” is distinctive of OCF's goods. In re Owens-Corning Fiberglas Corp., 221 USPQ 1195 (TTAB 1984). The Board’s conclusion that there is no inherent bar to trademark registration of the color of goods, when the color is an overall color rather than in the form of a design, is in harmony with modern trademark theory and jurisprudence. Prior to passage of the Trademark Act of 1946, 15 U.S.C. § 1051 et seq. (the Lanham Act), color alone could not be registered as a trademark. In 1906 the Supreme Court wrote: Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go farther than this. A. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U.S. 166, 171, 26 S.Ct. 425, 426, 50 L.Ed. 710 (1906). The Patent Office and the courts followed this view. For example, applications were rejected to register the color violet for gasoline, In re General Petroleum Corp. of California, 49 F.2d 966, 9 USPQ 511 (CCPA 1931); and a blue-and-aluminum color for oil well reamers, In re Security Engineering Co., Inc., 113 F.2d 494, 46 USPQ 219 (CCPA 1940). Despite the prohibition on registration, during this early period some courts accorded owners of color marks protection" }, { "docid": "23607137", "title": "", "text": "the addition of the descriptive term “Vita,” confusion in trade was likely to result from concurrent use of the respective marks. The Assistant Commissioner held, however, that there was no likelihood of such confusion. She based that holding on' “the highly suggestive significance of ‘Slim’,” and the fact that appellant and its licensees did not use that word alone, but in combination with other words indicating origin, such as “Bellbrook,” “Mayflower,” “Pages,” or “Embassy,” which practice “has probably led the purchasing public to think of ‘Slim’ as a skim milk product put on the market by a dairy in their area, rather than as a trademark identifying the skim milk of opposer and distinguishing it from the skim milk of others.” As we understand the decision of the Assistant Commissioner, she does not hold that appellant’s use of “Slim” has not been a trademark use; and appellee could not well contend for such a'proposition since, as correctly stated by the Assistant Commissioner, appellee “uses ‘Vita-Slim’ in substantially the same way as opposer and its ‘franchises’ use ‘Slim’ — i. e., with the word mark ‘Hawthorne Mel-lody’ above the word ‘Vita-Slim’.” Apparently, it was the view .of the Assistant Commissioner that “Slim” as used by appellant-was a weak mark, and that the addition of the notation “Vita” to it was sufficient to avoid any likelihood of confusion. As was pointed out by the Examiner of Interferences, it is the general rule “that one may not appropriate the entire mark of another and avoid a likelihood of confusion by the addition thereto of descriptive or otherwise subordinate matter.” This court has made holdings to that effect in each of the following cases: Miller Becker Co. v. King of Clubs, Inc., 19 C. C. P. A: (Patents) 1024, 56 F. 2d 888, 12 U. S. Pat. Q. 480 (Ace and Ace-of-Clubs); Na tional Biscuit Co. v. Joseph W. Sheridan, 18. C. C. P. A. (Patents) 720, 44 F. 2d 987, 7 U. S. Pat. Q. 117 (American Beauty and American Beauty Rose); E-Z Mills, Inc. v. Martin Brothers Company, 25 C. C. P." }, { "docid": "17453120", "title": "", "text": "to hold that the tribunals of the Patent Office erred in that respect. We are in agreement with the tribunals of the Patent Office that as appellee was the first to file its application for registration,, and that as its claimed first use set forth therein is long prior to the-claimed first use in appellant’s application, appellee’s registration is prima facie proof that it was the owner of its registered mark. See Rosenberg Co. v. Phillips-Jones Co., Inc., supra, and General Baking Co. v. Commander-Larabee Corp., supra. We are also in agreement with the views expressed by the-tribunals of the Patent Office that appellant’s trade-mark “FEATHER TOUCH,” which is also highly suggestive of appellant’s cream, is confusingly similar to the notation “FEATHER-LIGHT” in appel-lee’s trade-mark and that, considering the trade-marks of the parties as a whole, the concurrent use of the trade-marks of the respective-parties on their goods would be likely to cause confusion in the minds of the public and deceive purchasers. In so holding, we have taken into consideration that the notation “FEATHER-LIGHT” in appel-lee’s mark is preceded by the word “ARDENA.” In view of the fact that the notation “FEATHER-LIGHT” has trade-mark significance, as used in appellee’s mark, it is not of vital importance that the term “LIGHT” has been disclaimed along with the words “FOUNDATION CREAM.” Nehi Corporation v. Household-Pac Corporation, supra. Furthermore, as stated in the decision of the Commissioner of Patents, the registration of appellant’s mark and the failure of appellee to file a notice of opposition to that registration does not in any way affect the right o.f appellee to petition for cancellation of appellant’s registration. Williams Oil-O-Matic Heating Corporation v. The Butler Co., 17 C. C. P. A. (Patents) 934, 39 F. (2d) 693, 5 U. S. Pat. Q. 245; White House Milk Products Co., etc. v. Dwinell-Wright Co., 27 C. C. P. A. (Patents) 1194, 111 F. (2d) 490, 45 USPQ 444. On the record presented, we are unable to hold that the tribunals of the Patent Office reached the wrong conclusion. The decision of the Commissioner of Patents is affonned." }, { "docid": "18701906", "title": "", "text": "V-shaped stripes in parallel relationship of contrasting colors. We agree with the Board of Appeals in its conclusion that there is nothing patentably novel in appellant’s design. Alternating stripes of color, arranged as they are here, are sufficiently shown by the references. Novelty is claimed in the appearance of the transparent ribbon with colored edges, it being contended that such a design is entirely different in appearance from anything heretofore shown by the art. It cannot be successfully argued that patentability of a design may rest on color alone. It has been well settled in a long line of decisions that color, if an essential feature of a design, must be so defined or connected with some symbol or design “that other manufacturers may know what they may safely do. * * * Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go farther than this.” A. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U. S. 166, 171. That has been the rule announced by this court. Lufkin Rule Co. v. Master Rule Mfg. Co., 17 C. C. P. A. (Patents) 1227, 40 F. (2d) 991; A. Leschen & Sons Rope Co. v. The American Steel & Wire Co., 19 C. C. P. A. (Patents) 851, 55 F. (2d) 455; Weil-McClain Co. v. American Radiator Co., 19 C. C. P. A. (Patents) 1137, 57 F. (2d) 353. In A. Leschen & Sons Rope Co. v. The American Steel & Wire Co., supra, in both the original and specially concurring opinions, the authorities on this subject are generally and exhaustively reviewed. The rule was the same in the Gourt of Appeals of the District of Columbia, our predecessor in this jurisdiction. In re American Circular Loom Co., 28 App. D. C. 446. The fact that the design here presented shows a transparent portion rather than a stripe of different color, as it seems to us, creates no" }, { "docid": "12396751", "title": "", "text": "of section 5 of the Trade-mark Act of 1905 (as amended), so as to bar registration of the mark “Bourbonet.” We must not lose sight of the fact that the dominant purpose of the said clause is to protect the purchasing public from confusion and mistake. Sun-Maid Raisin Growers of California v. American Grocer Co., 17 C. C. P. A. (Patents) 1034, 40 F. (2d) 116, 5 U. S. P. Q. 68; California Packing Corp. v. Tillman & Bendel, Inc., 17 C. C. P. A. (Patents) 1048, 40 F. (2d) 108, 5 U. S. P. Q,. 59; Skelly Oil Co. v. The Powerine Co., 24 C. C. P. A. (Patents) 790, 86 F. (2d) 752, 32 U. S. P. Q. 51. “It F Congress] never intended that a trade-mark should be registered if its use was likely to cause confusion or mistake in the mind of the public or if purchasers were likely to be deceived by its use.” Sun-Maid Raisin Growers of Calif. v. American Grocer Co., supra. The marks here are deceptively similar and are used upon goods of the same descriptive properties. Their concurrent use would be likely to confuse or deceive purchasers. From the public’s point of view it matters not that the mark “Dubonnet” is owned by one person and actually used in commerce by another.' The important thing is the likelihood that purchasers, upon seeing the mark “Bourbonet” on merchandise, would be confused or deceived into believing that the said merchandise had the same origin as that bearing the mark “Dubonnet.” This would be the very confusion and mistake which the act seeks to prevent. It is apparent, therefore, that we should give no effect in this case to appellant’s concession that it is not actively engaged in any commercial business. For the reasons herein expressed, the decision of the Commissioner of Patents that the registrations pleaded in the notice of opposition constitute no bar to the registration of applicant’s mark is reversed." }, { "docid": "12396750", "title": "", "text": "should be denied, regardless of the issues raised by the notice of opposition. * * * and we here reaffirm that doctrine. In our opinion, “It was not only the right but the duty of the tribunals of the Patent Office to determine, ex pariey and without reference to issues raised by the notice of opposition, whether the mark was entitled to registration.” Sparklets Corp. v. Walter Kidde Sales Co., 26 C. C. P. A. (Patents) 1342, 1345, 104 F. (2d) 396. 399, 42 U. S. P. Q. 73, 76. That was done by the Examiner of Interferences in this case, and it can make no difference who is the owner of the'prior registrations. The determination of the right of the applicant to register its mark is not to be limited to the issues raised by the notice of opposition. Appellee contends that since the registered mark “Dubonnet” is owned by the opposer but is used by another it cannot be considered as a mark “owned and in use by another,” under the confusion-in-trade clause of section 5 of the Trade-mark Act of 1905 (as amended), so as to bar registration of the mark “Bourbonet.” We must not lose sight of the fact that the dominant purpose of the said clause is to protect the purchasing public from confusion and mistake. Sun-Maid Raisin Growers of California v. American Grocer Co., 17 C. C. P. A. (Patents) 1034, 40 F. (2d) 116, 5 U. S. P. Q. 68; California Packing Corp. v. Tillman & Bendel, Inc., 17 C. C. P. A. (Patents) 1048, 40 F. (2d) 108, 5 U. S. P. Q,. 59; Skelly Oil Co. v. The Powerine Co., 24 C. C. P. A. (Patents) 790, 86 F. (2d) 752, 32 U. S. P. Q. 51. “It F Congress] never intended that a trade-mark should be registered if its use was likely to cause confusion or mistake in the mind of the public or if purchasers were likely to be deceived by its use.” Sun-Maid Raisin Growers of Calif. v. American Grocer Co., supra. The marks here are deceptively similar" }, { "docid": "19072611", "title": "", "text": "is whether this mark is validly open to complainant’s exclusive adoption, as representing goods of its manufacture. Broadly stated, complainant was at liberty to affix to its product any distinctive symbol or device, not previously appropriated, which would distinguish it. from articles of the same general nature manufactured or sold by others. Amoskeag v. Trainer, 101 U. S. 51, 25 L. Ed. 993. On the other hand, a mark must be something distinct from the thing marked. That is to say, the thing itself cannot be a trade-mark of itself; although it is no objection to the validity of an otherwise good mark that it is impressed upon or inherent in the article manufactured, as in the case of a watermark upon paper, a word or symbol blown into a glass bottle or jar, or an arbitrary mark on the head of a horseshoe nail. Capewell Horse Nail Co. v. Mooney (C. C.) 167 Fed. 575; s. c., 172 Fed. 826, 97 C. C. A. 248. Again, no valid trade-mark can be acquired in the use of a color not connected with some’ distinctive symbol or design. Leschen Rope Co. v. Broderick, 201 U. S. 166, 171, 26 Sup. Ct. 425, 50 L. Ed. 710; J. A. Scriven Co. v. Morris (C. C.) 154 Fed. 914, 918; Newcomer & Lewis v. Scriven Co. (C. C. A. 6th Cir.) 168 Fed. 621, 623, 94 C. C. A. 77; Diamond Match Co. v. Saginaw Match Co. (C. C. A. 6th Cir.) 142 Fed. 727, 729, 74 C. C. A. 59; Mumm v. Kirk (C. C.) 40 Fed. 589. As said by Mr. Justice Brown in Leschen Rope Co. v. Broderick, supra, 201 U. S. at page 171, 26 Sup. Ct. at page 426, 50 L. Ed. 710: “Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go farther than this.\" (Italics ours.) And as said by the present Mr. Justice Lurton, speaking for" }, { "docid": "19072612", "title": "", "text": "use of a color not connected with some’ distinctive symbol or design. Leschen Rope Co. v. Broderick, 201 U. S. 166, 171, 26 Sup. Ct. 425, 50 L. Ed. 710; J. A. Scriven Co. v. Morris (C. C.) 154 Fed. 914, 918; Newcomer & Lewis v. Scriven Co. (C. C. A. 6th Cir.) 168 Fed. 621, 623, 94 C. C. A. 77; Diamond Match Co. v. Saginaw Match Co. (C. C. A. 6th Cir.) 142 Fed. 727, 729, 74 C. C. A. 59; Mumm v. Kirk (C. C.) 40 Fed. 589. As said by Mr. Justice Brown in Leschen Rope Co. v. Broderick, supra, 201 U. S. at page 171, 26 Sup. Ct. at page 426, 50 L. Ed. 710: “Whether mere color can constitute a valid trade-mark may admit of doubt. Doubtless it may, if it be impressed in a particular design, as a circle, square, triangle, a cross, or a star. But the authorities do not go farther than this.\" (Italics ours.) And as said by the present Mr. Justice Lurton, speaking for this court in Newcomer & Lewis v. Scriven Co., supra, 168 Fed. at page 623, 94 C. C. A. at page 79: “Color, except in connection with some definite, arbitrary design, such as when impressed upon a circle, star, cross, or other figure, or employed in definite association with some'characteristics which serve to distinguish the article as made or sold by a particular person, is not the subject of monopoly as a trade-mark.” The owner of a valid trade-mark, otherwise distinctive, may, however, be protected against appropriation by a rival dealer ■ through mere change in color. Leschen Rope Co. v. Broderick, supra, 201 U. S. at page 172, 26 Sup. Ct. 425, 50 L. Ed. 710; A. Leschen, etc., Co. v. Broderick, 36 App. D. C. 451, 455. The pivotal question is whether the colored spots, as made and as appearing upon the surface of the cord, constitute a distinctive symbol or design appropriable as a trade-mark. It appears that it is common for manufacturers of various kinds of twisted and braided cords, including" }, { "docid": "22295285", "title": "", "text": "such a trade mark registration. While the time here involved is somewhat shorter than that described in the quoted excerpt, we consider the principle stated in the quotation to be applicable in the instant case. Appellant cannot properly be charged with acquiescence in appellee’s right to registration until appellant became aware that such a right had been asserted by appellee. Estoppel by reason of acquiescence and laches on the part of the owner of a trademark is applied against him by this court, either in an opposition or cancelation proceeding, depending on the explicit terms of the statute and from the facts established by the record in the case. See Willson et al. v. Graphol Products, Inc., supra; Schnur & Cohan, Inc. v. Academy of Motion Picture Arts, etc., 42 C. C. P. A. (Patents) 963, 223 F. 2d 478, 106 USPQ 181; West Disinfecting Co. v. Cliff C. Owen, 35 C. C. P. A. (Patents) 843, 165 F. 2d 450, 76 USPQ 315; Malone v. The Procter & Gamble Co., 20 C. C. P. A. (Patents) 1150, 65 F. 2d 154, 17 U. S. Pat. Q. 554; Heger Products Co. v. Polk Miller Products Corp., 18 C. C. P. A. (Patents) 1106, 47 F. 2d 966, 8 U. S. Pat. Q. 550, and authorities therein cited. It is entirely possible that appellant might have had no objection to ap-pellee’s use of the words “Nu-Maid,” in combination with a picture, but might have objected strongly, as it has done here, to appellee’s claim to ownership and exclusive right to use those words standing alone as a trademark for related goods. For the reasons given we are of the opinion that appellant was not estopped to contest appellee’s right to register its mark here involved and that the applicant’s mark is confusingly similar to appellant’s mark “Nu Made.” The decision of the Assistant Commissioner is accordingly reversed. Jackson, J., Eetired, recalled to participate herein in place of Cole, J., absent because of illness." }, { "docid": "4383601", "title": "", "text": "to keep in mind the fact that plaintiff’s and defend ant’s products admittedly are of the same descriptive quality. On the question of the' validity of the trade-mark, we start with the recognized rule that the registration of a trademark raises a strong presumption of its validity. Weiner, et al. v. National Tinsel Mfg. Co., 7 Cir., 123 F.2d 96, 98; Hemmeter Cigar Co. v. Congress Cigar Co., Inc., 6 Cir., 118 F.2d 64, 68; Feil v. American Serum Co., 8 Cir., 16 F.2d 88, 89. Trade-marks comprising colors or a combination of colors have rarely been considered by the Supreme Court. One of the few,cases, and perhaps the leading one, is Leschen & Son Rope Co. v. Broderick, & Bascom Rope Co., 201 U.S. 166, 26 S.Ct. 425, 50 L.Ed. 710. In that case, the trademark was used upon wire rope, the essential feature of which was “a strand of a: different color from the other strands of the rope.” The court held this mark invalid upon’ the ground that it was -too wide and indefinite. In doing so, however, the court ' among other things stated at page 171 of 201 U.S., at page 426 of 26 S.Ct., 50 L.Ed. 710: “ * * * if color be made the essential feature, it should be so defined, or connected with some symbol or design, that other manufacturers may know what they may safely do.” Further on the same page, the court after expressing doubt that mere color could constitute a valid trade-mark stated: “Doubtless it may, if it be impressed in a particular design, as a' circle, square, triangle, a cross or á star.” In Hygienic Products Co. v. Coe, 66 App. D.C. 98, 85 F.2d 264, 266, the Court of Appeals for the District of Columbia held in a mandamus proceeding against the Commissioner of Patents that the plaintiff was entitled to register a trade-mark consisting of “a rectangular yellow panel, bounded by contrasting dark blue border, applied to the can or other package containing the goods.” In that case, the Examiner had refused the right to" }, { "docid": "14546453", "title": "", "text": "encourage registration, and that there is a requirement that no trade-mark shall be refused registration, except in designated cases, which “ is just as imperative as the prohibition of the proviso against registration in cases specified,” citing Beckwith v. Commissioner of Patents, 274 O. G. 613, 252 U. S. 538; 1920 C. D. 471. Fully recognizing the fact that the proceeding is purely statutory, we nevertheless can not acquiesce in this contention to the extent that appellant’s insistence would lead. By the terms of the statute, ownership is an express prerequisite of the right to register. The opening words of the trade-mark registration act are “ That the owner of a trade-mark * * * may obtain registration * * Italics ours). This court, following many decisions of the Court of Appeals of the District of Columbia (our predecessor in this particular line of trade-mark jurisdiction) and of other courts having jurisdiction of trade-mark questions, including the Supreme Court of the United States, has had several occasions to point out that in passing the trade-mark registration act Congress added nothing to and took nothing from the common-law principles applying or relating to trade-mark ownership. B. F. Goodrich Co. v. Kenilworth Mfg. Co., 17 C. C. P. A. (Patents) 1105; Sum-Maid Raisin Growers of California v. American Grocer Co., 17 C. C. P. A. (Patents) 1034, 1037, and numerous cases therein cited. In re Plymouth Motor Corp., 18 C. C. P. A. (Patents) 838. In the Swi-Maid Raisin Growers case, supra, we said: Congress, by the enactment of the trade-mark act of 1905, never intended to authorize the registration of a trade-mark the use of which could be prevented by resort to common law. (See California Packing Corp. v. Tillman & Bendel (Inc.), Patent Appeal No. 2341, 17 Ct. Cust. & Pat. Appls. 1048, 40 Fed. (2d) 108, and B. F. Goodrich Co. v. Olive E. Hockmeyer, (Zip-On Mfg. Co., substituted), Patent Appeal No. 2208, 17 Ct. Cust. & Pat. Appls. 1068, 40 Fed. (2d) 99, both decided concurrently herewith. Also see Yale Electric Co. v. Robertson, 26 Fed. (2d) 972," }, { "docid": "19029769", "title": "", "text": "mark on the ground that the mark was merely descriptive of the products sold by both of the parties, 76 TTSPQ 60. Appellant contends that the concurring decisions rendered by the examiner and the Commissioner of Patents constitute gross error because appellant in its answer to appellee’s petition to cancel denied that appellee or its predecessor had continuously used the mark “Ju-C-Orange” since July 12, 1929, or prior to February 1, 1938, and further denied that appellee’s “registration was properly issued, that it is valid * * * or is owned” by appellee. Appellant contends further that cancelation of the registration of -appellee’s mark has a retroactive effect whereby appellee is and was deprived of any statutory rights to maintain an action for cancelation of appellant’s mark; that appellee does not now have and never •did have a right to intervene or be heard; that since the registration of appellee’s mark has now been canceled,' the issue of confusing similarity has become moot; and that there is no known provision •of the Trade-Mark Act of 1905 which justifies the ex parte cancelation of a registration by the Examiner of Interferences, the Commissioner of Patents, or by this court, citing “Lactona, Inc. v. Lever Bros. Co., 32 C. C. P. A. (Patents) 704, Revere Paint Co. v. 20th Century Chemical Co., 32 C. C. P. A. (Patents) 1096-1102 and others.” It is elementary that a mark merely descriptive of the quality of the merchandise with which the mark is used cannot be appropriated or exclusively used as a trade-mark. In re W. A. Sheaffer Pen Co., 34 C. C. P. A. (Patents) 704, 158 F. (2d) 390, 72 USPQ 129; Van Camp Sea Food Co., Inc. v. Westgate Sea Products Co., 28 F. (2d) 957. The owner of such a mark may rely, however, upon the mark as a ground of recovery in a cancelation proceeding. Derby Oil Company v. White Star Refining Co., 20 C. C. P. A. (Patents) 816, 819, 62 F. (2d) 984, 16 U. S. Pat. Q. 297. The Supreme Court has recognized the rule that the" }, { "docid": "17194680", "title": "", "text": "llie application, in common black-face type. We have not had occasion heretofore to pass upon an issue precisely like this. Applicant has directed our attention to the case of Whitman Publishing Co. v. McLoughlin Bros., Inc., 25 C. C. P. A. (Patents) 1298, 97 F. (2d) 608. It is sufficient to say that that was an interference proceeding involving the matter of priority and upon the issues as there presented we gave no consideration to the precise character of the conflicting marks. In the ex parte case at bar the right of applicant to register is the sole question to be determined. In the course of his decision the Commissioner of Patents, speaking through Assistant Commissioner Frazer, said: I think applicant’s contention is without merit. The statute forbids the registration of either word alone, and I can find no reasonable basis for holding that their association together results in a registrable combination. Applicant has filed a disclaimer of “any attempt to cover by this registration the word ‘Piperazine’ or the word ‘Midy’ except in the precise relation, association, and arrangement shown herein.” The office of a disclaimer is that of “distinguishing, Avithout deleting, nonregistrable matter in the drawing of the mark as registered. Beckwith v. Commissioner of Patents, 252 U. S. 538, 1920 C. D. 471. And where, as here, the entire mark is nonregistrable, there would seem to he nothing from which to distinguish. I do not think that any mark should be accepted for registration under the Act of 1905, unless it includes at least one element that is registrable without disclaimer. We have found it somewhat difficult to follow the reasoning of counsel for appellant. His contention is based, in part at least, upon the decision of the Supreme Court of the United States in the well-known case of Beckwith v. Commr. of Patents, 252 U. S. 538, decided at a time ivlien that court took jurisdiction of certain trade-mark registration controversies. The application there involved was for registration of a mark to be applied to “Hot air and combined hot air and hot water heaters and" }, { "docid": "14831746", "title": "", "text": "as the names of the individuals who bore them, rather than the family names — Gordon, DuMotier, Wesley, Capel, and Stanhope, respectively. It is also contended in the brief of the Solicitor that, although the name “Chesterfield” may have a secondary meaning, such as elegance, the name is not registrable merely for that reason, and the decision of this court in the case of In re Canada Dry Ginger Ale, Inc., 24 C. C. P. A. (Patents) 804, 86 F. (2d) 830, overruling our decision in the case of In re Plymouth Motor Corporation, 18 C. C. P. A. (Patents) 838, 46 F. (2d) 211, so far as it held that a geographical term was registrable as a trade-mark if it had acquired a secondary meaning, was cited in support of that contention. As will be observed, the Commissioner of Patents stated in his decision that the Examiner of Trade-Marks had refused registration of the involved mark on the ground that it is the name of an individual, not displayed in a distinctive manner. In his decision, the Examiner of Trade-Marks said : * * * The ground of refusal to register is that the mark is merely the name of an individual not distinctively displayed. The basis for refusal is the decision of the Assistant Commissioner in Cluett, Peabody & Co., Inc. v. Adelphi Shirt Co., 159 Ms. D., 778 [31 U. S. P. Q. 162], wherein, the mark “Lord Kent\" was refused registration under the 1905 Act. Therein the Assistant Commissioner said: “* * * I do not think the addition thereto of the title ‘Lord’ saves it from being merely the name of an individual within the meaning of the statute.” [Italics ours.] In the case of Cluett, Peabody & Co., Inc. v. Adelphi Shirt Co., 159 Ms. D. 778, 31 U. S. P. Q. 162, which was the basis for the holding of the Examiner of Trade-Marks in the instant case, the Commissioner of Patents, in holding that the trade-mark “Lord Kent” was confusingly similar to the trade-mark “Kent,” stated that, in addition to the term" }, { "docid": "4383602", "title": "", "text": "and indefinite. In doing so, however, the court ' among other things stated at page 171 of 201 U.S., at page 426 of 26 S.Ct., 50 L.Ed. 710: “ * * * if color be made the essential feature, it should be so defined, or connected with some symbol or design, that other manufacturers may know what they may safely do.” Further on the same page, the court after expressing doubt that mere color could constitute a valid trade-mark stated: “Doubtless it may, if it be impressed in a particular design, as a' circle, square, triangle, a cross or á star.” In Hygienic Products Co. v. Coe, 66 App. D.C. 98, 85 F.2d 264, 266, the Court of Appeals for the District of Columbia held in a mandamus proceeding against the Commissioner of Patents that the plaintiff was entitled to register a trade-mark consisting of “a rectangular yellow panel, bounded by contrasting dark blue border, applied to the can or other package containing the goods.” In that case, the Examiner had refused the right to register “on the ground that what is claimed as a trade-mark is not in fact a trade-mark, i. e., that it is not such a device as would ordinarily indicate to the public origin or ownership of the goods.” In deciding to the contrary, the court held it to be settled law that color may constitute a valid trade-mark, provided it is impressed in a particular design, citing the Leschen case, supra. In Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 6 Cir., 119 F.2d 316, the trade-mark which the court recognized as valid consisted of a red circular plug embedded in the center of a rubber heel. The Supreme Court allowed certiorari solely on the question of the measure of damages recoverable by the plaintiff and reversed on the ground that the rule announced by the lower courts for determining such damages was not adequate. Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381. While the question as to the" } ]

[ { "docid": "17499038", "title": "", "text": "would have been prevented by other causes from performing its work when the Government’s actions did in fact cause its damage. The Clause does not mention any consideration of concurrent causation in determining entitlement and this gap may have prompted the redrafting of the Clause in 1960. The 1960 Clause seems specifically to preclude recovery if the contractor would have been equally delayed by other concurrent causes regardless of the Government’s action or inaction. The Clause prevents any allocation of damages because it in effect determines that a contractor is not entitled to any recovery. It should be noted that the Clause does not weigh whether the Government’s action is of less importance than the concurrent cause or whether the concurrent factor is a superseding action. Under the 1960 Clause, a contractor would be entitled to recovery only if the Government’s delay is the sole proximate cause of the contractor’s additional loss and only if the contractor would not have been delayed for any other reason during that period. The pre-1960 Clause used here is not as specific as the 1960 version. The Board, in denying that plaintiff was entitled to an equitable adjustment because of the lack of an underpass and the severe rains, read a sentence into the contract which was not in the pre-1960 Clause. The question to be resolved is whether the Government’s action or inaction caused the contractor additional expense or loss. The fact that something else might have caused the contractor to be delayed is not relevant in this inquiry. Only if it is determined that the contractor did not suffer any additional loss due to the Government’s delay but that it was injured by some other superseding intervening cause, would plaintiff not be entitled to recovery. A contractor is entitled to recover, under the pre-1960 Clause if the Government’s delay is the proximate cause of the contractor’s additional loss, even if some other occurrence might have hypothetically caused a like delay during that time. A contractor would be denied recovery here only if it could be shown that the Government’s delay did not" } ]

[ { "docid": "12251461", "title": "", "text": "that a contractor is only entitled to recover under the Suspension clause when the government’s actions are the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period. Id. Accordingly, we need to determine whether “any other cause” would have delayed Triax’s performance. Triax argues that the Board erred in finding that the government was not the sole proximate cause of Triax’s delay in the performance of the contract. We do not agree. Although one cause of the resultant delay may have been the failure of the government to issue the notice to proceed within the contract deadline, another concurrent cause was Triax’s late performance on the earlier contract. Pursuant to the contract, during the Phase II construction, the housing units could not be occupied. On the day the Phase II notice to proceed should have been issued, some families remained in each of the Phase II buildings. Due to Triax’s late performance on the earlier contract, these families could not have been moved into the Phase I housing units. As a result, Triax could not begin performance on these occupied Phase II buildings until Triax completed the Phase I housing units. Therefore, the Board did not err in finding that Triax’s late performance on the earlier contract was a concurrent cause of the delay. Accordingly, under the Suspension clause, Triax is prevented from recovering any additional costs it incurred as a result of this delay. Triax also argues that it has already compensated the government for its late performance on the earlier contract and that, if it cannot obtain a contract adjustment in this case, it will in effect be paying twice for its earlier error. We do not accept this argument. Triax is not paying twice for its error, even if one considers that failure to obtain delay compensation will result in a cost to Triax. Regardless of its having compensated the government on the earlier contract, its ability to recover under the second is precluded by the plain fact that the delay was due" }, { "docid": "16225764", "title": "", "text": "Corp. v. Gen. Servs. Admin., 95-1 B.C.A. (CCH) ¶ 27,317, at 136, 185-86 (G.S.B.C.A. Nov.8, 1994). One possible method a contractor in Nicon’s situation may use to obtain unabsorbed overhead damages as part of its termination for convenience settlement is an equitable adjustment under the contract’s suspension of work clause. The suspension clause provides for adjustments when: performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of [the] contract, or (2) by the Contracting Officer’s failure to act within the time specified in this contract (or within a reasonable time if not specified).... 48 C.F.R. § 52.242-14 (2002). Even if there is no date set in the contract by which a notice to proceed must issue, there is an implied obligation on the part of the government to issue the notice to proceed within a reasonable time. Ross Eng’g Co. v. United States, 92 Ct.Cl. 253 (1940). Therefore, damages for unreasonable delay in issuing the notice to proceed may be recovered under the suspension clause. See Triax-Pacific v. Stone, 958 F.2d 351, 354-55 (Fed.Cir.1992) (noting that a delay in issuing a notice to proceed is not remediable as a breach but that costs may be recovered as an equitable adjustment under the suspension of work clause). Damages for a portion of unabsorbed overhead may be a part of this recovery. See M.E. Brown, 91-1 B.C.A. (CCH) ¶ 23,293, at 116,817-19 (A.S.B.C.A. Aug.28, 1990) (finding that the contractor was entitled as part of its termination for convenience settlement to an adjustment under the suspension clause including unabsorbed overhead to compensate for the government’s unreasonable delay in issuing the notice to proceed); see also Marine Constr. & Dredging, Inc., 95-1 B.C.A. (CCH) ¶ 27,286, at 27,285-86 (A.S.B.C.A. Oct.31, 1994). In this case, Nicon sought damages for unabsorbed home office overhead in its Termination Settlement Proposal to compensate it for the government’s delay. The Defense Contract Audit Agency audited Nicon’s proposal, and concluded that “based on the Eichleay formula, the fixed" }, { "docid": "12251462", "title": "", "text": "been moved into the Phase I housing units. As a result, Triax could not begin performance on these occupied Phase II buildings until Triax completed the Phase I housing units. Therefore, the Board did not err in finding that Triax’s late performance on the earlier contract was a concurrent cause of the delay. Accordingly, under the Suspension clause, Triax is prevented from recovering any additional costs it incurred as a result of this delay. Triax also argues that it has already compensated the government for its late performance on the earlier contract and that, if it cannot obtain a contract adjustment in this case, it will in effect be paying twice for its earlier error. We do not accept this argument. Triax is not paying twice for its error, even if one considers that failure to obtain delay compensation will result in a cost to Triax. Regardless of its having compensated the government on the earlier contract, its ability to recover under the second is precluded by the plain fact that the delay was due to its own fault. The Suspension clause does not limit the meaning of the word “fault” to fault under the same contract. Triax’s fault, however adequately compensated for under the earlier contract, prevents it from recovering from the government for delays in the second contract. Moreover, were Triax to prevail, then it is possible that the net result of liquidated damages paid by Triax on the earlier contract and an equitable adjustment recovered by Triax here could mean that Triax’s late performance on the earlier contract would effectively have had no penalty. The two recoveries might cancel each other out, a result clearly not intended by the contract. Triax also argues that the Board’s findings were not supported by substantial evidence. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” United States v. General Electric Corp., 727 F.2d 1567, 1572 (Fed.Cir.1984). Applying this standard and having considered Triax’s arguments, we conclude that the Board’s findings were supported by substantial evidence. CONCLUSION The Board did not err" }, { "docid": "12251456", "title": "", "text": "contract, specifically the Changes and Suspension of Work clauses, and that Triax’s claim was not remediable under a breach of contract claim. The Changes clause states that The Contracting Officer may ... make changes in the work within the general scope of the contract. If any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work under this contract ... the Contracting Officer shall make an equitable adjustment. 48 C.F.R. § 52.243-4 (1990). The Suspension of Work clause provides that If the performance of all or any part of the work is, for an unreasonable period of time ... delayed ... by the Contracting Officer’s failure to act within the time specified in this contract ..., an adjustment shall be made for any increase in the cost of performance of this contract. However, no adjustment shall be made under this clause for any ... delay ... to the extent that performance would have been so ... delayed ...by any other cause, including the fault or negligence of the Contractor. 48 C.F.R. § 52.212-12 (1990) (Emphasis added). ISSUE Whether the Board erred in denying Triax’s claim for the additional costs it incurred when Phase II of the contract was delayed? DISCUSSION Our standard of review is set forth in 41 U.S.C. § 609(b) (1988), as follows: the decision of the [Board] on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence. The Board’s interpretation of a contract is a legal conclusion which we review de novo. George Hyman Constr. Co. v. United States, 832 F.2d 574, 579 (Fed.Cir.1987). However, the Board’s interpretation is given careful consideration, as it has considerable experience and expertise in interpreting government contracts. Alvin Ltd. v. United States Postal Serv., 816" }, { "docid": "11110723", "title": "", "text": "language, bar recovery because a contractor would have been prevented by other causes from performing its work when the 'Government’s actions did in fact cause its damage. The Clause does not mention any consideration of concurrent causation in determining entitlement and this gap may have prompted the redrafting of the Clause in 1960. The 1960 Clause seems specifically to preclude recovery if the contractor would have been equally delayed by other concurrent causes regardless of the Government’s action or inaction. The Clause prevents any allocation of damages because it in effect determines thlat a contractor is not entitled to any recovery. It should be noted that the Clause does not weigh whether the Government’s action is of less importance than the concurrent cause or whether the concurrent factor is a superseding action. Under the 1960 Clause, a contractor would be entitled to recovery only if the Government’s delay is the sole proximate cause of the contractor’s additional loss and only if the contractor would not have been delayed for any other reason during that period. The pre-1960 Clause used here is not as specific as the 1960 version. The Board, in denying that plaintiff was entitled to an equitable adjustment because of the lack of an underpass and the severe rains, read a sentence into the contract which was not in the pre-1960 Clause. The question to be resolved is whether the Government’s action or inaction caused the contractor additional expense or loss. The fact that something else might ha/oe earned the contractor to be delayed is not relevant in this inquiry. Only if it is determined that the contractor did not suffer any additional loss due to the Government’s delay but that it was injured by some other superseding intervening cause, would plaintiff not be entitled to recovery. A contractor is entitled to recover, under the pre-1960 Clause if the Government’s delay is the proximate Cause of the contractor’s additional loss, even if some other occurrence might have hypothetically caused a like delay during that time. A contractor would be denied recovery here only if it could be shown" }, { "docid": "12251463", "title": "", "text": "to its own fault. The Suspension clause does not limit the meaning of the word “fault” to fault under the same contract. Triax’s fault, however adequately compensated for under the earlier contract, prevents it from recovering from the government for delays in the second contract. Moreover, were Triax to prevail, then it is possible that the net result of liquidated damages paid by Triax on the earlier contract and an equitable adjustment recovered by Triax here could mean that Triax’s late performance on the earlier contract would effectively have had no penalty. The two recoveries might cancel each other out, a result clearly not intended by the contract. Triax also argues that the Board’s findings were not supported by substantial evidence. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” United States v. General Electric Corp., 727 F.2d 1567, 1572 (Fed.Cir.1984). Applying this standard and having considered Triax’s arguments, we conclude that the Board’s findings were supported by substantial evidence. CONCLUSION The Board did not err in denying Triax’s claim for the additional costs it incurred when Phase II of the contract was delayed. AFFIRMED." }, { "docid": "2916591", "title": "", "text": "adjustment is provided for or excluded under any other term or condition of this contract. 48 C.F.R. § 52.212-12(b) (1994); 48 C.F.R. § 52.242-14(b) (2004). Whether a government-caused delay is reasonable or unreasonable depends on the particular circumstances of the case. P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed.Cir.2002). “What is a reasonable period of time for the government to do a particular act under the contract is entirely dependent upon the circumstances of the particular case.” Tri-Cor, Inc. v. United States, 198 Ct.Cl. 187, 458 F.2d 112, 131 (1972) (citing Specialty Assembling & Packing Co. v. United States, 174 Ct.Cl. 153, 355 F.2d 554, 565 (1966)). Delays due to defective contract specifications, however, are per se unreasonable. Essex Electro, 224 F.3d at 1289. c. Government action or inaction must be the sole proximate cause of the delay For the government to be found to have caused compensable delay, the general rule is that the government must have been “the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period.” Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed.Cir.1992) (citing Merritt-Chapman & Scott Corp. v. United States, 208 Ct.Cl. 639, 528 F.2d 1392, 1397 (1976)). The “sole proximate cause” concept is also found in the text of the Suspension of Work clause: However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract. 48 C.F.R. § 52.212-12(b) (1994); 48 C.F.R. § 52.242-14(b) (2004). Thus, even if the government has caused an unreasonable delay to contract work, that delay will not be compensable if the contractor, or some other factor not chargeable to the government, has caused a delay concurrent with the government-caused delay. In Triax-Pacific, for example, the Federal Circuit held that because the plaintiff had" }, { "docid": "12251457", "title": "", "text": "any other cause, including the fault or negligence of the Contractor. 48 C.F.R. § 52.212-12 (1990) (Emphasis added). ISSUE Whether the Board erred in denying Triax’s claim for the additional costs it incurred when Phase II of the contract was delayed? DISCUSSION Our standard of review is set forth in 41 U.S.C. § 609(b) (1988), as follows: the decision of the [Board] on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence. The Board’s interpretation of a contract is a legal conclusion which we review de novo. George Hyman Constr. Co. v. United States, 832 F.2d 574, 579 (Fed.Cir.1987). However, the Board’s interpretation is given careful consideration, as it has considerable experience and expertise in interpreting government contracts. Alvin Ltd. v. United States Postal Serv., 816 F.2d 1562, 1564 (Fed.Cir.1987). In this case, the Board’s interpretation of the contract was not erroneous. Triax argues that the Board’s determination that Triax was not entitled to recover under a breach of contract claim misconstrued the intent of the Contract Disputes Act and the holding of the court in Johnson & Sons Erectors Co. v. United States, 231 Ct.Cl. 753, cert. denied, 459 U.S. 971, 103 S.Ct. 303, 74 L.Ed.2d 283 (1982). Triax states that since the Board held that it cannot recover under the contract, it should be entitled to seek recovery under a breach of contract claim. We do not agree. In Johnson & Sons, one of our predecessor courts stated that contract clauses providing for equitable adjustments remove the contractor’s obligation to declare the contract at an end and cease performance in order to avoid a waiver and save its rights. Id. at 757. As a result, claims for breach of contract are claims for equitable adjustment. Id. at 758. There fore, contingencies contemplated by various contract clauses are remediable under" }, { "docid": "16225765", "title": "", "text": "issuing the notice to proceed may be recovered under the suspension clause. See Triax-Pacific v. Stone, 958 F.2d 351, 354-55 (Fed.Cir.1992) (noting that a delay in issuing a notice to proceed is not remediable as a breach but that costs may be recovered as an equitable adjustment under the suspension of work clause). Damages for a portion of unabsorbed overhead may be a part of this recovery. See M.E. Brown, 91-1 B.C.A. (CCH) ¶ 23,293, at 116,817-19 (A.S.B.C.A. Aug.28, 1990) (finding that the contractor was entitled as part of its termination for convenience settlement to an adjustment under the suspension clause including unabsorbed overhead to compensate for the government’s unreasonable delay in issuing the notice to proceed); see also Marine Constr. & Dredging, Inc., 95-1 B.C.A. (CCH) ¶ 27,286, at 27,285-86 (A.S.B.C.A. Oct.31, 1994). In this case, Nicon sought damages for unabsorbed home office overhead in its Termination Settlement Proposal to compensate it for the government’s delay. The Defense Contract Audit Agency audited Nicon’s proposal, and concluded that “based on the Eichleay formula, the fixed overhead costs are not allocable, hence, the unabsorbed overhead costs are not allowable.” The Audit Agency, citing Worsham Construction Co., 85-2 B.C.A. (CCH) ¶ 18,-016 (A.S.B.C.A. Mar.22, 1985), stated that unabsorbed overhead costs are allowable in the context of a termination for convenience, but that in this particular case, such costs were not allocable and hence not allowable. The contracting officer agreed and denied damages for unabsorbed home office overhead. As explained above, we agree that such costs are not allocable based on the Eichleay formula, as the formula is only applicable in situations in which contract performance has begun, but we do not agree that there is no other method of allocation possible under these circumstances. It would be inappropriate in the termination for convenience setting, where fairness to the contractor is the touchstone, to rigidly apply a formula developed in different factual circumstances and thereby deny the contractor fair compensation for unabsorbed home office overhead. Indeed, such would be contrary to the letter and spirit of 48 C.F.R. § 49.201(a). However, a contractor" }, { "docid": "12251458", "title": "", "text": "F.2d 1562, 1564 (Fed.Cir.1987). In this case, the Board’s interpretation of the contract was not erroneous. Triax argues that the Board’s determination that Triax was not entitled to recover under a breach of contract claim misconstrued the intent of the Contract Disputes Act and the holding of the court in Johnson & Sons Erectors Co. v. United States, 231 Ct.Cl. 753, cert. denied, 459 U.S. 971, 103 S.Ct. 303, 74 L.Ed.2d 283 (1982). Triax states that since the Board held that it cannot recover under the contract, it should be entitled to seek recovery under a breach of contract claim. We do not agree. In Johnson & Sons, one of our predecessor courts stated that contract clauses providing for equitable adjustments remove the contractor’s obligation to declare the contract at an end and cease performance in order to avoid a waiver and save its rights. Id. at 757. As a result, claims for breach of contract are claims for equitable adjustment. Id. at 758. There fore, contingencies contemplated by various contract clauses are remediable under those clauses of the contract, not as a breach of the contract. Id. at 759. In this case, the Suspension clause contemplates equitable adjustments for unreasonable delays in the performance of the contract. Therefore, in order for Triax to recover for the government’s delay in issuing the notice to proceed on Phase II, any additional costs must be recovered under the Suspension clause. Thus, the Board did not err in deciding that Triax’s claim was not remediable under a breach of contract claim. Triax also argues that its additional costs should be recoverable under the Changes clause. Triax states that the Suspension clause cannot be applied when another clause of the contract covers the contingency. However, since the late issuance of the notice to proceed resulted in a delay of the contract, as opposed to a change in the work to be performed in the contract, it is the Suspension clause rather than the Changes clause which applies here. The Suspension clause states that a contractor will not be entitled to an equitable adjustment “to" }, { "docid": "2916590", "title": "", "text": "time to make changes before it becomes hable for delay.” Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir. 2000). The Suspension of Work clause employs the term unreasonable to describe compensable delays: (b) If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract, or (2) by the Contracting Officer’s failure to act within the time specified in this contract (or within a reasonable time if not specified), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract. 48 C.F.R. § 52.212-12(b) (1994); 48 C.F.R. § 52.242-14(b) (2004). Whether a government-caused delay is reasonable or unreasonable depends on the particular circumstances of the case. P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed.Cir.2002). “What is a reasonable period of time for the government to do a particular act under the contract is entirely dependent upon the circumstances of the particular case.” Tri-Cor, Inc. v. United States, 198 Ct.Cl. 187, 458 F.2d 112, 131 (1972) (citing Specialty Assembling & Packing Co. v. United States, 174 Ct.Cl. 153, 355 F.2d 554, 565 (1966)). Delays due to defective contract specifications, however, are per se unreasonable. Essex Electro, 224 F.3d at 1289. c. Government action or inaction must be the sole proximate cause of the delay For the government to be found to have caused compensable delay, the general rule is that the government must have been “the sole proximate cause of the contractor’s additional loss, and the contractor would" }, { "docid": "2916592", "title": "", "text": "not have been delayed for any other reason during that period.” Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed.Cir.1992) (citing Merritt-Chapman & Scott Corp. v. United States, 208 Ct.Cl. 639, 528 F.2d 1392, 1397 (1976)). The “sole proximate cause” concept is also found in the text of the Suspension of Work clause: However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this contract. 48 C.F.R. § 52.212-12(b) (1994); 48 C.F.R. § 52.242-14(b) (2004). Thus, even if the government has caused an unreasonable delay to contract work, that delay will not be compensable if the contractor, or some other factor not chargeable to the government, has caused a delay concurrent with the government-caused delay. In Triax-Pacific, for example, the Federal Circuit held that because the plaintiff had also caused delay to contract performance, it was not entitled to an equitable adjustment for government-caused delays under the Suspension of Work clause. 958 F.2d at 354. d. The burden of proof for compensable delay is borne by the contractor When an equitable adjustment is being sought for government-caused delay, “the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor.” Wilner v. United States, 24 F.3d 1397, 1401 (Fed.Cir.1994) (en banc). In some cases, this burden may be met if the contractor proves four elements: the government’s delay was of unreasonable length, the government was the proximate cause of the contractor’s delayed performance, the contractor was injured, and there was no concurrent delay on the part of the contractor. P.J. Dick Inc. v. Principi, 324 F.3d 1364, 1374-75 (Fed.Cir. 2003); CEMS, Inc. v. United States, 59 Fed.Cl. 168, 230 (2003). Justification of an equitable adjustment for delay-related damages is more complex, however, when both parties have contributed" }, { "docid": "12251454", "title": "", "text": "LOURIE, Circuit Judge. Triax-Pacific appeals from the January 9, 1991, decision of the Armed Services Board of Contract Appeals, ASBCA No. 36353, 91-2 B.C.A. (CCH) 1123,724, 1991 WL 8533, denying Triax’s claim for delay and additional costs associated with a contract to renovate family housing quarters. Because the Board correctly found that the contract delay was the fault of Triax, we affirm. BACKGROUND On March 31, 1986, Triax was awarded a contract to perform improvements to family housing quarters at Fort Lee, Virginia. The work under the contract was divided into three phases, designated as Phase I, Phase II, and Phase III. Triax was required to commence work within 10 calendar days after receiving a notice to proceed; that requirement existed for each phase. The notice to proceed on Phase II was to be issued within 60 days after the notice to proceed on Phase I. Earlier, Triax had been awarded another contract to perform substantially the same improvements on other units of the family housing quarters. Triax was 60 days late in completing performance on this earlier contract and was assessed $33,335 in liquidated damages. Triax’s late performance on this earlier contract, as described by the Board, had “the effect of reducing the number of housing units available for occupancy” during Triax’s performance on the second contract. Shortly after Triax received notice to proceed on Phase I, the government told Triax that its late performance on the earlier contract might result in delaying the notice to proceed on Phase II of the second contract. Consequently, the notice to proceed on Phase II was not issued until 53 days after the August 8, 1986 deadline. Triax submitted a certified claim for additional costs due to the delay. Upon denial of its claim by the contracting officer, Triax sought review by the Board. The Board found that the government’s delay in issuing the notice to proceed on Phase II of the second contract was due to Triax’s late performance on the earlier contract. Consequently, the Board determined that Triax’s additional costs could not be recovered under the provisions of the second" }, { "docid": "21263190", "title": "", "text": "increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contact modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor____ The content of the Suspension of Work clause has been delineated in precedent, binding on this court, of the Court of Claims and the Federal Circuit. A primary objective of the Suspension of Work clause is to provide a contractual basis for compensating a contractor for government-caused delays of an unreasonable duration. Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699, 421 F.2d 728 (1970). In order to recover under the Suspension of Work clause, a contractor must show that (1) contract performance was delayed; (2) the government directly caused the delay; (3) the delay was for an unreasonable period of time; and (4) the delay injured the contractor in the form of additional expense or loss. John A. Johnson & Sons, Inc. v. United States, 180 Ct.Cl. 969, 986, 1967 WL 8810 (1967); River Constr. Cory, v. United States, 159 Ct.Cl. 254, 270, 1962 WL 9302 (1962). The burden of proof is upon the contractor to establish that defendant did in fact cause delay, and further that any delay adversely affected the project, entitling the plaintiff to an equitable adjustment. See William F. Klingen-smith, Inc. v. United States, 731 F.2d 805 (Fed.Cir.1984); Blinderman Constr. Co. v. United States, 695 F.2d 552 (Fed.Cir.1982); DeMatteo Constr. Co. v. United States, 220 Ct.Cl. 579, 600 F.2d 1384 (1979). Constructive suspension results, even when a CO fails to issue a stop work order, when a contractor is effectively suspended or delayed. Merritt-Chapman & Scott Corp. v. United States, 192 Ct.Cl. 848, 429 F.2d 431, 443 (1970). The clause does not define what is a reasonable or unreasonable period of delay. DeMatteo Constr. Co., 600 F.2d at 1390. Whether a particular delay is reasonable or" }, { "docid": "23041544", "title": "", "text": "contract impossible. Triax also claimed that the Army’s interpretation would produce results at odds with customary commercial practice. According to Triax, concrete masonry units such as those to be used on the lanais are frequently left unpainted. Triax also noted that the wood specified for the lanai roof beams is a rough, structural grade that is ill-suited for painting but that has a “rustic” attractiveness in its unpainted state. Triax claimed that if the Army wanted the lanai beams to be painted, the only commercially reasonable course of action would have been to specify a better grade of wood requiring less surface preparation before painting. Finally, Triax argued that because paint degrades over time, the Army’s insistence that the lanais be painted would eventually result in a less attractive finished product. The Board of Contract Appeals rejected Triax’s arguments and held that section 9900 of the contract constituted a clear direction to Triax to paint all the surfaces listed in the Painting Schedule, including the surfaces of the lanais. The Board found that the absence of specific directions on the drawings to paint the lanais was not a flaw in the contract, because the plans and specifications were intended to be read together in defining the scope of the work. In its opinion, the Board recognized that accepting the Army’s proffered interpretation created a conflict between the curing and timely performance sections of the contract, but found that the conflicts “do not alter the clear requirement for painting the new surfaces.” II As the issue in this case is solely one of contract construction, we review the findings of the Board de novo. See Interstate Gen. Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1434 (Fed.Cir.1992). We give the Board’s interpretation careful consideration, however, in light of its experience and expertise in construing government contracts. See Triax-Pacific v. Stone, 958 F.2d 351, 353 (Fed.Cir.1992). A Triax contends that the Board’s construction of the contract is unreasonable because it results in a conflict between the painting requirements, the curing directive, and the period allotted for performance. The government responds that the" }, { "docid": "23041545", "title": "", "text": "of specific directions on the drawings to paint the lanais was not a flaw in the contract, because the plans and specifications were intended to be read together in defining the scope of the work. In its opinion, the Board recognized that accepting the Army’s proffered interpretation created a conflict between the curing and timely performance sections of the contract, but found that the conflicts “do not alter the clear requirement for painting the new surfaces.” II As the issue in this case is solely one of contract construction, we review the findings of the Board de novo. See Interstate Gen. Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1434 (Fed.Cir.1992). We give the Board’s interpretation careful consideration, however, in light of its experience and expertise in construing government contracts. See Triax-Pacific v. Stone, 958 F.2d 351, 353 (Fed.Cir.1992). A Triax contends that the Board’s construction of the contract is unreasonable because it results in a conflict between the painting requirements, the curing directive, and the period allotted for performance. The government responds that the directions in the Painting Schedule clearly encompass the lanai surfaces and that any conflict with the curing requirement and performance time is illusory because the Army did not insist on compliance with the contractually mandated curing period. The government’s response, however, misses the point. Without regard to whether the Army was ultimately willing to waive the curing directive in the contract, that directive is facially inconsistent with the government’s interpretation of the contract’s painting requirements and thus undercuts the government’s argument that the contract is unambiguous. While we reject the government’s contention that the contract is unambiguous, we also reject Triax’s interpretation of the contract as not requiring any of the lanai surfaces to be painted. The Board rejected Triax’s interpretation of the contract as inconsistent with case law and “unsupported by any contract language.” We agree with the Board that Triax’s interpretation conflicts with the plain language of section 9900 of the contract and therefore cannot be adopted. In arguing that the contract does not require the lanai surfaces to be painted, Triax points" }, { "docid": "12251459", "title": "", "text": "those clauses of the contract, not as a breach of the contract. Id. at 759. In this case, the Suspension clause contemplates equitable adjustments for unreasonable delays in the performance of the contract. Therefore, in order for Triax to recover for the government’s delay in issuing the notice to proceed on Phase II, any additional costs must be recovered under the Suspension clause. Thus, the Board did not err in deciding that Triax’s claim was not remediable under a breach of contract claim. Triax also argues that its additional costs should be recoverable under the Changes clause. Triax states that the Suspension clause cannot be applied when another clause of the contract covers the contingency. However, since the late issuance of the notice to proceed resulted in a delay of the contract, as opposed to a change in the work to be performed in the contract, it is the Suspension clause rather than the Changes clause which applies here. The Suspension clause states that a contractor will not be entitled to an equitable adjustment “to the extent that [the contractor’s] performance would have been so ... delayed ... by any other cause.” Where the provisions of a contract are phrased in clear and unambiguous language, the words of those provisions must be given their plain and ordinary meaning. George Hyman Constr. Co., 832 F.2d 574 at 579. That is the case here. The Suspension clause prevents recovery by Triax because the cause of the delay was due to its own performance, albeit performance on a previous contract. Triax argues that preventing it from recovering the additional costs it incurred on this contract because of its late performance on the earlier contract would provide the government with a windfall, and leave Triax unjustly penalized, since it fully compensated the government for the cost of the injury for which it was legally responsible on the earlier contract. However, the “any other cause” provision of the clause is not so limited in scope. Merritt-Chapman & Scott Corp. v. United States, 528 F.2d 1392, 1397, 208 Ct.Cl. 639 (Ct.Cl.1976). In Merritt-Chapman, the court stated" }, { "docid": "23694250", "title": "", "text": "Officer ... an adjustment shall be made for any increase in the cost of performance of this contract ... necessarily caused by such unreasonable suspension, delay or interruption and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent (1) that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or (2) for which an equitable adjustment is provided for or excluded under any other provision of this contract. The Court of Federal Claims and the Court of Appeals for the Federal Circuit have held that under the Suspension of Work clause, the contractor may be awarded compensation for “government-caused delays of an unreasonable duration.” Beauchamp Construction Co. v. United States, 14 Cl.Ct. 430, 436-37 (1988) (citing John A. Johnson & Sons v. United States, 180 Ct.Cl. 969, 1967 WL 8810 (1967)); Chaney and James Construction Co. 421 F.2d at 731-32. The clause makes an adjustment unavailable, however, “to the extent that other causes, attributable to said contractor, would have simultaneously suspended, delayed, or interrupted contract performance.” Beauchamp, 14 Cl.Ct. at 437. The delay need not be a Government ordered work stoppage to be compensable. Any unreasonable delay attributable solely and directly to the Government will be considered a constructive suspension of work for purposes of the clause. John A. Johnson & Sons, 180 Ct.Cl. at 984-85; see Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 967-68 (1965). Contract completion need not be delayed. Delay to part of the performance may result in compensation. See Chaney and James Constr. Co., 421 F.2d at 733. To recover, the contractor must show: (1) the delay is of an “unreasonable length of time,” Wunderlich, 351 F.2d at 967 (citing River Construction Corp. v. United States, 159 Ct.Cl. 254, 270, 1962 WL 9302 (1962)); F.H. McGraw & Co. v. United States, 131 Ct.Cl. 501, 506-07, 130 F.Supp. 394 (1955); (2) the delay was proximately caused by the Governments actions, id. (citing River Construction, 159" }, { "docid": "12251455", "title": "", "text": "on this earlier contract and was assessed $33,335 in liquidated damages. Triax’s late performance on this earlier contract, as described by the Board, had “the effect of reducing the number of housing units available for occupancy” during Triax’s performance on the second contract. Shortly after Triax received notice to proceed on Phase I, the government told Triax that its late performance on the earlier contract might result in delaying the notice to proceed on Phase II of the second contract. Consequently, the notice to proceed on Phase II was not issued until 53 days after the August 8, 1986 deadline. Triax submitted a certified claim for additional costs due to the delay. Upon denial of its claim by the contracting officer, Triax sought review by the Board. The Board found that the government’s delay in issuing the notice to proceed on Phase II of the second contract was due to Triax’s late performance on the earlier contract. Consequently, the Board determined that Triax’s additional costs could not be recovered under the provisions of the second contract, specifically the Changes and Suspension of Work clauses, and that Triax’s claim was not remediable under a breach of contract claim. The Changes clause states that The Contracting Officer may ... make changes in the work within the general scope of the contract. If any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work under this contract ... the Contracting Officer shall make an equitable adjustment. 48 C.F.R. § 52.243-4 (1990). The Suspension of Work clause provides that If the performance of all or any part of the work is, for an unreasonable period of time ... delayed ... by the Contracting Officer’s failure to act within the time specified in this contract ..., an adjustment shall be made for any increase in the cost of performance of this contract. However, no adjustment shall be made under this clause for any ... delay ... to the extent that performance would have been so ... delayed ...by" }, { "docid": "12251460", "title": "", "text": "the extent that [the contractor’s] performance would have been so ... delayed ... by any other cause.” Where the provisions of a contract are phrased in clear and unambiguous language, the words of those provisions must be given their plain and ordinary meaning. George Hyman Constr. Co., 832 F.2d 574 at 579. That is the case here. The Suspension clause prevents recovery by Triax because the cause of the delay was due to its own performance, albeit performance on a previous contract. Triax argues that preventing it from recovering the additional costs it incurred on this contract because of its late performance on the earlier contract would provide the government with a windfall, and leave Triax unjustly penalized, since it fully compensated the government for the cost of the injury for which it was legally responsible on the earlier contract. However, the “any other cause” provision of the clause is not so limited in scope. Merritt-Chapman & Scott Corp. v. United States, 528 F.2d 1392, 1397, 208 Ct.Cl. 639 (Ct.Cl.1976). In Merritt-Chapman, the court stated that a contractor is only entitled to recover under the Suspension clause when the government’s actions are the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period. Id. Accordingly, we need to determine whether “any other cause” would have delayed Triax’s performance. Triax argues that the Board erred in finding that the government was not the sole proximate cause of Triax’s delay in the performance of the contract. We do not agree. Although one cause of the resultant delay may have been the failure of the government to issue the notice to proceed within the contract deadline, another concurrent cause was Triax’s late performance on the earlier contract. Pursuant to the contract, during the Phase II construction, the housing units could not be occupied. On the day the Phase II notice to proceed should have been issued, some families remained in each of the Phase II buildings. Due to Triax’s late performance on the earlier contract, these families could not have" } ]

[ { "docid": "10914649", "title": "", "text": "review, the court does not substitute its judgment for that of the Department, but the Department must “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made,’ ” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal citation omitted). The court does not defer to “conclusory or unsupported suppositions.” United Techs., 601 F.3d at 562 (quoting McDonnell Douglas Corp. v. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C.Cir.2004)). A. Exemption 4 protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The only question here is whether the Block 8 information, which is “commercial or financial information” and not “privileged,” is “confidential.” Here, “confidential” means that “disclosure would be likely either ‘(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.’ ” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878 (D.C.Cir.1992) (en banc) (quoting Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974)). This requires a showing of both actual competition and a likelihood of substantial competitive injury. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C.Cir.1987). The court will “generally defer to the agency’s predictive judgments as to ‘the repercussions of disclosure.’ ” United Techs., 601 F.3d at 563 (quoting McDonnell Douglas, 375 F.3d at 1191 n. 4). The Department determined Exemption 4 did not apply because the Block 8 information was unlikely to cause substantial competitive harm to appellants. Decision of Feb. 17, 2012 at 12. It reasoned that competitors would not be able to use gross revenue and inventory data to undercut licensees’ pricing because there were too many variables, such as breed, age, quality, and market demands, to make a price per dog calculation feasible. See id. at 9. Further, even if the" } ]

[ { "docid": "17223330", "title": "", "text": "oral argument that plaintiff Judicial Watch, in addition to challenging the propriety of the withholdings, also is challenging whether the documents in fact had been voluntarily submitted. The test for confidentiality under Exemption 4 differs depending on whether the information is voluntarily or involun tarily submitted. “Exemption 4 protects any financial or commercial information provided to the Government on a voluntary basis if it is of a kind that the provider would not customarily release to the public.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d at 880. Even if the party previously has made voluntary, disclosures of the information, those disclosures do not constitute “customary disclosures” so long as they are not made to the general public. Center for Auto Safety v. National Highway Traffic Safety Administration, 244 F.3d 144, 148 (D.C.Cir.2001). If commercial or financial information is provided on a mandatory basis, however, it is considered confidential “if disclosure of the information is likely ... either ... (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information is obtained.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d at 873 (quoting National Parks and Conservation Ass’n v. Morton, 498 F.2d at 770). The distinction has been explained as follows: When the Government obtains information as part of a mandatory submission, the Government’s access to the information normally is not seriously threatened by disclosure; the private interest is the principal factor tending against disclosure, and the harm to the private interest must be significant to prevent public access to information. However, when the Government receives information voluntarily, it has a strong interest in ensuring continued access, and therefore both the Government and private interests weigh against overly broad disclosure. Center for Auto Safety v. National Highway Traffic Safety Administration, 244 F.3d at 148. The Court concludes that all of the challenged documents were voluntarily submitted to DOC and that all were properly withheld for the reasons stated below. 1. Groppe, Long & Littell Groppe, Long &" }, { "docid": "4170729", "title": "", "text": "with the intervenor’s position. Def.’s Resp. to Pl.’s Opp’n at 2. In opposition, the plaintiff argues both that the intervenor was required to submit these documents to the defendant and that the intervenor has failed to show that it would suffer substan tial competitive injury if the documents were released. Pl.’s Opp’n at 8-9. Having reviewed these documents in camera, the court concludes that they were voluntarily submitted to the defendant and contain information that would not customarily be released to the public. Accordingly, these documents are properly withheld under Exemption 4. 1. Legal Standard for Exemption 4 At issue in this case is whether the documents are privileged or confidential under Exemption 4. Exemption 4 protects the disclosure of privileged or confidential trade secrets and commercial or financial information that is obtained from a person. 5 U.S.C. § 552(b)(4); Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C.Cir.1974). If the person or entity submitting the documents was required to provide the government with the information in question, the information is confidential under Exemption 4 if it would (1) impair the government’s ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person who submitted the information. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 880 (D.C.Cir.1992) (en banc); Nat’l Parks, 498 F.2d at 770. If the information was provided on a voluntary basis, it is confidential under Exemption 4 if it is of the kind that would customarily not be released to the public by the person from whom it was obtained. Critical Mass, 975 F.2d at 879. 2. These Documents are Properly Withheld Under Exemption 4 a. The Documents were Voluntarily Submitted to the Defendant In this case, the intervenor argues that it was not required to submit the information contained in documents CE567-CE576 and CE6610-CE6619 to the defendant because this information was provided as part of the process of administrating its contract with the Army, rather than in an effort to obtain it. Intervenor’s Reply at 8; Heinrich Decl. ¶ 3 (stating that" }, { "docid": "19973164", "title": "", "text": "is exempt even though the document was created by an employee of the federal government. See, e.g., Gulf & Western Indus., 615 F.2d at 529-30. For purposes of Exemption 4, the test of confidentiality differs depending upon whether the information was required by, or was voluntarily provided to, the agency. Critical Mass, 975 F.2d at 879. Compelled commercial or financial information is confidential for purposes of Exemption 4 if its disclosure is likely to either significantly impair the government’s ability to obtain similar information in the future or cause substantial harm to the competitive position of the provider of information. Id. at 878 (citing Natl Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974)). The agency’s ability to carry out its statutory purpose is impaired, if disclosure of the information affects the quality or reliability of future submissions. Judicial Watch, Inc. v. Export-Import Bank, 108 F.Supp.2d 19, 30 (D.D.C.2000). Conversely, if disclosure of the information will not affect the agency’s ability to receive reliable information in the future, it is only confidential if its release would cause substantial competitive harm to the provider of that information. See Ctr. to Prevent Handgun Violence v. U.S. Dep’t of Treasury, 981 F.Supp. 20, 23 (D.D.C.1997). The provider need not show actual competitive harm. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C.Cir.1983). Evidence of actual competition and a likelihood of substantial competitive injury by use of the information by competitors is sufficient. CNA Financial Carp. v. Donovan, 830 F.2d 1132, 1152 (D.C.Cir.1987); Pub. Citizen Health Research Group v. FDA 704 F.2d 1280, 1291 (D.C.Cir.1983). The agency, not the provider, determines whether disclosure will cause impairment. See, e.g., Hercules, Inc. v. Marsh, 839 F.2d 1027, 1030 (4th Cir.1988); McDonnell Douglas Corp. v. U.S. Dep’t of Air Force, 215 F.Supp.2d 200, 206 (D.D.C. 2002) (“The agency from which disclosure is sought is in the best position to determine whether an action will impair its information gathering in the future.”). Providers of information cannot prevent disclosure. McDonnell Douglas Corp., 215 F.Supp.2d at 206. However, they are not shut out of the process." }, { "docid": "7281727", "title": "", "text": "Documents Are Confidential A “commercial” document may only be withheld under Exemption 4 if it is “privileged” or “confidential.” 5 U.S.C. § 552(b)(4). A two prong test is used to determine whether information involuntarily submitted to a Federal agency is “confidential” for FOIA purposes. “Commercial or financial matter is ‘confidential’ for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Nat’l Parks and Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (“National Parks ”); see also Bd. of Trade v. Commodity Futures Trading Com., 627 F.2d 392, 404 (D.C.Cir. 1980). As discussed below, the Court examines the sufficiency of the showing by the defendant and defendant-intervenors that the release of the withheld commercial documents would either “impair the Government’s ability to obtain necessary information in the future,” id. or “cause substantial harm to the competitive position” of Pfizer or Purdue. a. The Government’s Ability to Obtain Necessary Information The defendant argues that the release of the withheld documents would harm the government’s interest in two ways. “First, health care providers currently under CIAs would be reluctant to provide complete information,” citing as an example that “providers may hesitate to fully explain the circumstances or submit their full investigative reports if they are concerned that the public may have access to that information [regarding instances of possible noncomplianee].” Def.’s Mem. at 26. “Second, the OIG’s inability to prevent the disclosure of confidential proprietary information would severely impair [HHS’s] ability to negotiate meaningful CIAs in the future.” Id. Neither argument is persuasive. First, the Court is skeptical of the defendant’s contention that release of the withheld commercial information could jeopardize the government’s ability to obtain full and complete reporting as required under the CIAs. The court in Critical Mass was similarly skeptical about impairment of the government’s ability to obtain information when the submission was required. Critical Mass, 975 F.2d" }, { "docid": "16794144", "title": "", "text": "the Act instructs government agencies to make records available upon request, unless the request falls within one of nine exemptions. See 5 U.S.C. § 552(b). FOIA’s Exemption (b)(4) permits an agency to withhold from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 522(b)(4). Plaintiffs do not dispute that the withheld documents contain commercial information obtained from a person. Rather, plaintiffs argue that the information is not privileged or confidential. A. Voluntary or Mandatory Submission To determine whether the information is privileged or confidential within the meaning of Exemption 4, it is necessary to first resolve the issue of whether the information was provided to the government voluntarily or if it was required to be provided. If information was voluntarily provided, defendants must satisfy a lower threshold to prevent disclosure. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C.Cir.1992) (en banc ), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993). Under the test set forth in Critical Mass, financial or commercial information provided to the government on a voluntary basis is “confidential” for purposes of Exemption 4 if it is the kind of information that would customarily not be released to the public by the submitter. Id. at 872. If, however, the information was required to be submitted, in order to be considered confidential, defendants must demonstrate that disclosure of the information would either (1) impair the government’s ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. National Parks and Conservation Assn. v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974). Defendants and defendant-intervenors argue that the information withheld by BLM was voluntarily provided. The Court of Appeals recently discussed the issue of voluntary submissions in Center for Auto Safety v. National Highway Traffic Safety Admin., 244 F.3d 144 (D.C.Cir.2001). The Court held that “actual legal authority, rather than parties’ beliefs or intentions, governs judicial assessments of the character of submissions.” Id. at 149. The Court noted" }, { "docid": "8490346", "title": "", "text": "relevant to its merits claim. It further challenges the merits of the FDA’s use of Exemptions 4, 5, and 6. Judicial Watch does not challenge the FDA’s withholdings pursuant to FOIA Exemption 3. 5 U.S.C. § 552(b)(3). A. Exemption k Exemption 4 allows agencies to withhold documents containing matters that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Unlike many other types of information subject to an agency’s control, materials implicating Exemption 4 are generally not developed within the agency. Instead, it must procure commercial information from third parties, either by requirement or by request. The agency thus has an incentive to be a good steward of that information: Disclosure could result in competitive disadvantages to the submitting entity, discouraging them from giving quality information in the future. Critical Mass Energy Project v. NRC, 975 F.2d 871, 877-78 (D.C.Cir.1992) (quoting Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 766-70 (D.C.Cir.1974)). The agency may therefore withhold involuntarily submitted information as confidential if disclosure would (1) impair the agency’s ability to get information in the future or (2) cause substantial competitive harm to the entity that submitted the information. Id. at 878 (citing Nat’l Parks, 498 F.2d at 770). The same incentive applies to the FDA approval process. The FDA requires applying companies to submit volumes of information related to a drug’s development, composition, safety, and manufacture. 21 U.S.C. § 355(b)(1). A company must submit this information in an Investigational New Drug application (“IND”) even prior to conducting clinical trials of a drug. 21 C.F.R. pt. 312. All the information from the IND also goes into the company’s New Drug Application (“NDA”), the formal application for sale and marketing approval from the FDA. 21 C.F.R. pt. 314. Each stage of the FDA’s administrative processes therefore depends directly on submissions from outside the agency. The submission-dependent nature of the approval process means Exemption 4 extends to at least some information contained in INDs and NDAs. If it did not, other companies “could make use of the information in the" }, { "docid": "23651170", "title": "", "text": "EXEMPTION 4 The Board has withheld portions of Document 11, as well as three footnotes from Documents 7 and 8 under FOIA Exemption 4. Exemption 4 exempts from disclosure information that is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential. 5 U.S.C. § 552(b)(4). Where the information is “commercial or financial information obtained from a person” (including corporations), the key inquiry is whether that information is “privileged or confidential.” Frequently this inquiry focuses on whether the information is “confidential.” The D.C. Circuit has set out a multi-part test for determining whether information is “confidential.” First, the court must determine whether the information was submitted to the government voluntarily. McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 304 (D.C.Cir.1999). If it was, then the court must look to see whether the submitted information is “the kind of information ‘that would customarily not be released to the public by the person from whom it was obtained.’ ” Id. at 304-05 (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 879 (D.C.Cir.1992) (en banc)). If it is, then the information is “confidential” and protected from disclosure by Exemption 4. Critical Mass, 975 F.2d at 880. If the submission of the information was compelled, however, then the court must determine whether its disclosure “would be likely either (1) to impair the government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” NASA, 180 F.3d at 305 (citing Critical Mass, 975 F.2d at 878-80; Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (“National Parks I”)). If the party seeking nondisclosure can show either impaired government ability to obtain necessary future information or substantial competitive harm, then the information is “confidential” and protected from disclosure by Exemption 4. National Parks I, 498 F.2d at 770-71. Documents 7 and 8 include information provided by foreign central banks (“FCBs”) regarding potential draws on currency swap arrangements or inquiries about swap arrangements that were never actually entered into." }, { "docid": "17223329", "title": "", "text": "search was conducted. D. Exemption h Exemption 4 of the FOIA shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The exemption serves the interest of the government in operating efficiently and effectively by enabling it to obtain necessary commercial and financial information from private persons and business entities. It also protects the competitive interests of the suppliers of such information. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 873 (D.C.Cir.1992); National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 768 (D.C.Cir.1974). The Department of Commerce is withholding only six documents, two in their entirety and four in part, under FOIA Exemption 4. See Supplemental Motion for Summary Judgment by Department of Commerce, Supplemental Declaration of Roberta Ann Parsons (“Supp. Parsons Decl.”) at ¶ 4. DOC states in its declaration that all of the documents withheld under Exemption 4 were voluntarily submitted to the government. See Supp. Parsons Decl. at ¶¶ 7, 10, 15. It came to light during oral argument that plaintiff Judicial Watch, in addition to challenging the propriety of the withholdings, also is challenging whether the documents in fact had been voluntarily submitted. The test for confidentiality under Exemption 4 differs depending on whether the information is voluntarily or involun tarily submitted. “Exemption 4 protects any financial or commercial information provided to the Government on a voluntary basis if it is of a kind that the provider would not customarily release to the public.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d at 880. Even if the party previously has made voluntary, disclosures of the information, those disclosures do not constitute “customary disclosures” so long as they are not made to the general public. Center for Auto Safety v. National Highway Traffic Safety Administration, 244 F.3d 144, 148 (D.C.Cir.2001). If commercial or financial information is provided on a mandatory basis, however, it is considered confidential “if disclosure of the information is likely ... either ... (1) to impair the Government’s ability to obtain necessary information in the future; or" }, { "docid": "7281761", "title": "", "text": "need only be “of a kind that would customarily not be released to the public by the person from whom it was obtained'' to be withheld as confidential. Critical Mass, 975 F.2d at 878. While HHS and Purdue, which joined HHS’ arguments, concede that the companies’ submissions to OIG were involuntaiy, Pfizer contends that because it entered into its CIA with HHS voluntarily, the information required by the CIA was also produced voluntarily. See Pfizer Mem. at 16-17. Pfizer’s argument is contrary to the law of this Circuit. “For purposes of Exemption 4, information provided to the government because it is required for participation in a voluntary government program is treated as a mandatory, as opposed to a voluntary, submission of information.” Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F.Supp.2d 13, 35 n. 8 (D.D.C.2011); see also Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 149 (D.C.Cir.2001) (holding that when an agency has \"actual legal authority” to compel production of information, such production is not voluntary for the purposes of the FOIA); Pub. Citizen Health Research Grp. v. F.D.A., 964 F.Supp. 413, 414 n. 1 (D.D.C.1997) (“Information is submitted involuntarily, however, if it is supplied pursuant to statute, regulation or some less formal mandate.”). Pfizer does not dispute that the documents at issue were \"submitted to the OIG in accordance with the terms of the 2004 CIA.” Pfizer Mem. 16. As such, the information was submitted involuntarily because it was submitted \"pursuant to statute, regulation, or some less formal mandate.” Pub. Citizen Health Research Grp., 964 F.Supp. at 414 n. 1. Therefore, the Court will apply the more stringent confidentiality standard applicable to involuntarily submitted documents recognized in National Parks and Critical Mass. . The defendant briefly cites two cases for its position that the first prong of the National Parks test is met and release of the documents would impair the government’s ability to secure CIAs with companies in the future, but neither case is persuasive. The context in Judicial Watch, Inc. v. Export-Import Bank, 108 F.Supp.2d 19 (D.D.C.2000), differs materially" }, { "docid": "1545092", "title": "", "text": "Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C.Cir.1983). The contested information in this case is clearly commercial, and this issue is not disputed. The information was obtained “from a person” within the meaning of Exemption 4 because “person” refers to a wide range of entities including corporations, associations and public or private organizations other than agencies. Critical Mass Energy Project v. NRC, 830 F.2d 278, 281 n. 15 (D.C.Cir.1987) (“Critical Mass I”). Here, the information sought was provided to the FCC from various corporations and commercial entities. The plaintiff does not dispute this issue. The critical question in this case is whether the materials sought are confidential or privileged. In National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974), the D.C. Circuit held that this criterion is satisfied if either (1) disclosure of the information sought is likely to impair the government’s ability to obtain necessary information in the future; or (2) disclosure is likely to cause substantial harm to the competitive position of the person from whom the information was obtained. The Court of Appeals recently reaffirmed this test, but confined it to those cases involving information that persons were required to provide to the government. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C.Cir. 1992). For cases involving information that was voluntarily supplied to the government, the Court of Appeals has adopted a new test. Financial or commercial information provided to the government on a voluntary basis is exempt under Exemption 4 “if it is of a kind that the provider would not customarily release to the public.” Id. at 879-880. (1) The Information that the Suppliers Were Required to Submit to the Commission Was Properly Withheld Because Disclosure Is Likely to Substantially Harm the Competitive Position of the Suppliers To satisfy the competitive harm test set forth in National Parks, evidence of “actual competition and a likelihood of substantial competitive injury” is necessary. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C.Cir.1987). Here the intervenors and defendant have gone to great lengths and provided affidavits to demonstrate the" }, { "docid": "7281733", "title": "", "text": "disclosure mandate of FOIA.” Wash. Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 269 (D.C.Cir.1982). Therefore, the Court finds that the defendant has not shown how the release of the withheld documents will “impair the Government’s ability to obtain necessary information in the future.” National Parks, 498 F.2d at 770. b. Competitive Harm The Court next examines the second prong of the National Parks test: whether the agency has sufficiently shown that release of the withheld information is likely to “cause substantial harm to the competitive position of the person from whom the information was obtained.” Id. at 770; see also Pub. Citizen Health Research Grp. v. FDA, 704 F.2d at 1290-91 (D.C.Cir.1983); McDonnell Douglas Corp. v. U.S. Dep’t of Air Force, 375 F.3d 1182, 1187 (D.C.Cir.2004) (party invoking Exemption 4 is not required “to prove disclosure certainly would cause it substantial competitive harm, but only that disclosure would ‘likely’ do so”). Not all harm to the information provider qualifies as “competitive harm.” As noted, the D.C. Circuit has made clear that, “[i]n this inquiry, it is simply irrelevant that” confidential treatment of the documents would avoid disclosure of information “that might be damaging to [the provider’s] reputation.” Occidental Petroleum Corp., 873 F.2d at 341 (D.C.Cir.1989). To qualify as “sub stantial competitive harm,” the harm must be “limited to harm flowing from the affirmative use of proprietary information by competitors.” Pub. Citizen Health Research Grp., 704 F.2d at 1291 & n.30 (emphasis in the original). Based upon the Court’s foregoing analysis, the following challenged records are “commercial” and must meet this second prong of the National Parks test to be appropriately withheld under Exemption 4: (1) changes to the processes by which the intervenor-defendants fulfill the Ineligible Persons requirement; (2) the description of the allegations subject to investigations or legal proceedings; (3) company communications with the FDA regarding off-label promotions; (4) Pfizer’s off-label findings and detailing sessions; (5) IRO reports; and (6) the portions of the 2009 Purdue Supplement addressing Purdue’s promotional monitoring program. Each of these categories of commercial documents is examined below to" }, { "docid": "13189984", "title": "", "text": "the affidavit alone.” Id. B. FOIA’s Exemption 4 ' The dispute over whether the remaining documents at issue may be withheld as exempt under the FOIA’s Exemption 4 rests on whether those documents are “commercial” and “confidential.” See Jurewicz v. U.S. Dep’t of Agric., 741 F.3d 1326, 1331 (D.C.Cir.2014). The Court reviewed extensively the precedent surrounding these terms in Public Citizen I, 975 F.Supp.2d at 99-103, 110-15, but a brief review of the FOIA’s Exemption 4 and the key terms “commercial” and “confidential” is helpful in resolving the instant motions. Records must be both “commercial” and “confidential” in order for them to be exempt from disclosure under Exemption 4. Neither term is defined in the FOIA, but the D.C. Circuit has “consistently held that [this] term ... in [Exemption 4] should be given [its] ordinary meaning[ ].” Pub. Citizen Health Research Grp. v. U.S. Food & Drug Admin., 704 F.2d 1280, 1290 (D.C.Cir.1983). “[I]nformation is commercial under this exemption if, in and of itself, it serves a commercial function or is of a commercial nature,” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 38 (D.C.Cir.2002) (internal quotation marks and citation omitted), or are records in which the provider has “a commercial interest.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C.Cir.2006). In addition to being “commercial,” for Exemption 4 to apply, the records must also be “privileged or confidential.” See 5 U.S.C. § 552(b)(4); Jurewicz, 741 F.3d at 1331. A two prong test is used to determine whether information involuntarily submitted to a Federal agency is “confidential” for FOIA purposes: whether release of the records would (1) impair the Government’s ability to obtain necessary information in the future; or (2) cause “substantial harm to the competitive position of the person from whom the information was obtained.” Nat’l Parks and Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (“National Parks”); accord Jurewicz v. U.S. Dep’t of Agrie., 741 F.3d 1326, 1331 (D.C.Cir.2014). Releasing the documents involuntarily submitted documents in dispute in this matter has already been found not to “impair the Government’s ability" }, { "docid": "7281726", "title": "", "text": "changes to the processes by which the companies fulfill the Ineligible Persons requirement in Section III.F of the Purdue and Pfizer CIAs; (2) the description of the allegations subject to investigations or legal proceedings required to be included in the Annual Reports, pursuant to § III.G of the Purdue and Pfizer CIAs; (3) company communications with the FDA regarding off-label promotions required to be included in the Annual Reports, pursuant to § III.I of the Purdue and Pfizer CIAs; (4) Pfizer’s off-label findings and detailing sessions required to be included in the Annual Reports, pursuant to §§ III.J and Y.B.17 of the Pfizer CIA; (5) IRO reports required to be included in the Annual Reports, pursuant to §§ III.D and V.B.5-8 of the Purdue CIA, and §§ III.D and V.B.6-9 of the Pfizer CIA; and (6) the portions of the 2009 Purdue Supplement addressing Purdue’s promotional monitoring program. The Court next examines the sufficiency of the showing that these commercial documents are confidential to warrant application of Exemption 4. 3. Sufficiency of Showing That Commercial Documents Are Confidential A “commercial” document may only be withheld under Exemption 4 if it is “privileged” or “confidential.” 5 U.S.C. § 552(b)(4). A two prong test is used to determine whether information involuntarily submitted to a Federal agency is “confidential” for FOIA purposes. “Commercial or financial matter is ‘confidential’ for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Nat’l Parks and Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (“National Parks ”); see also Bd. of Trade v. Commodity Futures Trading Com., 627 F.2d 392, 404 (D.C.Cir. 1980). As discussed below, the Court examines the sufficiency of the showing by the defendant and defendant-intervenors that the release of the withheld commercial documents would either “impair the Government’s ability to obtain necessary information in the future,” id. or “cause substantial harm to" }, { "docid": "1317519", "title": "", "text": "“commercial ... information obtained from a person”; for then’ part, Sikorsky and Pratt contend that the information is “confidential.” They “do not contend ... that the particular information at issue here was voluntarily provided,” Appellants’ Br. 33 n. 10, and thus do not “seek review of th[e] aspect of the district court’s decision” that “held that disclosure of the information was mandatory, not voluntary.” Id. at 13 & n. 3. Accordingly, for the documents to be exempt from disclosure, their release must be likely to cause the contractors “substantial competitive harm” or “impair the Government’s ability to obtain necessary information in the future.” Canadian Commercial, 514 F.3d at 39-40 (internal quotations omitted); see Critical Mass, 975 F.2d at 878; Nat’l Parks, 498 F.2d at 770. A. Substantial Competitive Harm To qualify under this prong, an identified harm must “ ‘flow[ ] from the affirmative use of proprietary information by competitors.’ ” CNA, 830 F.2d at 1154 (quoting Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 n. 30 (D.C.Cir.1983)). In reviewing an agency’s determination as to substantial competitive harm, we recognize that “predictive judgments are not capable of exact proof,” id. at 1155, and we generally defer to the agency’s predictive judgments as to “ ‘the repercussions of disclosure,’ ” McDonnell Douglas v. U.S. Dep’t of the Air Force, 375 F.3d at 1191 n. 4 (quoting CNA, 830 F.2d at 1155). If “a reverse-FOIA movant has made a positive showing of competitive harm from disclosure,” however, an agency’s unelaborated contrary conclusion does not suffice. See Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 341-42 (D.C.Cir.1989) (internal quotation omitted) (agency’s conclusory decision rejecting substantial competitive harm required remand). Sikorsky and Pratt maintain that disclosure of the documents will cause two types of substantial competitive harm. First, they say that their competitors will use the documents to discredit them in the eyes of current and potential customers. They worry especially that their competitors will use the information and the accompanying negative publicity to persuade foreign costumers that DoD has found Sikorsky’s .and Pratt’s quality control systems unreliable and, accordingly, their" }, { "docid": "4170730", "title": "", "text": "Exemption 4 if it would (1) impair the government’s ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person who submitted the information. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 880 (D.C.Cir.1992) (en banc); Nat’l Parks, 498 F.2d at 770. If the information was provided on a voluntary basis, it is confidential under Exemption 4 if it is of the kind that would customarily not be released to the public by the person from whom it was obtained. Critical Mass, 975 F.2d at 879. 2. These Documents are Properly Withheld Under Exemption 4 a. The Documents were Voluntarily Submitted to the Defendant In this case, the intervenor argues that it was not required to submit the information contained in documents CE567-CE576 and CE6610-CE6619 to the defendant because this information was provided as part of the process of administrating its contract with the Army, rather than in an effort to obtain it. Intervenor’s Reply at 8; Heinrich Decl. ¶ 3 (stating that the information was “provided by KBR to the Corps on a voluntary basis as part of KBR’s efforts to work cooperatively with the Corps regarding the administration of its contract”). In opposition, the plaintiff cites the Code of Federal Regulations, which includes “invitations for bids, requests for proposals, and contracts,” as examples of authorities “not voluntary in nature” and concludes that “KBR cannot escape this statutory definition.” PL’s Opp’n at 8 (quoting 32 C.F.R. § 518.16(£)). In determining whether the intervenor was required to submit the information or whether it was provided voluntarily, “actual legal authority, rather than the parties’ beliefs or intentions, governs judicial assessments of the character of submissions.” Ctr. for Auto Safety v. Nat’l Highway Traffic Admin., 244 F.3d 144, 149 (D.C.Cir.2001). An example of information that would be considered “required” are price elements necessary to win a government contract. McDonnell Douglas Corp. v. NASA, 895 F.Supp. 316, 318 (D.D.C.1995). The relevant inquiry in this context is “whether the specific price elements and other information provided by [the submitter] were required to" }, { "docid": "13189985", "title": "", "text": "Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 38 (D.C.Cir.2002) (internal quotation marks and citation omitted), or are records in which the provider has “a commercial interest.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C.Cir.2006). In addition to being “commercial,” for Exemption 4 to apply, the records must also be “privileged or confidential.” See 5 U.S.C. § 552(b)(4); Jurewicz, 741 F.3d at 1331. A two prong test is used to determine whether information involuntarily submitted to a Federal agency is “confidential” for FOIA purposes: whether release of the records would (1) impair the Government’s ability to obtain necessary information in the future; or (2) cause “substantial harm to the competitive position of the person from whom the information was obtained.” Nat’l Parks and Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (“National Parks”); accord Jurewicz v. U.S. Dep’t of Agrie., 741 F.3d 1326, 1331 (D.C.Cir.2014). Releasing the documents involuntarily submitted documents in dispute in this matter has already been found not to “impair the Government’s ability to obtain necessary information in the future.” See Public Citizen I, 975 F.Supp.2d at 111-13. Thus, only the second prong of the National Parks test remains at issue in the instant matter. Id. “Substantial ' competitive harm” is “limited to harm flowing from the affirmative use of proprietary information by competitors.” Pub. Citizen Health Research Grp., 704 F.2d at 1291 n. 30 (emphasis in the original); see Jurewicz, 741 F.3d at 1331 (same). III. DISCUSSION As noted, the plaintiff continues to contest the withholding of only four categories of responsive records. The parties’ arguments regarding the Reportable Event summaries and the Disclosure Log summaries generally overlap and are addressed together in Part III.A infra. The documents relating to the Pfizer “detailing sessions” are addressed in Part III.B infra, and the documents pertaining to the actions taken by the defendant-intervenors in response to screening for Ineligible Persons are addressed in Part III.C infra. A. Reportable Event Summaries And Disclosure Log Summaries In the cross-motions for summary judgment that were resolved in Public Citizen I, the parties" }, { "docid": "3202559", "title": "", "text": "release. FOIA exemption 4 protects from mandatory disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The parties do not dispute that the information in the six documents in issue is commercial or financial information “obtained from a person,” and AT & T-IS makes no claim of privilege. The only issue remaining under Exemption 4, therefore, is whether the information is confidential. See Plaintiff's Memorandum at 15; Defendant’s Memorandum at 9. Our Court of Appeals has clarified that: commercial or financial matter is “confidential” for purposes of [Exemption 4] if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; [footnote omitted] or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974). The first prong of the test does not apply as GSA, by deciding to release the information, necessarily made the determination that disclosure will not impair its ability to obtain information in the future. “The agency is in the best position to determine the effect of disclosure on its ability to obtain necessary technical information.” Orion Research, Inc. v. Environmental Protection Agency, 615 F.2d 551, 554 (1st Cir.1980), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980). As to the second prong of the test, our Court of Appeals has indicated that “[i]n order to show the likelihood of substantial competitive harm, it is not necessary to show actual competitive harm. Actual competition and the likelihood of substantial competitive injury is all that need be shown.” Gulf & Western Industries, Inc., v. United States, 615 F.2d 527, 530 (D.C.Cir.1979). Plaintiff in its Memorandum also suggests that Gulf and Western sets out a third test for substantial competitive injury: “[when] the information to be released is of the type not usually made available to the public by the submitter of the information.” Plaintiff’s Memorandum at 16 (emphasis added)," }, { "docid": "9855363", "title": "", "text": "information available to the public.... ” Pacific Architects & Eng. v. United States Dep’t of State, 906 F.2d 1345, 1346 (9th Cir.1990). FOIA contains nine exceptions to this presumption of disclosure “that are to be narrowly construed by the courts.” GC Micro, 33 F.3d at 1112. Exemption 4 of FOIA, 5 U.S.C. § 552(b)(4), exempts from disclosure commercial or financial information that is “privileged or confidential.” See Id. at 1112. Because the parties agree that the Plan is commercial information, the only issue on appeal is whether the information is privileged or confidential. The leading case on Exemption 4 sets out the test for exempting commercial information from FOIA disclosure as follows: Commercial or financial matter is “confidential” for purposes of [Exemption 4] if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (footnote omitted). We adopted this test in GC Micro, 33 F.3d at 1112. The parties further agree that this case turns on the second prong of the National Parks confidentiality test—whether disclosure would cause substantial competitive harm. The party seeking to withhold information under Exemption 4 has the burden of proving that the information is protected from disclosure under FOIA. GC Micro, 33 F.3d at 1113. While a party need not show actual competitive harm, it must present specific “evidence revealing (1) actual competition and (2) a likelihood of substantial competitive injury” in order to prove that the information falls under Exemption 4. Id. “ ‘If the information is freely or cheaply available from other sources ..., it can hardly be called confidential’ ” and government agency disclosure is unlikely to competitively harm the submitter. GC Micro, 33 F.3d at 1112 n. 3. (quoting Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C.Cir.1981)). The identity of the requestor, even if a competitor, is irrelevant in determining whether the" }, { "docid": "20208266", "title": "", "text": "include “records that reveal basic commercial operations or relate to income-producing aspects of a business” as well as situations where the “provider of the information has a commercial interest in the information submitted to the agency.” Baker & Hostetler, LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C.Cir.2006) (internal quotation omitted). Banks and other financial institutions are considered “persons” for the purposes of the exemption. See 5 U.S.C. § 551(2) (“ ‘person’ includes an individual, partnership, corporation, association, or public or private organization.”). Under National Parks and Conservation Ass’n v. Morton, 498 F.2d 765 (D.C.Cir.1974), commercial or financial information that is required to be provided to the government is “confidential” if disclosure is likely either “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Id. at 770 (footnote omitted). On the other hand, information that is provided voluntarily is confidential “if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 879 (D.C.Cir.1992). Some of the disputed documents were provided voluntarily and some were required by the agency. The defendant contends that certain information in all of the disputed documents was redacted or withheld pursuant to Exemption 4. a. The Information Voluntarily Submitted by AIG to the Treasury was Properly Withheld. The defendant claims that the entire document entitled “Current Draft Talking Points” was provided voluntarily and withheld in full pursuant to Exemption 4. Def.’s Mem. at 23. For a voluntary submission, the information is considered confidential if it is “of a kind that would customarily not be released to the public by the person from whom it was obtained.” Critical Mass, 975 F.2d at 879. The defendant may meet this burden “by supplying declarations as to customary treatment.” Judicial Watch v. Dep’t of the Army, 466 F.Supp.2d at 126. “Limited disclosures, such as to suppliers or employees, do not preclude protection" }, { "docid": "1317518", "title": "", "text": "“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); Canadian Commercial, 514 F.3d at 39. This “standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). “[W]e do not defer to the agency’s conclusory or unsupported suppositions.” McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C.Cir.2004). Exemption 4 covers “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). DoD concedes that the information contained in the documents either is or addresses “commercial ... information obtained from a person”; for then’ part, Sikorsky and Pratt contend that the information is “confidential.” They “do not contend ... that the particular information at issue here was voluntarily provided,” Appellants’ Br. 33 n. 10, and thus do not “seek review of th[e] aspect of the district court’s decision” that “held that disclosure of the information was mandatory, not voluntary.” Id. at 13 & n. 3. Accordingly, for the documents to be exempt from disclosure, their release must be likely to cause the contractors “substantial competitive harm” or “impair the Government’s ability to obtain necessary information in the future.” Canadian Commercial, 514 F.3d at 39-40 (internal quotations omitted); see Critical Mass, 975 F.2d at 878; Nat’l Parks, 498 F.2d at 770. A. Substantial Competitive Harm To qualify under this prong, an identified harm must “ ‘flow[ ] from the affirmative use of proprietary information by competitors.’ ” CNA, 830 F.2d at 1154 (quoting Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 n. 30 (D.C.Cir.1983)). In reviewing an agency’s" } ]

[ { "docid": "22310216", "title": "", "text": "that there is apparently no challenge to §93(a)’s separate requirement that each labor organization seeking to represent casino hotel employees must register with the Commission annually, and must disclose the names of its officers, agents, affiliated organizations, and pension and welfare funds. Appellees have not shown that this requirement of registration imposes any burden on them. Indeed, they effectively concede that this § 93(a) requirement standing alone presents no conflict with federal law on the authority of Hill v. Florida ex rel. Watson. See 325 U. S., at 543 (finding that the filing requirement “in and of itself” does not conflict with the NLRA). See Brief for Appellees 20-21. Justice White, with whom Justice Powell and Justice Stevens join, dissenting. Section 93(b) of the New Jersey Casino Control Act restricts the activities of unions representing workers employed in the casino industry. In particular, it provides that a union may not collect dues from casino workers or administer pension or welfare funds if any of its officials is disqualified under the criteria set forth in § 86. The Court purports to save some portion of this statute by holding that a state law restricting the class of individuals who can serve as officers in a union is not pre-empted by federal labor law. If § 93(b) did no more than that, I would agree with the Court’s resolution of these cases because, as the Court amply demonstrates, Congress’ actions in enacting the LMRDA indicate that federal labor law does not pre-empt state laws which prevent certain types of individuals from serving as union officials. However, § 93(b) is not directed at the individuals who are disqualified under §86. It imposes sanctions on the union itself and, in so doing, infringes on the employees’ federally protected rights. Section 7 of the NLRA grants covered employees the right “to bargain collectively through representatives of their own choosing.” 29 U. S. C. § 157. A bargaining representative achieves this status by being “designated or selected for the purposes of collective bargaining by the majority of the em ployees in a unit appropriate for such" } ]

[ { "docid": "12949132", "title": "", "text": "SENTELLE, Senior Circuit Judge: Petitioner Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital (the “Hospital”) petitions for review of the National Labor Relations Board’s (“NLRB” or the “Board”) decision and order finding that the Hospital violated section 8(a)(1) and (a)(5) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(1), (5), by unilaterally ceasing the payment of longevity-based wage increases to its nurses after the expiration of the parties’ collective bargaining agreement. See generally Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The NLRB cross-applies for enforcement of its decision and order. The Hospital argues that the language of the agreement and the parties’ shared understanding of that language demonstrate that the Hospital was not obligated to continue paying longevity-based increases upon expiration of the agreement. Relying on NLRB v. Noel Canning, — U.S.-, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Hospital also challenges the NLRB Regional Director’s authority to issue and prosecute the underlying complaint against the Hospital. For the reasons set forth below, we deny the Hospital’s petition for review and grant the NLRB’s cross-application for enforcement. I. The Collective Bargaining Agreements Petitioner operates an acute care facility in Wilkes-Barre, Pennsylvania. The Hospital’s full-time and part-time graduate and registered nurses are represented by the Pennsylvania Association of Staff Nurses and Allied Professionals, AFL-CIO (the “Union”). The Union is the exclusive collective bargaining representative for a bargaining unit of approximately 450 of the Hospital’s nurses. In or around May 2009, the Union negotiated with the new owner of the Hospital a memorandum of agreement that served as the parties’ collective bargaining agreement through June 30, 2009 (“2009 CBA”). The 2009 CBA incorporated by reference certain terms of the prior collective bargaining agreement between the Hospital’s former owner and the Union (“2005 CBA”), including Article 25, which provided nurses with annual across-the-board raises and longevity-based wage increases. After the 2009 CBA expired on July 1, 2009, the parties began negotiations but did not reach a successor" }, { "docid": "473208", "title": "", "text": "the reasoning of the Boston Harbor decision would have focused on those factors rather than on the nature of the state’s activities within the context of the clean-up project. In the antitrust context, the Supreme Court has indicated that the market for legal services on behalf of indigent criminal defendants is not so qualitatively different from other markets as to obviate the market analysis generally applicable pursuant to federal statute. See Superior Court Trial Lawyers Ass’n, 493 U.S. at 423, 110 S.Ct. at 775 (“It is, of course, true that the city purchases respondents’ services because it has a constitutional duty to provide representation to indigent defendants. It is likewise true that the quality of representation may improve when rates are increased. Yet neither of these facts is an acceptable justification for an otherwise unlawful restraint of trade.”). In the present case, the City has not attempted to regulate all attorneys practicing within the legal services market, and has not attempted to exclude Legal Aid from that market altogether, but has only attempted to restructure its relationship with Legal Aid in an effort to minimize possible disruptions in the provision of legal services. Moreover, the fact that the City’s proprietary actions in this case may have incidental effects on labor in the legal services market does not, by itself, alter this outcome. The Supreme Court has “held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor.” Boston Harbor, 507 U.S. at 227, 113 S.Ct. at 1196; see Chamber of Commerce, 83 F.3d 439, 440 (“Virtually any governmental action directed to the ... economy affects collective bargaining.”); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 824 F.2d 672, 674-76 (8th Cir.1987) (state commission’s disallowal of telephone company’s rate increases was not preempted by virtue of indirect effects on collective bargaining); Massachusetts Nurses Ass’n v. Dukakis, 726 F.2d 41, 42-45 (1st Cir.1984) (state statute restraining increases in hospital reimbursement was not preempted by virtue of indirect effects on collective bargaining); Amalgamated Transit Union, 568 F.2d at 1029 (governor’s threat to withdraw" }, { "docid": "6746342", "title": "", "text": "statute regulating hospital cost increases in Massachusetts Nursing Ass’n v. Dukakis, 726 F.2d 41 (1st Cir.1984). There we held that the statute was not preempted by the Labor Management Relations Act (LMRA), 29 U.S.C. §§ 141 et seq., because it only indirectly prejudiced a nurses’ union’s bargaining position. Id. at 45. Examining the implications of the union’s argument, identical to IP’s here, the Court stated: [I]n any industry the price of whose product or service — such as electric power, telephone, natural gas, or even rent controlled real estate — is regulated, a state would find its regulatory system vulnerable to preemptive attack on the ground that the overall control of price was too inhibiting an influence on collective bargaining. Logic, however, would carry beyond simple price control. Any state or municipal program that substantially increased the costs of operation of a business in a competitive market would be similarly vulnerable to the preemption argument. Id. (emphasis added). See also, Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 824 F.2d 672 (8th Cir.1987); Washington State Nurses Ass’n v. Washington State Hosp. Comm’n, 773 F.2d 1044 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986) (rejecting similar preemption challenges). IP’s is the extreme contention contemplated and expressly rebuffed in Massachusetts Nursing Ass’n. Furthermore, the present allegations are not significantly different from those ás-serted by the union in Massachusetts Nursing Ass’n even though IP charges that environmental health and safety was merely a pretext for the Board’s actual plan to pressure IP. The fact that the Jay Ordinance is the product of a popular referendum robs this argument of its thunder and leads us to restate our belief that indirect intrusions into collective bargaining, such as “[c]lean air and water laws, selective cutting requirements in forest operations, industrial safety standards, [and] tax increases,\" are rarely preempted by labor statutes such as the LMRA and the NLRA. 726 F.2d at 45 (emphasis added). Thus, we refuse IP’s invitation to extend Golden State to a situation which amounts at best only to a remote, indirect trespass on the" }, { "docid": "11902532", "title": "", "text": "name from the list. . Some activity is neither protected nor prohibited by the NLRA, nor even arguably so. In such cases the court must determine whether Congress intended to leave the activity at issue to the free play of economic forces, or whether states may regulate it. See Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396; Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280. Once again, a balancing process similar to that described above is required. See New York Tel. Co. v. New York State Dep’t of Labor, 440 U.S. 519, 527-528, 530-533, 99 S.Ct. 1328, 1334-1335, 1335-1337, 59 L.Ed.2d 553 (plurality opinion). The Ninth Circuit applied this balancing analysis in this situation in Golden State Transit Corp. v. City of Los Angeles, 686 F.2d 758 (9th Cir.1982), certiorari denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954. The court of appeals vacated the district court’s grant of a preliminary injunction prohibiting Los Angeles from allowing plaintiff’s taxicab franchise to expire. One effect of the city’s denial of the taxicab franchise renewal was to alter the balance of power in a collective bargaining dispute in favor of the union. Id. at 759. The question before the court was whether Congress had preempted the city’s ability to allow the franchise to expire during labor negotiations as a regulation of conduct meant to be left to the free play of economic forces. Because the city’s action involved the use of streets and highways, a traditionally local matter, and because Congress had exhibited no intent to interfere with the city1 s granting franchises to whom it pleased, the city’s action was allowed. The effect on the national labor regulatory scheme was slight enough that state regulation was permissible. The instant situation differs in its being directed expressly at violations of the NLRA, and its concomitantly greater impact on national labor law. Gould's attempted reliance on Golden State is therefore misplaced. . The defendants argue that if the statutes are" }, { "docid": "283207", "title": "", "text": "note 3. . See, e.g., Board of Trustees of Employees' Retirement System of City of Baltimore v. Mayor and City Council of Baltimore City, 317 Md. 72, 562 A.2d 720 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1167, 107 L.Ed.2d 1069 (1990) (holding that city ordinance requiring that city pension funds divest their holdings in companies doing business in South Africa did not intrude on federal government’s exclusive power to conduct foreign policy). Numerous state and local entities, including public universities, adopted similar policies. See also, Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Trade Restrictions, 13 Nw. J.Int’l L. & Bus. 563, 592 n. 1 (1993). . This court has previously declined to extend preemption analysis to an official pronouncement by a governmental body on an area of traditional local concern even though that pronouncement might well have affected the course of a labor dispute. In Washington State Nurses Association v. Washington State Hosp. Commission, 773 F.2d 1044, 1045, 1047 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986), we held that efforts by the Washington State Hospital Commission to control rising hospital rates were not preempted even though those efforts had the potential of influencing negotiations between the nurses association and the hospitals. Although our decision rested largely on the state's recognized right to control hospital rates, we also suggested that preemption should not extend to public statements. We stated that the Commission’s “public pronouncements” concerning the appropriate level of wage increases for nurses were not preempted because they \"do not impose sanctions on either the union or the employer with respect to collective bargaining negotiations.” Id. at 1047. . Strikes, picketing, and boycotts are all forms of \"concerted action” protected under § 157 of the Labor-Management Relations Act, 29 U.S.C. § 141 et seq. (formerly the National Labor Relations Act). . In Hawaii Tribune-Herald, Ltd. v. Kimura, 272 F.Supp. 175 (D.Haw.1967), the court held that preemption did not prohibit the County of Hawaii from withdrawing its advertisements from the Tribune Herald in order to" }, { "docid": "2813461", "title": "", "text": "that they constitute part of the universe in which collective bargaining takes place, just as do general prosperity or depression. But they do not add to or detract from the rights, practices, and procedures that together constitute our collective bargaining system. 726 F.2d at 45 (emphasis supplied); see also Washington State Nurses Ass’n v. Washington State Hosp. Comm’n, 773 F.2d 1044 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986) (rejecting preemption challenge to statute authorizing state hospital commission to measure the reasonableness of wage costs as a component of the overall costs recoverable in rates charged). Conclusion The Arkansas Commission is charged with the responsibility of setting rates that state telephone users will pay and determining a fair rate of return that SWB may earn. As part of this process, the Commission assesses the Company’s expenses to determine whether they are reasonable. If the Commission finds that they are not reasonable, an issue controlled by state law standards of arbitrariness and capriciousness, then the Commission will not pass them on to consumers in the form of rate increases. We conclude that the Commission’s action disallowing recovery of certain nonmanagement wage and benefit expenses does not rise to the level of an impermissible intrusion into or control over the relationship between the Company and CWA. We finally observe, as did the Ninth and First Circuits, that in any regulated industry, myriad governmental decisions, from ratesetting to the imposition of safety standards, undoubtedly will affect labor relations. Any indirect effect of the rateset-ting action taken in this case, however, falls short of the kind of state interference with the labor-management relationship that Congress intended to proscribe. The district court’s order accordingly is reversed. . The Commission refused to allow SWB to recover for wage and benefit expenses that exceeded by ten percent the average wage and benefit expenses for comparable jobs at other companies. . . Federal Communications Commission regulations require allocation of the Company’s expenses between interstate and intrastate operations. In its first order, the Commission failed to allocate any of the wage and benefit" }, { "docid": "2813460", "title": "", "text": "v. Byrne, 568 F.2d 1025, 1029 (3d Cir.1977) (en banc) (no preemption where governor threatened to cut off state subsidies to any transit company that agreed with a union to include an open-ended cost of living increase provision in its labor contract). The court also examined the implications of an argument identical to the Company’s in this case: First of all, in any industry the price of whose product or service — such as electric power, telephone, natural gas, or even rent controlled real estate — is regulated, a state would find its regulatory system vulnerable to preemptive attack on the ground that the overall control of price was too inhibiting an influence on collective bargaining. Logic, however, would carry beyond simple price control. Any state or municipal program that substantially increased the costs of operation of a business in a competitive market would be similarly vulnerable to the preemption argument. Clean air and water laws, selective cutting requirements in forest operations, industrial safety standards, tax increases — all pro tanto hobble collective bargaining in that they constitute part of the universe in which collective bargaining takes place, just as do general prosperity or depression. But they do not add to or detract from the rights, practices, and procedures that together constitute our collective bargaining system. 726 F.2d at 45 (emphasis supplied); see also Washington State Nurses Ass’n v. Washington State Hosp. Comm’n, 773 F.2d 1044 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986) (rejecting preemption challenge to statute authorizing state hospital commission to measure the reasonableness of wage costs as a component of the overall costs recoverable in rates charged). Conclusion The Arkansas Commission is charged with the responsibility of setting rates that state telephone users will pay and determining a fair rate of return that SWB may earn. As part of this process, the Commission assesses the Company’s expenses to determine whether they are reasonable. If the Commission finds that they are not reasonable, an issue controlled by state law standards of arbitrariness and capriciousness, then the Commission will not pass them" }, { "docid": "18156562", "title": "", "text": "no doubt that the question of federal preemption would be presented. See Golden State Transit Corp. v. City of Los Angeles, 475 U.S, 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986) (preemption bars city from coercing party to enter into labor agreement). The fact that the government mandates-but is not party to-the labor agreement would not insulate the government’s actions from preemption scrutiny. By the same token, preemption issues are implicated where, as here, the impetus for a labor-management agreement is that the City demands it as a condition of public financing. While such an arrangement may turn out to escape or survive preemption analysis on the merits, we may not simply assume the question away by limiting our focus to the four corners of the Neutrality Agreement. See, e.g., Hotel Employees & Rest. Employees Union, Local 2 v. Marriott Corp., 1993 WL 341286 (N.D.Cal. Aug.23, 1993). Thus, we begin our examination of whether the Neutrality Agreement is valid by looking to the City’s ordinance. If the City’s efforts to promote the Agreement are preempted by federal labor law, then the executed agreement between the parties may be deemed void. “It is by now a commonplace that in passing the NLRA Congress largely displaced state regulation of industrial relations.” Wis. Dep’t of Industry, Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986). Section 7 of the NLRA protects, inter aha, the right of employees to “self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing.” 29 U.S.C. § 157. Section 8 of the NLRA enumerates “unfair labor practices,” including: interference with an employee’s exercise of rights guaranteed under section 7; domination or interference with the formation or administration of a labor organization; discrimination in hiring or employment to encourage or discourage membership in a labor organization; the refusal to bargain collectively; forcing or requiring an employer to join a labor organization; forcing an employer to bargain .with a particular labor .organization as the collective bargaining agent of its employees if another labor organization" }, { "docid": "6746341", "title": "", "text": "activity only peripherally related to labor policy, without placing conditions on the conduct of the parties to the dispute, are not subject to preemption. See id. 475 U.S. at 612, 106 S.Ct. at 1397, 89 L.Ed.2d at 622. In Golden State, the City Council expressly conditioned the employer’s franchise renewal on the settlement of the labor dispute. Id. at 619, 106 S.Ct. at 1401, 89 L.Ed.2d at 627. The nexus between the City’s action and the parties’ collective bargaining positions was indisputable, and the City’s placement of conditions on renewal of the employer’s operating franchise forced its hand in the dispute. On the other hand, reading IP’s complaint in its most favorable light, there is no reasonable, conceivable set of facts suggested by IP to convince either the trial court or this Court that the Jay Ordinance forced IP to accede to the unions’ demands. See Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84. The Ordinance’s effect on IP’s bargaining position is no more direct than that of the state statute regulating hospital cost increases in Massachusetts Nursing Ass’n v. Dukakis, 726 F.2d 41 (1st Cir.1984). There we held that the statute was not preempted by the Labor Management Relations Act (LMRA), 29 U.S.C. §§ 141 et seq., because it only indirectly prejudiced a nurses’ union’s bargaining position. Id. at 45. Examining the implications of the union’s argument, identical to IP’s here, the Court stated: [I]n any industry the price of whose product or service — such as electric power, telephone, natural gas, or even rent controlled real estate — is regulated, a state would find its regulatory system vulnerable to preemptive attack on the ground that the overall control of price was too inhibiting an influence on collective bargaining. Logic, however, would carry beyond simple price control. Any state or municipal program that substantially increased the costs of operation of a business in a competitive market would be similarly vulnerable to the preemption argument. Id. (emphasis added). See also, Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 824 F.2d 672 (8th Cir.1987); Washington" }, { "docid": "2813453", "title": "", "text": "exhaustion arguments are seldom applicable. Federal Preemption Under the NLRA The Commission’s appeal centers on the argument that the NLRA does not prevent a state regulatory body from adjusting downward the expenses a public utility may recover for wages and benefits that were the product of collective bargaining. There is no doubt that a tension exists between federal labor laws protecting the collective bargaining process and state laws charging regulatory bodies with the task of assessing the reasonableness of a public utility’s expenses, rates, and revenues. A labor organization invariably uses the collective bargaining process to obtain higher wages and better benefits. At the same time, state regulatory bodies seek to control the cost of utilities, a substantial portion of which goes toward paying wages and benefits. We conclude, nonetheless, that the Commission’s disallowance of what it deemed to be unreasonably high wage expenses, while perhaps indirectly affecting future bargaining strategy, does not control the terms of any particular collective bargaining agreement and does not interfere in any impermissible way with the exercise of collective bargaining rights protected by the NLRA. Arkansas law gives the Commission the authority to establish reasonable rates to be charged for intrastate public utilities. Ark.Stat.Ann. §§ 73-202a, -204 (Repl. 1979). To set these rates, the Commission establishes the total reasonable cost of providing utility service based on the value of the investment the Company has made to provide the service, plus operating expenses. Operating expenses include labor costs. The Commission determined that certain wage and benefit expenses claimed by the Company were disproportionately high when compared with those at similar companies. It accordingly adjusted downward the salary expenses component of overall operating costs. The Commission’s order has no relation to the substantive portions of the labor contract between SWB and CWA and thus has no relation to the substantive enforcement of the NLRA, a role that Congress has reserved for the National Labor Relations Board (Board). San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (state laws intruding on Board’s primary jurisdiction to interpret and enforce NLRA" }, { "docid": "12402658", "title": "", "text": "1151, 1158 (D.Ha.2000); Charlesgate Nursing Ctr. v. State of R.I., 723 F.Supp. 859, 866-67 (D.R.I.1989). Similarly, in Derrico v. Sheehan Emergency Hospital, the Second Circuit held that an employee could not rely on an implied contract theory under state law for enforcing terms of an expired collective bargaining agreement negotiated by a state organization. 844 F.2d 22, 28-29 (2d Cir.1988). The Second Circuit held that “[e]xposure to liability at state law for breach of contract ... would significantly alter the labor-management relationship that follows expiration of a [collective bargaining agreement]” because it would “artificially limit the parties’ post-expiration” economic weapons. Id. at 29. In addition, the court held that allowing a collective bargaining agreement provision to linger after the contract’s expiration in the form of an implied contract would “be tantamount to imposing a contract on the parties, a notion anathema to the NLRA.” Id. The potential for disrupting collective bargaining in this way led the court to conclude that the state law implied contract claim was preempted by the NLRA. Id. Conversely, state action which has some effect upon the bargaining process does not necessarily curtail a right or interfere with the “balance” improperly. For example, in New York Telephone, the Supreme Court held that a state statute providing unemployment benefits to striking workers was not preempted. 440 U.S. at 533-46, 99 S.Ct. 1328. The three-judge plurality based its decision in part on the fact that, the “general purport of the program [was] not to regulate the bargaining relationships between the [employers and employees] but instead to provide an efficient means of insuring employment security in the State.” Id. at 533, 99 S.Ct. 1328. Similarly, in Massachusetts Nurses Assoc. v. Dukakis, the First Circuit upheld a hospital cost containment law because the statute only affected labor-management relations indirectly and affordable health care was an interest deeply rooted in local feeling and responsibility. 726 F.2d 41, 44 (1st Cir.1984). The statute at issue in Dukakis established a prospective method of reimbursing hospital costs by projecting estimates of component costs. Id. at 42. The First Circuit found that such a statute" }, { "docid": "2813458", "title": "", "text": "in a “take it or leave it” position with the union in future negotiations if the Commission has the power effectively to veto a wage agreement by denying the Company the funds to pay for it. The Company further maintains that the Commission’s action overlooks the complex nature of labor negotiations, the give and take by both parties on many issues, not just wages. It urges that by isolating wages from other bargained-for components of a labor contract, and by further isolating particular jobs, the Commission has ignored the integrated nature of labor negotiations and has interfered with the economic forces that shape the final agreement. We cannot agree. Nothing in the Commission’s order encroaches upon either party’s ability to use economic pressure in future negotiations to gain concessions from the other. The Company remains free to resist the union’s demands, and CWA may authorize a strike if its terms are not met. Furthermore, the Commission has not vetoed the wage agreement. As we have already pointed out, the Company stipulated that notwithstanding the Commission’s order, it is obligated to pay the bargained-for wages. Finally, nothing in the NLRA guarantees that wages agreed upon in collective bargaining will be recovered from consumers, whether the business is regulated or not. This, therefore, is not a case where either Machinists or Garmon preemption is appropriate. The First Circuit addressed a similar situation in Massachusetts Nursing Ass’n v. Dukakis, 726 F.2d 41 (1st Cir.1984). In that case, the Nursing Association challenged a Massachusetts law that provided a prospective method of reimbursing hospitals for their costs. An overall figure of prospective reasonable costs was derived at the beginning of the year by projecting estimates of component costs. The resulting figure was the amount that a hospital was allowed to collect for care provided in a given year to all its patients, whatever the source of payment. The court held that the statute was not preempted by federal labor laws because it affected the labor-management relationship only indirectly through its regulation of the hospitals’ annual gross income. Id. at 48; see also Amalgamated Transit Union" }, { "docid": "2813452", "title": "", "text": "to the Arkansas Court of Appeals in July, 1986, raising the question of federal preemption along with the contention that the order was arbitrary and capricious in many other respects. In December, Í985, after oral argument but before the state court had rendered its opinion, SWB filed a petition in federal district court for a declaratory judgment and a permanent injunction. In July, 1986, the district court determined that the Commission’s actions were preempted by the NLRA. This appeal followed. We reverse. Abstention As a threshold matter, the Commission maintains that the district court abused its discretion in failing to abstain from deciding the case because the identical issue was already before the state court of appeals. This argument overlooks our discussion and holding in Middle South Energy, Inc. v. Arkansas Pub. Serv. Comm’n, 772 F.2d 404, 417 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986). Where a challenge to a state regulatory scheme asserts that the proceeding or regulation at issue is beyond the state’s authority, abstention or exhaustion arguments are seldom applicable. Federal Preemption Under the NLRA The Commission’s appeal centers on the argument that the NLRA does not prevent a state regulatory body from adjusting downward the expenses a public utility may recover for wages and benefits that were the product of collective bargaining. There is no doubt that a tension exists between federal labor laws protecting the collective bargaining process and state laws charging regulatory bodies with the task of assessing the reasonableness of a public utility’s expenses, rates, and revenues. A labor organization invariably uses the collective bargaining process to obtain higher wages and better benefits. At the same time, state regulatory bodies seek to control the cost of utilities, a substantial portion of which goes toward paying wages and benefits. We conclude, nonetheless, that the Commission’s disallowance of what it deemed to be unreasonably high wage expenses, while perhaps indirectly affecting future bargaining strategy, does not control the terms of any particular collective bargaining agreement and does not interfere in any impermissible way with the exercise of collective" }, { "docid": "2624909", "title": "", "text": "well as damages, pursuant to 42 U.S.C. § 1983, on the grounds that the City’s action was preempted by the National Labor Relations Act, 29 U.S.C. § 151 et seq. (hereinafter “NLRA”), and violated Golden State’s rights to due process of law and equal protection. Golden State later amended the complaint to also allege that the City’s action violated Section 1 of the Sherman Act, 15 U.S.C. § 1. On March 30, 1981, this Court, Judge A. Andrew Hauk presiding, granted Golden State’s application for a temporary restraining order, and on April 13, 1981, this Court issued a preliminary injunction forbidding the City from terminating Golden State’s franchise. See Golden State Transit Corp. v. City of Los Angeles, 520 F.Supp. 191 (C.D.Cal.1981) (Hauk, J.). The Ninth Circuit Court of Appeals vacated the injunction, holding that neither the federal labor law nor the Equal Protection Clause precluded the City from refusing to renew Golden State’s franchise while granting franchises to other taxicab companies. See Golden State Transit Corp. v. City of Los Angeles, 686 F.2d 758 (9th Cir.1982). The Supreme Court denied certiorari. Golden State Transit Corp. v. City of Los Angeles, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983). The case was returned to District Court Judge Cynthia Holcomb Hall. Golden State continued limited operations under the restraining order until April 28, 1983, when Judge Hall, in an unpublished decision, denied Golden State’s application for a preliminary injunction. The City then ordered Golden State to cease and desist operation, and Golden State terminated operations. On April, 28,1983, Judge Hall also granted partial summary judgment for the City on the Sherman Act cause of action, holding that the City’s regulation of the taxicab business was within the “state action” exemption from Sherman Act liability. See Golden State Transit Corp. v. City of Los Angeles, 563 F.Supp. 169 (C.D.Cal.1983) (Hall, J.). The Ninth Circuit affirmed. See Golden State Transit Corp. v. City of Los Angeles, 726 F.2d 1430 (9th Cir.1984). While Golden State's appeal on the Sherman Act issue was pending, Judge Hall, in another unpublished decision, granted the City" }, { "docid": "12091878", "title": "", "text": "as an unfair labor practice the refusal by an employer to bargain collectively with employee representatives. 29 U.S.C. § 158(a)(5). And finally, for our purposes here, the NLRA requires both employers and self-organized (that is, unionized) employees to bargain in good faith. 29 U.S.C. § 158(d); Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 616, 106 S.Ct. 1395, 1399-1400, 89 L.Ed.2d 616 (1986). The NLRA does not require that the parties reach an agreement. Instead, it leaves the bargaining process largely to the parties. Id. at 616, 106 S.Ct. at 1399-1400; American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 317, 85 S.Ct. 955, 966-67, 13 L.Ed.2d 855 (1965). In the context of the NLRA, the Supreme Court has developed two preemption doctrines. The first, Garmon preemption, forbids state and local regulation of activities that the NLRA protects or prohibits or arguably protects or prohibits. Building & Trades Council v. Associated Builders and Contractors of Massachusetts/Rhode Island, — U.S.-,-, 113 S.Ct. 1190,1194,122 L.Ed.2d 565 (1993); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 — 45, 79 S.Ct. 773, 779-80, 3 L.Ed;2d 775 (1959). The Garmon doctrine is designed to prevent conflict between state and local regulation and Congress’ integrated scheme of regulation embodied in 29 U.S.C. §§ 157 & 158. Garmon preemption is not, however, absolute. A claim is not preempted under Garmon if the regulated activity is (1) merely of peripheral concern to the federal labor laws or (2) touches interests deeply rooted in local feeling and responsibility. Belknap, Inc. v. Hale, 463 U.S. 491, 498, 103 S.Ct. 3172, 3177, 77 L.Ed.2d 798 (1983). In this case, Governor Edgar and General Burris contend that these exceptions to Garmon preemption apply to save the Burial Rights Act from preemption. We disagree. The Supreme Court has made clear that these exceptions apply in matters of general state law — in particular, criminal and tort law. In Farmer v. United Bhd. of Carpenters and Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the Court held that the NLRA did not preempt a" }, { "docid": "283208", "title": "", "text": "1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986), we held that efforts by the Washington State Hospital Commission to control rising hospital rates were not preempted even though those efforts had the potential of influencing negotiations between the nurses association and the hospitals. Although our decision rested largely on the state's recognized right to control hospital rates, we also suggested that preemption should not extend to public statements. We stated that the Commission’s “public pronouncements” concerning the appropriate level of wage increases for nurses were not preempted because they \"do not impose sanctions on either the union or the employer with respect to collective bargaining negotiations.” Id. at 1047. . Strikes, picketing, and boycotts are all forms of \"concerted action” protected under § 157 of the Labor-Management Relations Act, 29 U.S.C. § 141 et seq. (formerly the National Labor Relations Act). . In Hawaii Tribune-Herald, Ltd. v. Kimura, 272 F.Supp. 175 (D.Haw.1967), the court held that preemption did not prohibit the County of Hawaii from withdrawing its advertisements from the Tribune Herald in order to comply with a state policy to remain neutral in any labor dispute by abstaining from doing business with a firm whose employees are currently on strike. In explaining its decision the court said: [T)here is nothing in the plaintiff's allegations to indicate that the municipality has not simply attempted to remain neutral and impartial in the labor dispute. There is no allegation that the county made an effort to interfere with the substantive issues which lie between the newspaper and the unions. Indeed, the counterargument could be made that the county would be favoring the newspaper over the union by retaining its advertising in the Tribune-Herald. Id. at 178 (emphasis added). . The district court determined that the City’s actions were preempted because the City put its thumb on the scale, impermissibly tilting the balance in favor of the union. We do not decide whether a City's participation in a boycott might be preempted if its actions served to change the economic balance, because we conclude that there was no showing that the City’s actions" }, { "docid": "2813459", "title": "", "text": "order, it is obligated to pay the bargained-for wages. Finally, nothing in the NLRA guarantees that wages agreed upon in collective bargaining will be recovered from consumers, whether the business is regulated or not. This, therefore, is not a case where either Machinists or Garmon preemption is appropriate. The First Circuit addressed a similar situation in Massachusetts Nursing Ass’n v. Dukakis, 726 F.2d 41 (1st Cir.1984). In that case, the Nursing Association challenged a Massachusetts law that provided a prospective method of reimbursing hospitals for their costs. An overall figure of prospective reasonable costs was derived at the beginning of the year by projecting estimates of component costs. The resulting figure was the amount that a hospital was allowed to collect for care provided in a given year to all its patients, whatever the source of payment. The court held that the statute was not preempted by federal labor laws because it affected the labor-management relationship only indirectly through its regulation of the hospitals’ annual gross income. Id. at 48; see also Amalgamated Transit Union v. Byrne, 568 F.2d 1025, 1029 (3d Cir.1977) (en banc) (no preemption where governor threatened to cut off state subsidies to any transit company that agreed with a union to include an open-ended cost of living increase provision in its labor contract). The court also examined the implications of an argument identical to the Company’s in this case: First of all, in any industry the price of whose product or service — such as electric power, telephone, natural gas, or even rent controlled real estate — is regulated, a state would find its regulatory system vulnerable to preemptive attack on the ground that the overall control of price was too inhibiting an influence on collective bargaining. Logic, however, would carry beyond simple price control. Any state or municipal program that substantially increased the costs of operation of a business in a competitive market would be similarly vulnerable to the preemption argument. Clean air and water laws, selective cutting requirements in forest operations, industrial safety standards, tax increases — all pro tanto hobble collective bargaining in" }, { "docid": "12091877", "title": "", "text": "interstate and foreign commerce. Nash v. Florida Indus. Comm’n, 389 U.S. 235, 238, 88 S.Ct. 362, 365-66, 19 L.Ed.2d 438 (1967); State of III. Dep’t of Employment Sec., 988 F.2d at 738. It safeguards the right of employees to self-organization and to select representatives for collective bargaining. 29 U.S.C. § 157; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57 S.Ct. 615, 622, 81 L.Ed. 893 (1937). The NLRA reflects congressional intent to create a uniform, national body of labor law interpreted and administered by a centralized agency, the National Labor Relations Board. New York Telephone Co. v. New York State Dep’t of Labor, 440 U.S. 519, 528, 99 S.Ct. 1328, 1334-35, 59 L.Ed.2d 553 (1979); State of Ill. Dep’t of Employment Sec., 988 F.2d at 738. The NLRA enumerates unfair labor practices by both employees and employers, 29 U.S.C. § 158(a) and (b), and in particular declares as unfair (and therefore illegal) interference by an employer with the right to self-organization and collective bargaining. 29 U.S.C. § 158(a)(1). It also defines as an unfair labor practice the refusal by an employer to bargain collectively with employee representatives. 29 U.S.C. § 158(a)(5). And finally, for our purposes here, the NLRA requires both employers and self-organized (that is, unionized) employees to bargain in good faith. 29 U.S.C. § 158(d); Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 616, 106 S.Ct. 1395, 1399-1400, 89 L.Ed.2d 616 (1986). The NLRA does not require that the parties reach an agreement. Instead, it leaves the bargaining process largely to the parties. Id. at 616, 106 S.Ct. at 1399-1400; American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 317, 85 S.Ct. 955, 966-67, 13 L.Ed.2d 855 (1965). In the context of the NLRA, the Supreme Court has developed two preemption doctrines. The first, Garmon preemption, forbids state and local regulation of activities that the NLRA protects or prohibits or arguably protects or prohibits. Building & Trades Council v. Associated Builders and Contractors of Massachusetts/Rhode Island, — U.S.-,-, 113 S.Ct. 1190,1194,122 L.Ed.2d 565 (1993); San Diego Bldg. Trades Council v." }, { "docid": "473209", "title": "", "text": "its relationship with Legal Aid in an effort to minimize possible disruptions in the provision of legal services. Moreover, the fact that the City’s proprietary actions in this case may have incidental effects on labor in the legal services market does not, by itself, alter this outcome. The Supreme Court has “held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor.” Boston Harbor, 507 U.S. at 227, 113 S.Ct. at 1196; see Chamber of Commerce, 83 F.3d 439, 440 (“Virtually any governmental action directed to the ... economy affects collective bargaining.”); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 824 F.2d 672, 674-76 (8th Cir.1987) (state commission’s disallowal of telephone company’s rate increases was not preempted by virtue of indirect effects on collective bargaining); Massachusetts Nurses Ass’n v. Dukakis, 726 F.2d 41, 42-45 (1st Cir.1984) (state statute restraining increases in hospital reimbursement was not preempted by virtue of indirect effects on collective bargaining); Amalgamated Transit Union, 568 F.2d at 1029 (governor’s threat to withdraw contracts from transit company if it collectively bargained for open-ended cost of living increase provision was not barred by NLRA); Image Carrier Corp. v. Beame, 567 F.2d 1197, 1202 (2d Cir.1977) (no NLRA preemption where there was no evidence that city’s refusal to patronize nonunion printers had indirect coercive effect on nonunion employees to abandon their right not to join a union). Nor is this analysis altered by the possibility that the City might have pursued its proprietary goals by more effective means or by more narrowly tailored means. “[Pjreemption analysis does not insist upon a least restrictive means test.” Ace Auto Body & Towing, 171 F.3d at 777. Accordingly, circuit courts applying the proprietary action theory have declined to question the wisdom of the particular means selected by a state or municipality in order to achieve its proprietary purpose. See Cardinal Towing & Auto Repair, 180 F.3d at 695-96 (deferring to city’s proprietary decision to replace broad scheme involving multiple towing contracts with more competitive scheme involving single towing contract); Associated Gen. Contractors, 159" }, { "docid": "2487599", "title": "", "text": "Approved Standard wages against a lower wage negotiated in collective bargaining. Section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (1982), protects concerted activity, particularly collective bargaining. Very recently, in Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. 282, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986), the Supreme Court reaffirmed “the general rule set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed. 775 (1959), that States may not regulate activity that the NRLA protects, prohibits, or arguably protects or prohibits.” 106 S.Ct. at 1061. Bechtel argues that in accepting jurisdiction over this dispute, the Division of Labor Standards Enforcement was attempting to set aside wage rates negotiated by the apprentices’ majority bargaining representative. The negotiation of wage rates, Bechtel argues, is protected activity under section 7. We agree. Section 7 guarantees the freedom of workers to join together and designate representatives to negotiate the terms and conditions of employment. See Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 512 (5th Cir.1982); Crenlo, Division of GF Business Equipment, Inc. v. NLRB, 529 F.2d 201, 204 (8th Cir.1976). We conclude that section 7 would preempt any attempt to enforce the Approved Standards against collectively bargained-for wage rates. The Union finds an exception to federal labor law preemption in Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). In that case, the Supreme Court held that “when a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act.” 471 U.S. at 757, 105 S.Ct. at 2398. The Court concluded that because the state legislation did not limit the rights of self-organization or collective bargaining protected by the NLRA, it was not preempted by that act. Id. at 758, 105 S.Ct. at 2399. “Minimum state labor standards affect union and nonunion employees equally, and neither encourage nor discourage the collective-bargaining processes that are the subject of the NLRA.” Id. at 755, 105 S.Ct. at" } ]

[ { "docid": "22541816", "title": "", "text": "independent prerequisite for a lesser included offense instruction that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater. Keeble v. United States, 412 U. S. 205, 208 (1973). This reading of the Rule is consistent with its origins. The Rule “developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged.” Beck v. Alabama, 447 U. S. 625, 633 (1980). Of course, it is now firmly established that Rule 31(c)’s provision for lesser offense instructions benefits the defendant as well. The Court recognized in Keeble v. United States, supra, that where the jury suspects that the defendant is plainly guilty of some offense, but one of the elements of the charged offense remains in doubt, in the absence of a lesser offense instruction, the jury will likely fail to give full effect to the reasonable-doubt standard, resolving its doubts in favor of conviction. Id., at 212-213. The availability of a lesser included offense instruction protects the defendant from such improper conviction. In Keeble, 412 U. S., at 214, n. 14, we acknowledged that the inherent relationship approach abandoned mutuality in the application of Rule 31(c), but we had no occasion to address the merits of the approach or to discuss whether mutuality was implicit in the language of the Rule. This Court’s decisions after the adoption of Rule 31(c), while not formally adopting the elements approach, reflect adherence to it. Those decisions have focused on the statutory elements of individual offenses when considering the propriety of lesser included offense instructions. In Keeble, for example, we held that the defendant was entitled to an instruction on the lesser offense of simple assault: “[A]n intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if" } ]

[ { "docid": "6249145", "title": "", "text": "handle, but that such an object was not a dangerous weapon under the circumstances. Because Estrada objected to the district court’s failure to include a lesser-included-offense instruction on simple assault in the jury charge, we review its decision not to include such an instruction for abuse of discretion. In order to be entitled to a lesser-included-offense instruction, a defendant must “demonstrate that given the evidence at trial, a rational jury could find him or her guilty of the lesser offense, yet acquit of the greater.” 26 Moore’s Federal PRACTICE, supra, § 630.32[4]. We have explained that “ ‘[w]hile a defendant’s request for a lesser-included offense charge should be freely granted, there must be a rational basis for the lesser charge and it cannot serve merely as a device, for defendant to invoke the mercy-dispensing prerogative of the jury.’ ” Harrison, 55 F.3d at 168 (alteration in original) (quoting United States v. Collins, 690 F.2d 431, 438 (5th Cir.1982)). However, “it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); see also United States v. Chase, 838 F.2d 743, 747 (5th Cir.1988); 2 Charles Alan Wright, Federal Practice & Procedure: Criminal § 498, at 795 (2d ed. 1982) (“There is no doubt but that a defendant is entitled to an instruction about the lesser offense as a matter of right if the evidence would permit the jury to find him guilty of that offense.” (footnotes omitted)). Although Estrada, like Valenzuela, presented an alibi defense, other evidence adduced at trial would have permitted a rational jury to convict him of simple assault and acquit him of assault with a dangerous weapon. During cross-examination, Estrada’s attorney impeached Gilbreath by questioning him about his initial incident report in which he did not mention the use of a broom or mop handle during the assault by Estrada. In addition, he" }, { "docid": "4670412", "title": "", "text": "F.3d at 1163 (internal citations and quotation marks omitted) (quoting Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Thus, a district court does not abuse its discretion in refusing to give a lesser-included offense instruction if the jury could not have convicted the defen dant of the lesser-included offense without finding the element(s) that would convert the lesser offense to the greater. See United States v. Torres-Flores, 502 F.3d 885, 888 (9th Cir.2007). A. Simple Assault is a Lesser-included Offense of 18 U.S.C. § 111. We agree that simple assault is a lesser-included offense of felony assault on a federal officer under 18 U.S.C. § 111. At the time of Rivera’s offense, § 111 provided, in relevant part: (a) ... Whoever ... forcibly assaults, resists, opposes, impedes, intimidates, or interferes with[a federal officer] while engaged in of on account of the performance of official duties ... shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than 8 years, or both. (b) Enhanced penalty.—Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both. 18 U.S.C. § 111 (effective through January 6, 2008). We previously held that § 111 defines three separate offenses: “(1) assaults that do not involve physical contact (punishable up to one year), (2) assaults that do involve physical contact! ] (punishable up to eight years), and (3) assaults that involve a deadly or dangerous weapon or bodily injury (punishable by up to twenty years).” United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir.2008) (applying 18 U.S.C." }, { "docid": "8136437", "title": "", "text": "him of the greater.” United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 953, 117 L.Ed.2d 121 (1992), quoting Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 1451 n. 8, 103 L.Ed.2d 734 (1989). Unlike the defendant in Keeble, defendants here were not charged with aggravated assault or assault with a dangerous weapon. On the facts of this case, the only difference between a § 111 and a § 113 assault violation is whether the assault was committed on a federal officer for purposes of § 111. After the district court denied their motion to dismiss on the federal officer issue, defendants did not dispute that tribal officers Greenwald and Long were BIA-designated law enforcement officers, employed by OSTPSC under a valid 638 contract and engaged in the performance of their official duties at the time of their encounter with defendants. Therefore, a lesser included offense instruction for simple assault was not warranted “because there was no dispute on the elements differentiating” the lesser and the greater crimes. United States v. Elk, 658 F.2d 644, 649 (8th Cir.1981). As there was trial error but not insufficiency of the evidence, defendants may be retried. See Burks v. United States, 437 U.S. 1, 14 & n. 8, 98 S.Ct. 2141, 2148 & n. 8, 57 L.Ed.2d 1 (1978). The judgments of the district court are reversed and the cases are remanded for further proceedings consistent with this opinion. . In United States v. Voss, 787 F.2d 393, 398 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986), we questioned whether an instruction permitting the jury to convict without properly finding each element of the crime may ever be harmless error. Given the facts of this case, we need not address that issue. . Schrader was convicted in 1988 of unlawful possession of an unregistered firearm. While serving his sentence for that crime, Schrader escaped from a half-way home, resulting in a second felony conviction in 1989. BEAM, Circuit Judge, concurring and dissenting. I" }, { "docid": "22358382", "title": "", "text": "* manner as are all other persons committing such offense within the exclusive jurisdiction of the United States.” The Assimilative Crimes Act, section 13, makes state law applicable when a crime committed in Indian country is not defined by federal criminal statutes. It is defendant’s position that the child molestation instruction is not available because it is not one of the specific crimes listed in section 1153. He asserts that if the defendant in this case were a non-Indian then section 1152 would apply and, consequently, section 13 could then be invoked to allow an instruction of a crime defined by South Dakota law. In contrast, section 1153, by its terms, restricts the scope of the charges and precludes use of section 13. The defendant argues only those fourteen crimes enumerated in the statute are within the court’s jurisdiction. We find this analysis an unnecessarily narrow reading of the statute and of the applicable case law. We rely primarily on Keeble v. United States, 412 U.S. 205, 216, 93 S.Ct. 1993, 1999, 36 L.Ed.2d 844 (1973). See also United States v. Pino, 606 F.2d 908, 914-15 (10th Cir. 1979); Felicia v. United States, 495 F.2d 353, 354-55 (8th Cir.), cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974). In Keeble the United States Supreme Court considered the issue of “whether an Indian prosecuted under the [Major Crimes] Act is entitled to a jury instruction on a lesser included offense where that lesser offense is not one of the crimes enumerated in the Act.” Keeble v. United States, supra, 412 U.S. at 206, 93 S.Ct. at 1994. The defendant in Keeble was charged with assault with intent to commit serious bodily injury under section 1153. The trial court refused to instruct the jury on a lesser included offense of simple assault reasoning that because simple assault is not enumerated in the Act, it is within exclusive tribal jurisdiction. Id. The Court held that the simple assault instruction should have been given and reversed the conviction. Justice Brennan, writing for the Court, concluded: Finally, we emphasize that our decision" }, { "docid": "2734762", "title": "", "text": "for the jury to acquit him on the offense charged in the indictment, while finding him guilty on the lesser offense.” United States v. Cooper, 812 F.2d 1283, 1287 (10th Cir.1987) (Baldock, J., concurring). After all, “[wjhere one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973). We apply a four-part test to determine when a lesser included offense instruction must be given. See, e.g., Fitzgerald, 719 F.2d at 1071. First, there must be a proper request for an instruction. Id. at 1071. Second, the elements of the lesser included offense must be a subset of the elements of the greater (charged) offense. Id; Abeyta, 27 F.3d at 473-74; Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450-51. Third, the element differentiating the two offenses must be a matter in dispute. Fitzgerald, 719 F.2d at 1071. Fourth, the jury must be able to rationally acquit the defendant on the greater offense and convict on the lesser offense. Id. The court is not required to provide the requested instruction unless all four of these factors have been satisfied. See, e.g., Abeyta, 27 F.3d at 473-76; United States v. Horn, 946 F.2d 738, 743-46 (10th Cir.1991). In the present case, the district court ostensibly determined the crime of assault by striking, beating or wounding was not a lesser included offense of assault with a dangerous weapon because the crime of striking, beating or wounding did not contain the element of use of a dangerous weapon. As Mr. Monroe and Mr. Duran point out in their appellate briefs, however, it appears the district court’s logic is flawed. The fact that the offense of assault by striking, wounding, or beating does not contain the element of use of a dangerous weapon does not mean the offense is not a lesser included offense of assault with a dangerous weapon. An offense need not contain all of the" }, { "docid": "4670416", "title": "", "text": "of the lesser offense, yet acquit him of the greater.” Hernandez, 476 F.3d at 798 (internal quotation marks omitted) (citing Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). “[A] district court may not weigh the evidence in determining whether to give a lesser included offense instruction.” Hernandez, 476 F.3d at 800 (citing Keeble, 412 U.S. at 208, 93 S.Ct. 1993). However, a district court may properly refuse to give an instruction on a lesser included offense if the jury could not have convicted a defendant of the lesser-included offense without finding the ele-mentís) that would convert the lesser offense to the greater. See Torres-Flores, 502 F.3d at 888. Such is the case here. In this circuit, we adhere to the common law understanding of simple assault as “assault that [does] not involve physical contact.” Chapman, 528 F.3d at 1219 (citing United States v. Chestaro, 197 F.3d 600, 605-06 (2d Cir.1999)). See also United States v. McCulligan, 256 F.3d 97, 104 (3d Cir.2001) (“[P]roof of actual contact is required to sustain a conviction for any crime beyond simple assault.”). Therefore, “an assault, coupled with the presence of physical contact or a similar aggravating factor, such as the intent to commit murder or a serious felony, is not simple.” Chapman, 528 F.3d at 1219 (citing United States v. Hathaway, 318 F.3d 1001, 1009 (10th Cir.2003); United States v. Yates, 304 F.3d 818, 823 (8th Cir.2002)). In United States v. Torres-Flores, we upheld the district court’s refusal to give an instruction on the lesser-included, misdemeanor offense under 8 U.S.C. § 1324(a)(2). See Torres-Flores, 502 F.3d at 887. There, the statute of conviction converted a misdemeanor immigration offense to a felony upon a finding of specific intent “to violate immigration laws.” Id. at 888 (internal citation omitted). The defendant argued that he was entitled to an instruction on the lesser-included offense. Id. To determine whether the district court abused its discretion in refusing the lesser-included instruction, we asked whether the" }, { "docid": "16269813", "title": "", "text": "precedent explicitly requires a lesser-included offense charge if the instruction that is given includes the greater offense. However, Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), seems, at first blush, to suggest otherwise. There, a Native American was charged with assault with intent to commit serious bodily injury under the Major Crimes Act of 1885. That Act authorized the federal prosecution of a Native American charged with committing certain specifically enumerated offenses on a Reservation. Assault with intent to commit serious bodily injury was one of the specifically enumerated offenses. Keeble was charged with assault with intent to commit serious bodily injury after getting into a fight with his brother-in-law. At the close of his trial, Keeble asked the district court to instruct the jury that it could convict him of simple assault. The district court refused because simple assault is not an offense specifically enumerated in the Act. Accordingly, Keeble could not have been tried for simple assault in federal court. The district court was affirmed on direct appeal, and the Supreme Court granted certiorari limited to “the question of the validity of denying the requested instruction.” 412 U.S. at 207, 93 S.Ct. 1993. The Supreme Court held that a lesser included offense charge should have been given, if supported by the evidence. Id. at 214, 93 S.Ct. 1993. The Court explained: Although the lesser included offense doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged, it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. Id. at 208, 93 S.Ct. 1993 (emphasis added; footnote omitted). The Court continued: [I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. Id. at 212," }, { "docid": "6249140", "title": "", "text": "to cause bodily harm. The offense does not require proof of any physical contact. Consequently, a defendant may commit assault with a dangerous weapon without committing assault by striking, beating or wounding. United States v. Duran, 127 F.3d 911, 915 (10th Cir.1997) (citations omitted), cert. denied sub nom., — U.S.-, 118 S.Ct. 1389, 140 L.Ed.2d 648 and cert. denied, — U.S. -, 118 S.Ct. 1389, — L.Ed.2d - (1998); see also Guilbert, 692 F.2d at 1345 (noting that § 113(d) is not a lesser-included offense of § 113(c) because it “requires some kind of actual physical contact with the victim [whereas] conviction under subsection (c) can be based upon an act that merely places the victim in reasonable apprehension of imminent bodily harm”). Therefore, we conclude that neither Estrada nor Valenzuela was entitled to a lesser-included-offense instruction for the crime of assault by striking, beating, or wounding. Estrada and Valenzuela also contend that they were entitled to a lesser-included-offense instruction as to the crime of simple assault pursuant to 18 U.S.C. § 113(a)(5). In order to prove a defendant guilty of simple assault, the government need only show that the defendant assaulted the victim. In a prior case, we have approved of the district court’s giving a lesser-included-offense instruction on the crime of simple assault where the defendant was charged with assault on a federal officer with a dangerous weapon under a statute similar to the one at issue in this case. See United States v. Bey, 667 F.2d 7, 11 (5th Cir. Unit B 1982). Thus, we conclude that the offense of simple assault under § 113(a)(5) does constitute a lesser-included offense of assault with a dangerous weapon. We next turn to consideration of the second prong of the test for whether the defendants were entitled to a lesser-included-offense instruction on the offense of simple assault. A lesser-included-offense instruction is proper only when the evidence adduced at trial would permit a rational jury to find the defendant guilty of the lesser offense and to acquit him of the greater. See Luden, 61 F.3d at 372; Harrison, 55 F.3d at" }, { "docid": "6249146", "title": "", "text": "included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); see also United States v. Chase, 838 F.2d 743, 747 (5th Cir.1988); 2 Charles Alan Wright, Federal Practice & Procedure: Criminal § 498, at 795 (2d ed. 1982) (“There is no doubt but that a defendant is entitled to an instruction about the lesser offense as a matter of right if the evidence would permit the jury to find him guilty of that offense.” (footnotes omitted)). Although Estrada, like Valenzuela, presented an alibi defense, other evidence adduced at trial would have permitted a rational jury to convict him of simple assault and acquit him of assault with a dangerous weapon. During cross-examination, Estrada’s attorney impeached Gilbreath by questioning him about his initial incident report in which he did not mention the use of a broom or mop handle during the assault by Estrada. In addition, he questioned Gilbreath about the government’s inability to produce the broom or mop handle at trial. Finally, Estrada testified that he “didn’t use any weapons,” when asked whether he “intentionally using a dangerous weapon assault[ed] officer Travis Gilbreath.” Estrada also disputed whether a broom or mop handle, under the circumstances of this ease, constituted a dangerous weapon within the meaning of 18 U.S.C. § 113(a)(3). In United States v. Bey, we addressed a similar issue. The defendants in Bey were charged with assault on a federal officer with a dangerous weapon pursuant to 18 U.S.C. § 111 (1976). 667 F.2d at 8. Over the objections of the defendants, the court instructed the jury on the lesser-included offense of simple assault, and the jury convicted the defendants of that offense. Id. at 11. The defendants appealed, arguing that a mop handle was necessarily a dangerous weapon and therefore no lesser-ineluded-offense instruction was warranted. Id. We disagreed, and we affirmed the convictions, reasoning that what constitutes a dangerous weapon depends not on the nature of the object itself" }, { "docid": "18691017", "title": "", "text": "jury on self defense and on the New Mexico crime of aggravated assault. This latter instruction was proper, he argued, because the New Mexico offense is a lesser included offense of the federal crime of assault with a dangerous weapon with intent to do bodily harm, and because the Assimilative Crimes Act, 18 U.S.C. § 13, permits reference to state law crimes in federal court when federal law supplies no similar offense. The court agreed to provide the self defense instruction but refused the proffered New Mexico aggravated assault charge, reasoning that a lesser included offense instruction would not be sensible on the facts of the case; given that it thought no lesser included instruction warranted, the court had no occasion to reach the question whether the New Mexico offense qualified for assimilation in federal court under 18 U.S.C. § 13. After receiving the court’s instructions and conducting its deliberations, the jury returned a guilty verdict. This appeal followed with appellant arguing primarily that the trial court erred when it denied him the requested New Mexico lesser included offense instruction. Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973), stated the controlling law with respect to the obligation of federal courts to give a requested lesser included offense instruction: [I]t is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. The Federal Rules of Criminal Procedure deal with lesser included offenses, see Rule 31(c), and the defendant’s right to such an instruction has been recognized in numerous decision of this Court. See, e.g., Sansone v. United States, 380 U.S. 343, 349 [85 S.Ct. 1004, 1009, 13 L.Ed.2d 882] (1965); Berra v. United States, 351 U.S. 131, 134 [76 S.Ct. 685, 688, 100 L.Ed. 1013] (1956); Stevenson v. United States, 162 U.S. 313 [16 S.Ct. 839, 40 L.Ed. 980] (1896). This obligation, the Court observed, arose because “[w]here one of the elements of the offense" }, { "docid": "4670415", "title": "", "text": "grounds by Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See also Chapman, 528 F.3d at 1219-20. The misdemeanor “simple assault” offense at issue here contains all of the elements of the distinct felony assault offenses under § 111, minus the “physical contact” element of the 8-year felony, and minus the “use[j of a deadly or dangerous weapon ... or ... bodily injury” element of the 20-year enhanced felony. See 18 U.S.C. § 111; Chapman, 528 F.3d at 1219. Therefore, simple assault is a lesser-included offense of both the 8-year and the 20-year felonies described in § 111. B. Rivera Was Not Entitled to an Instruction on Simple Assault. Although we conclude that simple assault is a lesser-included offense of felony assault on an officer under § 111, we do not agree that Rivera was entitled to the lesser-included offense instruction under the circumstances of this case. “[T]o warrant a lesser[-]included offense instruction the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” Hernandez, 476 F.3d at 798 (internal quotation marks omitted) (citing Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). “[A] district court may not weigh the evidence in determining whether to give a lesser included offense instruction.” Hernandez, 476 F.3d at 800 (citing Keeble, 412 U.S. at 208, 93 S.Ct. 1993). However, a district court may properly refuse to give an instruction on a lesser included offense if the jury could not have convicted a defendant of the lesser-included offense without finding the ele-mentís) that would convert the lesser offense to the greater. See Torres-Flores, 502 F.3d at 888. Such is the case here. In this circuit, we adhere to the common law understanding of simple assault as “assault that [does] not involve physical contact.” Chapman, 528 F.3d at 1219 (citing United States v. Chestaro, 197 F.3d 600, 605-06 (2d Cir.1999)). See" }, { "docid": "4670411", "title": "", "text": "F.3d 1159, 1163 (9th Cir.2007)). Second, if the requested instruction pertains to a lesser-included offense, we review the denial of the instruction for abuse of discretion. Id. at 798. DISCUSSION I. The District Court Did Not Abuse its Discretion in Refusing to Instruct the Jury on Simple Assault. Rivera primarily contends that the district court erred in denying his request for an instruction on simple assault, arguing that simple assault is a lesser-included offense of felony assault on a federal officer under 18 U.S.C. § 111. We agree that simple assault is a lesser-included offense of the offenses for which Rivera was charged, but we conclude that the district court did not abuse its discretion in refusing to give the instruction in this case. An instruction on a lesser-included offense is warranted if “1) the elements of the lesser offense are a subset of the elements of the charged offense, and 2) the evidence would permit a jury rationally to find [Rivera] guilty of the lesser offense and acquit [him] of the greater.” Arnt, 474 F.3d at 1163 (internal citations and quotation marks omitted) (quoting Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Thus, a district court does not abuse its discretion in refusing to give a lesser-included offense instruction if the jury could not have convicted the defen dant of the lesser-included offense without finding the element(s) that would convert the lesser offense to the greater. See United States v. Torres-Flores, 502 F.3d 885, 888 (9th Cir.2007). A. Simple Assault is a Lesser-included Offense of 18 U.S.C. § 111. We agree that simple assault is a lesser-included offense of felony assault on a federal officer under 18 U.S.C. § 111. At the time of Rivera’s offense, § 111 provided, in relevant part: (a) ... Whoever ... forcibly assaults, resists, opposes, impedes, intimidates, or interferes with[a federal officer] while engaged in of on account of the performance of official duties ... shall, where the acts in violation of" }, { "docid": "22358406", "title": "", "text": "States v. Knife, supra, 592 F.2d at 482. As used in 18 U.S.C. § 113, the term assault has a broader meaning than at common law. “From the language of § 113, it is manifest that Congress employed the word ‘assault’ to include battery.” United States v. Eades, 615 F.2d 617, 622 n.5 (4th Cir. 1980); see United States v. Chaussee, 536 F.2d 637, 644 (7th Cir. 1976); accord United States v. Anderson, 425 F.2d 330, 333 (7th Cir. 1970). Under 18 U.S.C. § 113(a) where there is uncontested evidence of a battery, an assault with intent to commit rape is in effect a battery with the specific intent to commit rape. In such a case, the crime of simple battery is a necessarily included lesser offense. Because assault by beating is a lesser included offense of assault with intent to commit rape, defendant would be entitled to an instruction if the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense[.] [United States v. Brischetto, 538 F.2d 208, 209 (8th Cir. 1976).] Accord United States v. Klugman, 506 F.2d 1378, 1380 (8th Cir. 1974); United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). See also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). In the instant case the element of “intent to commit rape” differentiates the two offenses. Iron Shell testified that he was drunk and could not remember the assault. The proof of striking and beating of the victim remained undisputed. If the jury could conclude that the Government did not prove an intent to commit rape, the choice of the lesser included offense under the facts was that of assault by striking, beating, or wounding. The simple assault instruction given by the district court did not fit the undenied facts and therefore did not afford the jury a proper choice of a lesser included offense. The failure to instruct on this lesser included" }, { "docid": "8136435", "title": "", "text": "misplaced — the district court admitted this evidence to explain the circumstances surrounding the crime charged, a practice that we have repeatedly approved. See, e.g., United States v. Harris, 956 F.2d 177, 180 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 85, 121 L.Ed.2d 48 (1992). Any undue prejudicial effect of this testimony was eliminated by the district court’s repeated caution that the jury should only consider it for limited purposes. In these circumstances, the prosecutor’s limited reference to this background evidence in her closing argument was not improper or unduly prejudicial, and thdre was no abuse of discretion in overruling defense objections without yet another cautionary instruction to the jury. B. Schrader’s Prior Convictions. At the close of the government’s case, Schrader moved to preclude the prosecutor from using Schrader’s two prior felony convictions to impeach his trial testimony. The district court replied, “At the present time I will deny the motion, but we will talk about it when I see what the offer is going to be.” After hearing other defendants testify, the court advised counsel for Schrader that his prior convictions were probative of “the volatile issue of credibility” and could be used to impeach during cross examination. Schrader chose not to testify. On appeal he argues that this ruling was an abuse of the court’s discretion under Fed.R.Evid. 609(a)(1), was made without a sufficient inquiry and without sufficiently specific findings in support, and effectively prevented Schrader from taking the stand in his own defense. However, these contentions may not be raised on appeal because Schrader did not testify. See Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). C. Lesser Included Offense. Citing Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), defendants appeal the district court’s refusal to instruct the jury on the lesser included offense of simple assault. See 18 U.S.C. § 113. However, to warrant a lesser included offense instruction, “the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit" }, { "docid": "16269812", "title": "", "text": "under 21 U.S.C. § 860(a).”). Accordingly, a jury cannot find a defendant guilty of § 860(a) without first concluding beyond a reasonable doubt that the government has established every element required under § 841(a)(1). Id.; see also United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir.2004) (“In fact one of the statutory elements of § 860 requires that § 841(a)(1) have been violated.”). Federal Rule of Criminal Procedure 31(c) provides, in relevant part, as follows: “Lesser Offense or Attempt. A defendant may be found guilty of ... (1) an offense necessarily included in the offense charged.” In Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the Supreme Court explained that: “one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).” The government contends that neither Rule 31(c) nor Supreme Court precedent explicitly requires a lesser-included offense charge if the instruction that is given includes the greater offense. However, Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), seems, at first blush, to suggest otherwise. There, a Native American was charged with assault with intent to commit serious bodily injury under the Major Crimes Act of 1885. That Act authorized the federal prosecution of a Native American charged with committing certain specifically enumerated offenses on a Reservation. Assault with intent to commit serious bodily injury was one of the specifically enumerated offenses. Keeble was charged with assault with intent to commit serious bodily injury after getting into a fight with his brother-in-law. At the close of his trial, Keeble asked the district court to instruct the jury that it could convict him of simple assault. The district court refused because simple assault is not an offense specifically enumerated in the Act. Accordingly, Keeble could not have been tried for simple assault in federal court. The district court was affirmed on direct" }, { "docid": "2354225", "title": "", "text": "18 U.S.C. §§ 1111 & 1153. At trial, his attorney requested jury instructions for the lesser included offenses of involuntary manslaughter and simple assault. The court refused to instruct the jury on these charges, but did instruct the jury on the lesser included offense of voluntary manslaughter. One Star objected to the court’s proposed jury instructions, and preserved this issue for appeal. One Star was acquitted of second-degree murder, but convicted of voluntary manslaughter. He was sentenced to 71 months imprisonment, and 3 years supervised release. One Star appeals his conviction. II. DISCUSSION One Star raises two issues on appeal. First, he contends that the district court erred when it refused to instruct the jury on the lesser included offense of involuntary manslaughter. Second, he challenges the admission of Noah One Star’s grand jury testimony at trial. Because we find that One Star was entitled to an involuntary manslaughter instruction, we reverse. A. Jury Instruction It is well settled that a defendant is entitled to an instruction on any lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and to acquit him of the greater offense. Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973); United States v. Lin coln, 630 F.2d 1313 (8th Cir.1980). We have formulated a five-point test to deter-, mine whether a defendant is .entitled to a lesser included offense instruction. United States v. Thompson, 492 F.2d 359, 362 (8th Cir.1974). Under Thompson, a defendant is entitled to an instruction on a lesser included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i.e., a charge may be" }, { "docid": "8136436", "title": "", "text": "the court advised counsel for Schrader that his prior convictions were probative of “the volatile issue of credibility” and could be used to impeach during cross examination. Schrader chose not to testify. On appeal he argues that this ruling was an abuse of the court’s discretion under Fed.R.Evid. 609(a)(1), was made without a sufficient inquiry and without sufficiently specific findings in support, and effectively prevented Schrader from taking the stand in his own defense. However, these contentions may not be raised on appeal because Schrader did not testify. See Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). C. Lesser Included Offense. Citing Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), defendants appeal the district court’s refusal to instruct the jury on the lesser included offense of simple assault. See 18 U.S.C. § 113. However, to warrant a lesser included offense instruction, “the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 953, 117 L.Ed.2d 121 (1992), quoting Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 1451 n. 8, 103 L.Ed.2d 734 (1989). Unlike the defendant in Keeble, defendants here were not charged with aggravated assault or assault with a dangerous weapon. On the facts of this case, the only difference between a § 111 and a § 113 assault violation is whether the assault was committed on a federal officer for purposes of § 111. After the district court denied their motion to dismiss on the federal officer issue, defendants did not dispute that tribal officers Greenwald and Long were BIA-designated law enforcement officers, employed by OSTPSC under a valid 638 contract and engaged in the performance of their official duties at the time of their encounter with defendants. Therefore, a lesser included offense instruction for simple assault was not warranted “because there was no dispute on the elements" }, { "docid": "22429803", "title": "", "text": "assigns these omissions as reversible error. A. Involuntary manslaughter. Involuntary manslaughter is the unlawful killing of a human being without malice [i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death. 18 U.S.C. § 1112(a). It is a lesser included offense to murder. United States v. Hendrix, 542 F.2d 879 (2d Cir. 1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1609, 51 L.Ed.2d 810 (1977). “In the federal courts, it has long been ‘beyond dispute that the defendant is entitled to a [properly requested] instruction on a lesser included offense if the evidence would permit a jury to rationally find him guilty of the lesser offense and acquit him of the greater.’ ” Beck v. Alabama, - U.S. -, -, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980) (quoting from Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)). Since Lincoln properly preserved the point for plenary review, we must determine whether there was any evidence that would have permitted the jury to find him guilty of involuntary manslaughter but not guilty of either voluntary manslaughter or second degree murder. Only if there was such evidence did the district court err in refusing to instruction on involuntary manslaughter. Cf. United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). It is clear that there was no evidence that Lincoln killed Robertson “in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” Nor, we believe, would the evidence permit the inference that he killed her “in the commission of an unlawful act not amounting to a felony.” There was no evidence that Lincoln caused her death other than by committing an assault that resulted in serious bodily injury. But assault resulting in serious bodily injury is a felony. 18 U.S.C. §§ 113(f) and 1(1). Hence, if Lincoln killed Robertson at all, he did not kill her in the" }, { "docid": "21933355", "title": "", "text": "v. Humphrey, 208 F.3d 1190, 1206 (10th Cir.2000) (setting out four-part test for determining whether a lesser-included-offense instruction should be given). In United States v. Johnson, this court held as follows: The elements differentiating assault with a dangerous weapon from simple assault are the use of a deadly weapon and the intent to commit bodily harm. While [defendant’s] intent was very much in dispute by virtue of his level of intoxication, his use of a deadly weapon is not. [Defendant] admitted he pointed a gun at [the police officer] and fired it. When no dispute exists regarding elements of the greater offense which are not part of the lesser offense, then no lesser offense instruction is appropriate. 967 F.2d 1431, 1436 (10th Cir.1992). In essence, Johnson holds that when the charged count is assault with a dangerous weapon, to be entitled to a simple assault instruction the defendant must contest both elements differentiating simple assault from assault with a dangerous weapon, i.e., intent to commit bodily harm and use of a dangerous weapon. Id. Because, as Bruce admits in his brief on appeal, he disputed only the dangerous weapon element, he was not entitled to a lesser-included-offense instruction on simple assault as to the two counts of assault with a dangerous weapon under this court's precedent. Bruce asserts, however, that Johnson was wrongly decided and should be corrected through this court’s en banc footnote procedure. See United States v. Meyers, 200 F.3d 715, 721 n. 3 (10th Cir.2000). This court is not unsympathetic to Bruce's assertion that Johnson was wrongly decided and a defen dant is entitled to a lesser-offense charge as long as any one of the elements that distinguishes the charged offense and the requested lesser -offense is in dispute. See Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (\"Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” (emphasis added)); United States v. Estrada-Fernandez, 150 F.3d 491," }, { "docid": "15667714", "title": "", "text": "specific acts of sexual intercourse with men other than the defendant; and 4) Whether the trial court erred in failing to grant a new trial based on alleged ineffective assistance of counsel. We have examined the record in this case and determine that the appellant’s contentions of error lack substantial merit. II. Discussion of Issues on Appeal. A. Sufficiency of the evidence. Our examination of the record discloses that the testimony and other evidence in the record adequately support the jury’s verdict of assault with intent to commit rape. We, therefore, reject appellant’s attack on his conviction on grounds of insufficiency of the evidence. Instruction on simple assault. B. During the trial the district court proposed an instruction on simple assault, but did not read that instruction to the jury. Appellant’s trial counsel made no objections to the instructions given. A failure to object to jury instructions usually bars appellate review, see Fed.R.Crim.P. 30, unless the alleged defect amounts to plain error under Fed.R.Crim.P. 52(b). We reject the appellant’s contention that the failure to instruct on simple assault constitutes plain error. In Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973), the Supreme Court stated that “the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” But here the defendant denied committing an assault of any kind against Ramona. This contention, if believed by the jury, would require a not guilty verdict. The prosecution’s evidence, if believed by the jury, established a serious assault. In the absence of evidence supporting a simple assault verdict, the failure of the trial court to instruct on the lesser included simple assault offense does not amount to plain error. See United States v. Klugman, 506 F.2d 1378, 1380-81 (8th Cir. 1978); United States v. Thompson, 490 F.2d 1218, 1221 (8th Cir. 1974); Chubet v. United States, 414 F.2d 1018, 1021-22 (8th Cir. 1969). C. Admissibility of evidence concerning prosecutrix’ prior sexual conduct. Appellant" } ]

[ { "docid": "23133515", "title": "", "text": "tainted evidence, and by insisting that legitimate evidence be from a source “wholly independent of the compelled testimony.” (Emphasis added.) This insistence that information to be used against the witness must be wholly independent is somewhat inconsistent with the Government’s view in this case that testimony may be so used if the immunized testimony was not its “legal cause.” The Kastigar test is stricter than that. For similar reasons, we are cautious of the Government’s reliance on Fourth Amendment cases like United States v. Cole, 463 F.2d 163, 171-74 (2d Cir. 1972), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1973). Determining whether evidence is tainted as the fruit of an unconstitutional search or seizure, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 184, 64 L.Ed. 319, 321 (1920), or whether the taint is attenuated, Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963), presents many of the same problems as deciding whether the evidence used against Kurzer is derived from his prior immunized testimony. However, the two situations are distinguishable, as commentators have emphasized. The reason is that the principal function of the Fourth Amendment exclusionary rule is to deter unlawful police conduct, Tehan v. United States ex rel. Shott, 382 U.S. 406, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453, 458 (1966), and it can be argued that it serves little deterrent purpose to exclude evidence which is only indirectly and by an attenuated chain of causation the product of improper police conduct. The Fifth Amendment, in contrast, is by its terms an exclusionary rule, and as implemented in the immunity statute it is a very broad one, prohibiting the use not only of evidence, but of “information”, “directly or indirectly derived” from the immunized testimony. The statute requires not merely that evidence be excluded when such exclusion would deter wrongful police or prosecution conduct, but that the witness be left “in substantially the same position as if [he] had claimed the Fifth Amendment privilege.” Kastigar v. United States, supra, 406" } ]

[ { "docid": "21907027", "title": "", "text": "the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra. 378 U.S. 376-77, 84 S.Ct. 1780. Thus the heavy burden cast upon the Government to prove independent sources of the evidence it intends to introduce when it prosecutes a witness who has testified under use immunity is not satisfied by the prosecution’s assertion that immunized testimony was not used. Such disclaimer provides an inadequate basis for the denial of a motion to dismiss an indictment. United States v. Nemes, 555 F.2d 51, 55 (2d Cir. 1977). In our view the affidavit presented to Judge Burke provides no stronger footing. We hold that the defendant is entitled to a fair hearing at which the Government must make an affirmative showing that evidence which the Government intended to use at trial on the original indictment was derived “from legitimate independent sources” apart from immunized leads. The reason for the requirement can be found in this court’s opinion in United States v. Kurzer, 534 F.2d 511, 516 (2d Cir. 1976) (Feinberg, J.). The Fifth Amendment, in contrast [to the Fourth], is by its terms an exclusionary rule, and as implemented in the immunity statute it is a very broad one, prohibiting the use not only of evidence, but of “information”, “directly or indirectly derived” from the immunized testimony. The statute requires not merely that evidence be excluded when such exclusion would deter wrongful police or prosecution conduct, but that the witness be left “in substantially the same position as if [he] had claimed the Fifth Amendment privilege.” (Citing Kastigar v. United States ). Tantalo’s motion to dismiss the first indictment on the strength of his testimony under a grant of immunity called upon the trial court to conduct the hearing which the appellant rightfully requested. It was within the district court’s discretion to determine whether the taint hearing should be held before trial as in Kurzer; during the course of trial as the evidence was presented; after verdict by way of a post-trial motion; or as suggested in United States v. DeDiego, 511 F.2d" }, { "docid": "22750064", "title": "", "text": "standing to challenge the introduction in their criminal trials of unlawfully obtained evidence cannot prevent every conceivable use of such evidence. Evidence obtained in violation of the Fourth Amendment and inadmissible in the prosecution’s case in chief may be used to impeach a defendant’s direct testimony. Walder v. United States, 347 U. S. 62 (1954). See also Oregon v. Hass, 420 U. S. 714 (1975); Harris v. New York, 401 U. S. 222 (1971). A similar assessment of the “incremental furthering” of the ends of the exclusionary rule led us to conclude in United States v. Havens, 446 U. S. 620, 627 (1980), that evidence inadmissible in the prosecution’s case in chief or otherwise as substantive evidence of guilt may be used to impeach statements made by a defendant in response to “proper cross-examination reasonably suggested by the defendant’s direct examination.” Id., at 627-628. When considering the use of evidence obtained in violation of the Fourth Amendment in the prosecution’s case in chief, moreover, we have declined to adopt a per se or “but for” rule that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590 (1975); Wong Sun v. United States, supra, at 487-488. We also have held that a witness’ testimony may be admitted even when his identity was discovered in an unconstitutional search. United States v. Ceccolini, 435 U. S. 268 (1978). The perception underlying these decisions — that the connection between police misconduct and evidence of crime may be sufficiently attenuated to permit the use of that evidence at trial — is a product of considerations relating to the exclusionary rule and the constitutional principles it is designed to protect. Dunaway v. New York, 442 U. S. 200, 217-218 (1979); United States v. Ceccolini, supra, at 279. In short, the “dissipation of the taint” concept that the Court has applied in deciding whether exclusion is appropriate in a particular case “attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that" }, { "docid": "21797477", "title": "", "text": "404(b), it would appear initially that the cross-examination of Trimper about his private urinalysis might be permitted “in the discretion of the military judge,” even though it concerned uncharged misconduct on his part, but that introduction of extrinsic evidence to contradict his denials was improper. However, more thorough analysis leads to a different conclusion. The starting point for this analysis is Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), where the Supreme Court held that, when a defendant testified on direct examination that he had never had any narcotics in his possession, the Government was free to introduce evidence of prior possession of narcotics, even though this evidence would otherwise have been inadmissible because it was obtained by an unreasonable search and seizure. As the Court pointed out: It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. 347 U.S. at 65, 74 S.Ct. at 356, 98 L.Ed. at 507. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court used the same rationale in holding that, although an unwarned statement obtained in violation of the rules prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), could not be received as part of the prosecution’s case-in-chief, it could be introduced in rebuttal to impeach the defendant’s testimony on direct examination. Then in United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), the Supreme Court slightly extended the principle of Walder in ruling that evidence that had been illegally seized and otherwise was inadmissible because of the exclusionary rule could be used to impeach “a defendant’s statements made in response to” government “cross-examination reasonably suggested by” his direct testimony. Id. at 627, 100 S.Ct. at 1917, 64 L.Ed.2d at 567." }, { "docid": "21907028", "title": "", "text": "1976) (Feinberg, J.). The Fifth Amendment, in contrast [to the Fourth], is by its terms an exclusionary rule, and as implemented in the immunity statute it is a very broad one, prohibiting the use not only of evidence, but of “information”, “directly or indirectly derived” from the immunized testimony. The statute requires not merely that evidence be excluded when such exclusion would deter wrongful police or prosecution conduct, but that the witness be left “in substantially the same position as if [he] had claimed the Fifth Amendment privilege.” (Citing Kastigar v. United States ). Tantalo’s motion to dismiss the first indictment on the strength of his testimony under a grant of immunity called upon the trial court to conduct the hearing which the appellant rightfully requested. It was within the district court’s discretion to determine whether the taint hearing should be held before trial as in Kurzer; during the course of trial as the evidence was presented; after verdict by way of a post-trial motion; or as suggested in United States v. DeDiego, 511 F.2d 818, 824 (D.C. Cir.1975), a combination of these alternatives. See United States v. Frumento, 552 F.2d 534, 542 n.14 (3rd Cir. 1977) (citing DeDiego, supra). Of course, all but the first of the options were precluded by the subsequent negotiated plea to the superseding information; the mandate of a hearing persisted and the question was renewed by way of the plea agreement. ' The denial of the appellant’s motion to dismiss without conducting an evidentiary hearing constitutes error. The superseding indictment was invalid as a matter of law. It was returned by the grand jury after hearing the immunized testimony of Tantalo. Such a showing required its dismissal. United States v. Hinton, 543 F.2d 1002, 1010 (2d Cir. 1976). In Hinton this court, in an opinion by Judge Waterman, condemned the practice and prescribed the only remedy to be dismissal. We believe that as a matter of fundamental fairness, a Government practice of using the same grand jury that heard the immunized testimony of a witness to indict him after he testifies, charging him with" }, { "docid": "17681763", "title": "", "text": "evidence, the substance of the evidence was made known to the Court by offer or was apparent from the context within which questions were asked. Evidence that is excluded must be included in the record through an offer of proof so that the reviewing court may have a clear basis from which to determine whether an error has been made. When a defendant has not testified, we are similarly without sufficient information to determine conclusively whether evidence of prior convictions could properly have been used to impeach. Without the defendant’s testimony, any evaluation on our part of the probafive value or prejudicial effect of his prior conviction is more likely to be “problematical and purely speculative.” United States v. Murray, 492 F.2d 178, 197 (9th Cir.1973), cert. denied, 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166 (1974). Our decision not to review rulings in limine that impeaching evidence is admissible is not inconsistent with the Supreme Court’s decision in New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979). In Portash, the Supreme Court held that impeachment by prior statements made to a grand jury under a grant of immunity would violate the defendant’s Fifth Amendment rights. The New Jersey trial court had ruled in limine that the defendant could be so impeached. The Supreme Court found that the merits of the constitutional question were properly before it because the New Jersey appellate court had considered the merits properly preserved for appeal, and federal law did not prohibit New Jersey from following such a procedure. Nothing in the majority opinion indicates whether the question would have been reviewable had the case arisen in federal court. Portash, 440 U.S. at 462-63 n. 2, 99 S.Ct. at 1298-1299 n. 2 (Powell, J., concurring). Justice Powell, in a concurrence joined by Justice Rehnquist, stated: The preferred method for raising claims such as Portash’s would be for the defendant to take the stand and appeal a subsequent conviction, if — following a claim of immunity — the prosecutor were allowed to use immunized testimony for impeachment. Only in this" }, { "docid": "20064", "title": "", "text": "the seizure of evidence in violation of the Fourth Amendment does not always preclude use of the evidence at a civil trial. Indeed, whether the exclusionary rule may ever bar the introduction of evidence in a civil trial is uncertain. “In the complex and turbulent history of the rule, the [Supreme] Court never has applied it to exclude evidence from a civil proceeding, state or federal.” United States v. Janis, 428 U.S. 433, 447, 96 S.Ct. 3021, 3028-3029, 49 L.Ed.2d 1046 (1976) (footnote omitted). In deciding whether the exclusionary rule applies in a proceeding, the Supreme Court has emphasized the deterrent purpose of the rule. But even though suppression of unconstitutionally seized evidence would serve to deter similar action in the future, suppression of the evidence in every trial for every purpose is not required. For the rule to be applied, the deterrent benefit of exclusion must outweigh the detriment to the public interest in providing factfinders with all relevant testimony. E. g., Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). In many cases the deterrent purpose is served by merely precluding the government’s use in its case-in-chief of any fruits of an illegal search at a criminal trial. Thus, the government is not precluded from using illegally seized evidence on cross-examination to impeach a defendant, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); nor is the government precluded from asking grand jury witnesses questions based on evidence obtained from an unlawful search and seizure, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Similarly, the federal government is allowed to use, in a civil tax proceeding, evidence illegally seized by state criminal law enforcement officers, United States v. Janis, supra, 428 U.S. 433 (1976). Finally, in a situation not yet presented to the Supreme Court, at least one circuit has ruled that an insurer in a suit for payment of fire insurance proceeds is not precluded from using evidence of arson found by state and local officials during an illegal" }, { "docid": "7934591", "title": "", "text": "impeachment and therefore permissible, apparently on the theory that the statement was not a confession of guilty, but merely a statement of action that was inconsistent with the probable behavior of a man who knew he had killed in self-defense and was therefore innocent. Although we find no authority directly in point, the Supreme Court ruled on somewhat analogous problems under the Fourth Amendment in Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, and in Walder v. United States, 1954, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. In Walder, an indictment against defendant for possession of narcotics had been dismissed because the evidence had been obtained by an unlawful search and seizure. In a subsequent trial for other illegal transactions in narcotics, when defendant testified on direct examination that he had, never possessed any narcotics, evidence obtained by the original unconstitutional search was introduced solely for the purpose of impeaching his credibility. Although the Court affirmed the conviction, this decision has been interpreted by one writer to mean that “although illegally seized evidence may be used to impeach the defendant’s testimony relating to his ‘good character’, it may not be used to impeach testimony that directly relates to the offense charged.” 79 Harv.L.Rev. 935, 1030 (1966). This conclusion is consistent with the purpose of the exclusionary rule — to deter police from obtaining involuntary confessions from accused persons in order to convict them. The WalcLer opinion drew the distinction between the use of tainted evidence to merely impeach credibility and the Agnello situation where the prosecution attempted to “smuggle” in tainted evidence on cross-examination as part of rebuttal, which the Court held to be unconstitutional. In the instant case, even assuming arguendo the statement’s admissibility for impeachment purposes, it is clear that the colloquy between the District Attorney and appellant directly related to the offense charged and was not being used to impeach appellant’s testimony relating to his good character. Had the jury passed on the voluntariness of appellant’s statement, we would be able to reverse the case and require that the" }, { "docid": "3293524", "title": "", "text": "of the Fourth Amendment, is less than clear. The analogy to Krauss and Griffin may fail for this reason alone. In any event, it is evident that the potential for intrusive conduct by police under the circumstances of the instant case is vastly less than sanctioned by Krauss and rejected by Griffin. See United States v. Bacall, 443 F.2d 1050, 1057 (9th Cir. 1971). Nor do we believe that this procedure furnished a significant incentive for the initial unlawful search by state authorities. “Moreover, collateral policy considerations militate against application of the exclusionary rule in this context. Before utilizing evidence seized by the state, federal authorities under such a rule would be obligated to conduct an independent inquiry and evaluation into the lawfulness of a state seizure. Where doubt as to legality persisted, federal authorities would either have to suspend their investigation until the completion of suppression proceedings, or seize or subpoena the evidence while it was still the subject of proceedings before the state courts. We think that the effects of the rule urged by defendants would be unduly burdensome in either case, while only marginally protective of rights secured by the Fourth Amendment.” “3 See e. g., United States v. Calandra, 414 U.S. 338 [94 S.Ct. 613, 38 L.Ed.2d 561] (1974); Harris v. New York, 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1] (1971); Walder v. United States, 347 U.S. 62 [74 S.Ct. 354, 98 L.Ed. 503] (1954). The requirement of ‘standing,’ Alderman v. United States, 394 U.S. 165 [89 S.Ct. 961, 22 L.Ed.2d 176] (1969), and the doctrine of harmless error, Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967) also derive in part from these considerations.” Nor does that rationale run afoul of El-kins where the “silver platter” doctrine received its death knell. Elkins held that “evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” Id. at 223, 80" }, { "docid": "19093756", "title": "", "text": "The only question we answer today is whether the State must bear the additional consequence of inability to counter Ventris’s contradictory testimony by placing the informant on the stand. A Whether otherwise excluded evidence can be admitted for purposes of impeachment depends upon the nature of the constitutional guarantee that is violated. Sometimes that explicitly mandates exclusion from trial, and sometimes it does not. The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450, 458-459 (1979). The Fourth Amendment, on the other hand, guarantees that no person shall be subjected to unreasonable searches or seizures, and says nothing about excluding their fruits from evidence; exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee. Inadmissibility has not been automatic, therefore, but we have instead applied an exclusionary-rule balancing test. See Walder v. United States, 347 U. S. 62, 65 (1954). The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See Harris v. New York, 401 U. S. 222, 225-226 (1971); Harvey, supra, at 348-350. Respondent argues that the Sixth Amendment’s right to counsel is a “right an accused is to enjoy a[t] trial” Brief for Respondent 11. The core of the right to counsel is indeed a trial right, ensuring that the prosecution’s case is subjected to “the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U. S. 648, 656 (1984). See also Powell v. Alabama, 287 U. S. 45, 57-58 (1932). But our opinions under the Sixth Amendment, as under the Fifth, have held that the right covers pretrial interrogations to ensure that police manipulation does not render counsel entirely impotent — depriving the defendant of “‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, supra, at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959)" }, { "docid": "16205703", "title": "", "text": "the defendant complains. B. The Proffer Rowley contends that impeaching him with information provided under limited use immunity during the proffer violated his Fifth Amendment privilege against compelled self-incriminating evidence. The government promised that any information Rowley provided would not be used against him, except for perjury or false statement prosecutions or for impeachment purposes. A.App. I, p. 15. Although Rowley’s statements were given in the hope of leniency, they were not given with the promise of leniency, and thus were not involuntary on that score. Rachlin v. United States, 723 F.2d 1373, 1377-78 (8th Cir.1983). Their use for impeachment therefore comports with the Supreme Court's rule that voluntary statements or illegally seized evidence, even if otherwise inadmissible, may be used to impeach a testifying defendant. See Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); James v. Illinois, 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990); United States v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916-17, 64 L.Ed.2d 559 (1980); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Inducing a statement by the promise of immunity does not in itself violate the Fifth Amendment’s prohibition. In Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972), the Supreme Court held a defendant’s compelled testimony did not violate the Fifth Amendment provided the testimony was immunized from use to the extent the Fifth Amendment would protect a defendant from the use of involuntary statements. In New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979), the Court elaborated that com pelled immunized statements, unlike “statements taken in violation of Miranda, may not be put to any testimonial use whatever against” the defendant in any criminal proceeding. However, in United States v. Apfelbaum, 445 U.S. 115, 126-27, 100 S.Ct. 948, 955, 63 L.Ed.2d 250 (1980), the Court affirmed the use of compelled immunized testimony in independent false statements prosecutions. It held that such use does no violence to the defendant’s Fifth Amendment rights," }, { "docid": "11776168", "title": "", "text": "case. The Miranda exclusionary rule “serves the Fifth Amendment and sweeps more broadly than Fifth Amendment itself.” Elstad, 470 U.S. at —, 105 S.Ct. at 1292. The Supreme Court concluded that claims based upon Miranda violations are not always Fifth Amendment violations. Therefore, they do not automatically establish the inadmissibility of the evidence obtained. Since Elstad makes clear that failure to give or carry out the obligation of Miranda warnings in and of itself is not a constitutional infringement, the test by which to evaluate whether a defendant’s underlying Fifth Amendment right against compelled testimony has been violated is still the “ ‘due process voluntariness test.’ ” Elstad, 470 U.S. at —, 105 S.Ct. at 1293, quoting Schulhofer, Confessions and the Court, 79 Mich.L.R. 865, 877 (1981). In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), for example, the Supreme Court held that a confession obtained in violation of Miranda could nonetheless be used for “impeachment” purposes on cross-examination so long as it actually had been voluntarily made. Id. at 225 & n. 2, 91 S.Ct. at 645 & n. 2. This due process voluntariness inquiry applies to the case before us since the issue is the use of derivative evidence obtained through the exploitation of statements obtained in violation of Miranda. In Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the Supreme Court held that the testimony of a prosecution witness whose identity was discovered as a result of a statement obtained from the defendant in violation of Miranda would not be suppressed. The Supreme Court noted that the statement had been voluntarily given and that Miranda did not protect against such a voluntary naming of a potential witness against an accused. The Supreme Court in Tucker reasoned that neither the Fifth Amendment interest in assuring trustworthy evidence nor the general policy of deterring improper police conduct would be furthered by suppressing the testimony of a witness so identified. The Court thus rejected a “fruits” doctrine for the Miranda violation under the facts of that case. The policies" }, { "docid": "22651272", "title": "", "text": "not extended to forbid the use in federal civil proceedings of evidence illegally seized by state officials, since the likelihood of deterring unlawful police conduct was not sufficient to outweigh the social costs imposed by the exclusion. Third, even at a criminal trial, the same analysis has led us to conclude that the costs of excluding probative evidence outweighed the deterrence benefits in several circumstances. We have refused to prohibit the use of illegally seized evidence for the purpose of impeaching a defendant who testifies in his own behalf. United States v. Havens, 446 U. S. 620 (1980); Walder v. United States, 347 U. S. 62 (1954). We have also declined to adopt a “per se or ‘but for’ rule” that would make inadmissible any evidence which comes to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590, 603 (1975). And we have held that testimony of a live witness may be admitted, notwithstanding that the testimony was derived from a con-cededly unconstitutional search. United States v. Ceccolini, 435 U. S. 268 (1978). Nor is exclusion required when law enforcement agents act in good-faith reliance upon a statute or ordinance that is subsequently held to be unconstitutional. United States v. Peltier, 422 U. S. 531 (1975); Michigan v. DeFillippo, 443 U. S. 31 (1979). Cf. United States v. Caceres, 440 U. S. 741, 754-757 (1979) (exclusion not required of evidence tainted by violation of an executive department’s rules concerning electronic eavesdropping). A similar balancing approach is employed in our decisions limiting the scope of the exclusionary remedy for Fifth Amendment violations, Oregon v. Hass, 420 U. S. 714 (1975); Harris v. New York, 401 U. S. 222 (1971); Michigan v. Tucker, 417 U. S. 433 (1974), and our cases considering whether Fourth Amendment decisions should be applied retroactively, United States v. Peltier, supra, at 538-539; Williams v. United States, 401 U. S. 646, 654-655 (1971) (plurality opinion); Desist v. United States, 394 U. S. 244, 249-250 (1969); Linkletter v. Walker, 381 U. S. 618, 636-639 (1965). But see United States" }, { "docid": "8619675", "title": "", "text": "substantive evidence of guilt. A confession, on the other hand, is the most damning evidence against a defendant and therefore deserving, perhaps, of greater care before it is admitted. 2. Exclusion of involuntary confessions is a principle rooted in the common law. Although there have been many different rules, there has never been significant support for the use of confessions secured by outright coercion. There is no such clear legal tradition for the suppression of involuntary impeaching statements. Indeed, a few jurisdictions have permitted even involuntary confessions to be used for impeachment. See III J. Wigmore, Evidence § 821 n. 9 (Chadbourn rev. 1970). 3. It is clear that the exclusionary rule neither demands nor permits an absolute parallel between affirmative evidence and impeaching statements. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court reaffirmed the distinction, holding that a confession received without Miranda warnings may be used to impeach a defendant who voluntarily elects to testify. 4. Arguably there is greater urgency for a hearing outside the jury’s presence in confession cases. If an accused is not afforded such a hearing at which he can present evidence of coercion, he is forced to choose between remaining silent at his trial or taking the stand, thus opening himself to cross examination and impeachment. A witness such as Brown was faced with no such dilemma. 5. Any extension of exclusionary rules and procedures tends to complicate trials, and may result in withholding im portant evidence from the jury. To add, except for very good reason, to the underbrush of legal technicalities at this time seems undesirable. 6. Finally, persons not themselves the victims of illegal government conduct typically lack standing to assert the constitutional rights of others. To the extent that only Brown’s rights may have been violated, LaFrance should not be allowed to invoke vicariously an exclusionary rule. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Pruitt," }, { "docid": "16205704", "title": "", "text": "222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Inducing a statement by the promise of immunity does not in itself violate the Fifth Amendment’s prohibition. In Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972), the Supreme Court held a defendant’s compelled testimony did not violate the Fifth Amendment provided the testimony was immunized from use to the extent the Fifth Amendment would protect a defendant from the use of involuntary statements. In New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979), the Court elaborated that com pelled immunized statements, unlike “statements taken in violation of Miranda, may not be put to any testimonial use whatever against” the defendant in any criminal proceeding. However, in United States v. Apfelbaum, 445 U.S. 115, 126-27, 100 S.Ct. 948, 955, 63 L.Ed.2d 250 (1980), the Court affirmed the use of compelled immunized testimony in independent false statements prosecutions. It held that such use does no violence to the defendant’s Fifth Amendment rights, as the defendant has no right to commit perjury. The Court has never held, however, that the government may use, for any purpose whatsoever, the substance of actually involuntary statements. Thus, only two things could have rendered Rowley’s statements inadmissible for impeachment purposes. Actually involuntary statements may not be used for impeachment purposes, Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978). Also, voluntary statements which are inadmissible on the issue of guilt may be improper for impeachment when their admission for impeachment purposes does not sufficiently promote the court’s truth-seeking function and it is not just a “speculative possibility” that such use would encourage police misconduct. See James, 493 U.S. at 311-13, 110 S.Ct. at 651-52 (defendant’s inadmissible statements may not be used to impeach other defense witnesses). An incomplete explanation of limited use immunity may, however, give rise to the presumption that a statement induced by a promise of such immunity was involuntary. But here, where the defendant was represented and advised by counsel, we cannot so" }, { "docid": "1514602", "title": "", "text": "right to testify in his own behalf. On a motion for summary judgment, the district court ruled (1) that the inculpatory statement was voluntary; (2) that the statement was therefore admissible for impeachment purposes under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); and (3) that the trial court’s ruling on limited admissibility was proper and not misleading. Adkins appeals only the district court’s second ruling, the admissibility for impeachment purposes of his inculpatory statement. Before we reach this issue, however, we must address a threshold argument advanced by the State. A. The State contends that Adkins is not entitled to review of the state court’s in limine ruling because he elected not to testify and therefore no impeachment was attempted. It argues that if the statement was not in evidence Adkins was not injured by it and that it is mere speculation that Adkins would have taken the stand in the absence of an adverse ruling on the admissibility of his inculpatory statement. The arguments advanced are very similar to those made in New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), in which the Supreme Court held that impeachment by prior statements made to a grand jury under a grant of immunity would violate the defendant’s Fifth Amendment right not to be compelled to incriminate himself. The New Jersey trial court had ruled in limine that the defendant could be so impeached, and the defendant did not testify. The Supreme Court found that the merits of Portash’s appeal could be reached because the New Jersey appellate court had considered the merits properly before it, and federal law did not prohibit New Jersey from following this procedure. Id. at 454-56, 99 S.Ct. at 1294-95. Here, too, the Illinois Appellate Court found this question to be properly before it, asking whether “the threat to use the statement for impeachment purposes, resulting] in his failure to testify, deprived him of a fair trial.” People v. Adkins, 105 Ill.App.3d 1201, 64 Ill.Dec. 449, 439 N.E.2d 1114 (1982), at 2. Similarly, although" }, { "docid": "873864", "title": "", "text": "other courts’ responses to the Supreme Court’s teaching. We begin with the basic proposition that illegally obtained evidence may not be used in a criminal trial. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). There are, of course, exceptions. In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the Court allowed the use of illegally seized evidence for impeachment. On direct examination, the defendant had denied any prior contact with the narcotics trade. The Court distinguished Agnello and held that, in opening the door on direct, Walder subjected himself to impeachment by evidence of an illegally seized heroin capsule. The Court emphasized that the defendant had made his statements of his own accord, and pointed out that in Agnello it was the government that had insinuated the impeachment foundation into the cross-examination. 347 U.S. at 66, 74 S.Ct. 354. The distinction between affirmative and defensive use of the exclusionary rule was next considered in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The prosecution in Harris on cross-examination used Miranda -barred statements to contradict the defendant’s direct testimony. The Supreme Court affirmed on the basis of Walder. The deterrent effect of the Miranda rules on police practices would not be significantly affected, the Supreme Court said, by the Walder use of noncomplying statements, and defendants would not be encouraged to resort to perjury affirmatively as a defense. In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the government also used the Miranda -barred statements to impeach a defendant’s affirmative presentation made on direct examination. This court in United States v. Trejo, 501 F.2d 138, 143-46 (9th Cir. 1974), considered the impact of Agnello, Walder, and Harris on the use of illegally seized evidence to impeach a defendant’s statements when offered on cross-examination. Relying on the decision of the California Supreme Court in People v. Taylor, 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d" }, { "docid": "5332517", "title": "", "text": "prosecution used unconstitutionally seized material directly or indirectly to develop the evidence it produced at trial, or whether it obtained its trial evidence from an independent and untainted source. Alderman, supra, 394 U.S. at 183, 89 S.Ct. 961; United States v. Polizzi, 500 F.2d 856, 910 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975). Initially, the defendant who shows that he was the victim of an unconstitutional search must go forward with specific evidence demonstrating taint. Alderman, supra, 394 U.S. at 183, 95 S.Ct. 802; Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The burden then shifts to the government to show that it acquired its evidence from an independent source. Polizzi, supra, 500 F.2d at 910. Defendant Celia contends once an illegal search and seizure has been established, the burden is upon the government to demonstrate that each piece of evidence, and each witness is free of taint. As correctly pointed out in the government’s brief herein, that rule is applicable only to Fifth Amendment situations and not to Fourth Amendment violations. The Second Circuit has recently given a perceptive discussion of this distinction: “Determining whether evidence is tainted as the fruit of an unconstitutional search or seizure, or whether the taint is attenuated, presents many of the same problems as deciding whether the evidence used against Kurzer is derived from his prior immunized testimony. However, the two situations are distinguishable, as commentators have emphasized. The reason is that the principal function of the Fourth Amendment exclusionary rule is to deter unlawful police conduct, and it can be argued that it serves little deterrent purpose to exclude evidence which is only indirectly and by an attenuated chain of causation the product of improper police conduct. The Fifth Amendment, in contrast, is by its terms an exclusionary rule, and as implemented in the immunity statute it is a very broad one, prohibiting the use not only of evidence, but of ‘information,’ directly or indirectly derived from the immunized testimony. The statute requires not merely that evidence" }, { "docid": "1721489", "title": "", "text": "three purposes collateral to the prosecution’s case-in-chief: for impeachment of a defendant’s direct or cross-examination testimony, to locate witnesses identified in the illegally obtained evidence, and in questioning a witness during grand jury proceedings. United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980) (impeachment); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) (impeachment); Harris v. New York, supra note 61 (impeachment); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) (locating a witness); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (as the basis for questioning in a grand jury proceeding when the witness had been granted full transactional immunity). The only one of these situations at all similar to the government’s proposed use of tainted evidence is impeachment of a defendant’s testimony. Such use has been strictly limited to impeachment purposes, however, and the rationale of this exception to the exclusionary rule is that “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris v. New York, supra note 61, 401 U.S. at 226, 91 S.Ct. at 646. This rationale simply will not support the government’s desire to extend the exception to include use of tainted evidence for rebutting the substance of a defendant’s testimony. . United States v. Havens, supra note 117; Oregon v. Hass, supra note 117; Harris v. New York, supra note 61. . In light of the district court’s Amended Statement of Reasons, supra note 8, we read the suppression order as inapplicable should Hinckley testify at trial and in doing so make false statements about suppressed evidence; that evidence could then be admitted for the limited purpose of impeachment. This applies not only to the statements taken in violation of Miranda, see note 117 supra, but also to physical evidence such as the documents seized from Hinckley’s cell. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954)." }, { "docid": "5332518", "title": "", "text": "applicable only to Fifth Amendment situations and not to Fourth Amendment violations. The Second Circuit has recently given a perceptive discussion of this distinction: “Determining whether evidence is tainted as the fruit of an unconstitutional search or seizure, or whether the taint is attenuated, presents many of the same problems as deciding whether the evidence used against Kurzer is derived from his prior immunized testimony. However, the two situations are distinguishable, as commentators have emphasized. The reason is that the principal function of the Fourth Amendment exclusionary rule is to deter unlawful police conduct, and it can be argued that it serves little deterrent purpose to exclude evidence which is only indirectly and by an attenuated chain of causation the product of improper police conduct. The Fifth Amendment, in contrast, is by its terms an exclusionary rule, and as implemented in the immunity statute it is a very broad one, prohibiting the use not only of evidence, but of ‘information,’ directly or indirectly derived from the immunized testimony. The statute requires not merely that evidence be excluded when such exclusion would deter wrongful police or prosecution conduct, but that the witness be left ‘in substantially the same position as if [he] had claimed the Fifth Amendment privilege.’ ” [Citations omitted.] United States v. Kurzer, 534 F.2d 511, 516 (2d Cir. 1976). III. B. 2. What constitutes taint. While both direct and indirect use of illegally seized information will taint any subsequently produced evidence, the defendants here also argue that, if such information causes the government to intensify its investigation or if it gives an impetus or direction toward what is to be focused on by the government, then all evidence thereafter produced must be suppressed. The defendants’ - position is not consistent with the law of this circuit. The Supreme Court in Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), stated that: “ . . We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal" }, { "docid": "12264899", "title": "", "text": "chief but are admissible for impeachment purposes); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (statements by defendant that are inadmissible under Miranda are nevertheless admissible for use in impeachment); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (evidence obtained through illegal search and seizure can be used to impeach defendant who asserts on direct examination that he has never possessed any narcotics). In summary, I conclude that the statute permits the government to use the illegally recorded tape for impeachment, should the defendant take the stand. A different and more difficult problem is presented with respect to what support can be found for construing § 2515 as allowing an exception for use of information from an illegal recording as part of the prosecution’s case in chief, even though the prosecution is for perjury rather than for an offense of which the recorded communication or event was one of the alleged criminal acts. The strongest argument that can be made for support in legislative history derives from the last two sentences of the passage quoted above, that is There is, however, no intention to change the attenuation rule (citations omitted). Nor generally to press the scope of the suppression role [sic] beyond present search and seizure law. See Walder v. United States, 74 S.Ct. 354, 98 L.Ed. 503, 347 U.S. 62 (1954). But, as already noted, the citation of Wald-er, which follows those sentences, concerns use for impeachment, not use in a perjury prosecution. To read this as meaning that the statute commits to courts the authority and responsibility for developing and applying exceptions to this statutory proscription to the same extent as courts develop and apply exceptions to the judicially fashioned exclusionary rule for constitutionally prohibited police behavior seems dubious. Though the issue is debatable, I conclude that reading the statute as conferring such broad discretion on the courts is inappropriate. I recognize that the opinion in United States v. Traficant, 558 F.Supp. 996 (N.D.Ohio 1983), may be read as expressing a view contrary to the conclusion" } ]

[ { "docid": "22655557", "title": "", "text": "Guidelines cases than appellate courts do.” Koon v. United States, 518 U. S. 81, 98 (1996) “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id., at 113. The uniqueness of the individual case, however, does not change the deferential abuse-of-discretion standard of review that applies to all sentencing decisions. As we shall now explain, the opinion of the Court of Appeals in this case does not reflect the requisite deference and does not support the conclusion that the District Court abused its discretion. IV As an initial matter, we note that the District Judge committed no significant procedural error. He correctly calculated the applicable Guidelines range, allowed both parties to present arguments as to what they believed the appropriate sentence should be, considered all of the § 3553(a) factors, and thoroughly documented his reasoning. The Court of Appeals found that the District Judge erred in failing to give proper weight to the seriousness of the offense, as required by § 3553(a)(2)(A), and failing to consider whether a sentence of probation would create unwarranted disparities, as required by § 3553(a)(6). We disagree. Section 3553(a)(2)(A) requires judges to consider “the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” The Court of Appeals concluded that “the district court did not properly weigh the seriousness of Gall’s offense” because it “ignored the serious health risks ecstasy poses.” 446 F. 3d, at 890. Contrary to the Court of Appeals’ conclusion, the District Judge plainly did consider the seriousness of the offense. See, e. g., App. 99 (“The Court, however, is bound to impose a sentence that reflects the seriousness of joining a conspiracy to distribute MDMA or Ecstasy”); id., at 122. It is true that the District Judge did not make specific reference to the (unquestionably significant) health" } ]

[ { "docid": "20779239", "title": "", "text": "we believe it amply met the requirements of Bostic by providing the defense a fair opportunity to raise objections. James’s counsel asked the court, “Did you state that the situation at [the Ohio correctional facility] militates toward a longer sentence?” The court replied, “It indicates to me not necessarily longer, but certainly not concurrent.” The court added that James needed “substantial time to deal with a longstanding drug addiction problem.” Although this would have been an obvious time to do so, James’s counsel did not challenge the court’s allegedly improper reliance on “the uncertainty of the state system,” arguing only that 92 months was “longer than necessary” for James to receive drug treatment. James preserved an objection to the substance of his sentence, but this objection did not permit the district court to correct its purported procedural error. See United States v. Harmon, 607 F.3d 233, 237-38 (6th Cir.2010). This is precisely the situation the Bostic rule is designed to avoid. We therefore review his procedural-unreasonableness claim for plain error. Under plain error review, James must “show (1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’ ” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.2006)). The district court did not commit plain error in referring to the “uncertainty of the state system.” The court did not rely on clearly erroneous facts in speculating that an early release of state prisoners was possible. Moreover, even were this statement erroneous, James’s substantial rights and the fairness of the proceedings were not undermined by the reference, because the district court also based his sentence on the § 3553(a) factors and thoroughly explained its reasoning in doing so. To the extent that James asserts substantive unreasonableness, the district court’s decision that his federal sentence should run consecutive to the state sentence is reviewed for abuse of discretion. See Berry, 565 F.3d at 342. The court “does not abuse its discretion" }, { "docid": "17350576", "title": "", "text": "first time on appeal. As such, if the district court had given Novales an appropriate opportunity to object to his sentence, we would review these arguments under the plain-error standard, the standard most favorable to the prosecution. See United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir.2008) (en banc) (explaining the circumstances under which alleged sentencing errors will be reviewed under the plain-error standard). The record, however, reveals that the district court did not give Novales an appropriate opportunity to object to his sentence because the court failed to comply with our decision in United States v. Bostic, 371 F.3d 865 (6th Cir.2004). Bostic explains that so long as the district court asks counsel “whether they have any objections to the sentence just pronounced that have not previously been raised,” any sentencing claims raised for the first time on appeal will be reviewed under the plain-error standard. Id. at 872. In the present case, the district court inquired whether Novales wished to appeal his sentence and then asked, at the conclusion of the sentencing hearing: “So is there anything else on these?” This question closely resembles other questions that we have found insufficient under Bostic. See United States v. Thomas, 498 F.3d 336, 340 (6th Cir.2007) (holding that “Do you have anything further for the record, [counsel]?” did not satisfy Bostic); United States v. Clark, 469 F.3d 568, 570-71 (6th Cir.2006) (holding that “Anything else, [counsel]?” did not satisfy Bostic). Accordingly, Novales’s sentencing claims merit a higher level of review than under the plain-error standard. We review a sentence in these circumstances for reasonableness “under a deferential abuse-of-discretion standard,” an analysis which consists of two components' — -procedural and substantive. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). First, this court needs to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence" }, { "docid": "23375824", "title": "", "text": "Cir.2010). Marrero claims that the district court did not understand its authority to categorically disagree with the crack-cocaine Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 172 L.Ed.2d 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light of Kimbrough, even though defendant’s counsel at sentencing had “devoted much of her argument [at sentencing] to the idea that a downward variance was warranted ... because of the Guidelines’ disparate treatment of crack and powder cocaine offenses” and had, when asked if she had additional objections, raised a vague objection to the “procedural, substantive aspects” of defendant’s sentence), cert. denied, — U.S. -, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010). See generally United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc); United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). As this Court previously held in Michael, “the district court’s error, if any, in failing affirmatively to recognize its discretion to reject the statutory 100:1 ratio as implicitly incorporated into U.S.S.G. § 4B1.1 was not plain.” 576 F.3d at 328 (citing United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008)). In this case, the district court explicitly recognized that “the guidelines are advisory to the Court.” It also discussed its consideration of the 18 U.S.C. § 3553(a) factors, explaining" }, { "docid": "20135580", "title": "", "text": "receive credit for time served since his arrest on the federal charge on January 10, 2006. This appeal followed. II. This court reviews challenges to the reasonableness of a defendant’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). While there is both a procedural and a substantive component to the reasonableness inquiry, defendant’s claims of error have been framed in terms of procedural unreasonableness. Id. If defense counsel does not object with a reasonable degree of specificity to a purported procedural error, a plain error standard of review applies. United States v. Simmons, 587 F.3d 348, 353-54 (6th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010); United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004). A. USSG § 5G1.3(c) A district court has discretion to order a federal sentence to run either concurrently or consecutively to an undischarged term of imprisonment. See, 18 U.S.C. § 3584(b); United States v. Johnson, 553 F.3d 990, 997 (6th Cir.2009); United States v. Watford, 468 F.3d 891, 915-16 (6th Cir.2006). That determination is based, in part, on the Guidelines and policy statements of the Sentencing Commission. Johnson, 553 F.3d at 997. In particular, the first appeal involved the application of USSG § 5G1.3(c), which provides that “[i]n any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” At resentencing, defendant continued to urge the district court to impose a partially concurrent sentence under § 5G1.3(c), but also argued that the district court could adjust the length of the sentence to take into account the time served for which the BOP might not give him credit. The district court expressed the view that defendant should receive credit for time served from the time of his arrest on the federal warrant on January 10, 2006 — rather than from his release to federal custody in January 2009 —" }, { "docid": "22812326", "title": "", "text": "avoid plain-error review on appeal, a party must raise any objections regarding the district court’s application of the § 3553(a) factors during the sentencing hearing. But nothing in our decision in Bostic suggests that a post-sentencing objection is the only way to preserve a claim for appeal. Nor does Bostic impose upon the defendant the obligation to challenge the “procedural reasonableness” of his sentence before the district court. In fact, because reasonableness is the appellate standard of review, Rita, 551 U.S. at 351, 127 S.Ct. 2456, it would be improper for a defendant to raise such issues before the sentencing court. See United States v. Cruz, 461 F.3d 752, 754 (6th Cir.2006) (“[Reasonableness represents the standard of appellate review, not the standard by which a district court imposes a sentence.”). On any reading, our decision in Bostic also does not speak to whether a general post-sentencing objection is sufficient to preserve a procedural claim where that party already has asserted the substantive grounds for that objection at earlier stages of the sentencing hearing. Our decision in Bostic did not address that issue for the obvious reason that the government had failed to advise the district court of its opposition to the defendant’s request for a downward departure at any point during the sentencing proceedings. As the Bostic court explicitly noted, the government not only failed to file “any papers opposing that motion,” the government’s statements at the sentencing hearing also “did not inform the district court or defense counsel whether or not the government opposed the downward-departure motion.” Id. at 870, 871. The only aspect of our decision in Bostic that is even arguably relevant is the statement in dicta that a party “must ‘object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.’ ” 371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.1980)). We reasoned that “[requiring clear articulation of any objection and the grounds therefor, ‘will aid the district court in correcting any error, tell the appellate court precisely which" }, { "docid": "22812327", "title": "", "text": "in Bostic did not address that issue for the obvious reason that the government had failed to advise the district court of its opposition to the defendant’s request for a downward departure at any point during the sentencing proceedings. As the Bostic court explicitly noted, the government not only failed to file “any papers opposing that motion,” the government’s statements at the sentencing hearing also “did not inform the district court or defense counsel whether or not the government opposed the downward-departure motion.” Id. at 870, 871. The only aspect of our decision in Bostic that is even arguably relevant is the statement in dicta that a party “must ‘object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.’ ” 371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.1980)). We reasoned that “[requiring clear articulation of any objection and the grounds therefor, ‘will aid the district court in correcting any error, tell the appellate court precisely which objections have been preserved and which have been [forfeited], and enable the appellate court to apply the proper standard of review to those preserved.’ ” Id. at 873 (quoting United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.1993)). Because the government had failed to make any objection, however, our decision in Bostic offers absolutely no guidance as to what constitutes a “reasonable degree of specificity.” Nor did we consider in Bostic whether arguments made at earlier stages of the sentencing hearing affect the obligation to state “the grounds” for any objection. In other words, these statements are dicta in the truest sense. Our decision in Vonner is similarly unhelpful because, once again, the defendant in that case failed to assert a post-sentencing objection. Contrary to the majority’s suggestion, our decision in Vonner thus offers little to no insight into how we are to determine whether a general objection is sufficient to preserve a procedural claim for appeal. If anything, our" }, { "docid": "22944827", "title": "", "text": "3553 factors. Specifically, Defendant contends that the district court failed to consider the following factors despite Defendant’s submission of a sentencing brief, arguing that the factors constituted grounds for a lower sentence: (1) Defendant’s personal history; (2) the lack of any need to protect the public; (3) the lack of any need to deter Defendant; and (4) the allegation that Defendant did not commit his crime for personal monetary gain. For the reasons set forth below, we affirm the imposition of a 72 month period of incarceration. 1. Preservation and Standard of Review We review Defendant’s claim for plain error because Defendant failed to object to the district court’s § 3553 analysis at the sentencing hearing, despite the fact that the district court provided Defendant with the opportunity to object. United States v. Bostic, 371 F.3d 865, 873 (6th Cir.2004). “To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Abboud, 438 F.3d at 583. 2. The District Court Did Not Commit Plain Error The job of the district court is to impose ‘“a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section 3553(a).” United States v. Foreman, 436 F.3d 638, 640 (6th Cir.2006)(quoting 18 U.S.C. § 3553). In reaching a sentence that complies with the purposes of § 3553(a), the district court must consider the Sentencing Guidelines range and all relevant § 3553 factors. Id. While a district court need not explicitly reference § 3553 or recite a list of factors, it must provide a reasoned explanation for its choice of sentence and its explanation must be sufficiently thorough to permit meaningful appellate review. Id. Additionally, “[wjhere a defendant raises a particular argument in seeking a lower sentence, the record must both reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting" }, { "docid": "22812318", "title": "", "text": "offenses. The district court never addressed Simmons’ arguments regarding the craek/powder disparity. After pronouncing Simmons’ sentence, the court asked the parties whether they had “any objections to the sentence just pronounced that have not been previously raised?” J.A. 77. Defense counsel responded in the affirmative, stating: “Your Honor I object just for the record for the procedural, substantive aspects.” J.A. 77. II. The first question we face is what standard of review applies to Simmons’ claim that the district court failed to consider and failed to adequately explain its reasons for rejecting his craek/powder disparity argument. For its part, the majority concludes that Simmons has forfeited this claim and thus our decision in Vonner requires that plain-error review applies. I respectfully disagree. A. “Post-Booker, we review a district court’s sentencing determination, ‘under a deferential abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)); see also Rita, 551 U.S. at 347-50, 127 S.Ct. 2456. This standard applies “[rjegardless of whether the sentence imposed is inside or outside the Guidelines range.” United States v. Studabaher, 578 F.3d 423, 430 (6th Cir.2009) (quoting Gall, 128 S.Ct. at 597). To determine whether a defendant’s sentence is “reasonable,” this Court must examine both the procedural and substantive aspects of the sentencing court’s decision. United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006). Whereas a sentence is substantively unreasonable if the length of the sentence is “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a), the district court commits “significant procedural error” by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence' — including an explanation for any deviation from the Guidelines range,” Gall, 128 S.Ct. at 597. Unlike claims relating to the substantive aspects of his or her sentence, a defendant generally must preserve procedural challenges for" }, { "docid": "18832666", "title": "", "text": "that the guidelines required that his federal sentence run concurrently with his state sentences. Since he failed to object to the consecutive sentence at the time, our review is limited to plain error. We agree that under the Olano test already discussed, Bartlett must be re-sentenced. Because we are satisfied that the requisites for plain error review are present, we do not reach Bartlett’s contention — raised for the first time on appeal — that his trial counsel’s failure to object to the consecutive sentence violated the Sixth Amendment. In this case, after the district court determined the guideline range for the conspiracy charge, it then considered whether to make the federal sentence consecutive or concurrent to the state sentences. The court found that although Bartlett had been allowed to plead guilty to second degree murder, the conduct underlying both convictions would have supported convictions for first degree murder. Concluding that under Massachusetts law Bartlett would be eligible for parole in 16 years and would probably not be held past that date, the court concluded the federal sentence should run consecutively rather than concurrently. The governing statute confers broad authority on the district court to determine whether a sentence is consecutive or concurrent. See 18 U.S.C. §§ 3553(a), 3584(a), (b). That discretion, however, is confined by guideline provisions that govern this choice where sentence is imposed on a defendant who is “subject to an undischarged term of imprisonment.” U.S.S.G. § 5G1.3. See United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993). The guideline applicable here provides that — with two exceptions not now relevant — “the sentence for the instant offense shall be imposed to run consecutively to the prior unexpired term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The commentary then provides that to the extent practicable the court should determine the “reasonable incremental punishment” by determining a sentence “that results in a combined sentence that approximates the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all" }, { "docid": "22812319", "title": "", "text": "standard applies “[rjegardless of whether the sentence imposed is inside or outside the Guidelines range.” United States v. Studabaher, 578 F.3d 423, 430 (6th Cir.2009) (quoting Gall, 128 S.Ct. at 597). To determine whether a defendant’s sentence is “reasonable,” this Court must examine both the procedural and substantive aspects of the sentencing court’s decision. United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006). Whereas a sentence is substantively unreasonable if the length of the sentence is “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a), the district court commits “significant procedural error” by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence' — including an explanation for any deviation from the Guidelines range,” Gall, 128 S.Ct. at 597. Unlike claims relating to the substantive aspects of his or her sentence, a defendant generally must preserve procedural challenges for appeal. See Vonner, 516 F.3d at 385-86. Any claim not preserved for appeal is subject to review for plain error. Id.; Fed. R. Crim P. 52(b). This forfeiture rule, however, applies only where the relevant party was given an adequate opportunity to object. Fed.R.Crim.P. 51(b) (“If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.”). In many cases, this Court “wrestled with the difficulty of ‘parsing a [sentencing] transcript to determine whether ... a party had a meaningful opportunity to object’ and of determining whether plain-error review should apply.” Vonner, 516 F.3d at 385 (quoting Bostic, 371 F.3d at 873 n. 6). Therefore, “[i]n an effort to bring some clarity to the matter and to ensure that plain-error review applied only when the parties fairly were given a chance to object to the sentencing procedure,” Vonner, 516 F.3d at 385, we adopted a rule requiring district courts, after announcing the defendant’s sentence, to “ask the parties whether they have" }, { "docid": "8738850", "title": "", "text": "case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a)— that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way — or argues for departure, the judge normally need say no more. Rita, 127 S.Ct. at 2468. In short, “Rita simply requires the sentencing judge to set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” United States v. Murillo-Monzon, 2007 WL 2052247, at *7 (6th Cir. July 18, 2007) (citing Rita, 127 S.Ct. at 2458) (internal quotation marks omitted). In the present case, it is clear that the sentencing court thoroughly considered all of Brogdon’s and the United States’ arguments in imposing a sentence at the lower end of the guideline range. Further, the court properly considered the Guidelines as advisory under Booker. Brogdon also contends that his sentence is unreasonable and greater than necessary to comply with § 3553(a) because the district court failed to consider the firearms as family heirlooms even though Brogdon was not eligible for the exception under U.S.S.G. § 2K2.1(b)(2). However, the United States contends that Brogdon has forfeited this objection under United States v. Bostic, 371 F.3d 865 (6th Cir.2004), because he failed to raise the issue before, during, or when prompted at the conclusion of the sentencing hearing. Under Bostic, “[i]f a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.” United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). Although Brogdon argued extensively concerning the application of Susewitt and his criminal history score in calculating the applicable Guidelines range, he never requested a departure, or challenged the reasonableness of his sentence generally. Accordingly,. because Brogdon never raised the argument concerning the firearms under" }, { "docid": "10087666", "title": "", "text": "imposing the particular sentence chosen, including any rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate from the advisory Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). In this case, Coleman argues that the district court failed to consider the factors set forth in 18 U.S.C. § 3553(a), failed to consider substance-abuse treatment as an alternative to incarceration, and failed to state in open court its reasons for imposing a sentence three months above the applicable Guidelines range. We ordinarily review the procedural reasonableness of a sentence for an abuse of discretion. United States v. Daniels, 641 Fed.Appx. 481, 486 (6th Cir. 2016). But where, as here, the defendant fails to raise any objection to the procedural reasonableness of a sentence after the district court explicitly asks for objections, we may review only for plain error. See United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010); United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). To show plain error, Coleman must establish (1) that an error occurred; (2) that the error was clear or obvious; (3) that it affected his substantial rights; and (4) that it affected the “fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). We have held that “[a] sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, [the defendant] would have received a more favorable sentence.” United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010). Applying this standard, we conclude that none of Coleman’s complaints warrants the vacation of his sentence. A As adverted to above, when determining a defendant’s sentence upon finding a violation of supervised-release conditions, a district court must consider various sentencing factors, including those set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). All told, a district court must assess “the nature and circumstances of the offense and the" }, { "docid": "22579177", "title": "", "text": "sought — of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.”); United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004) (“A party ‘must object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for [the] objection.’ ”) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.1980)). The need for some specificity is not a meaningless ritual; rather, a clear objection can enable a trial court to correct possible error in short order and without the need for an appeal. By any standard, Bennett’s argument for concurrent sentences did not even approach the point on which he now grounds his claim. Indeed, when the district court made what Bennett now contends were erroneous comments about his rehabilitative needs, his counsel stood silent. We therefore find that the defendant failed to preserve the objection asserted here. B. Where a defendant fails to preserve his claim, he bears the burden of establishing (1) that the district court erred; (2) that the error was “plain”; and (3) that the error “affect[ed his] substantial rights,” meaning that it “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even then, this court “retain[s] discretion to deny relief,” and denial is particularly warranted where it would not “result in a miscarriage of justice.” United States v. Robinson, 627 F.3d 941, 954 (4th Cir.2010). Under Olano’s first prong, we must determine whether the district court erred, and in order to make that determination in the revocation context, this court asks whether the sentence is “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006). Under this analysis, “we first determine, using the instructions given in Gall [v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)], whether a sentence is ‘unreasonable.’ ” United States v. Finley, 531 F.3d 288, 294 (4th Cir.2008). Gall, in turn, requires a reviewing court first to" }, { "docid": "20135579", "title": "", "text": "was paroled again and delivered to federal authorities in January 2009, but was not resentenced on the federal conviction until July 2009. At resentencing on July 30, 2009, the district court first declined to recalculate the Guidelines range on the grounds that the issue was outside the scope of the remand, and then explained that it had “obviously misspoke[n]” at the original sentencing by stating that § 5G1.3(c) required the imposition of a consecutive sentence. Defense counsel urged the district court to exercise its discretion and either impose a concurrent or partially concurrent sentence, or, at least, take into account the time served on the state sentence in considering the § 3553(a) factors. The colloquy that followed shifted between the defendant’s argument for a concurrent sentence and a discussion of the credit defendant might receive for time served on his then-completed state sentence. In the end, the district court reimposed a sentence of 108 months, omitted the earlier order of a consecutive sentence, and added a recommendation to the Bureau of Prisons (BOP) that defendant receive credit for time served since his arrest on the federal charge on January 10, 2006. This appeal followed. II. This court reviews challenges to the reasonableness of a defendant’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). While there is both a procedural and a substantive component to the reasonableness inquiry, defendant’s claims of error have been framed in terms of procedural unreasonableness. Id. If defense counsel does not object with a reasonable degree of specificity to a purported procedural error, a plain error standard of review applies. United States v. Simmons, 587 F.3d 348, 353-54 (6th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010); United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004). A. USSG § 5G1.3(c) A district court has discretion to order a federal sentence to run either concurrently or consecutively to an undischarged term of imprisonment. See, 18 U.S.C. § 3584(b); United States v. Johnson, 553 F.3d 990, 997 (6th Cir.2009); United States" }, { "docid": "23272337", "title": "", "text": "v. United States, — U.S. ——■, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). “Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.” Id. at 597. This review entails a two-step process. The appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. “Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. In United States v. Vonner, 516 F.3d 382 (6th Cir.2008) (en banc), this court sitting en banc bifurcated the procedural burden carried by defendants who seek to raise claims on appeal that their sentences were procedurally or substantively unreasonable. The majority held that while defendants do not need to raise the claim of substantive unreasonableness before the district court to preserve the claim for appeal, defendants must do so with respect to claims of procedural unreasonableness. Specifically, “if a sentencing judge asks th[e] question [whether there are any objections not previously raised, in compliance with the procedural rule set forth in United States v. Bostic, 371 F.3d 865 (2004) ] and if the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court.” Vonner, 516 F.3d at 385. Plain-error review does not apply in this case, however, because the district court did not ask the Bostic question. See United States v. Thomas, 498 F.3d 336, 340 (6th Cir.2007). The district court cursorily referenced Booker and the government’s position and then proceeded to sentence Penson without ever giving Penson’s counsel an opportunity to make further arguments or objections. Therefore, we proceed to analyze the procedural reasonableness of Penson’s sentence under an abuse-of-discretion standard. In United States v. Bolds, 511 F.3d 568" }, { "docid": "20779238", "title": "", "text": "if it is based on impermissible factors, or if the judge fails to consider the § 3553(a) factors or gives undue weight to any factor. United States v. Martinez, 588 F.3d 301, 328 (6th Cir.2009). James alleges both that the district court relied on “erroneous facts” — a procedural violation — and that it considered an “improper factor” — which can be construed as a claim of substantive unreasonableness. To the extent that he alleges procedural error, we review James’s claim for plain error because he failed to present it to the district court when invited to do so. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). After pronouncing sentence but prior to adjourning the proceedings, the court must inquire of the parties whether they have any objections. Ibid. Here, the district court pronounced the sentence and asked for “Comments, suggestion, objections?” This is not the “full Bostic question as typically phrased.” United States v. Jackson, 2011 WL 1597665, at *3 n. 1 (6th Cir. April 28, 2011). Given the context, however, we believe it amply met the requirements of Bostic by providing the defense a fair opportunity to raise objections. James’s counsel asked the court, “Did you state that the situation at [the Ohio correctional facility] militates toward a longer sentence?” The court replied, “It indicates to me not necessarily longer, but certainly not concurrent.” The court added that James needed “substantial time to deal with a longstanding drug addiction problem.” Although this would have been an obvious time to do so, James’s counsel did not challenge the court’s allegedly improper reliance on “the uncertainty of the state system,” arguing only that 92 months was “longer than necessary” for James to receive drug treatment. James preserved an objection to the substance of his sentence, but this objection did not permit the district court to correct its purported procedural error. See United States v. Harmon, 607 F.3d 233, 237-38 (6th Cir.2010). This is precisely the situation the Bostic rule is designed to avoid. We therefore review his procedural-unreasonableness claim for plain error. Under plain error review, James" }, { "docid": "22579176", "title": "", "text": "the appropriate standard of review for assessing whether the district court committed reversible error. Our review of the record makes plain that Bennett did not object at the revocation hearing on the grounds asserted here (or on any other grounds, for that matter). This issue, therefore, was not properly preserved. Bennett contends that he adequately objected by arguing toward the start of the hearing — long before the district court mentioned his rehabilitative needs — that the sentences on the two revocations should run concurrently. But this argument was far too general to alert the district court to the specific reason that Bennett now asserts justifies concurrent sentences — namely, that § 3582(a) forbids the use of rehabilitative needs as a determinant for the imposition or length of imprisonment. The entire purpose of an objection is to alert the district court to the actual basis of asserted error. See Fed. R.Crim. Pro. 51(b) (“A party may preserve a claim of error by informing the court — -when the court ruling or order is made or sought — of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.”); United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004) (“A party ‘must object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for [the] objection.’ ”) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.1980)). The need for some specificity is not a meaningless ritual; rather, a clear objection can enable a trial court to correct possible error in short order and without the need for an appeal. By any standard, Bennett’s argument for concurrent sentences did not even approach the point on which he now grounds his claim. Indeed, when the district court made what Bennett now contends were erroneous comments about his rehabilitative needs, his counsel stood silent. We therefore find that the defendant failed to preserve the objection asserted here. B. Where a defendant fails to preserve his claim, he bears the burden of" }, { "docid": "23272338", "title": "", "text": "do not need to raise the claim of substantive unreasonableness before the district court to preserve the claim for appeal, defendants must do so with respect to claims of procedural unreasonableness. Specifically, “if a sentencing judge asks th[e] question [whether there are any objections not previously raised, in compliance with the procedural rule set forth in United States v. Bostic, 371 F.3d 865 (2004) ] and if the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court.” Vonner, 516 F.3d at 385. Plain-error review does not apply in this case, however, because the district court did not ask the Bostic question. See United States v. Thomas, 498 F.3d 336, 340 (6th Cir.2007). The district court cursorily referenced Booker and the government’s position and then proceeded to sentence Penson without ever giving Penson’s counsel an opportunity to make further arguments or objections. Therefore, we proceed to analyze the procedural reasonableness of Penson’s sentence under an abuse-of-discretion standard. In United States v. Bolds, 511 F.3d 568 (6th Cir.2007), we explained the three steps involved in procedural-reasonableness review. “First, we must ensure that the district court ‘correctly calculated] the applicable Guidelines range’ which are ‘the starting point and initial benchmark’ of its sentencing analysis.” Id. at 579 (quoting Gall, 128 S.Ct. at 596) (footnote omitted). “[0]ur second task is to ensure that the district judge gave ‘both parties the opportunity to argue for whatever sentence they deem appropriate’ and then ‘considered all of the § 3553(a) factors to determine whether they support the sentence requested by [each] party.’ ” Id. at 579-80 (quoting Gall, 128 S.Ct. at 596). “[0]ur final task is to ensure that the district court has ‘adequately explained] the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.’ ” Id. at 580 (quoting Gall, 128 S.Ct. at 597). While the district court correctly calculated the Guidelines range, it neither gave the defense counsel an opportunity to advocate for a particular sentence, nor considered the § 3553(a) factors, nor explained the basis for" }, { "docid": "23111634", "title": "", "text": "the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range. Gall, 128 S.Ct. at 597. If, and only if, the district court’s sentencing decision is procedurally sound, we will “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard!,] tak[ing] into account the totality of the circumstances....” Id. District courts are charged with imposing “a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006). This court also applies a rebuttable presumption of reasonableness for sentences within the Guidelines range. United States v. Heriot, 496 F.3d 601, 608 (6th Cir.2007); see also Gall, 128 S.Ct. at 597 (“If the sentence is within the Guidelines range, the appellate court may ... apply a presumption of reasonableness.”) (citing Rita v. United States, — U.S.-, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007)). Furthermore, “[i]f a party does not clearly articulate any objection and the grounds upon which the objection is based, when given [a] final opportunity [to] speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.” United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). To establish that a plain error has occurred, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected [the] defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). B. Career-offender status The Guidelines define a person as a career offender where (1) he or she is at least 18 years old at the time the instant offense was committed, (2) the offense is a felony that" }, { "docid": "12015285", "title": "", "text": "States v. Booker, we review sentences for reasonableness. 543 U.S. 220, 260-262, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This review has both procedural and substantive components. See Gall v. United States — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.G. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence....” Id. at 597. Second, we consider the substantive reasonableness of the sentence under the abuse of discretion standard, which applies regardless of whether a sentence is inside or outside the Guidelines range. Id. Duane challenges his sentence on both procedural and substantive grounds. A. First, Duane argues that his sentence is procedurally unreasonable because the district court’s explanation did not demonstrate that it adequately considered the § 3553(a) factors or his arguments for a lesser sentence. 1. Because Duane did not seek further explanation for the sentence imposed when given an opportunity to do so, we review this claim for plain error. In United States v. Bostic, this court explained that: after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, [the district court must] ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised.... If a party does not clearly articulate any objection ... then that party will ... face plain error review on appeal. 371 F.3d 865, 872-73 (6th Cir.2004). “A district court can satisfy the requirements of the Bostic rule only by clearly asking for objections to the sentence that have not been previously raised.” United States v. Clark, 469 F.3d 568, 570 (6th Cir.2006). In this case, by asking if there were “any objections that I haven’t heard to this sentence,” the district court was clearly eliciting objections not previously raised. Because Duane did not object to the district court’s explanation, we review this explanation for plain error. To" } ]

[ { "docid": "14631423", "title": "", "text": "advised the court it had reached a verdict on Alper and Feiner but was deadlocked on Greenberg. It took twenty-five minutes to assemble counsel. The court then advised counsel that it would take the verdicts on Alper and Feiner and would confer with counsel for Greenberg thereafter about further instructions. Greenberg’s counsel suggested that the jury be discharged. The court, however, took the verdicts as to Alper and Feiner, and advised the jury that it was considering giving further instructions as to Greenberg. In a colloquy between the court, Greenberg’s attorney and the Assistant United States Attorney, Greenberg’s attorney continued to assert that the jury should be discharged. The court, however, advised the jury that it would continue deliberating and that it would be instructed further after lunch. Greenberg’s attorney continued to object. After hearing argument the court then recessed to draft an appropriate supplemental instruction. It then delivered to the jury a supplemental charge in the form suggested in footnote 32 of the opinion by this court in United States v. Fioravanti, 412 F.2d 407, 420 (3rd Cir. 1969). To that language it added the sentence: “Each of you has a duty conscientiously to adhere to his own honest opinion, and there is nothing improper, questionable or contrary to good conscience for a jury finally to remain deadlocked.” In approximately an hour the jury returned a verdict finding Greenberg guilty on count I and not guilty on-the other twenty counts. Greenberg contends that the direction to deliberate further was unduly coercive. Considering that at the time it reported itself deadlocked the jury had been deliberating only seven and a half hours, less time out for meals, and that the trial had lasted nine weeks, we reject this contention. It is true that with the benefit of hindsight the visceral anticipation of Greenberg’s attorney as to the outcome of further deliberations was correct. But on the morning of April 29, 1970, for all the court knew a rea sonable amount of further deliberation might have produced for Greenberg a verdict of not guilty, and have thus spared both him and" } ]

[ { "docid": "15963627", "title": "", "text": "prejudicial effect. We reject these contentions. The evidence was relevant to show knowledge and intent. See, e.g., United States v. Dodd, 444 F.2d 1402, 1403 (8th Cir. 1971), cert. denied, 404 U.S. 1021, 92 S.Ct. 693, 30 L.Ed.2d 670 (1972); United States v. Drumright, 534 F.2d 1383, 1385 (10th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 385, 50 L.Ed.2d 327 (1976); United States v. Cervantes, 466 F.2d 736, 739-40 (7th Cir.), cert. denied, 409 U.S. 886 (1972). Reed has made no showing that the- probative value of the evidence was substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403. Reed next argues that, because the district court refused to allow in evidence the eight altered bills for which chain of custody was not established, the jury should have been instructed to disregard testimony on both the exchange and custody of those eight bills. We disagree. Testimony of an eyewitness that the defendant attempted to exchange the mutilated currency was competent and relevant evidence notwithstanding the fact that the actual mutilated bills were not admitted into evidence. See United States v. Francolino, 367 F.2d 1013, 1016 (2d Cir. 1966), cert. denied, 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110 (1967). Finally, Reed argues that the trial court erred when it gave two supplemental jury instructions. After deliberating approximately two hours, the jury informed the court that after numerous votes it was unable to come to a unanimous decision. The court gave an instruction requesting the jury to continue its deliberations in order to reach an agreement if possible. Reed made no objection. After deliberating another hour or so, the jury notified the court that no progress had been made after extensive reconsideration. The court then gave an Allen -type instruction, 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 18.14 (3d ed. 1977), again with no objection from the defendant. Approximately one hour later, the jury returned a guilty verdict. Reed has made no specific allegation that the supplemental instructions had a coercive effect on the jury other than alleging that" }, { "docid": "23680315", "title": "", "text": "several other hallmarks of an Allen charge, namely that it would be expensive and time-consuming to retry the case, and that no future jury would be better suited to decide the case. In its totality the instruction in this case cannot be said to approximate an Allen charge or to in any other way urge a verdict. In addition, no other indicia of jury coercion are present in the record. The jury deliberated some four hours after the trial court’s supplementary instruction, a time period not suggestive of a coercive or pressure-filled atmosphere. We also dismiss the argument that the court’s additional charge to the jury failed to include an instruction on reasonable doubt. “[I]f the supplemental instruction admonishes as here that the jurors should not ‘acquiesce’ in a verdict or do violence to their consciences, no harm will be found in the trial court’s failure to instruct regarding the burden of proof.” United States v. Bailey, 468 F.2d 652, 663 (5th Cir.1972). Nor do we find error in the trial judge’s decision not to question the juror regarding the “duress” he may have experienced during jury deliberations. To have done so would itself have risked reversible error, since the juror’s note made clear that the pressure allegedly placed upon him resulted from discussions between the jurors and not from extraneous prejudicial information. See Fed.R.Evid. 606(b). The alleged harassment or intimidation of one juror by another would not be competent evidence to impeach the guilty verdict. United States v. Casamayor, 837 F.2d 1509, 1515 (11th Cir.1988), cert. denied sub nom., Barker v. United States, — U.S. -, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989); United States v. Blackburn, 446 F.2d 1089, 1090-91 (5th Cir.1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972). For the foregoing reasons, the judgments of conviction are AFFIRMED. . Sixteen persons were indicted by the grand jury. The cases of the appellants were severed for trial from that of their codefendants. Of the remaining defendants, all were convicted except Angelo Fosco, Terrence O’Sullivan and Anthony Accardo, who were acquitted, and Santo Traffi-cante," }, { "docid": "7512582", "title": "", "text": "in front of another jury. So, go back in front — go back please and continue to deliberate. Thank you very much. (App. at 57a-59a.) Because Jackson objected at trial to the supplemental jury instruction, we will review the Court’s decision to read the supplemental charge for an abuse of discretion. United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir.1995) (citations omitted). Under that standard, Jackson must show that the Court’s action was “arbitrary, fanciful or clearly unreasonable.” Stick v. United States, 730 F.2d 115, 118 (3d Cir. 1984). Moreover, we review the supplemental instruction given not “ ‘in artificial isolation, but ... in the context of the overall charge.’ ” United States v. Brennan, 326 F.3d 176, 192 (3d Cir.2003) (quoting United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975)). A. The collective experience gleaned from similar cases in this Court persuades us that whether a supplemental charge passes muster when informing the jury that a new trial will be necessary should the jurors not reach a verdict depends heavily on the context in which the statement was made. We have repeatedly held that supplemental jury charges should not be used to “blast a hung jury into verdict.” United States v. Burley, 460 F.2d 998, 999 (3d Cir.1972) (quoting United States v. Fiora-vanti, 412 F.2d 407, 419 (3d Cir.1969)). “[I]t is a cardinal principle of the law that a trial judge may not coerce a jury to the extent of demanding that they return a verdict.” Fioravanti, 412 F.2d at 416. We, however, will only find a charge to be unduly coercive where the supplemental charge caused the jury to be “influenced by concerns irrelevant to their task” and “reached its subsequent verdict for reasons other than the evidence presented to it.” United States v. Eastern Medical Billing, Inc., 230 F.3d 600, 613 (3d Cir. 2000) (citing Burley, 460 F.2d at 999). Jackson analogizes the charge given here to those we found to be unduly coercive in Burley and Eastern Medical Billing, Inc. In Burley, we found a charge to be coercive" }, { "docid": "7569975", "title": "", "text": "of testimony given in one day of trial whether or not he believed Hynes knew what he was doing. Beginning deliberation the following day at 10:00 a. m., the jury asked once for additional instruction on the elements of the crime at 11:45 a. m. An hour later the jury reported a deadlock. Judge Weinfeld sent them to the jury room to wait for a few minutes while the marshal made lunch reservations; then they left to eat. Returning from lunch, the jury was instructed from the Supreme Court’s opinion in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), with the addition of several cautionary phrases assuring that individual jurors were not being asked to vote against their “considered judgment.” This supplemental charge was completed at 2:35 p. m. The marshal reported a verdict to the court at 2:40 p. m. This Court has consistently reaffirmed its approval of the supplementary charge to encourage a verdict in the face of an apparent deadlock. Recent examples are to be found in United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); United States v. Meyers, 410 F.2d 693 (2d Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86, rehearing denied, 396 U.S. 949, 90 S.Ct. 371, 24 L.Ed.2d 255 (1969); United States v. Rao, 394 F.2d 354 (2d Cir. 1968); United States v. Bilotti, 380 F.2d 649 (2d Cir. 1967); United States v. Kenner, 354 F.2d 780 (2d Cir. 1965). Absent coercive circumstances outside the charge itself, we are satisfied that the so-called “Allen charge” does not unconstitutionally deprive a defendant of his right to a unanimous verdict rendered upon the conscientious consideration of twelve impartial jurors, notwithstanding the different view adopted within the last few months in two sister circuits. See United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied sub nom. Panaceione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Wynn, 415 F.2d 135 (10th Cir. 1969) (both courts" }, { "docid": "9894184", "title": "", "text": "have your unanimous verdict of not guilty. Two hours later the jury returned a verdict of guilty and presented a note to the magistrate, which read: “We the jury thank you, your Honor, for your further instructions and comments, without which we would have failed.” In our review of Allen instructions, we have urged caution in their use. “If the instruction is given at all, it should be incorporated into the body of the court’s original instructions to the jury. It should not be given during the course of deliberations.” United States v. Blandin, 784 F.2d 1048, 1050 (10th Cir.1986). However, “although it is a preferred rule of procedure that an Allen instruction be given the jury at the same time as other instructions, it is not a per se rule.” United States v. McKinney, 822 F.2d 946, 951 (10th Cir.1987) (emphasis in original). To ascertain whether an Allen instruction is permissible, we conduct a case by case determination to determine whether the taint of coercion was present. See United States v. Porter, 881 F.2d 878, 888 (10th Cir.1989). In our determination of whether the supplemental Allen instruction in this case is proper, we find McKinney particularly illuminating. After approximately fourteen hours of deliberations, the jury in McKinney returned a guilty verdict on three counts and advised the court that it was unable to reach a unanimous verdict on the remaining twenty-nine counts. The district court then administered a supplemental Allen instruction. One hour and twenty minutes later the jury unanimously determined that the defendant was guilty on the remaining twenty-nine counts. See McKinney, 822 F.2d at 950. Having assessed the circumstances of this case, and because we cannot distinguish them from those present in McKinney, we conclude that the Allen charge was not coercive. Both here and in McKinney the trial court administered a supplemental Allen instruction only after the jury informed the court that it was unable to reach a verdict. See id. In both cases the trial court administered a full Allen charge, stating inter alia that although no juror should yield any conscientious objection, each dissenting" }, { "docid": "18122780", "title": "", "text": "if it contained language urging the jurors to re-examine their own view but not to “surrender [their] honest conviction as to the weight or effect of evidence solely because of the opinion of [their] fellow jurors, or for the mere purpose of returning a verdict.” Fioravanti, 412 F.2d at 420 n. 32; see also United States v. Alper, 449 F.2d 1223, 1234 (3d Cir.1971) (holding that a supplemental jury charge was not unduly coercive because although it suggested jurors re-examine their views, it told them not to surrender their honest convictions); cf. also Gov’t of the Virgin Islands v. Gereau, 502 F.2d 914, 935-36 (3d Cir.1974) (holding that a statement that the jurors were not required to reach a verdict but should try to do so was not coercive). Although the Supreme Court held in Allen that the “minority” jury charge was not coercive, it subsequently declared that where the district court told a deadlocked jury in a supplemental charge: “[y]ou have got to reach a decision in this case,” this was unduly coercive and warranted a new trial. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965) (per curiam). Similarly, in United States v. Burley, 460 F.2d 998, 999 (3d Cir.1972), this Court held that where a district judge instructed a deadlocked jury to consider the burdens and expense to the government of a new trial, this too was unduly coercive. In addition to the “minority” jury charge, the charge mandating a decision, and the charge stressing the expense of a new trial, this Circuit has also addressed the coerciveness of potentially lengthy deliberations. In United States v. Graham, 758 F.2d 879 (3d Cir.1985), we considered whether the district court’s failure to respond to a juror’s request to be excused for Yom Kippur was coercive. We noted that a judge’s actions “in requiring further deliberation after the jury has reported a disagreement does not, without more, constitute coercion.” Id. at 884 (quotation omitted). In addition, we held that the imminent onset of Yom Kippur was not coercive in itself, and defendant failed to" }, { "docid": "23270730", "title": "", "text": "retire for the evening and to recommence deliberations in the morning. The jury reconvened the next day, and later that morning returned its verdict finding Porter guilty of Count I of the indictment and not guilty of Count II. Porter alleges that the language in the Allen instruction, coupled with the fact that it was given during the course of deliberations, resulted in improper coercion of the jurors. We disagree. With regard to the language, Porter contends that because the district court judge instructed the jury in the first person, the judge improperly interjected his personal views into the language of the instruction. We must keep in mind that “the inquiry in each case is whether the language used by the judge can be said to be coercive, or merely the proper exercise of his common law right and duty to guide and assist the jury toward a fair and impartial verdict.” United States v. Winn, 411 F.2d 415, 416 (10th Cir.), cert. denied, 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969). Here, although the judge did state his opinion that the case could not have been “tried better or more exhaustively than it has been on either side,” the remainder of the instruction properly and clearly emphasized that no “juror should surrender his or her conscientiously held convictions,” and that each juror, whether in the majority or the minority, should consider his or her position on the evidence with proper deference to the opinions of the others. The fact that this charge was not directed specifically at jurors holding the minority view further reduces the possibility of coercion. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 551, 98 L.Ed.2d 568 (1988). We hold that the language in this instruction was not unduly coercive, but was a proper exercise of the judge’s duty to guide the jury. Porter further argues that the repetition of an Allen instruction during the course of jury deliberations unduly emphasized the importance of reaching a verdict, thus creating a coercive context for the jury deliberations. “The use of a supplemental [Allen" }, { "docid": "23079874", "title": "", "text": "is a reasonable one, since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again and most thoughtfully whether you should accept the weight and sufficiency of the evidence which fails to convince your fellow jurors beyond a reasonable doubt. Because this instruction asks jurors to discount their views if they are in the minority or in the majority, it virtually guarantees jury confusion. “Such a charge is so difficult to comprehend that ... it is ‘an invitation to frolic with Alice in Wonderland.’ ” State v. Nicholson, 315 So.2d 639, 642 (La.1975) (quoting United States v. Fioravanti, 412 F.2d 407, 417 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969)). This instruction can intimidate individual jurors. After hearing this confusing instruction, a juror will likely remember only that the judge wants them to reach a verdict and that they should reconsider their opinions. Practically, the pressure to change position will fall most heavily on the minority. “[T]he central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” Rose v. Clark, — U.S. —, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460 (1986) (quoting United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975)). Under the Sixth Amendment, a person charged with a serious federal crime has the right to have the factual question of his guilt or innocence determined by a jury of his peers. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Where a federal defendant avails himself of this right, he may be convicted only if the jury unanimously finds him guilty. Fed.R.Crim.P. 31(a); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); United States v. Smedes, 760 F.2d 109, 111 (6th Cir.1985). In" }, { "docid": "12016154", "title": "", "text": "the trial and the unusually complex legal questions present in this litigation. Within the context of the complete charge and of the trial as a whole, the instructions as to these two issues would appear to be adequate. Even so, as the case must be retried, the district court would do well to incorporate in its charge, on remand, the suggestions set forth by Judge Hunter. . Transcript at 15,128. . Id. at 15,135. . Id. at 15,136. . 412 F.2d 407 (3d Cir.), cert. denied sub nom., Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). Basically, the Fioravanti charge outlines the responsibilities of each juror during deliberations, including the duties to re-examine one’s own predilections and to deliberate with a view towards reaching a verdict, if possible. For the text of the recommended instruction, see 412 F.2d at 420. In this Circuit at least, the Fioravanti charge supersedes a supplemental instruction approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In essence, the Alien charge cautioned the minority within a jury to “see the error of its ways.” 412 F.2d at 417. Caustically denominated as the “dynamite” charge (see Green v. United States, 309 F.2d 852, 853 (5th Cir. 1962)), the Alien instruction had been criticized by eminent scholars and jurists as having an inherently coercive influence on jury deliberations. Consequently, this Court suggested the more neutral statement of juror responsibilities embodied in the Fioravanti instruction. . Docket entry 322, # 24. . Transcript at 15,164. . Id. at 15,165-71. . Id. at 15,174-75. . Order of the Court of Appeals for the Third Circuit, dated September 16, 1975. . Conference Transcript at 2. . Id. at 4. . Id. at 4. . Id. at 6. . Id. at 7. (emphasis added) . Id. at 8. . In his dissenting opinion, Judge Weis appears to emphasize the fact that, after the trial court’s report to counsel, one of the defense lawyers “suggested that the appropriate point [for declaration of a mistrial] would be the following morning" }, { "docid": "4128521", "title": "", "text": "three defendants and one of the two counts on the remaining defendant. There is one juror with a differing opinion and it is a volatile and hostile situation.” In response, without objection, the district court gave the jury an “Allen charge,” which is “a supplemental jury instruction that advises deadlocked jurors to reconsider their positions.” United States v. Evans, 431 F.3d 342, 347 (8th Cir.2005). Some thirty minutes later, the jury asked to hear the calls between Corredor and defendant Villa. Nearly an hour later, well into the evening, the court brought the jury in and explained, again without objection, “You can return a verdict on the counts and the defendants on which you do have an agreement, and you can just notify the court that you’re unable to agree on all.” A few minutes later, the jury asked if the entire case would have to be retried if they returned a verdict on four of the five charges. Counsel agreed the court should simply write “no” on the jury’s note and return it. Less than five minutes later, the jury returned its verdict, finding each defendant guilty of all charges except for one of the two counts against defendant Villa. On appeal, Jefferson argues the district court committed plain error by prematurely giving the Allen charge. Again, this issue appears to have been affirmatively waived because all defendants explicitly agreed to the court’s handling of the jury notes in question. In any event, there was no abuse of discretion, much less plain error. See Evans, 431 F.3d at 347 (standard of review). Neither the total length of the jury’s deliberations—approximately eight hours—nor the time it took the jury to reach a verdict after the Allen charge—approximately two-and-a-half hours—suggests that the supplemental charge had an impermissible coercive effect. See United States v. Johnson, 411 F.3d 928, 930-31 (8th Cir.), cert. denied, 546 U.S. 971, 126 S.Ct. 505, 163 L.Ed.2d 382 (2005); United States v. Johnson, 114 F.3d 808, 815 (8th Cir.1997). III. Additional Issues Raised Pro Se In addition to rearguing the issues raised in his attorney’s brief, discussed in" }, { "docid": "3770955", "title": "", "text": "reach a verdict after three hours of deliberation, the jurors were allowed to retire to their homes for the night to report at 9:00 a. m. the next morning for further deliberation and instruction. Upon the reassembling of the jury the following morning, the trial judge, having first dictated into the record an objection by both sides as to everything he was to say, further charged the jury as to its duties and responsibilities in the case. This additional charge was given on the court’s own motion; no request for further instructions had been made by the parties or the jury. The supplemental charge is set out in the margin. At the conclusion of the additional charge, and after the jury retired, appellant objected to the charge. The jury returned shortly thereafter with a verdict finding appellant guilty on 10 counts and innocent on 10 counts. Appellant claims that the “Allen charge” coerced the jury into reaching a compromise verdict and advances five objections to the charge in support of this contention. In addition, appellant complains of that portion of the supplemental charge which directs the jury to believe either appellant or the government’s main witness against him in considering each of the counts. The Allen charge was authorized as a supplement to the main charge by the United States Supreme Court over 70 years ago. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Since then “it has persisted * * * not so much as an object of commendation as * * * a product of toleration.” United States v. Fioravanti, 412 F.2d 407, 415 (3 Cir. 1969), cert. den. sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88. The purpose of the Allen charge.is to obtain a verdict. To this end it admonishes the jurors to listen to each other’s arguments “with a disposition to be convinced.” Problems arise when the Allen charge is used to coerce the jury into reaching a verdict. Because a coercive charge violates due process, United States v. Brown, 411 F.2d" }, { "docid": "3762874", "title": "", "text": "(1968). In Gereau, we affirmed a guilty verdict where the jurors were instructed to continue deliberations for at least one more afternoon after they had already deliberated for nearly 40 hours. Despite the length of the deliberations, we found that there “was no threat that the jury would be locked up indefinitely unless a verdict was reached.... ” Id. at 936; compare Jenkins v. U.S., 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965) (per curiam) (finding coercion where, after two hours of deliberations, the court told a deadlocked jury: “You have got to reach a decision in this case.”) (internal quotation marks omitted). Our decision in Gereau was based in part on the fact that the court there advised the jury that it did not have to reach a unanimous verdict. Id. However, such an instruction is not required unless there is some evidence of coercion. United States v. Price, 13 F.3d 711, 725 (3d Cir.1994) (“The mere absence of ... an instruction [that the jury can return a hung verdict] does not in and of itself suggest coercion.”). Nor does the court have to set a particular time limit on deliberations, even after the jury has expressed that it is hopelessly deadlocked. In Grosso, for instance, we affirmed a guilty verdict where the court simply instructed a deadlocked jury to “keep on working.” 358 F.2d at 159 (internal quotation marks omitted). We held that “[t]he length of time a jury may be kept together for the purpose of deliberation is a matter within the discretion of the trial judge, and his action in requiring further deliberation after the jury has reported a disagreement does not, without more, constitute coercion.” Id. at 160; compare U.S. v. Fioravanti, 412 F.2d 407 (3d Cir.1969) (holding that the Allen charge, where the court instructs jurors in the minority to question their own judgment in light of the contrary view held by the majority, was coercive). Here, the court did not require the jurors to stay and order dinner as Traía suggests. Rather, the judge gave jurors the option of ordering" }, { "docid": "3770956", "title": "", "text": "complains of that portion of the supplemental charge which directs the jury to believe either appellant or the government’s main witness against him in considering each of the counts. The Allen charge was authorized as a supplement to the main charge by the United States Supreme Court over 70 years ago. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Since then “it has persisted * * * not so much as an object of commendation as * * * a product of toleration.” United States v. Fioravanti, 412 F.2d 407, 415 (3 Cir. 1969), cert. den. sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88. The purpose of the Allen charge.is to obtain a verdict. To this end it admonishes the jurors to listen to each other’s arguments “with a disposition to be convinced.” Problems arise when the Allen charge is used to coerce the jury into reaching a verdict. Because a coercive charge violates due process, United States v. Brown, 411 F.2d 930 (7 Cir. 1969), courts scrutinize carefully allegations that a trial court in a supplemental charge compelled the jury to return a guilty verdict. Recently there have been unrelenting attacks on the Allen charge,” United States v. Hill, 417 F.2d 279, 280 n. 3 (5 Cir. 1969), and several other circuits have severely restricted its use. United States v. Brown, supra; United States v. Fioravanti, supra. The position of this Court was expressed in Thaggard v. United States, 354 F.2d 735, 739 (5 Cir. 1965), cert. den. 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966): a “This court, although sometimes reluctantly, has approved the ‘Allen’ charge while carefully assuring ourselves that there are not engrafted upon it any partial or one-sided comments. * * * Such a charge, so long as it makes plain to the jury that each member of the jury has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror" }, { "docid": "4050179", "title": "", "text": "again resumed its deliberation, and an hour and twenty minutes later returned a unanimous verdict that McKinney was guilty on the remaining twenty-nine counts. On appeal, counsel does not argue that it was error for the district court to receive a partial verdict. Receipt of a partial verdict was approved in United States v. Ross, 626 F.2d 77 (9th Cir.1980). Counsel does argue, however, that the instruction to the jury on Saturday morning and Monday afternoon were “coercive.” We do not agree. We think the effect of these instructions was “neutral.” The jury was advised, for example, that no individual juror was ever required to yield a conscientious conviction, which means, to us, that a juror may adhere to his or her personal conviction, if he or she believes it to be right, whatever that conviction might be, i.e., guilty or not guilty. We find the challenged instructions to be of the type heretofore approved by this court. See, e.g., United States v. Dyba, 554 F.2d 417 (10th Cir.1977), cert. denied, 434 U.S. 830, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); Munroe v. United States, 424 F.2d 243 (10th Cir.1970). Counsel also argues that under United States v. Blandin, 784 F.2d 1048 (10th Cir.1986), an Allen instruction may never be given once a jury has commenced its deliberation. In arguing for a per se rule, counsel overreads Blandin. Blandin, incidentally, was filed after the trial of this case. In pre-Blandin cases, we have said that it is generally preferable that any Allen instruction be given at the time the general instructions are given a jury. See Munroe v. United States, 424 F.2d 243 (10th Cir.1970); United States v. Wynn, 415 F.2d 135 (10th Cir.1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970); United States v. Winn, 411 F.2d 415 (10th Cir.1969), cert. denied, 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969). Those are the cases relied on in Blandin. We adhere to the preferred course of procedure, but decline to read Blandin as holding that an Allen charge can never be given after a" }, { "docid": "889542", "title": "", "text": "the counsel during opening statement; no corrective instructions were sought by defendant. This ambiguous exchange does not, within the context of the entire trial, suggest so inflammatory an atmosphere as to render the trial unconstitutional. Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). This isolated comment from the opening statement, viewed through the lens of the trial court’s corrective instruction does not implicate denial of Salemme’s due process rights. The comment was ambiguous, possibly referring to the two count indictment or to an unrelated crime. Since the possibility existed that it could be interpreted to refer to unrelated criminal activity, the trial court properly instructed the jury to disregard comments made during opening statements which were later not admitted into evidence. This tableau falls far short of the type of pervasive prejudicial effect neces sary to sustain a claim of due process deprivation. G. Salemme’s final contention is that the so-called “Tuey” or “Allen” charge given by the trial court was constitutionally flawed. The “Allen” charge, also known as the “dynamite” charge, is given to deadlocked juries to encourage them to arrive at a verdict. The language of the Allen charge was approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). It has come under sharp attack in this circuit, United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971); United States v. Angiulo, 485 F.2d 37, 40 n.2 (1st Cir. 1973), as well as in others. See, e. g., United States v. Amaya, 509 F.2d 8, 12-13 (5th Cir. 1975); United States v. Fioravanti, 412 F.2d 407, 420 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Brown, 411 F.2d 930, 931-34 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970). The criticism which has increasingly been launched against the charge in recent years rests on its potentially coercive effect on minority jurors. The Massachusetts Supreme Judicial Court disapproved of the charge in Commonwealth v." }, { "docid": "22906687", "title": "", "text": "883, 89 S.Ct. 191, 21 L.Ed.2d 158 (1968). The indictment was read to the jury, which in Count I includes a detailed description of the overt acts charged. The evidence adduced at trial clearly established a burglary. The jury was fully aware of the charges against the defendant. The court carefully outlined each offense for them, and corrected itself when the error was brought to its attention. This court has previously been confronted with the analogous contentions and has rejected them. See e. g., Theriault v. United States, 401 F.2d 79 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1968); Beatrice Foods Co. v. United States, 312 F.2d 29 (8th Cir. 1963), cert. denied, 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199 (1963). We hold there was no error. (2) Defendant next contends that the district court, in effect, coerced a verdict by advising the jury in its main charge that unanimity was required, and explaining the effect of a guilty verdict and a not guilty verdict, leaving untouched the third alternative of a hung jury. Defendant urges this court to adopt the rationale of United States v. Fioravanti, 412 F.2d 407, 420 (3rd Cir. 1969), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L. Ed.2d 88 (1969), where the Court of Appeals for the Third Circuit announced the Allen charge would no longer be accepted. We decline to do so. This court in Hodges v. United States, 408 F.2d 543 (8th Cir. 1969), considered the question of whether the Allen charge was still valid. In answering that question in the affirmative, Judge (now Mr. Justice) Blackmun, stated: “We initially reject the claim that the Allen charge itself must be held today, some 70 years after the decision, to be coercive, prejudicial, and unconstitutional. The Supreme Court has not yet seen fit to disavow it and, so long as it stands approved in decided Supreme Court cases, we are not to resolve that issue contrarily. “Attack upon charges of the Allen type, however, are increasingly frequent. This court has encountered them. In" }, { "docid": "22474633", "title": "", "text": "give Sixth Circuit Pattern Criminal Jury Instruction 9.04, an instruction intended for deadlocked juries which tracks but does not duplicate the instruction in Allen. At 4:15 p.m. that day, the jury returned a unanimous verdict; the jury found all defendants guilty of every count with which he or she had been charged, except that it found Frost and Turner not guilty of Count Eighteen, and found Turner not guilty of Count Thirty. When the District Court polled the jury, every juror responded that he or she concurred in the verdict. Appropriately, defendants do not contest the wording of the Allen charge given by the District Court. The pattern instruction delivered in this case contained language which this circuit has identified as critical to any Allen charge: it directed both majority and minority jurors to reconsider their positions, see, e.g., Williams, 741 F.2d at 850, and it cautioned all jurors not to surrender their personal convictions merely in order to achieve consensus by acquiescing in the majority opinion. See, e.g., Aloi, 9 F.3d at 443; United States v. Nickerson, 606 F.2d 156, 159 (6th Cir.1979). Defendants instead argue that the charge, although properly worded, was nonetheless coercive under the particular circumstances of this case. Although circumstances alone can render an Allen charge coercive, we traditionally have found an Allen charge coercive when the instructions themselves contained errors or omissions, not when a defendant alleges that the circumstances surrounding an otherwise correct charge created coercion. See United States v. Scott, 547 F.2d 334, 337 (6th Cir.1977)(trial court failed to remind jury that no one should surrender honest beliefs simply because others disagreed, and suggested that continued disagreement would interfere unacceptably with commencement of pending civil trial); Jones v. Norvell, 472 F.2d 1185, 1185 (6th Cir.1973)(per curiam)(trial court told jury that they were “the only ones” who could reach a verdict); United States v. Harris, 391 F.2d 348, 352-53 (6th Cir.1968)(trial court told minority to consider views of majority, but not vice-versa). We find that, under all of the circumstances, the District Court did not abuse its discretion by delivering an Allen charge." }, { "docid": "1938247", "title": "", "text": "were excused that night after approximately six hours of deliberation. The following morning, after 35 minutes of deliberation, instructions on conspiracy, circumstantial evidence, credibility, and reasonable doubt were read at the jury’s request. At 2:50 p.m., having received a note from the foreman stating that the jury was unable to come to an unanimous decision, the judge recalled the jury. He read a brief instruction given in the original charge, an alternative to the “Allen” charge, and directed the jury to resume deliberations. The jury returned a verdict of guilty on all counts at 4:30 p.m., an hour and a half later. Pointing out the length of deliberation prior to and after the reading of the supplemental instruction, Singletary contends that the verdict was coerced. We disagree. The substance of the charge is far milder than that of the Allen charge, approved by this court when circumstances indicate that it has not had a coercive effect. United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974); United States v. Ringland, 497 F.2d 1250, 1252-53 (8th Cir. 1974). Unlike the Allen charge, it does not ask the minority to reexamine its position, mention the cost of trial or retrial, or state that the case must someday be decided. The instruction is virtually identical to one recommended for delivery both in the original charge and after deadlock in ABA Standards Relating to Trial by Jury § 5.4 (Approved Draft, 1968). This court has approved similar instructions in United States v. Skillman, 442 F.2d 542, 558-59 n. 13 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), and United States v. Chrysler, 533 F.2d 1055, 1056-57 (8th Cir.), cert. denied, 429 U.S. 844, 97 S.Ct. 124, 50 L.Ed.2d 115 (1976). Nor do the circumstances in which this instruction was delivered show a coercive effect on the jury. The jury deliberated for approximately ten hours before the supplemental instruction was read, and an hour and a half thereafter. We cannot say that this comparison alone indicates coercion. Cf. United States v. Chrysler, supra, 533 F.2d 1055 (deliberation six" }, { "docid": "9484089", "title": "", "text": "6, 1999. The jury heard testimony from representatives of both banks and the IRS. In addition, Mr. Arney took the stand in his own defense. The case went to the jury on December 8. After deliberating for approximately four hours, the jury sent a note stating: “Your Honor, we have been unable to reach a unanimous decision. It does not appear that this will change. What should we do now?” The district court then gave a supplemental Allen instruction and directed the jury to continue deliberating. Approximately one hour later, the jury returned its verdict finding Mr. Arney guilty on all four counts of the indictment. On appeal, Mr. Arney argues that the district court committed reversible error in four respects: (1) in administering the Allen instruction because it was coercive, (2) in excluding the testimony of Mr. Arney’s expert, (3) in admitting evidence presented by the government in violation of Rule 404(b) of the Federal Rules of Evidence, and (4) in redacting a note from Mr. Ar-ney’s counsel during the Koch Oil litigation attached to one of Mr. Arney’s exhibits. II. Discussion A. The Allen Charge An Allen charge derives its name from the supplemental jury instruction approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896). “The purpose of such a charge is to encourage unanimity (without infringement upon the conscientious views of each individual juror) by urging each juror to review and reconsider the evidence in the light of the views expressed by other jurors, in a manner evincing a conscientious search for truth rather than a dogged determination to have one’s way in the outcome of the deliberative process.” United States v. Smith, 857 F.2d 682, 683-84 (10th Cir.1988). This circuit has repeatedly urged caution in the use of Allen charges. See, e.g., United States v. Rodriguez-Mejia, 20 F.3d 1090, 1091 (10th Cir.1994); United States v. Butler, 904 F.2d 1482, 1488 (10th Cir.1990). “In this circuit an Allen charge can be given if it is not impermissibly coercive.” United States v. Porter, 881 F.2d 878," }, { "docid": "7569976", "title": "", "text": "in United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); United States v. Meyers, 410 F.2d 693 (2d Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86, rehearing denied, 396 U.S. 949, 90 S.Ct. 371, 24 L.Ed.2d 255 (1969); United States v. Rao, 394 F.2d 354 (2d Cir. 1968); United States v. Bilotti, 380 F.2d 649 (2d Cir. 1967); United States v. Kenner, 354 F.2d 780 (2d Cir. 1965). Absent coercive circumstances outside the charge itself, we are satisfied that the so-called “Allen charge” does not unconstitutionally deprive a defendant of his right to a unanimous verdict rendered upon the conscientious consideration of twelve impartial jurors, notwithstanding the different view adopted within the last few months in two sister circuits. See United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied sub nom. Panaceione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Wynn, 415 F.2d 135 (10th Cir. 1969) (both courts prospectively ruling that the charge could no longer be given in those circuits as a supplemental instruction to a deadlocked jury, but permitting its inclusion in the main charge). The charge is no more than a re-statement of the precepts which the trial judge almost invariably gives to guide the jurors’ deliberations in his original charge. Its function is to emphasize that a verdict is in the best interests of both prosecution and defense, and we adhere to the view that “ Ct] he considerable costs in money and time to both sides if a retrial is necessary certainly justify an instruction to the jury that if it is possible for them to reach a unanimous verdict without any juror yielding a conscientious conviction * * \", they should do so.” United States v. Rao, 394 F.2d 354, 355 (2d Cir. 1968). There were no aggravating circumstances in the present case such as foreknowledge of the numerical split, use of compromising language outside the Supreme Court statement in Allen or undue emphasis on the responsibility" } ]

[ { "docid": "23507836", "title": "", "text": "administrator brought this action on August 3, 1988. Thus, nothing else appearing, the wrongful death action would unquestionably be time barred by Virginia’s two-year statute. Ill Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact_” Fed.R.Civ.P. 56(c). It is not appropriate 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, 2510, 91 L.Ed.2d 202 (1986), nor is it appropriate “even where there is no dispute as to the evidentiary facts but only as to the conclusions to be drawn therefrom.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)). Where the party opposing summary judgment would have the burden of proof at trial, that party is entitled to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered. Charbonnages, 597 F.2d at 414. Where states of mind are decisive as elements of a claim or defense, summary judgment ordinarily will not lie. Charbonnages, 597 F.2d at 414. Summary judgment is appropriate if the nonmoving parly fails to make a showing sufficient to establish the elements necessary to his or her case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A party seeking summary judgment has the initial burden of showing the information that it believes demonstrates absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. We review the summary judgment de novo, applying the same standard as that applied by the district court. Felty v. GravesHumphreys Co., 818" } ]

[ { "docid": "14749182", "title": "", "text": "preclude summary judgment. Id. at 252, 106 S.Ct. 2505; Thompson Everett, Inc. v. National Cable Advertising, 57 F.3d 1817, 1328 (4th Cir.1995). The moving party bears the initial burden of demonstrating that there is no genuine issue as to any material fact. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). The moving party may meet this burden by demonstrating the absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), The non-moving party then must, through affidavits or other kinds of evidentiary material listed in Rule 56(c), demonstrate specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The non-moving party cannot rely on “the mere pleadings themselves,” or simply set forth speculation, allegations, or denials to demonstrate genuine issues of fact. Id. The court must not weigh the evidence. Rather, the court must determine whether enough evidence exists to enable a reasonable factfinder to find in favor of the non-moving party. Anderson, All U.S. at 252, 106 S.Ct. 2505. The court must view all facts and inferences most favorably to the non-moving party, who is entitled to have the credibility of his evidence assumed, his version of events in dispute accepted, and internal conflicts resolved in his favor. Charbonnages de France, 597 F.2d at 414. The non-moving party, however, is only entitled to inferences that “fall within the range of reasonable probability.” Thompson Everett, 51 F.3d at 1323. III. Discussion. A. Cross motions for summary judgment. Both parties have filed motions for summary judgment. Plaintiff contends that the evidence establishes intentional discrimination on the part of Defendants in violation of Title VII and the Pregnancy Discrimination Act (“PDA”). She argues that Defendants’ proffered nondiscriminatory reason for her termination — the alleged expiration of her FMLA leave — is merely a pretext for discrimination. Plaintiff also alleges that Defendants violated the FMLA when they terminated her. Defendants argue that Plaintiff failed to establish a prima facie case of Title VII pregnancy discrimination, and that even if" }, { "docid": "10782584", "title": "", "text": "of action. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Thus, the existence of a factual dispute is material — thereby precluding summary judgment — only if the disputed fact is determinative of the outcome under applicable law. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). “Disposition by summary judgment is appropriate .... where the record as a whole could not lead a rational trier of fact to find for the non-movant.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (citation omitted); see also Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the moving party satisfies this burden, the nonmoving party must set forth specific facts that demonstrate the existence of a genuine dispute of fact for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. The court is required to view the facts and draw reasonable inferences in the light most favorable to the nonmov-ing party. Shaw, 13 F.3d at 798. However, the court’s role is not “to weigh the evidence and determine the truth of the matter [but to] determine whether there is a need for a trial.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Nor should the court make credibility determinations. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986). If no genuine issue of material fact exists, the court has a duty to prevent claims and defenses not supported in fact from proceeding to trial. Celotex Corp., 477 U.S. at 317, 323-24, 106 S.Ct. 2548. III. DISCUSSION The Trustee argues that the Debtor’s bankruptcy was an event of dissolution under the terms of the Operating Agreement and that either a writ of mandamus should be issued to the manager of McCoy Farm to liquidate the company, or a receiver should be appointed to dissolve the company. The Trustee draws support from two provisions in the Operating Agreement: Section 10(a)(ii) provides that McCoy Farm “shall be dissolved upon the occurrence of any of the following events: ... (ii) upon the death, retirement, withdrawal, expulsion, bankruptcy or dissolution of a Member ... ”; and § 10(c) which states that “the dissolution of the" }, { "docid": "19082363", "title": "", "text": "the money to pay his taxes because of the medical expenses, claiming (without further evidence) that there were more expenses than documented. II. ANALYSIS A. Summary Judgment Standard Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials demonstrates that no genuine dispute as to any material fact exists, thus entitling the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the burden of initially demonstrating the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If this burden is met, the non-moving party must then affirmatively demonstrate a genuine dispute of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no issue for trial unless sufficient evidence favoring the non-moving party exists for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 817 (4th Cir.1995). Moreover, on summary judgment, the non-moving party is entitled “to have the credibility of [its] evidence as forecast assumed, [its] version of all that is in dispute accepted, all internal conflicts in it resolved favorably to [it], the most favorable of possible alternative inferences from it drawn in [its] behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered.” Charbonnages de France v. Smith 597 F.2d 406, 414 (4th Cir.1979); see Metric/Kvaerner Fayetteville v. Fed. Ins. Co., 403 F.3d 188, 197 (4th Cir.2005). In a tax case, the debtor’s failure to demonstrate that there is no genuine dispute of material fact as to whether a particular debt is dischargeable in bankruptcy is grounds for denying the debtor’s motion for summary judgment. See O’Neal v. United States (In re O’Neal), Bankr.No. 08-70577-CMS-7, 2010 WL 3398403, at *14" }, { "docid": "6649784", "title": "", "text": "initial burden of demonstrating no genuine issues of material fact are present. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party who must point out specific facts which create disputed factual issues. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In evaluating a summary judgment motion, district courts must consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences from those facts in favor of the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962). Those facts which the moving party bears the burden of proving are facts which are material. “[T]he substantive law will identify which facts are material. Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue of material fact is genuine when, “the evidence ... create[s] [a] fair doubt; wholly speculative assertions will not suffice. A trial, after all, is not an entitlement. It exists to resolve what reasonable minds could recognize as real factual disputes.” Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). Thus, summary judgment is appropriate only where no material facts are genuinely disputed and the evidence from the entire record could not lead a rational fact finder to rule for the non-moving party. Matsushita Electric Industrial Co., 475 U.S. at 587, 106 S.Ct. at 1356, Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 1356 (1986). Accordingly, “the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. That is, “ ‘in every case, before evidence is left to the jury, there is" }, { "docid": "10083578", "title": "", "text": "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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In Celotex Corp., the Supreme Court stated: In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary" }, { "docid": "11896615", "title": "", "text": "the district court—that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Fed.R.Civ.P. 56(c); Id. at 322-23, 106 S.Ct. 2548. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991). Conversely, summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Even if there is no dispute as to the evidentiary facts, summary judgment is also not appropriate where the ultimate factual conclusions to be drawn are in dispute. Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.1991). A court must neither resolve disputed facts nor weigh the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.1995), nor make determinations of credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986). Rather, the party opposing the motion is entitled to have his or her version of the facts accepted as true and, moreover, to have all internal conflicts resolved in his or her favor. Charbonnag-es de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Inferences that are “drawn from the. underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). III. The agreement contains a choice-of-law provision which states that it “shall be construed in accordance with the laws of the State of Indiana.” (Agreement, attached as Ex. 1 at 12, ¶ 15 to Reply to Resp. to M.S.J.). Defendants contend the choice-of-law provision designates Indiana law to govern the agreement. (Defs.’" }, { "docid": "9572129", "title": "", "text": "be granted only if there exists 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. III. Analysis A. Plaintiffs’ Motion to Strike Plaintiffs have moved to strike the unsworn expert report of Travis M." }, { "docid": "7809021", "title": "", "text": "of Review It is well established that a motion for summary judgment will be granted only if there exists 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In Celotex Corp., the Supreme Court stated: In cases" }, { "docid": "4825697", "title": "", "text": "any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. 2505. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 249, 106 S.Ct. 2505. Accordingly, summary judgment is inappropriate if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see JKC Holding Co., LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). The moving party bears the burden of showing there is no genuine issue as to any material fact. See Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). The moving party can meet this burden by demonstrating the absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the nonmoving party must then demonstrate specific facts showing that a genuine issue remains for trial. Id. at 324, 106 S.Ct. 2548. When ruling on a motion for summary judgment, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion,’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alteration in original) (quoting United States" }, { "docid": "7809022", "title": "", "text": "Civ. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In Celotex Corp., the Supreme Court stated: In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the “pleadings, depositions, answers to interrogatories, and admissions on file.” Such a motion, whether or not accompanied by affidavits, will be “made and supported as provided in this rule,” and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. However, “ ‘a mere scintilla of evidence is not enough to create a fact issue.’ ” Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967)). There must be “sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party. If" }, { "docid": "1236615", "title": "", "text": "317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Corp., 601 F.2d 139, 141 (4th Cir.1979). The moving party bears the burden of showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party that bears the burden of proof on a particular claim must factually support each element of its claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment will not be appropriate unless the movant’s evidence supporting the motion “demonstrate[s] an absence of a genuine dispute as to every fact material to each element of the movant’s claim and the non-movant’s response fails to raise a genuine issue of material fact as to any one element.” McIntyre v. Robinson, 126 F.Supp.2d 394, 400 (D.Md.2000) (internal citations omitted). On those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S." }, { "docid": "8509746", "title": "", "text": "no genuine issue of material fact that could lead a rational trier of fact to find for the non-moving party. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court views all evidence in the light most favorable to the non-moving party and must draw all justifiable inferences in favor of the non-moving party. See Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). A party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). Only fact disputes capable of affecting the outcome of a case under governing law will preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party has the initial responsibility of demonstrating that there is no genuine issue of material fact and that summary judgment is warranted. See Cel-otex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Pul-liam Inv. Co., Inc. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). If the moving party does not bear the burden of proof at trial, and that party demonstrates an absence of evidence to support an essential element of the non-moving party’s case, and the non-movant fails to make a sufficient showing in response, the moving party is entitled to summary judgment. See Celotex Corp., 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. In contrast, when the movant bears the burden of proof at trial, he “must do more than put the issue into genuine doubt; indeed [he] must remove genuine doubt from the issue altogether.” Hoover Color Corp. v. Bayer Corp., 199 F.3d 160, 164 (4th Cir.1999) (quoting Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1425-26 (11th Cir.1990)). Under those circumstances, summary judgment will not be granted unless the movant’s own submissions in support of the motion demonstrate an absence of a genuine dispute as to every fact material to each element of the movant’s claim and the non-movant’s response" }, { "docid": "10782583", "title": "", "text": "Federal Rule of Civil Procedure 56, made applicable by Federal Rule of Bankruptcy Procedure 7056, provides that summary judgment is only appropriate if the movant demonstrates “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). A party seeking summary judgment must make a prima facie case by showing: first, the apparent absence of any genuine dispute of material fact; and second, the mov-ant’s entitlement to judgment as a matter of law on the basis of undisputed facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the burden of proof to establish that there is no genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Showing an absence of any genuine dispute as to any material fact satisfies this burden. Id. at 323, 106 S.Ct. 2548. Material facts are those necessary to establish the elements of the cause of action. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Thus, the existence of a factual dispute is material — thereby precluding summary judgment — only if the disputed fact is determinative of the outcome under applicable law. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). “Disposition by summary judgment is appropriate .... where the record as a whole could not lead a rational trier of fact to find for the non-movant.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (citation omitted); see also Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the moving party satisfies this burden, the nonmoving party must set forth specific facts that demonstrate the existence of a genuine dispute of fact for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. The court is required to view the facts and draw reasonable inferences in the light most favorable to the nonmov-ing party. Shaw, 13 F.3d at 798. However, the court’s role is not “to weigh the evidence and determine the truth of the matter [but to]" }, { "docid": "11896614", "title": "", "text": "Boleky. (Am. Compl. at 3-10). In its response to defendants’ motion for summary judgment, Cavcon stated it “hereby stipulates to the dismissal of Counts IX & X.” (PL’s Resp. to Defs.’ M.S.J. at 29). Cavcon seeks summary judgment only on Count I. A party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those necessary to establish the elements of a party’s cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the burden of showing—“that is, pointing out to the district court—that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Fed.R.Civ.P. 56(c); Id. at 322-23, 106 S.Ct. 2548. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991). Conversely, summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Even if there is no dispute as to the evidentiary facts, summary judgment is also not appropriate where the ultimate factual conclusions to be drawn are in dispute. Overstreet v. Kentucky Cent. Life Ins. Co., 950" }, { "docid": "23435422", "title": "", "text": "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). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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). However, “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, 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, 2510, 91 L.Ed.2d 202 (1986). A motion for summary judgment may not be defeated by evidence that is “merely colorable” or “is not sufficiently probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Summary judgment is inappropriate “even where there is no dispute as to the evidentiary facts but only as to the conclusions to be drawn therefrom.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)). However, respondents must show that the inferences they suggest are “reasonable in light of the competing inferences_” Matsushi-ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). ? any other nonmoving party that will bear the burden of proof at trial, M & M is entitled to have the credibility of [its] evidence as forecast assumed, [its] version of all that is in dispute accepted, all internal conflicts in it resolved favorably to [it], the most favorable of possible alternative inferences from it drawn in [its] behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered. Charbonnages, 597 F.2d at 414. The appellate standard for" }, { "docid": "11896616", "title": "", "text": "F.2d 931, 937 (4th Cir.1991). A court must neither resolve disputed facts nor weigh the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.1995), nor make determinations of credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986). Rather, the party opposing the motion is entitled to have his or her version of the facts accepted as true and, moreover, to have all internal conflicts resolved in his or her favor. Charbonnag-es de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Inferences that are “drawn from the. underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). III. The agreement contains a choice-of-law provision which states that it “shall be construed in accordance with the laws of the State of Indiana.” (Agreement, attached as Ex. 1 at 12, ¶ 15 to Reply to Resp. to M.S.J.). Defendants contend the choice-of-law provision designates Indiana law to govern the agreement. (Defs.’ Memo, in Supp. of M.S.J. at 17; Defs.’ Reply to Resp. to M.S.J. at 3). By contrast, plaintiff states that Endress is incorrect in its choice-of-law analysis and instead appears to suggest that West Virginia law controls all of the counts. (Pl.’s Resp. to Defs.’ M.S.J. at 2 n. 1). When exercising diversity jurisdiction, a federal district court must apply the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Accordingly, the conflicts rules of West Virginia apply. As to the Count I breach of contract claim, “[a] choice of law provision in a contract will not be given effect when the contract bears no substantial relationship with the jurisdiction whose laws the parties have chosen to govern the agreement, or when the application of that law would offend the public policy of this state.” Syl. pt. 1, General Electric Company v. Keyser, 166 W.Va. 456, 275 S.E.2d 289 (1981); accord American Ins. Co. v. Frischkorn, 173" }, { "docid": "7858620", "title": "", "text": "fiduciary, and thus could not be hable in a cause of action for breach of a fiduciary duty. Plaintiff opposed this motion, and a hearing was held before this court on May 25, 1999. At the hearing, the court orally granted Defendant’s Motion for Summary Judgment. The next day, Plaintiff filed a Motion to Reconsider or to Alter or Amend Judgment. III. Summary Judgment Standard This court must grant a motion for summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). If the moving party carries its burden of showing that there is an absence of evidence to support a claim, then the non-moving party must demonstrate by affidavit, depositions, answers to interrogatories, and admissions on file that there is a genuine issue of material fact for trial. See Celotex Corp., 477 U.S. at 324-25, 106 S.Ct. 2548. An issue of fact is “genuine” when 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, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “material” only if establishment of the fact might affect the outcome of the lawsuit under the governing substantive law. Id. When determining whether there is an issue for trial, the court must view the inferences to be drawn from the underlying facts in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.1991). IV. Law/Analysis A. Motion for Summary Judgment Defendant has moved for summary judgment" }, { "docid": "21581034", "title": "", "text": "and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant'is entitled to judgment as a matter of law.” Fed. R. Civ. P. ■ 56(c). Material facts are those necessary to establish the elements of a party’s cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the initial burden of showing — “that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Fed. R. Civ. P. 56(c); id. at 322-23, 106 S.Ct. 2548. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find' in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991). Conversely, summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. III. Discussion A. With the exception of the malicious prosecution claim set forth in Count Seven and two of the four infliction of emotional distress claims in Counts Three and Four, each of Weigle’s claims relates either directly or indirectly to .the force employed by the officers during his arrest. The officers have asserted qualified immunity with respect to Weigle’s Section 1983 claims and analogous state law statutory immunity with respect his state law claims. “Because qualified immunity is ‘an immunity from suit rather" }, { "docid": "12402187", "title": "", "text": "R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139,141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1282 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In Celotex Corp., the Supreme Court stated: In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the “pleadings, depositions, answers to interrogatories, and" }, { "docid": "19344971", "title": "", "text": "simple forever, but subject to be held, used and disposed of as a part of the receivership estate as aforesaid. Id. (emphasis added); see also id. Tab 12. Ultimately, Bird Bay obtained the property adjacent to the railroad corridor at issue here. See Jt. Chain of Title, Tabs 18-33. Discussion Summary Judgment Standard Summary judgment is appropriate where the evidence 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.” Rule 56(c)(1) of the Rules of the United States Court of Federal Claims (“RCFC”); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue is one that “may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. A fact is material if it “might affect the outcome of the suit.” Id. at 248, 106 S.Ct. 2505. The moving party bears the burden of establishing the absence of any material fact, and any doubt over factual issues will be resolved in favor of the non-moving party. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) and SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1116 (Fed.Cir.1985)). Once this burden is met, the onus shifts to the non-movant to point to sufficient evidence to show a dispute over a material fact that would allow a reasonable finder of fact to rule in its favor. Liberty Lobby, 477 U.S. at 256, 106 S.Ct. 2505. A court does not weigh each side’s evidence when considering a motion for summary judgment, but “ ‘the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Diebold, 369 U.S. at 655, 82 S.Ct. 993). When opposing parties" } ]

[ { "docid": "22870941", "title": "", "text": "in a position to overcome the presumption by proof that he did not serve in the foreign army.” This argument obviously begs the question whether § 401(c) is applicable to a case of involuntary conscription into the foreign army. Section 402 creates only a rebuttable presumption, and it does not enlarge the content of § 401(c). Furthermore, the language of § 402 — “shall be presumed to have expatriated himself under subsection (c) or (d) of section 401” — furnishes strong support for our interpretation of § 401(c). To “expatriate” oneself clearly implies voluntary action. “Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.” Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320. In this case Camara certainly overcame any presumption that he had voluntarily renounced or abandoned his American nationality and allegiance. Giving full weight to the government’s contentions, it certainly cannot be said that the interpretation of § 401(c) urged by the government is the only permissible one in view of the statutory language in the context of its legislative history. We repeat the admonition of Perkins v. Elg, supra, at page 337 of 307 U.S., at page 891 of 59 S.Ct., 83 L.Ed. 1320: “Rights of citizenship are not to be destroyed by an ambiguity.” The interpretation we have been constrained to adopt avoids the necessity of passing on the pow er of Congress to deprive a native-born American citizen of bis nationality under the circumstances here presented. The petition for rehearing is denied." } ]

[ { "docid": "15533736", "title": "", "text": "the land. United States Constitution, Article III, Sec. 3, provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * * ” Title 18 U.S.C.A. § 1, Act of March 4, 1909, c. 321, § 1, 35 Stat. 1088, as it stood at the time of the alleged overt acts, provided: “Whoever, owing allegiamce to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.” [Emphasis ours] By definition, the crime of treason can only be committed by one owing allegiance to the United States. It is appellant’s contention that at the time the acts charged in the indictment were committed, he did not owe allegiance to the United States because, as a dual American and Japanese citizen, he owed allegiance to Japan alone while in that country. According to appellant’s reasoning, in his brief, under his dual citizenship he could adhere to the enemy and give it aid and comfort while in the enemy country with impunity. As we shall presently show, dual citizenship does nothing to relieve an American citizen of his citizenship obligations. An American citizen retains that status until expatriated under American law and he is subject to trial and punishment for treason. It is also contended that, having been a Japanese national from birth, Ka-wakita’s act of registration in the family census register, and his other activities during the war, amounted to expatriation from United States citizenship. Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. In order to be relieved of the duties of allegiance, consent of the sovereign is required. Mackenzie v. Hare, 1915, 239 U. S. 299, 36 S.Ct. 106, 60 L.Ed. 297. Congress has provided that the right of expatriation is a natural and inherent right of all people, and has further made a legislative declaration as to what acts shall amount to" }, { "docid": "15533741", "title": "", "text": "Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles * * This quotation indicates three ways by which, at the time it was written, expatria tion or loss of citizenship could occur: (1) through operation of a treaty; (2) through congressional enactment; (3) through voluntary action in conformity with applicable legal principles. It is not contended nor are we aware of •any treaty between Japan and the United States which would have application to this particular issue. See Title 8 U.S.C.A. § 810. The reference to a third means of expatriation is foreclosed by the provision in the Nationality Act of 1940, enacted since Perkins v. Elg was written, providing that the means therein provided shall be exclusive. See Title 8 U.S.C.A. § 808, set out in footnote 9, supra. Thus, Ka-wakita’s alleged loss of United States 'citizenship could only be claimed by virtue of some free and voluntary act on his part which, by the Congressional Act, would be ground for expatriation. In Savorgnam v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, it was held that a native born American citizen who voluntarily obtained Italian citizenship through naturalization in accordance with Italian law, had expatriated herself under the laws of the United States, but acts which would seemingly expatriate under the Nationality Act of 1940 have been held not to have such effect where the element of duress or lack of free choice existed. In Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, we upheld a judgment cancelling the renunciation of citizenship by American born persons of Japanese descent, made while they were incarcerated pursuant to civilian exclusion orders issued during World" }, { "docid": "3438856", "title": "", "text": "of the student age and they feared the Germans would take them. That the husband’s decision to ask for Danish citizenship was made upon the advice of Danish officials and because he felt it would be of protection to them and their children in the situation in which they then found themselves because of the war. Plaintiff testified that she took no oath of allegiance to Denmark, and performed no acts which she believed would indicate that she intended to become a citizen of Denmark. No affirmative act was shown to have been performed by her indicating that she voluntarily and willingly renounced her American citizenship. The Secretary of State cites the case of Bauer v. Clark, 7 Cir., 161 F.2d 397, where Bauer lost his American citizenship by taking an oath of allegiance to Germany. In that case it was shown that Bauer deliberately went to Germany intending to remain there; that he joined the German army, and subsequently returned to the United States as a German spy. In the instant case everything done by petitioner was done under the compulsion of fear for the safety of herself, her husband and their children, and in the interest of preserving their very lives when they found themselves during World War II in a country occupied by and virtually in command of the Germans. I do not believe that this is the free and voluntary renunciation of plaintiff’s American citizenship which I think the statute contemplates. In the case of Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 889, 83 L.Ed. 1320, involving the citizenship of a child born in the United States and taken during his minority to the country of his parents’ origin, and upon attaining his majority electing to retain his American citizenship, the Supreme Court thus defines expiration: “Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.” In her testimony petitioner says she took no oath of allegiance to Denmark and that she never intended to renounce her American citizenship, and that it was her understanding that only her husband and the children were" }, { "docid": "8187022", "title": "", "text": "of the United States * * * shall lose his nationality by * * As a result the conclusion was reached that “a person can lose his American nationality by any of the means mentioned in Section 401, whether such act or acts be voluntary or involuntary.” That decision involved subsection (c) which provides for loss of American nationality by a United States national “Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the; laws of the United States, * * *.” The Circuit Court of Appeals for the First Circuit in reversing the court below held that “the correct view” is that Section 401 (c), properly construed, is to be limited to cases where the induction into the foreign military service may be said to have been voluntary. 161 F.2d 860, 861. Attorney General of the United States v. Ricketts, 9 Cir., 165 F.2d 193, 194, was a suit to obtain a judgment declaring plaintiff to be a national of the United States. Subsection (a) was urged against the application. The District Court, upholding plaintiff’s contention, found that he “did not by his own voluntary act expatriate himself, but to the contrary has continuously asserted his claim of United States citizenship.” On appeal, in affirming the district judge, the court said, “The decisive question here is whether there is substantial evidentiary support for the finding quoted above, namely, that appellee did not by his own voluntary act expatriate himself. The Attorney General insists that prior to appellee’s entry into the United States for permanent residence he was shown to have elected to become a Canadian national.” There are two district court decisions involving facts comparable to the matter before us, Dubonnet v. Marshall, D.C.D.C. 80 F.Supp. 905 and Schioler v. United States, D.C.N.D.Ill., 75 F.Supp. 353, 355. In the Dubonnet case plaintiff’s action was also under Section 903. She alleged she was an American born United States citizen who had married in France in 1937. In 1939 her husband enlisted and served with the French Air Force until the surrender of France in" }, { "docid": "15533744", "title": "", "text": "in Japan, and following his graduation from high school in 1939, went to Japan to further his education. Prior to leaving the United States' he officially renounced his Japanese nationality. He, like Kawakita, attended Meiji University and graduated in September, 1943. When the war came on, funds from his parents in the United States ceased and he was required to find employment. He was informed that he could secure no employment unless he recovered his Japanese nationality. He made application for such recovery and upon its being granted, had his name entered upon the Family Register. He then procured employment as an interpreter at the Oeyama Nickel Industry Company, Ltd., where he remained until VJ day. Unlike Kawakita, it appears that Fujizawa assisted the American prisoners in many ways by obtaining for them medical supplies and food. In 1947 Fujizawa applied to the United States consulate in Japan to be reinstated as a United States citizen, and his application being denied, he brought an action in the United States district court to establish his claim to United States citizenship. The government contended that Fuj-izawa lost his United States citizenship since his petition for restoration of Japanese citizenship was “ * * * Obtaining naturalization in a foreign state * * * ”, within the meaning of Section 801(a), of Title 8 U.S.C.A. The district court, stressing the principle that acts on their faces tending toward expatriation must be free and voluntary, held that Fujizawa had no intent to renounce his United States citizenship. Meiji Fujizawa v. Acheson, D.C.Cal. 1949, 85 F.Supp. 674. There was no appeal. There is nothing in the Fujizawa case which supports the theory that Kawakita’s act of entering his name on the Family Register accomplished his expatriation. The evidence is quite clear that he had no thought that it did either when he acted to have his name entered or after-wards. In leaving the country of his birth, Kawakita’s purpose was to visit his aged grandfather in Japan. There he remained to prepare himself for the export-import business in the United States. After entering the University" }, { "docid": "3395853", "title": "", "text": "intend to do anything which would result in the loss or forfeiture of his United States citizenship and nationality. Upon these grounds, he instituted, on December 6, 1948, the present action against the Secretary of State, under Section 503 of the United States Nationality Code, 8 U.S.C.A. § 903. The answer of the Government challenges the assertions of the plaintiff, except that it admits his birth in the United States, and departure to Japan, while a child of tender age. The entire controversy, therefore, centers around the participation by the plaintiff in the Japanese general election of 1947, at which time, although under age, the plaintiff, under the rules laid down by the Supreme Commander Allied Powers (SCAP), was permitted to vote. See, Miranda v. Clark, 9 Cir., 1950, 180 F.2d 257. And the ultimate question is: Did the plaintiff by this act expatriate himself ? II What is a “Foreign State” ? To achieve expatriation by any of the means provided in 'Section 802, 8 U.S.C.A., the act must be voluntary. “To ‘expatriate’ oneself clearly implies voluntary action.” Dos Reis ex rel. Ca-mara v. Nicolls, 1947, 1 Cir., 161 F.2d 860, 868. “Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application to the removal from this country of a native citizen during minority. In such a case, the voluntary action which is of the essence of the right of expatriation is lacking.” Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320. And see, Attorney General of United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193, 195. We are to determine the meaning and effect of the participation of the plaintiff in the Japanese election of 1947, at which the voters of occupied Japan voted for Members of the House of Representatives, members of prefectural and village assemblies, as well as for local prefectural and village heads, in the light of the provisions of Subdivision (e) of Section 801 of Title 8 U.S.C.A., which enumerates as one of the actions from which a presumption of loss of" }, { "docid": "15533737", "title": "", "text": "to the enemy and give it aid and comfort while in the enemy country with impunity. As we shall presently show, dual citizenship does nothing to relieve an American citizen of his citizenship obligations. An American citizen retains that status until expatriated under American law and he is subject to trial and punishment for treason. It is also contended that, having been a Japanese national from birth, Ka-wakita’s act of registration in the family census register, and his other activities during the war, amounted to expatriation from United States citizenship. Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. In order to be relieved of the duties of allegiance, consent of the sovereign is required. Mackenzie v. Hare, 1915, 239 U. S. 299, 36 S.Ct. 106, 60 L.Ed. 297. Congress has provided that the right of expatriation is a natural and inherent right of all people, and has further made a legislative declaration as to what acts shall amount to an exercise of such right. The enumerated methods set out in the chapter are ex pressly made the sole means of expatriation. The jury was instructed on the applicable law of expatriation and that if appellant were no longer a citizen of the United States he could not be found guilty of treason. The court went further and instructed the jury that if it found appellant believed he was not a United States citizen it should acquit as intent would then be lacking. The verdict indicates that all of these issues were resolved against appellant. The contention that a conviction of treason must be reversed because the accused did not owe allegiance to the United States was made in Gillars v. United States, D.C.Cir., 1950, 182 F.2d 962. There, defendant was convicted of treason against the United States, committed while in Germany during World War II, for conduct consisting of taking part in psychological warfare against the United States through participating in the recording of radio drama. The argument was advanced, inter alia, that defendant" }, { "docid": "598987", "title": "", "text": "1940. Section 801 provides that a person who- is a national of the United States whether by birth or naturalization, shall lose his nationality by: (e) “Voting in a political election in a foreign state * * *y> Section 803(b) provides: “No national under eighteen years of age can expatriate himself under subsections (b) to (g), inclusive, of section 801.” In our view, the statutory provisions above noted leave no doubt that Congress thereby removed, and intended to remove, the barrier to a voluntary expatria tion by a national who is over the age of eighteen years. After arriving at that age a voluntary act of expatriation binds him, sec. 803(b). Any other -construction of the language of the Act (as applied to the situation in the case at bar) would amount to an amendment of the Act by judicial interpretation and import into- it obscurities which we believe would thwart a clearly expressed Congressional will. The provisions of law we have quoted do not result in the rights of citizenship being “destroyed by ambiguity” because that sort of vice is not present in these plain and simple provisions of the 1940 law. They bind the courts unless it can be said that they are clearly unconstitutional, a conclusion without rational foundation. Appellant summarizes his argument as follows: “A person born in the United States and taken during his minority to the country of his parents’ origin and who became subject to a dual nationality, does not lose his citizenship in the United States by voting in a contested local political election during his minority, if on attaining majority he elects to return to- the United States, assume his obligations and retain his American citizenship.” In support of his contentions appellant relies o-n four cases — Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Attorney General etc. v. Ricketts, 9 Cir., 165 F.2d 193; Inouye et al. v. Clark et al., D.C., 73 F.Supp. 1000, and United States ex rel. Baglivo v. Day, D.C.S.D.,N.Y., 28 F.2d 44. It is to be noted that in each of" }, { "docid": "15533745", "title": "", "text": "to United States citizenship. The government contended that Fuj-izawa lost his United States citizenship since his petition for restoration of Japanese citizenship was “ * * * Obtaining naturalization in a foreign state * * * ”, within the meaning of Section 801(a), of Title 8 U.S.C.A. The district court, stressing the principle that acts on their faces tending toward expatriation must be free and voluntary, held that Fujizawa had no intent to renounce his United States citizenship. Meiji Fujizawa v. Acheson, D.C.Cal. 1949, 85 F.Supp. 674. There was no appeal. There is nothing in the Fujizawa case which supports the theory that Kawakita’s act of entering his name on the Family Register accomplished his expatriation. The evidence is quite clear that he had no thought that it did either when he acted to have his name entered or after-wards. In leaving the country of his birth, Kawakita’s purpose was to visit his aged grandfather in Japan. There he remained to prepare himself for the export-import business in the United States. After entering the University in Japan, he again swore allegiance to the United States when he renewed his United States passport in 1941, and claimed citizenship in the United States when the war was over. We hold that there was evidence in the case justifying the jury finding that Kawakita was a citizen of the United States owing allegiance to the United States during the period in suit. III. Did Kawakita Adhere to the Enemy? Kawakita is not -charged with levying war against the United States. The acts found to have been committed are said to be acts showing adherence to the enemy, giving them aid and comfort. In Cramer v. United States, 1944, 325 U.S. 1, at page 28, 65 S.Ct. 918, 932, 89 L.Ed. 1441, the court stated: “Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one’s own king by forming an attachment to his enemy. Its scope was -comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the foe, or merely lack" }, { "docid": "3395869", "title": "", "text": "force on him. He was not denying duress as recognized in our law. If physical force were necessary to prove the act to be involuntary, the conclusion would be unavoidable that there was none. But our Court of Appeals in Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, and other courts have held that there may be a type of public coercion which renders an act involuntary, although it does not stem from the use of force. See, Fujizawa v. Acheson, D.C.Calif., 1949, 85 F.Supp. 674. The dividing line between voluntary action and coercion is not always easy to draw. However, the Court of Appeals for the Third Circuit has indicated how it is to be done: “If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the sine qua non of expatriation is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to be manifesting an intention of renouncing his country. On the other hand it is just as certain that the forsaking of American citizenship, even in a difficult situation, as a matter of expediency, with attempted excuse of such conduct later when crass material con siderations suggest that course, is not duress.” Doreau v. Marshall, 3 Cir., 1948, 170 F.2d 721, 724. In the present case, the testimony of the plaintiff is that the constant reiteration through newspapers and over the radio, and by friends and advisers of the importance of voting and the need for voting was taken by him as “a command” on the part of General MacArthur and the Occupation Forces to vote, which he could not, with impunity, disobey. Indeed, he testified that, in addition to this, he was led to believe that if he did not vote, he would lose his food ration card. The essential foods on which the Japanese diet is based, — rice, soy, sugar, and the like, — ■ were on the ration list. It is inconceivable" }, { "docid": "14556040", "title": "", "text": "taken, was prior to January 13, 1941, but the military service continued beyond that date. In the application of either act, however, certain fundamental principles apply. If the overt acts constituting renunciation were freely and voluntarily done, the person is bound by whatever the legal consequences of those acts may be and the undisclosed intent of the party is immaterial. But where such act is involuntary or under duress, it does not result in a loss of American nationality. Plaintiff’s induction into the Italian Army was clearly compulsory and did not involve the exercise of his free will. Having found that he did not take the oath of allegiance, discussion as to what would constitute an involuntary oath is not pertinent. Plaintiff, a native born American national, did not therefore voluntarily commit any act constituting a renunciation of his citizenship. A decree will be entered accordingly. . Since he did not attain his majority until shortly before his induction into the Army in 1935, prior to the Nationality Act of 1940, 8 U.S.C.A. § 501 et seq., the rule stated in United States ex rel. Baglivo v. Day, D.C.S.D.N.Y., 28 F.2d 44 is applicable. Cf. Miranda v. Clark, 9 Cir., 180 F.2d 257. . Born in Edenboro, Pennsylvania, June 14, 1916. . Savorgnan v. United States, 338 U.S. 491, 503, 70 S.Ct. 292, 94 L.Ed. 287. . The changes in the law with reference to minors are not involved since plaintiff was 21 on February 10,1935, prior to his induction. . Doreau v. Marshall, 3 Cir., 170 F.2d 721; Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; Perkins, Secretary of Labor, v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; In re Gogal, D.C.W.D.Pa., 75 F.Supp. 268. . There is no record of the Italian Army showing any oath of allegiance taken by plaintiff. The only basis for the charge that an oath was taken is a statement to that effect in an affidavit accompanying the application for registration as an" }, { "docid": "5657156", "title": "", "text": "give up his United States citizenship in favor of Mexican citizenship. In support of this argument, defendant contends that in Mandoli v. Acheson, 1952, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146, the Court held that one who is born in this country cannot elect to give up his citizenship, thus overruling Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. There is no merit in this contention. Perkins v. Elg held that one who is born in the United States, lives abroad during his minority, and has dual citizenship by virtue of the place of his birth and the citizenship of his parents, may elect to remain a citizen of the United States upon reaching majority. Mandoli v. Acheson qualified this rule by holding that one with dual citizenship will not lose his American citizenship by merely failing to elect. But it is still the law that one born in the United States with dual citizenship may, by his acts, give up his American citizenship, if such acts are voluntarily done after reaching majority. 8 U.S.C.A. § 1481; Mandoli v. Acheson, supra, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146; Takehara v. Dulles, 9 Cir., 1953, 205 F.2d 560, 562; Longobardi v. Dulles, 1953, 92 U.S.App.D.C. 263, 204 F.2d 407, 408-409; cf. Kawakita v. United States, 1952, 343 U. S. 717, 722-727, 72 S.Ct. 950, 96 L.Ed. 1249; Hichino Uyeno v. Acheson, D.C. W.D.Wash.1951, 96 F.Supp. 510, 513-514. There was no error of law in the 1943 determination of defendant’s status as that of an alien. Accordingly, defendant’s motion to strike the evidence of the adjudication of his status as an alien in the 1943 proceeding is hereby denied. However, as already observed, the pri- or adjudication is conclusive of defendant’s status as an alien as of June 9, 1943, only. The next question then is whether the defendant’s nationality status continued to be that of an alien after the 1943 adjudication. To deal with this, question of the continuance of that status in the interim to date, the rule of evidence as" }, { "docid": "9672380", "title": "", "text": "selective service form, made out in Spokane while appellee was under arrest by the Service and was being threatened with deportation. On the other side there is testimony of numerous witnesses in support of the court’s finding that appellee has continuously asserted his claim of United States citizenship. His persistence in returning to this country and his long residence here, on an apparently permanent basis, are facts tending further to negative the thought that he had voluntarily expatriated himself. It is undeniable that his conduct was equivocal, but not more so, perhaps, than was his status. By virtue of his American birth and the later naturalization of his father in Canada he was at once a citizen of the United States and a Canadian national. His American citizenship is deemed to continue unless he has been deprived of it through the operation of a treaty or congressional enactment, or by his “voluntary action in conformity with applicable legal principles.” Perkins v. Elg, supra, 307 U.S. page 329, 59 S.Ct. page 887, 83 L.Ed. 1320. The proviso does not undertake to specify what voluntary act or acts will amount to an expatriation. In that respect the framers of the legislation seem to have been content to follow the not very precise verbiage of Chief Justice Hughes in Perkins v. Elg. The departmental decisions bearing on the subject, so far, at least, as they have been called to our notice, are neither consistent nor particularly persuasive. In considering cases affected by the statutory proviso we must remember that Congress intended to extend liberal treatment to those of dual nationality regardless of their age at the time of the Act’s passage or the length of their prior residence abroad. Being remedial, the proviso is entitled to a liberal construction. It is not our function to weigh the evidence or to determine questions of credibility. The findings below are not clearly erroneous and they support the judgment. Affirmed. The action is authorized by 8 U.S.C.A. § 903. Section 401 of the Act does enumerate certain conduct which shall result in the loss of nationality," }, { "docid": "23148277", "title": "", "text": "is not a national of the United States, such person, regardless of whether he' is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to a national of the United States. * * * » Nothing in the above text suggests that the “action * * * for a judgment declaring him to be a national” is to succeed some prior administrative proceeding. This section is largely invoked where there has been no administrative proceeding at all. Such is the case where the Department of State refuses to give a passport, Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Podea v. Acheson, 2 Cir., 179 F.2d 306; or where a consul refuses to register a person as a United States national, Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741; of refuses to allow a person claiming American citizenship to come to this country, Acheson v. Yee King Gee, 9 Cir., 184 F.2d 382; or where American citizens acting under claimed duress have filed with the Attorney General notices of their renunciation of citizenship and then later seek to have them set aside, McGrath v. Tadayasu Abo, 9 Cir., 186 F.2d 766. In none of the above cases is the § 903 action a trial de novo. There has not been anything tried by the Department of State or of Justice to be tried again as on appeal or review. We do not think the independence of the 903 action is lost in other cases where the denial of the “right or privilege” is preceded by a hearing at which findings are made and a decision reached. The right to citizenship is a priceless thing and Congress in enacting § 903 in 1940 well could have decided that citizenship should not be denied one possessing it, by an administrative" }, { "docid": "8465369", "title": "", "text": "Gilroy, D.C.N.Y., 1919, 257 F. 110, 116. It is equally beyond dispute that he retained that status and was recognized as an American citizen during the following twenty-five years and more — until his father’s citizenship was cancelled in 1929. It is also conceded that the father’s certificate was not cancelled by reason of any actual fraud, which would have rendered his naturalization a nullity. Cf. Rosenberg v. United States, 3 Cir., 1932, 60 F.2d 475. Since the age of twenty Jack Bolter has claimed and exercised the rights of an American citizen. It is now contended that he should be deprived of that status solely because, when he was a small boy, his father departed this country and thereby suffered his own citizenship, to be can-celled. Precedent holds that when born an American citizen, a child does not ipso facto lose that status merely by reason of change in the status of the parents. Perkins v. Elg, 1938, 307 U.S. 325, 329, 344, 59 S.Ct. 884, 83 L.Ed. 1320; Haaland v. Attorney General, D.C.Md., 1941, 42 F. Supp. 13, 21; In re Findan, D.C.R.I., 1933, 4 F.Supp. 189-190. To paraphrase the language of Perkins v. Elg, supra, 307 U.S. 325 at page 329, 59 S.Ct. 884, 83 L.Ed. 1320: As at birth Jack Bolter became a citizen of the United States, that citizenship must be deemed to continue unless he has been deprived of it through the operation of a treaty or Congressional enactment or by his voluntary action in conformity with applicable legal principles. Cf. Schaufus v. Attorney General, D.C.Md., 1942, 45 F.Supp. 61. Obvious considerations would seem to call for an unequivocal expression if Congress desires to legislate a different result. For the reasons stated I find that at the time of petitioner’s marriage to Jack Bolter in 1930 he was a citizen of the United States. The petition of Hannah Bolter is granted. ." }, { "docid": "598988", "title": "", "text": "because that sort of vice is not present in these plain and simple provisions of the 1940 law. They bind the courts unless it can be said that they are clearly unconstitutional, a conclusion without rational foundation. Appellant summarizes his argument as follows: “A person born in the United States and taken during his minority to the country of his parents’ origin and who became subject to a dual nationality, does not lose his citizenship in the United States by voting in a contested local political election during his minority, if on attaining majority he elects to return to- the United States, assume his obligations and retain his American citizenship.” In support of his contentions appellant relies o-n four cases — Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Attorney General etc. v. Ricketts, 9 Cir., 165 F.2d 193; Inouye et al. v. Clark et al., D.C., 73 F.Supp. 1000, and United States ex rel. Baglivo v. Day, D.C.S.D.,N.Y., 28 F.2d 44. It is to be noted that in each of these cases the fact situation with which they dealt was entirely different from that presented in the case at bar. With the exception of the Inouye case they are concerned with happenings and events which occurred prio-r to the enactment of the Nationality Act of 1940 which was designed to clarify the then existing law by clearly specifying a definite method of terminating dual citizenship and of electing United States nationality. A brief reference to our decision in the Ricketts’ case indicates that it dealt with rights and privileges which were not affected by the later enacted 1940 Nationality Act. (See our comment in note 2 of opinion.) As pointed out 'by the court in the Inouye case, 73 F.Supp. at page 1002, the principles applicable to a renunciation of citizenship by a Japanese of the age of seventeen years (where the statute is silent as to the age when a person may make such a renunciation) are not applicable where the statute specifically provides that a national who has reached the age of eighteen" }, { "docid": "3395868", "title": "", "text": "and to perform their duties. IV The Participation of the Plaintiff Was Involuntary This conclusion calls for a consideration of the final ground on which the refusal of the passport is defended, namely, that the participation of the plaintiff in the election was voluntary. This is purely a question of fact. The plaintiff was before the court and testified at length about the circumstances under which he was coerced into voting. The Government, as a part of its case, presented certain declarations of his, which, it is insisted, contradict his present contention that his vote was involuntary. I believe the entire stress of the Government lies in the fact that the plaintiff, while saying in these statements made in Japan, that he was obliged to vote, he elsewhere states that he was not forced. There is no indication that, in the original Japanese, there is any greater distinction between the words than in their English equivalents. The plaintiff, in the explanation he gave, showed clearly that what he was denying was the use of physical force on him. He was not denying duress as recognized in our law. If physical force were necessary to prove the act to be involuntary, the conclusion would be unavoidable that there was none. But our Court of Appeals in Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, and other courts have held that there may be a type of public coercion which renders an act involuntary, although it does not stem from the use of force. See, Fujizawa v. Acheson, D.C.Calif., 1949, 85 F.Supp. 674. The dividing line between voluntary action and coercion is not always easy to draw. However, the Court of Appeals for the Third Circuit has indicated how it is to be done: “If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the sine qua non of expatriation is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to" }, { "docid": "15533742", "title": "", "text": "Perkins v. Elg was written, providing that the means therein provided shall be exclusive. See Title 8 U.S.C.A. § 808, set out in footnote 9, supra. Thus, Ka-wakita’s alleged loss of United States 'citizenship could only be claimed by virtue of some free and voluntary act on his part which, by the Congressional Act, would be ground for expatriation. In Savorgnam v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, it was held that a native born American citizen who voluntarily obtained Italian citizenship through naturalization in accordance with Italian law, had expatriated herself under the laws of the United States, but acts which would seemingly expatriate under the Nationality Act of 1940 have been held not to have such effect where the element of duress or lack of free choice existed. In Acheson v. Murakami, 9 Cir., 1949, 176 F.2d 953, we upheld a judgment cancelling the renunciation of citizenship by American born persons of Japanese descent, made while they were incarcerated pursuant to civilian exclusion orders issued during World War II. See Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. The renunciations not being given as a result of free and intelligent choice, but rather because of mental fear, intimidation and coercion, they were held void and of no effect. See Attorney General of the United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193. Voting in a Japanese election, and service in the Japanese army, acts falling within paragraphs (c) and (e) of Section 401 of the Nationality Act of 1940, have been held not to expatriate where the acts were done under duress. Hatsuye Ouye v. Acheson, D.C.Hawaii, 1950, 91 F.Supp. 129; Etsuko Arikawa v. Acheson, D.C.Cal.1949, 83 F.Supp. 473; Yoshiro Shibata v. Acheson, D.C.Cal.1949, 86 F.Supp. 1; see In re Gogal, D.C.Penn.1947, 75 F.Supp. 268. Meiji Fujizawa, who testified at the appellant’s trial, was a childhood friend of the appellant. Though his case closely parallels Kawakita’s in some instances there are differences. Fujizawa was born in Imperial County, California, of parents who were bom" }, { "docid": "5657155", "title": "", "text": "any prior proceedings carefully examined in order to determine surely whether a prior adjudication of alienage was made after a full and adequate hearing, and was essential to a determination of the case. But where, as here, the issue has been fully and fairly litigated and a finding made which was necessary to a final determination of the prior proceeding, the status of defendant as an alien as of the date of such determination is conclusive in this subsequent case. The defendant advances the further contention that the 1943 proceeding should not be permitted to work a collateral estoppel on the issue as to his alienage because, the argument goes, the 1943 adjudication was based on a claimed error of law in that the decision then relied upon by this court was later overruled. More particularly, defendant urges that the 1943 finding was based upon one of two possible grounds: either (1) that he was not born in the United States; or (2) that, though born in this country, he elected by his acts to give up his United States citizenship in favor of Mexican citizenship. In support of this argument, defendant contends that in Mandoli v. Acheson, 1952, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146, the Court held that one who is born in this country cannot elect to give up his citizenship, thus overruling Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. There is no merit in this contention. Perkins v. Elg held that one who is born in the United States, lives abroad during his minority, and has dual citizenship by virtue of the place of his birth and the citizenship of his parents, may elect to remain a citizen of the United States upon reaching majority. Mandoli v. Acheson qualified this rule by holding that one with dual citizenship will not lose his American citizenship by merely failing to elect. But it is still the law that one born in the United States with dual citizenship may, by his acts, give up his American citizenship, if such acts are" }, { "docid": "15533743", "title": "", "text": "War II. See Kiyoshi Hirabayashi v. United States, 1942, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. The renunciations not being given as a result of free and intelligent choice, but rather because of mental fear, intimidation and coercion, they were held void and of no effect. See Attorney General of the United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193. Voting in a Japanese election, and service in the Japanese army, acts falling within paragraphs (c) and (e) of Section 401 of the Nationality Act of 1940, have been held not to expatriate where the acts were done under duress. Hatsuye Ouye v. Acheson, D.C.Hawaii, 1950, 91 F.Supp. 129; Etsuko Arikawa v. Acheson, D.C.Cal.1949, 83 F.Supp. 473; Yoshiro Shibata v. Acheson, D.C.Cal.1949, 86 F.Supp. 1; see In re Gogal, D.C.Penn.1947, 75 F.Supp. 268. Meiji Fujizawa, who testified at the appellant’s trial, was a childhood friend of the appellant. Though his case closely parallels Kawakita’s in some instances there are differences. Fujizawa was born in Imperial County, California, of parents who were bom in Japan, and following his graduation from high school in 1939, went to Japan to further his education. Prior to leaving the United States' he officially renounced his Japanese nationality. He, like Kawakita, attended Meiji University and graduated in September, 1943. When the war came on, funds from his parents in the United States ceased and he was required to find employment. He was informed that he could secure no employment unless he recovered his Japanese nationality. He made application for such recovery and upon its being granted, had his name entered upon the Family Register. He then procured employment as an interpreter at the Oeyama Nickel Industry Company, Ltd., where he remained until VJ day. Unlike Kawakita, it appears that Fujizawa assisted the American prisoners in many ways by obtaining for them medical supplies and food. In 1947 Fujizawa applied to the United States consulate in Japan to be reinstated as a United States citizen, and his application being denied, he brought an action in the United States district court to establish his claim" } ]

[ { "docid": "22613282", "title": "", "text": "Justice Marshall delivered the opinion of the Court. This case presents the issue whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause. I The dispute underlying this case grew out of a dealership agreement that obligated petitioner company, an Alabama corporation, to market copier products of respondent, a nationwide manufacturer with its principal place of business in New Jersey. The agreement contained a forum-selection clause providing that any dispute arising out of the contract could be brought only in a court located in Manhattan. Business relations between the parties soured under circumstances that are not relevant here. In September 1984, petitioner brought a complaint in the United States District Court for the Northern District of Alabama. The core of the complaint was an allegation that respondent had breached the dealership agreement, but petitioner also included claims for breach of warranty, fraud, and antitrust violations. Relying on the contractual forum-selection clause, respondent moved the District Court either to transfer the case to the Southern District of New York under 28 U. S. C. § 1404(a) or to dismiss the case for improper venue under 28 U. S. C. § 1406. The District Court denied the motion. Civ. Action No. 84-AR-2460-S (Jan. 29, 1985). It reasoned that the transfer motion was controlled by Alabama law and that Alabama looks unfavorably upon contractual forum-selection clauses. The court certified its ruling for interlocutory appeal, see 28 U. S. C. § 1292(b) (1982 ed., Supp. IV), and the Court of Appeals for the Eleventh Circuit accepted jurisdiction. On appeal, a divided panel of the Eleventh Circuit reversed the District Court. The panel concluded that questions of venue in diversity actions are governed by federal law, and that the parties’ forum-selection clause was enforceable as a matter of federal law. 779 F. 2d 643 (1986). The panel therefore reversed the order of the District Court and remanded with instructions to transfer the case to a Manhattan court. After petitioner successfully moved for rehearing en banc," } ]

[ { "docid": "23093356", "title": "", "text": "the continued propriety of the Bremen rule in diversity cases had been called into question by the Supreme Court’s decision in Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). As alternatives to the Bremen rule, Jones contends that either a broad discretionary standard under federal law similar to that set forth in Stewart or the standard provided by state law should control the enforceability of forum selection clauses in diversity cases. In Stewart, the Supreme Court was presented with the question whether state or federal law controlled the resolution of a motion to transfer an action pursuant to 28 U.S.C. § 1404(a) to the venue provided in a contractual forum selection clause. The forum selection clause at issue provided that any action arising out of the parties’ agreement would be brought in either state or federal court in Manhattan. 487 U.S. at 24 & n. 1, 108 S.Ct. at 2241 & n. 1. The Court held that federal law governed the disposition of a section 1404(a) motion. Id. at 32, 108 S.Ct. at 2245. Furthermore, it held that the presence of a forum selection clause was but one factor in the district court’s consideration of fairness and convenience under section 1404(a). Id. at 31, 108 S.Ct. at 2244. There is no basis, as Jones would have it, to import the discretionary federal standard of section 1404(a) discussed in Stewart to the instant cases. A motion to transfer an action to another federal district pursuant to section 1404(a) calls for an “ ‘individualized, case-by-case consideration of convenience and fairness.’ ” Id. at 29, 108 S.Ct. at 2243 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). The same broad-based balancing is not appropriate where, as here, a party seeks to have an action dismissed or remanded to state court, rather than transferred, on the basis of a forum selection clause that purports to preclude litigation from a venue other than a specific state court. Thus, the highly discretionary standard enunciated in Stewart is inapplicable to" }, { "docid": "15212839", "title": "", "text": "Court has determined that the Agreement’s forum-selection clause is valid and enforceable, it will next consider whether transferring this suit accords with the requirements set forth in 28 U.S.C. § 1404(a). Stewart, 487 U.S. at 32, 108 S.Ct. at 2245 (section 1404(a) provides the analytical framework for adjudicating a motion to transfer based on a forum-selection clause). B. Transferring Venue Pursuant to 28 U.S.C. § im(a) Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a) (1996). Under section 1404(a), a forum-selection clause is not to be given either “dispositive consideration” or “no consideration,” but it should be “a significant factor that figures centrally in the [Court’s] calculus.” Stewart, 487 U.S. at 29, 31, 108 S.Ct. at 2244. The plaintiffs bear the burden of demonstrating why they should not be bound by their contractual choice of forum provision when it is deemed valid. Carnival Cruise Lines, 499 U.S. at 595, 111 S.Ct. at 1528 (moving party bears a “heavy burden of proof’ of establishing the serious inconvenience of the contractual forum). The plaintiffs have not argued or offered any evidence showing that transferring this case would seriously inconvenience both the plaintiffs and their prospective witnesses. Even if they had proffered some evidence in this regard, the plaintiffs would have needed to demonstrate exceptional circumstances for this Court to have denied the transfer on the grounds of inconvenience. See Marklyn Controls Supply v. Pall Trinity Micro Corp., 862 F.Supp. 140, 141 (W.D.Tex.1994) (although it may be expensive and inconvenient to litigate this suit in another forum, the plaintiff should have considered this prior to entering into the contract); see also Huntingdon Eng’g & Envtl. Inc. v. Platinum Software Corp., 882 F.Supp. 54, 58 (W.D.N.Y.1995) (courts have noted that “ ‘[m]ere inconvenience and expense of traveling are not, standing alone, adequate reasons to disturb the parties’ contractual choice of forum.’” (citations omitted)). Moreover, the Court is not aware of any other factor" }, { "docid": "8166856", "title": "", "text": "of convenience and fairness,” including the convenience of the contractual forum and the relative bargaining power of the parties. Stewart, 487 U.S. 22, 29, 108 S.Ct. 2239, 2243-4 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). Under the Court’s analysis, the presence of a valid forum selection clause would not preclude the denial of a motion to transfer brought by a party seeking to enforce the clause. While the Court did not directly address the issue of the proper procedural vehicle for enforcing a forum selection clause, it appeared to have adopted the view that a valid forum selection clause does not render improper what would otherwise be a proper venue, although more by implication than by explicit statement. In a footnote, the Court observed that “[t]he parties do not dispute that the District Court properly denied the motion to dismiss for improper venue under 28 U.S.C. § 1406(a) because respondent does business in the Northern District of Alabama. See 28 U.S.C. § 1391(c) (venue proper in judicial district in which corporation is doing business).” Stewart, 487 U.S. at 28, n. 8,108 S.Ct. at 2243, n. 8. Accordingly, Stewart indicates that the proper procedure for enforcing a forum selection clause is through a motion to transfer pursuant to § 1404(a), which applies when venue is otherwise proper. See Crescent International, Inc. v. Avatar Communities, Inc. 857 F.2d 943, 944 (3d Cir.1988); David Taylor, The Forum Selection Clause: A Tale of Two Concepts, 66 TMPLR 785 at n. 259. , Thus the analysis of defendants’ motion would be relatively straightforward but for the Court’s decision in Carnival Cruise, handed down just three years later. In Carnival Cruise, the Court returned to the analysis used in The Bremen, this time to harsher effect, and left unclear the proper means for enforcing a forum selection ■ clause. In Carnival. Cruise, plaintiffs filed suit in federal district court in Washington, their home state, to recover for personal injuries sustained when one of the plaintiffs fell during a cruise on one of defendant’s ships while" }, { "docid": "22255569", "title": "", "text": "stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise its jurisdiction”). Instead, we hold that motions to dismiss upon the basis of choice-of-forum and choice-of-law clauses are properly brought pursuant to Fed.R.Civ.P. 12(b)(3) as motions to dismiss for improper venue. We are aware that the First Circuit has treated motions to dismiss upon the basis of forum selection clauses as Rule 12(b)(6) motions urging dismissal for failure to state a claim upon which relief can be granted. See Lambert v. Kysar, 983 F.2d 1110, 1112 n.l (1st Cir.1993); LFC Lessors, Inc. v. Pacific Sewer Maintenance, 739 F.2d 4, 6-7 (1st Cir.1984). Although we perceive no significant doctrinal error in that approach, we consider Rule 12(b)(3) a more appropriate vehicle through which to assert the motion to dismiss. We find support for this conclusion in the Supreme Court’s decision in Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 2245, 101 L.Ed.2d 22 (1988), in which the Court held that 28 U.S.C. § 1404(a), which vests in the district court discretion to transfer a civil action to “any other district or division where it might have been brought,” controls the request of a party in a diversity suit to give effect to a contractual forum-selection clause by transferring the action. Although the Supreme Court did not decide the precise question presented in the case before us, the Court’s conclusion that the federal transfer-of-venue statute governs district court decisions in enforcing forum-selection clauses provides support for our view that motions to dismiss based upon forum-selection clauses are cognizable as motions to dismiss for improper venue. See 487 U.S. at 29-30, 108 S.Ct. at 2244 (“The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”) (emphasis added); see also 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (2d ed. 1986 & Supp. 1998) (discussing forum-selection clauses as “Contractual Modification” of venue). Although ordinarily we review “the dismissal" }, { "docid": "13646193", "title": "", "text": "a “significant” or “substantial” factor. Stewart, 487 U.S. at 30-31,108 S.Ct. at 2244-45; Jumara, 55 F.3d at 880; Brock, 933 F.2d at 1257-58 (quoting Stewart, 487 U.S. at 30- 31, 108 S.Ct. at 2244-45 as stating forum selection clause is a “significant factor that figures centrally in the district court’s calculus”); Moses, 929 F.2d at 1136; Sunshine Beauty Supplies, Inc. v. U.S. Dist. Ct., 872 F.2d 310, 311 (9th Cir.1989) (district court erred by failing to consider the forum selection clause at all in transfer analysis). An examination of judicial decisions, beginning with the Supreme Court’s decision in Stewart, will clarify when a forum selection clause matters and just how significantly. i. Stewart and its progeny. In Stewart, the Supreme Court stated that “[t]he presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court’s calculus” under § 1404(a). Stewart, 487 U.S. at 29, 108 S.Ct. at 2244; Brock, 933 F.2d at 1257 (“In Stewart, the Supreme Court addressed the issue of how a motion for transfer under § 1404 interplays with a contractual forum-selection clause.”). Therefore, in Stewart, the Supreme Court directed the district court to engage in a case-specific balancing of the forum selection clause against other factors under § 1404(a) to determine whether to give the clause effect by transferring the litigation to the forum specified in the clause: la its resolution of the § 1404(a) motion in this case, for example, the District Court will be called on to address such issues as the convenience of a Manhattan forum given the parties’ expressed preference for that venue, and the fairness of transfer in light of the forum-selection clause and the parties’ relative bargaining power. The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences. Stewart, 487 U.S. at 29-30,108 S.Ct. at 2244. Thus, the Supreme Court concluded, The forum-selection clause, which represents the parties’ agreement as to the most proper forum, should receive neither dis-positive consideration (as respondent might" }, { "docid": "19823481", "title": "", "text": "108 S.Ct. at 2242 n. 3. In Stewart, which involved a transfer under 28 U.S.C. § 1404(a), jurisdiction was based both on a federal question arising out of a federal anti-trust claim and on diversity. See id. The Supreme Court concluded that because federal law governed the transfer issue in the state law claim and because the presence of a federal question would only support the application of federal law, it was not necessary to decide whether the existence of a dual bases for jurisdiction would alter the analysis of which law to apply. See id. In the present case, the Court finds that, similarly, such a decision of this issue is unnecessary because federal law on forum selection clauses applies with regard to the Puerto Rico law claims. See also Sun World, 801 F.2d at 1068-69 (Where federal juris diction could be based both upon admiralty jurisdiction or diversity jurisdiction, federal common law was-applied). . In a motion to transfer pursuant to 28 U.S.C. § 1404(a), a district court does not apply the Bremen rule to forum selection clauses. In such a motion, a forum selection clause constitutes \"a significant factor that figures centrally in the district court’s calculus.” Stewart, 487 U.S. at 29, 108 S.Ct. at 2244; Royal Bed, 906 F.2d at 51. Additionally, the Court must consider the convenience to the witnesses, as well as public and private interests that are included in the rubric of \"the interest of justice.” Stewart, 487 U.S. at 30, 108 S.Ct. at 2244, In the case before the Court, Magnadyne has filed a motion to dismiss, not a motion to transfer. In a motion to dismiss based on a forum selection clause, the court should apply the standard set forth in Bremen, not the less stringent standard in Stewart. International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112, 114-15 (5th Cir.1996); Jones, 901 F.2d at 19; Manetti-Farrow, 858 F.2d at 512 n. 2 (Holding that Stewart was inapplicable to a case involving a motion to dismiss); Frediani, 870 F.Supp. at 219. Because Magnadyne has filed a motion to dismiss, the" }, { "docid": "6909502", "title": "", "text": "be dismissed for improper venue, it does not, for the reasons explained below, prevent the Court from considering this motion for a change of venue. The motion is brought under 28 U.S.C. § 1404, which provides, “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have -been brought.” 28 U.S.C. § 1404(a). Plaintiff, opposing transfer, makes much of cases, such as Leasing Service Corp. v. Patterson Enterprises, Ltd., 633 F.Supp. 282 (S.D.N.Y.1986), ’that suggest there is a “waiver of § 1404 analysis,” id. at 284, when, as here, the contract chooses an “exclusive” forum for decision of disputes. According to plaintiff, the designation of New York in the forum selection clause as the “exclusive” forum for any disputes strips any other jurisdiction of authority over this matter. Despite the suggestive language in Leasing Service, plaintiff’s position overstates the rule. The Supreme Court has held that the parties’ contractual agreement that a particular forum shall have “exclusive jurisdiction” over disputes is a “significant factor that figures centrally in the district court’s calculus” under § 1404(a). Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244,101 L.Ed.2d 22 (1988). However, Stew art makes clear that such a clause is not dispositive of a motion to transfer under § 1404(a). While the courts seek generally to give effect to the private ordering of affairs achieved by contracting parties (a goal that in this case would require enforcement of the forum selection clause), the Court in Stewart wrote that § 1404(a) requires consideration of other interests: Section 1404(a) directs a district court to take account of factors other than those that bear solely on the parties’ private ordering of their affairs. The district court also must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of “the interest of justice.” Id. at 30, 108 S.Ct. at 2244. Stewart involved a contract" }, { "docid": "11154040", "title": "", "text": "another court. Id., 487 U.S. at 32, 108 S.Ct. at 2245. As the Court noted, § 1404(a) calls upon the district court to weigh a number of case-specific factors when reviewing a motion to transfer. Id., at 29, 108 S.Ct. at 2244. The Court stated that “[t]he presence of a forum selection clause ... will be a significant factor that figures centrally in the district court’s calculus.” Id. (emphasis added). “Thus, while other factors might ‘conceivably’ militate against a transfer, see [Stewart ] at 487 U.S. at 30-31, 108 S.Ct. at 2244, the clear import of the Court’s opinion is that the venue mandated by a choice of forum clause rarely will be outweighed by other 1404(a) factors.” In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir.1989) (after remand from the Supreme Court). We have already determined that the forum selection clauses in the 1990 Optical Disk Agreement and the 1991 Micro-graphics Dealer Agreement are valid and applicable to the plaintiffs claims. In accordance with Stewart, we accord the parties’ contractual choice of venue significant weight in deciding whether to transfer this case to the Eastern District of New York. The forum selection clauses are not dispositive, however. Stewart, 487 U.S. at 31, 108 S.Ct. at 2245. We must also consider other factors specific to this case to determine whether the court should transfer this action. Id. The terms of the statute suggest that three factors must be considered in transferring a case: (1) the convenience of the parties, (2) the convenience of the witnesses and (3) the interests of justice. See AT & T Co. v. MCI Communications Corp., 736 F.Supp. 1294, 1305 (D.N.J.1990); Sandvik, Inc. v. Continental Ins. Co., 724 F.Supp. 303, 306 (D.N.J.1989); Derry Finance N.V. v. Christiana Companies, Inc., 555 F.Supp. 1043, 1045 (D.Del.1983). A review of these factors reveals that this ease would warrant transfer even in the absence of the forum selection clauses. Canon is a New York corporation whose principal place of business and corporate headquarters is in the Eastern District of New York. NMS is a Maryland corporation which, although it" }, { "docid": "6909503", "title": "", "text": "“exclusive jurisdiction” over disputes is a “significant factor that figures centrally in the district court’s calculus” under § 1404(a). Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244,101 L.Ed.2d 22 (1988). However, Stew art makes clear that such a clause is not dispositive of a motion to transfer under § 1404(a). While the courts seek generally to give effect to the private ordering of affairs achieved by contracting parties (a goal that in this case would require enforcement of the forum selection clause), the Court in Stewart wrote that § 1404(a) requires consideration of other interests: Section 1404(a) directs a district court to take account of factors other than those that bear solely on the parties’ private ordering of their affairs. The district court also must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of “the interest of justice.” Id. at 30, 108 S.Ct. at 2244. Stewart involved a contract that gave one forum “exclusive jurisdiction,” id. at 24, n. 1, 108 S.Ct. at 2241, n. 1 (reciting text of clause); the Court did not treat this clause as dispositive, but instead remanded the case for the District Court to determine “the appropriate effect under federal law of the parties’ forum-selection clause on respondent’s § 1404(a) motion.” Id. at 32,108 S.Ct. at 2245. See also Water Energizers, Ltd. v. Water Energizers, Inc., 788 F.Supp. 208, 212-13 (S.D.N.Y.1992) (conducting analysis under § 1404 after finding that choice of forum clause was mandatory, and rejecting contention that choice of forum clause is “absolutely controlling”). ? the existence of a forum selection clause does not foreclose the court from deciding that the case should be heard in a different forum from that chosen, “such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘.unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). Recent eases stress" }, { "docid": "13646192", "title": "", "text": "on the forum selection clause as determinative of the proper forum for this litigation, and Terra’s challenge to the applicability of the forum selection clause at all, the court must now turn to further consideration to the knotty problems of the significance and meaning of the forum selection clause in this case. a. The weight to be given the clause in a “transfer” analysis When the court is confronted with one party’s assertion of a forum selection clause as relevant to or determinative of the outcome of the court’s transfer analysis, the first question raised by the presence of such a clause is, how much weight should the clause be given in determining whether or not to transfer the lawsuit to the forum identified in the clause? Courts generally agree that the forum selection clause “should not receive dispositive weight.” Stewart, 487 U.S. at 31, 108 S.Ct. at 2245; Jumara, 55 F.3d at 880; Brock, 933 F.2d at 1257-58; Moses, 929 F.2d at 1136. However, courts also agree that the contractual choice of forum is a “significant” or “substantial” factor. Stewart, 487 U.S. at 30-31,108 S.Ct. at 2244-45; Jumara, 55 F.3d at 880; Brock, 933 F.2d at 1257-58 (quoting Stewart, 487 U.S. at 30- 31, 108 S.Ct. at 2244-45 as stating forum selection clause is a “significant factor that figures centrally in the district court’s calculus”); Moses, 929 F.2d at 1136; Sunshine Beauty Supplies, Inc. v. U.S. Dist. Ct., 872 F.2d 310, 311 (9th Cir.1989) (district court erred by failing to consider the forum selection clause at all in transfer analysis). An examination of judicial decisions, beginning with the Supreme Court’s decision in Stewart, will clarify when a forum selection clause matters and just how significantly. i. Stewart and its progeny. In Stewart, the Supreme Court stated that “[t]he presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court’s calculus” under § 1404(a). Stewart, 487 U.S. at 29, 108 S.Ct. at 2244; Brock, 933 F.2d at 1257 (“In Stewart, the Supreme Court addressed the" }, { "docid": "4963492", "title": "", "text": "28 U.S.C. 1391(a)(2); see also Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247,1249 (S.D.N.Y.1995) (venue may be proper in more than one district under 28 U.S.C. § 1391(a)(2)). The issue on this motion is the convenience of the parties and witnesses, and the interests of justice, rather than a claim that either California or New York would be an improper venue. Paladión argues that the lease that is the subject of the controversy contains a forum selection clause designating California as the appropriate venue for this action. S-Fer contends that the clause only covers actions for enforcement of the lease and that an action for fraudulent inducement directed at the validity of the lease does not fall within the meaning of the term “enforcement”. The parties also present opposing views on the balance of the factors enumerated above, particularly the convenience of the parties and potential witnesses. Forum selection clauses in contracts are regularly enforced. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); see also Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9-10 (2d Cir.1995); Bense v. Interstate Battery System of America, 683 F.2d 718, 721-22 (2d Cir.1982); Weiss v. Columbia Pictures Television, Inc., 801 F.Supp. 1276, 1282 (S.D.N.Y. 1992). A forum selection clause is not itself dispositive on a motion to transfer, and the district court should still examine the “public policy ramifications of transfer decisions.” Red Bull, 862 F.2d at 967. Nevertheless, “the presence of a forum selection clause ... will be a significant factor that figures centrally in the district court’s [§ 1404(a) ] calculus.” Stewart, 487 U.S. at 29, 108 S.Ct. at 2244. In this case, however, the dispute at issue is not covered by the terms of the contractual forum selection clause. The forum selection clause in the lease provides: 32.12 Governing Law; Forum; Construction. The laws of the State" }, { "docid": "7424961", "title": "", "text": "Stewart, 487 U.S. at 29-30, 108 S.Ct. 2239 (citations omitted). The defendant in Stewart had moved for a transfer of venue under both section 1404(a) and 1406. While the Supreme Court concluded that section 1404(a) was the proper standard, it did not directly address the defendant’s section 1406 argument that venue was improper. The court noted, however, that, the parties did not dispute that the district court properly denied the motion to dismiss for improper venue under section 1406 because the defendant did business in the Northern District of Alabama. See Stewart, 487 U.S. at 22 n. 8, 108 S.Ct. 2239 (citing 28 U.S.C. § 1391(c)); see also P.M. Enterprises v. Color Works, Inc., 946 F.Supp., 435 (S.D.W.Va.1996)(“[T]he propriety of venue rests upon whether an action satisfies the federal venue statute, 28 U.S.C. § 1391, not upon the provisions of private contractual agreements.”); Nat’l Micrographics, Inc. v. Canon U.S.A., Inc., 825 F.Supp. 671, 678 (D.N.J.1993). If the Supreme Court concluded, as its statement implies, that a forum selection clause does not render defective venue that was otherwise appropriate under section 1391, then Stewart logically precludes all motions based on the theory that the original court lacks jurisdiction by virtue of the forum-selection clause. See David H. Taylor, The Forum Selection Clause: A Tale of Two Concepts, 66 Temple L. Rev. 785, 830 (1993). Therefore, in the context of a federal court sitting in diversity, when a forum selection clause allows the parties to bring the action in another federal court and venue is proper under section 1391 in the district court where the action is presently pending, the district court should apply the standards of section 1404(a) rather than the standard in Bremen. See Stewart, 487 U.S. at 28-29, 108 S.Ct. 2239. In support of their argument that Bremen applies in diversity cases such as this one, the Defendants cite the Fifth Circuit’s opinions in International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir.1996) and Haynsworth v. Corporation, 121 F.3d 956 (5th Cir.1997). In International Software, the Fifth Circuit held that Bremen applies when a forum selection" }, { "docid": "19723095", "title": "", "text": "Cir.1993) (dismissal for improper venue under forum selection clause inappropriate) with Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990) (per curiam) (dismissal for improper venue under forum selection clause appropriate) and Medoil Corp. v. Citicorp, 729 F.Supp. 1456, 1457 n. 1 (S.D.N.Y.1990) (motion to dismiss under forum selection clause properly considered motion to dismiss for lack of venue). After sorting through apparently conflicting Supreme Court and Ninth Circuit authorities, the court finds that § 1406 governs. The analysis of this technical but somewhat intriguing question begins, appropriately enough, with a footnote in a 1988 Supreme Court case, which appears to suggest that § 1404 and not § 1406 applies to forum selection clauses. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 n. 8, 108 S.Ct. 2239, 2243 n. 8, 101 L.Ed.2d 22 (1988). In this footnote, the Supreme Court appears to have assumed that neither Federal Rule of Civil Procedure 12(b)(3) nor 28 U.S.C. § 1406 would apply when a forum selection clause dictates that suit should have been brought elsewhere. The Court apparently reasoned that the sole determinants of proper venue are the conditions established by 28 U.S.C. § 1391. Stewart, 487 U.S. at 29 n. 8, 108 S.Ct. at 2243 n. 8; see analysis of Stewart n. 8 in Crescent International, Inc. v. Avatar Communities, Inc., 857 F.2d 943, 944 (3rd Cir.1988). The parties did not dispute the district court’s ruling to this effect, however. Thus, the issue was not before the Court. The footnote is dicta, albeit what might be called “persuasive dicta.” The Stewart footnote would be quite persuasive if the Supreme Court had not pursued a contrary course of analysis three years later in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In Carnival Cruise, plaintiffs sued in federal district court in Washington, their home state, for injuries sustained on one of defendant’s ships in the Pacific Ocean. 499 U.S. at 588, 111 S.Ct. at 1524. Defendant moved for summary judgment. As one of the grounds for its motion, Carnival Cruise Lines argued that" }, { "docid": "11154039", "title": "", "text": "doing business), noted that the parties did not dispute that the district court had properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because the defendant apparently did business in the Northern District of Alabama, where the plaintiff had filed its suit. Id., 487 U.S. at 28 n. 8, 108 S.Ct. at 2243 n. 8. See also Crescent International, supra, 857 F.2d at 944 n. 1 (citing Stewart). Because venue is proper in this District, we will deny the defendant’s motion to dismiss for improper venue under Rule 12(b)(3). For the reasons discussed below, however, we will grant Canon’s motion to transfer this case to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a). C. Motion to Transfer Under 98 U.S.C. § im(a) The Supreme Court held in Stewart Organization, Inc. v. Ricoh Corp., supra, that federal law, specifically 28 U.S.C. § 1404(a), not state law, governs a district court’s decision whether to give effect to a forum selection clause and transfer an action to another court. Id., 487 U.S. at 32, 108 S.Ct. at 2245. As the Court noted, § 1404(a) calls upon the district court to weigh a number of case-specific factors when reviewing a motion to transfer. Id., at 29, 108 S.Ct. at 2244. The Court stated that “[t]he presence of a forum selection clause ... will be a significant factor that figures centrally in the district court’s calculus.” Id. (emphasis added). “Thus, while other factors might ‘conceivably’ militate against a transfer, see [Stewart ] at 487 U.S. at 30-31, 108 S.Ct. at 2244, the clear import of the Court’s opinion is that the venue mandated by a choice of forum clause rarely will be outweighed by other 1404(a) factors.” In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir.1989) (after remand from the Supreme Court). We have already determined that the forum selection clauses in the 1990 Optical Disk Agreement and the 1991 Micro-graphics Dealer Agreement are valid and applicable to the plaintiffs claims. In accordance with Stewart, we accord the parties’ contractual choice of venue" }, { "docid": "4405180", "title": "", "text": "as a result of the Supreme Court’s opinion in Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). In Stewart, the Court held that a district court considering a § 1404(a) motion to transfer venue should not treat a forum selection clause as dispositive, but as part of the “flexible and individualized” analysis that Congress prescribed in 28 U.S.C. § 1404(a). Id. at 29-30, 108 S.Ct. at 2243-44. Since Congress had directed that multiple considerations govern transfer within the federal court system, the Court reasoned that the forum-selection clause which represented the parties’ agreement as to the most proper forum “should receive neither dispositive consideration ... nor no consideration ..., but rather the consideration for which Congress provided in § 1404(a).” Id. at 31, 108 S.Ct. at 2245. Accordingly, the Court moves to the § 1404(a) analysis. C. Motion to Transfer — 28 U.S.C. § 1404(a) 28 U.S.C. § 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The Supreme Court has noted that § 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an “individualized, case-by-case consideration of convenience and fairness.” Stewart, 487 U.S. at 29, 108 S.Ct. at 2244; Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964). In determining whether to grant a transfer of venue under § 1404(a), the Court must consider “all relevant factors to determine whether or not on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.” 15 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3847 at 370 (1986); See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir.1989), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989). In seeking a transfer of venue under § 1404(a), the burden of proof is on the movant." }, { "docid": "22819237", "title": "", "text": "when deciding a motion to transfer: (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. Id. Courts have not, however, limited a district court’s evaluation of a transfer motion to these enumerated factors. Instead, courts have recognized that such determinations require a case-by-case evaluation of the particular circumstances at hand and a consideration of all relevant factors. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2243-44, 101 L.Ed.2d 22 (1988); Jumara v. State Farm, Ins. Co., 55 F.3d 873, 879 (3d Cir.1995); 15 Challes Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3847, at 370 (2d ed.1986). As the Supreme Court explained, “[a] motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors.” Stewart, 487 U.S. at 29,108 S.Ct. at 2244. Although there is no exhaustive list of specific factors to consider, courts have determined that a valid and applicable forum selection clause in a contract is “a significant factor that figures centrally in the district court’s calculus.” Id. On appeal, Terra argues that the district court incorrectly found the forum selection clause applicable to its tort claims and improperly weighed the other section 1404(a) factors. Although the parties agree that we review a district court’s decision regarding a section 1404(a) transfer motion for an abuse of discretion, see Stewart, 487 U.S. at 29, 108 S.Ct. at 2243-44; Everett v. St. Ansgar Hosp., 974 F.2d 77, 79 (8th Cir.1992), they disagree over the appropriate standard of review regarding a district court’s construction of a forum selection clause. Terra argues that we should review the court’s interpretation of the forum selection clause de novo, because such an interpretation is equivalent to the construction of a contract which is a legal issue. MCC, however, asserts that in weighing the relevant section 1404(a) factors, the district court was not required to interpret the specific meaning of the forum selection clause but merely recognize its presence and factor it into the" }, { "docid": "8166855", "title": "", "text": "manifested in their freely negotiated agreement, by specifically enforcing the forum selection clause.” Id. at 12, 92 S.Ct. at 1914. Subsequently, in Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2243-44, 101 L.Ed.2d 22 (1988), the Court injected a fairness and convenience component into the enforcement analysis. The Court held that federal law controls a motion pursuant to 28 U.S.C. § 1404(a) to transfer an action to the venue provided in a contractual forum selection clause. Under 28 U.S.C. § 1404(a), a district court can transfer a civil action “for the convenience of the parties and witnesses, in the interest of justice [to] ... any other district .'.. where it might have been brought.” Under federal law, the Court ruled, a forum selection clause should “be a significant factor that figures centrally” in a transfer analysis but that a forum selection clause should be considered “only one relevant factor.” 487 U.S. at 32, 108 S.Ct. at 2245. The appropriateness of transfer is to be considered on an “individualized case-by-ease consideration of convenience and fairness,” including the convenience of the contractual forum and the relative bargaining power of the parties. Stewart, 487 U.S. 22, 29, 108 S.Ct. 2239, 2243-4 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). Under the Court’s analysis, the presence of a valid forum selection clause would not preclude the denial of a motion to transfer brought by a party seeking to enforce the clause. While the Court did not directly address the issue of the proper procedural vehicle for enforcing a forum selection clause, it appeared to have adopted the view that a valid forum selection clause does not render improper what would otherwise be a proper venue, although more by implication than by explicit statement. In a footnote, the Court observed that “[t]he parties do not dispute that the District Court properly denied the motion to dismiss for improper venue under 28 U.S.C. § 1406(a) because respondent does business in the Northern District of Alabama. See 28 U.S.C. § 1391(c) (venue" }, { "docid": "7424960", "title": "", "text": "district court should give effect to the parties contractual choice of venue and transfer the case. See id. Section 1404(a) is intended to place discretion in the district court to adjudicated motions to transfer according to “individualized, case-by-case consideration of convenience and fairness.” [citations omitted] A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors. The presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court’s calculus. In its resolution of the § 1404(a) motion in this case, for example, the district court will be called on to address such issues as the convenience of the Manhattan forum given the parties express preference for that venue, and the relative fairness of transfer in light of the forum-selection clause and the parties relative bargaining power. The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preference. Stewart, 487 U.S. at 29-30, 108 S.Ct. 2239 (citations omitted). The defendant in Stewart had moved for a transfer of venue under both section 1404(a) and 1406. While the Supreme Court concluded that section 1404(a) was the proper standard, it did not directly address the defendant’s section 1406 argument that venue was improper. The court noted, however, that, the parties did not dispute that the district court properly denied the motion to dismiss for improper venue under section 1406 because the defendant did business in the Northern District of Alabama. See Stewart, 487 U.S. at 22 n. 8, 108 S.Ct. 2239 (citing 28 U.S.C. § 1391(c)); see also P.M. Enterprises v. Color Works, Inc., 946 F.Supp., 435 (S.D.W.Va.1996)(“[T]he propriety of venue rests upon whether an action satisfies the federal venue statute, 28 U.S.C. § 1391, not upon the provisions of private contractual agreements.”); Nat’l Micrographics, Inc. v. Canon U.S.A., Inc., 825 F.Supp. 671, 678 (D.N.J.1993). If the Supreme Court concluded, as its statement implies, that a forum selection clause does not render defective venue that" }, { "docid": "19723096", "title": "", "text": "Court apparently reasoned that the sole determinants of proper venue are the conditions established by 28 U.S.C. § 1391. Stewart, 487 U.S. at 29 n. 8, 108 S.Ct. at 2243 n. 8; see analysis of Stewart n. 8 in Crescent International, Inc. v. Avatar Communities, Inc., 857 F.2d 943, 944 (3rd Cir.1988). The parties did not dispute the district court’s ruling to this effect, however. Thus, the issue was not before the Court. The footnote is dicta, albeit what might be called “persuasive dicta.” The Stewart footnote would be quite persuasive if the Supreme Court had not pursued a contrary course of analysis three years later in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In Carnival Cruise, plaintiffs sued in federal district court in Washington, their home state, for injuries sustained on one of defendant’s ships in the Pacific Ocean. 499 U.S. at 588, 111 S.Ct. at 1524. Defendant moved for summary judgment. As one of the grounds for its motion, Carnival Cruise Lines argued that a forum selection clause found in the fine print on the back of the passenger ticket required dismissal in favor of the Florida courts. In the alternative, the cruise line requested that the case be transferred to the appropriate district court in Florida. Both of the defendant’s motions, including the motion to transfer, were made under § 1406. Shute v. Carnival Cruise Lines, Inc., 897 F.2d 377, 379, 388 n. 9 (9th Cir.1990), rev’d on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). The Ninth Circuit ruled that the forum selection clause should not be enforced in the circumstances. Carnival Cruise, 897 F.2d at 388-89. In reversing, the Supreme Court did not explicitly discuss whether a contractual provision granting jurisdiction to another federal court should be given effect under § 1404 or § 1406. Carnival Cruise, 499 U.S. at 593-95, 111 S.Ct. at 1527-28. However, the Court confined its analysis to M/S Bremen’s consideration of whether the forum selection clause would be unreasonable and unfair. The Court did not frame the" }, { "docid": "11154038", "title": "", "text": "for enforcing NMS’s contractual 'promise to file suit in the state or federal courts of New York. See Lambert v. Kysar, 983 F.2d 1110, 1112 n. 1 (1st Cir.1993) (stating that motions for dismissal based upon forum selection clauses are founded on Rule 12(b)(6), not Rule 12(b)(3)). This conclusion is bolstered by the Supreme Court’s decision in Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). In Stewart, the Court addressed the question of whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a ease to a venue provided in a contractual forum-selection clause. The defendant in that case had originally brought a motion in the district court for the Northern District of Alabama either to transfer the case under 28 U.S.C. § 1404(a) or to dismiss the case for improper venue under 28 U.S.C. § 1406. In a footnote, the Supreme Court, citing 28 U.S.C. § 1391(c) (venue proper in judicial district in which a corporation is doing business), noted that the parties did not dispute that the district court had properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because the defendant apparently did business in the Northern District of Alabama, where the plaintiff had filed its suit. Id., 487 U.S. at 28 n. 8, 108 S.Ct. at 2243 n. 8. See also Crescent International, supra, 857 F.2d at 944 n. 1 (citing Stewart). Because venue is proper in this District, we will deny the defendant’s motion to dismiss for improper venue under Rule 12(b)(3). For the reasons discussed below, however, we will grant Canon’s motion to transfer this case to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a). C. Motion to Transfer Under 98 U.S.C. § im(a) The Supreme Court held in Stewart Organization, Inc. v. Ricoh Corp., supra, that federal law, specifically 28 U.S.C. § 1404(a), not state law, governs a district court’s decision whether to give effect to a forum selection clause and transfer an action to" } ]

[ { "docid": "17609567", "title": "", "text": "Chessplayers’ second complaint asserting there was no viable cause of action against them because as a private .association FAPR was not a state actor and thus was entitled to the court’s deference regarding its private determinations. The Chessplayers moved to vacate the consolidation but the district court denied their motion. In response, the Chessplay-ers moved to remand the second case, stressing all federal claims in the second case were removed and expressly waived, so there was no federal subject matter jurisdiction warranting removal. . Although the second case had already been removed and consolidated with the first case, FAPR filed a petition with the court the following day to enter an order retaining removal jurisdiction over the second case under the All Writs Act, and/or, in the alternative, enjoining the Chessplay-ers from prosecuting the second case in state court under either the Anti-Injunction Act or the All Writs Act. The district court denied the Chessplayers’ request for remand of the second case, and found moot FAPR’s petition, explaining its reasoning in an electronic order: The Court shall not remand to state court consolidated case 11-1208. Said case presents identical facts and claims to the instant case, and was filed subsequent to this court sustaining the remov-ability of the present case. Plaintiffs, hence, have attempted to thwart this court’s removal jurisdiction by filing the second case. Removal of 11-1208 is hence proper under the All-Writs Act in order for this court to sustain its jurisdiction. (emphasis added). The Chessplayers then filed a motion for leave to file an interlocutory appeal regarding the district court’s denial of their request to remand the second case; the district court denied this motion. Finding themselves in a closed position, the Chessplayers moved for voluntary dismissal of their United States and Puerto Rico constitutional claims for lack of case or controversy, as both parties initially agreed that there were insufficient allegations to establish state action for the purposes of federal jurisdiction. Ignoring the issue of state action for the moment, FAPR opposed dismissal of the federal claims, asserting the Chessplayers were simply trying to somehow divest" } ]

[ { "docid": "9643370", "title": "", "text": "plans and impacts the relationship between the plans and injured beneficiaries, § 502(a)(3) applies. B. The Trustees Waived This Issue. Defendants further argue that the Trustees waived their objection to the district court’s jurisdiction when they amended their complaint to include federal antitrust and RICO claims. Given the unusual procedural history of this case, we agree. In general, “a district court’s error in failing to remand a case improperly removed is not fatal to the ensuing jurisdiction if federal jurisdictional requirements are met at the time judgment is entered.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). Here, the district court had subject-matter jurisdiction when it dismissed the Trustees’ second amended complaint because that complaint asserted exclusively federal statutory causes of action. See 28 U.S.C. §§ 1331, 1337. The Trustees argue, however, that this case falls within an exception to the general rule because they amended their initial complaint “involuntarily” after the district court ruled that their state law claims were preempted. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.2000); In Home Health v. Prudential Ins. Co., 101 F.3d 600, 603-04 (8th Cir.1996); Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1241 (8th Cir.1995). In denying the Trustees’ motion to remand, -the district court concluded they “are essentially making subrogation claims, especially with respect to their equitable claims. These claims are preempted by ERISA, and removal to federal court was proper.” (Emphasis added.) Defendants then moved to dismiss the state law claims, and the Trustees moved for leave to file a second amended complaint. The district court granted the Trustees’ motion, explaining: Due to ERISA preemption, Plaintiffs have indicated a desire to amend their complaint to add ERISA and other federal law claims.... [T]he Court will grant Plaintiffs’ motion to amend their complaint. This so being, the Court will disregard Defendants’ present Motion to Dismiss and allow Defendants an opportunity to file a Second Motion to Dismiss based on Plaintiffs’ anticipated Second Amended Complaint.... [T]he Court reiterates that ERISA is one such area in which complete preemption applies ...." }, { "docid": "11007259", "title": "", "text": "briefing the issues on appeal, plaintiff filed a motion for leave to amend his complaint, which was accompanied by a proposed amended complaint, in the district court. The district court granted the motion. Plaintiffs amended complaint includes federal claims under § 301 of the LMRA in addition to his original claim of retaliatory discharge under Mo.Rev.Stat. § 287.780. Thereafter, defendant moved to dismiss the appeal on grounds that the amended complaint clearly establishes federal jurisdiction, and thus the question of whether the removal to federal court was proper has become moot. Both the merits of the appeal and defendant’s motion to dismiss the appeal are now before this court. II. Discussion A. Motion to Dismiss the Appeal First, we address defendant’s motion to dismiss this appeal as moot. Defendant argues that once plaintiff amended his complaint to add federal claims under the LMRA, the district court clearly acquired jurisdiction over the LMRA claims, 28 U.S.C. § 1331 (federal question jurisdiction), as well as the retaliatory discharge claim. 28 U.S.C. § 1367 (supplemental jurisdiction). Thus, defendant maintains, the question of whether removal was proper has become moot. In response, plaintiff cites, among other cases, O’Halloran v. University of Washington, 856 F.2d 1375 (9th Cir.1988) (O’Halloran), in which the Ninth Circuit exercised appellate jurisdiction, and remanded to the district court with instructions to remand to the state court, under procedural circumstances similar to those of the present case. In O’Hallo-ran, the plaintiff sought review of the district court’s denial of her motion to remand to state court, after a third-party defendant removed the third-party action and the plaintiffs original state court action to federal court, even though the third-party action involved only state claims. Id. at 1378, 1380-81. Although the district court did not certify the existence of a controlling question of law, the Ninth Circuit exercised jurisdiction over the plaintiffs interlocutory appeal of the remand order because it was accompanied by an appeal from a denial of injunctive relief. Id. at 1378-79. One day after the notice of appeal was filed, the plaintiff amended her complaint and realigned the parties, making" }, { "docid": "11007260", "title": "", "text": "maintains, the question of whether removal was proper has become moot. In response, plaintiff cites, among other cases, O’Halloran v. University of Washington, 856 F.2d 1375 (9th Cir.1988) (O’Halloran), in which the Ninth Circuit exercised appellate jurisdiction, and remanded to the district court with instructions to remand to the state court, under procedural circumstances similar to those of the present case. In O’Hallo-ran, the plaintiff sought review of the district court’s denial of her motion to remand to state court, after a third-party defendant removed the third-party action and the plaintiffs original state court action to federal court, even though the third-party action involved only state claims. Id. at 1378, 1380-81. Although the district court did not certify the existence of a controlling question of law, the Ninth Circuit exercised jurisdiction over the plaintiffs interlocutory appeal of the remand order because it was accompanied by an appeal from a denial of injunctive relief. Id. at 1378-79. One day after the notice of appeal was filed, the plaintiff amended her complaint and realigned the parties, making the third-party defendant a defendant and alleging her federal claims against the former third-party defendant as well as the original defendant. Id. at 1378. Therefore, the complaint, as amended, established grounds for the third-party defendant to remove to federal court, even though that party should not have been able to remove prior to the amendment. The Ninth Circuit nevertheless held that the issue of whether removal to the federal court was proper had not become moot because the plaintiff did not voluntarily amend her complaint but rather had been ordered by the district court to do so. Id. at 1380. In the present case, plaintiff argues that he, like the plaintiff in O’Halloran, had no choice but to amend his complaint, thereby creating a basis for federal jurisdiction. At the time he filed his motion for leave to amend, the district court had already ruled that his workers’ compensation retaliatory discharge claim was preempted by § 301 of the LMRA; moreover, the district court had denied plaintiffs motion for a stay of proceedings pending the" }, { "docid": "2271406", "title": "", "text": "Cross, etc., 605 F.2d at 123. It is also immaterial that, after removal, Ching moved to strike the federal claim. An amendment to a complaint after removal designed to eliminate the federal claim will not defeat federal jurisdiction. Boelens v. Redman Homes, Inc., 759 F.2d 504, 509 (5th Cir.1985); Westmoreland Hospital Ass’n v. Blue Cross, etc., 605 F.2d at 123; Brown v. Eastern States Corp., 181 F.2d 26 (4th Cir.), cert. denied, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631 (1950). It was discretionary with the district court whether to remand the state claims. 28 U.S.C. § 1441(c). We see no abuse of discretion in the course the court took, especially where the statutes of limitations were dispositive of all claims, infra. As the Supreme Court has stated, [t]he presence or absence of federal-question jurisdiction is governed by the “well pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987) (footnote omitted). As the master of his claim, Ching’s own decision to incorporate the ADEA claim as one of the elements of suit at the time the complaint was filed opened the door for MITRE to remove the case to the federal court. The federal district court was thereafter invested with jurisdiction, including discretion whether or not to hold or remand the state claims. 28 U.S.C. § 1441(c). Thus, we sustain the district court’s assertion of jurisdiction and its refusal to remand. II. Statute of limitations Appellant Ching’s second argument is that the district court erred in dismissing the suit as barred by the state and federal statutes of limitations. Both Massachusetts and federal law provide for a three year statute of limitations. The only issue is" }, { "docid": "19912172", "title": "", "text": "to removal by undertaking affirmative action in this Court. Defendants argue that when plaintiff filed its June 23, 2006 complaint it asserted the jurisdiction of this Federal Court. While defendants’ argument is correct it is irrelevant because plaintiff voluntarily dismissed the action pursuant to Federal Rule of Civil Procedure 41. A voluntary dismissal leaves the situation as if a suit had never been brought. Bryan v. Smith, 174 F.2d 212, 214 (7th Cir.1949) (citations omitted). Accordingly, the Court cannot consider any action taken by plaintiff during the pendency of that action. However, defendants assert that actions taken by plaintiff in this case (actions associated with its June 26, 2006 complaint) demonstrate that it waived its right to object to removal. Defendants cite Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir.1989) and Lanier, supra, to support their assertion. However, these cases are distinguishable from the present action because in both Johnson and Lanier the plaintiff engaged in considerable substantive pre-trial litigation before he or she moved to remand his or her respective case. In Johnson, before plaintiff moved to remand he attended depositions noticed by defendants, amended his complaint in federal court, engaged in considerable discovery, and the action had proceeded to a point where defendants moved for summary judgment. Johnson, at 42. Likewise, in Lanier before plaintiff moved to remand she entered into stipulations, filed requests for discovery, sought to amend her complaint, filed a new lawsuit against defendant in federal court, demanded trial by jury, and proceeded with discovery. Lanier, at 905. However, in this action plaintiff filed its motion to remand before any pretrial proceedings began. In fact, plaintiff filed its motion to remand less than twenty-four hours after defendants filed their notice of removal. While plaintiff did submit a letter to the Court on June 30, 2006 in which it requested injunctive relief this sole submission cannot be described as “unequivocal assent of a sort which would render it offensive to fundamental principles of fairness to remand.” Ortiz v. Gen. Motors Acceptance Corp., Inc., 583 F.Supp. 526, 531 (N.D.Ill.1984) (citation omitted). This is" }, { "docid": "6092394", "title": "", "text": "F.2d 1010, 1011 (6th Cir.) (per curiam), cert. denied, 409 U.S. 980, 93 L.Ed.2d 314, 34 L.Ed.2d 243 (1972) (noting that, although the court must usually wait until an appeal from final judgment to re view the denial of a motion to remand, it would not wait in this case because the plaintiff was also appealing the denial of a motion for a preliminary injunction and that issue was properly before the appellate court); Mayflower Indus. v. Thor Corp., 184 F.2d 537, 538 (3d Cir.1950) (“[a]lthough the denial of a motion to remand itself would not support an interlocutory appeal, the question of removability is jurisdictional and therefore is before us for consideration once it appears that the case is properly here for review of an appealable order.”), cert. denied, 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951). Ill The NCAA argues that because O’Halloran filed a Second Amended Complaint in federal court, realigning the NCAA as a defendant and alleging federal law violations, her appeal from the order denying remand is now moot. According to the NCAA, because the federal court clearly has jurisdiction over O’Halloran’s claims against them at this time her “first appeal should be dismissed as moot.” O’Halloran filed her Second Amended Complaint on January 21, 1988, after the district court ordered her to realign the NCAA as a defendant. In the amended complaint, O’Halloran expressly stated that she “reserves her objections to the court’s jurisdiction.” She contends that she had filed both a motion for certification of the remand issue for appeal and a notice of appeal, which encompassed the remand issue, prior to filing her Second Amended Complaint. According to O’Halloran, because she was ordered by the court to join the NCAA, she was required to proceed by filing the amended complaint, even though the remand issue had not yet been appealed. “Procedural defects in the removal of an action may be waived by the failure to make a timely objection before the case proceeds to the merits_ [Djefects going to the subject matter jurisdiction of the court cannot be waived and" }, { "docid": "23392952", "title": "", "text": "Yet the plaintiff may waive the right to bring this challenge if the jurisdictional defect is ultimately cured. A series of frequently cited decisions illustrate the contours of the law in this area. In Brough v. United Steelworkers of America, 437 F.2d 748, 749 (1 st Cir.1971), the plaintiff employee brought state-law negligence claims in state court against the defendant, who removed the action to federal court, claiming that the duty it owed to the plaintiff was derived from federal law. The court denied the plaintiffs motion to remand to state court. Id. The plaintiff amended his complaint to add a federal claim, and the court later granted the defendant’s motion for summary judgment. Id. at 749, 750. The First Circuit held that, although federal jurisdiction did not exist at the time of removal (making the removal improper), the amendment cured the jurisdictional defect and amounted to a waiver of any objection to the denial of remand: “Clearly plaintiff cannot be permitted to invoke the jurisdiction of the federal court, and then disclaim it when he loses.” Id. at 750; accord Tolton v. Am. Biodyne Inc., 48 F.3d 937, 941 n. 2 (6th Cir.1995) (citing Brough for the proposition that “[ajmending a complaint after removal cures a jurisdictional defect”). One year later, the Supreme Court faced a similar situation of improper removal in Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972); though, unlike Brough, there was no objection to the removal (i.e., a motion to remand to state court). The Court held that “an erroneous removal need not cause the destruction of a final judgment, if the requirements of federal subject-matter jurisdiction are met at the time the judgment is entered.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 73, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (discussing Grubbs, 405 U.S. at 700, 92 S.Ct. 1344). Under those circumstances, “the validity of the removal procedure followed may not be raised for the first time on appeal.” Id. (quoting Grubbs, 405 U.S. at 700, 92 S.Ct. 1344) (emphasis removed); accord Tolton, 48 F.3d at" }, { "docid": "23392954", "title": "", "text": "941 (noting that, under Grubbs, plaintiffs could not challenge removal after having summary judgment granted against them). The Seventh Circuit followed these general principles in Bernstein v. Lind-Waldock & Co., 738 F.2d 179 (7th Cir.1984). There, the defendants removed the plaintiffs state-law complaint; the district court then denied the plaintiffs motion to remand; the plaintiff amended the complaint, adding a federal claim; and the court granted summary judgment to the defendants. Id. at 182. Although the Seventh Circuit determined that the plaintiffs complaint was not removable, it followed Brough and held that the plaintiff waived his right to challenge that removal once jurisdiction existed via the amended complaint. Id. at 185. “[Ajfter [the plaintiffs] motion to remand was denied,” Judge Posner explained, “he threw in the towel, as it were, and filed an amended complaint in federal court that included an unmistakable federal cause of action.... ” Id. Accordingly, “once he decided to take advantage of his involuntary presence in federal court to add a federal claim to his complaint he was bound to remain there.” Id. The Supreme Court revisited these issues in 1996 in Caterpillar Inc. v. Lewis, reaffirming that a plaintiff who fails to object to removal waives any challenge to that removal once a jurisdictional defect is cured and a federal court enters judgment. 519 U.S. at 61, 117 S.Ct. 467. But the Court also held (perhaps contrary to broader statements in Brough and Bernstein) that a plaintiff who timely objects in that situation may still' — at least under certain conditions — challenge the removal. Id. There, the defendant removed a state-court suit, purportedly based on diversity jurisdiction. Id. at 65, 117 S.Ct. 467. The plaintiff objected and moved to remand to state court; the district court denied this motion, and the case proceeded to a jury trial ending in a verdict for the defendant. Id. at 66, 117 S.Ct. 467. On appeal to this Court, we determined that diversity was not complete at the time of removal. Id. at 67, 117 S.Ct. 467. Accordingly, even though the nondiverse defendant was dismissed before judgment, we" }, { "docid": "6092397", "title": "", "text": "time when the petition was filed. That question is to be determined by the condition of the pleadings and the record at the time of the application for removal and not by the allegations of the petition or the subsequent proceedings which may be had in the Circuit Court. Id. The court noted that [a]fter the removal, and after the court had denied the motion to remand and had sustained the demurrer of McDonald [one of the defendants] to the complaint, the plaintiff was compelled either to submit to a dismissal of his action or amend his complaint in accordance with the ruling of the court. He could not, before final judgment, review in an appellate court the action of the trial court in overruling his motion to remand. Id. at 87. Thus, the court held, “[b]y amending his complaint as he did, and submitting to trial, he did not give the court jurisdiction.” Id. See also McLeod v. Cities Serv. Gas Co., 233 F.2d 242, 244-45 (10th Cir.1956) (appellants did not voluntarily acquiesce to removal when they objected to removal and amended the pleading only after the court ordered them to do so); cf. Brough v. United Steelworkers of America, 437 F.2d 748, 750 (1st Cir.1971) (plaintiff waived the remand issue when he amended his complaint to include a federal question but was not ordered to do so). Accordingly, we hold that when a court orders the plaintiff to amend its complaint, doing so does not moot the question whether removal to the federal court was proper. It is clear in this case that O’Hal-loran had no intention of waiving her claim that jurisdiction was not proper in federal court when she complied with the court’s order and amended the complaint. IY A defendant may remove an action to federal court when the action is within the original jurisdiction of the United States district court. 28 U.S.C. § 1441(a) (1982). Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall" }, { "docid": "3786884", "title": "", "text": "this Court subject matter jurisdiction under § 1331. After the suit was removed, the plaintiff filed this motion to remand alleging this Court lacks subject matter jurisdiction over this matter. Plaintiff also seeks attorney’s fees and costs from Charter for the improper removal of this suit. Charter has filed an opposition to plaintiff’s motion to remand. The Court finds plaintiff’s motion to remand should be granted. On this motion to remand, defendants have the burden of proving that removal was proper and that this court has subject matter jurisdiction. In determining whether a federal question exists in this case, the Court must apply two tests. First, the Court must determine whether federal law created the cause of action involved herein. If so, a federal question exists. However, if the Court determines that state law, and not federal law created the cause of action, the Court must then determine whether plaintiff’s complaint necessarily depends on resolution of a substantial question of federal law. In deciding whether these tests are satisfied, the Court must follow the “well-pleaded complaint” rule. Under this rule, the Court must decide whether a claim arises under federal law from what necessarily appears in the plaintiff’s statement of claim set forth in the complaint. The party who brings the suit is master to decide what law he will rely on to support his claim. However, it is an independent corollary of the well-pleaded complaint rule that plaintiff may not defeat removal by omitting to plead a necessary federal question in a complaint. Thus, federal ques tion jurisdiction is present even though the plaintiff bases his claim on state law when: (1) it appears that plaintiff’s claim is really one of federal law; or (2) it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded claims. Plaintiff asserts in her state court petition that her claim against the defendants arises under La.Civil Code article 2315. Since Charter removed the suit to this Court, it must carry the burden of proving that plaintiffs cause of action is created by federal law" }, { "docid": "11007262", "title": "", "text": "outcome of this appeal and had ordered the parties to present a scheduling order for the disposition of the case. Thus, plaintiff argues, the district court presented him with a Hobson’s choice. Under the circumstances, his options were to amend his complaint to allege the federal LMRA claims or risk dismissal of the complaint and, consequently, preclusion of his federal'claims under the doctrine of res judicata. We agree with the Ninth Circuit’s conclusion in O’Halloran that, “when a court orders the plaintiff to amend its complaint, doing so does not moot the question whether removal to the federal court was proper.” 856 F.2d at 1380. In other words, where the removal of an action from state court to federal court may have been improper under 28 U.S.C. § 1441(b), the subsequent amendment of the complaint so as to create a basis for removal jurisdiction does not render the removal issue moot if the amendment was ordered by the district court or was otherwise involuntary. In the present case, we hold that plaintiffs amendment of the complaint was involuntary for the reasons he cites. We therefore hold that the question of whether removal was proper is not moot for purposes of this appeal. Defendant’s motion to dismiss the appeal is denied. B. Merits of the Appeal A defendant may remove an action from state court to the federal district court for the district in which the action is pending if the action is within the district court’s original jurisdiction, unless an Act of Congress expressly provides otherwise. 28 U.S.C. § 1441(a). In the present case, defendant removed plaintiffs state court action to federal district court on grounds that plaintiffs action was preempted by the LMRA because plaintiff was seeking to enforce, through in-junctive relief, the terms of the “just cause” provision in the CBA. In his motion for remand, plaintiff argued that (1) the district court lacked jurisdiction over his state court action for injunctive relief because his claim fell within the limited exception to federal preemption under Lingle, and (2) removal of plaintiffs action was expressly prohibited by 28 U.S.C." }, { "docid": "14923514", "title": "", "text": "paragraph that states “within thirty days after the receipt by the defendant, ... of a copy of the initial pleading setting forth the claim for relief.” Thus, Defendant argues, the Second Amended Complaint constitutes the “initial pleading” as to these new Plaintiffs. Another Defendant focuses on the word in the second paragraph “commencement.” Defendant Freedom Life voluntarily dissolved its corporate existence within the state of Mississippi on or about September 29, 2000, and reincorporated in Texas. Plaintiffs Hill and Driskill commenced their causes of action on December 17, 2001, when the Second Amended Complaint was filed in state court. Defendants argue in the alternative that even if the second paragraph governs this case and the one year limit is applicable, the one-year limitation on removal in diversity cases is not absolute; but merely procedural and subject to equitable exceptions. The Fifth Circuit has stated that the “time limitation for removal is not jurisdictional; it is merely ‘modal and formal and may be waived.’ ” Barnes v. Westinghouse Electric Corp., 962 F.2d 513, 516 (5th Cir.1992) (citing Nolan v. Boeing Co., 919 F.2d 1058, 1063 n. 6 (5th Cir.1990)). In Barnes the defendant removed a case to federal court after it had been pending in state court for over four years. Plaintiff Barnes promptly moved to remand the action to state court, but apparently did not rely on the one-year limitation in the statute. Approximately twenty months later, Barnes filed a motion for rehearing where he argued for the first time that a case cannot be removed to federal court on the basis of diversity more than one year after commencement of the action. The Fifth Circuit held that plaintiff waived his opportunity to call this procedural defect to the court’s attention. Barnes, 962 F.2d at 516. While the court focused on the plaintiffs waiving his right to have a case remanded to state court, the case shows that at least under some circumstances, a case may be removed after it has been pending for more than one year. In the present case there is no argument that Plaintiffs waived their" }, { "docid": "23392951", "title": "", "text": "law. Id. (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). The complaint may thus be removed to federal court and will be treated as alleging a federal cause of action, notwithstanding that, on its face, the plaintiffs complaint alleges only a state-law cause of action. Id. But the complete-preemption doctrine is a limited exception to the well-pleaded-complaint rule. Id. at 553. The Supreme Court has “demonstrated a reluctance to extend application of the doctrine, largely limiting its finding of complete preemption to a handful of federal statutes,” the most widely recognized of these being the Labor Management Relations Act, 29 U.S.C. § 185(a) (LMRA) and the Employee Retirement Income Security Act, 29 U.S.C. § 1144(a) (ERISA). Id. (citations omitted). As will be discussed below, the Magnuson-Moss Act does not completely preempt state law. If a plaintiff believes that removal is improper because the complaint does not arise under federal law, the plaintiff may challenge removal, including by moving to remand the matter to state court. Yet the plaintiff may waive the right to bring this challenge if the jurisdictional defect is ultimately cured. A series of frequently cited decisions illustrate the contours of the law in this area. In Brough v. United Steelworkers of America, 437 F.2d 748, 749 (1 st Cir.1971), the plaintiff employee brought state-law negligence claims in state court against the defendant, who removed the action to federal court, claiming that the duty it owed to the plaintiff was derived from federal law. The court denied the plaintiffs motion to remand to state court. Id. The plaintiff amended his complaint to add a federal claim, and the court later granted the defendant’s motion for summary judgment. Id. at 749, 750. The First Circuit held that, although federal jurisdiction did not exist at the time of removal (making the removal improper), the amendment cured the jurisdictional defect and amounted to a waiver of any objection to the denial of remand: “Clearly plaintiff cannot be permitted to invoke the jurisdiction of the federal court, and then disclaim it when" }, { "docid": "23392953", "title": "", "text": "he loses.” Id. at 750; accord Tolton v. Am. Biodyne Inc., 48 F.3d 937, 941 n. 2 (6th Cir.1995) (citing Brough for the proposition that “[ajmending a complaint after removal cures a jurisdictional defect”). One year later, the Supreme Court faced a similar situation of improper removal in Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972); though, unlike Brough, there was no objection to the removal (i.e., a motion to remand to state court). The Court held that “an erroneous removal need not cause the destruction of a final judgment, if the requirements of federal subject-matter jurisdiction are met at the time the judgment is entered.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 73, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (discussing Grubbs, 405 U.S. at 700, 92 S.Ct. 1344). Under those circumstances, “the validity of the removal procedure followed may not be raised for the first time on appeal.” Id. (quoting Grubbs, 405 U.S. at 700, 92 S.Ct. 1344) (emphasis removed); accord Tolton, 48 F.3d at 941 (noting that, under Grubbs, plaintiffs could not challenge removal after having summary judgment granted against them). The Seventh Circuit followed these general principles in Bernstein v. Lind-Waldock & Co., 738 F.2d 179 (7th Cir.1984). There, the defendants removed the plaintiffs state-law complaint; the district court then denied the plaintiffs motion to remand; the plaintiff amended the complaint, adding a federal claim; and the court granted summary judgment to the defendants. Id. at 182. Although the Seventh Circuit determined that the plaintiffs complaint was not removable, it followed Brough and held that the plaintiff waived his right to challenge that removal once jurisdiction existed via the amended complaint. Id. at 185. “[Ajfter [the plaintiffs] motion to remand was denied,” Judge Posner explained, “he threw in the towel, as it were, and filed an amended complaint in federal court that included an unmistakable federal cause of action.... ” Id. Accordingly, “once he decided to take advantage of his involuntary presence in federal court to add a federal claim to his complaint he was bound to remain" }, { "docid": "21038014", "title": "", "text": "it was not unreasonable for defendants to refrain from filing a removal notice upon receipt of such an ambiguous complaint. The facts of Messick v. Toyota Motor Manufacturing, 45 F.Supp.2d 578 (E.D.Ky.1999), are analogous to the present case. In Messick, the plaintiff alleged, inter alia, sexual harassment in her original complaint, without any statutory reference. Plaintiff later amended her complaint to include the Kentucky Civil Rights Act and Title VII, 42 U.S.C. § 2000e, and defendants then filed a notice of removal. Plaintiff moved to remand on the basis of untimely removal, arguing that the original complaint gave defendants notice that the action was removable. In concluding that the period for removal was triggered by the amended complaint instead of the original complaint, the Messick court first noted that plaintiff is the master of her complaint and may avoid federal question jurisdiction by relying exclusively on state law. Then the court emphasized that “removal statutes must be strictly construed with all doubts cast against removal ... and the removing party bears the burden of showing that removal is proper.” Id. at 580 (citations omitted). In denying the motion to remand, the Messick court stated: Based on these principles, it is clear that had defendants attempted to remove this action when the original complaint was filed, they would not have survived a motion to remand. On its face, the original complaint only alleges sexual harassment in a generic sense and equally supports a state law claim alone as well as a federal cause of action. Thus, as master of her complaint, plaintiff may have intended to seek relief solely under state law to avoid removal. If defendants opted to remove at that time, they surely would not have met their burden. Id. While the Court need not determine whether a motion to remand would necessarily have been granted if defendants had removed immediately, the Court concludes that in this case the 80-day removal period did not begin to run upon defendants’ receipt of the complaint. Any other resolution of this question is undesirable. To require defendants to remove cases within 30" }, { "docid": "15132749", "title": "", "text": "Id. at 1080. After reversal, no judgment on the merits remains and “there is no reason to refrain from ordering a remand to state court” on the basis of a defect in removal procedure. Id. The district court in Huffman, however, had jurisdiction based only on diversity. Thus, any proceedings after reversal were limited to questions of state law, whether in federal or state court. The situation here is quite different. After the district court denied Albert’s motion to remand, she chose to amend her complaint to add a claim under the ADA, giving the district court federal question jurisdiction. The posture of this case is similar to that in Akin v. General Electric Co., 156 F.3d 1030 (10th Cir.1998). The plaintiffs in Akin filed a motion to remand, arguing some of the defendants could not have properly consented to removal. Id. at 1036. The district court denied the plaintiffs’ motion to remand. Id. The plaintiffs then added federal claims against those defendants, thus giving the district court jurisdiction. Id. The plaintiffs challenged the denial of the motion to remand on appeal. Id. This court held that “once plaintiff decided to take advantage of his involuntary presence in federal court to add a federal claim to his complaint he was bound to remain there.” Id. (quotation omitted). The rationale of Akin applies with equal force to this case. As the plaintiffs did in Akin, Albert affirmatively utilized the federal forum for her own purposes after the district court denied her motion to remand. Indeed, it is Albert’s ADA claim which merits reversal of the district court’s decision. Unlike Huffman, the claims remaining after appeal in this case are not state law claims. The efficiency concerns of Caterpillar, therefore, are implicated in this case despite this court’s conclusion that the district court should be reversed because Albert’s ADA claim destines this case to remain in federal court. We recognize that at least two circuits have held that the amendment of a complaint to add federal question claims did not doom a challenge to the denial of a motion to remand. See" }, { "docid": "2617344", "title": "", "text": "of contract; 2) unjust enrichment; 3) vicarious liability / conversion; 4) aiding and abetting conversion; 5) breach of fiduciary duty; 6) aiding and abetting breach of fiduciary duty; 7) negligent supervision; 8) constructive'fraud; 9) fraud; and 10) violation of Fla. Stat. §■ 670.204. On November 2, 2004, defendants filed a notice of removal with this court, contending that removal of Mr. Bensman’s state court action was proper because Mr. Bensman’s state law claim under Fla. Stat. § 670.204 is completely preempted by federal law (i.e. 12 C.F.R. §§ 210.25-210.32). Mr. Bensman has now filed a motion to remand this case to state court, contending that his claim under Fla. Stat. § 670.204 is not completely preempted - by federal law. Alternatively, Mr. Bensman argues that even if his claim under Fla. Stat. § 670.204 is completely preempted by federal law, the court should remand his remaining state law claims to the state court. Mr. Bensman neither disputes that defendants’ notice of removal was timely, nor that the removal, procedure itself was proper. DISCUSSION A. Legal Standard on Motions to Remand The Eleventh Circuit has held that “[w]he'ther a claim ‘arises under’ federal law ‘is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.’ ” Dunlap v. G & L Holding Group, Inc., 381 F.3d 1285, 1290 (11th Cir.2004) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d-318 (1987)). “Thus, ‘the plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law,’ even where a federal claim is also available.” Id. Nonetheless, the Eleventh Circuit has clearly held that “even when a plaintiff has pled only state-law causes of action, he may not avoid federal jurisdiction if either (1) his state-law claims raise substantial questions of federal law or (2) federal law completely preempts his state-law claims.” Id. (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983))." }, { "docid": "11007258", "title": "", "text": "truck driver incident was fabricated as a pretext to allow defendant to retaliate against him for exercising his rights under the Missouri workers’ compensation laws. On March 24, 1994, the Missouri state court, ex parte, granted plaintiff a TRO and issued defendant a show cause order. On March 25, 1994, plaintiffs union initiated grievance procedures under the CBA on behalf 'of plaintiff. On March 28, 1994, defendant removed plaintiffs state court action to federal district court, pursuant to 28 U.S.C. § 1441(b), on grounds that plaintiffs claim is preempted by § 301 of the LMRA because it seeks to enforce the CBA. Plaintiff moved for remand to state court and moved for injunctive relief similar to the TRO obtained in state court. The district court, in a single order, denied both motions. Humphrey v. Sequentia, Inc., No. 94-0295-CV-W-1 (W.D.Mo. May 17, 1994) (order denying motion for remand and motion for injunctive relief). By notice dated June 15, 1994, plaintiff appealed the district court’s order pursuant to 28 U.S.C. § 1292(a), (b). While the parties were briefing the issues on appeal, plaintiff filed a motion for leave to amend his complaint, which was accompanied by a proposed amended complaint, in the district court. The district court granted the motion. Plaintiffs amended complaint includes federal claims under § 301 of the LMRA in addition to his original claim of retaliatory discharge under Mo.Rev.Stat. § 287.780. Thereafter, defendant moved to dismiss the appeal on grounds that the amended complaint clearly establishes federal jurisdiction, and thus the question of whether the removal to federal court was proper has become moot. Both the merits of the appeal and defendant’s motion to dismiss the appeal are now before this court. II. Discussion A. Motion to Dismiss the Appeal First, we address defendant’s motion to dismiss this appeal as moot. Defendant argues that once plaintiff amended his complaint to add federal claims under the LMRA, the district court clearly acquired jurisdiction over the LMRA claims, 28 U.S.C. § 1331 (federal question jurisdiction), as well as the retaliatory discharge claim. 28 U.S.C. § 1367 (supplemental jurisdiction). Thus, defendant" }, { "docid": "6092395", "title": "", "text": "moot. According to the NCAA, because the federal court clearly has jurisdiction over O’Halloran’s claims against them at this time her “first appeal should be dismissed as moot.” O’Halloran filed her Second Amended Complaint on January 21, 1988, after the district court ordered her to realign the NCAA as a defendant. In the amended complaint, O’Halloran expressly stated that she “reserves her objections to the court’s jurisdiction.” She contends that she had filed both a motion for certification of the remand issue for appeal and a notice of appeal, which encompassed the remand issue, prior to filing her Second Amended Complaint. According to O’Halloran, because she was ordered by the court to join the NCAA, she was required to proceed by filing the amended complaint, even though the remand issue had not yet been appealed. “Procedural defects in the removal of an action may be waived by the failure to make a timely objection before the case proceeds to the merits_ [Djefects going to the subject matter jurisdiction of the court cannot be waived and may be raised at any time.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir.1979) (citations omitted). “In determining the existence of removal jurisdiction, based upon a federal question [the court] must look to the complaint as of the time the removal petition was filed.” Id. Jurisdiction is based on the complaint as originally filed and not as amended. Id. In Thomas v. Great N. Ry. Co., 147 F. 83 (9th Cir.1906), after removal from state court, the plaintiff moved to have the action remanded. After the district court denied his motion and granted a demurrer for one of the defendants, the plaintiff voluntarily amended the complaint and made the appellee the sole defendant. The appellee argued that by amending his complaint, the plaintiff submitted to the jurisdiction of the court and could no longer contend that the action was not removable. Id. at 86. This court stated that the only question was whether the case was one properly removable from the state court as it stood in that court at the" }, { "docid": "23244499", "title": "", "text": "removed the case to federal district court within 30 days after the amended petition but over a year after the action had been commenced. The district court denied Barnes’s motion to remand. Over a year later, Barnes filed a motion to reconsider and argued, for the first time, that Westinghouse did not remove the case within one year of the filing of the original complaint. On appeal, we held that Barnes’s failure to timely assert that the removal was procedurally defective under the one-year limit of § 1466(b) waived his opportunity to contest the removal. Section 1446(b) is not inflexible, and the conduct of the parties may affect whether it is equitable to strictly apply the one-year limit. In the present case, Ted- ford timely moved to remand. Nevertheless, we are convinced that if Barnes’s sleeping on his rights justified application of an equitable exception in the form of waiver, Tedford’s forum manipulation justifies application of an equitable exception in the form of estoppel. In enacting § 1446(b), Congress intended to “redue[e] opportunity for removal after substantial progress has been made in state court.” Congress may have intended to limit diversity jurisdiction, but it did not intend to allow plaintiffs to circumvent it altogether. Strict application of the one-year limit would encourage plaintiffs to join nondi-verse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction. The facts of this case demonstrate this point. Tedford, a resident of Eastland County, filed a complaint with Castro in Johnson County, despite the fact that neither plaintiff could state a cognizable claim under Texas law against the sole nondi-verse defendant. She amended her complaint to add her own physician hours after learning of Warner-Lambert’s intent to remove. Then, Tedford signed and postdated the Notice of Nonsuit of Dr. DeLuca prior to the expiration of the one-year period, but did not file the document with the court or notify Warner-Lambert until after the one-year anniversary of the filing of the complaint. Equity demands Ted-ford be estopped from seeking to remand the case on the basis of the" } ]

[ { "docid": "6618530", "title": "", "text": "OPINION ROBINSON, Judge: This case is before the court on defendant’s motion for dismissal and plaintiffs cross-motion for partial summary judgment. Plaintiffs’ complaint seeks damages for breach of contract (Count I), just compensation for a taking under the Fifth Amendment to the United States Constitution (Count II), and additional compensation based on allegedly unlawful administrative actions (Count III). Oral argument was held on November 30, 1994. When the court considers matters presented by the parties outside of the pleadings, as it has in this case with respect to Counts I and II, it must treat defendant’s motion to dismiss as a motion for summary judgment. The disposition of a case on a motion for summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(e) of the Rules of the United States Court of Federal Claims (“RCFC”). In evaluating a motion for summary judgment, the court must resolve any doubt about the existence of a material factual issue in favor of the nonmoving party. Housing Corp. of America v. United States, 199 Ct.Cl. 705, 710, 468 F.2d 922, 924 (1972). Applying these standards, the court now grants defendant’s motion for dismissal only with respect to Count III, plaintiffs’ claim for damages for allegedly unlawful administrative actions. Plaintiffs’ partial motion for summary judgment is granted with respect to Count I, plaintiffs’ breach of contract claim; the court agrees with plaintiffs that trial is necessary to determine the damages, if any, flowing from defendant’s breach. Finally, with regard to Count II, the taking claim, both parties’ motions are denied. Factual Background During the 1950s and 1960s, Congress enacted legislation to encourage private developers to construct, own and manage housing projects for low and moderate-income families. To implement the legislation, Congress authorized first the Federal Housing Administration and later the Department of Housing and Urban Development (“HUD” or “the agency”) to provide mortgage insurance to enable private lending institutions to provide low-interest mortgages to housing developers. Housing developers also received financial incentives along with mortgage insurance," } ]

[ { "docid": "22827974", "title": "", "text": "OPINION OF THE COURT SEITZ, Chief Judge. Plaintiffs are five purchasers of homes whose mortgages were insured by the Federal Housing Administration (FHA). Insurance on these mortgages was issued under the “existing home” provisions of §§ 221 and 235 of the National Housing Act, 12 U.S.C. §§ 1715Í and 1715z (1970). Their complaint, on behalf of “all persons in the City of Philadelphia who have purchased, are in the process of purchasing, or may purchase in the future, homes under the 221(d)(2) and 235 Existing House Programs”, alleges that Philadelphia FHA officials violated the Act by insuring mortgages on homes that did not meet the requirements of Philadelphia’s Housing Code. The complaint asks for mandamus, injunctive and declaratory relief against officials of FHA and the Secretary of Housing and Urban Development (HUD), the depártment under which FHA operates. Plaintiffs also prayed for damages against the United States. Plaintiffs moved for partial summary judgment supported by affidavits. Defendants filed no opposing affidavits but moved for dismissal of the complaint. The district court granted plaintiffs’ motion in part, declaring that the FHA officials had violated the Act and enjoining them from insuring mortgages on properties not complying with the Housing Code. The court denied defendant-officials’ motion to dismiss the complaint against them but granted the government’s motion to dismiss the portion of the complaint seeking damages against the United States. 355 F.Supp. 29 (E.D.Pa.1973). Plaintiffs appeal the dismissal of their damage complaint, and defendants appeal the grant of partial summary judgment to plaintiffs. We turn first to the defendants’ appeal. Since they filed no counter affidavits they, of course, limit themselves to asserting reasons why the legal conclusions on which the summary judgment rests are erroneous. STANDING Defendants first contend that the district court was without jurisdiction to entertain the claims on which judgment was granted for plaintiffs because plaintiffs lack standing to sue for injunctive and declaratory relief. Where, as here, an action is brought in federal court challenging federal administrative action as inconsistent with a statute, the plaintiff must meet two requirements to show standing: (1) the challenged action must" }, { "docid": "17744626", "title": "", "text": "OPINION WILSON, Judge. This breach of contract action is before the court on cross-motions for summary judgment and defendant’s partial motion to dismiss. Plaintiff Crest A Apartments Ltd. II (Crest A) alleges that defendant, acting through the Department of Housing and Urban Development (HUD), breached several contracts that the parties entered into pursuant to the National Housing Act, 12 U.S.C. §§ 1701-1750g (2000), and the United States Housing Act (U.S. Housing Act), 42 U.S.C. § 1437f (1994). Specifically, plaintiff alleges that HUD breached Housing Assistance Payments (HAP) Contracts by failing to consider and approve rent increase requests. Plaintiff also claims that HUD violated statutes and regulations and breached a Provisional Workout Arrangement by failing to modify Crest A’s delinquent mortgage. The government denies that it had a contractual or statutory duty to consider or grant Crest A’s rent increase requests. The government also contends that Crest A’s claim that HUD breached the Provisional Workout Arrangement is time-barred. For the reasons discussed below, defendant’s partial motion to dismiss is granted, and the parties’ cross-motions for summary judgment are denied. FACTUAL AND STATUTORY BACKGROUND The Crest A Project (the Project) is a low-income, multi-family housing project consisting of two-hundred rental units located in Dallas, Texas. Crest A owned the Project until HUD foreclosed on plaintiff’s mortgage in December 1996. Crest A was the fifth owner of the Project. When the initial owner of the Project defaulted on its mortgage, the private mortgagee assigned the Project’s mortgage to HUD in exchange for mortgage insurance benefits. (Jt.Stip. Fact II116); see 24 C.F.R. § 236.260 (2001) (requiring a mortgagee to assign a mortgage to HUD at the Commissioner’s request). Plaintiff purchased the Project from the previous owner on May 1, 1983. (Jt.Stip. Fact II125.) Two months after the sale, the Project was withdrawn from foreclosure proceedings. (Id U126.) The National Housing Act and Crest A’s Regulatory Agreements Congress enacted the National Housing Act to help provide “a decent home and a suitable living environment for every American family.” 12 U.S.C. § 1701t. The Act seeks to achieve this goal by “assist[ing] private industry in providing" }, { "docid": "3223750", "title": "", "text": "Realty Company, a subsidiary of U.S. News. Plaintiffs also allege that American Appraisal improperly valued the stock in other ways, which are discussed in greater detail, infra at 1170-1173. The original complaint was filed in early 1984. Since then it has undergone several amendments. At this time the defendants are U.S. News and eight former members of its Board of Directors, the Profit-Sharing Plan, American Appraisal, and the Ma-dana Realty Company. To redress what wrongs they feel they suffered at the hands of those defendants, plaintiffs press a variety of statutory and common-law claims. In Count I of the recently filed Fifth Amended Class Action Complaint, U.S. News, the former directors, and American Appraisal are charged with violations of the Securities Exchange Act of 1934. Count II asserts claims for benefits and damages against U.S. News, the director-defendants, American Appraisal, and the Profit-Sharing Plan under various provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”). In Counts III, IV, V and VI, U.S. News, the director-defendants, and American Appraisal are sued variously for common law and constructive fraud, breach of fiduciary duty, unjust enrichment, negligence and negligent misrepresentation. Plaintiffs have moved for partial summary judgment against all the defendants on the ERISA claims. The defendants, in turn, have moved for summary judgment on all counts, pleading that the relevant statutes of limitation bar most, if not all, the claims. In addition, U.S. News, the director-defendants, and American Appraisal press a variety of theories according to which they argue that each of the statutory and common-law claims are fatally flawed as a matter of law. Subsequent to the filing of their Fifth Amended Complaint, plaintiffs renewed in substance their earlier filed motion for partial summary judgment. U.S. News, the director-defendants and American Appraisal also filed additional motions for summary judgment directed to the new claims raised by the Fifth Amended Complaint. This Memorandum Opinion will discuss the issues presented by the parties’ several motions in the following order: Part I, pp. 7 to 26, discusses the motions of the defendants challenging the complaint on grounds that it was untimely" }, { "docid": "2575002", "title": "", "text": "resolution of disputed issues of material fact by a jury surrounding the statute of limitations defense asserted by these Defendants; (2) the motion of Plaintiff, RTC Mortgage Trust 1994 N-l, for partial summary on the issue of liability on its claims for breach of contract and negligence, set forth in Count I of the Amended Complaint, against Defendant, Fidelity National Title Insurance Company, is DENIED, and that the cross-motion of Defendant, Fidelity National Title Insurance Company, for summary judgment is GRANTED; (3) the motion of Plaintiff, RTC Mortgage Trust 1994 N-l, for partial summary on the issue of liability on its claims for breach of contract and negligence, set forth in Count I of the Amended Complaint, against Defendant, Nations Title Insurance of New York, is GRANTED in part and DENIED part, and that the cross-motion of Defendant, Nations Title Insurance of New York, for summary judgment is GRANTED in part and DENIED in part; (a) the cross-motion of Defendant, Nations Title Insurance of New York, for summary judgment on Plaintiffs claim for breach of contract is GRANTED; (b) the cross-motion of Defendant, Nations Title Insurance of New York, for summary judgment on Plaintiffs claim for negligent title search, is DENIED, and Plaintiffs motion for partial summary judgment on the issue of liability on its claim for negligent title search is GRANTED subject to the resolution of disputed issues of material fact by a jury surrounding the statute of limitations defense asserted by Nations Title Insurance of New York; (c) the cross-motion of Defendant, Nations Title Insurance of New York, for summary judgment on Plaintiffs claim for negligent hiring, is DENIED subject to the resolution of disputed issues of material fact by a jury surrounding the statute of limitations defense; (d) the cross-motion of Defendant, Nations Title Insurance of New York, for summary judgment on Plaintiffs claim for attorneys’ fees, is GRANTED; and (4)the motion of Defendant, Lawyers Title Insurance Company, for summary judgment on Plaintiffs claims for breach of contract and negligence, set forth in Count II of the Amended Complaint, is GRANTED. . Although this is a diversity" }, { "docid": "20285413", "title": "", "text": "2008 (Doc. 41). The Defendants then amended their counterclaims to seal them and flesh out their factual allegations. See Defendants’ First Amended Counterclaim Against Plaintiff and First Amended Claim Against Dr. Charles Goodis, filed April 22, 2009 (Doc. 92)(“Counterclaims”). Those counterclaims that are the subject of this motion. Guidance filed a motion seeking leave to exceed the page limits set forth in Local Rule 7.5 and obtained consent from the Defendants’ counsel to submit a memorandum of up to thirty-five pages in length. See Unopposed Motion to Enlarge Page Limitations for Plaintiffs Motion for Partial Summary Judgment, filed July 31, 2009 (Doc. 223). The Court granted that motion. See Unopposed Order Granting Plaintiffs Unopposed Motion to Enlarge Page Limitations for Plaintiffs’ Motion for Partial Summary Judgment, filed August 3, 2009 (Doc. 229). The Court now addresses the substance of this lengthy motion. Guidance and Goodis move the Court, pursuant to rule 56 of the Federal Rules of Civil Procedures, to render summary judgment on Counts I through XIII of the Defendants’ counterclaims. In the Response, the Defendants withdrew Count IV, a claim for violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c), and Count IX, a claim for tortious interference with prospective business advantage. See Response at 16, 26. The remaining counts are: (i) breach of contract (Count I); (ii) covenant of good faith and fair dealing (Count II); (iii) violation of the Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count III); (iv) violation of 15 U.S.C. § 1114(1) (Count V); (v) common law unfair competition (Count VI); (vi) violation of the New Mexico UPA, NMSA 1978, §§ 57-12-1 to 57-12-26 (Count VII); (vii) unlawful misappropriation of the Defendants’ reputation, goodwill, intangible trade values and standing in the dental community (Count VIII); (viii) fraud (Count X); (ix) punitive damages (Count XI); (x) declaratory judgment that the Defendants were not bound to perform because of Guidance’s wrongful conduct (Count XII); and (xi) rescission (Count XIII). Because of the nature of this motion, Guidance did not seek concurrence of opposing counsel. The Defendants oppose the motion." }, { "docid": "11518852", "title": "", "text": "MEMORANDUM OPINION AND ORDER VIRGINIA M. KENDALL, District Judge. Plaintiff, Wachovia Securities, LLC (“Wachovia”) brings a ten-count Revised Second Amended Complaint against Defendants, David Neuhauser (“Neuhauser”), Andrew A. Jahelka (“Jahelka”), Richard O. Nichols (“Nichols”), Leon A Greenblatt, III (“Greenblatt”) (collectively “the Individual Defendants”), Banco Panamericano (“Banco”), Loop Corp. (“Loop”), Loop Properties, Inc. (“Loop Properties”), and Scattered Corp. (“Scattered”) (collectively “the Defendants”) seeking damages for common law fraud, breach of contract and all remedies available under the Illinois Uniform Fraudulent Transfer Act (“UFTA”). Wachovia also seeks a declaratory judgment that Neuhauser, Jahelka, Nichols, and Greenblatt (the “Individual Defendants”) are jointly and severally liable for the obligations of their alter egos, Loop and NOLA, LLC (“NOLA”). Wachovia moves for Partial Summary Judgment against Neuhauser and Green-blatt. Neuhauser and Greenblatt moves to strike several paragraphs and two exhibits associated with Wachovia’s Motion for Partial Summary Judgment. Banco, Loop, Loop Properties, and Scattered (the “Corporate Defendants”) and the Individual Defendants move for summary judgment against Wachovia on all counts of the Revised Second Amended Complaint. For the reasons stated herein, Defendants’ Motion to Strike Paragraphs 31-36 and 39-43 and Exhibits 9 and 12 of Wacho-via’s Amended Statement of Material Facts is granted. Plaintiffs Motion for Partial Summary Judgment is denied. The Individual Defendants’ Motion for Summary Judgment as to Counts I and VI is granted. The Individual Defendants’ Motion for Summary Judgment as to Counts II through V is denied as to Loop, Greenblatt, Jahelka, and Nichols, granted as to Loop and Neuhauser, and granted as to NOLA and the Individual Defendants. The Corporate Defendants’ Motion for Summary Judgment as to Counts VII through X brought under the Illinois Uniform Fraudulent Transfer Act is denied. Additionally, the Individual Defendants’ Motion to Bar Wachovia’s New Fraud Claim is granted and the Corporate Defendants’ Motion to Bar Alleged Fraudulent Conveyances not in the Complaint is denied. I. Background Wachovia is a lending and banking institution and a successor to Prudential Securities Incorporated (“Prudential”). Prudential’s customer debits became Wa-chovia’s assets after a July 2003 merger. PI. 56.1 Resp. ¶ l. Wachovia is a limited liability company and" }, { "docid": "12225783", "title": "", "text": "OPINION LYDON, Senior Judge. The plaintiffs in this action are each the owner of a multifamily rental housing project whose construction was financed with a low-cost mortgage loan insured by the U.S. Department of Housing and Urban Development pursuant to section 236 of the National Housing Act, as amended. Plaintiffs assert that they each entered into a contract with the United States, through the Department of Housing and Urban Development, which granted them the right to prepay their mortgages without government approval after 20 years, and thereby free themselves of regulations limiting their rental rates and income. Plaintiffs allege that these contracts were breached by the United States when federal legislation was enacted in 1990 — the Low-Income Housing Preservation and Resident Homeownership Act of 1990 (LIHPRHA), 12 U.S.C. §§ 4101 et seq. — which anticipatorily repudiated the Government’s contractual obligation to permit prepayment. Plaintiffs also allege that the legislation resulted in a taking of their properties without just compensation in violation of the Fifth Amendment to the U.S. Constitution. Defendant denies that plaintiffs had any contract with the Government relating to the prepayment of their mortgage notes, or that any property interests belonging to the plaintiffs have been subject to a taking. The case is before the court on defendant’s motion for summary judgment. Plaintiffs oppose defendant’s motion and seek a trial on the issues of contract formation, taking, and damages. For the reasons discussed hereinafter, the court finds that there was no breach of contract and no taking by the Government. Defendant’s motion for summary judgment is granted. FACTUAL BACKGROUND National housing policy, the goal of which is to provide “a decent home and a suitable living environment for every American family,” 42 U.S.C. § 1441, began in the New Deal era with the passage of the National Housing Act (NHA) of 1934 and the United States Housing Act of 1937. Initially the federal government sought to provide low-income housing primarily by subsidizing projects developed, owned, and managed by local public housing authorities. During the 1960s the federal government shifted its focus by enacting legislation to encourage the" }, { "docid": "12288473", "title": "", "text": "OPINION ERIC G. BRUGGINK, Judge Plaintiff, Normandy Apartments, Ltd. (“Normandy”) brought this action initially as a breach of contract claim. Normandy owns and manages an apartment building in Tulsa, Oklahoma, for which it received housing assistance payments from The Department of Housing and Urban Development (“HUD”) in exchange for maintaining the building for low income tenants at reduced rental rates. It asserted that HUD violated that contract by refusing to continue to make those housing assistance payments. In an earlier decision, the court granted the government’s motion to dismiss, concluding that Normandy and the United States were not in privity of contract. Normandy Apartments, Ltd. v. United States, 100 Fed.Cl. 247 (2011). The court allowed plaintiff to amend its complaint, however, to state a claim for a taking of real property in violation of the Fifth Amendment. Defendant has moved for summary judgment on that sole remaining claim. For the reasons explained below, we grant the motion for summary judgment. BACKGROUND I. Factual Background Normandy is a limited partnership operating out of Oklahoma City, Oklahoma. Normandy owns and manages an apartment complex in Tulsa, Oklahoma, which was built in 1968. Most of the apartments are purposed for government-assisted affordable housing, commonly known as “section 8 housing.” The construction of the apartments was originally funded, at least in part, by a mortgage insured by the Federal Housing Authority, a part of HUD. In exchange for the HUD-baeked loan, Normandy entered a regulatory agreement with HUD whereby it agreed to reserve a large number of units for low income tenants. Def.’s App’x 1-8 (1967 Regulatory Agreement). In 1992, Normandy also entered into a Housing Assistance Payments (“HAP”) contract with HUD. It agreed to maintain and operate 192 of the units for low income families in a “decent, safe, and sanitary” manner in exchange for monthly rental assistance payments from HUD. See 24 C.F.R. § 886.323(a) (2013). Under the HAP contract, HUD agreed that, “[f|or each contract unit occupied by an eligible family in accordance with this Contract, HUD will pay the Owner the difference between the HUD-approved gross rent and Gross Family" }, { "docid": "21174651", "title": "", "text": "BRYSON, Circuit Judge. The plaintiffs, Joseph F. Carabetta and a group of companies associated with him, are the owners and managers of properties that have provided low-income rental housing under several programs sponsored by the Department of Housing and Urban Development (HUD). Based on a dispute with HUD, the plaintiffs, which we refer to collectively as “Carabetta,” brought a breach of contract action against the United States in the Court of Federal Claims. On cross-motions for summary judgment, the court held the United States liable for breach of contract. 58 Fed.Cl. 563, 568 (2003). The court then conducted a trial on damages and entered an award. 68 Fed.Cl. 410, 426 (2005). The government appeals from the trial court’s liability determination, and Carabetta cross-appeals with respect to the damages award. We affirm as to both the liability appeal and the damages cross-appeal. I During the 1960s and 1970s, the plaintiffs acquired a number of low-income housing properties using mortgages insured by the federal government under sections 221(d)(3) and 236 of the National Housing Act, Pub. L. No. 73-479, 48 Stat. 1246 (1934), as amended by Pub. L. No. 87-70, § 101, 75 Stat. 149, 150-51 (1961), and Pub. L. No. 90-448, § 201, 82 Stat. 476, 498-501 (1968). Deeds insured under that program gave the owners the option of paying off the mortgages early, once 20 years had passed since the mortgage was issued. As the mortgage program neared its 20-year anniversary, Congress became concerned that owners of properties insured under the program would pay off their mortgages and, freed of the mortgage restrictions, would convert the properties from low-income housing to more profitable rental units. Accordingly, Congress passed the Emergency Low Income Housing Preservation Act of 1987 (ELIHPA), Pub. L. No. 100-242, 101 Stat. 1877, and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 (LIHPRHA), Pub. L. No. 101-325, 104 Stat. 4249. Both statutes prohibited owners from prepaying section 221(d)(3) mortgages without approval from HUD. The statutes instead authorized HUD to guarantee private loans on the properties in amounts up to 90 percent of the equity in the" }, { "docid": "4570896", "title": "", "text": "OPINION DAMICH, Judge: Plaintiffs are a number of owners and developers of low-income housing projects who claim a taking of their contractual right to prepay government-insured mortgages on their respective projects and thus to terminate certain governmental restrictions on rents and other aspects of the properties’ use. These “affordability restrictions” were part of their bargain to provide below-market rate rents to low-income tenants in exchange for mortgage guarantees and interest subsidies from the federal government. Plaintiffs allege that Congress’s enactment of the Low Income Housing Preservation and Resident Homeownership Act (“LIH-PRHA”), like its predecessor, the Emergency Low Income Housing Preservation Act (“ELIHPA”), was intended as a matter of public policy to burden and, in most instances, deter prepayment in order to avoid what loomed as a potentially significant reduction in the stock of affordable housing. LIH-PRHA “was consciously known by Congress to constitute a taking of the Owners’ original prepayment rights.” Plaintiffs’ Fifth Amended Complaint 1. The issue before the court presently is whether the Plaintiffs’ claims for damages are ripe. Defendant argues that the Plaintiffs’ as-applied regulatory takings claims are not ripe because they failed to exhaust their administrative remedies, that is, they failed to seek prepayment approval from the United States Department of Housing and Urban Development (“HUD”) pursuant to the administrative process established by the Pres-ervations Statutes. The Plaintiffs assert the futility exception to the administration exhaustion requirement. Pending before the court are the parties’ cross-motions for summary judgment on ripeness. For the reasons stated herein, Defendant’s motion for summary judgment is granted in part and denied in part. Plaintiffs’ motion for summary judgment is denied. I. Background A. The Preservation Statutes Plaintiffs here constructed housing for low-income renters in exchange for mortgage insurance and interest subsidies from the government under two federal programs (known as the section 221(d)(3) and section 236 programs). Anaheim Gardens v. United States, 444 F.3d 1309, 1313 (Fed.Cir.2006). Under the programs, an owner would obtain financing by executing a deed of trust note to a private lender. Def.’s Restated Mot. Summ. J. 5 (“Def.’s Mot.”). The repayment period was 40 years. Id." }, { "docid": "7109575", "title": "", "text": "in Counts I, II, and III of the First Amended Complaint, and that Defendants are entitled to summary judgment on Counts IV and V of the First Amended Complaint. Therefore, Plaintiffs motion for partial summary judgment (which only pertains to Counts I, II, and III) is granted, while Defendant’s motion for summary judgment is granted in part with respect to Counts IV and V, and denied in part with respect to Counts I, II, and III. The first two motions for extensions of time to complete briefing on the cross-motions for summary judgment are granted nunc pro tunc, and any responses received as of this date are accepted as timely filed. All other remaining motions are denied in light of the Court’s ruling on the dispositive issues raised in the parties’ cross-motions for summary judgment, and the trial scheduled for September 12, 2006, is vacated. The Court directs Plaintiffs counsel to meet and confer with Defendant’s counsel and submit a proposed form of final order granting the relief requested in Counts I, II, and III of the First Amended Complaint by no later than September 13, 2006. I. BACKGROUND On July 8, 2005, Plaintiff Nextel West Corp. d/b/a Nextel Communications filed this civil action against Defendant Town of Edgewood, New Mexico, and a number of town officials. The central allegation in Plaintiffs Complaint is that Defendants violated several provisions of the Telecom-munieations Act of 1996, 47 U.S.C. § 332(c)(7), when they denied Plaintiffs application to install an array of antennas on an existing tower where two similar antenna arrays belonging to other personal wireless service providers are already installed. Plaintiff filed a First Amended Complaint [Doc. 8] on September 2, 2005, which Defendants answered on September 19, 2005. [Doc. 9.] Thereafter, the Court issued an Initial Pretrial Report [Doc. 19] pursuant to Fed.R.Civ.P. 16 and D.N.M. LR-Civ. 16.1, which established a number of pretrial case-management deadlines and set a trial date of September 12, 2006. Some of the individual town officials named as Defendants in the First Amended Complaint were dismissed by stipulation of the parties. [Doc. 21* 26, 38.]" }, { "docid": "16335363", "title": "", "text": "OPINION AND ORDER HEWITT, Judge. Plaintiff Pacific Gas & Electric (PG & E) seeks damages from defendant arising from an alleged breach of the Department of Energy (DOE)’s contractual obligations under the Nuclear Waste Policy Act. Complaint (Compl.) It l. Plaintiff seeks damages for defendant’s alleged partial breach of contract in Count I of its complaint, see Compl. it 25, restitution of all fees allegedly paid and payable to defendant under such contract in Count II of its complaint, see Compl. 1T 29, and just compensation for defendant’s alleged taking of its property in Count III of its complaint. Presently before the court are Defendant’s Motion for Summary Judg[ jment Upon Counts II and III of Plaintiffs Complaints (Def.’s Mot. or Motion), Defendant’s Proposed Findings of Uncontroverted Fact (Def.’s PFUF or Proposed Findings), plaintiffs Opposition to Motion for Summary Judgment on Counts II and III of PG & E’s Complaints (Pl.’s Resp. or Response), Defendant’s Reply to Plaintiffs Response to Defendant’s Motion for Summary Judgment Upon Counts II and III of Plaintiffs Complaints (Pl.’s Reply or Reply), and PG & E’s Surre-ply Opposing the Government’s Motion for Summary Judgment on Count II of PG & E’s Complaint (Pl.’s Sur-Reply or Sur-Reply). Pursuant to Rule 56(b) of the Rules of the Court of Federal Claims (RCFC), defendant moves the court to grant partial summary judgment in its favor upon counts II and III of plaintiffs complaint. Def.’s Mot. at 1. 1. Background On January 7, 1988, Congress enacted the Nuclear Waste Policy Act of 1982 (NWPA), Pub.L. No. 97-425, 96 Stat. 2201 (codified at 42 U.S.C. §§ 10101-10270 (2000)), because of concerns over the disposal of nuclear waste accumulating at nuclear power plants, see Def.’s PFUF 11 l. The NWPA authorized the Secretary of DOE to enter into contracts with utilities for the disposal of spent nuclear fuel (SNF) and high-level radioactive waste (HLW). See 42 U.S.C. § 10222(a)(1); Def.’s PFUF IT 3; see generally 42 U.S.C. §§ 10101-10270. The NWPA required that all contracts “shall provide that” DOE will dispose of the waste “beginning not later than January 31, 1998.”" }, { "docid": "12232039", "title": "", "text": "OPINION and ORDER HODGES, Judge. This is a claim for a taking under the Fifth Amendment of the United States Constitution. Plaintiffs are participants in a government program to encourage the development of low-income housing. They allege that contractual rights to prepay government-insured mortgages on their properties were taken by passage of the Emergency Low Income Housing Preservation Act of 1987 and the Low Income Housing Preservation and Resident Homeownership Act of 1990. Plaintiffs did not have compensable property rights for purposes of the Fifth Amendment because regulations authorizing the program reserved to the Department of Housing and Urban Development the right to amend those regulations at any time. We grant defendant’s motion for summary judgment. I. BACKGROUND Congress authorized the Federal Housing Administration through the National Housing Act of 1934, and later the Department of Housing and Urban Development, to insure the mortgages of private developers of low-income housing. National Housing Act, ch. 847, 48 Stat. 1246 (1934) (codified as amended at 12 U.S.C. §§ 1701-1750g (2000)). This enabled private lending institutions to provide low-interest mortgages to developers who would agree to build such housing through a program known as Section 221. 24 C.F.R. § 221.542 (1970). See Cienega Gardens v. United States, 194 F.3d 1231, 1234 (Fed.Cir.1998) (Cienega II). Developers also could receive interest subsidies on market-rate mortgages through the rental and cooperative housing program for lower income families, known as Section 236. 24 C.F.R. § 236.30 (1970). Under that program, developers would “operate the project in accordance with such requirements with respect to tenant eligibility and rents as the Secretary may prescribe.” Id. The eligibility requirements for Section 236 mortgage insurance are found at 24 C.F.R. § 236.1 (1970). Both programs involved participation among HUD, a bank or other private lending institution, and the developer or owner. HUD issued a “Commitment for Insurance of Advances” to the bank, guaranteeing its loan to the developer of low-income housing for a term of 40 years subject to the regulations then in effect. The Commitment required the developer to sign a separate “Regulatory Agreement” with HUD. That agreement permitted the" }, { "docid": "14973311", "title": "", "text": "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 strike, and have supplied no explanation for this failure. Local Rule 56.1(d) provides that “material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by opposing parties.” In their response, defendants make general denials, and fail to, despite the voluminous record supplied by plaintiff in this matter, provide any record support or other basis for these denials. The Court is permitted to disregard such general denials when not supported by citations or if cited materials do not support factual assertions. See Watt v. New York Botanical Garden, Civ. No. 98-1095(BSJ), 2000 WL 193626, at *1 n. 1 (S.D.N.Y. Feb. 16, 2000); see also Monahan v. New York City Dep’t of Corrections, 214 F.3d 275, 292 (2000) (noting that statements filed under Local Rule 56.1 by party opposing summary judgment must be accompanied by citation to admissible evidence). In their Response, defendants generally denied 41 of plaintiffs 61 statements of fact. The rest are admitted. They" }, { "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": "16202856", "title": "", "text": "GAJARSA, Circuit Judge. This is a regulatory takings case wherein the Plaintiffs allege that the United States’s enactment of legislation relating to low-income housing programs breached contracts between the Plaintiffs and the United States and effected a regulatory taking of property protected under the Fifth Amendment. Plaintiffs-Appellants, Chancellor Manor (“Chancellor Manor”), Gateway Investors, Ltd. (“Gateway Investors”), and Oak Grove Towers Associates (“Oak Grove”) (collectively “Appellants” or “Owners”), appeal the November 30, 2001 final judgment of the United States Court of Federal Claims granting summary judgment to the United States on Appellants’ breach of contract and takings claims. Chancellor Manor v. United States, 51 Fed. Cl. 137 (2001). Because the Court of Federal Claims correctly granted summary judgment with respect to Appellants’ breach of contract claims but incorrectly determined that Appellants did not possess protectible real property interests and thus presented no compensable takings claims, we affirm-in-part, reverse-in-part, and remand for further proceedings consistent with this opinion. I. BACKGROUND Appellants are the owners of various multifamily rental housing projects in Minnesota. The housing projects were developed and financed pursuant to Section 221(d)(3) and Section 236 of the National Housing Act (“NHA”) through a three-party arrangement including the Owners, the Department of Housing and Urban Development (“HUD”), and private lenders. The Section 221(d)(3) and Section 236 programs (“the programs”) were designed by Congress primarily to encourage creation of low-income housing. Generally, in exchange for an agreement by property Owners to maintain particular properties as low-income housing properties (subject to federal regulations), the United States granted various tax benefits and committed to insuring the mortgages of the Owners. Prior to 1968, this mortgage insurance enabled the Owners to obtain below-market rate mortgages (Section 221(d)(3)). After 1968, the NHA was amended to enable Owners to obtain a market-rate mortgage with an interest rate subsidy from the United States and enabled the lenders to issue long-term mortgages amortizable over a forty-year period (Section 236). In addition, as Appellants contend, another incentive was the option to prepay the mortgages, without HUD approval, at the end of a twenty-year term and thus eliminate the restrictions on the" }, { "docid": "20954480", "title": "", "text": "Count I. Count III alleges a violation of an implied private right of action under the LBPPPA, and Count IV asserts a claim for breach of the annual contributions contract (“ACC”) executed between the United States Department of Housing & Urban Development (“HUD”) and the DHC, as a third-party beneficiary. Count V alleges breach of warranty of habitability in violation of Michigan Compiled Laws § 554.139. Counts VI and VII assert claims of common law negligence and nuisance per se, respectively. Defendants filed a motion pursuant to Fed. R. Crv.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. Following oral argument, the district court, on May 24, 2004, issued a comprehensive opinion and order, granting in part defendants’ motion with regard to Counts I, II, and III of the complaint. See Johnson v. City of Detroit, 319 F.Supp.2d 756 (E.D.Mich.2004). Specifically, the district court concluded that the relevant provisions of the USHA, the LBPPPA, and accompanying regulations did not confer personal federal rights on plaintiff, as a tenant of Section 8 housing, that could be enforced pursuant to § 1983. Id. at 763-79. In addition, the court held that the LBPPPA does not allow for an implied private right of action. Id. at 779 n. 11. The district court dismissed all remaining supplemental state law claims (Counts IV-VII) under 28 U.S.C. § 1367 without prejudice. Id. at 781. On June 8, 2004, plaintiff filed a motion to alter or amend judgment, and to amend the complaint to allege violations of plaintiffs Fifth and Fourteenth Amendment rights to substantive due process. The district court denied the motion by order entered on June 21, 2004. On June 24, 2004, plaintiff filed a timely notice of appeal from both the judgment of May 24, 2004, granting in part defendants’ motion to dismiss, and the order of June 21, 2004, denying plaintiffs motion to alter or amend the judgment and to amend the complaint. II. We review a district court’s dismissal of a complaint under Rule 12(b)(6) de novo. Arrow v. Fed. Reserve Bank of" }, { "docid": "230308", "title": "", "text": "parent company, Provident Companies, Inc. The Original Complaint alleged claims for breach of contract, attorney’s fees and penalties for bad faith denial of insurance claim under O.C.G.A. § 33^4-6 (Supp. 2002), tort damages under O.C.G.A. § 51-12-6 (2001), and punitive damages under O.C.G.A. § 51-12-5.1 (2001). After the addition of new counsel, Plaintiff amended the complaint to abandon all of the original claims and to allege the following claims: violation of the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”), O.C.G.A. § 16-14-4(a)-(c) (1999) (Counts I — III); fraud and deceit (Count IV); breach of covenants of good faith and fair dealing (Count V); tortious breach of contract (Count VI); and tor-tious interference with property rights (Count VII). By an Order dated July 29, 2002 (the “July 29 Order”), this Court granted Defendants’ Motion for Summary Judgment as to Counts I-IV and VII of Plaintiffs First Amended Complaint. However, the Court allowed Plaintiff to amend the Complaint to assert a new Count V alleging bad faith breach of insurance contract under O.C.G.A. § 33-4-6. Plaintiff has moved for reconsideration of the July 29 Order, and Defendants have moved for summary judgment on the new Count V. II. DISCUSSION A. Plaintiffs Notice of Supplemental Evidence As a threshold issue, Plaintiff has submitted three additional items of evidence in support of all of her pending motions. These items are: (1) a videotape and transcript of Dateline: Benefit of the Doubt (NBC television broadcast, Oct. 13, 2002); (2) a videotape and transcript of 60 Minutes: Not the Best Policy? (CBS television broadcast, Nov. 17, 2002); and (3) a copy of Hangarter v. The Paul Revere Life Insurance Co., 236 F.Supp.2d 1069 (N.D.Cal.2002). Plaintiff alleges that these items constitute new evidence relating to Defendants’ alleged illegal practices. Plaintiff also argues that these items show that the Court should reopen discovery. The Court has reviewed these materials and agrees with Defendants that they constitute inadmissible hearsay. Thus, to the extent that Plaintiff submits these items for the Court’s analysis in Plaintiffs Motion for Reconsideration or Defendants’ Motion for Partial Summary Judgment, the Court cannot rely" }, { "docid": "19725111", "title": "", "text": "Order of November 25, 1996, dismissing these defendants. III. CONCLUSION The Court will enter an appropriate order, consistent with this opinion, granting partial summary judgment to plaintiffs, partial summary judgment to the State to the extent that the Court dismisses plaintiffs’ counts aside from the FHAA count as moot, and relief to the plaintiffs as outlined' above. ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Presently before this Court are cross-motions for summary judgment filed by plaintiffs and defendant State of New Jersey. Upon consideration of the submissions of the parties; and For the reasons outlined in this court’s Opinion of this date; IT IS on this 30th day of December 1996 hereby ORDERED that plaintiff’s motion for summary judgment is GRANTED in part and defendant’s summary judgment motion is DENIED in part insofar as the Court declares that application of the below-quoted portions of NJ.Stat.Ann. § 40:55D-66.1 (West Supp.1996) to community residences for the developmentally disabled (as defined in § 40:55D-66.2) is invalid pursuant to the Fair Housing Act, 42 U.S.C.A., chap. 45 (1994 and West Supp.1996), as amended by the Fair Housing Amendments Act of 1988: IT IS FURTHER ORDERED that the application of the above-quoted portions of § 40:55D-66.1 to community residences for the developmentaUy disabled as defined in § 40:55D-66.2 be of no further force and effect in the State of New Jersey; IT IS FURTHER ORDERED that the Attorney General of the State of New Jersey provide this Order and accompanying Opinion to appropriate representatives of the State Legislature, and of each of the State’s 568 municipalities, within thirty days of the date of this Order; IT IS FURTHER ORDERED that defendant’s motion for summary judgment is GRANTED in part and plaintiffs motion for summary judgment is DENIED in part ins.o-far as the Court dismisses Counts XI, XII and XIII of the Amended Complaint as moot in light of its finding the challenged application of the Section 66.1 provisions void pursuant to the Fair Housing Act; IT IS FURTHER ORDERED that plaintiffs submit their applications for attorneys’ fees and costs against the State, and for fees against" }, { "docid": "12225784", "title": "", "text": "any contract with the Government relating to the prepayment of their mortgage notes, or that any property interests belonging to the plaintiffs have been subject to a taking. The case is before the court on defendant’s motion for summary judgment. Plaintiffs oppose defendant’s motion and seek a trial on the issues of contract formation, taking, and damages. For the reasons discussed hereinafter, the court finds that there was no breach of contract and no taking by the Government. Defendant’s motion for summary judgment is granted. FACTUAL BACKGROUND National housing policy, the goal of which is to provide “a decent home and a suitable living environment for every American family,” 42 U.S.C. § 1441, began in the New Deal era with the passage of the National Housing Act (NHA) of 1934 and the United States Housing Act of 1937. Initially the federal government sought to provide low-income housing primarily by subsidizing projects developed, owned, and managed by local public housing authorities. During the 1960s the federal government shifted its focus by enacting legislation to encourage the construction, ownership and management of low and moderate-income housing by private owners. Specifically, Congress amended the National Housing Act in 1961 by establishing the section 221(d)(3) program, 12 U.S.C. § 1715£(d)(3), allowing the Federal Housing Administration (which was subsumed in the newly-created Department of Housing and Urban Development, HUD, in 1965) to provide mortgage insurance and below-market interest rate loans to private owners. In 1968 Congress amended the NHA again, establishing the section 236 program, 12 U.S.C. § 1715z-l, which allows HUD to provide mortgage insurance and interest rate subsidies to private owners. Both the section 221(d)(3) and section 236 programs require owners to pass on the financial benefits of the government-insured loans to tenants in the form of lower rents. Owners accepting a government-insured loan pursuant to the section 221(d)(3) and section 236 programs were subject to HUD regulations governing the use of their properties. They were restricted as to the distribution of their income, the rents and other fees they could charge, and their methods of operation. 24 C.F.R. §§ 221.510(c), 236.10(e) (1970)." } ]

[ { "docid": "13338009", "title": "", "text": "on June 25, 1979. This is his third PCHA petition dating back to August 25, 1977. The allegations in this petition are identical to those raised in the instant federal petition for writ of habeas corpus. No action has yet been taken on relator’s third PCHA petition. Relator’s instant petition for writ of habeas corpus was filed on June 28, 1979, which was subsequently amended on July 18,1979 and August 14,1979. Additionally, on August 3,1979, relator filed in the federal district court a “petition for bail pending appeal to the United States Supreme Court.” In his present petition for federal habeas corpus relief relator alleges he was illegally and unlawfully incarcerated in the State Correctional Institution following his conviction; that he was deprived of procedural due process in violation of the law when the trial court failed to properly review his claims through post-trial motions, and counsel was ineffective for a number (eleven) of reasons. DISCUSSION I It is at once clear that due to the pendency of relator’s June 25, 1979 PCHA petition, relator has failed to exhaust his state remedies. The “exhaustion doctrine”, simply stated, is that a habeas applicant before being entitled to federal relief must first pursue those remedies still open to him at the time he files his petition in the federal court. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Only if the state courts have had the first opportunity to hear the claims sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, the courts have required a state prisoner to present the state courts with the same claim he urges upon the federal court. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438. The Third Circuit Court of Appeals has further ruled that this requirement is to be strictly followed. Zicarelli v. Gray, 543 F.2d 466 (3rd Cir. 1976); United States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3rd Cir. 1977). Thus, all but one of relator’s claims are not" } ]

[ { "docid": "7629681", "title": "", "text": "1972) . The petitioner has tried long enough to exhaust his remedies. We are not precluded from hearing his petition because of the exhaustion requirement for “[djeference to an available state court remedy does not imply powerlessness to afford the petitioner a prompt hearing when by reason of delay the state process may prove to be ineffective to protect the rights of the prisoner.” Id. at 309. Petitioner Codispoti’s application for ha-beas corpus relief outlines an exceptional history of delay and unresponsiveness on the part of the state court system. If his allegations are correct he has had no effective way to appeal his conviction. The trial court’s delay in responding to his post-trial motions has stymied his appeal and barred judicial review. The normal process has been ineffective to provide review of his allegations that his trial was conducted unlawfully. In our decision in United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975), we granted habeas corpus relief after a three year delay in disposing of a new trial motion. Similarly in United States ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir. 1973) , we granted relief after a three and one-half year delay in disposing of a PCHA petition. Surely if a three year delay warrants federal court review, Codispoti’s almost twelve year delay is a ground for review. Moreover, consideration of Codispoti’s petition would not conflict with the principles of comity underlying the exhaustion requirement. Exhaustion is “designed to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Wilwording v. Swenson, 404 U.S. at 250, 92 S.Ct. at 409, quoting Fay v. Noia, 372 U.S. at 438, 83 S.Ct. 822. The Pennsylvania courts have been given more than an ample “opportunity to pass upon” Codispoti’s new trial motion.. They could and should have ruled when he first submitted his new trial motion and they were reminded of its penden-cy by his first PCHA petition. Further, when the federal district court in 1976 abstained from deciding Codispoti’s first habe-as petition, the state courts" }, { "docid": "3041946", "title": "", "text": "habeas corpus, 28 U.S.C. § 2254, which eventually reached the District Court for the Western District of Pennsylvania. In addition to raising.three substantive claims, Story’s habeas petition related his inability to contact Entenman and his frustration that, after several years, there had been no disposition on his PCHA petition. The Commonwealth filed a response in which it asserted that the habeas petition should be denied for failure to exhaust all claims therein or, in any event, because the claims were without merit. The matter was referred to a magistrate judge who, despite Story’s revelations of state court delay, recommended that the district court dismiss the petition for failure to exhaust state court remedies. Story filed objections, in which he again asserted that, under the circumstances, the state process was ineffective to protect his rights, and that, in accord with 28 U.S.C. § 2254(b), it would be futile to require him to exhaust his state remedies. By order entered September 17, 1992, the district court adopted the magistrate judge’s Report and Recommendation, dismissed the petition, and denied Story’s request for the issuance of a certificate of probable cause. Story timely appealed, again seeking the issuance of a certificate of probable cause. A motions panel of this Court found probable cause to appeal and issued the certificate on May 28, 1993. Since this is an appeal from a final order dismissing Story’s pro se petition for writ of habeas corpus, we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the district court’s determination that state remedies have not been exhausted and should not be excused. Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.1991). II. EXHAUSTION OF STATE REMEDIES Generally, a state prisoner seeking federal habeas relief must present each of his claims to the state’s highest court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971); Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982). However, exhaustion is not jurisdictional, but a matter of comity. See Id., 455 U.S. at 515, 102" }, { "docid": "16913495", "title": "", "text": "call two witnesses to testify that petitioner was intoxicated prior to the shootings; (3) failed to elicit testimony from petitioner himself as to his defense; and (4) failed to present evidence, through the defense expert witness, Dr. Hakki, that petitioner’s behavior was reckless and unintentional. Although, as I discuss below, petitioner has in the past advanced ineffective assistance of counsel before the state courts, he has never presented two of the four factual bases for his present ineffective assistance claim to those courts. Accordingly, I cannot conclude that petitioner has exhausted his state remedies with respect to that claim. A state prisoner seeking federal habeas corpus review of his state conviction must first exhaust available state remedies. 28 U.S.C. § 2254(b), (c) (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Twitty v. Smith, 614 F.2d 325, 331 (2d Cir.1979). This requirement is rooted in considerations of federal-state comity, and seeks to allow states the opportunity to correct constitutional errors prior to federal intervention. In order for a federal court to entertain a petition for the writ, all claims contained in the petition must be “fairly presented” to the state courts. Picard, 404 U.S. at 275, 92 S.Ct. at 512. So-called “mixed” petitions — those raising both exhausted and unexhausted claims — must be dismissed in their entirety under the “total exhaustion” rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Our court of appeals has held that “[i]n order to have fairly presented [a] federal claim to the state courts [a] petitioner must have ... set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim.” Daye v. Attorney General (Daye II), 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984); see also Picard, 404 U.S. at 276, 92 S.Ct. at 512 (“[A] state prisoner must ... present the state" }, { "docid": "19869518", "title": "", "text": "On appeal, the state argues that the district court erred in finding that Ellman had exhausted his state court remedies and in its alternative finding that the available state court remedies were ineffective to protect Ellman’s rights. We agree with the state and, therefore, need not reach the merits of Ellman’s habeas petition. Under 28 U.S.C. § 2254(b), before a court can address the merits of any constitutional issue raised in a petition for a writ of habeas corpus, it must find that the petitioner has “exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the [petitioner].” Where state law affords petitioner a right to raise his claim “by any available procedure,” and the claim is not raised, it cannot be deemed to have been exhausted. Id. § 2254(c). “[I]t is not sufficient merely that the [petitioner] has been through the state courts.” Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 511-12, 30 L.Ed.2d 438 (1971). Rather, the petitioner’s claims must be fairly presented so that the state has the opportunity to correct any alleged constitutional violations. Id. at 276, 92 S.Ct. at 512. The federal habeas corpus exhaustion requirement is grounded in principles of federal-state comity. See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991) (discussing adequate and independent state ground doctrine as it relates to the federal habeas exhaustion requirement). It provides the state courts with the first opportunity to correct potential constitutional violations before the federal courts intervene. Id. This principle is just as significant in civil contempt proceedings as it is in other contexts. See United States ex rel. Goodman v. Kehl, 456 F.2d 863, 869 (2d Cir.1972) (“considerations of federal-state comity that militate against federal court intervention, by way of habeas corpus,” apply with equal force in the context of civil contempt proceedings). Moreover, a petitioner who procedurally defaults on his state court remedies is barred from obtaining federal" }, { "docid": "13338008", "title": "", "text": "arrested and detained by the Pennsylvania Board of Parole and Probation pending disposition of the above charges. A preliminary hearing was held on December 29, 1976, before the Honorable Lynn Abraham, of the Philadelphia Municipal Court, after which relator was held for court. Motions to suppress physical evidence were denied by the Honorable Francis A. Biunno on March 25,1977. Relator was tried without a jury before the Honorable Charles A. Lord on April 7,1977, and was found guilty on both charges. On May 19, 1977 James T. Cunningham was sentenced and is currently serving a term of two to ten (2-10) years imprisonment. A direct appeal was then taken to the Superi- or Court of Pennsylvania which affirmed the judgment of sentence per curiam on March 9, 1979. Following the Superior Court’s action, relator filed a petition for allowance of appeal in the Supreme Court of Pennsylvania on March 30, 1979, which was denied on June 15, 1979. Relator filed a pro se petition under the Post-Conviction Hearing Act, 19 P.S. § 1180-1 et seq., on June 25, 1979. This is his third PCHA petition dating back to August 25, 1977. The allegations in this petition are identical to those raised in the instant federal petition for writ of habeas corpus. No action has yet been taken on relator’s third PCHA petition. Relator’s instant petition for writ of habeas corpus was filed on June 28, 1979, which was subsequently amended on July 18,1979 and August 14,1979. Additionally, on August 3,1979, relator filed in the federal district court a “petition for bail pending appeal to the United States Supreme Court.” In his present petition for federal habeas corpus relief relator alleges he was illegally and unlawfully incarcerated in the State Correctional Institution following his conviction; that he was deprived of procedural due process in violation of the law when the trial court failed to properly review his claims through post-trial motions, and counsel was ineffective for a number (eleven) of reasons. DISCUSSION I It is at once clear that due to the pendency of relator’s June 25, 1979 PCHA petition, relator" }, { "docid": "11119753", "title": "", "text": "Cir.1981); United States ex rel. Lockett v. Illinois Parole & Pardon Board, 600 F.2d 116, 117 (7th Cir.1979) (per curiam); United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 95 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978); Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir.1971); Smith v. Kansas, 356 F.2d 654, 656 (10th Cir.1966) cert. denied, 389 U.S. 871, 88 S.Ct. 154, 19 L.Ed.2d 151 (1967). Under the doctrine of comity, a federal court should defer action on claims properly within its jurisdiction until a state court with concurrent power has had an opportunity to consider the matter. Rose v. Lundy, 102 S.Ct. at 1201, 1203; Smith v. Kansas, 356 F.2d at 656. As a matter of comity, exhaustion “is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 102 S.Ct. at 1203. Application of the rule of exhaustion promotes state court familiarity with and hospitality toward federal constitutional issues, and provides a complete factual record to aid federal court review. Id. at 1203-04. Accordingly, state remedies must be exhausted except in those rare and unusual cases “where exceptional circumstances of peculiar urgency are shown to exist.” Id. at 1202 (quoting Ex Parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572 (1944)). With these considerations in mind, we turn to the attorney general’s assertion that exhaustion is not required when the state does not raise the issue in response to a habeas petition in district court. As noted above, the resolution of this issue has not produced consistent results among the circuits. The courts are in general agreement that a state waiver or concession of exhaustion in district court is not dispositive of the matter. See, e.g., Batten v. Scurr, 649 F.2d 564, 568 (8th Cir.1981); Trantino v. Hatrack, 563 F.2d at 95 & n. 18. However, when a hearing on the merits occurs in the district court following such a waiver, some courts are more inclined than others to relax the" }, { "docid": "11847530", "title": "", "text": "claims because of its finding of waiver rendered those claims unreviewable in federal habeas corpus proceedings because the exhaustion requirement had not been satisfied. The magistrate therefore directed that petitioner pursue both claims in state court under Pennsylvania’s Post Conviction Hearing Act (PCHA) so as to give the state courts a full opportunity to address claims not discussed on direct appeal, because such claims were thought to have been waived” (Supp.App. p. 18). It is well-settled that a claim raised in state court at trial and on direct appeal satisfies the exhaustion requirement and that a habeas corpus petitioner need not also raise the claim in a collateral attack before proceeding in federal court. See Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953); United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir.1978); United States ex rel. Schultz v. Brierley, 449 F.2d 1286, 1287 (3d Cir.1971). Thus, the magistrate was correct in concluding that seven of petitioner’s nine claims, which had been considered and rejected by the Superior Court, need not be presented again to the state courts (this time under the PCHA) as a prerequisite to federal habeas corpus review (see Supp.App. p. 14). The magistrate erred, however, in concluding that state remedies for petitioner’s remaining two claims had not been exhausted because the merits of the claims were neither considered nor discussed by the Superior Court. The exhaustion requirement of 28 U.S.C. § 2254(b)-(c) has been judicially interpreted to mean that claims must have been presented to the state courts; they need not have been considered or discussed by those courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir.1975). As the Supreme Court stated in Picard v. Connor, \"... once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” 404 U.S. at 275, 92 S.Ct. at 512. In the case at hand, petitioner’s two claims were presented to the trial court" }, { "docid": "4932796", "title": "", "text": "Odsen v. Moore, 445 F.2d 806 (1st Cir.1971) (thirty four month delay in direct appeal). Similarly, the Third Circuit has granted relief because of the inordinate delay in state court proceedings. In United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir.1975) habeas corpus relief was granted after a three year delay in disposing of a new trial motion. In United States ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir.1973) similar relief was granted after a three and one-half year delay in disposing of a PCHA petition. In Codispoti v. Howard, 589 F.2d 135 (3d Cir.1978), the court held that the petition for habeas corpus was not premature because of a failure to exhaust state remedies, and remanded to the district court for an evidentiary hearing to determine why petitioner’s new trial motion had not been disposed of for twelve years. We find that the allegations set forth in this petition raise a serious question as to the adequacy of the state remedies available in practice. The nine month period between petitioner’s conviction and the filing'of a notice of appeal, and the twenty-four month period since, are sufficient to raise a prima facie question of denial of due process. In light of the court’s ruling we need not address the remainder of petitioner’s claims at this stage. An appropriate order will issue. . The period between the verdict and the sentence was occupied by the pendency of post-trial motions in the trial court, see infra pp. 10, 11 and 13. . It is well settled that there is no jurisdictional bar to a federal court granting habeas corpus relief in appropriate cases. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States ex rel. Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir.1972). . It is conceivable that the delay is attributable in part, to a change of counsel following petitioner’s conviction." }, { "docid": "11649109", "title": "", "text": "and procedural history that Hull, in prosecuting his PCHA petition, failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. This omission, at least as an intuitive matter, prompts concerns that Hull’s federal habeas claim might be either unexhausted or procedurally waived. Neither party, however, raised these issues on appeal. In view of the interests of comity and federalism that undergird these two requirements, we nonetheless will address each of them here in order to alleviate any lingering doubt regarding the propriety of federal habeas review in this case. The exhaustion requirement is codified at 28 U.S.C. §§ 2254(b) and (e). Simply stated, these sections require a petitioner to exhaust all means of relief available under state law before filing a federal habeas petition. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.), cert. denied, — U.S. -, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990). The petitioner must fairly present each of his federal claims to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). If the state courts have not had an opportunity to pass on and correct each claim of error asserted in the habeas petition, the petitioner has not complied with the exhaustion prerequisite to federal habe-as relief. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, 484 U.S. 845, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987). Without much elaboration, the magistrate judge’s report in this case, which was adopted by the district court, held that Hull had exhausted his state remedies regarding his claim of ineffective assistance of counsel at the July, 1979 competency hearing. In view of our decision in Bond v. Fulcomer, 864 F.2d 306 (3d Cir.1989), we think that the magistrate judge correctly applied the exhaustion requirement to Hull’s petition. The facts in Bond are identical to those sub judice: petitioner’s counsel had failed to file a timely petition for allocatur with the Pennsylvania Supreme Court; thus, petitioner filed a pro se petition for" }, { "docid": "3041949", "title": "", "text": "found delays of eleven, five, twelve and three years sufficient to excuse exhaustion. See Hankins, 941 F.2d at 247 (eleven years to decide motion to withdraw guilty plea sufficient to excuse exhaustion requirement); Burkett, 826 F.2d at 1218 (five year delay sufficient to excuse exhaustion); Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir.1978) (twelve years to decide new trial motion); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir.1973) (three year delay in deciding PCHA petition); see also United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975) (stating in dicta that three years and four months to decide motion for new trial was inordinate delay sufficient to obviate the exhaustion requirement). Story has demonstrated, and the Commonwealth has not denied, that he has suffered significant delay at the hands of the Court of Common Pleas for Allegheny County. The Commonwealth maintains, however, that its interest in deciding in the first instance issues raised concerning the prosecution of an alleged murderer, especially one who killed a state law enforcement officer, outweighs any delay he has suffered. The Commonwealth also claims that any delay was due to Story’s own failure to alert the Court of Common Pleas that the court had not yet ruled on his PCHA petition. Finally, the Commonwealth points to the recent progress on Story’s PCHA petition, and urges this Court to defer to the state process. We find the facts in this case to be as egregious as those in the cases cited above. During the nearly eleven years of his PCHA proceedings, Story has had three court-appointed attorneys, two who failed to comply with a Court of Common Pleas order to file an amended petition on Story’s behalf, and one (the most recent) who took nearly a year to comply with a similar order. More importantly, however, the Court of Common Pleas neglected Story’s case for almost eight years, apparently because of what appears to be seriously deficient docket management procedures, see infra, taking action only after it received notice of Story’s federal petition. We find it wholly" }, { "docid": "7629683", "title": "", "text": "should have ruled. The respondent contends that Codispoti had an adequate remedy in his second PCHA petition and chose not to pursue it. It is argued that because he waived his right to an available state remedy he should be denied federal habeas relief notwithstanding the delay in his direct appeal. In support of this claim the respondent cites Fay v. Noia, supra, and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). These cases do not justify dismissal of this petition. The line of cases cited by the respondent deals only with the issue of the adequacy of an independent state law ground to bar federal habeas corpus review. In these cases the Court discussed the reviewability of federal claims which the state court declined to pass on because they were not presented in the manner prescribed by state procedural rules. Id. at 81-2, 97 S.Ct. 2497. The Court noted that if a procedural default barred state review, federal habeas review might also be barred. In the instant case Codispoti’s withdrawal of his PCHA petition did not foreclose further state review. His claims may still be considered by the state court under his pending new trial motion. Therefore, his federal habeas corpus petition is not barred. The respondent further asserts that the state courts are willing to review Codispo-ti’s petition in a PCHA hearing and he argues that Codispoti should therefore be compelled to return to state courts. We do not agree. We have held that in the normal course of events a state prisoner who has completed the remedy of direct appeal, may request a federal writ of habeas corpus without first requesting a PCHA hearing. United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971). We have reasoned that once the state has “been afforded full opportunity to adjudicate the matter,” the exhaustion requirement has been met. United States ex rel. Fletcher v. Maroney, 413 F.2d 16, 18 (3d Cir. 1969). In this case Codispoti alleges that he has been unable to pursue a direct appeal due to the decade-long" }, { "docid": "11847531", "title": "", "text": "by the Superior Court, need not be presented again to the state courts (this time under the PCHA) as a prerequisite to federal habeas corpus review (see Supp.App. p. 14). The magistrate erred, however, in concluding that state remedies for petitioner’s remaining two claims had not been exhausted because the merits of the claims were neither considered nor discussed by the Superior Court. The exhaustion requirement of 28 U.S.C. § 2254(b)-(c) has been judicially interpreted to mean that claims must have been presented to the state courts; they need not have been considered or discussed by those courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir.1975). As the Supreme Court stated in Picard v. Connor, \"... once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” 404 U.S. at 275, 92 S.Ct. at 512. In the case at hand, petitioner’s two claims were presented to the trial court in the brief in support of his post-trial motions (see App. p. K-3). The trial court, in denying the post-trial motions, acknowledged that these two claims were raised. Moreover, the two claims were raised on appeal to the Superior Court. That the Superior Court stated in its opinion the reason it believed these claims had been waived demonstrates that the claims were presented to the Superior Court. Finally, petitioner presented these same two issues to the Pennsylvania Supreme Court in his petition for allowance of appeal (see App. p. L-10), which was ultimately denied. The magistrate apparently found significance in the fact that, although the two claims were briefed on appeal, the Superior Court did not discuss them in its opinion (see Supp.App. pp. 16, 18). Yet, discussion of a claim in an appellate court’s opinion is not necessary for exhaustion. Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 598, 54 L.Ed.2d 582 (1978); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir.1975). The Supreme Court, in Smith v." }, { "docid": "11544428", "title": "", "text": "was refused. On appeal to the Superior Court the judgment was affirmed and allocatur was denied by the Supreme Court. He also filed a petition under the PCHA and Judge Morris, while on the record denying the relief sought, nonetheless granted it in substance by giving Geisler leave to file a motion for a new trial nunc pro tunc. In our view it is not necessary that he again make use of the provisions of the PCHA or raise these same issues again on collateral attack. “[T]he Supreme Court made clear in Brown v. Allen that the exhaustion doctrine is not intended to give the states more than one full chance.” Developments in the Law — Federal Habeas Corpus, 83 Harv. L.Rev. 1038 at 1096 (1970) (footnote omitted). We cannot agree with our Brother Weis or with Judge Snyder that Judge Morris’ order of September 11, 1970, the affirmance of that judgment by the Superior Court, and the denial of allocatur by the state Supreme Court did not exhaust Geisler’s state remedies. As we have stated earlier, Geisler’s pro se motion for a new trial and his appeals’ briefs embraced identical issues. They likewise included all issues raised previously in the state habeas corpus proceedings and all issues, save that of denial of the right to appeal, raised in the PCHA proceeding. More importantly, those same issues have been raised in both federal habeas corpus petitions. Geisler’s petitions and briefs are inartistic and do not fit exactly or with clockwork precision into the Pennsylvania state court procedures, but since he was acting pro se, they were sufficiently adapted to their purpose to put the Superior Court and Supreme Court of Pennsylvania on notice as to the issues raised and the relief sought. See United States ex rel. Turner v. Rundle, supra; United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970). We deem it imperative to note that the exhaustion doctrine does not require that the state courts have actually ruled on the merits" }, { "docid": "13338004", "title": "", "text": "thereby exhausted their state court remedies and do not need to file a P.C.H.A. petition in order to seek federal habeas corpus relief. See also, U.S. ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975) (federal habeas corpus allowed where P.C.H.A. petition was filed but denied); U.S. ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971) (federal habeas corpus available where P.C.H.A. was not filed at all). The implication which arises from these holdings it that a Pennsylvania prisoner need not file a P.C.H.A. petition in order to seek federal habeas corpus relief. However, the case sub judice, presents an issue at variance from those previously considered by the Third Circuit in similar cases. In previous Third Circuit cases, the relator in each case either filed a P.C.H.A. petition prior to his filing of a federal habeas corpus petition and the P.C.H.A. petition was decided by the state court prior to the filing of the federal petition, U.S. ex rel. Geisler v. Walters, supra; or the relator never filed a P.C.H.A. petition at all and therefore the state court had not decided the issues raised. U.S. ex rel. Schultz v. Brierley, supra. The distinguishing factor in the present case is that relator has filed a P.C. H.A. petition which was not disposed of by the state court. This petition if still pending in state court. That petition raises issues identical to those raised in relator’s concurrent federal habeas corpus petition. The issue raised is clearly different from the issues presented in previously decided cases and thus involves different considerations in its resolution. Thus, the legal determination facing the Court would appear to be one of first impression in this Circuit. The critical issue facing the Court is not whether the filing of a P.C.H.A. claim is necessary to a finding of exhaustion of state court remedies, but, whether the PENDENCY of such a petition acts as a bar to finding exhaustion of state court remedies, thereby resulting in the denial of availability of federal habeas corpus relief. To reemphasize, the purpose of the exhaustion doctrine is" }, { "docid": "12451305", "title": "", "text": "took almost nine years to complete. While the issue of delay was not raised in Keller’s petition, this court has repeatedly held that \"inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable,” Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986), and thus may excuse the requirement of exhaustion, id.; See abo 28 U.S.C. § 2254(b), or even provide a basis for habeas relief. Burkett v. Cunningham, 826 F.2d 1208, 1221 (3d Cir.1987). No logical basis exists to consider delay in the context of an unexhausted claim but to ignore it in the context of an exhausted claim. If anything, the habeas petition containing only exhausted claims presents a more compelling situation for a federal court not to defer to comity concerns. This is especially true where, as here, the PCHA petition does not contain any claims that were exhausted on direct appeal. See supra n. 3. . The exact allegations regarding these claims raised by Keller in his petition for allocatur to the Supreme Court were: The judge’s tipstaff told the jury that they could not talk to the judge. The tipstaff did not inform the jury that they could direct written questions to the judge. The tipstaff did not inform the court of the jury’s request. App. at 374. Based on these allegations, Keller alleged that ”[t]he decision of the lower court is not in accord with the decisions rendered by this Honorable Court in Welshire v. Bruaw, [200 A. 67 (Pa.1938)], and Commonwealth v. Zlatovich, 269 A.2d 469 ... ([Pa.] 1970).” Id. We are satisfied that Keller’s citation of Wel-shire and Zlatovich meets the exhaustion requirement that these “federal claim[s] ha[ve] been fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). “Both the legal theory and the facts on which th[ese] claim[s] rest[ ],” Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986), were raised in the petition for allocatur. . While it appears at first glance that the holding in Granberry might be confined" }, { "docid": "328683", "title": "", "text": "OPINION OF THE COURT STAPLETON, Circuit Judge: The petitioner, Richard Wojtczak, was convicted of rape and assault in the Court of Common Pleas of Philadelphia County. His conviction was affirmed by the Pennsylvania Superior Court. Commonwealth v. Woftczak [sic], 254 Pa.Super. 608, 387 A.2d 111 (1978). Wojtczak initially submitted a request for allocatur to the Pennsylvania Supreme Court, but subsequently withdrew his petition in June, 1978. In June, 1982, Wojtczak, who remains incarcerated in a Pennsylvania prison, filed a petition in the Court of Common Pleas of Philadelphia County under Pennsylvania’s Post Conviction Hearing Act, 42 Pa. C.S.A. §§ 9541-9551 (“PCHA”). During this proceeding, which is still pending, the court appointed at least five different attorneys to represent him. In March, 1985, Wojtczak filed this petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Based on the pendency of Wojtczak’s PCHA action, that court denied Wojtczak’s habeas petition for failure to exhaust available state remedies. Wojtczak filed this timely appeal. We reverse. Under ordinary circumstances, a federal court may not entertain a petition for a writ of habeas corpus unless the petitioner has first presented each of his claims to the state’s highest tribunal. 28 U.S.C. §§ 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Wojtczak does not argue that he has done so. However, inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable. When such delay has rendered the State remedy ineffective to protect the rights of the petitioner, we have excused exhaustion. See Codispoti v. Howard, 589 F.2d 135 (3d Cir.1978); United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir.1973). In this case, thirty-three months passed between Wojtczak’s PCHA filing and the filing of his federal habeas corpus petition in March, 1985. As of that federal filing Wojtczak’s court appointed counsel had not yet secured a hearing on his petition in the" }, { "docid": "7629682", "title": "", "text": "Similarly in United States ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir. 1973) , we granted relief after a three and one-half year delay in disposing of a PCHA petition. Surely if a three year delay warrants federal court review, Codispoti’s almost twelve year delay is a ground for review. Moreover, consideration of Codispoti’s petition would not conflict with the principles of comity underlying the exhaustion requirement. Exhaustion is “designed to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Wilwording v. Swenson, 404 U.S. at 250, 92 S.Ct. at 409, quoting Fay v. Noia, 372 U.S. at 438, 83 S.Ct. 822. The Pennsylvania courts have been given more than an ample “opportunity to pass upon” Codispoti’s new trial motion.. They could and should have ruled when he first submitted his new trial motion and they were reminded of its penden-cy by his first PCHA petition. Further, when the federal district court in 1976 abstained from deciding Codispoti’s first habe-as petition, the state courts should have ruled. The respondent contends that Codispoti had an adequate remedy in his second PCHA petition and chose not to pursue it. It is argued that because he waived his right to an available state remedy he should be denied federal habeas relief notwithstanding the delay in his direct appeal. In support of this claim the respondent cites Fay v. Noia, supra, and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). These cases do not justify dismissal of this petition. The line of cases cited by the respondent deals only with the issue of the adequacy of an independent state law ground to bar federal habeas corpus review. In these cases the Court discussed the reviewability of federal claims which the state court declined to pass on because they were not presented in the manner prescribed by state procedural rules. Id. at 81-2, 97 S.Ct. 2497. The Court noted that if a procedural default barred state review, federal habeas review might also be barred. In the instant case Codispoti’s" }, { "docid": "11544429", "title": "", "text": "stated earlier, Geisler’s pro se motion for a new trial and his appeals’ briefs embraced identical issues. They likewise included all issues raised previously in the state habeas corpus proceedings and all issues, save that of denial of the right to appeal, raised in the PCHA proceeding. More importantly, those same issues have been raised in both federal habeas corpus petitions. Geisler’s petitions and briefs are inartistic and do not fit exactly or with clockwork precision into the Pennsylvania state court procedures, but since he was acting pro se, they were sufficiently adapted to their purpose to put the Superior Court and Supreme Court of Pennsylvania on notice as to the issues raised and the relief sought. See United States ex rel. Turner v. Rundle, supra; United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970). We deem it imperative to note that the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them. See Brown v. Allen, supra, 344 U.S. at 448-449, note 3, 73 S.Ct. 397; United States ex rel. Turner v. Rundle, supra, 438 F.2d at 845; Ralls v. Manson, 375 F.Supp. 1271 (D.Conn.1974). In this regard, the decision as to whether exhaustion has occurred should be based on the record and pleading before the state courts not the length of their opinions. United States v. Pate, 240 F.Supp. 696, 704 (N.D.Ill.1965). See also Sokol, Federal Habeas Corpus, § 22.2 (2d ed. 1969). While the case before us is most certainly sui gen eris, we emphasize that “[i]t is the legal issues that are to be exhausted, not the petitioner.” Park v. Thompson, 356 F.Supp. 783, 788 (D.Haw.1973). (2) If we assume that our Brother Weis’ position is correct as to the “formal” disposition of Geisler’s motion for a new trial, we are confronted with a further dilemma. The motion for a new trial was filed on June 27, 1969 and was" }, { "docid": "13621067", "title": "", "text": "Record.” (App. 4). III. We cannot discern from the record before us whether the State’s concession of exhaustion which it made before the district court in its Supplemental Brief of December 13, 1985—a concession which is not binding upon us, see United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir.1977)—embraced the issue that Campas has now raised as the second ground of his petition, i.e. was appellate counsel ineffective? We recognize that some of Campas’ State proceedings have been appealed, as witness the opinions and order included within the Supplemental Appendix filed by Mr. Giebus after oral argument in this court (see typescript p.8, supra). However, those opinions make no reference to Campas’ claim that he was denied effective appellate counsel and thus had not completed one of his appeals to the Pennsylvania Supreme Court. If that issue had not been raised by Campas, let alone “fairly presented” to the State court, see Zicarelli v. Gray, 543 F.2d 466, 474 (3d Cir.1976) (en banc) (emphasis in original) quoting Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), Campas may well have failed to exhaust his state remedies whether or not the other grounds that Campas has raised in his petition have satisfied the exhaustion requirement. We have been instructed that the doctrine of comity governs federal courts in the context of habeas corpus. That doctrine “teaches that one court should defer action or causes 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.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982) quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). This exhaustion requirement “serves to minimize friction between our federal and state systems of justice by allowing the state an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights.” See Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981)" }, { "docid": "7629684", "title": "", "text": "withdrawal of his PCHA petition did not foreclose further state review. His claims may still be considered by the state court under his pending new trial motion. Therefore, his federal habeas corpus petition is not barred. The respondent further asserts that the state courts are willing to review Codispo-ti’s petition in a PCHA hearing and he argues that Codispoti should therefore be compelled to return to state courts. We do not agree. We have held that in the normal course of events a state prisoner who has completed the remedy of direct appeal, may request a federal writ of habeas corpus without first requesting a PCHA hearing. United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971). We have reasoned that once the state has “been afforded full opportunity to adjudicate the matter,” the exhaustion requirement has been met. United States ex rel. Fletcher v. Maroney, 413 F.2d 16, 18 (3d Cir. 1969). In this case Codispoti alleges that he has been unable to pursue a direct appeal due to the decade-long pendency of his post-trial motions. If the state has caused the delay, it would be anomalous to require him to pursue a post-trial motion which he would not normally have to consider, and which was once refused him. The state has “been afforded full opportunity” to review his conviction. We follow the guidance of the Wilwording court which stated: Petitioners are not required to file “repetitious applications” in the state courts. Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 403, 97 L.Ed. 469 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42 — 43, 88 S.Ct. 194, 196-197, 19 L.Ed.2d 41 (1967). 404 U.S. at 250, 92 S.Ct. at 409. As we have noted above, the record before us shows no valid explanation as to why the state court has waited almost twelve years to dispose of a post-trial motion. Presumptively such a delay should impel us to consider the prisoner’s petition unless it can be shown that he" } ]

[ { "docid": "22251111", "title": "", "text": "Captain D’s points to the following: (1) allowing plaintiffs expert witness, Stuart Feigenbaum, to testify to matters outside his expertise; (2) admitting irrelevant prejudicial evidence regarding Captain D’s training manuals and post-accident conduct; (3) excluding evidence of Foradori’s marijuana use; (4) excluding evidence of Foradori’s family circumstances; (5) allowing Foradori’s counsel to make a per-diem argument for damages; (6) giving improper jury instructions on respondeat superior and duty and submitting to the jury a confusing form verdict; (7) upholding the jury’s compromise verdict for future medical expenses; and (8) admitting plaintiffs unauthenticated medical bills as an exhibit. A new trial will not be granted based on trial error unless, after considering the record as a whole, the court concludes that manifest injustice will result from letting the verdict stand. See Johnson v. Ford Motor Co., 988 F.2d 573, 582 (5th Cir.1993). “We will reverse the trial court’s denial of a motion for new trial only when there is a clear showing of an abuse of discretion.” Carr v. Wal-Mart Stores, Inc., 312 F.3d 667, 670 (5th Cir.2002) (quoting Hiltgen, 47 F.3d at 703). 1. Testimony of Stuart Feigenbaum When Foradori tendered Stuart Feig-enbaum as an expert in the field of restaurant management, Captain D’s stated: “No objection.” On direct examination, Feigenbaum opined that Captain D’s had negligently trained and supervised its employees. Captain D’s still offered no objection. On cross-examination, Feigenb-aum answered defense counsel’s questions about how restaurants should guard against workplace violence, particularly as to what precautions and actions restaurant manager Peggy King should have taken because of the altercation. Fiegenbaum conceded, however, that he was not an expert in “specific training” on “how to diffuse workplace violence.” Even so, he answered defendant’s attorney’s questions according to his “common sense.” During redirect examination, the district court consistently sustained objections by Captain D’s counsel to ill-founded questions by counsel opposite. After the close of testimony, the district court instructed the jury to consider whether the expert testimony was based on sufficient education and experience. Despite offering no relevant, timely objection to Feigenbaum’s qualification and expertise at trial, Captain D’s now" } ]

[ { "docid": "16170293", "title": "", "text": "under pre-Burlington Northern jurisprudence. Hunt, 277 F.3d at 769. In addition, the record reflects that a four day work week is an alternative schedule that is sometimes offered as a privilege to DSS employees. It is not a right. DSS treated other workers similarly, switching them from a four to five day work week when they were unable to adequately manage their case loads. This action would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, we agree that Lu-shute has not made out a prima facie case of retaliation under FMLA and the district court’s judgment dismissing her claims on summary judgment was correct. This decision could also be justified on the basis of inadequate briefing by the plaintiff. Lu-shute argues only that issues of fact exist as to the defendant’s motivations for changing her work schedule. She makes the assertion that “Defendant admitted that it considered the time she was off from work on leave pursuant to the FMLA as a reason for taking said action.” However, her argument consists entirely of a legal discussion relating to the mixed motive analysis, which authority the district court also cited. Critically, she did not relate the legal discussion to the facts of this case or provide citations to the record to support her assertion of improper motivation. See Fed. R.App. Proc. 28(a)(9)(A). We need not consider inadequately briefed issues. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "13788292", "title": "", "text": "Parker Drilling did not object to this instruction or request that the district court specifically instruct the jury to disregard plaintiff counsel’s invocation of the Golden Rule. Parker Drilling contends on appeal that the Court should order a new trial on the ground that Brown’s counsel improperly invoked the Golden Rule during its closing argument. We review the district judge’s actions surrounding Brown’s counsel’s invocation of the Golden Rule for abuse of discretion. Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 715 (5th Cir.1967). A plea to the jury members to “put themselves in the shoes of the plaintiff and do unto him as they would have done unto them under similar circumstances ... [is] improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than the evidence.” Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir.1978). Even if counsel does not explicitly invoke the Golden Rule but merely invites the jury to place themselves in the position of the plaintiff, the result is effectively the same and the risk of taint is no different. Whitehead v. Food Max of Miss. Inc., 163 F.3d 265, 278 (5th Cir.1998). Any reasonable interpretation of the language used by Brown’s counsel indicates that the Golden Rule was invoked. Even if a party does invoke the Golden Rule, however, a new trial is warranted only if the opposing party shows that it was sufficiently prejudiced considering all the facts and circumstances of the case. United States v. Jefferson, 258 F.3d 405, 412 (5th Cir.2001). Parker Drilling claims that the jury’s deliberations were tainted by the district judge’s failure to expressly admonish Brown’s counsel for employing the Golden Rule. To support this claim, Parker Drilling quotes this Court’s statement in Loose v. Offshore Navigation, Inc. that “[t]he use of such a ‘Golden Rule’ argument so taints a verdict as to be grounds for a new trial.” 670 F.2d 493, 496 (5th Cir.1982). The trial judge in Loose, however, had overruled the objection to counsel’s use of the" }, { "docid": "608445", "title": "", "text": "for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all facts “in the light depicted by the videotape” and, when inconclusive, in the light most favorable to the nonmoving party, the following is a distillation of Brown’s account, as corroborated (or at least not challenged) by the audio and video evidence. .Although Brown does not discuss in his brief the content of these mutterings, he testified in his deposition that he was accusing Officer Lynch of routinely harassing innocent people in the neighborhood. . Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.2012). . FedJRXiv.P. 56(a). . Poole, 691 F.3d at 627 (citing Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000)). . Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (quoting Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). . Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). . Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.2000) (citing Williams v. Bramer, 180 F.3d 699, 702 (5th Cir.1999)). . Brumfield, 551 F.3d at 326. . Pearson v." }, { "docid": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" }, { "docid": "22734525", "title": "", "text": "Third Circuit held that \"[t]he use of [a] notebook containing still-to-be admitted exhibits ... conflicts with” a defendant’s right to have an impartial jury base its verdict on properly admitted evidence 944 F.2d 123, 126-27 (3rd Cir.1991) (emphasis added). In United States v. Smith, the defendant objected to the jury’s use of summary notebooks at trial because they contained \"four incomplete exhibits, four exhibits that were never admitted, and all the exhibits before they were admitted in evidence.” 966 F.2d 1446, 1992 WL 137523, at *3 (4th Cir.1992) (unpublished disposition). The Fourth Circuit rejected the defendant’s challenge because there was no evidence in the record that the juiy had considered any of the exhibits before the district court admitted them. See id. Nor did the record support the defendant's claims that any juror noticed or studied the four exhibits that were never admitted. See id. Lastly, in United States v. Best, the defendant challenged the jury’s use of summary binders in the jury room during deliberations. 939 F.2d 425, 429 (7th Cir.1991). The Seventh Circuit found no error in the jury's use of the binders because the district court had admitted into evidence all of the exhibits in them. See id. at 431. In addition, the district court there \"verified, through individual voir dire of each juror, that the jurors considered all the evidence, not just the binders, in arriving at their verdict.” Id. . United States v. Fletcher, 121 F.3d 187, 197 (5th Cir.1997) (citing Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). . 939 F.2d at 429. . Id. at 430. . See id. (noting that \"the original exhibits, both the government and the defense documents, were carefully organized in boxes that were just as easily accessible to the jury.”). . See id. (noting that although defendant objection to the presence of the binders in the jury room during deliberations, the proper standard of review was whether the district court abused its discretion when it failed to grant a new trial). . Whitehead v. Food Max of Miss., Inc., 332 F.3d" }, { "docid": "10919188", "title": "", "text": "the government filed a notice of appeal from the district court’s order. We first address the evidence and findings regarding intentional misconduct on the part of Mellin and then review the district court’s determination that the jury’s verdict should be set aside based upon the prejudicial effect of the extraneous evidence. B. Intentional Misconduct Findings The following facts, gleaned from the evidentiary hearing conducted by the district court, appear to be undisputed. On the afternoon of June 16, 2002, the jury received its instructions and the parties completed their closing arguments in the guilt phase of Lentz’s trial. The jury was then instructed to return at 10:00 the following morning to begin deliberations. At approximately 9:30 the next morning, the defense team (Michael Lieberman, Frank Salvato, and Judy Clark) and the prosecution team (AUSA Steven Mellin, AUSA Patricia Haynes, and Michael Chellis) met with courtroom deputy clerk Joanna Solomon and court security officer William Scruggs in the courtroom to assemble the admitted trial exhibits and prepare them for transport into the jury room. Also present and assisting in the endeavor at various times were FBI Special Agent Brad Garrett, Arlington County Sergeant John Coale, Information Technologist Tyrone Bowie, and an intern with defense counsel Salvato’s office. After Solomon sorted and reviewed the exhibits with counsel for both sides, the items were turned over to Scruggs to be loaded onto an evidence cart and transported into the jury room. According to the jurors, at some point after they began their deliberations, the black and brown day planners were noticed and reviewed in the jury room, although the earliest any juror recalled seeing the day planners was on the second day of deliberations. By all accounts, the process of sorting and loading the evidence took place among four counsel tables for a period of at least 45 minutes and involved up to twelve people (not counting any persons milling about behind the bar or unnoticed in the well). The precise events occurring during this time period and, in particular, the method by which the two day planners found their way into the" }, { "docid": "23687253", "title": "", "text": "I submit to you they are. Read these exhibits, and you will know that. They were important. In the first place, exhibit 24, look at that one and look at 6. That is two I would like for you to read. They were important. He was fired for that reason. * % * * íjs * Read exhibit 6 and exhibit 24 and all the other ones. After the jury retired to begin its deliberations, defense counsel informed the court that Exhibit 24, the Post-Herald complaint, was not on the parties’ original exhibit list. McWhorter’s counsel explained that prior to trial he had notified the defense that the exhibit list had been amended to include Exhibit 24 and that they had not objected to such an amendment. The district judge expressed “shock” that McWhorter’s counsel had referred to this litigation and sent the clerk into the jury room to retrieve Exhibit 24. The court also ordered that McWhorter’s counsel be taken into custody and incarcerated overnight. Midway through their deliberations, the jury notified the court that it was missing Exhibit 24. The court instructed the jury that this exhibit was not in evidence. The jury subsequently returned a verdict for McWhorter, assessing actual and punitive damages against Deutcsh. In releasing McWhorter’s counsel the following day, the court expressed concern that the jury was influenced by the improper argument, particularly in light of the jury’s message that it had not received Exhibit 24. Deutcsh subsequently moved for relief from judgment and for judgment notwithstanding the verdict or a new trial in the alternative. After a hearing on the motion, the district court granted a new trial on the ground that the improper argument influenced the jury’s verdict. As noted previously, the new trial resulted in a verdict for Deutcsh. On appeal McWhorter argues that the district court erred in granting a new trial because counsel’s closing arguments were not improper, not prejudicial, and not objected to, and because any prejudice was cured by the court’s instructions. We disagree and hold that the district court did not abuse its discretion in granting" }, { "docid": "23383762", "title": "", "text": "78, 112 L.Ed.2d 51 (1990). We review the exercise of this discretion to ensure that the district court did not discharge the juror “without factual support, or for a legally irrelevant reason.” Fajardo, 787 F.2d at 1525 (quoting U.S. v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978)). In this case the district court acted within its discretion in excusing the juror because of its concern over the potential disruptive effect she could have on the jury during deliberations. “The decision to excuse a juror who may disrupt deliberations also is entrusted to the sound discretion of the trial court.” Id. at 1526. The district judge personally examined the juror and was in a superior position to determine her state of mind and ability to comport herself. He was convinced that she would be unable to deliberate effectively because of her concern over spending Christmas vacation with her family. It is significant that the district judge also found that her distraction would disrupt the efforts of the jury as a whole to evaluate the evidence and reach a verdict. See id. (“the degree of disruption is gauged better by first-hand impressions rather than the review of a cold record”). The record reflects that the juror was evidently upset, and the district judge made his decision only after discussing the matter with her and with counsel for government and the defendants. There is no evidence of bias toward any party on the part of the judge. There was no abuse of discretion. Cf. U.S. v. Shelton, 669 F.2d 446, 460 (7th Cir.) (no abuse of discretion to excuse impatient and disgruntled juror because of concerns of disruptive effect on other jurors in long trial), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982) (cited in Fajardo, 787 F.2d at 1526); U.S. v. Brown, 571 F.2d 980, 984-85 (6th Cir.1978) (no abuse of discretion to excuse juror who was upset and anxious over marital relations); U.S. v. Hoffa, 367 F.2d 698, 712 (7th Cir. 1966) (no abuse of discretion to excuse juror whose mother had become seriously ill), vacated on" }, { "docid": "23055670", "title": "", "text": "trial because of juror misconduct. After deliberating for about four hours, the jury sent the court a note saying it was unable to agree on a verdict. After consulting counsel, the court gave an Allen charge and told the jury to continue deliberating. The jurors returned with their verdicts after another hour of deliberation. They were polled individually and all affirmed that their verdict for each defendant was guilty. Some time later, juror Cleo Gayton submitted an affidavit stating that she had been unwilling to convict the defendants but that the other jurors had pressured her into changing her vote. She claimed that one juror told her the judge would incarcerate her if she failed to do her civic duty and vote to convict. She also claimed there were racial overtones in the jury room. Gayton was one of two Native American jurors, and for a time she was the only holdout against convicting the three Native American defendants. She said other jurors made references to her race and one said “[i]t was ten white people versus one Indian.” She is a diabetic, and other jurors told her that she could get something to eat with them after a verdict was returned. The trial court denied the motion for new trial. We review the denial of a motion for new trial based on alleged juror misconduct for abuse of discretion. See Wolff v. Brown, 128 F.3d 682, 686 (8th Cir.1997). Federal Rule of Evidence 606(b) codifies the common law rule against use of juror testimony to impeach a verdict. The rule only allows jurors to testify about “extraneous prejudicial information” or “outside influence improperly brought to bear upon any juror.” Fed.R.Evid. 606(b); see also Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (evidence inadmissible that jurors slept and consumed drugs and alcohol in course of trial and deliberations); United States v. Thomas, 946 F.2d 73, 75-76 (8th Cir.1991). Because Gayton’s allegations all concern either the jury’s deliberations or casual conversation in the jury room, the district court did not abuse its discretion in" }, { "docid": "22606257", "title": "", "text": "remained in the exhibit boxes and were considered by the jury. Before the jury retired to deliberate, the court had invited counsel for both parties to examine the exhibit boxes and purge them of inadmissible exhibits. Carson’s counsel had declined the invitation; the defendants’ counsel could not remember having checked the exhibit box when questioned at a post-trial hearing. At any rate, the discovery that the exhibit boxes contained inadmissible exhibits was made only after the jury had concluded its deliberations. The district court based its granting of a new trial on two grounds. First, the court believed that the personnel reports and prisoner complaints against the sheriffs were more prejudicial than probative. The jury’s ability to consider them in assessing the credibility of the defendant law enforcement officers was of significance to the trial. In the court’s view, all defendants were prejudiced by the jury’s improper consideration of these exhibits. Second, the court believed that it had erred during the first trial in refusing to admit Carson’s pleas of guilty to aggravated assault on two of the defendants in the suit. Even though the guilty pleas did in fact go to the jury, the defendants were prejudiced by their inability to mention the pleas in argument to the jury. A district court, of course, has power to grant a new trial when the jury has inadvertently considered inadmissible evidence, and the evidence was prejudicial to the losing party. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940); DeVasto v. Faherty, 658 F.2d 859, 864 (1st Cir. 1981). Our review of a district court’s decision to grant a new trial is broader than our review of a district court’s denial of a new trial, but the standard remains one of abuse of discretion. Reeves v. General Foods Corp., 682 F.2d 515, 519 n.6 (5th Cir. 1982); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982); Conway v. Chemical Lea-man Tank Lines, Inc., 610 F.2d 360, 362 (5th Cir. 1980). The difference in our standard of review of orders" }, { "docid": "22199092", "title": "", "text": "district court followed the guidelines provided by this court in United States v. Robinson, 707 F.2d 872, 876-78 (6th Cir.1983) and set forth a schedule allowing defense counsel to review the tapes and transcripts and to file objections concerning accuracy. No objections were made. Before playing the tapes, the district court advised the jury that the transcripts were not evidence, but were being provided to the jury only as a guide to help them follow what was being said on the tapes. The court emphasized the tapes were the evidence, and if the jury noticed any discrepancies, they were to rely on the tapes and disregard the transcripts. He repeated this instruction in his final charge to the jury. The district court did not abuse its discretion in allowing transcripts to be used as aids to the jury when listening to tape recorded conversations in light of his limiting instructions. Once admitted, transcripts may be used by the jury during the playing of tape recordings at trial and during jury deliberations after the case has been submitted. See United States v. West, 948 F.2d at 1044. VII. Exposure to Prejudicial Information Defendants argue that there was unauthorized exposure of prejudicial, extraneous information to the jury in regard to defendant Thomas Elder because an exhibit list presented to them contained a reference to a newspaper article about the apartment fire allegedly set by Elder on December 6, 1992, which killed four infants. However, the newspaper article itself was never sent to the jury room; only an exhibit list was sent. Among the hundreds of items listed on page 14 of the exhibit list was a reference which read: “10-21-93 ... newspaper article— deaths.... ” On March 24, 1994, the district court held a hearing about the list of allegedly prejudicial exhibits and questioned each of the twelve jurors who deliberated in the case. Six of the twelve jurors indicated that they neither saw the exhibit list, nor did any other juror mention the exhibit list to them. Of the remaining six jurors who had seen the exhibit list, none had seen" }, { "docid": "8625133", "title": "", "text": "conceded. Nor did the demonstratives have the impermissible effect of “transporting” Anton into the jury room during deliberations. The demonstratives used during Anton’s testimony contained various labels identifying which diagram depicted Anton’s conclusions and which diagram depicted the procedure described in Natale’s operative notes. The government removed these labels from the exhibits sent to the jury room, however, requiring jurors to identify the content of the demonstratives from their recollection of Anton’s testimony. Thus, the demonstratives did not have the effect of sending Anton himself into the jury room with the jurors. Contrary to Natale’s suggestion, United States v. Ware does not require a conclusion otherwise. That case focused on the admissibility of the evidence, noting only that this error in admission was “compounded” by the district court’s decision to allow juror use of the exhibits during deliberations. United States v. Ware, 247 F.2d 698, 700-01 (7th Cir.1957). Natale does not contest the admission of the demonstratives here so Ware offers no support for his argument. In short, Natale fully admitted discrepancies between the procedures described in his operative reports and the procedures he performed. He cannot now suggest prejudice in permitting the jury during deliberations to examine demonstrative evidence consistent with his own admissions. D. The District Court Did Not Abuse Its Discretion in Excluding the Government Report Natale’s final attempt at overturning his conviction focuses on the district court’s exclusion of a report published by the Department of Health and Human Services (HHS). The report showed error rates in Medicare coding and payments as high as 46% for claims submitted by vascular surgeons in this region. The district court excluded the evidence as irrelevant and as hearsay. We review evidentiary rulings for abuse of discretion. United States v. Cunningham, 462 F.3d 708, 712 (7th Cir.2006). Ultimately, we need not consider Natale’s arguments on this front because any error in the district court’s exclusion of the report was harmless. See United States v. Jackson, 540 F.3d 578, 593 (7th Cir.2008) (“Even if the district court erred in excluding such evidence, we will not reverse if the error was harmless.”)." }, { "docid": "2843175", "title": "", "text": "to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion.” Id. The factual discrepancies between the two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion was the result of an unconstitutional motive. See supra Part III.B. We hold that the district court did not abuse its discretion because, as the district court correctly observed, even “[assuming arguendo that the Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Although the Government sought to enforce the waiver in the district court, the Government does not seek to enforce it in this Court. Therefore, the waiver is not binding, and this Court may consider the instant appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006) (\"In the absence of the government's objection to [the appellant’s] appeal based on his appeal waiver, the waiver is not binding because the government has waived the issue.”). . The record is unclear as to Brown's relationship with the woman who made the call. At some points, she is referred to as Brown’s wife, in others, as Brown’s girlfriend. . In its opposition to Brown’s original § 2255 motion, the Government also argued that Brown waived his right to appeal, see supra, and Brown's claim was not cognizable under § 2255. The Government has not pressed these issues on appeal, and so we do not consider them here. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.2008) (\"It is a well worn principle that the" }, { "docid": "16749862", "title": "", "text": "evidence of Ramey’s guilt adduced at trial, and the relatively inconsequential nature of the errors in the context of the entirety of the case, we are not persuaded that their cumulative effect denied Ramey of a fair trial. See United States v. Neal, 27 F.3d 1035, 1051-52 (5th Cir.1994). Simply put, this is not “the unusual case in which synergistic or repetitive error violate[d]” the trial’s fundamental fairness. Delgado, 672 F.3d at 344. III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . As further discussed infra, Yashare testified that she followed her father’s instructions because she was \"trained and programmed” from an early age to obey Ramey and, had she protested, Ramey would have physically abused her. . The court also held that Stone's statement did not \"have the clear effect of drawing attention to the fact that Ramey invoked his right to silence.” Ramey I, 2008 WL 4582089, at *4. In the case at bar, Ramey does not contend that the prosecutor’s remarks were of such a character that the jury would naturally and necessarily have taken them to be commentary on Ramey’s silence, nor can we conclude that they were. See Rocha, 916 F.2d at 232. Thus, the only questions presently under consideration are whether the prosecutor manifestly intended to comment on Ramey’s silence and, if so, whether the violation was harmless beyond a reasonable doubt. See id.; see also Moreno, 185 F.3d at 472. . Later, Ramey also defended by claiming that he was unaware that his actions — at least as related to the bankruptcy filings — were illegal. . In the lower court, Ramey objected to the admission of this evidence on relevance grounds. He does not reiterate his relevance objection on appeal. . For this reason, Ramey’s claim would fail even if we reviewed for harmless, rather than plain, error." }, { "docid": "608444", "title": "", "text": "asserting conelusionally that his “injuries were caused by the unlawful policies and practices of the Shreveport Police Department.” Brown never identified any policy or custom, and, failing that first step, also failed to show a policymaker’s actual or constructive knowledge of the same and to link the constitutional violation to that policy or custom. His appellate brief is likewise deficient. The district court properly granted summary judgment. To support his claim that Chief White-horn failed to train his subordinate officers adequately, Brown had to show that: (1) the training policies were inadequate; (2) Chief Whitehorn was deliberately indifferent to the inadequacy; and (3) the inadequate policy directly caused Brown’s constitutional injury. Yet Brown sought to survive summary judgment with more eon-clusional allegations that fail to raise a genuine issue of material fact as to these elements. He claimed only that “Chief Whitehorn failed to train and supervise employees .of the Shreveport Police Department and plaintiff has suffered a deprivation of his constitutional rights[ ] as a result of it.” As regards the second required element, for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all" }, { "docid": "23687256", "title": "", "text": "improper. See, e.g., Brown v. Royalty, 535 F.2d 1024, 1028 (8th Cir.1976) (repeated, deliberate reference to evidence excluded by district court is clear misconduct and grounds for new trial); Adams Laboratories, Inc. v. Jacobs Engineering Co., 761 F.2d 1218, 1226 (7th Cir.1985) (plaintiff’s counsel’s reference to excluded evidence in direct contravention of the district court’s order held to constitute prejudicial error). These improper arguments also likely affected the jury’s verdict: this retaliation theory was injected into the case in the rebuttal portion of McWhorter’s closing argument, immediately before the jury began to deliberate; defense counsel had no opportunity to respond to these claims; and the jury noticed that the Post-Herald complaint was not included in the exhibits. Defense counsel’s failure to object to the improper argument, although troublesome, is not fatal to Deutcsh’s case. A contemporaneous objection to improper argument is certainly the preferable method of alerting the trial court to the error and preserving such errors for review, Woods v. Burlington Northern Railroad Co., 768 F.2d 1287, 1292 (11th Cir.1985), rev’d on other grounds, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987); however, “where the interest of substantial justice is at stake,” improper argument may be the basis for a new trial even if no objection has been raised. Edwards v. Sears, Roebuck and Co., 512 F.2d 276, 286 (5th Cir.1975); Hall v. Freese, 735 F.2d 956, 961 (5th Cir.1984); Fed.R.Civ.P. 61. In this case, the trial judge focused on the improper argument despite the lack of an objection, and his grant of a new trial served to vindicate the authority of the court. We therefore cannot say that the district court abused its broad discretion in determining that the interest of substantial justice mandated a new trial. Hall, 735 F.2d at 961. We also recognize that curative instructions do not always eradicate the prejudice resulting from an improper argument, see O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir.1977), and thus cannot say that the district judge abused its discretion in determining that its instructions were insufficient to erase the prejudice resulting from the improper" }, { "docid": "2843174", "title": "", "text": "an unconstitutional motive for the Government’s refusal to file a Rule 35(b) motion, we hold the district court did not err in failing to enforce the alleged post-plea agreement by the Government to request a Rule 35(b) reduction of sentence. C. Did the district court abuse its discretion when it failed to hold an evidentiary hearing on Brown’s motion? Finally, Brown argues that this Court should remand his case for the district court to conduct an evidentiary hearing on the merits of his claim. He claims that the factual disputes between his account of the alleged post-plea agreement and the Government’s account warrant an evidentiary hearing. We disagree. “[A] claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing.” Wade, 504 U.S. at 186, 112 S.Ct. 1840. The defendant must make a “threshold showing” that he or she would be entitled to relief to warrant an evidentiary hearing. Id. Brown, like the defendant in Wade, “has never alleged, much less claimed to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion.” Id. The factual discrepancies between the two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion was the result of an unconstitutional motive. See supra Part III.B. We hold that the district court did not abuse its discretion because, as the district court correctly observed, even “[assuming arguendo that the Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. ." }, { "docid": "22454107", "title": "", "text": "experts. See United States v. Richardson, 283 F.3d 1285 (11th Cir.2000). Permitting the use of summary evidentiary charts is within the discretion of the district court, id. at 1293, but Laudermill argues that the district court abused its discretion because the charts were misleading, wasted time, and violated various rules of evidence. The government complied with the requirements of Rule 1006 by making the summary charts and related exhibits available to defense counsel before trial. There was initially some dispute about that, but it was resolved when the government used a copy service to scan all of the exhibits into electronic form and made them available to defense counsel before trial. Even if the charts were improperly admitted, Brown and the other appellants have failed to demonstrate how they were prejudiced by the error. All of the defendants had access to the government’s documentary evidence months before trial and to the marked and numbered exhibits themselves before trial, the underlying documents were admitted into evidence before the summaries, and each of the defendants had an opportunity to cross-examine the government’s witnesses about the summaries. Not only that, but Brown and her co-defendants also used the government’s charts at various times during the trial— during direct examination, cross-examination, and in their closing arguments. Finally, the district court gave several cautionary instructions regarding the use of the summary charts, and we presume that the jury followed those instructions. United States v. Stone, 9 F.3d 934, 938 (11th Cir.1993) (“The crucial assumption underlying the system of trial by jury is that juries will follow the instructions given them by the trial judge.” (quotation omitted)). C. Amount of Loss We also reject Laudermill’s contention that the district court comtaitted reversible error by admitting during the trial evidence about the amount of loss that resulted from the fraud and money laundering. Laudermill argues that while the fact of loss had to be proven, the amount of the loss was irrelevant, and the prejudicial effect of the amount of the loss substantially outweighed any probative value it had. The district court did not abuse its discretion." }, { "docid": "5742323", "title": "", "text": "of stepping off a moving locomotive. We agree that the film was properly excluded under Fed.R.Evid. 401 and 403. All testimony regarding the proper method of stepping off the moving locomotive and the manner used by plaintiff was consistent. A film demonstration would be merely cumulative. Furthermore, the film was carefully staged by the railroad for the purpose of this litigation. A training film used to instruct plaintiff, or an actual film of plaintiff, might have been relevant and useful. However, the film offered added nothing to the case and we find no abuse of discretion in excluding it. Second, the district court allowed the jury to take plaintiffs exhibit # 14, a jar of taconite pellets which had been admitted without objection, to the jury room during deliberations. The court declined to give an instruction telling the jury to refrain from experimenting with the pellets. The railroad argued the jury had no need to consider or examine the pellets because they related to the issue of negligence and the court had already directed a verdict for plaintiff. Plaintiff argued the pellets were relevant to the jury’s consideration of the severity of Borough’s injury. On appeal plaintiff urges there is no evidence the jury experimented with the pellets or made any use of them which might have been prejudicial to the railroad. We agree. The decision to allow the jury to examine the pellets was within the discretion of the district court and, even if the court abused its discretion, there is no showing of prejudice. Any error must be deemed harmless. The judgment of the district court is affirmed. . In an unusual ruling the trial court directed a verdict in favor of the plaintiff at the close of all evidence on the issue of the railroad’s negligence. The court held the railroad was negligent as a matter of law. We think this kind of ruling should be reserved for only the exceptional case. In weighing a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the party moved against," }, { "docid": "10111813", "title": "", "text": "the court abused its discretion by mentioning before the jury Stewart’s dismissed retaliation claim, he fails to show an abuse of discretion, because the court instructed the jury multiple times that it was the sole judge of the facts, and to disregard the court’s statements in arriving at a verdict. Turlington v. Phillips Petroleum Co., 795 F.2d 434, 443 (5th Cir.1986). 4. Stewart contends the court wrongfully precluded him from presenting evidence related to Duncan’s financial misconduct. But, as discussed supra, exclusion of irrelevant evidence does not constitute an abuse of discretion. Pena, 542 F.2d at 294. 5. To the extent Stewart asserts cumulative error warrants reversal, for the reasons- stated above, he fails to show any reversible error. Moreover, even assuming errors, Stewart fails to show they “so fatally infect the trial that they violated [its] fundamental fairness”. United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). C. Finally, although Stewart challenges the adverse summary judgment on his discrimination claim against IAM, his contentions turn on IAM’s being his claimed employer. Stewart concedes “District 19 initiated ... the discrimination against Stewart”, and states he named IAM as a defendant “under well-established .law that exposes superficially distinct entities to liability upon a finding that they represent a single, integrated enterprise”. Therefore, because his claims of harmful error at trial fail, as discussed supra, there is no underlying liability to impute to IAM for claimed discrimination. In any event, his employer-liability claim fails, essentially for the reasons stated in the comprehensive and well-reasoned recommendation by the magistrate judge, as adopted by the district court. III. For the foregoing reasons, the judgment is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." } ]

[ { "docid": "10298732", "title": "", "text": "$1,500 after payment of the daycare. Accordingly, he is approximately $200 short each month. Also, he faces the prospect of additional child support orders being entered with respect to two children for whom he currently provides no support. At trial, the U.S. Department of Education did not seriously suggest that Mr. Simmons could make any meaningful payment on his student loans at this time. No argument was made that any line item in his monthly budget was overstated or unreasonable. Accordingly, as to the first prong of the Brunner test, the Court finds that Mr. Simmons has met his burden proof. Mr. Simmons could not maintain a minimal standard of living for himself and his dependents based on his current income and expenses if he were required to repay his student loans. The second prong of the Brunner test requires an analysis of the factors which contribute to Mr. Simmons inability to pay his loans and a determination as to whether additional circumstances exist which indicate that his inability to make payments will persist for a significant portion of the repayment period. The Seventh Circuit has held that the discharge-ability of a student loan cannot be granted simply upon the current inability to pay but should be done only upon a “certainty of hopelessness.” Matter of Roberson, supra, 999 F.2d at 1136, citing In re Briscoe, 16 B.R. 128, 131 (Bankr.S.D.N.Y.1981). “Certainty of hopelessness” is a tough standard and one that can generally only be met by the truly disabled or debtors whose repayment periods have already run so that the certainty of their inability to pay for the entire period is a matter of fact rather than speculation. See, In re Lewis, 276 B.R. 912 (Bankr.C.D.Ill.2002). No evidence was presented at trial as to the amount of the repayment period remaining for Mr. Simmons’ student loans. Because he finished his education not more than six years ago, this Court must presume that the initial repayment period has not yet run. Thus, this Court must look into the future to determine the likelihood that Mr. Simmons’ situation will change, allowing" } ]

[ { "docid": "11518933", "title": "", "text": "particular bankruptcy case. Id. (citing Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.2003); Andrews v. S.D. Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702 (8th Cir.1981); Andresen v. Neb. Student Loan Program, Inc. (In re Andresen), 232 B.R. 127, 139-140 (8th Cir. BAP 1999)). I conclude that the debtor has met his burden, and thus, his student loans are not excepted from his discharge. The defendants argue that Korhonen, is eligible to participate in the Department of Education’s Income Contingent Repayment Plan, but has refused to enroll. Under this plan, with income of approximately $6,000, his student loan balance of approximately $70,000, and his family size of one would require him to pay nothing towards his student loans each month. Thus, the defendants reason, there is no undue hardship. The Income Contingent Repayment Program permits a student loan debtor to pay twenty percent of the difference between his adjusted gross income and the poverty level for his family size, or the amount the debtor would pay if the debt were repaid in twelve years, whichever is less. Under the program, the borrower’s monthly repayment amount is adjusted each year to reflect any changes in these factors. The borrower’s repayments may also be adjusted during the year based on special circumstances. See 34 C.F.R. § 685.209(c)(3). At the end of the twenty five year payment period, any remaining loan balance would be cancelled by the Secretary of Education. However, the amount discharged would be considered taxable income. See Grawey v. Illinois Student Assistance Commission (In re Grawey), 2001 WL 34076376 (Bankr.C.D.Ill.); Leahy v. Illinois Student Assistance Commission (In re Leahy), 2001 WL 34079569 (Bankr.C.D.Ill.); In re Thomsen, 234 B.R. 506, 509-510 (Bankr.D.Mont.1999). APPLICATION OF THE TOTALITY OF THE CIRCUMSTANCES TEST The defendants do not really argue that making present or even future payments on the student loans would constitute anything other than undue hardship. The debtor has no present ability to make the scheduled loan payments, nor will he ever have that ability, given his level of education and skills, and his" }, { "docid": "176153", "title": "", "text": "withheld. At trial Faktor said she owed about $2,000 for attorney fees. Faktor reported having about $550 in her checking account on the date of trial, $425 of which would be used for January rent, $105 in savings, and about $84 in an IRA. Discussion Katheryn Faktor asks the court to determine that excepting the student loan obligation from her discharge would impose an “undue hardship” on her within the meaning of 11 U.S.C. § 523(a)(8). Debtor must prove the existence of undue hardship by a preponderance of the evidence. Ford v. Student Loan Guarantee Found. of Ark. (In re Ford), 269 B.R. 673, 675 (8th Cir. BAP 2001). “Undue hardship” is not defined by the Bankruptcy Code. For determining whether undue hardship exists, the Eighth Circuit Court of Appeals has established a “totality of the circumstances” test. Long v. Educational Credit Management Corp. (In re Long), 322 F.3d 549, 553 (8th Cir.2003); Andrews v. South Dakota Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702 (8th Cir.1981). The Circuit Court held in Long that [i]n evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts should consider: (1) the debtor’s past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — -then the debt should not be discharged. Certainly, this determination will require a special consideration of the debtor’s present employment and financial situation — including assets, expenses, and earnings — along with the prospect of future changes — positive or adverse — in the debtor’s financial position. In re Long, 322 F.3d at 554 (citations omitted). The court first concludes that dischargeability in this case depends on Faktor’s future ability to pay the entire student loan obligation. The court will not consider that the Department of Education would accept payments under a modified repayment plan that has not" }, { "docid": "688585", "title": "", "text": "discharge the student loan and their attorney conceded at the hearing that, based on the current state of the law, the Debtors would not qualify for a discharge of their student loan debt. 11 U.S.C. § 523(a)(8); Matter of Roberson, 999 F.2d 1132 (7th Cir.1993); In re Simmons, 334 B.R. 632 (Bankr.C.D.Ill.2005), aff'd 2006 WL 2556581 (C.D.Ill.). The Debtors argued, however, that their obligation to pay the student loan debt constitutes a “special circumstance” and that their $178 per month payment should be considered in determining their ability to pay other creditors and whether abuse exists. The Assistant UST again argued that it is the position of the UST that student loan debt payments are not to be considered “special circumstances” but again offered no authority or rationale for the position. At least three other courts have already considered the issue of whether a student loan obligation constitutes a “special circumstance” and, in each case, found that such an obligation met the statutory requirements for “special circumstance.” In Templeton, 365 B.R. 213, the court found that, because it was undisputed that the student loans in question were non-dis-chargeable, the debtors had no reasonable alternative other than to pay them. The court held “there is nothing within the Debtors’ power to reduce or otherwise avoid the additional expense of the student loans.” Id. at 216. In Haman, 366 B.R. 307, the court also found that, because the student loan obligation of the debtor who had cosigned for her son was non-dischargeable, the debtor had no reasonable alternative to payment of the loan. The debtor had no ability to pay the loan in full and avoid ongoing payments and her son could not make the payments due to a medical condition. Further, the court rejected the arguments of the UST in that case that partial pay ment through a Chapter 13 case would be a reasonable alternative. Id. at 315-16. Most recently, in Delbecq, 368 B.R. 754, the court found “special circumstances” because the existence of student loan debt limited the debtor’s meaningful ability to pay her other debts. The court found" }, { "docid": "18270295", "title": "", "text": "due to catastrophic illness, military deploymenUactivation, or similar post-contractual disasters or misfortunes, Section 707's special circumstances exception may apply because of those factors, not because of the student loan obligation’s nature as a non-dischargeable debt. If non-dis-chargeability was the standard for a special circumstance, Congress would have said so. Those courts concluding that \"special circumstances” include non-dischargeable student loan obligations arguably will have to apply this standard to every other non-dischargea-ble obligation, from long-term auto lease payments that exceed the IRS standards [Section 1322(b)(5)] to debts arising not only from student loans but also from fraud, embezzlement, DUI, and the like. See 11 U.S.C. §§ 523 and 1328(a). Every one of these non- dischargeable obligations could qualify as debts for which a debtor has no reasonable alternative but to continue payments to avoid economic harm, and there is no suggestion in Section 707(b)(2)(B) that courts have been delegated the policy decision of deciding that some non-dischargeable debts are \"good” and some are \"bad” so as to permit treating some but not all as a \"special circumstance.” The premise that educational loans are a \"special circumstance” for which there is no alternative but to raise a debtor’s expenses by a sufficient amount to escape the means test presumption, in order to avoid long-term economic harm, is misplaced. Student loan repayments are authorized by Code-based provisions that authorize debtors to maintain regular student loan payments as part of a Chapter 13 plan and avoid the perceived economic hardships recited by Knight and Delbecq. See 11 U.S.C. § 1322(b)(5); American Gen. Fin., Inc. v. Alexander (In re Alexander), 1997 WL 33476360 (Bankr.S.D.Ga.1997) (citing In re Salyer, 1991 WL 11002298 (Bankr. S.D.Ga.1991)). Chapter 13 repayment provides the \"reasonable alternative” to engaging in a strained reading of what constitutes a special circumstance in order to adjust the income or expense calculations of the means test. I recognize that this finding may force debtors into a Chapter 13 case which yields no greater dividend to unsecured creditors than a Chapter 7 liquidation, but Congress made a policy decision that these debtors still must follow the Chapter" }, { "docid": "688583", "title": "", "text": "Debtors claim that the addition of their new baby to the household has increased their expenses and constitutes a “special circumstance” which would justify an increased standard deduction for their food, clothing, and miscellaneous expenses. On their original CMI, the Debtors claimed the standard deduction for a household of four persons, which was $1,546. They suggest that the standard deduction for a household of five persons in the amount of $1,762 should be used in calculating whether abuse actually exists. This would result in an additional deduction of $216 on their CMI. The UST objects to the allowance of this “special circumstance” and the Assistant UST appearing at the hearing simply argued that it is the position of the UST that no post-petition developments, even the birth of a child, should be considered. The Assistant UST cited no authority for the position and provided no rationale for the position. This Court finds that Mrs. Martin’s pregnancy at the time of filing and the subsequent birth of the Debtors’ third child are exceptional, additional, and extra facts which must be considered in determining the existence of abuse. The statute allows a “special circumstance” expense deduction if Debtors establish that there is no reasonable alternative to incurring the claimed expense. Here, the Debtors have clearly established that there is no reasonable alternative to the feeding, clothing, diapering, and caring for their new baby, and the UST has not even attempted to suggest any reasonable alternative. The Debtors’ assertion that the amount of expense adjustment to which they are entitled should be the difference in the standards between a four-person and five-person household is also reasonable. The UST has not offered a more appropriate method of calculating the adjustment. Accordingly, the Court finds that the Debtors are entitled to a $216 expense adjustment due to the “special circumstance” of the birth of their third child. C. Student Loan Payment The Debtors scheduled a student loan obligation to the U.S. Department of Education in the amount of $10,680. They have budgeted a monthly student loan payment of $178. The Debtors have not sought to" }, { "docid": "18497519", "title": "", "text": "Exhibit 32. The amount she receives varies, depending in part on the amount her former husband pays for child support. He makes the support payments to the State of Iowa as long as Hawkins receives public assistance. The highest amounts she has received have been $250 per month for FIP payments, and between $200-250 for food stamps. Hawkins has not made any payments on her student loan obligation to ISAC. The amount now owing, with accrued interest, is approximately $30,352. Discussion Student loan obligations are ordinarily dischargeable in bankruptcy only in a case filed after seven years from the date the loan first became due. 11 U.S.C. § 523(a)(8)(A). See generally 3 Collier on Bankruptcy ¶ 523.18 (15th ed. 1995); 3 Norton Bankruptcy Law & Practice 2d § 47:48 (1994). Cecelia Hawkins seeks an order determining that her student loan obligation is dischargeable pursuant to 11 U.S.C. § 523(a)(8)(B), which provides that such debts may be dischargea-ble within the seven-year period if: excepting such debt from discharge ... will impose an undue hardship on the debt- or and the debtor’s dependents. 11 U.S.C. § 523(a)(8)(B). The burden of proof of undue hardship is on the debtor. Cadle Co. v. Webb (In re Webb), 132 B.R. 199, 201 (Bankr.M.D.Fla. 1991). Courts have used a variety of methods for determining what constitutes “undue hardship” under § 523(a)(8)(B). See 3 Norton Bankruptcy Law & Practice § 47:48 at 47-107 to 47-110 (identifying four approaches). The Bankruptcy Code does not define the term. The court in In re Johnson, 5 Bankr.Ct. Dec. (CRR) 532 (Bankr.E.D.Pa.1979), developed a three-part test of undue hardship that has been followed by many courts. For the text and discussion of the Johnson test, see Matter of Roberson, 999 F.2d 1132, 1134-35 (7th Cir.1993), and Koch v. Pennsylvania Higher Education Assistance Agency (In re Koch), 144 B.R. 959, 963-64 (Bankr.W.D.Pa. 1992). Part one of the Johnson test is termed a “mechanical test” that examines the debtor’s present and future ability to repay the student loan. The court considers the debtor’s circumstances by looking at the following factors: (1) Present employment" }, { "docid": "688586", "title": "", "text": "that, because it was undisputed that the student loans in question were non-dis-chargeable, the debtors had no reasonable alternative other than to pay them. The court held “there is nothing within the Debtors’ power to reduce or otherwise avoid the additional expense of the student loans.” Id. at 216. In Haman, 366 B.R. 307, the court also found that, because the student loan obligation of the debtor who had cosigned for her son was non-dischargeable, the debtor had no reasonable alternative to payment of the loan. The debtor had no ability to pay the loan in full and avoid ongoing payments and her son could not make the payments due to a medical condition. Further, the court rejected the arguments of the UST in that case that partial pay ment through a Chapter 13 case would be a reasonable alternative. Id. at 315-16. Most recently, in Delbecq, 368 B.R. 754, the court found “special circumstances” because the existence of student loan debt limited the debtor’s meaningful ability to pay her other debts. The court found that, because the student loan debt was non-dischargeable, forcing the debtor to use her limited funds to pay other unsecured debt instead of the student loan debt would simply result in the student loan debt increasing over time due to interest accumulation. The court also rejected the alternative of a Chapter 13 filing. The court found no reason to incur the administrative costs of a Chapter 13 where virtually no distribution would be made to other unsecured creditors. Id. at 759. This Court finds the reasoning of Tem-pleton, Daman, and Delbecq persuasive. Here, the Debtors have acknowledged the non-dischargeability of their student loan debt and they have no reasonable alternative other than to pay the debt. Chapter 13 is not a reasonable alternative. A Chapter 13 filing would result in only partial payment of the student loan during the term of the Chapter 13 case and, most likely, a substantial balance would still be due upon completion of the case. Student loan debt is non-dischargeable and, as such, must be paid. The existence of this" }, { "docid": "17539350", "title": "", "text": "remained silent on this type of debt, raising the question: if Congress had intended for student loans to constitute a per se “special circumstance,” why didn’t it do so? Not all courts have followed this approach, largely on the basis that, because student loans are nondischargeable, the debtor has no realistic option but to pay the debt. See In re Womer, 427 B.R. 334, 336 (Bankr.M.D.Pa.2010) (collecting cases). The Court, however, respectively disagrees with such an approach, finding that it has a logical inconsistency. First, other debts under the Bankruptcy Code are nondischargeable, and thus, like student loans, presumably have to be repaid. Such debts can include those relating to fraud (§ 523(a)(2)), willful and malicious injury to a person or property (§ 523(a)(6)), and death or personal injury resulting from the operation of a motor vehicle while intoxicated (§ 523(a)(9)). In re Vaccariello, 375 B.R. 809, 815 (Bankr.N.D.Ohio 2007). However, one would hardly make the argument that the repayment of these types of nondischargeable debts would constitute a ‘special circumstance,’ warranting an adjustment to a debtor’s expenses under the ‘means test.’ Debtors with large student loan obligations also have other options available to address their needs, thereby ameliorating the lack of any viable alternatives when it comes to repaying the debt. For example, Congress just recently implemented the Income Based Repayment Program. 20 U.S.C. § 1098e. Explained in very general terms, if one participates in this program their required payments on an outstanding student loan are limited to 15% of the debtor’s adjusted gross income that exceeds 150% of the applicable poverty line. The amount of monthly payment due on a student loan could thus be minimal. Furthermore, if any balance remains on the loan after 25 years, that portion of the debt is forgiven. In sum, the Court is not persuaded that the Debtors’ large student-loan obligations qualify as a ‘special circumstance’ for purposes of § 707(b)(2)(B)®. As such, the cost incurred by the Debtors to service their student loans does not justify the allowance of an additional expense when performing the “means test” calculation of § 707(b)(2)(B)." }, { "docid": "21195867", "title": "", "text": "expense because it would be “financially irresponsible” and “financially impossible” to terminate the repayment obligation. Id. at 777-78. More specifically, the debtor would have had either to quit his job or repay the loan in full to rid himself of the obligation. Id. at 777. Here, the record demonstrates that the Debtor’s son incurred the student loan obligation in October 2003, almost three years prior to the commencement of this Case. Moreover, there is no dispute that the Debtor is a co-signor for her son’s student loan obligation, that her son has been unable to make the required monthly payments to Key Bank, and that the obligation is non-dischargeable. Like the debtor in Thompson, the only way the Debtor can stop making the student loan payments would be to pay off the obligation in full, which the record indicates is impossible for this Debtor, or to have her son resume the monthly payments, which the record indicates would be unreasonable to expect at this time due to his medical condition. The UST has argued that the Debtor does have a reasonable alternative — to convert the Case to one under chapter 13, modify the rights of Key Bank pursuant to section 1322(b), and make a pro rata distribution to Key Bank for the length of a chapter 13 plan. Essentially, the UST is asking this Court to consider in its special circumstances analysis how a debtor could proceed in a case under chapter 13 and what possible return unsecured creditors would receive. The Court cannot apply this approach, however, as it would violate the Congressional intent behind the means test. Rather, consideration of the potential results under a hypothetical chapter 13 plan belongs more properly under the section 707(b)(3) totality of the circumstances test. An examination of recent case law reveals that only one court has considered, and rejected, the proposition that circumstances in a case under chapter 13 can be examined when determining the existence of special circumstances. See In re Johns, 342 B.R. 626 (Bankr.E.D.Okla.2006). In Johns, the chapter 7 debtors sought to include additional expenses and adjustments" }, { "docid": "4557006", "title": "", "text": "example, payments of domestic support obligations and priority taxes are allowable expenses. See 11 U.S.C. § 507(a)(1), (8) and § 523(a)(1), (5). However, not all nondis-chargeable debts are priority debts. Had Congress intended to render payments on all categories of nondischargeable debts as allowable expenses under § 707(b)(2)(A), it would have been simple enough to do so expressly. In the absence of some textual support in the Bankruptcy Code, I fail to see how a student loan repayment constitutes “special circumstances” based solely on its status as a nondischargeable debt. Accord Beckett, 442 B.R. 638, 2010 WL 3894429, at *5; In re Lightsey, 374 B.R. 377, 382 (Bankr.S.D.Ga.2007). But see In re Delbecq, 368 B.R. 754, 759-60 (Bankr.S.D.Ind.2007). The two other standards that have been articulated by the courts provide a far more plausible basis for deciding whether a debtor’s student loan repayments constitute “special circumstances.” However, I need not decide whether either or both of these rationales should serve as a test for “special circumstances” or, more generally, the statutory term’s precise contours. Assuming arguendo that the second and/or the third standards state grounds for a finding of “special circumstances” under 11 U.S.C. § 707(b)(2)(B), the Debtor has not met her burden of proof under either one. There is no evidence suggesting that the Debtor incurred the educational expenses due to some sort of life adversity such as a job loss or disability, as opposed to a motivation to “secure a more advantageous income or to enter a different vocation.” Pageau, 383 B.R. at 228. Therefore, the Debtor cannot rebut the presumption under the second standard. Nor has the Debtor demonstrated under the third rationale that “grave consequences,” Womer, 427 B.R. at 336, would more likely than not result if the student loans were not treated as allowable expenses under § 707(b). Rather, the Debt- or simply assumes that she has no alternative but to pay the student loan because it is nondischargeable. I have independently considered the consequences of disallowing the monthly student loan payment as an allowable expense and I perceive two potential consequences if the student" }, { "docid": "4556998", "title": "", "text": "44 of Form B22A, she took her monthly student loan payment of $565.64 as an allowable expense for a payment of a prepetition priority claim. See 11 U.S.C. § 707(b)(2)(A)(iv). Based on her claimed expenses, the Debtor calculated her MDI as $19.44, an amount that does not give rise to a presumption of abuse. The UST asserts that the Debtor improperly claimed the deduction for her monthly student loan payment of $565.64 because the student loan debt is not a priority debt that may be deducted from CMI pursuant to § 707(b)(2)(A)(iv). If the monthly student loan payment is disallowed as an expense, the Debtor’s MDI increases to $585.08, which, multiplied by 60 equals $35,104.80. Under § 707(b)(2)(A)(i)(II), this calculation creates a presumption of abuse because $35,104.80 exceeds both $1,166.40 and $22,422.43. See n.10, supra. I conclude easily that the UST’s objection to the Debtor’s deduction of her monthly student loan payment is well taken. There is no mention of student loan debts in 11 U.S.C. § 507(a) and therefore, there is no statutory basis for treating such debts as priority debts under the Bankruptcy Code. As a result of the dis-allowance of the monthly student loan payment as an expense that may be deducted from the Debtor’s CMI, a presumption of abuse has arisen in this case. C. 1. The key issue in this case is whether the Debtor’s obligation to repay a non-dischargeable student loan constitutes “special circumstances” under § 707(b)(2)(B). The presumption of abuse having arisen and therefore, a prima facie case of abuse under § 707(b)(2)(A) having been established, the Debtor bears the burden of proof, under § 707(b)(2)(B), of showing that “special circumstances” justify the expenses that the debtor has claimed. In re Womer, 427 B.R. 334, 336 (Bankr.M.D.Pa.2010); In re Williams, 424 B.R. 207, 211 (Bankr.W.D.Va.2010), aff'd 2010 WL 3292812 (W.D.Va. Aug. 19, 2010); In re Witek, 383 B.R. 323, 329 (Bankr.N.D.Ohio 2007); see also In re Meade, 420 B.R. 291, 303-04 (Bankr.W.D.Va.2009). A debtor seeking to establish “special circumstances” under § 707(b)(2)(B) must satisfy both procedural and substantive requirements. The procedural requirements are" }, { "docid": "4556999", "title": "", "text": "for treating such debts as priority debts under the Bankruptcy Code. As a result of the dis-allowance of the monthly student loan payment as an expense that may be deducted from the Debtor’s CMI, a presumption of abuse has arisen in this case. C. 1. The key issue in this case is whether the Debtor’s obligation to repay a non-dischargeable student loan constitutes “special circumstances” under § 707(b)(2)(B). The presumption of abuse having arisen and therefore, a prima facie case of abuse under § 707(b)(2)(A) having been established, the Debtor bears the burden of proof, under § 707(b)(2)(B), of showing that “special circumstances” justify the expenses that the debtor has claimed. In re Womer, 427 B.R. 334, 336 (Bankr.M.D.Pa.2010); In re Williams, 424 B.R. 207, 211 (Bankr.W.D.Va.2010), aff'd 2010 WL 3292812 (W.D.Va. Aug. 19, 2010); In re Witek, 383 B.R. 323, 329 (Bankr.N.D.Ohio 2007); see also In re Meade, 420 B.R. 291, 303-04 (Bankr.W.D.Va.2009). A debtor seeking to establish “special circumstances” under § 707(b)(2)(B) must satisfy both procedural and substantive requirements. The procedural requirements are set forth in § 707(b)(2)(B)(ii), (iii), and (iv), and they require a debtor (1) to “itemize” each additional expense or income adjustment by setting forth the nature of the suggested adjustment, its amount, and its impact on the debtor’s finances and the means test calculation; (2) to provide “documentation” of the additional expense or income adjustment; (3) to provide a “detailed explanation” of the “special circumstances” that make the additional expense or income adjustment “necessary and reasonable;” and (4) to “attest under oath” to the accuracy of the information the debtor provides. In re Pageau, 383 B.R. 221, 225 (Bankr.D.N.H.2008) (citing Littman, 370 B.R. at 830); Haman, 366 B.R. 307, 312 (Bankr.D.Del.2007). The UST concedes that the Debtor has satisfied the procedural requirements for establishing “special circumstances.” (UST Memorandum of Law at 11). Substantively, § 707(b)(2)(B) requires that the “special circumstances” be sufficient to “justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative.” 11 U.S.C. § 707(b)(2)(B)®. The statute identifies two examples of “special circumstances:” a serious medical" }, { "docid": "688584", "title": "", "text": "facts which must be considered in determining the existence of abuse. The statute allows a “special circumstance” expense deduction if Debtors establish that there is no reasonable alternative to incurring the claimed expense. Here, the Debtors have clearly established that there is no reasonable alternative to the feeding, clothing, diapering, and caring for their new baby, and the UST has not even attempted to suggest any reasonable alternative. The Debtors’ assertion that the amount of expense adjustment to which they are entitled should be the difference in the standards between a four-person and five-person household is also reasonable. The UST has not offered a more appropriate method of calculating the adjustment. Accordingly, the Court finds that the Debtors are entitled to a $216 expense adjustment due to the “special circumstance” of the birth of their third child. C. Student Loan Payment The Debtors scheduled a student loan obligation to the U.S. Department of Education in the amount of $10,680. They have budgeted a monthly student loan payment of $178. The Debtors have not sought to discharge the student loan and their attorney conceded at the hearing that, based on the current state of the law, the Debtors would not qualify for a discharge of their student loan debt. 11 U.S.C. § 523(a)(8); Matter of Roberson, 999 F.2d 1132 (7th Cir.1993); In re Simmons, 334 B.R. 632 (Bankr.C.D.Ill.2005), aff'd 2006 WL 2556581 (C.D.Ill.). The Debtors argued, however, that their obligation to pay the student loan debt constitutes a “special circumstance” and that their $178 per month payment should be considered in determining their ability to pay other creditors and whether abuse exists. The Assistant UST again argued that it is the position of the UST that student loan debt payments are not to be considered “special circumstances” but again offered no authority or rationale for the position. At least three other courts have already considered the issue of whether a student loan obligation constitutes a “special circumstance” and, in each case, found that such an obligation met the statutory requirements for “special circumstance.” In Templeton, 365 B.R. 213, the court found" }, { "docid": "688592", "title": "", "text": "of the 401K loans here were obtained post-petition. The UST urges, and the Court agrees, that close scrutiny should be given to loans of any type which are incurred post-petition and are then put forth as “special circumstances.” In this case, the Court need not decide any of the legal issues raised by the case law involving consideration of whether 401K loans may constitute “special circumstances” because the Debtors failed to provide sufficient detailed information regarding their new 401K loans for this Court to find that they met their factual burden under the statute. The Debtors assert that they needed funds to assist with expenses incurred as the result of the birth of their new baby in December, 2006. That may well be true, but the Debtors provided no details of the amounts borrowed or the specific use of the funds. All the Court really knows is that their monthly 401K loan payment increased from $50 to $220. That is not enough information to determine whether there were reasonable alternatives to the borrowing. Accordingly, the Debtors’ claim of “special circumstances” for their increased 401K loan payment is denied. At the hearing, the side-by-side comparison shows that the UST believed that the appropriate amount of deductions for the Debtors was $6,685.03. Giving the Debtors the additional deductions of $216 for the expenses associated with their new baby and $178 for the student loan payment raises the total deductions to $7,079.03. When compared to the Debtors’ actual monthly income of $6,951.61, the result is that the Debtors’ monthly disposable income is a negative $117.32. Because the Debtors have no current monthly disposable income to pay creditors, they have rebutted the presumption of abuse. The UST’s Motion to Dismiss will be denied. This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure. See written Order. ORDER For the reasons set forth in an Opinion entered this day, IT IS HEREBY ORDERED that the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b)(1) and (b)(2) be and is" }, { "docid": "21195849", "title": "", "text": "MEMORANDUM OPINION BRENDAN LINEHAN SHANNON, Bankruptcy Judge. Before the Court is the Motion of the United States Trustee (“UST”) to Dismiss the chapter 7 case of Patricia Haman (the “Debtor”) pursuant to 11 U.S.C. § 707(b)(2) or, alternatively, pursuant to 11 U.S.C. § 707(b)(3) (the “Motion to Dismiss”). The Debtor opposes the Motion to Dismiss, conceding that the presumption of abuse has arisen pursuant to section 707(b)(2)(A) but asserting that the statutory presumption has been rebutted by her demonstration of a special circumstance justifying an additional expense under section 707(b)(2)(B), viz., a non-dischargeable student loan obligation. For the reasons stated below, the Court concludes that the Debtor has rebutted the presumption of abuse by demonstrating a special circumstance that allows her to deduct the student loan payments. If requested by the UST, the Court will schedule a separate evidentiary hearing to consider whether the filing of the Debtor’s case was abusive under section 707(b)(3). BACKGROUND On August 15, 2006, the Debtor commenced the above-captioned case (the “Case”), seeking protection under chapter 7 of the Bankruptcy Code (the “Code”). Along with her voluntary petition, the Debtor filed her Schedules, Statement of Financial Affairs, and Statement of Cur rent Monthly Income and Means Test Calculation (“Form B22A”). At that time, the Debtor’s Form B22A indicated that she did not have sufficient net monthly income for the presumption of abuse to arise under section 707(b)(2). Included in her calculation of monthly deductions was a payment to Key Bank USA, National Association (“Key Bank”), which the Debt- or categorized as a “payment on a priority claim.” This monthly payment to Key Bank represents a student loan obligation incurred by the Debtor’s son in October 2003 for which the Debtor is a co-signor. Following her son’s development of psychological disorders, the Debtor has made fifteen monthly payments of $162.12 to Key Bank. As of October 13, 2006, the outstanding loan balance was $22,249.59. On October 23, 2006, the UST filed its Motion to Dismiss arguing: (1) the presumption of abuse in fact did arise due to the Debtor’s improper deduction of the student loan obligation" }, { "docid": "21195857", "title": "", "text": "“attest under oath to the accuracy of any information provided to demonstrate that additional expenses or adjustments to income are required.” 11 U.S.C. § 707(b)(2)(B)(iii). In the instant case, there is no dispute that the Debtor has fulfilled these requirements. On December 20, 2006, the Debtor submitted her Declaration in Support of Rebutting the Presumption of Abuse Pursuant to Section 707(b)(2)(B)(i) [Docket No. 29], in which she attested under oath and described, in detail, the circumstances necessitating an additional expense and to which she attached the Promissory Note documenting the student loan obligation with Key Bank. To satisfy the substantive requirement, a debtor must demonstrate “special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, ... that justify additional expenses or adjustments of [the debtor’s] current monthly income for which there is no reasonable alternative.” 11 U.S.C. § 707(b)(2)(B)(i) (emphasis added). Here, in support of her request, the Debtor argues that she has no reasonable alternative but to pay her son’s student loan obligation because: (1) she is a co-signor on the loan; (2) her son is unable to make the required monthly payments to Key Bank because of the several psychological disorders from which he suffers; and (3) the debt cannot be discharged because it does not impose an “undue hardship” for her or her dependents as required under section 523(a)(8). As a threshold argument in opposition, the UST argues that the Debtor’s student loan obligation does not fall within the narrow and defined categories of special circumstances described in section 707(b)(2)(B) — “a serious medical condition or a call or order to active duty in the Armed Forces.” Although the UST concedes that the examples set forth in section 707(b)(2)(B) are not exclusive, he argues that they are both of an involuntary nature, thereby indicating Congress’ intent to limit special circumstances to those incurred or developed outside the control of a debtor. Accordingly, he urges this Court not to extend the application of special circumstances to the current Case where the Debtor voluntarily co-signed for her son’s student" }, { "docid": "21195850", "title": "", "text": "Code (the “Code”). Along with her voluntary petition, the Debtor filed her Schedules, Statement of Financial Affairs, and Statement of Cur rent Monthly Income and Means Test Calculation (“Form B22A”). At that time, the Debtor’s Form B22A indicated that she did not have sufficient net monthly income for the presumption of abuse to arise under section 707(b)(2). Included in her calculation of monthly deductions was a payment to Key Bank USA, National Association (“Key Bank”), which the Debt- or categorized as a “payment on a priority claim.” This monthly payment to Key Bank represents a student loan obligation incurred by the Debtor’s son in October 2003 for which the Debtor is a co-signor. Following her son’s development of psychological disorders, the Debtor has made fifteen monthly payments of $162.12 to Key Bank. As of October 13, 2006, the outstanding loan balance was $22,249.59. On October 23, 2006, the UST filed its Motion to Dismiss arguing: (1) the presumption of abuse in fact did arise due to the Debtor’s improper deduction of the student loan obligation as a “payment on a priority claim”; and (2) even if the Court found the deduction proper, dismissal of the Case under section 707(b)(3) was appropriate because the totality of the circumstances indicated the Debtor’s ability to fund a chapter 13 plan. On November 9, 2006, the Debtor responded to the Motion to Dismiss. She conceded that the student loan obligation did not constitute a “payment on a priority claim” and that the presumption of abuse arose pursuant to section 707(b)(2)(A). Nonetheless, the Debtor argued that because the obligation was non-dischargea-ble, it constituted a special circumstance “for which there is no reasonable alternative.” 11 U.S.C. § 707(b)(2)(B). The Debtor contends this special circumstance would justify an additional expense to rebut the presumption of abuse. An evidentiary hearing was held on February 1, 2007, at which time the Debtor testified and was cross-examined. Although initially there was some dispute as to whether the Debtor’s signature on the original loan agreement with Key Bank was a forgery, the Debtor testified at the hearing that she knew of" }, { "docid": "688593", "title": "", "text": "Debtors’ claim of “special circumstances” for their increased 401K loan payment is denied. At the hearing, the side-by-side comparison shows that the UST believed that the appropriate amount of deductions for the Debtors was $6,685.03. Giving the Debtors the additional deductions of $216 for the expenses associated with their new baby and $178 for the student loan payment raises the total deductions to $7,079.03. When compared to the Debtors’ actual monthly income of $6,951.61, the result is that the Debtors’ monthly disposable income is a negative $117.32. Because the Debtors have no current monthly disposable income to pay creditors, they have rebutted the presumption of abuse. The UST’s Motion to Dismiss will be denied. This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure. See written Order. ORDER For the reasons set forth in an Opinion entered this day, IT IS HEREBY ORDERED that the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b)(1) and (b)(2) be and is hereby denied. . The Debtors actually listed $37,405 of non-priority, unsecured debt on their Schedule F. However, they also listed a $10,680 student loan debt on Schedule E which should have been listed on Schedule F because student loans, even those owed to a governmental agency, are not entitled to priority. 11 U.S.C. § 507. Further, the Debtors scheduled $6,000 as the under-secured portion of the secured debts listed on Schedule D. Accordingly, Debtors’ total non-priority, unsecured debt is $54,085 and $13,521.25 would be required to pay a 25% dividend. . Some confusion may have been caused by the manner in which the Debtors' amended CMI using the alternate computation period was filed. Although it was filed at the same time as the Debtors' Response to the Motion to Dismiss, it was filed and docketed separately. Thus, rather than being clearly labeled as an exhibit in support of the Response, it appeared to be an amended CMI replacing the original CMI and substituting a computation period not allowed by statute. . The Debtors could also" }, { "docid": "688587", "title": "", "text": "that, because the student loan debt was non-dischargeable, forcing the debtor to use her limited funds to pay other unsecured debt instead of the student loan debt would simply result in the student loan debt increasing over time due to interest accumulation. The court also rejected the alternative of a Chapter 13 filing. The court found no reason to incur the administrative costs of a Chapter 13 where virtually no distribution would be made to other unsecured creditors. Id. at 759. This Court finds the reasoning of Tem-pleton, Daman, and Delbecq persuasive. Here, the Debtors have acknowledged the non-dischargeability of their student loan debt and they have no reasonable alternative other than to pay the debt. Chapter 13 is not a reasonable alternative. A Chapter 13 filing would result in only partial payment of the student loan during the term of the Chapter 13 case and, most likely, a substantial balance would still be due upon completion of the case. Student loan debt is non-dischargeable and, as such, must be paid. The existence of this debt is a distinct, particular, additional, and extra factor which this Court should consider in determining whether abuse exists here. This Court finds that the Debtors’ obligation to pay their student loan debt is a “special circumstance” and that the Debtors are entitled to an expense adjustment of $178 for their monthly student loan payment. D. Excess Travel Costs Mr. Martin works in Bloomington, Illinois, and Mrs. Martin’s full time job is in Lincoln, Illinois. Both places are approximately 25 miles from the Debtors’ home, resulting in round trip combined mileage of about 100 miles per day for the Debtors to get to work. Additional miles are driven each week for Mrs. Martin to get to her part time job and for household errands, doctor visits, and the like. Under § 707(b)(1)(A), debtors are allowed standard deduction amounts for vehicle operation. The Debtors have claimed the available deductions for two vehicles, resulting in a total deduction of $358. They assert, however, that their transportation expenses exceed the standard deductions by $232 per month and that" }, { "docid": "17544409", "title": "", "text": "and Senate bills initially provided that loans issued under the Direct Student Loan Program would not be dischargeable, the House Conference Report explained why this provision was deleted from the final bill: The conferees believe that current provisions of the Bankruptcy Code are sufficient to protect against unnecessary discharge of direct student loans in bankruptcy. Section 523(a)(8) of the Bankruptcy Code operates to prevent the discharge of federally guaranteed education loans except in cases ... where failure to allow the discharge would impose an undue hardship.... It is the intent of the conferees that loans made pursuant to the Federal Direct Student Loan Program would be subject to these same limitations on discharge. H.R. Conf. Rep. No. 103-213, at 448-49 (1993), reprinted in 1993 U.S.C.C.A.N. 1088, 1137-38. Thus, undue hardship under § 523(a)(8) continues to require separate analysis under which, in this circuit, the ICRP is “a factor” to consider in evaluating the totality of the debtor’s circumstances. In re Lee, 352 B.R. 91, 95 (8th Cir. BAP 2006). However, a student loan should not be discharged when the debtor has “the ability to earn sufficient income to make student loan payments under the various special opportunities made available through the Student Loan Program.” In re VerMaas, 302 B.R. 650, 660 (Bankr. D.Neb.2003). Under the ICRP, an eligible debtor’s annual loan payment is equal to twenty percent of the difference between his adjusted gross income and the poverty level for his family size, regardless of the amount of unpaid student loan debt. 34 C.F.R. § 685.209(a)(2)-(3). Repayments are made monthly. § 685.208(k). The Secretary recalculates the annual payment amount each year based on changes in the borrower’s adjusted gross income and the HHS Poverty Guidelines and may adjust the obligation based upon special circumstances such as a loss of employment. §§ 685.209(a)(5), (c)(3). If the borrower has not repaid the loan at the end of twenty five years, “the Secretary cancels the unpaid portion of the loan.” § 685.209(c)(4)(iv). The Secretary may require a borrower who has defaulted to repay the student loan pursuant to an ICRP, 20 U.S.C. §" } ]

[ { "docid": "22539391", "title": "", "text": "release him even if he hadn’t sought that relief, the suit is classified as an application for habeas corpus and the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so.” 997 F. 2d 355, 357 (1993). Heck filed a petition for certiorari, which we granted. 510 U. S. 1068 (1994). II This case lies at the intersection of the two most fertile sources of federal-court prisoner litigation — the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983, and the federal habeas corpus statute, 28 U. S. C. § 2254. Both of these provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation. In general, exhaustion of state remedies “is not a prerequisite to an action under § 1983,” Patsy v. Board of Regents of Fla., 457 U. S. 496, 501 (1982) (emphasis added), even an action by a state prisoner, id., at 509. The federal habeas corpus statute, by contrast, requires that state prisoners first seek redress in a state forum. See Rose v. Lundy, 455 U. S. 509 (1982). Preiser v. Rodriguez, 411 U. S. 475 (1973), considered the potential overlap between these two provisions, and held that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of §1983. Id., at 488-490. We emphasize that Preiser did not create an exception to the “no exhaustion” rule of §1983; it merely held that certain claims by state prisoners are not cognizable under that provision, and must be brought in habeas corpus proceedings, which do contain an exhaustion requirement. This case is clearly not covered by the holding of Preiser, for petitioner seeks not immediate or speedier release, but monetary damages, as to which he could not “have sought and obtained fully effective relief through federal habeas corpus proceedings.” Id., at 488. See" } ]

[ { "docid": "23290951", "title": "", "text": "that would have led to an earlier release. The third cause of action asserted that his due process rights were violated by his disciplinary proceeding and the ensuing loss of good-time credits and administrative segregation. The complaint sought injunctive relief and damages. The district court dismissed Nonnette’s first two causes of action for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). The court held that, because the claims challenged the validity of the decisions underlying Nonnette’s confinement, Non-nette was required to proceed first in ha-beas corpus, see Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and could not bring a § 1983 action for damages until he had succeeded in invalidating his confinement through ha-beas. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. The district court declined to dismiss Nonnette’s third claim, because Nonnette asserted that he had received a paper invalidating his disciplinary proceeding. Upon the State’s later motion for summary judgment, however, the evidence indicated that the disciplinary ruling remained in force, and the district court accordingly granted summary judgment on the third claim on the authority of Heck. Discussion Both parties concentrate their arguments on the summary judgment ruling, indicating that those arguments will also apply to the dismissals of the first two claims. We follow the same course in our analysis. We review de novo both grants of summary judgment and dismissals for failure to state a claim. Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc) (summary judgment); Berry v. Valence Technology, Inc., 175 F.3d 699, 706 (9th Cir.1999) (Rule 12(b)(6) dismissal). I It has been clear for over thirty years that a state prisoner seeking injunctive relief against the denial or revocation of good-time credits must proceed in habeas corpus, and not under § 1983. See Preiser, 411 U.S. at 489, 93 S.Ct. 1827. Nonnette also seeks damages, however, and that issue was addressed by the more recent decision of Heck v. Humphrey. There, the Court held that a state prisoner’s damages claims that necessarily implied the invalidity of his conviction or sentence could" }, { "docid": "20381186", "title": "", "text": "reduce the sentencing disparity for defendants convicted of crimes involving higher quantities of crack cocaine. Only if Davis succeeds on the merits will the sentencing reductions in Amendments 706 and 750 be made applicable to his offense, allowing him to seek a discretionary reduction of his sentence under 18 U.S.C. § 3582(c)(2). The question before us is whether he has selected the proper vehicles for his equal protection challenges. Neither the Declaratory Judgment Act nor Bivens has carried Davis far. Even before the Commission had answered Davis’s complaint, the district court dismissed his claims for lack of jurisdiction under Federal Rule of Civil Procedure 12(h)(3). Davis v. U.S. Sentencing Comm’n, 812 F.Supp.2d 1, 1 (D.D.C.2011). Declaratory relief was unavailable, the court held, because “an adequate remedy is available by petitioning the sentencing court for a writ of habeas corpus.” Id. at 2 (citations omitted). And Davis’s Bivens action was “patently insubstantial” because he neither sued an individual nor requested damages. Id. (internal quotation marks omitted). Davis appealed, and we appointed an amicus to brief and argue the case on his behalf. We have jurisdiction under 28 U.S.C. § 1291, and review the district court’s dismissal de novo. Doe v. Metro. Police Dep’t, 445 F.3d 460, 465 (D.C.Cir.2006). II We first consider whether Davis must bring his equal protection challenge by means of a habeas petition. The answer turns on whether his claim for relief is at the “core of habeas.” The Supreme Court has held that Congress has channeled state prisoners’ claims for relief — however styled — into habeas alone if the prisoners seek a remedy that is at the “core of habeas.” See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). In order to determine whether Davis, a federal prisoner, must bring his equal protection challenge by means of a habeas petition, this court must resolve two interrelated questions: Does the scope of the habeas-chan-neling rule differ for federal and state prisoners? And is the rule" }, { "docid": "16426741", "title": "", "text": "initiate a criminal prosecution and, therefore, these claims must be dismissed. When a plaintiff lacks standing to assert a claim, frivolousness is an alternative jurisdictional ground for dismissal to lack of standing. See Beauchamp v. Sullivan, 21 F.3d 789, 790-91 (7th Cir.1994). Finally, I will address that portion of the complaint that I will treat as an application for a writ of habeas corpus. Courts are to construe actions according to the nature of the relief sought, not according to how they are styled by their drafters. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841-42, 36 L.Ed.2d 439 (1973); Parkhurst v. Wyoming, 641 F.2d 775, 776 (10th Cir.1981). Mr. Martinez seeks immediate release from custody and vindication of the criminal charges against him. His sole federal remedy for this claim is an application for a writ of habeas corpus. See Preiser, 411 U.S. at 500, 93 S.Ct., at 1841-42. Thus, I must construe that portion of the pleading as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See id. at 500, 93 S.Ct., at 1841-42. Under 28 U.S.C. § 2254(b), a habeas corpus petitioner must exhaust state remedies prior to filing such an application with the federal court. Furthermore, a state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted all available state remedies. Miranda v. Cooper, 967 F.2d 392 (10th Cir.), cert. denied, 506 U.S. 924, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). The complaint form completed by Mr. Martinez in this action specifically asks if the plaintiff has “begun any other lawsuits in state or federal court dealing with the same facts involved in this action.” Complaint at 4. Mr. Martinez responded that he has not filed any such actions. Therefore, he has not exhausted his state remedies, and the application for a writ of habeas corpus will be dismissed for that reason. Accordingly it is ORDERED that the claims asserted pursuant to 42 U.S.C. §§ 1981, 1983 and 1985 are dismissed without prejudice as barred by the holding, rationale and logic" }, { "docid": "19773238", "title": "", "text": "County Court’s dismissal, for failure to pay the filing fee, of Thomas’s action seeking review of his misconduct conviction. The state court never had occasion to determine any issues relevant to this case, as it never reached the merits. Moreover, Thomas can win his retaliation claim without invalidating any aspect of the state court’s judgment. See DLX, Inc. v. Kentucky, 381 F.3d 511, 517 (6th Cir.2004) (rejecting Rooker-Feldman bar when the federal court could find for plaintiff without concluding that the state court decided any issue wrongly), cert. denied, 544 U.S. 961, 125 S.Ct. 1733, 161 L.Ed.2d 603 (2005). For all these reasons, the Rooker-Feldman doctrine does not bar Thomas’s claim. B. Applicability of the Habeas Exception to § 1983 Thomas’s § 1983 claim alleges that Eby issued the misconduct ticket in retaliation for a previously filed grievance, and asks that the finding of misconduct be set aside (in addition to including a request for damages). The district court concluded, and MDOC now argues, that such a claim is not cognizable under § 1983 and must instead be brought through a petition for a writ of habeas corpus. Federal courts have long recognized the potential for prisoners to evade the habeas exhaustion requirements by challenging the duration of their confinement under 42 U.S.C. § 1983, rather than by filing habeas petitions. Consequently, the Supreme Court recognized a “habeas exception” to § 1983 in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), when it held that suits challenging the fact or duration of confinement fall within the traditional scope of habeas corpus and accordingly are not cognizable under § 1983. The Court expanded the habeas exception to § 1983 in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Heck, the Court determined that, unless a prisoner’s conviction or sentence were previously set aside by a separate legal or administrative action, § 1983 would not countenance claims for damages if a finding for the plaintiff would necessarily" }, { "docid": "4766909", "title": "", "text": "Skinner’s lawsuit was filed after that date, but his complaint is premised on a BOP disciplinary determination that took place seven months earlier. As a consequence, Skinner contends that it would be impermissi-bly retroactive to apply the § 552a(e)(5) exemption to his lawsuit. We need not resolve this issue, however, because there is another ground for dismissal that is clearly established by a series of decisions of both the Supreme Court and this circuit. Under those precedents, Skinner’s civil damages claim is barred unless and until he successfully challenges the disciplinary hearing on which it is based through an action in habeas corpus. The series of cases begins with Preiser v. Rodriguez, in which the Supreme Court held that a state prisoner cannot sue prison authorities under 42 U.S.C. § 1983 for injunctive relief to compel restoration of good-time credits because victory in such a suit would shorten the prisoner’s sentence. 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). As the Court explained, when a “state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus” even if his claim comes within the literal terms of § 1983. Id. at 500, 93 S.Ct. 1827; see id. at 489-90, 93 S.Ct. 1827. In Heck v. Humphrey, the Court extended this rule to a § 1983 suit seeking money damages — but neither an injunction nor release — for an unconstitutional conviction. 512 U.S. 477, 479, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck instructed courts to dismiss such a damages action if success would “necessarily imply the invalidity of [the] conviction or sentence!,] ... unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated” — for example, by reversal on direct appeal or issuance of a writ of habeas corpus. Id. at 487, 114 S.Ct. 2364. In Edwards v. Balisok, the Court applied Preiser and Heck to a case analogous" }, { "docid": "23453426", "title": "", "text": "500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Heck, the Supreme Court held that where success in a § 1983 action would implicitly call into question the validity of conviction or duration of sentence, the plaintiff must first achieve favorable termination of his available state or federal habeas remedies to challenge the underlying conviction or sentence. Considering Heck and summarizing the interplay between habeas and § 1983 claims, the Supreme Court recently explained that, “a state prisoner’s § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of the confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (emphasis in original). Thus, the threshold question becomes whether Williams’s success on his § 1983 action would “necessarily demonstrate” the invalidity of the Parole Board’s decision to revoke his parole, which would in turn render his § 1983 action uncognizable under Heck. We answer this question in the affirmative because success on the § 1983 claim would necessarily demonstrate the invalidity of the Parole Board’s decision. See White v. Gittens, 121 F.3d 803, 807 (1st Cir.1997) (concluding that § 1983 claim based on revocation of parole was barred by Heck; “[a] favorable decision in the § 1983 proceeding would necessarily call into question the validity of the state’s decree revoking [plaintiffs] parole and ordering him back to prison. Heck therefore applies, and the § 1983 action is not cognizable in a federal court”); Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997) (“[f]ew things implicate the validity of continued confinement more directly than the allegedly improper denial of parole”). Accordingly, because the Parole Board’s decision has not been rendered invalid, Williams may not attack it via a § 1983 action, and the District Court’s dismissal of Williams’s claims against Mahoney and Gomez-Rivera was proper. Williams cites Huang v. Johnson, 251 F.3d 65 (2d Cir.2001), as support" }, { "docid": "22808117", "title": "", "text": "for purposes of this appeal. II. We review the district court’s grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We must determine, viewing the evidence in the light most favorable to Neal and Martinez, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. Constitutional issues are reviewed de novo. United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir.1996). We also review de novo a district court’s conclusions on questions of law and on mixed questions of law and fact that implicate constitutional rights. American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir.1995). III. A. Section 1983 versus Section 225k Before reaching the merits of the inmates’ claims, we must first determine whether § 1983 is the appropriate avenue for relief. The State argues that the inmates’ challenge to the SOTP, if successful, would undermine the validity or duration of their confinement and, therefore, must be brought pursuant to 28 U.S.C. § 2254 in a habeas corpus action. We disagree. The State is correct that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2864, 2369, 129 L.Ed.2d 383 (1994) (discussing Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). It is also correct that: [W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487, 114 S.Ct. at 2372. If the claim alleges a violation of procedural due process rights, the determination of whether the challenge is properly brought under § 1983 must be based" }, { "docid": "18223458", "title": "", "text": "rules applied retroactively, and the Parole Board announced that Dotson would not be eligible for parole until 2007. They nevertheless kept the 2005 date scheduled for Dotson’s next hearing. The Parole Board made a determination about Dotson’s parole eligibility, not about his parole suitability, as was required by the old regulations. Dotson filed suit under section 1988, alleging violations within the parole hearing procedures. The district court dismissed Dotson’s claim, stating it was not cognizable under section 1983. When a district court dismisses a case or claim pursuant to 28 U.S.C. § 1915(e), this court reviews such dismissal de novo. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). The grant of a motion for summary judgment is also reviewed de novo, and this court applies the same standard the district court applied. See Perry v. McGinnis, 209 F.3d 597, 600 (6th Cir.2000). Federal habeas corpus pursuant to 28 U.S.C. § 2254 is the exclusive avenue for challenging the fact or duration of a prisoner’s confinement, but civil rights actions pursuant to 42 U.S.C. § 1983 are available to challenge the conditions of that confinement, according to the Supreme Court. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The cases before this en banc court today involve the intersection of these two provisions. It is our task to determine under what circumstances a prisoner may use a section 1983 action, rather than a habeas corpus petition, to challenge the procedures used in his parole hearing. Five somewhat confusing Supreme Court cases govern the issue here, and our sister circuits have struggled with application of their holdings. We have struggled as well, as evidenced by the conflicting opinions, mostly unpublished, of this court thus far. We now seek to clarify the conflict. The oldest of the relevant Supreme Court cases is Preiser. 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In this case, prisoners challenged a policy of deprivation of good-time credits after disciplinary hearings. Id. at 476-82, 93 S.Ct. 1827. The prisoners sought injunctive relief in the form of immediate restoration of" }, { "docid": "16405894", "title": "", "text": "fact is that no amendment Glaus could make to this petition can save it. We therefore have jurisdiction under 28 U.S.C. § 1291. Turning to the substance of Glaus’s appeal, we review de novo the district court’s decision to dismiss Glaus’s petition. See Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir.2003). Glaus makes two arguments for why filing under § 2241 was proper. First, Glaus argues that because release from custody is only available under habe-as corpus and he sought release as a remedy for his Eighth Amendment claim, he had to use § 2241 (implying that this claim does not implicate either his conviction or his sentence, and thus that he does not need to use 28 U.S.C. § 2255). Second, relying principally on several older district court decisions, Glaus argues that civil rights actions are not the exclusive remedy for denials of medical treatment. He urges, in other words, that there is space within the bounds of habeas corpus for challenging unconstitutional prison conditions. In Preiser v. Rodriguez, the Supreme Court held that the writ of habeas corpus was the exclusive civil remedy for prisoners seeking release from custody. 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). As the Court noted, “[i]t would wholly frustrate explicit congressional intent to hold that the respondents ... could evade [the writ’s exhaustion] requirement by the simple expedient of putting a different label on their pleadings.” Id. at 489-90, 93 S.Ct. 1827; see also Wilkinson v. Dotson, — U.S. - — , -, 125 S.Ct. 1242, 1248, 161 L.Ed.2d 253 (2005) (noting that “a state prisoner’s § 1983 action is barred ... if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”) (emphasis in original). Although the Court was comparing habeas corpus to the requirements facing state prisoners filing under 42 U.S.C. § 1983, its rationale applies just as soundly to federal prisoners filing a claim based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the federal equivalent of" }, { "docid": "21988943", "title": "", "text": "an action in habeas corpus. This is evident, he asserts, because “[s]hould [Plaintiff] receive the relief he is requesting, he will not be released immediately, nor will his conviction be overturned, nor his sentence reduced.” Memorandum Of Law In Support Of Plaintiffs Complaint And Response To Intervenor’s Motion To Dismiss (“Plaintiffs Memorandum”), doc. no. 13 at 5. Accordingly, Plaintiff argues, success on the instant motion “will not necessarily imply the invalidity of [Plaintiffs] convictions or sentences.” Id. at 6 (quoting Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 1248, 161 L.Ed.2d 253 (2005)). See also Osborne v. District Attorney’s Office, 423 F.3d 1050 (9th Cir.2005); Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002). The issue appears to be one of first impression in this Circuit. There can be no doubt but that, with the instant action, Plaintiff hopes to set in motion legally significant events that will provide some relief from his present conviction and sentence. However, the standards governing this Court’s determination about whether a § 1983 action is more properly construed as an action in habeas corpus are objective standards concerned with the nature of the immediate relief requested, not subjective inquiries into the Plaintiffs motive for seeking redress for alleged constitutional violations. Harvey, 278 F.3d at 383 (King, J., concurring). Where a judgment in favor of Plaintiff will not “necessarily imply the invalidity of his conviction or sentence,” Plaintiffs cause of action is not one for habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 1247-48, 161 L.Ed.2d 253; Heck, 512 U.S. at 487, 114 S.Ct. 2364. Were the Court to grant Plaintiff the relief requested, his underlying conviction and sentence would remain intact. Thus, success in this suit cannot call into question the validity of Plaintiffs conviction and sentence. If Plaintiff wishes to challenge his sentence and conviction on the basis of any subsequent D.N.A. testing of the specified pieces of evidence, he will, at least as far as the federal courts are concerned, be required to seek habeas corpus relief in an action wholly separate from the instant matter. Therefore, Plaintiffs" }, { "docid": "19931086", "title": "", "text": "the challenge ultimately attacks the “core of habeas ” — the validity of the continued conviction or the fact or length of the sentence — a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiffs favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate. Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.2002). Therefore, a prisoner is entitled to a writ of habeas corpus only if he “seek[s] to invalidate the duration of [his] confinement — either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the [government’s] custody.” See Wilkinson v. Dotson, 544 U.S. 74, 81, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). In contrast, if a judgment in the prisoner’s favor would not affect the fact or duration of the prisoner’s incarceration, habeas relief is unavailable and a civil complaint is the appropriate form of remedy. See, e.g., Ganim v. Federal Bureau of Prisons, 235 FecLAppx. 882 (3d Cir.2007) (holding that district court lacks jurisdiction under § 2241 to entertain prisoner’s challenge to his transfer between federal prisons); Bronson v. Demming, 56 Fed.Appx. 551, 553-54 (3d Cir.2002) (habeas relief was unavailable to inmate seeking release from disciplinary segregation to general population, and district court properly dismissed habeas petition without prejudice to any right to assert claims in properly filed civil rights complaint). Recently, the Court of Appeals emphasized that, where an inmate files an application alleging that [the Parole Board officials] violated his due process rights ... at his parole eligibility hearings by relying on the fabricated evidence in denying his parole, [the application does not present a “core” habeas challenge because] the Parole Review Board still could have denied him parole at his review hearing [relying on non-falsified evidence, since] the Parole Review Board bases its decision to grant or deny parole on numerous factors.... Fain v. Morgan, 255 Fed.Appx. 644, 644-45 (3d" }, { "docid": "23044821", "title": "", "text": "to have been “simply ratified, acquiesced in, or left unpunished by [the state court].” Hoblock, 422 F.3d at 88. We therefore hold that, under current Supreme Court and circuit law, the district court erred when it followed the then Moccio case and applied the doctrine to bar McKithen’s suit. II McKithen brings his suit under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, which gives a cause of action for anyone subjected “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a person acting under color of state law. While his claim undoubtedly comes “within the literal terms of § 1983,” Heck, 512 U.S. at 481, 114 S.Ct. 2364, the Supreme Court has recognized “an implicit exception from § 1983’s otherwise broad scope for actions that lie ‘within the core of habeas corpus,’ ” Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Accordingly, we must now determine whether a claim a post-conviction federal right of access to, and DNA testing of, evidence is cognizable under § 1983, or whether, instead, it lies so well “within the core of habeas corpus” that it may only be The question has been an open one in this circuit. We today join the Seventh, Ninth, and Eleventh Circuits, and district courts in the First and Third Circuits, agreeing with them that a claim seeking post-conviction access to evidence for DNA testing may properly be brought as a § 1983 suit. See Savory v. Lyons, 469 F.3d 667, 669 (7th Cir.2006); Osborne v. Dist. Attorney’s Office for the Third Judicial Dist., 423 F.3d 1050, 1054 (9th Cir.2005); Bradley v. Pryor, 305 F.3d 1287, 1290-91 (11th Cir.2002); see also Wade v. Brady, 460 F.Supp.2d 226, 237 (D.Mass. 2006) (“[Section] 1983 is an entirely appropriate medium for plaintiff to raise his claim for access to DNA testing.”); Derrickson v. Del. County Dist. Attorney’s Office, No. 04-1569, 2006 WL 2135854, at *8" }, { "docid": "19773239", "title": "", "text": "must instead be brought through a petition for a writ of habeas corpus. Federal courts have long recognized the potential for prisoners to evade the habeas exhaustion requirements by challenging the duration of their confinement under 42 U.S.C. § 1983, rather than by filing habeas petitions. Consequently, the Supreme Court recognized a “habeas exception” to § 1983 in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), when it held that suits challenging the fact or duration of confinement fall within the traditional scope of habeas corpus and accordingly are not cognizable under § 1983. The Court expanded the habeas exception to § 1983 in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Heck, the Court determined that, unless a prisoner’s conviction or sentence were previously set aside by a separate legal or administrative action, § 1983 would not countenance claims for damages if a finding for the plaintiff would necessarily invalidate a conviction or sentence. And in Balisok, the Court concluded that a prisoner cannot use § 1983 to challenge prison procedures employed to deprive him of good-time credits when the alleged procedural defect alleged would, if established, “necessarily imply the invalidity of the punishment imposed.” 520 U.S. at 648, 117 S.Ct. 1584. After the district court issued its opinion, the Supreme Court decided Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). There, the Court reviewed the habeas-exception cases and stated: These cases, taken together, indicate that a state prisoner’s § 1983 action is barred ... — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Id. at 81-82, 125 S.Ct. 1242. Applying this rule, the Court concluded that the plaintiffs’ challenges to parole procedures could proceed under § 1983 because they did not automatically imply shorter" }, { "docid": "10629872", "title": "", "text": "specific determination must override the general terms of § 1983.” Id.; see also Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th Cir.2001). Of importance to the Preiser decision were notions of federal-state comity, in that habeas corpus requires exhaustion of state remedies, while § 1983 does not. Preiser, 411 U.S. at 491, 93 S.Ct. 1827. The Court elaborated upon Preiser in Heck v. Humphrey, where Heck sought money damages for an allegedly unconstitutionally secured conviction. The Court noted that a claim that “would necessarily imply the invalidity of [the plaintiffs] con viction or sentence” is not cognizable under § 1983, even if the remedy sought is not a release from confinement. 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The sole avenue open to a prisoner challenging the fact or duration of his confinement, directly or indirectly, is habe-as corpus. Heck, 512 U.S. at 481, 114 S.Ct. 2364; Preiser, 411 U.S. at 490, 93 S.Ct. 1827. Preiser and its progeny have clearly and consistently emphasized that only those claims that, if successful, would “necessarily” invalidate the fact or duration of the prisoner’s confinement are restricted to habeas. Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); Edwards v. Balisok, 520 U.S. 641, 645, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck, 512 U.S. at 486-87, 114 S.Ct. 2364; Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Preiser, 411 U.S. at 500, 93 S.Ct. 1827. Wilkinson v. Dotson is demonstrative. In Dotson, two state prisoners challenged the constitutionality of Ohio’s state parole procedures under § 1983. 544 U.S. at 76-77, 125 S.Ct. 1242. The fact that the inmates’ challenges to the parole procedures were made in the hopes of securing a speedier release from prison was not enough to preclude remedy under § 1983. The Court noted: “Success for [Plaintiff] means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term.” Id. at 82, 125 S.Ct. 1242. The focus remained on whether the § 1983 claim" }, { "docid": "20381187", "title": "", "text": "argue the case on his behalf. We have jurisdiction under 28 U.S.C. § 1291, and review the district court’s dismissal de novo. Doe v. Metro. Police Dep’t, 445 F.3d 460, 465 (D.C.Cir.2006). II We first consider whether Davis must bring his equal protection challenge by means of a habeas petition. The answer turns on whether his claim for relief is at the “core of habeas.” The Supreme Court has held that Congress has channeled state prisoners’ claims for relief — however styled — into habeas alone if the prisoners seek a remedy that is at the “core of habeas.” See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). In order to determine whether Davis, a federal prisoner, must bring his equal protection challenge by means of a habeas petition, this court must resolve two interrelated questions: Does the scope of the habeas-chan-neling rule differ for federal and state prisoners? And is the rule for federal prisoners so broad that it includes equal protection challenges to Guidelines amendments? The modern habeas-channeling rule emerged in Preiser v. Rodriguez, when the Supreme Court held that a prisoner may not challenge “the fact or duration of his confinement” by means of an action brought under 42 U.S.C. § 1983. 411 U.S. at 489, 93 S.Ct. 1827. The state prisoners in Preiser alleged that their period of incarceration had been unlawfully extended when the New York State Department of Correctional Services revoked their good-conduct credits towards early release. Id. at 476-77, 93 S.Ct. 1827. The Court held that Congress set out the procedures prisoners must follow to attack their confinement in the habeas statute. To allow them to pursue release by other means would frustrate the intent of Congress. Id. at 489-90, 93 S.Ct. 1827. We applied Preiser’s habeas-channeling rule fifteen years later in Chatman-Bey v. Thornburgh, 864 F.2d 804, 808-10 (D.C.Cir.1988) (en banc). That case was distinguishable from Preiser in two ways. First, it.involved a federal, not state, prisoner. Id. at 808-09." }, { "docid": "1548213", "title": "", "text": "weapon, larceny, and breaking and entering in North Carolina, and, on February 4, 1997, he was sentenced to 40 years for the robbery and 10 years for breaking and entering and larceny. See Wright-Bey v. N. Carolina, 2:07-cv-14 (W.D.N.C. July 2, 2007), ECF No. 1-3, at *17-24. . Citations to the ''J.A.” refer to the Joint Appendix filed by the parties in this matter. . It does not appear that Wright appealed this decision. But he filed a separate complaint in the United States District Court for the District of Columbia, alleging constitutional violations on the part of North and South Carolina officials. The district court construed the complaint as a habeas petition and 42 U.S.C. § 1983 action and dismissed it on May 28, 2014. See El v. North Carolina, No. 1:14-cv-908 (D.D.C. May 28, 2014), ECF Nos. 3, 4. . Wright also claims that the parole board does not \"write ... to tell [him] why they denied [him] parole,” J.A. 17, and he requests that his name be changed in the official prison records to correspond with his Moorish-American identity. We decline to address these claims because they are not properly raised in a habeas petition. See Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (\"Because [petitioners'] claim[s] would [not] necessarily spell speedier release, neither lies at ‘the core of habeas corpus’ ” (quoting Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973))); see also Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976) (explaining a \"suit seeking habeas corpus relief” \"cannot be utilized as a base for the review of a refusal to grant collateral administrative relief or as a springboard to adjudicate matters foreign to the question of the legality of custody”). . Heretofore, we have sent mixed messages on this issue without squarely addressing it. In two published decisions, we entertained petitions from convicted state prisoners challenging the execution of their sentences under § 2254, but we did not explain whether doing so was appropriate. See Waddell v. Dep't of Corr., 680" }, { "docid": "14025655", "title": "", "text": "question to be considered by the district court if properly raised by any party on remand. For one thing, whether Heck applies to Abu-said’s case at all raises a serious and substantial question that we offer the district court— upon appropriate motion and full briefing by any of the parties—the first opportunity to resolve. A brief review of the pertinent case law may be helpful. The Heck principle has its origins in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), which held that the sole remedy in federal court for a prisoner seeking restoration of good-time credits is a writ of habeas corpus. See id. at 500, 93 S.Ct. 1827. The Court reasoned that such an action constitutes an attack on \"the very duration of ... physical confinement,” and thus it lies at \"the core of habeas corpus.” Id. at 487-88, 93 S.Ct. 1827. Subsequently, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court reiterated that state prisoners must use habeas in seeking restoration of good-time credits, but held that an action challenging the validity of the procedures for revoking good-time credits, seeking damages and prospective relief, was properly brought under § 1983. See id. at 554-55, 94 S.Ct. 2963. The Supreme Court’s post-Heck decision in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), limited the Wolff holding. In Balisok, the Court held that a state prisoner’s challenge only to the procedures by which his good-time credits were revoked — not to the revocation itself — nevertheless necessarily implied the invalidity of the punishment imposed. Accordingly, the prisoner's claims for damages and declaratory relief had to be brought by way of habeas petition. However, his request for injunctive relief altering the challenged procedures prospectively, the Court held, was cognizable under § 1983, since generally “such prospective relief will not 'necessarily imply’ the invalidity of a previous loss of good-time credits.” Id. at 648, 117 S.Ct. 1584. Most recently, in Wilkinson v. Dotson, - U.S. -, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)," }, { "docid": "22808118", "title": "", "text": "a habeas corpus action. We disagree. The State is correct that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2864, 2369, 129 L.Ed.2d 383 (1994) (discussing Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). It is also correct that: [W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487, 114 S.Ct. at 2372. If the claim alleges a violation of procedural due process rights, the determination of whether the challenge is properly brought under § 1983 must be based on whether “the nature of the challenge to the procedures [is] such as necessarily to imply the invalidity of the judgment.” Edwards v. Balisok, — U.S. -, -, 117 S.Ct. 1584, 1587, 137 L.Ed.2d 906 (1997). “If the court concludes that the challenge would necessarily imply the invalidity of the judgment or continuing confinement, then the challenge must be brought as a petition for a writ of habeas corpus, not under § 1983.” Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997). We have little difficulty distinguishing this case from our recent decision in Butterfield. In Butterfield, we affirmed the district court’s'dismissal of a prisoner’s § 1983 action challenging the parole board’s consideration of allegedly false information in Butterfield’s prison file in denying him parole. We held that “a challenge to the procedures used in the denial of parole necessarily implicates the validity of the denial of parole and, therefore, the prisoner’s continuing confinement.” Id. This challenge amounted to a collateral attack on Butterfield’s denial of parole and subsequent incarceration, an attack clearly prohibited under" }, { "docid": "16101381", "title": "", "text": "PER CURIAM: Death row inmate, Manuel Valle, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He complains that he was denied clemency proceedings or alternatively was denied clemency itself without the benefit of a clemency investigation and clemency counsel. Petitions under § 2254 cannot be brought to challenge the process by which clemency decisions are made when issuance of a writ would not actually or impliedly invalidate a sentence. See Wilkinson v. Dotson, 544 U.S. 74, 81, 125 S.Ct. 1242, 1247-48, 161 L.Ed.2d 253 (2005) (“§ 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner”); Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.2006) (recognizing that § 1983 and § 2254 proceedings are “mutually exclusive” so that if a claim can be properly raised in one of those proceedings it cannot be raised in the other type of proceeding). Federal habeas corpus law exists to provide a prisoner an avenue to attack the fact or duration of physical imprisonment and to obtain immediate or speedier release. See 28 U.S.C. § 2254; Preiser v. Rodriguez, 411 U.S. 475, 485-86, 93 S.Ct. 1827, 1834, 36 L.Ed.2d 439 (1973) (discussing the tradi tional scope of habeas corpus relief). Even if successful, Valle’s claim would not necessarily lead to his speedier release, a commutation of his sentence, or even the implication that his sentence is invalid. The most Valle can hope for is an opportunity to plead for mercy. Valle’s constitutional claims about clemency procedures are collateral to his conviction and sentence, and are not cognizable in this § 2254 proceeding. His complaint about Florida’s clemency procedures may only be brought under 42 U.S.C. § 1983. Valle also argues that if Florida clemency procedures were improperly applied in his case the entire Florida capital sentencing scheme is unconstitutional and, as a result, his death sentence (along with those of everyone else on Florida’s death row) is unconstitutional and must be set aside. The argument is without merit. It is undisputed that Florida law provides clemency" }, { "docid": "23453425", "title": "", "text": "granted Gibbons’s motion. Williams v. Consovoy, et al., 333 F.Supp.2d 297 (D.N.J.2004). In that decision, the District Court concluded that because the Parole Board had ordered Gibbons to perform an evaluation to assist the Parole Board in making its parole determination, Gibbons had engaged in “adjudicative conduct” and was therefore entitled to absolute immunity. Id. at 301-02. By the parties’ agreement, the District Court dismissed Williams’s remaining claims on August 25, 2004. This timely appeal followed. II. A. Williams first claims that the District Court was mistaken in dismissing his claims against Mahoney and Gomez-Rivera on the ground that those claims were barred by Heck v. Humphrey. We exercise plenary review over the District Court’s grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 163 (3d Cir.2006). It is well-settled that when a state prisoner is challenging the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus, not a § 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Heck, the Supreme Court held that where success in a § 1983 action would implicitly call into question the validity of conviction or duration of sentence, the plaintiff must first achieve favorable termination of his available state or federal habeas remedies to challenge the underlying conviction or sentence. Considering Heck and summarizing the interplay between habeas and § 1983 claims, the Supreme Court recently explained that, “a state prisoner’s § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of the confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (emphasis in original). Thus, the threshold question becomes whether Williams’s success on his § 1983 action would “necessarily demonstrate” the invalidity of the Parole Board’s decision to revoke his parole, which" } ]

[ { "docid": "22661869", "title": "", "text": "a municipality is liable in damages for injuries that are the direct result of its official policies. “The theory of the complaint [in Monroe was] that under the circumstances [t]here alleged the City [was] liable for the acts of its police officers, by virtue of respondeat superior.” Brief for Petition ers, O. T. 1960, No. 39, p. 21. Respondents answered that adoption of petitioners’ position would expose “Chicago and every other municipality in the United States ... to Civil Rights Act liability through no action of its own and based on action contrary to its own ordinances and the laws of the state it is a part of.” Brief for Respondents, O. T. 1960, No. 39, p. 26. Thus the ground of decision in Monroe was not advanced by either party and was broader than necessary to resolve the contentions made in that case. Similarly, in Moor v. County of Alameda, 411 U. S. 693 (1973), petitioners asserted that “the County was vicariously liable for the acts of its deputies and sheriff,” id., at 696, under 42 U. S. C. § 1988. In rejecting this vicarious-liability claim, 411 U. S., at 710, and n. 27, we reaffirmed Monroe’s reading of the statute, but there was no challenge in that case to “the holding in Monroe concerning the status under § 1983 of public entities such as the County,” 411 U. S., at 700; Brief for Petitioners, O. T. 1972, No. 72-10, p. 9. Only in City of Kenosha v. Bruno, 412 U. S. 607 (1973), did the Court confront a § 1983 claim based on conduct that was both authorized under state law and the direct cause of the claimed constitutional injury. In Kenosha, however, we raised the issue of the city’s amenability to suit under § 1983 on our own initiative. This line of cases — from Monroe to Kenosha — is difficult to reconcile on a principled basis with a parallel series of cases in which the Court has assumed sub silentio that some local government entities could be sued under § 1983. If now, after full consideration" } ]

[ { "docid": "23000808", "title": "", "text": "defendants, Prasse, Russell, the Bureau of Corrections, and the Commonwealth of Pennsylvania. All these appellees clearly had a common law and statutory duty to keep Warren Curtis in ‘safe custody’. 61 Purdon’s Statutes § 74.” [page 12] Assuming that there is a duty under Pennsylvania law to make reasonable efforts to keep plaintiff in “safe custody,” there is no allegation of facts indicating intentional action by these defendants “under color of” state law subjecting plaintiff or causing plaintiff to be subjected to deprivation of his civil rights. See Howell v. Cataldi, supra; Williams v. Field, 416 F.2d 483 (9th Cir. 1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431 (1969); cf. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Kish v. County of Milwaukee, supra, 441 F.2d at 904. The Kish case states that a clear abuse of discretion in operating a jail is necessary to make the superintendent (Russell) liable for an assault such as this. This court has repeatedly held that conclusory allegations, such as “intentionally, wilfully and recklessly,” without supporting facts are not sufficient to make out a complaint under 42 U.S.C. § 1983. See Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967); Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir. 1970); Esser v. Weller, 467 F.2d 949, 950 (3d Cir. 1972). There are no allegations that Prasse or Russell had reason to know Everette would commit such an assault or that similar assaults had taken place. For these reasons, we will affirm the district court order dismissing the complaint as to defendants Prasse and Russell. III. The district court order must also be affirmed insofar as it dismissed the complaint against the Commonwealth of Pennsylvania and the Bureau of Corrections of that Commonwealth, who are not “person[s] ” within the use of that term in 42 U.S.C. § 1983 and hence not subject to suit under that section of the Civil Rights Act. See Moor v. County of Alameda, supra, 411 U.S. at 699-700 and 706-710, 93 S.Ct. 1785, 36 L.Ed.2d 596; Monroe" }, { "docid": "23386499", "title": "", "text": "and of greater significance, however, is that here there has been something akin to an explicit Congressional determination that political subdivisions are not to be held liable in damages for violations of constitutional rights. Although no act of Congress expressly so states, the Court has in a series of decisions beginning in 1961 interpreted § 1983, which was originally enacted in the Civil Rights Act of 1871, as embodying an affirmative policy that federal courts should not hold municipalities liable in damages when municipal employees violate individuals’ constitutional rights. - - The leading case, of course, is Monroe v. Pape, supra, where the Court, based on its interpretation of the legislative history of the 1871 Civil Rights Act, held that municipalities were not “persons” within the meaning of that statute. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) extended Monroe by holding that § 1983 would not permit suits for injunctive relief against municipalities and that § 1983’s jurisdictional counterpart, 28 U.S.C. § 1343, would not support jurisdiction of such claims. Although neither Monroe nor Kenosha interpreted § 1983 as evidencing a definite policy against federal court imposition of liability on municipalities for constitutional violations, two other decisions gave it precisely this effect. The more significant of these was Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Moor was a case in which a political subdivision and a number of its employees had been sued both under 42 U.S.C. §§ 1983, 1988, and under state law for allegedly violating the plaintiffs’ constitutional rights. The Moor plaintiffs conceded that § 1983, standing alone, did not authorize the suit against the county, but they relied upon § 1988 for the proposition that they had a federal civil rights claim against the county as well. Section 1988 provides that, where federal law does not provide suitable remedies, state law shall govern in federal civil rights actions insofar as the state provisions are not inconsistent with federal law. The Moor plaintiffs noted that the county was vicariously liable under state" }, { "docid": "22586917", "title": "", "text": "(1974); and school administrators, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). . We also perceive no abuse of discretion in the lower court’s refusal to exercise pendent jurisdiction over the numerous claims against these appellees founded upon alleged violations of state law. . In view of this conclusion, of course, we need not reach the question whether the complaint against Klein would, in any event, sufficiently spell out a claim of deprivation of a federal constitutional right. . While the Price Court was discussing 18 U.S.C. § 242, it specifically noted that “under color” of law “means the same thing in § 242 that it does in the civil counterpart of § 242, 42 U.S.C. § 1983.” Id. at 794 n. 7, 86 S.Ct. at 1157. See also Adickes v. Kress & Co., supra, 398 U.S. at 152 n. 7, 90 S.Ct. 1598, Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473 (1961). . By this disposition we do not, of course, express any view as to the ultimate resolution on the merits of appellant’s claims against Kornberg. . See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), where the Court rejected the suggestion that state law imposing vicarious liability upon municipalities be adopted into federal law, thus independently creating the basis for a federal claim pursuant to 42 U.S.C. § 1988. The Court concluded that Congress did not intend, as a matter of federal law, to impose vicarious liability on municipalities for violations of federal civil rights by their employees. Id. at 710 n. 27, 93 S.Ct. at 1796 (emphasis in original). . The Braults had sought damages for deprivation of property rights without due process occasioned by the Town’s enforcement of a zoning ordinance. . At the same time, of course, we need not, determine whether the considerations prompting the Supreme Court to reject derivative liability in § 1983 actions would be equally persuasive in such a constitutionally-based action. See Moor v. Alameda County, 411 U.S. 693, 698-710, 93 S.Ct. 1785, 36 L.Ed.2d" }, { "docid": "9409961", "title": "", "text": "HAMLIN, Circuit Judge: These are appeals from an order of the United States District Court for the Northern District of California dismissing appellants’ claims against the County of Alameda (hereinafter County). The claims arose out of the May, 1969, “People’s Park” disturbance or riot, in which appellants were allegedly injured by an Alameda County deputy sheriff who was performing duties at that time and place on behalf of the County. On February 12, 1970, appellants brought actions against several deputies, the sheriff, and the County. The complaints against the County alleged federal causes of action under the Civil Rights Act, 42 U.S.C. sections 1981-1988, and pendent state claims under sections 810 et seq. of the California Government Code (hereinafter Tort Claims Act). Both federal and state causes of action were premised on the theory that the county could be held vicariously liable for the acts of the deputies. Both appellants alleged\" jurisdiction in the district court pursuant to 28 U.S.C. section 1343. Appellant Moor also alleged diversity jurisdiction under 28 U.S.C. section 1332. The County subsequently filed motions to dismiss the claims against it in each case, contending that, as to the Civil Rights Act claims, the County was not a “person” who could be sued under the Act. The County also argued that, as the federal claims were not viable, the pendent state claims must also be dismissed. In addition, in the Moor case, the County separately moved to dismiss for lack of diversity, contending in part that the County was not a “citizen” for federal diversity jurisdiction purposes. The trial court ultimately granted all of these motions and ordered that all claims against the County be dismissed. These appeals are taken from that order. Three broad issues are thus presented by appellants. First, they argue that their Civil Rights Act claims against the County are viable, notwithstanding the fact that the County is not a “person” within section 1983 of the Act. Second, they contend that even if they did not present a cognizable federal cause of action against the County, the district court should have retained jurisdiction" }, { "docid": "1423244", "title": "", "text": "under federal notice pleading. The complaint was signed by counsel, and, under Federal Rule of Civil Procedure 11, “[t]he signature of an attorney constitutes a certificate by him that he has read the pleading [and] that to the best of his knowledge, information, and belief there is good ground to support it.” Since “wilful violation” of this rule may subject an attorney to “appropriate disciplinary action,” I assume that the allegations are made in good faith. The complaint sufficiently asserts some sort of direct involvement by the supervisory officials in what the complaint discloses to be a sordid scheme to infringe civil liberties; it passes, although barely, the test of civil rights pleading, and it will not be dismissed. More detail may be sought in discovery and the sufficiency thereof may be tested by summary judgment procedures. Otherwise, ascertainment of the averments’ veracity must be determined by the fact-finder at trial. D. Liability of City of Philadelphia The City of Philadelphia contends that it cannot be held liable in this case as a matter of law. Two theories of federal civil rights liability are asserted against the City. The first is statutory, under the Civil Rights Act of 1871. The second seeks to impose liability on the City for damages in an action asserted directly under the Fourteenth Amendment to the Constitution. As its wording makes clear, the Civil Rights Act of 1871 (particularly 42 U.S.C. § 1983) imposes liability only on “persons”. In Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court reviewed the legislative history of the Act and concluded that Congress did not intend to include municipalities within the meaning of the word “persons” so as to subject them to liability. The Court reaffirmed that holding in later decisions (Moor v. County of Alameda, 411 U.S. 693, 706-10, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); see also Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976)), and its holding was" }, { "docid": "6214266", "title": "", "text": "somehow requires that municipalities be shielded from such liability under § 1981. We reject the city’s argument as wholly without support in either the Supreme Court’s § 1983 cases, the wording of § 1981, or its legislative history. Accordingly we affirm the district court’s award of damages. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court held that a municipality was not a “person” for purposes of § 1983 liability. That decision was the result of a thorough examination of the legislative history of § 1983, which was enacted as § 1 of the Klu Klux Klan Act of April 20, 1871, 17 Stat. 13. The Congress which enacted § 1983 had expressly considered and rejected the Sherman Amendment, a provision which would have imposed liability upon municipalities for private acts of violence incurred by residents in violation of their civil rights. The rejection of the Sherman Amendment led the Supreme Court to conclude that: The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20,1871, was so antagonistic that we cannot believe that the word “person” was used in this particular Act to include them. 365 U.S. at 191, 81 S.Ct. at 486 (footnote omitted). The Court did not decide whether' Congress possessed the power to make municipalities liable for acts of its officials which violated another’s civil rights. In Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), the Court adhered to its interpretation of “person” in § 1983, even though the plaintiff argued that a county in his state could be held vicariously liable for the acts of its officials. The nonliability of municipalities did not depend upon state law because Congress had intended to exclude all municipalities from the word “person” in § 1983. Then, in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Court extended the holding in Monroe and Moor to an equity action. The Court stated:" }, { "docid": "17792186", "title": "", "text": "County of Alameda, 411 U.S. 693, 712-15, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Moor was a civil rights action against several deputy sheriffs, the sheriff of Alameda County, and the County itself, in which the claims against the County were nonfederal in character. Id. at 710, 93 S.Ct. 1785. Applying Gibbs, the Court found that plaintiff’s claims against the deputy sheriffs and sheriff stated substantial federal causes of action against them and that the nonfederal claims against the County derived from the same nucleus of operative fact as the federal claims against the other parties. Id. at 712, 93 S.Ct. 1785. The Court indicated, however, that merely because the Gibbs standards were met did not necessarily mean that Article III was not a bar to the exercise of pendent jurisdiction where that jurisdiction would extend over a nonfederal party as well as a nonfederal claim. The Court said that because the County was “implicated in the litigation only with respect to the pendent state law claim and not also with respect to any claim as to which there is an independent basis of federal jurisdiction,” id. at 713, 93 S.Ct. at 1797, “[wjhether there exists [constitutional] power to hear the state law claims against the County is, in short, a subtle and complex question with far-reaching implications.” Id. at 715, 93 S.Ct. at 1799. The Court declined to reach the issue because it concluded that assuming, arguendo, the existence of power to hear the nonfederal claims, the district court had not abused its discretion in declining to exercise that power. Id. We, too, need not reach the difficult question whether the district court would have power under Article III to join a non-federal party as well as hear a nonfederal claim. See Aldinger, 427 U.S. at 14 — 15, 96 S.Ct. 2413. In the present case, the entity against which the nonfederal claim is raised is already a party as the result of the United States’ third-party complaint which was based upon an independent ground of federal jurisdiction, 28 U.S.C. § 1345 (quoted in note 4, supra). True, Hospital" }, { "docid": "4927199", "title": "", "text": "MEMORANDUM OPINION AND ORDER NEESE, District Judge. This is a civil rights action against, among others, the sheriff of a Tennessee county and the surety on his official bond. The plaintiffs contend that deputies sheriff appointed by such sheriff subjected their (now deceased) son, a citizen of the United States, or caused him to be subjected, under color of Tennessee law, to the deprivation of his right to the due process of law, Constitution, Fourteenth Amendment, rendering such sheriff and his surety liable to them in monetary damages, 42 U.S.C. § 1983, under the doctrine of respondeat superior. The defendants sheriff and his surety moved for a dismissal of the action against them for the failure of the plaintiffs to state a claim against them herein on which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. They insist that they are immunized against this action by the plain provisions of T.C.A. § 8-832. This Court is thus confronted for the first time squarely, cf. Juanita Blair Sutton, Etc., plaintiff, v. Bobby Stinson, Etc., Et Al., defendants, civil action no. 3140, this district and division, memorandum opinion and order of March 27, 1975, with the proposition of whether alleged conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 is immunized in Tennessee by the provisions of T.C.A. § 8-832. It is not so immunized. “ * * * Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 * * * cannot be immunized by state law. * * * ” Hampton v. City of Chicago, Cook County, Illinois, C.A. 7th (1973), 484 F.2d 602, 607 [5], certiorari denied (1974), 415 U.S. 917, 94 S.Ct. 1413, 1414, 39 L. Ed.2d 471. To construe T.C.A. § 8-832 in such manner as to bar a federal civil rights action against a Tennessee sheriff and his surety “ * * * would transmute a basic guarantee into an illusory promise; and the supremacy clause of the [federal] Constitution insures that the proper construction may be enforced." }, { "docid": "22586918", "title": "", "text": "ultimate resolution on the merits of appellant’s claims against Kornberg. . See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), where the Court rejected the suggestion that state law imposing vicarious liability upon municipalities be adopted into federal law, thus independently creating the basis for a federal claim pursuant to 42 U.S.C. § 1988. The Court concluded that Congress did not intend, as a matter of federal law, to impose vicarious liability on municipalities for violations of federal civil rights by their employees. Id. at 710 n. 27, 93 S.Ct. at 1796 (emphasis in original). . The Braults had sought damages for deprivation of property rights without due process occasioned by the Town’s enforcement of a zoning ordinance. . At the same time, of course, we need not, determine whether the considerations prompting the Supreme Court to reject derivative liability in § 1983 actions would be equally persuasive in such a constitutionally-based action. See Moor v. Alameda County, 411 U.S. 693, 698-710, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). See also Apton v. Wilson, 506 F.2d 83, 95-96 (2d Cir. 1974). .Section 50-i, subdivision 1, provides in pertinent part: No action or special proceeding shall be prosecuted or maintained against a city . for personal injury or damages to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city . . . or of any officer, agent or employee thereof . unless (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based. Presumably, this section would have applied to Fine’s claims against the City had they been brought in the New York state courts. . Appellant also averred in his complaint that he was assaulted by New York City police officers of the 109th Precinct after his arrest on March 7, 1972. . See," }, { "docid": "3461248", "title": "", "text": "S.Ct. 1347, 39 L.Ed.2d 662 (1974). Thus, there is no constitutional bar to a federal court’s awarding attorney fees against a county and its officials. There is a statutory bar within § 1983, however, which prevents direct suits against municipalities under it. The Supreme Court decided in Moor v. County of Alameda, 411 U.S. 693, 710, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), that a county may not be directly sued under § 1983. See also City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Making Allen County directly liable for an attorney fees’ award, then, may not rest on § 1983 liability, since the District Court had no jurisdiction over the County under that statute. One other possible ground to hold the County directly liable might be a state claim that the County is vicariously liable for the good faith actions of its officials in the performance of their duties. This was one justification for the award in La Raza Unida v. Volpe, 57 F.R.D. 94, 102 n. 11, supplementing 337 F.Supp. 221 (N.D.Cal.1972), aff’d, 488 F.2d 559 (9th Cir. 1973) (without discussion of attorney fees). Since no state claim was raised below, we may not now consider whether the award may stand against Allen County on such a pendent state ground. See Moor v. County of Alameda, 411 U.S. at 710-717, 93 S.Ct. 1785. In the absence of a finding that an award against Allen County is justified under § 1983 or under Ohio law, the award against Allen County may not stand. Since the award against Allen County may have been in lieu of an award against the County Commissioners, it is proper to remand for consideration of an award against them, and the entire award will be subject to reconsideration by the District Court. An award against Sheriff Fair is proper under § 1983. Jurisdiction exists over him, and he has been held liable in this litigation. As a means of effectuating its equitable decree, the District" }, { "docid": "2885218", "title": "", "text": "act committed in that state. In Siegel, the facts and longstanding law dictated that the grant of summary judgment against plaintiff on his civil rights action was proper. Any other discussion by this Court about the applicability of actions under Section 1983 to extradition proceedings was nothing more than dicta. The district court erred in granting summary judgment for defendant. It is undisputed that Sheriff Snead was acting under color of state law when he delivered plaintiff to Tennessee authorities. Plaintiff has a right secured by the Constitution and laws of the United States to a pre-extradition habeas corpus hearing in the asylum state. It is undisputed that Sheriff Snead delivered plaintiff to Tennessee authorities while plaintiff’s petition for a writ of habe-as corpus was pending in state court. Application of the law to the summary judgment facts in the case at bar establishes that plaintiff’s cause of action survives defendant’s motion for summary judgment. The trial court’s order is REVERSED. . Crumley does not challenge the validity of his conviction in this action, nor does he seek release from prison. . This is not to intimate that Sheriff Snead acted in bad faith. That is an issue to be resolved at trial. . Crumley also sued Calhoun County. The cause of action against Calhoun County was dismissed for lack of jurisdiction. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Plaintiff does not appeal that dismissal. . 42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . U.S.Const. art. IV, § 2, cl. 2 provides: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and" }, { "docid": "1250093", "title": "", "text": "41, 48 (5th Cir. 1968); Jacobson v. Atlantic City Hospital, 392 F.2d 149, 153-154 (3rd Cir. 1968); See also other cases cited in Moor v. County of Alameda, 411 U.S. 693, 713, n. 29, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); and in C. Wright, Law of Federal Courts, § 19, n. 33 (West Pub., Third Ed. 1976). The one court which has consistently rejected pendent party jurisdiction is the Ninth Circuit. See Williams v. United States, 405 F.2d 951 (9th Cir. 1969); Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969); Moor v. Madigan, 458 F.2d 1217 (9th Cir. 1972); Aldinger v. Howard, 513 F.2d 1257 (9th Cir. 1975); Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977). However, that court was in such a minority that in Aldinger the Ninth Circuit noted the “widespread rejection”. of its position by the other courts of appeals. 513 F.2d at 1261. In the appeal of the Moor decision the Supreme Court declined to discuss the jurisdictional issue and affirmed on the ground that the district judge did not abuse his discretion in refusing to exercise pendent jurisdiction (without deciding whether such jurisdiction existed). Moor v. County of Alameda, 411 U.S. 693, 715, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). In Aldinger, however, the High Court finally came to grips with a pendent party jurisdiction problem. The plaintiff in Aldinger worked for the County Treasurer in Spokane County, Washington. She was informed that she had been terminated, despite “excellent” job performance, because she was allegedly “living with her boyfriend.” She brought a civil rights action under 42 U.S.C. § 1983 against the County Treasurer and other individuals. Since a county is not a “person” within the meaning of § 1983, plaintiff did not have a federal claim against the county. See Moor v. County of Alameda, supra; and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Nonetheless, plaintiff had asked the district court to exercise pendent party jurisdiction over the state claim against the county since it was so closely related to her §" }, { "docid": "5984556", "title": "", "text": "defendant’s motion to dismiss. . Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), held that exhaustion of administrative remedies is not required in a suit brought under 42 U.S.C. § 1983. While this action will not lie under § 1983 because the suit is against a municipality, it is a suit for deprivation of constitutional rights and the same rationale would apply. See also Gibson v. Berryhill, 411 U.S. 564, 572-575, 581, 93 S.Ct. 1689, 36 L.Ed.2d 488 (Marshall, J., concurring) (1973). . 28 U.S.C. § 1331(a) reads: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” . 42 U.S.C. § 1983 reads, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . 28 U.S.C. § 1343 is invoked with 42 U.S.C. § 1983 because § 1983, a civil rights statute, provides a cause of action and § 1343 gives the federal courts jurisdiction to hear cases arising under the civil rights statutes. . See, for example, Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), where two plaintiffs sued for deprivation of their constitutional rights to recover damages for injuries allegedly suffered when an Alameda County deputy sheriff wrongfully discharged a shotgun while engaged in quelling a civil disturbance. Both plaintiffs Moor and Rundle asserted jurisdiction against the county under 28 U.S.C. § 1343 (for the claim arising under 42 U.S.C. § 1983 and 42 U.S.C. § 1988) ; plaintiff Moor also alleged diversity jurisdiction under 28 U.S.C. § 1332. No claim was" }, { "docid": "23386500", "title": "", "text": "of such claims. Although neither Monroe nor Kenosha interpreted § 1983 as evidencing a definite policy against federal court imposition of liability on municipalities for constitutional violations, two other decisions gave it precisely this effect. The more significant of these was Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Moor was a case in which a political subdivision and a number of its employees had been sued both under 42 U.S.C. §§ 1983, 1988, and under state law for allegedly violating the plaintiffs’ constitutional rights. The Moor plaintiffs conceded that § 1983, standing alone, did not authorize the suit against the county, but they relied upon § 1988 for the proposition that they had a federal civil rights claim against the county as well. Section 1988 provides that, where federal law does not provide suitable remedies, state law shall govern in federal civil rights actions insofar as the state provisions are not inconsistent with federal law. The Moor plaintiffs noted that the county was vicariously liable under state law for the unconstitutional conduct of its employees and urged that the incorporation of this state remedy into federal law was required by § 1988. The Court rejected this contention. Stating that it had no occasion to consider the adequacy of the remedy created by § 1983, it reasoned that § 1988 was not intended to “authorize the wholesale importation into federal law of state causes of action — not even ones purportedly designed for the protection of federal civil rights”, 411 U.S. at 704, 93 S.Ct. at 1793, and that it would be inconsistent with § 1983 to incorporate into federal law provisions that could result in the imposition of liability on a political subdivision. Id. at 706, 93 S.Ct. 1785. That the Court’s holding rested on an interpretation of § 1983 as embodying an affirmative policy against federal court imposition of municipal liability is clear and is made even clearer by certain dicta of the Court. While eschewing incorporation of state law rights of action, the Court cited with approval several lower court" }, { "docid": "23196382", "title": "", "text": "n. 10, 98 S.Ct. at 1996 & n. 10. The Court was careful, however, to distinguish instances in which the illegal conduct caused the plaintiff’s death, id. at 592, 594, 98 S.Ct. at 1996, 1997, and noted that its rationale would not “preclude survival of a § 1983 action when such is allowed by state law, nor does it preclude recovery by survivors who are suing under § 1983 for injury to their own interests.” Id. at 592 n. 9, 98 S.Ct. at 1996 n. 9 (citation omitted). One other Supreme Court case commands our attention on this issue. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), held that § 1988 alone does not “authorize the federal courts to borrow entire causes of action from state law.” Id. at 702, 703-04, 93 S.Ct. at 1792, 1792-93. Petitioners in Moor sought to recover damages against a municipality based on § 1983 at a time when municipalities were not subject to such liability under the doctrine of Monroe v. Pape. Petitioners argued that § 1988 authorized the adoption of a state law that exposed municipalities to vicarious liability for violations of § 1983. The Supreme Court rejected this argument because § 1988 does not independently create a federal cause of action for the violation of federal civil rights. On the contrary, application of § 1988 “is restricted to those contexts in which Congress has in fact authorized resort to state and common law.” Moor, 411 U.S. at 701, 93 S.Ct. at 1791 (footnote omitted). One such context, the Court stressed, was to provide remedial assistance to civil rights statutes that were “unsuited or insufficient” to enforce the substantive right. Id. at 702-03, 93 S.Ct. at 1792. Under then existing federal law, municipalities were not independently subject to suit under § 1983; thus, incorporation of state law would have subjected municipalities to federal liability they otherwise would not have faced. Id. at 706, 710, 93 S.Ct. at 1794, 1796. From our analysis, we conclude that Congress envisioned a significant remedy for wrongful killings resulting from conduct" }, { "docid": "13210772", "title": "", "text": "do not merely rely on the 1871 debates and Monroe. Substantial emphasis is placed on two recent decisions by the Supreme Court, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) and Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), both addressing issues left unresolved by Monroe. The opinions, however, ultimately add little to the Monroe analysis. In Aldinger, where an action had been brought under § 1983 against several officers of Spokane County, an attempt was made to have the federal court exercise pendent jurisdiction over state claims against the County itself. The sole initial source of jurisdiction was § 1343(3), the jurisdictional counterpart of § 1983. The Court declined to adopt this “pendent party” theory, basing its decision, in part, on a determination that such an outcome would conflict with § 1983: Parties such as counties, whom Congress excluded from liability in § 1983, and thereby by reference in the grant of jur isdiction under § 1343(3), can argue with a great deal of force that the scope of that “civil action” over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under the law. 427 U.S. at 17, 96 S.Ct. at 2421. Given that Congress did not view § 1983 as authorizing suits against municipalities (for whatever reasons), the Court correctly perceived the anomaly of bootstrapping state claims into a federal court by the use of § 1983’s penumbra of pendent jurisdiction. In Moor, the Court was presented with the question whether § 1988, enacted to fill “gaps” in the federal civil rights law through the adoption of appropriate provisions of state law, should be construed to permit a type of liability explicitly rejected in the § 1983 debates. The petitioners in that case sought to incorporate into federal law California statutory provisions making a county vicariously liable for the wrongful acts of its employees. The limited issue" }, { "docid": "23172928", "title": "", "text": "U.S.C. § 1981 — was based on the Court’s past decisions interpreting 42 U.S.C. § 1983, which held that Congress ‘“did not intend ... to impose vicarious liability on municipalities for violations of federal civil rights by their employees[.]’ ” Id. at 733, 109 S.Ct. at 2721 (quoting Moor v. County of Alameda, 411 U.S. 693, 710 n. 27, 93 S.Ct. 1785, 1796 n. 27, 36 L.Ed.2d 596 (1973)). See also Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. Past decisions such as Monell based this principle on the language of 42 U.S.C. § 1983, which imposes liability only where a state actor “under color of some official policy, ‘causes’ an employee to violate another’s constitutional rights[,]” Monell, 436 U.S. at 692, 98 S.Ct. at 2036, as well as on the legislative history of the Civil Rights Act of 1871, the precursor statute to 42 U.S.C. § 1983, wherein the 42nd Congress rejected a proposal to impose vicarious liability under that statute. Id. at 691, 98 S.Ct. at 2036. B. The 1991 amendment to 42 U.S.C. § 1981 Section 101 of the Civil Rights Act of 1991 added two new subsections to 42 U.S.C. § 1981, one of which is at issue in this appeal: § 1981(c). Subsection 1981(e) provides: The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 42 U.S.C. § 1981(c). Whether this amendment overturns either or both of Jett’s two holdings is an unsettled question of law. The validity of Jett’s two holdings following the Civil Rights Act of 1991 has been challenged by courts and commentators alike. A number of district courts, relying chiefly on the language of § 1981(e), have interpreted this new subsection to permit direct causes of action against state actors for violations of 42 U.S.C. § 1981, and thus to overturn Jett’s requirement that claimants sue state actors under 42 U.S.C. § 1983 for violations of 42 U.S.C. § 1981. See Johnakin v. City of Philadelphia, No. Civ. A. 95-1588, 1996 WL 18821 at *4 (E.D.Pa., Jan.18, 1996) (unpublished); Robinson" }, { "docid": "5984557", "title": "", "text": "thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . 28 U.S.C. § 1343 is invoked with 42 U.S.C. § 1983 because § 1983, a civil rights statute, provides a cause of action and § 1343 gives the federal courts jurisdiction to hear cases arising under the civil rights statutes. . See, for example, Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), where two plaintiffs sued for deprivation of their constitutional rights to recover damages for injuries allegedly suffered when an Alameda County deputy sheriff wrongfully discharged a shotgun while engaged in quelling a civil disturbance. Both plaintiffs Moor and Rundle asserted jurisdiction against the county under 28 U.S.C. § 1343 (for the claim arising under 42 U.S.C. § 1983 and 42 U.S.C. § 1988) ; plaintiff Moor also alleged diversity jurisdiction under 28 U.S.C. § 1332. No claim was made under § 1331. The Supreme Court affirmed the dismissal of the claims arising under § 1343, citing Monroe, but held that diversity jurisdiction would lie under § 1332. Since § 1332 requires the same amount in controversy as does § 1331, it seems it would have been the better course for plaintiffs to have included a claim under § 1331 as well. . See, e. g., Creel v. City of Atlanta, Georgia, 399 F.2d 777 (5 Cir. 1968) ; Miller v. County of Los Angeles, 341 F.2d 964, 967 (9 Cir. 1965) ; Foster v. Herley, 330 F.2d 87, 90-91 (6 Cir. 1964) ; Amen v. City of Dearborn, 363 F.Supp. 1267, 1270 (E.D.Mich.1973) ; Eleopoulos v. Richmond Redevelopment Agency, 351 F.Supp. 63, 64 (N.D.Cal.1972). . The required amount in controversy was originally $500." }, { "docid": "1423245", "title": "", "text": "law. Two theories of federal civil rights liability are asserted against the City. The first is statutory, under the Civil Rights Act of 1871. The second seeks to impose liability on the City for damages in an action asserted directly under the Fourteenth Amendment to the Constitution. As its wording makes clear, the Civil Rights Act of 1871 (particularly 42 U.S.C. § 1983) imposes liability only on “persons”. In Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court reviewed the legislative history of the Act and concluded that Congress did not intend to include municipalities within the meaning of the word “persons” so as to subject them to liability. The Court reaffirmed that holding in later decisions (Moor v. County of Alameda, 411 U.S. 693, 706-10, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); see also Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976)), and its holding was interpreted to have general application to states and their subdivisions (e. g., United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 & n. 2 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970)). In view of that holding, plaintiffs did not forcefully advocate their statutory claim when they filed their brief in this case. After the briefs were filed, the Supreme Court decided Monell v. Department of Social Services, 436 U.S. -, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in which it reconsidered the 1871 Act’s legislative history and concluded that it had erred in Monroe and that governmental entities indeed could be liable “persons” under the Act. In light of Monell, the statutory claim against the City is resurrected, and it will be considered even though it was not advocated in plaintiffs’ brief. The core of the Monell opinion was the following passage: “Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities" }, { "docid": "22547309", "title": "", "text": "Mr. Justice Marshall delivered the opinion of the Court. This case raises three distinct questions concerning the scope of federal jurisdiction. We are called upon to decide whether a federal cause of action lies against a municipality under 42 U. S. C. §§ 1983 and 1988 for the actions of its officers which violate an individual’s federal civil rights where the municipality is subject to such liability under state law. In addition, we must decide whether, in a federal civil rights suit brought against a municipality’s police officers, a federal court may refuse to exercise pendent jurisdiction over a state law claim against the municipality based on a theory of vicarious liability, and whether a county of the State of California is a citizen of the State for purposes of federal diversity jurisdiction. In February 1970, petitioners Moor and Rundle filed separate actions in the District Court for the Northern District of California seeking to recover actual and punitive damages for injuries allegedly suffered by them as a result of the wrongful discharge of a shotgun by an Alameda County, California, deputy sheriff engaged in quelling a civil disturbance. In their complaints, petitioners named the deputy sheriff, plus three other deputies, the sheriff, and the County of Alameda as defendants. The complaints alleged both federal and state causes of action. The federal causes of action against the individual defendants were based on allegations of conspiracy and intent to deprive petitioners of their constitutional rights of free speech and assembly, and to be secure from the deprivation of life and liberty without due process of law. These federal causes of action against the individual defendants were alleged to arise under, inter alia, 42 U. S. C. §§ 1983 and 1985, and jurisdiction was asserted to exist under 28 U. S. C. § 1343. As to the County, both the federal and state law claims were predicated on the contention that under the California Tort Claims Act of 1963, Cal. Govt. Code §815.2 (a), the County was vicariously liable for the acts of its deputies and sheriff committed in violation of the" } ]

[ { "docid": "891985", "title": "", "text": "Ludwig Deposition, p. 71, 73, 85,109,112; Braden Deposition, p. 66; Redgate Deposition, p. 102. The United States had neither the right nor the power to restrict access to the third floor of the Las Vegas Hilton during the 1990 and 1991 Tail-hook Conventions and had no duty to do so. IT IS THEREFORE ORDERED THAT Defendant United States’ Motion to Dismiss or, in the Alternative, for Summary Judgment (#49) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall forthwith enter Judgment in favor of Defendant United States and against Plaintiffs in each of these consolidated actions. . Each Plaintiff filed separately against the United States in this matter, except for the Ramas who filed their Complaint jointly. As a result, there are five separate case files representing each case against the United States. On March 18, 1994, the Court consolidated the five cases for the purposes of pretrial discovery and pretrial motions and designated Hallett v. United States Department of Navy, 850 F.Supp. 874 (D.Nev. 1994), as the base file. . Plaintiffs also contend that the February 1993 report of the Department of Defense (\"DOD report\") supports these and other contentions. However, under Rule 56(e), this Court may only consider those facts which would be admissible in evidence in considering a motion for summary judgment. In re Sunset Bay Associates, 944 F.2d 1503, 1514 (9th Cir.1991). The DOD report undoubtedly served a useful function within the Department of Defense to enable the United States Navy to address many important issues related to the involvement and actions of military personnel at the Tailhook Conventions in question. The Court finds, however, that the DOD report is largely conclusory, contains inadmissible hearsay and double hearsay, does not come within the hearsay exception as stated in Fed. R.Evid. 803(8)(C), and does not otherwise indicate trustworthiness. See Coughlin v. The Tailhook Association, et al., CV-S-93-044-PMP (RJJ), Order dated September 2, 1994. The Court therefore finds that the DOD report would not be admissible at trial. See Fed.R.Evid. 802. As a result, the Court will not consider the DOD report in the determination" } ]

[ { "docid": "20394939", "title": "", "text": "242). But, in its introduction, KBR states the correct interpretation of the Opinion — noting that the Court denied its motion \"on two separate grounds.\" (Docket No. 242 at 1). . This portion of Hamoudi's report appears to run counter to KBR’s initial briefing on these issues, where it argued that ”[t]o the extent CPA Order 17 has any relevance here, the order would merely define the substance of potentially-applicable Iraqi law. In other words, as at least one other court has readily acknowledged, CPA Order 17 does not supplant a choice-of-law analysis; it merely informs the substance of one forum’s law, after such analysis is performed.” (Docket No. 220). This also calls into question the credibility or reliability of the expert opinion advanced by KBR. . The Court notes that Staff Sergeant Maseth’s death occurred on an American military base which was controlled by Americans. See pp. 676-77, infra. . Specifically, KBR has raised the following defenses: that this Court lacks subject matter jurisdiction over the case; that Plaintiffs' claims are barred by the political question and separation of powers doctrine; that Plaintiffs’ claims are barred by the government contractor defense under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988); and Plaintiffs’ claims are barred under the \"combatant activities” exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(j). (Docket No. 217). The Court notes that the United States Court of Appeals for the Fourth Circuit recently addressed several of these defenses. See e.g., Taylor v. Kellogg, Brown & Root Services, Inc., 658 F.3d 402, 2011 WL 4379353 (4th Cir. Sept. 21, 2011); Al Shimari v. CACI Intern., Inc., 658 F.3d 413, 2011 WL 4382081 (4th Cir. Sept. 21, 2011); Al-Quraishi v. L-3 Services, Inc., 657 F.3d 201, 2011 WL 4382115 (4th Cir. Sept. 21, 2011). . The Court will not belabor the point, as the Court has addressed it multiple times throughout this case, but Plaintiffs allege that KBR was both actively negligent in its maintenance of the facility and mishandling of the water pump and by failing to warn" }, { "docid": "23015024", "title": "", "text": "lack of personal knowledge is not a proper basis for exclusion of a report otherwise admissible under Rule 803(8). Exclusion of an official report is warranted only if the court finds that “the sources of information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid. 803(8); see also 2 McCormick On Evid. § 296 (6th ed.) (“As the name indicates, these reports embody the results of investigation and accordingly are often not the product of the declarant’s firsthand knowledge, required under most hearsay exceptions. Nevertheless, the nature and trustworthiness of the information relied upon, including its hearsay nature, is important in determining the admissibility of the report.” (footnotes omitted)). Another reason the district court concluded that the letter was entitled to little weight is that the conclusions were not tied to specific facts, and it was unclear what evidence the investigator considered in reaching her conclusion. We believe that is a valid reason for finding that the OCRC letter does not support the plaintiffs prima facie case, because it assesses the circumstances relating to the trustworthiness of the report. Several courts have held that the EEOC’s opinion that there is reasonable cause to believe discrimination occurred or did not occur is excepted from hearsay under Rule 803(8), unless there is an indication of a lack of trustworthiness. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1342-43 (3d Cir.2002); Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir.1998); Cortes, 977 F.2d at 201; Barfield v. Orange County, 911 F.2d 644, 649 (11th Cir.1990); Johnson v. Yellow Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir.1984). In this Circuit, “[t]o determine whether a report is trustworthy, courts consider the following four factors: (1) the timeliness of the investigation upon which the report is based, (2) the special skill or experience of the investigators, (3) whether the agency held a hearing, and (4) possible motivational problems.” Chavez v. Carranza, 559 F.3d 486, 496 (6th Cir.2009) (citing Bank of Lexington, 959 F.2d at 616-17). “This list of factors is not exclusive; any circumstance which may affect the trustworthiness of the" }, { "docid": "19875384", "title": "", "text": "is no evidence presently of record which demonstrates that the Army made any service order requests or specifically directed KBR to perform maintenance services regarding any of the deficiencies identified in the February 10, 2007 technical inspection report (“TI”), described above. Indeed, KBR has supplied the Court with declarations of military officials as well as declarations and testimony of its own representatives in support of the same. (Docket No. 20-2 at 10-11; Docket No. 23-2 at 5-6; Docket No. 122-4 at 3). After the February 10, 2007 TI was completed, several service order requests were made to KBR regarding maintenance issues at the LSF-B 1 building. Some of these are relevant to the instant case. Specifically, Sergeant First Class Justin Hummer was housed in the same living quarters as Staff Sergeant Maseth at the RPC immediately prior to Staff Sergeant Maseth. (Docket No. 28-2 at 8). He lived at LSF-B1 from June 2007 to October 2007. (Id.). SFC Hummer was shocked four to five times while using the shower in the same restroom in which the electrocution of Staff Sergeant Maseth occurred. (Id.). SFC Hummer testified that each time he was shocked, a service order request was filled out and presented to the Mayor’s Cell. (Hummer Deposition 8/21/08, Defendant’s Exhibit 3 to 8/27/08 Motion Hearing (“Hummer Deposition ”) at 67). KBR representatives responded to each of these requests and completed the maintenance services. (Id. at 67-68). During these maintenance calls, KBR inspected the water pump on the roof of LSF-B 1, replaced a pressure switch on the water pump and replaced a heating coil on the water tank. (Docket No. 28-2 at 9). SFC Hummer also testified that after the work was completed, the shocking events subsided for some time. (Id. at 68). In addition to reporting the electric shocks by way of service order requests, SFC Hummer spoke directly to Chief Warrant Officer Carrier regarding the same on multiple occasions. (Hummer Deposition at 68). SFC Hummer testified that he told Chief Warrant Officer Carrier the entire building needed rewired due to the electrical problems he encountered. (Id.). According to" }, { "docid": "19875411", "title": "", "text": "“not expend its financial resources for .the performance of preventative maintenance on most of the structures at the RPC, including LSFB1.” (Docket No. 20 at 19 (emphasis in original)). KBR also contends that the first Baker factor is implicated in the following: (1) that the Court will have to define the legal duty owed by KBR to Staff Sergeant Maseth; (2) that Plaintiffs will have to establish whether KBR breached its contractual duties; and (3) that KBR will be “forced” to argue in its defense that the military’s own “faulty” decisions to house soldiers in the RPC, by assigning most buildings to receive only Level B maintenance, and to ignore the hazardous conditions which contributed to Staff Sergeant Maseth’s death. (Docket No. 35 at 10). Through subsequent briefing, KBR’s arguments as to the first Baker factor have shifted, focusing more on its contention that it was not authorized under its contract with the Army to provide preventative maintenance or conduct periodic inspections of LSF-B1. KBR contends that the Army exercised an “envelope of control” over their contractual relationship such that KBR was only authorized to provide work as specifically directed by the Army and that it was never directed to repair the electrical deficiencies at LSF-Bl. (Docket No. 76 at 7). KBR maintains that these decisions made by the Army are insulated from judicial review. Plaintiffs counter that their claims do not directly implicate any decisions of the military. They, do not dispute that the Army made a decision to house soldiers in hard-stand buildings at the RPC or to ascribe that the buildings in the RPC received only Level B maintenance. Instead, Plaintiffs argue that “this lawsuit asks this Court and a jury to determine whether the work that KBR actually performed at the RPC was substandard, negligent work that resulted in Ryan Maseth’s death.” (Docket No. 137 at 2 (emphasis in original)). In this Court’s estimation, Plaintiffs’ claims do not question any decision by the military. Rather, they focus on KBR’s conduct in performance of its contractual agreements with the Army once it undertook certain tasks at the" }, { "docid": "19875389", "title": "", "text": "infrastructure at LSFB1” and that KBR was aware of similar hazards at several other facilities including buildings LSFB5 and LSFB6 at the RPC. (Id. at 12-13). It is further alleged that KBR’s “inspection revealed specific hazards relating to the water storage, pumping, heating and delivery systems at [the RPC]” (Id. at 14) including: that the water pump servicing the facility failed to meet applicable United States safety standards (Id. at 15); “that the electric supply to the water pump at LSFB1 had bypassed the main electrical disconnect by means of connecting all of the wires to the top of the breaker” (Id. at 16); “that there were two unprotected splices in the incoming electrical supply line at ground level at LSFB1” (Id. at 17); and, “That the water tanks serviced by the pump in LSFB1, LSFB5 and LSFB6 were not grounded.” (Id. at 18). In' addition, Plaintiffs allege that KBR “was aware or should have been aware of as many as 11 other instances of United States military personnel being electrocuted at military'bases in Iraq due to faulty wiring, grounding, and/or other aspects of the electrical systems.” (Id. at 19). It is also alleged that KBR was contractually obligated to fix the electrical problems at LSFB1 under the LOGCAP III contract and the Task Orders issued thereunder, that the Defense Contract Management Agency instructed and authorized KBR to repair the electrical problems, but that despite this obligation, KBR did not fix, otherwise make safe or warn U.S. troops of the hazardous condition at LSFB1. (Id. at 20-22). Further, KBR continued to permit U.S. troops, including Staff Sergeant Maseth, to utilize the faulty electrical, shower and water systems without warnings or safe alternatives, despite its knowledge of the problems and prior instances of electrocution. (Id. at 23-24). III. PROCEDURAL HISTORY On March 24, 2008, Plaintiffs filed their initial complaint against KBR in the Court of Common Pleas of Allegheny County, Pennsylvania. (Docket No. 1-3). The Complaint was then removed to this Court by KBR on April 22, 2008. (Docket No. 1). Thereafter, KBR filed a Motion to Seal its brief in" }, { "docid": "20394915", "title": "", "text": "by the Court’s Memorandum Opinion denying KBR’s motion to dismiss, wherein the Court found that: After the February 10, 2007 TI was completed, several service order requests were made to KBR regarding maintenance issues at the LSF-B 1 building. Some of these are relevant to the instant case. Specifically, Sergeant First Class Justin Hummer was housed in the same living quarters as Staff Sergeant Maseth at the RPC immediately prior to Staff Sergeant Maseth. (Docket No. 28-2 at 8). He lived at LSF-B1 from June 2007 to October 2007. (Id.). SFC Hummer was shocked four to five times while using the shower in the same restroom in which the electrocution of Staff Sergeant Maseth occurred. (Id.). SFC Hummer testifted that each time he was shocked, a service order request was filled out and presented to the Mayor’s Cell. (Hummer Deposition 8/21/08, Defendant’s Exhibit 8 to 8/27/08 Motion Hearing (“Hummer Deposition”) at 67). KBR representatives responded to each of these requests and completed the maintenance services. (Id. at 67-68). During these maintenance calls, KBR inspected the water pump on the roof of LSF-B1, replaced a pressure switch on the water pump and replaced a heating coil on the water tank. (Docket No. 28-2 at 9).FN15 SFC Hummer also testified that after the work was completed, the shocking events subsided for some time. (Id. at 68). FN 15 Plaintiffs also maintain that KBR installed the water pump in question, relying on an email communication from Amber Wojnar, A SAC, MNF-1 Slayer to Plaintiffs. (Docket No. 121-8). That email states that “[a] Filipino plumber admitted to installing the pump on the roof during the previous KBR project in 2006. So, it was in fact conducted during KBR’s time at RPC, and was not a bi-product of Iraqi engineering as previously alleged.” (Id.). Harris, 618 F.Supp.2d at 413-14 (emphasis added). In opposition to the present motion, Plaintiffs advance additional evidence in support of the Court’s statement of facts, including the Office of Inspector General, Department of Defense Report on Staff Sergeant Maseth’s death, which stated that: We determined that KBR installed the pump on" }, { "docid": "19875383", "title": "", "text": "contract, i.e., that it involved some new construction work and not repair or maintenance of existing facilities, they would return the service order request to the Mayor’s Cell for additional direction. (Docket No. 76-2 at 6). The Mayor’s Cell would then evaluate the request and, if necessary, seek additional approval and funding from the Army. (Docket No. 122-6 at ¶ 14). There was also an understanding between the Army and KBR that there was a $2,500 limit per service order request and that any maintenance or repairs requested that would cost an amount in excess of $2,500 required further approval. (Docket No. 121-11 at 10). Chief Carrier testified that, during his tenure as Mayor, there was only one instance that he did not authorize work outside the scope of KBR’s contract. (Docket No. 77-2 at 13 p. 21). He further testified that he would authorize work outside the scope of the contract if it was safety related. (Id.). 9. Actual Service Order Requests With respect to any actual service order requests that were issued, there is no evidence presently of record which demonstrates that the Army made any service order requests or specifically directed KBR to perform maintenance services regarding any of the deficiencies identified in the February 10, 2007 technical inspection report (“TI”), described above. Indeed, KBR has supplied the Court with declarations of military officials as well as declarations and testimony of its own representatives in support of the same. (Docket No. 20-2 at 10-11; Docket No. 23-2 at 5-6; Docket No. 122-4 at 3). After the February 10, 2007 TI was completed, several service order requests were made to KBR regarding maintenance issues at the LSF-B 1 building. Some of these are relevant to the instant case. Specifically, Sergeant First Class Justin Hummer was housed in the same living quarters as Staff Sergeant Maseth at the RPC immediately prior to Staff Sergeant Maseth. (Docket No. 28-2 at 8). He lived at LSF-B1 from June 2007 to October 2007. (Id.). SFC Hummer was shocked four to five times while using the shower in the same restroom in which" }, { "docid": "20394861", "title": "", "text": "However, those decisions are distinguishable because none of them applied Pennsylvania choice of law rules. The wrongful death decisions applied the choice of law rules of the jurisdiction where the lawsuit was filed and none of the cases were filed in Pennsylvania. On the other hand, the FTCA requires that courts apply the choice of law rules of the location of the injury. The Court now returns to Pennsylvania choice of law rules. Here, the Court has not been presented with any evidence of the policies underlying the causation law proffered by KBR. (See Docket No. 216-1). Professor Hamoudi’s expert reports do not address such policies. (Id.; Docket No. 220-1). However, even assuming that among Iraq’s reasons for adopting such a law is to protect a second actor from being held liable when the first actor’s negligence would have caused the injury in the first instance, it is not clear that this policy will even be implicated in this case. Based on the prior arguments that have been presented to the Court in this case, the Court understands that KBR’s position in this litigation is that the Army was allegedly negligent in its decisions and actions related to housing soldiers in Iraqi buildings with known substandard electrical systems. By advancing the causation law under the Iraqi Civil Code, KBR argues that if that law were applied, the Army’s negligence would subsume its own negligence, if any. But, as this Court has recognized in its prior decisions, Plaintiffs allege that KBR was negligent not only in its failure to act and to warn Staff Sergeant Maseth of known electrical hazards, but also for its negligent performance of maintenance services on LSF-B1 and the malfunctioning water pump. (See Docket No. 209). The evidence previously presented to the Court suggests that KBR fixed the actual water pump on more than one occasion and was aware that it had caused other soldiers to be shocked in the same shower where Staff Sergeant Maseth was killed. See Harris, 618 F.Supp.2d at 413-14. Thus, while Plaintiffs’ failure to act and/or warn claims may be implicated by" }, { "docid": "20394917", "title": "", "text": "the roof which contributed to the electrocution of SSG Maseth, as well as adjacent water tanks during the first week of June 2006. We reached that determination based on KBR work order documents, interviews with four LSF-1 occupants and a KBR subcontracted plumber and photographs of LSF-1. (Docket No. 244 at 7 (quoting DOD-IG Report, p. 3 (emphasis added by Plaintiffs)). In light of the foregoing, the Court still believes that its recitation of the evidence is supported by the extensive record in this case. In any event, the Court only noted that the evidence , “suggests” that KBR fixed the water pump and was aware of shocking incidents. Harris, 796 F.Supp.2d at 661, 2011 WL 2462486, at *15. The Court recognizes that KBR continues to deny these facts but KBR has offered no hard evidence which refutes the Court’s earlier holding or the statement in the DOD-IG’s report. (See Docket Nos. 242, 242-1, 242-2). Therefore, KBR has failed to demonstrate to this Court that it committed any factual errors and its motion for reconsideration is denied to the extent that it relies on such arguments. 4. KBR’s Request to Hold Off Ruling on Motion Until After Discovery KBR further notes that the Court should have held off ruling on the choice of law issue until after discovery. (Docket No. 242). In this Court’s estimation, this claim is disingenuous and runs counter to its attorneys’ multiple requests for early presentation and disposition of this motion, as detailed below. Upon remand from the United States Court of Appeals for the Third Circuit, this Court ordered the parties to file a joint discovery plan. (Docket No. 195). In response to this Order, the parties filed separate plans and KBR stated in its plan that it “intends to file a motion regarding choice-of-law at an early stage in the discovery period so that, to the extent the applicable law demonstrates that discovery regarding the merits of particular claims asserted by Plaintiffs is warranted, the parties can tailor their discovery efforts as appropriate.” (Docket No. 197 at ¶ 13). Regarding this request, the Court" }, { "docid": "20394916", "title": "", "text": "water pump on the roof of LSF-B1, replaced a pressure switch on the water pump and replaced a heating coil on the water tank. (Docket No. 28-2 at 9).FN15 SFC Hummer also testified that after the work was completed, the shocking events subsided for some time. (Id. at 68). FN 15 Plaintiffs also maintain that KBR installed the water pump in question, relying on an email communication from Amber Wojnar, A SAC, MNF-1 Slayer to Plaintiffs. (Docket No. 121-8). That email states that “[a] Filipino plumber admitted to installing the pump on the roof during the previous KBR project in 2006. So, it was in fact conducted during KBR’s time at RPC, and was not a bi-product of Iraqi engineering as previously alleged.” (Id.). Harris, 618 F.Supp.2d at 413-14 (emphasis added). In opposition to the present motion, Plaintiffs advance additional evidence in support of the Court’s statement of facts, including the Office of Inspector General, Department of Defense Report on Staff Sergeant Maseth’s death, which stated that: We determined that KBR installed the pump on the roof which contributed to the electrocution of SSG Maseth, as well as adjacent water tanks during the first week of June 2006. We reached that determination based on KBR work order documents, interviews with four LSF-1 occupants and a KBR subcontracted plumber and photographs of LSF-1. (Docket No. 244 at 7 (quoting DOD-IG Report, p. 3 (emphasis added by Plaintiffs)). In light of the foregoing, the Court still believes that its recitation of the evidence is supported by the extensive record in this case. In any event, the Court only noted that the evidence , “suggests” that KBR fixed the water pump and was aware of shocking incidents. Harris, 796 F.Supp.2d at 661, 2011 WL 2462486, at *15. The Court recognizes that KBR continues to deny these facts but KBR has offered no hard evidence which refutes the Court’s earlier holding or the statement in the DOD-IG’s report. (See Docket Nos. 242, 242-1, 242-2). Therefore, KBR has failed to demonstrate to this Court that it committed any factual errors and its motion for reconsideration" }, { "docid": "20394830", "title": "", "text": "220-1 at ¶2). However, he claims that CPA Orders are “often ignored” by Iraqi courts because these provisions were drafted by “non-Iraqi lawyers with little or no knowledge of the Iraqi legal system.” (Id.). Professor Hamoudi opines that the language of sections 4.2 and 4.3 of Order 17 suggests that these provisions were not drafted in a manner consistent with Iraqi law under its Civil Code. (Id. at ¶¶ 3-5). He posits that sections 4.2 and 4.3 of Order 17 apply different legal standards: under section 4.2, Iraqi law may not apply to “matters relating to terms and conditions of a contract”; and, pursuant to section 4.3, “Contractors are immune from Iraqi legal process.” (Id. at ¶¶ 6-7). Professor Hamoudi makes no reference to section 18 of Order 17 in his Supplemental Expert Report. (See Docket No. 220-1). Thus, he has not offered the Court any opinion regarding the proper interpretation of section 18. C. Relevant Procedure On March 31, 2009, this Court denied KBR’s motion to dismiss Plaintiffs’ claims relying on the political question doctrine and combatant activities exception to the Federal Tort Claims Act, without prejudice. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400, 434 (W.D.Pa.2009). This Court later denied KBR’s motion requesting that the Court certify the legal questions presented by these defenses and to authorize the filing of an interlocutory appeal. Harris, 2009 WL 1248060 (W.D.Pa. Apr. 30, 2009). Despite the denial of an interlocutory appeal, KBR appealed the Court’s March 31, 2009 ruling to the United States Court of Appeals for the Third Circuit on April 30, 2009. (Docket No. 166). The Court of Appeals dismissed KBR’s appeal and remanded the case for further proceedings. Harris, 618 F.3d 398 (3d Cir.2010). On remand, KBR attempted to limit discovery to the defenses it raised in its earlier motion to dismiss, but the Court ordered the parties to commence discovery as to Plaintiffs’ claims and KBR’s defenses. Harris, 2010 WL 4614694 (W.D.Pa. Nov. 5, 2010). However, the Court permitted KBR to bring the present motion while discovery was ongoing. (Docket No. 198). KBR filed" }, { "docid": "23122525", "title": "", "text": "to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Fed.R.Evid. 803(6). . Rule 803(8)(C) excepts from the hearsay rule, even though the declarant is available as a witness: Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth, ... in civil actions and proceedings and against the Government in criminal cases, factual findings' resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Fed.R.Evid. 803(8)(C). . Rule 803(8)(B) excepts from the hearsay rule, even though the declarant is available as a witness: Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth, ... matters observed pursuant to duiy imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel. Fed.R.Evid. 803(8)(B). . In United States v. Wright-Barker, 784 F.2d 161, 173 (3d Cir.1986), we declined to address the applicability of the Oates rule to the admission of a Coast Guard report against criminal defendants under Rule 803(6), the business records exception. Even assuming inadmissibility, we found any error to be harmless. Id. We also noted the many exceptions to the Oates rule, such as the admission of law enforcement reports under Rule 803(6) where the author is available to testily at trial. Id. at 173 n. 12. We declined, however, to decide the appropriateness or applicability of such exceptions. Id. . Relevant excerpts read as follows: The activities conducted by [NIBA] clearly indicate to the Court as a matter of fact and law ' that [NIBA’s] business operation clearly was not a valid ERISA employment benefit plan. The Court finds that NIBA was a means by which.its principalL] Craig SokolowL] was marketing insurance without the benefit of licensed company status while" }, { "docid": "20394933", "title": "", "text": "this Court and the United States Court of Appeals for the Third Circuit. See Harris v. Kellogg, Brown and Root Services, Inc., 618 F.Supp.2d 400 (W.D.Pa.2009), appeal dismissed, 618 F.3d 398 (3d Cir.2010); Harris, 2010 WL 4614694 (W.D.Pa. Nov. 5, 2010) (denying KBR's motion for entry of a case management order); Harris, 796 F.Supp.2d 642, 2011 WL 2462486 (W.D.Pa. Jun. 17, 2011) (denying KBR's motion for the application of Iraqi law). . The Court also agrees with Plaintiffs that the Solicitor General's position set forth in the brief does not wholly support KBR’s position in this case. In Saleh, the contractors were used in the roles of interpreters and interrogators and effectively operated as soldiers in those roles, (see Docket No. 242-2), as opposed to the operations and maintenance services provided by KBR and its employees in this case. Indeed, this Court previously distinguished the lower court decisions in that litigation for the same reasons in our Opinion denying KBR’s motion to dismiss. See Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400, 433 (W.D.Pa.2009). . Specifically, the Court stated: Hence, the Court questions the credibility of the defense expert, given the lack of any reference to Order 17 in his initial report and the lack of completeness in his supplemental report. See BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254, 268 (3d Cir.2000) (holding that under Rule 44.1 \"the District Court is in the best position to determine what at this point is essentially a credibility issue — i.e., which expert to believe.”). (Docket No. 235 at 652). . Specifically, KBR argued that \"[i]n addition, because KBRSI was acting pursuant to its contract with the military, it enjoys immunity from suit pursuant to Order 17 and other guidelines set forth by the Coalition Provisional Authority ('CPA'), the provisional Iraqi government organized by the United States and its coalition partners after the 2003 invasion in Iraq. See, e.g., CPA Order Number 17 (Revised) (signed on June 27, 2004 by L. Paul Bremer, U.S. Ambassador and CPA Administrator) (Section 4 — Contractors: “Contractors shall be" }, { "docid": "19875388", "title": "", "text": "generally indicate that the water pump overheated and failed and that this was likely caused by long term overload of the motor. (Id. at 10). In addition, problems were identified with the grounding of the water pump including that it was not properly grounded upon installation and did not have a safety ground. (Id.). B. Plaintiffs’Allegations At the time of his death, Staff Sergeant Ryan D. Maseth was serving his second, tour in Iraq as an “active duty Army Ranger and Green Beret, serving in the 5th Special Forces Group (Airborne) of the United States Army.” (Docket No. 1-3 at 6, 7). Staff Sergeant Maseth was stationed in Baghdad, Iraq, at the RPC. (Id. at 8). Plaintiffs allege that the RPC was one of the facilities for which KBR was responsible, and that KBR “undertook an inspection and survey of the facilities at the RPC and, specifically, Staff Sergeant Maseth’s building known as LSFB1.” (Id. at 10-11). During said inspection, it is alleged that KBR “discovered hazardous conditions stemming from the improper grounding of electrical infrastructure at LSFB1” and that KBR was aware of similar hazards at several other facilities including buildings LSFB5 and LSFB6 at the RPC. (Id. at 12-13). It is further alleged that KBR’s “inspection revealed specific hazards relating to the water storage, pumping, heating and delivery systems at [the RPC]” (Id. at 14) including: that the water pump servicing the facility failed to meet applicable United States safety standards (Id. at 15); “that the electric supply to the water pump at LSFB1 had bypassed the main electrical disconnect by means of connecting all of the wires to the top of the breaker” (Id. at 16); “that there were two unprotected splices in the incoming electrical supply line at ground level at LSFB1” (Id. at 17); and, “That the water tanks serviced by the pump in LSFB1, LSFB5 and LSFB6 were not grounded.” (Id. at 18). In' addition, Plaintiffs allege that KBR “was aware or should have been aware of as many as 11 other instances of United States military personnel being electrocuted at military'bases in Iraq" }, { "docid": "19875447", "title": "", "text": "No. 20-2 at 22). . The Court notes that \"LSF Office” as used in the technical inspection report refers to LSF-B1, the building in which Staff Sergeant Maseth was housed, . \"MNC-I” as used herein refers to the Multi-National-Corps — Iraq. (Docket No. 122 at 2). \"MNC-I is the tactical unit responsible for command and control for all military operations throughout Iraq. MNC-I is headquartered at the Victory Base military complex near Baghdad.” (Id.). . KBR has also indicated in its briefs that it \"had a previous contract for O & M at the RPC in 2006. This contract similarly authorized only on-call maintenance where a work order was required to initiate all repairs, and it did not authorize on-going inspections or upgrades.” (Docket No. 122 at 4 n. 2). . It is noted that the February 10, 2007 TI was produced to the Army on two occasions. It was submitted first, shortly after the completion of the inspection and second, on November 5, 2007, in response to a request to KBR that all TIs and building surveys be provided to the Army by Staff Sergeant Daniel Wilson, Deputy Mayor of the RPC in 2007. (Docket No. 23-2 at 5). . Plaintiffs also maintain that KBR installed, the water pump in question, relying on an email communication from Amber Wojnar, A SAC, MNF-1 Slayer to Plaintiffs. (Docket No. 121-8). That email states that \"[a] Filipino plumber admitted to installing the pump on the roof during the previous KBR project in 2006. So, it was in fact conducted during KBR’s time at RPC, and was not a bi-product of Iraqi engineering as previously alleged.” (Id.). . KBR’s motion to seal stated that the information to be contained in its exhibits contained, among other things, United States Army documents marked as \"For Official Use Only,\" as well as information about United States Army \"housing and base locations in Iraq,\" and the \"identity and location of [KBR] and military personnel stationed in Iraq.” (Docket No. 16). Given the safety issues involved, the Court granted KBR’s motion. (Docket No. 17). . KBR's brief recognized" }, { "docid": "19875385", "title": "", "text": "the electrocution of Staff Sergeant Maseth occurred. (Id.). SFC Hummer testified that each time he was shocked, a service order request was filled out and presented to the Mayor’s Cell. (Hummer Deposition 8/21/08, Defendant’s Exhibit 3 to 8/27/08 Motion Hearing (“Hummer Deposition ”) at 67). KBR representatives responded to each of these requests and completed the maintenance services. (Id. at 67-68). During these maintenance calls, KBR inspected the water pump on the roof of LSF-B 1, replaced a pressure switch on the water pump and replaced a heating coil on the water tank. (Docket No. 28-2 at 9). SFC Hummer also testified that after the work was completed, the shocking events subsided for some time. (Id. at 68). In addition to reporting the electric shocks by way of service order requests, SFC Hummer spoke directly to Chief Warrant Officer Carrier regarding the same on multiple occasions. (Hummer Deposition at 68). SFC Hummer testified that he told Chief Warrant Officer Carrier the entire building needed rewired due to the electrical problems he encountered. (Id.). According to SFC Hummer, Carrier responded by telling him that rewiring the building was outside the scope of KBR’s contract and that a new contract would need to be issued before that type of work could be completed. (Id. at 68-69). However, Chief Warrant Officer Carrier testified that he did not recall having any of these conversations with SFC Hummer. (Docket No. 76-2 at 25-26). SFC Hummer also testified that when he moved out of LSF-B1, he conveyed this information to Staff Sergeant Maseth. (Hummer Deposition at 69). 10. November 19, 2007 Fire Inspection A fire inspection of LSF-B1, the building where Staff Sergeant Maseth lived, was conducted on November 19, 2007. (Docket No. 20-2 at ¶ 4). A report of that inspection has been filed of record and consists of several pages of documents that were prepared by the Inspector, Captain James Cook. (Docket No. 20-2 at 25-29). The report identifies certain electrical deficiencies at LSF-B1. A chart titled “BUILDING — FIRE RISK MANAGEMENT SURVEY” identifies electrical deficiencies including frayed and improper wiring. (Id. at 25)." }, { "docid": "19875390", "title": "", "text": "due to faulty wiring, grounding, and/or other aspects of the electrical systems.” (Id. at 19). It is also alleged that KBR was contractually obligated to fix the electrical problems at LSFB1 under the LOGCAP III contract and the Task Orders issued thereunder, that the Defense Contract Management Agency instructed and authorized KBR to repair the electrical problems, but that despite this obligation, KBR did not fix, otherwise make safe or warn U.S. troops of the hazardous condition at LSFB1. (Id. at 20-22). Further, KBR continued to permit U.S. troops, including Staff Sergeant Maseth, to utilize the faulty electrical, shower and water systems without warnings or safe alternatives, despite its knowledge of the problems and prior instances of electrocution. (Id. at 23-24). III. PROCEDURAL HISTORY On March 24, 2008, Plaintiffs filed their initial complaint against KBR in the Court of Common Pleas of Allegheny County, Pennsylvania. (Docket No. 1-3). The Complaint was then removed to this Court by KBR on April 22, 2008. (Docket No. 1). Thereafter, KBR filed a Motion to Seal its brief in support of a motion to dismiss (Docket Nq. 16), which was granted by the Court (Docket No. 17). On May 23, 2008, KBR filed the pending Motion to Dismiss (Docket No. 18) and its Memorandum in Support of its Motion to Dismiss under seal (Docket No. 20). Attached to KBR’s motion were several sealed exhibits including declarations provided by government and KBR employees as well as pertinent Army Regulations and facilities standards. (Id.). After receiving leave of Court, on June 2, 2008, KBR filed a sealed supplemental brief entitled Corrected Exhibit 2 and Subsequent History of Cited Case. (Docket No. 23). On June 26, 2008, Plaintiffs responded by filing their Brief in Opposition to KBR’s Motion to Dismiss and appendix.. (Docket No. 28). After receiving an extension of time from the Court and permission to file its brief under seal, KBR filed its sealed Reply brief on July 18, 2008. (Docket No. 35). Plaintiffs then filed their Sur-Reply Brief in Opposition to KBR’s motion to dismiss on August 12, 2008. (Docket No. 45). On August" }, { "docid": "20394862", "title": "", "text": "the Court understands that KBR’s position in this litigation is that the Army was allegedly negligent in its decisions and actions related to housing soldiers in Iraqi buildings with known substandard electrical systems. By advancing the causation law under the Iraqi Civil Code, KBR argues that if that law were applied, the Army’s negligence would subsume its own negligence, if any. But, as this Court has recognized in its prior decisions, Plaintiffs allege that KBR was negligent not only in its failure to act and to warn Staff Sergeant Maseth of known electrical hazards, but also for its negligent performance of maintenance services on LSF-B1 and the malfunctioning water pump. (See Docket No. 209). The evidence previously presented to the Court suggests that KBR fixed the actual water pump on more than one occasion and was aware that it had caused other soldiers to be shocked in the same shower where Staff Sergeant Maseth was killed. See Harris, 618 F.Supp.2d at 413-14. Thus, while Plaintiffs’ failure to act and/or warn claims may be implicated by the stated Iraqi policy, it does not appear to apply to the negligent performance claims. Iraq’s interest in applying its law in this case is also questionable, at best. KBR argues generally that Iraqi has a strong interest in applying its laws to government contractors given the language in the recent Status of Forces Agreement removing the immunities previously afforded to government contractors and to situations wherein wrongful conduct occurs within its borders. (Docket Nos. 216, 221). KBR also implies that Iraq’s laws are designed to foster investment in its nation by foreign companies, such as KBR, and to encourage such businesses to operate in Iraq. (Id.). This Court, however, does not believe that any of the interests identified by KBR further the assumed policies underlying Iraq’s causation laws, i.e., to protect a second negligent actor from liability when the first actor’s negligence would have caused the harm without the second act. None of the parties to this dispute are from Iraq, although the alleged tortious activity and harm occurred within a military base positioned" }, { "docid": "20394914", "title": "", "text": "33.004, was never raised in its initial briefing. (Docket Nos. 215, 216, 220, 229). By virtue of the Court’s Order expressly reserving the parties’ respective rights to litigate which of the states’ laws apply, KBR will be given another opportunity to argue that Texas law, including Texas Civil Practices and Remedies Code § 33.004, should be applied at the appropriate time. However, reconsideration of the prior order is not warranted on this basis at this time. 3. The Court Relied on Erroneous Statements of Fact KBR also maintains that the Court relied on an erroneous finding of fact in support of its decision, i.e., that “[t]/ie evidence previously presented to the Court suggests that KBR fixed the actual water pump on more than one occasion and was aware that it had caused other soldiers to he shocked in the same shower where Staff Sergeant Maseth was killed. See Harris, 618 F.Supp.2d at 413-14.” Harris, 796 F.Supp.2d at 661, 2011 WL 2462486, at *15 (emphasis added). As recognized by the citation above, this statement is supported by the Court’s Memorandum Opinion denying KBR’s motion to dismiss, wherein the Court found that: After the February 10, 2007 TI was completed, several service order requests were made to KBR regarding maintenance issues at the LSF-B 1 building. Some of these are relevant to the instant case. Specifically, Sergeant First Class Justin Hummer was housed in the same living quarters as Staff Sergeant Maseth at the RPC immediately prior to Staff Sergeant Maseth. (Docket No. 28-2 at 8). He lived at LSF-B1 from June 2007 to October 2007. (Id.). SFC Hummer was shocked four to five times while using the shower in the same restroom in which the electrocution of Staff Sergeant Maseth occurred. (Id.). SFC Hummer testifted that each time he was shocked, a service order request was filled out and presented to the Mayor’s Cell. (Hummer Deposition 8/21/08, Defendant’s Exhibit 8 to 8/27/08 Motion Hearing (“Hummer Deposition”) at 67). KBR representatives responded to each of these requests and completed the maintenance services. (Id. at 67-68). During these maintenance calls, KBR inspected the" }, { "docid": "19875387", "title": "", "text": "A report titled “HAZARD/DEFICIENCY INSPECTION RECORD” states that Kitchen Room B has “spliced wires near stove/ oven” and that Room H had a “Hot Water Heater hard wired into outlet” and “Dryer unit hard wired into outlet.” (Id. at 27). Both of these documents were signed by Staff Sergeant Maseth as Fire Marshall. (Id. at 25, 27). 11. January 2, 2008 Incident The parties do not dispute that, on January 2, 2008, Staff Sergeant Maseth was electrocuted while showering in his living quarters in building LSF-B 1 at the RPC. Staff Sergeant Maseth’s exposure to electric current caused him to suffer cardiac arrest, which resulted in his death. The source of the electric current was determined to be a water pump located on the roof of LSF-B1. The United States Army Criminal Investigation Laboratories engaged Kevin Kennedy & Associates to analyze the water pump in question and identify the problems that led to its malfunction. (Docket No. 137-2 at 1). That firm prepared a report dated May 7, 2008. (Id.). The findings in the report generally indicate that the water pump overheated and failed and that this was likely caused by long term overload of the motor. (Id. at 10). In addition, problems were identified with the grounding of the water pump including that it was not properly grounded upon installation and did not have a safety ground. (Id.). B. Plaintiffs’Allegations At the time of his death, Staff Sergeant Ryan D. Maseth was serving his second, tour in Iraq as an “active duty Army Ranger and Green Beret, serving in the 5th Special Forces Group (Airborne) of the United States Army.” (Docket No. 1-3 at 6, 7). Staff Sergeant Maseth was stationed in Baghdad, Iraq, at the RPC. (Id. at 8). Plaintiffs allege that the RPC was one of the facilities for which KBR was responsible, and that KBR “undertook an inspection and survey of the facilities at the RPC and, specifically, Staff Sergeant Maseth’s building known as LSFB1.” (Id. at 10-11). During said inspection, it is alleged that KBR “discovered hazardous conditions stemming from the improper grounding of electrical" } ]

[ { "docid": "18774777", "title": "", "text": "constitutional violation warranting reversal on collateral attack. Smith, 718 F.2d at 1276. Consequently, our inquiry here is directed at whether, and to what extent, the instructions given in this case may have led the jury to evaluate Murphy’s guilt under a reasonable doubt standard below that commanded by the Constitution. A. The Standard of Review At the outset, we recognize that challenged jury instructions “may not be viewed in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); accord Smith, 718 F.2d at 1276. On collateral attack of a state conviction, the role of the reviewing court is limited and the inquiry is narrow. Smith, 718 F.2d at 1276. More precisely, “the question in ... a collateral proceeding is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ not merely whether ‘the instruction is undesirable, erroneous or even universally condemned.’ ” Id. (quoting Cupp, 414 U.S. at 146, 147, 94 S.Ct. at 400, 401) (citations omitted). Unless the jury instruction renders the trial “fundamentally unfair,” there is no entitlement to habeas corpus relief. Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983). B. Application of the Standard of Review Murphy limits his challenge of the jury charge to instructions two, three, and four. The portion of instruction number two to which Murphy objects informed the jury that [a] reasonable doubt does not mean a vague, fanciful or imaginary doubt. It means doubt based on reason ... a doubt for which a reason can be given____ A reasonable doubt is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause. (JA 841). An instruction that a reasonable doubt is “a doubt for which a reason can be given” merely conveys what is already axiomatic from the plain meaning of those very words. Except in rare cases, a doubt for which no reason can be given" } ]

[ { "docid": "12464670", "title": "", "text": "give an instruction on the meaning of reasonable doubt. Commonwealth v. Stellberger, 25 Mass.App.Ct. 148, 149, 515 N.E.2d 1207 (1987). . The Commonwealth argues that our standard of review in this case is circumscribed because we are reviewing a state criminal proceeding rather than a federal case. We agree that, in this situation, the question is \"not merely whether 'the instruction is undesirable, erroneous!,] or even universally condemned,’ ” Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir.1983) (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)), but \"whether the challenged aspects of the charge so infected the entire charge and trial as to cause the jury to evaluate petitioner's guilt or innocence under a standard less than ‘beyond a reasonable doubt,’\" Bumpus v. Gunter, 635 F.2d 907, 909 (1st Cir.1980). Our conclusion, however, is that the challenged instructions did so infect the entire charge and trial. We also note that \"the fact that a constitutional right is implicated permits reference to federal precedents for the determination ... of whether a violation occurred....” Dunn v. Perrin, 570 F.2d 21, 25 n. 7 (1st Cir.1978). . In Commonwealth v. Garcia, 379 Mass. 422, 442, 399 N.E.2d 460, 472-473 (1980), the Massachusetts Supreme Judicial Court held that an error in the reasonable doubt charge was harmless in light of the \"overwhelming evidence of guilt.” Garcia presents no unusual circumstances suggesting that the harmless error doctrine might have been appropriate in that situation, and we therefore disagree with the SJC’s conclusion. We reiterate that federal law, not state law, governs our determination of matters relating to federal constitutional violations. See supra note 7. See also Garcia, 379 Mass. at 445-446, 399 N.E.2d 460 (dissenting opinion of Lia-cos, J.) (disagreeing that an erroneous charge on reasonable doubt can constitute harmless error). . Although the testimony of the victim, Neil Hirons, was detailed and substantiated in certain particulars by other witnesses, petitioner did not testify and the jurors therefore heard only the victim’s account of the origins of the conflict between the two men." }, { "docid": "18865460", "title": "", "text": "and actual prejudice, the petitioner’s present claim is not an appropriate subject for federal habeas corpus, and accordingly, petitioner’s fourth ground as a basis for habeas corpus relief is DENIED. V. Petitioner’s final ground concerns the fact that state’s instructions Nos. 4 and 5 were given to the jury over defense objection. Petitioner claims that these instructions “. . . permitted the jury to presume that the defendant was (1) sane at the time of the alleged offense, and (2) that he possessed the requisite criminal intent at the time of the offense in violation of his constitutional rights. However, it is clear that Jacks was not denied any constitutional rights as a result of the giving of state’s instructions Nos. 4 and 5. These instructions are set out in Jacks v. State, Ind., 394 N.E.2d 166, 174 (1979). Questions concerning instructions are normally matters of state law and are not cognizable in federal habeas corpus. Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Chance v. Garrison, 537 F.2d 1212 (4th Cir. 1976); Manning v. Rose, 507 F.2d 889 (6th Cir. 1974). Only where the giving of an instruction is so prejudicial as to amount to a violation of due process and fundamental fairness will a habeas corpus claim lie. 28 U.S.C. § 2254(a); Henderson v. Kibbe, supra; United States ex rel. Smith v. Fogel, 403 F.Supp. 104 (N.D.Ill. 1975). In Henderson v. Kibbe, supra, the Supreme Court of the United States made the following relevant observations: “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process,’ Cupp v. Naughton, 414 U.S., at [141,] 147, 94 S.Ct., at [396,] 400, 38 L.Ed.2d 368, not merely whether ‘the instruction is undesirable, erroneous or even “universally condemned,” ’ Id., at" }, { "docid": "14344872", "title": "", "text": "1691, 1692, 48 L.Ed.2d 126 (1976). However, in judging whether the state has transgressed constitutional bounds, a federal court sitting in habeas exercises a limited role. When, as here, a collateral attack on a state conviction is premised on an assertedly erroneous jury instruction, that instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Moreover, the question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, Cupp v. Naughten, 414 U.S. at 147 [94 S.Ct. at 400], not merely whether ‘the instruction is undesirable, erroneous or even universally condemned,’ id. at 146 [94 S.Ct. at 400].” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983); see Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). The petitioner first challenges that portion of Instruction No. 7 equating “reasonable doubt” with “good and substantial doubt.” Appellate courts that have considered similar “restatements” of the reasonable doubt standard have been uniformly disapproving of such attempts to elaborate on the critical concept, see, eg., Whiteside v. Parke, 705 F.2d 869, 871 (6th Cir.1983); United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir.1982); United States v. Rodriguez, 585 F.2d 1234, 1240-42 (5th Cir.1978), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), modified on other grounds sub nom. Albernaz v. United States, 612 F.2d 906 (1980) (en banc), aff’d, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Dunn v. Perrin, 570 F.2d 21, 23 (1st Cir.1978); see also Taylor v. Kentucky, 436 U.S. 478, 488, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468 (1978), and often remind trial courts that “[attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.’ ” Whiteside v. Parke, 705 F.2d" }, { "docid": "14096873", "title": "", "text": "federal habeas corpus absent a showing that “the jury charge deprived the defendant of a federal constitutional right.” Id (citing Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990)). The standard of review of state jury instructions in a habeas petition is “not whether ‘the instruction is undesirable, erroneous or even universally condemned [but whether] the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” Id (quoting Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978) (quoting Cupp v. Naughten, 414 U.S. 141, 146-7, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973))); see also Blazic, 900 F.2d at 541. Moreover, any allegedly erroneous jury instruction should be reviewed in light of the “well established proposition that a single instruction to a single jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp, 414 U.S. at 146-47, 94 S.Ct. 396. As a threshold matter, petitioner argues generally that the jury charge resulted in a denial of due process, but he presents no “clearly established federal law” that the state court violated, and his claim must fail on that ground alone. Moreover, he is wrong in his allegation that the instructions were erroneous. Petitioner cites to no New York state cases that would support his claim that the instructions were erroneous, other than to claim that the overall “instruction on how the jury should evaluate the evidence offered by the State consisted on [sic] ‘bare-bones’, which in itself is a reversible error under state law.” (Pet. Mem. at 66) (citing People v. Gaines, 80 A.D.2d 561, 435 N.Y.S.2d 346 (N.Y.App.Div.1981) (holding that in the context of that case, “the trial court’s failure to give something more than a bare-bones charge on the sole issue of identification was error”)). Here, the jury instructions regarding identification were far from “bare-bones” and contained no apparent errors. The trial court instructed the jury that: [T]he People have the burden of proving to your satisfaction beyond a reasonable doubt not only all the essential elements of the crime, but also that" }, { "docid": "15044999", "title": "", "text": "was sufficient to establish intent.” Id. at 403, 547 N.Y.S.2d 620, 546 N.E.2d 913. The court refused to give any further instructions, stating that its revised charge corrected the matter to which defense counsel had objected. Id. In order to obtain a writ of habeas corpus in federal court based on an error in the state court’s instructions to the jury on a matter of state law, the petitioner must show that the error violated a right guaranteed by federal constitutional law. Cupp v. Naughten, 414 U.S. at 146, 94 S.Ct. at 400; Casillas v. Scully, 769 F.2d 60, 63 (2d Cir.1985); see Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990). The issue is not whether the instruction is “undesirable, erroneous, or even ‘universally condemned,’ ” Cupp v. Naughten, 414 U.S. at 146, 94 S.Ct. at 400, “but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400. See Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978); Colon v. Smith, 723 F.Supp. 1003, 1009 (S.D.N.Y.1989). Thus, the Supreme Court has stated: We have long recognized that a “mere error of state law” is not a denial of due process. Gryger v. Burke, 334 U.S. 728, 731 [68 S.Ct. 1256, 1258, 92 L.Ed. 1683] (1948). If the contrary were true, then “every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question.” Ibid. Engle v. Isaac, 456 U.S. 107, 121 n. 21, 102 S.Ct. 1558, 1568 n. 21, 71 L.Ed.2d 783 (1982). See also Victory v. Bombard, 570 F.2d 66, 69 n. 3 (2d Cir.1978) (“The Supreme Court has made it clear that errors in instructions to the jury rarely rise to a constitutional level”) In responding to a jury’s request evidencing difficulties in comprehending the elements of an offense, the trial court is obligated to “clear [the difficulties] away with concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). However, no error need be" }, { "docid": "6982963", "title": "", "text": "wrong sentencing statute was harmless error, the Eighth Circuit held that sentencing under a statute which was not in force when petitioner committed his offenses, violated the ex post facto clause of the Constitution. Id. at 378, 380. The court added that sentencing a defendant under the wrong statute may itself be a due process violation when the jury’s proper discretion is impaired. Id. at 380, n. 14. (citing Hicks ). B. Standard for reversal for instructional error on habeas review Instructional error will not support a petition for federal habeas relief unless it is shown “not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), but that “the ailing instruction by itself so infected the entire trial that the resulting 'conviction violates due process.” Id. at 147, 94 S.Ct. 396. This standard for instructional error applies to ambiguous or omitted instructions. Murtishaw’s circumstance is different because the trial court applied the wrong statute. Hicks was not a habeas case and did not apply this rigorous standard. Jones was a habeas case challenging an instruction in sentencing and applied harmless error review, but did not apply the instructional error standard discussed here. Our Court, however, has applied the Cupp standard to instructions given at the sentencing phase. See Jeffries v. Blodgett, 5 F.3d 1180,1195 (9th Cir.1993). ‘ Henderson y. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) stated the rarity of the case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. The burden of demonstrating that an erroneous instruction was so prejudicial that it Mil support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction itself violates due process,” not merely whether “the instruction is undesirable," }, { "docid": "14344871", "title": "", "text": "that the state prove every element of an offense beyond a reasonable doubt, provides the touchstone for evaluating the challenged instruction. After noting that the reasonable doubt standard is a “prime instrument for reducing the risk of convictions resting on factual error,” the Court in Winship emphasized that the standard is “indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ ” Id. at 363-64, 90 S.Ct. at 1072; see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (an instruction altering the burden of proof provides a ground for habeas corpus relief). In view of the central role that the reasonable doubt standard plays “[i]n the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 [90 S.Ct. 1068, 1072, 25 L.Ed.2d 368] (1970).” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). However, in judging whether the state has transgressed constitutional bounds, a federal court sitting in habeas exercises a limited role. When, as here, a collateral attack on a state conviction is premised on an assertedly erroneous jury instruction, that instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Moreover, the question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, Cupp v. Naughten, 414 U.S. at 147 [94 S.Ct. at 400], not merely whether ‘the instruction is undesirable, erroneous or even universally condemned,’ id. at 146 [94 S.Ct. at 400].” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983); see Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d" }, { "docid": "12061520", "title": "", "text": "can be inferred from all the circumstances.” In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which established the requirement that the state prove every element of an offense beyond a reasonable doubt, provides the basis for appellant’s contention of error. The Court in Winship, after noting that the reasonable doubt standard is a “prime instrument for reducing the risk of convictions resting on factual error,” emphasized that the standard is “indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’ ” Id. at 363-64, 90 S.Ct. at 1072 (citation omitted). However, in determining whether the state has transgressed constitutional bounds, a federal court sitting in habeas exercises a limited role. When, as here, a habeas challenge on a state conviction is premised on an assertedly erroneous jury instruction, “it must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.” Darnell v. Swinney, 823 F.2d 299, 302 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1012, 98 L.Ed.2d 978 (1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). We thus evaluate jury instructions “in the context of the overall charge to the jury as a component of the entire trial process.” Prantil v. California, 843 F.2d 314, 317 (9th Cir.), cert. denied, — U.S. -, 109 S.Ct. 158, 102 L.Ed.2d 129 (1988) (quoting Bashor v. Bisley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984)). Habe-as relief is warranted only if the erroneous instruction “so infected the entire trial that the resulting conviction violates due process.” Cupp, 414 U.S. at 147, 94 S.Ct. at 400. We are not persuaded that due process was denied by the instruction here challenged. The word “substantial” was never defined for the jury. The jury was never told that the word meant more, less, or the equivalent of “beyond" }, { "docid": "314047", "title": "", "text": "robber was armed, nor was the fact disputed at trial. In the absence of any evidence that would create a reasonable doubt about the presence of the gun, failure to instruct the jury on the state’s burden of proof was harmless error. C. No Due Process Denial A state prisoner may obtain federal habeas corpus relief only if he is held in custody in violation of the Constitution, laws, or treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983); 28 U.S.C. § 2254(a). Claims that merely challenge the correctness of jury instructions under state law cannot reasonably be construed to allege a deprivation of federal rights. Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986); Gutierrez, 695 F.2d at 1197. To prove a due process violation based on jury instructions, a habeas petitioner must show that the “instruction by itself ... infected the entire trial....” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); see Camitsch v. Risley, 705 F.2d 351, 355 (9th Cir.1983) (instruction that renders trial fundamentally unfair justifies habeas relief). Undesirable, erroneous, or even universally condemned instructions may survive due process scrutiny. Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. Pilón has failed to show a federal due process violation by the state trial court’s failure to give the separate deadly weapon instruction. The failure to give that instruction did not infect Pilon’s trial nor render it fundamentally unfair. Cam-itsch, 705 F.2d at 355; see Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. The judgment is AFFIRMED. . Although we have at least twice limited our review to those issues to which a district court has limited a certificate of probable cause, we have not squarely addressed the issue of whether we are bound by such a limitation. See United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (9th Cir.1972) (per curiam);" }, { "docid": "3980914", "title": "", "text": "was denied for failure to exhaust state remedies. Tarpley v. Estelle, No. CA1-80-26 (N.D. Tex. Aug. 5, 1980). I. Tarpley faces an extraordinarily heavy burden. Improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of the state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977) (footnote omitted). “Before a federal court may grant relief under 28 U.S.C. § 2254 based on alleged error in a state trial court’s unobjected to charge, the error must be so egregious as to rise to the level of a constitutional violation or so prejudicial as to render the trial itself fundamentally unfair.” Baldwin v. Blackburn, 653 F.2d 942, 951 (5th Cir. 1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982); Bryan v. Wainwright, 588 F.2d 1108, 1110-11 (5th Cir. 1979). ***“ ‘[I]t must be established not only that the instruction [was] undesirable, erroneous, or even ‘universally condemned,’ but that it violated some right which was guaranteed to the defendant by the fourteenth amendment, and that ‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ” Washington v. Watkins, 655 F.2d 1346, 1369 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) (quoting Cupp, 414 U.S. at 146, 147, 94 S.Ct. at 400, 38 L.Ed.2d at 373); accord Hance v. Zant, 696 F.2d 940, 953 (11th Cir.1983). In applying these principles to the instructions in Tarpley’s case, we pay “careful attention to the words actually spoken to the jury, ... for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, 442" }, { "docid": "6845026", "title": "", "text": "of federal or state practice with respect to instructions on the subject of an alibi defense, see People v. Johnson, 37 A.D.2d 733, 323 N.Y.S.2d 880 (2d Dept. 1971), the issue upon this review of a decision on a federal habeas petition is not whether the state court’s “instruction is undesirable, erroneous, or even ‘universally condemned,’ ” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1970), but whether “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400. See also United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975) (state court jury charge is a matter of state law, and alleged errors are not reviewable on federal habeas corpus absent showing that defendant was deprived of a federal constitutional right). Petitioner’s burden in meeting the Cupp v. Naughten standard is particularly heavy for the reason that unlike the situation in Burse, Booz and Johnson, supra, defense counsel neither submitted a proposed alibi charge to the trial court nor objected to the instruction that was given. The Supreme Court recently stated: “Orderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). (Footnotes omitted). Defense counsel at trial merely requested that an alibi charge be given without submitting any suggested text. When asked whether he took exception to the charge that was given, defense counsel unambiguously responded in the negative. Counsel then sought and obtained a clarifying instruction, which essentially tracks the heart of the proposed alibi instruction in the standard federal practice book. See 1 Devitt & Blackmar, Federal Jury Practice and Instructions," }, { "docid": "19660870", "title": "", "text": "comments. Petitioner is not entitled to habeas relief based on his third claim. D. Claim 4. Petitioner next claims that the trial court erred in failing to instruct that the prosecution had the burden of proving the absence of heat of passion beyond a reasonable doubt in order to convict petitioner of second degree murder rather than voluntary manslaughter. Before a federal court may overturn a conviction resulting from a state trial, it must be established not merely that the jury instruction given was undesirable, erroneous, or even universally condemned’, but that it violated some right guaranteed to petitioner under the Fourteenth Amendment. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); See also Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The question on habeas review is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process”. Cupp, supra 414 U.S. at 147, 94 S.Ct. 396. Petitioner’s claim that the instructions as provided by the trial court were incorrect is barred by his procedural default due to trial counsel’s failure to object to the jury instructions as they were given by the trial court. When the state courts “clearly and expressly” rely on a valid state procedural rule to bar appellate review of a federal constitutional claim, federal habeas review of the claim is also barred unless petitioner can demonstrate cause-for the default and actual prejudice as a result of the. alleged constitutional violation, or can demonstrate that failure to consider the claim will result in “a fundamental miscarriage of justice.” Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If petitioner fails to show cause for a procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 134.n. 43, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Petitioner has not attempted to set forth any cause to explain his state procedural default. Ineffective assistance" }, { "docid": "14096872", "title": "", "text": "immediately following the crime than they were fourteen months later at the trial, (T at 412), that the supplemental instructions advising the jury that they could consider the testimony of Fischler and Karatas about the petitioner’s presence in the King Kullen store on the night of March 7 allowed the jury to convict the petitioner based “only” on whether he was in the King Kullen on the earlier date, without reference to his presence in the store on the date of the crime, (Id at 425; Pet. Mem. at 64-66), that the “charge changed the theory of the prosecution’s case,” (Pet. Mem. at 65). Like claims about inadmissible evidence, claims based on errors in jury instructions are matters of state law that do not ordinarily raise federal constitutional questions. See McEachin v. Ross, 951 F.Supp. 478, 483 (S.D.N.Y.1997) (“Mere questions of state law are not grounds for federal habeas relief.”) (citing Estelle, 502 U.S. at 67-68, 112 S.Ct. 475). Errors in state jury charges are questions of state law and are therefore not reviewable on federal habeas corpus absent a showing that “the jury charge deprived the defendant of a federal constitutional right.” Id (citing Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990)). The standard of review of state jury instructions in a habeas petition is “not whether ‘the instruction is undesirable, erroneous or even universally condemned [but whether] the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” Id (quoting Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978) (quoting Cupp v. Naughten, 414 U.S. 141, 146-7, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973))); see also Blazic, 900 F.2d at 541. Moreover, any allegedly erroneous jury instruction should be reviewed in light of the “well established proposition that a single instruction to a single jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp, 414 U.S. at 146-47, 94 S.Ct. 396. As a threshold matter, petitioner argues generally that the jury charge resulted in a denial of due process, but he" }, { "docid": "23527125", "title": "", "text": "reasons, other than consciousness of guilt, for his flight. Karis testified at trial that he fled because of his parole status and defense counsel argued this to the jury. Instructional error will not support a petition for federal habeas relief unless it is shown “not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” but that by itself the instruction “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Karis has not made such a showing based on his allegations of instructional error. Many instructions were given regarding the evaluation of witness testimony and evidence generally. The instructions that Karis challenges could also have worked to his benefit to alleviate potential prejudice from consideration of his previous conviction and parole status, as could the flight instruction which clarified that flight alone is insufficient to establish guilt. These instructions did not direct the jury to ignore Karis’ explanation for his flight. The challenged instructions did not render Karis’ guilt trial fundamentally unfair and, thus, did not violate due process. Furthermore, even assuming Karis could meet that standard, which he did not, Kar-is’ claims of instructional error fail to establish a constitutional violation that had a substantial and injurious influence on the jury’s verdict. See Brecht, 507 U.S. at 638, 113 S.Ct. 1710. F. Cumulative Error Although no single alleged error may warrant habeas corpus relief, the cumulative effect of errors may deprive a petitioner of the due process right to a fair trial. See Ceja v. Stewart, 97 F.3d 1246, 1254 (9th Cir.1996). That is not the case here. Karis has not shown the cumulative effect of the alleged errors deprived him of due process. See id. II. Penalty Phase Claims A. Ineffective Assistance of Counsel Ineffective assistance of counsel (“IAC”) claims involve a two-part inqui ry. Under Strickland, Karis must show that his counsel’s performance was deficient, that is whether his performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In representing his" }, { "docid": "6020078", "title": "", "text": "form a basis for habeas corpus relief.” Brouilette v. Wood, 636 F.2d 215 at 218 (8th Cir. 1980). See also Davis v. Campbell, 608 F.2d 317, 319 (8th Cir. 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975). And, as the Supreme Court has stated “[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). In Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) the Supreme Court focused on the role of a federal habeas court when reviewing state jury instructions. The Court stated: [I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment. * * * [W]e accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107, [46 S.Ct. 442, 443, 70 L.Ed. 857] (1926). [However] this does not mean that an instruction by itself may never rise to the level of constitutional error. * * * * * * [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Id. 414 U.S. at 146-47, 94 S.Ct. at 400. While Cupp v. Naughten cautions us not to view an instruction in isolation, the Supreme Court in Sandstrom noted that other instructions do not necessarily mitigate the damaging effect of a conclusive or burden-shifting presumption. The Sandstrom opinion indicates that instructions regarding the presumption of innocence and burden of proof are “not rhetorically inconsistent with a conclusive or" }, { "docid": "6386613", "title": "", "text": "the Miller “examples.” Moreover, defendant did not object to the giving of the Miller guidelines without the Miller “examples.” In Henderson v. Kibbe, 431 U.S. 145, 154-55, 97 S.Ct. 1730, 1736-1737, 52 L.Ed.2d 203 (1977), the Court reversed a decision of the Second Circuit wherein a divided panel had granted a state prisoner’s petition for habeas corpus on the ground that a New York state trial judge’s failure to instruct the jury on the issue of causation was constitutional error. The Court observed: Orderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. The Court further noted that “an omission or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” The Court announced the rule that is controlling here: The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. [144] at 147 [94 S.Ct. 396, at 400, 38 L.Ed.2d 368], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned’.” Id., at 146 [94 S.Ct., at 400], This controlling rule of federal habeas corpus law differs from the magistrate’s recommended ruling, isolating, as he did, the judge’s instructions from the rest of the trial and determining that the court’s instructions were unconstitutionally incomplete. However, the question in this federal habeas corpus proceeding is not whether Judge Calandra’s instruction to the jury, sans a definition of “sexual conduct” in terms of the two" }, { "docid": "18865461", "title": "", "text": "(4th Cir. 1976); Manning v. Rose, 507 F.2d 889 (6th Cir. 1974). Only where the giving of an instruction is so prejudicial as to amount to a violation of due process and fundamental fairness will a habeas corpus claim lie. 28 U.S.C. § 2254(a); Henderson v. Kibbe, supra; United States ex rel. Smith v. Fogel, 403 F.Supp. 104 (N.D.Ill. 1975). In Henderson v. Kibbe, supra, the Supreme Court of the United States made the following relevant observations: “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process,’ Cupp v. Naughton, 414 U.S., at [141,] 147, 94 S.Ct., at [396,] 400, 38 L.Ed.2d 368, not merely whether ‘the instruction is undesirable, erroneous or even “universally condemned,” ’ Id., at 146, 94 S.Ct., at 400.” Id., 97 S.Ct. at 1736-1737. In this case, the giving of state’s instructions Nos. 4 and 5 was not a violation of a fundamentally fair trial. Regarding state’s instruction No. 4, the Supreme Court of Indiana determined that, although the instruction was unnecessary, it was “. . .a reasonable explanation in view of all the other instructions, including court’s instruction number twenty-two, and was to be considered by the jury in conjunction with all other instructions.” Jacks v. State, supra, at 174. It is, of course, axiomatic that instructions must be viewed as a whole. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The court had previously found that instruction No. 22 was a correct statement of the law concerning the sanity issue. Id., at 173-174. Accordingly, the court found no error in the giving of the instruction. Id., at 174. Moreover, an examination of the instruction reveals that it did not require the jury to presume anything regarding petitioner’s insanity defense or his intent." }, { "docid": "12888602", "title": "", "text": "paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudical, for the jury might have followed the erroneous instructions.” United States v. Walker, 677 F.2d 1014, 1016 n. 3 (4th Cir.1982), quoting McFarland v. United States, 174 F.2d 538, 539 (D.C.Cir. 1949). In collateral review of a jury charge, the court can grant relief only if a stringent standard is met by the petitioner: that of demonstrating that “the offending instruction is so oppressive as to render a trial fundamentally unfair.” Adkins v. Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va. 1981), aff’d, 674 F.2d 279 (4th Cir.1982). The Supreme Court recently stated, in a case in which the petitioner’s claim, like Cooper’s, was that an omission in the jury charge constituted error, that [t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. [141] 147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id. at 146 [94 S.Ct. at 400]. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). It is apparent that to afford Cooper relief this court must find that he has carried a very heavy burden of persuasion. III. Cooper’s primary objection to the trial judge’s jury instructions is the latter’s" }, { "docid": "3058688", "title": "", "text": "to determine that it was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 22-23, 87 S.Ct. at 827-828. The application of this standard to federal habeas review of a state criminal conviction involving defective jury instructions was explained by the Supreme Court in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977): “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ Cupp v. Naughten, 414 U.S., [141] at 147 [94 S.Ct., 396 at 400, 38 L.Ed.2d 368] ..., not merely whether ‘the instruction is undesirable, erroneous, or even “universally condemned,” ’ id., at 146 [94 S.Ct., at 400] Id. at 154, 97 S.Ct. at 1 (emphasis added) (footnote omitted). See Gillihan v. Rodriguez, 551 F.2d 1182, 1192 (10th Cir.), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977). These standards are also used to determine the effect of the failure to instruct the jury on an element of the crime. Kibbe, 431 U.S. at 153-57, 97 S.Ct. at 1736-1738. The omission must be evaluated in the context of the entire record, including testimony and the argument of counsel. Id. at 152, 97 S.Ct. at 1735. Although we do not agree with all of the state court of criminal appeals’ fact findings or its use of some items not in evidence to support its determination of harmless error, we nonetheless conclude beyond a reasonable doubt that the omitted instruction did not affect the verdict in this case. Our review of the entire record convinces us that the omitted instruction did not so infect the entire trial that the resulting conviction violated due process. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736. The jury was told in the State’s closing argument that it had to" }, { "docid": "683971", "title": "", "text": "credibility and the weight to be given the evidence were jury questions. “It is not for the trial judge to assess the credibility of witnesses, to resolve conflicts in testimony or to weigh the evidence, as these are jury functions.” United States v. Beran, 546 F.2d 1316, 1320 n. 5 (8th Cir. 1976), cert. den. 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977). That we have found that there was evidence supporting instructions on excusable and justifiable homicide, however, is an insufficient ground to grant relief in this petition. We must find that refusing such instructions was constitutional error. (O)rdinarily habeas corpus being a collateral attack is not considered to be a proper remedy for correcting errors in trial procedure. . . . It is only where the trial errors or irregularities infringe upon a specific constitutional protection or are so prejudicial as to amount to a denial of due process that a justiciable federal issue is presented in a habeas corpus proceeding. Atwell v. State of Arkansas, 426 F.2d 912, 915 (8th Cir. 1970), cited in, e. g., Ball v. Wyrick, 547 F.2d 78 (8th Cir. 1977); Hogan v. State of Nebraska, 535 F.2d 458 (8th Cir. 1976); Maggitt v. Wyrick, 533 F.2d 383 (8th Cir. 1976). “Claimed errors in instructions to the jury are generally not of such constitutional magnitude and do not state a claim for habeas corpus relief.” DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975). This does not mean, however, that error in giving instructions can never rise to constitutional dimensions. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). See also Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972). The Supreme Court has stated that the test is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400. The test in this case could be stated as whether , the absence of instructions so infected the entire trial. Additional" } ]

[ { "docid": "22537054", "title": "", "text": "the meaning of the applicable Guideline.” There, the District Court had departed upward from the Guidelines’ sentencing range based on prior arrests that did not result in criminal convictions. A policy statement, however, prohibited a court from basing a départure on a prior arrest record alone. USSG §4A1.3, p. s. We held that failure to follow the policy statement resulted in a sentence “imposed as a result of an incorrect application of the sentencing guidelines” under 18 U. S. C. § 3742(f)(1) that should be set aside on appeal unless the error was harmless. 503 U. S., at 201, 203. In the case before us, the Court of Appeals determined that these principles do not apply to commentary. 957 F. 2d, at 814-815. Its conclusion that the commentary now being considered is not binding on the courts was error. The commentary added by Amendment 433 was interpretive and explanatory of the Guideline defining “crime of violence.” Commentary which functions to “interpret [a] guideline or explain how it is to be applied,” USSG § 1B1.7, controls, and if failure to follow, or a misreading of, such commentary results in a sentence “seleet[ed]. . . from the wrong guideline range,” Williams v. United States, supra, at 203, that sentence would constitute “an incorrect application of the sentencing guidelines” under 18 U. S. C. § 3742(f)(1). A Guideline itself makes this proposition clear. See USSG § 1B1.7 (“Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal”). Our holding in Williams dealing with policy statements applies with equal force to the commentary before us here. Cf. USSG § 1B1.7 (commentary regarding departures from the Guidelines should be “treated as the legal equivalent of a policy statement”); § 1B1.7, comment. (“Portions of [the Guidelines Manual] not labeled as guidelines or commentary ... aré to be construed as commentary and thus have the force of policy statements”). It does not follow that commentary is binding in all instances. If, for example, commentary and the guideline it interprets are inconsistent in that following one will" } ]

[ { "docid": "16964084", "title": "", "text": "4, and therefore should not have been counted as object offenses. We have not decided whether robberies may be counted as object offenses of a conspiracy when the conspiracy count under which defendant was convicted does not enumerate or list the robberies. The Government urges this court to follow the Second Circuit’s decision in United States v. Robles, which held that multiple robbery offenses may be treated as objects of a conspiracy under § lB1.2(d) even where the offenses were not specifically named in the conspiracy count. United States v. Robles, 562 F.3d 451, 455 (2d Cir.2009). We agree with our sister circuit’s interpretation of Application Note 4. The Second Circuit concluded that the emphasis of Application Note 4 was not “on the specificity of the conspiracy charge but on the standard of proof that must be satisfied” for the court to count an object offense towards the defendant’s offense level. Id. Further, because Application Note 4 specifically addresses situations where “the verdict ... does not establish which offense(s) was the object of the conspiracy,” if the Note “required that the objects of a conspiracy be specifically named in the conspiracy count of an indictment, it would be difficult to imagine the reason for this comment’s existence.” Id. (internal citation omitted). Accordingly, the district court did not err in counting the thirteen robbery offenses as object offenses of the conspiracy. 2. Substantive Unreasonableness Nathan argues that his sentence was substantively unreasonable because the district court made factual findings that Nathan committed the robberies; Nathan argues that the sentencing enhancement based on the findings of the district court violated his Sixth Amendment right to a jury trial, and therefore rendered his sentence substantively unreasonable. This claim is without merit. Application Note 4 to § lB1.2(d) provides that when “the verdict or plea does not establish which offense(s) was the object of the conspiracy,” an offense may be counted “with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense.”" }, { "docid": "16964099", "title": "", "text": "House, Admiral Gas Station on two occasions, Quality Dairy, and Flower World. PSR at 24-31. . We may look to the Application Notes for guidance. \"Commentary which functions to 'interpret [a] guideline or explain how it is to be applied,' controls, and if failure to follow, or a misreading of, such commentary results in a sentence 'select[ed] ... from the wrong guideline range, that sentence would constitute ‘an incorrect application of the sentencing guidelines’ under 18 U.S.C. § 3742(f)(1).” Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (internal citations omitted). . At the sentencing hearing, the district court relied on United States v. Bates, 552 F.3d 472, 477 (6th Cir.2009), noting that “even though Bates dealt with a slightly different issue ... the message of the case to me from the Sixth Circuit is the Sixth Circuit doesn't have any problem with the method.” R. 273 (Nathan Sent. Tr. at 15-16) (Page ID # 3067-68). We disagree with the district court's reading of this \"message” in Bates. The Bates defendant did not challenge the counting of robbery offenses as objects of the conspiracy, and we did not discuss or decide the propriety of that procedure when the conspiracy count does not list or enumerate the object offenses. . Henry’s plea agreement waived most appeal rights. However, the government can lose its right to assert waiver \"by failing to raise it in a timely fashion.” Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir.1998). Because the government does not assert that Henry is precluded from bringing this appeal, we need not determine if this issue is within the scope of Henry’s waiver of appellate rights." }, { "docid": "16964087", "title": "", "text": "to the sentence on procedural unreasonableness grounds after being given an adequate opportunity to do so. Henry Appellant Br. at 9-10. The district court began Henry’s sentencing hearing by stating the applicable Guidelines range; with an offense level of 29 and criminal history Category VI, the Guidelines range was 151 to 188 months of imprisonment. R. 291 (Henry Sent. Tr. at 10) (Page ID # 3181). The district court then discussed whether there were reasons for a variance based on the 18 U.S.C. § 3553(a) factors or a departure under § 5K1.1 based on Henry’s substantial assistance to authorities. Id. at 19 (Page ID # 3190). The district court concluded that Henry had provided substantial assistance that warranted an adjustment, but proceeded to discuss his concerns that Henry was the leader of the robbery conspiracy, was the “least believable” of the co-conspirators who provided testimony at trial, had lied to law enforcement, and had a criminal history beginning at age twelve. Id. at 22-27 (Page ID # 3193-98). The district court mentioned coconspirator Nathan’s sentence of 168 months and then sentenced Henry to 150 months of imprisonment. Id. at 29-30 (Page ID #3200-01). Henry argues that the district court was required to state the new Guidelines range that applied after granting the § 5K1.1 downward departure, and then to state specifically the amount of the upward variance from that new Guidelines range. However, we have held that “[t]here is no requirement that, after concluding that a departure is warranted, the court must specify a new, adjusted sentencing range.” United States v. Herrera-Zuniga, 571 F.3d 568, 588 (6th Cir.2009). A sentence may be procedurally unreasonable when the district court fails to identify “any specific, numeric Guidelines range at any point during the hearing.” United States v. Novales, 589 F.3d 310, 314 (6th Cir.2009) (emphasis added); see also Gall, 552 U.S. at 49, 128 S.Ct. 586 (stating that “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.... [T]he Guidelines should be the starting point and the initial benchmark.”). Here, however, the district court stated the Guidelines" }, { "docid": "16807267", "title": "", "text": "13 to section 2F1.1 states that if the indictment “establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2F1.1.” Id. § 2F1.1, comment, (n. 13) (Nov. 1989) (emphasis added). Thus, according to Applica tion Note 13, a defendant convicted of mail fraud can be sentenced under a different Guideline if the conduct comprising the mail fraud is “more aptly” punished under another Guideline, even one not listed in the Statutory Index for the convicted offense. Cf. United States v. Carrillo-Hernandez, 963 F.2d 1316, 1317-18 (9th Cir.1992) (applying Application Note 13); United States v. Castaneda-Gallardo, 951 F.2d 1451, 1452-53 (5th Cir.) (same), cert. denied, — U.S.-, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992); United States v. Obiuwevbi, 962 F.2d 1236, 1242 (7th Cir.1992) (same). Until recently, the authoritative weight a court needed to give the commentary to the Guidelines was disputed among the various courts of appeals. Unlike some other circuits, we recognized that “ [application notes are entitled to substantial weight and should be followed unless they conflict with the text” of the Guidelines. United States v. Woods, 976 F.2d 1096, 1102 (7th Cir.1992) (citations omitted). The United States Supreme Court has now resolved the conflict among the circuits: Guideline commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, the guideline.” Stinson v. United States, — U.S. -,-, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). In particular, Commentary which functions to “interpret [a] guideline or explain how it is to be applied” controls, and if failure to follow, or a misreading of, such commentary results in a sentence “select[ed] ... from the wrong guideline range,” that sentence would constitute “an incorrect application of the sentencing guidelines” under 18 U.S.C. § 3742(f)(1). Id. at 1917-18 (citations omitted). What has remained unchanged is that a “district court’s determination of which Guideline section to apply is a question of law we review de novo.” United States v. Johnson, 965 F.2d 460, 468 (7th Cir.1992). Based on the" }, { "docid": "22997106", "title": "", "text": "requires that Appellant give up constitutional rights and implicates due process. Defendants have no constitutional right to a “substantial assistance” departure. United States v. Harrison, 918 F.2d 30 (5th Cir.1990). The refusal to move for downward departure is reviewable only for unconstitutional motivation when sole discretion is _ retained. And, as recognized by this Court in United States v. Watson, 988 F.2d 544, 552 (5th Cir.1993), the implication of the principle of just return for giving up constitutional rights requires the existence of a plea bargain in which the Government bargains away its discretion. There can be no inducement when the Government retains sole discretion. Appellant’s due process challenge is without merit. Appellant also challenges the calculation of his sentence. A sentence based on the Sentencing Guidelines must be upheld unless the Appellant demonstrates that it was imposed in violation of the law, was imposed as a result of an incorrect application of the guidelines, or was outside the range of the applicable guidelines and was unreasonable. 18 U.S.C. § 3742(e). Because Aderholt asserts a ground of error not raised below, the judgment may be reversed only upon a finding of plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Calverley, 37 F.3d 160 (5th Cir.1994) (en banc). To determine Defendant’s base offense level, the district court grouped the four counts in the indictment, and pursuant to §§ 3D1.2 and 3D1.3, purported to choose the offense level for the most serious offense. The district court chose the offense level for murder because, relying on § 3D1.2 application note 8, § lB1.2(d) and § IB 1.2 application note 5, it concluded that murder was an object of the conspiracy. Section 3D1.2 application note 8 advises: A defendant may be convicted of conspiring to commit several substantive offenses ... In such cases, treat the conspiracy count as if it were several counts, each charging conspiracy to commit one of the substantive offenses. See § lB1.2(d) and accompanying commentary. Section lB1.2(d) states: A conviction on a count charging a conspiracy to" }, { "docid": "16964083", "title": "", "text": "commit the second robbery, and one count of conspiracy to commit the third robbery.” U.S.S.G. § lB1.2(d), cmt. n. 3 (2011). Application Note 4 to § lB1.2(d) urges: Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as .a trier of fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy count would be grouped together under § 3D1.2(d) (e.g., a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because § lB1.3(a)(2) governs consideration of the defendant’s conduct. U.S.S.G. § lB1.2(d), cmt. n. 4 (emphasis added). Nathan argues that the thirteen robberies were not “alleged in the conspiracy count” by the indictment or the plea under Application Note 4, and therefore should not have been counted as object offenses. We have not decided whether robberies may be counted as object offenses of a conspiracy when the conspiracy count under which defendant was convicted does not enumerate or list the robberies. The Government urges this court to follow the Second Circuit’s decision in United States v. Robles, which held that multiple robbery offenses may be treated as objects of a conspiracy under § lB1.2(d) even where the offenses were not specifically named in the conspiracy count. United States v. Robles, 562 F.3d 451, 455 (2d Cir.2009). We agree with our sister circuit’s interpretation of Application Note 4. The Second Circuit concluded that the emphasis of Application Note 4 was not “on the specificity of the conspiracy charge but on the standard of proof that must be satisfied” for the court to count an object offense towards the defendant’s offense level. Id. Further, because Application Note 4 specifically addresses situations where “the verdict ... does not establish which offense(s) was the object of the conspiracy,”" }, { "docid": "16964050", "title": "", "text": "R. 77 (Superseding Indictment) (Page ID # 129). After a joint trial, Ford and Per-due were convicted of all charges. R. 190 (Jury Verdict) (Page ID # 642). Ford was sentenced to 1,392 months of imprisonment, R. 255 (Ford Sent. Tr.) (Page ID # 2886, 2913), and now appeals his conviction and his sentence. Perdue was sentenced to 1,464 months of imprisonment, R. 256 (Perdue Sent. Tr.) (Page ID # 2920, 2943), and now appeals his conviction and his sentence. Defendant Nathan pleaded guilty to conspiracy to commit robbery affecting commerce. R. 129 (Nathan Am. Plea) (Page ID # 251). He was sentenced to 168 months of imprisonment, R. 273 (Nathan Sent. Tr.) (Page ID # 3053, 3094), and now appeals his sentence. Defendant Henry pleaded guilty to conspiracy to commit robbery affecting commerce. He was sentenced to 150 months of imprisonment, R. 291 (Henry Sent. Tr.) (Page ID # 3172, 3201), and now appeals his sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). II. EVIDENTIARY CLAIMS Ford and Perdue both challenge the admission of evidence regarding their gang affiliation and the impact of the robbery on a witness to the crime. Federal Rule of Evidence 401 provides that “[ejvidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R.Evid. 401. Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “Unfair prejudice ‘does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.’ ” United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999) (quoting" }, { "docid": "16807268", "title": "", "text": "the text” of the Guidelines. United States v. Woods, 976 F.2d 1096, 1102 (7th Cir.1992) (citations omitted). The United States Supreme Court has now resolved the conflict among the circuits: Guideline commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, the guideline.” Stinson v. United States, — U.S. -,-, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). In particular, Commentary which functions to “interpret [a] guideline or explain how it is to be applied” controls, and if failure to follow, or a misreading of, such commentary results in a sentence “select[ed] ... from the wrong guideline range,” that sentence would constitute “an incorrect application of the sentencing guidelines” under 18 U.S.C. § 3742(f)(1). Id. at 1917-18 (citations omitted). What has remained unchanged is that a “district court’s determination of which Guideline section to apply is a question of law we review de novo.” United States v. Johnson, 965 F.2d 460, 468 (7th Cir.1992). Based on the authoritative nature of Application Note 13, we determine that although the district court properly selected the Fraud and Deceit Guideline, section 2F1.1, from the Statutory Index, it erred in not applying the Antitrust Offenses Guideline, section 2R1.1, which more aptly covers the conduct with which the government charged the defendants in counts two and three of the indictment. Even though the defendants pleaded guilty, or were convicted, of mail fraud under counts two and three, the defendants’ fraud in those two counts was designed to conceal and further their price-fixing scheme. The mail fraud was not separable from the price-fixing conspiracy as it would have been, for example, had the defendants made fraudulent statements in letters concerning the quality or capacity of the new steel drums. In this case, the line between price-fixing and mail fraud is blurred because the government charged the defendants with almost the identical conduct in all three counts. Specifically, the government charged the defendants in the price-fixing count with, among other things, issuing price lists to customers, exchanging price lists" }, { "docid": "16964078", "title": "", "text": "even though the same authority I’ve just talked about I think precludes me from any kind of a departure or variance on the robbery offenses because I think he’s already getting enough time on the weapons offenses, I don’t think I can do that.” Perdue Appellant Br. at 28-29 (quoting R. 206 (Perdue Sentencing Tr. at 21-22) (Page ID #2940-41)). This comment came after the district court discussed Sixth Circuit cases analyzing whether a district court may vary or depart below the statutory mandatory mínimums in order to honor the mandate under § 3553(a) that the sentence be “sufficient but not greater than necessary, to comply with” the goals of sentencing. R. 256 (Perdue Sentencing Tr. at 15) (Page ID #2934); 18 U.S.C. § 3553(a). The district court concluded that under Sixth Circuit precedent, “the very general statute § 3553(a) cannot be understood to authorize courts to sentence below mínimums specifically prescribed by Congress.” R. 256 (Perdue Sent. Tr. at 15) (Page ID # 2934). The district court’s recognition of its lack of authority to sentence below the mandatory minimum for the § 924(c) counts through consideration of the § 3553(a) factors was correct under the law of this circuit. In United States v. Franklin, we held that “§ 3553(a) factors do not apply to congressionally mandated sentences.” 499 F.3d 578, 585 (6th Cir.2007). Even when a district court considers the mandatory minimum sentences to be “ ‘draconian’ and ‘inappropriate,’ ” nonetheless “[w]hen a court and a mandatory minimum are in conflict, the minimum wins.” United States v. Cecil, 615 F.3d 678, 695 (6th Cir.2010). Although a sentence may be proeedurally unreasonable if it “fails to consider the section 3553(a) factors,” Harmon, 607 F.3d at 238, a sentence is not rendered proeedurally unreasonable by the district court correctly acknowledging when it lacks discretion. Accordingly, the district court did not err and Perdue’s sentence was not proeedurally unreasonable. C. Nathan’s Sentence Nathan argues that his sentence is proeedurally unreasonable because the district court misapplied § IB 1.2(d) of the 2011 U.S. Sentencing Guidelines Manual (“U.S.S.G.”) by considering robberies for which he" }, { "docid": "16964081", "title": "", "text": "objects of the conspiracy; it merely stated that the conspiracy occurred “[f]rom in or about February 2009, to on or about October 9, 2009, in Ingham County, in the Southern Division of the Western District of Michigan ...” and that “[t]he object of the conspiracy was to obtain money by committing robberies of commercial businesses in the greater Lansing, Michigan, area.” R. 77 (Superseding Indictment at 1-2) (Page ID # 129-30). In determining the adjustments to Nathan’s sentence under § 3D1.4, the PSR assigned units for thirteen robberies that it concluded were objects of the conspiracy and came to a combined adjusted offense level of thirty-six. PSR at 31-32. Because robbery offenses are not subject to the grouping rules, see §§ 3D1.2(d), 2B3.1, the PSR determined Nathan’s offense level as if he had been convicted of conspiracy to commit each robbery pursuant to § lB1.2(d). Although many of the robberies counted as object offenses were substantive robbery counts in the superseding indictment, six of the robberies were not charged in the superseding indictment. At sentencing, Nathan objected to this increase as a misapplication of U.S.S.G. § lB1.2(d). R. 273 (Nathan Sent. Tr. at 6-7) (Page ID #8058-59). The district court rejected the claim under §§ lB1.2(d) and 3D1.4, noting that all thirteen robberies were within the time frame, location, and type of action charged in the conspiracy and finding beyond a reasonable doubt that each of the thirteen robberies was within the scope of the conspiracy. Id. at 18 (Page ID # 3070). Section lB1.2(d) provides that “[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” Application Note 3 to this Guideline explains that “where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies, the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery, one count of conspiracy to" }, { "docid": "16964082", "title": "", "text": "Nathan objected to this increase as a misapplication of U.S.S.G. § lB1.2(d). R. 273 (Nathan Sent. Tr. at 6-7) (Page ID #8058-59). The district court rejected the claim under §§ lB1.2(d) and 3D1.4, noting that all thirteen robberies were within the time frame, location, and type of action charged in the conspiracy and finding beyond a reasonable doubt that each of the thirteen robberies was within the scope of the conspiracy. Id. at 18 (Page ID # 3070). Section lB1.2(d) provides that “[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” Application Note 3 to this Guideline explains that “where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies, the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery, one count of conspiracy to commit the second robbery, and one count of conspiracy to commit the third robbery.” U.S.S.G. § lB1.2(d), cmt. n. 3 (2011). Application Note 4 to § lB1.2(d) urges: Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as .a trier of fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy count would be grouped together under § 3D1.2(d) (e.g., a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because § lB1.3(a)(2) governs consideration of the defendant’s conduct. U.S.S.G. § lB1.2(d), cmt. n. 4 (emphasis added). Nathan argues that the thirteen robberies were not “alleged in the conspiracy count” by the indictment or the plea under Application Note" }, { "docid": "16964085", "title": "", "text": "if the Note “required that the objects of a conspiracy be specifically named in the conspiracy count of an indictment, it would be difficult to imagine the reason for this comment’s existence.” Id. (internal citation omitted). Accordingly, the district court did not err in counting the thirteen robbery offenses as object offenses of the conspiracy. 2. Substantive Unreasonableness Nathan argues that his sentence was substantively unreasonable because the district court made factual findings that Nathan committed the robberies; Nathan argues that the sentencing enhancement based on the findings of the district court violated his Sixth Amendment right to a jury trial, and therefore rendered his sentence substantively unreasonable. This claim is without merit. Application Note 4 to § lB1.2(d) provides that when “the verdict or plea does not establish which offense(s) was the object of the conspiracy,” an offense may be counted “with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense.” After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “a District Court may rely on extra-verdict facts or on those other than which the defendant has specifically admitted when it calculates his sentence.” United States v. Cook, 453 F.3d 775, 777 (6th Cir.2006). “[Ujnder the advisory Guidelines, [a] defendant may be sentenced up to the statutory maximum if such a sentence would comply with 18 U.S.C. § 3553(a).” United States v. Barton, 455 F.3d 649, 655-56 (6th Cir.2006). That Nathan’s sentencing enhancement was based on findings by the district court, not the jury, did not violate his Sixth Amendment right to trial by jury, and accordingly, Nathan’s sentence is not substantively unreasonable. D. Henry’s Sentence Henry argues that his sentence was procedurally unreasonable because the district court failed to articulate the applicable Sentencing Guidelines range after granting a § 5K1.1 departure and then failed to articulate the extent of the upward variance. Henry concedes that this court should review his sentence for plain error because he did not object" }, { "docid": "16964080", "title": "", "text": "was indicted but did not plead guilty as object offenses of the conspiracy, leading to a five-level sentencing enhancement. He argues that his sentence was substantively unreasonable because the enhancement based on the robberies violated his Sixth Amendment right to a jury trial. We review his claim for an abuse of discretion. United States v. Christman, 607 F.3d 1110, 1117 (6th Cir.2010). “An error of law in the application or interpretation of the Guidelines constitutes an abuse of discretion.” United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.2001). 1. Procedural Unreasonableness Nathan argues that his sentence is proeedurally unreasonable because the district court erroneously counted robberies as object offenses of the conspiracy to which he pleaded, even though neither the indictment nor his plea agreement specified which robberies were objects of the conspiracy. Nathan pleaded guilty to Count 1 of the superseding indictment, conspiracy to commit robbery affecting interstate commerce. R. 129 (Nathan Plea at 1) (Page ID # 251). The indictment did not provide any specific information about the robberies that were the objects of the conspiracy; it merely stated that the conspiracy occurred “[f]rom in or about February 2009, to on or about October 9, 2009, in Ingham County, in the Southern Division of the Western District of Michigan ...” and that “[t]he object of the conspiracy was to obtain money by committing robberies of commercial businesses in the greater Lansing, Michigan, area.” R. 77 (Superseding Indictment at 1-2) (Page ID # 129-30). In determining the adjustments to Nathan’s sentence under § 3D1.4, the PSR assigned units for thirteen robberies that it concluded were objects of the conspiracy and came to a combined adjusted offense level of thirty-six. PSR at 31-32. Because robbery offenses are not subject to the grouping rules, see §§ 3D1.2(d), 2B3.1, the PSR determined Nathan’s offense level as if he had been convicted of conspiracy to commit each robbery pursuant to § lB1.2(d). Although many of the robberies counted as object offenses were substantive robbery counts in the superseding indictment, six of the robberies were not charged in the superseding indictment. At sentencing," }, { "docid": "16964097", "title": "", "text": "did all introduce ourself [sic] and tell the court what we did. I stated I was a teacher and the mother of 4. I didn’t think about it at the time but when defendants are staring you down as if they are trying to memorize your face it gets a little scary. Thank you for your kind advice on this manner [sic]. R. 190-1 (Juror Notes at 2) (Page ID # 652). . \"The United States of America ... and Scott Graham, attorney for Jordan Ford, hereby stipulate and agree as follows: That the robberies alleged in the Superseding Indictment in this matter did unlawfully obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951, and the movement of articles and commodities in such commerce. The parties agree by this stipulation that this essential element (affect [sic] on interstate commerce) has been satisfied by the United States.” R. 188 (Stipulation at 1) (Page ID # 639). . In United States v. Bostic, we “announce[d] a new procedural rule, requiring district courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised.” 371 F.3d 865, 872 (6th Cir.2004). If the defendant does not raise an objection when given an adequate opportunity to do so, we review the objection raised on appeal for plain error. United States v. Tate, 516 F.3d 459, 464 (6th Cir.2008). . Nathan was charged in the superseding indictment with seven of the robberies counted as object offenses: Hungry Howie's, Mario’s Market, West Saginaw Party Store, Big Ten Party Store, Famous Taco Restaurant, Citgo Gas Station, and Mount Hope Party Store. R. 77 (Superseding Indictment at 8-20) (Page ID # 136-148); PSR at 24-31. These robbery charges were dismissed pursuant to Nathan’s plea agreement to the single conspiracy charge. R. 129 (Nathan Plea Agreement at 3) (Page ID # 253). Six of the robberies counted as object offenses were not charged in the superseding indictment: Shell Gas Station, Hot" }, { "docid": "16964098", "title": "", "text": "rule, requiring district courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised.” 371 F.3d 865, 872 (6th Cir.2004). If the defendant does not raise an objection when given an adequate opportunity to do so, we review the objection raised on appeal for plain error. United States v. Tate, 516 F.3d 459, 464 (6th Cir.2008). . Nathan was charged in the superseding indictment with seven of the robberies counted as object offenses: Hungry Howie's, Mario’s Market, West Saginaw Party Store, Big Ten Party Store, Famous Taco Restaurant, Citgo Gas Station, and Mount Hope Party Store. R. 77 (Superseding Indictment at 8-20) (Page ID # 136-148); PSR at 24-31. These robbery charges were dismissed pursuant to Nathan’s plea agreement to the single conspiracy charge. R. 129 (Nathan Plea Agreement at 3) (Page ID # 253). Six of the robberies counted as object offenses were not charged in the superseding indictment: Shell Gas Station, Hot House, Admiral Gas Station on two occasions, Quality Dairy, and Flower World. PSR at 24-31. . We may look to the Application Notes for guidance. \"Commentary which functions to 'interpret [a] guideline or explain how it is to be applied,' controls, and if failure to follow, or a misreading of, such commentary results in a sentence 'select[ed] ... from the wrong guideline range, that sentence would constitute ‘an incorrect application of the sentencing guidelines’ under 18 U.S.C. § 3742(f)(1).” Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (internal citations omitted). . At the sentencing hearing, the district court relied on United States v. Bates, 552 F.3d 472, 477 (6th Cir.2009), noting that “even though Bates dealt with a slightly different issue ... the message of the case to me from the Sixth Circuit is the Sixth Circuit doesn't have any problem with the method.” R. 273 (Nathan Sent. Tr. at 15-16) (Page ID # 3067-68). We disagree with the district court's reading of this \"message” in Bates. The" }, { "docid": "16964086", "title": "", "text": "After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “a District Court may rely on extra-verdict facts or on those other than which the defendant has specifically admitted when it calculates his sentence.” United States v. Cook, 453 F.3d 775, 777 (6th Cir.2006). “[Ujnder the advisory Guidelines, [a] defendant may be sentenced up to the statutory maximum if such a sentence would comply with 18 U.S.C. § 3553(a).” United States v. Barton, 455 F.3d 649, 655-56 (6th Cir.2006). That Nathan’s sentencing enhancement was based on findings by the district court, not the jury, did not violate his Sixth Amendment right to trial by jury, and accordingly, Nathan’s sentence is not substantively unreasonable. D. Henry’s Sentence Henry argues that his sentence was procedurally unreasonable because the district court failed to articulate the applicable Sentencing Guidelines range after granting a § 5K1.1 departure and then failed to articulate the extent of the upward variance. Henry concedes that this court should review his sentence for plain error because he did not object to the sentence on procedural unreasonableness grounds after being given an adequate opportunity to do so. Henry Appellant Br. at 9-10. The district court began Henry’s sentencing hearing by stating the applicable Guidelines range; with an offense level of 29 and criminal history Category VI, the Guidelines range was 151 to 188 months of imprisonment. R. 291 (Henry Sent. Tr. at 10) (Page ID # 3181). The district court then discussed whether there were reasons for a variance based on the 18 U.S.C. § 3553(a) factors or a departure under § 5K1.1 based on Henry’s substantial assistance to authorities. Id. at 19 (Page ID # 3190). The district court concluded that Henry had provided substantial assistance that warranted an adjustment, but proceeded to discuss his concerns that Henry was the leader of the robbery conspiracy, was the “least believable” of the co-conspirators who provided testimony at trial, had lied to law enforcement, and had a criminal history beginning at age twelve. Id. at 22-27 (Page ID # 3193-98). The district court mentioned coconspirator Nathan’s sentence" }, { "docid": "16964049", "title": "", "text": "OPINION KAREN NELSON MOORE, Circuit Judge. This consolidated appeal arises from the convictions and sentencing of Jordon Ford (“Ford”), Jasper Perdue (“Perdue”), Tyrone Nathan (“Nathan”), and Wilnell Henry (“Henry”) for crimes arising from their involvement in a conspiracy to commit a series of armed robberies in the Lansing, Michigan area, between February 2009 and October 2009. We address each of their arguments in turn. For the reasons set forth below, we AFFIRM. I. BACKGROUND The grand jury returned an indictment against Ford, Perdue, Nathan, and Henry on March 31, 2010. R. 1 (Indictment at 1) (Page ID # 1). A superseding indictment was returned on June 30, 2010. Each defendant was charged with one count of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951; multiple counts of robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2; and multiple counts of possessing and brandishing or discharging a firearm in furtherance of both the conspiracy and a robbery count in violation of 18 U.S.C. §§ 924(c) and 2. R. 77 (Superseding Indictment) (Page ID # 129). After a joint trial, Ford and Per-due were convicted of all charges. R. 190 (Jury Verdict) (Page ID # 642). Ford was sentenced to 1,392 months of imprisonment, R. 255 (Ford Sent. Tr.) (Page ID # 2886, 2913), and now appeals his conviction and his sentence. Perdue was sentenced to 1,464 months of imprisonment, R. 256 (Perdue Sent. Tr.) (Page ID # 2920, 2943), and now appeals his conviction and his sentence. Defendant Nathan pleaded guilty to conspiracy to commit robbery affecting commerce. R. 129 (Nathan Am. Plea) (Page ID # 251). He was sentenced to 168 months of imprisonment, R. 273 (Nathan Sent. Tr.) (Page ID # 3053, 3094), and now appeals his sentence. Defendant Henry pleaded guilty to conspiracy to commit robbery affecting commerce. He was sentenced to 150 months of imprisonment, R. 291 (Henry Sent. Tr.) (Page ID # 3172, 3201), and now appeals his sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeals" }, { "docid": "23186983", "title": "", "text": "at 29, which corresponded to a guidelines range of 151 to 188 months. R. 672 (Adams Sent. Hr’g Tr. at 23:12-16) (Page ID # 1370). The district court imposed a sentence of 165 months of incarceration. Id. at 39:10-11 (Page ID # 1386). Adams appeals, arguing (1) that the district court erred by designating him a career offender; and (2) that his Sixth Amendment rights were violated when the court, as opposed to a jury, found as a matter of fact that Adams had been convicted of two qualifying felonies. B. Cooper The FBI also caught Cooper conversing with Isom regarding the distribution of crack cocaine, which led to his indictment on one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846, and four counts of using a telecommunications device to facilitate the distribution of a controlled substance, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 843. See R.4-1 (Indictment at 1-2, 17) (126-27, 142). On June 8, 2012, Cooper entered into a Rule 11(c)(1)(C) agreement with the government in which he pleaded guilty to one count of conspiring to possess with intent to distribute and to distribute crack cocaine. R. 422 (Cooper Plea Agt. at 1-3) (Page ID # 752-54). The parties agreed that Cooper was responsible for seventy-five grams of crack cocaine, which gave Cooper a base offense level of 26. Id. at 2 (Page ID #753); see also U.S.S.G. § 2Dl.l(e)(7). During the compilation of Cooper’s PSR, however, the probation office discovered that Cooper had two prior convictions for controlled-substance offenses. Cooper PSR at 12 ¶39, 13 ¶40. These convictions triggered the application of the career-offender enhancement, causing his total offense level to rise to 31, even after a three-level adjustment for acceptance of responsibility. Id. at 7 ¶30. An offense level of 31 corresponded to a guidelines-recommended sentence of 188 to 235 months of imprisonment. Id. at 21 ¶ 77. Cooper did not dispute that he qualified as a career offender under U.S.S.G. § 4Bl.l(a), but he objected to the guideline enhancement itself, arguing that it was" }, { "docid": "314130", "title": "", "text": "his criminal history category must be calculated from the date of the firearms charge in the indictment — October 13, 1988. Using this date, the sentence for the burglary conviction was imposed more than ten years before the commission of the instant offense and beyond his criminal history calculation. DISCUSSION Eske has not appealed his conviction. We are asked only to decide the propriety of Eske’s sentence. “The district court’s sentence ... will be affirmed if it results from a proper application of the sentencing guidelines to the facts not found to be clearly erroneous.” United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989); see also 18 U.S.C. § 3742; United States v. Teta, 918 F.2d 1329, 1332 (7th Cir.1990). We conclude the language of the Sentencing Guidelines as explained by their commentary defeats this appeal, and so we affirm Eske’s sentence. Section lB1.2(c) of the Sentencing Guidelines answers Eske’s contention that the ten uncharged offenses may not be used in determining the appropriate offense level: “A conviction by a plea of guilty ... containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses.” The commentary to § 1B1.2 explains: “For example, if the defendant is convicted of one count of robbery, but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery.” commentary note 4. Compare United States v. Collar, 904 F.2d 441, 442-43 (8th Cir.1990) (applying lB1.2(c) and the commentary and concluding that stipulated offenses are to be treated as convictions in determining the offense level); see generally United States v. White, 888 F.2d 490 (7th Cir.1989) (indicating the substantial deference owed to the commentary’s explanations of the Sentencing Guidelines). Eske stipulated to the ten violations and agreed that they would be considered in determining an appropriate guideline range. Stipulated offenses are to be treated as offenses of conviction. Therefore, these violations were properly included in his offense level" }, { "docid": "16964079", "title": "", "text": "sentence below the mandatory minimum for the § 924(c) counts through consideration of the § 3553(a) factors was correct under the law of this circuit. In United States v. Franklin, we held that “§ 3553(a) factors do not apply to congressionally mandated sentences.” 499 F.3d 578, 585 (6th Cir.2007). Even when a district court considers the mandatory minimum sentences to be “ ‘draconian’ and ‘inappropriate,’ ” nonetheless “[w]hen a court and a mandatory minimum are in conflict, the minimum wins.” United States v. Cecil, 615 F.3d 678, 695 (6th Cir.2010). Although a sentence may be proeedurally unreasonable if it “fails to consider the section 3553(a) factors,” Harmon, 607 F.3d at 238, a sentence is not rendered proeedurally unreasonable by the district court correctly acknowledging when it lacks discretion. Accordingly, the district court did not err and Perdue’s sentence was not proeedurally unreasonable. C. Nathan’s Sentence Nathan argues that his sentence is proeedurally unreasonable because the district court misapplied § IB 1.2(d) of the 2011 U.S. Sentencing Guidelines Manual (“U.S.S.G.”) by considering robberies for which he was indicted but did not plead guilty as object offenses of the conspiracy, leading to a five-level sentencing enhancement. He argues that his sentence was substantively unreasonable because the enhancement based on the robberies violated his Sixth Amendment right to a jury trial. We review his claim for an abuse of discretion. United States v. Christman, 607 F.3d 1110, 1117 (6th Cir.2010). “An error of law in the application or interpretation of the Guidelines constitutes an abuse of discretion.” United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.2001). 1. Procedural Unreasonableness Nathan argues that his sentence is proeedurally unreasonable because the district court erroneously counted robberies as object offenses of the conspiracy to which he pleaded, even though neither the indictment nor his plea agreement specified which robberies were objects of the conspiracy. Nathan pleaded guilty to Count 1 of the superseding indictment, conspiracy to commit robbery affecting interstate commerce. R. 129 (Nathan Plea at 1) (Page ID # 251). The indictment did not provide any specific information about the robberies that were the" } ]

[ { "docid": "22435785", "title": "", "text": "court to impose summary punishment for contempt committed in its immediate presence show that such power has not ordinarily been exercised under conditions such as those here, with a lapse of two days following the event and without notice or opportunity for hearing of any kind. A legislature, like a court, must, of necessity, possess the power to act “immediately” and “instantly” to quell disorders in the chamber if it is to be able to maintain its authority and continue with the proper dispatch of its business. In re Oliver, 333 U. S., at 274-275; Ex parte Terry, 128 U. S., at 308, 310; Johnson v. Mississippi, 403 U. S. 212, 214 (1971); Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). Where, however, the contemptuous episode has occurred two days previously, it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable a legislative body to proceed with its business. The function of the contempt process by a legislative body is perhaps more related to deterrence of those disposed to create disorders than to restoring order. But the deterrence function can equally be served — perhaps even better — by giving notice and bringing the con-temnor before the body and giving opportunity to be heard before being declared in contempt and sentenced. Where a court acts immediately to punish for contemptuous conduct committed under its eye, the con-temnor is present, of course. There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations. Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. See Levine v. United States, 362 U. S. 610, 613-614 (1960); Brown v. United States, 359 U. S. 41, 52 (1959); United States v. Sacher, 182 F. 2d 416, 418 (CA2 1950), aff’d, 343 U. S. 1 (1952). Even in those circumstances, as we have" } ]

[ { "docid": "16154866", "title": "", "text": "the courtroom. On Monday, June 22, the appellant, on several occasions, interrupted the prosecution’s argument to the jury with what the transcript states was “mumbling” and the court later referred to as an effort “to make remarks for the purpose of having them heard by the jury.” The court said that appellant also “rose, showed a photograph to the jurors and spoke to them about that photograph.” On Tuesday, June 23, after the jury retired to deliberate, the court, after briefly describing appellant’s behavior and providing an opportunity for him to respond, summarily found him in contempt for the incidents of June 19 and June 22. Fed.R.Crim.P. 42(a). Appellant argues that Rule 42(a), which gives the district court power to punish a “criminal contempt ... summarily if the judge certifies that [he] saw or heard the contempt” committed before him, requires the court to punish the contempt immediately. But that is not the law. The Supreme Court has said that “summary” does not need to mean “immediate.” Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). And, this circuit has stated that if the court “decides to weather the storm of misconduct, such a decision does not negate the power to impose summary punishment at the end of the proceeding.” Gordon v. United States, 592 F.2d 1215, 1218 (1st Cir.), cert. denied, 441 U.S. 912, 99 S.Ct. 2011, 60 L.Ed.2d 384 (1979). We can find nothing unreasonable or prejudicial here in the court’s having waited until the jury retired to impose a punishment for contempt (90 days imprisonment for each of the two incidents). Appellant received fair warning. The delay apparently permitted the court to review the transcript of the relevant events and determine whether punishment was warranted. Given the closeness of punishment to contempt in time, the reasons for delay, and the warnings, we believe the determination of the court falls within the summary contempt power. Cases cited by appellant do not support his contention, for they concern very different circumstances. Cf. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897" }, { "docid": "10790255", "title": "", "text": "275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948) (quoting Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925)). Since Oliver, the Court has reinforced this due process limitation by restricting summary contempt to exceptional circumstances. United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975); Taylor v. Hayes, 418 U.S. 488, 498, 94 S.Ct. 2697, 2703, 41 L.Ed.2d 897 (1974); Groppi v. Leslie, 404 U.S. 496, 502-03, 92 S.Ct. 582, 586-87, 30 L.Ed.2d 632 (1972); Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 454, 96 L.Ed. 717 (1952). The cases of Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) and United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), demonstrate the applicable criteria in determining the procedure to be followed. In Harris, a grand jury witness refused to answer certain questions. He was brought before the district judge, who advised him that he would receive immunity from prosecution and ordered him to answer the questions. Upon the witness’ refusal he was summarily found guilty of contempt under Rule 42(a). In reversing, the Court stated that: Rule 42(a) [is] reserved “for exceptional circumstances,” Brown v. United States, 359 U.S. 41, 54 [79 S.Ct. 539, 548, 3 L.Ed.2d 609] (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of “the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power”, ibid., and in light of the wording of the Rule. 382 U.S. at 164, 86 S.Ct. at 354. The Court also stated that: swiftness [is] not a prerequisite of justice here. Delay necessary for a hearing would not imperil the grand jury proceedings. Id. In contrast, the Court in Wilson was confronted with two witnesses in an ongoing trial who refused to testify after being granted immunity. In upholding summary contempt application, the Court noted that the refusals to answer were “intentional obstructions" }, { "docid": "22407034", "title": "", "text": "for their unlawful acts are clearly competent to stand trial.’’) . Appellant’s statements included an intention to run for president; a contention that the FBI and members of the John Birch Society had attempted to assassinate him; a request for video equipment so that he could exhibit videotapes of presidential cabinet members engaged in sexual activity; and a reference to a recent conversation with Marilyn Monroe. . We also question whether Judge Real properly imposed summary contempt for Flynt’s final outburst. At that point, Flynt’s conduct could not have been a disruption of an \"ongoing proceeding;” the proceedings virtually had ended. See Taylor v. Hayes, 418 U.S. 488, 498, 94 S.Ct. 2697, 2703, 41 L.Ed.2d 897 (1974); United States v. Abascal, 509 F.2d 752, 756 (9th Cir.), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975). In Re Gustafson, 650 F.2d 1017 (9th Cir.1981) (en banc), is not to the contrary. In Gustafson, this court upheld the summary contempt conviction of an attorney whose contemptuous conduct occurred during his closing argument at the end of the day’s proceedings but prior to the close of the trial. We noted that counsel for five codefendants had yet to give their closing arguments, the prosecution had yet to give its rebuttal, and the judge had yet to instruct the jury. Thus, \"Gustafson’s contempt, if left unpunished, might have spawned other misconduct.\" Id. at 1023. Here, the possibility of subsequent misconduct posed no threat of obstruction, since there existed no further proceeding to obstruct. In addition, we question the use of summary contempt here, considering that Flynt's remarks were highly personal, derogatory attacks leveled at Judge Real. Under such circumstances, due process ordinarily requires that the defendant be tried before a judge other than the one reviled by the contemnor. See Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S.Ct. 499, 505, 27 L.Ed.2d 532 (1971); see also Taylor v. Hayes, 418 U.S. at 501, 94 S.Ct. at 2704; cf. Fed.R.Crim.P. 42(b)." }, { "docid": "16766479", "title": "", "text": "to be heard in his own behalf’) (citing Groppi v. Leslie, 404 U.S. 496, 506, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972)); Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 832, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (“If a court delays punishing a direct contempt until the completion of trial, ... due process requires that the contemnor’s rights to notice and a hearing be respected.”) (citing Taylor, 418 U.S. at 498, 94 S.Ct. 2697); Codispoti v. Pennsylvania, 418 U.S. 506, 517, 94 S.Ct. 2707, 41 L.Ed.2d 912 (1974) (holding that the appellants were entitled to a jury trial where they were cited multiple times for criminal contempt during the trial, and given a sentence after the trial in excess of six months). However, we reject Schiffs premise based on his contention that he was cited during trial for contempt but convicted and sentenced after. The district court summarily convicted and sentenced Schiff at the time each of the fifteen separate contumacious acts occurred. The record clearly shows that Schiff was informed in advance of the progressive punishment that would be imposed for each repeated act in contempt of the district court’s mid-trial rulings committed in the presence of the court and the jury. He was not entitled to relitigate his misbehavior after the trial because each mid-trial contempt conviction and sentence became final at the time the contemptuous conduct occurred, and he was summarily sanctioned for it as the district judge tried as best he could to maintain order and coerce Schiff into complying with his rulings. Schiff relies primarily on Taylor v. Hayes, 418 U.S. at 488, 94 S.Ct. 2697. There, a state court judge “informed” an attorney nine times during a trial that he was in contempt of court, but did not sentence the attorney for those convictions until after the trial’s conclusion, when he imposed a combined sentence of four and a half years in prison, though that sentence was ultimately reduced by about one year. Id. at 490-94, 94 S.Ct. 2697. At the time of sentencing, the judge did not permit" }, { "docid": "16154867", "title": "", "text": "S.Ct. 451, 96 L.Ed. 717 (1952). And, this circuit has stated that if the court “decides to weather the storm of misconduct, such a decision does not negate the power to impose summary punishment at the end of the proceeding.” Gordon v. United States, 592 F.2d 1215, 1218 (1st Cir.), cert. denied, 441 U.S. 912, 99 S.Ct. 2011, 60 L.Ed.2d 384 (1979). We can find nothing unreasonable or prejudicial here in the court’s having waited until the jury retired to impose a punishment for contempt (90 days imprisonment for each of the two incidents). Appellant received fair warning. The delay apparently permitted the court to review the transcript of the relevant events and determine whether punishment was warranted. Given the closeness of punishment to contempt in time, the reasons for delay, and the warnings, we believe the determination of the court falls within the summary contempt power. Cases cited by appellant do not support his contention, for they concern very different circumstances. Cf. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (due process is denied if summary proceedings are used after trial ended, without notice specifying the offending conduct or a brief right to be heard); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) (con-temnor was tried for a series of contempts and sentenced for the equivalent of a serious offense, and was thus entitled to a jury trial); Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971) (judgment reversed because judge was not personally aware of the contemptuous action when it occurred); Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed. 2d 240 (1965) (contemnor was entitled to a separate hearing where contempt involved refusal to answer before a grand jury and, thus, unlike contempt in an ongoing trial, swift punishment was not necessary and Rule 42(a) did not apply). Appellant also argues that he did not have the mental capacity necessary to commit the contempt; his outbursts, in his view, simply reflect his disturbed mental condition. The district court, however, found" }, { "docid": "2499232", "title": "", "text": "In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). Where there is no physical disorder in the courtroom, no laughing, shouts or abusive language, and no significant delay in the proceedings, obstruction of justice is not shown. United States ex rel. Robson v. Oliver, 470 F.2d 10, 14 (7 Cir. 1972). The statutory procedure has constitutional due process overtones. Summary procedure is always regarded with disfavor. Sacher v. United States, 343 U.S. 1, 8, 12 S.Ct. 451, 96 L.Ed. 717 (1952). Reasonable notice of a charge and an opportunity to be heard in defense before punishment is basic to our system of jurisprudence. Matters offered in explanation or mitigation may lessen the judgment or avoid punishment altogether. Groppi v. Leslie, 404 U.S. 496, 502-503, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972) and cases cited therein. Reasonable notice of the charge and an opportunity to be heard before punishment is imposed are essential in view of the potential for abuse of the contempt power. Taylor v. Hayes, 418 U.S. 488, 496, 500, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). Procedure Followed by Bankruptcy Judge Appellees argue that (1) appellant’s refusal to erase or surrender the tape recording constituted misconduct in violation of 11 U.S.C. § 69(a)(2) and that summary disposition was proper through the $250 fine; (2) when appellant refused to pay the fine the punishment “already imposed was not strong enough and a higher one was called for”, and the matter accordingly was certified to the district judge pursuant to 920(a)(4); and (3) if the bankruptcy judge did not afford appellant sufficient procedural safeguards, any defect was cured by the trial in the district court. While appellant’s refusal to erase or surrender the tape recording may have been a violation of § 69(a)(1), it was not misbehavior obstructing the hearing in violation of § 69(a)(2), permitting summary punishment. The tape recording did not disrupt the proceedings. The bankruptcy judge testified at the trial in district court that he was unaware of the taping until it was brought to his attention near the end of the" }, { "docid": "17075942", "title": "", "text": "9, 72 S.Ct. 451. The outburst involved here was neither relevant nor moderate. It was misbehavior. Moreover, the obstruction involved was material. We agree with the Seventh Circuit that “if a not insubstantial delay is entirely unnecessary and the misconduct serves . . . solely to vent the speaker’s spleen, the requisite obstruction would be present.” United States v. Seale, supra at 370. Appellant’s conduct caused delay both in the time involved in delivery of his oration and in the time necessary thereafter to get the hearing back on the track. As a result of the outburst and subsequent haggling, the hearing became as much a contempt proceeding as a probation revocation. Contrary to appellant’s arguments, these results following from the mere use of contemptuous words can support a contempt conviction. See In re Dellinger, 370 F.Supp. 1304, 1320 & 1337-38 (N.D.Ill.1973), aff’d, 502 F.2d 813, 815-16 (7th Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). Appellant’s next argument is that the summary proceeding envisioned by F.R. Crim.P. 42(a) may not be used except to forestall violent misconduct that will otherwise bring the proceedings to a halt. We disagree. In Sacher v. United States, supra, the Court held that “summary” need not necessarily mean “immediate”. If the trial court, in its discretion, decides to weather the storm of misconduct, such a decision does not negate the power to impose summary punishment at the end of the proceeding. Indeed, to force the court to act immediately or not at all would work against the policy of distinguishing between true misconduct and conduct that merely angers the trial court. Moreover, the proceeding involved here was not a lengthy trial in which contempt was imposed days or weeks after the offending conduct. At most, two minutes passed between appellant’s outburst and the first discussion of contempt. Thus, the imposition was summary in the sense of “immediate”. Finally, appellant’s citation of Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), for the proposition that summary proceedings are improper if delayed until the end of" }, { "docid": "23313373", "title": "", "text": "other than Seale. There not only was no “direct intrusion * * * into attorney-client discussions” (Hoffa v. United States, 387 U.S. 231, 233, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738), but also there was no indirect intrusion, however remote, that could possibly give appellants standing to complain of these logs under the Fifth or Sixth Amendments. Cf. Gran-ello v. United States, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458; United States v. Fannon, 435 F.2d 364, 368 (7th Cir. 1970). If United States v. United States District Court for Eastern District of Michigan, 444 F.2d 651 (6th Cir.), certiorari granted, 403 U.S. 930, 91 S.Ct. 2255, 29 L.Ed.2d 708 (1971), is reversed by the Supreme Court, then under the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2511(3)), the surveillances were lawful and need not be disclosed for this additional reason. We hold that the Seale logs require neither reversal nor dismissal of the contempt charges against appellants. Trial Before Another Judge As a result of the Supreme Court’s opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, the Government has conceded that the contempt convictions „ of all of these appellants, except the two trial counsel, should be reversed and remanded for consideration by another trial judge. The convictions of counselors Kunstler and Weinglass are asserted to stand on a different footing. We disagree. The Government argues that the post-trial summary contempt punishment of the lawyers in this case was proper under Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. That case involved a trial judge’s summary contempt conviction, after trial, of several attorneys who had represented eleven Communist Party leaders convicted of Smith Act violations in the celebrated Dennis trial. It is clear that the lawyers’ contemptuous conduct in that case included an attack upon the trial judge personally. 343 U.S. at 4-5, 72 S.Ct. 451 and 343 U.S. at 33-35, 72 S.Ct. 451. (Frankfurter, J., dissenting). Never theless, the Supreme Court majority upheld the post-trial summary procedure, deciding that “summary” as" }, { "docid": "22731402", "title": "", "text": "contempt the court informed Taylor that he was at that time in contempt of court.” 494 S. W. 2d, at 741-742. But no sentence was imposed during the trial, and it does not appear to us that any final adjudication of contempt was entered until after the verdict was returned. It was then that the court proceeded to describe and characterize petitioner’s various acts during trial as contemptuous, to find him guilty of nine acts of contempt, and to sentence him immediately for each of those acts. It is also plain from the record that when petitioner sought to respond to what the Kentucky Court of Appeals referred to as the trial court’s “declaration of a charge against Taylor based upon the judge’s observations” during trial, respondent informed him that “[yjou’re not responding to me on anything” and even indicated that petitioner might be gagged if he insisted on defending himself. The trial court then proceeded without further formality to impose consecutive sentences totaling almost four and one-half years in the county jail and to bar petitioner forever from practicing before the court in which the case at issue had been tried. This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge’s power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U. S. 289 (1888). The usual justification of necessity, see Offutt v. United States, 348 U. S. 11, 14 (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial. Our de cisions establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. Sacher v. United States, 343 U. S. 1 (1952); cf. Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). But Sacher" }, { "docid": "23313374", "title": "", "text": "opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, the Government has conceded that the contempt convictions „ of all of these appellants, except the two trial counsel, should be reversed and remanded for consideration by another trial judge. The convictions of counselors Kunstler and Weinglass are asserted to stand on a different footing. We disagree. The Government argues that the post-trial summary contempt punishment of the lawyers in this case was proper under Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. That case involved a trial judge’s summary contempt conviction, after trial, of several attorneys who had represented eleven Communist Party leaders convicted of Smith Act violations in the celebrated Dennis trial. It is clear that the lawyers’ contemptuous conduct in that case included an attack upon the trial judge personally. 343 U.S. at 4-5, 72 S.Ct. 451 and 343 U.S. at 33-35, 72 S.Ct. 451. (Frankfurter, J., dissenting). Never theless, the Supreme Court majority upheld the post-trial summary procedure, deciding that “summary” as used in Fed.R.Crim.Pro. 42(a) was not synonymous with “instantly” but rather referred to the informality of the procedure. 343 U.S. at 9, 72 S.Ct. 451. If the trial judge could have cited the lawyers instantly, he was entitled to do so at the end of the trial since “no possible prejudice to them can result from delaying it until the end of the trial if the circumstances permit such delay.” 343 U.S. at 10, 72 S.Ct. at 455. Responding to the argument that post-trial summary procedure was inappropriate where the conduct in question included a personal attack on the judge, Mr. Justice Jackson, speaking for the Court, said Rule 42(a) contained “no such limitation” and found any distinction between personally offensive contempts and impersonal contuma-cies illusory. Predicating the applicability of Rule 42(a) upon such a distinction, he stated, “would nullify, in practice, the power it purports to grant.” 343 U.S. at 12, 72 S.Ct. at 456. Were Sacher the Supreme Court’s latest pronouncement on the subject, we would affirm the trial judge’s use of summary" }, { "docid": "10790257", "title": "", "text": "of court proceedings that literally disrupted the progress of the trial and hence the orderly administration of justice.” 421 U.S. at 315-16, 95 S.Ct. at 1806 (footnote omitted). Harris was carefully distinguished. “The crucial difference between the cases ... is that Harris did not deal with a refusal to testify which obstructed an ongoing trial.” Id. at 318, 95 S.Ct. at 1807. The Court concluded by stating: Where time is not of the essence, however, the provisions of Rule 42(b) may be more appropriate to deal with contemptu ous conduct. We adhere to the principle that only “ ‘[t]he least possible power adequate to the end proposed’ ” should be used in contempt cases. Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821). See Taylor v. Hayes, 418 U.S. 488, 498 [94 S.Ct. 2697, 2703, 41 L.Ed.2d 897] (1974). Id. at 319, 95 S.Ct. 1808. In Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), the principles enunciated in Wilson were applied to facts more closely akin to those of this case. The Court held that it was improper for the trial court to cite the contemnor during the trial, and then summarily punish him at the conclusion of trial. Relying on Groppi v. Leslie, 404 U.S. 496, 503-06 (1972), the Taylor Court reversed the contempt citation, stating that “before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf.” 418 U.S. at 498-99, 94 S.Ct. at 2703-04. The Court explained that the hearing provides the contemnor a chance to justify his conduct, or at least mitigate punishment. The Court further noted that the necessity for summary contempt is not present when final adjudication is postponed until the trial is completed. Professor Kuhns’ exhaustive study of summary contempt gives cogent reasons for limiting the exercise of the power to situations of genuine necessity. Kuhns, The Summary Contempt Power: A Critique and a New Perspective, 88 Yale L.J. 39 (1978). In an" }, { "docid": "164646", "title": "", "text": "v. Pennsylvania, 400 U.S. 455, 463-64, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 (1971), a unanimous Court emphasizing due process requirements held that where the trial judge fails to act “the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place.” Since the state court judge failed to do so, the attorney’s contempt conviction was reversed and the case remanded for trial before another judge. Finally, we examine Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), which is nearly indistinguishable from the instant case. In that case a Kentucky trial judge held counsel for defendant — on trial for the murder of two police officers — in contempt on nine different occasions during the trial. On each occasion the judge told counsel that he was in contempt of court. At the conclusion of the trial, the judge imposed sentence for each contempt. When the lawyer attempted to speak, the trial judge refused to permit him to respond. The Supreme Court reversed and remanded the case to another trial judge. Where conviction and punishment are delayed, the Court noted that it is much more difficult to argue for preservation of the court’s dignity. It went on to hold that “before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf.” Id. at 498-99, 94 S.Ct. at 2703. See also Codispoti v. Pennsylvania, 418 U.S. at 515, 94 S.Ct. at 2692; Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972); Note, Procedures for Trying Contempts in the Federal Courts, 73 Harv.L.Rev. 353, 362-63 (1959). Justice Rehnquist, for one, finds the holding in Taylor “squarely contrary to the holding in Sacher,\" Codispati v. Pennsylvania, 418 U.S. at 525, 94 S.Ct. at 2707 (Rehnquist, J., dissenting), and, while a factual distinction" }, { "docid": "22164915", "title": "", "text": "is to be strictly limited, it still must be adequate to the end proposed. Thus there is force in the Government’s contention that if the right to a jury trial is based on the cumulative sentence imposed, a citation for contempt and imposition of a six-month sentence therefor early in the trial would exhaust the judge’s summary contempt power and remove further exercise of that power from his arsenal of weapons with which to handle obstreperous defendants. See Freund, Contempt at Court, 1 Human Rights 4, 6 (ABA Section of Individual Rights and Responsibilities, 1970). On the other hand, where contemptuous conduct is cited and punished immediately upon its occurrence, the potential for abuse inherent in the post-trial proceedings is not so great. Consequently, where contemptuous conduct is cited and punished instantly, we think the punishment assessed for that conduct may be considered separately in determining the right to a jury trial. See Dobbs, Contempt of Court: A survey, 56 Cornell L.Rev. 183, 234 (1971). Where, as here, the trial judge waits until a mistrial or the conclusion of court proceedings to cite for contempt, the argument stemming from the need to retain summary power to deal with future disruptions loses its force. It is contended that the appellant should not receive a jury trial because of the fortuity that all his contemptuous actions were cited in a single proceeding after his trial was over. However, the decision to save up the contempt specifications until the end of trial was deliberate, not fortuituos. Regardless, it is settled that a later citation for contempt may require more in the way of procedural protection than would have been necessary for instant action. Groppi v. Leslie, 404 U.S. 496, 504-506, 92 S.Ct. 582, 30 L.Ed.2d 632; Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 27 L.Ed.2d 532; Johnson v. Mississippi, 403 U.S. 212, 214, 91 S.Ct. 1778, 29 L.Ed.2d 423; In re Oliver, 333 U.S. 257, 274-275, 68 S.Ct. 499, 92 L.Ed. 682; Ex parte Terry, 128 U.S. 289, 308, 310, 9 S.Ct. 77, 32 L.Ed. 405; United States v. Meyer," }, { "docid": "22731403", "title": "", "text": "bar petitioner forever from practicing before the court in which the case at issue had been tried. This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge’s power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U. S. 289 (1888). The usual justification of necessity, see Offutt v. United States, 348 U. S. 11, 14 (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial. Our de cisions establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. Sacher v. United States, 343 U. S. 1 (1952); cf. Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). But Sacher noted that “[s]ummary punishment always, and rightly, is regarded with disfavor ... .” 343 U. S., at 8. “[W]e have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are 'basic in our system of jurisprudence.’ ” Groppi v. Leslie, 404 U. S. 496, 502 (1972), quoting In re Oliver, 333 U. S. 257, 273 (1948). Even where summary punishment for contempt is imposed during trial, “the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.” Groppi v. Leslie, supra, at 504 (and cases cited therein). On the other hand, where conviction and punishment are delayed, “it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business.” Ibid. As we noted in Groppi, the contem-nors in the Sacher case were “given an opportunity to speak” and the “trial judge would, no" }, { "docid": "17075943", "title": "", "text": "may not be used except to forestall violent misconduct that will otherwise bring the proceedings to a halt. We disagree. In Sacher v. United States, supra, the Court held that “summary” need not necessarily mean “immediate”. If the trial court, in its discretion, decides to weather the storm of misconduct, such a decision does not negate the power to impose summary punishment at the end of the proceeding. Indeed, to force the court to act immediately or not at all would work against the policy of distinguishing between true misconduct and conduct that merely angers the trial court. Moreover, the proceeding involved here was not a lengthy trial in which contempt was imposed days or weeks after the offending conduct. At most, two minutes passed between appellant’s outburst and the first discussion of contempt. Thus, the imposition was summary in the sense of “immediate”. Finally, appellant’s citation of Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), for the proposition that summary proceedings are improper if delayed until the end of trial comes perilously close to misrepresenting the law. That case says merely that due process is denied if summary proceedings are used at the close of trial without notice specifying the offending conduct and a brief right to be heard. Id. at 500 n. 9, 94 S.Ct. 2697. Here the trial court discussed the contempt problem with appellant and allowed appellant to speak to the issue. In sum, this was a case of contemptuous conduct occurring in the presence of the court and justifying summary procedure after a few minutes deliberation. See F.R.Crim.P. 42(a). Appellant’s last two arguments deserve short shrift. We do not read United States v. Marshall, 451 F.2d 372 (9th Cir. 1971), as standing for the proposition that a transcript citation can never adequately specify the facts constituting contempt as required by Rule 42(a). That case involved a citation to the entire record of a lengthy trial. We think that when words speak for themselves, a reference to the transcript page containing those words is sufficient. See 3 Wright, Federal Practice and" }, { "docid": "14631014", "title": "", "text": "of its exercise and to prepare the contempt certificate. Hallinan v. United States, 182 F.2d 880 (9th Cir. 1950) ; MacInnis v. United States, 191 F.2d 157 (9th Cir. 1951), cert. denied, 342 U.S. 953, 72 S.Ct. 628, 96 L. Ed. 708 (1952). Delay until sentencing was specifically approved by the Supreme Court in the notorious case of Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). For cases following Sacher, see United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert. denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017 (1966) ; In re Osborne, 344 F.2d 611 (9th Cir. 1965) ; United States v. Galante, 298 F.2d 72 (2d Cir. 1962). In Sacher the contumacious conduct had been directed at the trial judge personally, and many of the eases cited have noted that the judge may wish to delay action so that his decision will not be and will not appear to be affected by the passion of the moment. But in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed. 2d 532 (1971), the Supreme Court held that a defendant in a criminal contempt proceeding should be given a public trial before a judge other than the one reviled by the contemnor. See also Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954) (district court judges may not sit in judgment upon misconduct of counsel when the contemptuous conduct is directed against the judge). Since these cases make irrelevant one argument for permitting delays before summary contempt proceedings, the Sacher rule may be undermined. This case, of course, does not present the question of the propriety of the summary contempt proceeding — an issue already considered by this court in another connection (see note 2 supra, error not to hold a hearing on appellant’s mental competence) — but only the question whether the assault prosecution was barred by the summary contempt proceeding. . In this case we do not decide whether the Double Jeopardy Clause would bar a criminal prosecution following a separate" }, { "docid": "7971615", "title": "", "text": "attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. . A further constitutional limitation on the use of summary contempt was announced in Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). In Taylor, the Court held that due process requires some sort of hearing before punishment is imposed, at least when a final adjudication of contempt and sentencing are postponed until after the trial at which the act of contempt was committed. Komie contends that he was deprived of such a hearing. Given our disposition of this appeal, we do not address Komie’s due process argument. . A trial court need not impose instant punishment to invoke Rule 42(a). Sacher v. U.S., 343 U.S. 1, 9-10, 72 S.Ct. 451, 455-56, 96 L.Ed. 717 (1952); Local Union 542, supra, 552 F.2d at 512-13. But here, the trial court did not even proceed under Rule 42(a) at the conclusion of the trial and, as this court has noted, “it is settled that a later citation for contempt may require more in the way of procedural protection than would have been necessary for instant action.” United States v. Seale, 461 F.2d 345, 355 (7th Cir.1972). . We reject Komie’s argument that as a matter of law he committed no act of contempt under this standard. Whether Komie wilfully violated a clear and specific court order is a question we leave for consideration on remand." }, { "docid": "22981804", "title": "", "text": "court is adjudicated and punished immediately upon its occurrence. E.g., United States v. Wilson, supra; United States v. Martin-Trigona, supra. In other instances, the only immediate action is a citation for contempt, and final adjudication and punishment is deferred until the conclusion of the trial, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); United States v. Lumumba, 741 F.2d 12 (2d Cir.1984). Where punishment is deferred until after trial, summary procedure may not be used. Taylor v. Hayes, supra; United States v. Lumumba, supra. In the instant case, the contemnor was held in contempt within moments of his contemptuous conduct, and the contempt sentence was imposed at the end of the day, prior to the conclusion of the trial. We do not believe that the procedure used by the trial judge demonstrated a lack of necessity for vindication of the court’s authority by use of the summary contempt power. Though Stratton had finished his summation, the trial had not ended, and further occasions could arise when Stratton might be tempted to flout the trial judge’s authority, for example, during the summations of other counsel or during the jury charge. The trial judge was entitled to use an effective sanction to deter Strat-ton from again disregarding her instructions. The momentary delay from the occurrence of the contempt until the contempt citation resulted from the trial judge’s forbearance in permitting Stratton to conclude his summation without the interruption of a summary contempt proceeding and her sensible decision to excuse the jurors rather than conduct the proceeding in their presence. This momentary delay indicated only admirable restraint by the trial judge to minimize the risks of adverse effects of the contempt citation upon the conduct of the trial. Nor does the further brief delay in sentencing until the end of the day indicate that summary contempt was unnecessary. Rather, it reflects the careful restraint of an experienced trial judge who preferred not to select a contempt sentence until the end of the trial day. Unlike Taylor and Lumumba, where sentencing imposed after trial could have had no prophylactic" }, { "docid": "22981803", "title": "", "text": "in Rule 42(a) is improper, contempt can be punished only pursuant to Rule 42(b), which incorporates full due process protections. Although Rule 42(a) seems to suggest that summary contempt is permissible whenever the trial judge witnesses the contemptuous conduct, the rule has been given a more limited scope. The summary contempt power may be used only when necessary to preserve the authority of the court. See United States v. Wilson, 421 U.S. 309, 318, 95 S.Ct. 1802, 1807, 44 L.Ed.2d 186 (1975); Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971); United States v. Martin-Trigona, 759 F.2d 1017 (2d Cir.1985). Stratton argues that it was unnecessary for the trial court to punish him summarily because he had finished his summation by the time he was cited for contempt. He also argues that the trial court’s delay in sentencing him is further evidence of the lack of necessity. The facts of the pending case fall between two patterns that have previously been considered. Sometimes, contemptuous conduct occurring in the presence of the court is adjudicated and punished immediately upon its occurrence. E.g., United States v. Wilson, supra; United States v. Martin-Trigona, supra. In other instances, the only immediate action is a citation for contempt, and final adjudication and punishment is deferred until the conclusion of the trial, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); United States v. Lumumba, 741 F.2d 12 (2d Cir.1984). Where punishment is deferred until after trial, summary procedure may not be used. Taylor v. Hayes, supra; United States v. Lumumba, supra. In the instant case, the contemnor was held in contempt within moments of his contemptuous conduct, and the contempt sentence was imposed at the end of the day, prior to the conclusion of the trial. We do not believe that the procedure used by the trial judge demonstrated a lack of necessity for vindication of the court’s authority by use of the summary contempt power. Though Stratton had finished his summation, the trial had not ended, and further occasions could arise when Stratton might be tempted" }, { "docid": "3586924", "title": "", "text": "has observed the contemptuous act, there is “no need of evidence or assistance of counsel before punishment.” Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925). Second, the maintenance of courtroom decorum sometimes necessitates quick and forceful action. Id. More recent Supreme Court eases have placed less emphasis on the “efficiency”, justification for summary adjudication. See e.g., Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (judge’s observation of criminal act may obviate the need for a full-scale trial of a contemnor, but basic notice and hearing are still required); Codispoti v. Pennsylvania, 418 U.S. 506, 515-16, 94 S.Ct. 2687, 2692-93, 41 L.Ed.2d 912 (1974). However, resting mainly on the need to maintain courtroom order, summary contempt adjudication remains a viable judicial power where the “necessity of circumstances” warrants. Codispoti v. Pennsylvania, supra, 418 U.S. at 515, 94 S.Ct. at 2692. B. Conflicts of Values Despite the Supreme Court’s acknowledgment of summary contempt authority as a necessary component in our justice system, the Court nevertheless has placed significant limits on the historically broad power. The inescapable clash between summary adjudications of contempt and basic due process rights has been explicitly recognized by the Court. See Offutt v. United States, supra, 348 U.S. at 14, 75 S.Ct. at 13. Reciting a list of cases in which appellate courts had found abuse of the contempt power, Justice White, in Bloom v. Illinois, 391 U.S. 194, 207, 88 S.Ct. 1477, 1485, 20 L.Ed.2d 522 (1968), cautioned against “vesting the judiciary with completely untrammeled power to punish contempt.” Indeed, it is well established that the contempt power carries with it a great potential for abuse; its exercise must be delicate and care should be taken to avoid arbitrary or oppressive results. Id. at 202, 88 S.Ct. at 1482. See also Cooke v. United States, supra, 267 U.S. at 539, 45 S.Ct. at 395; Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 454, 96 L.Ed. 717 (1952). Supreme Court decisions regarding the proper scope of summary contempt authority have been based" } ]

[ { "docid": "22700718", "title": "", "text": "a comparable reduction of his sentence pursuant to U.S.S.G. § 1B1.10(b)(2)(B). He urged the court to consider the still-existing unwarranted disparity between crack and powder cocaine sentences and his ef forts at rehabilitation since his incarceration. The district court denied the sentence reduction, finding that: Having reviewed the Probation Office’s re-calculation of the applicable Guideline range of imprisonment, the responses thereto, and the record in this matter, including the Pre-Sentence Report, the Court finds that the defendant previously received adjustment under a government motion filed pursuant to ... § 3553(e) at which time the Court had determined a total sentence pursuant to ... § 3553(a) factors. Accordingly, the Court will not reduce Defendant’s sentence further. Kirkendoll filed a timely notice of appeal. STANDARD OF REVIEW This court reviews a district court’s decision “whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion, ... its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010) (internal citations omitted). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Smith, 417 F.3d 483, 486-87 (5th Cir.2005) (internal quotation marks and footnote omitted). DISCUSSION As noted above, § 3582(c)(2) grants the district court discretion to modify a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 236-37 (5th Cir.), cert. denied, — U.S. —, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). The Supreme Court has recently made it clear that, to determine whether to reduce a sentence pursuant to § 3582(c)(2), the district court must conduct a two-step inquiry. Dillon v. United States, — U.S. —, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). Step one of the inquiry requires the court to follow the instructions in U.S.S.G. § 1B1.10 to determine whether the prisoner is eligible for a sentence" } ]

[ { "docid": "22710145", "title": "", "text": "440 F.3d at 528 (Lipez, J., dissenting) (noting that a sentencing judge cannot rely on “formulaic invocation of the words of the statute,” but rather must provide “explanations that are responsive to the sentencing issues raised by the parties and that relate the court’s decisions on those issues to the multiple purposes and factors of section 3553”). In sum, our practice in reviewing consideration of the § 3553(a) factors is to exercise “restraint, not micromanagement.” Fleming, 397 F.3d at 100. Fernandez has made no showing that the District Court failed to consider her disparity argument. In any event, even assuming arguendo that 18 U.S.C. § 3553(a)(6) can support a reduced sentence designed to eliminate or diminish disparity between the sentences imposed on co-defendants, those co-defendants would have to be similarly situated because the provision mandates that sentencing judges take into account “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6) (emphases added). Elias and Fernandez were not similarly situated for many reasons, not the least of which was that Elias, unlike his daughter, qualified under the Guidelines for a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 and a two-level “safety valve” reduction pursuant to U.S.S.G. §§ 2Dl.l(b)(7) and 5C1.2. See United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.2006) (“[A] sentencing difference is not a forbidden ‘disparity’ if it is justified by legitimate considerations, such as rewards for cooperation.” (emphasis in original)); United States v. Vasquez, 433 F.3d 666, 671 (8th Cir.2006) (determining that a sentencing disparity was “not unwarranted” where defendant “was responsible for a larger quantity of drugs and had a greater criminal history than [his co-defendant]”); United States v. Schneiderhan, 404 F.3d 73, 83 (1st Cir.) (finding no unwarranted sentencing disparity where the co-defendants who were subjects of comparison “pleaded guilty to obstructing justice, eliminating the ‘lack of remorse’ rationale that influenced the sentence imposed on defendant”), cert. denied, — U.S. -, 126 S.Ct. 381, 163 L.Ed.2d 167 (2005); see also Jiménez-Beltre, 440 F.3d at 519 (“As with departures, the proponent" }, { "docid": "22441126", "title": "", "text": "DUHÉ, Circuit Judge: John Boe appeals the district court’s denial of his post-conviction motion for reduction of sentence. For reasons that follow, we vacate and remand for resentencing. BACKGROUND Appellant John Boe pleaded guilty to manufacturing marijuana within 1,000 feet of a school, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 860. In January 1992, the district court sentenced Boe to 80 months of imprisonment to be followed by 8 years of supervised release. In January 1996, Boe moved for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2), requesting that his sentence be reduced in light of a 1995 amendment to U.S.S.G. § 2D1.1 (“Amendment 516”). The district court denied the motion. Boe unsuccessfully moved for reconsideration, and he now appeals. DISCUSSION Section 3582(c)(2) permits a district court to reduce a term of imprisonment when it is based upon a sentencing range that has subsequently been lowered by an amendment to the Sentencing Guidelines, if such a reduction is consistent with the policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). The applicable policy statement is U.S.S.G. § 1B1.10, see United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir.1997), and it dictates that Amendment 516 is designated for retroactive application. See U.S.S.G. § 1B1.10(c). Having determined that Amendment 516 may be applied retroactively, we note that the decision whether to reduce a sentence is left to the sound discretion of the trial court. Thus, we review for abuse of discretion only. See United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.1995). In exercising this discretion, the sentencing court is guided by U.S.S.G. § 1B1.10(b), which instructs the court to “consider the sentence that it would have imposed” had Amendment 516 been in effect at the time the defendant was originally sentenced. Further, 18 U.S.C. § 3582(c)(2) directs the sentencing court to consider the numerous factors set forth in 18 U.S.C. § 3553(a) when determining the defendant’s sentence. See Whitebird, 55 F.3d at 1009 (listing certain of the applicable factors). Amendment 516 had the effect of reducing Boe’s net offense level" }, { "docid": "23709994", "title": "", "text": "cocaine base attributable to the defendant was 1.5 kilograms or more. Amendment 706 increased that threshold quantity to 4.5 kilograms. U.S.S.G. app. C, amend. 706. In 2008, Congress made the Amendment retroactive in an effort to reduce sentences for most crack cocaine offenses. A district court considering a defendant’s motion for a sentencing modification or reduction must conduct the two-step inquiry outlined in Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010). The court must first determine if the defendant is eligible for a sentence modification, and second, the court must determine whether the reduction is warranted after consideration of the factors listed in 18 U.S.C. § 3553(a). Id. Generally, we review a district court’s decision to modify a sentence under 18 U.S.C. § 3582(c)(2) for abuse of discretion. Curry, 606 F.3d at 327. However, if a district court’s refusal to modify a sentence rests on its determination that the defendant is ineligible for a sentence reduction, we review de novo the district court’s eligibility determination. United States v. Watkins, 625 F.3d 277, 281 (6th Cir.2010); Curry, 606 F.3d at 327. Additionally, we review for clear error a district court’s factual findings made in connection with the Sentencing Guidelines. United States v. Moore, 582 F.3d 641, 644 (6th Cir.2009). As the parties agreed at oral argument, the primary issue before us on appeal is whether the Defendants are eligible for sentence reductions. A defendant is eligible for a sentence reduction only if the amendment has “the effect of lowering the defendant’s applicable guideline range” when the court substitutes the amendment for the corresponding guideline provision that was applied when the defendant was sentenced, leaving “all other guideline application decisions unaffected.” U.S.S.G. § lB1.10(a)(2)(B); Dillon, 130 S.Ct. at 2691; see also Watkins, 625 F.3d at 282. To determine whether a retroactive amendment would lower a defendant’s sentence, the district court considering the modification motion — the modification court — must examine the record that was available to the original sentencing court. See United States v. McKinney, 464 Fed. Appx. 444, 447 (6th Cir.2012); Moore, 582" }, { "docid": "6132226", "title": "", "text": "thirteen criminal history points arose from driving with a suspended license. . “[I]f a defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) ..., if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statement at issue is U.S.S.G. § 1B1.10(b). .See U.S.S.G. app. C, amend. 706 (Nov. 1, 2007) (made retroactive by U.S.S.G. app. C, amend. 713 (Mar. 3, 2008)). . Garcia conceded at the hearing that the 84-to-105-month range was also a valid calculation. . Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 75 Fed.Reg. 27388, 27393 (May 14, 2010) (eff. Nov. 1, 2010). . See United States v. Evans, 587 F.3d 667, 671-74 (5th Cir.2009); see also § 1B1.10 cmt. n. 3 (\"[T]he sentencing court has the discretion to determine whether, and to what extent, to reduce a term of imprisonment under [§ IB 1.10(b)(2)(B) ]-”); United States v. Guidry, 368 Fed.Appx. 611 (5th Cir.2010) (“The district court was not required to reduce [the defendant’s] sentence [further] as he alleges.... There is no evidence that the district court intended to grant a greater reduction but erred in its mathematical calculation as [the defendant] intimates.’’). . Although, as explained in part III.C, it did not have the authority to deviate from § 1B1.10. . After the defendant’s sentencing but before his appeal, the Supreme Court issued Kimbrough v. United States, 552 U.S. 85, 110, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which held that \"it would not be an abuse of discretion for a district court to conclude when sentencing ... that the crack/powder disparity yields a sentence 'greater than necessary’ to achieve § 3553(a)’s purposes.... ” . We have, however, refused to consider such an argument under plain-error review \"[g]iv-en the lack of precedent suggesting a separation-of-powers problem with ... § 1B1.10.” United States v. Evans, 587 F.3d 667, 669" }, { "docid": "22700719", "title": "", "text": "— U.S. —, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010) (internal citations omitted). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Smith, 417 F.3d 483, 486-87 (5th Cir.2005) (internal quotation marks and footnote omitted). DISCUSSION As noted above, § 3582(c)(2) grants the district court discretion to modify a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 236-37 (5th Cir.), cert. denied, — U.S. —, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). The Supreme Court has recently made it clear that, to determine whether to reduce a sentence pursuant to § 3582(c)(2), the district court must conduct a two-step inquiry. Dillon v. United States, — U.S. —, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). Step one of the inquiry requires the court to follow the instructions in U.S.S.G. § 1B1.10 to determine whether the prisoner is eligible for a sentence modification and the extent of the reduction authorized. Id. Step two requires the “court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [§ 1B1.10] is warranted in whole or in part under the particular circumstances of the case.” Id. at 2692 (footnote added). In relevant part, § 1B1.10 requires the court to begin by “determining] the amended guideline range ... applicable to the defendant.” U.S. Sentencing Guidelines Manual § lB1.10(b)(l). It then specifies that the court must impose a sentence equal to or above the low end of the amended range unless the term of imprisonment imposed at sentencing was below the defendant’s original Guidelines range. Id. at § lB1.10(b)(2)(A)-(B). If the defendant originally received a below-Guidelines sentence, in response to a § 3582(c)(2) motion, the court may grant a comparable reduction: “a reduction comparably less than the amended guideline range.” Id. at § lB1.10(b)(2)(B); see also Dillon, 130 S.Ct. at 2691-92. In the cases on appeal, because the defendants’ original sentences were lower than their" }, { "docid": "22790987", "title": "", "text": "in the original sentencing determination.”); United States v. Moore, 582 F.3d 641, 646 (6th Cir.2009) (“We do not agree ... that the district court’s previous determination of ‘more than 1.5 kilograms’ means that it cannot also find more than 4.5 kilograms.”). That the district court may have possessed this authority does not aid the Government here. For the Government does not even argue that the court was under any obligation to make new findings — and for good reason. The court was under no such obligation. See United States v. Jules, 595 F.3d 1239, 1245 (11th Cir.2010) (holding that courts need not engage in new factual determinations in a § 3582(c)(2) proceeding because such a proceeding “is not a de novo re-sentencing”); see also Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010) (“Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.”). The district court may reasonably have concluded that the facts of Mann’s conviction would not support any additional finding of responsibility for 8.4 kilograms or more of crack cocaine. The court did not err in exercising its discretion not to make additional findings more than a decade after the original sentencing. More broadly, the court did not abuse its discretion in concluding that Mann was eligible for a sentence reduction. Under § 3582(c)(2), “the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C.] section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Because the district court correctly concluded that “the guideline range applicable to th[e] defendant has ... been lowered as a result of [Amendment 750],” and reasonably concluded that no exclusion applied, Mann’s reduction accords with Sentencing Commission policy. See U.S.S.G. § lB1.10(a) (2011). In addition, the § 3553(a) sentencing factors weigh in Mann’s favor, particularly given that he has already served a substantial sentence" }, { "docid": "23079332", "title": "", "text": "(6th Cir.2009). Under section 3582(c)(2), a district court may modify a term of imprisonment: in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o) ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The Supreme Court has held that section 3582(c) establishes a two-step inquiry. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). At step one of the inquiry, the court must determine the defendant’s eligibility for a sentence modification under the Sentencing Commission’s policy statements and the extent of reduction authorized. Id. The Sentencing Commission has identified the amendments that may apply retroactively and the procedure for deciding a motion for reduction of sentence in a policy statement. See U.S.S.G. § 1B1.10. Both Amendment 505 and Amendment 706 are included in the collection of retroactive amendments listed in section lB1.10(c) that may be considered as a basis for sentence reduction. The court must “determine the amended guideline range that would have been applicable to the defendant” if the relevant amendment had been in effect at the time of the initial sentencing. Id. § lB1.10(b)(l). We review de novo a district court’s determination that a defendant is ineligible for a sentence reduction. See United States v. Curry, 606 F.3d 323, 327 (6th Cir.2010). If a defendant is eligible for a sentence reduction, then under step two of the inquiry the court must consider the section 3553(a) factors and determine whether, in its discretion, the authorized reduction is warranted under the circumstances. See Dillon, 130 S.Ct. at 2692. A district court’s decision whether a sentence reduction is warranted is reviewed for abuse of discretion. See United States v. Washington, 584 F.3d 693, 695 (6th Cir.2009), cert. denied, —— U.S. -, 130 S.Ct. 3479, 177 L.Ed.2d 1058 (2010). A district court abuses its" }, { "docid": "22816897", "title": "", "text": "prescribed a two-step inquiry for a district court that is considering a § 3582(c)(2) motion. Dillon, 560 U.S. at 826, 130 S.Ct. 2683. The district court must first determine whether the defendant is eligible for a sentence reduction under § 1B1.10 and then may proceed to consider whether a reduction is warranted in whole or in part under 18 U.S.C. § 3553(a)’s sentencing factors. Dillon, 560 U.S. at 826-27, 130 S.Ct. 2683. However, a defendant is not eligible for a reduction under § 3582(c)(2) if a qualifying amendment “does not have the effect of lowering the defendant’s applicable guideline range.” § lB1.10(a)(2)(B); see also § ÍB1.10, cmt. n. 1(A). This court reviews a district court’s decision “whether to reduce a sentence pursuant to ... § 3582(c)(2) for abuse of discretion, ... its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and citation omitted). “A court abuses its discretion when the court makes an error of law or bases its decision on a clearly erroneous assessment of the evidence. When a court in applying its discretion fails to consider the factors as required by law, it also abuses its discretion.” United States v. Larry, 632 F.3d 933, 936 (5th Cir.2011) (internal quotation marks and citation omitted). In Freeman, the Supreme Court considered whether a defendant who pleads guilty in exchange for a specific sentence under a Rule 11(c)(1)(C) plea agreement is eligible for a sentence reduction. Freeman, 131 S.Ct. at 2692-95. A plurality of the Court concluded that § 3582 “modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.” Id. at 2692-93 (plurality opinion). There is no majority opinion in Freeman. The general rule for ascertaining the holding of a case in which there is no majority opinion is that “the holding of the Court may be" }, { "docid": "22053223", "title": "", "text": "defendant’s sentence under § 3582(c)(2). Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010). The court first considers whether the sentence modification is authorized. Id. at 2691. A sentence modification is authorized if it “is consistent with applicable policy statements issued by the Sentencing Commission — namely, § 1B1.10” of the United States Sentencing Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted). Only if the court determines that a sentence modification is authorized must the court consider whether such modification is warranted. Id. To determine whether the authorized modification is warranted, the court must consider the applicable § 3553(a) factors and “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” United States v. Robinson, 542 F.3d 1045, 1049, 1052 (5th Cir.2008) (quoting U.S.S.G. § 1B1.10 cmt. n. 1(B) (2008)); see Dillon, 130 S.Ct. at 2692. The court may also “consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.” Robinson, 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10 cmt. n. 1(B)). In this case, the district court implicitly found and the parties agree that a sentence modification was authorized under § 3582(c)(2). See U.S.S.G. § 1B1.10(b)(2)(B); United States v. Cooley, 590 F.3d 293, 297 (5th Cir.2009). Although authorized, the district court decided on its own motion and without briefing or argument that a further reduction in Larry’s sentence was not warranted. On appeal, Larry correctly recognizes that the district court has the discretion to deny sentence modification. See Evans, 587 F.3d at 673. Larry argues however that the district court abused that discretion by denying the modification without first considering the § 3553(a) factors. There is no indication in the record that the district court considered the factors when it determined whether the modification was warranted. The district court did not state that it considered the factors or explain how the factors supported its finding that sentence modification was not warranted. Moreover, it did not consider argument concerning" }, { "docid": "23079331", "title": "", "text": "cocaine offenses by two levels. See U.S.S.G. supp. to app. C, amend. 706. On March 3, 2008, Amendment 713 went into effect, giving Amendment 706 retroactive effect. See U.S.S.G. supp. to app. C, amend. 713. On February 25, 2008, Watkins filed a motion for reduction of sentence pursuant to section 3582(c)(2) based on Amendment 505, Amendment 706, consideration of the section 3553(a) sentencing factors, and application of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court denied Watkins’s motion. The district court declined to consider a reduction based on Amendment 505 because it had previously denied three similar motions and it found no justi fication for a reduction. The district court also found that Watkins’s sentencing range was not affected by Amendment 706 and it thus lacked authority to reduce his sentence based on Amendment 706. Watkins appeals. II. STATUTORY FRAMEWORK AND STANDARD OF REVIEW A district court may modify a defendant’s sentence only as authorized by statute. See United States v. Johnson, 564 F.3d 419, 421 (6th Cir.2009). Under section 3582(c)(2), a district court may modify a term of imprisonment: in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o) ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The Supreme Court has held that section 3582(c) establishes a two-step inquiry. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). At step one of the inquiry, the court must determine the defendant’s eligibility for a sentence modification under the Sentencing Commission’s policy statements and the extent of reduction authorized. Id. The Sentencing Commission has identified the amendments that may apply retroactively and the procedure for deciding a motion for reduction of sentence in a policy statement. See U.S.S.G. § 1B1.10. Both Amendment 505" }, { "docid": "22419119", "title": "", "text": "has set forth a “two-step inquiry” for resolving motions pursuant to § 3582(c)(2) for a sentence reduction. Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010); see also United States v. Bethea, No. 12-961, slip op. at 3 (2d Cir. Oct. 31, 2013) (per curiam). First, the district court must determine whether the defendant in question is “eligible for a reduction in sentence,” which requires that such a “reduction would be consistent with applicable policy statements issued by the Sentencing Commission — namely, § IB 1.10.” United States v. Mock, 612 F.3d 133, 137 (2d Cir.2010) (emphasis in original; internal quotation marks omitted). “If, and only if, a defendant is eligible for a reduction in sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, then the second step of the analytical framework set forth in Dillon requires the district court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” Id. (internal quotation marks omitted). When the issue on appeal is whether a defendant is “eligible for a reduction in sentence under the crack cocaine amendments, pursuant to section 3582(c)(2)[,] [w]e review de novo the determination of whether [the defendant’s] sentence was ‘based on a sentencing range that was subsequently lowered by the Sentencing Commission,’ because this determination is a matter of statutory interpretation.” United States v. Main, 579 F.3d 200, 202-03 (2d Cir.2009). When a defendant is eligible for resentencing, “we review a district court’s decision to deny a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion.” United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009). In its submissions to the district court, the Government conceded that Christie was eligible to be resentenced and expressly agreed that he had an amended Guidelines range of 120-150 months’ imprisonment. The Probation Office likewise concluded that Christie was eligible for a reduction. The Government does not contest Christie’s eligibility for a reduction on" }, { "docid": "22053222", "title": "", "text": "reduce Larry’s sentence, stating simply that Larry “ha[d] been given sufficient credit for cooperation” and that “the previously imposed sentence is still sharply below the amended guideline range.” The next day the district court entered a notation on the docket sheet indicating that it had made the motion and docketed the order denying all relief. Larry timely appealed. II. We review a district court’s order sua sponte denying a defendant relief under § 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009). A court abuses its discretion when the court makes an error of law or “bases its decision on a clearly erroneous assessment of the evidence.” United States v. Lipscomb, 299 F.3d 303, 338-39 (5th Cir.2002) (citation and internal marks omitted). When a court in applying its discretion fails to consider the factors as required by law, it also abuses its discretion. See United States v. Garza, 593 F.3d 385, 388 (5th Cir.2010). The Supreme Court developed a two-step test for determining whether a court should reduce a defendant’s sentence under § 3582(c)(2). Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010). The court first considers whether the sentence modification is authorized. Id. at 2691. A sentence modification is authorized if it “is consistent with applicable policy statements issued by the Sentencing Commission — namely, § 1B1.10” of the United States Sentencing Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted). Only if the court determines that a sentence modification is authorized must the court consider whether such modification is warranted. Id. To determine whether the authorized modification is warranted, the court must consider the applicable § 3553(a) factors and “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” United States v. Robinson, 542 F.3d 1045, 1049, 1052 (5th Cir.2008) (quoting U.S.S.G. § 1B1.10 cmt. n. 1(B) (2008)); see Dillon, 130 S.Ct. at 2692. The court may also “consider post-sentencing conduct of the defendant that occurred after imposition" }, { "docid": "2104260", "title": "", "text": "Amendment. But, sentencing “reductions under ... § 3582(c)(2) are not mandatory ... [and] merely give[ ] the district court discretion to reduce a sentence under limited circumstances”. United States v. Doublin, 572 F.3d 235, 238 (5th Cir.2009). If the court gave due consideration to the § 3582(c)(2) motion and the 18 U.S.C. § 3553(a) factors, there is no abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.1995). In denying Jones’ motion, the court determined he was not eligible for a sentence modification because application of the Amendment would result in the same sentencing range as used for his original sentence: a base-offense level of 35, and resulting range of 292-365 months. A review of . the following demonstrates Amendment 782 lowered Jones’ base-offense level, and ultimately his sentencing range: his Pre-sentence Investigation Report, prepared at the time of initial sentencing; the 17 June 2015 post-motion-for-reduction report prepared for the district court by the United States Probation Office; and the amended Guideline. Pursuant to the Amendment, Jones’ base-offense level decreased to 32 (the level assigned to offenses involving at least one and a half kilograms, but less than five kilograms, of methamphetamine). See § 2Dl.l(c)(4). Therefore, based on adjustments made to Jones’ original base-offense level (two-point enhancement for use of a firearm, and three-point reduction for acceptance of responsibility), his total offense level became 31, with a corresponding sentencing range of 188-235 months. Accordingly, the court erred in determining Amendment 782 did not lower Jones’ sentencing range. In denying the motion, the court relied solely on its calculation of the offense level, and, therefore, did not consider whether the modification was warranted under the § 3553(a) factors, or the nature and seriousness of the danger to the community that may be posed by a reduction in the sentence. See United States v. Larry, 632 F.3d 933, 937 (5th Cir.2011). Accordingly, the court abused its discretion in denying the motion. See id. The order denying the motion to reduce Jones’ sentence pursuant to § 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s reconsideration of" }, { "docid": "22053221", "title": "", "text": "pursuant to Federal Rule of Criminal Procedure 35(b). The district court found that Larry had substantially assisted the government and reduced his total sentence to 154 months after the first motion and to 138 months after the second. In March 2008, days after the United States Sentencing Commission’s reduction in offense level for crack cocaine offenses became retroactive, the district court considered an ex proprio motu motion for retroactive application of the sentencing guidelines as to Larry’s sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Burns, 526 F.3d 852, 862 (5th Cir.2008) (noting that § 3582(c)(2) authorizes the district court to sua sponte consider the application of the modified guidelines). That same day, before either party had notice that the district court had made the sua sponte motion for modification, the district court signed an order denying the motion. In its order, the district court found that the Sentencing Commission had lowered the sentencing range used to sentence Larry from 262-327 months to 210-262 months. The district court, however, declined to further reduce Larry’s sentence, stating simply that Larry “ha[d] been given sufficient credit for cooperation” and that “the previously imposed sentence is still sharply below the amended guideline range.” The next day the district court entered a notation on the docket sheet indicating that it had made the motion and docketed the order denying all relief. Larry timely appealed. II. We review a district court’s order sua sponte denying a defendant relief under § 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009). A court abuses its discretion when the court makes an error of law or “bases its decision on a clearly erroneous assessment of the evidence.” United States v. Lipscomb, 299 F.3d 303, 338-39 (5th Cir.2002) (citation and internal marks omitted). When a court in applying its discretion fails to consider the factors as required by law, it also abuses its discretion. See United States v. Garza, 593 F.3d 385, 388 (5th Cir.2010). The Supreme Court developed a two-step test for determining whether a court should reduce a" }, { "docid": "22068244", "title": "", "text": "decisions unaffected.” U.S.S.G. § lB1.10(b)(l). After the district court determines what the modified sentence would be, the district court is required to consider any applicable factors under 18 U.S.C. § 3553 in deciding whether a sentence modification is “warranted in whole or in part under the particular circumstances of the case.” Dillon, 130 S.Ct. at 2692. “Because reference to § 3553 is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Id. Thus, even if the defendant qualifies for sentence modification under the first step of the analysis, the decision whether to ultimately grant a modification is left to the sound discretion of the trial court. Dillon, 130 S.Ct. at 2692. The district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009) cert. denied, — U.S.-, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010). Applying those principles to this appeal, we hold that the district court did not abuse its discretion in refusing to modify Hernandez’s sentence or in refusing to grant an evidentiary hearing to decide the amount of crack for which Hernandez was responsible. On the record before us the sentencing district judge adopted the 32.5 kilogram quantity found by the PSR, far beyond the 4.5 kg threshold needed for the highest offense level. Hernandez did not challenge that finding on appeal, as did one of his co-conspirators, James Dwayne Ortega. Thus, Hernandez’s efforts to re-litigate whether the penalty was properly applied are not cognizable at this stage, and his sentence cannot be modified. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir.1994) (observing that a § 3582(c)(2) proceeding is not the appropriate vehicle for relitigating a sentencing issue); see also United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995) (“[A] § 3582(c)(2) motion is not a second opportunity to present mitigating factors to the sentencing judge, nor is it a challenge to the appropriateness of the original sentence.”). A modification proceeding is" }, { "docid": "2104259", "title": "", "text": "PER CURIAM: Proceeding pro se, Kenneth A Jones, federal prisoner #26216-077, challenges the denial of his motion for a reduction of his sentence, pursuant to 18 U.S.C. § 3582(c)(2), In 1994, Jones was sentenced to 310 months’ imprisonment after pleading guilty to conspiracy to posséss, with intent to distribute, one kilogram or more of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. Jones asserts the district court erred in determining Amendment 782 to the advisory Sentencing Guidelines did not have the effect of lowering his Guidelines advisory sentencing range. He contends that proper calculation of his base-offense level and sentencing range under the amended Guidelines could result in his sentence’s being reduced to time served. The denial of a motion for reduction of a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. E.g., United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009). Amendment 782 revised the Guidelines applicable to drug-trafficking offenses by changing the base-offense levels in § 2D1.1. See U.S.S.G., Supp. to Appendix C, Amendment 782, Reason for Amendment. But, sentencing “reductions under ... § 3582(c)(2) are not mandatory ... [and] merely give[ ] the district court discretion to reduce a sentence under limited circumstances”. United States v. Doublin, 572 F.3d 235, 238 (5th Cir.2009). If the court gave due consideration to the § 3582(c)(2) motion and the 18 U.S.C. § 3553(a) factors, there is no abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.1995). In denying Jones’ motion, the court determined he was not eligible for a sentence modification because application of the Amendment would result in the same sentencing range as used for his original sentence: a base-offense level of 35, and resulting range of 292-365 months. A review of . the following demonstrates Amendment 782 lowered Jones’ base-offense level, and ultimately his sentencing range: his Pre-sentence Investigation Report, prepared at the time of initial sentencing; the 17 June 2015 post-motion-for-reduction report prepared for the district court by the United States Probation Office; and the amended Guideline. Pursuant to the Amendment, Jones’ base-offense level decreased to" }, { "docid": "22603152", "title": "", "text": "set forth in Section 3553(a) to the extent that they are applicable, if such reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The decision whether to reduce the sentence is in the sound discretion of the district judge. United States v. Shaw, 30 F.3d 26, 28 (5th Cir.1994). Thus, we review only for an abuse of that discretion. United States v. Pardue, 36 F.3d 429, 430 (5th Cir.1994) (per curiam). In exercising this discretion, the Guidelines instruct the court to “consider the sentence it would have originally imposed had the guidelines, as amended, been in effect at the time.” U.S.S.G. § lB1.10(b). The statute also directs the court to consider the factors set forth in § 3553(a), including: the nature and the circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense and to protect the public from further crimes of the defendant; the kinds of sentences available; any pertinent Guidelines policy statement; and the need to avoid unwarranted sentencing disparities among defendants with similar records found guilty of similar conduct. 18 U.S.C. § 3553(a). Section 3582(e)(2) applies only to amendments to the Guidelines that operate retroactively, as set forth in the Guidelines policy statement, U.S.S.G. § lB1.10(d). See United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990). Amendment 488, the amendment on which Whitebird relies, is listed in § 1B1.10(d) and is therefore retroactive. Amendment 488 modified the method for calculating LSD quantities for sentencing purposes under U.S.S.G. § 2Dl.l(c) as follows: In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg. of LSD for purposes of the drug Quantity Table. The 0.4 mg per dose method was intended to alleviate the “unwarranted disparity among offenses involving the same quantity of actual LSD (but of different carrier weights)” and to bring sentences proportionately in line with" }, { "docid": "22816896", "title": "", "text": "guideline range was used in determining the agreed-on sentence.” The Government argues that the district court did not abuse its discretion in denying Benitez’s § 3582(c)(2) motion. The Government contends that Benitez pleaded guilty pursuant to a Rule 11(c)(1)(C) agreement which “did not state, or even imply, that the agreed-upon sentence was to be calculated under a sentencing guideline range.” The Government asserts that because Benitez’s stipulated sentence of 63 months was not tied to a guidelines range, Benitez is not entitled to a sentence reduction under Amendment 782. Section 3582(c)(2) provides that a defendant’s sentence may be modified if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”' § 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237 (2009). Section 3582(c)(2) applies only to retroactive guidelines amendments as set forth in § lB1.10(a). See Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Amendment 782 applies retroactively. See § lB1.10(d). The Supreme Court has prescribed a two-step inquiry for a district court that is considering a § 3582(c)(2) motion. Dillon, 560 U.S. at 826, 130 S.Ct. 2683. The district court must first determine whether the defendant is eligible for a sentence reduction under § 1B1.10 and then may proceed to consider whether a reduction is warranted in whole or in part under 18 U.S.C. § 3553(a)’s sentencing factors. Dillon, 560 U.S. at 826-27, 130 S.Ct. 2683. However, a defendant is not eligible for a reduction under § 3582(c)(2) if a qualifying amendment “does not have the effect of lowering the defendant’s applicable guideline range.” § lB1.10(a)(2)(B); see also § ÍB1.10, cmt. n. 1(A). This court reviews a district court’s decision “whether to reduce a sentence pursuant to ... § 3582(c)(2) for abuse of discretion, ... its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and citation omitted). “A court abuses its discretion when the court makes an error of" }, { "docid": "2104261", "title": "", "text": "32 (the level assigned to offenses involving at least one and a half kilograms, but less than five kilograms, of methamphetamine). See § 2Dl.l(c)(4). Therefore, based on adjustments made to Jones’ original base-offense level (two-point enhancement for use of a firearm, and three-point reduction for acceptance of responsibility), his total offense level became 31, with a corresponding sentencing range of 188-235 months. Accordingly, the court erred in determining Amendment 782 did not lower Jones’ sentencing range. In denying the motion, the court relied solely on its calculation of the offense level, and, therefore, did not consider whether the modification was warranted under the § 3553(a) factors, or the nature and seriousness of the danger to the community that may be posed by a reduction in the sentence. See United States v. Larry, 632 F.3d 933, 937 (5th Cir.2011). Accordingly, the court abused its discretion in denying the motion. See id. The order denying the motion to reduce Jones’ sentence pursuant to § 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s reconsideration of the proper calculation of the Guidelines sentencing range in the light of Amendment 782, and also to determine whether the reduction is warranted in the light of the relevant sentencing factors. See 18 U.S.C § 3582(c); U.S.S.G. § 1B1.10, comment. (n.l(B)(i)-(ii)). VACATED and REMANDED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22899919", "title": "", "text": "provisions and leaving “all other guideline application decisions unaf fected.” USSG § lB1.10(b)(l). If the new Guidelines calculation results in a lower advisory range, the prisoner is eligible for a sentence reduction. The proper application of the policy statement in Guidelines section 1B1.10 shows that Williams is eligible for relief. Since Williams’s original sentencing in 2008, the Commission has promulgated two retroactively effective Guidelines amendments that lowered the base offense levels for cocaine base offenses: Amendments 750 and 782. See USSG app. C, amend. 782 (Supp.2014); id. app. C, amend. 750 (2011). As the district court recognized, Amendments 750 and 782 would reduce Williams’s original total offense level from 27 to 21, and his advisory Guidelines range would now be 77 to 96 months. See Opinion 4-5. Although Guidelines section 5Gl.l(b) would otherwise turn the 240-month mandatory minimum into Williams’s revised “guideline sentence,” the revisions made to Guidelines section 1B1.10 by Amendment 780 bar the sentencing court from calculating his amended range in that manner. Accordingly, because Williams’s revised Guidelines range is lower than his original range, he is eligible for a sentence reduction under § 3582(c)(2). The fact that Williams is eligible for a sentence reduction under § 3582(c)(2) does not dictate the propriety or amount of any such reduction. See United States v. Stewart, 595 F.3d 197, 200 (4th Cir.2010). That decision is for the sentencing court, after “considering] the factors set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(2); see Dillon, 560 U.S. at 827, 130 S.Ct. 2683 (recognizing sentencing court’s discretion to decide whether sentence reduction is warranted). IV. Pursuant to the foregoing, we vacate the judgment of the district court and remand for such other and further proceedings as may be appropriate. VACATED AND REMANDED . Because the United States Attorney sides with Williams in this appeal, we appointed attorney John Donley Adams of Richmond, Virginia, as amicus counsel to support the district court's ruling. We appreciate his valuable service to our Court in this matter. . Section 841(b)(1)(A) of Title 21 mandates that, if a person commits" } ]

[ { "docid": "22913318", "title": "", "text": "available, however, if the applicant has exhausted all administrative remedies of right. Failure to exhaust an issue through administrative proceedings creates a jurisdictional bar, preventing our review of that issue. “An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the BIA — either on direct appeal or in a motion to reopen.” “When a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the petitioner must raise the issue in a motion to reopen prior to resorting to review by the courts.” In Kane’s brief on direct appeal to the BIA, he contended that the IJ had correctly granted withholding of removal but had erroneously failed to consider the merits of his asylum claim as well. Kane claimed that he qualifies for asylum because, if removed, he would suffer persecution consisting of (1) emotional and economic suffering resulting from his daughters’ being subjected to FGM, and (2) constant harassment from family and tribal members for his religious and political opposition to FGM. Critically, however, Kane failed to raise his “apparent eligibility” argument to the BIA on direct appeal. It was not until Kane filed his motion for reconsideration that he asserted to the BIA that the IJ’s failure to inform him of his apparent eligibility for asylum should excuse his tardiness in applying. In the absence of that argument, the BIA ruled that Kane had waived any claim he might have to asylum by not timely raising the issue before the IJ. As Kane’s petition for review does not raise the BIA’s subsequent denial of reconsideration of his time-barred asylum claim based on “apparent eligibility,” however, the only decision properly before us now is the BIA’s initial order denying withholding of removal and holding his asylum claim waived. Consequently, we lack jurisdiction to review the merits of Kane’s asylum claim. To the extent that Kane seeks review of the BIA’s initial holding that he waived his asylum claim," } ]

[ { "docid": "12602450", "title": "", "text": "States on June 16, 1999, when he was 17, in order to join his mother. Martinez was issued a Notice to Appear by U.S. Border Patrol on June 18, 1999. Martinez missed his second immigration hearing, and the immigration court issued an order that Martinez be removed, in absentia, in 2000. In April 2010, Martinez filed his first motion to reopen his removal proceedings, which was eventually granted after an appeal to the BIA. On October 22, 2012, the IJ held a hearing and granted Martinez voluntary departure by February 19, 2013, and alternatively ordered that Martinez be removed to Guatemala. On February 20, 2013, Martinez filed a motion to reopen the October 2012 removal proceedings, well past the 90-day deadline in 8 U.S.C. § 1229a(c)(7)(C)(i). The IJ found that Martinez failed to show changed country conditions after his October hearing to cure the untimeliness of his motion. On December 30, 2013, the BIA affirmed the IJ’s denial of Martinez’s motion to reopen. Martinez moved for reconsideration of the BIA’s December 2013 decision. With the motion, he included an affidavit from an aunt, who stated the gangs in Guatemala “now” single out members of the church youth group to which Martinez belonged when he lived in Guatemala. The BIA denied Martinez’s motion for reconsideration, concluding that Martinez failed to specify any errors of law or fact and that he failed to establish changed country conditions to support his underlying motion to reopen. Martinez timely appealed. II. Discussion “We review the BIA’s decision, as it is the final agency decision; however, to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Matul-Hernandez v. Holder, 685 F.3d 707, 710-11 (8th Cir.2012) (quotation omitted). We review “the BIA’s denial of the motion to reopen for abuse of discretion.” Sidikhouya v. Gonzales, 407 F.3d 950, 951 (8th Cir.2005). We also review the BIA’s decision denying a motion to reconsider for an abuse of discretion. Al Milaji v. Mukasey, 551 F.3d 768, 774 (8th Cir.2008). These motions are" }, { "docid": "22593602", "title": "", "text": "affirm the IJ’s denial of petitioner’s motion for continuance. B. Motion to reopen with IJ. We review de novo the BIA’s decisions on questions of law. See Denko, 351 F.3d at 726; see also Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir.2005). “An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1) (2003) (emphasis added). Here, the BIA found that the IJ lacked jurisdiction to render a decision on petitioner’s motion to reopen because Ilic-Lee filed a direct and timely appeal to the BIA of the IJ’s January 14, 2005 decision. J.A. 06-3494 at 6. Petitioner admits that the “IJ is divested of jurisdiction over a motion filed after an appeal is filed with the BIA,” but argues that the “BIA treats a motion to reopen that is filed during a pending appeal as a motion to remand.” Petitioner’s Br. 06-3494 at 12-13 (citing 8 C.F.R. § 1003.2(b)(1) and BIA Practice Manual 5.6(h)). These regulations do not support petitioner’s argument because they refer to a motion filed with the BIA in the first instance while an appeal is pending, not the appeal of an IJ’s decision on the merits in which she lacked jurisdiction. Accordingly, the BIA did not err when it found that the IJ lacked jurisdiction to render a decision on petitioner’s motion to reopen. C. Motion to reopen with BIA. 8 C.F.R. § 1003.2(a) provides that “[t]he decision to grant or deny a motion to reopen ... is within the discretion of the Board.... ” Accordingly, we review the BIA’s denial of a motion to reopen under an abuse-of-discretion standard. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). “This standard requires us to decide whether the denial of [the] motion to reopen ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against" }, { "docid": "22878235", "title": "", "text": "service of the NTA because it was served on her counsel rather than on her. The government opposed Petitioner’s motion and filed a motion to pretermit Application II, arguing that Petitioner was ineligible for adjustment of status. In May 2005, the IJ denied Petitioner’s motion to terminate, granted the government’s motion to pre-termit, and ordered Petitioner to appear at a final hearing in July 2005 to advise the IJ of any forms of relief for which she may be eligible. Following the hearing, the IJ reaffirmed its May 2005 ruling and ordered that Petitioner be removed to Cameroon. Petitioner appealed to the BIA. On appeal, Petitioner argued that the NTA was substantively defective, that the NTA was defectively served, and that she was eligible to seek adjustment of status during removal proceedings. The BIA rejected these arguments and dismissed Petitioner’s appeal in July 2006. Petitioner then filed a motion for reconsideration with the BIA. In ruling on that motion, the BIA acknowledged that, in the original appeal, it had erroneously observed that Petitioner never departed from and returned to the United States under a grant of advanced parole. However, the BIA concluded that this error did not alter its prior ruling. Accordingly, the BIA denied the motion. Petitioner filed this petition for review of the BIA’s decision on her motion for reconsideration. II Petitioner requests only that we review “the Board’s decision dated November 26, 2006.” That decision is the BIA’s ruling on Petitioner’s motion for reconsideration. See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir.2006) (holding that “the BIA’s denial of an appeal and its denial of a motion to reconsider are two separate final orders, each of which require them own petitions for review”) (citations omitted). “A motion for reconsideration urges an adjudicative body to reevaluate the record evidence only.” Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir.2005) (citations omitted). A motion to reconsider should be denied if it fails to “identify a change in the law, a misapplication of the law, or an aspect of the case that the BIA overlooked.” Id. We review the" }, { "docid": "13101122", "title": "", "text": "to the BIA, challenging the IJ’s adverse credibility finding and contending that the IJ’s role in questioning him violated his due process right to a neutral arbiter. The BIA dismissed the appeal on May 80, 2008. Like the IJ, the BIA was troubled that Abulashvili’s asylum application did not claim that the root of his problems in Georgia could have been due to his father’s political activism. The BIA also rejected Abulashvili’s claim that his due process rights had been violated. The BIA concluded that the IJ was “ferreting out ... the facts” and “aequir ing clarity in [Abulashvili’s] testimony.” (A.R.421) We thereafter granted Abulashvili’s motion to stay removal. Abulashvili then filed a motion to reopen with the BIA based on changed country conditions, which the BIA denied because it was untimely. This petition for review followed. The petition apparently does not challenge the denial of Abulashvili’s untimely asylum application. (See Pet’s Brief, at ll). Rather, Abulashvili only challenges the denial of his claim for withholding of removal and relief pursuant to the CAT. II. Jurisdiction and Standard of Review The BIA has jurisdiction over motions to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction over Abulashvili’s petition for review pursuant to 8 U.S.C. § 1252. “We review a final order of the BIA denying a motion to reopen for abuse of discretion.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir.2005) (citation omitted). Under this standard, we may reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Because the BIA’s original order of removal adopted the findings of the IJ and discussed the reasons behind the IJ’s decision, we review the decisions of both the IJ and the BIA. See Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “Adverse credibility determinations are factual findings subject to substantial evidence review.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We will defer to and uphold the IJ’s adverse credibility determination if it is “supported by reasonable," }, { "docid": "14914424", "title": "", "text": "in Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). See also 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1). Based on those authorities, the IJ concluded that he lacked jurisdiction to consider the motion. The IJ further rejected Bolieiro’s due process arguments. Petitioner filed a motion to reconsider with the IJ on February 15, 2012, which was denied in a summary order. Bolieiro appealed both the denials of her motion to reopen and her motion to reconsider to the BIA. During this time, USCIS approved her VAWA self-petition, thereby fulfilling a prerequisite for Bolieiro to obtain relief under VAWA. On May 29, 2012, the BIA dismissed the appeals. The BIA agreed with the IJ that Bolieiro’s motion must be denied for lack of jurisdiction, citing our prior opinion in Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir.2007), and the post-departure regulation. The BIA did not expressly distinguish between the general provisions of the motion to reopen statute, and the “special rule” governing motions to reopen filed by individuals seeking relief under VAWA, despite the fact that those provisions impose different requirements. The BIA also concluded that due process did not require the reopening of petitioner’s proceedings in order to address the vacatur of her criminal conviction, because the denial of her motion would not result in a “gross miscarriage of justice.” See Matter of C-, 8 I. & N. Dec. 611, 615 (BIA 1960). After the BIA dismissed her appeal, Bo-lieiro timely petitioned for our review. II. Our review of the agency’s denial of a motion to reconsider or reopen is for abuse of discretion. Martinez-Lopez v. Holder, 704 F.3d 169, 171 (1st Cir.2013) (reconsideration); Aponte v. Holder, 683 F.3d 6, 10 (1st Cir.2012) (reopening). A denial of a motion to reopen is an abuse of discretion if “ ‘the [agency] committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.’ ” Bead v. Holder, 703 F.3d 591, 593 (1st Cir.2013) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007)). A denial of a motion to reconsider, for its part, is an abuse" }, { "docid": "22760420", "title": "", "text": "within the scope of the “petty offense” exception to the inadmissibility bar triggered by an alien’s conviction for a crime involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The BIA denied Membreno’s motion to reopen on February 20, 2003, and a petition for review of this decision was filed on March 18, 2003. II In her petition for review of the BIA’s denial of her motion to reopen, Membreno challenges the BIA’s adoption of the IJ’s determination that Membreno was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), arguing that assault with a firearm under California Penal Code section 245 does not constitute a crime involving moral turpitude for the purposes of the Immigration and Nationality Act’s (INA) bar to admissibility. Mem-breno further argues that the BIA erred in denying her motion to reopen because even if her crime of conviction is one involving moral turpitude, she is not subject to 8 U.S.C. § 1182(a)(2)(A)(i)(I)’s bar to admissibility because she qualifies for the petty offense exception outlined in 8 U.S.C. § 1182(a)(2)(A)(ii)(II). We lack jurisdiction to review Membreno’s contention that the BIA erred in determining that she committed a crime involving moral turpitude when she violated California Penal Code section 245(a)(2), because the petition before us was filed almost a year after the issuance of that decision. The governing jurisdictional statute, 8 U.S.C. § 1252(b)(1), states that a “petition for review must be filed not later than 30 days after the date of the final order of removal.” “This time limit is mandatory and jurisdictional, and cannot be tolled.” Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003). That Membreno timely petitioned for review of the BIA’s denial of her motion to reopen is irrelevant because of the Supreme Court’s holding in Stone v. INS that an order of removal “is final, and reviewable, when issued,” and that “[fits finality is not affected by the subsequent filing of a motion to reconsider.” 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); see also Caruncho v. INS, 68 F.3d 356, 359-60 (9th Cir.1995). Although we do not have jurisdiction to" }, { "docid": "898543", "title": "", "text": "entitled to what is denominated a petition for review to this court. Andrade-Garcia, 828 F.3d at 833. On April 23, 2013, Ayala filed a motion for reopening and reconsideration of the IJ’s reasonable fear determination with the IJ. She argued that she was “afraid of returning as she was married to a Hotel owner and that he was murdered and she had been a victim of criminal activity in Guatemala when she was in the company of her husband.” On April 29, the IJ denied the motion to reopen for failing to state any new facts and the motion to reconsider for failing to specify any error of law or fact. A cover sheet from the immigration court mailed to Ayala with the IJ’s decision stated: “This decision is final unless an appeal is filed with the Board of Immigration Appeals within 30 calendar days of the date of the mailing of this written decision.” The cover sheet then provides an address of the BIA for the appeal. As explained above, these instructions were also incorrect: Ayala should have been instructed to petition directly to this court for review, not to the BIA. Ortiz-Alfaro, 694 F.3d at 957 (“The regulations do not provide any means for the alien to appeal the IJ’s decision regarding a reasonable fear of persecution to the [BIA].”). In accordance with the court’s instructions, on May 7, 2013, Ayala appealed the denial of the motion to reopen and reconsider to the BIA. On June 18, the BIA dismissed the appeal, stating that “no appeal lies from an Immigration Judge’s decision reviewing a negative Reasonable Fear Determination.” Ayala then filed a petition for review with this court on June 22, 2013, four days after the BIA dismissed her appeal, but more than 30 days after the IJ denied her motion to reopen and reconsider on April 29, 2013. I. Jurisdiction We have jurisdiction to consider our own jurisdiction. Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010). This case presents two jurisdictional questions. A. Jurisdiction to review an IJ’s reasonable fear determination arising under the reinstatement" }, { "docid": "22757300", "title": "", "text": "under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that aliens who have been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct are deportable. On February 17, 2005, an Immigration Judge (IJ) held that Cerezo’s 1998 conviction for domestic abuse and his 2001 conviction for leaving the scene of an accident were both crimes of moral turpitude. The IJ then sustained the charge of removability against Cerezo and ordered him removed to Spain. On March 30, 2005, Cerezo filed a motion to reopen, contending that his conviction under California Vehicle Code § 20001(a) was not a crime involving moral turpitude. The IJ rejected this argument and denied the motion, noting that the elements of a § 20001(a) violation include leaving the scene of an accident knowing that the accident resulted in, or was likely to result in, an injury. Cerezo then filed two notices of appeal with the Board of Immigration Appeals (BIA), both received by the BIA on May 9, 2005. On July 7, 2005, the BIA dismissed as untimely the appeal challenging the IJ’s removal order, because it was filed more than thirty days after the IJ’s February 17, 2005 removal order. See 8 C.F.R. § 1003.38(b), (c). The second notice of appeal sought review of the IJ’s denial of Cerezo’s motion to reopen. In his brief, Cerezo argued that leaving the scene of an accident resulting in bodily injury or death was not a crime involving moral turpitude. The BIA disagreed, and dismissed Cerezo’s appeal on August 15, 2005. Cerezo timely petitioned this court for review of both BIA decisions. We consolidated Cerezo’s two petitions for review on October 18, 2005. Cerezo has not further pursued his challenge to the BIA’s decision of July 7, 2005, and we deem the argument abandoned. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1993). Therefore, the only issue before us is whether the BIA erred in dismissing Cerezo’s appeal from the denial of his motion to reopen. Cerezo raises two arguments in his appeal from the denial of his motion to reopen." }, { "docid": "21153933", "title": "", "text": "appeal, petitioner argued that his conviction was not for an aggravated felony pursuant to 8 U.S.C.A. § 1101(a)(43)(F) and that it was not a crime of moral turpitude. The BIA agreed with the IJ and thus concluded that petitioner had been convicted of a crime of violence and an aggravated felony for purposes of § 1101(a)(43)(F) and § 16(b), and it held that the crime was one involving moral turpitude. On February 8, 2006, the BIA dismissed petitioner’s appeal. On May 17, 2006, petitioner filed a motion asking the BIA to reconsider its February 8, 2006 order. He conceded that his motion was untimely, but he asked the Board to toll the filing deadline or reissue its decision to permit him to file a timely motion to reconsider. The BIA determined that petitioner’s reconsideration motion was untimely, but it considered the motion sua sponte, and, after considering the merits of the motion, denied it. While petitioner’s reconsideration motion was still pending before the BIA, he filed in this Court a Notice of Petition for Review from the BIA’s February 8, 2006 order dismissing his appeal. Petitioner later also filed a timely petition for review from the BIA’s June 2006 order denying his reconsideration motion. II. Perez did not file a timely notice of appeal from the BIA’s February 8, 2006 order dismissing his appeal. Perez’s motion to reconsider was not timely filed, but the BIA exercised its discretion to consider the untimely motion sua sponte and considered the merits of petitioner’s argument that he had not been convicted of an aggravated felony and therefore was not removable. Because petitioner filed a timely notice of appeal with this Court from the BIA’s denial of his motion for reconsideration, we review de novo the BIA’s order agreeing with the IJ that Perez’s conviction for the Texas offense of injury to a child was an aggravated felony rendering him removable. See Oman v. Gonzales, 419 F.3d 303, 306 (5th Cir.2005) (we review de novo whether the statute falls within the INA definition). III. Perez argues that the BIA erred when it concluded that" }, { "docid": "22636914", "title": "", "text": "the BIA and the BIA did not address them in its order, Omari’s arguments regarding his Minnesota assault conviction were not the proper subject of a motion for reconsideration. As such, they were never properly raised before the BIA. Omari has therefore failed to exhaust his administrative remedies as to these issues, and § 1252(d) jurisdictionally bars us from addressing them. 2. Federal Conspiracy Conviction Similarly, Omari neither appealed nor briefed the IJ’s conclusion that his federal conspiracy conviction was a crime involving moral turpitude. Indeed, Omari never addressed this issue — even improperly — before the BIA. Omari has therefore failed to exhaust his administrative remedies as to this issue, and § 1252(d) jurisdietionally bars us from addressing it. 3. Cancellation Omari contends that, in overturning the IJ’s grant of cancellation of removal, the BIA committed legal error by making its own factual findings instead of properly deferring to those of the IJ. As this argument alleges a legal error in the BIA’s decision, Omari necessarily did not address this issue in his initial brief to the BIA. Still, Omari raises this issue for the first time before this court, and the BIA has never had the chance to address it. This court and others have previously held (albeit in unpublished decisions) that cer tain allegations of BIA error must first be brought to the BIA in a motion for reconsideration. See Rivas De Williams v. Gonzales, 239 Fed.Appx. 46, 48 (5th Cir.2007) (per curiam); Manan v. Gonzales, 131 Fed.Appx. 12, 15 (3d Cir.2005). Of particular relevance, the Tenth Circuit has held that allegations of impermissible fact-finding by the BIA must first be brought before the BIA in a motion for reconsideration to satisfy exhaustion. See Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir.2007). Along these lines, Omari could have brought his allegation of impermissible factfinding before the BIA in his motion for reconsideration, and we conclude that his failure to do so constitutes a failure to exhaust the issue. This holding comports with our decisions on the necessity of raising new claims in a motion to reopen." }, { "docid": "22593601", "title": "", "text": "of discretion. See Badwan v. Gonzales, 494 F.3d 566 (6th Cir.2007). First, Badwan’s motion for a continuance was unopposed by the government while Ilic-Lee’s motion was opposed. See Cordova v. Gonzales, No. 06-3917, 2007 WL 2386488, at *6 (6th Cir. August 21, 2007) (unpublished) (finding Badwan distinguishable and holding that the BIA’s affir-mance of IJ’s denial of a continuance was not an abuse of discretion). Second, Bad-wan was requesting his first continuance; Ilic-Lee had considerable time to gather the relevant evidence. See id. Third, the IJ had little reason to believe Badwan would not be able to obtain an adjustment of status whereas the IJ in Ilie-Lee’s case knew that she had already been denied once and she provided no evidence that an application was even pending let alone likely to be approved despite the passage of a considerable amount of time between DHS’s request for evidence, the subsequent 1-130 denial, the first hearing, and the second hearing. See id. Under the circumstances here, it was not an abuse of discretion for the BIA to affirm the IJ’s denial of petitioner’s motion for continuance. B. Motion to reopen with IJ. We review de novo the BIA’s decisions on questions of law. See Denko, 351 F.3d at 726; see also Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir.2005). “An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1) (2003) (emphasis added). Here, the BIA found that the IJ lacked jurisdiction to render a decision on petitioner’s motion to reopen because Ilic-Lee filed a direct and timely appeal to the BIA of the IJ’s January 14, 2005 decision. J.A. 06-3494 at 6. Petitioner admits that the “IJ is divested of jurisdiction over a motion filed after an appeal is filed with the BIA,” but argues that the “BIA treats a motion to reopen that is filed during a pending appeal as" }, { "docid": "23456987", "title": "", "text": "abuse in the third degree. The Department of Homeland Security (“DHS”) denied Cabral’s application for naturalization in 2004 because the sexual abuse convictions rendered him unable to meet the “good moral character” requirement contained in 8 U.S.C. § 1427. DHS later charged Cabral with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Before the IJ, Cabral sought cancellation of removal under 8 U.S.C. § 1229b(a), argued that his two sexual abuse convictions formed part of a single scheme of conduct, sought a § 212(h) waiver, and sought an exercise of discretion by the Attorney General to terminate the removal proceedings. The IJ found that the two offenses did not arise out of a single scheme of conduct and that Cabral was therefore deportable. The IJ also denied Cabral’s requests to terminate the proceedings and cancel removal. Finally, the IJ found Cabral ineligible for a § 212(h) waiver and pretermitted consideration of Cabral’s request for such waiver. Cabral appealed to the BIA. He requested that the BIA hold the proceedings in abeyance while he collaterally attacked his sexual abuse convictions in the New York state courts. The BIA rejected his request and dismissed his appeal. Cabral then timely appealed to this court and simultaneously sought reconsideration by the BIA. The BIA denied Cabral’s motion for reconsideration. Cabral also appealed the BIA’s second denial and this court consolidated the two petitions. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). STANDARD OF REVIEW We review the BIA’s findings of fact for substantial evidence and its legal determinations de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.2007). “The grant of [an abeyance] lies within the sound discretion of the [BIA, which] may grant [an abeyance] for good cause shown. Accordingly, we review a decision to grant or deny [an abeyance] for an abuse of discretion.” Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir.2008) (citations omitted). “Even though we have authority to review only the BIA’s decision, we may consider the IJ’s decision to the extent that it influenced the BIA.” Id. Although we are without" }, { "docid": "22593595", "title": "", "text": "appeal of the IJ’s denial of her motion for continuance with the BIA. She also filed a motion to reopen with the IJ. On February 16, 2005, the IJ denied her motion to reopen. Ilic-Lee appealed that decision to the BIA. On March 22, 2006, the BIA denied Ilic-Lee’s appeal of the IJ’s denial of her motion for continuance and vacated the IJ’s denial of her motion to reopen for lack of jurisdiction. She petitioned this court for review of the BIA’s decision. On or about June 21, 2006, Ilic-Lee filed a second motion to reopen, this one directly to the BIA. The BIA subsequently denied her motion to reopen on July 25, 2006. She petitioned this court for review of the BIA’s denial of her motion to reopen. We subsequently consolidated the two appeals. II. ANALYSIS A. Motion for continuance. We review the BIA’s affirmance of the IJ’s denial of petitioner’s motion for continuance under an abuse-of-discretion standard. Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir.2006). An abuse of discretion occurs if “the denial ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination.” Id. (citing Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982)). Because the BIA did not summarily affirm or adopt the IJ’s reasoning and provided an explanation for its decision, we review the BIA’s decision as the final agency determination. See Nikis v. Ashcroft, 126 Fed.Appx. 731, 736 (6th Cir.2005); see also Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003). An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2003) (emphasis added). Here, the BIA’s reason for its affirmance of the IJ’s denial of the continuance motion was that “[i]t is not good cause to request a continuance to await the results of a collateral event, such as the filing of a motion to reopen visa petition proceedings, which may or may not result in an outcome favorable to the respondent at some uncertain, indefinite date in the future.” J.A. 06-3494 at 5. The" }, { "docid": "22277617", "title": "", "text": "than a decade later, Barrios-Cantarero moved to reopen his removal proceedings and rescind the in absentia order, claiming that he failed to receive proper notice, and in the alternative, that changed conditions in Guatemala entitled him to reopen proceedings. The IJ denied the motion to reopen, determining that the petitioner had received proper notice of the hearing and that conditions in Guatemala had not changed materially since the time of the original hearing. The BIA affirmed the IJ and this petition for review followed. STANDARD OF REVIEW This Court reviews the denial of a motion to reopen “under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005). The Board abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies. Zhao, 404 F.3d at 303; Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345 (5th Cir.2005) (“[W]e conclude that it was legal error, and therefore abuse of discretion.”). The BIA’s conclusions of law are reviewed de novo, although deference is given to the BIA’s interpretation of immigration regulations if that interpretation is reasonable. Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.2006). Factual findings are reviewed for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.2007). DISCUSSION Despite the high review bar, the BIA abused its discretion by denying Barrios-Cantarero’s motion to reopen, because insufficient notice of the removal proceedings entitled him to reopen proceedings at any time. 8 U.S.C. § 1229a(b) (5) (C) (ii) The Immigration and Nationality Act (“INA”) requires the government to give written notice that specifies the “time and place” of removal proceedings to an alien charged with being subject to removal. 8 U.S.C. § 1229(a)(1)(G)®. This written notice must be given either in person or “through service by mail to the alien or to the alien’s counsel of record.” 8 U.S.C. § 1229(a)(1) & (2)(A). If an alien proves that he did not receive notice in compliance with the Act, the alien is entitled" }, { "docid": "22180202", "title": "", "text": "II. Instead, the parties seem to be in agreement that this “discretion” is administratively-determined and proscribed to the IJs via 8 C.F.R. § 1003.29, a federal regulation implemented by the Attorney General. Since only the particular discretionary authorities of the Attorney General expressly “specified” in sections 1151 through 1378 are barred from our review under § 1252(a)(2)(B)(ii), and the discretionary authority to grant or deny a continuance in removal proceedings is not expressly contained within sections 1151 through 1378, we have jurisdiction to review those discretionary decisiohs. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005) (finding jurisdiction under § 1252(a)(2)(B)(ii) to review denial of BIA’s discretionary motion to reopen because the BIA had not exercised any statutorily provided discretion under the sub-chapter of title 8 governing immigration proceedings, but instead had exercised discretion as “delineated” by a regulation of the Attorney General); Medina-Morales v. Ashcroft, 371 F.3d 520, 528-29 (9th Cir.2004) (same); see also Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.2004) (finding jurisdiction to review denial of motion to continue removal proceedings under § 1252(a)(2)(B), but also finding an abuse of discretion in denying continuance); but see Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004) (dismissing petition, and holding that “8 U.S.C. § 1252(a)(2)(B)(ii) bars review of the IJ’s discretionary decision denying petitioner’s motion for a continuance”); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004) (same); Koenig v. INS, 64 Fed.Appx. 996, 998 (6th Cir.2003) (unpublished) (holding that “this court lacks jurisdiction to review what was a purely discretionary decision of the immigration judge”). Our decision is further supported by the “strong presumption in favor of judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Because denials of motions to continue are not statutorily-proscribed discretionary acts “specified under this subchapter” to the Attorney General, as enumerated in § 1252(a)(2)(B).(ii), we have jurisdiction to review them. The IJs Did Not Abuse Their Discretion Although we have jurisdiction under § 1252(a)(2)(B)(ii), the IJs nonetheless did not abuse their discretion by denying petitioners’ motions for continuances" }, { "docid": "22220791", "title": "", "text": "ORDER AMENDING OPINION AND AMENDED OPINION THOMPSON, Senior Circuit Judge. ORDER The Respondent’s Motion to Amend Decision, which motion was filed February 14, 2007, is granted in part. The first sentence of the first paragraph of Section II.A.2 of the Opinion filed January 3, 2007, and published at 472 F.3d 689, 695 (9th Cir.2007), is amended by deleting therefrom the following language: Although we lack jurisdiction to review the IJ’s finding that Morales was removable, we have jurisdiction to review the IJ’s denial of Morales’s applications for asylum and withholding of removal. The following sentence is inserted in place of the deleted sentence: Although we lack jurisdiction to review the IJ’s finding that Morales was removable, we have jurisdiction to review the IJ’s denial of Morales’s application for asylum, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), and to review the IJ’s denial of Morales’s application for withholding of removal to the extent that Morales raises questions of law, including mixed questions of law and fact, or constitutional claims. See 8 U.S.C. § 1252(a)(2)(D); Ramadan v. Gonzales, No. 03-74351, 479 F.3d 646, 650, 2007 WL 528715, 2007 U.S.App. LEXIS 3803, at *2, 9 (9th Cir. Feb. 22, 2007). OPINION Nancy Arabillas Morales, a.k.a. Juan Manuel Arabillas Morales, a male-to-female transsexual, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision summarily affirming an Immigration Judge’s (“IJ”) removal order and denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The IJ concluded that Morales was removable both because she was an alien present in the United States without admission or parole and because she had been convicted of a crime involving moral turpitude — communication with a minor for immoral purposes under section 9.68A.090 of the Revised Code of Washington. The IJ further found Morales would have been eligible for asylum but for her conviction, which the IJ determined was a particularly serious crime. Having made that decision, the IJ denied Morales’s applications for asylum and for withholding of removal. The IJ also denied Morales’s application for CAT relief on the merits, holding that" }, { "docid": "22737252", "title": "", "text": "to put forth any argument in support of his position. Furthermore, because Ghahremani’s appeal raises a mixed question of law and fact, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA’s denial of his motion to reopen. By denying Ghahremani’s motion to reopen as untimely despite his demonstrated due diligence in learning of Soobzokov’s possible ineffectiveness, the BIA abused its discretion. Whatever merit there may be to Ghahre- mani’s ineffective assistance claim we leave to the Board on remand. The Petition for Review in No. 04-71072 is DENIED. The Petition in No. 04-75361 is GRANTED and REMANDED. . Unlike a motion to reconsider, which challenges the BIA’s legal conclusions based on the record before it, see 8 C.F.R. § 1003.2(b)(1), a motion to reopen alleges new facts that bear upon the agency’s earlier decision, see id. § 1003.2(c)(1). . This decision was originally issued on September 1, 2004, but was reissued on September 22, 2004, because the original order was not delivered due to a clerical error. . Even if Ghahremani had argued the denial of his motion to reconsider in his reply brief, we would not be required to address it. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990) (“The general rule is that appellants cannot raise a new issue for the first time in their reply briefs.” (internal quotation marks omitted)). . Ghahremani has never challenged the IJ's determination that his convictions qualified as crimes of moral turpitude or aggravated felonies. On direct appeal to the BIA, in his motions to reconsider and reopen, and in his petitions for review before us, Ghahremani has argued issues relating to discretionary relief and nothing more. . It makes no difference that Ghahremani is seeking review of the BIA’s denial of his motion to reopen — and not his original final order of removal. See Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir.1997) (“[W]ithdrawal of judicial review over final orders of deportation also withdraws jurisdiction from motions to reconsider or to reopen deportation proceedings for those aliens deportable for having committed a crime" }, { "docid": "22757301", "title": "", "text": "dismissed as untimely the appeal challenging the IJ’s removal order, because it was filed more than thirty days after the IJ’s February 17, 2005 removal order. See 8 C.F.R. § 1003.38(b), (c). The second notice of appeal sought review of the IJ’s denial of Cerezo’s motion to reopen. In his brief, Cerezo argued that leaving the scene of an accident resulting in bodily injury or death was not a crime involving moral turpitude. The BIA disagreed, and dismissed Cerezo’s appeal on August 15, 2005. Cerezo timely petitioned this court for review of both BIA decisions. We consolidated Cerezo’s two petitions for review on October 18, 2005. Cerezo has not further pursued his challenge to the BIA’s decision of July 7, 2005, and we deem the argument abandoned. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1993). Therefore, the only issue before us is whether the BIA erred in dismissing Cerezo’s appeal from the denial of his motion to reopen. Cerezo raises two arguments in his appeal from the denial of his motion to reopen. First, he argues that his violation of § 20001(a) did not involve moral turpitude. Second, Cerezo contends that the government failed to prove that he pleaded guilty to a violation of § 20001(a) by clear and convincing evidence. We have “jurisdiction over the affirmance of a denial of a motion to reopen under 8 U.S.C. § 1252(a)(1).” Lin v. Gonzales, 473 F.3d 979, 981 (9th Cir.2007). We review the BIA’s dismissal of such a motion for an abuse of discretion. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir.2005). The BIA abuses its discretion when it makes an error of law. Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir.2002). We review questions of law de novo. United States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir.1991). Whether a “conviction is a crime involving moral turpitude is a question of law.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir.2007) (en banc). II We first consider whether a violation of California Vehicle Code § 20001(a) is categorically a crime involving moral turpitude. “To" }, { "docid": "22760422", "title": "", "text": "review the BIA’s assessment of moral turpitude or its order of removal because the time in which to petition for review has elapsed, we do have jurisdiction to review the denial of Membreno’s motion to reopen for abuse of discretion. See Caruncho, 68 F.3d at 360-62. In her motion to reopen, Membreno asserted that she would not be subject to removal even if her crime were deemed to be one of moral turpitude because she qualifies for the INA’s “petty offense” exception, and that position is advanced in her petition for review. We review the BIA’s decision on a motion to reopen for abuse of discretion. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). The BIA properly denied Mem-breno’s motion to reopen because Membre-no presented the BIA with no new facts, but only new legal arguments. “A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two" }, { "docid": "23456988", "title": "", "text": "sexual abuse convictions in the New York state courts. The BIA rejected his request and dismissed his appeal. Cabral then timely appealed to this court and simultaneously sought reconsideration by the BIA. The BIA denied Cabral’s motion for reconsideration. Cabral also appealed the BIA’s second denial and this court consolidated the two petitions. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). STANDARD OF REVIEW We review the BIA’s findings of fact for substantial evidence and its legal determinations de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.2007). “The grant of [an abeyance] lies within the sound discretion of the [BIA, which] may grant [an abeyance] for good cause shown. Accordingly, we review a decision to grant or deny [an abeyance] for an abuse of discretion.” Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir.2008) (citations omitted). “Even though we have authority to review only the BIA’s decision, we may consider the IJ’s decision to the extent that it influenced the BIA.” Id. Although we are without jurisdiction “to review a decision of the Attorney General to grant or deny a [§ 212(h)] waiver,” 8 U.S.C. § 1182(h), our court has jurisdiction “to review the question of law presented by [Cabral’s] challenge to the BIA’s construction of § 212(h).” Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008) (citing 8 U.S.C. § 1252(a)(2)(D)). DISCUSSION I. Abeyance Cabral sought to hold his appeal before the BIA in abeyance so that he could pursue a motion to vacate the New York state convictions upon which the IJ’s removability finding was based. He argues that the BIA abused its discretion in rejecting his request. The grant of an abeyance of immigration proceedings lies within the sound discretion of the BIA, which may grant an abeyance upon a showing of good cause. See Witter v. INS, 113 F.3d 549, 555 (5th Cir.1997). We find no abuse of that discretion here. “[T]he BIA [does not] abuse[ ] its discretion so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise" } ]

[ { "docid": "4251036", "title": "", "text": "makes the sum payable for breach of contract a penalty rather than liquidated dam ages, even where the parties have styled it liquidated damages rather than a penalty.” City of New York v. B & M Ferry Co., 238 N.Y. 52, 56, 143 N.E. 788 (1924). Nevertheless, defendant has the burden of proving that the liquidated damage clause to which it freely contracted is, in fact, a penalty. See P.J. Carlin Construction Co. v. City of New York, 59 A.D.2d 847, 848, 399 N.Y.S.2d 13, 14 (First Dep’t 1977); Harbor Island Spa, Inc. v. Norwegian America Line A/S, 314 F.Supp. 471, 474 (S.D.N.Y.1970). Commodore argues here that § 9(a) of Rattigan’s employment contract operates as a penalty because it bestows upon Rattigan a sum disproportionate to any conceivable loss from the agreement’s breach, and because it provides a windfall to Rattigan regardless of whether the breach is trivial or serious. Commodore asserts that if Rattigan involuntarily resigned immediately after signing the contract, and received the damages provided in the contract, he would be in a better position than if he continued to work for Commodore for the entire contract term. This argument technically is correct. Although the contract provides that 20 percent of Rattigan’s 500,000 shares will vest free of restrictions each year, § 9(a) provides for accelerated vesting of all the shares free of restrictions. More important, § 9(a) does not require that the accelerated salary and bonuses be discounted to present value; thus, Rattigan would receive more under § 9(a)’s acceleration of certain benefits than he would receive under those benefits provisions in the contract. Nonetheless, the liquidated damage provision is not “grossly disproportionate” to what the parties reasonably could estimate as the anticipated probable loss from breach at the time they signed the contract. First, Rattigan would have received other forms of compensation under the contract not conferred by the liquidated damages provision, but which might be taken into account in a calculation of actual damages for breach. For example, § 9(a) gives Rat-tigan accelerated payment of the two minimum bonuses of $200,000 that are guaranteed under" } ]

[ { "docid": "12959430", "title": "", "text": "Lease Termination Agreement is a binding contract negotiated at arm’s length between McKesson and McKinley who were both represented by experienced counsel, and which clearly entitles McKesson to retain the Termination Fee Deposit under the current circumstances. Defendant’s Memorandum at 14-15. McKinley asserts the liquidated damages clause is void ab initio on five grounds including: (1) the claimed damages are wholly disproportionate to McKesson’s actual loss; (2) the liquidated damages clause is intended solely to compel McKinley’s performance; (3) as written, the liquidated damages clause is triggered by even a trivial breach of the Agreement, thereby rendering the clause unenforceable as a penalty; (4) McKes-son’s potential damages in the event of default were readily calculable when the Agreement was executed; and (5) New York public policy bars enforcement of the liquidated damages clause as it is a penalty and that its inclusion demonstrates the parties’ disparate negotiating power which renders the Agreement an adhesion contract. Plaintiffs Memorandum at 11-21. Whether the liquidated damages clause is void ab initio as an unenforceable penalty permeates the summary judgment arguments. That issue turns on whether the liquidated damages clause in this case provides for damages that are disproportionate to McKesson’s potential loss at the time the Agreement was executed, whether such clause compels performance by a party who might otherwise default, and whether the liquidated damages clause may be invoked upon a party’s breach of a non-substantial contract provision. Accordingly, McKinley’s fourth argument in support of its cross-motion for summary judgment regarding the calculability of McKesson’s damages in the event of McKinley’s default, is subsumed by the first three arguments advanced in support of summary judgment regarding the proportionality of the liquidated damages to McKesson’s potential loss and the court discusses both arguments together. Further, McKinley’s fifth argument will be separately addressed only insofar as it posits that the bargaining power of the parties was so unbalanced that the Agreement is a contract of adhesion. In this case, the court, construing the liquidated damages clause in accordance with how McKesson, as drafter, should reasonably have understood McKinley would interpret it, finds the liquidated" }, { "docid": "12959438", "title": "", "text": "action based on McKinley’s breach and full damages, McKesson shall both retain the $2.5 million Termination Fee Deposit and keep the Lease in full force and effect. That the liquidated damages clause was expressly intended to operate in the event that McKinley defaulted on the third of three Termination Fee payments, namely, the Termination Fee Balance of $2.5 million, plus any adjustment for vacating the premises early, Agreement, ¶ 4.d and e, also is evident by the language permitting McKesson to retain the “Termination Fee Deposit” which is comprised of the first two Termination Fee payments, each worth $1.25 million. Agreement, ¶ 4.c. Thus, the Agreement does not provide McKesson with the option of keeping the lease in full force and effect while returning the Deposit. To find otherwise, as McKinley contends, requires the court effectively to rewrite the agreement to suit McKinley’s post hoc view of the transaction. McKinley argues that by electing to keep the Lease in full force and effect, McKesson chose to cancel the Agreement and return the parties to their status quo ante. Plaintiffs Memorandum at 11-14. This argument, however, ignores the fact that by executing the Agreement, McKes-son undertook a binding obligation to vacate the premises by July 22, 1999, thereby requiring McKesson to locate another site for its warehouse operations and effect a transfer of its operations. McKinley does not dispute that McKesson constructed a new warehouse facility to which McKesson had relocated its distribution operations by March 7, 1999, or that McKesson no longer has any use for the leased premises, which remain vacant, although McKesson remains liable under the Lease for payment of rent and property taxes. Under these circumstances, requiring McKesson to refund the Termination Fee Deposit will return only McKinley to its status quo ante. The continuation of the original lease for the premises is therefore not a means to return the parties to the status quo ante; rather, by preventing expansion into the leased premises by McKinley, the revived leasehold assures McKinley does not gain its objectives as a reward for default. The lease continuation component of the" }, { "docid": "12959431", "title": "", "text": "judgment arguments. That issue turns on whether the liquidated damages clause in this case provides for damages that are disproportionate to McKesson’s potential loss at the time the Agreement was executed, whether such clause compels performance by a party who might otherwise default, and whether the liquidated damages clause may be invoked upon a party’s breach of a non-substantial contract provision. Accordingly, McKinley’s fourth argument in support of its cross-motion for summary judgment regarding the calculability of McKesson’s damages in the event of McKinley’s default, is subsumed by the first three arguments advanced in support of summary judgment regarding the proportionality of the liquidated damages to McKesson’s potential loss and the court discusses both arguments together. Further, McKinley’s fifth argument will be separately addressed only insofar as it posits that the bargaining power of the parties was so unbalanced that the Agreement is a contract of adhesion. In this case, the court, construing the liquidated damages clause in accordance with how McKesson, as drafter, should reasonably have understood McKinley would interpret it, finds the liquidated damages clause is not unenforceable as it (1) does not provide for damages that are disproportionate to the amount of damages McKesson, at the time of execution, may foreseeably have incurred, (2) does not seek to compel McKinley’s performance, (3) is not triggered by non-substantial breaches of the Agreement, and (4) does not render the Agreement an adhesion contract and thus void as against public policy. A. Proportionality of Liquidated Damages McKinley asserts that enforcement of the liquidated damages provision cannot be sustained by this court as McKesson is unable to establish either that the amount of liquidated damages is reasonably proportionate to the probable loss, or the liquidated damages were intended to compensate McKesson for an amount of actual loss that was difficult or impossible to precisely estimate at the time of the contract as required under New York Law. Plaintiffs Memorandum at 11 (citing Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 393 N.Y.S.2d 365, 361 N.E.2d 1015, 1018 (1977), and Vernitron Corp. v. CF 48 Assocs., 104 A.D.2d 409," }, { "docid": "12959439", "title": "", "text": "status quo ante. Plaintiffs Memorandum at 11-14. This argument, however, ignores the fact that by executing the Agreement, McKes-son undertook a binding obligation to vacate the premises by July 22, 1999, thereby requiring McKesson to locate another site for its warehouse operations and effect a transfer of its operations. McKinley does not dispute that McKesson constructed a new warehouse facility to which McKesson had relocated its distribution operations by March 7, 1999, or that McKesson no longer has any use for the leased premises, which remain vacant, although McKesson remains liable under the Lease for payment of rent and property taxes. Under these circumstances, requiring McKesson to refund the Termination Fee Deposit will return only McKinley to its status quo ante. The continuation of the original lease for the premises is therefore not a means to return the parties to the status quo ante; rather, by preventing expansion into the leased premises by McKinley, the revived leasehold assures McKinley does not gain its objectives as a reward for default. The lease continuation component of the liquidated damages clause thus operates not to return the parties to their pre-Agreement positions, but to further assure McKinley’s full performance. Nor is there any merit to McKinley’s argument that McKesson did not suffer any damages in constructing a new warehouse facility as the value of such facility is equal to the amount McKesson spent in constructing it. See Plaintiffs Memorandum at 18. That argument ignores the fact that McKesson was required to spend money to purchase land on which to construct its new warehouse facility in excess of what it would otherwise have spent had McKesson maintained its warehouse operations at the leased premises and continued to exercise its lease renewal options as planned. Specifically, McKesson has submitted an affidavit in which Law explains that the terms of the Lease were very favorable to McKesson, requiring annual rent payments of $18,524 for the year 1998 and $14,820 for the following years, which were “well below the market rate for similar space.” Law Affidavit, ¶ 6; Law Reply Affidavit, ¶ 3. McKinley does not contradict" }, { "docid": "12959444", "title": "", "text": "Further, as explained by Mr. Law, given the lack of demand for commercial warehouse space in the vicinity of Erie County, there was no guarantee that once McKes-son had constructed its warehouse and no longer had any use for the leased premises, it would have been able to sublet the premises to a suitable tenant at a “break even” cost for the remaining term of the Lease. Law Reply Affidavit, ¶ 8. For example, as McKesson had been advised that McKinley intended to demolish the warehouse after McKesson vacated it, McKes-son removed lighting fixtures, thereby degrading the building which, as a result, needs a new roof, lighting fixtures and a sprinkler system installed. Id., ¶ 9. Repairs totaling $800,000 are now required before the warehouse can even be sublet. Id. McKesson would also incur commercial brokerage fees. Id., ¶ 10. McKesson estimates the Lease has a maximum net present value of less than $500,000. Id., ¶ 11. Indeed, McKesson’s only purchase offer for its unexpired leasehold interest was $300,000. Id., ¶ 12. On this record, there is therefore no basis for McKinley’s argument that enforcing the liquidated damages clause would yield a windfall to McKesson, rendering the liquidated damages clause unenforceable as a penalty. Nor is there any merit to McKinley’s argument that McKesson’s potential damages were easily calculable as of the execution of the Agreement on Juné 22, 1998 as the difference between the Termination Fee and the Termination Fee Deposit. Plaintiffs Memorandum at 13-14, 17-18. That McKesson chose to acquire property and construct a new warehouse facility rather than to lease another warehouse is irrelevant to the fact that regardless of the precise nature of McKesson’s decision, unless it terminated business operations, it would incur certain costs. Such costs included inspecting potential sites located in Buffalo, Syracuse, Rochéster and Rome, New York, and also the complicated task of relocating its distribution operations, thereby exposing itself to potential costly business interruptions. Law Reply Affidavit, ¶ 3. The relatively short time frame McKesson had to vacate the Leased Premises required it to incur construction costs even before it received the" }, { "docid": "12959432", "title": "", "text": "damages clause is not unenforceable as it (1) does not provide for damages that are disproportionate to the amount of damages McKesson, at the time of execution, may foreseeably have incurred, (2) does not seek to compel McKinley’s performance, (3) is not triggered by non-substantial breaches of the Agreement, and (4) does not render the Agreement an adhesion contract and thus void as against public policy. A. Proportionality of Liquidated Damages McKinley asserts that enforcement of the liquidated damages provision cannot be sustained by this court as McKesson is unable to establish either that the amount of liquidated damages is reasonably proportionate to the probable loss, or the liquidated damages were intended to compensate McKesson for an amount of actual loss that was difficult or impossible to precisely estimate at the time of the contract as required under New York Law. Plaintiffs Memorandum at 11 (citing Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 393 N.Y.S.2d 365, 361 N.E.2d 1015, 1018 (1977), and Vernitron Corp. v. CF 48 Assocs., 104 A.D.2d 409, 478 N.Y.S.2d 933, 934 (2d Dep’t 1984)). McKesson concedes that a liquidated damages penalty can be sustained under either of these criteria, but maintains that it is McKinley’s burden to establish that under the circumstances existing when the Agreement was executed, the liquidated damages were “plainly disproportionate” to McKesson’s potential loss should McKinley default under the Agreement or that McKesson’s potential loss was capable of precise estimation. Defendant’s Response/Reply Memorandum at 14. Whether a provision is an enforceable liquidated damages provision or an unenforceable penalty is a matter of law to be decided by the court. Vernitron, supra, at 934. “A contractual provision fixing damages in the event of a breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation.” Truck Rent-A-Center, supra, at 1018. In determining whether a contractual provision provides for enforceable liquidated damages or for an unenforceable penalty, the contract must be interpreted in light of the potential loss discernable as of the" }, { "docid": "12959429", "title": "", "text": "damages clause was drafted solely by McKesson’s attorneys who refused to incorporate any changes suggested by McKinley and insisted on including what McKinley characterizes as a “draconian penalty” to assure McKinley’s performance under the Agreement. Soos Affidavit, ¶ 7. McKesson does not dispute that the liquidated damages clause was drafted by its attorneys. As the language in the liquidated damages clause is McKesson’s, the court construes any ambiguity in the clause in McKinley’s favor. Perini Corporation v. City of New York (Pulaski Bridge), 178 F.3d 90, 94 (2d Cir.1999); Moran v. Standard Oil Co. of New York, 211 N.Y. 187, 105 N.E. 217, 220 (1914). Nevertheless, the court must also give the liquidated damages clause the meaning which McKesson, the party who drafted the clause, “ought reasonably to have understood that [McKinley] would put upon them.” Moran, supra. Further, in construing language used in a contract, the law “does not look for precise balance of phrase, promise matched against promise in perfect equilibrium.” Id. at 221. McKesson argues in support of summary judgment that the Lease Termination Agreement is a binding contract negotiated at arm’s length between McKesson and McKinley who were both represented by experienced counsel, and which clearly entitles McKesson to retain the Termination Fee Deposit under the current circumstances. Defendant’s Memorandum at 14-15. McKinley asserts the liquidated damages clause is void ab initio on five grounds including: (1) the claimed damages are wholly disproportionate to McKesson’s actual loss; (2) the liquidated damages clause is intended solely to compel McKinley’s performance; (3) as written, the liquidated damages clause is triggered by even a trivial breach of the Agreement, thereby rendering the clause unenforceable as a penalty; (4) McKes-son’s potential damages in the event of default were readily calculable when the Agreement was executed; and (5) New York public policy bars enforcement of the liquidated damages clause as it is a penalty and that its inclusion demonstrates the parties’ disparate negotiating power which renders the Agreement an adhesion contract. Plaintiffs Memorandum at 11-21. Whether the liquidated damages clause is void ab initio as an unenforceable penalty permeates the summary" }, { "docid": "14662082", "title": "", "text": "February 26, 1993, and the natural expiration of the contract on December 31, 1994. Defendants respond that the Early Termination Amendment is not enforceable, and that even if it is enforceable, it only requires Hunt Health to pay $30,000 in liquidated damages, which is $10,000 per month for 90 days following the February 26,1993, notice of termination. As to defendants’ first argument, the Court holds that the liquidated damages provision is enforceable. “A liquidated damages clause generally will be upheld by a court, unless the liquidated amount is a penalty because it is plainly or grossly disproportionate to the probable loss anticipated when the contract was executed.” United Air Lines, Inc. v. Austin Travel Corp., 867 F.2d 737, 740 (2d Cir.1989) (citing Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 424, 361 N.E.2d 1015, 1018, 393 N.Y.S.2d 365, 369 (1977)). “Liquidated damages are not penalties if they bear a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation.” Id.; see McKinley Associates, LLC v. McKesson HBOC, Inc., 110 F.Supp.2d 169, 178 (W.D.N.Y.2000) (“[C]ourts uphold contractual provisions fixing damages for breach when the terms constitute a reasonable mechanism for estimating the compensation which should be paid to satisfy any loss flowing from the breach.” (internal quotations omitted)). The party challenging the liquidated damages provision bears the burden of proving that the provision constitutes a penalty. Rattigan v. Commodore Intern. Ltd., 739 F.Supp. 167, 170 (S.D.N.Y.1990) (citing P.J. Carlin Constr. Co. v. City of New York, 59 A.D.2d 847, 399 N.Y.S.2d 13, 14 (1st Dep’t 1977)). Defendants have not shown that the liquidated damages provision constitutes a penalty. Defendants offered no evidence to show that the liquidated amount is plainly or grossly disproportionate to the loss Towers could anticipate upon Hunt Health’s early termination. The only evidence at trial as to the probable loss anticipated in September 1992 supports the contrary conclusion. The agreements between the parties provided that Hunt Health could accept up to $1,000,000 in advances from Towers. The factoring fees Hunt Health would owe Towers were" }, { "docid": "12959423", "title": "", "text": "on January 30, 1999 and McKesson had, by March 7,1999, vacated the leased premises and moved all of its personnel, equipment, and inventory to the new facility. As McKesson had vacated the leased premises more than four months before the Vacation Date, McKesson was entitled, under ¶ 3.b. of the Agreement, to $425,000 in addition to the $2.5 million Termination Fee Balance for a total of $2,925,000 which McKesson maintains was due, under the Agreement, from McKinley on March 15, 1999. However, McKinley failed to provide the payment and thus defaulted as to the Termination Fee Balance. McKesson, on March 26, 1999, offered McKinley an additional 60 days to remit the Balance, $2,500,000 of which would be subject to interest payable at the rate of 12% per annum. When McKinley did not agree to the terms of that offer, McKesson, by letter dated April 9, 1999, notified McKinley that as a result of the default, the Lease Termination Agreement had terminated and McKesson was exercising its rights under the liquidated damages clause. Specifically, McKesson advised it would retain the $2.5 million Termination Fee Deposit and that the Lease would remain in full force and effect, although McKesson no longer had any use for the leased premises or the warehouse which, to date, remains vacant. Since then, McKesson has tendered the Basic Rent and real property taxes due under the Lease to McKinley which has routinely refused to accept them. According to McKesson, it is currently holding those amounts in escrow. DISCUSSION McKinley seeks to recover the Termination Fee Deposit from McKesson under two state common law theories including for money had and received and for conversion. McKesson seeks to dismiss the Complaint for failure to state a claim under either of those two theories. Alternatively, McKesson seeks summary judgment on the basis that there is no genuine issue of material fact in dispute, that under the liquidated damages clause of the Lease Termination Agreement, McKesson is entitled to retain the $2.5 million Deposit and that the Lease remains in full force and effect. McKinley cross-moves for summary judgment arguing that" }, { "docid": "12959433", "title": "", "text": "478 N.Y.S.2d 933, 934 (2d Dep’t 1984)). McKesson concedes that a liquidated damages penalty can be sustained under either of these criteria, but maintains that it is McKinley’s burden to establish that under the circumstances existing when the Agreement was executed, the liquidated damages were “plainly disproportionate” to McKesson’s potential loss should McKinley default under the Agreement or that McKesson’s potential loss was capable of precise estimation. Defendant’s Response/Reply Memorandum at 14. Whether a provision is an enforceable liquidated damages provision or an unenforceable penalty is a matter of law to be decided by the court. Vernitron, supra, at 934. “A contractual provision fixing damages in the event of a breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation.” Truck Rent-A-Center, supra, at 1018. In determining whether a contractual provision provides for enforceable liquidated damages or for an unenforceable penalty, the contract must be interpreted in light of the potential loss discernable as of the date of its execution, rather than as of the date of the breach. Truck Rent-A-Center, supra, at 1019; Vernitron Corp., supra, at 934. “[A]ny reasonable doubt as to whether a provision constitutes an unenforceable penalty or a legitimate damages clause should be resolved in favor of a construction which holds the provision to be a penalty.” Vernitron, supra (citing National Telecanvass Associates, Ltd. v. Smith, 98 A.D.2d 796, 470 N.Y.S.2d 22, 24 (2d Dep’t 1983)). “Nevertheless, courts uphold contractual provisions fixing damages for breach when the terms constitute a reasonable mechanism for estimating the compensation which should be paid to satisfy any loss flowing from the breach.” Kahuna Group, Inc. v. Scarano Boat Bldg., Inc., 984 F.Supp. 109, 117 (N.D.N.Y.1997) (citing Leasing Service Corp. v. Justice, 673 F.2d 70, 73 (2d Cir.1982); Truck Rent-A-Center, supra, at 1017, and Wirth & Hamid Fair Booking v. Wirth, 265 N.Y. 214, 192 N.E. 297, 301 (1934)). Generally, courts should not interfere with an agreement for liquidated damages absent some persuasive justification. Fifty States Management Corp. v. Pioneer Auto" }, { "docid": "12959447", "title": "", "text": "fair reading of the entire Agreement, including ¶ 4, the liquidated damages provision, thus demonstrates that both McKinley and McKesson were assuming substantial risks by entering into the Agreement. In particular, McKinley was assuming the risk that Pyramid was willing to pay at least $ 5.6 million dollars, the total potential Termination Fee, for the leased premises to facilitate a then anticipated expansion of the Walden Galleria. McKesson assumed the risk that a suitable replacement warehouse facility would likely cost significantly more than it was currently required to pay under the Lease as to which McKesson had planned to exercise its extension options for the foreseeable future, a fact not disputed for summary judgment purposes. That McKinley’s (and Pyramid’s) plans apparently did not materialize, thereby leaving McKinley exposed to the risk it accepted under the Agreement, ie., that the Termination Fee Deposit constituted a non-refundable inducement to McKesson, does not negate the court’s finding that as of the Agreement’s execution, McKesson’s potential damages were difficult, if not impossible, to estimate. For the above reasons, summary judgment in favor of McKinley should be DENIED on this ground. B. Liquidated Damages Clause As Compelling Performance McKinley also asserts that the liquidated damages clause was intended solely to compel performance, rendering it a penalty and, therefore, unenforceable as the enforcement of the clause would put McKesson in a better position than McKesson would have been in had McKinley fully performed. Plaintiffs Memorandum at 15. Specifically, McKinley maintains that by granting McKesson the right to retain the $2.5 million Termination Fee Deposit, an amount equal to 50% of the negotiated Lease Termination Fee, and permitting McKesson to retain the leasehold interest with a negotiated value of $5 million, the liquidated damages clause confers on McKesson an unearned windfall of $2.5 million which McKesson, in drafting the liquidated damages clause, intended as a means of compelling McKinley’s performance under the Agreement. Id. McKes-son argues in opposition that the liquidated damages clause does not provide for an unconscionable penalty as the remedy it provides is not disproportionate to the actual damages caused by McKinley’s breach. Defendant’s" }, { "docid": "12959435", "title": "", "text": "Parks, Inc., 46 N.Y.2d 573, 415 N.Y.S.2d 800, 389 N.E.2d 113, 116 (1979). As explained by the New York Court of Appeals, [liquidated damages constitute the compensation which, the parties have agreed, should be paid in order to satisfy any loss or injury flowing from a breach of their contract. In effect, a liquidated damage provision is an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement. Parties to a contract have the right to agree to such clauses, provided that the clause is neither unconscionable nor contrary to public policy. Provisions for liquidated damage have value in those situations where it would be difficult, if not actually impossible, to calculate the amount of actual damages to be paid upon breach rather than leaving that amount to the calculation of a court or jury. Truck Rent-A-Center, supra, at 1017-18 (1977) (internal citations omitted). In this case, McKinley asserts that the liquidated damages clause fixes damages in an amount that is wholly disproportionate to McKesson’s potential damages which were easily calculable when the Agreement was executed. Despite its assertion to the contrary, McKinley, which has conceded it defaulted under the Agreement, has the burden to demonstrate that the liquidated damages provision is a penalty. Rattigan v. Commodore International Ltd., 739 F.Supp. 167, 170 (S.D.N.Y.1990) (citing Harbor Island Spa, Inc. v. Norwegian America Line A/S, 314 F.Supp. 471, 474 (S.D.N.Y.1970); and P.J. Carlin Construction Co. v. City of New York, 59 A.D.2d 847, 399 N.Y.S.2d 13, 14 (1st Dep’t 1977)). According to McKinley, as of June 22, 1998, the date the Agreement was executed, the liquidated damages were easily calculable as the difference between the total Lease Termination Fee and the Termination Fee Deposit, and that the $8.9 million McKesson spent in constructing the new warehouse facility is irrelevant. Plaintiffs Memorandum at 17-18. McKinley contends that upon its failure to remit to McKesson the Termination Fee Balance, McKesson had the right to either cancel the Lease Termination Agreement and, thus," }, { "docid": "12959437", "title": "", "text": "not surrender its leasehold interest in the premises, or to assert a claim against McKinley for the Balance, Id. at 14, but that by electing to cancel the Agreement, Defendant chose to return the parties to their status quo ante and thus McKesson, as a matter of law, is barred from retaining both the $2.5 million Deposit and the leasehold interest, which, under the Agreement, has a negotiated value of $5 million. Id. Both arguments fail for several reasons. As written, the liquidated damages provision does not permit McKesson to return the Termination Fee Deposit, yet retain the Lease in full force and effect, thereby returning the parties to their status quo ante. Rather, the Agreement provides that in the event McKinley defaults under the Agreement, “Tenant shall retain the termination fee deposit as liquidated damages, and the lease (including the extension options) shall remain in full force and effect.” Agreement, f 4 (italics added). The use of the conjunction “and” in the liquidated damages clause demonstrates that upon McKinley’s default, in lieu of an action based on McKinley’s breach and full damages, McKesson shall both retain the $2.5 million Termination Fee Deposit and keep the Lease in full force and effect. That the liquidated damages clause was expressly intended to operate in the event that McKinley defaulted on the third of three Termination Fee payments, namely, the Termination Fee Balance of $2.5 million, plus any adjustment for vacating the premises early, Agreement, ¶ 4.d and e, also is evident by the language permitting McKesson to retain the “Termination Fee Deposit” which is comprised of the first two Termination Fee payments, each worth $1.25 million. Agreement, ¶ 4.c. Thus, the Agreement does not provide McKesson with the option of keeping the lease in full force and effect while returning the Deposit. To find otherwise, as McKinley contends, requires the court effectively to rewrite the agreement to suit McKinley’s post hoc view of the transaction. McKinley argues that by electing to keep the Lease in full force and effect, McKesson chose to cancel the Agreement and return the parties to their" }, { "docid": "12959434", "title": "", "text": "date of its execution, rather than as of the date of the breach. Truck Rent-A-Center, supra, at 1019; Vernitron Corp., supra, at 934. “[A]ny reasonable doubt as to whether a provision constitutes an unenforceable penalty or a legitimate damages clause should be resolved in favor of a construction which holds the provision to be a penalty.” Vernitron, supra (citing National Telecanvass Associates, Ltd. v. Smith, 98 A.D.2d 796, 470 N.Y.S.2d 22, 24 (2d Dep’t 1983)). “Nevertheless, courts uphold contractual provisions fixing damages for breach when the terms constitute a reasonable mechanism for estimating the compensation which should be paid to satisfy any loss flowing from the breach.” Kahuna Group, Inc. v. Scarano Boat Bldg., Inc., 984 F.Supp. 109, 117 (N.D.N.Y.1997) (citing Leasing Service Corp. v. Justice, 673 F.2d 70, 73 (2d Cir.1982); Truck Rent-A-Center, supra, at 1017, and Wirth & Hamid Fair Booking v. Wirth, 265 N.Y. 214, 192 N.E. 297, 301 (1934)). Generally, courts should not interfere with an agreement for liquidated damages absent some persuasive justification. Fifty States Management Corp. v. Pioneer Auto Parks, Inc., 46 N.Y.2d 573, 415 N.Y.S.2d 800, 389 N.E.2d 113, 116 (1979). As explained by the New York Court of Appeals, [liquidated damages constitute the compensation which, the parties have agreed, should be paid in order to satisfy any loss or injury flowing from a breach of their contract. In effect, a liquidated damage provision is an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement. Parties to a contract have the right to agree to such clauses, provided that the clause is neither unconscionable nor contrary to public policy. Provisions for liquidated damage have value in those situations where it would be difficult, if not actually impossible, to calculate the amount of actual damages to be paid upon breach rather than leaving that amount to the calculation of a court or jury. Truck Rent-A-Center, supra, at 1017-18 (1977) (internal citations omitted). In this case, McKinley asserts that the liquidated damages clause" }, { "docid": "12959489", "title": "", "text": "part of the warehouse was located on the portion of the leased premises released by the Modification Agreement. . A copy of the Lease Termination Agreement is attached as Exhibit B to Law Affidavit. . The record does not indicate why McKinley defaulted on payment of the Termination Fee Balance; however McKinley, while admitting it defaulted on the payment, maintains the reasons for such default are irrelevant to the instant action. Plaintiff's Memorandum at 3. . $14,820 annual rent X 5 years = $74,100. . As staled, McKesson has continued to tender rent and property tax payments as required under the Lease, thereby avoiding any grounds on which McKinley could evict McKesson and regain possession of the leased premises. It therefore is unlikely that McKinley could regain possession of the leased premises absent a new agreement with McKesson which could cost McKinley more than the amount that was due as the Termination Fee Balance under the Agreement. However, that problem is one of McKinley's own making and is, in any event, irrelevant for purposes of the instant motions. . Should McKesson default on payment of rent or real property taxes, McKinley would have the right, under the Lease, to evict McKesson and thereby essentially acquire McKesson's leasehold interest in the premises at a cost of $2.5 million, the amount of the Termination Fee Deposit paid to McKesson. Lease, ¶¶ 6, 8. See also, Discussion, supra, at 179, noting effect of reinstating the Lease as a means to further prevent McKinley from obtaining its business objective through default. . A careful reading of the Agreement reveals that McKinley retained its full range of remedies in the case of McKesson’s default, including consequential damages and, importantly, specific performance. Thus, while the liquidated damages clause is solely directed to McKinley's default, the Agreement as a whole, although not creating perfect symmetry regarding remedies, does not leave McKinley defenseless. To the contrary, had McKinley's deal with Pyramid proceeded as originally planned and McKesson refused to act in good faith to vacate, McKesson would have been exposed to equitable relief and, potentially, substantial damages, remedies" }, { "docid": "12959448", "title": "", "text": "judgment in favor of McKinley should be DENIED on this ground. B. Liquidated Damages Clause As Compelling Performance McKinley also asserts that the liquidated damages clause was intended solely to compel performance, rendering it a penalty and, therefore, unenforceable as the enforcement of the clause would put McKesson in a better position than McKesson would have been in had McKinley fully performed. Plaintiffs Memorandum at 15. Specifically, McKinley maintains that by granting McKesson the right to retain the $2.5 million Termination Fee Deposit, an amount equal to 50% of the negotiated Lease Termination Fee, and permitting McKesson to retain the leasehold interest with a negotiated value of $5 million, the liquidated damages clause confers on McKesson an unearned windfall of $2.5 million which McKesson, in drafting the liquidated damages clause, intended as a means of compelling McKinley’s performance under the Agreement. Id. McKes-son argues in opposition that the liquidated damages clause does not provide for an unconscionable penalty as the remedy it provides is not disproportionate to the actual damages caused by McKinley’s breach. Defendant’s Response/Reply Memorandum at 13-19. “A [liquidated damages] clause which provides for an amount plainly disproportionate to actual damages is deemed a penalty and not enforceable because it compels performance by the very disproportion between liquidated and actual damages.” Wilmington Trust Co. v. Aerovias de Mexico, S.A., 893 F.Supp. 215, 218 (S.D.N.Y.1995) (citing cases). “The rationale for this principle is that contractual terms fixing damages in an amount clearly disproportionate to actual loss seek to deter breach through compulsion and have an in terrorem effect: fearing severe economic loss, the promisor is compelled to continue performance, while the promisee may reap a windfall well in excess of his just compensation.” Leasing Service Corp., supra, at 73. A rudimentary review of the information supplied to the court indicates that McKes-son did not reap any windfall as a result of the liquidated damages clause. For example, the annual rent on the leased premises for the second 5-year Lease extension was approximately $14,820. Assuming, for the sake of this discussion, that was also the annual rent for the four" }, { "docid": "12959436", "title": "", "text": "fixes damages in an amount that is wholly disproportionate to McKesson’s potential damages which were easily calculable when the Agreement was executed. Despite its assertion to the contrary, McKinley, which has conceded it defaulted under the Agreement, has the burden to demonstrate that the liquidated damages provision is a penalty. Rattigan v. Commodore International Ltd., 739 F.Supp. 167, 170 (S.D.N.Y.1990) (citing Harbor Island Spa, Inc. v. Norwegian America Line A/S, 314 F.Supp. 471, 474 (S.D.N.Y.1970); and P.J. Carlin Construction Co. v. City of New York, 59 A.D.2d 847, 399 N.Y.S.2d 13, 14 (1st Dep’t 1977)). According to McKinley, as of June 22, 1998, the date the Agreement was executed, the liquidated damages were easily calculable as the difference between the total Lease Termination Fee and the Termination Fee Deposit, and that the $8.9 million McKesson spent in constructing the new warehouse facility is irrelevant. Plaintiffs Memorandum at 17-18. McKinley contends that upon its failure to remit to McKesson the Termination Fee Balance, McKesson had the right to either cancel the Lease Termination Agreement and, thus, not surrender its leasehold interest in the premises, or to assert a claim against McKinley for the Balance, Id. at 14, but that by electing to cancel the Agreement, Defendant chose to return the parties to their status quo ante and thus McKesson, as a matter of law, is barred from retaining both the $2.5 million Deposit and the leasehold interest, which, under the Agreement, has a negotiated value of $5 million. Id. Both arguments fail for several reasons. As written, the liquidated damages provision does not permit McKesson to return the Termination Fee Deposit, yet retain the Lease in full force and effect, thereby returning the parties to their status quo ante. Rather, the Agreement provides that in the event McKinley defaults under the Agreement, “Tenant shall retain the termination fee deposit as liquidated damages, and the lease (including the extension options) shall remain in full force and effect.” Agreement, f 4 (italics added). The use of the conjunction “and” in the liquidated damages clause demonstrates that upon McKinley’s default, in lieu of an" }, { "docid": "12959445", "title": "", "text": "there is therefore no basis for McKinley’s argument that enforcing the liquidated damages clause would yield a windfall to McKesson, rendering the liquidated damages clause unenforceable as a penalty. Nor is there any merit to McKinley’s argument that McKesson’s potential damages were easily calculable as of the execution of the Agreement on Juné 22, 1998 as the difference between the Termination Fee and the Termination Fee Deposit. Plaintiffs Memorandum at 13-14, 17-18. That McKesson chose to acquire property and construct a new warehouse facility rather than to lease another warehouse is irrelevant to the fact that regardless of the precise nature of McKesson’s decision, unless it terminated business operations, it would incur certain costs. Such costs included inspecting potential sites located in Buffalo, Syracuse, Rochéster and Rome, New York, and also the complicated task of relocating its distribution operations, thereby exposing itself to potential costly business interruptions. Law Reply Affidavit, ¶ 3. The relatively short time frame McKesson had to vacate the Leased Premises required it to incur construction costs even before it received the first of the three Lease Termination Fee payments in August 1998. As of June 22,1998, McKes-son had yet to find land on which to construct its new warehouse facility. Even if McKesson had chosen to lease other premises, given McKesson’s substantial space requirements, it is quite likely any new landlord would have required a long-term lease or a significant security deposit, if not both, resulting in serious financial exposure to McKesson if the terms of the Agreement were not ultimately consummated. . Moreover, McKinley’s theory overlooks the reality of construction schedules which frequently are delayed beyond the parties’ expectations resulting in potentially substantial business losses to the developer, in this case McKesson. The fact that McKesson was able to acquire a suitable relocation site does not negate the presence -of this risk factor to McKesson at the time of execution of the Agreement. Thus, as of June 22, 1998, the date the Agreement was executed, McKesson’s potential damages in the event McKinley defaulted under the Agreement were difficult, if not impossible, to estimate. Here, a" }, { "docid": "12959446", "title": "", "text": "first of the three Lease Termination Fee payments in August 1998. As of June 22,1998, McKes-son had yet to find land on which to construct its new warehouse facility. Even if McKesson had chosen to lease other premises, given McKesson’s substantial space requirements, it is quite likely any new landlord would have required a long-term lease or a significant security deposit, if not both, resulting in serious financial exposure to McKesson if the terms of the Agreement were not ultimately consummated. . Moreover, McKinley’s theory overlooks the reality of construction schedules which frequently are delayed beyond the parties’ expectations resulting in potentially substantial business losses to the developer, in this case McKesson. The fact that McKesson was able to acquire a suitable relocation site does not negate the presence -of this risk factor to McKesson at the time of execution of the Agreement. Thus, as of June 22, 1998, the date the Agreement was executed, McKesson’s potential damages in the event McKinley defaulted under the Agreement were difficult, if not impossible, to estimate. Here, a fair reading of the entire Agreement, including ¶ 4, the liquidated damages provision, thus demonstrates that both McKinley and McKesson were assuming substantial risks by entering into the Agreement. In particular, McKinley was assuming the risk that Pyramid was willing to pay at least $ 5.6 million dollars, the total potential Termination Fee, for the leased premises to facilitate a then anticipated expansion of the Walden Galleria. McKesson assumed the risk that a suitable replacement warehouse facility would likely cost significantly more than it was currently required to pay under the Lease as to which McKesson had planned to exercise its extension options for the foreseeable future, a fact not disputed for summary judgment purposes. That McKinley’s (and Pyramid’s) plans apparently did not materialize, thereby leaving McKinley exposed to the risk it accepted under the Agreement, ie., that the Termination Fee Deposit constituted a non-refundable inducement to McKesson, does not negate the court’s finding that as of the Agreement’s execution, McKesson’s potential damages were difficult, if not impossible, to estimate. For the above reasons, summary" }, { "docid": "12959463", "title": "", "text": "McKesson drafted the Agreement, the drafts were reviewed by McKinley’s attorneys. Soos Affidavit, ¶ 12. Mr. Soos also separately initialed the space immediately following the liquidated damages provision, which is set out in capitalized typeface. See Agreement, ¶ 4. There is thus no basis on which a reasonable trier of fact could find that Soos was not in a position to understand and know whether the terms of the liquidated damages provision were acceptable or that McKinley was other than a sophisticated commercial party. Nor does the liquidated damages clause demonstrate that McKesson engaged in “exploitative overreaching” as McKinley asserts. Plaintiffs Reply Memorandum at 6. In particular, McKesson remains liable under the liquidated damages provision for both rent and real property tax payments on a warehouse for which it has no use over the next 57 months, even though it received only $2.5 million of the possible $5.6 million bargained for under the Agreement, a figure on which McKesson undoubtedly relied in deciding to construct a replacement warehouse. Further, that McKesson may have had superior bargaining power with regard to the Agreement than McKinley does not render the Agreement a contract of adhesion. Westinghouse Electric Corp. v. New York City Transit Authority, 82 N.Y.2d 47, 603 N.Y.S.2d 404, 623 N.E.2d 531, 535 (1993) (“The court should not, except for compelling reasons, wrest away from contracting parties a superior marketplace bargaining hand and try to equalize relatively arm’s length commercial dealings.”). Rather, McKesson’s position as the party which ultimately controlled whether to terminate its leasehold interest in the leased premises was a factor to be considered by McKinley in calculating the risk it undertook in seeking the Agreement. See Westinghouse Electric, supra. That McKinley originally offered McKesson $2 million for relinquishing its interest in the leasehold, and McKesson countered with a $7 million demand, while the parties settled on a final price of $5 million indicates that McKinley was not without any bargaining power. McKinley’s contention of inequality of bargaining power is further belied by the fact that although McKesson’s foreseeable damages were forecast at $5 million, McKesson succeeded in obtaining" } ]

[ { "docid": "10572026", "title": "", "text": "MEMORANDUM AND ORDER PERRY, District Judge. This matter is before the Court on the parties’ cross-motions for summary judg ment. Plaintiffs’ complaint seeks declaratory and injunctive relief enjoining defendants from enforcing certain portions of Missouri’s recently effective campaign reform statutes, which plaintiffs contend violate the first amendment by impermissibly restricting political speech. The challenged provisions were contained in Senate Bill 650, which passed the state legislature in 1994 and became effective on January 1, 1995, and in Proposition A, which was passed by vote of the electorate on November 8, 1994, and which became effective that same day. Both Senate Bill 650 and Proposition A are “campaign reform” packages, in that they limit contributions, spending, and other actions that may be taken in political campaigns for Missouri elective offices. The limits on campaign contributions contained in Proposition A have been upheld by the United States District Court for the Western District of Missouri, in Carver v. Nixon, 882 F.Supp. 901 (W.D.Mo.1995), and those contribution limits are not in issue in this suit. Instead, plaintiffs challenge the spending limits contained in Senate Bill 650, the Proposition A limits on amounts a candidate may carry over from one election to the next, the application of Proposition A’s contribution limits to a candidate’s own money, and a provision of Senate Bill 650 that requires certain campaign advertisements to state that they are approved and authorized by the candidate. Plaintiff Shrink Missouri Government PAC is a Missouri political action committee. Plaintiff W. Bevis Schock is a Missouri citizen who ran, unsuccessfully, for the Republican nomination for United States Congress in the 1992 primary. Plaintiff Frederick T. Dyer previously served in both the Missouri House of Representatives and Missouri Senate, and was defeated in his bid for reelection to the Missouri Senate in 1994. Both individual plaintiffs state that they wish to run for office in the future, and the PAC plaintiff states that it wishes to continue to contribute to candidates for Missouri office in the future. Defendants are John Maupin, sued in his official capacity as Chair of the Missouri Ethics Commission, and" } ]

[ { "docid": "22853778", "title": "", "text": "Rev. 797 (1990); D. Magleby & C. Nelson, The Money Chase 78 (1990). Given the conflict among these publica tions, and the absence of any reason to think that public perception has been influenced by the studies cited by respondents, there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters. C Nor do we see any support for respondents’ various arguments that in spite of their striking resemblance to the limitations sustained in Buckley, those in Missouri are so different in kind as to raise essentially a new issue about the adequacy of the Missouri statute’s tailoring to serve its purposes. Here, as in Buckley, “[t]here is no indication . . . that the contribution limitations imposed by the [law] would have any dramatic[ally] adverse effect on the funding of campaigns and political associations,” and thus no showing that “the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.” 424 U. S., at 21. The District Court found here that in the period since the Missouri limits became effective, “candidates for state elected office [have been] quite able to raise funds sufficient to run effective campaigns,” 5 F. Supp. 2d, at 740, and that “candidates for political office in the state are still able to amass impressive campaign war chests,” id., at 741. The plausibility of these conclusions is buttressed by petitioners’ evidence that in the 1994 Missouri elections (before any relevant state limitations went into effect), 97.62 percent of all contributors to candidates for state auditor made contributions of $2,000 or less. Ibid.; App. 34-36. Even if we were to assume that the contribution limits affected respondent Fredman’s ability to wage a competitive campaign (no small assumption given that Fredman only identified one contributor, Shrink Missouri, that would have given him more than $1,075 per election), a showing of one affected individual does not point up a system of suppressed political advocacy that would be unconstitutional under Buckley. These conclusions of the District" }, { "docid": "2341709", "title": "", "text": "Tr., Vol. I pp. 25 et seq.; Appellants’ App., Tab 7, Pis.’ First Amended Compl. In fact, the evidence demonstrates that Corder feels' secure enough from assault that he filed a grievance about a policy change that was apparently designed to prevent such assaults from occurring. Corder thus has not shown a substantial likelihood that the unconstitutional practices he complained about at trial will recur or affect him in the future. The injunctive relief Corder requests, therefore, will only benefit other inmates, particularly new inmates. Injunc-tive relief, however, must be carefully tailored to remedy the alleged specific harm to the parties involved. See United States v. Articles of Drug, 825 F.2d 1238, 1247-48 (8th Cir.1987); see also Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir.1990); Brown v. Trustees of Boston Univ., 891 F.2d 337 (1st Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990) (classwide relief appropriate only where there is a properly certified class). This is not a class action. Corder, therefore, is not entitled to the injunctive relief he requests. In addition, much of the injunctive relief Corder requests in this case is beyond the power of the superintendent of an individual institution to grant. He requests, inter alia, a transfer to the Missouri Eastern Correctional Center, orientation programs on sexual assaults for new inmates, a different system to classify and segregate some inmates from others, and no temporary stay in administrative segregation before entering protective custody. All these aspects of institutional life are governed by a centralized authority, the Missouri Department of Corrections, and the superintendent has no power to change centralized decisions. Appellee — Cross-Appellant’s Supplemental App., Tab 3 at 14-16, Aff. of George A. Lombardi, Director of Adult Institutions for the Missouri Department of Corrections and Human Resources. For the foregoing reasons, we affirm the district court’s denial of the motion for injunctive relief. C. Denial of J.N.O.V. • Dowd argues that the district court erred when it denied his motion for j.n.o.v. because plaintiffs failed to prove that they faced a pervasive risk of sexual assault at FCC. He contends" }, { "docid": "11488329", "title": "", "text": "BOWMAN, Circuit Judge. Missouri’s Campaign Finance Disclosure Law, Mo.Rev.Stat. Ch. 130 (1994), was amended twice in 1994. In July the state legislature adopted a measure commonly known as Senate Bill 650, and in November the citizens of Missouri adopted a ballot initiative commonly known as Proposition A. Both of these measures limit election campaign contributions and expenditures and thus tend to limit the free exercise of political speech that the First Amendment guarantees. W. Bevis Schock and Frederick T. Dyer, prospective candidates for public office, and Shrink Missouri Government PAC, a political action committee (PAC) planning to make campaign contributions in future elections, sought a permanent injunction against the implementation and enforcement of the following provisions of the amended Campaign Finance Disclosure Law: (1) the Proposition A limits on campaign contribu- Missouri. tions, Mo.Ann.Stat. § 130.100 (Vernon Supp. 1995), as applied to contributions by candidates to their own campaigns; (2) the limits on total expenditures by candidates, id §§ 130.052, 130.053; (3) the restrictions on carrying over campaign funds from one election to another, id § 130.130; and (4) the requirement that negative campaign advertisements state that they were approved and authorized by the candidate on whose behalf they were disseminated, id § 130.031. On cross-motions for summary judgment, the District Court held that each of these provisions violated the First Amendment rights of candidates and their contributors. The court enjoined the Attorney General of Missouri and the Chair of the Missouri Ethics Commission (referred to herein jointly as “the state”) from implementing, enforcing, or aching in reliance on the challenged provisions. Shrink Missouri Government PAC v. Maupin, 892 F.Supp. 1246 (E.D.Mo.1995). The state now timely appeals. After a de novo review of the District Court’s judgment, see Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th Cir.1994), we conclude that the challenged provisions violate the First Amendment. We therefore affirm the well-reasoned decision of the District Court. I. As a preliminary matter, we must address the state’s contention that summary judgment should not have been granted because genuine issues of material fact remain in dispute. See Fed.R.Civ.P. 56(c)." }, { "docid": "20064474", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. The campaign contribution limits in Proposition A, Mo.Ann.Stat. § 130.100 (Vernon Supp.1995), adopted by initiative, were declared constitutional by the district court, which refused to enjoin their implementation. Carver v. Nixon, 882 F.Supp. 901 (W.D.Mo.1995). Thomas D. Carver appeals, arguing that the district court erred in ruling that the Proposition A contribution limits for state and local candidates did not violate a contributor’s freedoms of speech and association under the First Amendment. We conclude that section 130.100 is unconstitutional and reverse the judgment of the district court. In the spring of 1994, the Missouri General Assembly passed Senate Bill 650, adopting campaign contribution limits to become effective January 1, 1995. See Mo.Rev.Stat. § 130.032 (1994). Voters approved Proposition A at the November 8, 1994 election. Proposition A adopted lower contribution limits and became effective immediately. The Missouri Attorney General issued an opinion stating that, although both Proposition A and Senate Bill 650 “concern cam paign finance, they are not irreconcilably inconsistent.” Missouri Ethics Commission, Op.Atty.Gen. No. 218-94 (Dec. 6, 1994), at 4. The Attorney General stated that the two provisions stand together in regulating campaign finance, and to the extent there is a conflict between specific provisions of the statutes, the more restrictive provision prevails. Id. Thus, the lower campaign contribution limits of Proposition A control. The contribution limits in Proposition A are limits “per election cycle per candidate.” Mo.Ann.Stat. § 130.100. The statute provides that no person or committee shall make a contribution to any one candidate or candidate committee with an aggregate value in excess of: (a) $100 for candidates in districts with fewer than 100,000 residents; (b) $200 for other than statewide candidates in districts of 100,000 or more residents; and (c) $300 for statewide candidates. Mo.Ann.Stat. § 130.100. Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer, and Secretary of State are enumerated as statewide candidates for purposes of the section. Mo.Ann.Stat. § 130.100(2) [sic]. Senate Bill 650 imposed limits for each election. Thus, on an election cycle basis, the Senate Bill 650 limits are twice the amount enumerated in the text of" }, { "docid": "17870067", "title": "", "text": "BOWMAN, Chief Judge. Shrink Missouri Government PAC and Zev David Fredman (collectively, SMG) appeal from the decision of the District Court granting summary judgment to members of the Missouri Ethics Commission, Missouri Attorney General Jay Nixon, and St. Louis County Prosecuting Attorney Robert P. McCullough (collectively, the State) on SMG’s challenge to certain provisions of Missouri’s campaign finance iaw. We reverse and remand. I. In July 1994, the Missouri legislature, by enacting Senate Bill 650 (SB650), adopted certain amendments to the state campaign finance law that, among other things, restrict the amount of campaign contributions that persons can make to candidates for public office. The limits were to become effective on January 1, 1995. In November 1994, the electorate approved Proposition A, a ballot initiative that imposed even more restrictive contribution limits than those contained in SB650. Proposition A became effective immediately upon voter approval. In December 1995, this Court held that the Proposition A limits on campaign contributions violated the First Amendment. See Carver v. Nixon, 72 F.3d 633 (8th Cir.1995), cert. denied, 518 U.S. 1033, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996). At that time, the limits of SB650 became effective. Under the provisions of SB650 challenged here, “the amount of contributions made by or accepted from any person other than the candidate in any one election shall not exceed” $1,075 to candidates for governor, lieutenant governor, secretary of state, state treasurer, state auditor, or attorney general, or for any office where the population of the electoral district is 250,000 or more; $525 to candidates for state senator, or for any office where the population of the electoral district is 100,000 or more; and $275 to candidates for state representative, or for any office where the population of the electoral district is less than 100,000. Mo.Rev.Stat. § 130.032.1 (Supp.1997) (as amended early in 1998 by the Missouri Ethics Commission to account for inflation, see Mo.Rev.Stat. § 130.032.2 (Supp.1997)). SMG, a political action committee organized and doing business in Missouri, and Fredman, a resident of and registered voter in Missouri and an unsuccessful candidate for the Republican party’s nomination" }, { "docid": "20064508", "title": "", "text": "accept any contribution with an aggregate value in excess of the limits stated in this section. (4) For purposes of this section the term “candidate” shall include the candidate, the candidate’s treasurer, and the candidate's committee and any contribution to the candidate's treasurer or candidate committee shall be deemed a contribution to the candidate. Mo.Ann.Stat. § 130.100. . Other provisions of Senate Bill 650 and Proposition A were the subject of litigation in Shrink Missouri Government PAC v. Maupin, 892 F.Supp. 1246 (E.D.Mo.1995). We heard the appeal in that case on the same day as this appeal. See Shrink Mo. Gov’t PAC v. Maupin, 71 F.3d 1422 (8th Cir.1995). . An election cycle is \"the period of time from general election for an office until the next general election for the same office.” Mo.Ann.Stat. § 130.011 (Vernon Supp.1995). Thus, an election cycle includes the primary and general election. ' . This issue was not before the district court. However, the district court in Shrink Missouri Government PAC, 892 F.Supp. at 1251, addressed the applicability of Proposition A to the candidate's own contributions. The district court found that when Proposition A and Mo.Rev.Stat. § 130.01 l(12)(a) (1994) are read together, the statute limits a candidate's ability to spend his own money on his campaign. Id. Finding that Buckley prohibits a limit on the amount a candidate may contribute to his own campaign, the district court enjoined the application of section 130.01 1(12)(a) to the Proposition A contribution limits. Shrink Mo.Gov't PAC, 892 F.Supp. at 1251. We affirmed this holding in Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422, 1424-25. . In Buckley, 424 U.S. at 27 n. 28, 96 S.Ct. at 638 n. 28, the Court cites the court of appeals discussion of such abuses in Buckley v. Valeo, 519 F.2d 821, 839-40 nn. 36-38 (D.C.Cir.1975) (per curiam). The court of appeals listed examples of large contributions including: dairy organizations pledging two million dollars to the Nixon campaign in an effort to schedule a meeting with White House officials regarding price supports, id. at 839 n. 36; contributions from the" }, { "docid": "14734992", "title": "", "text": "989 F.Supp. 1282 (E.D.Cal.1997) (declining to reconsider prior intervention by initiative proponents in light of Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). Legislators and candidates, whose interests are directly implicated by campaign regulation, have often acted as intervenors. In one challenge to contribution limits, the district court granted summary judgment against plaintiffs challenging the law, and thus denied as moot a state legislator’s motion to intervene. Shrink Missouri Government PAC v. Adams, 5 F.Supp.2d 734, 742-43 (E.D.Mo.), rev’d on other grounds, 161 F.3d 519 (8th Cir.1998), cert. granted sub nom. Nixon v. Shrink Missouri Government PAC, — U.S. -, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999). On appeal, the Eighth Circuit allowed the legislator to intervene. See Shrink Mo. Gov’t Political Action Comm. v. Adams, No. 98-2351 (8th Cir. Aug. 3, 1998) (order permitting intervention). In a lawsuit challenging limits on spending by candidates for state judgeships, the court allowed intervention by judges and judicial candidates on both sides. See Suster v. Marshall, 149 F.3d 523, 526 (6th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999). In a challenge to a city campaign-finance ordinance, the court allowed intervention by a once and future candidate for city council. See Kruse v. City of Cincinnati, No. C-1-96-252 (S.D. Ohio filed Oct. 21, 1996) (order granting intervention). In constitutional challenges to comprehensive state regulations of campaign finance similar to those at issue in this case, two courts allowed intervention by parties including legislators intending to run for re-election and unsuccessful candidates planning to seek office again. See Vermont Right to Life Comm., Inc. v. Sorrell, No. 2:97-286 (D.Vt. Jan. 5, 1998) (allowing, from the bench, intervention as of right or, in the alternative, permissive intervention); Arkansas Right to Life State Political Action Comm. v. Butler, No. 97-5064 (W.D.Ark. Sept. 30, 1997) (order granting permissive intervention). We have not found, and appellees did not submit, any decision denying, on the merits, intervention by candidates and legislators in a campaign-finance dispute. As a leading commentator has noted, “[A] lawsuit often is" }, { "docid": "21008687", "title": "", "text": "that “[njeither the right to associate nor the right to- participate in political activities is absolute.” Id. at 25, 96 S.Ct. at 637-38 (citations omitted). The Court instructed that these rights may be limited if the limitation is “closely drawn to avoid unnecessary abridgment of associational freedoms” and if the state “demonstrates a sufficiently important interest.” Id., at 25, 96 S.Ct. at 637-38. In a decision directly applicable here, the Eighth Circuit, only two years ago, decided the constitutionality of a Missouri initiative on campaign contribution limits. The court found the initiative’s limits too low to pass constitutional muster, in spite of the fact that the initiative passed by a three-fourths majority. Carver v. Nixon, 72 F.3d 633 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996). This Missouri law limited campaign contributions by a person or committee to a candidate or candidate committee to: (1) $100 for candidates in districts with populations of less than 100,000; (2) $200 for non-statewide candidátes in districts with a population of 100,-000 or more; and (3) $300 for statewide candidates. Id. at 635. Statewide candidates were defined by the Missouri statute as Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer, and Secretary of State. The Missouri limits applied to an “election cycle,” defined by Missouri statute as “the period of time from general election for an office until the next general election for the same office.” Id. at 635 & n. 3 (citing Mo.Ann.Stat. § 130.100 (Vernon Supp.1995)). An election cycle included both the primary and the general election. Id. Thus, a candidate for statewide office in Missouri could receive a total of $300 for both the primary and general elections. Conversely, Arkansas’ limit is $300 per election. In Arkansas, a candidate for one of the enumerated statewide races could receive a total of $900, assuming a primary race, a run off, and then a general election. In Carver, the plaintiff argued, as the plaintiffs do here, that the contribution limits unconstitutionally infringed on his First Amendment rights to political expression and freedom of association. After noting that individual" }, { "docid": "14407882", "title": "", "text": "a district court or a three-judge panel is free to reexamine the holding of a prior panel in light of an inconsistent decision by a court of last resort on a closely related, but not identical issue.” Id. at 899. The court concluded that intervening Supreme Court authority “need not be identical,” but the decision “must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are dearly irreconcilable.” Id. at 900 (emphasis added). Neither VanNatta nor Service Employees is clearly irreconcilable with Shrink Missouri. As discussed in more detail below, the volume of evidence presented in Shrink Missouri to justify its individual limits was substantial. See, e.g., 528 U.S. at 393-94, 120 S.Ct. 897. That factor alone is sufficient to distinguish Shrink Missouri from VanNatta where the court found that the State had failed “to point to any evidence which demonstrates that all out-of-district contributions lead to the sort of corruption discussed in Buckley.” VanNatta, 151 F.3d at 1221. Similarly, Service Employees is distinguishable from Shrink Missouri because the former involved, among other things, an outright ban on certain types of campaign contributions, while the latter only involved limits on contributions. In finding a ban on inter-candidate contributions unconstitutional, the court in Service Employees noted that “[t]he potential for corruption stems not from campaign contributions per se but from large campaign contributions.” 955 F.2d at 1323. The majority does not explain how that decision is inconsistent, much less clearly irreconcilable, with the Supreme Court’s decision in Shrink Missouri upholding individual contribution limits. See Shrink Missouri, 528 U.S. at 387-89, 120 S.Ct. 897. Moreover, under both VanNatta and Shrink Missouri, actual evidence is required; mere conjecture that special interest money corrodes politics in Montana is inadequate to carry a First Amendment burden. See Shrink Missouri, 528 U.S. at 392, 120 S.Ct. 897; VanNatta, 151 F.3d at 1221. Nevertheless, the majority finds that the evidence here exceeds the evidence presented in Shrink Missouri. I disagree. In Shrink Missouri, the State presented an affidavit from a state senator who expressed that large contributions have" }, { "docid": "11488344", "title": "", "text": "130.053 are not complete and susceptible of constitutional enforcement and we cannot conclude that the legislature would have adopted them had it known the expenditure limits were unconstitutional. The District Court thus did not err when it enjoined the enforcement and implementation of sections 130.052 and 130.053 in their entirety. C. In Proposition A the citizens of Missouri adopted a measure designed to address the practice of carrying over “war chests” of campaign funds for future elections. Under the ballot initiative measure, within ninety days of an election a candidate must turn over any excess funds, “except for an amount no greater than ten times the individual contribution limit” for the office sought, to the Missouri Ethics Commission or to contributors. Mo.Ann.Stat. § 130.130 (Vernon Supp. 1995). This is popularly known as a “spend-down provision” because candidates will most likely choose to spend all of their funds during the last days of the campaign rather than returning funds to contributors or turning them over to the state. The ability of a candidate to retain contributions for future elections is thus substantially limited. The District Court held that the spend-down provision imposes a substantial burden on political speech by requiring that funds raised during a particular campaign be spent during the campaign. The court rejected the state’s assumption that “blind support” in the form of a contribution that can be used in the current campaign or any future campaign “must constitute an impermissible attempt at improper quid pro quo influence.” Shrink Missouri Gov’t PAC, 892 F.Supp. at 1254. The state, on the other hand, argues that the spend-down provision does not limit speech but encourages it by requiring candidates “to do precisely what the contributors intend: to speak.” State’s Brief at 38. In our opinion, the state’s argument makes an unwarranted assumption about the intention of campaign contributors and badly misrepresents reality. Some contributors undoubtedly do intend to give a candidate “blind support,” and they do so without any hope of gaining improper influence with that candidate. Beyond that, we believe the state’s characterization of the provision confirms the District Court’s" }, { "docid": "11488332", "title": "", "text": "his or her personal funds or property in support of the candidate’s own campaign for public office. See Mo.Ann.Stat. § 130.100 (Vernon Supp.1995) (limiting “contributions”); Mo.Rev.Stat. § 130.011(12)(a) (1994) (defining “contributions” to include a “candidate’s own money”). The state argues that the District Court was without jurisdiction to consider this question, there being no Article III ease or controversy because state officials have not threatened to prosecute candidates for making over-the-limit contributions to their own campaigns. We need not consider the jurisdictional point, however, because in a companion case this Court has held that the Proposition A contribution limits are unconstitutional on their face. Carver v. Nixon, 72 F.3d 633, 645 (8th Cir.1995). Thus those limits necessarily are unconstitutional as applied to candidates as well as to other contributors. B. The District Court held that Senate Bill 650’s “program of voluntary expenditure ceilings,” State’s Brief at 13, is coercive, restricts protected speech, and fails to pass constitutional muster under the strict scrutiny test. Shrink Missouri Gov’t PAC, 892 F.Supp. at 1252. The state argues that these voluntary spending limits are constitutional under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), in which, inter alia, the Supreme Court struck down spending limits imposed by the Federal Election Campaign Act of 1971 as amended in 1974, 2 U.S.C. § 441a (1976). The statute at issue in this ease requires candidates for elected public office in Missouri to file an affidavit stating whether they will comply with spending limits that vary depending on the office sought. Mo.Ann. Stat. § 130.052.1 (Vernon Supp.1995). The affidavit must be filed with the candidate’s declaration of candidacy. Candidates who choose not to comply with the spending limits may accept contributions from individuals only and must refuse contributions from PACs, political parties, labor unions, corporations, etc. Id. § 130.052.3. Non-complying candidates also must submit daily disclosure reports once they exceed the spending limits. See id. § 130.052.3. No such restrictions or requirements are placed on candidates who swear to abide by the limits, though they are penalized if they spend more" }, { "docid": "11488330", "title": "", "text": "§ 130.130; and (4) the requirement that negative campaign advertisements state that they were approved and authorized by the candidate on whose behalf they were disseminated, id § 130.031. On cross-motions for summary judgment, the District Court held that each of these provisions violated the First Amendment rights of candidates and their contributors. The court enjoined the Attorney General of Missouri and the Chair of the Missouri Ethics Commission (referred to herein jointly as “the state”) from implementing, enforcing, or aching in reliance on the challenged provisions. Shrink Missouri Government PAC v. Maupin, 892 F.Supp. 1246 (E.D.Mo.1995). The state now timely appeals. After a de novo review of the District Court’s judgment, see Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th Cir.1994), we conclude that the challenged provisions violate the First Amendment. We therefore affirm the well-reasoned decision of the District Court. I. As a preliminary matter, we must address the state’s contention that summary judgment should not have been granted because genuine issues of material fact remain in dispute. See Fed.R.Civ.P. 56(c). The state did not make this contention in the District Court. Moreover, as the state notes, both sides agreed that the case could be decided on the cross motions for summary judgment. The state thus has waived the issue. See Empire State Bank v. Citizens State Bank, 932 F.2d 1250, 1253 (8th Cir.1991). In any event, we are satisfied that no genuine issues of material fact remain in dispute. • II. The State argues that the District Court erred when it (1) addressed the constitutionality of applying the Proposition A contribution limits to the candidates themselves because no Article III case or controversy existed between the parties with respect to that issue; (2) held that the state’s “voluntary” expenditure limits scheme is unconstitutional; and (3) held that the restrictions on carrying over campaign funds from one election to another is unconstitutional. We will address each of these arguments in turn. A. The District Court held that the Proposition A campaign contribution limits are unconstitutional to the extent that they limit a candidates’s ability to use" }, { "docid": "12241655", "title": "", "text": "of which was stipulated to by the parties: [I]n 1940 Missouri voters amended the Constitution by adopting the “Non-partisan Selection of Judges Court Plan,” which was placed on the ballot by initiative petitions and which provides for the nonpartisan (nonpolitieal) appointment of certain judges, rather than having them popularly elected. The Constitution, as amended further in 1976, provides that the Plan is to be in effect for the Supreme Court, the Court[s] of Appeals[,] and for the circuit courts within the City of St. Louis and Jackson County. In addition, voters in St. Louis, Clay, and Platte counties have elected to institute the plan, and the Kansas City charter extends the non-partisan selection plan to Kansas City municipal judges. While all other judges are popularly elected, other judicial circuits may adopt the plan upon approval by a majority of the voters in the circuit. Under the Missouri Court Plan, as it is often called, a vacancy on a court to which the plan applies is filled by appointment of the governor, who selects one person from a three-person panel chosen by a nonpartisan judicial commission of lay persons, lawyers, and judges. A judge appointed in this way must stand for retention in office at the general election occurring after the judge has been in office for twelve months; the judge’s name is placed on a separate judicial ballot, without political party designation, and the voters must vote either for or against retention in office. The Missouri Court Plan has served as a national model for the selection of judges and has been adopted by a number of other states. ****** Every supreme, appellate, circuit and associate circuit court judge must be licensed to practice law in Missouri. Official Manual (1993-1994) at pages 194r-95. Additional Findings of Fact 1. Of the 87 African-American lawyers in the City of St. Louis eligible to be judges in 1990, 9 (10.34%) sat on one of the 31 seats available on the circuit or associate circuit bench as of April 24,1995; 2. Of the 951 non-African-American lawyers in the City of St. Louis eligible to.be" }, { "docid": "12241654", "title": "", "text": "The voting age African-American population of Jackson County, Missouri, as of 1940 was 42,527, or 8.9% of the 477,828 total; 19. As of April 24,1995, there had never been an African-American appointed to the Missouri Supreme Court, and only three African-Americans appointed to the Missouri Court of Appeals; 20. As of April 24, 1995, African-Americans represented: (a) 6 of the 24 circuit judges, and 3 of the 7 associate circuit judges, in the City of St. Louis; (b) 0 of the 20 circuit judges, and 3 of the 13 associate circuit judges, in St. Louis County; and (c) 2 of the 19 circuit judges, and 1 of the 8 associate circuit judges, in Jackson County; 21. As of April 24, 1995, no African-American had ever served on a Missouri Appellate Judicial Selection Commission; 22. As of April 24, 1995, only three African-Americans had served on a 22nd Circuit Judicial Selection Commission, each of whom served a term consecutive to one another; 28. Pursuant to the Official Manual of the State of Missouri (1993-1994), the admission of which was stipulated to by the parties: [I]n 1940 Missouri voters amended the Constitution by adopting the “Non-partisan Selection of Judges Court Plan,” which was placed on the ballot by initiative petitions and which provides for the nonpartisan (nonpolitieal) appointment of certain judges, rather than having them popularly elected. The Constitution, as amended further in 1976, provides that the Plan is to be in effect for the Supreme Court, the Court[s] of Appeals[,] and for the circuit courts within the City of St. Louis and Jackson County. In addition, voters in St. Louis, Clay, and Platte counties have elected to institute the plan, and the Kansas City charter extends the non-partisan selection plan to Kansas City municipal judges. While all other judges are popularly elected, other judicial circuits may adopt the plan upon approval by a majority of the voters in the circuit. Under the Missouri Court Plan, as it is often called, a vacancy on a court to which the plan applies is filled by appointment of the governor, who selects one person" }, { "docid": "14407874", "title": "", "text": "reviewing such initiatives is highly fact-intensive and relies heavily on the factual findings made by the district court in the wake of a four-day bench trial, findings that have ample support in the record and are not clearly erroneous. Applying these facts to the analytical framework set forth in Buckley and Missouri Shrink, we hold that Montana’s interest in purging corruption and the appearance of corruption from its electoral system is sufficiently important to withstand constitutional scrutiny, and that M.C.A. §§ 13-37-216 and -218 are closely tailored to achieving those ends. We therefore affirm the district court and hold that these statutes are constitutional and do not violate the First Amendment. AFFIRMED. . M.C.A. § 13-37-216(3) reads: \"All political committees except those of political party organizations are subject to the provisions of subsections (1) and (2). For purposes of this subsection, 'political party organization' means any political organization that was represented on the official ballot at the most recent gubernatorial election. Political party organizations may form political committees that are subject to the following aggregate limitations from all political party committees: (a) for candidates filed jointly for the offices of governor and lieutenant governor, not to exceed $15,000; (b) for a candidate to be elected for state office in a statewide election, other than candidates for governor or lieutenant governor, not to exceed $5,000; (c) for a candidate for public service commissioner, not to exceed $2,000; (d) for a candidate for the state senate, not to exceed $800; (e) for a candidate for any other public office, not to exceed $500.” . MRLA's reliance on VanNatta v. Keisling, 151 F.3d 1215 (9th Cir.1998); Service Employees Int’l Union, 955 F.2d at 1312; and other Ninth Circuit cases interpreting Buckley fails to recognize the impact of the Supreme Court’s superceding decision in Shrink Missouri. TEILBORG, District Judge, Dissenting in Part: Under Buckley, contribution limitations can be upheld only “if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)." }, { "docid": "14407883", "title": "", "text": "Missouri because the former involved, among other things, an outright ban on certain types of campaign contributions, while the latter only involved limits on contributions. In finding a ban on inter-candidate contributions unconstitutional, the court in Service Employees noted that “[t]he potential for corruption stems not from campaign contributions per se but from large campaign contributions.” 955 F.2d at 1323. The majority does not explain how that decision is inconsistent, much less clearly irreconcilable, with the Supreme Court’s decision in Shrink Missouri upholding individual contribution limits. See Shrink Missouri, 528 U.S. at 387-89, 120 S.Ct. 897. Moreover, under both VanNatta and Shrink Missouri, actual evidence is required; mere conjecture that special interest money corrodes politics in Montana is inadequate to carry a First Amendment burden. See Shrink Missouri, 528 U.S. at 392, 120 S.Ct. 897; VanNatta, 151 F.3d at 1221. Nevertheless, the majority finds that the evidence here exceeds the evidence presented in Shrink Missouri. I disagree. In Shrink Missouri, the State presented an affidavit from a state senator who expressed that large contributions have “ ‘the real potential to buy votes.’ ” Id. at 393, 120 S.Ct. 897 (quoting Shrink Mo. Gov’t PAC v. Adams, 5 F.Supp.2d 734, 738 (E.D.Mo.1998)). There were newspaper accounts of large contributions supporting inferences of impropriety. One such account examined the state treasurer’s decision to engage in substantial state business with a bank which contributed $20,000 to the treasurer’s campaign. Shrink Missouri, 528 U.S. at 393, 120 S.Ct. 897. Another report disclosed a $40,000 contribution from a brewery and one for $20,000 from a bank to a candidate for state auditor. Id. A PAC linked to an investment bank contributed $420,000 to candidates in northern Missouri; three scandals ensued including one involving a state representative who was “ ‘accused of sponsoring legislation in exchange for kickbacks.’ ” Id. (quoting Carver v. Nixon, 72 F.3d 633, 642, and n. 10 (8th Cir.1995)). Another resulted in Missouri’s former attorney general pleading guilty to charges of conspiracy to misuse state property after being indicted for using a state work er’s compensation fund to benefit campaign contributors. Shrink" }, { "docid": "22853759", "title": "", "text": "Missouri Government PAC v. Adams, 161 F. 3d 519, 520 (CA8 1998). As amended in 1997, that statute imposes contribution limits ranging from $250 to $1,000, depending on specified state office or size of constituency. See Mo. Rev. Stat. § 130.032.1 (1998 Cum. Supp.); 161 F. 3d, at 520. The particular provision challenged here reads that “[t]o elect an individual to the office of governor, lieutenant governor, secretary of state, state treasurer, state auditor or attorney general, [[t]he amount of contributions made by or accepted from any person other than the candidate in any one election shall not exceed] one thousand dollars.” Mo. Rev. Stat. §130.032.1(1) (1998 Cum. Supp.). The statutory dollar amounts are baselines for an adjustment each even-numbered year, to be made “by multiplying the base year amount by the cumulative consumer price index . . . and rounded to the nearest twenty-five-dollar amount, for all years since January 1, 1995.” §130.032.2. When this suit was filed, the limits ranged from a high of $1,075 for contributions to candidates for statewide office (including state auditor) and for any office where the population exceeded 250,000, down to $275 for contributions to candidates for state representative or for any office for which there were fewer than 100,000 people represented. 161 F. 3d, at 520; App. 37. Respondents Shrink Missouri Government PAC, a political action committee, and Zev David Fredman, a candidate for the 1998 Republican nomination for state auditor, sought to enjoin enforcement of the contribution statute as violating their First and Fourteenth Amendment rights (presumably those of free speech, association, and equal protection, although the complaint did not so state). Shrink Missouri gave $1,025 to Fredman’s candidate committee in 1997, and another $50 in 1998. Shrink Missouri represented that, without the limitation, it would contribute more to the Fredman campaign. Fredman alleged he could campaign effectively only with more generous contributions than § 130.032.1 allowed. Shrink Missouri Government PAC v. Adams, 5 F. Supp. 2d 734, 737 (ED Mo. 1998). On cross-motions for summary judgment, the District Court sustained the statute. Id., at 742. Applying Buckley v. Valeo, supra," }, { "docid": "14806037", "title": "", "text": "office sought by the candidate, provided that the 20 percent limit must be rounded to the nearest $100. Minn.Stat. § 10A.27, subd. 11. Defendants assert that the aggregate limit is designed to thwart corruption and the appearance of corruption by preventing PACs and other special interests from exerting undue influence over the election process. A contribution regulation may significantly interfere with associational rights so long as “the Government demonstrate[s] that contribution regulation [is] ‘closely drawn’ to match a ‘sufficiently important interest.’ ” Shrink Missouri, 528 U.S. at 387-88, 120 S.Ct. 897 (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612). This “relatively complaisant review” is appropriate because, as stated above, “contributions lie closer to the edges than to the core of political expression.” Beaumont, 123 S.Ct. at 2210. As with the inter-candidate transfer ban, the aggregate special interest cap addresses the compelling government interest of preventing “corruption and the appearance of corruption.” Shrink Missouri, 528 U.S. at 390, 120 S.Ct. 897 (internal quotations omitted). “If the record demonstrates that the danger of corruption, or the appearance of such a danger, is greater when dealing with PAC money as opposed to other contributions, then the state’s justification is constitutionally sufficient.” Montana Right to Life Ass’n v. Eddleman, 343 F.3d 1085, 1096 (9th Cir.2003); see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-60, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (prevention of corruption justification sufficient to jus-' tify differential treatment of corporations). Here, Defendants have provided evidence sufficient to justify the differential treatment of CSPC and other PACs. Defendants’ unrebutted exhibits demonstrate that, prior to the enactment of aggregate special-interest cap, Minnesota elections “to the public ... had the flavor of an auction” because the “group-based funding system” permitted interest groups to “bid on various elections.” (Caliguri Aff. Ex. F (Jan. 12, 1993 Testimony of Wy Spano before the Senate Ethics and Campaign Reform Committee).) Indeed, the aggregate limit was designed to prevent PACs and other organizations “that can fund millions of dollars into campaigns” from unleashing a “flood of money” to effectively “control[ ] the Capitol.” (Caliguri Aff." }, { "docid": "11488343", "title": "", "text": "that the unconstitutional portions “are not so intertwined with [the law’s] valid provisions as to leave it too enervated to stand.” Id. In this case, the District Court did not invalidate all of Senate Bill 650; here the state asks us to leave intact portions of the very same discrete provisions that impose unconstitutional restraints on First Amendment rights. We cannot oblige the state. Every subsection of sections 130.052 and 130.053 makes some reference to the expenditure limits that we have held unconstitutional. The invalid portions are inextricably intertwined with the remainder of the statute. Moreover, the statute provides that “Campaign expenditures shall be limited pursuant to this section” and that “[t]o be in compliance with the expenditure limits ..., the following expenditure limits ... may not be exceeded by a candidate committee.” Mo. Ann.Stat. § 130.052 (Vernon Supp.1995) (emphasis added). The state proposes that we convert this mandatory language into a nonbinding legislative recommendation. The legislature, however, did not enact a set of suggestions. In sum, any remaining valid provisions of sections 130.052 and 130.053 are not complete and susceptible of constitutional enforcement and we cannot conclude that the legislature would have adopted them had it known the expenditure limits were unconstitutional. The District Court thus did not err when it enjoined the enforcement and implementation of sections 130.052 and 130.053 in their entirety. C. In Proposition A the citizens of Missouri adopted a measure designed to address the practice of carrying over “war chests” of campaign funds for future elections. Under the ballot initiative measure, within ninety days of an election a candidate must turn over any excess funds, “except for an amount no greater than ten times the individual contribution limit” for the office sought, to the Missouri Ethics Commission or to contributors. Mo.Ann.Stat. § 130.130 (Vernon Supp. 1995). This is popularly known as a “spend-down provision” because candidates will most likely choose to spend all of their funds during the last days of the campaign rather than returning funds to contributors or turning them over to the state. The ability of a candidate to retain contributions" }, { "docid": "11683431", "title": "", "text": "will not enter judgment until the opinion is issued. It is so ordered. OPINION March 7, 2000. COFFIN, Senior Circuit Judge. This case involves a challenge to Maine’s attempt to reconcile the state’s interest in curbing the power of money in politics with the sweeping strictures of the First Amendment. In 1996, Maine voters passed via referendum An Act to Reform Campaign Finance, creating the Maine Clean Election Act, 21-A M.R.S.A. §§ 1121-1128, which introduced a public funding alternative to private fundraising for candidates for elective offices, and lowering the ceiling on campaign contributions, see id. §§ 1015(1) & (2), 1056(1). Plaintiffs-appellants — legislative candidates, campaign contributors, political action committees (PACs), and the Maine Libertarian Party — challenged both the Act, asserting that the public funding mechanism unconstitutionally coerced candidates to participate, and the contribution limits, arguing that they infringed on the First Amendment rights of candidates as well as donors. The district court upheld the constitutionality of the public funding system and the contribution limits. Under the principles set forth by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), as recently applied in Nixon v. Shrink Missouri Government PAC, — U.S. -, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000), we conclude that the statutes are constitutionally sound. We therefore affirm. I. Factual Background Maine voters, pursuant to their authority under Part First, § 1, and Part Third, § 18, of Article IV of the Maine Constitution enacted the Maine Clean Election Act (MCEA) in November 1996 to take effect on January 1, 1999. The Act creates a system of optional public funding for qualifying candidates in state legislative and gubernatorial campaigns, both in primaries and the general election. See 21-A M.R.S.A. §§ 1121-1128. It establishes public funding beginning with the 2000 elections, see id. § 1123, and requires candidates to complete qualifying actions by March 16, 2000, see id. § 1122(8). In order to qualify for public funding, a candidate must fulfill several requirements during the qualifying period. The candidate must file a declaration of intent" } ]

[ { "docid": "3832525", "title": "", "text": "six months after it is filed shall ... be deemed a final denial of the claim”). Accordingly, on December 23, 2002, Plaintiffs filed suit against the United States under the FTCA. The Plaintiffs include many individuals, some insurance companies with subrogated claims, a neighboring ranch, as well as Benton County. On January 15, 2004, the district court granted the United States’ motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, for summary judgment. The district court applied summary judgment standards and found as a matter of law that the independent-contractor exception barred suit. See 28 U.S.C. § 2671 (“As used [in the FTCA] the term ‘Federal agency’ ... does not include any contractor with the United States”); United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The court also found, in the alternative, that the discretionary-function exception under 28 U.S.C. § 2680(a) barred the suit. Given those rulings, the district court did not need to rule on pending questions regarding whether the United States had a duty under state law to undertake fire prevention duties. It also did not rule on questions involving proximate causation (presumably whether a lack of maintenance was a proximate cause of Plaintiffs’ damages). Judgment was entered in favor of the United States and a timely notice of appeal followed. III. DISCUSSION A. Standards of Review The court reviews de novo subject matter jurisdiction determinations under the FTCA. Bramwell v. United States Bureau of Prisons, 348 F.3d 804, 806 (9th Cir.2003). “The district court’s findings of fact relevant to its determination of subject matter jurisdiction are reviewed for clear error.” Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 778(9th Cir.2000). With a 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). However, where' — as is the case here' — “the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the district" } ]

[ { "docid": "23293537", "title": "", "text": "his administrative remedies pri- or to bringing the appeal of his termination claims. Therefore, while the district court had jurisdiction to review the MSPB’s dismissal of the termination claims, Harms failed to timely file his appeal with the MSPB and, thus, failed to exhaust his administrative remedies. Because Harms has not demonstrated that his failure to exhaust administrative remedies should be excused, the district court properly dismissed his termination claims. IV. CONCLUSION For the foregoing reasons, this court affirms the district court’s grant of summary judgment to the IRS on Harms’ suspension claims and dismissal of Harms’ termination claims. . Harms pleaded a violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. The district court, however, properly construed Harms' claims as arising under the Rehabilitation Act. . The IRS argues that this court’s decision in Wall controls this issue. In Wall, this court held that the Federal Circuit has exclusive jurisdiction to review the dismissal of a mixed case appeal by the MSPB on jurisdictional grounds. 871 F.2d at 1542-43. The court in Wall was not confronted with the issue presented in this appeal — whether a federal district court or the Federal Circuit has jurisdiction to review a dismissal of a mixed case appeal on procedural grounds. Accordingly, the decision in Wall is not binding precedent on the issue before the court in this case. . The parties assert that Harms may have also failed to exhaust his administrative remedies by failing to appeal the discrimination claim to the Equal Employment Opportunity Commission (the \"Commission”) prior to filing this civil action. However, while a plaintiff may appeal a final decision by the MSPB on a discrimination claim to the Commission, he is not required to do so prior to appealing the MSPB's decision in a civil action in federal district court. 29 C.F.R. §§ 1614.303, 1614.310; Sloan V. West, 140 F.3d 1255, 1260 (9th Cir. 1998). . Harms argues that his election to file a mixed case appeal with the MSPB over a mixed case complaint with the TCC constitutes exhaustion of his administrative remedies. Harms, however," }, { "docid": "23293532", "title": "", "text": "language of § 7703(b)(2) that the Federal Circuit lacks jurisdiction to review decisions made by the MSPB in “cases of discrimination” as designated in § 7702(a)(1). 5 U.S.C. § 7703(b)(2). Under § 7702(a)(1), an appeal is a “case of discrimination” if the action is appealable to the MSPB and the employee alleges unlawful discrimination. 5 U.S.C. § 7702(a)(1); Wall, 871 F.2d at 1542. Accordingly, when the MSPB decides that it lacks jurisdiction over an appeal because the employment action is not within the MSPB’s designated appellate jurisdiction, the appeal is not a “case of discrimination” under § 7702(a)(1). See Wall, 871 F.2d at 1542-43. A decision need not be reached by the MSPB on the merits of the discrimination issue, however, for the appeal to constitute a “case of discrimination.” 5 U.S.C. § 7702(a)(1). This is clear from the statutory language in § 7702(a)(1)(B) which specifies only that the employee must allege that a basis for the action was unlawful discrimination for the appeal to fall under § 7702(a)(1). This court adopts the reasoning in Downey and holds that when the MSPB has jurisdiction over an appeal under § 7702(a)(1) but dismisses the appeal on procedural grounds, the federal district court has jurisdiction to review de novo the decision of the MSPB. Accordingly, we conclude the district court erred when it dismissed Harms’ termination claims for lack of jurisdiction. Because we determine that the district court erred in concluding that it lacked jurisdiction over the MSPB’s dismissal of Harms’ appeal, this court must now address the district court’s alternative basis for dismissing Harms’ termination claims, i.e., Harms failed to exhaust administrative remedies. Whether a plaintiff has exhausted administrative remedies is a question of law reviewed de novo. Jones v. Runyon, 91 F.3d 1398, 1400 (10th Cir. 1996). While the district court determined that Harms’ failure to exhaust administrative remedies with the MSPB was a jurisdictional bar to filing his civil action, the failure to timely exhaust administrative remedies is not a jurisdictional deficiency but rather is in the nature of a violation of a statute of limitations. Cf Zipes v." }, { "docid": "22856596", "title": "", "text": "1999, as a result of the investigation of Coons’s misuse of government computers, the IRS demoted Coons to the position of Program Analyst and reduced his grade from a GS-15 to a GS-14— roughly a $14,000 reduction in annual pay. Coons appealed the demotion to the Merit Systems Protection Board and, after hearings in December 1999 and January 2000, the Administrative Judge denied Coons’s appeal. A three-member panel of the Merit Systems Protection Board upheld that decision in November 2000. In December 2000, Coons filed a complaint in district court challenging ' the Board’s findings, alleging Whistleblower Protection Act violations' unlawful discrimination based on disability, unlawful, discrimination based on age, and retaliation. The district court dismissed Coons’s age discrimination claim and granted summary judgment in favor of the IRS on the whis-tleblower, retaliation, and disability discrimination claims. Coons appeals the district court’s grant of summary judgment. DISCUSSION Although appeals of Merit Systems Protection Board decisions generally must be filed in the Federal Circuit Court of Appeals, district courts have jurisdiction to review “mixed” cases, in which an action involves both a Merit Systems Protection Board appeal and a discrimination claim. 5 U.S.C. § 7703(b)(2); see also Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998) (explaining section 7703 jurisdiction). This court has jurisdiction to review the district court’s final judgment pursuant to 28 U.S.C. § 1291. I. Rehabilitation Act Claim This court reviews a district court’s grant of summary judgment of a Rehabilitation Act claim de novo. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th. Cir.2001). “Viewing the evidence in the light most favorable to the nonmoving party, and drawing all reasonable inferences in her favor, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” Id. Our first inquiry is whether Coons is a person with a disability as defined by the Rehabilitation Act. The standards used to determine whether an act of discrimination violated the Rehabilitation Act are the same standards applied under the Americans with Disabilities Act (“ADA”). 29 U.S.C. § 794(d);" }, { "docid": "23087170", "title": "", "text": "or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We have found no case law in this or any other Circuit that would require a de novo review of claims other than discrimination claims presented in a “mixed case.” Courts that have addressed the issue uniformly apply the de novo standard of review only to the discrimination claims while other claims adjudicated before the MSPB are reviewed on the record. See Carr v. Reno, 23 F.3d 525, 528 (D.C.Cir.1994); Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir.1993); Johnson v. Burnley, 887 F.2d 471, 474 n. 1 (4th Cir.1989); Barnes v. Small, 840 F.2d 972, 979 (D.C.Cir.1988); Romain v. Shear, 799 F.2d 1416, 1421 n. 1 (9th Cir.1986); Williams v. Dept. of the Army, 715 F.2d 1485, 1488 (Fed.Cir.1983); Hayes v. U.S. Gov’t Printing Office, 684 F.2d 137, 141(D.C.Cir.1982). Non-discrimination claims in “mixed cases” should be reviewed by district courts under the same deferential statutory standard of § 7703(c). See Washington, 10 F.3d at 1428; Johnson, 887 F.2d at 474 n. 1; Romain, 799 F.2d at 1421 n. 1. Therefore, in § 7703 “mixed cases” the district court should try discrimination claims de novo but apply the arbitrary and capricious standard of § 7703(c) to its review of all other claims brought before the MSPB. See Barnes, 840 F.2d at 979. On appeal we also review the findings on the nondiscrimination claims using an arbitrary and capricious standard of review. See Carr, 23 F.3d at 528. III. Discussion A. Discrimination Claims The district court granted summary judgment to 'the USDA on Kelliher’s Title VII and ADEA claims. We review the district court’s grant .of summary judgment de novo and apply the same standards as that court. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.2001). Kelliher alleges that his discharge from employment with the USDA was motivated by racism and ageism in violation • of Title VII and the ADEA. In order to prove a prima facie case of age or race discrimination a plaintiff must prove that he or she was: (1) a member of" }, { "docid": "20078302", "title": "", "text": "publishing his medical information in an administrative decision, because the plaintiff had failed to show disclosure was willful or intentional. 451 F.Supp.2d at 176-80. Here, as in Department of Labor, plaintiff has failed to show that defendant MSPB “should have known that failing to redact the plaintiffs name from his ... decision was a Privacy Act violation.” Id. at 179-80. Indeed, defendants argue that the MSPB had a legal obligation to do so under the Freedom of Information Act (“FOIA”). (Defs.’ Mot at 17-21 (citing 5 U.S.C. § 552(a)(2)).) Whether the Board was obligated to release plaintiffs information (and the FOIA exemption for “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6), suggests that it was not), plaintiff has not established that MSPB’s action were “patently egregious and unlawful.” Plaintiff cannot show that disclosure was willful or intentional, and thus, defendants’ motion to dismiss, or in the alternative for summary judgment is granted. IV. REHABILITATION ACT CLAIMS Plaintiff has asked the Court to stay or dismiss his Rehabilitation Act claim because the MSPB has “modified the Board’s previous decision” and will “consider [his] claims of disability discrimination and retaliation.” (Pl.’s Opp’n at 26.) Although the Federal Circuit has “exclu sive jurisdiction” over appeals from MSPB orders or decisions, the district courts have jurisdiction in “[c]ases of discrimination.” Downey v. Runyon, 160 F.3d 139, 143 (2d Cir.1998). District courts also have jurisdiction over appeals in mixed cases, which involve “adverse personnel action[s] subject to appeal to the MSPB coupled with ... claim[s] that the action was motivated by discrimination.” Butler v. West, 164 F.3d 634, 638 (D.C.Cir.1999). Plaintiffs claim alleges both “disability discrimination and retaliation” and therefore appears to be a mixed case under the Rehabilitation Act. (See Pl.’s Opp’n at 26.) An employee “adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review.” 5 U.S.C. § 7703(a)(1) (emphasis added). By limiting “judicial review to employees ‘aggrieved by the final disposition’ of their administrative ‘complaint,’ ”" }, { "docid": "22923315", "title": "", "text": "restrict access to judicial review” of administrative actions, quoting Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962). We find no evidence in the legislative histories of these statutes to suggest anything other than that jurisdiction be exercised by this court under § 7703(b)(1) unless and until the right of a petitioner under § 7703(b)(2) to a trial de novo on the merits of a case is invoked. The appeals over which we have jurisdiction in cases involving such threshold matters will generally be those in which the MSPB is the named respondent. See § 7703(a)(2), and Hopkins v. Merit Systems Protection Board, 725 F.2d 1368, 1371 (Fed.Cir.1984). The language of § 7703(b)(1), as discussed in Williams, itself strongly suggests that until the merits of a “mixed” discrimination ease are reached by the MSPB, procedural or threshold matters, not related to the merits of a discrimination claim before the MSPB, may properly be appealed to this court. As Williams noted, discrimination issues may be abandoned during MSPB proceedings or simply not appealed. 715 F.2d at 1491. See also Meehan v. United States Postal Service, 718 F.2d 1069, 1074 (Fed.Cir.1983). Therefore, our exercise of jurisdiction over MSPB decisions until issues touching the merits of a discrimination claim are appealed comports with the intent of § 7703(b)(1) and (2) and also allows the application of a unified body of ease law concerning issues like that actually on appeal here, i.e., the jurisdiction of the MSPB itself, or perhaps questions as to whether good cause has been shown for the waiver of a filing deadline. As Judge Miller noted in his dissenting opinion in Granado v. Department of Justice, 721 F.2d 804 (Fed.Cir.1983), to hold otherwise would result not only in a ' waste of time and resources, but also in lack of uniformity as each of some 94 different federal district courts (with appeals to their respective circuits) proceeds to define the metes and bounds of MSPB jurisdiction. Congress sought to avoid such consequences by consolidating appellate jurisdiction over MSPB cases in a single court — the Federal" }, { "docid": "22557804", "title": "", "text": "OPINION AND ORDER NIES, Circuit Judge. This appeal is from a decision of the Merit Systems Protection Board (MSPB) dated August 4, 1982, affirming the action of the Department of the Army removing Joseph L. Williams, Sr., (petitioner) from his position as a Supervisory Staff Administrative Assistant in the 327th Military Police Battalion, Chicago, Illinois. Williams v. Department of the Army, MSPB Docket No. CH03518210087. In the MSPB proceedings Williams attacked the action taken against him on the ground that it was not supportable on the merits and that a basis for his removal was race discrimination. Upon affirmance of the agency action by the MSPB, Williams pursued two avenues for review of the MSPB decision. By appeal to the United States Court of Claims (a predecessor of this court) pursuant to 5 U.S.C. § 7703(b)(1), Williams sought review on the record of the non-discrimination issues, and by a complaint in the United States District Court for the Northern District of Illinois, Eastern Division, under § 717(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c) (1976), he asked de novo review of the discrimination issues. The Department of the Army has filed a motion to dismiss the instant appeal for lack of jurisdiction, asserting that the jurisdictional statutes do not allow bifurcation of an MSPB decision for purposes of review and that only the district court has jurisdiction. Having reviewed the record of proceedings and the submissions of the parties in banc, and finding a lack of jurisdiction to hear the appeal, we transfer the case to the district court in which the discrimination suit is pending. I The jurisdiction of the United States Court of Appeals for the Federal Circuit is set out in the Federal Courts Improvement Act of .1982, 28 U.S.C. § 1295, which provides: (a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction— ****** (9) of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to section 7703(b)(1) ... of Title 5. 5 U.S.C. § 7703(b)(1), referred to therein, provides" }, { "docid": "12997315", "title": "", "text": "and evidence proving the employer’s proffered reasons to be false, see Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998), as well as the evidence presented by the defendant. See Brady v. Off. of the Sergeant at Arms, 520 F.3d 490, 495 (D.C.Cir.2008); Adeyemi, 525 F.3d at 1227. “[B]are allegations of discrimination are insufficient to defeat a properly supported motion for summary judgment.” Burke v. Gould, 286 F.3d 513, 521 (D.C.Cir.2002). III. ANALYSIS A. Subject Matter Jurisdiction The Board asserts that the Court lacks jurisdiction over Mr. Hovsepyan’s claim purportedly brought under the Whistleblower Protection Act (“WPA”) of 1989, 5 U.S.C. § 2302, because the Merit Systems Protection Board (“MSPB”) previously decided the claim against him, see Def.’s Additional Exhibits, Ex. 30 [Dkt. # 16-10] (Initial Decision of the MSPB), and the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over appeals from the MSPB. Mr. Hovsepyan responds that after “having an extremely unpleasant experience with MSPB’s ‘Justice’, [he] did not try to appeal to MSP Board or the Federal Circuit to seek corrective action of MSPB AJ’s absurd decision on [his] case.... ” Pl.’s Opp’n Mem. at 76. Mr. Hovsepyan does not claim — and the record does not show — that the WPA claim.at the administrative level presented “a ‘mixed case’, ie., an adverse personnel action subject to direct appeal to the MSPB coupled with a discrimination claim.” Dews-Miller v. Clinton, 707 F.Supp.2d 28, 44 (D.D.C.2010). Therefore, he was required to proceed under the Civil Service Reform Act (“CSRA”), 5 U.S.C. §§ 1101 et seq., which provides the exclusive remedy for adjudicating certain personnel issues arising from federal employment. The CSRA “regime provides for adjudication of all [personnel] claims by [the Office of Personnel Management (“OPM”)], 5 U.S.C. § 8347(b), appeal of adverse decisions by OPM to the MSPB, id. § 8347(d)(1), and subsequent review of MSPB decisions in the Federal Circuit, id. § 7703(b)(1); 28 U.S.C. § 1295(a)(9).” Fornaro v. James, 416 F.3d 63, 66 (D.C.Cir.2005). The Court concludes that it lacks jurisdiction over Mr. Hovsepyan’s WPA claim and, thus, will grant" }, { "docid": "5416187", "title": "", "text": "his position would have felt compelled to resign and thus, the Board lacked jurisdiction to hear plaintiffs appeal. It is well settled that “a federal employee seeking to contest the merits of his discharge who merely adds a frivolous allegation of discrimination will not vest the district court with jurisdiction.” Marr v. Dixon, No. 93-3786, 1994 WL 514523 at *3, 1994 U.S.App. LEXIS 26597, at *10 (6th Cir. Sept. 19, 1994) (unpublished); Hill v. Dep’t of the Air Force, 796 F.2d 1469, 1471 (Fed.Cir.1986) (“[I]f the Board correctly held that the employee presented no more than a frivolous allegation of discrimination ... review of the merits of the adverse action lies exclusively with the Federal Circuit.”). Furthermore, a determination by the Board that it lacks jurisdiction gives the Federal Circuit exclusive jurisdiction over that appeal. See 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703(b)(1); Sloan v. West, 140 F.3d 1255 (9th Cir.1998) (“[A]s a general rule, an MSPB determination that it lacks jurisdiction to hear a claim is appealable only to the United States Court of Appeals for the Federal Circuit.”)- In the case at bar, the Board’s determination that plaintiffs claim was frivolous and that it lacked jurisdiction gives the Federal Circuit exclusive jurisdiction over plaintiffs constructive discharge claim. Accordingly, the district court properly concluded that it lacked jurisdiction over the dismissal of Halevan’s constructive discharge claim. See Greater Detroit Resource Recovery Auth. v. EPA, 916 F.2d 317, 319 (6th Cir.1990) (“ ‘[Ejvery federal appellate court has a special obligation to “satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.” ’ ”) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). E. Pre-Trial Rulings by the District Court Halevan appeals the district court’s denial of his motion to compel production of the personnel files of persons who were selected for positions for which he applied.. The district court found that the personnel information for the individual selected for JOA 94-088-LK had been provided to the plaintiff. Furthermore, the district" }, { "docid": "18718038", "title": "", "text": "PER CURIAM: Jimmy Dale Lofton appeals from the dismissal of his Title VII action for failure to file a claim within thirty days of the final decision of the Merit Systems Protection Board (MSPB) as required by 5 U.S.C. § 7703(b)(2) (1982). We affirm. I. On June 16, 1982, Lofton received notice of an MSPB decision denying his claim that the Social Security Administration had, because of his race, improperly removed him from his attorney-advisor position. He filed a timely petition for review in this court on July 16, 1982. We concluded that we lacked jurisdiction and transferred the action to the district court. Lofton v. Department of Health & Human Services, No. 82-5238, (9th Cir. Sept. 15, 1982) (unpublished order). Having named an incorrect party, Lofton amended his complaint on March 22, 1983, to name the proper defendant. On July 27, 1983, the district court dismissed the action without prejudice for failure to name the proper defendant and failure to effect proper service. In dismissing the action, the district court did not consider Lofton’s amended complaint naming the proper defendant because Lof- ton “failed to serve this amended complaint in accordance with Fed.R.Civ.P. 4(d)(5).” Lofton moved to vacate the dismissal order and to recuse the district court judge but the district court judge denied the motions. Subsequently, on December 16, 1983, Lof-ton filed a document entitled “amended complaint.” That document is the subject of this appeal. The district court dismissed the complaint for lack of subject matter jurisdiction. II. The court of appeals reviews de novo a district court’s decision on subject matter jurisdiction. Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983). It may affirm on any ground supported by the record even though the grounds relied on by the district court are different from the ones outlined by the appellate court. See, Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir.1983). III. 5 U.S.C. § 7703(b)(2) sets forth the procedure for seeking review of MSPB decisions. It requires that “any such case ... be filed within 30 days after the date the individual filing" }, { "docid": "23293528", "title": "", "text": "jurisdiction to review the MSPB’s dismissal of Harms’ mixed case appeal for untimeliness because the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction to review such decisions. The district court also concluded it lacked subject matter jurisdiction because Harms failed to exhaust his administrative remedies. This court reviews the dismissal of Harms’ termination claims for lack of subject matter jurisdiction de novo. Robinson v. Union Pac. R.R., 245 F.3d 1188, 1191 (10th Cir.2001). Harms argues that the district court erred in concluding that the Federal Circuit has exclusive subject matter jurisdiction over MSPB dismissals of mixed cases on procedural grounds. A determination of whether the district court has subject matter jurisdiction to resolve Harms’ termination claims requires an examination of the CSRA. Under the CSRA, the Federal Circuit has exclusive jurisdiction to review final decisions of the MSPB in all appeals except those involving “cases of discrimination” filed under § 7702(a)(1). 5 U.S.C. §§ 7702(a)(1); 7703(b)(1), (2). To fall within the ambit of § 7702(a)(1), the employee must (1) “[have] been affected by an action which ... may [be] appealed] to the [MSPB],” and (2) allege that the basis for the action was unlawful discrimination. 5 U.S.C. § 7702(a)(1). This court in Wall, held that if the MSPB dismisses an appeal on jurisdictional grounds because the adverse employment action alleged is not appealable to the MSPB, the appeal does not involve a “case of discrimination” under § 7702(a)(1) and the Federal Circuit has exclusive subject matter jurisdiction to review the dismissal under § 7703(b)(1). Wall v. United States, 871 F.2d 1540, 1542-43 (10th Cir. 1989). This court declines to extend the ruling in Wall to dismissals by the MSPB on procedural, as opposed to jurisdictional, grounds. If the MSPB exercises jurisdiction and makes a decision on the merits of both the appealed employment action and the discrimination claim, the appeal involves a “case of discrimination” and the federal district court has jurisdiction to review de novo the MSPB’s decision under § 7703(b)(2). See Ballentine v. Merit Sys. Prot. Bd., 738 F.2d 1244, 1246 (Fed.Cir. 1984). The" }, { "docid": "5416186", "title": "", "text": "of a defendant lulled the plaintiff into inaction”). Halevan further contends that his Title VII and ADEA claims should be equitably tolled on account of his attorney’s withdrawal from the case. This claim is without merit. As noted above, Halevan received DFAS’s final notice of decision dismissing his age and sex discrimination claims on April 17, 1997, which meant that he had until July 17, 1997 to file a civil action. Halevan’s attorney did not withdraw from the ease until December 18, 1997, several months after the filing deadline passed. Thus, the attorney’s withdrawal provides no basis for the application of the equitable tolling doctrine to the age and sex discrimination claims contained in Halevan’s second EEO charge. D. Third Administrative Complaint On November 27, 1997, the Merit Systems Protection Board (“MSPB” or the “Board”) dismissed Halevan’s third EEO complaint which alleged constructive discharge caused by harassment, disparate treatment, and reprisal. Importantly, the Board concluded that plaintiff had failed to advance a non-frivolous argument that his retirement was involuntary or that a reasonable person in his position would have felt compelled to resign and thus, the Board lacked jurisdiction to hear plaintiffs appeal. It is well settled that “a federal employee seeking to contest the merits of his discharge who merely adds a frivolous allegation of discrimination will not vest the district court with jurisdiction.” Marr v. Dixon, No. 93-3786, 1994 WL 514523 at *3, 1994 U.S.App. LEXIS 26597, at *10 (6th Cir. Sept. 19, 1994) (unpublished); Hill v. Dep’t of the Air Force, 796 F.2d 1469, 1471 (Fed.Cir.1986) (“[I]f the Board correctly held that the employee presented no more than a frivolous allegation of discrimination ... review of the merits of the adverse action lies exclusively with the Federal Circuit.”). Furthermore, a determination by the Board that it lacks jurisdiction gives the Federal Circuit exclusive jurisdiction over that appeal. See 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703(b)(1); Sloan v. West, 140 F.3d 1255 (9th Cir.1998) (“[A]s a general rule, an MSPB determination that it lacks jurisdiction to hear a claim is appealable only to the United States Court" }, { "docid": "10835520", "title": "", "text": "and Cropper (“defendants”). Shipp and Mr. Gates claimed that the defendants violated their federal constitutional due process and equal protection rights. Shipp and Gates also alleged claims based on Louisiana state tort law. The defendants moved to be dismissed under Rule 12(b)(6). In January 1998, the magistrate judge filed a report recommending that: (1) all of Shipp’s federal constitutional claims, with the exception of the Equal Protection claim and the related failure to train claim, be dismissed with prejudice; (2) all federal claims by plaintiff Jerry Gates be dismissed with prejudice, and (3) all claims against Sheriff Theodore L. Riser be dismissed with prejudice, and (4) the motion be denied in all other aspects. The district court adopted the magistrate judge’s findings and recommendation. The district court also exercised supplemental jurisdiction over the state tort law claims and ordered Shipp to file a reply responding to deputies Cropper and Shipp’s defense of qualified immunity (“Schultea reply”). After reviewing Shipp’s reply to the qualified immunity issue, the district court found that Shipp had met the heightened pleading standard articulated in Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc), and denied the defendants’ motion to dismiss. The defendants now appeal the district court’s ruling denying their motion to dismiss based on qualified immunity. Standard of Review Denials of motions to dismiss on qualified immunity grounds are appealable collateral orders when based on issues of law. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Champagne v. Jefferson Parish Sheriff’s Office, 188 F.3d 312 (5th Cir.1999)(per curiam). We review the district court’s ruling under Rule 12(b)(6) de novo. See Lowrey v. Texas A & M University System, 117 F.3d 242, 246 (5th Cir.1997). A motion to dismiss under rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th" }, { "docid": "20078303", "title": "", "text": "the Court to stay or dismiss his Rehabilitation Act claim because the MSPB has “modified the Board’s previous decision” and will “consider [his] claims of disability discrimination and retaliation.” (Pl.’s Opp’n at 26.) Although the Federal Circuit has “exclu sive jurisdiction” over appeals from MSPB orders or decisions, the district courts have jurisdiction in “[c]ases of discrimination.” Downey v. Runyon, 160 F.3d 139, 143 (2d Cir.1998). District courts also have jurisdiction over appeals in mixed cases, which involve “adverse personnel action[s] subject to appeal to the MSPB coupled with ... claim[s] that the action was motivated by discrimination.” Butler v. West, 164 F.3d 634, 638 (D.C.Cir.1999). Plaintiffs claim alleges both “disability discrimination and retaliation” and therefore appears to be a mixed case under the Rehabilitation Act. (See Pl.’s Opp’n at 26.) An employee “adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review.” 5 U.S.C. § 7703(a)(1) (emphasis added). By limiting “judicial review to employees ‘aggrieved by the final disposition’ of their administrative ‘complaint,’ ” the statute “thereby mandates] administrative exhaustion.” Spinelli v. Goss, 446 F.3d 159, 162 (D.C.Cir.2006) (internal citations omitted). This requirement is no “mere technicality,” for it “serves the important purposes of giving the charged party notice of the claim and ‘narrow[ing] the issues for prompt adjudication and decision.’ ” Alexander v. Tomlinson, 507 F.Supp.2d 2, 20 (D.D.C.2007) (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995)). Plaintiff is therefore entitled to review “when the MSPB issues an adverse ‘final decision’ or ‘final order’ concerning” his case. When “the Board grants a petition for review or a cross petition for review, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.” 5 C.F.R. § 1201.113. As plaintiff himself notes, the MSPB is currently reviewing his case (PL’s Opp’n at 26) and has not disposed of the entire action. Therefore, there is no final decision for this Court to review. The Court lacks jurisdiction over the claim and will dismiss it without prejudice. See Howard v. Gutierrez," }, { "docid": "23506089", "title": "", "text": "has decided ‘both the issue of discrimination and the appeal-able action.’ ” Id. Therefore, the court concluded, judicial review would be proper in district court only if the Board decided the merits of the discrimination claim. In other cases, including dismissals on procedural grounds, we held that this court would be the proper forum to review the Board’s decision. Several circuits adopted the position taken by this court, holding that judicial review of mixed case appeals dismissed in the first instance by the Board on any non-merits grounds fell under our jurisdiction. See McCarthy v. Vilsack, 322 Fed.Appx. 456, 458 (7th Cir.2009); Powell v. Dep’t of Def., 158 F.3d 597, 598-99 (D.C.Cir.1998); Sloan v. West, 140 F.3d 1255, 1261-62 (9th Cir.1998); Blake v. Dep’t of the Air Force, 794 F.2d 170, 172-73 (5th Cir.1986); cf Burzynski v. Cohen, 264 F.3d 611, 620-21 (6th Cir.2001) (holding judicial review of a jurisdictional dismissal by the Board must be in the Federal Circuit). Two circuits departed from the approach employed in Ballentine and held that judicial review in cases in which the Board rejected the employee’s claim on procedural grounds belongs in district court and not in this court. See Harms v. Internal Rev. Serv., 321 F.3d 1001, 1008 (10th Cir.2003); Downey v. Runyon, 160 F.3d 139, 144-45 (2d Cir.1998). Importantly, the circuits that departed from our rule did so in cases in which the Board had jurisdiction over the employee’s adverse action appeal but did not reach the merits of the employee’s discrimination claim due to a procedural fault. Those courts did not hold that the Federal Circuit would be the wrong forum to review a ruling by the Board that it lacked jurisdiction over the employee’s adverse action claim. In fact, in Harms the Tenth Circuit specifically stated that “when the MSPB decides that it lacks jurisdiction over an appeal because the employment action is not within the MSPB’s designated appellate jurisdiction, the appeal is not a ‘case of discrimination’ under § 7702(a)(1),” and accordingly the appeal should be reviewed by the Federal Circuit. 321 F.3d at 1008. In Kloeckner v." }, { "docid": "23506088", "title": "", "text": "1349, 1355 (Fed.Cir.2005); Lang v. Merit Sys. Prot. Bd., 219 F.3d 1345, 1347 n. 2 (Fed. Cir.2000); Austin v. Merit Sys. Prot. Bd., 136 F.3d 782, 784 (Fed.Cir.1998); King v. Lynch, 21 F.3d 1084, 1089 (Fed.Cir.1994); Wallace v. Merit Sys. Prot. Bd., 728 F.2d 1456, 1458-59 (Fed.Cir.1984); Hopkins v. Merit Sys. Prot. Bd., 725 F.2d 1368, 1370 (Fed.Cir.1984). The court held that appeals should be taken to this court not only in cases that the Board dismissed for lack of jurisdiction, but also in cases in which the Board exercised jurisdiction over the appeal but disposed of it on procedural grounds without reaching the merits of the employee’s discrimination claim. Thus, in Ballentine, this court noted that section 7702(a)(1) requires the Board to decide “both the issue of discrimination and the appealable action.” 738 F.2d at 1246. The court then reasoned that under the statutory scheme, “the judicially renewable action by the MSPB which makes an appeal a ‘case of discrimination’ under § 7703(b)(2) that can be filed in district court is that the MSPB has decided ‘both the issue of discrimination and the appeal-able action.’ ” Id. Therefore, the court concluded, judicial review would be proper in district court only if the Board decided the merits of the discrimination claim. In other cases, including dismissals on procedural grounds, we held that this court would be the proper forum to review the Board’s decision. Several circuits adopted the position taken by this court, holding that judicial review of mixed case appeals dismissed in the first instance by the Board on any non-merits grounds fell under our jurisdiction. See McCarthy v. Vilsack, 322 Fed.Appx. 456, 458 (7th Cir.2009); Powell v. Dep’t of Def., 158 F.3d 597, 598-99 (D.C.Cir.1998); Sloan v. West, 140 F.3d 1255, 1261-62 (9th Cir.1998); Blake v. Dep’t of the Air Force, 794 F.2d 170, 172-73 (5th Cir.1986); cf Burzynski v. Cohen, 264 F.3d 611, 620-21 (6th Cir.2001) (holding judicial review of a jurisdictional dismissal by the Board must be in the Federal Circuit). Two circuits departed from the approach employed in Ballentine and held that judicial review in" }, { "docid": "23087169", "title": "", "text": "these “mixed” cases where discrimination claims as well as claims not based on discrimination were both presented before the Board, the appeals are not bifurcated; instead, the district court has jurisdiction to review both the discrimination and non-discrimination claims. See Doyal v. Marsh, 777 F.2d 1526, 1536 (11th Cir.1985). The discrimination claims are then “subject to trial de novo by the reviewing court.” 5 U.S.C. § 7703(c). Appellant contends that because the claims are treated as a unit rather than bifurcated on appeal, the same de novo standard of review should apply to all of the claims presented before the district court, not just the discrimination claims. We disagree. The de novo standard of review for discrimination claims is an exception to the general rule that MSPB determinations are reviewed on the record and set aside only if the “agency action, finding or conclusion” is found to be: “(1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We have found no case law in this or any other Circuit that would require a de novo review of claims other than discrimination claims presented in a “mixed case.” Courts that have addressed the issue uniformly apply the de novo standard of review only to the discrimination claims while other claims adjudicated before the MSPB are reviewed on the record. See Carr v. Reno, 23 F.3d 525, 528 (D.C.Cir.1994); Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir.1993); Johnson v. Burnley, 887 F.2d 471, 474 n. 1 (4th Cir.1989); Barnes v. Small, 840 F.2d 972, 979 (D.C.Cir.1988); Romain v. Shear, 799 F.2d 1416, 1421 n. 1 (9th Cir.1986); Williams v. Dept. of the Army, 715 F.2d 1485, 1488 (Fed.Cir.1983); Hayes v. U.S. Gov’t Printing Office, 684 F.2d 137, 141(D.C.Cir.1982). Non-discrimination claims in “mixed cases” should be reviewed by district courts under the same deferential statutory standard of § 7703(c). See Washington, 10 F.3d at 1428; Johnson, 887 F.2d at 474 n. 1; Romain, 799" }, { "docid": "7208626", "title": "", "text": "ORDER OF DISMISSAL WEINSHIENK, District Judge. This matter comes before the Court on Defendant’s Motion To Dismiss, Or, Alternatively, Motion For Summary Judgment. Pursuant to D.C.COLO.LR 72.1, this matter was referred to United States Magistrate Judge Donald E. Abram. After reviewing the pleadings and the relevant ease law, Magistrate Judge Abram issued a Recommendation Of United States Magistrate Judge recommending that the Motion To Dismiss be granted on jurisdictional grounds. Immediately after the Recommendation was issued, the Court held a status conference on this case. At that conference, plaintiff’s counsel orally advised the Court that plaintiff objected to the recommendation of the Magistrate Judge. Because plaintiff did not specify which parts of the recommendation he was objecting to, the Court will treat the oral objection as a general objection to the entire Recommendation. As required by 28 U.S.C. § 636(b), the Court has reviewed de novo, all portions of the Magistrate Judge’s Recommendation and the applicable law. The Court finds that Magistrate Judge Abram’s findings and conclusions are correct and should be adopted. Specifically, the Court agrees that because plaintiffs appeal to the Merit System Protection Board (MSPB) was denied as untimely, the MSPB never made a determination as to the merits of plaintiffs discrimination claims. ‘When an appeal has been taken to the MSPB, until the discrimination issue and the appealable action have been decided on the merits by the MSPB, an appellant is granted no rights to a trial de novo in a civil action under § 7702 and § 7703.” Ballentine v. Merit Sys. Protection Bd., 738 F.2d 1244, 1246 (Fed.Cir.1984). Plaintiff has no right to appeal the MSPB decision to the District Court, because this Court does not have jurisdiction to hear plaintiffs claims. Instead, plaintiff should have appealed the decision to the Federal Circuit, as directed by the notice provided to him by the MSPB. See Wall v. U.S., 871 F.2d 1540, 1543 (10th Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990). The Court .also agrees that the January 20, 1993, decision of the Postal Service was a final agency" }, { "docid": "137911", "title": "", "text": "Opinion for the Court filed by Circuit Judge ROGERS. ROGERS, Circuit Judge. Lawrence Battle appeals the grant of summary judgment to the Federal Aviation Administration (“FAA”) in his lawsuit seeking to enforce an arbitration award that arose from internal FAA personnel procedures of which Battle availed himself upon being dismissed from employment. Despite the FAA’s termination of the neutral arbitrator’s services, the neutral arbitrator, with the employee member, issued an opinion and award in Battle’s favor, which the FAA refused to recognize. The district court concluded that it had jurisdiction and granted summary judgment to the FAA. Battle appeals, contending that the arbitration panel acted within its authority and the FAA had no discretion under its internal rules to abandon the arbitration process midstream. The FAA responds that the district court lacked jurisdiction, that the case is not ripe, and that, in any event, it did not violate its internal rules. Upon de novo review, we hold that the district court had subject matter jurisdiction over Battle’s complaint because the termination of the neutral arbitrator’s services was not a final order of the FAA Administrator concerning “aviation duties and powers.” 49 U.S.C.A. § 46110(a) (West Supp.2004). We further hold that, in light of Battle’s pursuit of disability discrimination claims and the neutral arbitrator’s stated intent to consider such claims in the internal appeals proceeding, the FAA’s actions are properly understood as enforcing its rules, which preclude consideration of discrimination claims, and therefore Battle’s claim under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), is without merit. Accordingly, we affirm the grant of summary judgment. I. In 1995, Congress divested the Merit Systems Protection Board (“MSPB”) of jurisdiction over certain types of FAA adverse personnel actions and authorized the FAA to establish an internal process to be known as “Guaranteed Fair Treatment” (“GFT”). See Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1996, Pub. L. No. 104-50, § 347, 109 Stat. 436, 460 (1995). Congress retroactively restored the MSPB’s jurisdiction in May 2000, but the GFT appeals process remains." }, { "docid": "1709907", "title": "", "text": "deputy. In February 1997, Shipp and Mr. Gates filed an action under 42 U.S.C. § 1983 in federal district court against Sheriffs Royee McMahon and Theodore Riser, and WPSO deputies Shipp and Cropper (“defendants”). Shipp and Mr. Gates claimed that the defendants violated their federal constitutional due process and Equal Protection rights. Shipp and Gates also alleged claims based on Louisiana state tort law. The defendants moved to dismiss under Fed R.CivP. 12(b)(6). In January 1998, the magistrate judge filed a report recommending that: (1) all of Shipp’s federal constitutional claims, with the exception of the Equal Protection claim and the related failure to train claim, be dismissed with prejudice; (2) all federal claims by plaintiff Jerry Gates be dismissed with prejudice, and (3) all claims against Sheriff Theodore L. Riser be dismissed with prejudice, and (4) the motion be denied in all other aspects. The district court adopted the magistrate judge’s findings and recommendation. The district court also exercised supplemental jurisdiction over the state tort law claims and ordered Shipp to file a reply to the assertion of qualified immunity by deputies Cropper and Shipp. After reviewing Shipp’s reply to the qualified immunity issue, the district court found that Shipp had met the pleading requirements articulated in Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc), and denied the defendants’ motion to dismiss. The defendants now appeal the district court’s ruling denying their motion to dismiss based on qualified immunity. Standard of Review Denials of motions to dismiss on qualified immunity grounds are appealable collateral orders when based on issues of law. Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Champagne v. Jefferson Parish Sheriff’s Office, 188 F.3d 312 (5th Cir.1999)(per curiam). We review the district court’s ruling under Rule 12(b)(6) de novo. Lowrey v. Texas A&M University System, 117 F.3d 242, 246 (5th Cir.1997). A motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor" } ]

[ { "docid": "17642738", "title": "", "text": "v. Stokes, 495 U.S. 320, 322, 110 S.Ct. 1880, 1881-1882, 109 L.Ed.2d 325 (1990) (per curiam) (prior dissenting opinions discussing the claim refuted petitioner’s argument that his claim was novel). Because Fearance is unable to establish cause, his abuse of the writ will be excused only if he can show that federal review of his claim is necessary to prevent a fundamental miscarriage of justice. We reject — as have three other circuits — Fearance’s attempt to expand “the narrow scope of the fundamental miscarriage of justice exception.” Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). The Supreme Court has applied the “actual innocence” exception only where a petitioner claims to be actually innocent of the crime for which he was convicted, Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-2650, 91 L.Ed.2d 397 (1986), or where a petitioner claims to be actually innocent of his death sentence. Sawyer, — U.S. at -, 112 S.Ct. at 2519-25. Citing Sawyer, Fearance argues that he is now actually innocent of the death penalty, or technically that he is “constitutionally ineligible” as a result of the state’s delay in executing his sentence. The special Sawyer-version of the “miscarriage of justice” excep tion is limited to assertions of errors of constitutional magnitude occurring at sentencing. The language of Sawyer demanding the petitioner “show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under applicable state law,” — U.S. at -, 112 S.Ct. at 2523, cannot logically be exported to other “defects” in a death sentence. Fearance cannot identify any error at his sentencing — and most assuredly is not “actually innocent” of capital murder. Furthermore, even assuming a valid Lackey-claim is conceptually possible, the execution of a murderer whose crime otherwise merited the death sentence would not rise to the level of a fundamental miscarriage of justice. See McKenzie, 57 F.3d at 1467 (“[I]t is unclear to us whether, even if it were held that delay in the imposition of the" } ]

[ { "docid": "2875968", "title": "", "text": "grounds that the prisoner failed to comply with a state procedural rule, then a federal court ordinarily cannot consider the merits of that federal claim. Id. at 729-730, 111 S.Ct. 2546. This procedural default doctrine bars federal habeas review of a state court ruling only if the following requirements have been satisfied: (1) the petitioner actually violated an applicable state procedural rule; (2) the procedural violation provides an “adequate and independent state ground” for denying the petitioner’s federal constitutional claim; and (3) the state court actually enforced the procedural violation; that is, the highest state court to rule on the claim clearly and unambiguously relied upon the procedural violation as the reason for rejecting the claim. See generally Coleman, 501 U.S. at 750, 111 S.Ct. 2546. However, the petitioner can excuse the procedural default by demonstrating either: (a) that there was “cause” for the procedural default and actual prejudice by the alleged constitutional error; or (b) that the case falls within the category of cases considered [a] “fundamental miscarriage of justice.” See id. ...; Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986); Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). For the cause and prejudice standard, the petitioner must provide a “substantial” reason that is “external” to the petitioner as the cause for the procedural default. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). In addition, the petitioner must show that the alleged trial errors “not merely ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). To demonstrate a “fundamental miscarriage of justice,” a petitioner must show that the alleged constitutional violation probably resulted in the conviction of one who is actually innocent. Murray, 477 U.S. at 496, 106 S.Ct. 2639. This" }, { "docid": "8067973", "title": "", "text": "procedural default may have occurred when Johnson again attempted to assert that claim in state court. No procedural bar Even if we assumed that Johnson’s ineffective assistance claim was not raised until his second application for post-conviction relief, we would still conclude the claim should be reviewed on the merits. As previously noted, the district court concluded that Johnson’s ineffective assistance claim was procedurally barred due to Johnson’s failure, in attempting to appeal the state district court’s denial of his second application for post-conviction relief, to include with his petition in error a certified copy of the state district court’s order. Johnson argues that even if there was a valid procedural default, it should be excused under the “cause and prejudice” exception. We agree. Generally speaking, this court “does 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.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998) (citing Coleman v. Thompson, 501 U.S. 722, 749- 50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). “ ‘[Clause’ under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753, 111 S.Ct. 2546; see Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (indicating the “cause” standard requires a petitioner to “show that some objective factor external to the defense impeded ... efforts to comply with the State’s procedural rules”). Such external factors could, for example, include situations where “some interference by officials ... made compliance impracticable.” Id. (internal quotations and citation omitted). As for prejudice, a petitioner must show “ ‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). More specifically, a petitioner must demonstrate “actual prejudice resulting from the alleged constitutional violation.” Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Johnson argues that “cause” exists in this" }, { "docid": "13172644", "title": "", "text": "to make a timely objection to the state trial court’s punishment-phase jury instruction directing the jury to disregard the influence of Texas parole law when answering petitioner’s capital sentencing special issues bars federal habeas review of petitioner’s constitutional challenge to this instruction unless petitioner can satisfy one of the two exceptions to the procedural default doctrine. 2. Exceptions Inapplicable The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, as explained in Section III. E.8. above, petitioner’s complaint regarding his trial counsel’s failure to assert a constitutional challenge to this aspect of petitioner’s punishment-phase jury charge does not satisfy either prong of the Strickland v. Washington test for ineffective assistance. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In the context of the punishment-phase of a capital trial, the Supreme Court has held that a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional" }, { "docid": "21868690", "title": "", "text": "297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although deemed exhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Lines, 208 F.3d at 160. A federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting therefrom, or that a fundamental miscarriage of justice will result if the court does not review the claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999); Coleman, 501 U.S. at 750-51, 111 S.Ct. 2546.; Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir.1992). To demonstrate cause for a procedural default, the petitioner must show that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To demonstrate actual prejudice, the petitioner must show “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494, 106 S.Ct. 2639. Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.2001). The miscarriage of justice exception applies only in extraordinary cases where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. Actual innocence means factual innocence, not legal insufficiency, Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), and is established if no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir.2002). C. Standard of Review Under AED-PA Once a federal court determines that a claim is exhausted, it must next determine" }, { "docid": "3999052", "title": "", "text": "state procedural bar,” such procedural default constitutes independent and adequate state grounds to deny habeas relief. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotations and citations omitted); see also Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996); Levine v. Comm’r of Corr. Servs., 44 F.3d 121, 126 (2d Cir.1995). In such cases, a federal court is generally barred from reviewing the petitioner’s claims. In such procedural default cases, a federal habeas court may review a petitioner’s claims only if the petitioner demonstrates (1) cause for the default and resulting prejudice, or (2) that the failure to consider the claims will “result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546; see also Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). As to the fúst test, “cause” is defined as “ ‘some objective factor external to the defense [that] impeded counsel’s efforts’ to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To demonstrate prejudice, the petitioner must show more than that errors “created a possibility of prejudice, but [instead] that they worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Where a petitioner is unable to show cause, the Court need not consider actual prejudice. See McCleskey, 499 U.S. at 502, 111 S.Ct. 1454; see also Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y.2004). If a petitioner is not able to show cause for and prejudice from the procedural default, a federal habeas court may still review claims to prevent a fundamental miscarriage of justice “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639; see also Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.2002). The petitioner- bears a high burden with" }, { "docid": "9868095", "title": "", "text": "rule is an independent and adequate state ground for denying relief. Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Bacon v. Lee, 225 F.3d 470, 476 (4th Cir.2000). A state procedural rule is independent “if it does not depend on a federal constitutional ruling, and is adequate if it is regularly and consistently applied by the state court.” Bacon, 225 F.3d at 476 (citations and internal quotations omitted). Once the adequacy and independence of the state procedural rule are established, federal courts may not review the defaulted claims absent a showing (i) of “cause and prejudice” or (ii) that failure to consider the federal claim will result in a “fundamental miscarriage of justice,” such as by demonstrating actual innocence. Harris, 489 U.S. at 262, 109 S.Ct. 1038 (citing Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); Burket v. Angelone, 208 F.3d 172, 183 (4th Cir.2000). The existence of cause ordinarily turns upon a showing of (i) a denial of effective assistance of counsel, (ii) a factor external to the defense which impeded compliance with the state procedural rule, or (iii) the novelty of the claim. See, e.g., Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Clozza v. Murray, 913 F.2d 1092, 1104 (4th Cir.1990); Clanton v. Muncy, 845 F.2d 1238, 1241-42 (4th Cir.1988). And to establish prejudice adequate to excuse the default, a petitioner must show that the prejudice arising from the asserted constitutional error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Mickens v. Taylor, 240 F.3d 348, 356-57 (4th Cir.2001) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). And finally, where, as here, the petitioner seeks federal collateral review of his guilty plea, the third inquiry involves determining whether the defendant’s constitutional challenge to his conviction is foreclosed by his guilty plea. In this respect, it is well-settled that a voluntary and intelligent guilty plea generally forecloses federal collateral review of allegations of antecedent" }, { "docid": "21214454", "title": "", "text": "habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, petitioner does not argue or allege any specific facts suggesting his trial counsel’s failure to object to petitioner’s punishment-phase jury instructions as a violation of the “presumption of innocence” rendered said counsel’s performance ineffective under the standard of Strickland v. Washington. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held that a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. The Supreme Court explained in Sawyer v. Whitley this “actual innocence” requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error." }, { "docid": "23457967", "title": "", "text": "contrary, id. 501 U.S. at -, 111 S.Ct. at 2595, Rust failed to do so. To establish cause a petitioner must present a substantial reason to excuse his procedural default. Rust argues attorney error to establish cause. Attorney error does not constitute cause, however, unless it constitutes ineffective assistance of counsel under the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Coleman v. Thompson, 501 U.S. 722, - - -, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991). See also Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (“[T]he question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, ... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.”). Though ineffective assistance of counsel may constitute cause, Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Id. at 486-87, 106 S.Ct. at 2644. In fact, “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 488, 106 S.Ct. at 2645. The petitioner must also prove that he was actually prejudiced by the claimed constitutional error. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982) (a petitioner shoulders “the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, .infecting his entire trial with error of constitutional dimensions”). Accordingly, the prejudice component" }, { "docid": "1363864", "title": "", "text": "have denied consideration of the petitioner’s claim on the ground of the state procedural default. Id. Third, to preclude habeas review, the state procedural rule must be an “adequate and independent state ground,” id., that is “firmly established and regularly followed.” Deitz, 391 F.3d at 808 (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). A state procedural rule is an independent ground when it does not rely on federal law. Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Further, this inquiry “generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Maupin, 785 F.2d at 138. If these three factors are satisfied, a petitioner can overcome the procedural default by either “demonstrating] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrating] that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. “Cause” for default requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel can constitute cause, so long as the ineffective assistance of counsel claim is not itself procedurally defaulted. Id. at 489, 106 S.Ct. 2639. “Prejudice” requires a showing that the errors at trial “worked to [petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Additionally, under the miscarriage-of-justice exception, the Court may consider an otherwise defaulted claim if it concludes that the petitioner has shown that the “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639). IV. INEFFECTIVE ASSISTANCE OF COUNSEL" }, { "docid": "11889793", "title": "", "text": "not be pursued, because even if Moore failed to exhaust, the unique circumstances here establish cause for his default and prejudice in the absence of federal court review. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Martinez v. Johnson, 255 F.3d 229, 238-39 (5th Cir.2001). The existence of “cause” for a procedural default “must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Further, to show “prejudice” a defendant must demonstrate that errors “worked to his actual and substantial disadvantage,” amounting to errors of constitutional dimensions. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original). Moore had cause for misunderstanding the state’s successive writ procedures because, when he filed his Atkins petition on December 26, 2002, the TCCA had published no opinion explaining the factual criteria that must be pled in an Atkins petition, nor had such criteria become evident in practice, arising from the unpublished disposition of similar petitions. The earliest explanation occurred in Ex parte Williams, No. 43907-02, 2003 WL 1787634, at *1-2 (Tex.Crim.App. Feb. 26, 2003) (Cochran, J., concurring) (unpublished). Moreover, Atkins specifically reserved to the states the adoption of procedures to implement its new constitutional rule, yet only a few months had passed before Moore filed his petition, and the State had not taken any definitive action. Moore could not exhaust a remedy that the TCCA had not yet articulated; this “cause” was external to Moore and beyond his control. Further, Moore would plainly suffer prejudice from being unable to establish the facts involved in his mental retardation claim. Moore’s mass of evidence, taken at face value, presented a substantial Atkins claim. Because Moore had cause for and suffered prejudice from the then-uncertain state of Texas law on how to present Atkins evidence in state court, the federal district court had the authority to review" }, { "docid": "2078562", "title": "", "text": "a federal court is barred from considering the claim on a petition for a writ of habeas corpus. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991). A procedural default also arises if a petitioner has not exhausted his state remedies, but the state court to which he would be required to present his claim, would find the claim procedurally barred. See Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. at 2557 n. 1. In such a ease, the claim is deemed exhausted, but may not be reviewed by a federal court because of the procedural default. A procedural bar may be overcome, permitting a federal court to review the merits, “only upon a showing of cause for the default and prejudice to the petitioner,” Bossett, 41 F.3d at 829 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977)), or upon a showing “that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’ ” Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989) (quoting Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)). Cause may be demonstrated by, for example, “showing that the factual or legal basis for a claim was not reasonably available to counsel, ... or that ‘some interference by state officials’ made compliance impracticable, ... [or that] the procedural default is the result of ineffective assistance of counsel.” Murray, 477 U.S. at 488, 106 S.Ct. at 2645 (citations omitted). Prejudice must be demonstrated by showing that the errors at trial “worked to [the petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982). A fundamental miscarriage of justice may be demonstrated by showing, through “new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial,” that “it is more likely than not" }, { "docid": "1460548", "title": "", "text": "convicted criminal defendant to present any and all claims then available as points of error on direct appeal. For unknown reasons, petitioner’s appellate counsel failed to assert petitioner’s Wither-spoon claim on direct appeal. Thus, Gutierrez has procedurally defaulted on his Witherspoon claim. The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that Gutierrez’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Canier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” excep tion to the procedural default doctrine, as explained hereinafter Gutierrez’s complaint regarding his appellate counsel’s failure to assert a Witherspoon claim on direct appeal does not satisfy either prong of the Strickland v. Washington test for ineffective assistance. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). To satisfy the “factual innocence” standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant’s guilt. See Sawyer v. Whitley, 505 U.S. at 335-40, 112 S.Ct. at 2517-19 (holding that to show “actual innocence” in the context of a capital sentencing" }, { "docid": "21706242", "title": "", "text": "recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. 2546; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397, (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, petitioner does not argue or allege any specific facts suggesting his state appellate counsel’s failure to present the same federal constitutional complaints about the trial court’s rulings on the challenges for cause in question petitioner presents to this Court somehow rendered said counsel’s performance ineffective under the standard of Strickland v. Washington. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color- able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). In the context of the punishment phase of a capital trial, the Supreme Court has held a showing of “actual innocence” is made when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. 2514. The Supreme Court explained in Sawyer v. Whitley this “actual innocence” requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional" }, { "docid": "13798286", "title": "", "text": "defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. Perry, at syllabus ¶ 9. Under Perry, res judicata has been consistently applied by Ohio state courts to bar consideration of federal claims that were not timely asserted in state court proceedings. See, e.g., Morales v. Coyle, 98 F.Supp.2d 849, 860-61 (N.D.Ohio 2000). Further, this state procedural bar has routinely been observed by federal courts reviewing habeas petitions and is generally deemed an independent and adequate state ground foreclosing federal habeas review. See, e.g., Byrd v. Collins, 209 F.3d 486, 521 (6th Cir.2000). Returning to the issue of procedural default generally, if the district court concludes that the state prisoner has procedurally defaulted his federal claims in state court, federal review 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.” Coleman, 501 U.S. at 749, 111 S.Ct. 2546. Demonstrating “cause” requires showing that some factor external to the defense impeded counsel’s efforts to comply with the State procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Demonstrating “prejudice” requires showing a disadvantage “infecting” the trial with constitutional error. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Absent cause and prejudice, federal courts may not review issues that are procedurally defaulted unless the petitioner shows that his conviction is the result of a fundamental miscarriage of justice. A fundamental miscarriage of justice is a conviction of one who is “actually innocent.” See Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Murray, 477 U.S. at 496, 106 S.Ct. 2639. The Supreme Court requires the petitioner to demonstrate not merely a reasonable doubt in light of new evidence, but rather that “it is more likely than not that no reasonable juror would have convicted [the Petitioner] in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115" }, { "docid": "19788900", "title": "", "text": "263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotations and citations omitted); see also Levine v. Comm’r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996). In such cases, a federal court is generally barred from reviewing the petitioner’s claims. In all such procedural default cases, a federal habeas court may review a petitioner’s claims only if the petitioner demonstrates (1) cause for the default and resulting prejudice, or (2) that the failure to consider the claims will “result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). As to the first test, “cause” is defined as “ ‘some objective factor external to the defense [that] impeded counsel’s efforts’ to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). As to prejudice, the petitioner must show more than that errors “created a possibility of prejudice, but [instead] that they worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Where a petitioner is unable to show cause, the Court need not consider actual prejudice. See McCleskey, 499 U.S. at 502, 111 S.Ct. 1454; see also Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y.2004). If a petitioner is not able to show cause for and prejudice from the procedural default, a federal habeas court may still review claims to prevent a fundamental miscarriage of justice “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496,106 S.Ct. 2639; see also Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.2002). The petitioner bears a high burden with respect to claims of actual innocence because entertaining such claims during ha-beas review is disruptive" }, { "docid": "1843004", "title": "", "text": "Default Respondent correctly points out petitioner has procedurally defaulted on his fair cross-section and equal protection challenges to the composition of his grand jury. 1. General Principles Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule and that procedural rule provides an independent and adequate ground for the dismissal or (2) the petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). However, such procedural defaults only bar federal habeas review when the state procedural rule that forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception" }, { "docid": "5550121", "title": "", "text": "which 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 barred....”). Although procedurally defaulted claims are barred as a general rule, a federal court may reach such claims upon a showing of cause and prejudice or a fundamental miscarriage of justice. As explained by the Third Circuit, “claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner establishes cause and prejudice or a fundamental miscarriage of justice to excuse the default.” Lines, 208 F.3d at 160 (internal quotation omitted) (citing Coleman, 501 U.S. at 731, 111 S.Ct. 2546). To establish “cause” for procedural default, “the petitioner must ‘show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.’ ” Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir.2000) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)), cert. denied, — U.S. —, 121 S.Ct. 1621, 149 L.Ed.2d 483 (2001). As explained by the Third Circuit, the Murray Court opined that if a petitioner could, for example, “show[ ] [that] a factual or legal basis for a claim was not reasonably available to counsel or show[ ] interference by government officials sufficient to make compliance impracticable,” this would constitute acceptable cause for federal habeas review of the defaulted claim. Id. at 193 (citing Murray, 477 U.S. at 488, 106 S.Ct. 2639). To show “prejudice,” the petitioner must prove “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original). In essence, this standard requires a petitioner to prove that he was denied “fundamental fairness” at trial. Werts, 228 F.3d at 193. The Court now turns to the way in which these procedural requirements apply in conjunction with" }, { "docid": "1843005", "title": "", "text": "preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). 2. Failure to File a Pretrial Motion to Quash In the course of petitioner’s state habeas corpus proceeding, the trial court concluded petitioner had procedurally defaulted on his complaints regarding the composition of his grand jury by failing to present those claims in a pretrial motion to quash the indictment against him. As far back as 1979, the Fifth Circuit recognized as firmly established principles of Texas law the rules that (1) a defendant must raise a challenge to the composition of the grand jury at the earliest point possible and (2) when it is not possible to do so sooner, such a challenge may be raised before trial by a motion to quash the indictment. Rat- cliff v. Estelle, 597 F.2d 474, 476 (5th Cir.1979), cert. denied, 444 U.S. 868, 100" }, { "docid": "4284234", "title": "", "text": "of procedural default, the claims are procedurally forfeited unless the petitioner demonstrates (1) sufficient cause for the default and resulting prejudice, or (2) that the failure to consider the claims will “result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). As to the first part, “cause” is defined as “some objective factor external to the defense” that impeded the defendant’s efforts to raise the claim. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To demonstrate prejudice, a petitioner must show more than that errors “created a possibility of prejudice, but [instead] that they worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Day v. Taylor, 459 F.Supp.2d 252, 256 (S.D.N.Y.2006). A procedural default may also be excused upon a showing that the failure to entertain the claims would result in a fundamental miscarriage of justice. This standard requires a petitioner to present sufficient new evidence, without which a habeas court will not reach the merits of a barred claim. The State contends that Siao-Pao has not exhausted claims asserted here that were not raised before the Appellate Division. Before the Appellate Division, Siao-Pao claimed only that the Parole Board failed to properly weigh the statutory factors provided in Executive Law § 259, but he did not raise his claims that he was denied Equal Protection, that the Parole Board was influenced by political pressures, or that the Parole Board failed to provide a written statement of its reasons for denying parole. These claims were also not raised in Siao-Pao’s application to the Court of Appeals for leave to appeal. Siao-Pao argues that these claims are procedurally forfeited, as he could seek a declaratory judgment in State Court, but that such an action would be futile. Although" }, { "docid": "6318396", "title": "", "text": "in his appeal, and both were deemed by the New York Court of Appeals to be unpreserved. Farrington argues that the prosecutor’s statements, “Don’t let anybody talk you [the jury] into compromising your integrity” and “Don’t let anybody talk you into becoming a party to a misdemeanor plea bargain” were outrageous and employed carefully selected “buzz words” that inappropriately influenced the jury. These improper comments, according to Farrington, substantially prejudiced him and necessarily influenced the jury’s decision. The defense attorney objected to the comments, but did not elaborate, and his objection was overruled. Nothing further was said about the objection or the alleged improper comments. A state court’s “adequate and independent” finding of procedural default will bar federal habeas review 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. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The degree of prejudice a habeas petitioner is required to show before obtaining collateral relief for alleged errors in a jury charge is “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The miscarriage of justice exception applies where a petitioner is “actually innocent” of the crime of which he was convicted or the penalty which was imposed. Sawyer v. Whitley, 505 U.S. 333, 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Farrington has not shown “cause” because his trial counsel was not prevented by some external impediment from" } ]

[ { "docid": "22675631", "title": "", "text": "neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ Bowen v. Johnston, 306 U. S. 19, 27. See Escoe v. Zerbst, 295 U. S. 490; Johnson v. Zerbst, 304 U. S. 458; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101.” 368 U. S., at 428. The reasoning in Hill is equally applicable to a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the Rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U. S. 459, but was not. And there is no basis here for allowing collateral attack “to do service for an appeal.” Sunal v. Large, 332 U. S. 174, 178. Indeed, if anything, this case may be a stronger one for foreclosing collateral relief than the Hill case. For the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas. “Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such" } ]

[ { "docid": "22963579", "title": "", "text": "441 U.S. at 783, 99 S.Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471 (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939))). Moreover, the Court held that “[t]he reasoning in Hill is equally applicable to a formal violation of Rule 11.” Id. Applying the rationale of Hill, the Court found that formal violations of Rule 11 are “neither constitutional nor jurisdictional,” id, and it concluded that: [no] claim reasonably [can] be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. Id 441 U.S. at 784, 99 S.Ct. at 2087 (citations omitted in original). Holloway seizes upon the latter portion of this reasoning, attempting to distinguish his case from Timmreck’s by arguing that he did not know about special parole terms and that, if he had, he would not have pled guilty. He reasons that, simply by making these two allegations, the Rule 11 violation upon which he bases his claim cannot be merely a “formal violation.” He concludes, then, that he is entitled to relief on this claim. We disagree. Timmreck establishes that a violation of Rule 11 is merely technical, and therefore insufficient to justify section 2255 relief, if the violation “does not present ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Id. at 783, 99 S.Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471 (quoting Johnston, 306 U.S. at 27, 59 S.Ct. at 446)). Under Timmreck, a Rule 11 violation does not present such exceptional circumstances unless it “results in a complete miscarriage of justice,” or is “inconsistent with the rudimentary demands of fair procedure.” Id at 783, 99 S.Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471). The fact that" }, { "docid": "2729467", "title": "", "text": "that a technical violation of Rule 11 would not support a collateral attack under section 2255 on a conviction based on a guilty plea, where there was no showing of constitutional error or special prejudice. After Timmreck, we held that collateral relief was not available when all that was shown was a failure to comply with the formal requirements of Rule 11. United States v. Lopez-Beltran, 619 F.2d 19, 20 (9th Cir. 1979). We emphasize that Rivera-Ramirez did not directly appeal the judgment of conviction in this case by filing a notice of appeal within the ten-day requirement of Fed.R.App.P. 4(b), as was the case in McCarthy, nor did he file his Rule 32(d) motion within that ten-day period. Instead, he attacked the judgment several months later under Rule 32(d). Under those circumstances, his motion amounts to a collateral attack and he must meet the burdens imposed upon a defendant who seeks to set aside his plea in collateral proceedings. See United States v. Watson, 548 F.2d 1058, 1063 (D.C.Cir.1977); United States v. Laura, 500 F.Supp. 1347, 1355 (E.D.Pa.1980); see also Borman, The Hidden Right to Direct Appeal from a Federal Plea Conviction, 64 Cornell L.Rev. 319, 327 (1979). Section 2255 and Rule 32(d) provide alternate routes to set aside a guilty plea collaterally. Under section 2255 it is clear that claiming a technical violation of Rule 11 is insufficient. Instead, the defendant’s burden is to establish a constitutional or jurisdictional error, or that the proceeding in which his plea was accepted was “inconsistent with the rudimentary demands of fair procedure” or resulted in a “complete miscarriage of justice.” Timmreck, 441 U.S. at 783-84, 99 S.Ct. at 2087 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). It must also be claimed that the procedural error prejudiced the defendant in that he was actually unaware of the consequences of his plea decision and, if properly advised, would not have pleaded guilty. Id.; see United States v. Crook, 607 F.2d 670, 672 (5th Cir.1979); United States v. Horsley, 599 F.2d 1265, 1269 (3d" }, { "docid": "18717184", "title": "", "text": "has no right to withdraw his plea. Fed.R.Crim.P. 11(e)(2). Lilly claims that this omission, coupled with question 34 of the “forty questions form” administered by the magistrate at Lilly’s plea screening, misled him and thus deprived him of knowledge of the direct consequences of his guilty plea, a core concern of Rule 11. Our analysis of Lilly’s argument begins with our recognition of the posture of this case — a collateral attack on Lilly’s sentence based on a Rule 11 violation. The Supreme Court in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), stated that collateral relief is not available to a defendant who can show only a failure to comply with the formal requirements of Rule 11. In Timmreck the defendant sought collateral relief under section 2255 based on the district court’s violation of Rule 11 by failing to inform him of the mandatory special parole term required by the applicable statute. The Supreme Court concluded that this formal violation of Rule 11 did not result in a complete miscarriage of justice or a proceeding inconsistent with the rudimentary demands of fair procedure. Id. at 784, 99 S.Ct. at 2087. In denying collateral relief to the defendant, the Court noted that the defendant’s claim could have been raised on direct appeal but was not, and the Court found no basis for allowing Timmreck’s collateral attack to do service for an appeal. Id. The Court stated that “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” Id. (footnote omitted). This court in an en banc decision prior to Timmreck came to a similar conclusion. In Keel v. United States, 585 F.2d 110 (5th Cir.1978) (en banc), we affirmed the district court’s denial of habeas relief to the defendant in a case in which the district court had not literally complied with Rule 11. The court had misinformed the defendant as to the maximum sentence he could receive. We held: [W]hen a collateral attack is made on a guilty plea for failure" }, { "docid": "22963581", "title": "", "text": "Timmreck “[did] not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty,” Id. at 784, 99 S.Ct. at 2087, was enough to convince the Timmreck Court that the error before it was not of the character or magnitude cognizable under a writ of habeas corpus. However, it does not follow that every Rule 11 violation will support a section 2255 claim if the defendant alleges that he had no actual knowledge of the omitted matter and that he would not have pled guilty if he had possessed such knowledge. Timmreck governs our analysis of this issue. Here, Holloway was informed that he could receive a sixty-year prison sentence and his total sentence of forty-five years falls well short of the maximum sentence he could have received. The violation of Rule 11 of which he complains did not result in a complete miscarriage of justice and is not inconsistent with the rudimentary demands of fair procedure. Therefore, under Timmreck, the district court’s failure to comply with Rule 11 does not support Holloway’s claim for section 2255 relief from his guilty pleas or his sentence. Our decision in Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir.) (en banc) (adopting 877 F.2d 698 (8th Cir.), vacated & reh’g granted sub nom. United States v. Unit No. 7 & Unit No. 8, 883 F.2d 53 (8th Cir.1989)), cert. denied, — U.S. -, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990), does not mandate a different result. In Hill we granted the petitioner relief under 28 U.S.C. § 2254 because his court-appointed counsel incorrectly advised him that, by pleading guilty, he would be eligible for parole in six years. Hill II, 894 F.2d at 1010. In fact, under his plea agreement and the governing Arkansas law, Hill was not eligible for parole for almost nine years. Hill I, 877 F.2d at 700. Moreover, the record supported Hill’s claim that he had told his attorney that he would plead guilty only if he would be eligible" }, { "docid": "22660852", "title": "", "text": "339, 354 (1994), for the general proposition that habeas review “ ‘will not be allowed to do service for an appeal.’ ” Reed is inapposite, however, as it involved neither a constitutional violation nor a guilty plea. In Reed, the Court rejected a state prisoner's statutory claim brought under 28 U. S. C. § 2254 on the grounds that the prisoner had neither made a timely objection nor suffered prejudice. See 512 U. S., at 349 (“An unwitting judicial slip of the kind involved here ranks with the nonconstitutional lapses we have held not cognizable in a posteonviction proceeding”). As we explained: “In Hill v. United States, 368 U. S. 424, the Court was presented with the question whether a collateral attack under § 2255 could be predicated on a violation of Fed. Rule Crim. Proc. 32(a), which gives the defendant the right to make a statement on his own behalf before he is sentenced. The Court rejected the claim, stating: ‘The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognisable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure_’ 368 U. S., at 428.” United States v. Timmreck, 441 U. S. 780, 783 (1979). The Timmreck Court went on to hold that “[t]he reasoning in Hill is equally applicable to a formal violation of Rule 11” because “(s]uch a violation is neither constitutional nor jurisdictional,” and the error did not “resul[t] in a ‘complete miscarriage of justice’ or in a proceeding “inconsistent with the rudimentary demands of fair procedure.’ Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of" }, { "docid": "2847093", "title": "", "text": "due process, and, second, that manifest injustice resulted from the acceptance of the plea because it was later.shown that defendant was not, in fact, guilty. Defendant’s first claim requires us to examine the guilty plea hearing. On June 5, 1968, defendant appeared before the District Court to waive indictment and plead guilty to the information. The United States Attorney read the information and, after asking defendant if he had received a copy of the information, if he had discussed it with his court-appointed counsel, and if he understood that he had a right to have the charge presented to a federal grand jury for indictment, asked the court to accept the waiver of indictment. The court accepted the waiver of indictment after personally questioning defendant about his understanding of his right to be indicted. The United States Attorney then interrogated the defendant as to the voluntariness of his plea and asked the court to accept the guilty plea. The court proceeded to question the defendant: “THE COURT: You understand, Mr. Woodward, now that by entering this plea you are not merely going through a formality of saying that T plead guilty and I signed a guilty plea here’ but you are technically in this court making a statement, ‘that I admit that I did what the Government charges I did’, you understand that? “THE DEFENDANT: Yes, sir. “THE COURT: And you understand that making that admission in open court, of course, waives all defenses that you might raise, technical or otherwise, to the proceedings ? “THE DEFENDANT: Yes, sir. “THE COURT: Has anyone threatened you with any more serious consequences if you don’t plead guilty ? “THE DEFENDANT: No, sir. “THE COURT: Has anyone else told you that the sentence would be more lenient if you did plead guilty than trial ? “THE DEFENDANT: No, sir. “THE COURT: Have you told your attorney all of the circumstances surrounding this? “THE DEFENDANT: Yes, sir. “THE COURT: Does he concur in the plea? “MR. McDonald : I do, your Hon- or. “THE COURT: All right, we will take the plea.” Rule 11" }, { "docid": "23384593", "title": "", "text": "with you, sir, do you still want to plead guilty? A. Yes, sir. The court’s detailed explanation of the rights attendant to a jury trial and express statement to Ray that he would be giving up the right not to incriminate himself by pleading guilty indicate that Ray was undoubtedly aware of his right to persist in his plea of not guilty. See United States v. Deal, 678 F.2d 1062,1068 (11th Cir.1982); United States v. Saft, 558 F.2d 1073, 1080 (2d Cir.1977); Kloner v. United States, 535 F.2d 730 (2d Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 361, 50 L.Ed.2d 312 (1976). Furthermore, the plea agreement that Ray testified he read, signed, and discussed with his attorney, states: “I understand that I have a right to plead not guilty to any offense charged against me____” This case is distinguishable from United States v. Fels, 599 F.2d 142, 146-47 (7th Cir.1979). In Fels, we reversed defendant Fels’s conviction based in part on our finding that the district court violated 11(c)(3) by failing to determine that Fels understood her right to persist in her plea of not guilty. The trial court in Fels, however, never personally determined that she understood that she was waiving her right against self-incrimination and various other trial rights by pleading guilty. Id. at 146-47. We held that because there were several deficiencies in the taking of Fels’s plea, there was no “substantial compliance” with Rule 11. Id. at 148. The total circumstances surrounding Ray’s plea show that Ray was informed that by pleading guilty he was giving up his right to persist in a plea of not guilty. C. Rule 11(e)(3) McChristion argues that the district court committed reversible error in failing to inform him pursuant to Federal Rule of Criminal Procedure 11(e)(3) that if the court accepted his plea agreement, the court would embody in the judgment and sentence the disposition provided for in the plea agreement. He argues alternatively that if the court rejected his plea agreement he should have been allowed an opportunity to withdraw his guilty plea, as required under Rule 11(e)(4)." }, { "docid": "23384592", "title": "", "text": "the government could deny him his constitutional right to a jury trial. The court advised Ray that he had the right to be tried by a jury consisting of twelve men and women, and at that trial he would have the presumption of innocence and the government would have to prove his guilt beyond a reasonable doubt. In addition, the court informed Ray that he had the right to confront and cross-examine witnesses against him, the right against self-incrimination, the right to present evidence in his own behalf, and the right to choose to testify in his own behalf. The district judge then queried of Ray: Q. One other thing, Mr. Ray, if you plead guilty, do you also understand that you will have to give up your right not to incriminate yourself since I may ask you questions about what you did in order to satisfy myself that you are guilty as charged, and you’re going to have to acknowledge your guilt. You understand that? A. Yes, I do. Q. Having discussed your rights with you, sir, do you still want to plead guilty? A. Yes, sir. The court’s detailed explanation of the rights attendant to a jury trial and express statement to Ray that he would be giving up the right not to incriminate himself by pleading guilty indicate that Ray was undoubtedly aware of his right to persist in his plea of not guilty. See United States v. Deal, 678 F.2d 1062,1068 (11th Cir.1982); United States v. Saft, 558 F.2d 1073, 1080 (2d Cir.1977); Kloner v. United States, 535 F.2d 730 (2d Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 361, 50 L.Ed.2d 312 (1976). Furthermore, the plea agreement that Ray testified he read, signed, and discussed with his attorney, states: “I understand that I have a right to plead not guilty to any offense charged against me____” This case is distinguishable from United States v. Fels, 599 F.2d 142, 146-47 (7th Cir.1979). In Fels, we reversed defendant Fels’s conviction based in part on our finding that the district court violated 11(c)(3) by failing to determine that" }, { "docid": "15657732", "title": "", "text": "not constitutional violation.) Although the trial court in Timmreck had failed to warn the petitioner of a mandatory special parole term before accepting his guilty plea, thus had violated Rule 11, the Supreme Court refused to vacate petitioner’s sentence. This court, sitting en banc in Keel v. United States, 585 F.2d 110 (5th Cir. 1978), anticipated Timmreck and established the following standard for collateral review of Rule 11 cases: Regardless of what principle of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken. Id. at 113 (after 1975 amendments to Rule ll). Accord, United States v. Johnson, 615 F.2d 1125, 1127 (5th Cir. 1980); Tallent v. United States, 604 F.2d 370, 372 (5th Cir. 1979); Howard v. United States, 580 F.2d 716, 720 (5th Cir. 1978); see United States v. King, 604 F.2d 411, 414 (5th Cir. 1979) (factual basis requirement). Lee Jackson Keel contended that he was entitled to section 2255 relief because the trial court that accepted his plea erroneously overstated the maximum possible sentence. We concluded that Keel had not shown that the court’s failure to comply with Rule 11 was “jurisdictional, unconstitutional, so fundamentally defective as to result in a complete miscarriage of justice, or inconsistent with rudimentary demands of fair procedure.” Id. at 114. Because he did not indicate that he was prejudiced by the error, we denied Keel section 2255 relief. Id. This court has followed Timmreck and Keel in evaluating collateral challenges to guilty pleas taken in technical violation of Rule 11. See, e. g., United States v. Crook, 607 F.2d 670, 672 (5th Cir. 1979); Tallent" }, { "docid": "22735926", "title": "", "text": "PROCEED. NOW, IS THIS DOCUMENT ACCURATE? IS THIS WHAT’S GOING TO HAPPEN IN THIS CASE? IS THIS YOUR UNDERSTANDING OF WHAT’S GOING TO HAPPEN IN YOUR CASE? PORTILLO: YES, SIR. THE COURT: OKAY. MR. ADAMS, ARE YOU FULLY SATISFIED THAT HIS DOCUMENT SETS OUT THE AGREEMENT THAT’S BEEN WORKED OUT, BY YOU, ON BEHALF OF MR. PORTILLO, WITH THE GOVERNMENT? MR. ADAMS: YES, YOUR HONOR. The court proceeded to admonish Portillo concerning the rights he was forfeiting by pleading guilty. Although the court did not directly address Portillo’s waiver of appeal concerning his sentence, it indirectly mentioned it by exclusion: THE COURT: DO YOU REALIZE, THAT BY COMING IN HERE TODAY, AND PLEADING GUILTY, YOU’RE GIVING UP ALL THESE RIGHTS I’VE JUST EXPLAINED TO YOU? NO JURY, NO WITNESSES, NOTHING. YOURE STILL GOING TO HAVE THE RIGHT TO APPEAL THE CONVICTION, SO THAT IF THERE IS AN IMPROPER CASE, IF THERE’S ONE TOO MANY CHARGES, IT’S POSSIBLE THAT ONE OF THESE CHARGES MIGHT BE DROPPED. BUT, ASIDE FROM THAT, YOU’RE GIVING UP YOUR RIGHT TO A TRIAL, TO A WITNESS, TO CONFRONTING THE — TO— TRIAL TO A JURY, TO CONFRONTING THE WITNESSES, ALL THOSE RIGHTS ARE GIVEN UP. DO YOU UNDERSTAND? PORTILLO: YES, SIR. THE COURT: DO YOU STILL WANT TO GO THROUGH WITH THIS GUILTY PLEA AND GIVE UP THOSE RIGHTS? PORTILLO: YES, SIR. To be valid, a defendant’s waiver of his right to appeal must be informed and voluntary. U.S. v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). A defendant must know that he had a “right to appeal his sentence and that he was giving up that right.” Id. at 568. Portillo’s plea agreement informed him of the right to appeal his sentence and that by entering into the plea agreement, he would forfeit that right. Nowhere in the record is there any indication that Portillo did not understand or was confused by the waiver-of-appeal provision. Compare United States v. Baty, 980 F.2d 977, 978-79 (5th Cir.1992) (defendant’s obvious confusion regarding the waiver provision obligated the district court to insure that defendant understood her right to" }, { "docid": "22963578", "title": "", "text": "filed a section 2255 motion challenging his sentence on the ground that the district court had violated Rule 11 by failing to inform him that he would receive a special parole term. The Supreme Court found Timmreck’s situation substantially similar to the situation in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), in which a prisoner had sought section 2255 relief because the sentencing court had failed to inform him that he could speak on his own behalf at his sentencing hearing. The Timmreck Court quoted that portion of Hill in which it reasoned that: The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional.... It does not present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Timmreck, 441 U.S. at 783, 99 S.Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471 (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939))). Moreover, the Court held that “[t]he reasoning in Hill is equally applicable to a formal violation of Rule 11.” Id. Applying the rationale of Hill, the Court found that formal violations of Rule 11 are “neither constitutional nor jurisdictional,” id, and it concluded that: [no] claim reasonably [can] be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. Id 441 U.S. at 784, 99 S.Ct. at 2087 (citations omitted in original). Holloway seizes upon the latter portion of this reasoning, attempting to distinguish his case from Timmreck’s by arguing that he did not know" }, { "docid": "17207866", "title": "", "text": "for a felony of the first degree that you could be fined not more than $10,000.00? THE DEFENDANT: Yes, sir. JUDGE HENDERSON: And that you could receive both the fine and the incarceration, which I have mentioned? THE DEFENDANT: Yes, sir. JUDGE HENDERSON: Are you presently on probation or parole, sir? THE DEFENDANT: No, sir. As indicated below, Stumpf has a low IQ and has been found to be mentally and emotionally immature. Nevertheless, the trial court never inquired into Stumpfs ability to understand the guilty plea pro-cee'dings or the nature of the charges against him. The explanation set out above is the only account of the crimes provided to Stumpf by the court. Nowhere does the court explain the elements, or even read the charges as listed in the indictment. Judge Henderson then proceeded to question Stumpf about the rights he was surrendering by pleading guilty. The exchange went as follows: JUDGE HENDERSON: Do you understand that if you plead guilty you will waive, that is, you will give up the right to a jury trial or trial by the Court; the right to be presumed innocent and until proved guilty beyond a reasonable doubt; the right to confront and to question the witnesses against you and to have compulsory process for obtaining witnesses in your favor; the right to remain silent or to testify at your trial as you may choose and that no inferences may be drawn if you choose not to testify at your trial. Do you understand that you may be giving up those rights? STEPHENS: Your Honor, with reference to that, we have explained that to the defendant. He was going to respond but we have informed him that there is, after the plea, a hearing or trial relative to the underlying facts so that he is of the belief that there will be presentation of evidence and I wanted to make that clear to the Court with reference to his right of waiver of trial to Court. JUDGE HENDERSON: I understand that and I appreciate your bringing that to my attention, Stephens. Of" }, { "docid": "18717185", "title": "", "text": "complete miscarriage of justice or a proceeding inconsistent with the rudimentary demands of fair procedure. Id. at 784, 99 S.Ct. at 2087. In denying collateral relief to the defendant, the Court noted that the defendant’s claim could have been raised on direct appeal but was not, and the Court found no basis for allowing Timmreck’s collateral attack to do service for an appeal. Id. The Court stated that “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” Id. (footnote omitted). This court in an en banc decision prior to Timmreck came to a similar conclusion. In Keel v. United States, 585 F.2d 110 (5th Cir.1978) (en banc), we affirmed the district court’s denial of habeas relief to the defendant in a case in which the district court had not literally complied with Rule 11. The court had misinformed the defendant as to the maximum sentence he could receive. We held: [W]hen a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken. Id. at 113. In Keel we based our holding on the reasoning of the same case relied on by the Supreme Court in Timmreck, Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). In rejecting the defendant’s claim we noted that he had failed to show that he was prejudiced by the technical error or that the error rendered the proceeding so fundamentally defective as to result in a miscarriage of justice. Keel, 585 F.2d at 114. We conclude that the district court’s failure to comply with Rule 11 in Lilly’s case was a formal violation" }, { "docid": "15657731", "title": "", "text": "the federal courts. Nor can any claim reasonably be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 [1969], but was not. And there is no basis here for allowing collateral attack “to do service for an appeal.” Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982. Id. at 783-84, 99 S.Ct. at 2087 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). Cf. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (trial error that was not constitutional violation.) Although the trial court in Timmreck had failed to warn the petitioner of a mandatory special parole term before accepting his guilty plea, thus had violated Rule 11, the Supreme Court refused to vacate petitioner’s sentence. This court, sitting en banc in Keel v. United States, 585 F.2d 110 (5th Cir. 1978), anticipated Timmreck and established the following standard for collateral review of Rule 11 cases: Regardless of what principle of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken. Id. at 113 (after 1975 amendments" }, { "docid": "13146409", "title": "", "text": "court also found that it had misinformed Pitts of the maximum possible sentence under counts two and three. After excluding count one, Pitts’ total exposure was a sentence of fifteen years and a fine of $20,000. The court mistakenly informed Pitts that he could receive twenty-five years and a $25,000 fine. Relying substantially on United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the district court denied relief without an evidentiary hearing, ruling that the claimed errors were not of sufficient magnitude to warrant collateral relief. In Timmreck, the Supreme Court held that “formal” or “technical” violations of Federal Rule of Criminal Procedure 11 do not warrant collateral relief. See id. at 783-84, 99 S.Ct. at 2087. In that case, the defendant had brought a § 2255 motion based on the trial court’s failure to advise him of a mandatory special parole term. Significantly, the defendant did “not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty.” Id. at 784, 99 S.Ct. at 2087. Thus, Timmreck’s only claim was indeed a purely technical one: the trial judge failed to adhere ritualistically to the dictates of Rule 11 in accepting the plea. The Court held that collateral relief is not warranted for such a violation. Instead, collateral relief is warranted only for constitutional defects, jurisdictional defects, complete miscarriages of justice or failures to adhere to the rudimentary demands of fair procedure. Id. at 783-84, 99 S.Ct. at 2087. The district court characterized its failure to advise Pitts of his waivers of certain rights as mere technical violations of Rule 11 and dismissed this portion of his motion pursuant to Timmreck. Pitts argues on appeal that the deficiencies in the trial court’s advice to him cannot be characterized as mere technical or formal errors, but instead are of constitutional magnitude. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Supreme Court reversed a state court conviction based on a guilty plea" }, { "docid": "23384591", "title": "", "text": "Id.; see United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Rule 11(c)(3) was designed to require that the judge inform the defendant and determine that the defendant understands that he is waiving his fifth amendment rights against self-incrimination by pleading guilty. Fed.R.Crim.P. 11 advisory committee’s note (1974). “The rule takes the position that the defendant’s right not to incriminate himself is best explained in terms of his right to plead not guilty and to persist in that plea if it has already been made.” Id. The colloquy between the district court and Ray at Ray’s change of plea hearing indicates that Ray was fully informed, in substance, that he had a right to plead not guilty or to persist in that plea of not guilty. The district judge informed Ray that his jury trial was set to begin that day, that he had “an absolute right to that jury trial,” and that no one, including the court, his own attorney, or the government could deny him his constitutional right to a jury trial. The court advised Ray that he had the right to be tried by a jury consisting of twelve men and women, and at that trial he would have the presumption of innocence and the government would have to prove his guilt beyond a reasonable doubt. In addition, the court informed Ray that he had the right to confront and cross-examine witnesses against him, the right against self-incrimination, the right to present evidence in his own behalf, and the right to choose to testify in his own behalf. The district judge then queried of Ray: Q. One other thing, Mr. Ray, if you plead guilty, do you also understand that you will have to give up your right not to incriminate yourself since I may ask you questions about what you did in order to satisfy myself that you are guilty as charged, and you’re going to have to acknowledge your guilt. You understand that? A. Yes, I do. Q. Having discussed your rights" }, { "docid": "9673746", "title": "", "text": "at and listen to the witnesses against you. You have the right to cross-examine the witnesses through your lawyer. That means to question the witnesses in order to test their credibility. At any trial you have, once again, the Fifth Amendment privilege to remain silent, and if you should remain silent, your silence could not be taken by the judge or jury as any evidence whatsoever of your guilt. Do you understand these things, sir? MR. DAVILA: Yes, sir, your honor. * * % * * * THE COURT: If you enter a plea of guilty, Captain Davila, then you waive the rights I have just described to you. Essentially they are called your rights to a trial, and you would be convicted upon your own plea, and therefore, you would be entitled to only a sentence fairly imposed. Do you understand that, sir? MR. DAVILA: Yes, sir. . The justification for this rule is that acquittal of all but one conspirator precludes the possibility of an agreement between the remaining defendant and another, thus negating, by definition, the existence of a “conspiracy.” See United States v. Goodwin, 492 F.2d 1141, 1144 (5th Cir.1974). . Federal Rules of Criminal Procedure, Rule 32(d) provides: (d) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentences imposed or imposition of sentences suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. . As explained earlier, the acquittal of co-participants in a crime does not prove that the crime did not occur. Rosecrans v. United States, 378 F.2d 561 (5th Cir.1967). . The government gave Davila the opportunity to plead guilty to a lesser charge than that faced by his original co-defendants. He was never exposed to the “risk”, accepted by the other two men, of being convicted of conspiracy. Basically, Davila gambled on whether the government could prove the conspiracy charge. He cannot be heard to complain now, after losing that gamble. . In" }, { "docid": "22963580", "title": "", "text": "about special parole terms and that, if he had, he would not have pled guilty. He reasons that, simply by making these two allegations, the Rule 11 violation upon which he bases his claim cannot be merely a “formal violation.” He concludes, then, that he is entitled to relief on this claim. We disagree. Timmreck establishes that a violation of Rule 11 is merely technical, and therefore insufficient to justify section 2255 relief, if the violation “does not present ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Id. at 783, 99 S.Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471 (quoting Johnston, 306 U.S. at 27, 59 S.Ct. at 446)). Under Timmreck, a Rule 11 violation does not present such exceptional circumstances unless it “results in a complete miscarriage of justice,” or is “inconsistent with the rudimentary demands of fair procedure.” Id at 783, 99 S.Ct. at 2087 (quoting Hill, 368 U.S. at 428, 82 S.Ct. at 471). The fact that Timmreck “[did] not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty,” Id. at 784, 99 S.Ct. at 2087, was enough to convince the Timmreck Court that the error before it was not of the character or magnitude cognizable under a writ of habeas corpus. However, it does not follow that every Rule 11 violation will support a section 2255 claim if the defendant alleges that he had no actual knowledge of the omitted matter and that he would not have pled guilty if he had possessed such knowledge. Timmreck governs our analysis of this issue. Here, Holloway was informed that he could receive a sixty-year prison sentence and his total sentence of forty-five years falls well short of the maximum sentence he could have received. The violation of Rule 11 of which he complains did not result in a complete miscarriage of justice and is not inconsistent with the rudimentary demands of fair procedure." }, { "docid": "15657730", "title": "", "text": "evidentiary hearing. In a section 2255 motion, a petitioner has the burden of sustaining his contentions by a preponderance of the evidence. United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980); see Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978). The court must accord the movant a hearing “[ujnless 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. Because in this case the record, uncontradicted by Wright, shows that he is not entitled to relief, we affirm the district court. In United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court recently held that collateral relief is not available for a technical violation of Rule 11 in the absence of constitutional error or prejudice to the petitioner. The court explained, Such a violation [of Rule 11] is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 [1969], but was not. And there is no basis here for allowing collateral attack “to do service for an appeal.” Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982. Id. at 783-84, 99 S.Ct. at 2087 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). Cf. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (trial error that was" }, { "docid": "22660853", "title": "", "text": "whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognisable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure_’ 368 U. S., at 428.” United States v. Timmreck, 441 U. S. 780, 783 (1979). The Timmreck Court went on to hold that “[t]he reasoning in Hill is equally applicable to a formal violation of Rule 11” because “(s]uch a violation is neither constitutional nor jurisdictional,” and the error did not “resul[t] in a ‘complete miscarriage of justice’ or in a proceeding “inconsistent with the rudimentary demands of fair procedure.’ Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the Rule.” Id., at 783-784. Justice Scalia, with whom Justice Thomas joins, dissenting. I agree with the Court that petitioner has not demonstrated “cause” for failing to challenge the validity of his guilty plea on direct review. I disagree, however, that a defendant who has pleaded guilty can be given the opportunity to avoid the consequences of his inexcusable procedural default by having the courts inquire into whether “ ‘it is more likely than not that no reasonable juror would have convicted him’” of the offense to which he pleaded guilty. Ante, at 623, quoting Schlup v. Delo, 513 U. S. 298, 327-328 (1995). No criminal-law system can function without rules of procedure conjoined with a rule of finality. Evidence not intro duced, or objections not made, at the appropriate time cannot be brought forward to reopen the conviction after judgment has been rendered. In the United States, we have developed generous exceptions to the rule of finality, one of which permits reopening, via habeas corpus, when the petitioner shows “cause” excusing the procedural default," } ]

[ { "docid": "8050387", "title": "", "text": "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 that should result in a sentence different from that described.’ ” Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)); see also USSG § 5K2.0 (reciting same standard). A combination of factors, none of which individually distinguish the case from a heartland situation, may occasionally justify a departure in an “extraordinary case,” but “such cases will be extremely rare.” USSG § 5K2.0, cmt. Except in extraordinary cases, “a sentence outside the guidelines range is not authorized. For example, dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.” Id. (citation omitted). Finally, the district court must state in open court the specific reasons for departure. See 18 U.S.C. § 3553(c)(2); United States v. Flinn, 987 F.2d 1497, 1501-02 (10th Cir.1993). We review departures from the Sentencing Guidelines for abuse of discretion. See United States v. Contreras, 180 F.3d 1204, 1208 (10th Cir.1999). Our review is guided by a four-part inquiry: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. In performing this review, Koon tells us that an appellate court need not defer to the district court’s resolution of the first question, whether a factor is a permissible departure factor under any circumstances, but must give substantial deference to the district court’s resolution of the second question, whether a particular defendant is within the heartland given all the facts of the case. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997) (quotation marks and alterations omitted). “Impermissible factors include forbidden factors, discouraged factors that" } ]

[ { "docid": "7854310", "title": "", "text": "district court’s decision is entitled to substantial deference. See Koon, 518 U.S. at 98, 116 S.Ct. 2035 (“[D]istrict court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.”); United States v. Rivera, 994 F.2d at 942, 951 (1st Cir.1993) (in many cases, “district court’s [departure decision] ... will not involve a ‘quintessentially legal’ interpretation of the words of a guideline, but rather will amount to a judgment about whether the given circumstances, as seen from the district court’s unique vantage point, are usual or unusual, ordinary or not ordinary, and to what extent.”). If, however, the district court’s decision rests primarily on a legal conclusion, for instance whether a factor is a permissible ground for departure, the appellate court’s review is plenary. Collins, 122 F.3d at 1303. Collins established a four-step inquiry to guide our analysis. We must examine: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. 122 F.3d at 1303. We need not give deference to the district court on the first issue, which is essentially a legal conclusion, but we must give substantial deference on the second question because it involves factual conclusions. All of these steps are subject to a unitary abuse of discretion standard. Id. II. Departure Analysis — Present Case A. Permissibility of Departure Factors We first examine the district court’s decision to depart upward to determine if the factors the court relied on were permissible. Again, because this is a legal analysis, we do not defer to the district court’s decision on this matter. Id. Ms. Whiteskunk argues the factors the district court cited for upward departure, (1) death resulting from the conduct, and (2) excessive recklessness, were already taken into account under the involuntary manslaughter Guideline, and" }, { "docid": "7854321", "title": "", "text": "unjustified disparities in sentencing. Instead, it will reinforce the ideals of fairness and flexibility within the range of reasonableness the Guidelines establish for sentencing courts, and continue “the federal judicial tradition ... to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon, 518 U.S. at 113, 116 S.Ct. 2035. B. Justification for Upward Departure and Sufficiency of the Record Having decided recklessness exceeding the Guideline standard for involuntary manslaughter is a permissible factor for upward departure, we must now determine whether the factual bases the district court cites are sufficient to remove the case from the “heartland” and warrant an upward departure. We examine the court’s decision to depart upward under a unitary abuse of discretion standard, giving deference to the district court on these matters. See Koon, 518 U.S. at 98-99, 116 S.Ct. 2035. We look only to see if “the factual circumstances from the vantage point of the district court make this the atypical case.” Collins 122 F.3d at 1303 (quoting Rivera, 994 F.2d at 951-52). If the case is a typical one, the “court must impose a sentence within the applicable Sentencing Guidelines range.” United States v. Jones, 158 F.3d 492, 496(10th Cir.1998) (citing 18 U.S.C. § 3553(a), and Koon 518 U.S. at 85, 116 S.Ct. 2035). Because of the factual nature of this inquiry, we simultaneously consider the sufficiency of the record to support the bases for departure. The district court specifically cited several factual circumstances it believed removed the case from the heartland and justified upward departure. The court emphasized Ms. Whi-teskunk’s reckless conduct, highlighting the following facts: (1) her blood alcohol content was more than twice the legal limit; (2) she sustained a prior conviction for driving while intoxicated — putting her on notice of her own propensity to drink and drive and the dan gerousness of such conduct; and (3) she had at least three opportunities to correct her behavior, first, when her keys were confiscated and she was told she" }, { "docid": "5832025", "title": "", "text": "be made concerning each incremental level. See, e.g., United States v. Dixon, 71 F.3d 380, 383 (11th Cir.1995); United States v. Thomas, 24 F.3d 829, 834 (6th Cir.1994); United States v. Harris, 13 F.3d 555, 558 (2d Cir.1994); but see United States v. Cash, 983 F.2d 558, 561 (4th Cir.1992). The Guideline here gives instructions concerning the methodology for structuring the departure; it does not require that express findings be made concerning each incremental step. II. We move to defendant’s second argument, that the decision to depart and degree of departure were unreasonable. We review departures from the Sentencing Guidelines under a unitary abuse-of-discretion standard. United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997). “When the question presented is essentially factual, appellate review should be at its most deferential” because departure decisions in such circumstances embody a sentencing court’s traditional exercise of discretion. Id. at 1302-03. “Where the issue is essentially legal, however, appellate review should be plenary.” Id. at 1303. In reviewing a departure from the Guidelines, we must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Id. Our review of the record convinces us that the district court did not abuse its discretion in determining that an upward departure was warranted in this case. Departures from the career offender guideline are authorized where a defendant’s criminal history places him outside the “heartland” of career offenders. Cf. id. at 1304 (applying heartland analysis to downward departure from career offender guideline). The district court permissibly relied upon the defendant’s numerous charges pending for prior offenses and the fact that he had been on trial or parole when he committed the instant offense, to remove him from the heartland of the career offender guideline. See USSG § 4A1.3(d) and (e). The district court provided a sufficient explanation, supported by specific facts" }, { "docid": "23569332", "title": "", "text": "125 S.Ct. at 769; United States v. Lynch, 397 F.3d 1270, 1272 (10th Cir.2005). With respect to this claimed error, the Government suffers the same fate as the Appellants in their claim of error related to the discovery of alleged promises made to Ms. Gutierrez in exchange for her testimony. The District Court’s ruling on this issue is conspicuously missing from the transcript and the Government has otherwise failed to point to the place in the record where this discussion is found. Because we must be informed by the District Court’s findings of fact and its application of the Guidelines to the facts, the Government’s failure to ensure that the record has been supplemented with the relevant transcripts is fatal to its claim. See 10th Cir. R. 28.2(C)(2), (3); United States v. LaHue, 261 F.3d 993, 1014-1015 (10th Cir. 2001). Next, the Government argues that the District Court erred in granting each Appellant a two-level downward departure based on their susceptibility to abuse in prison under U.S.S.G. § 5K2.0. We review downward departures under a unitary abuse of discretion “which includes review to determine that the discretion of the district court was not guided by exroneous legal conclusions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation and alteration omitted). In determining whether the district court abused its discretion this Court must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Id. Here, the Government claims only that the District Court exred in finding that the Appellants’ susceptibility to abuse in prison removed them from the heartland of cases thus warranting departure. The fact that police officers are susceptible to abuse in prison does not, alone, warrant a downward departure. See Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Indeed, in many" }, { "docid": "15706818", "title": "", "text": "children. Id. at 25, 27-28. After a short recess, Defendant’s counsel told the court that Defendant’s mother requires 24-hour care and that none of the siblings could provide care for either her or the children. Id. at 28-31. The court then reaffirmed its downward departure and sentenced the Defendant to five months’ imprisonment, five months’ home confinement, and three years’ supervised release. Id. at 15-16, 18, 31-32. DISCUSSION We review a district court’s decision to depart from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. -,---, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied, — U.S.-, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997). In Koon, the Supreme Court found “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. The Court reasoned that district courts have an “institutional advantage” over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at ---, 116 S.Ct. at 2046-47. Nevertheless, the Court also concluded that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at-, 116 S.Ct. at 2047. “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at-, 116 S.Ct. at 2048. As we recently stated, in reviewing departure decisions we employ a unitary abuse of discretion standard, which includes the following inquiries: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d" }, { "docid": "6500769", "title": "", "text": "to the highest level. See U.S.S.G. ch. 3, pt. D. The court here treated each of the three pseudo-counts attributed to a deceased passenger as a separate group with an offense level of 26. It treated each of the four counts attributed to a seriously injured passenger as a separate group with an offense level of 22. Because the offense level for each of the seven groups was within 4 levels of the highest level for any group, under § 3D1.4 there would be 7 units and the offense level would be raised by 5 levels Accordingly, Defendant’s total offense level rose from 26 to 31 and the Guideline sentencing range increased to 108-135 months. The court imposed a prison term of 120 months. Defendant objected to both the justification for and the method of departure. II. Discussion (A) Standard of Review As previously stated, a sentencing court may depart from the Guidelines only because of circumstances “not adequately taken into consideration by the Sentencing Commission.” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Congress has instructed the courts to “consider only the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission” in determining whether the Sentencing Commission has adequately considered a circumstance. 18 U.S.C. § 3553(b). United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997), set out our approach to appellate review of departures from the Sentencing Guidelines: [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon [v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),] must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. We review all four steps of the departure analysis “under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion [of the district court] was not guided" }, { "docid": "23541053", "title": "", "text": "disagreed with Mr. Gau-vin’s defense that he lacked the requisite intent to commit the crime, that does not undermine the good faith in which the district court found this defense was asserted. See Rec. vol. VII, at 8-9. Here, Mr. Gauvin argued that he did not intend, while drunk and scared, to cause injury to others. Further, he contended that his drunkenness rendered him incapable of forming the requisite mens rea. This defense — essentially a challenge to the applicability of the statute to his conduct, see USSG § 3E1.1, comment, (n.2) — does not as a matter of law preclude application of the guideline. Although we recognize that such adjustments are “rare,” id., and might not have reached the same decision, in light of the deference afforded the sentencing judge, we hold the district court did not err in granting a downward departure for acceptance of responsibility. 2. The district court did not err in departing downward for exceptional family circumstances. The district court also found that Mr. Gauvin merited a three offense-level downward departure because of exceptional family circumstances. In conducting our review, we must acknowledge, “Koon made explicit that in promulgating the Guidelines, Congress did not intend to vest in appellate courts wide-ranging authority over district court sentencing decisions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997) (quotation omitted). “Rather, Congress meant to establish^] limited appellate review, where district courts retain much of their traditional sentencing discretion.” Id. (emphasis supplied) (quotations omitted). It is our role to “review departures under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion Tof the district court] was not guided by erroneous legal conclusions.’ ” Id. (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). More specifically, we must make four determinations: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon are sufficient to remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and" }, { "docid": "22592830", "title": "", "text": "court abused (or exceeded) its discretion in using a family circumstances departure to adjust the defendants’ guidelines sentence. This standard includes the following inquiries: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the. departure factors relied .upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). We have described the first inquiry as a legal question and the second as essentially a factual question. Id. We note that what constitutes a guideline’s heartland is a legal question and our review on that question is not deferential. Id. at 1303 n. 4. In reviewing the district court’s downward departure, we recognize that before Booker these discretionary departures were considered against a mandatory sentencing scheme, while after Booker the guidelines are entirely advisory. See Booker, 125 S.Ct. at 765. Our post-Booker cases have noted that Booker’s reasonableness review is inappropriate for a pre-Booker sentence imposed under the then-mandatory scheme. See, e.g., United States v. Souser, 405 F.3d 1162, 1165 (10th Cir.2005). Nonetheless, in the context of our review of this particular discretionary degree-of-departure question, we are informed by, and must take account of, the fact that the district court would have enhanced discretion upon remand after Booker. Moreover, even in an exclusively pre Booker context, “we give due deference to the district court and will not reverse absent an abuse of discretion.” United States v. Jones, 332 F.3d 1294, 1300 (10th Cir.2003) (citation omitted). As part of our review, we consider the district court’s stated reasons for choosing this particular sentence in light of the 18 U.S.C. § 3553(a) sentencing factors, which include “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a), “the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and" }, { "docid": "1888010", "title": "", "text": "Under these circumstances, the district judge’s ruling in favor of Fortier was not vindictive. Ill In reviewing an upward departure, we examine: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). “We review all four steps of the departure analysis under a unitary abuse of discretion standard.” United States v. Bartsma, 198 F.3d 1191, 1195 (10th Cir.1999) (citing Collins, 122 F.3d at 1303). “[W]here the court’s decision whether to depart rests on factual findings, the district court’s decision is entitled to substantial deference.” United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th Cir.1998) (citations omitted). The fact that the district court departed upward on resentencing for the first time does not, by itself, warrant reversal. On remand from this Court, a district court may resentence a defendant on different grounds, considering different enhancements or departures, as long as they are not foreclosed by the scope of the appellate decision. See United States v. Talk, 158 F.3d 1064, 1069 (10th Cir.1998) (holding that in resentencing after remand, “[t]he district court was only bound by the law of the case ..., not by its own previous refusal to depart”); United States v. Smith, 116 F.3d 857, 859 (10th Cir.1997) (holding that on remand “the district court is free to reconsider the sentencing package de novo unless the appellate court specifically limited the district court’s discretion on remand”). Both parties agree that the horror of death and destruction that resulted from the Oklahoma City bombing falls outside the Sentencing Guidelines’ heartland and can support an upward departure. However, Fortier interposes, there is an insufficient nexus between his admitted wrongdoing and the Oklahoma City bombing to permit an upward departure — because he was not charged as a co-conspirator, he bears no legal responsibility for the bombing." }, { "docid": "8059282", "title": "", "text": "imprisonment, followed by five years supervised release. DISCUSSION I. Departure from the Guidelines We review a district court’s decision to depart from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997). In Koon, the Court found “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. The Court reasoned that district courts have an “institutional advantage” over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at -, 116 S.Ct. at 2046-47. Nevertheless, the Court also concluded that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at -, 116 S.Ct. at 2047. “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at -, 116 S.Ct. at 2048. We have summarized our analysis as: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). The first inquiry is a legal question, the second is factual. In general, a court must impose a sentence within the guideline range unless it finds “there exists 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 that should result in a sentence different from that described.”" }, { "docid": "404308", "title": "", "text": "a given factor is present to a degree not adequately considered by the Commission ... [is] determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2046-47. In reviewing a district court’s decision to depart, this Court must evaluate (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. We apply a unitary abuse of discretion standard throughout the Collins analysis. Id.; Koon, 518 U.S. at - - -, 116 S.Ct. at 2047-48. Whether the factual circumstances of the case provide a permissible basis for departure is essentially a legal inquiry and our review is plenary. Collins, 122 F.3d at 1303; Koon, 518 U.S. at -, 116 S.Ct. at 2047. Whether the factual circumstances make the case atypical is a factual inquiry and our review is most deferential. Collins, 122 F.3d at 1302; Koon, 518 U.S. at -, 116 S.Ct. at 2046. The district court departed upward from the applicable guideline range for fraud offenses. See U.S.S.G. § 2F1.1. In departing upward, in accordance with U.S.S.G. § 5K2.0, the district court found this case “clearly is a matter which goes beyond the heartland of the typical cases of fraudulent conduct that the guideline [U.S.S.G. § 2F1.1] describes.” In reviewing an upward departure, we ask first whether the district court has relied on permissible departure factors. Collins, 122 F.3d at 1303. Potential departure factors “cannot, by their very nature, be comprehensively listed and analyzed in advance.” U.S.S.G. § 5K2.0. With the exception of a short list of factors, the Commission “does not intend to limit the kinds of factors," }, { "docid": "22592829", "title": "", "text": "have the same jurisdiction to review guidelines sentences as it had before the Supreme Court’s decision in Booker.” Id.; see Doe, 398 F.3d at 1256; see also United States v. Ruiz-Alonso, 397 F.3d 815, 817 (9th Cir.2005) (applying § 3742(b)). We agree with the Second Circuit that, “[i]n the absence of a statutory de novo standard of review, we select the appropriate standard according to the, nature of the issue presented.” United States v. Selioutsky, 409 F.3d 114, 2005 WL 1253478, at *4 (2d Cir. May 27, 2005) (reviewing downward departure for family circumstances under an . abuse of discretion standard). Before Congress amended § 3742(e) and required our de novo review of departures, “[w]e review[ed] departures from the guidelines under a unitary abuse-of-discretion standard, giving, deference to essentially factual questions and plenary review to those that are essentially legal.” United States v. Concha, 294 F.3d 1248, 1251 (10th Cir.2002). Because the sentencing judge has discretion with respect to departures, see USSG § 5K2.0 (noting that the court “may depart”), we consider whether the district court abused (or exceeded) its discretion in using a family circumstances departure to adjust the defendants’ guidelines sentence. This standard includes the following inquiries: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the. departure factors relied .upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). We have described the first inquiry as a legal question and the second as essentially a factual question. Id. We note that what constitutes a guideline’s heartland is a legal question and our review on that question is not deferential. Id. at 1303 n. 4. In reviewing the district court’s downward departure, we recognize that before Booker these discretionary departures were considered against a mandatory sentencing scheme, while after Booker the guidelines are entirely advisory. See Booker, 125 S.Ct. at 765. Our post-Booker cases have" }, { "docid": "23024126", "title": "", "text": "to depart upward from the applicable guideline range. Even after Booker, “[w]hen reviewing a district court’s application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Martinez, 418 F.3d 1130, 1133 (10th Cir.) (quoting United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005)), cert. denied, —— U.S. -, 126 S.Ct. 841, 163 L.Ed.2d 716 (2005). In specifically reviewing upward departures, this court employs a four-part test, examining: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Whiteskunk, 162 F.3d at 1249; see also United States v. Serrata, 425 F.3d 886, 911-12 (10th Cir.2005) (applying this four-factor standard post-Booker to review district court’s downward departure imposed pre-Booker). “All of these steps are subject to a unitary abuse of discretion standard.” Whiteskunk, 162 F.3d at 1249. That “unitary abuse-of-discretion standard” involves review to determine that the [district court’s] discretion ... was not guided by erroneous legal conclusions. This standard limits appellate courts’ scope of review, leaving district courts with much of their traditional sentencing discretion. The essential nature of the question presented [on appeal], whether legal or factual, guides our standard of review. In the usual case, where the court’s decision whether to depart rests on factual findings, the district court’s decision is entitled to substantial deference. If, however, the district court’s decision rests primarily on a legal conclusion, for instance whether a factor is a permissible ground for departure, the appellate court’s review is plenary. Id. (quotations, citations, alterations omitted). In addition, [i]n reviewing the district court’s ... departure, we recognize that before Booker these discretionary departures were considered against a mandatory sentencing scheme, while after Booker the guidelines are entirely advisory---[I]n the context of our" }, { "docid": "23569333", "title": "", "text": "unitary abuse of discretion “which includes review to determine that the discretion of the district court was not guided by exroneous legal conclusions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation and alteration omitted). In determining whether the district court abused its discretion this Court must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Id. Here, the Government claims only that the District Court exred in finding that the Appellants’ susceptibility to abuse in prison removed them from the heartland of cases thus warranting departure. The fact that police officers are susceptible to abuse in prison does not, alone, warrant a downward departure. See Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Indeed, in many instances, committing a crime while acting under color of law will result in a higher sentence' — as it did in this case — rather than a lower sentence. See U.S.S.G. § 2H1.1(b)(1) (permitting enhancement when offense is committed under color of law). However, when a district court determines that the defendants’ susceptibility to abuse is compounded by “widespread publicity and emotional outrage ... [this] is just the sort of determination that must be accorded deference by the appellate courts.” Koon, 518 U.S. at 112, 116 S.Ct. 2035. Relying on Koon, the District Court found that this case was outside the heartland of the Guidelines because it was part of a vast investigation, spanning several years, that involved not only the abuse of inmates by correctional officers, but also the conspiracy to abuse inmates. In addition to evidence of the size and scope of the investigation, the District Court was presented with other evidence that this case was outside the heartland of cases. For example, there was evidence that the investigation was reported on in" }, { "docid": "23541054", "title": "", "text": "departure because of exceptional family circumstances. In conducting our review, we must acknowledge, “Koon made explicit that in promulgating the Guidelines, Congress did not intend to vest in appellate courts wide-ranging authority over district court sentencing decisions.” United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997) (quotation omitted). “Rather, Congress meant to establish^] limited appellate review, where district courts retain much of their traditional sentencing discretion.” Id. (emphasis supplied) (quotations omitted). It is our role to “review departures under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion Tof the district court] was not guided by erroneous legal conclusions.’ ” Id. (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). More specifically, we must make four determinations: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon are sufficient to remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. See id. at 1303. First, the Guidelines tell us that family circumstances and responsibilities are a permissible but discouraged factor. See USSG § 5H1.6. Therefore, a district court may depart based on family circumstances “only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon v. United States, 518 U.S. 81, 94,116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). This requirement blends the first two factors for appellate review. Therefore, on the second determination we question whether Mr. Gauvin’s family circumstances remove him from the applicable Guideline heartland. We give the district court “substantial deference” in resolving “whether a particular defendant is within the heartland given all the facts of the case.” Collins, 122 F.3d at 1303 (quotations omitted). We hold the district court did not err in concluding Mr. Gauvin’s crime was outside the heartland. “The Sentencing Guidelines allow for a downward departure in the atypical case where a" }, { "docid": "2063717", "title": "", "text": "may not support a departure, those that are encouraged as a basis for departure, and those that are discouraged. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We review departures from the guidelines under a unitary abuse-of-discretion standard, giving deference to essentially factual questions and plenary review to those that are essentially legal. See United States v. Hannah, 268 F.3d 937, 940 (10th Cir.2001). In determining whether a sentencing court abused its discretion in deciding to depart we must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Id. at 940-41 (quoting United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997)). Only the fact of departure is at issue here, not the degree. The district court in this case departed upward upon concluding that Mr. Concha’s criminal history category under-represented the seriousness of his past conduct. The failure of a defendant’s criminal history category to “adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes” is an encouraged departure factor. U.S.S.G. § 4A1.3. However, we must also assess whether the factual bases upon which the court here relied in finding under-representation are themselves permissible grounds for departure. See Collins, 122 F.3d at 1304-05. The district court expressly grounded its departure decision upon seven instances of foreign criminal" }, { "docid": "7770", "title": "", "text": "minor” under U.S.S.G. § 2G2.4(b). II. Standard of Review In United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir.1997), we identified four inquiries that must be made in reviewing departure decisions following the Supreme Court’s significant decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996): [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the Appellant from the applicable Guideline heartland thus warranting departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. Appellant challenges the district court’s decision regarding the first and third of these inquiries. As instructed in Koon, we review departures from the Sentencing Guidelines under a “unitary abuse of discretion” standard. Collins, 122 F.3d at 1302 (citing Koon, 518 U.S. at 96-100, 116 S.Ct. 2035). “A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. However, “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at 100, 116 S.Ct. 2035. III. Impermissible Factors Appellant first contends that the district court used an impermissible factor as a basis for its upward departure. The court noted that the Commission had made “the sexual abuse or exploitation of a minor” a specific offense characteristic for trafficking in child pornography, but not for child pornography possession. This, the court held, was “an oversight” by the Commis sion. Tr. at 60. The court then departed from the child pornography possession guideline, using the exploitation offense characteristic. Appellant disputes the district court’s conclusion, reasoning that it was incorrect to" }, { "docid": "6500770", "title": "", "text": "has instructed the courts to “consider only the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission” in determining whether the Sentencing Commission has adequately considered a circumstance. 18 U.S.C. § 3553(b). United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997), set out our approach to appellate review of departures from the Sentencing Guidelines: [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon [v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),] must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. We review all four steps of the departure analysis “under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions.’” Id. at 1302 (quoting Koon, 518 U.S. at 100, 116 S.Ct. 2035). “The deference that is due depends on the nature of the question presented.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. “When the question presented is essentially factual, appellate review should be at its most deferential.” Collins, 122 F.3d at 1302. But, “[w]hen the issue is essentially legal, ... appellate review should be plenary.” Id. at 1303. (B) Departure Factors The first question — whether the factual circumstances supporting a departure are permissible departure factors — is essentially a legal one, which we review de novo. No deference is due the district court’s decision on this issue. Id. at 1303. At the outset we must determine what factors the district court relied upon for departure. Defendant argues that in addition to relying on the deaths and serious injuries, the court relied upon his disregard for human life and dignity as well as his excessive recklessness. Defendant points out that at the sentencing hearing the court observed that Defendant displayed" }, { "docid": "7769", "title": "", "text": "depart upward from § 2G2.4 because the Sentencing Commission had failed to consider the sexual abuse of a minor as a specific offense characteristic for child pornography possession as it had for child pornography trafficking. The district court agreed with the government: “I think it must have been an oversight that Section 4 under 2G2.2 was not also listed ... under 2G2.4.” Tr. at 60. The court then departed from the sentencing range of 24 to 36 months by five levels, sentencing Appellant to 51 months of imprisonment. Appellant objects to the district court’s upward departure on three fronts. First, Appellant contends that the court based its upward departure on an impermissible factor, since the Commission could not have failed to consider the sexual abuse of a minor in such a proximately located offense characteristic. Second, Appellant asserts that his possession of the child pornography was “totally irrelevant” to the allegations of sexual abuse. Third, Appellant argues that his actions were insufficient to constitute “engag[ingj in a pattern of sexual abuse or exploitation of a minor” under U.S.S.G. § 2G2.4(b). II. Standard of Review In United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir.1997), we identified four inquiries that must be made in reviewing departure decisions following the Supreme Court’s significant decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996): [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the Appellant from the applicable Guideline heartland thus warranting departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. Appellant challenges the district court’s decision regarding the first and third of these inquiries. As instructed in Koon, we review departures from the Sentencing Guidelines under a “unitary abuse of discretion” standard. Collins, 122 F.3d at 1302 (citing Koon, 518 U.S. at" }, { "docid": "404307", "title": "", "text": "invalid factors.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2053-54 (citing Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992)). Herein, the district court did not rely on the SCAMS Act as the sole basis for departure. The sentencing court also found the circumstances of this case were outside the heartland of the offenses for which Mr. Smith was being sentenced. We review this finding to determine' if the district court’s error was harmless. See Fed.R.Crim.P. 52(a). The district court may depart from the guidelines if an aggravating circumstance exists to a degree not adequately taken into consideration by the guidelines. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. A departure is permitted if aspects of the case are “found unusual enough for it to fall outside the heartland of eases in the Guideline.” Koon, 518 U.S. at -, 116 S.Ct. at 2046. A district court’s decision to depart from the guidelines based on the unusual nature of the case is due “substantial deference” because “[w]hether a given factor is present to a degree not adequately considered by the Commission ... [is] determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2046-47. In reviewing a district court’s decision to depart, this Court must evaluate (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. We apply a unitary abuse of discretion standard throughout the Collins analysis. Id.; Koon, 518 U.S. at - - -, 116 S.Ct. at 2047-48. Whether the factual circumstances of the case provide a permissible" } ]

[ { "docid": "18638017", "title": "", "text": "MEMORANDUM OPINION AND ORDER SCOTT REED, District Judge. On October 19, 1978, American Borate Company, defendant, filed its original petition for removal of the instant case to federal court. Shortly thereafter, on October 27, 1978, defendant’s amended petition for removal was filed. Both petitions were defective. They alleged diversity of citizenship as of the time of the request for removal, but failed to allege diversity as of the time of the commencement of the suit in state court. 28 U.S.C. Sections 1441, 1446. An amendment to a petition for removal should be subject to the same requirements as those governing the amendment of any other pleading containing jurisdictional allegations. Stanley Elec. Contractors v. Darin & Armstrong Co., 486 F.Supp. 769 (E.D.Ky.1980). Leave to amend shall be freely given when justice so requires. Fed.R.Civ.P. 15(a). Kentucky Solar Energy Controls, Inc., plaintiff, has not shown that it would be prejudiced if this Court were ,to allow defendant to amend its amended petition for removal. There does not appear to be any genuine controversy that the parties in this action were of diverse citizenship, both at the time the action was commenced and at the time of removal. The Court finds no persuasive reason not to allow the filing of the second amended petition for removal. There remains before the Court the plaintiff’s motion for a protective order and the defendant’s motion to compel discovery. These motions were referred to the United States Magistrate for a report and recommendation. See 28 U.S.C. Section 636(b)(1)(B). The report suggests that if the Court retains jurisdiction over the case, the motion for a protective order should be sustained, and the motion to compel discovery should be overruled, without prejudice to the right of the defendant to file a subsequent similar motion upon evidence showing at least the possibility that variations in the controlled factors of the plaintiff’s manufacturing process could have produced the defects which the plaintiff claims to result from the breach of the defendant’s warranty as to the quantity of borate contained in the ulexite furnished by the defendant to the plaintiff. In view" } ]

[ { "docid": "3207723", "title": "", "text": "filed and, therefore, cannot cure the procedurally defective original petition. A removal petition may be amended freely within the thirty day period set forth in 1446(b). Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270. However, after the thirty day period has lapsed, amendments to remedy “defective allegations of jurisdiction” are permitted pursuant to 28 U.S.C. § 1653. This right to amend removal petitions pursuant to § 1653 after the thirty day period set forth in 28 U.S.C. § 1446(b) is considered limited and cannot be used to cure “a substantial defect in removal proceedings.” Mason v. International Business Machines & RTKL, 543 F.Supp. at 446. The Mason court refused to allow an amendment, after the thirty day period had lapsed, to allege that a non-joining party consented to removal, stating that such “failure to join in or consent to removal [was] a substantial defect in the removal proceeding.” Id. Furthermore, in Cook v. Robinson, 612 F.Supp. 187, 190 (D.C.Va.1985), the court refused to allow an amendment under § 1653 to allege that the original petition for removal was timely stating that “[defendants did not defectively allege the timeliness of their petition, but rather failed to make any allegation at all concerning the timeliness of the petition. Therefore, 28 U.S.C. § 1653 is inapplicable.” In conclusion, this court finds that while the requirement for timely filing the petition for removal is not jurisdictional, it is mandatory. Mason v. International Business Machines & RTKL, 543 F.Supp. at 446. Furthermore, the untimely filing or amending of a petition for removal has been classified as a defect causing “improvident” removal within the purview of 28 U.S.C. § 1447(c) which provides, in pertinent part, that “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.” Royal v. State Farm Fire & Casualty Co., 685 F.2d 124 (5th Cir.1982). Therefore, since the original petition was defective and failed to allege why CLECO had not joined the petition for removal, this" }, { "docid": "22844280", "title": "", "text": "AAA was a nominal party, that defect was cured by the amended petition, notwithstanding the fact that the amendment was filed more than thirty days after Aireo received a copy of the state court complaint. Removal must be effected within thirty days after a defendant receives a copy of the state court complaint, or is served, whichever occurs first. 28 U.S.C. § 1446(b). While the time limitation imposed by § 1446(b) is not jurisdictional, Ryan v. State Board of Elections of the State of Illinois, supra, 661 F.2d at 1134; Perrin v. Walker, 385 F.Supp. 945, 947 (E.D. Ill.1974); see Ayers v. Watson, 113 U.S. 594, 598, 5 S.Ct. 641, 642, 28 L.Ed. 1093 (1885), it is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived. A removal petition may be amended freely within the thirty day period. Moreover, even after the thirty days have elapsed, amendments to correct “defective allegations of jurisdiction” are permitted under 28 U.S.C. § 1653. E.g., Barrow Development Co. v. Fulton Insurance Co., 418 F.2d 316, 317 (9th Cir. 1969). See Willingham v. Morgan, 395 U.S. 402, 407 n.3, 89 S.Ct. 1813, 1816 n.3, 23 L.Ed.2d 396 (1969). See generally Young Spring & Wire Corp. v. American Guarantee and Liability Insurance Co., 220 F.Supp. 222, 228-29 n.2 (W.D. Mo.1963). In this case, as in many others since the adoption of the removal statute over a century ago, “[t]he right to remove existed, but the petition for removal was defective. If it had been sufficient there would have been no .need of amendment. The question is whether it was so defective as to be incurable.” Kinney v. Columbia Savings & Loan Association, 191 U.S. 78,80, 24 S.Ct. 30, 31, 48 L.Ed. 103 (1903). In determining whether a removal petition is incurably defective, the court not only examines the specific allegations of the petition itself, but also must scrutinize the record of the state court proceedings. Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 101, 18 S.Ct. 264, 267, 42 L.Ed." }, { "docid": "1489974", "title": "", "text": "where the state action is pending, “containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a). Such notice of removal is proper if filed within thirty days from the date when the case qualifies for federal jurisdiction. See Caterpillar Inc. v. Lewis, 519 U.S. at 68-69, 117 S.Ct. 467; 28 U.S.C. § 1446(b). The Tenth Circuit has further elaborated that, for the thirty-day period to begin to run, “this court requires clear and unequivocal notice from the [initial] pleading itself’ that federal jurisdiction is available. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998). The Tenth Circuit specifically disagrees with “cases from other jurisdictions which impose a duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin v. Ashland Chem. Co., 156 F.3d at 1036. “When a civil action is removed solely under section 1441(a), [the standard removal statute, which excludes multiparty, multiforum jurisdiction,] all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). The failure of all defendants to consent to removal will result in remand. The rule of unanimity applies to all defendants, whether they are required parties under rule 19 or merely proper parties under rule 20. The defendants who have not been served, however, need not join in removal. See Kiro v. Moore, 229 F.R.D. 228, 280-32 (D.N.M. 2005)(Browning, J.). 3. Amendment of the Notice of Removal. In Caterpillar, Inc. v. Lewis, the Supreme Court held that a defect in subject-matter jurisdiction cured before entry of judgment did not warrant reversal or remand to state court. See 519 U.S. at 70-78, 117 S.Ct. 467. Citing Caterpillar, Inc, v, Lewis, the Tenth Circuit has held that “a defect in removal procedure, standing alone, is not sufficient to warrant vacating judgment :and remand to staté court if subject matter jurisdiction existed in the federal court.” Browning v. Am." }, { "docid": "1839348", "title": "", "text": "not properly exercise jurisdiction on this basis. The court agrees that defendants failed to timely assert federal question jurisdiction as a basis for removal. Under 28 U.S.C. § 1441, a defendant may remove a case from state to federal court if federal jurisdiction exists. To effect removal, the defendant must file in the district court “a notice of removal ... containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant.” 28 U.S.C. § 1446(a). The notice of removal must be filed within thirty days after a defendant receives or is served with a copy of the state court complaint, or within thirty days of his receipt of some “other paper” from which the removability of the case is first ascertainable. 28 U.S.C. § 1446(b). Within the thirty-day period prescribed by § 1446(b), a defendant may freely amend its notice of removal. And the majority of courts have recognized — at least in more recent times — that even after expiration of this thirty-day period, a defendant may still be allowed to amend its removal petition in order to cure defective allegations of jurisdiction. See, e.g., D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146 (5th Cir.1979) (holding 'that amendment of removal petition was properly allowed to correct jurisdictional allegations in removal petition which were defective or faulty due to defendants’ failure to specifically allege the citizenship of the parties at the time the suit was brought and at the time the removal petition was filed; missing allegation was not a fatal omission which could not be cured by amendment). The authorization for such amendments derives from 28 U.S.C. § 1653, which states that “defective allegations of jurisdiction may be amended ... in the trial and appellate courts.” Thus, where a defendant, for example, has alleged the existence of diversity jurisdiction in its removal petition but has failed to allege all of the specific facts, or has incor rectly alleged some of the facts underlying its jurisdictional conclusion, courts have allowed amendments" }, { "docid": "16889175", "title": "", "text": "of removal proceedings where there is a technical defect and there are averments sufficient to show jurisdiction.” This rule recognizes the essential difference between complaints and removal petitions already mentioned herein. The case leaves open to speculation what the court might have decided if its attention had been called to the absence of any averment, even in the amendment offered by the defendant, negating the possibility that the corporation had been incorporated in more than one state. Memphis & C. R. Co. v. Alabama, supra. Since the Kinney opinion was handed down, many changes have been made in applicable statutes. Verification of the petition became a statutory requirement in the Judicial Code of 1911, 28 U.S.C. former § 72. In 1915, Congress specifically provided for amendment of defective jurisdictional allegations both in original pleadings and in removal petitions, 28 U.S.C. former § 399. This provision was contracted in 1948 to its present brief form as 28 U.S.C. § 1653, supra, n. 2, as part of the general revision of the Judicial Code in which drastic changes in removal procedures were enacted, 28 U.S.C. § 1446. Under the new procedure the state court is given no opportunity to judge the sufficiency of the petition to oust it of jurisdiction. A mere notice to the state court clerk of the filing of the petition and bond in the federal court removes the case until remanded by the federal court, § 1446(e). The new law abolished time limits based upon state court procedure, and substituted brief, uniform periods, § 1446(b). The required content of the petition was specified by the statute — “a short and plain statement of the facts which entitle him or them to removal,” § 1446(a). And, substantively, the right of removal was restricted to defendants who were not citizens of the forum state, § 1441(b), instead of non-resident defendants as in former § 71. From all this it is clear that the petition under the 1948 Judicial Code has become a more vital factor in the process of divesting state court jurisdiction and invoking that of the federal court" }, { "docid": "2916353", "title": "", "text": "1446. According to § 1446, the defendant has 30 days from receipt of the complaint to file a notice of removal. During those 30 days, a notice of removal may freely be amended. 28 U.S.C. § 1446(b). See also Wormley v. Southern Pacific Transp. Co., 863 F.Supp. 382 (E.D.Tex.1994). Teamsters did remove within the thirty day period. After that period, courts have generally held that amendments may only be allowed to cure defective allegations of jurisdiction not to add new jurisdictional allegations, and may not be used to cure procedural defects. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts”). See also Armada Coal Export, Inc. v. Interbulk, Ltd., 726 F.2d 1566 (11th Cir.1984); Tech Hills II Associates v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963 (6th Cir.1993); Hendrix v. New Amsterdam Casualty Company, 390 F.2d 299 (10th Cir.1968); CBS Inc. v. Snyder, 762 F.Supp. 71 (S.D.N.Y.1991). Certain courts have argued that removal petitions should be treated the same as any other pleading, Gafford v. General Electric Co., 997 F.2d 150 (6th Cir.1993); Rachel v. State of Georgia, 342 F.2d 336 (5th Cir.1965), aff'd 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); Stanley Electric Contractors, Inc. v. Darin & Armstrong Co., 486 F.Supp. 769 (E.D.Ky.1980), and afforded a liberal construction. Under above-cited former Fifth .Circuit precedent, this Court is bound to give a liberal construction to any notice of removal, while still maintaining a strict reading of the removal statute. More than 30 days have passed since Teamsters’ receipt of the complaint. In this case, however, the amendment sought is of neither a procedural nor a jurisdictional nature. Instead, it has generally been held that failure- to plead a specific provision of the removal statute is merely a technical amendment, and so long as sufficient facts were pled in the original petition to support the new section, the amendment should be allowed. Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969); Rachel, 342 F.2d at 336; Wormley, 863 F.Supp. at 385" }, { "docid": "1765200", "title": "", "text": "including all defendants. Courtney v. Benedetto, 627 F.Supp. at 526. In the present case, nothing in the record, other than the removing defendants’ unsupported statement in the original removal petition, indicates that Continental Insurance Company actually consented to the removal when the original petition was filed. Defendants’ removal petition merely alleges that Continental Insurance Company consents to the removal of this action by the defendants and sets forth no reason for Continental Insurance Company’s failure to join in the removal action. Based on the pleadings before the Court, the Court finds that there was no adequate allegation or showing of Continental Insurance Company’s actual joinder in or consent to the original removal petition nor did the petition contain any allegations concerning why Continental Insurance Company failed to join in the removal. Defendants have responded to this deficiency by filing on September 13, 1990, a motion for leave to file amended notice of removal wherein the defendants attempt to cure the defect in the original removal notice. Plaintiff strongly objects to such amendment on grounds that the defendants seek to cure a non-jurisdictional defect af ter the thirty day period has lapsed. Therefore, the question before the Court is whether the defendants’ amended notice of removal filed considerably after the thirty day limitation set forth in 28 U.S.C. § 1446(b) can cure the defective original notice of removal. The Court finds that the amended notice of removal was not timely filed and, therefore, cannot cure the original notice of removal which was procedurally defective. A defendant is free to amend a notice of removal within the thirty day period as set forth in § 1446(b). Mayers v. Connell, 651 F.Supp. 273, 274 (M.D.La.1986); Courtney v. Benedetto, 627 F.Supp. at 527. Once the thirty day period has expired, any amendments to the notice of removal must be made pursuant to 28 U.S.C. § 1653. Woodlands II v. City Savings and Loan Ass’n of San Angelo, 703 F.Supp. 604, 607 (N.D.Tex.1989); Mayers, 651 F.Supp. at 274; Courtney, 627 F.Supp. at 527. The right of a defendant to amend the notice of removal under" }, { "docid": "2916352", "title": "", "text": "was clearly not intended to refer to § 1441(c). Indeed, a reference to § 1331 is entirely appropriate in relation to § 1441(b), as that section necessarily implicates the Court’s federal question jurisdiction for removal of State claims. Teamsters has requested, in the event the Court rejects the incorporation by reference argument, that it be allowed to amend the notice of removal to include removal under § 1441(c). In considering whether amendment is allowed, the Court is conscious of the duty that “the removal statute should be construed narrowly, with any doubt being resolved against removal and in favor of remand.” Aran, 792 F.Supp. at 805 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). The Court is also aware that removal is only allowed where “the statutory prerequisites are met.” Herman Schamisso, PVBA v. Menelli, Inc., 657 F.Supp. 63, 65 (S.D.Fla.1986), and these prerequisites are also to be strictly construed. The statutory prerequisites for determining the legitimacy of a removal petition are found at § 1446. According to § 1446, the defendant has 30 days from receipt of the complaint to file a notice of removal. During those 30 days, a notice of removal may freely be amended. 28 U.S.C. § 1446(b). See also Wormley v. Southern Pacific Transp. Co., 863 F.Supp. 382 (E.D.Tex.1994). Teamsters did remove within the thirty day period. After that period, courts have generally held that amendments may only be allowed to cure defective allegations of jurisdiction not to add new jurisdictional allegations, and may not be used to cure procedural defects. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts”). See also Armada Coal Export, Inc. v. Interbulk, Ltd., 726 F.2d 1566 (11th Cir.1984); Tech Hills II Associates v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963 (6th Cir.1993); Hendrix v. New Amsterdam Casualty Company, 390 F.2d 299 (10th Cir.1968); CBS Inc. v. Snyder, 762 F.Supp. 71 (S.D.N.Y.1991). Certain courts have argued that removal petitions should be treated the same as any other" }, { "docid": "21938784", "title": "", "text": "and that in either case § 1446(b) was a bar to the removal. On this basis, it was held that the corporate defendant would not be permitted, after the time specified in § 1446(b) for the filing of an original petition, to amend its petition in order to cure its failure to allege the principal place of its business. Plaintiffs rely heavily upon the American Home Assur. Co. decision which, if followed, requires a denial of defendant’s motion to amend its petition to remove. Defendant, on the other hand, urges that American Home Assur. Co. be reconsidered, particularly in the light of the later decision in Hendrix v. New Amsterdam Cas. Co., supra, which, if followed, would permit the amendment which defendant seeks. Because of the diverse views of the Courts which have considered the issue, (see the decisions pro and con referred to in American Home Assur. Co. v. Pacific Nat’l Ins. Co., supra, Hendrix v. New Amsterdam Cas. Co., supra, and Wright, Federal Courts § 40 (1963)), the Court has concluded that the problem should be reexamined at' this time. 28 U.S.C. § 1653 provides: “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” On its face, this statute gives no indication whether it authorizes an amendment to cure a jurisdictionally defective removal petition which has been filed within the 30-day period fixed by § 1446 (b) when the amendment is sought after the expiration of the statutory deadline. The legislative history of § 1653, however, is highly significant. The Historical and Revision Notes which follow § 1653 state that § 1653 is based upon Title 28 U.S.C., 1940, ed., § 399, Mar. 3, 1911, c. 231, § 274c, as added Mar. 3, 1915, c. 90, 38 Stat. 956. This latter statute provided : “Where, in any suit brought in or removed from any State court to any district of the United States, the jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought" }, { "docid": "13168646", "title": "", "text": "F.2d 1160 (5th Cir.1988); Aetna Casualty and Surety Co. v. Hillman, 796 F.2d 770 (5th Cir.1986). A defendant is free to amend his notice of removal within the thirty day period of 28 U.S.C. § 1446(b). Moody v. Commercial Insurance Co., 753 F.Supp. 198 (N.D.Tex.1990); Mayers v. Connell, 651 F.Supp. 273 (M.D.La.1986). In this case, Energy Catering Services filed its declaratory action October 3, 1995, in Louisiana state court. The original removal petition was filed in this district court on November 2, 1995. The motion for leave to file an amended notice of removal was filed on November 21, 1995, which is clearly outside the thirty day period contemplated by § 1446(b). After the thirty day period has expired, any amendments to the removal notice must be made in accordance with 28 U.S.C. § 1653. Moody, 753 F.Supp. at 201; Mayers, 651 F.Supp. at 274. The jurisprudence interpreting § 1653 indicates that this section cannot be invoked to claim an entirely new and distinct jurisdictional basis. In Boelens v. Redman Homes, Inc., 759 F.2d 504 (5th Cir.1985), the Fifth Circuit emphasized that § 1653 is limited to curing technical defects only, and accordingly denied a motion to amend notice of removal where the party sought to substitute new causes of action over which there would be jurisdiction. Similarly, the Fifth Circuit later held that § 1653 provides a method for curing defective allegations of jurisdiction, and cannot be used to create jurisdiction retroactively where it did not previously exist. Aetna Casualty and Surety Co. v. Hillman, supra. In the instant ease, defendant Burrow seeks to amend his notice of removal to assert federal question jurisdiction under 28 U.S.C. § 1333. Nowhere in his original notice of removal did Mr. Burrow set forth any facts or allegations which invoked this Court’s admiralty jurisdiction. Rather, the original notice focused solely upon the Court’s diversity jurisdiction. Based upon this comparison of the notice of removals, the Court finds that the amending notice of removal clearly goes far beyond curing technical defects in the jurisdictional allegations. Rather, Mr. Burrow has stated an entirely different" }, { "docid": "1839349", "title": "", "text": "of this thirty-day period, a defendant may still be allowed to amend its removal petition in order to cure defective allegations of jurisdiction. See, e.g., D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146 (5th Cir.1979) (holding 'that amendment of removal petition was properly allowed to correct jurisdictional allegations in removal petition which were defective or faulty due to defendants’ failure to specifically allege the citizenship of the parties at the time the suit was brought and at the time the removal petition was filed; missing allegation was not a fatal omission which could not be cured by amendment). The authorization for such amendments derives from 28 U.S.C. § 1653, which states that “defective allegations of jurisdiction may be amended ... in the trial and appellate courts.” Thus, where a defendant, for example, has alleged the existence of diversity jurisdiction in its removal petition but has failed to allege all of the specific facts, or has incor rectly alleged some of the facts underlying its jurisdictional conclusion, courts have allowed amendments to cure these deficiencies. See, e.g., FHC Options, Inc. v. Security Life Ins. Co. of America, 993 F.Supp. 378, 382 (E.D.Va.1998) (amendment allowed where defendant incorrectly pled its own citizenship). However, the courts that have addressed the issue have uniformly recognized that a defendant’s ability to amend the removal petition after the thirty-day time limit for removal prescribed by § 1446 extends only to “amendments to correct ‘technical defects’ in the jurisdictional allegations in the notice of removal,” and that amendments to remedy a “a substantive defect in the [removal] petition”, i.e., to add a new basis for federal jurisdiction, are not permitted. See, e.g., Briarpatch Ltd. v. Pate, 81 F.Supp.2d 509, 516-17 (S.D.N.Y.2000) (“[failure to assert federal question jurisdiction as a basis for removal is a substantive defect” which defendant may not cure by amendment after expiration of thirty-day time limit of § 1446(b)); Stein v. Sprint Communications Co., 968 F.Supp. 371, 374 (N.D.Ill.1997) (“[A] defendant may not amend its notice of removal after the 30-day limit in § 1446(b) to remedy a substantive" }, { "docid": "23107503", "title": "", "text": "1441(b) is such a waivable removal defect. Plaintiffs concede that their remand motion was not made within this 30-day time limit. We therefore grant the defendants’ petition for writ of mandamus to the district court and vacate its remand order. Accordingly, the defendants’ petition for writ of mandamus is GRANTED, and the remand order of the district court is VACATED. . Section 1447(d) has not been amended, and its text remains the same. . We assume without deciding that this finding is correct. . See, e.g., Midland Mortgage Co. v. Winner, 532 F.2d 1342, 1344 (10th Cir.1976) (per curiam) (an old § 1447(c) case which refused to review a remand based on § 1441(b)); see also Patient Care, Inc. v. Freeman, 755 F.Supp. 644, 652 (D.N.J.1991) (noting in dictum that remand based on § 1441(c) is unreviewable); Dawson v. Orkin Exterminating Co., 736 F.Supp. 1049, 1054 (D.Colo.1990) (remand based on § 1446(b) \"would be unreviewable\"). . As explained infra in part II, a removal in violation of § 1441(b) is a \"defect in removal procedure” within the meaning of § 1447(c). . Under new § 1447(c), remand orders based on lack of subject matter jurisdiction are clearly unreviewable. Arguably, remands based on timely motions to remand for a \"defect in removal procedure\" may also be unreviewable under the new statute. However, because the remand motion in this case was untimely, we need not decide whether remands based on timely motions would be unreviewable. . Section 1446(b) sets a 30-day time limit for removal from the defendant’s receipt of the initial pleading or service of summons upon the defendant, whichever period is shorter. See 28 U.S.C. § 1446(b). . While we follow Professor Siegel’s terminology by referring to \"ancillary jurisdiction,” we note that under recently enacted legislation the term “supplemental jurisdiction” is to be used for all civil cases commenced on or after December 1, 1990. 28 U.S.C.A. § 1367 (West Cum. Supp.1991). . According to Siegel: The only reason for the inclusion of. the phrase \"any defect in removal procedure”— since the amendment could have been simply phrased to impose" }, { "docid": "12708768", "title": "", "text": "144; Mattingly v. Northwestern Virginia Railroad Co., 158 U.S. 53, 15 S.Ct. 725, 39 L.Ed. 894. “[4], The defendants’ motion for leave to amend the petition for removal cannot be sustained since the petition for removal was in reality not a petition for removal because of its failure to allege jurisdictional facts and the amendment would have had to have been filed within the statutory time allowed for the filing of a petition for removal. Hernandez v. Watson Bros. Transportation Co., D.C., 165 F.Supp. 720. “28 U.S.C.A. § 1446(b) provides that a petition for removal of a civil action shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading or within twenty days after the service of summons upon the defendant. That period of time has long since expired and to permit an amendment beyond the limitation fixed would be to ignore the whole purpose of the statute. “[5] 28 U.S.C.A. § 1653 provides that defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts. That statute can avail nothing here since the petition for removal is entirely lacking in jurisdictional allegations. To permit an amendment would not be a cure of technical defects but the stating of original jurisdictional facts. Browne v. Hartford Fire In surance Company, D.C.1959, 168 F. Supp. 796. This court had the same question before it in the case of Cline v. Belt, D.C., 43 F.Supp. 538. The opinion in that case is referred to and adopted as a part of this memorandum.” In the case of F & L Drug Corporation v. American Central Insurance Company (D.C.D.Conn., 1961), 200 F.Supp. 718, the court thoroughly considered and cited practically every decision on the question before the court in the instant case. Beginning at page 720, the court said: • “[3] The defendant now seeks permission to amend its petition for removal by adding a further allegation setting forth the principal place of business of the defendant. 28 U.S.C.A. § 1446 requires the petition to be filed within" }, { "docid": "21938782", "title": "", "text": "failed to disclose the principal place of business of the defendant, or otherwise to show that its principal place of business was in a state other than that of the citizenship of the individual plaintiff. Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 300 (10th Cir. 1968). See also 1A Moore’s Federal Practice f[ 0.168 [3.-4] at pp. 1203-04 (2d ed. 1965). It is, therefore, clear that the original petition to remove was jurisdictionally defective. Unless an amendment is permissible which cures the deficiency, plaintiffs’ motion to remand must be granted. DEFENDANT’S MOTION TO AMEND PETITION FOR REMOVAL On February 20, 1969, the same date on which plaintiffs moved for a remand of the case to the State Court, defendant filed a motion, purportedly under Rule 15(a), Fed.R.Civ.P., and 28 U.S.C. § 1653, for leave to amend its petition for removal to cure the jurisdictional deficiencies in the original removal petition. Without going into detail, it is sufficient to say that if the motion is granted, all of the allegations needed to establish diversity will be satisfied. The critical question is whether leave to amend should be granted. 28 U.S.C. § 1446(b) (insofar as relevant) provides that a petition for removal of a civil action shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading. Since the complaint in the State Court was served upon the defendant on January 10, 1969, the time for filing the petition to remove expired on February 10, 1969. Although the original petition was filed before this date, defendant’s motion to amend the original petition was not filed until 10 days after the 30-day period fixed by § 1446(b) had expired. American Home Assur. Co. v. Pacific Nat’l Ins. Co., Civ.A. No. 2454 (D.Del., Dee. 18, 1964), an unpublished opinion by the present judge, holds that no significant distinction existed between the filing after the statutory time of a petition for removal which properly pleaded diversity and the filing of a petition within the period which failed properly to allege diversity," }, { "docid": "640481", "title": "", "text": "that the principal place of business is diverse from the plaintiff fails to supply an allegation necessary to establish diversity jurisdiction. 424 F.Supp. at 925. And to allow “defendant to now amend its Petition for Removal to include a new and proper allegation of jurisdiction would, in effect, allow defendant to vest in this court removal jurisdiction more than thirty days after service of and receipt by the defendant of the Complaint,” id., which, of course, this court cannot permit. See 28 U.S.C. § 1446(b). Based on the foregoing reasoning and cited authorities, the court is constrained to conclude that INA has not carried its burden of establishing the propriety of removal based on the alleged existence of diversity jurisdiction. Hinks v. Associated Press, 704 F.Supp. 638, 639 (D.S.C.1988). Accordingly, the court is required to remand this action to state court. 28 U.S.C. § 1447(c). It is therefore required that this case be remanded to the Court of Common Pleas for Marion County, and that all pleadings filed be made a part of this case on remand. However, the court finds that it would be inappropriate to award plaintiff costs for improvident removal. A certified copy of this Order is to be mailed by the Clerk of this Court to the Clerk of Court of Common Pleas for Marion County, South Carolina. IT IS SO ORDERED. . This action was removed by defendant Insurance Company of North America (INA). Curiously, the notice of removal does not specify the federal removal statute which allegedly entitles INA to removal. . Since the court has concluded that this action should be remanded because of defects in INA's notice of removal, the parties' remaining contentions will not be addressed. . The Act's legislative history is silent on the question of whether amendment under § 1653 or otherwise is proper after the thirty day time limit established by § 1446(b) has elapsed. . As stated by a highly respected treatise on federal practice: Since the federal courts are courts of limited jurisdiction, there is a presumption against the existence of diversity jurisdiction in an action" }, { "docid": "8496818", "title": "", "text": "that jurisdiction but they should be equally as careful to protect the jurisdiction of the state court in a case that is not removable. Where the question is doubtful, the district court should decline jurisdiction and remand the case. Putterman v. Daveler, D.C., 169 F.Supp. 125. The petition must show the citizenship of the parties at the time of the commencement of the action. A failure to so state is a fatal defect which cannot be corrected unless an offer to amend is made within the prescribed statutory period for the filing of a petition for removal. Crehore v. Ohio & Mississippi Railway Company, 131 U.S. 240, 9 S.Ct. 692, 33 L.Ed. 144; Mattingly v. Northwestern Virginia Railroad Co., 158 U.S. 53, 15 S.Ct. 725, 39 L.Ed. 894. The defendants’ motion for leave to amend the petition for removal can not be sustained since the petition for removal was in reality not a petition for removal because of its failure to allege jurisdictional facts and the amendment would have had to have been filed within the statutory time allowed for the filing of a petition for removal. Hernandez v. Watson Bros. Transportation Co., D.C., 165 F.Supp. 720. 28 U.S.C.A. § 1446(b) provides that a petition for removal of-a civil action shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading or within twenty days after the service of summons upon the defendant. That period of time has long since expired and to permit an amendment beyond the limitation fixed would be to ignore the whole purpose of the statute. 28 U.S.C.A. § 1653 provides that defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts. That statute can avail nothing here since the petition for removal is entirely lacking in jurisdictional allegations. To permit an amendment would not be a cure of technical defects but the stating of original jurisdictional facts. Browne v. Hartford Fire Insurance Company, D.C.1959, 168 F. Supp. 796. This court had the same question before it in the" }, { "docid": "22844279", "title": "", "text": "Cir. 1938); Heckleman v. Yellow Cab Transit Co., 45 F.Supp. 984, 985 (E.D.Ill. 1942) (Lindley, J.); Santa Clara County v. Goldy Machine Co., 159 F. 750, 750-51 (N.D. Cal.1908). See P.P. Farmers Elevator Co. v. Farmers Elevator Mutual Insurance Co., supra, 395 F.2d at 548 (“ ‘[Wjhere the suit involves multiple defendants and one or more of the defendants does not join in the petition, better practice dictates that the petition expressly indicate why, e.g., that he is a nominal party or was not served ....”’) (quoting 1A Moore’s Federal Practice 10.168 [3.-4]). Relying on these principles, NI-Gas argues that the initial petition was defective and therefore the case is subject to remand. It is true that a “legally defective” removal petition subjects the case to remand, under 28 U.S.C. § 1447(c), on the ground that the case had been “improvidently” removed. Ryan v. State Board of Elections of the State of Illinois, supra, 661 F.2d at 1133. In the instant case, however, although Airco’s initial petition was defective for failing to allege that the AAA was a nominal party, that defect was cured by the amended petition, notwithstanding the fact that the amendment was filed more than thirty days after Aireo received a copy of the state court complaint. Removal must be effected within thirty days after a defendant receives a copy of the state court complaint, or is served, whichever occurs first. 28 U.S.C. § 1446(b). While the time limitation imposed by § 1446(b) is not jurisdictional, Ryan v. State Board of Elections of the State of Illinois, supra, 661 F.2d at 1134; Perrin v. Walker, 385 F.Supp. 945, 947 (E.D. Ill.1974); see Ayers v. Watson, 113 U.S. 594, 598, 5 S.Ct. 641, 642, 28 L.Ed. 1093 (1885), it is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived. A removal petition may be amended freely within the thirty day period. Moreover, even after the thirty days have elapsed, amendments to correct “defective allegations of jurisdiction” are permitted under 28 U.S.C. § 1653. E.g.," }, { "docid": "14343474", "title": "", "text": "in reality not a petition for removal' because of its-failure to allege a necessary jurisdictional fact, the amendment would have had to have been filed within the statutory time. Sec. 1446(b) provides for a twenty day period “after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading * * * or within twenty days after the service of summons upon the defendant * * Here summons was served on defendants on August 22, 1958, and their amendment was filed on October 20, 1958 some two months later and thus after the twenty day statutory time set out in Sec. 1446. Therefore, the amendment cannot be allowed. Gratz v. Murchison, D.C., 130 F. Supp. 709; White v. Sullivan, D.C., 107 F.Supp. 959; Cline v. Belt, D.C., 43 F. Supp. 538. Title 28 U.S.C. § 1653 provides that “defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” This is not the instant case. There is no pleading of the required facts at all. This is not an attempt to cure a defect but to make an entirely new allegation. Amendments to petitions for removal after the statutory time has passed may be permitted only where the amendment is one to cure technical defects or to amplify the allegations of the petition. Thus, the amendment must do no more than set forth in proper form what has been previously imperfectly stated in the petition for removal. Kinney v. Columbia Savings and Loan Ass’n, 191 U.S. 78, 24 S.Ct. 30, 48 L.Ed. 103; Powers v. Chesapeake & O. R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Frazier v. Hines, 4 Cir., 260 F. 874; Cline v. Belt, D.C., 43 F.Supp. 538. Defendants cite a number of cases in opposition to the motion to remand (including the Kinney and Powers cases above, which clearly support the motion to remand) which, in my opinion have either been misinterpreted by defendants or are not in point. Accordingly they will not be discussed here. The motion to remand is granted, and the" }, { "docid": "1924340", "title": "", "text": "Geis was fraudulently joined as he is a nominal party and not a true party in interest. However, the Notice of Removal alleges nothing about frau-dulant joinder; it simply asserts diversity jurisdiction. Nor has ICSOP moved to amend its notice of removal to incorporate such allegations. Were such amendment requested, however, the court would have no choice but to deny leave to amend. Courts in this district have generally adopted a strict construction of the general rule that “allegations of jurisdiction imperfectly stated in the original petition for removal may be amended even after expiration of the 30-day removal period, whereas ‘missing allegations may not be supplied nor new allegations furnished.’ ” Richmond, F. & P.R. Co. v. Intermodal Services, Inc., 508 F.Supp. 804, 805 (E.D.Va.1981) (citing Thompson v. Gillen, 491 F.Supp. 24, 27 (E.D.Va.1980); but see Ginn v. Stegall, 132 F.R.D. 166, 167 (advocating liberal allowance of leave to amend to cure defects in a notice of removal). However, even under a liberal interpretation of the general rule, this court would find that amendment could not be granted, because the allegation that defendant Patrick G. Geis was fraudulently joined is missing entirely from the Notice of Removal. ICSOP did not raise this issue until its response to plaintiffs motion to remand, well beyond the thirty-day time limit set out in 28 U.S.C. § 1446(b). Such a failure cannot be seen as a mere technical defect. In Castle v. Laurel Creek Co., the court addressed an identical situation, and it found that defendant’s failure to allege fraudulent joinder in its Notice of Removal could not be cured by amendment. 848 F.Supp. 62, 66 (S.D.W.Va.1994) (“The proposed amendment is neither minor nor technical in nature; it is both substantial and material. Therefore, this Court is of the opinion that the motion for leave to amend the notice of removal should be denied.”). Plaintiff also requests that the court award costs and fees in this matter. In order to effect such an award, the court must find that defendant ICSOP acted in bad faith in removing the case from state court. ITT" }, { "docid": "6816485", "title": "", "text": "not a requirement which could be manipulated by plaintiffs to overcome the rights of defendants to remove. It was this injustice which caused so much concern to the McKinney court. Accordingly, the Court finds that it is insufficient for a defendant who has not signed the removal petition to merely advise the removing defendant that it consents to removal and that the removing defendant may represent such consent to the Court on its behalf. Rather, the non-signing defendant must voice such consent directly to the Court by filing a separate pleading which expresses consent to join. The defendants also argue, alternatively, that they have cured any defect in the removal by filing affidavits which show that counsel for PBC consented to the removal prior to the filing of the Notice of Removal and prior to the expiration of the thirty (30) day period for removal. On June 23, 1993, the defendants filed a Joint Motion to Amend Notice of Removal in which they seek leave “to cure any imperfection or ambiguity which the Court may find in the said Notice of Removal.” Upon consideration of the arguments of counsel, the Court finds that the affidavits and the proposal to amend the notice of removal were not timely filed and cannot cure the original notice of removal which was procedurally defective. Although a defendant is free to amend a notice of removal within the 30-day period set forth in 28 U.S.C. § 1446(b), once the 30-day period has expired, amendment is not available to cure a substantial defect in removal proceedings. Moody v. Commercial Ins. Co., 753 F.Supp. at 198. Therefore, it is ORDERED that Magistrate Judge Core’s Proposed Findings of Fact and Recommendation for Disposition be, and hereby is, accepted in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. It is ORDERED that the plaintiffs Motion to Remand be, and the same is hereby, GRANTED. This action is REMANDED to the Circuit Court of Upshur County, West Virginia, for further proceedings. In keeping with 28 U.S.C. § 1447(e), the Clerk" } ]

[ { "docid": "18735327", "title": "", "text": "clarification in several recent Supreme Court opinions, and that the rule as stated by the Supreme Court is that “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.” 47 B.R. at 701-02 (citing Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Marrese v. American Academy of Orthopaedic Surgeons, — U.S. —, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), reh’g denied, 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1405 (1982). See also City of Can ton, Ohio, et al. v. Maynard, 766 F.2d 236, (6th Cir., 1985)). The court stated, however, that federal courts in bankruptcy eases, including the court in Spilman v. Harley, supra, had overlooked this general rule and have applied federally developed rules of issue preclusion without regard to the relevant state law. 47 B.R. at 703-04. Further, the court stated that this practice can have significant effects: This adversary proceeding illustrates the very real effect on litigants of selecting a federal rule for application of collateral estoppel rather than the test which would be applied by the state of judgment. As demonstrated below, it is the law of Kansas that Harris’ default judgment would be entitled to issue preclu-sive effect on the factual issues decided by the state court. However, applying the federal rule articulated in Spilman leads to the opposite result. The “actually litigated” requirement is the problem for the plaintiff. The Spilman court noted that “if the important issues were not actually litigated in the prior proceeding, as is the case with a default judgment, then collateral estoppel does not bar relitigation in the bankruptcy court.” Spilman at 228. 47 B.R. at 704. Thus, the court predicted that if the Court of Appeals were to consider the issues presented in Spilman" } ]

[ { "docid": "18502763", "title": "", "text": "v. Charfoos (In re Charfoos), 979 F.2d 390, 392 (6th Cir.1992). The doctrine of collateral estoppel applies in dischargeability actions under 11 U.S.C. § 523(a). Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). In determining whether to accord preclusive effect to a state-court judgment, we begin with the fundamental principle that “judicial proceedings [of any court of any state] shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738. The principles of full faith and credit reflected in § 1738 generally require “that 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 Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); accord Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523, 106 S.Ct. 768, 771, 88 L.Ed.2d 877 (1986). Bankruptcy courts’ exclusive jurisdiction over dischargeability issues does not alter this rule. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985) (“a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts”); see also Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981) (“that Congress intended the bankruptcy court to determine the final result— dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts”). In cases involving claims within the exclusive jurisdiction of the federal courts, a court determining whether or not to apply collateral estoppel first must determine if a state court judgment would receive preclu-sive effect in the state where it was rendered. Marrese, 470 U.S. at 386, 105 S.Ct. at 1334-35. If the answer to this question is yes, the court must give" }, { "docid": "15108911", "title": "", "text": "credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” In Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), the Supreme Court held that “§ 1738 requires a federal court to first look at state preclusion law in determining the preclusive effect of a state court judgment” and give the same full faith and credit to the judgment that it would receive in the state court. Id. at 381, 105 S.Ct. at 1332. Since this procedure applies to both issue preclusion (collateral estoppel) and claim preclusion (res judicata), this Court relies in the first instance on the preclusion principles of South Carolina law to determine the extent to which the earlier state court judgment bars subsequent litigation here. (a) Standard for Collateral Estoppel Under South Carolina law, the doctrine of collateral estoppel precludes a party from relitigating an issue which was outcome determinative in previous litiga tion. See Irby v. Richardson, 278 S.C. 484, 298 S.E.2d 452 (1982). To preclude the relitigation of a particular issue, the party seeking to assert collateral estoppel has to establish that the issue in question was litigated in a prior proceeding and that the party against whom he seeks to assert collateral estoppel “had a full and fair opportunity to litigate the relevant issue effectively in the prior action.” Graham v. State Farm Fire & Casualty Ins. Co., 277 S.C. 389, 287 S.E.2d 495, 496 (1982). (b) Standard for Res Judicata As with the doctrine of collateral estoppel, the preclusive effect to be given a state court judgment is determined by the law of the state rendering the judgment. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381-82, 105 S.Ct. 1327, 1332-33, 84 L.Ed.2d 274 (1985). Under South Carolina law, res judicata precludes not only the relitigation of claims and issues that were decided but also claims and issues which could have been presented for determination. Mackey v. Frazier, 234 S.C. 81, 106 S.E.2d 895" }, { "docid": "19288445", "title": "", "text": "B.R. 414, 417 (Bankr.N.D.Miss.1988) (citing Combs v. Richardson, 838 F.2d 112, 114 (4th Cir.1988)) Should the court determine that collateral estoppel not apply, then “[the plaintiff/defendant] is not estopped and must be given the opportunity to present evidence to the Bankruptcy Judge that [the debtor did/did not] willfully and maliciously cause injury to her.” In re Huber, 171 B.R. 740, 749 (Bankr.W.D.N.Y.1994) (quoting Spilman v. Harley, 656 F.2d 224, 229 (6th Cir.1981)). The doctrine of collateral estoppel requires a careful analysis of the issues litigated in the prior action. The doctrine is interpreted in the context of 28 U.S.C. § 1738, commonly known as the “full faith and credit” statute. In 1790, as one of its first acts, Congress passed section 1738 and it remains on the books “in essentially unchanged form.” In re Bicknell, 118 B.R. 652, 658 (S.D.Ind.1990) (quoting Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889, n. 6, 72 L.Ed.2d 262, reh’g denied, 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1405 (1982)). It provides that state judicial proceedings “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State.” Therefore, in practice, the bankruptcy court must “refer to the preclusion law of the State in which the judgment was rendered” in order to determine whether collateral estoppel exists. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274, reh’g denied, 471 U.S. 1062, 105 S.Ct. 2127, 85 L.Ed.2d 491 (1985). The Court must apply New York preclusion rules to the ease at bar. As one court confronting this dilemma wrote: The court could find nothing in Bankruptcy Code § 523 or in Congressional statements that would indicate that § 1738 should not be given its normal application in § 523 actions.... [Therefore, t]he remaining issue for us to determine in the instant case is what, if any, preclusive effect would [the state court] give to the ... judgment. In re Heuser, 127 B.R." }, { "docid": "1150818", "title": "", "text": "Court found sufficient congressional intent to deny res judicata effect to state court judgments in dis-chargeability litigation. This conclusion is acknowledged ii not restated by the Supreme Court in Marrese. See U.S. at [386], 105 S.Ct. at 1334. The Supreme Court in Brown reserved, however, the question whether issue preclusion remained possible in dischargeability litigation. Id. at 701-02. See also, In re Eadie, 51 B.R. 890 (Bankr.E.D.Mich.1985) (adopting the Byard analysis). As Byard further acknowledges, the rules of application of section 1738 seem to have been ignored by most bankruptcy courts. “Instead the bankruptcy courts have applied federally developed rules of issue preclusion often without acknowledgment of the customary practice.” Byard, 47 B.R. at 703, citing Ferriell, The Preclu-sive Effect of State Court Decisions in Bankruptcy (First Installment), 58 Am. Bankr.L.J. 349 (Fall 1984). A recent Supreme Court case addressing the application of section 1738 is Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). Marrese dictates that federal courts must determine a preclusive effect of a state court judgment under a two-part test. First, it is necessary to examine state preclusion law in determining the preclusive effect of a state court judgment. “Only if state law indicates that a particular claim or issue would be barred” is it necessary to move to the second part of the test — whether an exception to section 1738 should apply. Marrese, 470 U.S. at 386, 105 S.Ct. at 1335. To determine the application of collateral estoppel to this case we must first determine what preclusive effect, if any, Wisconsin courts would give to the Grant County judgment. Then, if Wisconsin would grant preclusive effect to the judgment, we must see whether any exemption to section 1738 applies. Under Wisconsin law four basic requirements must be satisfied before collateral estoppel can be applied: 1. The prior judgment must be valid and final on its merits; 2. There must be identity of issues; 3. There must be identity or privity of parties; 4. The issues in the prior action asked to be invoked must have been" }, { "docid": "10244279", "title": "", "text": "In the instant case, the court interprets Staggs’ appeal of the Bankruptcy Court’s Decision granting summary judgment in fa vor of Forrester as raising only an issue as to the Bankruptcy Court’s legal conclusion that collateral estoppel is applicable. Nowhere in Appellant’s Brief does Stagg indicate that he is challenging any of the Bankruptcy Court’s factual findings. This is not surprising as the Bankruptcy Court was not required to make any explicit findings of fact to determine that collateral estoppel applies. Thus, the court concentrates its discussion on the Bankruptcy Court’s legal conclusions and reviews those conclusions de novo. DISCUSSION Collateral estoppel applies in bankruptcy court to bar the relitigation of factual or legal issues that were determined in a prior state court action. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). “Collateral estoppel bars the resuscitation of questions that have been previously litigated.” Fidelity Fin. Services v. Cornell-Cooley, 158 B.R. 128, 132 (S.D.Ind.1993). Furthermore, “ ‘that Congress intended the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all of the underlying facts.’ Where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments.” Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987) (quoting, Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981)). State court judgments are entitled to full faith and credit in bankruptcy proceedings. 28 U.S.C. § 1738; Matter of Bulic, 997 F.2d 299, 304 (7th Cir.1993). Thus, the Bankruptcy Court was required to give the state court judgment the same preclusive effect that an Indiana state court would give it. Id. at 304 n. 6. Whether issue preclusion is applicable must be determined according to Indiana state law. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380-82, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985); Bicknell v. Stanley, 118 B.R. 652 (S.D.Ind.1990). Under Indiana law, the party asserting the applicability of collateral estoppel must" }, { "docid": "13341505", "title": "", "text": "standards, rather than state law standards for collateral estoppel, determine whether giving collateral estoppel effect to the [prior default] is appropriate.” Shearer v. Dunkley (In re Dunkley), 221 B.R. 207, 212 (Bankr. N.D.111.1998) (citations omitted); see generally, Honorable Bernice B. Donald & Kenneth J. Cooper, Collateral Estoppel in Section 523(c) Dischargeability Proceedings: When is a Default Judgment Actually Litigated? 12 Bankr. Dev. J. 321, 352 (1996) (concluding that the application of collateral estoppel to a prior federal court default judgment typically will depend upon whether the “actually litigated requirement” for such estoppel has been met). The Sixth Circuit has addressed the issue of whether a bankruptcy court should preclude litigation when a foreign state court has entered a default judgment in Bay Area Factors, Inc. v. Calvert (In re Calvert), 105 F.3d 315 (6th Cir.1997). Calvert, relying upon the “full faith and credit” requirements of 28 U.S.C. § 1738 (1994), held that a bankruptcy court must look to the law of the state which rendered the default judgment to determine whether collateral estoppel applies to the state default judgment. Id. at 317 (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985)). Calvert’s application of state preclusion law does not control the present issue, because federal courts must apply federal rules of collateral estoppel to default judgments rendered in federal courts. Calvert, however, did observe that the federal principles of collateral estoppel, as applied by the Sixth Circuit in Spilman v. Harley, 656 F.2d 224 (6th Cir.1981), are: “(1) the precise issue must have been raised in the prior proceeding, (2) the issue must have been actually litigated, and (3) the determination of the issue must have been necessary to the outcome.” Calvert, 105 F.3d at 317 n. 2 (citing Spilman, 656 F.2d at 228). See also Norton BANKRUPTCY Law And Practice 2D, § 47:72 at p. 47-187 (1998) (citing Spilman ) (“Under federally developed rules of collateral estoppel, the elements of issue preclusion require the party asserting the preclusion to establish that (1) the issue to be decided by" }, { "docid": "16255693", "title": "", "text": "291, 111 S.Ct. 654. However, Grogan did not address what effect a default judgment would have on the application of collateral estoppel in dischargeability proceedings. In the case of In re Calvert, 105 F.3d 315 (6th Cir.1997), the Sixth Circuit determined that collateral estoppel can apply even in a true default judgment situation (i.e., complete absence from the proceedings by the defendant). Calvert, 105 F.3d at. 317 (quoting Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985)). The Sixth Circuit adopted the two-part test enunciated by the Supreme Court in Marrese: (1) whether state law gives preclusive effect to default judgments; and (2) if the subsequent claim is precluded, the court may then look to whether Congress intended for an exception to 28 U.S.C. § 1738 to apply to the situation at hand. Calvert, 105 F.3d at 317 (citing Marrese, 470 U.S. at 386, 105 S.Ct. 1327). As a California default judgment was at issue in Calvert, the Sixth Circuit determined that California law did give preclusive effect to default judgments, and that Congress did not intend for an exception to Section 1738 to apply to true default judgments. Calvert, 105 F.3d at 320-22. “True” default judgments are given preclusive effect in Michigan. See Rohe Scientific Corp. v. National Bank of Detroit, 133 Mich.App. 462, 467, 350 N.W.2d 280 (1984); see also Cresap v. Waldorf (In re Waldorf), 206 B.R. 858, 867-68 (Bankr.E.D.Mich.1997) (recognizing the preclusive effect default judgments have in Michigan for collateral estoppel determinations, citing both Michigan cases as well as its own previous holding). Although Michigan law would give preclusive effect to a true default judgment such as the one in this case, the elements of collateral estoppel must still be satisfied. For collateral estoppel to apply, Michigan requires that the parties must be the same, the prior proceeding must have culminated in a valid, final judgment, and the issue must have been actually litigated and necessarily determined. See People v. Gates, 434 Mich. 146, 154, 452 N.W.2d 627 (1990). In this case, there is no question the parties" }, { "docid": "13341506", "title": "", "text": "the state default judgment. Id. at 317 (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985)). Calvert’s application of state preclusion law does not control the present issue, because federal courts must apply federal rules of collateral estoppel to default judgments rendered in federal courts. Calvert, however, did observe that the federal principles of collateral estoppel, as applied by the Sixth Circuit in Spilman v. Harley, 656 F.2d 224 (6th Cir.1981), are: “(1) the precise issue must have been raised in the prior proceeding, (2) the issue must have been actually litigated, and (3) the determination of the issue must have been necessary to the outcome.” Calvert, 105 F.3d at 317 n. 2 (citing Spilman, 656 F.2d at 228). See also Norton BANKRUPTCY Law And Practice 2D, § 47:72 at p. 47-187 (1998) (citing Spilman ) (“Under federally developed rules of collateral estoppel, the elements of issue preclusion require the party asserting the preclusion to establish that (1) the issue to be decided by the bankruptcy court is identical to that involved in the prior litigation, (2) the issue was actually litigated in the prior litigation, (3) the issue was determined by a valid and final judgment, (4) the determination of the issue in the prior litigation was essential to the judgment in the earlier action, and (5) the standard of proof in the prior litigation was at least as high as the standard in the present litigation.”). Spilman also required the bankruptcy court in that case to look to “the entire [default judgment] court[’s] record” to determine if the relevant dischargeability issue was “actually litigated and was necessary to” that court’s judgment. According to Spilman, this Court must look to more than merely Judge Graves’ judgment, and I have done so. As stated, the attorneys submitted copies of pleadings, docket sheet, transcripts, discharge, and related orders, as well as the judgment, all of which were agreed to be the most complete record available. From those documents, this Court is able to determine the basis for Judge Graves’ judgment" }, { "docid": "994005", "title": "", "text": "or law, necessary to the judgment, that have already been decided between the same parties. See Wagner v. Schulte (In re Schulte), 385 B.R. 181, 188 (Bankr. S.D. Ohio 2008). And “[t]he doctrine of collateral estoppel applies in dischargeability actions under 11 U.S.C. § 523(a).” Rally Hill Prods., Inc. v. Bursack (In re Bursack), 65 F.3d 51, 53 (6th Cir. 1995) (citing Grogan v. Garner, 498 U.S. 279, 284 n.11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“We now clarify that collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”)). “Bankruptcy courts’ exclusive jurisdiction over dis-chargeability issues does not alter this rule.” Id. at 53. Indeed, the fact “that Congress intended bankruptcy courts to determine [issues of dischargeability] does not require the bankruptcy court to redetermine all the underlying facts.” Spilman v. Harley, 656 F.2d 224, 227 (6th Cir. 1981). Federal courts must give “the same full faith and credit” to a state court judgment as the judgment would be accorded under the laws of the state in which it was entered. 28 U.S.C. § 1738; see also Fordu, 201 F.3d at 703. Thus, a federal court “faced with the question of whether to give full faith and credit to a state court ... judgment [must] ‘consider first the law of the State in which the judgment was rendered to determine its preclusive effect.’ ” Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315, 317 (6th Cir. 1997) (quoting Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S., 373, 375, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985)). Here, that is Ohio law. Courts in Ohio give preclusive effect to prior judgments if: 1) [There is a] final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; 2) The issue [was] actually and directly litigated in the prior suit and [was] necessary to the final judgment; 3) The issue in the present suit [is] identical to the issue in the prior suit; [and] 4) The party against whom estoppel is sought was a party or" }, { "docid": "2302686", "title": "", "text": "which the judgment is taken. Kremer, 456 U.S. at 481, 102 S.Ct. at 1896, 72 L.Ed.2d at 280 (citations omitted). The fact that bankruptcy courts have exclusive jurisdiction over dischargeability actions does not alter these principles. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274, 281 (1985). See also Spilman, 656 F.2d at 227 (“that Congress intended the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts”). If the state in which the judgment was rendered would give preclusive effect to the judgment, then the court must next determine whether federal statutes provide any express or implied exception to the application of § 1738. Marrese, 470 U.S. at 381, 105 S.Ct. at 1332, 84 L.Ed.2d at 282. In In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985), Judge Lundin of this district applied the standards discussed in the Migra, Kremer, and Marrese cases to a state court default judgment. The court first determined that the state of origin, Kansas, would give pre-clusive effect to the default judgment. Id. at 706. The court then concluded that “[tjhere is no compelling statement of federal bankruptcy law which expressly or impliedly excepts to the normal operation of § 1738 where the state court judgment for which issue preclusive effect is sought is a default judgment.” Id. at 707. In this case, the judgment was rendered by a Tennessee court. Tennessee collateral estoppel principles preclude relit-igation of issues in a second suit between the same parties, even if the latter suit is based on a different cause of action, so long as the issues raised in the second suit were actually litigated and decided in the former suit and were necessary to the judgment in that suit. Massengill v. Scott, 738 S.W.2d 629 (Tenn.1987); Shelley v. Gipson, 218 Tenn. 1, 400 S.W.2d 709, 714 (1966); Kemp v. Kemp, 723 S.W.2d 138 (Tenn.Ct.App.1986); Scales v. Scales, 564 S.W.2d 667, 670 (Tenn.Ct.App.1977). There is no dispute that this action involves the same parties" }, { "docid": "4641513", "title": "", "text": "that it is a judgment for embezzlement, precludes the debtor from proving in this court that she did not commit embezzlement. The question is whether the state court default judgment precludes a trial in this court on the question of whether the debtor embezzled any money from the plaintiff. Discussion The same set of facts can give rise to a suit in one court and then a second suit in another court based on different legal theories. The binding or “preclusive” effect of the first court’s judgment in the second suit in a different court is usually broken down into two categories — claim preclusion, also known as res judicata, and issue preclusion, also known as collateral estop-pel. Res judicata bars a party to the first lawsuit from litigating in the second suit all claims that could have been tried and decided in the first suit, without regard to whether they were in fact tried and decided. Collateral estoppel, or issue preclusion, only bars relitigation of particular issues that were in fact tried and decided in the first lawsuit. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). The court of appeals for this circuit has held that collateral estoppel applies. A pri- or state court decision may be binding on the same parties in a dischargeability suit as to specific issues decided in the state court. Spilman v. Harley, 656 F.2d 224, Bankr.L.Rep. (CCH) ¶ 68,272 (6th Cir.1981). The court of appeals in Spilman v. Harley said that a prior state court judgment will preclude a trial in the bankruptcy court only as to issues necessarily decided in the state court and only if they were decided after a trial in which the debtor took part. Under this rule, a state court default judgment is not binding on either party as to any issues. Spilman v. Harley, 656 F.2d 224, 228, Bankr.L.Rep. (CCH) ¶ 68, 272 (6th Cir.1981). If the court follows" }, { "docid": "8307314", "title": "", "text": "1738 directs federal courts to refer to the claim and issue preclusion law of the state in which judgment was rendered when deciding what effect to give the earlier court’s judgment. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). After considering the preclusive effect of the earlier judgment under state law, the court must determine whether a federal statute expressly or impliedly creates an exception to the application of section 1738. 470 U.S. at 381, 105 S.Ct. at 1332. See also Bend v. Eadie (In re Eadie), 51 B.R. 890, 893 (Bankr.E.D.Mich.1985); Day v. Manuel (In re Manuel), 76 B.R. 105 (Bankr.E.D.Mich.1987). In addition to the statutory requirements which govern this court’s determinations of issues arising in section 523 proceedings, this court considers the effect of the United States Supreme Court’s decision in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) and the decision of the Court of Appeals for the Sixth Circuit in Spilman v. Harley, supra. Plaintiff in the case at bar obtained a judgment following the parties’ acceptance of a mediation award. As defined in Black’s Law Dictionary 885 (1979), mediation is the act of a third person in [intervening] between two contending parties with a view to persuading them to adjust or settle their dispute. In Michigan, mediation of tort cases is mandatory unless the court finds that mediation in a particular action would be inappropriate. MCR 2.403(A)(2). The procedures are set forth in the court rule. After a hearing, the panel of mediators sends a written “evaluation” to each party’s attorney. Id. at (K). Each party must file a written acceptance or rejection of the evaluation within twenty-eight days. However, failure to file a rejection within the required time constitutes acceptance. Id. at (L). If all parties accept the evaluation, judgment will be entered in that amount, which includes all fees, costs, and interest to the date of judgment. Id. at (M). Nevertheless, acceptance of a mediation award does not imply intent or ability to satisfy the award. Coolman v. Snider," }, { "docid": "8307313", "title": "", "text": "and must view the materials in the light most favorable to the debtor. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A petitioner seeking summary judgment in a section 523(a) proceeding on the basis of a collateral estoppel argument has the additional burden of proving that the requirements of estoppel have been met. Spilman v. Harley, 656 F.2d 224, 229 (6th Cir.1981); Halpern v. First Georgia Bank (In re Halpern), 810 F.2d 1061 (11th Cir. 1987); Balbirer v. Austin, 790 F.2d 1524, 1528 (11th Cir.1986). By statute, Congress has extended the reach of the full faith and credit clause of U.S. Const., art. IV. sec. 1 to federal courts. Section 1738 of title 28 provides, in part, that [Jjudicial proceedings of any court of such State ...shall have the same full faith and credit in every court within the United States and its Territories and Pos sessions as they have by law or usage in the courts of such State ... from which they are taken. Thus, section 1738 directs federal courts to refer to the claim and issue preclusion law of the state in which judgment was rendered when deciding what effect to give the earlier court’s judgment. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). After considering the preclusive effect of the earlier judgment under state law, the court must determine whether a federal statute expressly or impliedly creates an exception to the application of section 1738. 470 U.S. at 381, 105 S.Ct. at 1332. See also Bend v. Eadie (In re Eadie), 51 B.R. 890, 893 (Bankr.E.D.Mich.1985); Day v. Manuel (In re Manuel), 76 B.R. 105 (Bankr.E.D.Mich.1987). In addition to the statutory requirements which govern this court’s determinations of issues arising in section 523 proceedings, this court considers the effect of the United States Supreme Court’s decision in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) and the decision of the Court of Appeals for the Sixth Circuit in Spilman v. Harley, supra. Plaintiff in the" }, { "docid": "6280055", "title": "", "text": "a complaint for fraud, the bankruptcy court correctly precluded Nourbakhsh from litigating the issue of fraud pursuant to 11 U.S.C. § 523(a)(2)(A). Following the Supreme Court in Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), a Florida State Court would give preclusive effect to a state court default judgement based on fraud and no federal exception to § 1738 applies. Therefore, we affirm the bankruptcy court’s decision to apply issue preclusion pursuant to 28 U.S.C. § 1738 and grant summary judgment. RUSSELL, Bankruptcy Judge, dissenting: I respectfully dissent. The majority has totally missed the point of this appeal. 28 U.S.C. § 1738 does not require the application of Florida law to determine the preclusion effect of a Florida default judgment in a dischargeability proceeding pursuant to 11 U.S.C. § 523(a)(2), (4) and (6).' I. DEFAULT JUDGMENTS ARE NOT ENTITLED TO COLLATERAL ESTOP-PEL EFFECT IN DISCHARGEABILITY PROCEEDINGS Default judgments are not entitled to collateral estoppel effect in dischargeability proceedings because the issues were not “actually litigated.” In addition, it is clear that while 28 U.S.C. § 1738 generally requires federal courts to afford the same full faith and credit to a state court judgment, as would apply in that state, dischargeability proceedings provide an exception to the applicability of § 1738. In In re Gottheiner, 703 F.2d 1136 (9th Cir.1983), the Court stated: It is true that some types of judgments are not given collateral estoppel effect because the court did not get the benefit of deciding the issue in an adversarial context. In the case of a default judgment, for example, a party may decide that the amount at stake does not justify the expense and vexation of putting up a fight. The defaulting party will certainly lose that lawsuit, but the default judgment is not given collateral estoppel effect. Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981); Commonwealth of Massachusetts v. Hale, 618 F.2d 143, 146 (1st Cir.1980); Matter of McMillan, 579 F.2d 289, 293 (3d Cir.1978). Gottheiner, 703 F.2d at 1140. Indeed, four circuits, the Ninth in Gottheiner," }, { "docid": "13942534", "title": "", "text": "U.S.C. § 1738 and the Supreme Court’s decision in Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) require a bankruptcy court to apply Florida law to determine the preclu-sive effect of a Florida default judgment in a dischargeability proceeding. In re Nourbakhsh, 162 B.R. 841 (9th Cir. BAP 1994). The BAP reasoned that Section 1738 requires a bankruptcy court to apply the full faith and credit doctrine to dischargeability issues such as fraud; and the Supreme Court held in Mar-rese that this statute “directs a federal court to refer to the preclusion law of the State in which judgment was rendered\" (quoting Marrese 470 U.S. at 380, 105 S.Ct. at 1332). Finding that in Florida \"a default judgment conclusively establishes between the parties ... the truth of all material allegations contained in the complaint in the first action and every fact necessary to uphold the default judgment (citing Perez v. Rodriguez, 349 So.2d 826, 827 (Fla.Dist.Ct.App.1977)), the BAP found that \"a Florida State Court would hold that the entry of a default judgment is tantamount to a dispute that has been ‘actually litigated.' ” Nourbakhsh, 162 B.R. at 844. Under Marrese, the BAP held that a bankruptcy court must give preclusive effect to a Florida default judgment. Another panel of this court has stated that the collateral estoppel law of the state rendering the judgment must be applied in a discharge-ability proceeding. See In re St. Laurent, 991 F.2d 672, 675-76 (11th Cir.1993). Because we consider the preclusive effect of a prior federal court default judgment in the instant case, we do not reach the issue of whether Marrese requires that a Florida default judgment be accorded preclusive effect in a bankruptcy discharge proceeding. Bush, 62 F.3d at 1323 n. 6. Given this concerted effort at qualification by the Court of Appeals, the Bush opinion hardly should be read as disposi-tive of the issue before this Court. . The Court finds it important to note, however, that the prerequisites under Georgia law for the application of collateral estoppel closely track the" }, { "docid": "14603775", "title": "", "text": "estoppel in his favor from what the State Court did not rule. Setting out the basis for a finding of collateral estoppel, we begin with citation to Grogan v. Garner, 498 U.S. 279, 284-85 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755, (1991), where the Court clearly stated that “collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to 11 U.S.C. § 523(a).” We also note that “[28 U.S.C. § 1738] directs a federal court to refer to the preclusion law of the state in which the judgement was rendered.” Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985); See also Migra v. Warren City School Dist. Board of Ed., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). “It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effects of state judgements. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the state from which the judgement was taken.” Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 citing Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-482,102 S.Ct. 1883, 1897-98, 72 L.Ed.2d 262 (1982).... In re Asbury, 195 B.R. 412, 415 (Bankr.E.D.Mo.1996). Cf. Kridlow, supra, 233 B.R. at 342, quoting Bailey v. Ness, 733 F.2d 279, 281 (3d Cir.1984) (“in cases where a party seeks to rely on a state court judgment to preclude relitigation of the same issues in federal court, a federal court must look to state law and its assessment of the collateral estoppel doctrine to determine the extent to which the state would have given its own judgment collateral estoppel effect.”). In Missouri, [t]he doctrine of collateral estoppel precludes relitigation of issues determined by a former judgment. In reviewing whether the application of collateral es-toppel is appropriate, [courts] should consider (1) whether the issue" }, { "docid": "2302685", "title": "", "text": "estoppel apply in dischargeability actions under § 523(a) of the Code. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 658, 112 L.Ed.2d 755, 763 n. 11 (1991); Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). Under the standards of full faith and credit enunciated in 28 U.S.C. § 1738, “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 District Board of Education, 465 U.S. 75, 83, 104 S.Ct. 892, 897, 79 L.Ed.2d 56, 63 (1984). As the Court noted in Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982): It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken. Kremer, 456 U.S. at 481, 102 S.Ct. at 1896, 72 L.Ed.2d at 280 (citations omitted). The fact that bankruptcy courts have exclusive jurisdiction over dischargeability actions does not alter these principles. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274, 281 (1985). See also Spilman, 656 F.2d at 227 (“that Congress intended the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts”). If the state in which the judgment was rendered would give preclusive effect to the judgment, then the court must next determine whether federal statutes provide any express or implied exception to the application of § 1738. Marrese, 470 U.S. at 381, 105 S.Ct. at 1332, 84 L.Ed.2d at 282. In In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985), Judge Lundin of this district applied the standards discussed in the Migra, Kremer, and Marrese cases to a state court default judgment. The court first" }, { "docid": "10244280", "title": "", "text": "not — does not require the bankruptcy court to redetermine all of the underlying facts.’ Where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments.” Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987) (quoting, Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981)). State court judgments are entitled to full faith and credit in bankruptcy proceedings. 28 U.S.C. § 1738; Matter of Bulic, 997 F.2d 299, 304 (7th Cir.1993). Thus, the Bankruptcy Court was required to give the state court judgment the same preclusive effect that an Indiana state court would give it. Id. at 304 n. 6. Whether issue preclusion is applicable must be determined according to Indiana state law. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380-82, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985); Bicknell v. Stanley, 118 B.R. 652 (S.D.Ind.1990). Under Indiana law, the party asserting the applicability of collateral estoppel must establish: 1. the issue in the current action is identical to the issue in the first action; 2. the issue was actually litigated; 3. the resolution or determination of the issue was necessary to the judgment in the first action; and 4. a final judgment determined or resolved the issue in the prior action. See, Tofany v. NBS Imaging Systems, Inc., 616 N.E.2d 1034 (Ind.1993); Bicknell v. Stanley, 118 B.R. 652 (S.D.Ind.1990); Restatement (Second) Judgments § 27. On appeal, Staggs does not contest the fourth element of issue preclusion. Identical Issue Staggs asserts the Bankruptcy Court erred where it determined the issues raised in the state court were the same as those raised in the Bankruptcy Court. The thrust of Staggs’ argument under this element of collateral estoppel is that the Indiana state court determination that Staggs is liable to Forrester for battery does not encompass the finding that Staggs acted willfully and maliciously, as is required by 11 U.S.C. § 523(a)(6) if the debt is to be nondischargeable. Comparing the state law definition of" }, { "docid": "18902359", "title": "", "text": "(9th Cir.1981), cert. denied, 454 U.S. 860, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981). While other circuits have determined that issue preclusion is appropriate where the requirements of collateral estoppel are met. See Wheeler v. Laudani, 783 F.2d 610 (6th Cir.1986); Lombard v. Axtens, 739 F.2d 499 (10th Cir.1984); Matter of Shuler, 722 F.2d 1253 (5th Cir.1984), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984). In addition, a debate exists on the issue of whether state or federal tests of collateral estoppel should be utilized by a federal judge when applying state court findings to discharge and dischargeability proceedings. See Matter of Shuler, 722 F.2d 1253 (5th Cir.1984), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984); Matter of Allman, 735 F.2d 863 (5th Cir.1984); Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); (federal test for issue preclusion should be applied); Compare In re Stowell, 102 B.R. 589 (Bankr.W.D.Tex.1989); In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985); (In light of the recent developments in full faith and credit laws set forth in Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), state issue preclusion standards should be applied to determine whether a state court judgment would be granted a preclusive effect by a state court which rendered the judgment and if so, whether any federal statute or policy requires that the judgment not be given preclusive effect.); See also In re Wagner, 79 B.R. 1016 (Bankr.W.D.Wis.1987); In re Manuel, 76 B.R. 105 (Bankr.E.D.Mich.1987); In re All American of Ashburn, Inc., 56 B.R. 186 (Bankr.N.D.Ga.1986), aff'd, 805 F.2d 1515 (11th Cir.1986) (questioning the use of the federal test in a determination of issue preclusion by a bankruptcy judge in a dis-chargeability proceeding). However, unlike most decisions which address the issue of the preclusive effect of prior judgments in discharge and dis-chargeability proceedings, this case involves the preclusive effect of a prior decision by a bankruptcy judge in a bankruptcy case, as well as a decision by a federal circuit judge. As a result, many of the issues" }, { "docid": "18502764", "title": "", "text": "accord Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523, 106 S.Ct. 768, 771, 88 L.Ed.2d 877 (1986). Bankruptcy courts’ exclusive jurisdiction over dischargeability issues does not alter this rule. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985) (“a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts”); see also Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981) (“that Congress intended the bankruptcy court to determine the final result— dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts”). In cases involving claims within the exclusive jurisdiction of the federal courts, a court determining whether or not to apply collateral estoppel first must determine if a state court judgment would receive preclu-sive effect in the state where it was rendered. Marrese, 470 U.S. at 386, 105 S.Ct. at 1334-35. If the answer to this question is yes, the court must give that judgment pre-clusive effect unless it determines that an exception to § 1738 should apply. Id. This determination turns on the question of whether “the concerns underlying a particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of § 1738.” Id. To resolve this question, courts must consider the particular federal statute and the issue involved in the federal proceeding, and keep in mind that “the primary consideration must be the intent of Congress.” Id. There is no question that Bur-sack’s failure to appear at trial would not prevent Tennessee courts from giving preclu-sive effect to Rally Hill’s judgment against him. Under Tennessee law, collateral estop-pel bars relitigation of an issue if it was raised in an earlier case between the same parties, actually litigated, and necessary to the judgment of the earlier case. Massengill v. Scott, 738 S.W.2d 629, 682 (Tenn.1987). Even a default judgment satisfies Tennessee’s “actually litigated” requirement: A judgment taken by default is conclusive by way of estoppel in respect to all such matters and facts as" } ]

[ { "docid": "18730438", "title": "", "text": "obligation to serve as jurors when summoned for that purpose. 28 U.S.C. § 1861. Under § 1862, no one can be excluded from jury service “on account of race, color, religion, sex, national origin or economic status.” In order to accomplish these objectives, Congress directed in § 1863(a) that each district court “devise and place into operation a written plan for random selection of grand and petit jurors.” Section 1863(b) specifies the basic requirements for the plan. Subsection (b)(1) requires that the plan “either establish a jury commission, or authorize the clerk of the court, to manage the jury selection process.” Subsection (b)(2) requires that jurors be drawn from voter registration lists or lists of actual voters supplemented by another source if necessary to foster the policy and purpose of the Act. Subsection (b)(3) requires that the district court plan “specify detailed procedures” to be followed by the clerk to ensure a random selection of jurors from a fair cross section of the community. Under (b)(4), a master jury wheel containing the names of potential jurors must be provided and the basic requirements for the operation of the wheel are established. The plan adopted by the District Court of Massachusetts fully complies with the Act. Section 3(B) provides that, subject to the general supervision of the Chief Judge or the emergency judge, “the Clerk of Court shall manage the jury selection process.” It also allows the clerk to “authorize a deputy clerk to act for him in performing strictly ministerial non-discretionary functions.” Under § 4(A), the district court found that the Massachusetts voting lists represented a fair cross section of the community for the district and made them the source for jurors. Section 4(B) prescribes the method for making the random selection of names to be placed in the master jury wheel. Since defendant claims that the process actually followed for filling the master wheel did not conform to the requirements of § 4(B) we set them forth in full. (B) The Clerk shall employ the following method in making the random selection of names to be placed in the" } ]

[ { "docid": "22134813", "title": "", "text": "community, but also that that underrepresentation is the result of systematic exclusion. See, e.g., United States v. Rioux, 97 F.3d 648, 654, 660 (2d Cir.1996). Although “it remains unclear whether statistics alone can prove systematic exclusion,” id. at 658, we have cautioned that “[e]ven if they can, however, they would have to be of an overwhelmingly convincing nature,” id. (citing Duren v. Missouri, 439 U.S. 357, 366, 99 S.Ct. 664, 669, 58 L.Ed.2d 579 (1979) (disapproving plan in which women, 54% of the population, constituted less than 15% of the jury venires)). Defendants in the present case challenged the Eastern District Plan as violating the JSSA on the principal grounds that since jurors for the Long Island division were-summoned only from the Long Island counties, it was improper not to limit jurors for Brooklyn trials solely to residents of the New York City counties; and that, even if it were permissible to include Long Island residents in the master wheel for Brooklyn juries, the Plan produced a master wheel for trials in Brooklyn that did not contain a fair cross-section of the community because Long Island residents were overrepresented and minorities underrepresented. The district court properly rejected these contentions because defendants did not show either a systematic exclusion of minorities or a substantial failure to comply with the Act’s requirements. The Eastern District Plan called for a source list for each of the five counties, compiled from both voter registration lists and motor vehicle records. The District’s jury administrator testified that the source lists were compiled every four years. The administrator culled a master jury wheel from those fists by starting at a random point on each fist and selecting every one-hundredth name thereafter. This procedure resulted in a wheel whose contents correlated with the number of potential jurors on the source fist for each county and thereby provided the appropriate balance of jurors of the several counties. The 1988 combined source fist, in use at the time of trial, contained 6,438,689 names. From that source list, 378,511 names were selected for a master jury wheel. Twice a year, questionnaires" }, { "docid": "11471150", "title": "", "text": "years 2001 through 2003. These three urban neighborhoods are also heavily poor, with 23.7% of their combined population living at or below the poverty line. In contrast, the average poverty rate at the time of the 2000 Census for the Eastern Division as a whole was 9.3%. Defendants also show that undercount-ing of residents is the greatest in Suffolk and Middlesex Counties, home to a majority of the Eastern Division’s African-American residents (roughly 64%). Indeed, in 2001, the resident list count of the voting-age population of Suffolk County differed from the Census estimate by negative 13.51%. It is hard to imagine a situation more worthy of remedial action pursuant to § 1863(b)(2)’s supplementation provision. Admittedly, the federal court has no authority to order the city and town clerks to prepare their resident lists more painstakingly — the OJC-provided single numbered resident lists come to the federal court “as-ís.” But that does not absolve us; rather, the JSSA specifically mandates mechanisms for redressing deficient source lists. d. Does Failure to Supplement the Resident Lists Amount to a Substantial Statutory Violation? The government argues that, even if the federal Jury Administrator’s failure to supplement resident lists amounts to a violation of § 1863(b)(2)’s mandate, that violation is not “substantial.” I disagree. As stated above, “substantial” is measured “against the underlying principles of the Act.” Calabrese, 942 F.2d at 227; see also Brummitt, 665 F.2d at 528; Gurney, 393 F.Supp. at 701-02 (substantial noncompliance is “a patent violation of the spirit and letter of the Act”). By that measure, this violation is significant. It is not clerical, incidental, or inconsequential; rather, it strikes at the core of what the JSSA was intended to achieve. Cf. United States v. Nelson, 718 F.2d 315 (9th Cir.1983) (permitting a summoned juror who mistook his duty date to serve as a “volunteer” was technical violation); United States v. Tarnowski, 429 F.Supp. 783 (E.D.Mich.1977) (failure to abide by district’s jury plan requirement that the master jury wheel be emptied and refilled every two years was technical violation because time is not the essence of the Act); Gurney, 393" }, { "docid": "23423126", "title": "", "text": "supra, at 1805. Whether there has been a substantial failure to comply requires that the alleged violations be weighed against the underlying principles of the Act. United States v. Maskeny, 609 F.2d 183, 191 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); United States v. Davis, 546 F.2d 583, 589 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). The legislative history states the Act embodies two important general principles: (1) random selection of juror names from the voter lists of the district or division in which court is held; and (2) determination of juror disqualifications, excuses, exemptions, and exclusions on the basis of objective criteria only. These principles provide the best method for obtaining jury lists that represent a cross section of the relevant community and for establishing an effective bulwark against impermissible forms of discrimination and arbitrariness. House Report, supra, at 1793. A substantial violation of the Act will be found only when these principles are frustrated. Mere “technical” deviations from the Act or even a number of them are insufficient. United States v. Davis, supra, 546 F.2d at 589; United States v. Evans, 526 F.2d 701, 706 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976). The same analysis is applied for claims alleging a failure to comply with the Local Plan. The court must determine whether noncompliance with the Plan has resulted in a substantial violation of the Act and its underlying principles. See United States v. Rodriguez, 588 F.2d 1003, 1009 n.21 (5th Cir. 1979). See also United States v. Tarnowski, 429 F.Supp. 783, 788-89 (E.D. Mich.1977), affirmed, 583 F.2d 903 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979); United States v. Gurney, 393 F.Supp. 688, 701 (M.D.Fla.1974). The mere claim the Plan has been violated is insufficient, absent a further showing the Act itself and its goals have been frustrated. 1. Starting Number Selection. The Local Plan provides that starting numbers should be drawn by lot from a drum or box" }, { "docid": "2132843", "title": "", "text": "in 1968 U.S. Code Cong. & Ad. News 1792. The Act provides that each district court devise a “local plan” for selection of jurors consistent with the objectives of randomness and nondiscrimination set forth in §§ 1861 and 1862. 28 U.S.C. § 1863 (1982). The local plan must be approved by a reviewing panel consisting of the members of the judicial council of the circuit and either the chief judge of the district whose plan is being reviewed or a designate. Id. The local plan for the Middle District of Florida was devised and approved pursuant to § 1863 of the Act. The Act provides relief only when there has been a substantial failure to comply with its provisions. 28 U.S.C. § 1867(a) (1982); United States v. Bearden, 659 F.2d 590, 600 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). In United States v. Gregory, 730 F.2d 692, 699 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985), this court reiterated the applicable standard: [T]he alleged violations must be weighed against the underlying principles of the Act. A substantial violation of the Act will be found only when two important general principles are frustrated: (1) random selection of juror names and (2) use of objective criteria for determination of disqualifications, excuses, exemptions, and exclusions. In Gregory, we held that no relief was warranted where the defendants pointed to “[mjere ‘technical’ deviations from the Act,” including the clerk’s failure to prepare an alphabetical list of names drawn from the master jury wheel, because mere technical deviations “do not frustrate the obtaining of jury lists that represent a cross section of the relevant community and do not result in impermissible forms of discrimination and arbitrariness.” Id. Here, the appellants contend that the district court’s procedure violated the fundamental goals of the Act. In “permittpng] practically every prospective juror to decide for himself before trial whether or not ... to serve,” the district court, according to the appellants, was left with a jury that was not randomly drawn. The" }, { "docid": "23419535", "title": "", "text": "could not be reproduced. The district court assumed the nine affidavits accompanying the motion to be true, but rejected defendants’ claim that the omissions amounted to a “substantial” failure to comply with the Act: “All of the defects which the defendants point to are technical deviations from the Act and the local plan____” This Court recently construed the Jury Selection and Service Act in United States v. Bearden, 659 F.2d 590 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). In Bearden, the clerk had violated the Act or local plan by selecting the starting number arbitrarily rather than randomly, by failing to post public notices of selection procedures, and by improperly excusing or disqualifying individuals from qualified jury wheels, and by granting permanent rather than temporary excusáis to persons summoned for jury service. The court held that none of these violations constituted a “substantial” failure to comply with the Act or local plan. We held that the alleged violations must be weighed against the underlying principles of the Act. A substantial violation of the Act will be found only when two important general principles are frustrated: (1) random selection of juror names and (2) use of objective criteria for determination of disqualifications, excuses, exemptions, and exclusions. Mere “technical” deviations from the Act or even a number of them are insufficient if they do not frustrate the obtaining of jury lists that represent a cross section of the relevant community and do not result in impermissible forms of discrimination and arbitrariness. Defendants contend that the acts of noncompliance in this case frustrated the goal of random selection of jurors in that Mobile County was overrepresented in the grand jury that indicted them. This apparent geographical disparity did not result in a substantial failure to comply with the Act. First, it is the master jury wheel, not the actual grand jury, which must be geographically proportional. Under the Act, the local plan “shall ensure that each county, parish, or similar political subdivision within the district ... is substantially proportionally represented in the master" }, { "docid": "4906816", "title": "", "text": "grand jury was selected was adopted on June 26, 1968 by the District Judges of the Southern District, and approved by the Judicial Council of the Second Circuit and the Chief Judge of this district as being in compliance with the Act, under the procedure established by § 1863 of the statute. The 1968 Plan provided for random selection of jurors from all counties of the Southern District for the Master Wheel from which the monthly Qualified Wheel is drawn, which in turn provides the source of jurors drawn for each individual array. On May 9, 1978, when the grand jury array at issue here was selected, the Plan included a provision excusing upon individual request “any person who resides more than 50 miles from the United States Courthouse at Foley Square, New York, N.Y.,” Plan, Article V(8); this provision tracked the language of the contemporaneous provision of 28 U.S.C. § 1863(b)(7), see text at note 6, supra. The excuse provision in question was adopted in accordance with the procedures established by the Act, and that provision conformed to the distance excuse provision outlined in the Act at the time the provision was adopted in the Southern District. Furthermore, the distance excuse provision of the Act has been upheld under both constitutional and statutory challenges, see Olson, supra; Fernandez, supra; cf. Leonetti, supra (upholding distance excuse under prior statute, Constitution). Under these circumstances, defendant cannot support a § 1867(a), or (d) claim by challenging the excuse provision on its face. Second, it is clear that the fact that the selection process may have excused all prospective jurors from defendant’s county of residence is not in itself of constitutional or statutory significance. United States v. Ponder, 444 F.2d 816 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972); see Lewis v. United States, supra, 279 U.S. at 72, 49 S.Ct. at 258; Westover, supra; Jeffers v. United States, 451 F.Supp. 1338 (D.C.Ind.1978). Third, although defendant has specified three possible “cognizable groups” and has made specific statistical allegations of systematic exclusion or underrepresentation of each group," }, { "docid": "11471076", "title": "", "text": "choosing federal court and thereby expanding the jury district to include the more racially homogenous suburbs, the government invariably dilutes minority' — ■ and even urban — representation in the pool from which defendants’ juries will be selected. While the Sixth Amendment demands representativeness, it does not require courts to second-guess the boundaries of the judicial district. Thus, when the government federalizes local crime in the more diverse cities of Lawrence, Lowell, or Boston, on this end of the state, or Springfield, on the other, it homogenizes the decisionmaker. And the law allows it to do so. B. Steps Two Through Four: From 7% African-American Representation in the Eastern Division to 3% on the Available Jury Wheel 1. Step Two: From Source Lists to the Master Jury Wheel The State Office of the Jury Commissioner (“OJC”) starts with a “source list” comprised of lists of names and addresses of potential jurors, and then randomly draws a percentage of the names to create a “master jury wheel” for the federal Jury Administrator. The JSSA defines the procedures for generating names for the master jury wheel, and also mandates the creation of a more specific district court jury selection plan. See 28 U.S.C. § 1861 et seq. Federal courts may draw the names of prospective jurors from either voter registration lists or the lists of actual voters within their districts. 28 U.S.C. § 1863(b)(2). But there is an alternative: Each federal district court “shall prescribe some other source or sources of names [of prospective jurors] in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title.” Id. A 1992 amendment to the Act specifically provided that the District of Massachusetts “may require the names of prospective jurors to be selected from the resident list provided for in chapter 234A, Massachusetts General Laws, or comparable authority, rather than from voter lists” as its source of names for the master jury wheel. 28 U.S.C. § 1863(b)(2). The Act was amended precisely because of serious concerns about the racial composition of jury" }, { "docid": "22984521", "title": "", "text": "Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697-98, 42 L.Ed.2d 690 (1975). The Jury Selection and Service of 1968, 28 U.S.C. §§ 1861-69 (1982), provides for the random selection of grand and petit jurors from a fair cross section of the community in the district or division wherein the court convenes. Pursuant to a written plan promulgated under 28 U.S.C. § 1863 (1982), the'names of potential jurors are randomly selected from voter lists and placed in a master jury wheel. The court may adopt other sources of names in addition to voter lists where necessary to secure a fair cross section of the community. From time to time the court publicly draws at random from the master jury wheel the names of as many persons as may be required for jury service. The people selected in the second drawing receive juror qualification forms which they must complete and return to the clerk of the court. The court determines solely on the basis of information provided on the juror qualification form and other competent evidence whether a person is unqualified for, or exempt, or is to be excused from jury service. Reasons for disqualification include the lack of citizenship, conviction of a felony, and inability to understand the English language. The test for a sixth amendment fair cross-section violation applies in determining a violation of the statutory fair cross- section requirement. United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982). . We consider deviation from proportional representation in absolute rather than comparative terms for sixth amendment no fair cross-section purposes, because the relative measure may distort the significance of the deviation. See Foster v. Sparks, 506 F.2d 805, 834-35 (5th Cir.1975). In this case, for example, the comparative disparity is 67.3 percent. See generally Beale, \"Integrating Statistical Evidence and Legal Theory to Challenge the Selection of Grand and Petit Jurors,” Law & Contemp. Probs. Autumn 1983, at 269. . Facchiano’s motion for severance after the James hearing was spurred by his counsel’s recognition that, contrary to counsel’s earlier belief, Pepe would not testify at trial. Facchiano’s counsel claimed" }, { "docid": "15114222", "title": "", "text": "by motion to dismiss the indictment, § 1867(a) (quoted in footnote 6). The statute declares its purpose is to recognize the right of litigants entitled to trial by jury “to grand and petit juries selected at random from a fair cross-section of the community,” § 1861, and it prohibits exclusion of citizens from jury service “on account of race, color, religion, sex, national origin, or economic status.” The Act authorizes the adoption of a jury plan based on the selection of potential jurors exclusively from the voter registration lists, 28 U.S.C. § 1863(b)(2). However, the statute itself provides that the plan shall specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division. The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title. 28 U.S.C. § 1863(b)(2) (emphasis supplied). The question presented is whether the plan used in the Western District of Texas fails to comply with the Act because it does not prescribe some other source of names in addition to the voter list, alleged “necessary” to assure a fair cross-section since Hispanic Americans are significantly underrepresented on the voting registration lists. The ground for attacking a plan is “a substantial failure to comply” with the provisions of the statute. 28 U.S.C. § 1867(d). Determining substantial compliance requires weighing the alleged violation against the goals of the Act. United States v. Davis, 546 F.2d 583, 589 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). Relying on Davis, the court in United States v. Maskeny, 609 F.2d 183 (5th Cir.), cert. denied, 447 U.S. 921,100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980) recognized that [t]he Court [in Da v/s] identified the major goal of the statute as the random selection of juries from a fair cross-section of the community; toward that end voter lists are to be the primary source of" }, { "docid": "22134811", "title": "", "text": "uniformly required throughout the district or division, may be used. 28 U.S.C. § 1863(b)(3). It also provides that the plan is to “prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title.” Id. § 1863(b)(2). The legislative history explains that the statute expresses a preference for the use of voter registration lists because “[tjhese lists provide the widest community cross section of any list readily available,” whereas “[c]en-sus data quickly become out of date and are not suitable.” House Report, reprinted in 1968 U.S.C.C.A.N. at 1794. Once the master wheel is established in this manner, random selection “virtually eliminates the possibility of impermissible discrimination and arbitrariness at all stages of the jury selection process, and thereby tends to insure that the jury list will be drawn from a cross section of the community.” Id., reprinted in 1968 U.S.C.C.A.N. at 1794. The statute requires only that each county’s representation in the master jury wheel be “substantially” proportionate to the county’s portion of the population of the district as a whole. See 28 U.S.C. § 1863(b)(3). By imposing these requirements for the composition of a master jury wheel, Congress did “not [mean to] require that at any stage beyond the initial source list[,] the selection process shall produce groups that accurately mirror community makeup.” House Report, reprinted in 1968 U.S.C.C.A.N. at 1794. In order to prevail on a JSSA challenge, a defendant must show a “substantial failure” in proportional representation. See 28 U.S.C. § 1867(a). “Mere technical violations of the procedures prescribed by the Act do not constitute substantial failure to comply with its provisions.” United States v. LaChance, 788 F.2d 856, 870 (2d Cir.) (internal quotation marks omitted), cert. denied, 479 U.S. 883, 107 S.Ct. 271, 93 L.Ed.2d 248 (1986). To establish a violation based on group underrepresentation, a defendant must show not only that the representation of a distinctive group in the community is not fair and reasonable in relation to the number of such persons in the" }, { "docid": "23419534", "title": "", "text": "Grand and Petit Jurors). Defendants moved to dismiss the indictment and submitted nine affidavits. The affidavits focused on conversations with the district court clerk to the effect that the clerk (1) had not prepared the alphabetical list of names taken from the master jury wheel; (2) had not executed affidavits indicating he had verified the accuracy of the county voter registration lists used to construct the master jury wheel but had performed spot checks to verify those voter registration lists; (3) did not possess the certificate of the appropriate Mobile County official indicating that all registered voters had been considered in the selection process; (4) did not possess a document verifying that his March 27, 1979, order to the Mobile Data Center to produce 70 names for a grand jury venire was carried out as the order specified; (5) did not systematically process completed juror qualification forms; and (6) did not retain the 1976 Mobile County voter registration list which was one source of data used to construct the master jury wheel, and the list could not be reproduced. The district court assumed the nine affidavits accompanying the motion to be true, but rejected defendants’ claim that the omissions amounted to a “substantial” failure to comply with the Act: “All of the defects which the defendants point to are technical deviations from the Act and the local plan____” This Court recently construed the Jury Selection and Service Act in United States v. Bearden, 659 F.2d 590 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). In Bearden, the clerk had violated the Act or local plan by selecting the starting number arbitrarily rather than randomly, by failing to post public notices of selection procedures, and by improperly excusing or disqualifying individuals from qualified jury wheels, and by granting permanent rather than temporary excusáis to persons summoned for jury service. The court held that none of these violations constituted a “substantial” failure to comply with the Act or local plan. We held that the alleged violations must be weighed against the underlying principles" }, { "docid": "22022345", "title": "", "text": "lists would be the sources of prospective jurors; that such lists, if possible, be placed on computer cards; that a master jury wheel be maintained for each division; that names be drawn from the master jury wheel in a public drawing; that certain persons could be excused from jury duty where exempt; that the qualifications, excuses, exemptions, and exclusions from jury duty would be determined by the chief judge or by any presiding judge; that there be an assignment of jurors from the qualified jury wheel to panels and that the length of service of each juror be stated. Of primary interest here is that the plan also required that the master jury wheel be emptied and refilled every two years. It is evident that the plan borrows heavily from the statute and is completely in accord with the statute, except as to the plan’s imposition of a more stringent time requirement. From all this, one basic question emerges. Is the recognized failure to empty and refill the master jury wheel a substantial failure to comply with the provisions of the statute? The reported cases are of some assistance. In U. S. v. Okiyama, 521 F.2d 601 (9th Cir. 1975), the court found that persons who were selected to serve as jurors did not understand the English language and so could not understand the proceedings in which they were to participate; also, that they did not represent a fair cross section of the community. This, the court concluded, demonstrated that the procedures employed in selecting the grand jury were not in substantial compliance with Title 28, Sections 1862, et seq. U. S. v. Blair, supra at 337, holds that the structure of the plan must achieve the objectives of the statute. The court said: “[T]he whole Plan declares that voter registration lists are a completely adequate source for random selection . the Plan determines that the policy, purpose and intent of the Act will be fully accomplished by the use of such voter registration lists.” In U. S. v. Boss, 468 F.2d 1213 (9th Cir. 1972), the complaint was that" }, { "docid": "23423127", "title": "", "text": "Act or even a number of them are insufficient. United States v. Davis, supra, 546 F.2d at 589; United States v. Evans, 526 F.2d 701, 706 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976). The same analysis is applied for claims alleging a failure to comply with the Local Plan. The court must determine whether noncompliance with the Plan has resulted in a substantial violation of the Act and its underlying principles. See United States v. Rodriguez, 588 F.2d 1003, 1009 n.21 (5th Cir. 1979). See also United States v. Tarnowski, 429 F.Supp. 783, 788-89 (E.D. Mich.1977), affirmed, 583 F.2d 903 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979); United States v. Gurney, 393 F.Supp. 688, 701 (M.D.Fla.1974). The mere claim the Plan has been violated is insufficient, absent a further showing the Act itself and its goals have been frustrated. 1. Starting Number Selection. The Local Plan provides that starting numbers should be drawn by lot from a drum or box containing consecutively numbered cards covering the same range of numbers as the increment. Local Plan 90a. The jury clerk, however, rarely complied with this requirement, although she was given a “wheel” (drum) by the Clerk of Court and directed to use it. The jury clerk instead employed one of two methods. The first was the “book method,” in which she would flip at “random” to a page in a dictionary and use the page number as the starting number. Beginning in 1976, she also used the so-called “Turner method,” which entailed picking a number out of her head. On several occasions, the jury clerk asked her assistant to pick a number out of his head. Defendants, of course, may challenge only improprieties affecting the particular grand jury which indicted them. Cf. United States v. Davis, 546 F.2d 583, 586 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977) (court may not reach challenge to system of using volunteer jurors where none were called in that case). The testimony of the" }, { "docid": "22134812", "title": "", "text": "be “substantially” proportionate to the county’s portion of the population of the district as a whole. See 28 U.S.C. § 1863(b)(3). By imposing these requirements for the composition of a master jury wheel, Congress did “not [mean to] require that at any stage beyond the initial source list[,] the selection process shall produce groups that accurately mirror community makeup.” House Report, reprinted in 1968 U.S.C.C.A.N. at 1794. In order to prevail on a JSSA challenge, a defendant must show a “substantial failure” in proportional representation. See 28 U.S.C. § 1867(a). “Mere technical violations of the procedures prescribed by the Act do not constitute substantial failure to comply with its provisions.” United States v. LaChance, 788 F.2d 856, 870 (2d Cir.) (internal quotation marks omitted), cert. denied, 479 U.S. 883, 107 S.Ct. 271, 93 L.Ed.2d 248 (1986). To establish a violation based on group underrepresentation, a defendant must show not only that the representation of a distinctive group in the community is not fair and reasonable in relation to the number of such persons in the community, but also that that underrepresentation is the result of systematic exclusion. See, e.g., United States v. Rioux, 97 F.3d 648, 654, 660 (2d Cir.1996). Although “it remains unclear whether statistics alone can prove systematic exclusion,” id. at 658, we have cautioned that “[e]ven if they can, however, they would have to be of an overwhelmingly convincing nature,” id. (citing Duren v. Missouri, 439 U.S. 357, 366, 99 S.Ct. 664, 669, 58 L.Ed.2d 579 (1979) (disapproving plan in which women, 54% of the population, constituted less than 15% of the jury venires)). Defendants in the present case challenged the Eastern District Plan as violating the JSSA on the principal grounds that since jurors for the Long Island division were-summoned only from the Long Island counties, it was improper not to limit jurors for Brooklyn trials solely to residents of the New York City counties; and that, even if it were permissible to include Long Island residents in the master wheel for Brooklyn juries, the Plan produced a master wheel for trials in Brooklyn that did" }, { "docid": "11471077", "title": "", "text": "procedures for generating names for the master jury wheel, and also mandates the creation of a more specific district court jury selection plan. See 28 U.S.C. § 1861 et seq. Federal courts may draw the names of prospective jurors from either voter registration lists or the lists of actual voters within their districts. 28 U.S.C. § 1863(b)(2). But there is an alternative: Each federal district court “shall prescribe some other source or sources of names [of prospective jurors] in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title.” Id. A 1992 amendment to the Act specifically provided that the District of Massachusetts “may require the names of prospective jurors to be selected from the resident list provided for in chapter 234A, Massachusetts General Laws, or comparable authority, rather than from voter lists” as its source of names for the master jury wheel. 28 U.S.C. § 1863(b)(2). The Act was amended precisely because of serious concerns about the racial composition of jury pools drawn from voter lists. See, e.g., United States v. Levasseur, 704 F.Supp. 1158, 1164 (D.Mass.1989). Minorities did not vote in the same proportion as did their white counterparts. See Bernard Grofman et ah, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 N.C. L.Rev. 1383, 1404 (2001) (citing Kimball Brace et al., Minority Voting Equality: The 65 Percent Rule in Theory and Practice, 10 Law & Pol’y 43, 47-48 (1988)). Using voter lists to compile juror lists effectively extended the gap in political participation between the races into the jury arena; resident lists represented a pioneering effort to produce jury wheels more closely reflecting the racial composition of the districts. For Massachusetts, the OJC compiles a single-numbered statewide resident list from the resident lists allegedly prepared annually by every Massachusetts city and town. Every city and town is required under M.G.L. ch. 234A to make such a list of all residents who resided in the town as of each January. Unfortunately, no state funds are appropriated to ensure that the statutory" }, { "docid": "11471151", "title": "", "text": "a Substantial Statutory Violation? The government argues that, even if the federal Jury Administrator’s failure to supplement resident lists amounts to a violation of § 1863(b)(2)’s mandate, that violation is not “substantial.” I disagree. As stated above, “substantial” is measured “against the underlying principles of the Act.” Calabrese, 942 F.2d at 227; see also Brummitt, 665 F.2d at 528; Gurney, 393 F.Supp. at 701-02 (substantial noncompliance is “a patent violation of the spirit and letter of the Act”). By that measure, this violation is significant. It is not clerical, incidental, or inconsequential; rather, it strikes at the core of what the JSSA was intended to achieve. Cf. United States v. Nelson, 718 F.2d 315 (9th Cir.1983) (permitting a summoned juror who mistook his duty date to serve as a “volunteer” was technical violation); United States v. Tarnowski, 429 F.Supp. 783 (E.D.Mich.1977) (failure to abide by district’s jury plan requirement that the master jury wheel be emptied and refilled every two years was technical violation because time is not the essence of the Act); Gurney, 393 F.Supp. 688 (failure to follow district’s jury plan requirement that the names of residents from one county be transferred to a different division in order to comply with a division-modification order was technical violation). Finally, failing to supplement deficient source lists is not trivialized by this Court’s finding that the underrepresentation identified by defendants’ data does not constitute a Sixth Amendment violation. If Congress had trusted that constitutional review would ensure truly cross-sectional jury pools, they would not have had reason to codify a fair cross-section ideal and enact mechanisms for its enforcement. Indeed, even if the longstanding pattern of underrepresentation of African-Americans in Eastern Division jury pools — a pattern that has been condemned by every court that has dealt with it, all the while finding it lawful — is not constitutionally actionable, the district court’s failure to take affirmative steps to improve the situation is actionable under the statute. e. Supervisory Powers While I believe that I have full authority to make certain of the adjustments that the defendants request as a matter" }, { "docid": "8176229", "title": "", "text": "while the group is concededly distinctive, Lewis has completely failed to establish the other two prongs of the Duren test. Our analysis begins with a look at the process by which the jury venire is compiled. Pursuant to the Jury Selection Plan adopted by the District of South Carolina, jury veni-res in South Carolina are drawn from voter registration lists. The Plan specifically provides that potential jurors are to be selected at random from a cross-section of the community and that no citizen shall be excluded “on account of race, color, religion, sex, national origin or economic status.” The plan was carefully considered and approved by this court. Furthermore, Congress has proclaimed that voter registration lists are the preferred source of names for prospective jurors. See The Jury Selection Act, 28 U.S.C. § 1863(b)(2) (1988). In United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 883 (1988), we held that use of current voter registration lists as the source for a jury pool from which random selection of jurors is made presumptively provides a fair cross-section, even if minorities are underrepresented on those lists, as long as there is no affirmative discrimination in registration. Id. at 1448 (“[Tjhere is no violation of the jury cross-section requirement where there is merely underrepresen-tation of a cognizable class by reason of failure to register, when that right is fully open.”). In reaching that conclusion, we said that in order to be fair and reasonable, the disparity “ ‘between the proportion of eligible whites selected for master jury wheel and proportion of eligible minority persons selected’ ” must not exceed twenty percent. Id. at 1453 (quoting Foster v. Sparks, 506 F.2d 805, 818 (5th Cir.1975)). Both parties to this appeal agree that the disparity between the proportion of eligible whites selected for the venire and the proportion of eligible African-Americans in this case is below twenty percent. Lewis does not cite any specific instances of discrimination or any evidence of affirmative discrimination in registration. Thus, under Duren and Cecil, Lewis has failed to present" }, { "docid": "2132844", "title": "", "text": "the applicable standard: [T]he alleged violations must be weighed against the underlying principles of the Act. A substantial violation of the Act will be found only when two important general principles are frustrated: (1) random selection of juror names and (2) use of objective criteria for determination of disqualifications, excuses, exemptions, and exclusions. In Gregory, we held that no relief was warranted where the defendants pointed to “[mjere ‘technical’ deviations from the Act,” including the clerk’s failure to prepare an alphabetical list of names drawn from the master jury wheel, because mere technical deviations “do not frustrate the obtaining of jury lists that represent a cross section of the relevant community and do not result in impermissible forms of discrimination and arbitrariness.” Id. Here, the appellants contend that the district court’s procedure violated the fundamental goals of the Act. In “permittpng] practically every prospective juror to decide for himself before trial whether or not ... to serve,” the district court, according to the appellants, was left with a jury that was not randomly drawn. The appellants rely on United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). In Kennedy, the district court was faced with a deficiency in the number of qualified jurors for a particular term. To rectify the problem, the jury clerk contacted jurors from the previous term by telephone and asked if they would be willing to perform additional service. The Fifth Circuit roundly condemned the practice, noting “[t]hat the introduction of personal predilections of prospective jurors affects the random nature of the selection process.” Id. at 612. The court cautioned that a district would substantially depart from the Act’s require ments “if it selected all its jurors by randomly drawing names from the qualified jury wheel and allowing those selected to opt in or out at will.” Id. The court was condemning the prospect of providing jurors with complete discretion on whether or not to serve. The procedure implemented by the district court in this case, however, did not permit prospective jurors to opt" }, { "docid": "23419536", "title": "", "text": "of the Act. A substantial violation of the Act will be found only when two important general principles are frustrated: (1) random selection of juror names and (2) use of objective criteria for determination of disqualifications, excuses, exemptions, and exclusions. Mere “technical” deviations from the Act or even a number of them are insufficient if they do not frustrate the obtaining of jury lists that represent a cross section of the relevant community and do not result in impermissible forms of discrimination and arbitrariness. Defendants contend that the acts of noncompliance in this case frustrated the goal of random selection of jurors in that Mobile County was overrepresented in the grand jury that indicted them. This apparent geographical disparity did not result in a substantial failure to comply with the Act. First, it is the master jury wheel, not the actual grand jury, which must be geographically proportional. Under the Act, the local plan “shall ensure that each county, parish, or similar political subdivision within the district ... is substantially proportionally represented in the master jury wheel for that judicial district.” 28 U.S.C.A. § 1863(b)(3). Second, the grand jury venire in this case, comprising 70 individuals, was substantially proportional geographically. Although residents of Mobile County were the most numerous on the venire, Mobile County is clearly the most populous county in the district. A party claiming disproportionate representation of a particular group in a jury selection process must show a substantial disparity between that group’s representation in the selection process and its representation in the general population. See, e.g., United States v. Brummitt, 665 F.2d 521, 528-30 (5th Cir.1981) (Hispanic Americans), cert. denied, 456 U.S. 977, 102 S.Ct. 2244, 72 L.Ed.2d 852 (1982); United States v. Hawkins, 661 F.2d 436, 442-43 (5th Cir. Unit B 1981) (residents of divisions within judicial district), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 2967, 73 L.Ed.2d 1287 (1982); United States v. Goff, 509 F.2d 825, 826-27 (5th Cir.) (blacks and indigents), cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975). The counties in this case were “substantially proportionally represented.” 28" }, { "docid": "11471126", "title": "", "text": "number of registered voters if registration of voters is uniformly required throughout the district or division.” Id. The question raised by this case is how to define “proportionality”: Is it simply the requirement of random selection? If the source lists are voter lists, is it enough for officials to make certain that the master wheel reflects random selection from those lists? If the source lists are resident lists, does proportionality simply require random selection from those lists? Or does proportionality mean something more—that the court is to measure the efficacy of the plan in terms of whether it accurately captures the actual population as reflected by Census data, rather than source lists? At the heart of the debate is the significance of the 1992 Amendment to the Act, which provided that the District of Massachusetts may use numbered resident lists, rather than voter lists, as its source of names for the federal master jury wheel. 28 U.S.C. § 1863(b)(2). The government argues that the amendment merely had the effect of changing the benchmark for measuring proportionality from voter lists to resident lists. It reaches this result through parallel reasoning: The Act directs most federal judicial districts to use voter lists as a source of juror names, thereby making the test of proportionality in those districts whether their master wheels preserve the county (or other relevant political divisions) proportions as they exist on the voter lists. Thus, when the Act authorized the District of Massachusetts to replace voter lists with numbered resident lists, it implicitly made resident lists the measure of proportionality. Defendants argue that, because the Act states that proportionality “may” be measured against benchmarks such as the previous year’s voter lists or resident lists, the language of the Act is discretionary. They urge the Court to employ this discretion, in conjunction with its supervisory authority, to determine that the better test of proportionality compares county proportions on the master jury wheel to county proportions as measured by Census counts. If the addresses on the master wheel are inaccurate, they argue, proportionality is irrelevant; the county population figures are chimerical." } ]

[ { "docid": "6927810", "title": "", "text": "That period was tolled for ninety-five days (March 19, 1998 to June 22, 1998) while Pratt’s coram nobis petition was pending. His motion under CPL § 440.10, which was based on the police report of questionable authenticity, was pending for one hundred eighty-eight days (August 27, 1998 to March 3, 1999). Accordingly, Pratt’s federal habeas petition, which was filed on March 19, 1999, was timely if the CPL § 440.10 motion tolled the statute but untimely if it did not. The District Court found that the document was forged and that the defendant had deliberately sought to mislead the state and federal courts. (Tr. at 8.) Pratt never explained where or how he obtained the police report. The State noticed that the report contained a different font from the one normally used in this sort of report, and, after closer analysis, detected unresolvable inconsistencies between the date of the neighborhood canvass supposedly memorialized in the report and other phases of the investigation. When the state court ordered a hearing to determine the report’s authenticity, Pratt promptly withdrew his motion to vacate. Although not pertinent to our ultimate conclusion, we accept the District Court’s factual finding that the police report was forged, that Pratt knew it to be forged, and that Pratt endeavored to mislead the courts. The District Court concluded that, despite the fraudulent nature of Pratt’s state court motion, it still tolled AEDPA’s statute of limitations. (Tr. at 9.) Whether a state court motion based on a fraudulent document is “properly filed” within the meaning of § 2244(d)(2) is a question of law that we review de novo. See Smaldone v. Senkowski, 273 F.3d 133, 136 (2d Cir.2001) (holding that whether the period during which a petitioner may pursue certiorari on state collateral motions tolls AEDPA’s statute of limitations is a question of law to be reviewed de novo), cert. denied, — U.S. -, 122 S.Ct. 1606, 152 L.Ed.2d 621 (2002). We affirm the District Court’s conclusion that the motion was “properly filed.” The law in our Circuit is well-settled that courts, on habeas review, should not scrutinize the" } ]

[ { "docid": "22118972", "title": "", "text": "Id. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year limitations period on the filing of federal habeas actions. See 28 U.S.C. § 2244(d). The period begins to run from “the latest of’ four dates, two of which are relevant here. The first is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The second is “the date on which the factual predicate of the claim ... could have been discovered through the exercise of due diligence.” Id. § 2244(d)(1)(D). Importantly, the limitations period is statutorily tolled “[f]or the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending” in state court. Id. § 2244(d)(2). In addition, the limitations period may be equitably tolled if the petitioner “diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000). When a district court denies a habeas petition based on § 2244(d), we generally exercise de novo review. See Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir.2003). Here, the District Court also found no grounds for equitably tolling the statute-of-limitations period. On appeal, such a decision is reviewed for an abuse of discretion. See id. at 1138. Ultimately, therefore, we will vacate the District Court’s determination that equitable tolling is inapplicable only if reasonable jurists could debate whether the court’s re fusal to toll the statute of limitations was an abuse of discretion. 1. Procedural Ruling a. Timeliness of Count III Mr. Fleming pleaded guilty to Count III. The state trial court sentenced him on December 21, 2001. Because Mr. Fleming did not file a timely motion for leave to withdraw his plea or otherwise directly appeal his conviction, his conviction on Count III became final on December 31, 2001. See Okla. Stat. tit. 22, Ch. 18, App., Rule 4.2. Absent statutory or equitable tolling, the AEDPA limitations period" }, { "docid": "14582556", "title": "", "text": "JACOBS, Circuit Judge. Pablo Fernandez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction. Christopher Artuz, the Superintendent of Green Haven Correctional Facility, where Fernandez was incarcerated at the relevant time, moved to dismiss Fernandez’s petition as time-barred in light of the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (“AED-PA”). See 28 U.S.C. § 2244(d). The United States District Court for the Southern District of New York (Wood, J.) denied Artuz’s motion to dismiss. Fernandez v. Artuz, 175 F.Supp.2d 682, 687 (S.D.N.Y.2001). The timeliness of a habeas petition is a question of law that we review de novo. Cf. Pratt v. Greiner, 306 F.3d 1190, 1195 (2d Cir.2002) (citing Smaldone v. Senkowski, 273 F.3d 133, 136 (2d Cir.2001)). The question turns on whether Fernandez’s state coram nobis petition became “properly filed” within the meaning of 28 U.S.C. § 2244(d) when it was received by the Appellate Division of the New York State Supreme Court, or (on an earlier date) when it was delivered to prison officials for mailing. We conclude that the prison mailbox rule applies and that Fernandez’s federal habeas petition was therefore properly filed within the one-year statute of limitations period. I AEDPA requires that a state prisoner seeking federal habeas relief file his federal habeas petition within one year after his state judgment of conviction becomes “final.” 28 U.S.C. § 2244(d)(1). Excluded from the one-year limitations period is “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending.” 28 U.S.C. § 2244(d)(2). Generally, a judgment becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.2001). Fernandez’s conviction was unanimously affirmed by the Appellate Division, First Department, People v. Fernandez, 249 A.D.2d 3, 670 N.Y.S.2d 840, 843 (1st Dept.1998), and the New York Court of Appeals denied leave to appeal, People v. Fernandez, 92 N.Y.2d 897, 680 N.Y.S.2d 60, 702 N.E.2d 845 (1998). The" }, { "docid": "22342483", "title": "", "text": "PER CURIAM: Kevin Smith appeals from the March 26, 1999, judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, J.) dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2244(d). BACKGROUND A Kings County jury convicted Smith in 1987 of second-degree murder and second and third-degree criminal possession of a weapon. Smith pursued direct appeals, all of which were unsuccessful, and his conviction became final on July 2,1991. In 1988 and 1992, Smith filed motions pursuant to N.Y. Crim. Proc. L. § 440.10 to vacate his judgment of conviction, but state courts denied the relief. On May 1, 1997, Smith filed a petition for a writ of error coram nobis in state court. Smith served the petition on April 28, 1997. The coram nobis petition contained a claim regarding denial of effective assistance of appellate counsel. The state court denied the petition on November 17, 1997. Shortly thereafter, on February 12, 1998, Smith filed his federal habeas corpus petition raising the same ineffective assistance of appellate counsel claim. By memorandum and order dated March 17, 1999, Judge Dearie dismissed the federal petition as untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Smith v. McGinnis, 49 F.Supp.2d 102 (E.D.N.Y.1999). Judge Dearie rejected Smith’s argument that the applicable one-year statute of limitations ran from the date the state court denied his coram nobis petition. See id. at 104-05. The district court also held that Smith “was not diligent in pursuing state remedies.” Id. at 105. Judge Dearie granted Smith a certificate of ap-pealability on May 28, 1999. This appeal presents questions of law that we review de novo. DISCUSSION I. Calculation of tolling period Petitioner-appellant presents a question of first impression in this circuit, namely whether the one-year limitations period in the AEDPA began on the date he exhausted state collateral review or merely tolled while his state application was pending. Specifically, Smith contends that the ineffective assistance of appellate counsel claim presented in his state coram nobis and federal habeas corpus petitions did" }, { "docid": "18243036", "title": "", "text": "file his petition for habeas corpus within one year of the expiration of the time for seeking direct review of the state court judgment at issue. See 28 U.S.C. § 2244(d)(1)(A). As set out above, Petitioner filed his habeas petition three years after that period ended in March 2005. The one-year limitations period, however, is tolled during the pendency of certain post-conviction proceedings in state court. 28 U.S.C. § 2244(d)(2). Of the five motions filed in state court by Petitioner between 2005 and 2008, Respondent agrees that the § 440.10. motion and the two § 440.20 motions tolled the limitations period. Petitioner contends that the Article 78 petition, and the motion to renew that petition, tolled the period as well. If Petitioner is correct, then it is undisputed that his habeas petition was timely filed. The district court, however, concluded that the Article 78 filings did not satisfy the requirements of § 2244(d)(2), and held that the habeas petition was therefore time-barred. The facts material to this appeal are Undisputed, and our review of whether the petition was filed outside the limitations period as a matter of law is de novo. Saunders v. Senkowski, 587 F.3d 543, 547 (2d Cir.2009) (per curiam). L We begin with the text of the statute. AEDPA’s tolling provision states that the statute of limitations is tolled during the adjudication of a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment.” 28 U.S.C. § 2244(d)(2). The pertinent judgment in this case is Petitioner’s 2001 conviction and sentence for double murder and attempted murder. On its face, the Article 78 petition in-this case was not made “with respect to the pertinent judgment.” Indeed, Petitioner did not challenge any aspect of his 2001 conviction or sentence. Rather, he argued that DOCS, the New York agency charged with administering the prison system, wrongly determined that his unchallenged 2001 sentence should run consecutively, rather than concurrently, to a previous unchallenged sentence imposed pursuant to a separate conviction for robbery. The Article 78 petition argued, in essence, that DOCS had erred in failing" }, { "docid": "1457319", "title": "", "text": "Walker filed his second habeas petition more than one year after completing his direct criminal appeal and nearly one year after the court dismissed his first habeas petition. On December 18, 1998, we granted Walker a certificate of appealability regarding these two issues: first, whether Walker’s first habeas petition tolled the one-year statute of limitations, and second, whether equitable tolling applied to make Walker’s second habeas petition timely. Because we answer the first question in the affirmative, we need not reach the issue of equitable tolling. Walker’s appeal presents questions of law that we review de novo. DISCUSSION Walker’s appeal presents a narrow question regarding proper interpretation of Section 2244’s statute of limitations and tolling provisions. At issue is whether the AEDPA’s mandate to toll its one-year limitations period during the pendency of “other collateral review” applies to properly filed federal habeas petitions or only to applications for state review. See 28 U.S.C. § 2244(d)(2). In general, the AEDPA restricts the ability of prisoners to seek federal review of their state criminal convictions. Section 2244(d) created a new one-year statute of limitations in which state prisoners could file applications for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). The one-year period generally runs from the date on which the state criminal judgment became final. See id. Prisoners like Walker, whose convictions became final prior to the AEDPA’s effective date of April 24, 1996, have a one-year grace period in which to file their habeas corpus petitions, or until April 24,1997. See Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir.1998). Section 2244 also has a tolling provision that applies to both the statute of .limitations and the one-year grace period. See Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir.1999) (holding that the “AEDPA’s pending-state-petition tolling provision does apply to a petition challenging a pre-AEDPA conviction”), cert. granted, — U.S.-, 120 S.Ct. 1669, 146 L.Ed.2d 479 (2000). The tolling provision at Section 2244(d)(2) states: The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is" }, { "docid": "19961920", "title": "", "text": "justice would not occur if these procedurally defaulted claims were not considered because Melson had failed to show he was actually innocent of the crimes. Melson now appeals the district court’s dismissal of his federal habeas petition. II. DISCUSSION We review de novo a district court’s dismissal of a federal habeas peti tion, including the determination that a petition is time-barred under § 2244(d). See Arthur v. Allen, 452 F.3d 1234, 1243 (11th Cir.2006). A district court’s factual findings are reviewed for clear error. Id. In addition, a state court’s factual findings are presumed correct unless the petitioner rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (2006). A. Timeliness under 28 U.S.C. § 22U(d)(l)(A) The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets a one-year statute of limitations for filing a federal habeas petition challenging a state court judgment. See id. § 2244(d)(1) (2006). The statute of limitations starts running on the latest of: “(A) the date on which the judgment became final by the conclusion of direct review ... or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Id. § 2244(d)(1)(A), (D). Under either trigger date, the limitations period is tolled during the time “a properly filed application for State post-conviction or other collateral review ... is pending.” Id. § 2244(d)(2). Melson’s convictions and death sentence became final on 5 March 2001, the date the United States Supreme Court denied his certiorari petition. Pursuant to § 2244(d)(1)(A), Melson had one year from 5 March 2001, or until 6 March 2002, in which to file a timely federal habeas petition. Melson argues that the limitations period was tolled on 4 March 2002, the date he filed an unverified Rule 32 petition. That petition was dismissed, however, for failing to comply with the verification requirement of Rule 32.6(a) of the Alabama Rules of Criminal Procedure. See Melson, 902 So.2d at 717. Rule 32.6(a) requires a Rule 32 petition to be “verified by the petitioner or the petitioner’s attorney" }, { "docid": "23271117", "title": "", "text": "post-conviction relief motion on April 30, 1997. The state court denied the motion on the merits, and the state court of appeals affirmed the denial without opinion. Hurley’s state petition for writ of habeas corpus and his subsequent motion for rehearing were also denied. Hurley filed his petition for relief under 28 U.S.C. § 2254 , and the state moved to dismiss the petition as time-barred. The district court dismissed the petition because Hurley’s initial petition was not filed within one year of the AEDPA’s effective date. II. Discussion On appeal Hurley argues that his initial Rule 3.850 motion, filed on October 3, 1996, was a properly-filed state post-conviction motion that tolled the limitations period for filing his § 2254 petition. Hurley argues for the first time that his § 2254 petition should be considered timely under equitable tolling because his initial Rule 3.850 motion was properly sworn. In reviewing the district court’s denial of a habeas corpus petition we review the court’s findings of fact for clear error and questions of law de novo. See King v. Moore, 196 F.3d 1327, 1330 (11th Cir.1999). Arguments raised for the first time on appeal are not properly before this Court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.), cert. denied, 511 U.S. 1111, 114 S.Ct. 2111, 128 L.Ed.2d 671 (1994). In addition to adding a one-year statute of limitations to federal habeas corpus actions the AEDPA contains a tolling provision, which provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” -28 U.S.C. § 2244(d)(2) (emphasis added). This circuit has held that a state petition for post-conviction relief is not “properly filed” when it fails to comply with state filing deadlines, and we have extended “properly filed” state petitions to include those which do not violate state procedural requirements forbidding successive motions. See Weekley, 204 F.3d at 1085, 1086. Where the petition is not “properly filed” there is no tolling" }, { "docid": "23108803", "title": "", "text": "denied access to his legal files and to the law library. Petitioner filed his federal habeas corpus petition on April 15, 1999. In an Opinion and Order filed August 1, 2000, the district court granted respondent’s motion to dismiss the petition on the ground that it was time-barred under 28 U.S.C. § 2244(d)(1), as interpreted by Ross, and granted a certificate of appealability. Hiz-bullahankhamon v. Walker, 105 F.Supp.2d 339 (S.D.N.Y.2000). Petitioner timely appealed. DISCUSSION We review a district court’s ruling on a petition for a writ of habeas corpus de novo. English v. Artuz, 164 F.3d 105, 108 (2d Cir.1998). Under Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 1217 (codified at 28 U.S.C. § 2244), a prisoner in state custody has one year after the date his conviction became final in which to file a habeas petition. 28 U.S.C. § 2244(d)(1). A prisoner whose conviction became final prior to the AED-PA’s effective date of April 24, 1996, has a one-year grace period after that date in which to file a first habeas petition. Ross, 150 F.3d at 102-03. However, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward” this one-year period. 28 U.S.C. § 2244(d)(2); see also Bennett v. Artuz, 199 F.3d 116, 118-19 (2d Cir.1999) (holding that Section 2244(d)(2) is applicable to the one-year grace period), ajfd, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Because petitioner’s conviction became final prior to April 24, 1996, he had until April 24, 1997, to file a first habeas petition, plus any time tolled under Section 2244(d)(2) or the doctrine of equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000); Ross, 150 F.3d at 102-03. As noted, petitioner filed his petition on April 15, 1999, a total of 1,086 days after April 24, 1996. The parties agree that, pursuant" }, { "docid": "1555562", "title": "", "text": "Israfil appeals that judgment. The district court granted Israfil a certificate of ap-pealability and granted Israfil leave to proceed in forma pauperis on appeal. In his timely appeal, Israfil contends that the district court erred in determining that his habeas corpus petition was time-barred. Israfil argues that his third post-conviction motion, filed July 27, 1998, was a properly filed application for state post-conviction relief or other collateral review that tolled the one-year period of limitations pursuant to 28 U.S.C. § 2244(d)(2). Israfil does not argue on appeal that the statute of limitations was tolled by his filing a petition for a writ of mandamus in the Ohio Supreme Court. Thus, to the extent that he made such an argument in the district court, the issue is considered abandoned and not reviewable on appeal. See Enertech Elec., Inc. v. Mahoning County Comm’rs, 85 F.3d 257, 259 (6th Cir.1996). This court reviews de novo the district court’s disposition of a habeas corpus petition. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir.1997). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) contains a one-year statute of limitations period during which a § 2254 federal habeas corpus petition must be filed. 28 U.S.C. § 2244(d)(1). The AED-PA statute of. limitations begins to run from the latest of four circumstances, one of which is “the date on which the [state court] judgment became final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). The one-year period of limitations is tolled, however, by the amount of time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The AEDPA became effective on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 322, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Habeas corpus petitioners whose state convictions were concluded by direct review prior to the effective date of the AEDPA, are afforded a one-year grace period, until April 24, 1997, in which to file a § 2254 petition. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999), cert. denied," }, { "docid": "23171283", "title": "", "text": "F.3d 153 (3d Cir.1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616 (3d Cir.1998). In particular, the parties should address whether Nara’s motion to withdraw his guilty plea nunc pro tunc was a ‘properly filed application for State post-conviction or other collateral review’ within the meaning of § 2244(d)(2). If that motion tolled the limitations period, the parties, should address whether Nara is also entitled to tolling for the 90-day period following entry of Pennsylvania Supreme Court’s order on December 8, 1997, when Nara could have petitioned for certiorari review in the United States Supreme Court. Nara v. Frank, No. 99-3364, Order Granting Certificate of Appealability (Feb. 15, 2000). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We have plenary review over statute of limitations issues. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.2000). B. The Requirements of 28 U.S.C. § 2244(d) A state prisoner must file his or her habeas corpus petition within one year after the completion of the state court proceedings. 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, provides, in relevant part: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; ... (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. The inquiry under § 2244(d) encompasses both when the judgment of the state court became “final” and when the “properly filed application for State post-conviction or other collateral review” was “pending.” Nara must satisfy the provisions of § 2244(d) because he is in custody pursuant to the judgments of Pennsylvania’s courts." }, { "docid": "22215148", "title": "", "text": "the weapons possession count involved.” Id. at *5. Furthermore, the district court deemed appellate counsel to be ineffective for failing to raise the ineffectiveness of Petitioner’s trial counsel on direct appeal. Id. at *5. As to the eyewitness identification instruction, the district court denied the ha-beas petition, concluding that there was no error in the jury charge, and thus trial counsel could not be ineffective for failing to raise so meritless an issue. A fortiori, appellate counsel was not ineffective for failing to raise an argument that trial counsel was ineffective. Therefore, the district court vacated only the criminal weapons possession conviction (and its sentence of 8 years to life imprisonment), leaving the robbery conviction (and its sentence of 25 years to life imprisonment) intact. The district court granted a certificate of appealability on the partial denial of Aparicio’s petition solely on the identification instruction issue. Petitioner now appeals pursuant to that certification. The State cross-appeals from the district court’s partial grant of the petition on the double jeopardy ineffective assistance claims. DISCUSSION We review a district court’s denial of a habeas petition de novo. E.g., Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir.2001). I. Timeliness; Applicability of AEDPA The enactment of Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, created a tumultuous sea change in federal habe-as review, especially affecting the petitions of state prisoners. Williams v. Taylor, 529 U.S. 362, 402-10, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., writing for the majority with respect to part II); Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir.2001). Nevertheless, the parties—both below and in this Court— have proceeded with Olympian indifference to this five-year old statute. Among other things, AEDPA established a statute of limitations on habeas filings: one year, running from the date the petitioner’s conviction became final (unless the petition relies on new Supreme Court case law or unavoidably undiscovered facts). 28 U.S.C. § 2244(d)(1)(A). Aparicio’s conviction became final in December 1994, when his petition for leave to appeal to the New York Court of Appeals was denied. Thus, when" }, { "docid": "16417442", "title": "", "text": "statutory period, because of the new law’s tolling provision: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation ...” 28 U.S.C.A. § 2244(d)(2) (West Supp.1999). In this case, the four months that Clark’s petition for a writ of error coram nobis was pending in New York are not counted toward the statutory limit. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (holding that the “tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run”). Accordingly, Clark’s petition was timely, and the State is correct not to challenge it on that ground. Because the timeliness issue is moot, we need not address the Suspension Clause issue. We note in passing, however, that intervening decisions in this Circuit have largely settled the matter. We turn then to Clark’s contentions that his absence from a portion of his Wade hearing violated his right to be present at trial and that his appellate counsel’s failure to raise that issue on direct review violated his right to effective assistance of counsel. I. Standard of Review Our task as a federal habeas court is to determiné whether the denial by the Appellate Division of Clark’s ineffective assistance of appellate counsel claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C.A. § 2254(d)(1) (West Supp.1999). At the time we granted Clark a certificate of appealability, the applicable standard of review was uncertain in this Circuit. See Smalls v. Batista, 191 F.3d 272, 278 (2d Cir.1999) (declining to decide the extent to which § 2254(d)(1) permits de novo review). The Supreme Court has now articulated such a standard. See Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 1518-23, 146 L.Ed.2d 389 (2000). In Williams, the Court endorsed in large part the Fourth Circuit’s interpretation of this subsection. See id." }, { "docid": "14314015", "title": "", "text": "cross-examination ... had been allowed,” Fuller, 273 F.3d at 221, we reverse the district court’s grant of the writ. In light of our holding that Benn’s claim lacks merit, we do not reach appellant’s additional contention that the district court erred in holding that the statute of limitations under § 2244(d) was tolled due to Benn’s mental illness. See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000) (holding that § 2244(d) statute of limitations is not jurisdictional); Farley v. Sullivan, 983 F.2d 405, 410 (2d Cir.1993) (disposing of case on merits and declining to reach procedural issues including propriety of equitable tolling of statute of limitations). CONCLUSION For the foregoing reasons, the judgment of the district court is REVERSED. . Benn was also convicted of one count of second-degree assault, N.Y. Penal Law § 120.05(6), and two counts of criminal possession of a weapon in the fourth degree, N.Y. Penal Law § 265.01(2). He was sentenced to a term of imprisonment of two and one-third to seven years on the assault count, to run concurrently with the sentences on the sodomy and attempted rape counts. He was sentenced to conditional discharge on the weapons counts. . Because Benn's conviction became final before April 24, 1996, he was required to file his petition on or before April 24, 1997. See Hizbullahankhamon v. Walker, 255 F.3d 65, 69 (2d Cir.2001). . As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219, section 2254(d) of 28 U.S.C. provides that [a]n 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" }, { "docid": "2380580", "title": "", "text": "PER CURIAM: Richard William Grooms has appealed the district court’s judgment dismissing his second federal application for a writ of habeas corpus as time-barred under 28 U.S.C. § 2244(d). On appeal from the denial of federal habeas relief, this court reviews the district court’s factual determinations for clear error and its legal conclusions are reviewed de novo. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Section 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), provides that “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” § 2244(d)(1). Section 2244(d)(2) provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” § 2244(d)(2). Prisoners whose convictions have become final prior to the April 24, 1996, effective date of the AEDPA have one year after that date in which to file for § 2254 relief. Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998); see United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir.1998) (§ 2255 case), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). Because Grooms’s conviction became final prior to the effective date of the AEDPA, he had at least until April 24, 1997, to file his § 2254 application. In Fields v. Johnson, 159 F.3d 914, 916 (5th Cir.1998), this court held that the § 2244(d)(2) tolling provision applies to the one-year limitations period. Noting that § 2244(d)(2) provides that the limitation period applies to periods during which a “State post-conviction proceeding or other collateral review ” is pending, Grooms contends that the limitation period should tolled for the number of days during which his first federal habeas petition was pending during the year following April 24, 1996. Grooms argues that the quoted phrase should be read in the disjunctive and that, accordingly, his first federal ha-beas petition constituted “other collateral" }, { "docid": "23518658", "title": "", "text": "the underlying constitutional claims and one directed at the district court’s procedural holding.” Id. Because the district court did not reach the merits of Mr. Adams’ petition, and our certificate of appealability is confined to the procedural issue of timeliness, we must examine Mr. Adams’ underlying constitutional claims. After reviewing the claims and the record on appeal, we hold “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and grant a certificate of appealability as to Mr. Adams’ claim that sentencing him on both the kidnaping and criminal sexual penetration convictions violated the double jeopardy clause. Having determined Mr. Adams meets this threshold standard, we turn to the timeliness of his federal habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 includes a one-year statute of limitations for state prisoners to file an application for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). Because Mr. Adams’ state convictions became final in 1988, well before the passage of the Antiterrorism and Effective Death Penalty Act, he had one year from the enactment of the Act to seek federal habeas relief. See Barnett v. LeMaster, 167 F.3d 1321, 1322 (10th Cir.1999); Miller v. Marr, 141 F.3d 976, 977 (10th Cir.) (citing United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997)), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). Therefore, Mr. Adams was required to file his application prior to April 24, 1997 in order to beat the statute of limitations. Miller, 141 F.3d at 977. However, the limitations period is tolled during the pendency of state post-conviction review: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2) (emphasis added). The question presented here is how do we determine when a state petition for post-conviction relief is “properly filed”? The parties agree Mr. Adams’ period of limitation was tolled from" }, { "docid": "6005457", "title": "", "text": "novo and its findings of fact for clear error. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000). Because Valentine’s habeas petition was filed after the Antiterrorism and Effective Death Penalty Act (“AEDPA”) became effective, the provisions of that Act apply to his case. See Seymour v. Walker, 224 F.3d 542, 549 (6th Cir.2000). III. DISCUSSION Pursuant to AEDPA, a prisoner has one year from the completion of the direct review of his case to commence a collateral attack on his conviction. See 28 U.S.C. § 2244(d)(1)(A). Where that prisoner’s state conviction became final prior to AEDPA’s effective date, April 24, 1996, he has one year from April 24, 1996 to initiate a habeas action. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999), cert. denied, 530 U.S. 1210, 120 S.Ct. 2211, 147 L.Ed.2d 244 (2000). The one-year limitation period, however, may be tolled: “The time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). In Austin, 200 F.3d at 395, this court stated that “the purpose of tolling ... is to provide the state courts with the first opportunity to resolve the prisoner’s federal claim.” Accordingly, this court adopted a rule that: [A] state petition for post-conviction or other collateral review that does not address one or more of the grounds of the federal habeas petition in question is not a review “with respect to the pertinent judgment or claim” within the meaning of 28 U.S.C. § 2244(d)(2), and therefore does not toll the one-year AEDPA statute of limitations. Id. Valentine’s conviction became final prior to AEDPA, meaning that the one-year statute of limitations for him to initiate a habeas action began to run on April 24, 1996. On September 11, 1996, Valentine filed his petition for post-conviction relief with the trial court, which was denied on January 27, 1997. In this petition, Valentine made two constitutional claims: 1) the prosecutor did not hand over material" }, { "docid": "10603231", "title": "", "text": "Justice Alito delivered the opinion of the Court. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim” tolls the 1-year limitation period for filing a federal habeas petition. 28 U. S. C. § 2244(d)(2). The question in this case is whether a motion to reduce sentence under Rhode Island law tolls the limitation period, thereby rendering respondent Khalil Kholi’s federal habeas petition timely. We hold that the phrase “collateral review” in § 2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review. Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, we hold that respondent’s motion tolled the AEDPA lim itation period and that his federal habeas petition was therefore timely. I A In 1993, respondent was convicted in Rhode Island Superior Court on 10 counts of first-degree sexual assault, and he was sentenced to consecutive terms of life imprisonment. Respondent raised various challenges to his conviction on direct appeal, but the Supreme Court of Rhode Island affirmed his conviction. State v. Kholi, 672 A. 2d 429, 431 (1996). The parties agree that respondent’s conviction became final on direct review when his time expired for filing a petition for a writ of certiorari in this Court. Brief for Petitioner 7, n. 4; Brief for Respondent 3, n. 1; 582 F. 3d 147, 150 (CA1 2009); see generally Jimenez v. Quarterman, 555 U. S. 113, 119 (2009). That date was May 29, 1996. See this Court’s Rules 13.1, 13.3, 30.1. In addition to taking a direct appeal, respondent filed two state motions that are relevant to our decision. The first, filed on May 16,1996, was a motion to reduce sentence under Rule 35 of the Rhode Island Superior Court Rules of Criminal Procedure. App. 8. In that motion, respondent asked the trial court to “reconsider its prior determination” and “order that his life sentences run concurrently.” State v. Kholi, 706" }, { "docid": "15655896", "title": "", "text": "the application in a one line order. People v. Adeline, 89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982 (1997) (table). Finally, on July 16, 1997, petitioner filed a petition for á writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. In an order dated April 17, 1998, the district court concluded that the petition was time barred. On April 28, 1998, the district court entered a judgment dismissing the complaint. In a July 12, 1999 amended order, the district court granted a certificate of appealability pursuant to which petitioner brought this appeal. We now affirm. DISCUSSION I. Applicable Law Among the changes in habeas corpus law ushered in by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), was the provision of a limitations period for the fifing of federal petitions for habeas corpus. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998). AEDPA’s general rule is that a prisoner in custody as a result of a state-court conviction has one year after the date that his or her conviction becomes final in which to file. See id.; 28 U.S.C. § 2244(d)(1). In Ross we decided that a prisoner, such as Adeline, whose conviction became final before AEDPA’s effective date of April 24, 1996 has one year thereafter, or until April 24, 1997, to file a § 2254 habeas petition. See Ross, 150 F.3d at 103. Under AEDPA, however, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). In Bennett v. Artuz, 199 F.3d 116 (2d Cir.1999), we held that this tolling provision applies to “a petition challenging a pre-AEDPA conviction” and the one-year period determined to be applicable by Ross. Bennett, 199 F.3d at 118-19. Under Bennett, to qualify for tolling purposes under § 2244(d)(2), “an applica tion for state post-conviction relief recognized" }, { "docid": "5597709", "title": "", "text": "LIPEZ, Circuit Judge. This case requires us to determine whether an application for state post-conviction relief was “pending” for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, state prisoners seeking federal habeas corpus review generally must file a petition under 28 U.S.C. § 2254 within one year of the date on which their state convictions became final. See 28 U.S.C. § 2244(d)(1). Before pursuing relief in the federal courts, however, state prisoners first must exhaust all available state post-conviction remedies. See 28 U.S.C. § 2254(b)(1). Recognizing the potential conflict between AEDPA’s exhaustion requirement and its one-year statute of limitations, Congress provided that “[t]he time during which a properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). Appellant John Currie seeks federal habeas review of his state conviction on grounds of ineffective assistance of counsel. The timeliness of his § 2254 petition depends on whether his earlier application for state post-conviction review was “pending” during the nine-month gap between disposition in the trial court and Currie’s motion for leave to appeal. The district court concluded that it was not, and dismissed Currie’s § 2254 petition as barred by AEDPA’s statute of limitations. We review the district court’s interpretation of the statute de novo. United States v. Michaud, 243 F.3d 84, 85-86 (1st Cir.2001). We now join our sister circuits in holding that an application for post-conviction relief is pending “from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state’s procedures.” Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.1999), aff'd on other grounds, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Accordingly, we vacate the judgment of the district court. I. In 1981, a Massachusetts jury convicted Currie of first degree murder, based on his role in an attempted robbery that ended in the death of a state police officer. Massachusetts law provides for direct and “extremely broad plenary" }, { "docid": "23181216", "title": "", "text": "failure to give notice under § 250.20, the court excluded Yamagata’s testimony. The jury convicted Noble of attempted murder in the second degree, two counts of criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree. He was sentenced chiefly to two terms of 12-}é to 25 years of imprisonment and one term of 7/6 to 15 years of imprisonment, all to run concurrently. On Noble’s appeal, the Appellate Division of the New York Supreme Court did not decide whether the preclusion of the alibi testimony was constitutional error, because it held that even if it were, any error introduced thereby was harmless. See People v. Noble, 209 A.D.2d 735, 736, 618 N.Y.S.2d 123, 124 (3d Dep’t 1994). The court rejected Noble’s claim that his counsel was ineffective on the ground that Noble only alleged a “simple disagreement with trial strategies and tactics,” and was therefore not sufficient to overturn the convictions. Id. Noble’s application for leave to appeal to the New York Court of Appeals was summarily de nied. See People v. Noble, 84 N.Y.2d 1036, 647 N.E.2d 464, 623 N.Y.S.2d 192 (1995). Noble petitioned for a writ of habeas corpus in 1997. The district court granted the writ on the ground that the trial court’s preclusion of Yamagata’s testimony violated Noble’s compulsory process rights under the Sixth Amendment. See Noble, 89 F.Supp.2d at 454-61. Alternatively, the court held that defense counsel’s failure to follow the procedures for calling an alibi witness amounted to constitutionally ineffective counsel. See id. at 461-63. We affirm on the first ground and therefore do not reach the second. DISCUSSION I. Timeliness Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, § 101, 110 Stat. 1214, 1217 (codified at 28 U.S.C. § 2244), imposes a time limit for filing habeas petitions. See 28 U.S.C. § 2244(d)(1). AEDPA was enacted on April 24, 1996; prisoners whose convictions became final before that date had one year-until April 24, 1997 — to file. See Ross v. Artuz, 150 F.3d 97," } ]

[ { "docid": "17939352", "title": "", "text": "42 U.S.C. § 209(a)(2) (1982) which states in pertinent part, “[r]eserve commissions shall be terminated at any time, as the President may direct.” Thus, under the controlling statutes, residency training was only authorized for and available to federal employees. We conclude that the training was an incident of employment, since a resident’s status as a trainee was clearly secondary to and dependent upon his or her status as an employee. Once appellants’ employment was properly terminated, their right to receive training was concomitantly terminated. Cf. Zucker v. United States, 758 F.2d 637, 640 (Fed.Cir.1985) (for federal workers serving by appointment, rights are a matter of legal status so that entitlement to benefits must be determined by reference to the statute and regulations governing the benefits). Appellants’ argument that their rights as trainees preceded (and, therefore, exceeded) their rights as employees is contrary to the well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government. Hayman v. United States, 590 F.2d 344, 218 Ct.Cl. 729 (1978); Urbina v. United States, 428 F.2d 1280, 192 Ct.Cl. 875 (1970); cf. United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976) (the United States may employ individuals by contract rather than by appointment, where provided for by regulation). In Shaw v. United States, 640 F.2d 1254, 226 Ct.Cl. 240 (1981), the court said that the law is well settled that, “public employment does not, * * * give rise to a contractual relationship in the conventional sense.” Therefore, plaintiff may not base his theory of recovery on contract law since he was a federal employee. Federal officials who by act or word generate expectations in the persons they employ, and then disappoint them, do not ipso facto create a contract liability running from the Federal Government to the employee, as they might if the employer were not the government. Id. at 1260 (citations omitted). The application for appointment as a reserve officer is prepared contemporaneously with the application for training. Both" } ]

[ { "docid": "10885572", "title": "", "text": "complaint and its attached exhibits the precise terms of the alleged contract, but the Court presumes that the alleged contract generally involved an exchange of promises to perform services, with Mr. Jackson and the Department of Veterans Affairs each promising to carry out those tasks described on Exhibit 9 to the complaint, the Department of Veterans Affairs Rehabilitation Plan. Thus, Mr. Jackson promised to, inter alia, “[successfully secure admission to the University] of Florida” and “[successfully complete one academic year of training,” while the Department of Veterans Affairs promised to provide “supportive counseling services,” as well as “[required tuition, fees, [and] textbooks.” Complaint, Ex. 9. Given the exchange of promises described above, it is understandable that Mr. Jackson characterizes the relationship between the Department of Veterans Affairs and himself as contractual. But “[t]he contract liability which is enforceable under the Tucker Act consent to suit does not extend to every agreement, understanding, or compact which can semantically be stated in terms of offer and acceptance or meeting of minds.” Kania v. United States, 227 Ct.Cl. 458, 650 F.2d 264, 268 (Ct.Cl.1981). While the exchange of promises in Exhibit 9 to the complaint might give rise to an enforceable contractual relationship if both parties to the agreement were private citizens, “courts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel.” Adams v. United States, 391 F.3d 1212, 1221 (Fed.Cir.2004). Instead of a contractual relationship, the relationship between Mr. Jackson and the Department of Veterans Affairs is based on Mr. Jackson’s status under the law: Mr. Jackson is a veteran seeking benefits he alleges are owed to him by the Department of Veterans Affairs because of his status as a veteran. Congress has enacted a comprehensive statutory scheme spelling out the administrative and judicial processes that must be followed in order to obtain review of decisions by the Department of Veterans Affairs. As discussed above, under 38 U.S.C. § 511, “[t]he Secretary [of Veterans Affairs] shall decide all questions of law and" }, { "docid": "22232325", "title": "", "text": "Ct.Cl. 395, 400 (1933) (“Retirement pay and compensation for injuries received in line of duty, like pensions are bounties of the Government, which Congress has the right to give, withhold, distribute, or recall, at its discretion.”) (citations and internal quotation marks omitted). [federal employees’] entitlement to retirement benefits must be determined by reference to the statute and regulations governing these benefits, rather than to ordinary contract principles. [And] [a]pplying th[is] doctrine ... courts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel. In addition, Congress could hardly have intended a contract regime for military health benefits because that would have been inconsistent with the entire system for compensating all federal employees. Federal employees, both military and civilian, serve by appointment, not contract, and their rights to compensation are a matter of “legal status” even where recruitment agreements are made. See Zucker, 758 F.2d at 640; see also Chu v. United States, 773 F.2d 1226, 1227-28 (Fed.Cir.1985) (discussing the plight of Ke-serve Officers in the Commissioned Corps of the Public Health Service who alleged a breach of contract by the government of its agreement to provide residency training at its expense and stating “[it is a] well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government”). “In other words, [federal employees’] entitlement to retirement benefits must be determined by reference to the statute and regulations governing these benefits rather than to ordinary contract principles.” Zucker, 758 F.2d at 640. This logically follows from the well-established principle that “public employment does not, * * * give rise to a contractual relationship in the conventional sense.” Therefore, plaintiff may not base his theory of recovery on contract law since he was a federal employee. Federal officials who by act or word generate expectations in the persons they employ, and then disappoint them, do not ipso facto create a contract liability running from the Federal" }, { "docid": "11040051", "title": "", "text": "954, 47 L.Ed.2d 114 (1976). CFG Hamlet III, slip op. at 4-6. The Court of Federal Claims then sua sponte examined its jurisdiction over Hamlet’s cause of action and concluded that jurisdiction was lacking under the Tucker Act. Id. at 6-8. II This court reviews de novo a dismissal by the Court of Federal Claims for lack of subject matter jurisdiction. Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.1992). “The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). In order to invoke jurisdiction under the Tucker Act, a plaintiff must point to a substantive right to money damages against the United States. Id. Hamlet’s complaint contained three counts, each alleging a substantive right to compensation from the United States: (1) a breach of contract claim; (2) a violation of agency regulation claim; and (3) a claim that her removal violated her constitutional rights. After examining each of these counts in turn, we. conclude that the Court of Federal Claims lacked jurisdiction to hear each respective count under the Tucker Act. Ill This court has stated that there is a “well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985). In earlier proceedings in this case, we noted that, under the Tucker Act, “if Hamlet’s employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” CAFC Hamlet I, 873 F.2d at 1417 n. 5 (citing Hopkins, 427 U.S. at 128, 96 S.Ct. at 2511-12; Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 738,102 S.Ct. 2118, 2124, 72 L.Ed.2d 520 (1982)). In Sheehan, the Supreme Court examined the record and the relevant agency regulations and concluded that the respondent in that case was employed by appointment, rather than by contract," }, { "docid": "14063391", "title": "", "text": "their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.’ ” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985)). In other words, there is a “presumption that federal employees hold their positions pursuant to appointment! ] rather than by contract.” Collier, 56 Fed.Cl. at 357. Here, the relevant statutory language does not rebut the presumption of appointment. Section 111(d) of the ATSA provides that, with regard to screener personnel: Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed. Note following 49 U.S.C. § 44935 (emphasis added). The government disputes that this statute is applicable, citing instead to 49 U.S.C. § 323(a), which empowers the Secretary of Transportation to “appoint and fix the pay of officers and employees of the Department of Transportation” and to “prescribe their duties and powers.” The government claims that while TSA was part of the Department of Transportation, its hiring powers must have been derived from 49 U.S.C. § 323(a). Def.’s Mot. at 9; Def.’s Reply at 3-4. This argument ignores the language of Section 111(d) of the ATSA, which is applicable “[njotwithstanding any other provision of law.” The Federal Circuit recently held that “[t]he language ‘notwithstanding any other provision of lav/ signals that this screenerspeeific provision is to override more general, conflicting statutory provisions to the extent that they would apply to sereeners.” Co nyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1382 (Fed.Cir.2004). Moreover, it is a fundamental principle of statutory construction that specific statutes govern over general statutes. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Section" }, { "docid": "12530879", "title": "", "text": "“founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491 (2000). The jurisdiction of the Court of Federal Claims under the Tucker Act is “limited to actual, presently due money damages from the United States.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)). Thus, jurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act itself. Id. Appellants argue that the FAA’s alleged breach of the CBA and MOU with the Union supplies those substantive rights for money damages against the United States. Appellants are not, however, parties to either the CBA or the MOU. Consequently, appellants do not have a contract with the United States and cannot base a claim for money damages against the United States on a contract to which they are not a party. See Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (“[TJhere is a ‘well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.’ ”); accord Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). Appellants initiated suit in the United States Court of Federal Claims to enforce the CBA as third party beneficiaries. The CBA, however, includes its own enforcement provisions. Specifically, the CBA requires grievance procedures for all disputes under that contract. Appellant's have not invoked those grievance procedures. Thus, appellants, in essence, seek to gain the benefit of the CBA, and at the same time, to circumvent the exclusive grievance procedures of the contract. Ironically, the exclusive grievance procedures of the CBA preclude any party from challenging the CBA in the Court of Federal Claims, thereby providing an additional reason" }, { "docid": "6066337", "title": "", "text": "money and cannot form the basis of this Court’s Tucker Act jurisdiction. White Mountain, 537 U.S. at 472-73, 123 S.Ct. 1126; Fisher, 402 F.3d at 1174; cf. District of Columbia v. United States, 67 Fed.Cl. 292, 305 (2005) (finding Transfer Act’s “is direeted-to-pay” language to be money-mandating). Breach of Contract In the alternative, Plaintiff claims this Court has jurisdiction over this action because GSA breached a three-year employment contract with him. Plaintiffs Opposition to Defendant’s Motion to Dismiss (Pl. Opp.) at 11. However, there is a “well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir.1985)); see also Bigler v. United States, 230 Ct.Cl. 985, 986, 1982 WL 25297 (1982) (“public employment is presumptively not by contract; it is instead accomplished by appointment and controlled by statute, regulation, and Executive Order” (citations omitted)). As the Federal Circuit explained in Hamlet: [Ujnder the Tucker Act, “if Hamlet’s employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” CAFC Hamlet I, 873 F.2d at 1417 n. 5 (citing Hopkins, 427 U.S. at 128, 96 S.Ct. at 2511-12; Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 738, 102 S.Ct. 2118, 72 L.Ed.2d 520 ... (1982)). In Sheehan, the Supreme Court examined the record and the relevant agency regulations and concluded that the respondent in that case was employed by appointment, rather than by contract, and, thus, the Tucker Act did not confer jurisdiction over the respondent’s contract claim against the United States for money damages. Sheehan, 456 U.S. at 735-37, 102 S.Ct. 2118. 63 F.3d at 1101. Here, as in Sheehan, Plaintiff is employed by appointment, not contract, as he is admittedly an appointed employee of GSA. The agency’s October 16, 1997 letter to Plaintiff states “[tjhis letter is to confirm your appointment to be effective November 9, 1997.” Appendix to PI. Opp. (Pl.App.) at 2." }, { "docid": "8433630", "title": "", "text": "not indicate what sham administrative proceeding was conducted, when or where it was held, or how it violated his due process rights. Such vague, cryptic allegations do not articulate a claim for which relief can be granted. As such, this claim is dismissed pursuant to RCFC 12(b)(6). Breach of Contract: Government as Guarantor Plaintiff also seeks to recover against the government as a guarantor of Plaintiffs federal retirement benefits. Plaintiff alleges: Petitioner was disabled and discharged prior to 20 years of service and this effects [sic] Petitioner’s ability to qualify for Federal Retirement, prior to age 65, from the Federal Government, whom is a guarantor of Petitioner’s benefits for Federal Retirement. Compl. H 41. Plaintiff has cited no statute which purports to make the government a guarantor of his retirement benefits and his claim appears to sound in contract. However, “[t]he law is well settled that, ‘public employment does not ... give rise to a contractual relationship in the conventional sense.’ ” Shaw v. United States, 226 Ct.Cl. 240, 640 F.2d 1254, 1260 (1981) (quoting Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280, 1284 (1970)). Specifically, “common-law rules governing private contracts have no place in the area of military pay. A soldier’s entitlement to pay is dependent upon statutory right.” Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961). As this Court recently recognized in Doe v. United States, 74 Fed.Cl. 592, 596 (2007): Federal employees ... serve by appointment, not contract, and their rights to compensation are a matter of ‘legal status.’ Schism v. United States, 316 F.3d 1259, 1275 (Fed.Cir.2002). ‘[A]bsent specific legislation, federal employees derive the benefits and emoluments of their position from appointment rather than from any contractual or quasi-contraetual relationship with the government.’ Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985)); see also Hamlet v. United States, 63 F.3d 1097, 1101-02 (Fed.Cir.1995); Zhengxing v. United States, 71 Fed.Cl. 732, 739 (2006), aff'd, No.06-5098, 2006 U.S.App. LEXIS 27891 (Fed.Cir. Nov. 8, 2006). 74 Fed.Cl. 592, 596. Because" }, { "docid": "6066336", "title": "", "text": "of Congress and other inferences that we may rationally draw from the structure and purpose of the statute at hand. Id. at 593 (citations omitted). Here, the structure and purpose of the statute confirm the discretionary nature of a waiver decision. The only statutory limitations on the agency official’s discretion are prohibitions against granting a waiver — “if, in his opinion, there exists ... an indication of fraud, misrepresentation, fault or lack of good faith on the part of the employee ... having an interest in obtaining a waiver ...” 5 U.S.C. § 5584(b)(1). Thus, rather than commanding the official to pay money, the statute prohibits the official from forgiving a debt if any enumerated conditions have been met “in his opinion.” If those bars to waiver — fraud, misrepresentation, fault or lack of good faith — are not present, the statute does not mandate waiver of the debt — waiver is a matter left to the discretion of the official. As such, 5 U.S.C. § 5584 cannot be fairly interpreted as mandating payment of money and cannot form the basis of this Court’s Tucker Act jurisdiction. White Mountain, 537 U.S. at 472-73, 123 S.Ct. 1126; Fisher, 402 F.3d at 1174; cf. District of Columbia v. United States, 67 Fed.Cl. 292, 305 (2005) (finding Transfer Act’s “is direeted-to-pay” language to be money-mandating). Breach of Contract In the alternative, Plaintiff claims this Court has jurisdiction over this action because GSA breached a three-year employment contract with him. Plaintiffs Opposition to Defendant’s Motion to Dismiss (Pl. Opp.) at 11. However, there is a “well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir.1985)); see also Bigler v. United States, 230 Ct.Cl. 985, 986, 1982 WL 25297 (1982) (“public employment is presumptively not by contract; it is instead accomplished by appointment and controlled by statute, regulation, and Executive Order” (citations omitted)). As the Federal" }, { "docid": "2639215", "title": "", "text": "Sheehan, 456 U.S. 728, 739-41, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982) (denying Tucker Act jurisdiction over appointed Army employee’s breach of contract claim for wrongful discharge); United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976) (holding that Tucker Act confers no jurisdiction over appointed civilian Army employee’s claim for breach of employment contract); Hedman, 15 Cl.Ct. at 315-16 (denying Tucker Act jurisdiction over appointed federal employee’s breach of contract claim for wrongful discharge). Where a federal employee holds his position by virtue of appointment, any entitlement to allowances must be based solely on the applicable statutes and regulations, and those statutes and regulations (or promises that they will be followed) do not give rise to an implied-in-fact contract. See Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (“[A]bsent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.”); Zucker v. United States, 758 F.2d 637, 640 (Fed.Cir.1985) (“[Fjederal workers serve by appointment, and their rights are therefore a matter of ‘legal status’ even where compacts are made.”). In this case, plaintiff attempts to do precisely what the courts in the above cited cases were unwilling to permit — namely, to fashion an implied-in-fact contract from the underlying regulations and a government of ficial’s promise to abide by those regulations. Plaintiff asserts that because his assignment was not managed with the objective of preventing undue hardship, “[t]he contract implied by the statute and regulations was breached, and [plaintiff] is entitled to relief.” (Pl. Ans. to Interrog. No. 2 (emphasis added).) Similarly, plaintiff notes that “Mr. Boston’s superior, Mr. Bennett told Mr. Boston that TRAC-WSMR would ensure that his overseas allowances were set at proper levels.” (Pl. Response at 7.) From this statement plaintiff concludes that “Mr. Boston had an agreement with Mr. Bennett, the same agreement required by the regulations, and the Government breached it.” (Id. at 8 (emphasis added).) As the Court of Claims explained in Shaw v. United States, 226 Ct. Cl. 240, 640 F.2d 1254 (1981)," }, { "docid": "2639214", "title": "", "text": "the foreign exchange. In addressing a jurisdictional question, such as the question presented by this case, the Court accepts as true all undisputed facts alleged by the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). Where the truth of jurisdictional facts alleged in the complaint are challenged, however, the Court may consider relevant evidence to resolve that dispute. See Reynolds, 846 F.2d at 747; Hedman v. United States, 15 Cl.Ct. 304, 306 (1988), aff'd, 915 F.2d 1552 (Fed.Cir.1990). In this case, whether plaintiff was employed by TRAC-WSMR pursuant to appointment or an employment contract raises such a jurisdictional issue for the Court to decide. A. Jurisdiction Based on Implied-in-Fact Contract Although this Court generally possesses subject matter jurisdiction over contracts implied-in-fact, such is not the case for claims asserted by federal employees who are employed pursuant to appointment, rather than by virtue of an employment contract. See Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 739-41, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982) (denying Tucker Act jurisdiction over appointed Army employee’s breach of contract claim for wrongful discharge); United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976) (holding that Tucker Act confers no jurisdiction over appointed civilian Army employee’s claim for breach of employment contract); Hedman, 15 Cl.Ct. at 315-16 (denying Tucker Act jurisdiction over appointed federal employee’s breach of contract claim for wrongful discharge). Where a federal employee holds his position by virtue of appointment, any entitlement to allowances must be based solely on the applicable statutes and regulations, and those statutes and regulations (or promises that they will be followed) do not give rise to an implied-in-fact contract. See Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (“[A]bsent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.”); Zucker v. United States, 758 F.2d 637, 640 (Fed.Cir.1985) (“[Fjederal workers serve by appointment, and" }, { "docid": "8433631", "title": "", "text": "Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280, 1284 (1970)). Specifically, “common-law rules governing private contracts have no place in the area of military pay. A soldier’s entitlement to pay is dependent upon statutory right.” Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961). As this Court recently recognized in Doe v. United States, 74 Fed.Cl. 592, 596 (2007): Federal employees ... serve by appointment, not contract, and their rights to compensation are a matter of ‘legal status.’ Schism v. United States, 316 F.3d 1259, 1275 (Fed.Cir.2002). ‘[A]bsent specific legislation, federal employees derive the benefits and emoluments of their position from appointment rather than from any contractual or quasi-contraetual relationship with the government.’ Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985)); see also Hamlet v. United States, 63 F.3d 1097, 1101-02 (Fed.Cir.1995); Zhengxing v. United States, 71 Fed.Cl. 732, 739 (2006), aff'd, No.06-5098, 2006 U.S.App. LEXIS 27891 (Fed.Cir. Nov. 8, 2006). 74 Fed.Cl. 592, 596. Because a contractual relationship does not exist between a service-member and the government with respect to retirement benefits, Plaintiffs complaint fails to state a claim for breach of contract. Due Process Plaintiff contends that the denial of benefits by the Los Angeles Regional Office of the VA is a violation of his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Compl. H 42. The Tucker Act, 28 U.S.C. § 1491, confers jurisdiction upon the United States Court of Federal Claims over cases in which a plaintiff has a claim against the United States for money damages. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc) (“[A] plaintiff must identify a separate source of substantive law that creates the right to money damages,” i.e., a source which is “money-mandating.”). It is well established that a violation of the due process clause of the Constitution does not obligate the United States to pay money damages. Mullenberg v. United States, 857 F.2d 770, 773 (Fed.Cir.1988). See also Le-Blanc v. United" }, { "docid": "11040052", "title": "", "text": "violated her constitutional rights. After examining each of these counts in turn, we. conclude that the Court of Federal Claims lacked jurisdiction to hear each respective count under the Tucker Act. Ill This court has stated that there is a “well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985). In earlier proceedings in this case, we noted that, under the Tucker Act, “if Hamlet’s employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” CAFC Hamlet I, 873 F.2d at 1417 n. 5 (citing Hopkins, 427 U.S. at 128, 96 S.Ct. at 2511-12; Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 738,102 S.Ct. 2118, 2124, 72 L.Ed.2d 520 (1982)). In Sheehan, the Supreme Court examined the record and the relevant agency regulations and concluded that the respondent in that case was employed by appointment, rather than by contract, and, thus, the Tucker Act did not confer jurisdiction over the respondent’s contract claim against the United States for money damages. Sheehan, 456 U.S. at 735-37, 102 S.Ct. at 2122-24. Hamlet argues that the 22-PM Manual constitutes a binding employment contract and that the Government’s breach of this contract entitles her to money damages against the United States and establishes jurisdiction under the Tucker Act. We must reject this contention. Under the provisions of the 22-PM Manual, all ASCS county employees are employed by appointment. Paragraph 95(A) of the 22-PM Manual states that “[permanent appointments shall be used for the employment of FULL-TIME or PART-TIME employees who are expected to work more than one year.” In fact, the 22-PM Manual only mentions employment by contract in one provision (¶ 91), which states that ASCS county offices should “obtain professional janitorial services through contract.” Such distinction between contract service employees and other employees strongly suggests that Hamlet and other non-janitorial employees of the ASCS county offices are employed by appointment, not by contract. See, e.g., Hopkins," }, { "docid": "21216404", "title": "", "text": "with jurisdiction to hear their breach of contract claim. The Tucker Act grants the Court of Federal Claims jurisdiction to hear claims based “upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). Relying on the federal policy favoring “labor organizations and collective bargaining in the civil service,” 5 U.S.C. § 7101, the appellants argue that the Court of Federal Claims has jurisdiction to hear their breach of contract claim because they are covered by the National Agreement, a contract between the government and the American Federation of Government Employees. We reject that argument because, although the Agreement grants certain rights to SSA employees, Article 24 provides a grievance procedure that “is the exclusive procedure available to bargaining unit employees, the Union or the Administration for the resolution of grievances.” Therefore, any rights granted to SSA employees by the Agreement that are subject to the grievance procedure are not rights that an employee can enforce by suit in the Court of Federal Claims. See Todd v. United States, 386 F.3d 1091, 1094-95 (Fed.Cir.2004) (holding that the Court of Federal Claims lacked jurisdiction to hear a Federal Aviation Administration employee’s breach of contract claim based on a collective bargaining agreement). To the extent that the appellants seek to enforce their employment rights under the FLSA or Title 5 through a breach of contract claim, the Court of Federal Claims correctly dismissed that claim for lack of subject matter jurisdiction because, as federal employees, the appellants “derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985); accord Adams v. United States, 391 F.3d 1212, 1221 (Fed.Cir.2004); Collier v. United States, 379 F.3d 1330, 1331 (Fed.Cir.2004); Schism v. United States, 316 F.3d 1259, 1274-75 (Fed.Cir.2002) (en banc); Hamlet v. United States, 63 F.3d 1097, 1102 (Fed.Cir.1995); Zucker v. United States, 758 F.2d 637, 640 (Fed.Cir.1985). The appellants do not dispute that their employment is by appointment. Instead, they argue that in Mudge v. United States, 308 F.3d 1220 (Fed.Cir.2002)," }, { "docid": "15086522", "title": "", "text": "the Postal Service as a partial replacement of the traditional civil service merit system. See 116 Cong.Rec. 20,229-30 (1970) (statements of Reps. Udall and Olsen). This new system was intended to provide Postal Service employees greater opportunities for career development and advancement because of the new right to bargain collectively for benefits. Id. at 20,203 (Rep. Brasco). In conjunction with its decision to incorporate collective bargaining into the Postal Service labor relations scheme, Congress expressly permitted employees to sue the Postal Service in federal district court for claims based upon the union contract when the union is alleged to have failed to protect the employee’s rights. See 39 U.S.C. § 1208 (1982); Trent v. Bolger, 837 F.2d 657, 657-59 (4th Cir.1988). Congress did not, however, authorize such claims to be brought in the Claims Court. Nor is there any indication that in developing this postal employee labor relations system, Congress intended to depart from the “well-established principle that, absent specific legislation, federal em-. ployees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985); see Kania v. United States, 650 F.2d 264, 267-68, 227 Ct.Cl. 458, cert. denied, 454 U.S. 895, 102 S.Ct. 393, 70 L.Ed.2d 210 (1981). Indeed, although the Postal Service is now an independent establishment of the executive branch and not an executive agency, the legislative history makes clear that Postal Service employees are government employees and states that “[t]he Postal Service may appoint ... employees.” H.R.Rep. No. 1104, 91st Cong., 2d Sess. 9-10 (emphasis added), reprinted in 1970 U.S.Code Cong. & Admin.News 3658. In neither the PRA nor its legislative history is there any indication that Congress intended that claims based on Postal Service collective bargaining agreements may be brought in the Claims Court. Indeed, by specifying suit by Postal employees in district court, 39 U.S.C. § 1208 (1982), Congress could be said to intend to preclude suit in the Claims Court, particularly when it has generally not authorized litigation of government labor contract claims in" }, { "docid": "7369385", "title": "", "text": "BPA at issue stated that the agency was obligated “only to the extent of individual authorized orders actually placed under this agreement.” Id. Therefore, “only accepted orders would create an contractual obligation.” Id. Similarly, in this case, Plaintiffs BPA states that “[t]he Agency shall be obligated only to the extent of authorized call orders actually placed under this agreement.” Compl., Att. 2. As such, Plaintiffs BPA lacks the mutual intent required to form a binding contract. Because Plaintiffs BPA was not a contract, there is no factual or legal predicate establishing jurisdiction under the CDA. As the Armed Services Board of Contract Appeals recognized in Julian Freeman, No. 46675, 94-3 BCA at 135,906, the Board lacked jurisdiction over a claim involving a BPA because “a BPA is not considered to be a contract because it lacks mutuality of consideration.” Id. at 135,907 (citations omitted). In sum, the CDA does not confer jurisdiction on this Court because the BPA is not an express contract. Nor is there an implied-in-fact contract obligating the Government to continue issuing POs to Plaintiff. Rather, here as in Julian Freeman, the BPA “unambiguously limit[ed] the Government’s obligation to purchases actually made.” 94-3 BCA at 135,907. Plaintiff further asserts that Defendant breached an implied oral contract to provide her with a television host position. To the extent that Plaintiff claims Mr. ling’s promise of the television host position was a promise for a full-time employment contract, such claim fails as a matter of law. “Absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationships with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (citations omitted); see also Collier v. United States, 379 F.3d 1330, 1331 (Fed.Cir.2004) (“Civil Service employees hold their positions by appointment, not contract.”). To the extent Plaintiff claims that the television host position should have been issued to her as a POV position covered by the BPA, that claim would also fail because the Government only obligates itself to the extent of actual purchase orders issued and performed." }, { "docid": "7369386", "title": "", "text": "POs to Plaintiff. Rather, here as in Julian Freeman, the BPA “unambiguously limit[ed] the Government’s obligation to purchases actually made.” 94-3 BCA at 135,907. Plaintiff further asserts that Defendant breached an implied oral contract to provide her with a television host position. To the extent that Plaintiff claims Mr. ling’s promise of the television host position was a promise for a full-time employment contract, such claim fails as a matter of law. “Absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationships with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (citations omitted); see also Collier v. United States, 379 F.3d 1330, 1331 (Fed.Cir.2004) (“Civil Service employees hold their positions by appointment, not contract.”). To the extent Plaintiff claims that the television host position should have been issued to her as a POV position covered by the BPA, that claim would also fail because the Government only obligates itself to the extent of actual purchase orders issued and performed. See Freeman, 94-3 BCA at 135,-907 (holding that when contractor seeks payment for services never ordered under a BPA, “the Government has no obligation to appellant and no contract exists under which appellant can pursue his claim”). Criminal Accusations and Tort Claims Plaintiffs consolidated complaints and motions for special damages allege several crimes and tortious activities. Plaintiff claims that “Defendant” has attempted to poison her and her family, has conducted illegal surveillance on her, has broken into her home and stolen evidence, and has been involved in a conspiracy hit-and-run. The United States Court of Federal Claims has “no jurisdiction to adjudicate any claims whatsoever under the federal criminal code.” Joshua v. United States, 17 F.3d 378, 379 (Fed.Cir.1994). The Court also does not have jurisdiction to hear claims against the United States for damages arising in tort. 28 U.S.C. § 1491(a)(1) (2000); see also Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997) (dismissing claim grounded upon fraud); Pratt v. United States, 50 Fed.Cl. 469, 482 (2001) (“The court lacks jurisdiction to award plaintiffs" }, { "docid": "22232326", "title": "", "text": "(Fed.Cir.1985) (discussing the plight of Ke-serve Officers in the Commissioned Corps of the Public Health Service who alleged a breach of contract by the government of its agreement to provide residency training at its expense and stating “[it is a] well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government”). “In other words, [federal employees’] entitlement to retirement benefits must be determined by reference to the statute and regulations governing these benefits rather than to ordinary contract principles.” Zucker, 758 F.2d at 640. This logically follows from the well-established principle that “public employment does not, * * * give rise to a contractual relationship in the conventional sense.” Therefore, plaintiff may not base his theory of recovery on contract law since he was a federal employee. Federal officials who by act or word generate expectations in the persons they employ, and then disappoint them, do not ipso facto create a contract liability running from the Federal Government to the employee, as they might if the employer were not the government. Shaw v. United States, 226 Ct.Cl. 240, 640 F.2d 1254, 1260 (1981) (citations omitted). Adhering to our own long-standing precedent and clear guidance from Supreme Court decisions, then, the plaintiffs’ claim for breach of an implied-in-fact contract for retirement health benefits is defeated by the principle that statutes govern entitlement to these benefits, not any contracts between the recruit and the government. C Cases Finding an Enforceable Contract Between the Service and a Recruit, e.g., a Promise for Specific Military Training, Are Inapplicable to Retirement Health Care Entitlements While the Supreme Court has made clear that “common-law rules governing private contracts have no place in the area of military pay,” Bell, 366 U.S at 401, 81 S.Ct. 1230, our predecessor court enforced contract claims based on enlistment agreements specifying non-pay benefits promised in writing to recruits. See, e.g., Grulke v. United States, 228 Ct.Cl. 720 (1981); DeCrane v. United States, 231 Ct.Cl. 951 (1982). In these cases, the recruits alleged that" }, { "docid": "12530880", "title": "", "text": "United States and cannot base a claim for money damages against the United States on a contract to which they are not a party. See Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (“[TJhere is a ‘well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.’ ”); accord Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). Appellants initiated suit in the United States Court of Federal Claims to enforce the CBA as third party beneficiaries. The CBA, however, includes its own enforcement provisions. Specifically, the CBA requires grievance procedures for all disputes under that contract. Appellant's have not invoked those grievance procedures. Thus, appellants, in essence, seek to gain the benefit of the CBA, and at the same time, to circumvent the exclusive grievance procedures of the contract. Ironically, the exclusive grievance procedures of the CBA preclude any party from challenging the CBA in the Court of Federal Claims, thereby providing an additional reason that the Court of Federal Claims lacks jurisdiction. See, e.g., Chin v. United States, 890 F.2d 1143, 1144-47 (Fed.Cir.1989); Harris v. United States, 841 F.2d 1097, 1098-1100 (Fed.Cir.1988); Rinner v. United States, 50 Fed. Cl. 333, 335-36 (2001); Hayes v. United States, 20 Cl.Ct. 150, 151, 156 (1990) (interpreting Chin and Harris). Even assuming that a third party beneficiary could enforce the CBA and MOU in the Court of Federal Claims, appellants cannot establish jurisdiction under the Tucker Act for a claim for money damages against the United States. Appellants essentially seek to use the CBA or the MOU as leverage to obtain a reclassification of the Albuquerque Center to an ATC-11 facility. Absent a prior reclassification, however, appellants have no claim for back pay. In other words, appellants cannot show any entitlement to an increased salary until the Albuquerque Center qualifies as an ATC-11 facility. Even if the Albuquerque Center would becomes an ATC-11 facility, appellants would have no claim for back pay because they would not be eligible for an increase in salary" }, { "docid": "21216405", "title": "", "text": "1094-95 (Fed.Cir.2004) (holding that the Court of Federal Claims lacked jurisdiction to hear a Federal Aviation Administration employee’s breach of contract claim based on a collective bargaining agreement). To the extent that the appellants seek to enforce their employment rights under the FLSA or Title 5 through a breach of contract claim, the Court of Federal Claims correctly dismissed that claim for lack of subject matter jurisdiction because, as federal employees, the appellants “derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985); accord Adams v. United States, 391 F.3d 1212, 1221 (Fed.Cir.2004); Collier v. United States, 379 F.3d 1330, 1331 (Fed.Cir.2004); Schism v. United States, 316 F.3d 1259, 1274-75 (Fed.Cir.2002) (en banc); Hamlet v. United States, 63 F.3d 1097, 1102 (Fed.Cir.1995); Zucker v. United States, 758 F.2d 637, 640 (Fed.Cir.1985). The appellants do not dispute that their employment is by appointment. Instead, they argue that in Mudge v. United States, 308 F.3d 1220 (Fed.Cir.2002), and O’Con-nor v. United States, 308 F.3d 1233 (Fed.Cir.2002), we held that the Court of Federal Claims has jurisdiction over claims arising under the provisions of collective bargaining agreements. Neither of those cases, however, involved breach of contract claims. Rather, the plaintiffs in both cases sought adjudication of claims based on the FLSA. We held that those claims were not barred by the CSRA because the 1994 amendments to the CSRA established a federal employee’s right to seek a judicial remedy for statutory claims even if those claims could also be raised as grievances subject to the negotiated procedures in the applicable collective bargaining agreement. Mudge, 308 F.3d at 1227; O’Connor, 308 F.3d at 1239-40. Before it was amended in 1994, the CSRA provided that a collective bargaining agreement’s grievance procedures would “be the exclusive procedures for resolving grievances which fall within its coverage.” 5 U.S.C. § 7121(a)(1) (1988). Based on that language, we held in Carter v. Gibbs, 909 F.2d 1452, 1458 (Fed.Cir.1990) (en banc), that federal employees subject to a collective bargaining agreement" }, { "docid": "14063390", "title": "", "text": "goods and services, and ease remanded for consideration of whether claimant was employed by contract or by appointment); see also Boston v. United States, 43 Fed.Cl. 220, 226 (1999) (“if plaintiff was employed by virtue of an appointment, rather than by virtue of an employment contract, this Court lacks jurisdiction under the Tucker Act”). While the Supreme Court has not explicitly held that employment by appointment and by contract are mutually exclusive, its reasoning implies such a principle, and courts have interpreted Sheehan and like precedents to require mutual exclusivity. See, e.g., Collier v. United States, 56 Fed.Cl. 354, 356-57 (2003). The question of whether a government employee is serving by contract or appointment depends upon the “relevant statutory language and regulations and the language of the hiring documents.” See American Fed’n of Gov’t Employees Local 1 v. Stone, 342 F.Supp.2d 619, 625 (N.D.Tex. 2004) (citing Hopkins, 427 U.S. at 127-30, 96 S.Ct. 2508). In analyzing these circumstances, “there is a ‘well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.’ ” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985)). In other words, there is a “presumption that federal employees hold their positions pursuant to appointment! ] rather than by contract.” Collier, 56 Fed.Cl. at 357. Here, the relevant statutory language does not rebut the presumption of appointment. Section 111(d) of the ATSA provides that, with regard to screener personnel: Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed. Note following 49 U.S.C. § 44935 (emphasis added). The government disputes that" } ]

[ { "docid": "4451973", "title": "", "text": "ship’s side of the rail about six feet of excess ladder was laid flat on a walking and working area of the deck. Denny claimed that after vaulting the rail his right foot landed on one of the ladder’s rungs, which turned causing him to injure his right ankle. While finding that the method used by Denny to vault the rail was one method commonly used by longshoremen of the port, the court also found that two other methods commonly used were more prudent. The court concluded that the position of the excess ladder on the ship’s deck violated a safety regulation for long-shoring promulgated by the Department of Labor, Safety and Health Regulations for Longshoring 29 C.F.R. § 1504.91(a), pursuant to the Longshoremen’s and Harbor Worker’s Compensation Act, 33 U.S.C.A. § 901 et seq. There was thus a finding of unseaworthiness that is undisputed here. Nevertheless, the court dismissed the claim on the ground that Denny’s negligence, not the vessel’s unseaworthiness, was the sole and proximate cause of the injury. In Manning v. M/V Sea Road, 5 Cir. 1969, 417 F.2d 603, we held that a violation of a safety regulation was a cause of a longshoremen’s injury because the injury could not have occurred without the breach of the regulation. This was found to be so regardless of the presence or absence of other considerations which might affect the degree of fault. See United N. Y. & N. J. Sandy Hook Pilots Ass’n v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541; Socony-Vacu-um Oil Company v. Smith, 1939, 305 U. S. 424, 59 S.Ct. 262, 83 L.Ed. 265. The trial court distinguished Manning from the facts of this case by finding that Manning was intended only to prevent the imposition of the entire loss on the longshoreman where there was a flagrant violation of a safety regulation, not where there was, as here, what it termed a technical violation. We do not read Manning with such myopic vision. These regulations were meant to eliminate “the risk of injury to all longshoremen, not just longshoremen who" } ]

[ { "docid": "16420121", "title": "", "text": "Stat. 1444; 33 U.S.C. 941) requires, among other things, that every employer of the aforementioned employees ‘shall install, furnish, maintain, and use such devises and safeguards with particular reference to equipment used by and working conditions established by such employers as the Secretary may determine by regulation or order to be reasonably necessary to protect the life, health, and safety of such employees, and to render safe such employment and places of employment, and to prevent injury to his employees.’ It is the purpose of the regulations of this part to carry out the intent of Public Law 85-742.” (Emphasis added.) The regulations are not intended to protect stevedores on United States ships from the actions of United States shipowners. Cf. Arthur v. Flota Mercante Gran Centro Americana, S.A., 487 F.2d 561, 563-64 (5th Cir. 1973). III. Having determined that violation of an OSHA regulation cannot establish the United States’ negligence per se here, the Court must consider whether under the circumstances the shipowner was negligent. In Ramirez v. Toko Kaiun K.K., 385 F.Supp. 644 (N.D.Cal.1974), this Court determined that the standard of care owed by a shipowner to the longshoremen working the vessel’s cargo requires that the owner “ * * * (1) exercise ordinary care to place the ship and equipment in such condition that an experienced stevedore will be able, when exercising ordinary care, to discharge the cargo in a workmanlike manner and with reasonable feafety to persons and property, and (2) give the stevedore warning of any concealed or latent defects that are known by the shipowner.” Id. at 646. In Gallardo v. Westfal-Larsen & Co. A/S, 435 F.Supp. 484 (N.D.Cal.1977), a companion decision rendered shortly before the present opinion, this Court adopts an expanded version of the Ramirez standard which more accurately applies traditional negligence principles in deciding the scope of the shipowner’s duty. According to the Gallardo standard: “Before the commencement of stevedoring operations, the owner of a vessel in navigable waters has a duty to take reasonable remedial action with respect to all unreasonably dangerous conditions of which it has actual or constructive" }, { "docid": "1508371", "title": "", "text": "of at least 9,000 pounds. In Marshall v. Isthmian Lines, Inc., 5 Cir. 1964, 334 F.2d 131, 1964 AMC 1686, there was a violation of the Coast Guard regulations relating to the shipment of hazardous articles. There we said, [t]he law is well established that violations of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Inherent in this statement of the legal principal are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect the [plaintiffs]? Were they intended to protect against the risk of the kind of harm that occurred here . Id. at 134 (citations omitted); see Phipps v. S.S. Santa Maria, 5 Cir. 1971, 418 F.2d 615; Manning v. M/V Sea Road, 5 Cir. 1969, 417 F.2d 603; Grigsby v. Coastal Marine Serv. Inc., 5 Cir. 1969, 412 F.2d 1011, 1969 AMC 1513; Venable v. A/S Det Forenede Dampskibsselskab, 4 Cir. 1968, 399 F.2d 347, 1968 AMC 1437; Provenze v. American Export Lines, Inc., 4 Cir. 1963, 324 F.2d 660; Simmons v. Gulf and South American S.S. Co., (E.D.La.1966), 260 F.Supp. 525, aff’d, 5 Cir. 1968, 394 F.2d 504, 1968 AMC 1978. In the application of these requirements to Reyes, the shipowners have made no attempt to dispute the testimony of the Captain that the ship was in fact not equipped with the safety appliance required by the regulations. Since the testimony was undisputed, we accept the proof on non-compliance. Reyes passes the first test. Second, it is clear that Reyes was meant to be a beneficiary of the protective regulations. The purpose of the safety appliance is to rescue persons in distress. Whether they got in distress through their own carelessness or through the fault of another is irrelevant. A person in distress needs to be rescued. Indeed, so far as responding to the high calling" }, { "docid": "3191028", "title": "", "text": "this type of misconduct. This greatly simplifies our task, for fact, or fact-legal, conclusions induced by an erroneuos legal standard do not have the F.R.Civ.P. 52(a) clearly erroneous insulation. United States v. Singer Mfg. Co., 1963, 374 U.S. 174 (note 9, page 194), 83 S.Ct. 1773, 1784, 10 L.Ed.2d 823, 838; Fulton National Bank v. Tate, 5 Cir., 1966, 363 F.2d 562; Fromberg, Inc. v. Thornhill, 5 Cir., 1963, 315 F.2d 407; Davis v. Parkhill-Goodloe Co., 5 Cir., 1962, 302 F.2d 489; MacMullen v. South Carolina Elec. and Gas Co., 4 Cir., 1963, 312 F.2d 662, cert. denied 373 U.S. 912, 83 S.Ct. 1302, 10 L.Ed.2d 413. We must, therefore, examine what this record demands concerning the regulations, and the significance of any violation. There can be no doubt that the Regulations are applicable in a general sense. They bind all employers, such as shipowner here, of longshoring employees. And, promulgated by the Department of Labor with their genesis in the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., imposing stringent sanctions, civil and criminal, they are geared directly to the safety of men, safety of working conditions, elimination of hazards that have long made longshoring one of industry’s most crippling vocations. This brings into play Marshall v. Isthmian Lines, Inc., 5 Cir., 1964, 334 F.2d 131, 1964 A.M.C. 1686, which dealt with regulations issued by the Coast Guard under 46 U.S.C.A. § 170(7). The applicability and impact of regulations was summed up this way: “The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Pros-ser, Torts § 34, at 161 (2d ed. 1955); Restatement, Torts § 286 (1934). Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed * * * on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen? Were" }, { "docid": "22284680", "title": "", "text": "Even under the pre-1972 LHWCA, the general principle was that “liability for failure to comply with safety regulations should be imposed on the party exposing the injured employee to the dangerous condition.” Brock v. Coral Drilling, Inc., 477 F.2d 211, 215 (5th Cir. 1973). See also Burrage v. Flota Mercante Grancolombiana, 431 F.2d 1229 (5th Cir. 1970). . In Teofilovich v. D’Amico Mediterranean/Pacific Line, 415 F.Supp. 732 (C.D.Cal.1976), the court refused to apply Restatement (Second) of Torts §§ 413 & 416 (1965) to hold a shipowner vicariously liable for the negligence of the stevedore, holding that this “would do violence to the letter and policy of 33 U.S.C. § 905(b). . . . Congress specifically excluded a rule of vicarious liability, specifically excluded a rule of liability without fault and specifically excluded the concept of a non-delegable duty, all of which are the express and explicit result of section 416.” 415 F.Supp. at 734-36. See also Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092 (D.Md.1975); Anuszewski v. Dynamic Mariners Corp., 391 F.Supp. 1143, 1145 (D.Md.1975), aff'd, 540 F.2d 757 (4th Cir. 1976) (per curiam); Lucas v. “Brinknes” Schiffahrts Ges., 379 F.Supp. 759 (E.D.Pa.1974). We repeat at this point the admonition of the House Report that “nothing in this bill is intended to derogate from the vessel’s responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.” H.R.Rep. No. 1441, 92d Cong. 2d Sess., reprinted in [1972] U.S.Code Cong. & Ad.News pp. 4698, 4704. See also West v. United States, 361 U.S. 118, 123, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Marant v. Farrell Lines, Inc., No. 73-2615 (E.D.Pa. Jan. 15, 1976); Soisvik v. Maremar Compania Naviera, S.A., 399 F.Supp. 712 (W.D.Wash.1975); Frasca, 394 F.Supp. at 1098. It is uncontroverted here, however, that the vessel did not have either actual or constructive knowledge of the dangerous carbon monoxide level. . We have recently explained that in all tort cases, be they strict liability or ordinary negligence cases, causation must be established before recovery will be allowed. Higginbotham v. Mobil Oil Corp., 545 F.2d 422" }, { "docid": "6144265", "title": "", "text": "Although neither the 1972 amendments, nor the regulations here mentioned, were involved in Reyes v. Vantage S.S. Co., Inc., 558 F.2d 238 (CA5 1977), we suggest that the rule stated there is a proper one to be utilized in deciding whether the regulations under scrutiny should be here applied. In Reyes, the court held that where a statute was intended to protect the class of people to which a plaintiff belongs against risk of the type of harm which has in fact occurred, violation of such statute is negligence in itself. The court went on to say that inherent in the statement of the legal principle were three questions which should be resolved before liability could be imposed on a negligence theory: (1) was there a violation of the regulations; (2) were the regulations designed to protect the plaintiff; and (3) were they intended to protect against the risk of the kind of harm that occurred? Id. at 242. Here, the evidence supplies all three elements beyond question. In general, the regulations, which were promulgated under 33 U.S.C. § 941, were intended to eliminate the risk of injury to all longshoremen and not just to those who exercise prudence. Denny v. Jugoslavenska Oceanska Plov, 455 F.2d 1277, 1278 (CA5 1972). The regulations might prove helpful in suggesting types of measures deemed necessary for maintenance of a safe ship. Darwin v. United States, 435 F.Supp. 501, 507 (N.D.Cal.1977), and are binding on the shipowner where he knew or should have known of a violation of the safety regulations. Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143, 1145 (D.Md.1975), aff’d 540 F.2d 757 (CA4 1976). Here, the trial judge did not instruct that Mammoth was negligent as a matter of law in failing to comply with the regulation. He submitted the regulation to the jury, along with all other evidence, so that the members might determine whether Mammoth was guilty of negligence. This would be the proper course to follow under all of the pre-1972 cases on the subject. We observe no real distinction between the requirements of a statute as" }, { "docid": "21337872", "title": "", "text": "day. Implicit in all of this is the further contention that, whatever may be the ultimate determination of the per se problem, the regulation establishes a standard of care, and is at least evidence of negligence. The Shipowner responds, first, that the regulation is not violated by acceptance of cotton with damaged bindings. It insists that 46 U.S.C.A. § 170 prohibits only knowing acceptance. Second, it strenuously argues that the regulations are designed to combat the danger of fire and therefore have no application to a personal injury situation like the one here. The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Prosser, Torts § 34, at 161 (2d ed. 1955); Restatement, Torts § 286 (1934). Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen ? Were they intended to protect against the risk of the kind of harm that occurred here — injury from the hook-and-roll loading sequence ? And, of course, consideration of all of those questions will illuminate the problem of the extent to which the regulations properly form any part of the jury charge. First, contrary to the contention of the Shipowner and the basic holding of the Judge, it is clear to us that the regulations proscribe acceptance of bales with damaged bindings, whether “knowingly” or not. The regulations themselves flatly state, “Bales having damaged bindings shall not be accepted.” It is true that there is no penalty or other sanction imposed in the regulations themselves, and that the penalty for noncompliance is contained in 46 U.S.C.A. § 170. It is likewise true that in the declaratory proscription of § 170(6) (a) and the punitive provisions, § 170(14), (15), the language clearly speaks in terms of “knowingly”" }, { "docid": "932635", "title": "", "text": "of beams known to the stevedore to have been unpinned. The judge, after noting that the primary duty under 29 C.F.R. § 1918.43(e) (Safety and Health Regulations for Long-shoring) with respect to the beams was on the stevedore and that the shipowner should have known of the violation of the regulation, said, “But that negligence on the part of the ship is not actionable negligence in a post-1972 setting, for reasons which are discussed infra.” Id. at 1145. This, he said, before the 1972 Amendments “would seemingly have constituted unseaworthiness”. Id. at 1146. After reviewing some eight post-1972 decisions that land-based principles applied, referring particularly to §§ 343 and 343A of the Restatement (Second) of Torts, he concluded that “in the context of the facts in this case settled principles of land-based tort law do not impose liability in favor of the employees of an independent contractor for the open and obvious negligence of the person in control of the premises upon which those employees are at work.” Id. at 1149. On appeal, the Court of Appeals affirmed, 540 F.2d 757 (1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), saying that the District Judge’s conclusions were “in accord with the decisions of the several courts who have had occasion to consider the 1973 [sic] Amendments.” (citations omitted). Id. at 759. Most recently that court in Riddle v. Exxon Transportation Co., 563 F.2d 1103 (4th Cir. 1977) had occasion to review a judgment entered upon a jury verdict in favor of the defendant (an independent contractor) and stated: “In both [Anuszewski, supra, and Bess v. Agromar Line, 518 F.2d 738 (4th Cir. 1975)], we held, in keeping with the manifest legislative purpose, that the Amendments were intended to and did relieve the shipowner of a non-delegable duty to furnish a safe place to work and declared that its liability in a third-party action, in which the stevedore or ship repairer was ‘viewed generally as an independent contractor,’ was governed by ‘land-based’ negligence principles and not by ‘maritime negligence concepts’.” Id. at 1110. The Fifth Circuit, in" }, { "docid": "9826984", "title": "", "text": "claimed by defendants. The judgment is reversed with directions to enter a new judgment in favor of defendants. . Plaintiffs brief 2. However, again according to plaintiffs counsel, the case was tried solely on the theory of defendants’ negligence; no concept of unseaworthiness was presented to the jury (Br. 6). The vessel’s liability to longshoremen on account of unseaworthy conditions was specifically eliminated by the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U.S.C. § 905(b). . The Occupational and Safety Health Administration (OSHA) regulations establish the standard of care to which the stevedores are held responsible. Although these regulations require numerous specific safety measures, they do not impose even on the Stevedore the duty of running lines between open deep tanks. See 29 C.F.R. §§ 1918.31(e) and 1918.35. If plaintiff had proved that his accident occurred from poor lighting on the ship, the OSHA regulations would place that responsibility on the Stevedore rather than the shipowners. 29 C.F.R. §§ 1918.2 and 1918.92. . Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5th Cir. 1977); Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4th Cir. 1976) , and Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (2d Cir. 1976). . The employer is usually a stevedoring company or a shipyard. . For detailed explanations of the development of the law in this area and the difficulties that gave rise to the new compromise reflected in the 1972 amendments, see Hurst v. Triad Shipping Co., 554 F.2d 1237, 1242-1244 (3d Cir. 1977) ; Gay v. Ocean Transport & Trading, Ltd., supra, 1235-1236. . H.R.Rep.No.92-1441, 92d Cong., 2d Sess., reprinted in 3 [1972] U.S.Code Cong. & Admin. News, pp. 4698, 4703. . Id. at 4699. . Id. at 4703, 4704. The non-liability of the shipowner for the employer’s negligence is made explicit in the statute. 33 U.S.C. § 905(b). . The jury verdict for the plaintiff was reversed on appeal because the responsibility for seeing that hatch covers were locked in place was the employer’s, although it was the job of the vessel’s crew to execute the" }, { "docid": "3191029", "title": "", "text": "sanctions, civil and criminal, they are geared directly to the safety of men, safety of working conditions, elimination of hazards that have long made longshoring one of industry’s most crippling vocations. This brings into play Marshall v. Isthmian Lines, Inc., 5 Cir., 1964, 334 F.2d 131, 1964 A.M.C. 1686, which dealt with regulations issued by the Coast Guard under 46 U.S.C.A. § 170(7). The applicability and impact of regulations was summed up this way: “The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Pros-ser, Torts § 34, at 161 (2d ed. 1955); Restatement, Torts § 286 (1934). Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed * * * on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen? Were they intended to protect against the risk of the kind of harm that occurred here * * * ?” 334 F.2d at 134. But, unlike Marshall, where we held that although Longshoremen were within the class of intended beneficiaries, the Regulation was not designed to protect against the kind of hazard there encountered, it is plain here that both the specific regulation asserted and the whole statutory-regulatory structure are aimed directly at avoiding personal injuries from hazardous conditions. On accepted principles violation of these safety regulations constitutes negligence per se. We need not pause long over violation of the specific or related regulations (see notes 6 and 7, supra). Longshoring is a hazardous business. It will always be so. Part of the hazard comes from unavoidable necessity of working around tween deck hatch openings or the edge of built-up deck cargoes during loading or discharging operations. But the risk of falling into or through deck openings which are not essential to current operations is one the regulations sought to stamp out. Everywhere the regulations recognize" }, { "docid": "6144266", "title": "", "text": "under 33 U.S.C. § 941, were intended to eliminate the risk of injury to all longshoremen and not just to those who exercise prudence. Denny v. Jugoslavenska Oceanska Plov, 455 F.2d 1277, 1278 (CA5 1972). The regulations might prove helpful in suggesting types of measures deemed necessary for maintenance of a safe ship. Darwin v. United States, 435 F.Supp. 501, 507 (N.D.Cal.1977), and are binding on the shipowner where he knew or should have known of a violation of the safety regulations. Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143, 1145 (D.Md.1975), aff’d 540 F.2d 757 (CA4 1976). Here, the trial judge did not instruct that Mammoth was negligent as a matter of law in failing to comply with the regulation. He submitted the regulation to the jury, along with all other evidence, so that the members might determine whether Mammoth was guilty of negligence. This would be the proper course to follow under all of the pre-1972 cases on the subject. We observe no real distinction between the requirements of a statute as mentioned in Reyes, and the requirements of the regulation presented to the jury by the district court. The court properly presented the regulation for the jury’s consideration. IV. As previously mentioned, the stevedore intervened in these proceedings to assert its lien on the Bachtels’ recovery for the amount of compensation it had paid pursuant to 33 U.S.C. § 933. Its claim of lien approximates $33,000.00. The Bachtels recognized the validity of the lien, but claimed that the efforts of their attorney were responsible for recovering the fund on which the lien was claimed and, consequently, the stevedore should contribute its proportionate share of the attorney fees and costs. The district court rejected the Bachtels’ claim and adopted what is commonly known as the “Fund” rule under which the attorney fees come off the top of the recovery, then the lien is paid in full and the injured party receives the residue. This theory received support in Cella v. Partenreederei MS Ravenna, 529 F.2d 15 (CA1 1975), cert. denied 425 U.S. 975, 96 S.Ct. 2175, 48" }, { "docid": "16420139", "title": "", "text": ". Plaintiff testified that he had two jobs. He worked for an elevator company, but when he was laid off from that job, as he was at the time of the accident here, he did longshoring work. . For an extensive treatment of this question, see this Court’s decision in Gallardo v. Westfal-Larsen & Co. A/S, 435 F.Supp. 484 (N.D.Cal.1977). . This chronology might be said to support a view contrary to plaintiffs. Since the regulations did become a part of OSHA, the more recent OSHA definition of \"employer” could be construed to be the “last word” on the subject of coverage. On the other hand, the inaccuracy of such a conclusion is suggested by 29 U.S.C. § 653(b)(4), which provides that: “Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” . The fact that the regulations cannot be applied to United States shipowners to establish negligence per se, however, does not render them wholly void of evidentiary value. While only private employers are responsible for compliance with the regulations, the provisions by no means demand that only such persons are responsible for maintaining safe working conditions. Under certain circumstances, pursuant to recognized principles of negligence, the shipowner will be at least similarly responsible. To the extent that the shipowner shares responsibility, the regulations may prove helpful in suggesting the types of measures deemed necessary for the maintenance of a safe ship. In the present case, the defendant objected to the plaintiff’s Exhibit 16, copies of 29 C.F.R. §§ 1918.91(c) and 1918.92(a). The former provides that “[s]lippery conditions shall be eliminated as they occur.” The latter specifies that “[a]ll walking and working areas shall be adequately illuminated.” Under the circumstances presented in the present case, as explained infra, the shipowner had a duty to provide and" }, { "docid": "16140566", "title": "", "text": "with approval, Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); (2) cites sections from the Restatement (Second) of Torts which concern the most general of negligence principles; (3) questions the utility of standards based upon Section 343A of the Restatement due to their incorporation of the defense of assumption of risk; and (4) rejects all forms of vicarious liability. . As of this writing, four cases involving injuries sustained after 1972 have squarely addressed the issue and each has held the regulations applicable to the stevedore alone. Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5th Cir. 1977); Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5th Cir. 1977); Crowshaw v. Koninklijke Nedlloyd, B.V. Rijswijk, 398 F.Supp. 1224 (D.Ore.1975); Hite v. Maritime Overseas Corp., 375 F.Supp. 233, 237 (E.D.Tex. 1974). At trial, plaintiff relied upon two Fifth Circuit opinions that concerned accidents which occurred before the effective date of the 1972 amendments. Lacaze v. Olendorff, 526 F.2d 1213 (5th Cir. 1976); Arthur v. Flota Mercante Gran Centro Americana S. A. 487 F.2d 561 (5th Cir. 1974). In the pre-Lacaze and pre-Arthur case of Marshall v. Isthmian Lines, 334 F.2d 131 (5th Cir. 1964), the Fifth Circuit had declined to hold that certain Coast Guard regulations could be used against a shipowner to establish negligence per se but left open the question of negligence per se in deserving instances. The opinion analyzed the criteria which courts must consider when addressing the issue and stated: “The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. * * * Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen? Were they intended to protect against the risk of" }, { "docid": "6144264", "title": "", "text": "at the sides could well have been viewed as evidence of negligence under the law as it existed prior to 1972. This design along with the failure to provide protective nets or other devices would be presented to a jury under the customary definition of negligence. That is to say, the regulations here required nothing more than the due care required under the doctrine of negligence as it existed in maritime law prior to 1972. We must assume that Congress was aware of the Provenza, Bolenski and Venable decisions, which held that the regulations applied to negligence on the part of the shipowner, at the time it passed the 1972 amendments. The negligence mentioned in 33 U.S.C. § 905(b), therefore, would necessarily include a violation of the then existing law and regulations, including § 1918.32(b), the subject of the court’s instruction challenged by appellant. See Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1954). Although neither the 1972 amendments, nor the regulations here mentioned, were involved in Reyes v. Vantage S.S. Co., Inc., 558 F.2d 238 (CA5 1977), we suggest that the rule stated there is a proper one to be utilized in deciding whether the regulations under scrutiny should be here applied. In Reyes, the court held that where a statute was intended to protect the class of people to which a plaintiff belongs against risk of the type of harm which has in fact occurred, violation of such statute is negligence in itself. The court went on to say that inherent in the statement of the legal principle were three questions which should be resolved before liability could be imposed on a negligence theory: (1) was there a violation of the regulations; (2) were the regulations designed to protect the plaintiff; and (3) were they intended to protect against the risk of the kind of harm that occurred? Id. at 242. Here, the evidence supplies all three elements beyond question. In general, the regulations, which were promulgated" }, { "docid": "21337871", "title": "", "text": "of the Coast Guard established hereunder.” The regulations authorized by the statute classify cotton as a hazardous article. 46 C.F.R. § 146.27-100. So here is Marshall’s theory. In his view, his injury was caused by a cotton bale having a defective binding. In order to recover against the Shipowner, he must show that the Shipowner was negligent in permitting the defective bale to be brought aboard for stowage. He then asserts that the “negligence” is established by the breach of the regulation. The regulations prohibiting acceptance of cotton bales having damaged bindings define cotton as a hazardous article. That definition is made binding on Shipowner, and is re-enforeed by the criminal provisions of the statute, 46 U.S.C.A. § 170(14), (15). All Marshall need do, he argues, is prove (1) that the bindings were damaged, and (2) that the damaged bindings contributed to his injury. Since, he reasons, the proof of acceptance of damaged bindings is proof of violation of the regulations, the Shipowner is guilty of negligence per se, and liability follows as night unto day. Implicit in all of this is the further contention that, whatever may be the ultimate determination of the per se problem, the regulation establishes a standard of care, and is at least evidence of negligence. The Shipowner responds, first, that the regulation is not violated by acceptance of cotton with damaged bindings. It insists that 46 U.S.C.A. § 170 prohibits only knowing acceptance. Second, it strenuously argues that the regulations are designed to combat the danger of fire and therefore have no application to a personal injury situation like the one here. The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Prosser, Torts § 34, at 161 (2d ed. 1955); Restatement, Torts § 286 (1934). Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed in this case on a negligence per" }, { "docid": "10554210", "title": "", "text": "can be considered the cause of the longshoreman’s subsequent injury. See Cox v. Flota Mercante Grancolombiana, supra, 577 F.2d at 802; Lubrano v. Royal Netherlands Steamship Co., supra, 572 F.2d at 373 (Moore, J., dissenting). Cf. Santos v. Scindia Steam Navigation Co., supra, 598 F.2d at 480, 489 (whether “proximate cause” of injury was defect in ship’s crane or sloppy procedures of stevedore). A two-level test based on whether the defect is “pre-existing” would therefore be unhelpful as a guide for vessel conduct, since the determination of liability would depend on the subsequent characterization of the defect. The second problem is that a strict application of the control test virtually precludes a finding of shipowner negligence, except for cases involving known, concealed defects or active negligence by the ship’s personnel. See Giglio v. Farrell Lines, Inc., supra, 613 F.2d at 437 (Oakes, J., dissenting). As the court stated in Gallardo v. Westfal-Larsen & Co., 435 F.Supp. 484, 495 (N.D.Cal.1977), “[Ajnalysis based upon retention or relinquishment of control poses a potential for abuse by courts which view the commencement of cargo operations as extinguishing the liability of vessels for injuries subsequently sustained by longshoremen.” Thus, the control test nearly eliminates as a matter of law the possibility that the vessel could be concurrently negligent in the injury of a longshoreman engaged in cargo operations. See Rich v. United States Lines, Inc., supra, 596 F.2d at 565 (Garth, J., concurring) (the control test of § 409 goes “impermissibly far” toward complete abrogation of vessel owner’s duty of care). Indeed, application of this standard led one court to conclude that a vessel which had been found negligent could not be held liable because its negligence was not “actionable” under the LHWCA. Anuszewski v. Dynamic Mariners Corp., 391 F.Supp. 1143, 1145 (D.Md.1975), aff’d, 540 F.2d 757 (4th Cir. 1976), cert. denied, 429 U.S. 1098, 540 F.2d 757, 51 L.Ed.2d 545 (1977). Such an interpretation is plainly inconsistent with Congress’ intention to hold the vessel liable for its own negligence: Although § 905(b) may be construed to “demonstrate that ... the major responsibility for the" }, { "docid": "1508370", "title": "", "text": "a paternalistic duty to protect a seaman, even from his own injudicious conduct, where circumstances permit, where as here the sole and only cause of the disaster is that of the seaman’s own negligence; and where the officers and crew did all within their power to rescue the victim when his danger came to their knowledge, there is no liability. Throw Out the Life Line The fatal flaw in the opinion of the lower court lies in its disregard of the violation of Coast Guard regulations by NATIONAL DEFENDER, specifically, 46 C.F.R. § 94.-45-1 et seq. The regulations require that all vessels of 150 gross tons and over in ocean or coastwise service maintain line-throwing appliances for rescue operations. The Captain of NATIONAL DEFENDER testified that the vessel did not have such equipment and that he thought it was illegal to use them. Vessels of 500 gross tons and over are required to have impulse-projected rocket type line throwers. The appliances must have lines of at least 1,500 feet in length and a breaking strength of at least 9,000 pounds. In Marshall v. Isthmian Lines, Inc., 5 Cir. 1964, 334 F.2d 131, 1964 AMC 1686, there was a violation of the Coast Guard regulations relating to the shipment of hazardous articles. There we said, [t]he law is well established that violations of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Inherent in this statement of the legal principal are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect the [plaintiffs]? Were they intended to protect against the risk of the kind of harm that occurred here . Id. at 134 (citations omitted); see Phipps v. S.S. Santa Maria, 5 Cir. 1971, 418 F.2d 615; Manning v. M/V Sea Road, 5 Cir. 1969, 417 F.2d 603; Grigsby v. Coastal Marine" }, { "docid": "932634", "title": "", "text": "here the responsibility for the safety of the longshoreman was on the stevedore and it had the responsibility to ensure the pins were in place. The reasons for and the legislative history behind the 1972 Amendments have been rather fully stated in the Third Circuit in Hurst v. Triad Shipping Company, 554 F.2d 1237 (3rd Cir. 1977), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977). That court reaffirmed Judge Van Dusen’s statement in his opinion in Brown v. Ivarans Rederi A/S, 545 F.2d 854 (3rd Cir. 1976) that “[E]xpress language in the statute and the legislative reports accompanying the 1972 Amendments amply demonstrate that for reasons of policy the major responsibility for the proper and safe conduct of the work was to be borne by the stevedore.” (footnote omitted). Id. at 860. In the Fourth Circuit in a case factually almost identical to the case at hand, Anus-zewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143 (D.Md.1975), the District Judge entered judgment for the defendant, the facts having disclosed the existence of beams known to the stevedore to have been unpinned. The judge, after noting that the primary duty under 29 C.F.R. § 1918.43(e) (Safety and Health Regulations for Long-shoring) with respect to the beams was on the stevedore and that the shipowner should have known of the violation of the regulation, said, “But that negligence on the part of the ship is not actionable negligence in a post-1972 setting, for reasons which are discussed infra.” Id. at 1145. This, he said, before the 1972 Amendments “would seemingly have constituted unseaworthiness”. Id. at 1146. After reviewing some eight post-1972 decisions that land-based principles applied, referring particularly to §§ 343 and 343A of the Restatement (Second) of Torts, he concluded that “in the context of the facts in this case settled principles of land-based tort law do not impose liability in favor of the employees of an independent contractor for the open and obvious negligence of the person in control of the premises upon which those employees are at work.” Id. at 1149. On appeal, the Court" }, { "docid": "13323151", "title": "", "text": "see Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839 (2 Cir. 1977). . Identical language appears in the Senate Report, No. 92-1125, 92nd Cong., 2d Sess. 2 (1972). . Section 343A, on which liability is here sought to be predicated, is a statement of when the possessor is not liable. . This view does not run counter to the case stated in the House Report: So, for example, where a longshoreman slips on an oil spill on a vessel’s deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances. H.R.Rep.No.1441, supra, 3 U.S.Code Cong, and Admin.News at 4704 (1972). The crucial words are “willfully and negligently” and “in the exercise of reasonable care.” Reasonable care does not require the ship to act if it could properly expect that the contractors who were constantly coming and going in the area would do so. See Anuszewski v. Dynamic Mariners Corp., Panama, 391 F.Supp. 1143, 1149 (D.Md. 1975), aff'd, 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977). . In support of this the court stated in footnote 9: See, for instance, Ramirez v. Toko Kaiun K.K. (N.D.Cal.1974) 385 F.Supp. 644, 653; Lucas v. “Brinknes” Schiffahrts Ges. (E.D.Pa. 1974) 379 F.Supp. 759, 768. In the first case, the Court said: “The primary responsibility for the safety of a longshoreman lies with the stevedoring company.” In Lucas, the Court said: “ * * * It is clear, however, that Congress decided that the primary duty to provide a safe place to work is on the stevedore.” In Brown v. Ivarans Rederi A/S (3d Cir." }, { "docid": "16140567", "title": "", "text": "Centro Americana S. A. 487 F.2d 561 (5th Cir. 1974). In the pre-Lacaze and pre-Arthur case of Marshall v. Isthmian Lines, 334 F.2d 131 (5th Cir. 1964), the Fifth Circuit had declined to hold that certain Coast Guard regulations could be used against a shipowner to establish negligence per se but left open the question of negligence per se in deserving instances. The opinion analyzed the criteria which courts must consider when addressing the issue and stated: “The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. * * * Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen? Were they intended to protect against the risk of the kind of harm that occurred here * * * ?” Id. at 134 (citations omitted). The Arthur opinion simply applied the logic of Marshall to third-party actions under the LHWCA and held: “[T]he purpose of these regulations [is] to promote safety in the industry and establish an unambiguous standard for measuring industrial safety as it relates to longshoremen, harbor workers or other business invitees that come into contact with a vessel. * * We hold that if the Marshall criteria are met, the court may instruct the jury that a violation of the Safety and Health Regulations is negligence per se.” Arthur v. Flota Mercante Gran Centro Americana S. A., supra, 487 F.2d at 564. Lacaze followed Arthur without modification. Lacaze v. Olendorff, supra, 526 F.2d at 1220. The more recent Fifth Circuit opinions in Gay and Brown make no mention of Marshall, Lacaze, or Arthur." }, { "docid": "22284679", "title": "", "text": "S. S. Ronde, 390 F.Supp. 637 (S.D.Ga.1974), aff'd per curiam, 509 F.2d 973 (5th Cir. 1975); Birrer v. Flota Mercante Grancolombiana, 386 F.Supp. 1105 (D.Or.1974); Ramirez v. Toko Kaiun K. K, 385 F.Supp. 644 (N.D.Cal.1974); Citizen v. M/V Triton, 384 F.Supp. 198 (E.D.Tex.1974); Fedison v. Vessel Wislica, 382 F.Supp. 4 (E.D.La.1974); Hite v. Maritime Overseas Corp., 380 F.Supp. 222 (E.D.Tex.1974); Lucas v. “Brinknes” Schiffahrts Ges., 379 F.Supp. 759 (E.D.Pa.1974). . Restatement (Second) of Torts § 343, comment a (1965), instructs that section 343 “should be read together with § 343 A . . .” . 29 C.F.R. § 1918.2(b) (1976) makes clear that the regulation only applies to employers and not vessels: It is not the intent of the regulations of this part to place additional responsibilities or duties on owners, operators, agents or masters of vessels unless such persons are acting as employers, nor is it the intent of those regulations to relieve such owners, operators, agents or masters of vessels from responsibilities or duties now placed upon them by law, regulation or custom. Even under the pre-1972 LHWCA, the general principle was that “liability for failure to comply with safety regulations should be imposed on the party exposing the injured employee to the dangerous condition.” Brock v. Coral Drilling, Inc., 477 F.2d 211, 215 (5th Cir. 1973). See also Burrage v. Flota Mercante Grancolombiana, 431 F.2d 1229 (5th Cir. 1970). . In Teofilovich v. D’Amico Mediterranean/Pacific Line, 415 F.Supp. 732 (C.D.Cal.1976), the court refused to apply Restatement (Second) of Torts §§ 413 & 416 (1965) to hold a shipowner vicariously liable for the negligence of the stevedore, holding that this “would do violence to the letter and policy of 33 U.S.C. § 905(b). . . . Congress specifically excluded a rule of vicarious liability, specifically excluded a rule of liability without fault and specifically excluded the concept of a non-delegable duty, all of which are the express and explicit result of section 416.” 415 F.Supp. at 734-36. See also Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092 (D.Md.1975); Anuszewski v. Dynamic Mariners Corp., 391 F.Supp. 1143, 1145 (D.Md.1975)," } ]

[ { "docid": "23068830", "title": "", "text": "this Part.” Courts have accordingly held that section 3B1.1 applies only to criminal activity engaged in by more than one participant. See, e.g., United States v. William M. Carroll, 893 F.2d 1502 at 1511 (6th Cir.1990) (“We hold that enhancement pursuant to § 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed.”); United States v. Mejia-Orosco, 867 F.2d 216, 220 (5th Cir.) (“The introductory statement to this part of the guidelines clearly indicates that there must be more than one participant in the criminal activity for this section to apply.”), cert. denied, — U.S. -, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989); United States v. Herrera, 878 F.2d 997, 1002 (7th Cir.1989) (the involvement of “two to five participants in the criminal activity” is needed for section 3B 1.1(c) to apply). Thus, section 3B1.1 does not apply to a defendant who merely organizes or supervises criminal activity that is executed without the aid of others. Instead, the defendant must have exercised some degree of control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime. This requirement is implicit in the terms “organizer, leader, manager and supervisor,” each of which suggests the presence of underlings or subordinates. The application notes to section 3B1.1, which state the factors to be considered in distinguishing “organizers and leaders” from “managers and supervisors,” for purposes of applying sections 3Bl.l(a) and (b), further indicate that some degree of control or organizational authority over others is required. Factors the court should consider include the exercise of decision making authori ty, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who" } ]

[ { "docid": "22561967", "title": "", "text": "plea agreement. a. Role in the Offense Joseph first argues that the enhancement for his role in the offense was unjustified because he testified at his plea hearing that he was just a mule. We do not oversimplify his argument; that is all there is to it. The sentencing guidelines provide that a sentence should be adjusted in accordance with the defendant’s role in the offense, taking all relevant conduct into account. See U.S.S.G. Ch. 3, Pt. B, intro, comment. The aggravating-role provision reads as follows: Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. U.S.S.G. § 3B1.1. The commentary to this section provides: Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. Id., comment, (n.4). “ ‘A district court’s determination regarding a defendant’s role in the offense is reversible only if clearly erroneous.’ ” United States v. Washington, 127 F.3d 510, 515 (6th Cir.1997) (citation omitted), cert. denied, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 2718 (1998). Thus, the distinguishing characteristic of a 3B1.1 adjustment is the defendant’s leadership of others. While much of the proof offered by the government in support of this enhancement related to Joseph’s supervision over the administrative details of the conspiracy, it is also clear" }, { "docid": "8621542", "title": "", "text": "played an aggravating role in the offense as an organizer, leader, manager, or supervisor pursuant to U.S.S.G. § 3Bl.l(c). Section 3B1.1 of the Sentencing Guidelines provides: Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. The Sentencing Guidelines, including the relevant commentary, do not attempt to define the terms “organizer,” “leader,” “manager,” or “supervisor”; but rather set forth a number of factors that the court should consider. They include: (a) the exercise of decision-making authority; (b) the nature of participation in the commission of the offense; (c) the recruitment of accomplices; (d) the claimed right to a larger share of the fruits of the crime; (e) the degree of participation in planning or organizing the offense; (f) the nature and scope of the illegal activity; and (g) the degree of control and authority exercised over others. U.S.S.G. § 3B1.1 Application Note 4. The United States has the burden of proving the enhancement by a preponderance of the evidence. United States v. Castro, 908 F.2d 85, 90 (6th Cir.1990). This court’s factual findings on this issue, however, are reviewable for clear error only. United States v. Washington, 127 F.3d 510, 515 (6th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 2718 (1998); United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir.1994). Defendant contends that the district court erred in enhancing his sentence under U.S.S.G. § 3Bl.l(c) because the record indicates that defendant was merely a delivery person for the Colombian, Ospina, and a conduit for collections. Defendant contends that as a mere distributor, he was ineligible for" }, { "docid": "23195850", "title": "", "text": "Cir.1997). Section 3Bl.l(c) of the United States Sentencing Guidelines provides: Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. Prior to November 1993, the circuit courts differed as to the interpretation of this provision. Some circuits held that it was necessary to show that a defendant exercised control over at least one participant in a criminal scheme to justify sentence enhancement under § 3B1.1. See, e.g., United States v. Fuentes, 954 F.2d 151 (3d Cir.1992); United States v. Fuller, 897 F.2d 1217 (1st Cir.1990). Others held that it was sufficient to show merely that a defendant exercised some measure of leadership over the criminal activity. United States v. Chambers, 985 F.2d 1263 (4th Cir.1993). The Sixth Circuit fell into the second group. At the time, all this court required for § 3B1.1 sentence enhancement was participation of at least two culpable persons “so that leadership of some criminal enterprise or organization, however minimal, could be claimed.” United States v. Paulino, 935 F.2d 739, 757 (6th Cir.1991). See also United States v. Bashara, 27 F.3d 1174 (6th Cir.1994) and United States v. Alexander, 59 F.3d 36 (6th Cir.1995). In November 1993, Application Note 2 of the commentary to § 3B1.1 was amended to clarify the intended reach of § 3B1.1. It now provides: To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant," }, { "docid": "22922915", "title": "", "text": "that five of the activity’s participants be subordinate to the defendant; it merely requires that the activity involve five or more participants. In this case, at least five people participated in [the defendant’s] criminal activity, and he played a role that may properly be categorized as that of ‘manager or supervisor.’ ” Id. at 1184. Similarly, in United States v. Alexander, 59 F.3d 36 (6th Cir.1995), we rejected the defendant’s contention that an enhancement under § 3B1.1 was improper because he did not exercise control over any of his co-defendants in a drug conspiracy stating that “defendant [need not] directly employ or control a partnership or enterprise.” Id. at 38; see also United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir.1994). Bashara and Schultz, however, without expressly noting, applied the guideline and commentary articulated in § 3B1.1 in effect at the time the defendants were sentenced. In both cases, the guideline in effect at the time of sentencing did not include an amendment to the commentary which took effect November 1, 1993. That amendment, which is now articulated in Application Note 2 of the Commentary to § 3B1.1, provides: To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. U.S.S.G. § 3B1.1, comment, (n.2). Application Note 2 was added to clarify confusion amongst the circuit courts as to the operation of § 3B1.1. See U.S.S.G., Appendix C, amendment 500. Prior to the amendment, some circuits had concluded that a defendant’s control over the property, assets or activities of a criminal enterprise \"warranted a § 3B1.1 enhancement. See, e.g., United States v. Chambers, 985 F.2d 1263 (4th Cir. 1993). Other circuits, however, were of the view that an enhancement was proper only where the defendant exercised control over at least one participant in the enterprise. See," }, { "docid": "22203776", "title": "", "text": "§ 3Bl.l(a), asserting that he was just another person in the conspiracy and did not have an organizing or leadership role. “This court reviews a sentencing court’s determination of a defendant’s role in the crime for clear error.” United States v. Ramsdale, 61 F.3d 825, 830 (11th Cir.1995). Section 3B1.1(a) provides, “If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.” The commentary provides that in most instances, “the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” See U.S.S.G. § 3B1.1, comment, n.2. In assessing a defendant’s role in the offense, the factors the courts should consider include: [1] the exercise of decision making authority, [2] the nature of participation in the commission of the offense, [3] the recruitment of accomplices, [4] the claimed right to a larger share of the fruits of the crime, [5] the degree of participation in planning or organizing the offense, [6] the nature and scope of the illegal activity, and [7] the degree of control and authority exercised over others. U.S.S.G. § 3B1.1, comment, n.4. “There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” Id. “The mere status of a middleman or a distributor does not support enhancement under Section 3B1.1 for being a supervisor, manager, or leader. Section 3B1.1 requires the exercise of some authority in the organization, the exertion of some degree of control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182 (11th Cir.1993). Sumbodo does not dispute that the conspiracy involved five or more participants or was otherwise extensive. Instead, he argues that he was a mere “intermediary between Matar Fall and the Indonesian applicants.” Sumbodo contends that he was “a cog in the wheel, just like Mr. Sasikin, just like Mr. Soeryanto.” However, the record reflects that Sumbo-do exercised authority over the organization by recruiting and instructing co-conspirators such as Soeryanto and Sasikin. Even though others may have had a" }, { "docid": "13406042", "title": "", "text": "States v. Haynes, 969 F.2d 569, 571 (7th Cir.1992). Section 3B1.1 of the Sentencing Guidelines provides: Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. U.S.S.G. § 3B1.1. Under U.S.S.G. § 3Bl.l(b), a defendant who acted as a manager or supervisor within a criminal activity involving five or more participants is subject to a three-level increase. Fones does not challenge the district court’s finding that there were five or more participants to the criminal activity. Fones argues, however, that he was not a supervisor or manager. While the Guidelines do not define the terms “manager” or “supervisor,” note 4 to § 3B1.1 provides that in distinguishing a leadership and organizational role from one of management or supervision, the following factors should be considered: Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1, comment, (n. 4). This court has relied upon these factors in determining whether a defendant qualifies as a supervisor or manager. Young, 34 F.3d at 507; United States v. Skinner, 986 F.2d 1091, 1096 (7th Cir.1993); United States v. Brown, 944 F.2d 1377, 1380 n. 1 (7th Cir.1991). See also United States v. Bell, 28 F.3d 615, 617 (7th Cir.1994); United States v. Ramos, 932 F.2d 611," }, { "docid": "22922916", "title": "", "text": "which is now articulated in Application Note 2 of the Commentary to § 3B1.1, provides: To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. U.S.S.G. § 3B1.1, comment, (n.2). Application Note 2 was added to clarify confusion amongst the circuit courts as to the operation of § 3B1.1. See U.S.S.G., Appendix C, amendment 500. Prior to the amendment, some circuits had concluded that a defendant’s control over the property, assets or activities of a criminal enterprise \"warranted a § 3B1.1 enhancement. See, e.g., United States v. Chambers, 985 F.2d 1263 (4th Cir. 1993). Other circuits, however, were of the view that an enhancement was proper only where the defendant exercised control over at least one participant in the enterprise. See, e.g., United States v. Fuentes, 954 F.2d 151 (3d Cir.1992); United States v. Fuller, 897 F.2d 1217 (1st Cir.1990). As noted by the Seventh Circuit, the amended application note permits an increased sentence whether the defendant exercised control over an individual within the criminal enterprise or merely exercised control over the property, assets or activities of the enterprise. See United States v. Fones, 51 F.3d 663, 668 (7th Cir.1995); see also United States v. Capers, 61 F.3d 1100, 1110 (4th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1830, 134 L.Ed.2d 935 (1996). However, under the amended provision, the method by which the defendant’s sentence is increased depends on whether the defendant exercised control over an individual or over tangible property, assets or activities' of a criminal enterprise. Fones, 51 F.3d at 668; Capers, 61 F.3d at 1110. Where the defendant exerts control over at least one participant in a supervisory, managerial, leadership, or organizational capacity, a sentence enhancement is required under § 3B1.1. Whereas, where a defendant does not exercise control over an individual" }, { "docid": "22263135", "title": "", "text": "not err in imposing a sentencing enhancement based on a loss calculation of $687,000. D. Role Enhancement Yeager argues that the government failed to prove that he exercised any influence or control over another participant in the conspiracy and that, therefore, his sentence cannot be increased for playing an aggravating role under\" the Guidelines. According to Yeager, because only he and Powell were indicted for the conduct at issue, and because Powell had already received a role enhancement for his involvement, it is inconceivable that Yeager also could be eligible for the enhancement. We review the sentencing court’s factual findings for clear error and its application of the sentencing guidelines to those facts de novo. United States v. Humber, 255 F.3d 1308, 1311 (11th Cir.2001). The government bears the burden of proving by a preponderance of the evidence that the defendant had an aggravating role in the offense. United States v. Alred, 144 F.3d 1405, 1421 (11th Cir.1998). Under the Guidelines, a four-level increase in the applicable offense level is appropriate if the defendant “was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). If the defendant was a “manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive,” then the offense level should be increased by three. Id. at (b). When the defendant is “an organizer, leader, manager, or supervisor” in any other criminal activity (that is, any criminal activity not involving five or more participants and not extensive), then his offense level should be increased by two. Id. at (c). The district court imposed the two-level § 3B1.1(c) enhancement on Yeager. According to the commentary, “[t]o qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1 comment, (n. 2). Yeager latches onto this commentary as support for his argument that, in a conspiracy of two people, only one can be sentenced for a leadership role. However, we" }, { "docid": "22477633", "title": "", "text": "to have played an aggravated role in a criminal activity. Section 3Bl.l’s core focus is relative responsibility: “[T]hose who play an aggravating role in the offense are to receive sentences that reflect their greater contributions to the illegal scheme.” United States v. Brown, 944 F.2d 1377, 1381 (7th Cir.1991). Therefore, a defendant who had no greater role than any other participant cannot receive a § 3B1.1 increase. Brown, 944 F.2d at 1381-82; see also United States v. Skinner, 986 F.2d 1091, 1099 (7th Cir.1993) (noting that no § 3B1.1 adjustment may be imposed where a defendant was not relatively more responsible than other participants). To receive any § 3B1.1 increase, a defendant “must have been the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1, commentary n. 2. See also United States v. DiCicco, 899 F.2d 1531, 1535 (7th Cir.1990) (holding the same). Thus, at a minimum, a defendant must have had some real and direct influence, aimed at furthering the criminal activity, upon one other identified participant. “Section 3B1.1 requires the exercise of some authority in the organization, the exertion of some degree of control, influence, or leadership.” Brown, 944 F.2d at 1385. Section 3B1.1 adjustments vary both according to the defendant’s degree of responsibility and according to the size of the criminal activity. Section 3Bl.l(a) gives a four-level increase to a defendant who was an “organizer or leader” of a large-scale criminal activity. The trial judge gave Mustread this adjustment. Section 3Bl.l(b) gives a three-level increase to a defendant who held the lesser role of “manager or supervisor” of a large-scale criminal activity. Finally, Section 3Bl.l(c) gives a two-level increase to a defendant who was an “organizer, leader, manager or supervisor” in any criminal activity that was not large-scale. A criminal activity is large enough to trigger § 3Bl.l(a) or (b) if it “involved five or more participants or was otherwise extensive.” A “participant” is any person criminally responsible for an offense, whether or not he was convicted. United States v. Cantero, 995 F.2d 1407, 1414 (7th Cir.1993); U.S.S.G. § 3B1.1, commentary n." }, { "docid": "17125734", "title": "", "text": "defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. The Guidelines (in each of its three subsections) call for a determination of whether the defendant was a supervisor in the criminal activity. Courts which have addressed the issue of supervision have required that, to be a supervisor, there must be some degree of control over others involved in the commission of the offense. See e.g., United States v. Roberts, 14 F.3d 502, 524 (10th Cir.1993), aff'd after remand 43 F.3d 1484 (10th Cir.1994), cert. denied — U.S. -, 115 S.Ct. 1417, 131 L.Ed.2d 301 (1995); United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990). More specifically, the Guidelines direct that a defendant’s role in the criminal activity is the operative issue. Here, DeGovanni’s sergeant-status in the police department as an overall supervisor of other police officers in the discharge of general police functions, was not enough to substantiate an enhancement for active supervision of other members of the conspiracy under § 3B1.1(c). See United States v. Fuentes, 954 F.2d 151, 153 (3d Cir.), cert. denied 504 U.S. 977, 112 S.Ct. 2950, 119 L.Ed.2d 573 (1992) (sentences should not be enhanced under § 3Bl.l(c) unless the defendant supervised or managed the actions of another individual in the criminal enterprise ); see generally, United States v. Belletiere, 971 F.2d 961, 969-70 (3d Cir.1992) (§ 3B1.1 enhancements apply to supervision of others in group activities). Just as a defendant bank director in United States v. Jobe, 101 F.3d 1046, 1065-66 (5th Cir.1996), could not have his sentence enhanced for cheek kiting and bank fraud because he did not manage or supervise the criminal activity of check kiting, no more can DeGovanni have his sentence enhanced because of his general overseer role as sergeant. We reject the government’s contention that DeGovanni’s status as a sergeant is relevant" }, { "docid": "22922913", "title": "", "text": "over a fairly extended time period. Defendant timely appeals from the sentence imposed by the District Court. II. Defendant’s sole argument on appeal is that the District Court erred in applying the two level enhancement of § 3B 1.1(c) of the Sentencing Guidelines. We review the District Court’s legal conclusions regarding the application of Sentencing Guidelines de novo; however, we accept the District Court’s findings of fact unless they are clearly erroneous. See United States v. Rutana, 18 F.3d 363, 365 (6th Cir.1994). A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Perez, 871 F.2d 45, 48 (6th Cir.1989). To apply the § 3B1.1 enhancement, the government must establish, by a preponderance of the evidence, the elements of § 3B1.1. See United States v. Ledezma, 26 F.3d 636, 644 (6th Cir.1994). Section 3B1.1 provides: Aggravating Role Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. U.S.S.G. § 3B1.1. Prior to November 1, 1993, an enhancement was warranted under § 3Bl.l(c) where the defendant exercised a managerial, leadership, organizational or supervisory role in a criminal enterprise and four or less individuals were involved in the criminal enterprise; the defendant need not have exercised control over a specific member of the conspiracy. To illustrate, in United States v. Bashara, 27 F.3d 1174 (6th Cir.1994), this Court, applying subsection (b) of § 3B1.1 noted, “[t]he text of the Guidelines and its commentary does not require" }, { "docid": "22922917", "title": "", "text": "e.g., United States v. Fuentes, 954 F.2d 151 (3d Cir.1992); United States v. Fuller, 897 F.2d 1217 (1st Cir.1990). As noted by the Seventh Circuit, the amended application note permits an increased sentence whether the defendant exercised control over an individual within the criminal enterprise or merely exercised control over the property, assets or activities of the enterprise. See United States v. Fones, 51 F.3d 663, 668 (7th Cir.1995); see also United States v. Capers, 61 F.3d 1100, 1110 (4th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1830, 134 L.Ed.2d 935 (1996). However, under the amended provision, the method by which the defendant’s sentence is increased depends on whether the defendant exercised control over an individual or over tangible property, assets or activities' of a criminal enterprise. Fones, 51 F.3d at 668; Capers, 61 F.3d at 1110. Where the defendant exerts control over at least one participant in a supervisory, managerial, leadership, or organizational capacity, a sentence enhancement is required under § 3B1.1. Whereas, where a defendant does not exercise control over an individual but over property, assets, or activities, an upward departure may be warranted. Fones, 51 F.3d at 668; Capers, 61 F.3d at 1110. Thus, as of November 1, 1993, a defendant must have exerted control over at least one individual within a criminal organization for the enhancement of § 3B1.1 to be warranted. Our Circuit has yet to directly address the clarification set out in Application Note 2 of § 3B1.1. However, several cases in which the defendant, by virtue of the timing of the defendant’s sentence, was entitled to the clarification set out in Application Note 2 are consistent with the note’s interpretation of the guideline. While not expressly citing to Application Note 2, each have found an enhancement warranted where the defendant exercised a supervisory, organizational, leadership, or managerial role over at least one participant. These cases, thus, do not support the government’s contention that a defendant’s control over a scheme rather than over a participant in a scheme requires enhancement of a sentence under § 3B1.1. For example, in United States v. Bingham," }, { "docid": "22922914", "title": "", "text": "level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. U.S.S.G. § 3B1.1. Prior to November 1, 1993, an enhancement was warranted under § 3Bl.l(c) where the defendant exercised a managerial, leadership, organizational or supervisory role in a criminal enterprise and four or less individuals were involved in the criminal enterprise; the defendant need not have exercised control over a specific member of the conspiracy. To illustrate, in United States v. Bashara, 27 F.3d 1174 (6th Cir.1994), this Court, applying subsection (b) of § 3B1.1 noted, “[t]he text of the Guidelines and its commentary does not require that five of the activity’s participants be subordinate to the defendant; it merely requires that the activity involve five or more participants. In this case, at least five people participated in [the defendant’s] criminal activity, and he played a role that may properly be categorized as that of ‘manager or supervisor.’ ” Id. at 1184. Similarly, in United States v. Alexander, 59 F.3d 36 (6th Cir.1995), we rejected the defendant’s contention that an enhancement under § 3B1.1 was improper because he did not exercise control over any of his co-defendants in a drug conspiracy stating that “defendant [need not] directly employ or control a partnership or enterprise.” Id. at 38; see also United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir.1994). Bashara and Schultz, however, without expressly noting, applied the guideline and commentary articulated in § 3B1.1 in effect at the time the defendants were sentenced. In both cases, the guideline in effect at the time of sentencing did not include an amendment to the commentary which took effect November 1, 1993. That amendment," }, { "docid": "23195851", "title": "", "text": "held that it was sufficient to show merely that a defendant exercised some measure of leadership over the criminal activity. United States v. Chambers, 985 F.2d 1263 (4th Cir.1993). The Sixth Circuit fell into the second group. At the time, all this court required for § 3B1.1 sentence enhancement was participation of at least two culpable persons “so that leadership of some criminal enterprise or organization, however minimal, could be claimed.” United States v. Paulino, 935 F.2d 739, 757 (6th Cir.1991). See also United States v. Bashara, 27 F.3d 1174 (6th Cir.1994) and United States v. Alexander, 59 F.3d 36 (6th Cir.1995). In November 1993, Application Note 2 of the commentary to § 3B1.1 was amended to clarify the intended reach of § 3B1.1. It now provides: To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. § 3B1.1, comment, (n.2) (emphasis added). In a subsequent decision, United States v. Gort-DiDonato, 109 F.3d 318 (6th Cir.1997), this court interpreted the amended note as follows: Where the defendant exerts control over at least one participant in a supervisory, managerial, leadership, or organizational capacity, a sentence enhancement is required under § 3B1.1. Whereas, where a defendant does not exercise control over an individual but over property, assets, or activities, an upward departure may be warranted. Gort-DiDonato, 109 F.3d at 321 (citations omitted). In Gort-DiDonato, the district court enhanced a criminal defendant’s sentence under § 3Bl.l(c) without making a finding that the defendant had supervised at least one person. Because the district court had enhanced the sentence (as opposed to departing upward), this court found that it was incumbent upon the district court to make a factual finding that the defendant had supervised, managed, led or organized another participant in the criminal scheme to justify the enhancement. Since the" }, { "docid": "2015517", "title": "", "text": "court determined that Alexander had a leadership role in the conspiracy and enhanced his offense level pursuant to USSG § 3B1.1. This enhancement increased Alexander’s offense level from 28 to 30, and his sentencing range from 78-97 months to 97-121 months. The court sentenced Alexander to 121 months incarceration followed by four years supervised release. This appeal followed. II. With respect to sentencing determinations under USSG § 3B1.1, this court has held that “[t]he district court’s determination as to role in an offense is a finding that is ‘heavily dependent on the facts.’ ” United States v. Okayfor, 996 F.2d 116, 122 (6th Cir.) (per curiam) (citations and quotations omitted), cert. denied, — U.S. —, 114 S.Ct. 238, 126 L.Ed.2d 192 (1993). “A district court’s determination regarding a defendant’s role in the offense is reversible only if clearly erroneous.” Id.; United States v. Williams, 894 F.2d 208, 213-14 (6th Cir.1990). “Congress tells us we shall give due deference to the district court’s application of the guidelines to the facts.” United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir.1994); 18 U.S.C. § 3742(e) (1988). III. Under the sentencing guidelines, a person convicted of criminal activity should be assessed a two-level increase in his sentence “[i]f the defendant was an organizer, leader, manager, or supervisor” in a criminal conspiracy that involved less than five participants. USSG § 3Bl.l(c). The Sentencing Commission has determined that to qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. USSG § 3B1.1, comment, (n.2). In making its determination, the sentencing court must find by a preponderance of the evidence that the defendant was a leader or organizer of the criminal activity. United States v. Gonzales, 929 F.2d 213, 216 (6th Cir.1991). The Sentencing Commission has advised the courts of a number of" }, { "docid": "12682274", "title": "", "text": "States v. Echevarria, 33 F.3d 175, 178 (2d Cir.1994); see also United States v. Ferrin, 994 F.2d 658, 662 (9th Cir.1993) (same, with respect to USSG § 2Q1.2(b)(l)); United States v. Farah, 991 F.2d 1065, 1068 (2d Cir.1993) (same, with respect to USSG § 3B1.1). We are mindful that disputed sentencing factors need only be proved by a preponderance of the evidence. Echevarria, 33 F.3d at 178. A The Enhancement for Liebman’s Role Pursuant to USSG § 3Bl.l(b). Liebman contends that the record contains insufficient evidence to support the district court’s finding under USSG § 3B1.1 that he was a supervisor or manager. He further argues that because the court faded to make a specific finding under subsection (b) as to whether the criminal activity involved five or more people or was otherwise extensive, it was improper to increase his base level by three levels pursuant to subsection (b), rather than two levels pursuant to subsection (c), of § 3B1.1. Section 3B1.1, entitled “Aggravating Role,” provides: Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. The district court’s finding that Liebman was a supervisor of a criminal activity is supported by the record. As several courts have noted, a manager or supervisor is one who “exercise[s] some degree of control over others involved in the commission of the offense.” United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990); see also United States v. Cantero, 995 F.2d 1407, 1414 (7th Cir.1993) (same); USSG 3Bi.l, comment. (n.2) (“To qualify for an adjustment under this section, the defendant must have been the" }, { "docid": "22822178", "title": "", "text": "of Sillman, a supplier in Grand Rapids who essentially controlled him because Bashara owed Sillman substantial debts from prior loans. Therefore, he merely drove down to Texas two or three times, picked up shipments for delivery, and then drove back to Michigan to sell Sillman’s marijuana for the cash he needed to feed his own heroin addiction. Essentially, Bashara portrays himself as an individual, indicted alone by the grand jury, personally ruined by a consuming drug addiction, but not involved as a “manager” of a “drug ring.” In Bashara’s words, “The chairman of the board of General Motors does not drive the delivery trucks.” Indeed, the court did not find him to be an “organizer or leader,” which would have added another offense level to the sentencing enhancement. U.S.S.G. § 3Bl.l(a). “It is well established in this Circuit that ‘enhancement pursuant to § 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed.’ ... But these principles do not mean that the defendant must directly employ or control a partnership or enterprise.” United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir.1994) (citations omitted). “To be a manager, a defendant in a drug conspiracy need not control or manage the activities of the co-conspirators — it is sufficient that the facts show that the defendant managed the criminal activity.” United States v. Lawrence, 918 F.2d 68, 72 (8th Cir.1990), cert. denied, 499 U.S. 941, 111 S.Ct. 1399, 113 L.Ed.2d 455 (1991) (emphasis added). Indeed, one can be a “manager” or “supervisor” even when playing a role subordinate to other participants in the activity: [T]he language of the Guideline ... refers not to “subordinates” but to “participants,” thus encompassing those on an equal footing or superior to defendant in a criminal hierarchy as well as those below. United States v. Dean, 969 F.2d 187,197 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1852, 123 L.Ed.2d 475 (1993); accord United States v. Jones, 933 F.2d 1541, 1546-47 (11th Cir.1991). The commentary to U.S.S.G. § 3B1.1 lists seven" }, { "docid": "23195849", "title": "", "text": "locked 15-foot-high fence in a facility located on the Naval Base. In short, whether one focuses on the recyclables or the vendors’ checks, there is sufficient direct and circumstantial evidence upon which a rational factfinder could conclude that the property that Ca-seslorente stole was owned by the government. III. Caseslorente also challenges the district court’s application of a two-level sentence enhancement under Section 3Bl.l(c) of the United States Sentencing Guidelines for his role in the offenses he committed. Determination of a defendant’s role in an offense is a factual inquiry reviewed on appeal for clear error. United States v. Akrawi, 982 F.2d 970, 974 (6th Cir.1998). Where the district court fails to articulate the reasons for the enhancement, a de novo review is necessary to “determine whether the enhancement is applicable, or whether remand for further findings is required.” United States v. Vandeberg, 201 F.3d 805, 811 n. 2 (6th Cir.2000). Legal conclusions as to the application of the Sentencing Guidelines are reviewed de novo. See United States v. Clay, 117 F.3d 317, 320 (6th Cir.1997). Section 3Bl.l(c) of the United States Sentencing Guidelines provides: Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. Prior to November 1993, the circuit courts differed as to the interpretation of this provision. Some circuits held that it was necessary to show that a defendant exercised control over at least one participant in a criminal scheme to justify sentence enhancement under § 3B1.1. See, e.g., United States v. Fuentes, 954 F.2d 151 (3d Cir.1992); United States v. Fuller, 897 F.2d 1217 (1st Cir.1990). Others" }, { "docid": "22583817", "title": "", "text": "base offense level by three levels pursuant to U.S.S.G. § 3Bl.l(b) after finding that he was a manager or supervisor in the conspiracy. U.S.S.G. § 3Bl.l(b) says, “If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase [base offense level] by 3 levels.” Our court has held that, based on the plain meaning of the term “manager,” the enhancement can apply not only when the defendant controls people but also when the defendant has “extensive management responsibilities over property, assets, or activities of the criminal organization.” United States v. Chambers, 985 F.2d 1263, 1268 (4th Cir.), cert. denied, — U.S. -, 114 S.Ct. 107, 126 L.Ed.2d 73 (1993). The district court enhanced Capers’ sentence on the basis of Chambers, finding that Capers had control over the collection of money and delivery of drugs. Several months after Capers was sentenced but before he filed his brief on appeal, the Sentencing Commission amended the commentary to U.S.S.G. § 3B1.1 by adding a new Application Note 2. It says: To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. U.S.S.G. § 3B1.1, Application Note 2 (effective Nov. 1, 1993). Had Capers been sentenced after the effective date of this amended commentary, the enhancement would not have been warranted. But this amendment became effective after Capers was sentenced, and he wants us to apply it retroactively. We must determine, then, whether the 1993 amendment to the commentary of U.S.S.G. § 3B1.1 warrants retroactive application. Generally, subject to the limitations of the ex post facto clause, courts are to use “the Guidelines Manual in effect on the date that the defendant is sentenced.” U.S.S.G. § lBl.ll(a); 18 U.S.C. § 3553(a)(4). But “Congress has" }, { "docid": "16635155", "title": "", "text": "the offense. See United States v. Brown, 944 F.2d 1377, 1381-82 (7th Cir.1991) (citing cases). Section 3B1.1 of the United States Sentencing Guidelines provides: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager or supervisor in any other criminal activity other than described in (a) or (b), increase by 2 levels. U.S.S.G. § 3B1.1. The Guidelines do not define the words “organizer,” “leader,” “manager,” or “supervisor.” The Guidelines commentary, however, sets forth seven factors for distinguishing between an organizational and leadership role (making subsection (a) applicable) from a role of “mere management or supervision” (making subsection (b) applicable). These factors are: (1) the exercise of decision-making authority; (2) the nature of the participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of participation in planning or organizing the offense; (6) the nature and scope of the illegal activity; and (7) the degree of control and authority exercised over others. See U.S.S.G. § 3B1.1, comment, (n.3). As application note 3 to section 3B1.1 clearly states, the seven factors are to be used \"[i]n distinguishing a leadership and organizational role from one of mere management or supervision\" (emphasis added). Nonetheless, this circuit like other circuits has relied upon the seven factors, particularly the exercise of control and authority over others, in determining whether section 3B1.1(c) applies. See Brown, 944 F.2d at 1381-82 (reversed enhancement based on middleman status alone without evidence of control); United States v. Ramos, 932 F.2d 611, 618 (7th Cir.1991) (defendant controlled other members of the drug ring); United States v. Franco, 909 F.2d 1042, 1046 (7th Cir.1990) (defendant directed others in drug distribution); United States v. Camargo, 908 F.2d" } ]

[ { "docid": "18734349", "title": "", "text": "claims as promptly as possible after appointment of a trustee, 2) sale or transfer of offices and other productive units of the debtor’s business, 3) enforcement of rights of subrogation provided by SIPA, and 4) liquidation of the debtor’s business. 15 U.S.C. § 78fff(a). In order to facilitate the prompt return to customers, SIPC may make advances to the trustee and becomes subrogated to the customer claims paid to the extent of the advances. Repayment to SIPC of its advances must be made before payment to general unsecured creditors. 15 U.S.C. § 78fff-3(a). The SIPC advance is limited to $500,000 per customer, no more than $100,000 of which may be based on a customer claim to cash, as opposed to securities. The Trustee discharges customer obligations of the debtor from the debt- or’s books and records insofar as the debt- or’s obligations are ascertainable from them or from such other evidence as otherwise establishes the claim to the satisfaction of the trustee. 15 U.S.C. § 78fff—2(b). A customer’s net equity is the dollar amount of the account determined by calculating the liquidation value of all securities positions on the filing date, subtracting any indebtedness of the customer to the debtor on the filing date, and adding any payment of that indebtedness made with the approval of the trustee. 15 U.S.C. § 18lll (11). “The principal purpose of the Act was to protect investors against financial losses arising from the insolvency of their brokers. The House Report in support of the legislation noted that customers often encounter serious delays in recovering cash or securities from insolvent brokers and upon occasion are unable to recover fully what was due them. The Act was thus intended to provide protection for such purchasers analogous to that enjoyed by bank depositors under the F.D.I.C.” Securities and Exchange Commission v. S.J. Salmon & Co., Inc., 375 F.Supp. 867, 871 (D.C.S.D. N.Y.1974) (Emphasis added). The decisional law which has developed under SIPA accords to the “customer” definition an interpretation that follows logically from the bank insurance analogy. See, e.g., SEC v. S.J. Salmon & Co., Inc., 375" } ]

[ { "docid": "18553068", "title": "", "text": "re MV Securities, Inc., 48 B.R. at 159 (same). Those advances are repaid from funds in the general estate prior to payment on account of general unsecured claims. 15 U.S.C. § 78fff-3(a). The value of a customer’s account, or its “net equity”, is the measure of the preferred SIPA customer claim. “Net equity” is the dollar amount of the customer’s account or accounts, to be determined by— (A) calculating the sum which would have been owed by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer (other than customer name securities reclaimed by such customer); minus (B) any indebtedness of such customer to the debtor on the filing date; plus (C) any payment by such customer of such indebtedness to the debtor which is made with the approval of the trustee and within such period as the trustee may determine (but in no event more than sixty days after the publication of notice under section 78fff-2(a) of this title)_ 15 U.S.C. § 78lll (11). A customer’s account is valued as of the date the SIPA liquidation is commenced. 15 U.S.C. § 78fff-2(b). See, e.g., SIPC v. Vigman, 803 F.2d 1513, 1516 (9th Cir.1986) (claimant’s net equity equivalent to amount that broker would have owed claimant had it liquidated holdings on the date SIPC filed protective decree, less outstanding debt owed by claimant to debtor). See also SEC v. Aberdeen Securities Co., Inc., 480 F.2d at 1123-24 (SIPA customer account valued as of the filing date); Matter of Atkeison, 446 F.Supp. 844, 847 (M.D.Tenn.1977) (in determining what securities are owed to customer, trustee must examine books and records of debtor as of filing date); Matter of Bevill, Bresler & Schulman, Inc., 83 B.R. at 892 (“When distributing securities to customers in satisfaction of net equity claims, ‘all securities shall be valued as of the close of business on the filing date.’”) (quoting 15 U.S.C. § 78fff-2(b)). For these purposes, “accounts held by a customer in separate capacities shall be deemed to be accounts of separate customers.”" }, { "docid": "9831019", "title": "", "text": "penalty imposed because of delay in prompt payment — a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved. Furthermore, the rule reflects “the broad equitable principle that creditors should not be disadvantaged vis-a-vis one another by legal delays attributable solely to the time-consuming procedures inherent in the administration of the bankruptcy laws.” Nicholas v. United States, supra at 683, 86 S.Ct. at 1679 (footnote omitted). The SIPC reasons that since the debtor’s estate is insolvent, the District Court could not award interest on plaintiffs-appellees’ claims. We agree. Furthermore, 15 U.S.C. § 78fff-3 provides the exclusive authority for the SIPC to advance funds to a trustee in a liquidation proceeding. Although 15 U.S.C. § 78fff-3(b) gives the SIPC authority to advance administrative expenses to the trustee and § 78fff-3(c) allows the SIPC to make certain discretionary advances, § 78fff-3(a) governs the SIPC’s advances to the trustee to satisfy the “net equity claims of customers of the debtor.” Title 15 U.S.C. § 78III (11) defines “net equity” as: the dollar amount of the account or accounts of a customer, to be determined by— (A) calculating the sum which would have been owed by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer (other than customer name securities reclaimed by such customer); minus (B) any indebtedness of such customer to the debtor on the filing date; plus (C) any payment by such customer of such indebtedness to the debtor which is made with the approval of the trustee and within such period as the trustee may determine (but in no event more than sixty days after the publication of notice under section 78fff-2(a) of this title). In determining net equity under this paragraph, accounts held by a customer in separate capacities shall be deemed to be accounts of separate customers. Since the definition of “net equity” does not include interest, we hold that the SIPA does not authorize the SIPC to pay interest, either" }, { "docid": "18756068", "title": "", "text": "unsecured creditors of the debtor's estate. A look at the history of SIPA is enlightening in analyzing the parties’ dispute. SIPA’s enactment was a response to serious financial problems pervading the securities industry, H.R.Rep. No. 1613, 91st Cong., 2d Sess. 2 (1970) reprinted in 1970 U.S. Code Cong, and Ad. News 5254, 5255. The act was designed to afford protection to public customers in the event broker-dealers with whom they transact business encounter financial difficulties and are unable to satisfy their obligations to their public customers. SEC v. Alan F. Hughes, Inc., 461 F.2d 974, 977 (2d Cir.1972). See also SIPC v. Barbour, 421 U.S. 412, 414, 95 S.Ct. 1733, 1735, 44 L.Ed.2d 263 (1975); SIPC v. Morgan, Kennedy & Co. Inc., 533 F.2d 1314, 1316 (2d Cir.1975), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1976). To implement this goal, SIPC was established; its main function is to liquidate a broker or dealer when customers’ assets are in danger. Morgan, Kennedy, 533 F.2d at 1316. The purposes of a liquidation under SIPA are 1) delivery of customer name securities to customers and distribution of customer property and net equity claims as promptly as possible after appointment of a trustee, 2) sale or transfer of offices and other productive units of the debtor’s business, 3) enforcement of rights of subrogation provided by SIPA, and 4) liquidation of the debtor’s business. In re MV Securities, Inc. 48 B.R. 156, 159 (Bankr.S.D.N.Y.1985); 15 U.S.C. § 78fff(a). To facilitate the first of these enumerated purposes, SIPC may make advances to the trustee and becomes sub-rogated to the extent of its advances to the customer claims thereby paid; these advances must be repaid before payment of claims of general unsecured creditors. 15 U.S.C. § 78fff(a); see also SIPC v. Associated Underwriters, Inc., 423 F.Supp. 168, 170-73 (D.Utah 1975). SIPC advances are limited to $500,000 per customer, no more than $100,000 of which may be based on a claim for cash (as opposed to securities). 15 U.S.C. § 78fff-3(a)(l). In re Hanover Square Securities, 55 B.R. at 237. The term “customer” is" }, { "docid": "8909538", "title": "", "text": "separate account less any amount owed to the debtor plus any amount repaid by the customer to the broker with the trustee’s approval. Id. § 78III (11). Customers’ claims are satisfied from two sources: distributions from the customer property fund and SIPC monies. Both SIPA and its legislative history make clear the manner in which claims are satisfied from these sources. Certain property as defined by SIPA is pooled into a customer property fund in which customers share ratably. SIPC is liable to the extent the customer property fund is insufficient to satisfy customers’ claims up to a maximum of $500,000 per customer. Implementing this statutory scheme is complicated by the congressional requirement that SIPC make prompt payments to customers. These payments take the form of advances which are used to satisfy customer claims: SIPC would advance to the trustee such sums from the SIPC fund as would be necessary to provide for prompt payment of claims of customers of the debtor, but only to the extent of [$500,000] for each customer. This significant provision will make it possible for public customers to receive promptly that to which they are entitled without the delay entailed in waiting for the liquidation proceeding to be completed. In addition, and subject to the limitation of [$500,000, of which not more than $100,000 may be in satisfaction of a claim based on cash], public customers of the broker-dealer would receive back 100 percent of that to which they are entitled. House Report at 5262; 15 U.S.C. § 78fff-3. SIPC makes such advances prior to a determination of each customer’s ratable share of or distribution from the customer property fund. This sequence of payments— SIPC advances prior to pro rata calculations or distributions from the customer property fund — creates the possibility that a customer’s pro rata share from such fund, when combined with any advances made by SIPC, will exceed the amount of a customer’s claim. The instant dispute centers on this problem of overpayments. In other words, what happens to the excess if customers receive more than the amount of their claims based" }, { "docid": "16247649", "title": "", "text": "Madoff and BLMIS were operating a Ponzi scheme. The Securities Investor Protection Corporation (“SIPC”), a nonprofit corporation consisting of registered broker-dealers and members of national securities exchanges that supports a fund used to advance money to a SIPA trustee, then stepped in. 15 U.S.C. § 78ccc; Sec. & Exch. Comm’n v. Packer, Wilbur & Co., 498 F.2d 978, 980 (2d Cir.1974). SIPC filed an application in the civil action seeking a decree that the customers of BLMIS are in need of the protections afforded by SIPA. 15 U.S.C. § 78eee(a)(3)(A). The district court granted SIPC’s application; the protective order appointed Mr. Picard as Trustee for the liquidation of the business of BLMIS and the SIPA liquidation proceeding was removed to the bankruptcy court. Id. § 78eee(b)(3)-(4); see also Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 67 (2d Cir.2000). SIPA establishes procedures for liquidating failed broker-dealers and provides their customers with special protections. In a SIPA liquidation, a fund of “customer property,” separate from the general estate of the failed broker-dealer, is established for priority distribution exclusively among customers. The customer property fund consists of cash and securities received or held by the broker-dealer on behalf of customers, except securities registered in the name of individual customers. 15 U.S.C. § 78111(4). Each customer shares ratably in this fund of assets to the extent of the customer’s “net equity.” Id. § 78fff-2(c)(l)(B). Under SIPA: The term “net equity” means the dollar amount of the account or accounts of a customer, to be determined by— (A) calculating the sum which would have been owed by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer ...; minus (B) any indebtedness of such customer to the debtor on the filing date.... Id. § 78111(11). In many liquidations, however, the assets in the customer property fund are insufficient to satisfy every customer’s “net equity” claim. In such a case, SIPC advances money to the SIPA trustee to satisfy promptly each customer’s valid “net equity” claim. For securities" }, { "docid": "18553067", "title": "", "text": "— is a fund consisting of customer-related assets. See 15 U.S.C. § 18111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(c)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer of which no more than $100,000 may be based on a customer claim to cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection, and becomes sub-rogated to customer claims paid to the extent of advances. See 15 U.S.C. §§ 78fff-3(a), 78fff-2(c)(l), 78111(11). See also Matter of Oberweis Securities, Inc., 135 B.R. at 845 (SIPC only advances funds to the extent that the broker’s assets are insufficient to satisfy obligations to clients; SIPC’s exposure is limited to allowable SIPA claims up to $500,-000 per customer of which no more than $100,000 may represent reimbursement of cash); In re MV Securities, Inc., 48 B.R. at 159 (same). Those advances are repaid from funds in the general estate prior to payment on account of general unsecured claims. 15 U.S.C. § 78fff-3(a). The value of a customer’s account, or its “net equity”, is the measure of the preferred SIPA customer claim. “Net equity” is the dollar amount of the customer’s account or accounts, to be determined by— (A) calculating the sum which would have been owed by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer (other than customer name securities reclaimed by such customer); minus (B) any indebtedness of such customer to the debtor on the filing date; plus (C) any payment by such customer of such indebtedness to the debtor which is made with the approval of the trustee and within such period as the trustee may determine (but in no event more than sixty days after the publication of notice under section 78fff-2(a) of this title)_ 15" }, { "docid": "19086479", "title": "", "text": "Ober-weis Securities, Inc. (Matter of Oberweis Securities, Inc.), 135 B.R. 842, 845 (Bankr.N.D.Ill.1991). A “customer” is any person who has a claim “on account of securities received, acquired, or held by the debtor in the ordinary course of its business as a broker or dealer from or for the securities accounts of such person for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral security, or for purposes of effecting transfer.” 15 U.S.C. § 78lll(2). The term also includes “any person who has deposited cash with the debtor for the purpose of purchasing securities”. Id; see also In re Omni Mutual, Inc., 193 B.R. 678, 681 (S.D.N.Y.1996). “Essentially, a liquidation under the SIPA is a bankruptcy proceeding.” SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.), cert. denied sub nom. Pine Street Baptist Church v. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). SIPA § 78fff(b) provides that to the extent consistent with SIPA, “a liquidation proceeding shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3, and 5 and subchapters I and II of chapter 7 of title 11.” 15 U.S.C. § 78fff(b). SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors — is a fund consisting of customer-related assets. See 15 U.S.C. § 78111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(e)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer, of which no more than $100,000 may be based on a customer claim for cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection. SIPC becomes subrogated to" }, { "docid": "18553066", "title": "", "text": "the Bankruptcy Code”). See also SIPC v. Ambassador Church Finance/Development Group, Inc., 788 F.2d 1208, 1210 (6th Cir.) (district court erred in its award of post-petition interest to customers for period during which SIPC withheld funds while unsuccessfully challenging their status as customers; SIPA liquidation akin to proceeding under chapters 1, 3, 5 and subchapters I and II of chapter 7 of the Code and under bankruptcy law a court cannot award post-petition interest against the debt- or’s estate absent a surplus), cert. denied sub nom. Pine Street Baptist Church v. SIPC, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986); Matter of Bevill, Bresler & Schulman, Inc., 83 B.R. at 886 (SIPA liquidation akin to proceeding under chapters 1, 3, 5 and subchapters I and II of chapter 7 of the Code). Thus, SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors — is a fund consisting of customer-related assets. See 15 U.S.C. § 18111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(c)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer of which no more than $100,000 may be based on a customer claim to cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection, and becomes sub-rogated to customer claims paid to the extent of advances. See 15 U.S.C. §§ 78fff-3(a), 78fff-2(c)(l), 78111(11). See also Matter of Oberweis Securities, Inc., 135 B.R. at 845 (SIPC only advances funds to the extent that the broker’s assets are insufficient to satisfy obligations to clients; SIPC’s exposure is limited to allowable SIPA claims up to $500,-000 per customer of which no more than $100,000 may represent reimbursement of cash); In" }, { "docid": "18756069", "title": "", "text": "SIPA are 1) delivery of customer name securities to customers and distribution of customer property and net equity claims as promptly as possible after appointment of a trustee, 2) sale or transfer of offices and other productive units of the debtor’s business, 3) enforcement of rights of subrogation provided by SIPA, and 4) liquidation of the debtor’s business. In re MV Securities, Inc. 48 B.R. 156, 159 (Bankr.S.D.N.Y.1985); 15 U.S.C. § 78fff(a). To facilitate the first of these enumerated purposes, SIPC may make advances to the trustee and becomes sub-rogated to the extent of its advances to the customer claims thereby paid; these advances must be repaid before payment of claims of general unsecured creditors. 15 U.S.C. § 78fff(a); see also SIPC v. Associated Underwriters, Inc., 423 F.Supp. 168, 170-73 (D.Utah 1975). SIPC advances are limited to $500,000 per customer, no more than $100,000 of which may be based on a claim for cash (as opposed to securities). 15 U.S.C. § 78fff-3(a)(l). In re Hanover Square Securities, 55 B.R. at 237. The term “customer” is defined in SIPA as follows: The term ‘customer’ of a debtor means any person (including any person with whom the debtor deals as principal or agent) who has a claim on account of securities received, acquired, or held by the debtor in the ordinary course of its business as a broker or dealer from or for the securities accounts of such person for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral security, or for purposes of effecting transfer. The term ‘customer’ includes any person who has a claim against the debtor arising out of sales or conversions of such securities, and any person who has deposited cash with the debtor for the purpose of purchasing securities, but does not include— (A) any person to the extent that the claim of such person arises out of transactions with a foreign subsidiary of a member of SIPC; or (B) any person to the extent that such person has a claim for cash or securities which by contract, agreement, or understanding," }, { "docid": "15654237", "title": "", "text": "by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer” corrected for “any indebtedness of such customer to the debtor on the filing date.” Id. § 78III (11). These net equity claims are paid first by a pro rata distribu tion of “customer property,” which is defined as “cash and securities” held by the debtor (excluding any non-negotiable securities held in a particular customer’s name). Id. § 78ZK(4). SIPC maintains a substantial reserve fund that is supported by assessments on SIPC members’ revenues and by interest generated from its investments in U.S. Treasury notes. See id. § 78ddd(a), (c); see also Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 66 (2d Cir.2000); U.S. General Aocounting Office, Pub. No. Gao-03-811, Sec. Investor Prot.: Update On Matters Related To The Sipc 8 (2003), available at http://www.gao.gov (“2003 GAO REPORT”). To the extent that a customer’s net equity exceeds his ratable share of customer property, the trustee may use SIPC advances from this fund to pay customers in cash or to purchase replacement securities for a customer. 15 U.S.C. §§ 78fff-2(d), 78fff-3(a). These SIPC advances are subject to one of two limits under SIPA, which is why the determination of whether a customer has a “claim for cash” or a “claim for securities” must be made. SIPA provides that the “SIPC shall advance to the trustee such moneys, not to exceed $500,000 for each customer, as may be required to pay or otherwise satisfy claims for the amount by which the net equity of each customer exceeds his ratable share of customer property.” Id. § 78fff-3(a). If, however, any portion of that claim is a “claim for cash, as distinct from a claim for securities, the amount advanced to satisfy such claim for cash shall not exceed $100,000 for each such customer.” Id. § 78fff-3(a)(l). Early in the New Times liquidation, the Trustee’s review of the operations of New Times and New Age “revealed extensive intermingling of the two entities in communications with the public.”" }, { "docid": "1135408", "title": "", "text": "advancement of limited SIPC funds if the “single and separate fund” established by SIPA § 6(c)(2)(B) is insufficient to satisfy ratably the “net equity” of customer claims. 15 U.S.C. § 78fff(c)(2)(B). Pursuant to the distribution scheme outlined in SIPA § 6(f)(1)(A), 15 U.S.C. § 78fff(f)(l)(A), SIPC will advance up to $50,000 per customer if the claim is one for securities, or up to $20,000 if the claim is one for cash. SIPA § 6(c)(2)(A)(iv) defines a customer’s “net equity” as the dollar amount thereof determined by giving effect to open contractual commitments completed as provided in subsection (d) of this section, by excluding any specifically identifiable property reclaimable by the customer, and by subtracting the indebtedness, if any, of the customer to the debtor from the sum which would have been owing by the debtor to the customer had the debtor liquidated, by sale or purchase on the filing date, all other securities and contractual commitments of the customer ... 15 U.S.C. § 78fff(c)(2)(A)(iv). The court in SEC v. Aberdeen Securities Co., 480 F.2d 1121 (3d Cir. 1973), cert. denied, 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973), stated that “[t]he customer’s net equity consists of both his cash balance and the securities account valued as of the filing date.... [T]he ‘dollar amount’ of a customer’s account includes his cash which the broker has, or should have been holding.” Id., at 1127. Day’s “net equity” may be simply computed in this case as $40,000, because the Debtor should have been holding on September 15, 1975, the filing date of this proceeding, either Day’s $40,000 in the escrow account, or $40,000 worth of Potter County municipal bonds. Day’s entitlement to SIPC funds is limited to only $20,000 pursuant to SIPA § 6(f)(lXA), since his loss resulted from cash deposited with the Debtor. Day argues that his claim is one for securities, thereby entitling him to SIPC funds in the full amount of his $40,000 loss. He contends that he invested in securities- namely the subscription agreement in Play-mor Courts-and that he subsequently authorized the Debtor to purchase the Potter" }, { "docid": "7296927", "title": "", "text": "4.In addition, the parties stipulate and agree to the following facts regarding Claimant’s claims: Claimant was an investor in the Deposit Account. Claimant invested a total of $25,000.00 in the Deposit Account program, by payments to the Debtor on July 26, 1990. Prior to April 24, 1991, Claimant received payments from the Debtor (or its affiliates) as “interest” on the Deposit Account totalling $1,342.75. During the liquidation case, Claimant has received payments from the Trustee to-talling $4,079.40, which the parties agree shall reduce Claimant’s claim by the same amount. At the time of each investment, the following documents were executed and delivered, copies of which are attached hereto as Exhibit B. Claimant’s claim is allowable as a general unsecured claim. The Debtor prepared and sent to Claimant a copy of Internal Revenue Service Form 1099-DIV reporting the Debtor’s payments of interest pursuant to the Deposit Account agreement. A copy of Form 1099 is attached as Exhibit “C”. D. Joint Stipulation of Those Issues of Law On Which There is Agreement. 1. Under Section 78fff-3 of SIPA, SIPC is authorized to advance to the Trustee, in order to satisfy “net equity” claims of “customers” not more than $500,000 per customer, and in no event more than $100,000 for that portion of a claim which is for cash. 2. The availability of SIPC’s funds to satisfy the claims of Claimants who are “customers” within the statutory definition does not lessen the burden of customer’s claims on the general estate or its general unsecured Claimants. To the extent of its advances, SIPC is subrogated to the claims of such Claimants. Section 78fff-3(a). 3. The Trustee in a SIPA liquidation case is required to discharge, in accordance with the provisions of Section 78fff-2, all obligations of the Debtor to a “customer” relating to, or net equity claims based upon on, securities or cash, by the delivery of securities or the making of payments to or for the account of such customer insofar as such obligations are ascertainable from the books and records of the Debtor or are otherwise established to the satisfaction of the" }, { "docid": "7296935", "title": "", "text": "U.S.C. § 78fff-2(b). “Net equity” is defined as: The term “net equity” means the dollar amount of the account or accounts of a customer, to be determined by— (A) calculating the sum which would have been owed by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer (other than customer name securities reclaimed by such customer) minus (B) any indebtedness of such customer to the debtor on the filing date; plus (C) any payment by such customer of such indebtedness to the debtor which is made with the approval of the trustee and within such period as the trustee may determine (but in no event more than sixty days after the publication of notice under section 78fff-2(a) of this title). In determining net equity under this paragraph, accounts held by a customer in separate capacities shall be deemed to be accounts of separate customers. 15 U.S.C. § mil (11). Customer property is defined as: The term “customer property” means cash and securities (except customer name securities delivered to the customer) at any time received, acquired, or held by or for the account of a debtor from or for the securities accounts of a customer, and the proceeds of any such property transferred by the debtor, including property unlawfully converted.... 15 U.S.C. § 78111 (4). Thus all property of the insolvent broker’s customers that is not specifically identifiable is placed into a fund to pay customer claims. Specifically identifiable property is property entrusted to a stockbroker by a customer that has remained in its identical form or which has been allocated to or physically set aside for the customer as of the filing date. The Trustee is authorized to satisfy net equity claims with customer property and, to the extent this is insufficient, from advancements from SIPC up to the statutory limit. 15 U.S.C. § 78fff-2(c). SIPA authorizes SIPC to advance up to $500,000.00 per customer with no more than $100,000.00 for cash claims to fulfill each customer’s net equity. 15 U.S.C. § 78fff-3(a). To the" }, { "docid": "16247650", "title": "", "text": "established for priority distribution exclusively among customers. The customer property fund consists of cash and securities received or held by the broker-dealer on behalf of customers, except securities registered in the name of individual customers. 15 U.S.C. § 78111(4). Each customer shares ratably in this fund of assets to the extent of the customer’s “net equity.” Id. § 78fff-2(c)(l)(B). Under SIPA: The term “net equity” means the dollar amount of the account or accounts of a customer, to be determined by— (A) calculating the sum which would have been owed by the debtor to such customer if the debtor had liquidated, by sale or purchase on the filing date, all securities positions of such customer ...; minus (B) any indebtedness of such customer to the debtor on the filing date.... Id. § 78111(11). In many liquidations, however, the assets in the customer property fund are insufficient to satisfy every customer’s “net equity” claim. In such a case, SIPC advances money to the SIPA trustee to satisfy promptly each customer’s valid “net equity” claim. For securities accounts, the maximum advance is $500,000 per customer. Id. § 78fff~3(a). For customers with claims for cash, the maximum advance is substantially less. Id. § 78fff-3(a)(l), (d). Under SIPA nil claims must be filed with the trustee, id. § 78fff-2(a)(2), who is charged with determining customer claims in writing. A customer’s objection must be filed with the bankruptcy court. In satisfying customer claims in this ease, Mr. Picard, as the SIPA Trustee, determined that the claimants are customers with claims for securities within the meaning of SIPA. The Trustee further concluded that each customer’s “net equity” should be calculated by the “Net Investment Method,” crediting the amount of cash deposited by the customer into his or her BLMIS account, less any amounts withdrawn from it. J.A. at 274. The use of the Net Investment Method limits the class of customers who have allowable claims against the customer property fund to those customers who deposited more cash into their investment accounts than they withdrew, because only those customers have positive “net equity” under that method. Some" }, { "docid": "1135407", "title": "", "text": "investment in municipal bonds, is consistent with its role as a broker-dealer. The trustee is clearly erroneous in his assertion that Moore’s failure to open a formal Day account precludes “customer” treatment. Customer status under SIPA is not dependent upon official documentation in the Debtor’s books. Additionally, the trustee’s argument that Day did not entrust money with the Debtor because Moore and Brown later converted the escrow funds for their own use is without merit. Determinative here is Day’s delivery of the $40,000 to the Debtor, and not the Debtor’s subsequent mishandling of the funds. It would strike at the core of customer protection to hold that the misuse by the Debtor’s agents of monies entrusted to it by its customers defeats customer recovery under the SIPA. Day must prove only that he entrusted cash with the Debtor for the purpose of purchasing securities. SIPA § 6(c)(2)(A)(ii), 15 U.S.C. § 78fff(c)(2Xii). Day has clearly met his burden. D. Limitation of Recovery Pursuant to SIPA § 6(f)(1)(A) Customer status under SIPA entitles a claimant to an advancement of limited SIPC funds if the “single and separate fund” established by SIPA § 6(c)(2)(B) is insufficient to satisfy ratably the “net equity” of customer claims. 15 U.S.C. § 78fff(c)(2)(B). Pursuant to the distribution scheme outlined in SIPA § 6(f)(1)(A), 15 U.S.C. § 78fff(f)(l)(A), SIPC will advance up to $50,000 per customer if the claim is one for securities, or up to $20,000 if the claim is one for cash. SIPA § 6(c)(2)(A)(iv) defines a customer’s “net equity” as the dollar amount thereof determined by giving effect to open contractual commitments completed as provided in subsection (d) of this section, by excluding any specifically identifiable property reclaimable by the customer, and by subtracting the indebtedness, if any, of the customer to the debtor from the sum which would have been owing by the debtor to the customer had the debtor liquidated, by sale or purchase on the filing date, all other securities and contractual commitments of the customer ... 15 U.S.C. § 78fff(c)(2)(A)(iv). The court in SEC v. Aberdeen Securities Co., 480 F.2d 1121" }, { "docid": "19086480", "title": "", "text": "with, and as though it were being conducted under chapters 1, 3, and 5 and subchapters I and II of chapter 7 of title 11.” 15 U.S.C. § 78fff(b). SIPA liquidations generally involve customer claims and claims of general unsecured creditors, which are satisfied out of a customer estate and general estate, respectively. The customer estate — which is not available to satisfy the claims of general unsecured creditors — is a fund consisting of customer-related assets. See 15 U.S.C. § 78111(4). It is distributed pro-rata among customers. See 15 U.S.C. § 78fff-2(e)(1). A SIPA trustee discharges a debtor’s obligations to customers to the extent that they may be determined to the trustee’s satisfaction from the debtor’s books and records. 15 U.S.C. § 78fff-2(b). SIPC advances funds to the trustee — limited to $500,000 per customer, of which no more than $100,000 may be based on a customer claim for cash, as opposed to securities — as necessary to enable him to satisfy customer claims, within the limits of SIPA protection. SIPC becomes subrogated to customer claims paid to the extent of such advances. See 15 U.S.C. §§ 78fff-3(a), 78fff—2(c)(1) and, 78111(11); see also Oberweis Securities, 135 B.R. at 845; In re MV Securities, Inc., 48 B.R. 156, 159 (Bankr.S.D.N.Y.1985). Those advances are repaid from funds in the general estate prior to payments on account of general unsecured claims. 15 U.S.C. § 78fff-3(a). The value of a customer’s account, or its “net equity”, is the measure of its preferred SIPA customer claim. “Net equity” is, in substance, the total value of cash and securities owed to the customer by the debtor as of the filing date, less the total value of cash and securities owed by the customer to. the debtor as of the filing date. 15 U.S.C. § 78lll(11). See, e.g., SIPC v. Vigman, 803 F.2d 1513, 1516 (9th Cir.1986) (claimant’s net equity equivalent to amount that broker would have owed claimant had it liquidated holdings on the date SIPC filed protective decree, less outstanding debt owed by claimant to debtor). SIPC may not advance funds for claims against" }, { "docid": "7296936", "title": "", "text": "and securities (except customer name securities delivered to the customer) at any time received, acquired, or held by or for the account of a debtor from or for the securities accounts of a customer, and the proceeds of any such property transferred by the debtor, including property unlawfully converted.... 15 U.S.C. § 78111 (4). Thus all property of the insolvent broker’s customers that is not specifically identifiable is placed into a fund to pay customer claims. Specifically identifiable property is property entrusted to a stockbroker by a customer that has remained in its identical form or which has been allocated to or physically set aside for the customer as of the filing date. The Trustee is authorized to satisfy net equity claims with customer property and, to the extent this is insufficient, from advancements from SIPC up to the statutory limit. 15 U.S.C. § 78fff-2(c). SIPA authorizes SIPC to advance up to $500,000.00 per customer with no more than $100,000.00 for cash claims to fulfill each customer’s net equity. 15 U.S.C. § 78fff-3(a). To the extent customer property and SIPC advancements are insufficient to satisfy customer claims, the customer is entitled to participate in the general estate as an unsecured creditor. 15 U.S.C. § 78fff-2(c). The trustee denied customer status to claimants because he determined that claimants had loaned funds to debtor and lenders are not “customers” under SIPA. Claimants counter that the transactions were not loans and that they fit within the “customer” definition. Claimants have the burden of showing that they are entitled to customer status. SEC v. Packer, Wilbur & Co., 498 F.2d 978 (2nd Cir.1974). THE DEPOSIT ACCOUNT TRANSACTION Claimants do not dispute the Trustee’s assertion that lenders are not customers under SIPA rather claimants assert that the deposit account transactions were not loans. The trustee relies upon In re Grand Union Co., 219 F. 353 (2nd Cir.1914) appeal dismissed, Hamilton Invest. Co. v. Ernst, 238 U.S. 647, 35 S.Ct. 938, 59 L.Ed. 1504 (1915) where the Second Circuit defined a loan as: A loan of money is a contract by which one delivers a sum" }, { "docid": "10500421", "title": "", "text": "of the SIPA proceedings. DISCUSSION SIPC Fund SIPA requires SIPC to establish a fund for the satisfaction of customer claims against member broker-dealers of securities. SIPA Section 78ddd. This fund is established via assessments upon its members and if the SIPC’s fund should become inadequate, SIPA authorizes a borrowing against the U.S. Treasury of up to one billion dollars. SIPA Sections 78ddd(f), (g), and (h). Under SIPA, customer claims will be satisfied to the maximum extent possible from the assets of the defunct member broker-dealers of securities. Customers are to share on a pro rata basis in any fund of customer property and any general estate. SIPA Section 78fff-2(c)(1). If customer property and estate assets are inadequate to satisfy customer claims, SIPC will supplement the amounts available for distribution pursuant to SIPA guidelines and within the limits provided by the statute. To the extent of its advances, SIPC is subro-gated to the claims of such customers. SIPA Section 78fff-3(a). Under Section 78fff-3, SIPC is authorized to advance the trustee, in order to satisfy net equity claims of customers, not more than $500,000 per customer, and in no event more than $100,000 for that portion of a claim which is for cash rather than for securities. Regardless of the assets of the failed broker-dealer of securities, each customer with a valid claim is assured satisfaction within the limits indicated. Purposes and Nature of SIPA Proceedings Congress enacted SIPA to: protect individual investors from financial hardship; to insulate the economy from the disruption which can follow from the failure of major financial institutions; and to achieve a general upgrading of financial responsibility requirements of brokers and dealers to eliminate, to the maximum extent possible, the risks which lead to customer loss. S.Rep. No. 1218, 91st Cong., 2d Sess. at 4 (1970) U.S.Code Cong. & Admin.News 1970, p. 5254. Notwithstanding the special protection afforded customers, a SIPA liquidation proceeding is in essence a bankruptcy proceeding. SIPA Section 78fff(b) provides that to the extent consistent with SIPA, the SIPA liquidation proceeding “shall be conducted in accordance with chapters 1, 3, and 5, and subehapters" }, { "docid": "7296928", "title": "", "text": "SIPA, SIPC is authorized to advance to the Trustee, in order to satisfy “net equity” claims of “customers” not more than $500,000 per customer, and in no event more than $100,000 for that portion of a claim which is for cash. 2. The availability of SIPC’s funds to satisfy the claims of Claimants who are “customers” within the statutory definition does not lessen the burden of customer’s claims on the general estate or its general unsecured Claimants. To the extent of its advances, SIPC is subrogated to the claims of such Claimants. Section 78fff-3(a). 3. The Trustee in a SIPA liquidation case is required to discharge, in accordance with the provisions of Section 78fff-2, all obligations of the Debtor to a “customer” relating to, or net equity claims based upon on, securities or cash, by the delivery of securities or the making of payments to or for the account of such customer insofar as such obligations are ascertainable from the books and records of the Debtor or are otherwise established to the satisfaction of the Trustee. For purposes of distributing securities to customers, all securities shall be valued as of the close of business on the filing date. Section 78fff-2(b). 4. “Customer” is a statutorily defined term of art. It means “any person (including any person with whom the Debtor deals as principal or agent) who has a claim on account of securities received, acquired, or held by the Debtor in the ordinary course of its business as a broker or dealer from or for the securities accounts of such person, for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral security, or for purposes of effecting transfer. The term “customer” includes any person who has a claim against the Debtor arising out of sales or conversions of such securities, or any person who has deposited cash with the Debtor for the purpose of purchasing securities, but does not include ... (B) any person to the extent that such person has a claim for cash or securities which by contract, agreement, or understanding, or" }, { "docid": "19086481", "title": "", "text": "customer claims paid to the extent of such advances. See 15 U.S.C. §§ 78fff-3(a), 78fff—2(c)(1) and, 78111(11); see also Oberweis Securities, 135 B.R. at 845; In re MV Securities, Inc., 48 B.R. 156, 159 (Bankr.S.D.N.Y.1985). Those advances are repaid from funds in the general estate prior to payments on account of general unsecured claims. 15 U.S.C. § 78fff-3(a). The value of a customer’s account, or its “net equity”, is the measure of its preferred SIPA customer claim. “Net equity” is, in substance, the total value of cash and securities owed to the customer by the debtor as of the filing date, less the total value of cash and securities owed by the customer to. the debtor as of the filing date. 15 U.S.C. § 78lll(11). See, e.g., SIPC v. Vigman, 803 F.2d 1513, 1516 (9th Cir.1986) (claimant’s net equity equivalent to amount that broker would have owed claimant had it liquidated holdings on the date SIPC filed protective decree, less outstanding debt owed by claimant to debtor). SIPC may not advance funds for claims against the broker that do not fall within the narrow scope of a customer’s net equity claim. 15 U.S.C. § 78fff-3(a); SIPC Rules, 17 C.F.R. §§ 300.500 through 300.503. The Motion to Dismiss Movants ask us to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6), as made applicable herein by Fed.R.Bankr.Proc. 7012. That rule permits a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In making this determination, we must accept as true all of the well-pleaded facts alleged in the Complaint. See Square D Company v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 411, 106 S.Ct. 1922, 1923-24, 90 L.Ed.2d 413 (1986); Bloor v. Carro, Spanbock, Londin, Rodman & Foss, 754 F.2d 57, 60 (2d Cir.1985). We will not grant the motion unless it appears with certainty that no set of facts could be established at trial which would entitle the trustee to any relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Brass v. American Film" } ]

[ { "docid": "22427748", "title": "", "text": "New Jersey; that throughout the period during which he allegedly represented Dom Company he never met Dorn; that he never spoke with anyone from Dom Company; and that his communications with Dorn Company were limited to approximately half a dozen letters, which with the exceptions of the two set out in notes 2 and 4 of this opinion are without real significance and dealt with very minor matters. The record further shows that during the entire period in which payments were made, the first and only labor grievance between Dorn Company and Local 560 occurred in January, 1959, but that in the period 1960 through 1962 eight labor grievances arose. As was said by the Supreme Court in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942): “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” For this reason we have found it unnecessary to recite here the evidence produced by Provenzano on his own behalf. II Issues of Law (A) The Hobbs Act, 18 U.S.C. § 1951, in relevant part, provides as follows: “Interference with commerce by threats or violence (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “(b) As used in this section * * * (2) The term ‘extortion’ means the obtaining of property from anothei', with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term ‘commerce’ means commerce within the District of Columbia, or any Territory or" } ]

[ { "docid": "13635539", "title": "", "text": "Motion to Dismiss will be denied. IT IS SO ORDERED. ON MOTIONS TO DISMISS SECOND DEFENDANT The defendant, David Hall, first moves the court to dismiss count 1 of the Indictment for the failure to state factual elements sufficient to establish a violation of 18 U.S.C. § 1951 as it purports to do. Specifically, he contends that the count is defective because it does not allege he “actively induced the payment of money to him by those making the payments”. The test of sufficiency of an indictment is that “it contains ‘the elements of offense intended to be charged and must be sufficient to apprize the accused of the nature of the offense so that he may adequately prepare a defense’.” United States v. Mason, 440 F.2d 1293, 1296 (CA10 1971), cert. denied, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165. It has been further stated: “The sufficiency of indictment must be determined on the basis of practical rather than technical considerations and the validity of attacks on them must be considered from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting.” Robbins v. United States, 476 F.2d 26, 30 (CA10 1973). There are two essential elements giving rise to a violation of the Hobbs Act: Interference with commerce and extortion. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Applying the definition of extortion contained in the statute the elements may be enlarged in this manner: (1) interference with interstate commerce (2) obtaining or attempting to obtain, or conspiring to obtain property from another, (3) with his consent, (4) induced by wrongful use of actual or threatened force, violence, or fear or under color of official right. United States v. Howe, 353 F.Supp. 419 (W.D.Mo.1973). Only the sufficiency of the allegations to establish the fourth element is questioned here. The defendant apparently assumes that it is necessary to allege that he used or threatened force, violence or fear to induce the payment of money. This construction of the statute ignores its disjunctive language and" }, { "docid": "23086447", "title": "", "text": "conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term ‘commerce’ means . all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” Defendants were charged under this section with willfully attempting to obstruct, delay and affect interstate commerce and the movement of materials, equipment, services and supplies in such commerce by extortion, induced both by the wrongful use of fear of economic loss and under the color of official right. Their present challenges have to do with the meaning of “extortion”, the meaning of “commerce”, and the sufficiency of the evidence on various elements of the Government’s case. Defendants contend that the district court incorrectly instructed the jury as to the meaning of extortion under the Hobbs Act, quoting as follows from the court’s charge: “The term ‘extortion’ means obtaining of property from another with his consent induced under color of official right. It is an alternative method. It is the second string to the Government’s bow. The term extortion under the statute includes the obtaining from another induced under color of official right. The government is entitled to prove the element of extortion in the crimes charged in Counts 3 and 5 [Hobbs Act violations] either by proving extortion of money induced by fear of economic loss, or extortion of money induced under color of official right. The government is not required to prove both by fear and under the color of official right.” Defendants argue" }, { "docid": "9335903", "title": "", "text": "to prove an essential element of a Hobbs Act prosecution, i.e., that the coercion or extortion affected interstate or foreign commerce, and that because the commerce element is the jurisdictional predicate to the prosecution, the federal district courts did not have jurisdiction to try this case. Title 18 U.S.C. § 1951 provides in pertinent part: (a) Whoever in any way or degree obstructs, delays or affects commerce ... by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than 20 years, or both. (b) As used in this section— (2) the term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) the term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Court stated: [Tjhere are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. Both elements have to be charged. Neither is surplusage and neither can be treated as surplusage. The charge that interstate commerce is affected is critical since the federal government’s jurisdiction of this crime rests only on that interference. Id. at 218, 80 S.Ct. at 273-74. Later in Stirone, the court made it clear that the Hobbs Act is not to be narrowly applied. “That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Id." }, { "docid": "6028227", "title": "", "text": "any event, insufficient evidence was introduced to sustain them. We conclude that both of these arguments are meritless. Section 1951 provides in pertinent part: Whoever in any way or degree obstructs, delays, or affects commerce . .. by robbery or extortion or attempts or conspires so to do ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “Extortion” is defined in the Hobbs Act as the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951(b)(2). Clemente’s principal contention with respect to the court’s charge on the extortion counts is that the trial court improperly charged the jury on the element of wrongfulness. Extortion, as defined in the Hobbs Act, consists of the use of wrongful means to achieve a wrongful objective. United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973). The Supreme Court’s decision in Enmons teaches that the applicability of the Hobbs Act to cases such as the one before us depends on whether the statutorily identified means (“actual or threatened force, violence, or fear”) have been put to “wrongful use”, i. e., have been employed to obtain property to which “the alleged extortionist has no lawful claim.” United States v. Enmons, supra, 410 U.S. at 400, 93 S.Ct. at 1010. The trial court charged the jury on the elements of extortion as follows: First, what is an “extortion”? The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force or fear. Now, we have said that the word “extortion” means the obtaining of property from another, with his consent induced by the wrongful use of actual or threatened force or fear. In this case, the government contends that property was obtained through threats and fear of economic loss. In the context of the statute with which we are concerned, ... fear means that the alleged victim of the charged extortion feared possible financial" }, { "docid": "2099110", "title": "", "text": "drawn in general terms a conviction might rest upon a showing of either form of extortion. Cf. Stirone, supra, 361 U.S. at 218, 80 S.Ct. at 273. We cannot know whether the grand jury would have included in its indictment an allegation of extortion through threats of physical violence. The admission of evidence of such extortion, together with the trial court’s instructions, indicate that this might have been the basis of Cusmano’s conviction. If so, he was convicted on charges the grand jury never made against him. This was fatal error. Id. at 219, 80 S.Ct. at 274. See also United States v. Jones, 647 F.2d 696 (6th Cir. 1981); United States v. Wood, 609 F.2d 246 (6th Cir. 1979). The judgment of the District Court is therefore reversed. . The Hobbs Act provides, in pertinent part: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— ****** (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. . Cusmano’s motion to sever was granted, and he was tried first. His codefendants have since been convicted on both counts, and their appeals are pending in this court. . Count Two of the indictment alleged the same conduct as a substantive offense. . In addition to the testimony of Gemelli, there was other evidence of threats of physical violence, admitted to show the state of mind of the J & J Cartage employees. Carl Ottman, another driver, testified that Meli’s reputation had a bearing on Ottman’s decision to sign the 11 % agreement. He stated that Meli represented" }, { "docid": "3593353", "title": "", "text": "a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right, (emphasis supplied) 18 U.S.C. § 1951 (1976). “The Hobbs Act ... is a broadly drawn statute. The cases construing the Act have repeatedly emphasized that the Congress, in passing the statute wanted to use all of the constitutional power it had to punish interference with interstate commerce by extortion, robbery or physical violence.” United States v. Sander, 615 F.2d 215, 218 (5th Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), citing Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). This Circuit and others have long recognized that the term “fear” in the Hobbs Act includes fear of economic harm or loss. See United States v. Dale, 223 F.2d 181, 183 (7th Cir. 1955) (“We conclude that ‘fear’ as defined in the extortion section of the Anti-Racketeering Act should be given its ordinary meaning and consequently ‘fear’ would include fear of economic loss.”); United States v. Cusmano, 659 F.2d 714 (6th Cir. 1981); United States v. Forszt, 655 F.2d 101 (7th Cir.1981); United States v. Gerald, 624 F.2d 1291 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). Lisinski cites to United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973) for the proposition that extortion by wrongful use of fear of economic harm requires a threat. Enmons involved a situation where striking union members used violent means to achieve legitimate labor ends. The Supreme Court, in finding no violation of the Hobbs Act, analysed the meaning of the word wrongful as used in the statute: ... The term “wrongful” which on the face of the statute modifies the use of each of" }, { "docid": "13635540", "title": "", "text": "broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting.” Robbins v. United States, 476 F.2d 26, 30 (CA10 1973). There are two essential elements giving rise to a violation of the Hobbs Act: Interference with commerce and extortion. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Applying the definition of extortion contained in the statute the elements may be enlarged in this manner: (1) interference with interstate commerce (2) obtaining or attempting to obtain, or conspiring to obtain property from another, (3) with his consent, (4) induced by wrongful use of actual or threatened force, violence, or fear or under color of official right. United States v. Howe, 353 F.Supp. 419 (W.D.Mo.1973). Only the sufficiency of the allegations to establish the fourth element is questioned here. The defendant apparently assumes that it is necessary to allege that he used or threatened force, violence or fear to induce the payment of money. This construction of the statute ignores its disjunctive language and fails to distinguish extortion by private individuals and extortion by public officials. The distinction is pointed out in United States v. Kenny, 462 F.2d 1205, 1229 (CA3 1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176: “ . . . But while private persons may violate the statute only by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right. The term ‘extortion’ is defined in § 1951(b)(2): ‘The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.’ The ‘under color of official right’ language plainly is disjunctive. That part of the definition repeats the common law definition of extortion, a crime which could only be committed by a public official and which did not require proof of threat, fear or duress.” In United States v. Braasch, 505 F.2d" }, { "docid": "5976177", "title": "", "text": "imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: ... section 1951 (relating to interference with commerce, robbery, or extortion), ... 1954 (relating to unlawful welfare fund payments), ... (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations).... The amended third-party complaint alleges various courses of conduct on the part of each third-party defendant in violation of one or more of these enumerated predicate acts, including 18 U.S.C. § 1951 (the Hobbs Act) and extortion under New York Penal Law § 155.05(2)(e). The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,-000 or imprisoned not more than twenty years, or both. ’ (b) As used in this section— (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, under color of official right. Cases in the Second Circuit interpreting the Hobbs Act have stressed “that the element of ‘fear’ required by the Act can be satisfied by putting the victim in fear or economic loss.” United States v. Brecht, 540 F.2d 45, 52 (2d Cir.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977), quoted in United States v. Capo, 817 F.2d 947, 951 (2d Cir.1987). The absence or presence of fear of economic loss must be considered from the perspective of the victim, not the extortionist; the proof need establish that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit" }, { "docid": "22951553", "title": "", "text": "two additional substantive wire fraud counts (Counts Seventeen and Eighteen) that do not fall under the RICO umbrella count. The jury convicted Antico of all eighteen counts in the superseding indictment. With respect to the RICO count, the jury concluded that fifteen of the sixteen predicate racketeering acts were proven. On April 28, 2000, Antico was sentenced to terms of sixty-three months imprisonment on Counts One through Ten (RICO and extortion) and to terms of sixty months imprisonment on Counts Eleven through Eighteen (wire fraud). All terms were to be served concurrently. In addition, Antico was sentenced to three years supervised release, ordered to pay a fine of $10,000 and a special assessment of $1,000, and ordered to forfeit $52,900. II. Legal Discussion This Court has jurisdiction of an appeal from a judgment of conviction and sentencing pursuant to 28 U.S.C. § 1291. On appeal, Antico alleges three points of trial error and challenges his sentence on two grounds. We address each allegation of error in turn. A. Requirement of Inducement or Quid Pro Quo in Hobbs Act Extortion Antico challenges the District Court’s instructions to the jury with respect to Hobbs Act extortion under “color of official right.” The Hobbs Act provides in relevant part: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951 (emphasis added). Thus, the statute supports two classes of extortion: extortion induced by “wrongful use of force” and extortion “under color of official right.” The latter is" }, { "docid": "3593352", "title": "", "text": "and IV and brings this appeal. I Whether the evidence is insufficient to sustain the extortion conviction? a). Necessity of a Threat? Lisinski contends that an indispensable element of extortion by wrongful use of fear of economic harm is a threat, whether direct or indirect. Lisinski argues that the evidence at trial showed no threat and that Patras’ fear of economic harm was self-generated. The government argues, on the other hand, that no threat is necessary. The government suggests that extortion by wrongful use of fear of economic harm is established by showing that the defendant preyed upon or exploited the victim’s fear of economic harm. We agree. Our analysis commences with the statute. Mills v. United States, 713 F.2d 1249, 1251 (7th Cir.1983). The Hobbs Act provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right, (emphasis supplied) 18 U.S.C. § 1951 (1976). “The Hobbs Act ... is a broadly drawn statute. The cases construing the Act have repeatedly emphasized that the Congress, in passing the statute wanted to use all of the constitutional power it had to punish interference with interstate commerce by extortion, robbery or physical violence.” United States v. Sander, 615 F.2d 215, 218 (5th Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), citing Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). This Circuit and others have long recognized that the term “fear” in the Hobbs Act includes fear" }, { "docid": "969151", "title": "", "text": "used in the course of committing the offense. 18 U.S.C. § 924(c)(3). To determine whether a conviction offense is a “crime of violence,” we apply a categorical approach “focus[ing] on the statutory definition of the offense, rather than the manner in which the offender may have violated the statute in a particular circumstance.” United States v. Rafidi, 829 F.3d 437, 444 (6th Cir. 2016) (quoting United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013)). Where, as here, a defendant is convicted of violating a divisible statute, we review a narrow category of documents to determine which portion the defendant violated. See id. The Hobbs Act provides that Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. 18 U.S.C. § 1951(a). It goes on to define robbery as the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. 18 U.S.C. § 1951(b)(1). It defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). Defendant contends that one can satisfy the offense elements of the Hobbs Act •without using, attempting, or threatening physical force against the person' or property of another as required by § 924(c)(3)(A). For example, defendant posits that one could nonviolently extort property from" }, { "docid": "22951554", "title": "", "text": "in Hobbs Act Extortion Antico challenges the District Court’s instructions to the jury with respect to Hobbs Act extortion under “color of official right.” The Hobbs Act provides in relevant part: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951 (emphasis added). Thus, the statute supports two classes of extortion: extortion induced by “wrongful use of force” and extortion “under color of official right.” The latter is at issue in this case. Specifically, Antico argues that the District Court should have charged the jury to determine whether he induced his extortion victims into giving him gifts and favors with a promise or threat of an official act in return or, at a minimum, that a quid pro quo was reached between them. This Court exercises plenary review over the alleged failure of the District Court to charge the jury properly on a matter of law. United States v. Bradley, 173 F.3d 225, 230 (3d Cir.1999). 1. Inducement With respect to Antico’s claim that an inducement instruction should have been charged to the jury as per subsection (b)(2) of the Hobbs Act, the Supreme Court in Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), clearly rejected inducement as an element of the offense of extortion “under color of official right.” Id. at 256, 112 S.Ct. 1881. The Supreme Court affirmed the ruling of the Court of Appeals for the Eleventh Circuit, which held that the requirement of" }, { "docid": "2332408", "title": "", "text": "is duplicitous, however, Petitjean has waived this argument. Under Federal Rule of Criminal Procedure 12(b)(2), defenses and objections based on defects in the indictment or the information must be raised prior to trial. Otherwise, they are waived under Rule 12(f) of the Federal Rules of Criminal Procedure. United States v. Goudy, 792 F.2d 664, 670 (7th Cir.1986). In Petitjean’s pre-trial “Motion to Dismiss Indictment” he raised various challenges to the indictment, including multiplicity, but did not raise duplicity as a basis for dismissal. Although a court may grant relief from a waiver for good cause shown, Petitjean did not make any attempt to show good cause. Thus, we agree with the government that this argument is waived. B. Sufficiency of the Evidence 1. Extortion (Count II) Petitjean was convicted with one count of violating the Hobbs Act, 18 U.S.C. § 1951. This statute provides in part: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear, or under color of official right. Count II of the indictment charged Pet-itjean with extorting the payment of $1,500.00 from Peter Ryan on August 27, 1987. Petitjean essentially argues that he did not violate the Hobbs Act because no “wrongful use of actual or threatened force, violence, or fear” occurred. In other words, Petitjean maintains that no extortion occurred. We disagree. Not only did Petitjean make several threats to Ryan during this conversation, but the defendant also made threats to Ryan on prior occasions which would have induced him to pay the money to Petitjean on that" }, { "docid": "15548653", "title": "", "text": "upon and would be paid. . Workman had his copy of the cover letter destroyed. To the best of his recollection the letter stated that a check for $1,500 was enclosed for purposes of blocking the Illinois title law. . In relevant part, 18 5U.S.C. § 1951 provides: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “(b) As used in this section— (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” . Extortion becomes a federal offense in violation of the Hobbs Act where it interferes with interstate commerce “in any way or degree.” 18 U.S.C. § 1951(a). Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). . 18 U.S.C. § 1341 provides: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place" }, { "docid": "7132780", "title": "", "text": "VAN OOSTERHOUT, Circuit Judge. These are appeals by defendants, Bianchi, Thompson, and Poster, from conviction on two counts of an indictment and judgments and sentences imposed thereon. The appellants will be referred to herein as defendants, and unless otherwise indicated the defendants shall include the three defendants above named. The charges were based on section 1951, Title 18, United States Code, which is known as the Hobbs Act and the Anti-Racketeering Act. This statute, so far as material, provides: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “(b) As used in this section— ****•» “(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. ■ “(3) The term ‘commerce’ means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point out- ■ side thereof; all commerce between points within the same State. through any place outside such State; and all other commerce over which the United States has jurisdiction.” Count I of the indictment charges defendants with conspiring to obstruct interstate commerce by extortion, and Count II charges the substantive offense of obstructing commerce by extortion. The extortion charged was that the defendants obtained $15,312 for their personal use and profit from the Trojan Construction Company engaged in a project in interstate commerce “by threatening physical violence to the person of the said Felix Johnson and upon the properties of the said ‘corporation’ and by using their aforesaid respective union capacities in a wrongful, arbitrary, unreasonable and oppressive" }, { "docid": "10726415", "title": "", "text": "Id. As a threshold matter, we must analyze whether the charged crimes of bribery and extortion are separate offenses. The Illinois bribery statute provides that: A person commits bribery when ... he receives, retains or agrees to accept property ... which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of any public officer____ 720 ILCS 5/33 — 1(d). The Hobbs Act provides: Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more that $10,000 or imprisoned not more than twenty years, or both. 18 U.S.C. § 1951(a). The Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). However, under the Hobbs Act, a public official need not demand payment to satisfy the elements of extortion; “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 1889, 119 L.Ed.2d 57 (1992). Accordingly, the district court instructed the jury that “Extortion under color of official right means that a public official has obtained a payment to which he was not entitled knowing that the payment was made in return for official acts.” (Tr. 3051). Because the public official may passively accept payment (in exchange for the performance of official acts), the distinction between the elements of extortion applied to a public official under the Hobbs Act and the elements of bribery under Illinois" }, { "docid": "23609543", "title": "", "text": "the offense and, as such, is not a reason to depart). We review a district court’s decision to depart from the Guidelines to determine whether it was reasonable in light of the district court’s explanations for its departure. 18 U.S.C. § 3742(e)(3) (1990); United States v. Schmude, 901 F.2d 555, 558 (7th Cir.1990). The language of the Hobbs Act, codified at 18 U.S.C. § 1951 (1987), does not suggest a Congressional intent to limit its application to those with organized crime ties. The Act punishes [wjhoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section ... 18 U.S.C. § 1951(a) (1987). Extortion is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2) (1987). Nowhere does the Act state that the fear must be induced by exploitation of organized crime connections. In fact, the words of the statute “do not lend themselves to restrictive interpretation; as we have recognized, they ‘manifest ... a pur.pose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.’ ” United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978) (quoting Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960)). In Culbert the Supreme Court held that Congress had not intended to limit the scope of the Hobbs Act to violations including “racketeering.” The same reasoning applies to the inclusion of an organized crime element and convinces us that proof of organized crime connections is not required for violation of the Hobbs Act. The Second Circuit agrees that the Hobbs Act is not limited to prosecutions involving organized crime. United States" }, { "docid": "8761986", "title": "", "text": "U.S. 562, 572, 94 S.Ct. 1849, 1854-55, 40 L.Ed.2d 380 (1974). Under either or both of the approaches the requirements of 18 U.S.C. § 2518(4) were satisfied. 2. Hobbs Act Extortion Counts twenty-four through forty-one of the superseding indictment charged nine of the thirteen appellants with Hobbs Act violations, 18 U.S.C. § 1951. These charges stemmed, inter alia, from the appellants’ participation in the “100 hours” program described above. All of the nine persons charged were found guilty of at least one count of Hobbs Act extortion. In pertinent part, the Hobbs Act provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned for not more than twenty years or both. “Extortion” is defined in the Act as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear....” 18 U.S.C. 1951(b)(2). At trial appellants objected to several parts of the judge’s charge to the jury on the Hobbs Act counts. The district judge instructed the jury that four elements must be satisfied before it can find appellants in violation of the Hobbs Act. The court stated: In order to meet its burden of proving that the defendants committed extortion under the Hobbs Act, the Government must prove each of the following elements: First, that the defendants induced or attempted to induce others to part with their property; Second, that the defendants did so with the victims’ consent, but that this consent was compelled by the wrongful use or threat of force, violence or fear; Third, that interstate commerce or an item moving in interstate commerce was delayed, obstructed or affected in any way or degree; and Fourth, that the defendants acted knowingly and willfully. The appellants do not challenge the" }, { "docid": "14550041", "title": "", "text": "others, mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), and interfering with interstate commerce by robbery, extortion, or threat of violence (18 U.S.C. § 1951)); (c) certain labor violations under Title 29; and (d) securities and narcotics violations punishable under federal law. The complaint attempts to allege two types of predicate crimes in order to entitle plaintiff to civil relief under RICO. First, it is claimed that defendants have violated 18 U.S.C. § 1951, a provision commonly known as the Hobbs Act, and described in RICO itself, § 1961(1)(A), as “relating to interference with commerce, robbery, or extortion____” Section 1951 provides in pertinent part as follows: § 1951. Interference with commerce by threats or violence (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. (2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. If this complaint is to come within § 1951, it must be on the theory that defendants have been guilty of extortion by threatening plaintiff with economic loss. None of the other acts prohibited in § 1951 (robbery" }, { "docid": "11172105", "title": "", "text": "the statutory definition itself, we can formulate no judicial rule that would draw a practical line between one type of extortion that is covered by the Hobbs Act and another type which is not. Moreover, we cannot require, as an element of the offense, the presence of at least two individuals as evidencing the participation of organized crime, for the Hobbs Act definition of extortion is not limited to the crime of conspiracy to extort but deals with the substantive offense which can be committed by a single individual. Thus, Judge Weinstein properly charged the jury that they could find the required element of fear if the evidence showed “a state of anxious concern, alarm, apprehension of anticipated harm to the business or a threatened loss to the business.” Accordingly, we affirm appellant’s conviction on Count One. The conviction on Count One is affirmed; the conviction on Counts Four and Six are reversed. . Section 1951 provides in relevant part as follows: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “(b) As used in this section— “(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” . Section 1952 provides in relevant part as follows: “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified . . ., shall be fined not more than $10,000 or" } ]

[ { "docid": "22625576", "title": "", "text": "U. S., at 21. Here, by contrast, the perishable cantaloupes were destined to be shipped to an ascertainable location in California immediately upon harvest. Even more to the point, the taxes in Federal Compress and Chassaniol were imposed on goods and operations within the State, whereas the application of the statute at issue here would require that an operation now carried on outside the State must be performed instead within the State so that it can be regulated there. If the appellant’s theory were correct, then statutes expressly requiring that certain kinds of processing be done in the home State before shipment to a sister State would be immune from constitutional challenge. Yet such stat utes have been consistently invalidated by this Court under the Commerce Clause. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S. 385. See also Lemke v. Farmers Grain Co., 258 U. S. 50; Shafer v. Farmers Grain Co., 268 U. S. 189. Thus it is clear that the appellant’s order does affect and burden interstate commerce, and the question then becomes whether it does so unconstitutionally. Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U. S. 761, but more frequently" } ]

[ { "docid": "6439045", "title": "", "text": "legislature seeks to erect a barricade at one gate to slow the traffic does not violate the Equal Protection Clause in that other paths have not yet been blocked. “The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.\" Dandridge v. Williams, supra, 897 U.S. at 486-87, 90 S.Ct. at 1162, citing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). INTERSTATE COMMERCE Plaintiffs’ final attack on the holding period alleges that the Act places an impermissible burden on interstate commerce. The general rule for determining whether a State has placed an impermissible burden on interstate commerce is stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970): “... Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.. . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. ...” (Citations omitted.) Id. at 142, 90 S.Ct. at 847. In Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979), the United States Supreme Court set out a three-part inquiry under the general rule: “. .. we must inquire (1) whether the challenged statute regulates evenhandedly with only ‘incidental’ effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. . .. ” Id. at 336, 99 S.Ct. at 1736. Further, the Court stated: “... The burden" }, { "docid": "22594092", "title": "", "text": "be a desirable result — and in some cases arguably was the constitutionally correct result, as I describe below — the negative Commerce Clause rationale upon which they rested remains unsettling because of that rationale’s lack of a textual basis. Moreover, our negative Commerce Clause jurisprudence has taken us well beyond the invalidation of obviously discriminatory taxes on interstate commerce. We have used the Clause to make policy-laden judgments that we are ill equipped and arguably unauthorized to make. See Moorman Mfg. Co. v. Bair, 437 U. S. 267, 278-280 (1978) (recognizing that establishing a formula for apportioning taxes on multistate corporations would require “extensive judicial lawmaking” for which the courts are ill suited). In so doing, we have developed multifactor tests in order to assess the perceived “effect” any particular state tax or regulation has on interstate commerce. See Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977); see also Quill Corp. v. North Dakota, 504 U. S. 298 (1992). And in an unabashedly legislative manner, we have balanced that “effect” against the perceived interests of the taxing or regulating State, as the very description of our “general rule” indicates: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron [Portland] Cement Co. v. Detroit, 362 U. S. 440, 443 [(1960)]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). Any test that requires us to assess (1) whether a particular statute serves a “legitimate” local public interest; (2) whether the effects of the statute on interstate commerce are merely “incidental” or “clearly excessive in relation to the putative benefits”;" }, { "docid": "18366895", "title": "", "text": "distinctions may be made with substantially less than mathematical exactitude. . In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines ... in the local economic sphere, it is only invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. Parma’s authority to regulate the use of controlled substances “ ‘is too firmly established to be successfully called in question.’ ” Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758 (1962). Because the city’s regulation of the use, distribution or advertisement of drug paraphernalia is rationally related to this manifestly legitimate municipal interest, Tobacco Road v. City of Novi, supra, the plaintiff’s equal protection argument is unpersuasive. IV. THE COMMERCE CLAUSE Finally, the plaintiff claims that the ordinance is inconsistent with the Commerce Clause of the Constitution, Article I, Section 8, Clause 3, because it imposes an impermissible burden on interstate commerce. In Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), a unanimous Court adopted the following statement of the applicable law: Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 4 L.Ed.2d 852. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving" }, { "docid": "2019706", "title": "", "text": "absent here, we analyze the burden on foreign commerce in the same manner that we analyze the burden on interstate commerce. In Pike v. Bruce Church, 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), the Supreme Court articulated the balancing test used to determine whether evenhanded state laws and regulations are valid under the Commerce Clause: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the-burden imposed on such commerce is clearly excessive in relation to the putative local benefits.... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Id. at 142, 90 S.Ct. at 847 (internal citations omitted). Regulations promulgated pursuant to the state’s interest in the preservation of its wildlife carry a strong presumption of validity. See Bibb v. Navajo Freight Lines, 359 U.S. 520, 524, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003 (1959). To defeat the Depart ment’s motion for summary judgment, PNVP was required to show that it could offer evidence at trial legally sufficient to support a determination that the impacts of the regulations on interstate and foreign commerce are so great that they outweigh this vital state interest. Evidence that interstate and foreign commerce is in some way affected by the regulations is not enough to meet this burden; what is required is evidence that these effects are of a type or an extent that could support a determination that they are “clearly excessive” in relation to the state’s interest in the health of its native wildlife. See Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (plaintiff must produce evidence sufficient to support a jury verdict); New York State Trawlers Assoc. v. Jorling, 16 F.3d 1303, (2d Cir., 1994). PNVP has failed show that" }, { "docid": "6793046", "title": "", "text": "reasons articulated above, the court finds that under the Interstate Commerce Act, Congress contemplated a multilayer system of transportation regulation. The court therefore finds that CPUC regulations do not conflict with federal legislation in the transportation field. II. BURDEN ON INTERSTATE COMMERCE Plaintiff also contends that the CPUC regulations are an unconstitutional burden on interstate commerce, prohibited by the Commerce Clause (Art. I, § 8, cl. 3). The legal test for determining the validity of state statutes that affect interstate commerce is set forth in Pike v. Bruce Church Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970): Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Id. at 142, 90 S.Ct. at 847; see also Burlington Northern R.R. Co. v. Dep’t of Public Service Regulation, 763 F.2d 1106, 1114 (9th Cir.1985) (challenger to state regulation must show that it “impedes substantially the free flow of commerce from state to state”). Federal Express contends that enforcement of the CPUC regulations will place an unreasonable burden on interstate commerce because the regulations will increase operating costs, result in delays in delivery times and reduce operating, pricing and discount flexibility. The CPUC counters that Federal Express’ scenario of burdens is unfounded and that CPUC regulation of Federal Express would be reasonable and tailored to Federal Express’ existing method of operation. Much of Federal Express’ Commerce Clause analysis is premised on its contention that it cannot determine at the time of package pick-up whether a package from a location in California will move solely by ground transportation or partially by air. Federal Express contends that this inability" }, { "docid": "13677062", "title": "", "text": "852 (1960) (alteration in original). To determine whether state action burdens interstate commerce in violation of the dormant Commerce Clause, courts apply the Pike undue burden balancing test: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (internal citation omitted). The undue burden test is less scrutinizing than the test for affirmatively discriminatory state actions. See Yamaha Motor Corp., 401 F.3d at 567. As discussed herein, Maryland has a legitimate interest in ensuring that Maryland residents have available to them an adequate and reliable supply of electric energy. Presumably, Plaintiffs take the position that the SWMAAC locational requirement constitutes an undue burden on interstate commerce. The PSC regulated to finance indirectly the development and operation of a generation facility within SWMAAC, which will participate in the wholesale energy and capacity markets in the PJM region like any other generation facility. Other than increasing the available supply of electric energy and capacity in the PJM region by adding a new generation facility in SWMAAC, the Generation Order does not affect the ability of other market participants to sell energy and capacity in the PJM Markets. The Court does not find evidence that the addition of a state-sponsored market participant physically located within SWMAAC imposes a burden, let alone an undue burden, on interstate commerce. Even if the Generation Order could be viewed as placing or imposing some burden on interstate commerce, the burden would be de minimis, and thus, not clearly excessive in relation to the benefits to Maryland. The" }, { "docid": "4148704", "title": "", "text": "license or permit are specifically excluded from this classification. See Ind.Code § 14-2-1-2. Further, the statute does not purport to vest exclusive control with the IDNR. DeHart’s reliance on Indiana Code § 36-l-3-8(a)(7), which provides that a municipality does not have: “[t]he power to regulate conduct that is regulated by a state agency, except as expressly granted by statute,” consequently is misplaced because DeHart’s animals are not “wildlife resources of the state” subject to IDNR’s oversight. Thus, Austin had the power to enact Ordinance No. 1991-02. See Ind.Code §§ 36-1-3-2 et seq. II. The Constitution gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States_” Art. I, § 8. “Although the [Commerce] Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade.” Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 35, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980). Thus, even in areas where Congress has not exercised its authority, state or local regulations may violate the Commerce Clause either because the regulations discriminate against interstate or foreign commerce, or because they incidentally affect such commerce. Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) (citation omitted). The person challenging a statute that regulates evenhandedly bears the burden of showing that the incidental burden on interstate commerce is excessive compared to the local interest. Hughes v. Oklahoma, 441 U.S. 322, 336, 99" }, { "docid": "13609381", "title": "", "text": "severe restrictions on the pricing of raisins, the Court found “significant” under the commerce clause the fact that “the national government has contributed to these efforts either by its establishment of marketing programs pursuant to act of Congress or by aiding programs sponsored by the state.” 317 U.S. at 365, 63 S.Ct. at 320. The negative aspect of the commerce clause does not come into play as a bar when Congress has affirmatively acted to authorize or approve the state conduct in question. In Exxon the Maryland statute preventing vertical integration of certain aspects of the gasoline business did not attempt to interfere or restrict price in the marketplace, and the purpose of the statute was not to redress an imbalance in bargaining power. Thus we conclude that a state’s interest in righting a bargaining imbalance, standing alone, is not sufficient under the commerce clause to permit direct interference with pricing where it burdens interstate commerce. We remand the case to the District Court for further consideration and fact finding under the test established in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) respecting the “extent of the burden” on interstate commerce and the question whether any other “legitimate local public interest” is present to support the pricing provisions of the statute under the commerce clause. The test established in Pike v. Bruce Church, supra, is as follows: Where the [challenged state] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443. [80 S.Ct. 813, 815, 4 L.Ed.2d 852]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities. 397" }, { "docid": "11668453", "title": "", "text": "local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440 [80 S.Ct. 813, 4 L.Ed.2d 852], If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach resolving these issues, Southern Pacific Co. v. Arizona, 325 U.S. 761 [65 S.Ct. 1515, 89 L.Ed. 1915] but more frequently it is spoken in terms of “direct” and “indirect” effects and burdens. 397 U.S. at 142, 90 S.Ct. at 847. In Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979), the Supreme Court reiterated the Pike test as follows: [W]e must inquire (1) whether the challenged statute regulates evenhandedly with only “incidental” effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. The burden to show discrimination rests on the party challenging the validity of the statute, but “[w]hen discrimination against commerce ... is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interest at stake.” 441 U.S. at 336, 99 S.Ct. at 1736. . Notable in Toomer was the Court’s ruling that another statute which imposed a tax on certain shrimp taken within the maritime belt did not violate the Commerce clause. The Court stated that, “[taxing the taking of shrimp] does not discriminate against interstate commerce in shrimp, and the taxable event, the taking of shrimp, occurs before" }, { "docid": "12979469", "title": "", "text": "unavoidable when a State legislates to safeguard the health and safety of its people.” 437 U.S. at 623-24, 98 S.Ct. at 2535. In this context, the Court explained that “where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.... But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142[, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).]” Id., 437 U.S. at 624, 98 S.Ct. at 2535. In Pike, the Court ruled: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits..... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that' will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike, 397 U.S. at 142, 90 S.Ct. at 847; see Jorling, 16 F.3d at 1307 (“Provided a state does not discriminate against non-residents, ... it may impose incidental burdens on interstate commerce when exercising its police power to promote safety or general welfare.” (citing Laurence H. Tribe, American Constitutional Law § 6-5, at 408 (2d ed. 1988) (“State regulation affecting interstate commerce will be upheld if (a) the regulation is rationally related to a legitimate state end, and (b) the regulatory burden imposed on interstate commerce, and any discrimination against it, are outweighed by the state interest in enforcing the regulation.”))). These principles were relevant when the Washington Superior Court considered Palisades Recycling’s dormant Commerce Clause claim and the arguments opposing it. Hence C.Y. Landfill, in its state court memorandum in opposition to Palisades Recycling’s motion for a preliminary injunction, maintained that any" }, { "docid": "4148705", "title": "", "text": "authority, state or local regulations may violate the Commerce Clause either because the regulations discriminate against interstate or foreign commerce, or because they incidentally affect such commerce. Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) (citation omitted). The person challenging a statute that regulates evenhandedly bears the burden of showing that the incidental burden on interstate commerce is excessive compared to the local interest. Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979). By contrast, if a statute discriminates against interstate commerce either on its face or in its practical effect, it is subject to the strictest scrutiny, and the burden shifts to the governmental body to prove both the legitimacy of the purported local interest and the lack of alternative means to further the local interest with less impact on interstate commerce. Wyoming v. Oklahoma, 502 U.S. 437, -, 112 S.Ct. 789, 799-801, 117 L.Ed.2d 1 (1992). “Thus, where simple economic protectionism is effected by state legislation, a virtual per se rule of invalidity has been erected.” Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978). The Ordinance does not effect “simple protectionism,” but regulates evenhandedly by imposing a complete ban on commerce in wild or dangerous animals within the town of Austin without regard to the origin of the animals. Because the Ordi nance does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on" }, { "docid": "18366896", "title": "", "text": "Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), a unanimous Court adopted the following statement of the applicable law: Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 4 L.Ed.2d 852. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 .... Pike, therefore, suggests a three-part test: first, the local legislation must serve a legitimate local public interest; second, it must affect interstate commerce only incidentally; and, third, if the first two tests are met, the court must then determine whether the legitimate local purpose justifies the law’s impact on interstate commerce. See Great Western United Corp. v. Kidwell, 577 F.2d 1256 (5th Cir. 1978), reversed on other grounds 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1980). Applying this test, the court concludes that the Par-ma Ordinance does not impermissibly burden commerce. As noted earlier, the object of the Ordinance, the control of drug abuse, is clearly, a legitimate municipal concern. Therefore, the first portion of the Pike test is met. The second portion of the test is also met. The court recognizes that because nearly all of the items used with illegal drugs have legitimate uses, the sale of such items could not be prohibited for" }, { "docid": "20050607", "title": "", "text": "the Court has no difficulty in finding that the enactment of section 135.04 represents a valid exercise of the legislature’s police power. Although the 90-day notice requirement places a restriction on a party’s right to contract in the State of Wisconsin, that restriction represents a valid exercise of the legislature’s police power for, as the Supreme Court noted in Nebbia v. New York, 291 U.S. 502, 527-528, 54 S.Ct. 505, 511-512, 78 L.Ed. 940 (1934); The Constitution does not guarantee the unrestricted privilege to engage in business or to conduct it as one pleases. Certain kinds of businesses may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned .... [Sjtatutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state’s competency. Defendant does not rest its constitutional contentions solely on the police power issue. It also argues that the Wisconsin Fair Dealership Law runs afoul of the policy of free trade reflected in the commerce clause even if it represents a valid exercise of the legislature’s police power for due process purposes. In Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), the Supreme Court set out the following rule for determining the validity of state statutes affecting interstate commerce: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. 397 U.S. at 142, 90 S.Ct. at 847. Defendant does not" }, { "docid": "13609382", "title": "", "text": "Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) respecting the “extent of the burden” on interstate commerce and the question whether any other “legitimate local public interest” is present to support the pricing provisions of the statute under the commerce clause. The test established in Pike v. Bruce Church, supra, is as follows: Where the [challenged state] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443. [80 S.Ct. 813, 815, 4 L.Ed.2d 852]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities. 397 U.S. at 142, 90 S.Ct. at 847. In view of our analysis, the best course to follow is to remand this aspect of the case to the District Court for further consideration. We cannot be sure on the basis of the present record whether there are other, as yet unidentified, state interests which support the pricing restriction; and we do not find in the record evidence that would allow us to assess with confidence the nature and “extent of the burden” imposed by the pricing restrictions. V. Accordingly, the Court concludes that the judgment of the District Court should be affirmed except for its ruling on subsections (B) and (C) of Section 1333.06 of the Ohio statute. We remand the case to the District Court for further consideration of the validity of these two subsections in accordance with the analysis set out in this opinion. . The pertinent provisions of the statute are as follows: § 1333.05 [Definitions.] As used in sections 1333.05 to 1333.07 of the Revised Code: (H) “Trade screening” means the showing" }, { "docid": "19744352", "title": "", "text": "05 Civ. 1792 (E.D.N.Y. Sept. 14, 2006). Accordingly, we discern no clear discrimination in this case. B. The Pike Balancing Test Having determined that the Ferry Law does not “patently] discriminate]” against interstate commerce, we next assess its validity under the Pike balancing test. City of Philadelphia, 437 U.S. at 624, 98 S.Ct. 2531. Under Pike, a non-discriminatory regulation will be upheld if the burden it places on interstate commerce is outweighed by its local public benefits: Where the statute regulates even-hand-edly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. 397 U.S. at 142, 90 S.Ct. 844 (citation omitted). We have explained that the “incidental” burdens to which Pike refers “are the burdens on interstate commerce that exceed the burdens on intrastate commerce.” USA Recycling, 66 F.3d at 1287. Thus, at a minimum, the challenged regulation “must impose a burden on interstate commerce that is qualitatively or quantitatively different from that imposed on intrastate commerce.” Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 109 (2d Cir.2001). We have recognized three circumstances in which an evenhanded regulation imposes an incidental burden on interstate commerce: “(1) when the regulation has a disparate impact on any non-local commercial entity; (2) when the statute regulates commercial activity that takes place wholly beyond the state’s borders; and (3) when the challenged statute imposes a regulatory requirement inconsistent with those of other states.” United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 438 F.3d 150, 156-57 (2d Cir.2006), cert. granted, - — U.S.-, 127 S.Ct. 35, 165 L.Ed.2d 1013 (Sept. 26, 2006); see Sal Tinnerello & Sons, Inc. v. Town of Stonington, 141" }, { "docid": "7127267", "title": "", "text": "Inc., 755 F.Supp.2d at 878-79. The Ninth Circuit has also recognized the extraterritoriality principle. See Pacific Merchant Shipping Ass’n v. Goldstene, 639 F.3d 1154, 1178 (9th Cir.2011) (observing that \"the Commerce Clause prohibits state legislation regulating commerce that takes place wholly outside of the state’s borders, regardless of whether the commerce has effects within the state.”) (citing Healy and Edgar). . Plaintiffs submit that even under the Pike balancing test, the Mississippi statute is unconstitutional. Under the Pike balancing test: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike, 397 U.S. at 142, 90 S.Ct. 844. Plaintiffs contend there is no legitimate local interest which the Act seeks to protect that is not already protected by existing legislation and that the effects on interstate commerce are more than merely incidental. The only putative local benefit defendants have identified is the prevention, investigation and prosecution of fraud. Indeed, in their motion and briefs on the pending motions, defendants repeatedly identify as the sole purpose for the Act the prevention, investigation and prosecution of fraud. Since fraud is already illegal, both under state and federal law, the Act adds nothing toward improving the prevention or investigation of fraud. And plaintiffs have shown that there is a more than minimal burden on interstate commerce that cannot be justified. . The court finds it unnecessary to address plaintiffs’ First Amendment claim." }, { "docid": "704791", "title": "", "text": "authority does not extend to evaluating the wisdom or soundness of such judgments. Accordingly, the Court holds plaintiff’s equal protection argument to be without merit. The Commerce Clause Plaintiff also asserts that the ordinance is inconsistent with the Commerce Clause of the Constitution. Article I, Section 8, Clause 3. The Court is urged to measure the ordinance against the standard found in the Supreme Court decision of Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), wherein a unanimous Court adopted the following statement of law: Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443 [80 S.Ct. 813, 816, 4 L.Ed.2d 852]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U.S. 761 [65 S.Ct. 1515, 89 L.Ed. 1915], but more frequently it has spoken in terms of ‘direct’ and ‘indirect’ effects and burdens. See, e. g., Shafer v. Farmers Grain Co. [268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909], supra. Pike, therefore, suggests a three-stage test: first, the state or local legislation must serve a legitimate local public interest; second, it must affect interstate commerce only incidentally, and; third, if the first two tests are met, the Court must then determine whether the legitimate local purpose justifies the law’s impact on interstate commerce. See, Great Western United Corp. v." }, { "docid": "3892671", "title": "", "text": "labeling law was authorized by Congress in the federal hazardous waste management statute, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, and thus the state statute is not vulnerable to challenge under the Commerce Clause. Because we conclude that NEMA has not demonstrated a likelihood of success on the merits of its Commerce Clause and First Amendment claims, we vacate the injunction. I. Commerce Clause A statute may violate, the well-established “dormant” aspect of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, in one of two ways: it may clearly discriminate against interstate commerce, in which case it is virtually invalid per se, see Wyoming v. Oklahoma, 502 U.S. 437, 454, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992), or even if it does not evince such discriminatory effect, it may still be unconstitutional if it imposes a burden on interstate commerce incommensurate with the local benefits secured, see Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). NEMA argues that section 6621d violates the Commerce Clause in the latter manner. We disagree and thus conclude that NEMA cannot show likely success on the merits of its Commerce Clause claim. In Pike, the Supreme Court adopted a balancing test to determine whether state statutes that incidentally burden interstate commerce violate the Commerce Clause. The Court held that [wjhere the statute regulates even-hand-edly to effectuate a legitimate local pub- lie interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Id. (citations omitted). For a state statute to run afoul of the Pike standard, the statute, at a minimum, must impose a burden on interstate commerce that" }, { "docid": "20050608", "title": "", "text": "the commerce clause even if it represents a valid exercise of the legislature’s police power for due process purposes. In Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), the Supreme Court set out the following rule for determining the validity of state statutes affecting interstate commerce: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. 397 U.S. at 142, 90 S.Ct. at 847. Defendant does not contend that section 135.04 treats foreign franchise grantors differently from local franchise grantors. Nor does it contend that the effects of the notice requirement are anything but an incidental by-product of the law. Therefore, the Court must only determine whether the actual burden placed on interstate commerce by the notice requirements of section 135.04 is clearly excessive in relation to the putative local benefits of those requirements. Section 135.04 does not prohibit a grantor from ever leaving the State of Wisconsin once a franchise has been established in the state. Rather, it only requires a franchisor who wishes to leave the state to notify the dealer of his decision 90 days in advance of his departure, to give the dealer the reasons for his departure and to provide him 60 days in which to rectify any claimed deficiency. Because section 135.04 mandates a relatively short waiting period and does not prevent a business from leaving the state after proper notice has been given, the Court finds its burden on interstate commerce minimal. Moreover, when balanced" }, { "docid": "13677061", "title": "", "text": "on Interstate Commerce Plaintiffs contend that the Generation Order imposes a significant burden on interstate commerce and that there is no evidence in the record demonstrating that the Order was needed to maintain reliability in Maryland. Defendants maintain that Plaintiffs have failed to meet their burden of demonstrating that the benefits of the Generation Order are clearly outweighed by the burdens it imposes on interstate commerce. State action that does not affirmatively discriminate against interstate commerce may nonetheless violate the dormant Commerce Clause if it places an undue burden on interstate commerce. See Yamaha Motor Corp., 401 F.3d at 567. The Supreme Court has noted: “[I]t must be borne in mind that the Constitution when ‘conferring upon Congress the regulation of commerce, ... never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.’ ” Huron Portland Cement Co. v. City of Detroit, Mick, 362 U.S. 440, 443-44, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960) (alteration in original). To determine whether state action burdens interstate commerce in violation of the dormant Commerce Clause, courts apply the Pike undue burden balancing test: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (internal citation omitted). The undue burden test is less scrutinizing than the test for affirmatively discriminatory state actions. See Yamaha Motor Corp., 401 F.3d at 567. As discussed herein, Maryland has a legitimate interest in ensuring that" } ]

[ { "docid": "10801829", "title": "", "text": "his most recent allegation against the Department when he received his “complete” file pursuant to a FOIA request in early 2002. Accordingly, when Rouse’s complaint was filed on September 27, 2005, it was filed more than two years after he knew or had reason to know of the alleged violations. B Before proceeding further, we must decide whether § 552a(g)(5) operates as'a statute of limitations or as a jurisdictional bar. If it is the former, the traditional defenses of “waiver, estoppel, and equitable tolling” apply. United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). If it is the latter, such defenses are inapplicable, and we lack subject matter jurisdiction over the case entirely. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). For many years, it was commonplace for courts to determine that time limits in statutes permitting suits against the government were jurisdictional in nature. See, e.g., Action on Smoking & Health v. C.A.B., 724 F.2d 211, 225 (D.C.Cir.1984). Such statutes were viewed as conditions to waivers of sovereign immunity and were thus construed narrowly. See Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). Indeed, at least one of our sister circuits determined that § 552a(g)(5) was jurisdictional. See Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), however, the Supreme Court announced a “general rule” that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. at 95-96, 111 S.Ct. 453. The Court reasoned that while waivers of sovereign immunity had to be “unequivocally expressed,” once Congress made such waiver, applying “the rule of equitable tolling ... to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.” Id. at 95, 111 S.Ct. 453. Congress, the Court ruled," } ]

[ { "docid": "1330755", "title": "", "text": "immunity. Rather than focusing directly on the language and history of the FTCA as one might expect, courts have generally approached this question indirectly, asking whether the applicable time limit is “juris dictional” and, if so, deeming equitable tolling to be unavailable. See, e.g., Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1035-47 (9th Cir.2013); Arteaga v. United States, 711 F.3d 828, 832-3 (7th Cir.2013); see generally John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-38, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (discussing the relationship between absolute or “jurisdictional” deadlines and equitable tolling). Most recently, the Supreme Court has given added credence to this approach. See Sebelius v. Auburn Reg'l Med. Cir.,—U.S.-, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (“[WJere we to type the governing statute ‘jurisdictional’ ” there could “be no equitable tolling.” (citation omitted)). This circuit has previously opined that the FTCA’s timeliness requirements are jurisdictional. See, e.g., Román-Cancel v. United States, 613 F.3d 37, 42 (1st Cir. 2010) (explaining that “[cjompliance with the FTCA’s temporal deadlines is both mandatory and jurisdictional”). We have also nevertheless assumed that equitable tolling can be applied to those deadlines. See Ramirez-Carlo v. United States, 496 F.3d 41, 48-49 & n. 3 (1st Cir.2007); Rakes v. United States, 442 F.3d 7, 25 (1st Cir.2006). But see McIntyre v. United States, 367 F.3d 38, 61 & n. 8 (1st Cir.2004) (questioning whether equitable tolling applies to FTCA). We are not, it seems, the only circuit to have proceeded in this manner. See T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961 (8th Cir.2006). The observation in Sebelius and like cases that labeling these deadlines “jurisdictional” would preclude application of equitable tolling suggests that something must eventually give in our circuit’s jurisprudence. The Supreme Court’s most recent guidance on what is “jurisdictional” suggests that we may have erred in presuming that subject matter jurisdiction hinged on compliance with the FTCA’s deadlines for presenting claims. See generally Gonzalez v. Thaler,—U.S.——, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (pressing “a strict distinction between truly jurisdictional rules ..." }, { "docid": "203086", "title": "", "text": "lack of subject matter jurisdiction. . This court recently noted that failure to comply with FIRREA’s claims processing rules (e.g., filing deadlines) does not necessarily raise a jurisdictional issue. Campbell v. FDIC, 676 F.3d 615, 618 (7th Cir.2012) (\"[I]t is our belief that in light of the Supreme Court’s more recent decisions, the proper characterization of FIRREA’s rules for claims submission [is] as claims processing rules.” (internal citations omitted)). Unlike the plaintiff in Campbell, however, Farnik and North Inc. do not allege that they are entitled to an extension of the claim filing deadline or a favorable outcome from another discretionary decision in the claims process. Rather, they completely bypassed the administrative process that grants judicial review of FIRREA claims, which presents a jurisdictional issue. See Henderson ex rel. Henderson v. Shinseki, - U.S. -, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) (“We have urged that a rule should not be referred to as jurisdictional unless it governs a court's adjudicatory capacity....”); 12 U.S.C. § 1821(d)(13)(D) (\"No court shall have jurisdiction....”). . The Appellants have not asserted that they were exempt from the administrative claims process because they filed the initial complaint before InBank failed, although the FDIC argued that FIRREA's administrative exhaustion requirement applies to pre-receiv-ership claims in its brief. While there is no Seventh Circuit precedent on this issue, other circuits have interpreted FIRREA as allowing courts to maintain jurisdiction over pre-re-ceivership claims and as requiring such claims to go through the administrative claims process through a provision mandating that courts grant requests for stays made by the receiver. See 12 U.S.C. § 1821(d)(12) (requiring courts to grant a 90-day stay \"in any judicial action or proceeding to which such institution is or becomes a party” (emphasis added)); Marquis v. FDIC, 965 F.2d . 1148, 1154 (1st Cir.1992) (interpreting FIR-REA as \"permitfting] federal courts to retain subject matter jurisdiction in circumstances where a bank’s failure (and the FDIC's appointment as receiver) postdates the institution of a suit against the bank”); see also Glover v. FDIC, 698 F.3d 139, 151 (3d Cir. 2012) (holding, in the alternative, that" }, { "docid": "19644698", "title": "", "text": "591 (2008). We explained that, unlike run-of-the-mill statutes of limitation, jurisdictional time limits \"seek ... to achieve a broader system-related goal, such as facilitating the administration of claims, limiting the scope of a governmental waiver of sovereign immunity, or promoting judicial efficiency.\" Id.,at 133, 128 S.Ct. 750(citations omitted). Recounting our decisions in Kendall,Finn,De Arnaud,New York,and Soriano,we \"reiterated\" our understanding of the \"absolute nature of the court of claims limitations statute.\" 552 U.S., at 135, 128 S.Ct. 750. And we rejected an invitation to abandon that interpretation, noting that Congress has long accepted our interpretation of the statute. Id.,at 139, 128 S.Ct. 750. The same must be said of the FTCA. As we have often explained, \"[w]hen a long line of this Court's decisions left undisturbed by Congress has treated a similar requirement as 'jurisdictional,' we will presume that Congress intended to follow that course.\" Henderson v. Shinseki,562 U.S. 428, 436, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011)(citation and some internal quotation marks omitted); Reed Elsevier, Inc. v. Muchnick,559 U.S. 154, 168, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Union Pacific R. Co. v. Locomotive Engineers,558 U.S. 67, 82, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). Every single decision from this Court interpreting the Tucker Act's \"similar requirement\" has treated it as jurisdictional. And there is strong historical evidence that Congress \"intended to follow that course.\" That should be the end of the matter: Section 2410(b)'s filing deadlines are jurisdictional limits that are not subject to equitable tolling. B Even if the FTCA's filing deadlines are not jurisdictional, they still prohibit equitable tolling. To be sure, in recent years, we have grown reluctant to affix the \"jurisdictional\" label. See, e.g., Arbaugh v. Y & H Corp.,546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Henderson, supra,at 434-436, 131 S.Ct. 1197. \"But calling a rule nonjurisdictional does not mean that it is not mandatory.\" Gonzalez v. Thaler,565 U.S. ----, ----, 132 S.Ct. 641, 651, 181 L.Ed.2d 619 (2012). Where Congress imposes an inflexible claims processing rule, it is our duty to enforce the law and prohibit equitable tolling, whether it" }, { "docid": "19610903", "title": "", "text": "agree, to allow the proceedings to reach a conclusion as to the alien's admissibility or removability, although any resulting \"removal order could not be executed during the period in which the [alien's] TPS status is valid.\" Id. at 396. The Board's decision in Matter of Sosa Ventura predated the recent decision by the Attorney General that immigration judges generally lack the power to close administratively removal proceedings. See Matter of Castro-Tum , 27 I. & N. Dec. 271, 272 (A.G. 2018). This case presents us with no occasion to comment on the merits of Matter of Castro-Tum . The district court's resolution of the case was based on its reading of several of our cases that had required exhaustion of administrative remedies for similar claims and that appeared to treat exhaustion as a jurisdictional requirement. See, e.g. , Kashani v. Nelson , 793 F.2d 818, 822 (7th Cir. 1986). We note that these cases predated the Supreme Court's recent efforts \"to 'bring some discipline' to the use of the term 'jurisdictional.' \" Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (quoting Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ). Consistent with that instruction, we have been more careful \"to distinguish between the court's power to adjudicate the [matter] and the court's authority to grant relief.\" Ahmed v. Dep't of Homeland Sec. , 328 F.3d 383, 386 (7th Cir. 2003). Applying that practice here, we agree with our colleagues on the Sixth Circuit that \"[b]ecause the APA is not a jurisdiction-conferring statute, [the] elements of a claim under the APA,\" including exhaustion, \"are not jurisdictional.\" Haines v. Fed. Motor Carrier Safety Admin. , 814 F.3d 417, 424 (6th Cir. 2016) (internal quotation marks omitted) (second alteration in original). Consequently, we need not address exhaustion. This case is better analyzed under the related but \"conceptually distinct\" concept of finality. See Darby v. Cisneros , 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) ; see also infra II.C. Mr. Dhakal responds that" }, { "docid": "19610904", "title": "", "text": ", 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (quoting Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ). Consistent with that instruction, we have been more careful \"to distinguish between the court's power to adjudicate the [matter] and the court's authority to grant relief.\" Ahmed v. Dep't of Homeland Sec. , 328 F.3d 383, 386 (7th Cir. 2003). Applying that practice here, we agree with our colleagues on the Sixth Circuit that \"[b]ecause the APA is not a jurisdiction-conferring statute, [the] elements of a claim under the APA,\" including exhaustion, \"are not jurisdictional.\" Haines v. Fed. Motor Carrier Safety Admin. , 814 F.3d 417, 424 (6th Cir. 2016) (internal quotation marks omitted) (second alteration in original). Consequently, we need not address exhaustion. This case is better analyzed under the related but \"conceptually distinct\" concept of finality. See Darby v. Cisneros , 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) ; see also infra II.C. Mr. Dhakal responds that the agency , meaning the Department of Homeland Security, has reached a final decision, because removal proceedings are conducted by the Executive Office for Immigration Review in the Department of Justice. That is, although there is further executive branch review, there is no intra-agency review; the Department of Homeland Security has completed its review of his asylum claim. It is a novel, but ultimately unconvincing, argument. Although the structure of the proceedings span two agencies in two cabinet departments, Congress clearly intended to consolidate and channel appeals through a single administrative process. The decision of the agency not to place in removal proceedings unsuccessful asylum applicants who hold valid TPS, 8 C.F.R. § 208.14(c)(2), is essentially a blanket stay, or an exercise of prosecutorial discretion. As such, it would not be subject to our review. Heckler v. Chaney , 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (\"This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process," }, { "docid": "11944759", "title": "", "text": "the rule is jurisdictional, its violation can be cured by the filing of an amended or supplemental complaint if, as here, the first-filed action is no longer “pending.” See, e.g., United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 3 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 2517, 195 L.Ed.2d 859 (2016); United States ex rel. Brown v. Pfizer, Inc., No. 05-CV-6795 (RBS), 2016 WL 807363 (E.D. Pa. Mar. 1, 2016); United States ex rel Kurnik v. PharMerica Corp., No. 11-CV-1464, 2015 WL 1524402, at *6 (D.S.C. Apr. 2, 2015); Cephalon, 159 F.Supp.3d at 558; United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 157 F.Supp.3d 1311 (N.D. Ga. 2015). Based on a careful review of the FCA’s text, structure, and. purpose, the Court concludes that Wood and the Government have the better of the argument and that a violation of the first-to-file bal-ean be cured by amending or supplementing the complaint after the first-filed action has been dismissed. As an initial matter, the Court agrees with the D.C. Circuit that the first-to-file bar is not jurisdictional. See Heath, 791 F.3d at 119-20. Admittedly, the majority of Circuits have ruled otherwise. See, e.g., Gadbois, 809 F.3d at 3; United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 181 (4th Cir. 2013); Walburn, 431 F.3d at 970. In recent years, however, the Supreme Court has stressed the need to bring “some discipline to the use of the term jurisdiction[al],” and has repeatedly held that, absent a “clear statement” from Congress, courts “should treat” procedural restrictions “as nonjuris-dictional.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (internal quotation marks omitted); see also Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct, 641, 648, 181 L.Ed.2d 619 (2012); Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). As the D.C. Circuit observed in Heath, the language of the first-to-file bar “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.”" }, { "docid": "11679565", "title": "", "text": "be material to the establishment of liability under the Act.” See 5 U.S.C. § 552a(g)(5). See also, e.g., Lockett 259 Fed.Appx. at 786, Oja, 440 F.3d at 1136. Boyd alleges the VA “willfully and materially” misrepresented the information regarding when he could file a lawsuit. Plaintiffs Response, Doc. 16 at 5. The information allegedly misrepresented is not material to the establishment of the VA’s liability under the Privacy Act, only to the procedural requirements for filing a claim. The Privacy Act’s statute of limitations exception is, thus, inapplicable. The undisputed facts demonstrate that Boyd filed this action outside the Privacy Act statute of limitations and that his claim does not fall under the statute’s exception. The action may proceed only if it qualifies for some form of equitable relief from the deadline. B. Equitable Relief from Statute of Limitations Whether equitable relief from the statute of limitations is available to the Plaintiff hinges on whether the Privacy Act’s statute of limitations, 5 U.S.C. § 552a(g)(5), is a traditional statute of limitations or a jurisdictional bar. United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). If it is indeed a jurisdictional bar, as Defendant suggests, this Court lacks subject matter jurisdiction over the case and it must be dismissed. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). There is a circuit split as to whether the Privacy Act’s statute of limitations is jurisdictional in nature and the Sixth Circuit has not yet opined on the issue. Defendant argues that it is, in fact, a jurisdictional bar, citing the Seventh Circuit. See Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). The Seventh and Tenth Circuits have held that a plaintiffs failure to file within the Act’s two year limitations period deprives courts of. subjection matter jurisdiction. See Harrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir.2002). Conversely, the Ninth Circuit and the D.C. Circuit hold the Privacy Act’s statute of limitations is not a jurisdictional bar, citing the Supreme Court’s decision in" }, { "docid": "4865099", "title": "", "text": "210 (1998). Prudential standing is not jurisdictional because prudential standing has not been ranked by Congress as jurisdictional and is not a limitation on a court’s authority to hear a case, as opposed to a limitation on who may sue to challenge a particular agency action. See Reed Elsevier, Inc. v. Muchnick, — U.S. -, 130 S.Ct. 1237, 1243-44, 176 L.Ed.2d 18 (2010). In recent years, the terminology of jurisdiction has been put under a microscope at the Supreme Court. And the Court has not liked what it has observed — namely, sloppy and profligate use of the term “jurisdiction” by lower courts and, at times in the past, the Supreme Court itself. These recent Supreme Court cases have significantly tightened and focused the analysis governing when a statutory requirement is jurisdictional. In Reed Elsevier, for example, the Court emphasized that a statutory requirement is jurisdictional when it speaks to the power of a court to hear a case rather than to the rights of or restrictions on the parties. Id. at 1243; see also Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“Recognizing our less than meticulous use of the term in the past, we have pressed a stricter distinction between truly jurisdictional rules, which govern a court’s adjudicatory authority, and nonjurisdictional claim-processing rules, which do not.”) (internal quotation marks omitted); Henderson ex rel. Henderson v. Shinseki, — U.S. -, 131 S.Ct. 1197, 1202-03, 179 L.Ed.2d 159 (2011) (“We have urged that a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction. Other rules, even if important and mandatory, we have said, should not be given the jurisdictional brand.”) (citations omitted); Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“the notion of subject-matter jurisdiction obviously extends to classes of cases falling within a court’s adjudicatory authority”) (internal quotation marks and ellipsis omitted); Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (“Jurisdiction, this Court has observed," }, { "docid": "259997", "title": "", "text": "including our sister circuits — to seriously question and, in some instances, discard their previous view that § 2401(b)’s limitations provisions are jurisdictional. See, e.g., Hughes v. United States, 263 F.3d 272, 278 (3d Cir.2001) (relying on Irwin and noting that “the FTCA’s statute of limitations is not jurisdictional”); Glarner v. U.S. Dep’t of Veterans Admin., 30 F.3d 697, 701 (6th Cir.1994) (“[T]he VA first argues that the doctrine of equitable tolling cannot apply to § 2401(b) because the latter is a jurisdictional statute of limitations that cannot be equitably tolled. This assertion is incorrect.”); see also State v. Sharafeldin, 382 Md. 129, 854 A.2d 1208, 1217 (2004) (“Most of the lower Federal courts have given credence to that language [of Irwin ], however, have shifted their previously-held view, and have applied equitable tolling principles to untimely claims made to the administrative agency or to untimely lawsuits after denial of the claim.”); Jacob Damrill, Note, Waves of Change Towards a More Unified Approach: Equitable Tolling and the Federal Torts Claims Act, 50 Tulsa L.Rev. 271, 276 (2014) (“Prior to Irwin, federal courts consistently and unanimously held that equitable tolling did not apply to the FTCA because section 2401(b)’s two-year limitations provision was a jurisdictional bar to untimely claims. In the wake of Irwin, federal courts reversed course and immediately began to apply equitable tolling to [the] FTCA two-year limitation period.” (italics added) (footnotes omitted)). In Auburn Regional, in 2013, the Court adopted a new analytical framework for assessing whether statutory conditions on lawsuits against the United States were jurisdictional. The Court recognized that through a series of eases it had “ ‘tried ... to bring some discipline to the use’ of the term ‘jurisdiction.’ ” Auburn Reg’l, 133 S.Ct. at 824 (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011)). In these opinions the Court had, in particular, explained time and again that statutes of limitations are not always — and, indeed, presumptively are not — jurisdictional. The touchstone standard laid out in these cases “for determining whether to classify a" }, { "docid": "259998", "title": "", "text": "276 (2014) (“Prior to Irwin, federal courts consistently and unanimously held that equitable tolling did not apply to the FTCA because section 2401(b)’s two-year limitations provision was a jurisdictional bar to untimely claims. In the wake of Irwin, federal courts reversed course and immediately began to apply equitable tolling to [the] FTCA two-year limitation period.” (italics added) (footnotes omitted)). In Auburn Regional, in 2013, the Court adopted a new analytical framework for assessing whether statutory conditions on lawsuits against the United States were jurisdictional. The Court recognized that through a series of eases it had “ ‘tried ... to bring some discipline to the use’ of the term ‘jurisdiction.’ ” Auburn Reg’l, 133 S.Ct. at 824 (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011)). In these opinions the Court had, in particular, explained time and again that statutes of limitations are not always — and, indeed, presumptively are not — jurisdictional. The touchstone standard laid out in these cases “for determining whether to classify a statutory limitation as jurisdictional” is a “readily administrable bright line” rule. Id. (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)) (internal quotation marks omitted); see also Utah ex rel. Utah Dep’t of Envtl. Quality v. U.S. EPA, 765 F.3d 1257, 1258 (10th Cir.2014) (“Filing deadlines can be jurisdictional or non[-]jurisdietional. To decide which deadlines are jurisdictional, we apply a ‘bright-line’ rule.”). Fundamentally, this framework “focuses on Congress’s stated intention.” Utah, 765 F.3d at 1258; see Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157 (10th Cir.2013) (en banc) (Gorsuch, J., concurring) (“T[he] rule requires us to ‘inquire whether Congress has clearly stated that the rule is jurisdictional; absent such a clear statement ... courts should treat the restriction as nonjurisdictional in character.’ ” (omission in original) (quoting Auburn Reg’l, 133 S.Ct. at 824)), aff'd sub non. Burwell v. Hobby Lobby Stores, Inc., — U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). In applying this bright-line test, “we focus on the legal character of" }, { "docid": "23542153", "title": "", "text": "equitable tolling. See Arteaga v. United States, 711 F.3d 828, 832-33 (7th Cir.2013); Santos ex rel. Beato v. United States, 559 F.3d 189, 194-98 (3d Cir.2009); Perez v. United States, 167 F.3d 913, 916-17 (5th Cir.1999). 2. Jurisdictional vs. Nonjurisdictional Claim-Processing Rules As a threshold matter, we must decide whether § 2401(b) is a “jurisdictional” rule, to which equitable doctrines cannot apply, or a nonjurisdictional “claim-processing rule” subject to Irwin’s presumption in favor of equitable tolling. Both Alvarez-Machain I and Marley were decided without the benefit of the Supreme Court’s most recent decisions clarifying the difference between these two categories. Accordingly, before turning to § 2401(b) itself, we discuss the Court’s efforts in recent years to “bring some discipline” to the “jurisdictional” label. See Henderson ex rel. Henderson v. Shinseki, - U.S. -, 131 S.Ct. 1197, 1202-03, 179 L.Ed.2d 159 (2011); see also Gonzalez, 132 S.Ct. at 648. The consequences of labeling a particular statutory requirement “jurisdictional” are “drastic.” Gonzalez, 132 S.Ct. at 648. A court’s “[s]ubject-matter jurisdiction can never be waived or forfeited,” “objections [to the court’s jurisdiction] may be resurrected at any point in the litigation,” and courts are obligated to consider sua sponte requirements that “go[ ] to subject-matter jurisdiction.” Id.; see also Henderson, 131 S.Ct. at 1202; Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir.2009). The Court has clarified in recent years that the term “ ‘[j]urisdiction[al]’ refers to a court’s adjudicatory authority ... [and] properly applies only to prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) implicating that authority.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (emphasis added) (internal quotation marks and citation omitted). Under this narrow interpretation, the term “jurisdictional” “refers [only] to a tribunal’s power to hear a case.” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009) (internal quotation marks omitted). So-called “claim-processing rules,” by contrast, “are rules that seek to promote the orderly progress of" }, { "docid": "11944760", "title": "", "text": "D.C. Circuit that the first-to-file bar is not jurisdictional. See Heath, 791 F.3d at 119-20. Admittedly, the majority of Circuits have ruled otherwise. See, e.g., Gadbois, 809 F.3d at 3; United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 181 (4th Cir. 2013); Walburn, 431 F.3d at 970. In recent years, however, the Supreme Court has stressed the need to bring “some discipline to the use of the term jurisdiction[al],” and has repeatedly held that, absent a “clear statement” from Congress, courts “should treat” procedural restrictions “as nonjuris-dictional.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (internal quotation marks omitted); see also Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct, 641, 648, 181 L.Ed.2d 619 (2012); Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). As the D.C. Circuit observed in Heath, the language of the first-to-file bar “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” 791 F.3d at 120 (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). What is more, other provisions of the FCA do refer explicitly to, jurisdiction and thus make plain that Congress knew how to expressly distinguish between jurisdictional and non-jurisdictional rules. See, e.g,, 31 U.S.C. § 3730(e)(1) (“No court shall have jurisdiction over an action brought by a former or present member of the armed forces,..,”); id. § 3730(e)(2)(A) (“No court shall have jurisdiction over an action brought ... against a Member of Congress, a member of the judiciary, or a senior executive branch official:...”); see also, e.g., Nken v. Holder, 556 U.S. 418, 430, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). Other considerations bolster the conclusion that “the first-to-file rule bears only on whether a qui tarn" }, { "docid": "1330756", "title": "", "text": "is both mandatory and jurisdictional”). We have also nevertheless assumed that equitable tolling can be applied to those deadlines. See Ramirez-Carlo v. United States, 496 F.3d 41, 48-49 & n. 3 (1st Cir.2007); Rakes v. United States, 442 F.3d 7, 25 (1st Cir.2006). But see McIntyre v. United States, 367 F.3d 38, 61 & n. 8 (1st Cir.2004) (questioning whether equitable tolling applies to FTCA). We are not, it seems, the only circuit to have proceeded in this manner. See T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961 (8th Cir.2006). The observation in Sebelius and like cases that labeling these deadlines “jurisdictional” would preclude application of equitable tolling suggests that something must eventually give in our circuit’s jurisprudence. The Supreme Court’s most recent guidance on what is “jurisdictional” suggests that we may have erred in presuming that subject matter jurisdiction hinged on compliance with the FTCA’s deadlines for presenting claims. See generally Gonzalez v. Thaler,—U.S.——, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (pressing “a strict distinction between truly jurisdictional rules ... and nonjurisdictional claim-processing rules” (citations and quotation marks omitted)). If we did so err, however, it does not follow that we also erred in presuming that equitable tolling can stay the running of the FTCA’s deadlines. To the contrary, classifying the deadlines as non-jurisdictional enhances the case for finding equitable tolling to be available. See Kwai Fun Wong, 732 F.3d at 1038 (FTCA deadlines are not jurisdictional and equitable tolling is available), overruling Marley v. United States, 567 F.3d 1030 (9th Cir.2009). To decide the case now before us, we need not definitively unravel this skein. Rather, we can approach this case as we approached our decision in Gonzalez, giving the plaintiff the benefit of assuming that equity can toll the running of the FTCA’s limitations period if a factual basis for tolling exists. D. Has plaintiff established a factual basis for invoking equitable tolling? The trap for the unwary into which Mr. Sanchez has fallen arises because doctors who work at facilities that may appear to be nongovernmental may nevertheless be deemed federal employees" }, { "docid": "1434659", "title": "", "text": "LEAN’S complaint as true and view the facts in the light most favorable to LEAN. See Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010) (“The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when all well-pleaded facts are assumed true and are viewed in the light most favorable to the plaintiff.”) (citation omitted). However, if the provision is jurisdictional, and thus goes to the district court’s subject matter jurisdiction, then the district court is not obligated to accept the assertions in LEAN’S complaint as true. Instead, the district court is empowered “to make factual findings which are decisive of jurisdiction,” because “[j]urisdictional issues are for the court ... to decide.” Williamson, 645 F.2d at 413 (citations omitted). With this understanding of the important practical consequences in mind, we turn to recent Supreme Court eases that provide guidance on determining whether a provision is jurisdictional. The Supreme Court “has endeavored in recent years to ‘bring some discipline’ to the use of the term ‘jurisdictional.’ ” Gon zalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (citation omitted); see, e.g., Henderson v. Shinseki, — U.S.-, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); Reed Elsevier, Inc. v. Muchnick, — U.S.-, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Union Pac. R.R. v. Bhd. Locomotive Eng’rs & Trainmen Gen. Comm, of Adjustment, — U.S.-, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009); Arbaugh v.Y&H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). The Court has stated that “a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction. Other rules, even if important and mandatory ... should not be given the jurisdictional brand.” Henderson, 131 S.Ct. at 1202-03 (citations omitted). “Among the types of rules that should not be described as jurisdictional are ... ‘claim-processing rules,’ ” which are “rules that seek to promote the orderly progress of" }, { "docid": "8758269", "title": "", "text": "This Court has previously explained that “the overall authority of the Board to hear [a] case under the NLRA” is a jurisdictional question that “ ‘may be raised at any time.’ ” NLRB v. Konig, 79 F.3d 354, 360 (3d Cir.1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir.1964)); see also Polynesian Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472 (9th Cir.1978). Under § 153(b) and New Process Steel, delegee groups of the Board do not have statutory authority to act if they have fewer than three members. New Process Steel, 130 S.Ct. at 2644; Teamsters Local Union No. 52S v. NLRB, 624 F.3d 1321, 1322 (10th Cir.2010) (holding that a “two-member NLRB group that issued the order in this case lacked statutory authority to act ” (emphasis added)). The three-member-composition requirement is thus jurisdictional because it goes to the Board’s authority “to hear [a] case under the NLRA.” Konig, 79 F.3d at 360. Nevertheless, the Supreme Court “has endeavored in recent years to ‘bring some discipline’ to the use of the term ‘jurisdictional.’ ” Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (quoting Henderson v. Shinseki — U.S. -, 131 S.Ct. 1197, 1202-03, 179 L.Ed.2d 159 (2011)). So there may be reason to believe that Ko-nig’s analysis and the subsequent jurisdictional conclusion for this case are no longer valid. Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon, 538 F.3d 241, 249 n. 16 (3d Cir.2008) (explaining that “[a]n intervening decision of the Supreme Court is a sufficient basis for us to overrule a prior panel’s opinion without referring the case for an en banc decision”). Our review of the Court’s recent clarification shows that Konig remains good law and that the three-member-composition requirement is jurisdictional. The Court has explained that jurisdiction “refers to a court’s adjudicatory authority.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 1243, 176 L.Ed.2d 18 (2010) (quoting Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). Subject-matter jurisdiction “refers to ‘the courts’ statutory or constitutional" }, { "docid": "11679566", "title": "", "text": "United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). If it is indeed a jurisdictional bar, as Defendant suggests, this Court lacks subject matter jurisdiction over the case and it must be dismissed. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). There is a circuit split as to whether the Privacy Act’s statute of limitations is jurisdictional in nature and the Sixth Circuit has not yet opined on the issue. Defendant argues that it is, in fact, a jurisdictional bar, citing the Seventh Circuit. See Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987). The Seventh and Tenth Circuits have held that a plaintiffs failure to file within the Act’s two year limitations period deprives courts of. subjection matter jurisdiction. See Harrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir.2002). Conversely, the Ninth Circuit and the D.C. Circuit hold the Privacy Act’s statute of limitations is not a jurisdictional bar, citing the Supreme Court’s decision in Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). See Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 278 (D.C.Cir.2003) (concluding that “a Privacy Act claim for unlawful disclosure of personal information is sufficiently similar to a traditional tort claim for invasion of privacy to render the Irwin presumption [allowing equitable tolling] applicable.”); Rouse v. United States Dep’t of State, 567 F.3d 408, 415-16 (9th Cir.2009). 1. The Irwin Presumption In Irwin, the Supreme Court announced “a general rule to govern the applicability of equitable tolling in suits against the government.” Irwin, 498 U.S. at 95-96, 111 S.Ct. 453. The Court held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. Since Irwin, the Supreme Court has provided further guidance as to when the Irwin presumption applies. Courts have held that, for the presumption to apply, “the type of litigation at issue must not be so peculiarly governmental that there is, no" }, { "docid": "16122436", "title": "", "text": "not move to dismiss whether or not an implied-in-fact contract could have come into existence after October 19, 2013, the date NASA cancelled the prime contract between Flight Test Associates and NASA. Defendant maintains, however, that any im plied-in-law contract claims are outside of this court’s jurisdiction under the Tucker Act. Regarding plaintiffs breach of the covenant of good faith and fair dealing claim, defendant argues that plaintiff states a claim upon which relief cannot be granted, because the covenant does not apply “[bjecause the complaint acknowledges that the parties have no express contract.” Finally, regarding plaintiffs quantum meruit claim, defendant argues that the claim is an implied-in-law contract argument, “outside this Court’s jurisdiction.” DISCUSSION It is well established that ‘“subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, — U.S. —, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S. —, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed.Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or" }, { "docid": "4865100", "title": "", "text": "Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“Recognizing our less than meticulous use of the term in the past, we have pressed a stricter distinction between truly jurisdictional rules, which govern a court’s adjudicatory authority, and nonjurisdictional claim-processing rules, which do not.”) (internal quotation marks omitted); Henderson ex rel. Henderson v. Shinseki, — U.S. -, 131 S.Ct. 1197, 1202-03, 179 L.Ed.2d 159 (2011) (“We have urged that a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction. Other rules, even if important and mandatory, we have said, should not be given the jurisdictional brand.”) (citations omitted); Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“the notion of subject-matter jurisdiction obviously extends to classes of cases falling within a court’s adjudicatory authority”) (internal quotation marks and ellipsis omitted); Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (“Jurisdiction, this Court has observed, is a word of many, too many, meanings.”) (internal quotation marks omitted); Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (“Clarity would be facilitated if courts, and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.”). The APA cause of action — which speaks in terms of giving “aggrieved” parties a cause of action — does not address the power of the court to hear the case. Therefore, it is quite obviously not jurisdictional under the recent Supreme Court precedents. Indeed, although the Supreme Court has not yet directly addressed whether prudential standing is jurisdictional, the Court has suggested that it is not. In Tenet v. Doe, the Court noted that prudential standing is a “threshold question” that “may be resolved before addressing jurisdiction.” 544 U.S. 1, 7 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (emphasis added). While that snippet alone may be too thin" }, { "docid": "23542152", "title": "", "text": "claim-processing requirements remain “subject to [Irwin’s ] rebuttable presumption in favor of equitable tolling.” Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted). Applying these principles to the particular statute of limitations here, our case law has come to contradictory results. Alvarez-Machain v. United States (Alvarez-Machain I), 107 F.3d 696, 701 (9th Cir.1996), held that “[e]quitable tolling is available for FTCA claims in the appropriate circumstances.” Twelve years later, Marley held precisely the opposite, stating “that the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, equitable doctrines that otherwise could excuse a claimant’s untimely filing do not apply.” 567 F.3d at 1032; see also Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011) (applying Marley). We agreed to hear this case to resolve the conflict between Alvarez-Machain I and Marley. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc). Doing so, we join with several other circuits in concluding that § 2401(b) is subject to equitable tolling. See Arteaga v. United States, 711 F.3d 828, 832-33 (7th Cir.2013); Santos ex rel. Beato v. United States, 559 F.3d 189, 194-98 (3d Cir.2009); Perez v. United States, 167 F.3d 913, 916-17 (5th Cir.1999). 2. Jurisdictional vs. Nonjurisdictional Claim-Processing Rules As a threshold matter, we must decide whether § 2401(b) is a “jurisdictional” rule, to which equitable doctrines cannot apply, or a nonjurisdictional “claim-processing rule” subject to Irwin’s presumption in favor of equitable tolling. Both Alvarez-Machain I and Marley were decided without the benefit of the Supreme Court’s most recent decisions clarifying the difference between these two categories. Accordingly, before turning to § 2401(b) itself, we discuss the Court’s efforts in recent years to “bring some discipline” to the “jurisdictional” label. See Henderson ex rel. Henderson v. Shinseki, - U.S. -, 131 S.Ct. 1197, 1202-03, 179 L.Ed.2d 159 (2011); see also Gonzalez, 132 S.Ct. at 648. The consequences of labeling a particular statutory requirement “jurisdictional” are “drastic.” Gonzalez, 132 S.Ct. at 648. A court’s “[s]ubject-matter jurisdiction can never be waived or forfeited,” “objections" }, { "docid": "19159961", "title": "", "text": "(1990) (citing Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989)). To determine whether the RESPA limitations period falls within that customary rule, we must first determine whether it is jurisdictional; courts “[have] no authority to create equitable exceptions to jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). If the RESPA limitations period is non jurisdictional, we must assess whether Congress has clearly precluded equitable tolling. See United States v. Brockamp, 519 U.S. 347, 350, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997). a. The RESPA limitations period is not jurisdictional In a series of recent cases, the Supreme Court has “pressed a strict[] distinction between truly jurisdictional rules, which govern ‘a court’s adjudicatory authority,’ and nonjurisdictional ‘claim-processing rules,’ which do not.” Gonzalez v. Thaler, -U.S.-, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (quoting Kontrick v. Ryan, 540 U.S. 443, 454-55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). In doing so, the Court has clarified that “the term ‘jurisdictional’ properly applies only to prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) implicating [the court’s adjudicatory] authority.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (emphasis added) (internal quotation marks omitted). Moreover, a rule is “jurisdictional” only if “Congress has ‘clearly state[d]’ that the rule is jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (alteration in original)). To determine whether Congress clearly intended a statutory restriction to be jurisdictional, courts review factors such as the statute’s language, “context, and relevant historical treatment.” Reed Elsevier, 559 U.S. at 166, 130 S.Ct. 1237. Applying this test, the Court has repeatedly held that “filing deadlines ordinarily are not jurisdictional; indeed, [the Court has] described them as ‘quintessential claim-processing rules.’ ” Sebelius, 133 S.Ct. at 825 (quoting Henderson ex rel. Henderson v. Shinseki, - U.S. -, 131 S.Ct. 1197, 1203," } ]

[ { "docid": "20645210", "title": "", "text": "Weinberger, 795 F.2d 90, 105 (D.C.Cir.1986) (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 641 n. 8, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975)). “An adverse decision can also be certain if an agency has articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider.” Id. (citing Etelson v. Office of Pers. Mgmt., 684 F.2d 918, 925 (D.C.Cir.1982)). The mere “probability of administrative denial” is insufficient to waive exhaustion. Id. at 106. Plaintiff has introduced no evidence that the agency has a “preconceived position on, or lacks jurisdiction over,” her claim. Id. at 107. Nor has plaintiff provided any evidence to support her claim that the administrative remedy is “inadequate.” (Pl.’s Resp. at 6.) “The administrative process is inadequate where the agency has expressed a willingness to act, but the relief it will provide through its action will not be sufficient to right the wrong.” Randolph-Sheppard, 795 F.2d at 107 (original emphasis omitted). Regulations promulgated by the IRS pursuant to 26 U.S.C. § 7433 permit a taxpayer to recover up to “$1,000,000 ($100,000 in the case of negligence)” in damages, fees and costs through the administrative process. 26 C.F.R. § 301.7433-l(a). Such relief is precisely the remedy sought in federal court in the instant case. Therefore the Court finds plaintiffs arguments that her administrative remedies are inadequate to be without merit. CONCLUSION For the foregoing reasons, the Court finds that it lacks subject matter jurisdic tion over plaintiffs claims because plaintiff has failed to exhaust her administrative remedies as required by 26 U.S.C. § 7433. It is hereby ORDERED that the case be dismissed without prejudice. . Indeed, were plaintiff to seek an equitable remedy, she might then have to overcome the restrictions of the Anti-Injunction Act, which provides that \"no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U.S.C. § 7421(a)." } ]

[ { "docid": "16619707", "title": "", "text": "the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” Id. § 7433(d)(1). The IRS has established by regulation the procedure by which a taxpayer may pursue a claim under § 7433. See 26 C.F.R. § 301.7433-1. These regulations make clear that an “action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to ... this section.” Id. § 301.7433-l(a). In order to properly file an administrative claim, a taxpayer must write to the “Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.” Id. § 301.7433-l(e)(l). The regulations spell out with specificity the information that must be provided to the Area Director, including, inter alia, the “grounds, in reasonable detail, for the claim;” a “description of the injuries incurred;” and the “dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable.” Id. § 301.7433-l(e)(2)(ii)—(iv). The taxpayer is further required to provide any “substantiating documentation” supporting his claim. Id. A civil action in federal district court cannot be maintained until either the IRS rules on the claim, or six months passes without a decision by the IRS on a properly filed claim. Id. § 301.7433-l(d)(i)-(ii). Failure to comply with the regulation deprives the federal district court of jurisdiction. See Venen v. United States, 38 F.3d 100, 103 (3d Cir.1994); McGuirl v. United States, 360 F.Supp.2d 125, 128 (D.D.C.2004). In the complaint, plaintiffs do no more than assert that they “may forego exhausting administrative remedies that are either futile or inadequate ... or when agency action exceeds statutory authorization.” (Comply 6.) Regardless of whether this conclusory statement is correct, plaintiffs fail to allege any facts that demonstrate futility or that the agency has exceeded its statutory authorization. See Cooper v. United States, No. 05-1192, 2005 WL 3707403, *1 n. 2 (D.D.C. Dec. 8, 2005) (recognizing, in a virtually-identical case ultimately dismissed for lack of venue, that plaintiffs’ failure to allege sufficient facts in support or to establish exhaustion doomed" }, { "docid": "499068", "title": "", "text": "doing so would be a waste of their time. See Pis.’ Opp’n to Mot. to Dismiss at 6 (“Plaintiff[s] contend that the administrative ‘remedies’ purportedly provided for—as implemented by regulation—are at best unavailable, and at worst, wholly inadequate.”). Plaintiffs’ contention that there are no “administrative remedies available” to them, within the meaning of section 7433(d)(1), is belied by the regulations quoted above. Under these regulations, all that plaintiffs must do to avail themselves- fully of the IRS’s administrative-claims process is deliver (by U.S. mail or other means) a signed document containing the specified information to the “Compliance Technical Support Manager” for the IRS area in which they reside and then wait (at most) six months. Hence, administrative remedies are “available” unless the IRS refuses to take delivery of plaintiffs’ claim, and nothing like that has been suggested here. Plaintiffs likewise miss the mark with their arguments that the 301.7433-1(e) procedures are inadequate or that pursuit of administrative remedies would be futile. The TBOR admits of no such exceptions to its exhaustion requirement. Although plaintiffs are correct that courts sometimes relieve plaintiffs of exhaustion requirements, see, e.g., McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (“[Administrative remedies need not be pursued if the litigant’s interests in immediate judicial review outweigh the government’s interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further.”), this is true only when the exhaustion requirement is itself a judicial creation. By contrast, when exhaustion is mandated by statute, courts are not free to carve out exceptions that are not supported by the text. See id. at 144, 112 S.Ct. 1081 (“Where Congress specifically mandates, exhaustion is required.”); Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C.Cir.2004) (“If [a] statute does mandate exhaustion, a court cannot excuse it.”) (citing Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 13, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000)). Plaintiffs’ appeal to this Court to exercise its inherent equitable authority is unavailing. Whatever “extraordinary powers” this Court may possess to provide equitable relief in proper" }, { "docid": "23195142", "title": "", "text": "district in which the taxpayer currently resides.” Treas. Reg. §§ 301.7432-l(f); 301.7433-l(e). The Seventh Circuit has held that a letter addressed to the revenue officer listed on the notice of levy did not comply with a similar treasury regulation requiring a written request “addressed to the district director.” Amwest Surety Insurance Co. v. United States, 28 F.3d 690 (7th Cir.1994) (considering Treas. Reg. § 301.6343-l(b)(2)). The failure to comply deprives a court of jurisdiction even though the IRS has received actual notice of the claim and never informs the taxpayer of the proper procedures. Amwest, 28 F.3d at 696. Venen failed to comply with the regulations under sections 7432 and 7433. He argues that the letter to Agent Gregorakis explaining that he understands he has exhausted his administrative remedies satisfies the regulations. Veneris letter is inadequate to trigger administrative review both because it is addressed to a revenue agent and not to the district director, see Amwest, 28 F.3d at 696, and because it does not specify the grounds for relief, see Treas. Reg. §§ 301.7432-l(f) and 301.7433-l(e). Agent Gregorakis’ alleged failure to respond to the letter does not excuse Venen. As the Seventh Circuit held, a failure to petition the IRS correctly is a failure to exhaust even if the IRS does not inform a taxpayer of proper procedures. Amwest, 28 F.3d at 696. Finally, Venen argues that he is excused from the exhaustion requirement because exhaustion would be futile. Venen bases his futility argument on Information Resources, Inc. v. United States, 950 F.2d 1122 (5th Cir.1992), in which the Fifth Circuit held that then-applicable administrative remedies under section 7432 were excused because the IRS already had provided the only relief authorized by the remedies — release of the lien. Information Resources, 950 F.2d at 1127. Current remedies under section 7432, effective since the Fifth Circuit decided Information Resources, provide that administrative relief may include damages. Administrative relief under the other section at issue here, section 7433 also may include damages. See 26 Treas. Reg. §§ 301.7432- 1(f) and 301.7433-1. The IRS has not awarded or denied Venen damages" }, { "docid": "20645202", "title": "", "text": "Order on March 14, 2006 (Response to Order to Show Cause (“PL’s Resp.”)), to which the IRS filed an opposition on March 29, 2006. (United States’ Opposition to Plaintiffs Response to the Court’s Show-Cause Order (“Def.’s Opp.”).) After reviewing the filings of both parties, the Court finds that it lacks jurisdiction because plaintiff has failed to demonstrate compliance with the exhaustion requirements of the Internal Revenue Code and regulations promulgated pursuant thereto. ANALYSIS Plaintiff argues that jurisdiction properly lies in this Court under 26 U.S.C. § 7433, which provides: If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7433(a). With respect to exhaustion, the statute states that a “judgment for damages shall not be awarded under [§ 7433] unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” Id. § 7433(d)(1). The IRS has established by regulation the procedure by which a taxpayer may pursue a claim under section 7433. See 26 C.F.R. § 301.7433-1. These regulations make clear that an “action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to ... this section.” Id. § 301.7433-l(a). In order to properly file an administrative claim, a taxpayer must write to the “Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.” Id. § 301.7433-l(e)(l). The regulations spell out with specificity the information that must be provided to the Area Director, including, inter alia, the “grounds, in reasonable detail, for the claim;” a “description of the injuries incurred;” and the “dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable.” Id. § 301.7433 —" }, { "docid": "20645200", "title": "", "text": "MEMORANDUM OPINION AND ORDER HUVELLE, District Judge. Plaintiff Eleanor Glass filed a pro se complaint on December 30, 2005, alleging errors by the Internal Revenue Service (“IRS”) “in connection with the collection of [a] federal tax” (Comply 1), and seeking damages under 26 U.S.C. § 7433. An amended complaint was filed on January 31, 2006 (“Am.Compl.”). For the reasons explained below, the Court finds that it lacks subject matter jurisdiction over plaintiffs complaint and dismisses the case without prejudice. BACKGROUND Plaintiffs amended complaint alleges that “[beginning with ‘tax year’ 1994 ... officers, agents, and/or employees of the Internal Revenue Service, in connection with the collection of federal tax[,] recklessly, intentionally or by reason of negligence” violated myriad provisions of the Internal Revenue Code and its accompanying regulations. (Am.Compl^ 7.) Plaintiff sought damages for the alleged violations under 26 U.S.C. § 7433. (Am.CompH 32.) Plaintiffs case is one of dozens of virtually identical pro se complaints recently filed in the U.S. District Court for the District of Columbia. At least two of these cases have previously been dismissed by this Court for lack of subject matter jurisdiction owing to plaintiffs’ failure to exhaust administrative remedies. See, e.g., Henry v. United States, 416 F.Supp.2d 130 (D.D.C.2006); Scott v. United States, No. 05-2043, Order (D.D.C. Feb. 27, 2006). Therefore, on February 27, 2006, the Court ordered plaintiff to show cause why jurisdiction over her claim was proper. Gaines v. United States, Order, 05-2326 (D.D.C. Feb. 27, 2006) (“Show Cause Order” or “Order”). As required for pro se litigants under Fox v. Strickland, 837 F.2d 507 (D.C.Cir.1988), the Court informed plaintiff that failure to respond could result in the Court dismissing the case. (Order at 2.) The Order instructed plaintiff to explain how she had “‘exhausted all administrative remedies’ ” (Plaintiffs Affidavit ¶ 16), as required by 26 U.S.C. § 7433(d)(1) and 26 C.F.R. § 301.7433-1(a), (d), (e), and attach all documentation reflecting the filing of a claim as described in 26 C.F.R. § 301.7433-l(e)(2). The IRS filed a motion to dismiss on February 28, 2006. Plaintiff filed a response to the Show Cause" }, { "docid": "499067", "title": "", "text": "documentation or evidence); iv The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available substantiating documentation or evidence); and v The signature of the taxpayer or duly authorized representative. 26 C.F.R. § 301.7433-l(e) (hereinafter “the 301.7433-l(e) procedures”). If such a claim is filed and the IRS has either issued a decision on the claim or has allowed six months to pass from the date of filing without acting on it, the taxpayer may proceed to file suit in federal district court pursuant to 28 U.S.C. § 7433(a). See 26 C.F.R. § 301.7433-l(d)(l). The regulations also provide for immediate filing of suit following submission of the administrative claim if the claim is submitted during the last six months of the two-year statute-of-limitations period. 26 C.F.R. § 301.7433-l(d)(2). In opposing the motion to dismiss, plaintiffs do not contest defendant’s assertion that they have neglected to follow the 301.7433-l(e) procedures; instead, plaintiffs assert that they need not follow the IRS’s administrative procedures because doing so would be a waste of their time. See Pis.’ Opp’n to Mot. to Dismiss at 6 (“Plaintiff[s] contend that the administrative ‘remedies’ purportedly provided for—as implemented by regulation—are at best unavailable, and at worst, wholly inadequate.”). Plaintiffs’ contention that there are no “administrative remedies available” to them, within the meaning of section 7433(d)(1), is belied by the regulations quoted above. Under these regulations, all that plaintiffs must do to avail themselves- fully of the IRS’s administrative-claims process is deliver (by U.S. mail or other means) a signed document containing the specified information to the “Compliance Technical Support Manager” for the IRS area in which they reside and then wait (at most) six months. Hence, administrative remedies are “available” unless the IRS refuses to take delivery of plaintiffs’ claim, and nothing like that has been suggested here. Plaintiffs likewise miss the mark with their arguments that the 301.7433-1(e) procedures are inadequate or that pursuit of administrative remedies would be futile. The TBOR admits of no such exceptions to its exhaustion requirement. Although plaintiffs are" }, { "docid": "16619706", "title": "", "text": "the Motion to Dismiss was frivolous, lacking good faith, and filed solely for purposes of delay. (PL’s Mot. ¶ 1; PL’s Opp. ¶ 1.) Plaintiffs’ opposition and motion are virtually identical. After reviewing the filings of both parties, the Court finds that it lacks jurisdiction because plaintiffs have failed to demonstrate compliance with the exhaustion requirements of the Internal Revenue Code and regulations promulgated pursuant thereto. ANALYSIS Plaintiffs argue that jurisdiction properly lies in this Court under 26 U.S.C. § 7433, which provides: If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly, intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7433(a). With respect to exhaustion, the statute states that “a judgment for damages shall not be awarded under [§ 7433] unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” Id. § 7433(d)(1). The IRS has established by regulation the procedure by which a taxpayer may pursue a claim under § 7433. See 26 C.F.R. § 301.7433-1. These regulations make clear that an “action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to ... this section.” Id. § 301.7433-l(a). In order to properly file an administrative claim, a taxpayer must write to the “Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.” Id. § 301.7433-l(e)(l). The regulations spell out with specificity the information that must be provided to the Area Director, including, inter alia, the “grounds, in reasonable detail, for the claim;” a “description of the injuries incurred;” and the “dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable.” Id. § 301.7433-l(e)(2)(ii)—(iv). The taxpayer is further required to provide any" }, { "docid": "10988598", "title": "", "text": "in the performance of its delegated ministerial duties. In addition to this reason, however, there is a further justification for the Court to invoke its section 1581(i) jurisdiction in this case: requiring plaintiffs to pursue a remedy under the protest procedures mandated by section 1581(a) would oblige them to follow a manifestly inadequate and utterly futile procedure. Certain amici argue that a party could presumably request a refund as set forth in 19 C.F.R. §§ 24.24(e)(5) or 24.73, obtain a denial of refund from Customs, and then protest that decision of Customs to deny the refund by way of the administrative protest process prescribed by 19 U.S.C. §§ 1514 and 1515. According to these amici, the Court could dismiss as not ripe for adjudication those actions which were filed prior to Customs denying a refund request, but instead should waive exhaustion of administrative remedial procedures and assert jurisdiction under section 1581(i), as such procedures are inadequate for the type of relief sought. (Br. of Amici Curiae Aris-Isotoner, et al., at 14-22.) Plaintiff and nearly all amici argue that the available administrative protest remedy set forth in 19 U.S.C. §§ 1514 and 1515 is futile and manifestly inadequate under the circumstances. The ultimate issue presented by such arguments is whether administrative remedies set forth by statute and regulations are appropriate when a party seeks a refund of payments mandated by an act of Congress. by challenging such act as unconstitutional. The administrative remedial procedure as it applies to refund requests is clearly not meaningful or adequate under the given circumstances. See generally McCarthy v. Madigan, 503 U.S. 140, 144-149, 112 S.Ct. 1081, 1085-89, 117 L.Ed.2d 291 (1992) (explaining circumstances in which administrative remedies need not be exhausted); and Conoco v. Foreign Trade Zones Board, 18 F.3d 1581 (Fed.Cir.1994) (holding section 1581(a) jurisdiction inappropriate where it is futile or manifestly inadequate). Most importantly, as the Court’s opinion makes clear, Customs does not have authority to refund Tax payments or otherwise grant effective relief for constitutional claims. It is well settled that an administrative agency lacks the authority to declare an act of" }, { "docid": "16882803", "title": "", "text": "arguing that the Motion to Dismiss was frivolous, lacking good faith, and filed solely for purposes of delay. (PL’s Mot. ¶ 1; PL’s Opp. ¶ 1.) Plaintiffs opposition and his motion are virtually identical. After reviewing the filings of both parties, the Court finds that it lacks jurisdiction because plaintiff has failed to demonstrate compliance with the exhaustion requirements of the Internal Revenue Code and regulations promulgated pursuant thereto. ANALYSIS Plaintiff argues that jurisdiction properly lies in this Court under 26 U.S.C. § 7433, which provides: If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly, intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7433(a). With respect to exhaustion, the statute states that “a judgment for damages shall not be awarded under [§ 7433] unless the court determines that the plaintiff has exhausted the admin istrative remedies available to such plaintiff within the Internal Revenue Service.” Id. § 7433(d)(1). The IRS has established by regulation the procedure by which a taxpayer may pursue a claim under § 7433. See 26 C.F.R. § 301.7433-1. These regulations make clear that an “action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to ... this section.” Id. § 301.7433-l(a). In order to properly file his administrative claim, a taxpayer must write to the “Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.” Id. § 301.7433-l(e)(l). The regulations spell out with specificity the information that must be provided to the Area Director, including, inter alia, the “grounds, in reasonable detail, for the claim;” a “description of the injuries incurred;” and the “dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable.” Id. § 301.7433-1(e)(2) (ii)—(iv). The taxpayer is" }, { "docid": "20645203", "title": "", "text": "[§ 7433] unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” Id. § 7433(d)(1). The IRS has established by regulation the procedure by which a taxpayer may pursue a claim under section 7433. See 26 C.F.R. § 301.7433-1. These regulations make clear that an “action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to ... this section.” Id. § 301.7433-l(a). In order to properly file an administrative claim, a taxpayer must write to the “Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.” Id. § 301.7433-l(e)(l). The regulations spell out with specificity the information that must be provided to the Area Director, including, inter alia, the “grounds, in reasonable detail, for the claim;” a “description of the injuries incurred;” and the “dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable.” Id. § 301.7433 — 1(e)(2)(ii)—(iv). The taxpayer is further required to provide any “substantiating documentation” supporting her claim. Id. A civil action in federal district court cannot be maintained until either the IRS rules on the claim, or six months pass without a decision by the IRS on a properly filed claim. Id. § 301.7433-l(d)(i)-(ii). Failure to comply with the regulation deprives the federal district court of jurisdiction. See Venen v. United States, 38 F.3d 100, 103 (3d Cir.1994); McGuirl v. United States, 360 F.Supp.2d 125, v128 (D.D.C.2004). In her complaint, plaintiff does no more than assert that she “may forego exhausting administrative remedies that are either futile or inadequate ... or when agency action exceeds statutory authorization.” (ComplA 6.) Plaintiff fails, however, to allege any facts that demonstrate futility or that the agency has exceeded its statutory authorization. Cf. Cooper v. United States, No. 05-1192, 2005 WL 3707403, at *1 n. 2 (D.D.C. Dec. 8, 2005) (recognizing, in a virtually identical case ultimately dismissed for lack of venue, that plaintiffs failure to allege sufficient facts in support or" }, { "docid": "21969252", "title": "", "text": "complaint on damages was wrongfully brought under Fed.R.Civ.P. 12(b)(1), instead it “should be construed as raising a defense of failure to state a claim upon which relief can be granted under Rule 12(b)(6).” 448 F.Supp.2d at 54-55. As to the claim of damages, the Court in Lindsey held, that although 26 C.F.R. § 301.7433-1 “does not impose a jurisdictional prerequisite to filing a lawsuit, part (e) of this regulation establishes the administrative remedies called for by 26 U.S.C. § 7433(d)(1). Consequently, the Court may not award a judgment for damages to a plaintiff bringing an action under 26 U.S.C. § 7433 where that plaintiff has not first satisfied the administrative procedures set forth in 26 C.F.R. § 301.7433-1(e).” Lindsey, 448 F.Supp.2d at 59-60. See also Jaeger v. U.S., 2006 WL 1518938 (D.D.C. May 26, 2006). After a careful review of the pleadings and the record of the case at bar, the Court finds that Plaintiff filed a timely claim with the IRS. However, the claim fails to comply with the administrative requirements of 26 C.F.R. § 301.7433-l(e), as the claim was: (a) filed under the wrong form; (b) mailed to the wrong office, as it was mailed to the Department of the Treasury in Bensalem, PA, instead of the Area Director in Puerto Rico; (c) the claim fails to describe the damages suffered by Plaintiff; (d) the dollar amount of the alleged damages; and (e) the claim is not supported by documentary evidence sustaining the alleged damages. Moreover, Plaintiff also failed to submit with the complaint and/or his opposition to the motion to dismiss, the supporting evidence to sustain his allegation regarding the notice given to the defendant after the first wrongful tax attachment of funds from his checking account. In sum, Plaintiff has failed to comply with the administrative requirements of 26 C.F.R. § 301.7433-l(e) to file a claim, hence, Plaintiff has failed to exhaust the administrative remedies pursuant to 26 U.S.C. § 7433 that would warrant a judgment for damages. A perusal of the instant complaint shows that it is based upon bare and bold allegations which are" }, { "docid": "16882804", "title": "", "text": "court determines that the plaintiff has exhausted the admin istrative remedies available to such plaintiff within the Internal Revenue Service.” Id. § 7433(d)(1). The IRS has established by regulation the procedure by which a taxpayer may pursue a claim under § 7433. See 26 C.F.R. § 301.7433-1. These regulations make clear that an “action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to ... this section.” Id. § 301.7433-l(a). In order to properly file his administrative claim, a taxpayer must write to the “Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.” Id. § 301.7433-l(e)(l). The regulations spell out with specificity the information that must be provided to the Area Director, including, inter alia, the “grounds, in reasonable detail, for the claim;” a “description of the injuries incurred;” and the “dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable.” Id. § 301.7433-1(e)(2) (ii)—(iv). The taxpayer is further required to provide any “substantiating documentation” supporting his claim. Id. A civil action in federal district court cannot be maintained until either the IRS rules on the claim, or six months passes without a decision by the IRS on a properly filed claim. Id. § 301.7433—l(d)(i)—(ii). Failure to comply with the this regulation deprives the federal district court of jurisdiction. See Venen v. United States, 38 F.3d 100, 103 (3d Cir.1994); McGuirl v. United States, 360 F.Supp.2d 125, 128 (D.D.C.2004). In his complaint, plaintiff does no more than assert that he “may forego exhausting administrative remedies that are either futile or inadequate ... or when agency action exceeds statutory authorization.” (Comply 6.) Regardless of whether this conclusory statement is correct, plaintiff fails to allege any facts that demonstrate futility or that the agency has exceeded its statutory authorization. See Cooper v. United States, No. 05-1192, Order at 3 n. 2 (D.D.C. Dec. 8, 2005) (recognizing, in a virtually identical case ultimately dismissed for lack of venue, that plaintiffs failure to allege sufficient facts in" }, { "docid": "20645201", "title": "", "text": "been dismissed by this Court for lack of subject matter jurisdiction owing to plaintiffs’ failure to exhaust administrative remedies. See, e.g., Henry v. United States, 416 F.Supp.2d 130 (D.D.C.2006); Scott v. United States, No. 05-2043, Order (D.D.C. Feb. 27, 2006). Therefore, on February 27, 2006, the Court ordered plaintiff to show cause why jurisdiction over her claim was proper. Gaines v. United States, Order, 05-2326 (D.D.C. Feb. 27, 2006) (“Show Cause Order” or “Order”). As required for pro se litigants under Fox v. Strickland, 837 F.2d 507 (D.C.Cir.1988), the Court informed plaintiff that failure to respond could result in the Court dismissing the case. (Order at 2.) The Order instructed plaintiff to explain how she had “‘exhausted all administrative remedies’ ” (Plaintiffs Affidavit ¶ 16), as required by 26 U.S.C. § 7433(d)(1) and 26 C.F.R. § 301.7433-1(a), (d), (e), and attach all documentation reflecting the filing of a claim as described in 26 C.F.R. § 301.7433-l(e)(2). The IRS filed a motion to dismiss on February 28, 2006. Plaintiff filed a response to the Show Cause Order on March 14, 2006 (Response to Order to Show Cause (“PL’s Resp.”)), to which the IRS filed an opposition on March 29, 2006. (United States’ Opposition to Plaintiffs Response to the Court’s Show-Cause Order (“Def.’s Opp.”).) After reviewing the filings of both parties, the Court finds that it lacks jurisdiction because plaintiff has failed to demonstrate compliance with the exhaustion requirements of the Internal Revenue Code and regulations promulgated pursuant thereto. ANALYSIS Plaintiff argues that jurisdiction properly lies in this Court under 26 U.S.C. § 7433, which provides: If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7433(a). With respect to exhaustion, the statute states that a “judgment for damages shall not be awarded under" }, { "docid": "499069", "title": "", "text": "correct that courts sometimes relieve plaintiffs of exhaustion requirements, see, e.g., McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (“[Administrative remedies need not be pursued if the litigant’s interests in immediate judicial review outweigh the government’s interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further.”), this is true only when the exhaustion requirement is itself a judicial creation. By contrast, when exhaustion is mandated by statute, courts are not free to carve out exceptions that are not supported by the text. See id. at 144, 112 S.Ct. 1081 (“Where Congress specifically mandates, exhaustion is required.”); Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C.Cir.2004) (“If [a] statute does mandate exhaustion, a court cannot excuse it.”) (citing Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 13, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000)). Plaintiffs’ appeal to this Court to exercise its inherent equitable authority is unavailing. Whatever “extraordinary powers” this Court may possess to provide equitable relief in proper cases, see Pis.’ Mem. in Opp’n to Mot. to Dismiss at 5, it most certainly does not include the power to rewrite statutes, as plaintiffs suggest, see id. at 23 (“Plaintiff[s] respectfully request[] the Court exercise its equitable powers; find that Congress should not have re-imposed the exhaustion requirement.”). McNeil v. United States, 508 U.S. 106, 111, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“The command that an ‘action shall not be instituted ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail’ is unambiguous. We are not free to rewrite the statutory text.”). The concession by plaintiffs that they have failed to follow the 301.7433-l(e) procedures is therefore dispositive of the motion to dismiss because the language of the TBOR prohibits this Court from awarding plaintiffs their requested relief (i.e., damages) when, as here, failure to exhaust administrative remedies is uncontested. The only question left to be resolved is" }, { "docid": "16619708", "title": "", "text": "“substantiating documentation” supporting his claim. Id. A civil action in federal district court cannot be maintained until either the IRS rules on the claim, or six months passes without a decision by the IRS on a properly filed claim. Id. § 301.7433-l(d)(i)-(ii). Failure to comply with the regulation deprives the federal district court of jurisdiction. See Venen v. United States, 38 F.3d 100, 103 (3d Cir.1994); McGuirl v. United States, 360 F.Supp.2d 125, 128 (D.D.C.2004). In the complaint, plaintiffs do no more than assert that they “may forego exhausting administrative remedies that are either futile or inadequate ... or when agency action exceeds statutory authorization.” (Comply 6.) Regardless of whether this conclusory statement is correct, plaintiffs fail to allege any facts that demonstrate futility or that the agency has exceeded its statutory authorization. See Cooper v. United States, No. 05-1192, 2005 WL 3707403, *1 n. 2 (D.D.C. Dec. 8, 2005) (recognizing, in a virtually-identical case ultimately dismissed for lack of venue, that plaintiffs’ failure to allege sufficient facts in support or to establish exhaustion doomed his § 7433 claim). Plaintiffs allege that they have “exhausted administrative remedies in that [they have] written numerous requests for documents and authorities which require responses from the IRS,” and that the “IRS has failed and/or refused to respond or has responded with frivolous responses.” (Compl. ¶ 9.) The government asserts in its Motion to Dismiss, however, that plaintiffs have not filed a written claim in accordance with the terms of 26 C.F.R. § 301.7433-l(e). (Def.’s Mot. at 5.) Despite the Court’s explicit instructions to plaintiffs to explain how they exhausted their administrative remedies and provide “all documentation reflecting the filing of a claim as described” by the regulations (Jan. 30 Order at 1), plaintiffs’ response to defendant’s motion provides no additional detail beyond that included in the complaint. Rather, plaintiffs contends that the government knowingly misrepresented the law regarding exhaustion such that the Court should impose sanctions under Fed. R.Civ.P. 11, and that the IRS has failed to provide plaintiffs with a “summary record of assessment” as required by the regulations promulgated under 26" }, { "docid": "19904764", "title": "", "text": "the defendants’ sovereign immunity. Pis.’ Opp’n ¶ 3. Section 7433(a) states: If in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7433(a). While the plaintiffs correctly assert that § 7433 explicitly allows suits against the United States, the plaintiffs fail to meet the jurisdictional predicates of this statute. Prior to filing a § 7433 suit, a plaintiff must first exhaust all administrative remedies. 26 U.S.C. § 7433(d)(1). To properly exhaust remedies, the taxpayer must send a written administrative claim for damages to the area director in the district in which the taxpayer lives and include the following: (1) the grounds for the claim; (2) a description of the injuries incurred by the taxpayer; (3) the dollar amount of the claim, including any damages not yet incurred but that are reasonably foreseeable; and (4) the signature of the taxpayer. 26 C.F.R § 301.7433-l(e)(l). Here, the plaintiffs concede their failure to send the required written administrative claim for damages to the area director and instead vaguely assert that they “may forego exhausting administrative remedies that are either futile or inadequate!)]” Compl. ¶ II.C.2. The plaintiffs, however, fail to allege any facts that demonstrate that filing an administrative claim is futile. Although the plaintiffs criticize the process for filing a claim, they have not even attempted to file a claim. The plaintiffs’ failure to offer evidence that they exhausted their administrative remedies deprives this court of jurisdiction over their claims. Venen v. United States, 38 F.3d 100, 103 (3d Cir.1994); McGuirl v. United States, 360 F.Supp.2d 125, 128 (D.D.C.2004), aff'd, 2005 WL 3781733 (D.C.Cir.2005) (unpublished); People of Cal. ex. rel. Ervin v. Dist. Dir., 170 F.Supp.2d 1040, 1048 (E.D.Cal.2001) (explaining, in a § 7433 action, that the plaintiffs bear “the burden of demonstrating an explicit waiver of" }, { "docid": "21969251", "title": "", "text": "not been exhausted, the Court is not persuaded that the IRS’ promulgation of § 301.7433-l(e) does, or even could, transform the exhaustion requirement of 26 U.S.C. § 7433 — which, for the reasons discussed supra, does not by its language impose a jurisdictional prerequisite to suit — into a jurisdictional barrier.... Indeed, the Constitution vests the exclusive authority to expand or contract the jurisdiction of lower federal courts with Congress, not the executive branch, (citations omitted). Moreover, because the language of 26 U.S.C. § 7433 is clear and unambiguous with respect to its imposition of a non-jurisdictional exhaustion requirement, the Court need not accord 26 C.F.R. § 301.7433-1 formal Chevron deference in its interpretation of 26 U.S.C. § 7433 (citations omitted). Accordingly, 26 C.F.R. § 301.7433-1 cannot transform 26 U.S.C. § 7433’s statutory non-jurisdictional exhaustion requirement into a jurisdictional requirement. Lindsey, 448 F.Supp.2d at 52-53. Although, the Court in Lindsey found that the requirement to exhaust the administrative remedies under 26 U.S.C. § 7433 is non-jurisdictional, the Court held that defendant’s motion to dismiss the complaint on damages was wrongfully brought under Fed.R.Civ.P. 12(b)(1), instead it “should be construed as raising a defense of failure to state a claim upon which relief can be granted under Rule 12(b)(6).” 448 F.Supp.2d at 54-55. As to the claim of damages, the Court in Lindsey held, that although 26 C.F.R. § 301.7433-1 “does not impose a jurisdictional prerequisite to filing a lawsuit, part (e) of this regulation establishes the administrative remedies called for by 26 U.S.C. § 7433(d)(1). Consequently, the Court may not award a judgment for damages to a plaintiff bringing an action under 26 U.S.C. § 7433 where that plaintiff has not first satisfied the administrative procedures set forth in 26 C.F.R. § 301.7433-1(e).” Lindsey, 448 F.Supp.2d at 59-60. See also Jaeger v. U.S., 2006 WL 1518938 (D.D.C. May 26, 2006). After a careful review of the pleadings and the record of the case at bar, the Court finds that Plaintiff filed a timely claim with the IRS. However, the claim fails to comply with the administrative requirements of 26 C.F.R." }, { "docid": "19904765", "title": "", "text": "claim, including any damages not yet incurred but that are reasonably foreseeable; and (4) the signature of the taxpayer. 26 C.F.R § 301.7433-l(e)(l). Here, the plaintiffs concede their failure to send the required written administrative claim for damages to the area director and instead vaguely assert that they “may forego exhausting administrative remedies that are either futile or inadequate!)]” Compl. ¶ II.C.2. The plaintiffs, however, fail to allege any facts that demonstrate that filing an administrative claim is futile. Although the plaintiffs criticize the process for filing a claim, they have not even attempted to file a claim. The plaintiffs’ failure to offer evidence that they exhausted their administrative remedies deprives this court of jurisdiction over their claims. Venen v. United States, 38 F.3d 100, 103 (3d Cir.1994); McGuirl v. United States, 360 F.Supp.2d 125, 128 (D.D.C.2004), aff'd, 2005 WL 3781733 (D.C.Cir.2005) (unpublished); People of Cal. ex. rel. Ervin v. Dist. Dir., 170 F.Supp.2d 1040, 1048 (E.D.Cal.2001) (explaining, in a § 7433 action, that the plaintiffs bear “the burden of demonstrating an explicit waiver of the government’s sovereign immunity from suit”). Because the plaintiffs failed to file an administrative claim with the IRS before filing a complaint in this court, the court does not have jurisdiction to hear plaintiffs’ § 7433 claim against the United States. People of Cal, 170 F.Supp.2d at 1050; Berridge v. Heiser, 993 F.Supp. 1136, 1148 (S.D.Ohio 1997). 2. The APA, the All Writs Act and the Federal Question Doctrine do Not Constitute Waivers of Sovereign Immunity The plaintiffs also argue that the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 704 et seq., acts as a waiver to sovereign immunity and provides a basis for this court’s jurisdiction. Compl. ¶ II.B. The APA allows judicial review of final agency decisions. Cobell v. Norton, 240 F.3d 1081, 1095 (D.C.Cir.2001). Because the plaintiffs failed to file a proper administrative claim, however, their suit is not seeking review of an agency decision at all, let alone a final one. Further, an action brought under the APA is barred if it concerns the assessment or collection of federal taxes. McGuirl," }, { "docid": "23277695", "title": "", "text": "refund claims with the Secretary is contained in 26 C.F.R. § 301.6402-2. The plaintiffs no longer contend that they filed the refund claim required by 26 U.S.C. § 7422(a) in the manner prescribed by 26 C.F.R. § 301.6402-2. Their responses to the defendant’s motions to dismiss make no reference to the exhaustion requirement set forth in 26 U.S.C. § 7422(a), and at no point have they alleged that they complied with the protocols set forth in 26 C.F.R. § 301.6402-2. The Court therefore concludes that the plaintiffs are barred from pursuing their claim for a refund of taxes collected or property-seized by the IRS because the Court lacks jurisdiction over their refund claim pursuant to 26 U.S.C. § 7422. d. The Request for Damages The plaintiffs seek an award of damages for the defendant’s alleged violations of the IRC. Compl. ¶ 32. In response, the defendant contends that the plaintiffs’ damages claim must be dismissed because they have not exhausted their administrative remedies as required by 26 U.S.C. § 7433(d)(1). This section of the IRC provides that “[a] judgment for damages shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” Id. The IRS has promulgated a regulation detailing the administrative procedures plaintiffs wishing to bring suit under § 7433 must complete before they may file a complaint in federal court. See 26 C.F.R. § 301.7433-1. While the Court concludes, for the reasons stated earlier, that § 301.7433-1 does not impose a jurisdictional prerequisite to filing a lawsuit, part (e) of this regulation establishes the administrative remedies called for by 26 U.S.C. § 7433(d)(1). Consequently, the Court may not award a judgment for damages to a plaintiff bringing an action under 26 U.S.C. § 7433 where that plaintiff has not first satisfied the administrative procedures set forth in 26 U.S.C. § 7433-l(e). See Turner, 429 F.Supp.2d at 153. As in Turner, the plaintiffs here do not contest that they did not exhaust the administrative remedies promulgated in 26 C.F.R. § 301.7433-1, claiming instead that" }, { "docid": "20645208", "title": "", "text": "992, 997 (S.D.N.Y.1991). Therefore, plaintiffs failure to introduce any evidence that she attempted to or did comply with the procedures for bringing an administrative claim, as provided for in 26 C.F.R. § 301.7433-1, deprives the Court of jurisdiction. Even if the exhaustion requirement in this case were “non-jurisdictional” in nature, plaintiff would fare no better. A non-jurisdictional exhaustion requirement serves a variety of purposes. Among other things, “it preserves the autonomy of the administrative agency by allowing the agency to apply its expertise and to exercise its discretion,” Athlone Indus., Inc. v. Consumer Prod. Safety Comm’n, 707 F.2d 1485, 1488 (citing McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)); it “promotes effective and efficient judicial review by ensuring that such review is of a fully developed factual record,” Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C.Cir.1986); see also Athlone Indus., 707 F.2d at 1488; and it gives “agencies the opportunity to correct their own errors.” Marine Mammal Conservancy, Inc. v. U.S. Dep’t of Agric., 134 F.3d 409, 414 (D.C.Cir.1998). Therefore, it is a “long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938). While courts have excused exhaustion when such a requirement “would be futile because of the certainty of an adverse decision,” 3 K. Davis, Administrative Law Treatise § 20.07 (1958), this exception is limited to instances in which “the litigant’s interests in immediate judicial review outweigh the government’s interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further.” Avocados Plus, 370 F.3d at 1247 (quoting McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). Plaintiff has not demonstrated that she meets this high standard. In the past, the exception has applied where “an administrative agency lacks, or believes itself to lack, jurisdiction to act [making] an adverse decision certain.” Randolph-Sheppard Vendors of Am. v." } ]

[ { "docid": "15239700", "title": "", "text": "these comments and line of questioning denied Feela due process of law but held that in the context of the entire case, the comments were harmless. The district court affirmed, likewise finding the error was harmless. We agree. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that it is a violation of due process to impeach a defendant by asking about or commenting upon his post-arrest silence following Miranda warnings. The Court reasoned that Miranda warnings imply that “... silence will carry no penalty.” Id. at 618, 96 S.Ct. at 2245. In the absence of Miranda warnings, however, the state does not impliedly assure that a defendant’s post-arrest silence will not be used for impeachment purposes. In Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1983), the Supreme Court recently declared: In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. In Feela’s case, the record reflects that he was read his Miranda rights at the police station, not at the time he emerged from the basement. See R. at 438. Consequently, since Feela had not received assurances that his silence would not be used against him, his post-arrest, pre-Miranda silence was fair game. To the extent that the prosecutor’s cross-examination focused on such pre-Miranda silence, the questioning was proper. Some of the prosecutor’s questioning, however, focused on Feela’s post-Miranda silence. This was clearly improper under Doyle, supra. In analyzing the impact of this line of questioning, as well as the prosecutor’s improper closing arguments, we are mindful that improper comments which might seem prejudicial when considered in isolation, may be harmless error when considered in context. United States v. Forrest, 620 F.2d 446, 455-56 (5th Cir.1980). Several factors convince this Court that the prosecutor’s line of questioning and closing arguments, while improper under Doyle, were harmless error. The comments were made in" } ]

[ { "docid": "22546512", "title": "", "text": "to a sentence of two years’ probation, in return for his testimony. United States ex rel. Miller v. Greer, 789 F. 2d 438, 440, 446, n. 7 (CA7 1986). Respondent Miller was sentenced to 80 years for murder, 30 years for aggravated kidnaping, and 7 years for robbery. Id., at 441. The jury was aware that a “deal” between the State and Williams had been struck. App. 45-46. For example, the prosecutor clearly got full mileage out of his Doyle violation during closing argument. He was able to exploit the jury’s awareness of defendant’s postarrest silence by stressing that the accomplice’s testimony was credible precisely because he had not remained silent after arrest: “We made a deal, if you want to call it that, with a guy [the accomplice] who’s willing to tell the truth, a man who told the truth of his involvement on February 10, 1980 [the day after the crime]. Sure, he was wrong in details; sure, he left some things out; sure, his statement is confusing; sure, he lied at that time about not being with his brother as they left the Regulator Tavern at first, but he was in custody only a few hours. He was charged with murder. . He knew they had him, cold turkey, but he told them a story, as they call it, an account, as I call it, shortly after his arrest, factually corroborated by an independent investigator. So if you call that a deal, put that aside. The question is, deal or no deal, did Randy tell you the truth. It really boils down to, who told you the story here and who told you the truth? You either believe Randy Williams or you believe ‘Chuck’ Miller. That is your choice. It’s as simple as that.” Ibid. In the Court of Appeals, the State argued against a finding of a Doyle violation solely on the ground that “the prosecutor’s reference to Miller’s postarrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on" }, { "docid": "14972908", "title": "", "text": "2240, 49 L.Ed.2d 91 (1976) and its progeny, see, e.g., Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) and Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), mandate that a defendant’s exculpatory testimony cannot be impeached by his gost-Miranda silence on the ground that he did not give an explanation for his conduct at the time of arrest. In Doyle, the defendants took the stand and offered an exculpatory explanation for their participation in a drug transaction. On cross-examination, the prosecution impeached their testimony by asking why they had not explained their conduct upon arrest. The Supreme Court held that such cross-examination was fundamentally unfair, and thus violated the Due Process clause of the Fourteenth Amendment, for two reasons. First, a defendant’s silence, being “insolubly ambiguous,” has low probative value. 426 U.S. at 617, 96 S.Ct. at 2244. Second, Miranda warnings carry the implicit assurance “that silence will carry no penalty.” Id. at 618-19, 96 S.Ct. at 2245. When Tenorio objected to the government eliciting evidence of his silence, the prosecutor made clear to the court the purpose of Agent Broughton’s examination was to suggest that Tenorio had lied, and that he was guilty because if his story was true, he would not have waited twenty two hours before telling it. The prosecutor drove the point home to the jury in the closing argument quoted above. In addition, she highlighted Skirko’s testimony for the jury that Tenorio was not shocked at being arrested. On this point she argued that he “volunteered no explanation as any reasonable innocent person would do when confronted with that situation.” The admission of Broughton’s testimony and the prosecutor’s comments during closing argument violated Tenorio’s Fifth Amendment right to remain silent and right to due process. The government erred by violating the implied assurance in the Miranda warnings that silence will carry no penalty. The district court erred in finding that the evidence and argument were directed only at gre-Miranda silence. Neither the testimony in question, nor the prosecutor’s arguments drew any time distinctions for the" }, { "docid": "6684026", "title": "", "text": "continues to contend, however, that the prosecution’s reference to Ross’s counsel in other contexts violates Miranda. Aside from the discussions that were proper exploration of Ross’s retention of counsel, a topic to which Ross had already opened the door, we hold that the references to counsel were proper impeachment. See Geders v. United States, 425 U.S. 80, 89-90, 96 S.Ct. 1330, 1336, 47 L.Ed.2d 592 (1976) (asking whether defendant reviewed testimony with a lawyer is proper impeachment). B. Trial References to Ross’s Silence At trial, the prosecution asked Ross several questions regarding why he did not go to the authorities with his suspicions that either Peter or Arthur Ross were involved in the bombing. The. questions were meant to impeach Ross’s story, told for the first time at Ross’s third trial, that his relatives must have made the calls to Manning, and therefore that the wrong Ross was on trial. The prosecutor’s questions referred only to the years between the first and second trials. The government argues that Ross was not protected by Miranda warnings between the two trials, and that the references to his silence during that time period were therefore permissible impeachment. In general, the prosecution is free to impeach a defendant based on his silence when that silence does not follow Miranda warnings. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (per curiam) (“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law ... to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.”); United States v. Harris, 726 F.2d 558, 559 (9th Cir.1984) (“prosecutors may argue inferences from silence in order to impeach testimony when the silence was not the result of Miranda warnings”). Ross first received his Miranda warnings during his 1988 arrest. In 1989, the government dismissed the indictment against him. The caselaw does not delineate how long Miranda warnings protect a defendant or at what point that protection evaporates. See, e.g., United States v. Balter," }, { "docid": "22214982", "title": "", "text": "Wainwright v. Greenfield, 474 U.S. 284, 290-91, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)); United States v. Johnson, 302 F.3d 139, 146 (3d Cir.2002). Because a defendant’s post -Miranda warning silence could be nothing more than an invocation of his right to silence, it would be fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to why he failed to give an exculpatory account to the police after receiving the warnings. See Davis, 561 F.3d at 163. Not every reference to a defendant’s silence, however, results in a Doyle violation. Where “no governmental action induce[s] the defendant to remain silent,” Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Miranda-based fairness rationale does not control. Consequently, the Government permissibly may impeach a defendant’s testimony using his pre-arrest silence, J©ra kins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); his post-arrest, pr e-Miranda warning silence, Fletcher, 455 U.S. at 605-07, 102 S.Ct. 1309 ; and any voluntary post-Miranda warning statements, Anderson v. Charles, 447 U.S. 404, 408-09, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). Additionally, under Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), “there may be no Doyle violation where the trial court sustains an objection to the improper question and provides a curative instruction to the jury, thereby barring the prosecutor from using the silence for impeachment.” Davis, 561 F.3d at 164 (citing Greer, 483 U.S. at 764-65,107 S.Ct. 3102). Having scrupulously reviewed the trial transcript, we share the Appellate Division’s concern with some of the Government’s questions. Referring to Martinez’s exculpatory account, the prosecutor first asked: “Did you make a statement to Officer Berrios about what you told us here today?” JA 350. The prosecutor clearly sought by this question to undermine Martinez’s story by highlighting his failure to tell the officer that same version at an earlier point in time. We cannot say with certainty, however, that the question was improper, because a crucial ambiguity exists in the record regarding Officer Berrios. Harvey’s testimony on cross-examination" }, { "docid": "6684027", "title": "", "text": "between the two trials, and that the references to his silence during that time period were therefore permissible impeachment. In general, the prosecution is free to impeach a defendant based on his silence when that silence does not follow Miranda warnings. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (per curiam) (“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law ... to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.”); United States v. Harris, 726 F.2d 558, 559 (9th Cir.1984) (“prosecutors may argue inferences from silence in order to impeach testimony when the silence was not the result of Miranda warnings”). Ross first received his Miranda warnings during his 1988 arrest. In 1989, the government dismissed the indictment against him. The caselaw does not delineate how long Miranda warnings protect a defendant or at what point that protection evaporates. See, e.g., United States v. Balter, 91 F.3d 427, 439 (3rd Cir.) (as amended) (“It may be that a defendant’s silence immediately after receiving Miranda warnings is more likely to represent the exercise of Miranda rights than is a defendant’s silence for an extended period of time after the receipt of warnings .... ”), cert. denied, — U.S. —, 117 S.Ct. 517, 136 L.Ed.2d 406 (1996). Whether Ross was still operating under assurances of his right to remain silent years after officials had instructed him on that right is uncertain. We need not decide, however, whether the prosecution’s questions improperly referred to a time when Ross’s silence was protected by Miranda, because if it were error it was harmless beyond a reasonable doubt. See United States v. Burrows, 36 F.3d 875, 880 (9th Cir.1994) (erroneous jury instruction that undermined defendant’s credibility harmless beyond a reasonable doubt where defendant’s credibility already very seriously damaged). The questions were meant to impeach Ross by implying that he lied on the stand about his brother and his son. Ross’s credibility, though, had already been repeatedly" }, { "docid": "23239659", "title": "", "text": "silence were not only harmless but also that they did not violate Mr. Bland’s right to due process as defined by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Witnesses who testify in court, including criminal defendants, may generally “be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (permitting prosecutorial comment on pre-ar-rest silence). One exception to this rule is “where the government ha[s] induced silence by implicitly assuring the defendant that his silence would not be used against him,” such as after the issuance of Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); see also Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that commenting on a defendant’s post-arrest, post-Miranda silence violates due process). However, “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings,” the Supreme Court has held that it does not “violate[] due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. Most comments made by the prosecution at Mr. Bland’s trial are analogous to those made in Fletcher. In Fletcher, the defendant testified on his own behalf that he did stab the victim, but claimed (for the first time) that he acted in self-defense and that the stabbing was accidental. Id. at 603-04, 102 S.Ct. 1309. On cross-examination, the prosecutor asked why he had failed to assert his exculpatory explanation upon arrest. Id. at 607, 102 S.Ct. 1309. The Court found no due process error in the prosecutor’s questions because the prosecution used only post-arrest, pre-Miranda silence. Here, the prosecution repeatedly referred to Mr. Bland’s pre-arrest and post-arrest, pre-Miranda silence by asking Mr. Bland why he did not tell his mother, Trooper Fisher, or arresting officer Agent Briggs about his confrontation with Mr." }, { "docid": "22546513", "title": "", "text": "time about not being with his brother as they left the Regulator Tavern at first, but he was in custody only a few hours. He was charged with murder. . He knew they had him, cold turkey, but he told them a story, as they call it, an account, as I call it, shortly after his arrest, factually corroborated by an independent investigator. So if you call that a deal, put that aside. The question is, deal or no deal, did Randy tell you the truth. It really boils down to, who told you the story here and who told you the truth? You either believe Randy Williams or you believe ‘Chuck’ Miller. That is your choice. It’s as simple as that.” Ibid. In the Court of Appeals, the State argued against a finding of a Doyle violation solely on the ground that “the prosecutor’s reference to Miller’s postarrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon.” 789 F. 2d, at 442. The sole question presented is explicitly premised on a finding of a Doyle violation: “Whether, when considering violations of Doyle v. Ohio in federal habeas corpus proceedings, the standard of review should be whether the error substantially affected the course of the trial rather than whether the error was harmless beyond a reasonable doubt.” Pet. for Cert. i (emphasis added). Although one sentence in petitioner’s brief refers to “an attempted violation of the rule of Doyle,” Brief for Petitioner 16, the brief contains no other reference, direct or indirect, to the argument the Court develops today. One “casual reference ... in the midst of an unrelated argument, is insufficient to inform a . . . court that it has been presented with a claim.” Board of Directors of Rotary International v. Rotary Club, 481 U. S. 537, 550, n. 9 (1987). Apart from making what is at best a casual reference to the Court’s argument, petitioner’s brief is devoted" }, { "docid": "10649922", "title": "", "text": "ineffective assistance of counsel. In response to this claim, his defense counsel executed an affidavit that provides as follows: We did not file a motion in limine or object to evidence and argument that Mr. White failed to tell his exculpatory story to the police after his arrest. Our failure to do so was not strategic. In retrospect, the prosecutor was using Mr. White’s post-arrest silence to demonstrate his consciousness of guilt, in violation of United States Supreme Court and Texas precedent. As the affidavit makes clear, defense counsel’s questioning with respect to White’s post-arrest silence was not part of a strategy- The Supreme Court has held that the prosecution’s introduction at trial of evidence of the defendant’s silence after being advised of his Miranda rights following arrest violates the due process clause. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The State argues that there was no basis for counsel to object to the post-arrest silence because White had not been read his Miranda rights at that point. The State relies on Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). In Weir, the Supreme Court held that “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” Id. See also Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (explaining that “no governmental action induced petitioner to remain silent before arrest” and therefore “the fundamental unfairness present in Doyle is not present”). The parties agree that the police did not advise White of his Miranda rights at the time of his arrest. Thus, there was no violation under federal constitutional law. The TCCA, however, has expressly declined to adopt the Supreme Court’s holding in Weir; instead, under the Texas Constitution, it gives a broader construction to the state privilege against self-incrimination, holding that a defendant’s post-arrest, pr e-Miranda silence could" }, { "docid": "13032509", "title": "", "text": "years. “An early exposition of the rule is the maxim of Pope Boniface VIII: ‘Qui tacet, consentiré videtur,’ or ‘He who is silent shows agreement’.” 5 Pope Boniface VIII, Book of Decretals, ch. 12 § 43 (c. 1300). United States v. Cook, 48 MJ 236, 241 n.1 (1998)(Crawford, J., dissenting). Certainly silence is ambiguous. But many courts have recognized that absent a Miranda warning, silence may be admitted. The Supreme Court has addressed the issue of pre-arrest silence and post-arrest silence, absent Miranda warnings. While federal courts are split on the admission of silence as substantive evidence, some have allowed prosecutors to comment on such evidence. In Jenkins v. Anderson, 447 U.S. 231, 238, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), and Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)(per curiam), the Court held that absent Miranda warnings, pre-arrest or post-arrest silence may be used to impeach a defendant. In Jenkins, the defendant, who was indicted for murder, claimed that he acted in self-defense. Jenkins, 447 U.S. at 233, 100 S.Ct. 2124. At trial, the prosecution cross-examined Jenkins about his failure to explain his version of events to the police for at least two weeks. Id. The prosecutor also referred to the defendant’s previous silence in his closing argument. Id. at 234, 100 S.Ct. 2124. On appeal the Supreme Court held that the Fifth Amendment, supra, was not violated by the prosecutor’s use of the defendant’s prearrest silence to impeach his credibility. Id. at 238, 100 S.Ct. 2124. The Court expressly noted that it did “not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment.” Id. at 236 n. 2, 100 S.Ct. 2124. Justice Stevens, concurring in the judgment, commented that he “would reject [the defendant’s] Fifth Amendment claim because the privilege against compulsory self-incrimination is simply irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.” Id. at 241,100 5. Ct. 2124 (footnote omitted). Likewise, Justice Stevens noted that under his approach, “assuming relevance, the evidence could have been" }, { "docid": "22833549", "title": "", "text": "Fletcher. See 455 U.S. at 605-07, 102 S.Ct. 1309. If he did receive the warnings, the question, though improper, does not constitute a due pro cess violation under Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). In Greer, the defendant, who received Miranda warnings when he was arrested, was accused of kidnapping, robbery, and murder. Id. at 758-60, 107 S.Ct. 3102. On direct examination, he testified that he was not involved, and that his alleged cohorts confessed to him on the day of the crimes that they were responsible. Id. On cross-examination, the prosecutor asked: \"Why didn't you tell this story to anybody when you got arrested?\" Id. at 759, 107 S.Ct. 3102. Defense counsel objected immediately, and the trial judge \"immediately sustained the objection and instructed the jury to `ignore [the] question, for the time being.'\" Id. (alteration in original). Although defense counsel did not request a more specific instruction, \"[t]he prosecutor did not pursue the issue further, nor did he mention it during his closing argument.\" Id. In addition, \"the judge specifically instructed the jury to `disregard questions . . . to which objections were sustained.'\" Id. The Supreme Court held that \"no Doyle violation occurred\" because the defendant's post-arrest silence \"was not submitted to the jury as evidence from which it was allowed to draw any permissible inference.\" Id. at 764-65, 107 S.Ct. 3102. The trial court \"explicitly sustained an objection to the only question that touched upon [the defendant's] post-arrest silence,\" \"[nb further questioning or argument with respect to [the defendant's] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained.\" Id. at 764, 107 S.Ct. 3102. In contrast, in the cases that involved a Doyle violation, \"the trial court ha[d] permitted specific inquiry or argument respecting the defendant's post-Miranda silence.\" Id. (citations omitted). Under Greer, the prosecutor's question here was not a Doyle violation. Johnson's counsel promptly objected to the question, the District Court immediately sustained the objection and issued a detailed curative instruction, and the prosecutor never mentioned" }, { "docid": "4367252", "title": "", "text": "U.S. 404, 100 S.Ct. 2180, 2182 & n. 2, 65 L.Ed.2d 222 (1980) (per curiam). Even more tellingly, in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Court confronted a defendant whose post-arrest silence had been used to impeach his exculpatory story at trial, but who had not been given Miranda warnings during the period he remained silent immediately after his arrest. The Court held that in the absence of the type of assurances contained in the Miranda warnings, the degree of protection to be afforded a defendant against impeachment based on post-arrest silence could be resolved under state rules of evidence. Id. 102 S.Ct. at 1312. Finally, in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), the Court held that using post-Miranda-warning silence as evidence of sanity violated due process. Id. 106 S.Ct. at 641. The Court rebutted the contention that silence was far more probative of sanity than of commission of the underlying offense by noting that Doyle rests on the “implied assurance” rationale, and the ambiguity rationale of Hale “merely added weight.” Id. at 640. Although none of these post-Doyle decisions controls the present case, as a group they do indicate that the silence targeted by the prosecutor in Comment 2 is not the core Doyle concern. The prosecutor was primarily commenting not on Hammack’s refusal to submit to interrogation by the arresting officers in the early morning hours of July 11, 1990, but on the improbability that Hammack would languish for two and a half months in jail in possession of information that might, upon investigation, have resulted in his release. As in Hale, there is reason to treat that evidence with caution or disapproval: one can imagine legitimate motives for that decision, which was essentially a strategic component of his defense and presumably was based on the advice of his attorney. However, reliance on the Miranda warnings given on July 11th is not among those plausible motives. For that reason, we question whether the strict due process safeguards of Chapman, derived solely" }, { "docid": "22214981", "title": "", "text": "of the V.I. v. Davis, 561 F.3d 159, 163 (3d Cir.2009). As we explain below, violations of Doyle are subject to harmless error analysis. Accordingly, we ask first whether a violation occurred and, if it did, we ask whether it had an effect on the jury’s verdict beyond a reasonable doubt. See id. We share the Appellate Division’s concern with some of the prosecutor’s questions. We also agree, albeit for different reasons, that any Doyle violation was harmless beyond a reasonable doubt. A. Once a criminal defendant receives the prophylactic warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is improper under Doyle “for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence.” Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir.1998). This is so because Miranda warnings carry the Government’s “implicit assurance” that an arrestee’s invocation of the Fifth Amendment right to remain silent will not later be used against him. Davis, 561 F.3d at 163-64 (quoting Wainwright v. Greenfield, 474 U.S. 284, 290-91, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)); United States v. Johnson, 302 F.3d 139, 146 (3d Cir.2002). Because a defendant’s post -Miranda warning silence could be nothing more than an invocation of his right to silence, it would be fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to why he failed to give an exculpatory account to the police after receiving the warnings. See Davis, 561 F.3d at 163. Not every reference to a defendant’s silence, however, results in a Doyle violation. Where “no governmental action induce[s] the defendant to remain silent,” Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Miranda-based fairness rationale does not control. Consequently, the Government permissibly may impeach a defendant’s testimony using his pre-arrest silence, J©ra kins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); his post-arrest, pr e-Miranda warning silence, Fletcher, 455 U.S. at 605-07, 102 S.Ct. 1309 ; and any voluntary post-Miranda warning statements," }, { "docid": "22833548", "title": "", "text": "subsequently offered at trial.” Id. at 618, 96 S.Ct. 2240. Though Doyle involved a state prosecution, it applies identically to federal prosecutions under the Fifth Amendment. United States v. Balter, 91 F.3d 427, 439 n. 9 (3d Cir.1996) (citation omitted). The Hale-Doyle rule applies only to post-arrest, post-Miramia-warnings silence. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Supreme Court held that a defendant’s post-arrest silence before receiving Miranda warnings can be used for impeachment. Id. at 605-07, 102 S.Ct. 1309. In doing so, it explained that the Hale-Doyle rule does not apply to the post-arrest, pre-Miranda warnings situation because it is not unfair to use a defendant’s silence against him absent the “affirmative assurances embodied in the Miranda warnings.” Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. As noted above, it is unclear whether Johnson was given Miranda warnings. But it makes no difference, for either way no due process violation occurred. If Johnson did not receive Miranda warnings, then the prosecutor’s question was permissible under Fletcher. See 455 U.S. at 605-07, 102 S.Ct. 1309. If he did receive the warnings, the question, though improper, does not constitute a due pro cess violation under Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). In Greer, the defendant, who received Miranda warnings when he was arrested, was accused of kidnapping, robbery, and murder. Id. at 758-60, 107 S.Ct. 3102. On direct examination, he testified that he was not involved, and that his alleged cohorts confessed to him on the day of the crimes that they were responsible. Id. On cross-examination, the prosecutor asked: \"Why didn't you tell this story to anybody when you got arrested?\" Id. at 759, 107 S.Ct. 3102. Defense counsel objected immediately, and the trial judge \"immediately sustained the objection and instructed the jury to `ignore [the] question, for the time being.'\" Id. (alteration in original). Although defense counsel did not request a more specific instruction, \"[t]he prosecutor did not pursue the issue further, nor did he mention it during his closing argument.\" Id. In" }, { "docid": "2580745", "title": "", "text": "71 L.Ed.2d 490 (1982) (per curiam). In Fletcher, the Supreme Court declined to extend the rule of Doyle v. Ohio to all comment on post-arrest silence. The Sixth Circuit had held that “impeachment of a defendant by post-arrest silence is forbidden by the Constitution, regardless of whether Miranda warnings are given.” Weir v. Fletcher, 658 F.2d 1126, 1130 (6th Cir.1981), rev’d, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The Supreme Court reversed, reasoning that only the “affirmative assurances embodied in the Miranda warnings” render it fundamentally unfair to permit cross-examination on post-arrest silence. 455 U.S. at 607, 102 S.Ct. at 1312. Although nothing in the Weir record indicated the time Miranda warnings were given, see 658 F.2d at 1129, the Supreme Court did not presume that the warnings were given at the time of arrest. Accordingly, we do not believe that we are authorized to engage in such a presumption. Cummiskey also argues that the district court erred by placing the burden on the defendant to establish the giving of Miranda warnings. He notes that counsel for Cummiskey entered a timely objection during trial to the prosecutor’s comment on Cummiskey’s silence, and that the district court sustained this objection. Having been put on notice of the Doyle v. Ohio problem by the court’s ruling during cross-examination, the government could, during its own case, have attempted to establish that Miranda warnings were not given until some time after Cummiskey’s arrest. It made no such effort. The defendant, having had his objection sustained, could not have been on notice that he had any obligation to fill in this gap in the evidence. With the record in this posture, the prosecutor nevertheless argued to the jury that Cummiskey’s silence at the time of arrest could be used as evidence impeaching his testimony. The government advances two reasons why Cummiskey’s Doyle v. Ohio contention should be disregarded. The first is that Cummiskey’s objection, during trial, was insufficiently specific to satisfy Fed.R.Evid. 103(a)(1), because his counsel did not state the specific ground of objection. This argument is frivolous. The objection was sustained" }, { "docid": "22833547", "title": "", "text": "little probative value because it “can as easily be taken to indicate reliance on the right to remain silent as to support an inference that [his] explanatory testimony was a later fabrication.” Id. at 177, 95 S.Ct. 2133. At the same time, it “has a significant potential for prejudice” because the jury is likely to draw a “strong negative inference” from the defendant’s failure to immediately tell the police what happened. Id. at 180, 95 S.Ct. 2133. A year later, the Court elevated the Hale rule to constitutional status, holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that the Fourteenth Amendment’s Due Process Clause bars state prosecutors from using a defendant’s post-arrest, post-Miraraia-warnings silence to impeach his trial testimony. Id. at 618-19, 96 S.Ct. 2240. The Court pointed out that because Miranda warnings implicitly assure an arrested person that “silence will carry no penalty,” “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 trial.” Id. at 618, 96 S.Ct. 2240. Though Doyle involved a state prosecution, it applies identically to federal prosecutions under the Fifth Amendment. United States v. Balter, 91 F.3d 427, 439 n. 9 (3d Cir.1996) (citation omitted). The Hale-Doyle rule applies only to post-arrest, post-Miramia-warnings silence. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Supreme Court held that a defendant’s post-arrest silence before receiving Miranda warnings can be used for impeachment. Id. at 605-07, 102 S.Ct. 1309. In doing so, it explained that the Hale-Doyle rule does not apply to the post-arrest, pre-Miranda warnings situation because it is not unfair to use a defendant’s silence against him absent the “affirmative assurances embodied in the Miranda warnings.” Fletcher, 455 U.S. at 607, 102 S.Ct. 1309. As noted above, it is unclear whether Johnson was given Miranda warnings. But it makes no difference, for either way no due process violation occurred. If Johnson did not receive Miranda warnings, then the prosecutor’s question was permissible under" }, { "docid": "2580744", "title": "", "text": "prosecutor, during closing argument, addressed his remarks to Cummiskey, not to Clark. For example, the prosecutor stated, “[P]ut yourself in Patrick Cummiskey’s shoes, .. . [don’t] you think he would have explained that to the police? ...” The prosecutor’s references embraced Clark only by virtue of passing references to “[t]hose two men” and “[t]hey didn’t protest.” Although any such affirmative use of Clark’s silence was clearly improper, see Malloy v. Hogan, 378 U.S. 1, 11-14, 84 S.Ct. 1489, 1495-1497, 12 L.Ed.2d 653 (1964), we believe that the attenuated relationship of these remarks to Clark rendered them harmless beyond a reasonable doubt. Because we have concluded that any improper comment on Cummiskey’s silence would not be harmless beyond a reasonable doubt, we turn to consider the defendants’ arguments in the context of Cummiskey’s case. B. Cummiskey argues' that we should engage in the presumption that Miranda warnings were given at the time of his arrest. That course, however, is foreclosed by the Supreme Court’s recent holding in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam). In Fletcher, the Supreme Court declined to extend the rule of Doyle v. Ohio to all comment on post-arrest silence. The Sixth Circuit had held that “impeachment of a defendant by post-arrest silence is forbidden by the Constitution, regardless of whether Miranda warnings are given.” Weir v. Fletcher, 658 F.2d 1126, 1130 (6th Cir.1981), rev’d, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The Supreme Court reversed, reasoning that only the “affirmative assurances embodied in the Miranda warnings” render it fundamentally unfair to permit cross-examination on post-arrest silence. 455 U.S. at 607, 102 S.Ct. at 1312. Although nothing in the Weir record indicated the time Miranda warnings were given, see 658 F.2d at 1129, the Supreme Court did not presume that the warnings were given at the time of arrest. Accordingly, we do not believe that we are authorized to engage in such a presumption. Cummiskey also argues that the district court erred by placing the burden on the defendant to establish the giving of Miranda warnings." }, { "docid": "8584572", "title": "", "text": "Court’s analysis, holding that the state’s violation of Doyle was harmless beyond a reasonable doubt. II. The Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that “the use for impeachment purposes of [a] petitioner's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. at 2245. The state’s first argument in response to Miller’s appeal is that, despite the fact that the Illinois Appellate Court, the Illinois Supreme Court, the United States District Court, and this court’s original panel all held otherwise, there was no Doyle violation in this case. Charles Miller was not given Miranda warnings when he and Williams were arrested at a gas station in the early morning hours of February 10, 1980, for unlawful use of weapons (a handgun was found under the seat of the car that they were driving). Later that day, Williams gave a formal statement to the police implicating himself, Armstrong, and Miller in Gor-such’s murder. Immediately following Williams’s statement, at 2:57 p.m., Miller was given Miranda warnings and arrested for the murder, kidnapping, and robbery of Neil Gorsuch. The state concedes that Miller was given Miranda warnings at the time of his arrest for the instant offenses and that any comment referring to his silence after that arrest would be improper. It nevertheless argues that the prosecutor’s reference to Miller’s post-arrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon, and that the prosecutor’s comment therefore did not violate Miller’s due process rights. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (not improper to comment on post-arrest silence in the absence of Miranda warnings, which affirmatively assure a defendant that he has the right to remain silent); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (same). The state asserts that" }, { "docid": "8584574", "title": "", "text": "it would have been natural for Miller to have attempted to exculpate himself from any involvement in the Gorsuch murder during the period following his initial arrest because he was arrested with Williams and knew of Williams’s involvement in the crime. We cannot agree with the respondent’s contentions. Although the prosecutor’s question may have been intended to refer in part to Miller’s silence following his arrest on the weapons charge, it cannot seriously be maintained that the prosecutor intended no reference to Miller’s silence after his arrest for Neil Gorsuch’s murder. From the jury’s standpoint, the only reasonable inference to be drawn from the prosecutor’s question — “Why didn’t you tell this story to anybody when you got arrested?” — is that Miller was silent at the time of his arrest for the offenses for which he was then on trial. The respondent asserts that it would have been “natural” for Miller to attempt to exculpate himself when he was arrested on the weapons charge merely because he was with Randy Williams. Although Williams may already have been a suspect in the murder because he had been seen leaving the tavern with Gorsuch, Miller was never even implicated in the crime until Williams gave his formal statement to the police later that day. It is not in the least bit “natural” for a person to try to exculpate himself of a crime of which he has not been accused. Indeed, the statement — “I did not kill anybody” — upon being arrested for unlawful use of weapons, drunken driving, or running a red light, would tend only to inculpate, rather than exculpate, the ar-restee. We conclude, as did the courts before us, that Miller was advised of his right to remain silent for purposes of Doyle when he was given the Miranda warnings at the time of his arrest for the offenses charged at trial. See People v. Miller, 96 Ill.2d at 394, 70 Ill.Dec. at 883, 450 N.E.2d at 326. The prosecutor’s reference to Miller’s silence at the time of his arrest therefore violated his constitutional right to a" }, { "docid": "23172531", "title": "", "text": "erred in allowing comment on Velarde’s post-arrest, pr e-Miranda silence. Because this error was not harmless beyond a reasonable doubt, Velarde’s conviction is reversed and this case is remanded to the district court for further proceedings. We therefore need not address Velarde’s remaining claims. REVERSED and REMANDED . Doyle referred to the use of post-arrest, post-Miranda silence for impeachment. See Doyle, 426 U.S. at 619, 96 S.Ct. 2240. The government may still use a defendant’s post-arrest, pre-Miranda silence for impeachment (but not, as this opinion explains, in its casein-chief). See Greer v. Miller, 483 U.S. 756, 762, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (“ 'absen[t] the sort of affirmative assurances embodied in the Miranda warnings,’ the Constitution does not prohibit the use of a defendant’s postarrest silence to impeach him at trial”) (quoting Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)); United States v. Hernandez, 948 F.2d 316, 323 n. 4 (7th Cir.1991) (\"A defendant’s silence before Miranda warnings is admissible to impeach the defendant.”) (citation omitted). GOULD, Circuit Judge, with whom FERNANDEZ and SILVERMAN, Circuit Judges, join, Concurring in part and Dissenting in part: I concur in part in the majority opinion’s analysis concerning error in comment on post-arrest, pre-Miranda, silence. In my view, this analysis is correct as applied to the questions whether the accused said anything (Q: “Did he say anything?” A: “No”) or denied anything (Q: “Did he deny knowledge?” A: “No”). I agree that these questions and their answers offered into evidence violated the Fifth Amendment rights of the accused. I also fully agree that there was no waiver arising from the subsequent waiver of Miranda rights. Nonetheless, I respectfully dissent from the opinion’s application of the Fifth Amendment prohibition against comment on silence to what I consider the demeanor evidence (Q: ‘What was his response when you told him there was marijuana found in the vehicle?” A: “There was no response. He didn’t look surprised or upset or whatever.” Q: “So he just sat there?” A: “Yes.”). And I respectfully dissent as well from the majority opinion’s" }, { "docid": "8584573", "title": "", "text": "in Gor-such’s murder. Immediately following Williams’s statement, at 2:57 p.m., Miller was given Miranda warnings and arrested for the murder, kidnapping, and robbery of Neil Gorsuch. The state concedes that Miller was given Miranda warnings at the time of his arrest for the instant offenses and that any comment referring to his silence after that arrest would be improper. It nevertheless argues that the prosecutor’s reference to Miller’s post-arrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon, and that the prosecutor’s comment therefore did not violate Miller’s due process rights. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (not improper to comment on post-arrest silence in the absence of Miranda warnings, which affirmatively assure a defendant that he has the right to remain silent); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (same). The state asserts that it would have been natural for Miller to have attempted to exculpate himself from any involvement in the Gorsuch murder during the period following his initial arrest because he was arrested with Williams and knew of Williams’s involvement in the crime. We cannot agree with the respondent’s contentions. Although the prosecutor’s question may have been intended to refer in part to Miller’s silence following his arrest on the weapons charge, it cannot seriously be maintained that the prosecutor intended no reference to Miller’s silence after his arrest for Neil Gorsuch’s murder. From the jury’s standpoint, the only reasonable inference to be drawn from the prosecutor’s question — “Why didn’t you tell this story to anybody when you got arrested?” — is that Miller was silent at the time of his arrest for the offenses for which he was then on trial. The respondent asserts that it would have been “natural” for Miller to attempt to exculpate himself when he was arrested on the weapons charge merely because he was with Randy Williams. Although Williams may" } ]

[ { "docid": "22671975", "title": "", "text": "Justice Scalia delivered the opinion of the Court. In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. I On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a “high drug area” of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long time — more than 20 seconds. When the police car executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an “unreasonable” speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver’s door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver’s window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren’s hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle. Petitioners were charged in a four-count indictment with violating various federal drug laws, including 21 U. S. C. §§ 844(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto’s asserted" } ]

[ { "docid": "6826210", "title": "", "text": "drug detection dog from the back of his patrol car. The dog conducted a “sniff’ around Defendant’s car. The dog alerted to the front bumper of the Mustang. Subsequently, Trooper Roland discovered several bundles of cocaine taped inside the bumper. Defendant was arrested for possession of cocaine. Based on the foregoing, the district court, in a thorough order, denied Defendant’s motion to suppress the cocaine. Specifically, the court concluded: (1) Defendant’s initial stop was justified; (2) Defendant consented to the search of his car; and (3) the pat-down of Defendant did not vitiate his consent to search the car. II. When reviewing the denial of a motion to suppress, we accept the findings of the district court unless they are clearly erroneous. United States v. Patten, 183 F.3d 1190, 1193 (10th Cir.1999). In reviewing the district court’s findings, “we are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence together with the inferences, deductions and conclusions to be drawn from the evidence, are to be determined by the trial judge.” United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990). The ultimate determination of reasonableness under the Fourth Amendment is a question of law that we review de novo. United States v. Mikulski, 317 F.3d 1228, 1230-31 (10th Cir.2003). A. Defendant first argues his initial stop violated the Fourth Amendment. A traffic stop is a seizure under the Fourth Amendment. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). “A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation.” Id. Whether the stop is routine or ordinary is immaterial and the subjective motivations of the officer are irrelevant. Id.; accord Whren v. United States, 517 U.S. 806, 810-18, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “Our sole inquiry is whether this particular offi cer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” Botero-Ospina, 71 F.3d at 786. Trooper Roland testified" }, { "docid": "23517326", "title": "", "text": "and conclusions from the testimony, are within the province of the district court. E.g., United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.1997). The district court’s ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. E.g., United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir.1996). However, we view the officer’s conduct, as must the district court, with “common sense” considering “ordinary human experience.” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1574-75, 84 L.Ed.2d 605 (1985). As we stated in United States v. Alvarez, 68 F.3d 1242, 1244 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1436, 134 L.Ed.2d 557 (1996): “This approach is intended to avoid unrealistic second-guessing of police officers’ decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.” See also United States v. Martinez-Cigarroa, 44 F.3d 908, 912-13 (10th Cir.1995) (Baldock, J., concurring). A. A traffic stop constitutes a seizure under the Fourth Amendment. Our standard for determining the reasonableness of a traffic stop under the Fourth Amendment is well established: [A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en bane) (internal quotations and citations omitted), cert. denied, — U.S. -, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996); accord Whren v. United States, — U.S.-,-, 116 S.Ct. 1769," }, { "docid": "22437746", "title": "", "text": "that the allegation of improper use of lane was a pretext for searching the vehicle. Our cases make clear that the government need not show a violation actually occurred to justify an initial traffic stop. An initial traffic stop is valid under the Fourth Amendment not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. See Botero-Ospina, 71 F.3d at 787. It is irrelevant that the officer may have had other subjective motives for stopping the vehicle. See id.; accord Whren v. United States, 517 U.S. 806, 810-19, 116 S.Ct. 1769, 1773-77, 135 L.Ed.2d 89 (1996). Our sole inquiry is whether the particular officer had reasonable suspicion that the particular motorist violated “any ... of the multitude of applicable traffic and equipment regulations” of the jurisdiction. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400. Oklahoma law allows driving in the center lane for certain purposes and under certain circumstances, none of which is consistent with weaving into and out of the center lane. See Okla. Stat. Ann. tit. 47, § 11-309.2 (West 1988). Mr. Hunnieutt argues that he never crossed into the center lane, but the district court’s contrary finding is not clearly erroneous given the officer’s testimony. The district court also found that the vehicle weaved across the shoulder line three or four times, but Mr. Hunnieutt contends that the testimony on this point was not credible because § 11-309.2 was cited in the police report, and not § 11-309.1, which governs crossing the shoulder line. See id. § 11— 309.1. The officer testified that he stopped Mr. Hunnieutt for “improper use of lane,” which encompasses crossing the center line and the shoulder line. Thus, the officer had a reasonable articulable suspicion that Mr. Hunnieutt had violated statutes governing the proper use of lanes. Alternatively, after witnessing his driving conduct, the officer had a reasonable articulable suspicion that Mr. Hunnieutt was driving under the influence of alcohol. See id. § 11-902. The initial stop therefore did not offend" }, { "docid": "23298730", "title": "", "text": "motion to suppress evidence, we accept the district court’s factual findings unless they are clearly erroneous, and review de novo its ultimate determination of reasonableness under the Fourth Amendment. See United States v. Gregory, 79 F.3d 973, 977 (10th Cir.1996). Mr. Ozbirn does not challenge the district court’s findings of fact, only its legal conclusions based on those facts. Thus, we accept the factual findings as articulated by the district court. DISCUSSION Trooper Smith’s decision to stop the motor home and detain Mr. Ozbirn and Mr. Feldman constitutes a seizure within the meaning of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Therefore, the stop is “subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Prior cases establish that a traffic stop is reasonable under the Fourth Amendment at its inception if the officer has either (1) probable cause to believe a traffic violation has occurred, see, e.g., Whren, 517 U.S. at 810, 116 S.Ct. 1769 (deciding the detention of a motorist supported by probable cause to believe the motorist committed a traffic violation is reasonable under Fourth Amendment), or (2) a reasonable articula-ble suspicion that “this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc) (internal quotation marks and citation omitted), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Thus, we must decide in this instance whether Trooper Smith had probable cause or, at a minimum, a reasonable, articulable suspicion of a violation necessary to validly effectuate the stop. Id. at 788 (either probable cause or reasonable suspicion is sufficient to support traffic stop). As mentioned above, the district court found Trooper Smith had “ample probable cause” to stop the motor home driven by Mr. Ozbirn based on an observed violation of Kan. Stat. Ann. § 8-1522. This statute provides that “[w]henever any roadway has been" }, { "docid": "23006648", "title": "", "text": "an investigative detention, which must be “supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Alvarez, 68 F.3d at 1244; see also United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir.1995). We employ a two-step inquiry when evaluating such investigative detentions, considering first “whether the officer’s action was justified at its inception,” and second “whether [the action] was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see Botero-Ospina, 71 F.3d at 786. I. Validity of Initial Stop: Our recent en banc decision in Botero-Ospina disposes of Mr. McRae’s argument that the initial stop of his vehicle was pretextual and therefore invalid. In that case, we adopted the following test for determining the constitutionality of a traffic stop: “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” Id. at 787. It is thus irrelevant whether the particular officer “would” have stopped the vehicle “ ‘according to the general practice of the police department or the particular officer making the stop.’ ” Id. (quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994)). It is equally irrelevant whether “the officer may have had other subjective motives for stopping the vehicle.” Id. As applied to Officer Colyar’s stop of Mr. McRae’s vehicle, Botero-Ospina’s standard compels the conclusion that the stop was valid. Utah law requires vehicles to display a front license plate. Utah Code Ann. § 41-la-404, § 41-la-1305(5). Failure to wear a seat belt is a secondary offense, for which a citation or warning may be issued if another motor vehicle law has been violated. Utah Code Ann. § 41-6-182, 184. Mr. McRae does not dispute that the vehicle he was driving did not have a front license plate" }, { "docid": "9500691", "title": "", "text": "resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Because an ordinary traffic stop is analogous to an investigative detention, we analyze such stops under the principles pertaining to investigatory detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995). We conduct a two-step inquiry when determining the constitutionality of a traffic stop, considering first whether the officer’s action was justified at its inception, and second, whether it was reasonably related in scope to the circumstances that justified the interference in the first place. See id. at 786. Our focus in this case is on the first inquiry. “An initial traffic stop is valid ... not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). The validity of a traffic stop under the Fourth Amendment turns on whether “this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004). So long as that standard is satisfied, it is irrelevant that the officer may have had subjective motives for stopping the vehicle. See United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir.2001); Hunnicutt, 135 F.3d at 1348; Botero-Ospina, 71 F.3d at 787. Speaking to the first step of the Terry analysis, the government argues that Chugg had a reasonable articulable suspicion of a violation of Utah Code § 41-6-150.10 because Chugg noticed that the 4Runner’s mud flaps were not wide enough to cover the vehicle’s oversized after-market tires. It was in rejecting this argument that the district court found “as a matter of law that this portion of the Utah Code does not support Sgt. Chugg’s traffic stop.” Tibbetts, 319 F.Supp.2d at 1260. We review questions of law de novo." }, { "docid": "22437745", "title": "", "text": "the meaning of the Fourth Amendment, “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). A routine traffic stop, however, is more analogous to an investigative detention than a custodial arrest. See United States v. Jones, 44 F.3d 860, 871 (10th Cir. 1995). We therefore analyze such stops under the principles developed for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Botero-Ospina, 71 F.3d at 786. To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879. A. The Initial Stop Mr. Hunnieutt argues the initial stop violated the Fourth Amendment. He asserts that there was never any traffic violation and that the allegation of improper use of lane was a pretext for searching the vehicle. Our cases make clear that the government need not show a violation actually occurred to justify an initial traffic stop. An initial traffic stop is valid under the Fourth Amendment not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. See Botero-Ospina, 71 F.3d at 787. It is irrelevant that the officer may have had other subjective motives for stopping the vehicle. See id.; accord Whren v. United States, 517 U.S. 806, 810-19, 116 S.Ct. 1769, 1773-77, 135 L.Ed.2d 89 (1996). Our sole inquiry is whether the particular officer had reasonable suspicion that the particular motorist violated “any ... of the multitude of applicable traffic and equipment regulations” of the jurisdiction. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400. Oklahoma law allows driving in the center lane for certain purposes and under certain circumstances, none of which is consistent" }, { "docid": "22586751", "title": "", "text": "transported them to the police station. l. The initial stop A routine traffic stop is a seizure within the meaning of the Fourth Amendment. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc), cert. denied, — U.S. -, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Such a stop “is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” Id. at 787. See also Whren v. United States, — U.S. -, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (detention of motorist supported by probable cause to believe motorist committed traffic violation was reasonable under Fourth Amendment). Defendants do not contest on appeal the district court’s finding that each vehicle was traveling faster than 40 m.p.h. in a zone where the posted speed limit was 30 m.p.h. Accordingly, the officers validly stopped all three vehicles for speeding. An ordinary traffic stop is more analogous to an investigative detention than to a custodial arrest. Jones, 44 F.3d at 871. We therefore analyze such stops under the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In evaluating the reasonableness of an investigative detention, we make a dual inquiry, considering first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879. “The government has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993). If the detention is not so limited, the stop may only be justified by probable cause or consent. Id. We already have determined that the stop was justified at its inception, because the officers observed traffic violations. We therefore turn to the" }, { "docid": "22586750", "title": "", "text": "of police-citizen encounters: “(1) consensual encounters which do not implicate the Fourth Amendment ... (2) investigative detentions which are' Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity ... and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.” United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir.1996) (citations omitted). These categories are not static. A consensual encounter may escalate into an investigative detention. An investigative detention may escalate into a full-blown arrest, or it may deescaláte into a consensual encounter. A reviewing court must analyze each stage of the encounter, ensuring that the requisite level of suspicion or cause is present at each stage. We believe the encounter between the officers and the defendants unfolded in three stages: (1) the initial stop; (2) the forcible removal of the defendants from their vehicles following the receipt of the NCIC information; and (3) the subsequent detention of defendants in handcuffs, while the police questioned them and ultimately transported them to the police station. l. The initial stop A routine traffic stop is a seizure within the meaning of the Fourth Amendment. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc), cert. denied, — U.S. -, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Such a stop “is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” Id. at 787. See also Whren v. United States, — U.S. -, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (detention of motorist supported by probable cause to believe motorist committed traffic violation was reasonable under Fourth Amendment). Defendants do not contest on appeal the district court’s finding that each vehicle was traveling faster than 40 m.p.h. in a zone where the posted speed limit was 30 m.p.h. Accordingly, the officers validly stopped all three vehicles for speeding. An ordinary traffic stop is more analogous to an investigative detention" }, { "docid": "23582049", "title": "", "text": "Whren, 517 U.S. at 813, 116 S.Ct. 1769; Botero-Ospina, 71 F.3d at 787. In Botero-Ospina, the en banc Court set forth the standard for examining the constitutionality of a traffic stop: [A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practices of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. Id. (internal quotations, citations, and footnote omitted). Defendants argue that neither of the grounds accepted by the district court— the fog lights violation and license plate violation — constituted sufficient grounds for the traffic stop. As explained below, we agree with Defendants regarding the fog lights violation but affirm the district court (one member of the panel dissenting) regarding the license plate. Defendants also argue that their consent to search the vehicle was invalid because Trooper Cason improperly prolonged the detention after the warning citation was issued. The district court found that “after the trooper had returned all of the defendant’s documentation to the defendant, ... Defendant Rodriguez was free to leave and a reasonable person would have known he was free to leave. Defendant Rodriguez’s continued answering of questions by Trooper Cason, at that point in time, became consensual.” That conclusion is consistent with this Court’s precedents. See, e.g., United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir.1998). We therefore affirm that portion of the district court’s judgment for substantially the reasons stated in the district court’s Order. A. Defendants first challenge the purported fog lamp violation. The statute in effect on the date of the" }, { "docid": "6826211", "title": "", "text": "evidence, are to be determined by the trial judge.” United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990). The ultimate determination of reasonableness under the Fourth Amendment is a question of law that we review de novo. United States v. Mikulski, 317 F.3d 1228, 1230-31 (10th Cir.2003). A. Defendant first argues his initial stop violated the Fourth Amendment. A traffic stop is a seizure under the Fourth Amendment. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). “A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation.” Id. Whether the stop is routine or ordinary is immaterial and the subjective motivations of the officer are irrelevant. Id.; accord Whren v. United States, 517 U.S. 806, 810-18, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “Our sole inquiry is whether this particular offi cer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” Botero-Ospina, 71 F.3d at 786. Trooper Roland testified he observed Defendant exit his lane from the turnpike without properly signaling. Trooper Roland also testified he observed Defendant change lanes on his way to the toll plaza without properly signaling. The district court specifically found that Defendant “violated Oklahoma law when he failed to signal his exit from the turnpike and his lane choice at the toll booth.” See 47 Okla. Stat. Ann. § 11-309(1). Defendant nevertheless argues that exiting the turnpike to the toll plaza does not constitute a “lane change” as contemplated by § 11-309(1) and that he was not required to signal when choosing a lane on his way to the toll plaza. The district court, however, concluded that “[biased on the video evidence, leaving the turnpike to go on to the toll plaza is leaving a lane as contemplated by Oklahoma statutes and therefore, precipitates an obligation to signal.” We agree, and note that a signal is required when exiting the interstate. See, e.g., Okla. Dep’t of Transp. Driver’s Manual, Chap. 7-Lane Usage and Maneuvers (requiring drivers that exit the" }, { "docid": "20370596", "title": "", "text": "traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” Botero-Ospina, 71 F.3d at 787. Under our Botero-Ospina test, therefore, an initial stop is constitutionally valid if the officer had reasonable suspicion to believe that the defendant violated a traffic or equipment regulation. Id. It is irrelevant whether: (1) “ ‘the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop’ and (2) “the officer may have had other subjective motives for stopping the vehicle.” Id. (quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994)). We conclude Trooper Bushnell had reasonable suspicion to stop Defendants’ car under Botero-Ospina. Trooper Bushnell observed Defendants drift twice out of their lane of travel and into the Interstate 15 emergency lane for approximately 200 hundred feet. Trooper Bushnell thereby observed Defendants commit a traffic violation under Utah law. See Utah Code Ann. § 41-6-61(1) (“A vehicle shall be operated as nearly as practical entirely within a single lane.”); Utah Code Ann. § 41-6-69(l)(a) (“A person may not turn a vehicle or move right or left upon a roadway or change lanes until ... an appropriate signal has been given.”). Once Trooper Bushnell observed Defendants commit a traffic violation, he had reasonable suspicion to stop Defendants’ car. Botero-Ospina, 71 F.3d at 787. Moreover, contrary to Defendants’ contentions, Utah Code Ann. § 41-6-76 is not implicated because Trooper Bushnell did not have his audible or visual signals on when Defendants weaved into the emergency lane. See Utah Code Ann. § 41-6-76 (operator of a vehicle shall move to the right-hand edge or curb of the highway “[u]pon the immediate approach of an authorized emergency vehicle using audible or visual signals.”) (emphasis added). As a result, we hold Trooper Bushnell had reasonable suspicion to stop Defendants’ car. It is therefore irrelevant" }, { "docid": "23517328", "title": "", "text": "1773-77, 135 L.Ed.2d 89 (1996) (reasonableness of traffic stop does not depend on subjective motivations of officer involved). In this case, Officer Harvill testified that when Defendant passed by him on the interstate, he did not appear to be wearing a seat belt harness contrary to New Mexico state law. The Officer’s uncontradicted testimony established that the distance between his vehicle and Defendant’s vehicle was not great, the day was bright and sunny, and he could see clearly through the windows of Defendant’s truck. The district court found Officer Harvill’s testimony that he stopped Defendant’s truck based upon an observed traffic violation credible. Because this finding is not clearly erroneous, we uphold the district court’s conclusion that the initial stop of Defendant’s truck was reasonable. B. Next we address the reasonableness of Officer Harvill’s detention of Defendant. Generally a police officer’s actions during a detention must be reasonably related in scope to the circumstances which justified the initial stop. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). An investigative detention usually must last no longer than necessary to effectuate the purpose of the stop. United States v. Lee, 73 F.3d 1034, 1038-39 (10th Cir.1996). An investigative detention may be expanded beyond its original purpose, however, if during the initial stop the detaining officer acquires “reasonable suspicion,” of criminal activity, United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995), that is to say the officer must acquire a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” Wood, 106 F.3d at 946. In this case, the facts and circumstances were sufficient to justify Defendant’s continued detention following the initial stop. Officer Harvill followed Defendant for over a mile with his flashing lights activated while Defendant ignored him. Only after Officer Harvill activated his siren and pulled beside Defendant did Defendant acknowledge the officer’s presence and pull over. We have identified a driver’s failure to promptly stop an automobile in response to flashing police lights as a factor supporting reasonable suspicion. Jones, 44 F.3d at 872 (citing United States v." }, { "docid": "19983061", "title": "", "text": "plate was not clearly visible and legible, as required by Utah law. See Utah Code Ann. § 41-la-404(3) (“Every license plate shall at all times be: (a) securely fastened: ... (iii) in a place and position to be clearly visible; and (b) maintained: ... (ii) in a condition to be clearly legible.”). “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc). “Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated ‘any one of the multitude of applicable traffic and equipment regulations’ of the jurisdiction.” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). In Botero-Ospina, we upheld the denial of a defendant’s motion to suppress where “[the deputy] observed a violation of [Utah law] relating to lane straddling” and “he was able to articulate specific facts which, in light of his training and experience, gave rise to a reasonable suspicion that [the defendant] may have been driving under the influence of alcohol, in violation of [Utah law].” Id. at 788. We explained “either or both of these reasons” provided justification for the initial stop. Id. Gould stopped this truck because he “could see the plate, but [] could not read all the digits on it.” (R. Vol. II at 11 (Eckhart), Supp. Vol. I (Cardenas) at 11.) After he stopped the truck and with the aid of a spotlight, he could read all the digits. As he walked toward the truck, he observed the license plate light was not properly working. Like the officer in Botero-Ospina, Gould observed a violation of Utah law before he made the stop. However, Gould was incorrect about which provision of law had in fact been violated. He believed Utah law required license plates to be visible up to 100 feet at any time. He was mistaken — the" }, { "docid": "4648714", "title": "", "text": "us to rule in this appeal on the precise contours of the constitutional question raised by the town’s policy is unnecessary because Tenth Circuit law did not clearly establish a Fourth Amendment violation at the time of the conduct. 2. Applicable Precedent. As a starting point, the plaintiffs rely on basic Fourth Amendment search and seizure jurisprudence. They contend Tenth Circuit law was clear at the time of the incidents that traffic stops constitute seizures under the Fourth Amendment. They emphasize that the stops here were not isolated instances, but part of numerous stops pursuant to Mountain View’s policy of ticketing motorists outside town boundaries. Under our cases, a traffic stop is valid under the Fourth Amendment if it is “based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir.2001) (citation omitted). And our cases are clear that the reasonableness of the traffic stop is an objective inquiry. We do not consider the subjective motivations of law enforcement—those motivations are irrelevant. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995). Instead, the “sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” Id. (quotation omitted). We agree with the plaintiffs that Colorado law does not permit officers to enforce traffic infractions outside their home jurisdiction. As we held in United States v. Gonzales, 535 F.3d 1174, 1182 (10th Cir.2008), when officers stop a suspect for a “traffic violation outside their jurisdiction, they violate[ ] Colorado law.” But this violation of Colorado law does not necessarily mean the defendants violated the plaintiffs’ federal constitutional rights. With this general framework in mind, we turn to the precedent that applies to extra-jurisdictional police stops. The plaintiffs and the district court rely on a 1990 case, Ross v. Neff, 905 F.2d 1349 (10th Cir.1990), to support their conclusion that the officers committed a constitutional violation. They contend" }, { "docid": "20370595", "title": "", "text": "findings of fact must be accepted unless they are clearly erroneous; and the evidence will be considered in the light most favorable to the ruling.” United States v. Nicholson, 17 F.3d 1294, 1297 (10th Cir.1994). “The ultimate determination of reasonableness under the Fourth Amendment is a question of law which we review de novo.” United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). Our recent en banc pronouncement in United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995) controls Defendants’ contentions that Trooper Bushnell lacked reasonable suspicion to stop their car and that the stop was pretextual. In Botero-Ospina, we considered whether we should continue to utilize the “would” or “usual police practices” standard set forth in United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988), overruled in part, 71 F.3d 783 (10th Cir.1995), for analyzing the constitutionality of traffic stops or adopt a different standard. We concluded the Guzman standard was unworkable, overruled that standard, and adopted a new test for determining the constitutionality of traffic stops under the Fourth Amendment: “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” Botero-Ospina, 71 F.3d at 787. Under our Botero-Ospina test, therefore, an initial stop is constitutionally valid if the officer had reasonable suspicion to believe that the defendant violated a traffic or equipment regulation. Id. It is irrelevant whether: (1) “ ‘the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop’ and (2) “the officer may have had other subjective motives for stopping the vehicle.” Id. (quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994)). We conclude Trooper Bushnell had reasonable suspicion to stop Defendants’ car under Botero-Ospina. Trooper Bushnell observed Defendants drift twice out of their lane of travel and into the Interstate 15 emergency lane for approximately" }, { "docid": "23517327", "title": "", "text": "for determining the reasonableness of a traffic stop under the Fourth Amendment is well established: [A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en bane) (internal quotations and citations omitted), cert. denied, — U.S. -, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996); accord Whren v. United States, — U.S.-,-, 116 S.Ct. 1769, 1773-77, 135 L.Ed.2d 89 (1996) (reasonableness of traffic stop does not depend on subjective motivations of officer involved). In this case, Officer Harvill testified that when Defendant passed by him on the interstate, he did not appear to be wearing a seat belt harness contrary to New Mexico state law. The Officer’s uncontradicted testimony established that the distance between his vehicle and Defendant’s vehicle was not great, the day was bright and sunny, and he could see clearly through the windows of Defendant’s truck. The district court found Officer Harvill’s testimony that he stopped Defendant’s truck based upon an observed traffic violation credible. Because this finding is not clearly erroneous, we uphold the district court’s conclusion that the initial stop of Defendant’s truck was reasonable. B. Next we address the reasonableness of Officer Harvill’s detention of Defendant. Generally a police officer’s actions during a detention must be reasonably related in scope to the circumstances which justified the initial stop. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). An" }, { "docid": "23298731", "title": "", "text": "see, e.g., Whren, 517 U.S. at 810, 116 S.Ct. 1769 (deciding the detention of a motorist supported by probable cause to believe the motorist committed a traffic violation is reasonable under Fourth Amendment), or (2) a reasonable articula-ble suspicion that “this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc) (internal quotation marks and citation omitted), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Thus, we must decide in this instance whether Trooper Smith had probable cause or, at a minimum, a reasonable, articulable suspicion of a violation necessary to validly effectuate the stop. Id. at 788 (either probable cause or reasonable suspicion is sufficient to support traffic stop). As mentioned above, the district court found Trooper Smith had “ample probable cause” to stop the motor home driven by Mr. Ozbirn based on an observed violation of Kan. Stat. Ann. § 8-1522. This statute provides that “[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic ... [a] vehicle shall be driven as nearly as practicable entirely within a single lane.” Kan. Stat. Ann. § 8-1522. Mr. Ozbirn disputes the court’s conclusion, relying on cases applying the same or similar statute and holding that under certain circumstances, drifting outside the marked lane does not establish sufficient grounds for an officer to make a stop. See, e.g., Gregory, 79 F.3d at 978 (holding a single instance of veering onto an emergency lane is not sufficient to constitute a violation of a Utah statute virtually identical to Kan. Stat. Ann. § 8-1522); United States v. Ochoa, 4 F.Supp.2d 1007, 1012 n. 4 (D.Kan.1998) (finding a single crossing onto the shoulder does not constitute a violation of Kan. Stat. Ann. § 8-1522, in part because the officers contributed to the vehicle going outside the lane). Based on these cases, he asserts the two brief incidents of drifting onto the shoulder did not give Trooper Smith probable cause to stop him for a traffic" }, { "docid": "23582048", "title": "", "text": "440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Because a routine traffic stop is more akin to an investigative detention than a custodial arrest, a traffic stop is reasonable if (1) the officer’s action was justified at its inception, and (2) the officer’s action was reasonably related in scope to the circumstances which justified the interference in the first place. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). To determine the initial validity of a traffic stop, we ask whether the stop was “objectively justified.” Botero-Ospina, 71 F.3d at 788. Generally, a routine stop is objectively justified when probable cause or reasonable articulable suspicion exists to believe a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (probable cause); Botero-Ospina, 71 F.3d at 787 (reasonable articulable suspicion). The actual motivations or subjective beliefs and intentions of the officer are irrelevant. See Whren, 517 U.S. at 813, 116 S.Ct. 1769; Botero-Ospina, 71 F.3d at 787. In Botero-Ospina, the en banc Court set forth the standard for examining the constitutionality of a traffic stop: [A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practices of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. Id. (internal quotations, citations, and footnote omitted). Defendants argue that neither of the grounds accepted by the district court— the fog lights violation" }, { "docid": "19983060", "title": "", "text": "light most favorable to the government, accept the district court’s findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004). 1. Initial Stop Cardenas and Eckhart contend the traffic stop was not justified at its inception because it was based on a mistake of law. See United States v. DeGasso, 369 F.3d 1139, 1144 (10th Cir.2004) (“An officer’s reasonable mistake of fact, as distinguished from a mistake of law, may support the probable cause or reasonable suspicion necessary to justify a traffic stop.”). In addition, they contend the stop was not justified because Utah police officers may not enforce Utah license plate statutes on cars licensed in California. They claim “[sjtopping an out-of-state vehicle impedes the occupants’ right to interstate travel, as protected by the Privileges and Immunities Clause and the Equal Protection Clause.” (Cardenas’ Opening Br. at 11.) a. Mistake of Law The government asserts the stop was justified at its inception because the license plate was not clearly visible and legible, as required by Utah law. See Utah Code Ann. § 41-la-404(3) (“Every license plate shall at all times be: (a) securely fastened: ... (iii) in a place and position to be clearly visible; and (b) maintained: ... (ii) in a condition to be clearly legible.”). “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc). “Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated ‘any one of the multitude of applicable traffic and equipment regulations’ of the jurisdiction.” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). In Botero-Ospina, we upheld the denial of a defendant’s motion to suppress where “[the deputy] observed a violation of [Utah law] relating to lane straddling” and" } ]

[ { "docid": "4377867", "title": "", "text": "Opinion RONALD B. KING, Bankruptcy Judge and LEIF M. CLARK, Bankruptcy Judge. All of the above-referenced Debtors (collectively, “Debtors”), filed Chapter 13 cases in 2001. The Chapter 13 Trustee, Marion A. Olson, Jr. (“Trustee”), filed an Objection to Confirmation in each of these Chapter 13 cases, except in one case where a creditor filed the objection. The Trustee objected to a supplemental plan provision in the Debtors’ Chapter 13 Plans which requires undersecured creditors whose debts are secured by personal property to release their liens before the unsecured portion of their debt has been paid. The release of the lien would be before payment of the creditor’s remaining unsecured claim, before completion of the Chapter 13 case, and before receipt of a discharge. The cases are divided on this issue. A majority of courts has ruled in favor of the position asserted by the Trustee in this case, which is usually asserted by secured creditors. See In re Thompson, 224 B.R. 360 (Bankr.N.D.Tex.1998); In re Scheierl, 176 B.R. 498 (Bankr.D.Minn.1995). A minority of courts, however, has adopted the position of the debtors, relying upon their interpretation of sections 506(a), 506(d), and 1322(b), and 1325(a)(5)(B) of the Bankruptcy Code. See In re Townsend, 256 B.R. 881 (Bankr.N.D.Ill.2001); In re Shorter, 237 B.R. 443 (Bankr.N.D.Ill.1999); In re Johnson, 213 B.R. 552 (Bankr. N.D.Ill.1997); Bank One, Chicago, NA v. Flowers, 183 B.R. 509 (N.D.Ill.1995). This Court adopts the position of the majority of courts, but for slightly different reasons. A secured creditor should not be compelled to release its security interest without payment of the debt in full, prior to the completion of the debtor’s plan and the granting of a discharge. Section 506 of the Code substantially affects the rights of secured creditors in a bankruptcy case. Under state law, a secured creditor is entitled to retain its security interest in collateral until the debt is paid in full, even if the value of the collateral is less than the debt owed. The secured creditor is not forced to bifurcate its debt under state law unless the creditor forecloses upon its security" } ]

[ { "docid": "11204170", "title": "", "text": "confirmed on April 7, 1998, and, with the exception of a small default noted in this court’s March 19, 1998 order, there is no evidence that payments under the plan have not been made. Plaintiff has maintained full coverage insurance on the vehicle for an unknown period of time. On April 29, 1998, she received a notice of cancellation. She resumed payments, so that as of the date of trial, there was full coverage insurance on the vehicle. Plaintiff makes monthly payments of $87 for insurance. Although plaintiff budgeted only $50 per month for automobile insurance in her Chapter 13 plan, she may amend her plan to take into account the fact that premiums are higher than anticipated. Based on all the evidence received, the court adheres to its earlier findings that FMCC’s security interest is adequately protected and that plaintiff did not file her petition in bankruptcy in bad faith. Looking to the latter question, plaintiffs desire to save her car from repossession is not an improper motive. The court credits plaintiffs testimony that reduction in income, even though apparently small, caused the dismissal of her first case, and because plaintiff has funded her second plan, the court finds that this debtor in good faith seeks to adjust her debts as provided by the Bankruptcy Code. Conclusions of Law As previously noted, plaintiffs complaint raises two legal issues. First, in connection with her claim under § 542(a), FMCC argues that plaintiff does not possess a sufficient property interest in the vehicle, such that turnover may be ordered. Second, FMCC contends that sanctions under § 362(h) are not required here, as it did not violate the automatic stay in refusing to return the vehicle after receiving notice of plaintiffs Chapter 13 filing. Because a decision in FMCC’s favor on the question under § 542(a) would obviate the need to address the issue under § 362(h), this opinion addresses it first. (1) Turnover Question Under § 542(a) Section 542(a) generally empowers a bankruptcy trustee to recover property of the debtor that is in the possession, custody or control of third parties." }, { "docid": "4646639", "title": "", "text": "MEMORANDUM OPINION JARVIS, District Judge. This is an action to review a decision of the Bankruptcy Court permitting the debtors/appellees, Carey R. Sharpe, Sr. and Nancy Jo Sharpe, to modify their Chapter 13 confirmed plan. Because I conclude that the Bankruptcy Court’s decision to permit the modification is contrary to law, that decision will be reversed. On December 20, 1989, debtors Carey R. Sharpe, Sr. and Nancy Jo Sharpe filed a Chapter 13 Bankruptcy Petition and Plan in the United States Bankruptcy Court for the Eastern District of Tennessee. Ford Motor Credit Company (FMCC) filed a proof of claim in the proceeding in the amount of $3,790.95. FMCC’s claim is secured by a 1968 Chevrolet Spectrum. The debtors' plan designated five separate classes including the following one denominated as Class C: “The Holders of the Following Secured Claims:” FMCC’s claim was listed along with two other secured creditors’ claims in Class C. FMCC filed no objection to its treatment under this Plan and the Plan was confirmed by court order on February 27, 1990. In essence, the Plan provided that FMCC’s claim would be treated as secured in the amount of $2,500.00 with 11% interest in accordance with the provisions of Class C of the Plan. Ford’s balance of $1,290.95 was to be paid as an unsecured claim in accordance with the provisions of Class E of the Plan. On March 15, 1990, the debtors filed a motion to modify the Chapter 13 Plan. The basis for the modification was that the 1986 Chevrolet Spectrum securing the obligation to FMCC had “blown an engine”. The debtors moved to modify their Plan to surrender the automobile to FMCC so that FMCC could amend its claim to be paid as an unsecured creditor through the Plan. FMCC objected to the proposed modification, and on May 1, 1990, a hearing was held in the Bankruptcy Court regarding the proposed modification. After a hearing on May 1, 1990, the Bankruptcy Court held that the debtors could modify their confirmed Chapter 13 Plan to surrender the security to FMCC and to reclassify FMCC’s claim from" }, { "docid": "6280288", "title": "", "text": "secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence.” 11 U.S.C. § 1322(b). However, FMCC argues, other provisions of Chapter 13 should be read to limit section 1322(b)’s seemingly broad application. First, FMCC cites section 1325, which governs confirmation of a Chapter 13 plan. Section 1325 provides that the bankruptcy court shall confirm a Chapter 13 plan if, among other things: (5) with respect to each allowed secured claim provided for by the plan— (A) the holder of such claim has accepted the plan; [or] (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim. 11 U.S.C. § 1325(a)(5). FMCC obviously has not accepted the plan. Thus, the plan must satisfy section 1325(a)(5)(B), which FMCC contends it does not. FMCC relies on section 1325(a)(5)(B)(i) in arguing that the plan should not be confirmed because it does not provide that FMCC, as a holder of a secured claim, shall retain its lien. Debtors counter by arguing that section 1325 entitles FMCC to retain its lien only until debtors compensate FMCC for the current value of the lien. Second, FMCC argues that the bankruptcy court erred in not referring to section 506(d). In Dewsnup, the Supreme Court held that section 506(d) does not authorize the strip down of liens in Chapter 7 cases. FMCC argues that section 506(d) has equal effect in Chapter 13 eases. Debtors respond by arguing that Dewsnup’s holding does not apply to Chapter 13 because section 1322(b) authorizes the modification of a secured party’s rights and thus is clearly an exception to the pre-Code rule that hens pass through bankruptcy. The Court finds that the statutory text, the case law, and the general policies behind Chapter 13 all support a conclusion that debtors may strip down FMCC’s lien to the value of the collateral as" }, { "docid": "6280281", "title": "", "text": "Once the debtor had paid off the secured portion of FMCC’s claim, the debtor sought to compel FMCC to convey title of the automobile to her even though, under the plan, payment of the unsecured claims would not be completed for more than a year. In its analysis, the bankruptcy court noted that because FMCC had not objected to the plan, “this dispute does not involve the raging controversy over bifurcation of claims under 506(a) and avoidance of liens under § 506(d) in Chapter 13 cases.” Id. at 962. The bankruptcy court then made two findings. First, the bankruptcy court found that the plan language clearly provided for lien stripping and thus FMCC should have objected to the plan at the time it was proposed. Second and significantly for the purposes of the case at bar, the bankruptcy court stated that it would have reached the same result even in the absence of the plan’s language quoted above because the claim had been bifurcated under section 506(a). The court stated that “[gjiving [section 1322(b) ] its plain meaning, it must be concluded that a Chapter 13 debt- or is permitted not merely to alter the amount and terms of páyment of her secured debts, but to hold the property free and clear of liens after paying the allowed secured claims in accordance with the provisions of her confirmed plan.” Id. In other words, the court held that, in Chapter 13 eases, once the secured portion of a bifurcated claim is paid, lien-stripping occurs as a matter of law. The second relevant case is Ford Motor Credit Co. v. Pickett (In re Pickett), 151 B.R. 471 (Bankr.M.D.Tenn.1992). In Pickett, the debtors filed under Chapter 13. FMCC filed a proof of claim for a secured claim of $12,-638 based upon its lien on the debtor’s pickup truck. Under the debtors’ plan, FMCC’s claim was bifurcated and FMCC was allowed a secured claim of $7,500, with the remaining debt listed as an unsecured claim. The plan also provided for one hundred percent payment of the unsecured claims. FMCC accepted the plan. After the" }, { "docid": "11204187", "title": "", "text": "opposing turnover under § 542(a) is that the creditor may suffer the very harm that adequate protection is designed to avoid if the property is turned over to the trustee before the trustee proves that the creditor is being given the adequate protection to which it is entitled. Id. at 625. Looking to the facts presented here, at the commencement of this case, FMCC justifiably had doubts as to plaintiffs ability to provide adequate protection, as she had previously failed to fund another Chapter 13 plan that contained substantially the same terms as the plan that has been confirmed in this ease. FMCC brought a motion to modify the stay within several weeks of the petition, and there was no apparent obstacle to the bringing of an adversary proceeding for turnover had plaintiff chosen to do so. Taking these considerations into account, the court concludes that FMCC did not violate the automatic stay in refusing to voluntarily surrender plaintiffs vehicle to her at the commencement of this case. Accordingly, plaintiffs motion for sanctions is denied. Conclusion For the reasons set forth below, plaintiffs motion for turnover is granted. Upon the entry of a two-month default order, FMCC shall be obliged to return plaintiffs vehicle to her. Plaintiff will be required to make provision for FMCC’s repossession costs in her Chapter 13 plan. Plaintiffs motion for sanctions for violating the automatic stay is denied. . Hereafter, unless otherwise noted, all refer-enees to statute are to the Bankruptcy Code. . Where there is a significant discrepancy between the actual cost of insurance coverage and the amount designated for payment of insurance premiums in a Chapter 13 debtor's budget, the lender's collateral may not be adequately protected. See In re Richardson, 135 B.R. 256, 259-60 (Bankr.E.D.Tex.1992). . Section 9-503 of the Illinois UCC provides that \"unless otherwise agreed a secured party has on default the right to take possession of the collateral.\" 810 ILCS 5/9-503. Pursuant to UCC § 9-504, the secured party also has the right to dispose of collateral after default. 810 ILCS 5/904. UCC § 9-506 provides in the following" }, { "docid": "6280289", "title": "", "text": "section 1325(a)(5)(B)(i) in arguing that the plan should not be confirmed because it does not provide that FMCC, as a holder of a secured claim, shall retain its lien. Debtors counter by arguing that section 1325 entitles FMCC to retain its lien only until debtors compensate FMCC for the current value of the lien. Second, FMCC argues that the bankruptcy court erred in not referring to section 506(d). In Dewsnup, the Supreme Court held that section 506(d) does not authorize the strip down of liens in Chapter 7 cases. FMCC argues that section 506(d) has equal effect in Chapter 13 eases. Debtors respond by arguing that Dewsnup’s holding does not apply to Chapter 13 because section 1322(b) authorizes the modification of a secured party’s rights and thus is clearly an exception to the pre-Code rule that hens pass through bankruptcy. The Court finds that the statutory text, the case law, and the general policies behind Chapter 13 all support a conclusion that debtors may strip down FMCC’s lien to the value of the collateral as of the date of the filing of the petition. First, the Code clearly provides that, in Chapter 13 cases, the rights of secured parties may be modified unless the collateral is the debtor’s principal residence. 11 U.S.C. § 1322(b). In this case, the collateral is not the debtors’ principal residence. Moreover, the Code allows confirmation of a plan even \"without a secured party’s approval if “the value, as of the effective date of the plan, of property to be distributed under the plan on account of [the secured] claim is not less than the allowed amount of such claim.” 11 U.S.C. § 1325(a)(5)(B)(ii). The plan provides for full payment of the secured portion of FMCC’s claim. Thus, FMCC’s approval of the plan is not necessary. Second, the case law interpreting the relevant statutes supports the conclusion that hen-stripping is permissible under the facts of this case. Deivsnup clearly holds that, in a Chapter 7 case, a debtor may not use section 506(d) to void a lien securing a claim which has been allowed in full" }, { "docid": "18804801", "title": "", "text": "MEMORANDUM OPINION JAMES D. WALKER, Jr., Bankruptcy Judge. This matter is before the Court on Objection To Allowance Of Claim filed by Jimmy W. Clark (“Debtor”). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). Based on the evidence presented to the Court, Debtor’s objection will be overruled. The following findings of fact and conclusions of law are published in compliance with Fed.R.Bankr.P. 7052. FACTS Debtor filed this case under Chapter 13 of the Bankruptcy Code on June 6,1993. Prior to Debtor’s filing for bankruptcy protection, Ford Motor Credit Company (“FMCC”) repossessed a vehicle from Debtor and obtained a deficiency judgment. FMCC filed a claim in this case for Three Thousand Six Hundred and Three Dollars and Ninety Five Cents ($3,603.95) asserting secured status for the deficiency. The parties have stipulated to the finding that the FMCC claim would not have been allowed as secured if the ob- jeetion had been heard prior to the confirmation of the case; FMCC is listed in Debtor’s schedules as a creditor holding an unsecured claim for the deficiency. However, Debtor’s plan of reorganization designated FMCC as a secured creditor. The plan was confirmed without objection on November 30, 1993. On June 23, 1994, Debtor filed this objection to FMCC’s proof of claim. Debtor contends that FMCC’s claim for a deficiency judgment is not entitled to secured status, but rather that FMCC should be treated as an unsecured creditor. FMCC responded asserting res judicata as a defense to Debt- or’s objection. CONCLUSIONS OF LAW Debtor’s objection raises the issue of the effect of a confirmed plan on those claims dealt with under the plan. While hindsight demonstrates that the deficiency judgment asserted by FMCC should have been given unsecured status, no party objected to FMCC’s claim, and the claim was allowed as filed. 11 Ü.S.C. § 502(a). Debtor’s plan of reorganization treats FMCC’s claim as secured, and the plan was confirmed without objection. The effect of a confirmed plan under Chapter 13 of the Bankruptcy Code is set forth in section 1327(a) as follows: (a) The provisions of a confirmed plan" }, { "docid": "6280286", "title": "", "text": "and Nobel-man, lien-stripping is available in Chapter 13 cases when the claim is secured by something other than real property that is the debtor’s principal residence. C. The Bankruptcy Court’s Decision The bankruptcy court’s opinion in the case at bar is brief. In re Lee, 156 B.R. 628 (Bankr.D.Minn.1993). First, the bankruptcy court found that no adversary proceeding was necessary for the debtors to modify FMCC’s rights as part of the plan. Second, the bankruptcy court held that Dewsnup, which involved a Chapter 7 petition, did not prevent a strip down of FMCC’s lien because different rules apply in Chapter 13 cases. The court cited Nobelman and In re Pickett to support that conclusion. Finally, the bankruptcy court summarily rejected FMCC’s argument that once the secured portion of the claim was satisfied, title should not immediately vest in the debtors but rather should be held by the trustee pending completion of the plan. The court concluded that absent specific statutory authority for that conclusion, such policy considerations are best left to Congress. II. Issues Presented by FMCC on Appeal FMCC advances two issues on appeal. First, FMCC argues that even in Chapter 13 cases, an undersecured creditor cannot be compelled to release its lien upon payment of only the secured portion of the claim and before completion of the plan. In other words, FMCC argues that the Bankruptcy Code does not allow debtors to strip down FMCC’s hen without FMCC’s consent. Second and in the alternative, FMCC asserts that even if its lien is extinguished upon full payment of the secured portion of its claim, the collateral may not vest in debtors free and clear of FMCC’s lien at any time before completion of the plan payments. FMCC argues the collateral should vest with the estate, not debtors, pending completion of the plan. A. Strip Down of Liens in Chapter 13 FMCC appears to concede that the plain language of section 1322(b) indicates that debtors may strip down FMCC’s lien to the value of the collateral. Again, section 1322(b) provides that the plan may “modify the rights of holders of" }, { "docid": "10976798", "title": "", "text": "MEMORANDUM OPINION AND ORDER RE: APPLICATION OF 11 U.S.C. SECTION 109(g)(2) JO ANN C. STEVENSON, Bankruptcy Judge. As the proceeding before the court is core pursuant to 28 U.S.C. Section 157(b)(2)(A), I have jurisdiction to enter a final order or judgment on the question of the appropriate application of 11 U.S.C. Section 109(g)(2). On November 25, 1988, Karen L. Santana (“Santana”) filed a petition in bankruptcy under Chapter 13. On January 4, 1989, Ford Motor Credit Corporation (“FMCC”) filed a motion for relief from the automatic stay. Santana and FMCC then entered into a stipulation for adequate protection on March 3, 1989 and on March 10, 1989 the court granted FMCC adequate protection. On May 27, 1989, Santana voluntarily dismissed her Chapter 13 only to again seek relief under Chapter 13 on June 1, 1989. At some point in October, Santana and FMCC entered into an agreement whereby Santana voluntarily turned over the 1988 Ford Bronco securing FMCC’s claim and granted FMCC relief from the automatic stay so it could sell its collateral. Subsequently, on November 7, 1989 Stur-gis Enterprises (“Sturgis”), filed objections to confirmation of Santana's most recent Chapter 13 plan arguing that 11 U.S.C. Section 109(g)(2) requires that the court dismiss Santana’s case. Section 109(g)(2) states as follows: Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if— (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title. Sturgis maintains that because Santana’s dismissal was voluntary and her subsequent refiling of Chapter 13 was within 180 days of her previous Chapter 13, Section 109(g)(2) mandates dismissal of her current Chapter 13. Since the section is unambiguous, any attempt to discern legislative intent outside the plain words of the statute is inappropriate. Thus, Sturgis contends, the court has no discretion in applying the statute to the facts at" }, { "docid": "6280279", "title": "", "text": "section 1322(b) provides that the plan may— modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims. 11 U.S.C. § 1322(b). The parties agreed that the “other than” exception prevented modification of the “rights” of a homestead mortgagee, but the debtors asserted that the creditor’s “rights” were limited to the value of the collateral, or $23,500. The Court noted that the Bankruptcy Code does not define “rights.” The Court concluded the term “rights,” as used in section 1322(b), is to be defined by state law. The Court held that the creditor’s rights under state law included the right to retain the lien until the entire debt was paid off and, because debtors sought to modify those rights, the bankruptcy court properly denied confirmation of the plan. B. Lower Court Cases Bankruptcy courts in other jurisdictions have been faced with issues similar to the issue before the Court. There are three decisions that are particularly relevant because they interpreted and applied Dewsnup and/or Nobelman in Chapter 13 cases in which the collateral was not the debtor’s principal residence. The first case is In re Murry-Hudson, 147 B.R. 960 (Bankr.N.D.Cal.1992). In Murry-Hudson, the debtor purchased a new automobile. FMCC provided financing and took a security interest in the automobile. The certificate of ownership was issued to FMCC as the legal owner, and the debtor was issued a registration card. Debtor subsequently filed a Chapter 13 case. The debtor’s plan bifurcated FMCC’s claim pursuant to section 506(a), listing $4,370 as secured based on the book value of the automobile, and $4,504 as unsecured. The plan further provided that FMCC would receive one hundred percent of its secured claim, and seventy cents on the dollar on its unsecured claim. The plan also contained a provision which stated that “secured creditors shall retain their liens until their allowed secured claims have been paid.” Id. at 961. FMCC accepted the plan." }, { "docid": "13733956", "title": "", "text": "MEMORANDUM OF DECISION ALFRED C. HAGAN, Bankruptcy Judge. Motions pending are: the Debtors’ motion to modify their Chapter 13 Plan; the Trustee’s motion to modify the Chapter 13 plan; Ford Motor Credit Company’s (“FMCC”) motion to dismiss; the Trustee’s attorney’s application for payment of attorney’s fees; and the Debtors’ attorney’s application for payment of attorney’s fees. This case is an example of what can go wrong in a Chapter 13 case after the debtor’s plan has been confirmed. After the Debtors’ plan was confirmed on July 28, 1993, William and Patty Moore (the “Debtors”) were divorced, Mrs. Moore totally wrecked her Ford Explorer 4-Wheel Drive Vehicle (the “Ford Explorer”), and she contracted an incurable disease and is presently unable to work. BACKGROUND The current round of post confirmation difficulties was brought to the attention of the Chapter 13 Trustee when Mrs. Moore reported to him that her Ford Explorer had been wrecked. A three-way battle over the insurance proceeds, between the Debtors, the Trustee, and Ford Motor Credit Company resulted. FMCC held a secured interest in the wrecked Ford Explorer. FMCC contended it was entitled to all of the insurance proceeds in payment for its secured claim. The Trustee contended FMCC was entitled only to the balance of its secured claim as provided by the plan, and the Debtors were only entitled to their statutory automobile exemption of $1,500.00. The Trustee also argued that the remainder of the proceeds were disposable income and should be distributed to the general unsecured creditors. The Debtors contended FMCC was entitled to the balance of its secured claim as provided by the plan and the remainder of the proceeds belonged to them. The Debtors’ brought the issue to a head by filing a motion for turnover of funds. In resolving the Debtors’ motion for turnover of funds, it was held FMCC’s claim to the insurance proceeds was limited to the allowed amount of its secured claim in the vehicle according to the Debtors’ Chapter 13 plan. Ford Motor Credit Company was thus paid $11,917.58 of the insurance proceeds leaving a balance of $10,622.42. The" }, { "docid": "11204164", "title": "", "text": "MEMORANDUM OPINION JOAN H. LEFKOW, Bankruptcy Judge. Plaintiff-debtor, Debra E. Spears (“plaintiff’), has brought this adversary proceeding to recover a 1997 Ford Escort that she purchased under a retail installment sales contract financed by defendant, Ford Motor Credit Company (“FMCC”). In addition, she moves that FMCC be sanctioned for willfully violating the automatic, stay in her case under Chapter 13 of the Bankruptcy Code (“Code”), 11 U.S.C. §§ 1301 et seq. Because it repossessed the vehicle before plaintiff filed her Chapter 13 petition, FMCC takes the position that the vehicle is not subject to turnover as property of plaintiffs bankruptcy estate. Responding to plaintiffs request for sanctions, FMCC further contends that it did not violate the stay by refusing to voluntarily turn over the vehicle at the outset of this case. For the reasons set forth below, plaintiffs motion for turnover under § 542(a) is granted, but her request for sanctions under § 362(h) is denied. Procedural Background When plaintiff filed her Chapter 13 petition on January 26, 1998, she proposed to retain the vehicle, with payments on a secured claim of $15,000 to be paid FMCC over the course of a 36-month plan. Plaintiff alleges that on January 28, 1998, her counsel notified FMCC of the filing, and requested voluntary return of the vehicle. Complaint, ¶7 and Ex. A. FMCC did not return the vehicle, and it filed a motion to modify the automatic stay on February 17, 1998. That motion first came before the court on February 24,1998. This court denied FMCC’s motion to lift the stay on March 19, 1998, after an eviden-tiary hearing. At that time, the court made findings that although plaintiff lacked equity in the vehicle, it was reasonably necessary for an effective reorganization under § 362(d)(2)(B). Also, FMCC’s security interest was adequately protected, as the vehicle was fully insured and monthly payments under plaintiffs Chapter 13 plan were considerably greater than the rate at which the vehicle was depreciating each month. Much of the evidence at the hearing had addressed the question whether plaintiffs second Chapter 13 case had been filed in good" }, { "docid": "6280280", "title": "", "text": "similar to the issue before the Court. There are three decisions that are particularly relevant because they interpreted and applied Dewsnup and/or Nobelman in Chapter 13 cases in which the collateral was not the debtor’s principal residence. The first case is In re Murry-Hudson, 147 B.R. 960 (Bankr.N.D.Cal.1992). In Murry-Hudson, the debtor purchased a new automobile. FMCC provided financing and took a security interest in the automobile. The certificate of ownership was issued to FMCC as the legal owner, and the debtor was issued a registration card. Debtor subsequently filed a Chapter 13 case. The debtor’s plan bifurcated FMCC’s claim pursuant to section 506(a), listing $4,370 as secured based on the book value of the automobile, and $4,504 as unsecured. The plan further provided that FMCC would receive one hundred percent of its secured claim, and seventy cents on the dollar on its unsecured claim. The plan also contained a provision which stated that “secured creditors shall retain their liens until their allowed secured claims have been paid.” Id. at 961. FMCC accepted the plan. Once the debtor had paid off the secured portion of FMCC’s claim, the debtor sought to compel FMCC to convey title of the automobile to her even though, under the plan, payment of the unsecured claims would not be completed for more than a year. In its analysis, the bankruptcy court noted that because FMCC had not objected to the plan, “this dispute does not involve the raging controversy over bifurcation of claims under 506(a) and avoidance of liens under § 506(d) in Chapter 13 cases.” Id. at 962. The bankruptcy court then made two findings. First, the bankruptcy court found that the plan language clearly provided for lien stripping and thus FMCC should have objected to the plan at the time it was proposed. Second and significantly for the purposes of the case at bar, the bankruptcy court stated that it would have reached the same result even in the absence of the plan’s language quoted above because the claim had been bifurcated under section 506(a). The court stated that “[gjiving [section 1322(b) ]" }, { "docid": "6280300", "title": "", "text": "claim. The Court agrees with the bankruptcy court’s conclusion that such policy considerations are best left to Congress. 156 B.R. at 631 n. 7. Moreover, close scrutiny reveals that the pol icy considerations raised by FMCC are more illusory than real. First, FMCC argues that the collateral should remain property of the estate even after FMCC’s allowed secured claim is paid so that the junior lien-holders will not be able to improve their positions. However, there is no authority to justify FMCC’s fear that once the secured portion of FMCC’s claim is paid, Suburban Credit will be able to claim that its previously unsecured claim has become secured. The plan lists Suburban Credit’s claim as unsecured. The plan also provides that upon payment of FMCC’s allowed secured claim, the property vests in debtors free and clear of liens. Under these circumstances, any such argument by Suburban Credit would cleárly fail. Second, the Court is unpersuaded by FMCC’s argument that vesting of the collateral in debtors upon payment of the secured portion of the claim will provide an incentive for debtors to convert the petition to one under Chapter 7. FMCC is likely to receive at least as much in this Chapter 13 action as it would have had debtors originally filed under Chapter 7. Moreover, there are many protections in the Code preventing such abuses by debtors. See In re Murry-Hudson, 147 B.R. 960, 962-64 (Bankr.N.D.Cal.1992) (describing at length why creditor’s concerns that debtors might dismiss or convert their Chapter 13 plans shortly after paying off allowed secured claims were unfounded). For all of these reasons, the Court concludes that FMCC’s objections to the plan based on the vesting of the collateral in debtors prior to completion of the plan were properly overruled by the bankruptcy court. Accordingly, based on the foregoing, and upon all the files, records and proceedings herein, IT IS ORDERED that the bankruptcy court’s order confirming debtors’ Chapter 13 plan is affirmed. LET JUDGMENT BE ENTERED ACCORDINGLY. . The Honorable Dennis D. O’Brien, United States Bankruptcy Judge for the District of Minnesota. . In general, a" }, { "docid": "6280283", "title": "", "text": "debtors had paid off FMCC’s secured claim but before they had paid off the unsecured claims, the debtors converted the case to one under Chapter 7. FMCC moved the bankruptcy court for relief from the automatic stay to repossess the pickup. FMCC sought to enforce its lien to collect payment on the remaining portion of the debt that had been designated as unsecured under the debtors’ Chapter 13 plan. The primary issue before the bankruptcy court was whether FMCC’s lien survived or whether it had been extinguished upon payment of the secured portion of the claim. The bankruptcy court held that because the claim had been bifurcated, and because the secured portion of the claim had been paid off, the lien had been extinguished and the conversion of the case to one under Chapter 7 did not revive the lien. The bankruptcy court then attempted to reconcile its decision with Dewsnup. After quoting the Dewsnup Court’s admonition that its holding was limited to the facts of the case, the bankruptcy court wrote that: Interpreted broadly, Dewsnup is appealing to creditors like Ford. This Court, however, must follow the guidance of the Supreme Court and must confine the Dewsnup decision to its particular facts. This ease does not involve Chapter 7 debtors using § 506(d) to “strip down” the real property lien of a secured claimholder. Rather, this case involves Chapter 7 debtors who have satisfied an allowed secured claim on personal property under a pre-conversion Chapter 13 plan. The question is not whether the Debtors can strip down Ford’s lien, but whether the Debtors already have satisfied Ford’s secured claim under Chapter 13, thereby extinguishing the lien. Therefore, Dewsnup does not support Ford’s position. Id. at 474. In other words, like the Murry-Hudson court, the Pickett court held that once a debtor pays off the secured portion of a bifurcated claim pursuant to the terms of a Chapter 13 plan, the hen is extinguished.as a matter of law. The third relevant case is Hirsch v. Citicorp Mortgage Corp. (In re Hirsch), 155 B.R. 688 (Bankr.E.D.Pa.1993). In Hirsch, the creditor had" }, { "docid": "6280282", "title": "", "text": "its plain meaning, it must be concluded that a Chapter 13 debt- or is permitted not merely to alter the amount and terms of páyment of her secured debts, but to hold the property free and clear of liens after paying the allowed secured claims in accordance with the provisions of her confirmed plan.” Id. In other words, the court held that, in Chapter 13 eases, once the secured portion of a bifurcated claim is paid, lien-stripping occurs as a matter of law. The second relevant case is Ford Motor Credit Co. v. Pickett (In re Pickett), 151 B.R. 471 (Bankr.M.D.Tenn.1992). In Pickett, the debtors filed under Chapter 13. FMCC filed a proof of claim for a secured claim of $12,-638 based upon its lien on the debtor’s pickup truck. Under the debtors’ plan, FMCC’s claim was bifurcated and FMCC was allowed a secured claim of $7,500, with the remaining debt listed as an unsecured claim. The plan also provided for one hundred percent payment of the unsecured claims. FMCC accepted the plan. After the debtors had paid off FMCC’s secured claim but before they had paid off the unsecured claims, the debtors converted the case to one under Chapter 7. FMCC moved the bankruptcy court for relief from the automatic stay to repossess the pickup. FMCC sought to enforce its lien to collect payment on the remaining portion of the debt that had been designated as unsecured under the debtors’ Chapter 13 plan. The primary issue before the bankruptcy court was whether FMCC’s lien survived or whether it had been extinguished upon payment of the secured portion of the claim. The bankruptcy court held that because the claim had been bifurcated, and because the secured portion of the claim had been paid off, the lien had been extinguished and the conversion of the case to one under Chapter 7 did not revive the lien. The bankruptcy court then attempted to reconcile its decision with Dewsnup. After quoting the Dewsnup Court’s admonition that its holding was limited to the facts of the case, the bankruptcy court wrote that: Interpreted broadly," }, { "docid": "18804802", "title": "", "text": "for the deficiency. However, Debtor’s plan of reorganization designated FMCC as a secured creditor. The plan was confirmed without objection on November 30, 1993. On June 23, 1994, Debtor filed this objection to FMCC’s proof of claim. Debtor contends that FMCC’s claim for a deficiency judgment is not entitled to secured status, but rather that FMCC should be treated as an unsecured creditor. FMCC responded asserting res judicata as a defense to Debt- or’s objection. CONCLUSIONS OF LAW Debtor’s objection raises the issue of the effect of a confirmed plan on those claims dealt with under the plan. While hindsight demonstrates that the deficiency judgment asserted by FMCC should have been given unsecured status, no party objected to FMCC’s claim, and the claim was allowed as filed. 11 Ü.S.C. § 502(a). Debtor’s plan of reorganization treats FMCC’s claim as secured, and the plan was confirmed without objection. The effect of a confirmed plan under Chapter 13 of the Bankruptcy Code is set forth in section 1327(a) as follows: (a) The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan. 11 U.S.C. § 1327(a) (Law.Co-op.1994). The effect of section 1327(a) is such that: Au order confirming a Chapter 13 plan is res judicata as to all justiciable issues which were or could have been decided at the confirmation hearing.... Section 1327 precludes a creditor from asserting, after confirmation, any other interest than that provided for it in the confirmed plan. In re Moseley, 74 B.R. 791 (Bankr.C.D.Cal.1987), citing Anaheim Savings & Loan Assoc. v. Evans (In re Evans), 30 B.R. 530, 531 (9th Cir. BAP 1983). Under section 1327(a), the order of confirmation fixes the rights of all parties and binds them to the terms of the plan. Just as creditors are bound by the treatment afforded their claims, the debtor is likewise bound by the same terms. Upon confirmation, res judicata bars the assertion of any cause of" }, { "docid": "23217833", "title": "", "text": "protection of § 1322(bX2) is not available to mortgagees who are junior in priority on overburdened real estate, but it must also deal with the appropriate extent of that protection where only a portion of the mortgagee’s claim is so secured. It is in this context that this Court evaluates the status of FMCC in this case. FMCC has been found to be only partially secured in the residential real estate of this debtor. Further, FMCC is to be paid its entire principal, as well as simple interest at 8% per annum, in a period of time approaching two years less than the original term of the obligation contracted by this debtor. In this Court’s opinion, it would violate the spirit of the Chapter 13 law, as well as the legislative intent of Congress, to allow FMCC to veto confirmation of a Chapter 13 plan where, in the final analysis, it is receiving no less than the full benefit of its bargain as that benefit existed at the time of the filing of this Chapter 13 petition. It is well to remember that the assertion of the rights of a creditor in a bankruptcy case rests, under the Code, on the status of that creditor as the holder of a claim, either secured, unsecured, or both. To the extent that the creditor holds a secured claim, as FMCC does in this case, it is entitled (absent its consent otherwise) to have that claim fully paid. The present plan proposed by this debtor, consistent with § 1325(a)(5)(B)(ii) of the Code, so provides. It is a further finding of this Court that had a Chapter 7 case been initiated by this debtor, FMCC would have received less than the full principal amount currently owing on its loan. The debtor, by his plan, proposes to pay that full principal amount of FMCC’s loan, with an appropriate discount factor added for the deferred payment schedule. Thus, in this Court’s opinion, FMCC cannot assert that its rights are being modified as that term is used in § 1322(b)(2) of the Bankruptcy Code and as it" }, { "docid": "6280271", "title": "", "text": "MEMORANDUM AND ORDER MacLAUGHLIN, District Judge. This matter is before the Court on Ford Motor Credit Company’s appeal from the bankruptcy court’s July 14, 1993, order confirming debtors’ Chapter 13 plan. The bankruptcy court’s order will be affirmed. BACKGROUND On October 14,1989, debtors David E. Lee and Kathleen M. Lee purchased a 1988 Chevrolet Celebrity automobile and entered into a five-year installment sales contract with Viking Chevrolet. Viking Chevrolet then assigned its rights under the contract to Ford Motor Credit Company (FMCC). Over three years later, on December 4,1992, debtors borrowed $765.82 from Suburban Credit Plan, Inc. of St. Paul, Minnesota, and granted Suburban Credit a second lien on the automobile. On February 25,1993, debtors filed a petition for relief under Chapter 13 of the Bankruptcy Code. With their petition for relief, debtors filed a proposed Chapter 13 plan. In response to debtors’ petition, FMCC filed a proof of claim for $5,635.69. FMCC claimed $3,725.00 as secured based on the book value of the automobile, $649.87 as postpetition interest, and the remaining $1,260.82 as unsecured. Suburban Credit also filed a proof of claim for $980.00, claiming the entire amount as secured. The plan that debtors submitted at the time they filed the petition was on the approved local form. However, debtors typed in the following additional provision: Upon completion of payment of the secured portion of any claim, the property securing said claim shall vest in the debtor free and clear of any hen, claim or interest of the secured creditor. Appellant’s Brief Exh. B. FMCC objected to confirmation of the plan because of this added provision. The bankruptcy court heard oral arguments on May 13, 1993, after which the court requested supplemental briefs. General Motors Acceptance Corporation submitted an amicus brief in support of FMCC. On July 14, 1993, the bankruptcy court issued an order which overruled FMCC’s objections and confirmed the debtors’ plan. In re Lee, 156 B.R. 628 (Bankr.D.Minn.1993). FMCC now appeals that order. The order will be affirmed. DISCUSSION The facts in this case are undisputed; the only question is whether the bankruptcy court correctly interpreted" }, { "docid": "23217834", "title": "", "text": "13 petition. It is well to remember that the assertion of the rights of a creditor in a bankruptcy case rests, under the Code, on the status of that creditor as the holder of a claim, either secured, unsecured, or both. To the extent that the creditor holds a secured claim, as FMCC does in this case, it is entitled (absent its consent otherwise) to have that claim fully paid. The present plan proposed by this debtor, consistent with § 1325(a)(5)(B)(ii) of the Code, so provides. It is a further finding of this Court that had a Chapter 7 case been initiated by this debtor, FMCC would have received less than the full principal amount currently owing on its loan. The debtor, by his plan, proposes to pay that full principal amount of FMCC’s loan, with an appropriate discount factor added for the deferred payment schedule. Thus, in this Court’s opinion, FMCC cannot assert that its rights are being modified as that term is used in § 1322(b)(2) of the Bankruptcy Code and as it is interpreted by this Court in the context of the presently proposed Chapter 13 plan. The term “modify” must be read in conjunction with the entire Chapter 13 statutory scheme, including the confirmation standards of § 1325. There is no modification where the secured creditor receives the full value of its secured claim as it existed at the date the petition was filed. A narrow and restrictive interpretation of the scope of the provisions of § 1322(b)(2) and limitations on its use even in situations where it would seem to clearly apply is not novel. Thus, in In re Baksa, 5 B.R. 184, 6 B.C.D. 559 (N.D.Ohio 1980), Bankruptcy Judge White held ineffective a pre-petition waiver of security where the result of such waiver would call into play the provisions of § 1322(b)(2) and frustrate the ability of the debtor to propose a workable Chapter 13 plan. The remedial purpose of the Chapter 13 remedy, and the clear benefit to unsecured creditors in confirming the debtor’s proposed plan, motivated Judge White to bar the use" } ]

[ { "docid": "13048267", "title": "", "text": "within our rulings in the cases of Jewell v. Knight, 123 U. S. 426; Fire Insurance Association v. Wickham, 128 U. S. 426; Maynard v. Hecht, 151 U. S. 324; Graver v. Faurot, 162 U. S. 435 ; Cross v. Evans, 167 U. S. 60, and United States v. Union Pacific Railroad, ante, 505. In the case last cited, in speaking of the rules which govern the certification provided for in sections 5 and 6 of the Judiciary Act of March 3,1891, c. 517, 26 Stat. 826, the Chief Justice repeated those rules as derived from prior decisions, and said that “ each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case; to be a question of law only and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the case, arid could not embrace the whole case, even where its decision turned upon matter of law only, and even though it was split up in the form of questions’.” Guided by these rules, we find that the first question does not comply with their requirements. No single question of law is plainly raised therein. The record only shows that the case was commenced in a state court, and was removed upon the petition of one of the individual defendants into the Circuit Court of the United States for the District of North Dakota. Neither party (so far as appears from the record) raised any question' of jurisdiction in the Circuit Court to hear and determine the whole case. \"Whether there is some defect supposed to exist in the petition for removal, or whether the controversy was or was not a separable one, or whether the citizenship of the different parties was not sufficiently alleged or did not sufficiently appear; whether the petition was filed in the proper time, or the bond was sufficient" } ]

[ { "docid": "22768017", "title": "", "text": "S. 432, and cases cited; Benson Mining Co. v. Alta Mining Co., 145 U. S.. 428, 434; Pine River Logging Co. v. United States, 186 U. S. 279, 293; United States v. St. Anthony R. Co., 192 U. S. 524, 542; Martin v. Porter (1839), 5 M. & W. 351, 352; Jegon v. Vivian (1871), L. R. 6 Ch. 742, 760; 40 L. J. Ch. 389; 19 W. R. 365; Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25, 34; 42 L. T., N. S., 334; Coal Creek M. & M. Co. v. Moses, 15 Lea (Tenn.), 300; 54 Am. Rep. 415; Winchester v. Craig, 33 Michigan, 205. See also English and American Notes to Martin v. Porter, and Jegon v. Vivian, 17 Eng. Rul. Cas. 873, 876, etc. We are not at this time concerned with this vexed question, beyond saying that the rules applicable to trespassers can have only a modified application to the case of a'mine-owner conducting mining operations upon its own lands, where the question is, — What is the income derived from the business? — and the incidental question, — What is the reasonable depreciation, if any, of the mining property? What has been said necessitates a negative answer to the third question as certified. -And we shall not go further into the question of depreciation. The case comes here under § 239, Judicial Code (derived from § 6 of the Evarts Act, March 3, 1891, 26 Stat. 826, 828, c. 517). It is established that in the exercise of this jurisdiction this court, unless it see occasion to require the whole record to be sent up for consideration, is to make answer respecting the several propositions of law that are certified, and is not to go into questions of fact, or of mixed law and fact. Our- Rule 37 requires that the certificate shall contain a proper statement, of the facts upon which the questions of law arise,- and we deal with the facts as thus certified, and not otherwise. Graver v. Faurot, 162 U. S. 435, 437; Cross v. Evans, 167 U." }, { "docid": "23174124", "title": "", "text": "United States v. Hall, 131. U. S. 50; United States v. Perrin, 131 U. S. 55. And prior to the act of February 25, 1889, this court had jurisdiction of a case brought up on certificate of' division of opinion on the question whether the Circuit Court had jurisdiction of it. Baltimore & Ohio Railroad Co. v. Marshall County Supervisors, 131 U. S. App. xcix. By section six of the act of March 3, 1891, c. 517, 26 Stat. 826, S28, it is provided “that in every such subject within its appellate jurisdiction, the Circuit Court of Appeals may at any time certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.” In Columbus Watch Co. v. Robbins, 148 U. S. 266, it was held that in order to give this court jurisdiction over questions or propositions of law sent up by a Circuit Court of Appeals for decision, it was necessary that the questions or propositions should be clearly and distinctly certified to, and should show that the instruction of this court was desired in a particular case as to their proper decision. And reference was there made to the rules laid down in reference to certificates on division of opinion above adverted to. So in Cincinnati, Hamilton &c. Railroad Co. v. McKeen, 149 U. S. 259, it was held that the act of March 3, 1891, does not contemplate the certification of questions of law to be answered in view of the entire record in the cause, although this court may, if it sees fit, order the entire record to be sent up, and thereupon decide the case as if it had been brought up by writ of error' or appeal. We think the intention of Congress as to the certification mentioned in both sections is to be arrived at in the light of the rules theretofore prevailing as to certifying from the court below, and since, in the instance of an appeal upon the question of jurisdiction under the" }, { "docid": "12790468", "title": "", "text": "after judgment, the whole subject be reexamined on writ of error from one or the other court. -This result, in itself, we think could not have been intended, and it is wholly inconsistent with the object of the act of March 3, 1891, which was to relieve this court and to distribute between it and the Circuit Courts of Appeals, substantially, the entire appellate jurisdiction over the Circuit Courts of the United States. McLish v. Roff, 141 U. S. 661; Lau Ow Bew's case, 144 U. S. 47; Construction Co. v. Railway Co., 148 U. S. 372. \"We are of opinion that the scheme of the act of March 3, 1891, precludes the contention that certificates of division of opinion may still be had under sections 651 and 697 of the Revised Statutes. Review by appeal, by writ of error or otherwise, must be as prescribed by the act, and review by certificate is limited by the act to the certificate by the Circuit Courts, made after final judgment, of questions raised as to their own jurisdiction and to the certificate by the Circuit Courts of Appeals of questions of law in relation to which, our advice is sought as therein provided, and these certificates are governed by the same general rules as were formerly applied to certificates of division. Maynard v. Hecht, 151 U. S. 324; Columhus Watch Co. v. Robbins, 148 U. S. 266. It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate. Its provisions and those of the Revised Statutes in this regard cannot stand together, and the argument db ineonvenienii that, in cases of doubt below, the remedy by certificate ought to be available, is entitled to no weight in the matter of construction. The result is that the certificate must be dismissed, and it is so ordered. Ms." }, { "docid": "22455573", "title": "", "text": "much of merit in the objection to the form of this certificate, including the form of the questions, for the reason that the certificate, instead of containing a “proper statement of the facts on which the questipns and propositions of law arise,” as is required by Rule 37 of this court, contains a statement of what is “alleged and denied” by the parties plaintiff and defendant in their pleadings, with the 'additional statement that there was evidence “tending to establish the facts as claimed by each party,” but without any finding whatever as. to what the evidence showed the facts to be, and the first question, on which the other two depend, is in terms based entirely on an “assumed” statement of facts. If this certificate had not been supplemented by the recognition by the United States Government of the Government of Carranza, first as the de facto, and later as the de jure Government of Mexico, of which facts, this court will take judicial notice, (Jones v. United States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S. 250) it would be our duty to declare the certificate insufficient and to return it to the Circuit Court of Appeals without answering the questions. Cincinnati, Hamilton & Dayton R. R. Co. v. McKeen, 149 U. S. 259; Graver v. Faurot, 162 U. S. 435; Cross v. Evans, 167 U. S. 60; Stratton’s Independence v. Howbert, 231 U. S. 399, 422. But this recognition of the government under which General Pereyra was acting, as the legitimate Government of Mexico, makes the answers to the questions so certain and its effect upon the case is so clear, that, for the purpose of making an end of the litigation, we will proceed to answer the questions. The first question is: “I. Assuming that the bullion in suit was seized, condemned, and sold for war supplies by the Constitutionalist forces in revolution in Mexico, acting under authority from .General Carranza, claiming to be the Provisional President of the Republic of Mexico, had the District Court of the Western District of Texas, into which" }, { "docid": "12790469", "title": "", "text": "own jurisdiction and to the certificate by the Circuit Courts of Appeals of questions of law in relation to which, our advice is sought as therein provided, and these certificates are governed by the same general rules as were formerly applied to certificates of division. Maynard v. Hecht, 151 U. S. 324; Columhus Watch Co. v. Robbins, 148 U. S. 266. It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error or certificate. Its provisions and those of the Revised Statutes in this regard cannot stand together, and the argument db ineonvenienii that, in cases of doubt below, the remedy by certificate ought to be available, is entitled to no weight in the matter of construction. The result is that the certificate must be dismissed, and it is so ordered. Ms. Justice Brewer did not hear the argument and took no part in the decision of this case. Sec. 650. Whenever, in any civil suit or proceeding in a Circuit Court held by a Circuit Justice and a Circuit Judge or a District Judge, or by a Circuit Judge and a District Judge, there occurs any difference of opinion between the judges as to any matter or thing to be decided, ruled or ordered by the court, the opinion of the presiding justice or judge shall prevail, and be considered the opinion of the court for the time being. Sec. 651. Whenever any question occurs on the trial or hearing of any criminal proceeding before a Circuit Court upon which the judges are divided in opinion, the point upon which they disagree, shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified, under the seal.of the court, to the Supreme Court at their next session; but nothing herein contained shall prevent" }, { "docid": "16591594", "title": "", "text": "questions herein certified shall be. answered in the negative, has this court authority to reverse the judgment of the Circuit Court and remand the cause with instructions to remand the whole cause back to the stater court from which it was originally removed ? ” In Graver v. Faurot, 162 U. S. 435, it was held that a Circuit Court of Appeals has no power under the judiciary act of 1891 to certify the whole case to this court, but can only certify distinct- questions or propositions of law, unmixed with questions of fact or of .mixed law and fact. The questions certified in the case at bar are clearly violative of this rule, as, in effect, the entire record is sent up, and, by the general questions propounded, the labor is imposed upon this court of determining the whole case and all questions of law which may be lurking in the record. Thus, in the briefs filed in this court and in the court belpw, counsel discuss the effect of sections 2 and 6 of an act of the legislature of Texas approved -March 19,1889, which it is claimed affected pending receiverships, whether created by a court of the State of Texas or by a Federal court, and absolutely fixed the liability both of the Kansas company and the Texas company to pay any valid claims which might be asserted against the receivers, and also authorized the joinder of the Texas company as a co-defendant with the receivers in any pending suit. Whether such was the effect of the Statute would seem to be-a question or proposition of law entering into a consideration of the general questions propounded. The certificate, however, contains no allusion to the point. So, also, in briefs filed here and below, the question is presented of the effect of a general statute of Texas enacted in 1891, which authorized the formation of corporations for the purchase of railroads, under which statute the Texas company was organized. It is argued in the briefs that upon a proper construction of that law it imposed upon the Texas" }, { "docid": "16785903", "title": "", "text": "Mr. Chief Justice Fuller delivered the opinion of the court. ,This is a certificate under section six of the Judiciary Act of March 3,1891, 26 Stat. 826, q. 517, and it is settled as to such certification that each question propounded must be a definite point'or proposition of law clearly stated, so that it can be definitely answered without regard to other issues of law in the case; that each question must be a question of law only and not of fact, or of mixed law and.fact; and that the certificate cannot embrace the whole case, even where its decision turns on matter of law only and even though it be split up in the form of questions. Graver v. Faurot, 162 U. S. 435 ; McKeen v. Railroad Oompamy, 149 U. S. 249. Buie 37 provides: “ Where, under section six of the said act, a Circuit Court of Appeals shall certify to. this court a question or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises.”, In this case there is no such statement, but the entire record is certified, and the questions contemplate an examination of the whole case and in large part its decision on the merits. We cannot regard this certificate as in compliance with the rule, and are constrained to decline to answer the second and third questions, but we think we may properly answer the first question in yiew of the narrow limits by which it was apparently intended to-be. circumscribed. The judicial power extends to controversies between citizens of different States ; and between citizens of a State and citizens or subjects of foreign States; but the Judiciary Act of September. 24, 1789, provided that the District and Circuit Courts of the United'States should not “have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless the suit might have been prosecuted in" }, { "docid": "12994731", "title": "", "text": "Mb. Chief -Justice Fullee, after stating the case, delivered the opinion of the court. It is settled that the certification provided for in sections five and six of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, is governed by the rules laid down in respect of certificates of division under the Revised Statutes. Columbus Watch Company v. Robbins, 148 U. S. 266; Maynard v. Hecht, 151 U. S. 324; Graver v. Faurot, 162 U. S. 435; Cross v. Evans, 167 U. S. 60. By those rules,- as repeated in these cases from prior decisions, “ each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case ; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it was split up in the form of questions.” Fire Insurance Association v. Wickham, 128 U. S. 426 ; Dublin Township v. Milford Savings Institution, 128 U. S. 510. The questions propounded in this certificate do not present distinct points or propositions of law, clearly stated, so that each could be distinctly answered without regard to the other issues of law involved, and they obviously bring the whole case up for consideration and disposition. Elaborate argument on behalf of the Government. was made at the bar, dealing with the Delaware treaties of 1831, 1854, 1860, 1861 and 1866, and the construction of various provisions thereof; with the construction of the Pacific Railroad act of July 1, 1862, c. 120, 12 Stat. 489; and'also with the legislation in relation to the incorporation of the Leavenworth, Pawnee and \"Western Railroad Company; its change of name ; and consolidation with other railroad .companies, under the name of the" }, { "docid": "16591593", "title": "", "text": "had the Circuit Court of the United States for the Eastern District of Texas jurisdiction and authority to try and determine the issues arising on the record between the plaintiff Evans and the defendant the Missouri, Kansas and Texas Railway Company of Texas, and give judgment accordingly ? “III. If the first and second questions or either of them are answered in the negative, has this court, under the writ of error jointly sued out by the receivers Cross and Eddy, and the Missouri, Kansas and Texas Railway Company of Texas, jurisdiction and authority to reverse in toto the judgment of the Circuit Court and direct a dismissal of the case as against the Missouri, Kansas and Texas Railway Company of Texas and award a new trial as against Eddy and Cross, receivers ? “IY. In case this court is without authority to reverse the judgment of the Circuit Court in favor of Cross and Eddy, receivers, the same not having been complained of by the defendant in error, and in case the first two questions herein certified shall be. answered in the negative, has this court authority to reverse the judgment of the Circuit Court and remand the cause with instructions to remand the whole cause back to the stater court from which it was originally removed ? ” In Graver v. Faurot, 162 U. S. 435, it was held that a Circuit Court of Appeals has no power under the judiciary act of 1891 to certify the whole case to this court, but can only certify distinct- questions or propositions of law, unmixed with questions of fact or of .mixed law and fact. The questions certified in the case at bar are clearly violative of this rule, as, in effect, the entire record is sent up, and, by the general questions propounded, the labor is imposed upon this court of determining the whole case and all questions of law which may be lurking in the record. Thus, in the briefs filed in this court and in the court belpw, counsel discuss the effect of sections 2 and 6" }, { "docid": "23174122", "title": "", "text": "former act, and section five restricts the power of this court, in all suits in which its appellate jurisdiction is invoked by reason of the existence of a question involving the jurisdiction of the Circuit Court over the case, to the review of that question only. The act did not contemplate several appeals in the same suit at the same time, but gave to a party to a suit in the Circuit Court where the question of the jurisdiction of the court over the parties or subject-matter was raised and put in issue upon the record at the proper time and in the proper way, the -right to a review by this court, after filial judgment or decree against him, of the'decision upon that question only^ or by the Circuit Courts of Appeals on the whole case. McLish v. Roff, 141 U. S. 661, 668. And the. section under consideration declares in express terms that when the case is brought directly to this court the question of jurisdiction so in issue shall be certified for decision. The rules in relation to certificates of division of opinion in civil causes under sections 650, 652, 693 of the Revised Statutes Avere well settled. Each question had .to be a distinct point or proposition of law, clearly stated, so that it could be'definitely answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Fire Insurance Association v. Wickham, 128 U. S. 426; Dublin Township v. Milford Savings Institution, 128 U. S. 510. The same rules were applicable to the certificate of points on division of opinion on the hearing or trial of criminal proceedings under sections 651 and 697." }, { "docid": "13010777", "title": "", "text": "been accomplished the Court of Appeals apparently -found itself in a similar quandary, and this resulted in the certificate under consideration. Doubtless the determination of contested questions in cases properly brought before us involves the resolution of doubts, if any are entertained, in respect of the scope of particular decisions, but we cannot approve of the mode ¿dopted in this case of ascertaining the precise bearing of former judgments. In civil cases the intention of Congress as to the certification provided for in sections five and six of the act of March 3, 189.1, 26 Stat. 826, c. 517, is to be arrived at in the light of the rules prevailing prior to that date in relation to certificates of division of opinion under sections 650, 652 and 693 of the Revised Statutes. Maynard v. Hecht, 151 U. S. 324. It was well settled as to them that each question had to be a distinct point or proposition of law, clearly stated, so that it could be definitely answered without regard to other issues of law in the case; that each question must be a question of law only and not of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the 'cause; • and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Jewell v. Knight, 123 U. S. 426, 432; Fire Ins. Association v. Wickham, 128 U. S. 426. By the sixth section of the Judiciary Act, the Circuit Court of Appeals is not permitted to certify the whole case to us, though we may require that to be done when questions are certified, or may bring up by certiorari any case in which the decision of that court would otherwise be final. But here the entire record is transmitted as part of the certificate, and the answer to the question propounded contemplates an examination of the whole case." }, { "docid": "22623269", "title": "", "text": "262; Rev. Stat., § 716; Act of March 3, 1891, c. 517, § 12, 26 Stat. 826, 829; Whitney v. Dick, supra; McClellan v. Carland, 217 U. S. 268, 279, 280. Section 128 defines the class of cases in which the Circuit Court of Appeals may exercise appellate jurisdiction, and, where a case falls within this class, a proceeding to procure the issue of a writ in aid of the exercise of that jurisdiction must be regarded as incidental thereto and hence as being embraced within the purview of § 239 authorizing the court to certify questions of law. It is also objected that the certificate sends up the entire case. It is a familiar rule that this court can not be required through a certificate under § 239 to pass upon questions of fact, or mixed questions of law and fact; or to accept a transfer of the whole case; or to answer questions of objectionable generality — which instead of presenting distinct propositions of law cover unstated matters ‘lurking in the record’ — or questions that are hypothetical and speculative. United States v. Bailey, 9 Pet. 267, 273; Webster v. Cooper, 10 How. 54, 55; Jewell v. Knight, 123 U. S. 426, 432-435; United States v. Hall, 131 U. S. 50, 52; Cross v. Evans, 167 U. S. 60, 63; United States v. Union Pacific Rwy. Co., 168 U. S. 505, 512; Chicago, B. & Q. Rwy. Co. v. Williams, 205 U. S. 444, 452, 453; 214 U. S. 492; Hallowell v. United States, 209 U. S. 101, 107; The Folmina, 212 U. S. 354, 363; B. & O. R. R. Co. v. Interstate Com. Com., 215 U. S. 216, 221, 223. But, on the other hand, there is no objection to the submission of a definite and clean-cut question of law merely because the answer may be decisive of the controversy. The question propounded, must always be such that the answer will aid the court in the determination of the case, and the importance, or the controliing character, of the question if suitably specific furnishes no ground" }, { "docid": "23470522", "title": "", "text": "Mr.' Chief Justice Fuller, after making the foregoing statement of facts, delivered the opinion of the court. It appears from the opinions of the Circuit Court, to which we properly may refer, Loeb v. Trustees, 179 U. S. 472, that the court held that the state court had no jurisdiction so far as William C. Atwater was concerned unless it had jurisdiction as against the foreign executor of his deceased partner; that the suit must be treated as if against the foreign executor alone; and that it could not be maintained against the foreign executor in the state court, nor in the Federal court. And further that the court was not bound to remand the case that the state court might determine that question. The appeal was taken directly to this court, and cannot be maintained unless the case comes within the first of the classes named in section five of the judiciary act of March 3, 1891, which gives an appeal or writ of error direct “in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.” It is settled that the question of jurisdiction thus to be certified is the jurisdiction of the Circuit Court as a court of the United States, and not in respect of its general authority as a judicial tribunal. Blythe v. Hinckley, 173 U. S. 501; Mexican Central Railway Company v. Eckman, 187 U. S. 429; Louisville Trust Company v. Knott, 191 U. S. 225; Bache v. Hunt, 193 U. S. 523. And the general rule is that the certificate is an absolute prerequisite to the exercise of jurisdiction here. Maynard v. Hecht, 151 U. S. 324. Although we have recognized exceptions to this rule when the explicit terms of the decree, or even of the order allowing the appeal, might properly be considered as equivalent to the formal certificate. Huntington v. Laidley, 176 U. S. 668; Arkansas v. Schlierholz, 179 U. S. 598. But, as said by Mr. Justice" }, { "docid": "8664667", "title": "", "text": "Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. The question is presented at the threshold of the case as to whether or not the proceedings in Ibe Circuit Court of Appeals for the Sixth Circuit and the judgment therein rendered were absolutely void for want of jurisdiction. If' they were .not, this writ of error cannot be maintained, as judgments of the Circuit Courts \"of Appeals cannot be reviewed in this way. Plaintiffs in error grounded their application as coming within the first of the classes of cases enumerated in § 5 of the Judiciary Act of 1891, c. 517, 26 Stat. 826, 827, in which appeals or writs of error may be taken directly to this court, and which reads: “in any case in which the jurisdiction of the court is in'issue;‘in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.” The word “jurisdiction,” as used in that paragraph, is, as Judge Taft said, in United States v. Swan, 65 Fed. Rep. 647, 649, applicable to “initial questions of the jurisdiction of a United'States District or Circuit Court, whether in law or equity, over the subject matter and parties, and not to questions whether a court of equity or of law is the proper forum for the working out of rights properly within the particular Federal jurisdiction for adjudication;” and it has long been settled that it is the jurisdiction, of the United States courts as such which is referred to. Louisville Trust Co. v. Knott, 191 U. S. 225; Blythe v. Hinckley, 173 U. S. 501; Mexican Central Railroad Company v. Eckman, 187 U. S. 429, 432. Ordinarily a formal certificate is essential, and it must be made at the same term as-that at which the judgment is rendered. Maynard v. Hecht, 151 U. S. 324; Colvin v. Jacksonville, 158 U. S. 456. But Where, the record shows that the only matter tried and .decided in the Circuit Court was' one of jurisdiction, and the petition upon which the writ" }, { "docid": "22404124", "title": "", "text": "cited, had been reported, and without reference to the practice of courts of chancery elsewhere. And it was said in the opinion: “ It would doubtless have been well if, in the creation of this court, the seventh section of the act had permitted jor authorized an appeal from interlocutory decrees sustaining the validity of patents and adjudging their infringement, so as to obviate in many cases the taking of expensive accounts, and the delays incident thereto.” Columbus Watch Co. v. Robbins (October, 1892), 6 U. S. App. 275, 281. A certificate thereupon made by the Circuit Court of Appeals, for the purpose of obtaining the instructions of this court, was dismissed by this, court, with Mr. Justice Jackson’s concurrence, because no question of law was distinctly certified, and because the Circuit Court of Appeals had decided the case before granting the certificate. 148 U. S. 266. That decision was long treated as settling the practice in that circuit on appeals from such interlocutory decrees, and as permitting the questions of'validity and infringement to be considered only so far as they affected the granting or refusal of an injunction. Blount v. Société Anonyme (November, 1892), 6 U. S. App. 335; Columbus Watch Co. v. Robbins (October, 1894), 22 U. S. App. 601, 634; Duplex Press Co. v. Campbell Press Co. (July, 1895), 37 U. S. App. 250; Thompson v. Nelson (November, 1895), 37 U. S. App. 478; Goshen Co. v. Bissell Co. (December, 1895, and February, 1896), 37 U. S. App. 555, 689. But, at last, the Circuit Court of Appeals of the Sixth Circuit, in an able and elaborate opinion delivered by Judge Lurton, with the concurrence of Judge Taft and Judge Hammond, being a majority of the court which had made the decision in Columbus Watch Co. v. Robbins, 6 U. S. App. 275, above cited, expressly overruled that decision, and brought the practice in that circuit into harmony with the practice prevailing in other circuits. Bissell Co. v. Goshen Co. (March, 1896), 43 U. S. App. 47; Dueber Co. v. Robbins (May, 1896), 43 U. S. App." }, { "docid": "22404123", "title": "", "text": "by this court, without touching this question. 159 U. S. 651. In the Sixth Circuit, on the other hand, in a case in which the Circuit Court had entered an interlocutory decreé sustaining the validity of the patent, adjudging that there was an infringement, ordering an account of damages and profits, and granting an injunction, and had allowed an appeal from so much only of- that decree as granted the injunction, and denied an .appeal from the rest of the decree, the Circuit Court of Appeals, in an opinion delivered by Mr. Justice Jackson (then Circuit Judge) with the concurrence of Judge Taft and Judge Hammond, held that the appeal had been properly restricted by the Circuit Court, and that the Cireuit Court of Appeals had no authority, upon this appeal, to hear and fully determine the- merits of the case, but that those remained, notwithstanding the appeal, within the .jurisdiction arid control of the Circuit Court.--’ That decision was made before the second de-cisión in Richmond v. Atwood, 5 U. S. App. 151, above cited, had been reported, and without reference to the practice of courts of chancery elsewhere. And it was said in the opinion: “ It would doubtless have been well if, in the creation of this court, the seventh section of the act had permitted jor authorized an appeal from interlocutory decrees sustaining the validity of patents and adjudging their infringement, so as to obviate in many cases the taking of expensive accounts, and the delays incident thereto.” Columbus Watch Co. v. Robbins (October, 1892), 6 U. S. App. 275, 281. A certificate thereupon made by the Circuit Court of Appeals, for the purpose of obtaining the instructions of this court, was dismissed by this, court, with Mr. Justice Jackson’s concurrence, because no question of law was distinctly certified, and because the Circuit Court of Appeals had decided the case before granting the certificate. 148 U. S. 266. That decision was long treated as settling the practice in that circuit on appeals from such interlocutory decrees, and as permitting the questions of'validity and infringement to be" }, { "docid": "22768018", "title": "", "text": "income derived from the business? — and the incidental question, — What is the reasonable depreciation, if any, of the mining property? What has been said necessitates a negative answer to the third question as certified. -And we shall not go further into the question of depreciation. The case comes here under § 239, Judicial Code (derived from § 6 of the Evarts Act, March 3, 1891, 26 Stat. 826, 828, c. 517). It is established that in the exercise of this jurisdiction this court, unless it see occasion to require the whole record to be sent up for consideration, is to make answer respecting the several propositions of law that are certified, and is not to go into questions of fact, or of mixed law and fact. Our- Rule 37 requires that the certificate shall contain a proper statement, of the facts upon which the questions of law arise,- and we deal with the facts as thus certified, and not otherwise. Graver v. Faurot, 162 U. S. 435, 437; Cross v. Evans, 167 U. S. 60, 63; United States v. Union Pacific Railway, 168 U. S. 505, 512; Emsheimer v. New Orleans, 186 U. S. 33; Cincinnati, Hamilton Railroad v. McKeen, 149 U. S. 259. It would therefore be improper for us at this time to enter into the question whether the clause, “a reasonable allowance for depreciation of property, if any” calls for an allowance on that account in making up the tax, where no depreciation is charged in practical bookkeeping; or the question whether depreciation, when allowable, may properly be based upon the depletion of the ore supply estimated otherwise than in the mode shown by the agreed statement of facts herein; for to do this would be to attribute a different meaning to the term “ value of the ore in place” than the parties have put upon it, and to instruct the Circuit Court of Appeals respecting a question about which instruction has not been requested, and concerning which it does not even appear that any issue is depending before that court. The first and" }, { "docid": "23174123", "title": "", "text": "decision. The rules in relation to certificates of division of opinion in civil causes under sections 650, 652, 693 of the Revised Statutes Avere well settled. Each question had .to be a distinct point or proposition of law, clearly stated, so that it could be'definitely answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Fire Insurance Association v. Wickham, 128 U. S. 426; Dublin Township v. Milford Savings Institution, 128 U. S. 510. The same rules were applicable to the certificate of points on division of opinion on the hearing or trial of criminal proceedings under sections 651 and 697. United States v. Hall, 131. U. S. 50; United States v. Perrin, 131 U. S. 55. And prior to the act of February 25, 1889, this court had jurisdiction of a case brought up on certificate of' division of opinion on the question whether the Circuit Court had jurisdiction of it. Baltimore & Ohio Railroad Co. v. Marshall County Supervisors, 131 U. S. App. xcix. By section six of the act of March 3, 1891, c. 517, 26 Stat. 826, S28, it is provided “that in every such subject within its appellate jurisdiction, the Circuit Court of Appeals may at any time certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.” In Columbus Watch Co. v. Robbins, 148 U. S. 266, it was held that in order to give this court jurisdiction over questions or propositions of law sent up by a Circuit Court of Appeals for decision, it was necessary that the questions or propositions" }, { "docid": "19211237", "title": "", "text": "Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. No question as to the constitutionality of the act of Congress arises on this appeal, but it is contended that the jurisdiction of the District Court, was in issue, and that therefore the appeal was. properly taken directly to this court. But the judiciary act of March 8, 1891, provides that in cases where the jurisdiction of the court below is in issue, that question, and that alone, shall be certified to this court for decision, the inquiry being limited to the question thus certified. United States v. Jahn, 155 U. S. 109, 113. In Maynard v. Hecht, 151 U. S. 324, we held, that a certificate from the court below of the' question of jurisdiction to be decided was an absolute prerequisite to the exercise of jurisdiction here, and indicated by reference to the settled rules in relation to certificates of division of opinion in what'manner we thought the certificate should be framed. In Colvin v. Jacksonville, 158 U. S. 456, it was decided that such certificate must be granted during the term at which the judgment or decree is entered. The District Court of the United States for the Southern District of New York has monthly terms. Rev. Stat. 572. The decree here was entered December 21, and the appeal allowed December 31, 1892. On the seventeenth of the following January, during a new term of the court, the assignment of errors was directed to be filed nunc fro tunc as of December 31, 1892. If that assignment could be treated as a certificate, it came toó late, a-nd, as there is nothing in the record prior to the expiration of the December term, to indipate any attempt or' intention to file a certificate during that term, and there was no omission to enter anything which had actually been done at that term, the case did not come within the rule that permits an amendment of the record nunc fro tunc. Hickman v. Fort Scott, 141 U. S. 415, 418; Michigan Insurance Bank v." }, { "docid": "5935450", "title": "", "text": "the right of removal upon the ground simply that the averments of the petition were insufficient or too vague to justify a court of equity in granting the relief asked. The suit being, in its general nature, one of which the circuit court of the United States could rightfully take cognizance, it was for that court, after the cause was docketed there, and upon final hearing, to determine whether, under the allegations and proof, a case was made which, according to the established principles of equity, entitled Mrs. Marshall to protection against the judgments alleged to have been fraudulently obtained.” The judgment of the state court was accordingly reversed, and the cause remanded, with directions that the state district court set aside all orders made after filing the petition and bond for removal. There was at one time a question in the lower courts whether Marshall v. Holmes did not overrule or modify the Throckmorton Case, and the Circuit Court of Appeals of the Seventh Circuit attempted to certify a question, in the case of Graver v. Faurot, to the Supreme Court, for the purpose of having the apparent conflict determined. The Supreme Court, however, dismissed the certificate, on the ground that to answer the question was practically to pass upon the whole case. See Graver v. Faurot (C. C.) 64 Fed. 241; Id., 76 Fed. 257, 22 C. C. A. 156; Id., 162 U. S. 435, 16 Sup. Ct. 799, 40 L. Ed. 1030. As to the views of the Circuit Court of Appeals of the Second Circuit, see U. S. v. Gleeson, 90 Fed. 778, 33 C. C. A. 272. That the Supreme Court of the United States does not regard the Marshall Case and the Throckmorton Case as being in conflict is shown by the fact that each of the cases has been followed with approval by that court in its subsequent decisions. As illustrations, see U. S. v. Beebe, 180 U. S. 343, 349, 21 Sup. Ct. 371, 45 L. Ed. 563; Greenameyer v. Coate, 212 U. S. 434, 29 Sup. Ct. 345, 53 L. Ed." } ]

[ { "docid": "22643016", "title": "", "text": "existing certified production and maintenance unit and are not embraced in the classification of laboratory employees excluded from the established unit.” Id., at 196-197. The employer contended that the laboratory operation in question was still in the research and development stage. The Board found that some of the employees in question were performing production rather than experimental laboratory work and constituted an accretion to the existing unit; and it clarified the certification by specifically including those employees in the production and maintenance unit. What a union can do, an employer can do, as evidenced by numerous Board decisions. See Western Cartridge Co., 134 N. L. R. B. 67; Blaw-Knox Co., 135 N. L. R. B. 862; Lumber & Millwork Industry Labor Committee, 136 N. L. R. B. 1083. If this is truly a representation case, either IUE or Westinghouse can move to have the certificate clarified. But the existence of a remedy before the Board for an unfair labor practice does not bar individual employees from seeking damages for breach of a collective bargaining agreement in a state court, as we held in Smith v. Evening News Assn., 371 U. S. 195. We think the same policy considerations are applicable here; and that a suit either in the federal courts, as provided by § 301 (a) of the Labor Management Relations Act of 1947 (61 Stat. 156, 29 U. S. C. § 185 (a); Textile Workers v. Lincoln Mills, 353 U. S. 448), or before such state tribunals as are authorized to act (Charles Dowd Box Co. v. Courtney, 368 U. S. 502; Teamsters Local v. Lucas Flour Co., 369 U. S. 95) is proper, even though an alternative remedy before the Board is available, which, if invoked by the employer, will protect him. The policy considerations behind Smith v. Evening News Assn., supra, are highlighted here by reason of the blurred line that often exists between work assignment disputes and controversies over which of two or more unions is the appropriate bargaining unit. It may be claimed that A and B, to whom work is assigned as “technical” employees," } ]

[ { "docid": "20372685", "title": "", "text": "Act extortion of Tamburello’s property rights, in violation of RICO, 18 U.S.C. § 1962(c). Count II alleges that the individual defendants conspired to violate RICO by knowingly joining the enterprise and by committing, or agreeing to commit at least two acts of racketeering. Count IV alleges that all defendants violated Tam-burello’s rights under the MCRA. We address the RICO claims first. I. The RICO Claims Tamburello alleges that the actions of his supervisors at Comm-Tract constituted a pattern of extortion to deprive him of his rights to speak out on union matters, his rights under the collective-bargaining agreement, and his right to his job. The district court held that Tamburello’s RICO claims are preempted by the NLRA, which “preempts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act.” Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959)). The NLRA “is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce.” Nash v. Florida Indus. Comm’n, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438 (1967). The NLRA reflects congressional intent to create a uniform, nationwide body of labor law interpreted by a centralized expert agency — the National Labor Relations Board (NLRB). Accordingly, the NLRA vests the NLRB with primary jurisdiction over unfair labor practices. See 29 U.S.C. § 158. Applying these principles, the Garmon Court held that “[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Garmon, 359 U.S. at 245, 79 S.Ct. at 780. The Court has interpreted this to mean that, “as a general rule, neither state nor federal courts have jurisdiction over suits directly involving" }, { "docid": "13845982", "title": "", "text": "means for invoking district court jurisdiction, makes it clear that Congress intended that disputes involving the interpretation and enforcement of collective bargaining agreements be resolved through the grievance/arbitration machinery,6 with review “in the first instance by the [FLRA].” H.R.Rep.No. 95-1717, 95th Cong., 2d Sess., 157 (1978). National Federation of Federal Employees, Local 1263 v. Commandant, Defense Language Institute, supra. Where, as here, Congress has established a compre hensive scheme for resolving labor disputes without intervention by district courts, we are unwilling to reach for jurisdiction under the guise of deciding a simple contract dispute. Moreover, any general basis for invoking this Court’s jurisdiction has been preempted by the Act. The FLRA has held the unilateral refusal of a federal employer to process a grievance is an unfair labor practice under §§ 7116(a)(1) and (5) of the Act. Veterans Administration Hospital, Danville, Ill, 4 FLRA No. 59 (9/30/80). By analogy to the private sector, we conclude that the FLRA’s unfair labor practice jurisdiction over the issue preempts that of state and federal courts. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Clark, et al. v. Mark, No. 79-CV-777, slip op. (N.D.N.Y., 8/27/80); National Federation of Federal Employees, Local 1263 v. Commandant, Defense Language Institute, supra; Cf.: Smith v. Evening News Ass’n, supra; Motor Coach Employees v. Lockridge, 403 U.S. 274, 297-301, 91 S.Ct. 1909, 1923-1925, 29 L.Ed.2d 473 (1971) (§ 301 represents a Congressionally created exception to the preemption doctrine). The Court concludes that it lacks jurisdiction over this action. Accordingly, it is this 8th day of March, 1982 ORDERED that defendants’ motion to dismiss is hereby GRANTED. . The collective bargaining agreement provides for a 5 step grievance procedure culminating with an arbitration proceeding. See: Negotiated Agreement, Article XXII, Section 7. (Defendants’ Exhibit 3). . The grievance mechanism provides the following time limits: “The grievance procedure shall be invoked with 7 working days of the occurrence of the incident giving rise to the grievance of within 7 working days of the aggrieved becoming aware of the grievable situation” See: Negotiated Agreement," }, { "docid": "18035943", "title": "", "text": "over the trustees’ action. II Hahn characterizes the dispute in this case as one arguably involving an unfair labor practice under section 8(b)(4)(D) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(4)(D) (1976) (the Act), and on this basis argues that the district court lacked jurisdiction to decide it. Hahn relies upon the principle established by San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), “that the National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act.” Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971). In particular, Hahn argues that if the district court had assumed jurisdiction, it would be left potentially subject to “conflicting regulation of conduct” which the Garmon pre-emption doctrine is designed to prevent. See Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, supra, 403 U.S. at 292, 91 S.Ct. 1909. Hahn fears that if the district court were to award the benefit payments to one of the trusts in this case, “[t]he other union would then be free to assert its claim over the same work by threatening concerted economic action.” This, Hahn argues, would constitute an unfair labor practice pursuant to section 8(b)(4)(D) of the Act, and Hahn could then file charges with the NLRB pursuant to 29 U.S.C. § 160(k) (1976). That action, Hahn concludes, could result in the award of benefits to the trust funds of both unions were the rival union to succeed before the Board. Hahn’s fears, however, do not deprive the district court of jurisdiction. Hahn has argued, and it appears that the district judge believed, that this is the type of jurisdictional dispute described in section 8(b)(4)(D) of the Act as a dispute between unions over a work assignment. But [wjhile § 8(b)(4)(D) makes it an unfair labor practice for a union to strike to get an employer to assign work to a particular group of" }, { "docid": "22291929", "title": "", "text": "grievances charge conduct on the part of the employer which the employer asserts can be evaluated only by the National Labor Relations Board. It is therefore argued that exclusive jurisdiction in the Board precludes adjudication or arbitration of the grievances, under the so-called preemption doctrine. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953). Judge Palmieri found the preemption doctrine inapplicable and ordered arbitration of each grievance. We agree, and affirm the relevant portion of his order. National Docket No. 4114 protests the assignment of certain bargaining unit work, assembly work on military guidance systems, to “laboratory technicians,”' persons outside the bargaining unit. The-laboratory technicians did the assembly work alongside of employees who were-within the bargaining unit, and it is; asserted that the company refused to> apply to them the provisions of the collective bargaining agreement and to recognize the union as their bargaining representative. National Docket Nos. 4606-4611, consolidated as a single grievance, involves-the assignment of work normally performed by the Maintenance Plumbers-,, employees within the union’s bargaining-unit, to employees in a different unit, represented by a different union. National Docket No. 4922, already discussed in detail, protests the removal of' certain crystal processors from the production and maintenance unit and the-conversion of their jobs from hourly pay to salary, without any change in their duties. The Supreme Court has all but. sounded the death-knell of the theory of exclusive NLRB jurisdiction in cases-arising under section 301 of the Labor-Management Relations Act. See Smith; v. Evening News Ass’n, 371 U.S. 195 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 245 n. 5, 82 S.Ct. 1318, 8 L.Ed. 2d 462 (1962); Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 101 n. 9 82 S.Ct. 571, 7 L.Ed.2d 593 (1962);. Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). The Court, in Smith v. Evening News Ass’n, 371 U.S., at 197, 82" }, { "docid": "2953699", "title": "", "text": "that the primary remedy of Sinclair is discharge or discipline of individual defendants. See NLRB v. Rockaway News Supply Co., 345 U.S. 71, 80, 73 S.Ct. 519, 97 L.Ed. 832 (1953); Atkinson v. Sinclair Refining Co., supra, 370 U.S. at 246, 82 S.Ct. 1318. Of course the Union has the right to discipline its disobedient members. We conclude that count 2 does not state a claim upon which relief can be granted. The district court did not err in dimissing count 2. DEFENDANTS’ CROSS-APPEAL The district court denies defendants’ motion to dismiss Sinclair’s diversity breach of contract action in count 3 of its complaint. On appeal defendants claim error and assert that since individual liability for concerted action of defendants in violation of their contract is precluded under Section 301, a state cannot impose that liability. Sinclair seems uneasy in attempting to sustain count 3. On the one hand it “believes” that “ultimately” Section 301 will preclude local law in all actions arising from collective bargaining contracts. On the other hand it clings to the “theoretical possibility” that the Supreme Court may decide that Section 301 does does not preclude state action against individuals guilty of the alleged misconduct stated in count 3 (as stated also in count 2). In that event it says count 3 would remain a “viable alternative” to enforcement against individual union members of their individual contract obligation not to strike. We think that federal preemption doctrine has withdrawn the diversity remedy stated in count 3. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Amalgamated Ass’n of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). It is well settled that Section 301 does not grant federal courts exclusive jurisdiction over controversies within the statute’s purview and thereby deprive a party to a labor contract of the right to redress for its violation in an appropriate state tribunal. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). However, a" }, { "docid": "1243517", "title": "", "text": "violation is preempted as being within the exclusive jurisdiction of the NLRB, jurisdiction exists under 28 U.S.C. § 1337. Retana v. Apartment, Motel, Hotel El. Op. U. Loc. No. U, 453 F.2d 1018, 1021 (9th Cir. 1972). The basic test of pre-emption was stated by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236 at 245, 79 S.Ct. 773 at 780, 3 L.Ed.2d 775 (1959) as follows: When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board . . . Although this doctrine would seemingly encompass violations of a duty of fair representation, this is not necessarily the case. In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) the Court held that an employee’s suit against his union for an alleged breach of the duty of fair representation was not preempted by the NLRB. This exception to the pre-emption doctrine was reaffirmed in Amalgamated Ass’n of St., E.R. & MC. Emp. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) where the Court stated: [T]his Court’s refusal to limit judicial-competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy. The duty of fair representation was judicially evolved, without the participation of the NLRB, to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of his coworkers. Where such union conduct is proved it is clear, beyond doubt, that the conduct could not be otherwise regulated by the substantive federal law. And the fact that the doctrine was originally developed and applied by courts, after passage of the Act, and carries with it the need to adduce substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives ensures that" }, { "docid": "8833423", "title": "", "text": "new Local 6 vitiates the asserted breach of contract. Given the Labor Board’s primary jurisdiction over the contractual claim, we express no views as to whether the ratification vote could modify or excuse the alleged contractual obligation owed by the defendants. . E. g., Steele v. Louisville & Nashville R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) (racial discrimination). . Compare International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958) (state court’s jurisdiction upheld for breach-of-contract suit on purely internal union matter). . Section 301(a) states in full: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. . Our holding is not inconsistent with Supreme Court decisions in which the preemption doctrine has been declared to be “not relevant” to actions within the purview of section 301. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 101 n.9, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); accord, William E. Arnold Co. v. Car penters Dist. Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974); Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). Those cases involved alleged breaches of collective bargaining contracts rather than misconduct at the bargaining table. The Court explained in Lockridge, supra, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, that section 301’s limitation on the application of the preemption doctrine does not extend to conduct or agreements beyond collective bargaining agreements: The legislative determination that courts are fully competent to resolve labor relations disputes through focusing on the terms of a" }, { "docid": "13923714", "title": "", "text": "Corp., et al., 434 F.2d 1234 (2nd Cir. 1970). It permitted individual union members to sue their international union for alleged breach of contractual rights established by the charter and bylaws. It apparently felt compelled to do so by analogy to the Supreme Court’s decision in Smith v. Evening News Association, 371 U.S. 195 [83 S.Ct. 267, 9 L.Ed.2d 246] (1962). However, Smith v. Evening News Association does not, in the Court’s opinion, require this expanded interpretation of Section 301. Smith v. Evening News Association dealt with an action by individual union members against their employer based on the collective bargaining agreement. Over the years there has been the judicial creation of a Federal common law in the area of collective bargaining. This was expressly recognized in Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448 [77 S.Ct. 912, 1 L.Ed.2d 972] (1957). There has not been, however, this same tradition of Federal resolution of intra-union disputes and no Federal common law has developed in this area. Indeed, Congress in LMRD has provided statutory guidelines as to areas of intra-union affairs which the Federal courts would concern themselves with. In Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, et al. v. Lockridge, 403 U.S. 274 [91 S.Ct. 1909, 29 L.Ed.2d 473] (1971), the Supreme Court, in discussing Section 301(a) jurisdiction limited the applicability of Smith v. Evening News Association to contracts between unions and employers in stating: . the principle of Smith v. Evening News is applicable only to those disputes that are covered by the terms of the collective bargaining agreement itself. 403 U.S. at 300-301 [91 S.Ct. at 1925], In view of this limitation, this Court declines to follow Abrams. The Court is without jurisdiction under Section 301(a) to determine the intra-union dispute alleged in Count One. If plaintiffs have a remedy on this cause of action it is in the State court. As we have indicated, we affirm the District Judge’s dismissal of the action based upon a breach of contract under § 301(a). The language of § 301(a) authorizes in" }, { "docid": "2953700", "title": "", "text": "“theoretical possibility” that the Supreme Court may decide that Section 301 does does not preclude state action against individuals guilty of the alleged misconduct stated in count 3 (as stated also in count 2). In that event it says count 3 would remain a “viable alternative” to enforcement against individual union members of their individual contract obligation not to strike. We think that federal preemption doctrine has withdrawn the diversity remedy stated in count 3. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Amalgamated Ass’n of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). It is well settled that Section 301 does not grant federal courts exclusive jurisdiction over controversies within the statute’s purview and thereby deprive a party to a labor contract of the right to redress for its violation in an appropriate state tribunal. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). However, a state court — or a federal diversity court —is not free to apply individualized local rules when called upon to resolve union-employer disputes. Section 301(a) “is peculiarly one that calls for uniform law” and “incompatible doctrines of local law must give way to principles of federal labor law.” Local 174,’ Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co., 369 U.S. 95, 102-103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) ; Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). “An action arising under § 301 is controlled by federal substantive law even though it is brought in a state court.” Avco Corp. v. Aero Lodge No. 735, etc., 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968). We think that both counts 2 and 3 per se, indicate the grave danger that would follow permitting state law to govern actions arising from collective bargaining contracts. The same facts are alleged in each count. We have decided that Section 301, in the" }, { "docid": "21113518", "title": "", "text": "activity ... 18 U.S.C. § 1962(c) (1982). The statute also prohibits any person to conspire to violate any of the substantive provisions of the above section. See 18 U.S.C. § 1962(d) (1982). RICO and the NLRA are independent of each other in virtually all respects, even though certain conduct by employers or by unions could fall within the bounds of both statutes. One of the issues that arises in this motion to dismiss is whether Congress intended RICO to reach conduct that arguably amounts to unfair labor practice, which otherwise falls within the exclusive jurisdiction of the NLRB, and if so to what extent. The statutes can, however, be reconciled without the goals of either Act being ignored by looking to the type of injury a plaintiff alleges and to the defendant’s conduct to determine whether the NLRA or RICO provides the appropriate remedy. TV. DISCUSSION The Unions make six separate arguments in support of their motion to dismiss. A. Preemption The Unions’ first argument in support of dismissal is based on preemption. The Unions contend that many of the DNA’s 259 alleged predicate acts are preempted by the NLRA. Any analysis regarding NLRA preemption of RICO must necessarily begin with the Supreme Court decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In Garmon, the Court held that “[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal court, must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. at 245, 79 S.Ct. at 780. See also Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971) (stating that NLRA “pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act”). With the advent of civil RICO, however, an inevitable conflict developed between RICO and the NLRA. One of the" }, { "docid": "18035942", "title": "", "text": "trust agreements, for the sum of $11,740.92 for work done by a Hahn employee, Travers, between November 1, 1971 and February 28, 1975. The trustees based jurisdiction on section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) (1976). Hahn raised as an affirmative defense that it had employed Travers as a carpenter during this time and had made payments to trusts of the United Brotherhood of Carpenters and Joiners of America, established pursuant to agreements between that union and Hahn. Hahn also filed a third-party complaint against the trustees of the carpenters’ trusts, seeking recovery from these trustees should Hahn be held obligated to pay funds to the engineers’ trusts. The district court denied the engineers’ trustees’ motion for summary judgment and dismissed the action in its entirety for lack of subject matter jurisdiction, concluding the action was “nothing more than a jurisdictional labor dispute.” The trustees appeal both rulings. Hahn has filed a cross-appeal seeking reversal of the dismissal of its third-party action in the event we uphold jurisdiction over the trustees’ action. II Hahn characterizes the dispute in this case as one arguably involving an unfair labor practice under section 8(b)(4)(D) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(4)(D) (1976) (the Act), and on this basis argues that the district court lacked jurisdiction to decide it. Hahn relies upon the principle established by San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), “that the National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act.” Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971). In particular, Hahn argues that if the district court had assumed jurisdiction, it would be left potentially subject to “conflicting regulation of conduct” which the Garmon pre-emption doctrine is designed to prevent. See Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, supra, 403 U.S. at 292, 91" }, { "docid": "8833424", "title": "", "text": "doctrine has been declared to be “not relevant” to actions within the purview of section 301. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 101 n.9, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); accord, William E. Arnold Co. v. Car penters Dist. Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974); Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). Those cases involved alleged breaches of collective bargaining contracts rather than misconduct at the bargaining table. The Court explained in Lockridge, supra, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, that section 301’s limitation on the application of the preemption doctrine does not extend to conduct or agreements beyond collective bargaining agreements: The legislative determination that courts are fully competent to resolve labor relations disputes through focusing on the terms of a collective-bargaining agreement cannot be said to sweep within it the same conclusion with regard to the terms of union-employee contracts that are said to be implied in law. That is why the principle of Smith v. Evening News [finding concurrent jurisdiction between the Labor Board and federal courts under section 301 where an alleged breach of a collective bargaining contract is also an unfair labor practice] is applicable only to those disputes that are governed by the terms of the collective-bargaining agreement itself. 403 U.S. at 300-01, 91 S.Ct. at 1925. . Hypothetically, our resolution of the plaintiffs’ claim of unfair representation could conflict with a Labor Board determination of the plaintiffs’ contractual claims against the unions since both sets of claims involve basically the same union conduct. Such a conflict could arise only if (1) the plaintiffs pursue their contractual claims before the Labor Board; (2) the claims are deemed timely brought; (3) the Labor Board’s General Counsel decides to institute an unfair labor practice complaint; and (4) the Labor Board decides the case" }, { "docid": "22149135", "title": "", "text": "discussing what is now § 8(a) (3)). It should be noted that in 1959, with the passage of LMRDA, 29 U.S.C.A. § 401 et seq., Congress did undertake extensive and detailed statutory regulation of certain aspects of internal union affairs and organization. . It has been suggested that a holding of jurisdiction under § 301(a) would tend to promote at least two congressional policies. (1) A major purpose of § 301(a) is to overcome state law jurisdictional difficulties and thereby make unions amenable to suits as entities and to subject their funds to judgments for violations of contracts. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 511-513, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). Section 301(a) jurisdiction in cases like Local 28’s would make this responsibility more effective. (2) In 1959, with the passage of the Labor-Management Reporting and Disclosure Act, 29 U.S.C.A. § 401 et seq., Congress undertook extensive and detailed statutory regulation of certain aspects of internal union affairs. It is suggested that even assuming the LMRDA and § 301(a) may not be construed in pari montería, it would serve congressional policy to construe § 301(a) broadly, thereby making a whole remedy available in a federal court when the same conduct inflicts injury, adjudicable under LMRDA, upon individual members and also injury, not adjudicable under LMRDA, upon local unions. . See Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) ; Retail Clerks International Ass’n Locals 128 and 633 v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503 (1962) ; Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) ; Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). . See Local 33, International Hod Carriers Union v. Mason Tenders District Council, 291 F.2d 496 (2d Cir., 1961) ; Local 2608, Lumber Workers, United Brotherhood of Carpenters v. Millmen’s Local 1495, United Brotherhood of Carpenters, 169 F.Supp. 765 (N.D.Cal.1958) ; see also, Burlesque Artists Ass’n v. Amer iean Guild of Variety" }, { "docid": "3381577", "title": "", "text": "in the evolution of § 301 preemption doctrine is needed to put that issue in context, and to explain the basis for our disagreement upon it in this case. It all began of course when Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), established that § 301 not only conferred jurisdiction on federal courts to entertain suits for violation of collective bargaining agreements, but also empowered them to develop a uniform body of federal common law respecting the interpretation and enforcement of such agreements. Soon thereafter it was held that state courts retained concurrent jurisdiction over § 301 suits but were to apply (and to participate in the development of) the body of federal common law governing the interpretation and enforcement of labor-contracts recognized in Lincoln Mills. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). And in the same year, the court decided a question reserved in Lincoln Mills, that individual employees as well as unions could bring § 301 suits. Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Inevitably then (though § 301 did not expressly say so) it was also quickly held that, by virtue of the Supremacy Clause, the body of federal common law developed by the federal and state courts in the area covered by § 301, i.e., the interpretation and enforcement of labor-contracts, necessarily displaced any state law concerning such matters. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). And critically, the displacing force of federal law in this area was eventually held to be so powerful as to completely preempt some state-law claims, effectively transforming them into claims arising under federal law. Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (for removal purposes). The difficult issue, not fully answered in Avco, that then emerged was, what kind of state-law claims are thus completely preempted? The most obvious kind was that dealt" }, { "docid": "21113519", "title": "", "text": "contend that many of the DNA’s 259 alleged predicate acts are preempted by the NLRA. Any analysis regarding NLRA preemption of RICO must necessarily begin with the Supreme Court decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In Garmon, the Court held that “[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal court, must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. at 245, 79 S.Ct. at 780. See also Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971) (stating that NLRA “pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act”). With the advent of civil RICO, however, an inevitable conflict developed between RICO and the NLRA. One of the earliest and most influential opinions addressing this conflict was issued in Butchers’ Union Local, No. 498 v. SDC Inv., Inc., 631 F.Supp. 1001 (E.D.Cal.1986). The Butchers’ Union court held that to determine whether a RICO claim was preempted by the NLRA, it would have to look at the nature of the underlying predicate act. Where the defendant’s alleged predicate offense is only unlawful because it is proscribed by the labor laws, the RICO claims are preempted by the NLRA. Id. at 1010-11. Since Butchers’ Union, this area of the law remains somewhat muddled. Federal courts which have addressed the preemption issue have adhered to the Garmon preemption doctrine. There are, however, three exceptions to the doctrine which usurp the NLRB’s primary jurisdiction. The Garmon preemption doctrine does not apply if: (1) Congress has expressly carved out an exception to the NLRB’s jurisdiction; (2) the regulated activity is merely a peripheral concern of the labor laws; or (3) the regulated activity touches interests deeply rooted in local feeling and responsibility. Vaca v. Sipes, 386 U.S. 171," }, { "docid": "22884416", "title": "", "text": "restraining order prohibiting the strike. The Carpenters then sought a writ of prohibition from a Florida District Court of Appeal, contending that the Circuit Court lacked jurisdiction to order injunctive relief because the alleged breach of the no-strike clause was also arguably an unfair labor practice under § 8 (b) (4) (i) (D) of the National Labor Relations Act (NLRA), 29 U. S. C. § 158 (b)(4) (i)(D), and therefore fell within the exclusive jurisdiction of the National Labor Relations Board (Board). The District Court of Appeal denied the writ of prohibition and, as previously mentioned, the Supreme Court of Florida reversed. When an activity is either arguably protected by § 7 or arguably prohibited by § 8 of the NLRA, the preemption doctrine developed in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), and its progeny, teaches that ordinarily “the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id., at 245. When, however, the activity in question also constitutes a breach of a collective-bargaining agreement, the Board’s authority “is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301.” Smith v. Evening News Assn., 371 U. S., at 197. This exception was explicitly reaffirmed in Motor Coach Employees v. Lockridge, 403 U. S. 274, 297-298 (1971). It was fashioned because the history of § 301 reveals that “Congress deliberately chose to leave the enforcement of collective agreements 'to the usual processes of the law,’” Dowd Box Co. v. Courtney, 368 U. S. 502, 513 (1962). Thus, we have said that the Garmon doctrine is “not relevant” to actions within the purview of § 301, Teamsters Local v. Lucas Flour Co., 369 U. S., at 101 n. 9, which may be brought in either state .or federal courts, Dowd Box Co. v. Courtney, supra, at 506. Indeed, Board policy is to refrain from exercising jurisdiction in respect of disputed conduct arguably both an unfair labor practice" }, { "docid": "20811220", "title": "", "text": "work pertaining to the operation of the storeroom.” It is clear from the above language that the dispute over the assignment of certain work is a dispute “concerning the interpretation or application of the terms” of the collective bargaining agreement. Regarding the dispute over the oral attrition agreement, it is defendant’s position that while a dispute exists, it is not a dispute “concerning the interpretation or application of the terms” of the collective bargaining agreement for the reason the oral agreement is not a part of the collective bargaining agreement. This is without merit as this Court has found that the oral attrition agreement is an integral part of the collective bargaining agreement and subject to all of its provisions. It is the further position of defendant that injunctive relief would not be appropriate in this case as plaintiff has filed a complaint with the National Labor Relations Board and can obtain adequate relief from that source. Defendant’s argument is unpersuasive. The United States Supreme Court has made it clear that suits brought to enforce collective bargaining agreements are not pre-empted from federal courts even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act. In Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), the Court stated at page 298 of 403 U.S. at page 1924 of 91 S.Ct.: “We have held that such actions are judicially cognizable, even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act because the history of the enactment of § 301 reveals that ‘Congress deliberately chose to leave the enforcement of collective agreements “to the usual processes of the law.” ’ Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513 [82 S.Ct. 519, 526, 7 L.Ed.2d 483] (1962).” Furthermore, in this connection, the National Labor Relations Board has not determined to proceed on plaintiff’s complaint and the plaintiff has no assurances that the defendant’s unlawful conduct will be enjoined through the processes of the National Labor Relations Board." }, { "docid": "8572262", "title": "", "text": "Employees v. Lock-ridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 reh’g denied, 404 U.S. 874, 92 S.Ct. 24, 30 L.Ed.2d 120 (1971); International Longshoremen’s Assoc., Local 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195, 200, 90 S.Ct. 872, 874, 25 L.Ed.2d 218 (1970) (“The jurisdiction of the National Labor Relations Board is exclusive and pre emptive as to activities that are ‘arguably subject’ to regulation under § 7 or § 8 of the [National Labor Relations] Act”); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959); Garner v. Teamster’s Union, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-66, 98 L.Ed. 228 (1953). Although some exceptions to the exclusivity of NLRB jurisdiction have been created by Congress, these exceptions forge no inroads into the traditional function of the NLRB: identification and remedying of unfair labor practices. Compare International Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 241-42, 72 S.Ct. 235, 238, 96 L.Ed. 275 (1952) (holding that, in enacting § 303 of the Labor Management Relations Act, 29 U.S.C. § 187(b), Congress intended to provide independent remedies: one directed at ending unfair labor practices, the other at providing for recovery of damages) and Motor Coach Employees v. Lockridge, 403 U.S. at 298, 91 S.Ct. at 1923 (actions under § 301 of the Taft-Hartley Act, 61 Stat. 156, to enforce collective bargaining agreements are judicially cognizable because the legislative history makes it clear that Congress made a conscious decision to leave the enforcement of collective agreements to ordinary legal processes). See also Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 525, 7 L.Ed.2d 483 (1962). This case does not present a situation where Congress has made its intent to provide a remedy independent of those available in an NLRB proceeding clear, and where the preemption doctrine consequently has no application. See Teamster’s, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964); Smith v. Evening News Assoc., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d" }, { "docid": "20811221", "title": "", "text": "collective bargaining agreements are not pre-empted from federal courts even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act. In Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), the Court stated at page 298 of 403 U.S. at page 1924 of 91 S.Ct.: “We have held that such actions are judicially cognizable, even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act because the history of the enactment of § 301 reveals that ‘Congress deliberately chose to leave the enforcement of collective agreements “to the usual processes of the law.” ’ Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513 [82 S.Ct. 519, 526, 7 L.Ed.2d 483] (1962).” Furthermore, in this connection, the National Labor Relations Board has not determined to proceed on plaintiff’s complaint and the plaintiff has no assurances that the defendant’s unlawful conduct will be enjoined through the processes of the National Labor Relations Board. In light of the foregoing, this Court finds the plaintiff is ready and willing to arbitrate the grievances; that under the terms of the collective bargaining agreement the parties are contractually bound to arbitrate the dispute over work assignment and the dispute over attrition; and that plaintiff will suffer immediate and irreparable injury, loss or damage, if the Union is not enjoined from activities designed to create a work stoppage. Under the Supreme Court decisions in United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, and United Steelworkers v. American Manufacturing Co., supra, this Court may fashion the mechanism for implementation of the arbitration provisions of the collective bargaining agreement in this case. Accordingly, this Court will enjoin defendant from engaging in any activity to create a work stoppage over the differences concerning work assignment and attrition. The parties shall also reduce to writing the oral agreement relating to attrition within 20 days. Unless the parties settle these disputes and reduce to writing the oral attrition agreement within 20' days from this date," }, { "docid": "12200400", "title": "", "text": "affidavits. Assuming jurisdiction, a simple construction of the contract is involved and we agree with the District Court’s interpretation and also its conclusion that undisputed evidence, supporting the summary motions, reflects that plaintiffs were not terminated until the contract had expired, and hence not entitled to judgment for termination allowances. A serious question exists, however, as to plaintiffs’ right to bring this action because of failure to exhaust their contract grievance procedure remedies. The District Court seriously questioned its jurisdiction but because of the parties’ apparent waiver of those remedies proceeded to determine the issue on evidence before it. The issue before us then is whether plaintiffs may seek federal court aid by an action on a collective bargaining agreement under § 301 (29 U.S.C.A. § 185(a)) without first exhausting the internal contract remedies. Our duty to formulate a uniform body of substantive federal labor law for the enforcement of collective bargaining agreements has been recognized. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). But the actual content of § 301 jurisdiction has not been defined and has rather been developed on a case-by-case piecemeal basis. The pre-emption of San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), depriving both state and federal courts of § 301 jurisdiction to hear individual complaints on contract breaches if the questioned activity is arguably subject to § 7 or § 8 of the National Labor Relations Act has now been explained so that “[t]he authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301.” Smith v. Evening News Ass’n., 371 U.S. 195, 197, 83 S.Ct. 267, 269, 9 L.Ed.2d 246 (1962); Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). And though" } ]

[ { "docid": "7979481", "title": "", "text": "This in effect awards the maximum amount to which the widow and children were entitled under the act, viz. $7,500. No question is raised by the appellants as to the propriety of this award as to the amount or the manner of its payment. The sole issue here is, On what date shall the payments begin? The appellants contend that the amount recovered of a third person should be treated as compensation under the act, and first applied in installments until used up, and then the payments under the Commissioner’s award should begin. Under this interpretation the widow and children would receive no benefit in this case under the award of the deputy commissioner until 1936. But we find no basis in the act for such a construction. While section 14 (b), (33 USCA § 914 (b), provides that compensation paid by the employer shall be in semimonthly installments, unless otherwise determined by the Commission, the situation presented when a third person is responsible for the injury is not the same as when an employer pays under the act. The injured workman, or, in case of his death, his representative, if the option under section 33 (a), (33 USCA § 933 (a) is exereised, brings the action against the third person in his own right, as though no Compensation Act existed, and is entitled to receive whatever he or his representative may recover unconditioned by the act. But, when the amount recovered is less than the sum the workman, or, in case of death, his dependents, would be entitled to receive under the .act, the employer must make up the difference. The act may be defective in not expressly providing how this difference should be paid, whether in installments or in a lump sum; but section 33 (f) provides that it shall be paid as “compensation under this chapter,” and section 14 (b) provides how “compensation under this chapter” shall be paid. Seasons may be assigned why Congress, in case of recovery of a third person, should have made the installments of any additional sum which the employer is compelled" } ]

[ { "docid": "22168328", "title": "", "text": "before, concerned with the control of the injured employee’s right of action against third persons. The provision neither expresses nor implies a restriction upon the employer’s right to subrogation, the circumstances being otherwise appropriate. No case has been cited, nor have we found any, which holds that an employer’s right to reimbursement for compensation paid under the Longshoremen’s Compensation Act for an injury for which third persons have been made to answer to the employee in substantial damages exists only where the compensation was accepted “under an award in a compensation order filed by the deputy commissioner”. Were that to be construed as the meaning of the Act since the amendment in Sec. 33 (b), then, indeed, would the intent of the Act, as expressed in Sec. 14(a), 33 U.S.C.A. § 914 (a), be effectively thwarted. Sec. 14 (a) provides that: “Compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except 'where liability to pay compensation is controverted by the employer.” (Emphasis supplied.) Thus employers are directed by the Act to pay compensation promptly and directly to their injured employees without an award. But it is, of course, readily apparent that, if subrogation may not be had by an employer for compensation payments made without an award, then, where the possible liability of a third person was present, the employer would be compelled, in his own interest, to controvert his liability for compensation in the first instance in order to await the filing of an order by the, deputy commissioner, and thus succeed to the employee’s right of action by assignment. Indeed, the appellant concedes that had Jarka rendered the entry of an award necessary, it could then have obtained reimbursement through the medium of the assigned right of action. Yet the award would have been for no more than what the employee actually received from his employer without an award. Jarka paid Mitchell the maximum weekly rate prescribed by the Act. Moreover, it paid promptly and regularly as Sec. 14 (a) enjoins. We find no intent indicated by the" }, { "docid": "9560478", "title": "", "text": "GRONER, C. J. This is an action against an alleged third party wrongdoer to recover damages for personal injury, and is brought under the provisions of the District of Columbia Workmen’s Compensation Law. Appellants Moore rnd Lloyd were the injured employees; appellant Aetna the insurance carrier; and appellee Hechinger the alleged third party wrongdoer. Moore and Lloyd elected to receive compensation under the statute, and the deputy commissioner entered an award fixing the amount. Thereafter Aetna brought suit, joining Moore and Lloyd as parties plaintiff. Appellee filed a motion under Rule 21 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c to drop plaintiffs Moore and Lloyd as parties. Appellants insisted Moore and Lloyd were proper parties plaintiff under the new rules. Judge Morris, in a well considered opinion, concluded that Moore and Lloyd were not “real parties in interest” and sustained the motion. The single question for decision is: Did the lower court properly drop Moore and Lloyd as parties plaintiff? The answer turns upon the construction of the following paragraphs of Section 33 of the Compensation Act: “(a) If on account of a disability or death for which compensation- is payable under this. Act [chapter] the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person. “(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person. ***** “(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding. ■ “(e) Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows: “(1) The" }, { "docid": "22168321", "title": "", "text": "“under an award in a compensation order filed by the deputy commissioner” as provided for in Sec. 33 (b) of the Longshoremen’s Com- pensation Act and (2) that the District Court was without jurisdiction to hear and determine the employer’s claim to subrogation on a petition to intervene in the plaintiff’s suit in admiralty against the third persons. Sec. 33 (a) of the Longshoremen’s Compensation Act, 33 U.S.C.A. § 933, provides, that: “(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.” Then follows subdivision (b) of Sec. 33 upon which the appellant bases his first contention: “(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.” Subdivision (e) of Sec. 33 prescribes how “Any amount recovered by such employer on account of such assignment * * * shall be distributed * * In assigning Sec. 33 (b) as the measure of an employer’s right to reimbursement for compensation and medical expenses paid on account of an injury to an employee where a third person is answerable in damages for inflicting the injury, we think that the appellant misconceives both the purpose and the scope cyf that provision and entirely ignores the right to subrogation which, under equitable principles, attaches where one, not acting officiously, pays money on account of a legal obligation resting upon him for the imposition whereof another is held pecuniarily responsible. See Restatement, Restitution, § 162, p. 653, and comment thereon. In the instant case, the employer’s payments, both of compensation and of medical expenses, were in accordance with and pursuant to its liability as prescribed by the Compensation Act" }, { "docid": "22168327", "title": "", "text": "third persons- passed automatically to the employer whose interest in pressing the employee’s claim or in pressing it for more than enough to satisfy the employer’s requirements, as measured by the extent to which he voluntarily acknowledged liability for compensation, might not be great. Then, as now, it was the employer’s right, when the assignment had accrued, to compromise the employee’s claim against third persons as he saw fit. But the prospect of the employer’s settling the employee’s claim for an amount not commensurate with the injury was less likely if the compensation acknowledged and paid was adequate. Accordingly, the Act was amended in 1938 by providing in Sec. 33 (b) that the assignment should ensue when the employee accepted compensation “under an award in a compensation order filed by the deputy commissioner”. This calls for the deputy commissioner’s affirmative action which, together with its known legal consequences, engages his supervision on the basis of the employer’s liability for compensation under the Act. But even with this change, the assignment remains, just as it was before, concerned with the control of the injured employee’s right of action against third persons. The provision neither expresses nor implies a restriction upon the employer’s right to subrogation, the circumstances being otherwise appropriate. No case has been cited, nor have we found any, which holds that an employer’s right to reimbursement for compensation paid under the Longshoremen’s Compensation Act for an injury for which third persons have been made to answer to the employee in substantial damages exists only where the compensation was accepted “under an award in a compensation order filed by the deputy commissioner”. Were that to be construed as the meaning of the Act since the amendment in Sec. 33 (b), then, indeed, would the intent of the Act, as expressed in Sec. 14(a), 33 U.S.C.A. § 914 (a), be effectively thwarted. Sec. 14 (a) provides that: “Compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except 'where liability to pay compensation is controverted by the employer.” (Emphasis supplied.) Thus employers" }, { "docid": "23286795", "title": "", "text": "impose on the insurance carrier, under section 14 of the act (33 USCA § 914), a penalty of 29 per cent, of $2,075 on the ground that this sum was not paid within ten days after it became due. The deputy commissioner declined to assess the penalty. Thereupon the plaintiff filed his bill of complaint for a mandatory injunction, and obtained a decree granting the relief prayed for. This is the decree before us on appeal. Section 14 (f), upon which the plaintiff bases his claim of right to obtain a 20 per cent, addition to the compensation awarded him by the order of August 2d, reads as follows: “(f) If any compensation, payable under the terms of an award, is not paid within ten days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 per centum thereof, which shall be paid at the same time as but in addition to such compensation, unless review of the compensation order making sneh award is had as provided in section 21 [section 921 of this chapter].” The issue in dispute requires a construction of the statute to determine when the compensation awarded by the order of August 2d became due. Section 14 does not itself supply the answer. Subdivision (a) declares that compensation must be paid promptly and periodically without an award, unless the employer controverts liability. Subdivision (b) provides that the first installment “shall become due on the fourteenth day after the employer has knowledge of the injury,” and subsequent installments shall be paid semimonthly, unless the deputy commissioner determines otherwise. But this, as shown by subdivision (e), relates only to compensation paid without an award. Subdivision (d) provides what the employer shall do to controvert his liability. Subdivision (f) has already been quoted; none of the other subdivisions need be mentioned. Nothing in the section throws light on the disputed question as to the date when compensation awarded by an order “becomes due.” Section 19 prescribes the procedure in respect to controverted claims, and in subdivision (e) provides that the order making" }, { "docid": "21495135", "title": "", "text": "minor children recovered the sum of $13,500. From said sum, the judgment provided that the Texas Employers’ Insurance Assocation, insurer for the employer Gulf-Tide Stevedores, Inc., should recover the sum of $1742.58 for compensation theretofore paid to said children. The sum of $3,900 was also directed to be paid to the children’s attorneys as their fee for services in the action. The balance of $7,857.42 was directed to “be recovered by the minor libellants in equal shares” through their guardian, subject to the further orders of the court. Upon the entry of said third party judgment, the Deputy Commissioner entered a compensation order in which he directed that the employer and insurance carrier be given credit for said balance of $7,857.42 against further compensation of the children. The court below held that it was the total or gross and not the net amount of the recovery against a third party, the excess of which the employer was required to pay under 33 U.S.C.A. § 933 (f), which provides, in part, for the payment of “a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person.” The facts being undisputed, the question presented below and here is one of interpretation of an ambiguous statute, which should be liberally construed in favor of longshoremen and harbor workers. In Marlin v. Cardillo, 68 App.D.C. 201, 95 F.2d 112, wherein the applicable provisions of the Longshoremen’s Act were presented, the court held that the purpose of the act was to give to the injured employee or, in the event of his death, to his dependents, the compensation provided by the act or the amount recovered from a third party, whichever was the greater. The court corrected what it deemed to be a clerical error in Section 933, under the rule that the letter of a statute will not be followed when it leads to an absurd conclusion, citing Jarka Corporation v. Monahan, 1 Cir., 62 F.2d 588, and other authorities. The court distinguished Chapman v." }, { "docid": "1952031", "title": "", "text": "Navy. Ingalls is subject to the provisions of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1994), which provides certain classes of maritime employees with compensation for work-related injuries. See 33 U.S.C. §§ 902-03. Section 914 of the LHWCA is entitled “Payment of Compensation” and provides that “compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.” 33 U.S.C. § 914(a). The first semi-monthly installment of compensation becomes due no later than fourteen days after the employer is notified of a compensable injury, 33 U.S.C. § 914(b), unless the employer controverts the right to compensation by filing a timely notice stating, inter alia, “the grounds on which the right to compensation is controverted.” 33 U.S.C. § 914(d). Section 914(e) (entitled “Additional compensation for overdue installment payments payable without award”) mandates that under certain circumstances, an employer pay additional compensation. It provides: If any installment of compensation payable without an award is not paid within fourteen days after it becomes due, as provided in [§ 914(b) ], there shall be added to such unpaid installment an amount equal to 10 per centum thereof, which shall be paid at the same time as, but in addition to, such installment, unless notice is filed under [§ 914(d)], or unless such nonpayment is excused by the deputy commissioner after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment. 33 U.S.C. § 914(e). Thus, absent a valid excuse granted by the Deputy Commissioner, an employer who fails either to timely controvert a claimant’s right to compensation or to timely pay the initial pre-award installment will owe an ultimately successful claimant 110% of the late pre-award installment payments. Payments under § 914(e) are based on the amount of compensation owed but not yet paid, and thus serve both to compensate claimants for delays and to encourage employers either to make voluntary payment or" }, { "docid": "15611872", "title": "", "text": "directed the distribution of recoveries, and nothing in this opinion trenches on its authority. The judgment is reversed and the case is remanded for reinstatement of the deputy commissioner’s award. . 33 U.S.C. §§ 907, 914. . Section 33(f) of the Act, 33 U.S.C. § 933 (f), provides: “If the person entitled to compensation institutes jjroceedings within [six months after an award] the employer shall he required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person.” . Section 33(e) of the Act, which governs the distribution of the recovery against a wrongdoer when the employer institutes the action, specifically provides for reimbursement to the employer of all compensation and medical payments that he has advanced. There is no counterpart of this statutory lien in § 33(f) which deals with an employee’s suit against a wrongdoer. To forestall double recovery by the employee, an equitable lien patterned after the § 33(e) lien has been judicially imposed on recoveries in suits brought by emjdoyees. See e. g., Fontana v. Pennsylvania R. R., 106 F.Supp. 461, 462 (S.D.N.Y.1952), aff’d sub nom. Fontana v. Grace Line, Inc., 205 F.2d 151 (2d Cir.), cert. denied, 346 U.S. 886, 74 S.Ct. 137, 98 L.Ed. 398 (1953). . The deputy commissioner stated : “. . . That as a result of the compromise settlement effected between the claimant and .the third party or parties said to have been responsible for his injury, the claimant has realized the sum of $110,000.00, in addition to the sum of $2,170.00 in compensation paid on account of temporary total disability by the employer and insurance carrier for a gross recovery of $112,-170.00; that the attorney’s fee of $36,-487.33, legal expenses of $538.02, the insurance carrier’s lien for compensation in the amount of $2,170.00 and medical expenses in the amount of $8,123.55 which were incidental to the third-party settlement amount to $47,318.90; that the claimant has netted the amount of $64,851.10 ($112,170.00 less $47,318.-90)" }, { "docid": "22154376", "title": "", "text": "entitled to compensation or to the representative; and “(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer. “(f) If the person entitled to compensation institutes proceedings within the period prescribed in subdivision (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person. “(g) If compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to [sic] under this chapter, the employer shall be liable for compensation as determined in subdivision (f) of this section only if such compromise is made with his written approval. “(h) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section. “(i) The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.” If the representative decides to bring suit against the third person within six months of the award, as in this case, the employer’s liability for compensation is reduced by the amount recovered by the representative from the third person. See §33 (f), supra, n. 1. 284 F. Supp. 740. 392 F. 2d 918. 393 U. S. 820. The District Court found that crucial factual issues existed regarding the longshoremen’s knowledge of the open hatch and the parties’ relative duties of inspection. McNeill had been present at" }, { "docid": "22168320", "title": "", "text": "right to subrogation and the amount thereof determined and impressed upon the money due Mitchell under his judgment against the third persons. Upon agreement of counsel for all parties in interest, including the owner of the “Etna” and the surety, $8,091.72 on account of the judgment was forthwith paid to Mitchell and the balance of $3,908.28, which equalled the payments made by the employer for compensation and medical expenses, was deposited in the registry of the court to abide the court’s ultimate order with respect to the employer’s claim to subrogation. It was in these circumstances that the District Court entered the decree allowing Jarka to intervene in the admiralty suit and directing the clerk to pay the fund, then in the registry of the court, to the Jarka Corporation in discharge of it§ right to reimbursement. It is that decree from which the plaintiff took the present appeal. The appellant contends (1) that the employer is not entitled to subrogation for the reason that the acceptance of the compensation paid the plaintiff was not “under an award in a compensation order filed by the deputy commissioner” as provided for in Sec. 33 (b) of the Longshoremen’s Com- pensation Act and (2) that the District Court was without jurisdiction to hear and determine the employer’s claim to subrogation on a petition to intervene in the plaintiff’s suit in admiralty against the third persons. Sec. 33 (a) of the Longshoremen’s Compensation Act, 33 U.S.C.A. § 933, provides, that: “(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.” Then follows subdivision (b) of Sec. 33 upon which the appellant bases his first contention: “(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to" }, { "docid": "21495134", "title": "", "text": "HOLMES, Circuit Judge. On the 10th of October, 1948, one M. L. Williamson, while employed by the Gulf-Tide Stevedores, Inc., fell into the water from a gang plank and was drowned. He left a widow and four young children. Upon his death, under the Longshoremen’s & Harbor Workers’ Compensation Act, as amended, 33 U.S. C. A. § 901 et seq., the widow became entitled to $18.37 per week until her death or remarriage, and the children jointly became entitled to $16.62 per week. The compensation of the children will terminate upon their eighteenth birthdays. On the 2nd of March, 1949, the widow remarried and upon such remarriage, under the law, was entitled to two years compensation in one sum; her compensation has been paid, and there is no question here concerning her rights. An action against a third party was instituted in the court below on behalf of the minor children, proceeding under Section 933, Title 33, of the U.S.C.A. On January 17, 1951, a judgment was entered in said suit under which the said minor children recovered the sum of $13,500. From said sum, the judgment provided that the Texas Employers’ Insurance Assocation, insurer for the employer Gulf-Tide Stevedores, Inc., should recover the sum of $1742.58 for compensation theretofore paid to said children. The sum of $3,900 was also directed to be paid to the children’s attorneys as their fee for services in the action. The balance of $7,857.42 was directed to “be recovered by the minor libellants in equal shares” through their guardian, subject to the further orders of the court. Upon the entry of said third party judgment, the Deputy Commissioner entered a compensation order in which he directed that the employer and insurance carrier be given credit for said balance of $7,857.42 against further compensation of the children. The court below held that it was the total or gross and not the net amount of the recovery against a third party, the excess of which the employer was required to pay under 33 U.S.C.A. § 933 (f), which provides, in part, for the payment of “a" }, { "docid": "22168322", "title": "", "text": "the employer of all right of the person entitled to compensation to recover damages against such third person.” Subdivision (e) of Sec. 33 prescribes how “Any amount recovered by such employer on account of such assignment * * * shall be distributed * * In assigning Sec. 33 (b) as the measure of an employer’s right to reimbursement for compensation and medical expenses paid on account of an injury to an employee where a third person is answerable in damages for inflicting the injury, we think that the appellant misconceives both the purpose and the scope cyf that provision and entirely ignores the right to subrogation which, under equitable principles, attaches where one, not acting officiously, pays money on account of a legal obligation resting upon him for the imposition whereof another is held pecuniarily responsible. See Restatement, Restitution, § 162, p. 653, and comment thereon. In the instant case, the employer’s payments, both of compensation and of medical expenses, were in accordance with and pursuant to its liability as prescribed by the Compensation Act and not otherwise. The employer, unless it controverted its liability, could not have doné other than pay compensation except it violate the requirements of Secs. 7 (a) and 14 (a) of the Act, 33 U.S.C.A. §§ 907 (a), 914 (a). No reasonable basis is present, therefore, for considering the employer’s payments either as gratuitous or as voluntary, as the appellant would have us do. As we have seen, Sec. 33 (a) gives the injured employee a right to elect either “to receive * * * compensation or to recover damages against [a] third person” where the injury for which compensation becomes payable is the fault of a third person. But Sec. 33 (a) does not provide that the employee shall have a right to both compensation from his employer and damages from responsible third persons. This, it seems to us, is an implicit recognition that the employer has a right to reimbursement for his outlay under the Compensation Act out of his employee’s adequate recovery from a third person in all cases regardless of whether" }, { "docid": "7979479", "title": "", "text": "was working. His widow and administratrix exercised her right under section 33 (a) of the act (33 USCA § 933 (a), and in April, 1930, brought a libel against the vessel. Her action was settled in November, 1930, with the approval of the employer of the injured workman, by the payment to the administratrix of the sum of $5,500. Under section 33 (g), if a compromise with a third person responsible for the injury is made with the consent of the employer, and the amount received under such compromise is less than the compensation to which the workman would be entitled under the act, “the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person.” (It is clear, we think, that there was an error in the reference to a previous section in subdivision (g) of section 33. The reference obviously should have been to subdivision (f) and not subdivision (e). On application to the commission, the deputy commissioner made an award requiring the employer and insurance carrier to pay an additional sum of $2,250 in a lump sum as a death benefit to the surviving wife and her minor children. From this award the employer and insurance carrier appealed, and it was set aside by the District Court [48 F.(2d) 283], on the ground that there was no basis for making such an award in a lump sum, and no evidence that the deputy commissioner, in making the award, proceeded under section 14 (j), (33 USCA § 914 (j), which provides for an award of a lump sum under certain conditions to be found by the deputy commissioner. The deputy commissioner afterward made the award here involved of $2,000 payable in weekly payments of $9.45 to the widow, and $2.70 weekly for the use of each of the minor children, or a total of $14.85, payments to date from December 7, 1929; the date of the workman’s death." }, { "docid": "22900648", "title": "", "text": "WEINFELD, District Judge. Libelant sustained injuries on board the lighter T. Willets during the course of his employment by Huron Stevedoring Corporation. Payment of compensation was promptly begun by the employer without an award as required by Section 14(a), 33 U.S.C.A. § 914(a) of the Longshoremen & Harbor Workers’ Act, hereinafter called the Act. Compensation payments and medical expenses so paid by the employer totalled $1,732.54. Thereafter libelant filed a notice of election to sue a third party pursuant to Section 33(a) of the Act, 33 U.S.C.A. § 933(a), and filed this libel to recover damages for the injuries sustained by him. Pennsylvania Railroad Company, one of the im-pleaded respondents, agreed to pay to libel-ant $4,000 in full settlement of his claim. Huron, libelant’s employer, has intervened and asserts a lien against the proceeds of the settlement for the $1,732.54 previously paid by it for compensation and medical expenses. Libelant resists the claim and the court is called upon to determine its validity. Basically, libelant’s position is that since Huron made its payments without an award and since the Act does not expressly give the employer a lien or other right of recoupment in such instances the employer is without redress. Section 33(b) of the Act, 33 U.S.C.A. § 933(b), as amended in 1938 and now in effect provides: “Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.” The 1938 amendment conditioned the assignment upon the acceptance of compensation “ ‘under an award in a compensation order filed by the deputy commissioner.’ ” Toomey v. Waterman S. S. Corp., 2 Cir., 123 F.2d 718, 720. Prior thereto the mere acceptance by the injured employee of compensation automatically operated as an assignment of any claim by him against a third party. Since, in the instant case, the compensation and medical payments were not made pursuant to an award, the right of action against the responsible third party was solely in" }, { "docid": "7979478", "title": "", "text": "WILSON, Circuit Judge. This is an appeal from a decree of the District Court for the District of Massachusetts dismissing the appellants’ bill to enjoin the enforcement of a compensation order made under the Act of March 4, 1927, entitled the “Longshoremen’s and Harbor Workers’ Compensation Act” chapter 509, 44 Slat. 1424 (33 USCA §§ 901-950). The appellants are the employer and insurance carrier, respectively, while the appellees are the deputy commissioner appointed under the act and the surviving wife, in whoso favor, for the benefit of herself and her minor children, the compensation order was made for injuries resulting in the death of her husband. Jurisdiction to restrain the enforcement of an order of the deputy commissioner is conferred upon the District Courts by section 21 (b) of the act (33 USCA § 921(b). Arthur Barnes, an employee of the Jarka Corporation of Boston, died on December 7, 1929, as the result of injuries received on Do eember 5,192-9, due to defective equipment of a vessel, owned by a third party, on which he was working. His widow and administratrix exercised her right under section 33 (a) of the act (33 USCA § 933 (a), and in April, 1930, brought a libel against the vessel. Her action was settled in November, 1930, with the approval of the employer of the injured workman, by the payment to the administratrix of the sum of $5,500. Under section 33 (g), if a compromise with a third person responsible for the injury is made with the consent of the employer, and the amount received under such compromise is less than the compensation to which the workman would be entitled under the act, “the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person.” (It is clear, we think, that there was an error in the reference to a previous section in subdivision (g) of section 33. The reference obviously should have been" }, { "docid": "12363549", "title": "", "text": "its satisfaction of record. The applicable provisions of the compensation act are contained in section 33, 33 U.S.C.A. § 933. The purpose of the act is to give to the injured employee or in the event of his death to his dependents, (a) the compensation provided by the act or (b) the amount recovered from a third party, whichever is the greater. The compensation benefits, however, are subject to the condition that, if the injured or the dependent desires to prosecute a claim against a third party, he must give notice of his election so to do under section 33 (a) of the act, 33 U.S.C.A. § 933 (a). When he has done this and prosecuted his claim to a conclusion, if the recovery is less than the amount payable under the act, the employer must under section 33 (f) pay the difference. If the claimant elects not to sue the third party but to take compensation, the employer is given by the act an assignment of the rights of the claimant against the third party and may institute suit and take the recovery, subject only to the payment to the claimant of any excess above the amount which the employer is required to pay. This brings us, then, to section 33 (g) — the part of the act vital in this case. This provides that, if the claimant elects to sue and thereafter compromises his claim, the employer shall not be liable for any difference between the amount of settlement and statutory compensation unless he consents in writing to the terms of the compromise. And here that is precisely what the employer did not do. But petitioner insists that section 33 (g) should be construed to bar her claim only where it is shown that the employer or carrier has sustained damage or is prejudiced by the settlement. To sustain this she relies upon Chapman v. Hoage, 296 U. S. 526, 56 S.Ct. 333, 80 L.Ed. 370. In that case the employee had been injured in the course of his employment in a collision between a truck and a" }, { "docid": "22168323", "title": "", "text": "and not otherwise. The employer, unless it controverted its liability, could not have doné other than pay compensation except it violate the requirements of Secs. 7 (a) and 14 (a) of the Act, 33 U.S.C.A. §§ 907 (a), 914 (a). No reasonable basis is present, therefore, for considering the employer’s payments either as gratuitous or as voluntary, as the appellant would have us do. As we have seen, Sec. 33 (a) gives the injured employee a right to elect either “to receive * * * compensation or to recover damages against [a] third person” where the injury for which compensation becomes payable is the fault of a third person. But Sec. 33 (a) does not provide that the employee shall have a right to both compensation from his employer and damages from responsible third persons. This, it seems to us, is an implicit recognition that the employer has a right to reimbursement for his outlay under the Compensation Act out of his employee’s adequate recovery from a third person in all cases regardless of whether the employer has become the assignee of the employee’s right of action against a third person by paying compensation “under an award” or has paid the compensation “without an award” — a procedure which the Act expressly directs employers to follow. See Sec. 14 (a). The case of Chapman v. Hoage et al., 296 U.S. 526, 528, 56 S.Ct. 333, 80 L.Ed. 370, appears to recognize that a right of subrogation, incident to the relationship of employer and employee, where a third person has been made to answer in commensurate damages for inflicting the compensable injury attaches because of the employee’s acceptance of compensation. Any construction of the Act which would deny an employer a right to reimbursement for compensation payments made in the circumstances here present because the compensation was not paid “under an award in a compensation order filed by the deputy commissioner” would necessarily impute an exclusory effect to Sec. 33 (b) which that provision neither expresses nor implies and would, moreover, defeat one of the principal expressed purposes of ' the" }, { "docid": "12363548", "title": "", "text": "933 (f), to any deficiency between the sum recovered and the amount allowable under the provisions of the act. Petitioner then commenced her action, but on February 3, 1936, without obtaining the consent of the employer or the carrier, settled and compromised it for $1,995.00. A verdict and a judgment entered in her favor were duly marked satisfied. On February 8, 1936 — just a few days after the compromise settlement — petitioner filed with the commissioner her claim for compensation under the act. On this state of facts the commissioner decided that petitioner was barred from any other or further remedy against the employer or carrier by reason of the provisions of section 33 (g) of the act, 33 U.S.C.A. § 933 (g). The question, therefore, is whether a claim for compensation under the act is barred by a settlement between the claimant and an alleged third party wrongdoer, made without the consent and agreement of the employer or insurance carrier— which settlement includes the entry of a judgment for an agreed amount and its satisfaction of record. The applicable provisions of the compensation act are contained in section 33, 33 U.S.C.A. § 933. The purpose of the act is to give to the injured employee or in the event of his death to his dependents, (a) the compensation provided by the act or (b) the amount recovered from a third party, whichever is the greater. The compensation benefits, however, are subject to the condition that, if the injured or the dependent desires to prosecute a claim against a third party, he must give notice of his election so to do under section 33 (a) of the act, 33 U.S.C.A. § 933 (a). When he has done this and prosecuted his claim to a conclusion, if the recovery is less than the amount payable under the act, the employer must under section 33 (f) pay the difference. If the claimant elects not to sue the third party but to take compensation, the employer is given by the act an assignment of the rights of the claimant against the third" }, { "docid": "7979482", "title": "", "text": "pays under the act. The injured workman, or, in case of his death, his representative, if the option under section 33 (a), (33 USCA § 933 (a) is exereised, brings the action against the third person in his own right, as though no Compensation Act existed, and is entitled to receive whatever he or his representative may recover unconditioned by the act. But, when the amount recovered is less than the sum the workman, or, in case of death, his dependents, would be entitled to receive under the .act, the employer must make up the difference. The act may be defective in not expressly providing how this difference should be paid, whether in installments or in a lump sum; but section 33 (f) provides that it shall be paid as “compensation under this chapter,” and section 14 (b) provides how “compensation under this chapter” shall be paid. Seasons may be assigned why Congress, in case of recovery of a third person, should have made the installments of any additional sum which the employer is compelled to pay under section 33 (f) begin at a different date than when the employer is required under section 14 (b) to pay the entire sum; but Congress has failed to do so, and we see no good reason for holding that the District Court erred in affirming the award of the deputy commissioner directing the due date of the installments to be computed from the date of death in accordance with section 14 (b). That, owing to the lapse of time since the workmen’s death, the award will result in the dependents now receiving the entire amount in one payment, since all the installments are now due, is not a sufficient reason' for adopting a date for beginning the weekly payments other than the only one provided in the act. A fair construction of the act in ease of weekly payments would require the first installment to be due on the seventh day after death, or after the employee has knowledge of the injury. Certainly any possible detriment to a widow and minors in" }, { "docid": "5613743", "title": "", "text": "A subsequent amendment, in 1959, delays the assignment of the right of action to six months from the date of the award. Until that time the employee is free to sue. Act of August 18, 1959, P.L. 86-171, 73 Stat. 391. As the Act directs employers to compensate injured longshoremen without an award, 33 U.S.C. § 914(a), unless the employer’s liability is controverted, most suits are brought by the longshoreman, entirely independent of the 1959 amendment to 33 U.S.C. § 933(b). The 1972 amendments do not substantially change the provisions of this section. . 33 U.S.C. § 933(e) reads: “Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows: (1) The employer shall retain an amount equal to— (A) the expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney’s fee as determined by the deputy commissioner or Board); (B) the cost of all benefits actually furnished by him to the employee under section 7 [§ 907 of this title]; (C) all amounts paid as compensation; (D) the present value of all amounts thereafter payable as compensation, such present value to be computed in accordance with a schedule prepared by the Secretary, and the present value of the cost of all benefits thereafter to be furnished under section 7 [§ 907 of this title], to be estimated by the deputy commissioner, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the cost of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative; and (2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer.” . By settling the suit against the shipowners, plaintiff terminated his employer’s future liability under the Act without a formal determination that the recovery from the third party equalled" } ]

[ { "docid": "17776228", "title": "", "text": "the agency is satisfied its solicitation is adequate, an expeditious continuation with the award process at hand. At present, the law does not require that Bannum do anything more than it did here. All that is required is that a protestor must have “done something” to challenge a solicitation prior to award to preserve its right to protest the solicitation in this Court. DGR Assocs., Inc. v. United States, 94 Fed.Cl. 189, 202-04 (2010) (“All [Blue & Gold] says is that a party must have done something prior to the closing date to protest the solicitation error, before raising ‘the same objection ... subsequently in the Court of Federal Claims.’ ” (quoting Blue & Gold, 492 F.3d at 1313)). Here, Bannum clearly objected to the incorporation of the PREA compliance requirements into the Solicitation in its March 7, 2013 letter to the contracting officer. Whether or not it properly constituted an agency protest, Bannum’s letter objected to the incorporation of PREA into the Solicitation and unequivocally sought clarification regarding the scope of any additional work required and warned that it needed guidance before it could price its compliance. In its March 7th letter, Bannum both “objected to” and “challenged” this Solicitation as required by Blue & Gold and COMINT. Bannum did not sit on its rights but instead elaborated in detail on its problems with the PREA compliance requirements incorporated by Amendment 005. As such, Bannum did not waive its right to challenge this Solicitation. The PREA Requirements Did Not Render The Solicitation Defective Bannum claims that the requirement that offerors comply with PREA rendered the Solicitation defective because BOP did not give any guidance regarding the implementation of the PREA requirement and thus made it impossible for an offeror to develop a PREA compliance plan, determine the scope of the work required, or calculate the cost impact. While Bannum may have had legitimate questions about PREA compliance, it has not demonstrated that the incorporation of PREA without further elaboration by BOP rendered the Solicitation defective. Many solicitations require compliance with statutes without offering guidance on how compliance must be" } ]

[ { "docid": "20842375", "title": "", "text": "site location to 3715 Broad River Road in Columbia, South Carolina (the Broad River Road property). Id. Tab 40. Bannum explained that it had applied to the Board of Zoning Appeals for a special exception to operate a halfway house at the Broad River Road property, and that the Board would consider the application at its June 5, 2014 meeting. Id. at 1340. On April 17, 2014, the BOP completed its revised technical evaluation of proposals. AR Tab 41. The agency again rated Ban-num’s proposal as deficient for the site location factor because Bannum had not submitted acceptable proof of zoning. Id. at 1455-56. The BOP found that Bannum’s proof of zoning for the Calhoun Street property had expired on December 1, 2013 and did not allow for the placement of all federal offenders, as required by the RFP. Id. at 1455-56; see id. at 95 (stating that the contractor “will accept all offenders for placement at the facility and manage any offender referred by the [BOP’s Regional Reentry Manager]”). That same day, the BOP eliminated Ban-num’s proposal from consideration for award, reasoning as follows: Bannum has failed to submit and maintain the required proof of zoning. In addition, Bannum’s proposed site change as indicated in its response to [Discussion Notice # 1] is not within the guidelines of section L.6(f)[] of the solicitation and cannot be accepted. The reasons for not accepting the site change were explained in detail in the BOP’s March 28, 2014 letter to Ban-num. Id. at 1476. VI. Bannum’s Second Protest in This Court Bannum filed its current protest on May 19, 2014, alleging that it was “improperly eliminated from the competitive range ... because of the BOP’s unreasonable and purposeful delay in issuing the corrective action, and their improper manipulation of the RFP terms and conditions.” Compl. ¶ 29; see also id. ¶¶ 22-25, 30. Plaintiff asserts that had the agency taken corrective action during Bannum’s agency protest or GAO protest, Bannum would not have been eliminated from consideration for award because its zoning special exception for the Calhoun Street property would not have" }, { "docid": "20842371", "title": "", "text": "the competitive range of proposals was improper because the agency’s decision resulted in a competitive range of one offeror. Id. Bannum re quested an injunction directing the BOP to reinstate Bannum’s proposal into the competitive range and to consider Bannum’s proposal for award. On January 16, 2014, before the filing of the administrative record in that case, the government filed notice that it would take corrective action by conducting a new competitive range determination in which it would evaluate Bannum’s proposal, including Bannum’s late-filed proof of zoning for the Calhoun Street property. Based upon the BOP’s planned corrective action, and pursuant to the parties’ joint stipulation of dismissal, Bannum’s protest was dismissed without prejudice on January 30,2014. Y. Corrective Action and Re-evaluation of Proposals The BOP allowed Bannum back into the competition on January 22, 2014, when it notified Bannum that it would evaluate Ban-num’s proposal for award, including Ban-num’s proof of zoning for the Calhoun Street property. AR Tab 33. Subsequently, in determining the new competitive range, the agency rated Bannum’s technical proposal as deficient for its site location. Id. at 1302. Despite this unfavorable rating, the BOP nevertheless included Bannum’s proposal in the new competitive range for the purpose of conducting discussions. Id. In its Discussion Notice # 1 issued to Ban-num on March 14, 2014, the BOP noted the following deficiencies with respect to Ban-num’s proof of zoning for the Calhoun Street property: 1. Bannum’s zoning letter ... states [that] “[residents shall be non-violent Federal offenders.” Please provide a definition from the city of Columbia, SC as to what is a non-violent federal offender. The statement of work (SOW) states that the contractor will accept all offenders for placement at the facility and manage any offender referred by the Regional Reentry Manager or their designee. 2. As stated in the corrective action for the Court of Federal Claims Bid Protest, Bannum’s zoning is accepted, but after an evaluation, it appears that Bannum’s zoning letter states [that] “[a]pproved use of this property must begin by December 1, 2013_” Please submit official docu- mentation that demonstrates that Bannum .has" }, { "docid": "20842385", "title": "", "text": "identify, Bannum’s grounds for protest. Instead, there is a free-flowing commentary on the actions of the BOP which includes phrases such as “egregiously bad faith behavior,” “attempt[ ] to improperly manipulate the bid protest/eorreetive action process,” “the corrective action was disingenuous from the outset,” and “the alleged corrective action was merely a subterfuge.” Compl. at 5-6. This commentary is then summarized without specifically identifying a particular violation of procurement law: Bannum was improperly eliminated from the competitive range, solely because of the BOP’s unreasonable and purposeful delay in issuing the corrective action, and them improper manipulation of the RFP terms and conditions_ [T]he BOP intentionally manipulated the corrective action process to further victimize Bannum. The BOP created a situation where it would be impossible for Bannum to comply with the terms of the Solicitation. If a corrective action was taken during either the Agency protest or GAO protest, Ban-num would not have lost its initial Special Exception. Because the BOP unreasonably and purposefully delayed the issuance of the corrective action, Bannum has again been victimized by the BOP’s improper actions. Additionally, Bannum has been further victimized by the BOP’s attempt to egregiously use the terms of the RFP to improperly deprive Bannum from exercising its rights under the corrective action. Such unconscionable actions cannot be tolerated. Id. at 7. The complaint was never amended to clarify the specific grounds of Bannum’s protest. Plaintiffs motion for judgment on the administrative record again sets forth contentions of bad faith, and adds a series of truncated legal arguments condemning the BOP’s treatment of Bannum. Under the heading of “The BOP Improperly Eliminated Bannum’s Original Proposal from the Competitive Range,” plaintiff alleges first that the agency waived, through delay, its ability to enforce the solicitation’s requirement for timely proof of zoning. Pl.’s Mot. at 10. No authority is cited for this proposition. Plaintiff also alleges that the BOP engaged in disparate treatment of the offerors regarding their proof of zoning. Id. at 11. Under the heading of bad faith, plaintiff argues that the BOP “never intended to appropriately consider Bannum’s proposal.” Pl.’s Mot. at" }, { "docid": "20842401", "title": "", "text": "finds none. AWS offered the BOP adequate and timely proof of zoning and Bannum did not. Because Bannum failed to comply with a material requirement of the competition, its proposal was eliminated. Plaintiffs protest based on a charge of disparate treatment cannot be sustained on this record. ■ B. The BOP’s Acceptance of AWS’s Past Performance Submission Was Rational Bannum also argues that disparate or unequal treatment tainted its elimination from the competition for deficiency in its proof of zoning, because at the same time AWS’s submission of an incomplete Past Performance proposal was excused by the BOP. Tr. at 36. This argument is entirely unsupported by relevant authority addressing, even by analogy, the question of whether the submission of five relevant contracts in a Past Performance volume is a material solicitation requirement in negotiated procurements such as this one. The solicitation provision regarding the submission of five relevant contracts in Volume III of an offer- or’s proposal is found in the solicitation’s Compliance Matrix. AR at 205-06. The court notes, first, that some of the required information regarding AWS’s five relevant contracts was provided in its Business Proposal (Volume II of its offer), under the heading “(5) Most Recent and Relevant Contracts in the Past Three Years.” See AR at 448-50. Additional information regarding these five contracts was accessible in a database commonly used by federal agencies, the Past Performance Information Retrieval System (PPIRS). In addition, three of the contracts identified by AWS in its Business Proposal were BOP contracts for residential reentry center services. The BOP considered the information contained in AWS’s proposal, both in the Past Performance volume and in the Business Proposal volume, as well as the information contained in PPIRS for all three BOP residential reentry center services contracts, to rate AWS’s proposal as acceptable for Past Performance. Id. at 1487. Although the court agrees with plaintiff that AWS’s proposal does not conform with the Past Performance submission requirements set forth in the solicitation, the court also agrees with defendant that the requirement for the submission of five relevant contracts was not a material term" }, { "docid": "20842388", "title": "", "text": "Oral Argument Transcript (Tr.) at 12. Plaintiffs counsel responded: “I think so.” Id. Defendant ably argues that a corrective action which moots a protest at this court also can moot challenges to pre-correc-tive action conduct of the agency. Def.’s Mot. at 16 (citing Galen Med. Assocs., Inc. v. United States, 56 Fed.Cl. 104 (2003) (Galen I), aff'd, 369 F.3d 1324 (Fed.Cir.2004) (Galen II)). Plaintiff does not agree but only offers a cursory, unclear and ultimately unpersuasive treatment of the issue: While a corrective action may render [a challenge to a prior solicitation process] moot, in this situation, the corrective action was simply to re-consider Bannum’s initial proposal. The evaluation process was not started anew.... By simply going back in time and reconsidering Bannum’s earlier proposal, outdated information was used. Since AWS was already operating the incumbent contract, and had an obligation to maintain zoning under that contract, AWS had an unfair competitive advantage. Pl.’s Reply at 6. Plaintiff never explains how its mootness analysis rebuts defendant’s citation to multiple authorities discussing the mootness of prior protest grounds once the agency has undertaken corrective action. See Def.’s Mot. at 16-18. The court therefore agrees with defendant that plaintiffs allegations of error focusing narrowly on Bannum’s first elimination from the competition are moot. The court lacks jurisdiction over plaintiffs claims, if any, that focus only on Bannum’s first elimination from the competition and other pre-corrective action conduct of the BOP. See Myers, 275 F.3d at 1369 (noting that mootness is a “threshold jurisdictional issue”). Defendant’s mootness challenge, however, must be rejected as to Bannum’s assertion that disparate treatment marred this procurement. See Pl.’s Mot. at 11 (“The BOP engaged in disparate treatment of the proposals with respect to zoning, in favor of AWS.”); Pl.’s Reply at 7 (“The alleged corrective action does not moot out this disparate treatment.”). The United States Court of Appeals for the Federal Circuit has addressed this issue, if obliquely. In Galen II, the Federal Circuit noted that an agency’s corrective action mooted allegations of pre-corrective action violations of law or regulation, but that pre-corrective action conduct might" }, { "docid": "17776221", "title": "", "text": "commencing contract performance on the first day of the month following the 120-day deadline, as a method to streamline contract administration tasks and simplify budgeting and accounting. Here, the 120 days ended the day before a federal holiday (Christmas) and the first day of the next month fell on another federal holiday (New Year’s Day). To avoid moving inmates on Christmas Eve or New Year’s Day, and since Bannum’s incumbent contract in Tupelo would run through February 1, 2014, the contracting officer unilaterally set February 1 as the start date. Def.’s Mot.App. 269-70 (citations omitted). This Contract involves moving federal offenders to a halfway house, and the logistics of effecting such moves are complex and require extensive coordination. See Def.’s Mot.App. A273-78 ¶¶4-5, 7-16. The contracting officer’s assessment that it would be preferable not to effect such moves on Christmas Eve or New Year’s Day was well within her discretion and consistent with the Solicitation and Dismas’ Contract. So too, the contracting officer’s decision to extend the start date until March 1, 2014, was within her discretion as it was prompted by the GAO stay and the ensuing stop work order. The contracting officer reasonably coordinated with Dismas to ascertain when Dismas could commence performance once the 97-day stop work order, spanning September 6, 2013 to December 12,2013, was lifted. Bannum further alleges that “Dismas’s proposal contained a material misrepresentation ... that its facility would be ready by the originally specified commencement date of December 24, 2013, or at least by the extended date of February 1, 2014.” PL’s Mot. 7. To establish material misrepresentation, a plaintiff must show that an offer- or’s misrepresentation was material and that the agency relied on the misrepresentation in awarding the offeror a contract. Blue & Gold Fleet, LP v. United States, 70 Fed.Cl. 487, 495 (2006) (citation omitted), aff'd, 492 F.3d 1308 (Fed.Cir.2007); GTA Containers, Inc. v. United States, 103 Fed.Cl. 471, 483 (2012) (citations omitted). The record before the Court does not establish that Dismas materially misrepresented its ability to commence performance within 120 days of contract award. Bannum argues that Dismas" }, { "docid": "20842386", "title": "", "text": "by the BOP’s improper actions. Additionally, Bannum has been further victimized by the BOP’s attempt to egregiously use the terms of the RFP to improperly deprive Bannum from exercising its rights under the corrective action. Such unconscionable actions cannot be tolerated. Id. at 7. The complaint was never amended to clarify the specific grounds of Bannum’s protest. Plaintiffs motion for judgment on the administrative record again sets forth contentions of bad faith, and adds a series of truncated legal arguments condemning the BOP’s treatment of Bannum. Under the heading of “The BOP Improperly Eliminated Bannum’s Original Proposal from the Competitive Range,” plaintiff alleges first that the agency waived, through delay, its ability to enforce the solicitation’s requirement for timely proof of zoning. Pl.’s Mot. at 10. No authority is cited for this proposition. Plaintiff also alleges that the BOP engaged in disparate treatment of the offerors regarding their proof of zoning. Id. at 11. Under the heading of bad faith, plaintiff argues that the BOP “never intended to appropriately consider Bannum’s proposal.” Pl.’s Mot. at 12. According to plaintiff, the record shows that “the BOP never truly intended to give Bannum a fair opportunity at earning the subject contract.” Id. at 14. Under the same heading, plaintiff argues that an agency’s corrective action must be reasonable under the circumstances. Id. at 12 (citing Sheridan Corp. v. United States, 95 Fed.Cl. 141, 151 (2010)). Finally, plaintiff challenges the number of contracts submitted by AWS in the Past Performance volume of its proposal as being insufficient, and claims that AWS’s proposal was therefore “technically unacceptable[ ] and subject to elimination from the competitive range.” Pl.’s Mot. at 15. Neither the complaint nor plaintiffs dis-positive motion exhibits analytical clarity as to whether the focus of plaintiffs bid protest is on pre-corrective action conduct, post-corrective action conduct, or both. At oral argument, the court inquired into this issue: So, once the corrective action has taken place, Bannum does not view that the playing field is even. You have to look back before the corrective action took place to measure whether equal treatment was given?" }, { "docid": "20842394", "title": "", "text": "the record with these documents. The court must deny the motion. The government represents that the existing record before the court contains the proposal AWS submitted to the BOP, as well as the BOP’s evaluation of that volume; it is the government’s evaluation of AWS’s Past Performance volume which must be reviewed by this court. It is irrelevant to that review whether AWS submitted more pages than the three pages of its Past Performance volume that were evaluated by the BOP. Because the declaration and attached document are not necessary for effective judicial review of the procurement actions in this bid protest, these documents shall not supplement the administrative record filed by the government in this case. VI. Analysis of the Merits A. Zoning Proof for AWS and Bannum 1. Plaintiffs Burden to Show Disparate Treatment Plaintiff alleges that the BOP was more lenient regarding AWS’s proof of zoning than it was for Bannum’s proof of zoning. The court notes first that AWS and Bannum were not similarly situated as to their proposed properties. AWS is the incumbent contractor operating the same halfway house that it proposes in its offer. Bannum, in contrast, proposed to convert a vacant former auto parts store, the Calhoun Street property, into a halfway house. AR at 806. Adequate proof of zoning could reasonably differ for the two proposed facilities. See 48 C.F.R. § 1.102-2(e)(3) (2013) (“Ml contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same.”). Furthermore, the BOP exercises discretion in determining the adequacy of proof of zoning, and its decisions in this regard will only be overturned if arbitrary and capricious. Bannum, Inc. v. United States, No. 07-109, 2007 WL 5172433, at *4 & n. 4 (Fed.Cl. May 21, 2007). The solicitation did not specify what constitutes “valid proof’ of zoning, but did indicate that failure to establish proof of zoning could “result in elimination prior to award.” AR at 45; see also id. at 208 (requiring “official documentation ... [of] zoning approval”). Evidence of disparate treatment, in these circumstances, requires more than a simplistic" }, { "docid": "20842384", "title": "", "text": "back into the competition, it is clear that the agency considered Bannum ■ to be a viable candidate for award and included Bannum in the competitive range of offer-ors. AR at 1302. This protest focuses on the entire course of conduct of the procurement and includes an allegation that there was disparate treatment of the offerors which favored AWS. If this allegation were proved to be correct, Bannum, one of only two offerors in the competitive range, would have a substantial chance of contract award once the agency corrected its procurement error or errors. This is enough to show standing in the circumstances of this procurement. IV. Mootness The government also argues that much of Bannum’s protest is moot because it concerns pre-corrective action conduct of the procuring agency. Def.’s Mot. at 16-18. The government’s mootness challenge has some merit. The court concedes, however, that the lack of clarity in plaintiffs presentation of its protest grounds makes a mootness analysis difficult. The complaint, for example, is not divided into counts which could differentiate, or even identify, Bannum’s grounds for protest. Instead, there is a free-flowing commentary on the actions of the BOP which includes phrases such as “egregiously bad faith behavior,” “attempt[ ] to improperly manipulate the bid protest/eorreetive action process,” “the corrective action was disingenuous from the outset,” and “the alleged corrective action was merely a subterfuge.” Compl. at 5-6. This commentary is then summarized without specifically identifying a particular violation of procurement law: Bannum was improperly eliminated from the competitive range, solely because of the BOP’s unreasonable and purposeful delay in issuing the corrective action, and them improper manipulation of the RFP terms and conditions_ [T]he BOP intentionally manipulated the corrective action process to further victimize Bannum. The BOP created a situation where it would be impossible for Bannum to comply with the terms of the Solicitation. If a corrective action was taken during either the Agency protest or GAO protest, Ban-num would not have lost its initial Special Exception. Because the BOP unreasonably and purposefully delayed the issuance of the corrective action, Bannum has again been victimized" }, { "docid": "20842362", "title": "", "text": "Pre-Award Bid Protest; Supplementation of the Administrative Record Not Appropriate; Rational Rejection of Protestor’s Bid for Failure to Provide Valid Proof of Zoning; No Evidence of Disparate Treatment of Offerors. OPINION AND ORDER Bush, Senior Judge. This pre-award bid protest arises out of Request for Proposals (RFP) No. 200-1198-SE, by which the United States Department of Justice, Federal Bureau of Prisons (BOP), seeks to procure residential reentry center services (a halfway house and attendant services) for federal offenders in Columbia, South Carolina. Bannum, Inc. (Bannum) filed a pre-award bid protest complaint on May 19, 2014 seeking declaratory and permanent injunctive relief associated with the BOP’s decision to eliminate Bannum’s proposal from the competitive range. Before the court is defendant’s motion to dismiss brought under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), and cross-motions for judgment on the administrative record filed by all parties. The administrative record (AR) was originally filed under seal on June 4, 2014, and was supplemented by the government on July 8,2014. Briefing was filed according to an expedited schedule and oral argument was held on July 22,2014. As discussed below, Bannum has standing to bring this suit; defendant’s motion to dismiss is therefore denied. The BOP’s decision to eliminate Bannum’s proposal from the competition, however, was proper. Accordingly, plaintiffs motion for judgment on the administrative record is denied, and defendant’s and intervenor-defendant’s motions for judgment on the administrative record are granted. BACKGROUND I. Request for Proposals On January 24, 2013, the BOP issued RFP No. 200-1198-SE to procure residential reentry center (halfway house) services for federal offenders in Columbia, South Carolina. AR Tab 1. The services include employment and residence development as well as other self-improvement opportunities, and are intended to assist federal offenders in their transition from prison to the community. Id. at 57. These services are to be provided in accordance with task orders issued pursuant to a firm-fixed price “indefinite delivery, requirements type contract” for a two-year base period, followed by three one-year option periods. Id. at 8; see also id. at 41. The original deadline" }, { "docid": "20842400", "title": "", "text": "request to the BOP on April 11, 2014, and noted that its prior zoning special exception had lapsed. AR at 1340. The alternate site is another vacant building, the Broad River Road property, and would require a zoning special exception that could not be considered by the Board of Zoning Appeals until June 4, 2014. Id. at 1340, 1391. The BOP eliminated Bahnum’s proposal from the competitive range on April 17, 2014, noting that Bannum’s proof of zoning for the former site was too restrictive (excluding violent offenders) and apparently expired, and that the alternate site could not be accepted because the site change request was untimely. Id. at 1432, 1476. The court finds nothing arbitrary or capricious in the BOP’s decision to eliminate Bannum from the competition for these reasons, and finds, too, that the BOP’s corrective action was a reasonable effort to provide Bannum with a fair chance of competing for the residential reentry services contract. Although Bannum asserts that disparate treatment regarding the proof of zoning requirement marred this procurement, the court finds none. AWS offered the BOP adequate and timely proof of zoning and Bannum did not. Because Bannum failed to comply with a material requirement of the competition, its proposal was eliminated. Plaintiffs protest based on a charge of disparate treatment cannot be sustained on this record. ■ B. The BOP’s Acceptance of AWS’s Past Performance Submission Was Rational Bannum also argues that disparate or unequal treatment tainted its elimination from the competition for deficiency in its proof of zoning, because at the same time AWS’s submission of an incomplete Past Performance proposal was excused by the BOP. Tr. at 36. This argument is entirely unsupported by relevant authority addressing, even by analogy, the question of whether the submission of five relevant contracts in a Past Performance volume is a material solicitation requirement in negotiated procurements such as this one. The solicitation provision regarding the submission of five relevant contracts in Volume III of an offer- or’s proposal is found in the solicitation’s Compliance Matrix. AR at 205-06. The court notes, first, that some of" }, { "docid": "20842372", "title": "", "text": "deficient for its site location. Id. at 1302. Despite this unfavorable rating, the BOP nevertheless included Bannum’s proposal in the new competitive range for the purpose of conducting discussions. Id. In its Discussion Notice # 1 issued to Ban-num on March 14, 2014, the BOP noted the following deficiencies with respect to Ban-num’s proof of zoning for the Calhoun Street property: 1. Bannum’s zoning letter ... states [that] “[residents shall be non-violent Federal offenders.” Please provide a definition from the city of Columbia, SC as to what is a non-violent federal offender. The statement of work (SOW) states that the contractor will accept all offenders for placement at the facility and manage any offender referred by the Regional Reentry Manager or their designee. 2. As stated in the corrective action for the Court of Federal Claims Bid Protest, Bannum’s zoning is accepted, but after an evaluation, it appears that Bannum’s zoning letter states [that] “[a]pproved use of this property must begin by December 1, 2013_” Please submit official docu- mentation that demonstrates that Bannum .has current zoning approval, and will maintain zoning through the life of the contract. This item is deficient. AR at 1307. The BOP directed Bannum to provide a response to Discussion Notice # 1 by March 28, 2014. Id. at 1306. On March 26, 2014, Bannum requested an extension of time in which to respond to Discussion Notice # 1. AR Tab 37. In its request, Bannum acknowledged that its zoning approval for the Calhoun Street property had lapsed and explained that it could not obtain new zoning approval for the Calhoun Street property because a school had moved into an adjacent property. Id. at 1326. Ban-num requested additional time “to negotiate a new lease or purchase a new property, affirm the zoning for the new property or apply for a Special Exception, [and to] create new floor plans, performance layout, 120-day availability and site plans as required by the solicitation.” Id. Bannum further noted that it was in the process of negotiating for a new site location with the owners of seven potential properties. Id." }, { "docid": "20842376", "title": "", "text": "eliminated Ban-num’s proposal from consideration for award, reasoning as follows: Bannum has failed to submit and maintain the required proof of zoning. In addition, Bannum’s proposed site change as indicated in its response to [Discussion Notice # 1] is not within the guidelines of section L.6(f)[] of the solicitation and cannot be accepted. The reasons for not accepting the site change were explained in detail in the BOP’s March 28, 2014 letter to Ban-num. Id. at 1476. VI. Bannum’s Second Protest in This Court Bannum filed its current protest on May 19, 2014, alleging that it was “improperly eliminated from the competitive range ... because of the BOP’s unreasonable and purposeful delay in issuing the corrective action, and their improper manipulation of the RFP terms and conditions.” Compl. ¶ 29; see also id. ¶¶ 22-25, 30. Plaintiff asserts that had the agency taken corrective action during Bannum’s agency protest or GAO protest, Bannum would not have been eliminated from consideration for award because its zoning special exception for the Calhoun Street property would not have lapsed prior to the agency’s re-evaluation of proposals. Id. ¶ 30. Because the BOP “knew or should have known” that Bannum’s special exception for the Calhoun Street property had expired by the time the agency took corrective action, plaintiff alleges that the corrective action was an improper “subterfuge” designed to “make it essentially impossible for Bannum to be included in the competitive range during the alleged re-evaluation.” Id. ¶¶ 24-25; see also id. ¶¶ 22-23. Based upon the agency’s alleged errors, Bannum seeks: (1) a declaration that it was improperly eliminated from the competitive range; (2) an injunction directing the BOP to reinstate Bannum’s proposal into the competitive range and to consider Bannum’s proposal for award; and (3) in the alternative, a court order “directing the cancellation of all bids, and that the contract be re-solicited.” Compl. at 8. DISCUSSION I. Bid Protest Jurisdiction This court “shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract" }, { "docid": "20842404", "title": "", "text": "impact on the qualitative evaluation of AWS’s past performance. The BOP rationally accepted the incomplete Past Performance volume provided by AWS and rationally rated AWS as acceptable for this evaluation factor. Finally, the court finds no disparate treatment in the BOP’s consideration of past performance information that was not included in AWS’s Past Performance volume, as compared with the elimination of Bannum from this competition for lack of proof of zoning. The past performance information relied upon by the BOP was “close at hand,” in that AWS had performed BOP residential reentry center services contracts and the PPIRS database included detailed information on the performance of those contracts. See Shaw Parsons Infrastructure Recovery Consultants, LLC, B-401679.4, 2010 CPD ¶77 (Comp.Gen. Mar. 10, 2010) (stating that “the very nature of the ‘close at hand’ principle ... reflects the duty of an agency to consider relevant information in its possession notwithstanding whether it was actually submitted by an offeror”); see also BCPeabody Constr. Servs., Inc. v. United States, 112 Fed.Cl. 502, 510 (2013) (holding that an agency should have clarified the protestor’s “copying error in assembling its offer” which omitted certain past experience information for its subcontractor, when that past experience information was already in the possession of the proposal evaluator). In contrast, adequate proof of zoning for Bannum’s proposed halfway house was not close at hand when the agency evaluated Bannum’s proposal — in the first instance, the proof of zoning was deficient because it was late (for the Calhoun Street property), and in the second instance, the proof of zoning had either lapsed and was too restrictive (for the Calhoun Street property) or did not yet exist (for the Broad River Road property). The court concludes that Bannum did not experience disparate treatment when the BOP rated AWS’s past performance as acceptable. CONCLUSION Accordingly, it is hereby ORDERED that (1) Plaintiffs Motion for Judgment on the Administrative Record, filed June 18, 2014, is DENIED; (2) Defendant’s Motion to Dismiss, filed July 2, 2014, is DENIED; (3) Defendant’s Cross-Motion for Judgment on the Administrative Record, filed July 2,2014, is GRANTED; (4)" }, { "docid": "11143811", "title": "", "text": "“To qualify as an ‘interested party,’ a protestor must establish that: (1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement.” Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed.Cir.2008). Here, plaintiff was an actual offeror, Compl. ¶¶ 29-30. The remaining issue is whether Akal has a “direct economic interest.” The United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that a bidder has a direct economic interest exists when it has a “greater than an insubstantial chance of securing the contract if successful on the merits of the bid protest.” Info. Tech. & Applications Corp. v. United States (Info. Tech.), 316 F.3d 1312, 1319 (Fed.Cir.2003). “The term ‘interested parties’ excludes those who did not submit proposals, bidders who withdrew from a solicitation, and offerors who were not competitively ranked for award.” Microdyne Outsourcing, Inc. v. United States, 72 Fed.Cl. 230, 232 (2006) (citing Impresa, 238 F.3d at 1334). A plaintiff “must show that there was a ‘substantial chance’ it would have received the contract award but for the alleged error in the procurement process. In other words, the protestor’s chance of securing the award must not have been insubstantial.” Info. Tech., 316 F.3d at 1319 (citation omitted). The government claims that Akal lacks standing because Akal “never had a ‘substantial chance’ to win [the BPAs].” Def.’s Resp. 22 (discussing Bannum, Inc. v. United States, 404 F.3d 1346, 1358 (Fed.Cir.2005) (“To establish prejudice [plaintiff] was required to show that there was a ‘substantial chance’ it would have received the contract award but for the [agency’s] errors in the bid process.”)). The government also states that Akal was “outside the ‘zone of active consideration.’ ” Id. (quoting Avtel Servs., Inc. v. United States, 501 F.3d 1259, 1262 (Fed.Cir.2007)). The government notes that Akal was not ranked first or second in either procurement. Id. at 23. The government argues that because Akal’s “quotes in response to both RFQs were outside the zone of consideration with respect to both technical factors and price" }, { "docid": "5376177", "title": "", "text": "eontract[,] ... it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.” Bannum, 404 F.3d at 1351. Plaintiff again bears the burden of proof, and must “show that there was a ‘substantial chance’ [plaintiff] would have received the contract award but for the [government’s] errors in the [procurement] process.” Id. at 1358 (citations omitted). If a protestor can show that there was a substantial chance that it would have won the contract award but for the procurement errors of the agency, prejudice has been established. Id. at 1353 (citations omitted). “Prejudice is a question of fact.” Id. (citing Advanced Data Concepts, 216 F.3d at 1057). IV. Standing Only a protestor possessing a substantial chance of winning the contract has a direct economic interest in the procurement and thereby standing before this court. Rex Service, 448 F.3d at 1307-08. Neither defendant nor intervenor-defendant challenges BayFirst’s standing to bring this protest. Here, BayFirst offered the lowest-priced proposal, and had better access to the incumbent HSA employees than any other offeror. But for the procurement errors alleged in the complaint, BayFirst had a substantial chance of receiving the contract award. For this reason, BayFirst has standing to bring this bid protest. V. Plaintiffs Challenge Plaintiff attacks the Department’s award decision on seven grounds: [T]he Agency (a) failed to determine that the awardee’s failure to provide resumes of the incumbent employees, to provide resumes that met the minimum requirements under the Solicitation and to provide required information on its past performance made the awardee ineligible under the terms of the Solicitation, (b) improperly and unreasonably evaluated BayFirst’s technical proposal including past performance, (e) improperly and unreasonably evaluated the awardee’s technical proposal including the awardee’s past performance, (d) failed to evaluate all documents provided to the Agency in support of BayFirst’s past performance, (e) evaluated BayFirst differently and under different requirements from those applied to the awardee, including subjecting BayFirst to requirements not found in the Solicitation, (f) failed to document its decision-making, and (g) failed to conduct a proper price/technical tradeoff analysis. PL’s Mot. at 4-5. Both" }, { "docid": "20842399", "title": "", "text": "timely obtain a current zoning special exception for the re-evaluation of its proposal. On March 14, 2014, the BOP notified Ban-num during discussions that its proof of zoning did not appear to be current, and that a condition of its zoning special exception did not conform to the solicitation’s requirements (that both violent and non-violent offenders be housed at the halfway house). AR at 1307. The BOP provided Bannum with two weeks to respond to this discussion notice, and upon request from Bannum, extended that deadline by another two weeks, to April 11, 2014. Id. at 1304, 1334. Bannum communicated to the BOP that its original proposed site for a halfway house, the Calhoun Street property, was no longer eligible for a zoning special exception, because a school had moved into a neighboring property, and outlined its intention to find a new site. Id. at 1326. The BOP warned Bannum that a change of site request would be untimely pursuant to the terms of the solicitation. Id. at 1334-35. Bannum nevertheless submitted a site change request to the BOP on April 11, 2014, and noted that its prior zoning special exception had lapsed. AR at 1340. The alternate site is another vacant building, the Broad River Road property, and would require a zoning special exception that could not be considered by the Board of Zoning Appeals until June 4, 2014. Id. at 1340, 1391. The BOP eliminated Bahnum’s proposal from the competitive range on April 17, 2014, noting that Bannum’s proof of zoning for the former site was too restrictive (excluding violent offenders) and apparently expired, and that the alternate site could not be accepted because the site change request was untimely. Id. at 1432, 1476. The court finds nothing arbitrary or capricious in the BOP’s decision to eliminate Bannum from the competition for these reasons, and finds, too, that the BOP’s corrective action was a reasonable effort to provide Bannum with a fair chance of competing for the residential reentry services contract. Although Bannum asserts that disparate treatment regarding the proof of zoning requirement marred this procurement, the court" }, { "docid": "17776218", "title": "", "text": "finding a likelihood of success on the merits — the Court deems it prudent to examine Bannum’s protest grounds and assess their likelihood of success on the merits. BOP’s Alleged Relaxation Of A Solicitation Requirement and the Awardee’s Alleged Material Misrepresentation Bannum alleges that BOP improperly relaxed the mandatory Solicitation requirement that performance commence within 120 days of award. Although BOP awarded the contract to Dismas on August 26, 2013, the agency did not require performance to commence until February 1, 2014 — 38 days later than the date Bannum claims the Solicitation required, i.e., December 24, 2013. Further compounding this alleged illegality was the agency’s additional post-award extension of the start date until March 1, 2014. Bannum contends that by extending the commencement date for Dis-mas, BOP improperly skewed the playing field in favor of Dismas and required offer- ors to meet different start date requirements. Bannum further makes the serious allegation that Dismas materially misrepresented its ability to commence performance within 120 days of award. The evidence before the Court at this juncture does not bear out these allegations. Section L.6(j) of the Solicitation stated in pertinent part: “Contract performance will be 120 days after the date of contract award, unless otherwise specified by the Contracting Officer.” PX 1 at 000034 (emphasis added). Contrary to Bannum’s allegation, the Solicitation did not mandate a hard-and-fast deadline by which contract performance had to occur. Rather, the Solicitation clearly authorized the contracting officer to “otherwise specify” a date to commence contract performance. As such, by setting performance to commence on February 1, 2014, instead of on the 120th day after award — December 24, 2013 — BOP did not relax a solicitation requirement or deprive Bannum of the opportunity to compete on a fair and level playing field. While the Solicitation indicated that the ability to commence performance within 120 days was important and that offerors would be evaluated on their ability to meet such a schedule, the Solicitation also expressly permitted the contracting officer to deviate from the 120-day post-award performance start date. As such, this is not an example" }, { "docid": "19300797", "title": "", "text": "“given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 661 (2010) (citing Bannum, 404 F.3d at 1355-56). In other words, in evaluating the parties’ cross-motions, the Court considers whether the “protestor has met its burden of proof that an award is arbitrary, capricious ... or violates to prejudicial effect an applicable procurement regulation.” Tech. Sys., 50 Fed.Cl. at 222. The Court may make findings of fact where necessary. Bannum, 404 F.3d at 1356. The existence of a material issue of fact, however, does not prohibit the Court from granting a motion for judgment on the administrative record, and the Court is not required to conduct an evidentiary proceeding. See id. at 1357 (instructing the Court of Federal Claims to make factual findings under RCFC 52 “as if it were conducting a trial on the record”). In this case, the relevant facts are not in dispute. Discussion A. DGR Did Not Waive Its Right to Bring Suit in This Court Defendant and the awardee, General Trades & Services, argue that the Court lacks jurisdiction over DGR’s protest because DGR did not file suit in this Court until well after the closing date for receipt of proposals. They contend that, to challenge a defect in the procuring agency’s solicitation, the protester must file suit in the Court of Federal Claims before the close of the bidding process. (Def.’s July 9, 2010 Mot. 20-27; Defendant-Intervenor’s July 9, 2010 Mot. 3-6.) They principally rely upon three cases in support of their proposition: Blue & Gold, Fleet L.P. v. United States, 492 F.3d 1308 (Fed.Cir.2007); Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed.Cir.2009); and Esterhill Boat Service Corp. v. United States, 91 Fed.Cl. 483 (2010), appeal docketed, No.2010-5074 (Fed.Cir. Feb. 16, 2010). A protest of an alleged defect in an agency’s solicitation can be lodged in different venues. A prospective offeror can file an “agency-level protest” by protesting to the procuring agency that a flaw in the solicitation should be" }, { "docid": "20842383", "title": "", "text": "and application of the procurement regulations.’ ” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.Cir.1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C.Cir.1971)). III. Standing The court begins by addressing the threshold issue of Bannum’s standing, which the government contests. See Def.’s Mot at 13-15; Def.’s Reply at 2-4. As previously stated, to establish standing Bannum must show that it is an actual or prospective bidder whose direct economic interest is affected by the award of the contract — i.e., that Bannum is an interested party prejudiced by the errors alleged to have been made by the agency. ITAC, 316 F.3d at 1319. It is undisputed that Bannum is an actual bidder for this procurement. Thus, the only disputed issue is whether Bannum has demonstrated prejudice by showing a substantial chance that it would have received the contract award but for the alleged errors in the procurement process. Orion, 704 F.3d at 1348. Bannum has standing to bring this protest. Once the BOP took corrective action and allowed Bannum back into the competition, it is clear that the agency considered Bannum ■ to be a viable candidate for award and included Bannum in the competitive range of offer-ors. AR at 1302. This protest focuses on the entire course of conduct of the procurement and includes an allegation that there was disparate treatment of the offerors which favored AWS. If this allegation were proved to be correct, Bannum, one of only two offerors in the competitive range, would have a substantial chance of contract award once the agency corrected its procurement error or errors. This is enough to show standing in the circumstances of this procurement. IV. Mootness The government also argues that much of Bannum’s protest is moot because it concerns pre-corrective action conduct of the procuring agency. Def.’s Mot. at 16-18. The government’s mootness challenge has some merit. The court concedes, however, that the lack of clarity in plaintiffs presentation of its protest grounds makes a mootness analysis difficult. The complaint, for example, is not divided into counts which could differentiate, or even" } ]

[ { "docid": "21161321", "title": "", "text": "made upon the Commissioner of Corporations and Taxation, with subsequent notice to Pittsburgh, pursuant to Mass.G.L., c. 181, § 4, was sufficient to give the Courts of Massachusetts, and therefore this Court, jurisdiction over that foreign corporation. Coakley v. Frank A. Munsey Co., 50 F.Supp. 83 (D.Mass.1943); Zucco v. Dobeckmun Company, 152 F.Supp. 369 (D.Mass.1957); Radio Shack Corp. v. Lafayette Radio, 182 F.Supp. 717 (D.Mass.1960). As to whether the plaintiff may use a petition for declaratory judgment as a remedy in this action, 28 U.S.C.A. § 2201 provides that “any court of the United States, upon filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Rule 57, Federal Rules of Civil Procedure, 28 U.S.C.A., states, “The existence of another adequate remedy does not preclude a judgment for declaratory relief where it is appropriate.” The question of whether a judgment for declaratory ruling is appropriate rests largely in the discretion of the Court. Larson v. General Motors Corp., 134 F.2d 450 (C.A.2, 1943); Moore’s Federal Practice, Vol. 6, 57.08(3), pp. 3031, 3032. It has been held that if the existence of a contract from which spring rights and obligations is in controversy, the Court has the power to declare what the legal relations of the parties are. New York Life Ins. Co. v. London, 15 F.Supp. 586, 590 (D.Mass.1936). Paragraph 10 of the plaintiff’s petition, it should also be noted, alleges that Pittsburgh still has an obligation to perform under the terms of the contract. Under the circumstances of this case, declaratory judgment procedure is available as a remedy, particularly where the plaintiff alleges that it still has a contractual right based on an executory obligation. The fact that plaintiff may have another remedy which it could utilize does not preclude its use of the procedure chosen. The motions to dismiss are denied." } ]

[ { "docid": "5492868", "title": "", "text": "to sue. In sum, Gen-Probe has shown no actual controversy in this case and thus no facts supporting jurisdiction. Gen-Probe further argues that the Declaratory Judgment Act facilitates a determination of rights and obligations before either party breaches the agreement. In support, Gen-Probe cites the following language in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 242, 57 S.Ct. 461, 81 L.Ed. 617 (1937): “Such a [contractual] dispute is manifestly susceptible of judicial determination. It calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts.” While this language suggests that a litigant may sue to determine contract rights before a breach, this 1937 Supreme Court case did not involve a declaratory judgment action instituted by a patent licensee in good standing. Rather, an actual controversy arose between an insured and his insurance company over the refusal to pay disability benefits. Because the insured believed that his beneficiary was entitled to the disability benefits, he ceased paying the premiums. As a result, the insurer sought to nullify the policies for nonpayment of the premiums. Thus, the insurer identified an actual controversy “as to existence of the total and permanent disability of the insured and as to the continuance of the obligations asserted despite the nonpayment of premiums.” Id. at 239, 57 S.Ct. 461. The Supreme Court agreed and held that the controversy was indeed justiciable. Id. at 244, 57 S.Ct. 461. Gen-Probe does not cite any declaratory judgment contract case in which the totality of circumstances is even remotely similar or analogous to those in this case. In fact, this court has considered Gen-Probe’s other arguments but finds none persuasive. Moreover, permitting Gen-Probe to pursue a lawsuit without materially breaching its license agreement yields undesirable results. Vysis voluntarily relinquished its statutory right to exclude by granting Gen-Probe a nonexclusive license. In so doing, Vysis chose to avoid litigation as an avenue of enforcing its rights. Allowing this action to proceed would effectively defeat those contractual covenants and discourage patentees from granting licenses. In other words, in this situation, the li-censor" }, { "docid": "17338683", "title": "", "text": "seeks a declaration of Sentry’s obligations under the 1989 and 1990 policies (Docket Entry #51, ¶ 48(f)), the underlying breach of contract claim is barred under the known loss rule as to the 1990 policies and not as to the 1989 policies for reasons explained infra. Hence, the declaratory judgment claim seeking a declaration that the judgment is covered under the 1989 policies (Docket Entry # 51, ¶ 48(f)), is timely. . On appeal, after remand, Sterilite Corporation v. Continental Casualty Company, 20 Mass.App.Ct. 215, 479 N.E.2d 205 (1985), the SJC reversed the judgment on other grounds, Sterilite Corporation v. Continental Casualty Company, 397 Mass. 837, 494 N.E.2d 1008 (1986). . In Berkshire Mutual Insurance Company v. Burbank, 664 N.E.2d at 1189, the insurer did not repudiate the contract. See generally Restatement (Second) of Contracts § 250(a) (1981) (defining repudiation as statement \"indicating that obligor will commit a breach”). Instead, Berkshire committed an actual breach of the contract by refusing to submit to arbitration. Similarly, the insurance agent . sued in International Mobiles Corporation v. Corroon & Black/Fairfield & Ellis, Inc., 560 N.E.2d at 126, did not repudiate the contract but, instead, committed a breach by not procuring adequate coverage. . Although not cited by either party, the Massachusetts Appeals Court decided, without extensive analysis and without distinguishing between the duties to defend and indemnify, that an insurer breached its contractual obligation when it disclaimed any obligation to defend or indemnify the insured. Lumbermens Mutual Casualty Company v. Y.C.N. Transportation Company, Inc., 46 Mass.App.Ct. 209, 705 N.E.2d 297, 301 (1999), review denied, 429 Mass. 1104, 709 N.E.2d 1121 (1999). This finding in Lumber-mens, however, was not necessary to its decision inasmuch as the court found that the statute of limitations was waived irrespective of when the cause of action accrued. Lumbermens Mutual Casualty Company v. Y.C.N. Transportation Company, Inc., 705 N.E.2d at 301. . Similarly, as noted by the First Circuit, the difficulties concerning a determination of indemnity coverage involving latent perils such as the accumulation of hazardous waste \"may become unmanageable in the abstract setting preceding a judicial determination" }, { "docid": "2928981", "title": "", "text": "would be time-barred. See 28 U.S.C. § 2501. However, in its Response, plaintiff states that the statute of limitations did not begin to run on any of its claims “until the Government made clear its intent to abandon its drainage obligation in September of 2010 with the Feinstein letter.” Pl.’s Resp. 28. To the extent that this statement may be understood to retract any allegations of repudiation prior to the Fein-stein Letter, plaintiffs claim of repudiation of a contractual drainage obligation would be viewed as having allegedly occurred in 2010 and would survive the statute of limitations. However, because plaintiff has shown neither that such a contractual drainage obligation existed to be repudiated nor that the Fein-stein Letter constituted a repudiation, this claims fails to survive defendant’s motion. See supra Part III.A.2.C. e. Claim Six: Declaratory Relief Because “claims for declaratory relief necessarily derive from claims for substantive relief,” the statute of limitations for the underlying action at law generally is applied to an accompanying action for declaratory relief. 26 C.J.S. Declaratory Judg ments § 120 (2012). Here, plaintiff requests that, in the event that it is not granted money damages for its claims one through five, it be granted declaratory judgment “adjusting [for inflation] its obligation to pay for construction of a drainage system under the 1965 Repayment Contract or similar contracts to be executed in the future.” Compl. ¶ 165; see id. at 52. Plaintiff argues that such relief is warranted because of the “escalation in construction costs ... due to the Government’s breach of its obligation to build the required drainage system in a timely manner.” Id. ¶ 171. To the extent that plaintiffs claims of breach of a contractual drainage obligation survive the statute of limitations, see supra Parts III.B.l.a-d, plaintiffs claim for declaratory relief derived from those claims also survives the statute of limitations, see 26 C.J.S. Declaratory Judgments § 120. However, as discussed above, plaintiff has failed to state a claim for declaratory judgment on which relief can be granted. See supra Part III.A.3. Further, plaintiffs claim for declaratory relief is not within the" }, { "docid": "5113072", "title": "", "text": "not settle the controversy. They argue, however, that it would be useful for determining whether Plaintiffs can proceed on a breach of contract theory or must instead pursue the quasi-contractual and tort theories that have been pled in the alternative. Plaintiffs also maintain that there is no better alternative remedy. In the Court’s view, this is not an appropriate case in which to entertain a declaratory judgment action. Declaratory judgment is typically sought before an injury-in-fact has occurred. National Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.1997). “It gives a means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy and in cases in which a party who could sue for coercive relief has not yet done so.” It thereby minimizes “the danger of avoidable loss and unnecessary accrual of damages.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2751 (3d ed. 1998). Here, Plaintiffs’ claims have already ripened into a cause of action, and Plaintiffs have sought damages under several alternative theories. Although the existence of other remedies does not preclude a declaratory judgment action, it is one of the factors that must be considered in determining whether declaratory judgment is appropriate. In this ease, a declaratory judgment concerning the validity and enforceability of the various agreements would not settle the entire controversy. Regardless of how the Court resolved that question, Plaintiffs would presumably still pursue their other causes of action, seeking monetary damages either in contract or in tort. The validity and enforceability of the contracts have already been placed at issue, and Plaintiffs’ claim for damages is a better and more effective remedy. The Court therefore agrees with Defendant that the declaratory judgment claim is duplicative and should be dismissed. See Florists’ Transworld Delivery, Inc. v. Fleurop-Interflora, 261 F.Supp.2d 837 (E.D.Mich.2003) (dismissing declaratory judgment claim because relief sought was redundant in light of relief sought for breach of contract). b. Quasi Contract Claims and Tort" }, { "docid": "7756387", "title": "", "text": "ORDER HODGES, Chief Judge. This is a diversity action in which the Plaintiffs have filed an amended complaint seeking a declaratory judgment (Counts I and II), and damages for breach of contract (Count III). Plaintiffs allege that certain of their liability insurers, Defendants Columbia Casualty Company (“Columbia”), Constitution State Insurance Company (“Constitution”), Federated Mutual Insurance Company (“Federated”), Northbrook Property and Casualty Insurance Company (“Northbrook”), Pacific Insurance Company (“Pacific”) and Reliance Insurance Company (“Reliance”) (collectively “Defendants”), have failed to defend and indemnify them in connection with another legal proceeding filed against them, Michael J. Barras, d/b/a Mike’s Indian Rocks Amoco, et al v. Lazzara Oil Co. et al (“Barras suit”), as the Defendants were contractually obligated to do. Before the Court are motions for summary judgment filed by the Plaintiffs and each Defendant. Since the Defendants’ motions raise similar arguments, they will be treated collectively unless otherwise specifically noted. The insurance contracts between each Defendant and the Plaintiffs are substantially similar with respect to the type of claims covered. The contracts provide that the Defendants will provide coverage for, i.e., defend and indemnify , Plaintiffs in the event of personal or advertising injury or property damage which arises out of an “occurrence.” “Personal injury” is defined to include liability arising out of a wrongful eviction or entry or similar invasion of the right of private occupancy. “Advertising injury” is defined as an injury arising out of a tort committed in the course of the Plaintiff’s advertising activities, if such injury arises out of, inter alia, defamation, violation of right of privacy or unfair competition. “Property damage” means physical injury to or destruction of tangible property including the loss of use thereof, or loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. Finally, “occurrence” is defined as an accident which results in bodily injury or property damage neither expected nor intended from the standpoint of the Plaintiffs. Plaintiffs assert that, as a matter of law, the above noted contractual provisions establish that Defendants" }, { "docid": "11441563", "title": "", "text": "of contract claim. Mot. at 15. Relying on Gamble v. GMAC Mortgage Corp., No. 08-5532, 2009 WL 400359 (N.D.Cal. Feb. 18, 2009), and Household Financial Services, Inc. v. Northern Trade Mortgage Corp., No. 99-2840, 1999 WL 782072 (N.D.Ill. Sept. 27, 1999), Adobe contends that Plaintiffs’ claim therefore falls outside the scope of the Declaratory Judgment Act. Id. Adobe miseharacterizes Plaintiffs’ declaratory relief claim. In both Gamble and Household Financial, the plaintiffs sought a judicial decree stating that the defendants had breached their contractual obligations. Gamble, 2009 WL 400359, at *2 (“[P]laintiffs want the court to issue a declaratory judgment declaring that defendants breached the forbearance agreements”); Household Fin., 1999 WL 782072, at *3 (“Plaintiff does not request the court to clarify the parties’ rights under the loan purchase agreement. Rather, plaintiff requests a judicial declaration that defendant breached the agreement.”). That is not what Plaintiffs seek here. As discussed above, Plaintiffs seek a declaration clarifying Adobe’s ongoing contractual obligation to provide reasonable security. Opp’n at 15; Compl. ¶ 124 (“Plaintiffs ... seek a declaration [ ] that Adobe’s existing security measures do not comply with its contractual obligations .... ” (emphasis added)). Plaintiffs’ claim thus requests precisely the type of relief that the Declaratory Judgment Act is supposed to provide: a declaration that will prevent future harm from ongoing and future violations before the harm occurs. See, e.g. Minn. Min. & Mfg. Co. v. Norton Co., 929 F.2d 670, 673 (Fed.Cir.1991) (“In promulgating the Declaratory Judgment Act, Congress intended to prevent avoidable damages from being incurred by a person uncertain of his rights and threatened with damage by delayed adjudication.”). As the Court finds that Plaintiffs are not seeking a declaration that Adobe was in breach of a contract at the time of the 2013 data breach, the Court concludes that Plaintiffs are not required to plead the elements of a breach of contract claim. The Court therefore declines to dismiss Plaintiffs’ declaratory relief claim on this basis. For the foregoing reasons, the Court finds that Plaintiffs have plausibly pleaded that they fulfill both Article Ill’s standing requirements and the" }, { "docid": "2928864", "title": "", "text": "Breach of Contract Claims; Declaratory Judgment; Motion to Dismiss Under RCFC 12(b)(1) and 12(b)(6) OPINION AND ORDER HEWITT, Chief Judge Westlands Water District (plaintiff or Westlands), a water district in the state of California, buys and distributes water from the San Luis unit of the Central Valley project, which is administered by the Bureau of Reclamation of the Department of the Interi- or (Interior). Compl., Docket Number (Dkt. No.) 1, ¶¶2, 5, 12. Westlands brings this action alleging various breaches of a purported contractual obligation of the United States government (defendant or the government) to provide drainage to Westlands, based on the government’s failure to provide water drainage facilities and services. See id. ¶¶ 5-7. Specifically, plaintiff states six claims for relief. The first two claims present alternative breach of contract theories: (1) past breaches of express contractual drainage obligations, Compl. ¶¶ 131-36; or, in the alternative, (2) past breaches of implied contractual drainage obligations, id. ¶¶ 137-42. The third, fourth and fifth claims are dependent on the court’s finding a contractual duty to provide drainage: (3) past breaches of implied contractual obligations of good faith and fair dealing, id. ¶¶ 143-50; (4) total breach of contract regarding drainage obligations, id. ¶¶ 151-56; and (5) anticipatory breach of contract regarding drainage obligations, id. ¶¶ 157-63. Finally, plaintiff states an alternate claim for relief, should the court find neither a total nor anticipatory breach of contract, as alleged in claims four and five, respectively: (6) declaratory judgment adjusting any amounts due by Westlands pursuant to present and future repayment contracts so that Westlands will not have to repay the government higher actual costs of construction under those contracts, as a result of inflation, than it would have had to pay if construction had not been delayed. Id. ¶¶ 164-76. In connection with (and as a condition of) its claims for total breach and anticipatory breach, plaintiff also seeks a declaration of the severability of defendant’s contractual obligation to provide water service from defendant’s purported contractual obligation to provide drainage. Id. ¶¶ 156, 163; Corrected Response to Motion to Dismiss (plaintiffs Response" }, { "docid": "2928982", "title": "", "text": "120 (2012). Here, plaintiff requests that, in the event that it is not granted money damages for its claims one through five, it be granted declaratory judgment “adjusting [for inflation] its obligation to pay for construction of a drainage system under the 1965 Repayment Contract or similar contracts to be executed in the future.” Compl. ¶ 165; see id. at 52. Plaintiff argues that such relief is warranted because of the “escalation in construction costs ... due to the Government’s breach of its obligation to build the required drainage system in a timely manner.” Id. ¶ 171. To the extent that plaintiffs claims of breach of a contractual drainage obligation survive the statute of limitations, see supra Parts III.B.l.a-d, plaintiffs claim for declaratory relief derived from those claims also survives the statute of limitations, see 26 C.J.S. Declaratory Judgments § 120. However, as discussed above, plaintiff has failed to state a claim for declaratory judgment on which relief can be granted. See supra Part III.A.3. Further, plaintiffs claim for declaratory relief is not within the court’s subject matter jurisdiction, as explained below. See infra Part. III.B.2. 2. This Court Lacks Jurisdiction to Grant the Declaratory Relief Sought by Plaintiff Plaintiff requests two types of declaratory judgment. First, plaintiff requests that, in the alternative to money damages pursuant to claims one through five, the court grant declaratory judgment pursuant to claim six, adjusting plaintiffs payment obligations related to drainage construction costs “based on inflation adjusted dollars going back to the period when the work should have been done.” Compl. 52; see Pl.’s Resp. 46-47. Plaintiff also seeks declaratory relief in connection with claims four and five of the sev-erability of defendant’s contractual obligation to provide water service from its alleged contractual obligation to provide drainage, Pl.’s Resp. 46; see Compl. ¶¶ 156,163, and an accompanying declaration that, while defendant remains obligated under its water supply contracts to supply water to Westlands and is required in good faith to negotiate for a long-term extension, plaintiff is “relieved of all further responsibility to pay for drainage services or facilities under its contracts” with" }, { "docid": "10858237", "title": "", "text": "MEMORANDUM OPINION AND ORDER TEITELBAUM, District Judge. Plaintiff, Aluminum Company of America (ALCOA), brought the instant action against defendant, Essex Group, Inc. (Essex), in three counts. The first count requests the Court to reform or equitably adjust an agreement entitled the Molten Metal Agreement entered into between ALCOA and Essex. The second count alleges that the Molten Metal Agreement was modified by oral amendment and that Essex has breached the amended agreement. The second count seeks a declaratory judgment that the alleged breach by Essex excuses ALCOA’s further performance and seeks as well an award of damages caused by the alleged breach of Essex. The third count asks for a declaratory judgment that ALCOA’s prior notice of termination of the Molten Metal Agreement was proper or, in the alternative, that ALCOA may terminate the Molten Metal Agreement if it be determined by this Court to be a contract for the sale of goods. Essex denies all of ALCOA’s material allegations. Essex further counterclaims that ALCOA is liable to it for damages based on ALCOA’s failure to deliver to Essex the amounts of molten metal ALCOA is contractually obligated to deliver under the Molten Metal Agreement and seeks entry of an order specifically enforcing its right to receive molten aluminum from ALCOA in the amounts requested. Jurisdiction is based upon diversity of citizenship and amount in controversy and is one of the few issues in the case sub judice not in dispute. In 1966 Essex made a policy decision to expand its participation in the manufacture of aluminum wire products. Thus, beginning in the spring of 1967, ALCOA and Essex negotiated with each other for the purpose of reaching an agreement whereby ALCOA would supply Essex with its long-term needs for aluminum that Essex could use in its manufacturing operations. By December 26, 1967 the parties had entered into what they designated as a toll conversion service contract known as the Molten Metal Agreement under which Essex would supply ALCOA with alumina which ALCOA would convert by a smelting process into molten aluminum. Under the terms of the Molten Metal Agreement," }, { "docid": "11225599", "title": "", "text": "agreements were supported by consideration and are hence irrevocable, and that plaintiffs are therefore entitled to bring an action for anticipatory breach. They seek relief in the form of specific performance of the 1989 option agreement, contending that they have no adequate legal remedy. If for any reason the court determines the 1989 agreement to be invalid, the plaintiffs in the alternative seek specific performance of the 1982 option agreement. The doctrine of anticipatory repudiation permits a party to bring suit for breach of contract in advance of the time the contract calls for the other party to perform, if the other party has repudiated the contract. See John D. Calamari & Joseph M. Perillo, The Law of Contracts 521 (3d ed. 1987) [hereinafter Calamari on Contracts ]. In this case, there is no genuine dispute that the defendants have repudiated the option agreements by communicating to the plaintiffs their intent to revoke. The issue in this case is whether the plaintiffs are entitled to bring suit for anticipatory breach of contract to enforce an option contract that is expressly conditioned upon the death of Frances H. Giblin, who is still living. The defendants rely on Cornett v. Roth, 233 Kan. 936, 666 P.2d 1182 (1983), arguing that the doctrine of anticipatory repudiation applies only to contracts in which there are mutual and interdependent obligations. In Cornett, the Kansas Supreme Court held in essence that the doctrine applies only to bilateral executory contracts, under which contractual obligations remain to be performed by both parties to the contract. See 666 P.2d at 1188-89. The court does not agree with the defendants’ assertion that the option agreements in question do not involve mutual and interdependent obligations. The agreements require the defendants to transfer their 770 shares in the bank holding company in exchange for payment of a sum of money by the plaintiff holding company within one year after the death of Frances Giblin, assuming the holding company elects to exercise its option to purchase the shares. Neither party to the agreement has performed their respective contractual obligations. Cornett v. Roth simply" }, { "docid": "23611136", "title": "", "text": "previous month by the 20th was a plain obligation of plaintiff. It is familiar law that under an executory contract, dependent on mutual obligations, the party asking damages must allege and show he has discharged his obligation, — is not in default. This was a contract for weekly shipments, which were made, — true, not in as great quantities as ordered, but, as has been seen, this shortage was not complained of, was provided for by the strike clause, and for the particular times condoned by plaintiff, if they amounted to a breach,— and for monthly payments. All the provisions of the contract were important to the parties. Defendant needed the money in its business, and that it should have it on the 20th day of the month was an express stipulation. Contracts of this nature are not governed by the same rule as simple debts, where the measure of damages is interest from the day the debt, whether bond or other form, is due. The day of payment is an essential element in the contract. The supreme court, in a recent case (Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780. 44 L. Ed. 953), held, quoting the rubric: “After a careful review of all the eases, American and English, relating to the anticipatory breaches of an executory contract by the refusal of one party to it to perform it, the court holds the rule laid down in Hochster v. De la Tour, 2 El. & Bl. 678, is a reasonable and proper rule. That rule Is that, after the renunciation of a continuing agreement of one party, the other party is at liberty to consider himself absolved from any further performance of it. The parties to a contract which is wholly executory have a right to the maintenance of the contractual relations up to the time of performance, as well as a performance of the contract when due.” The other rulings refer to the question of damages! This is conclusive. The authorities cited in the brief sustain this view. Reybold v. Voorhees, 30 Pa. 116; 1" }, { "docid": "11441562", "title": "", "text": "solely for the purpose of gaining an advantage for future litigation are impermissible. See Calderon v. Ashmus, 523 U.S. 740, 747, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). However, Plaintiffs are not seeking an advance ruling on whether Adobe’s security practices in 2013 were reasonable at that time. Rather, the dispute is over Adobe’s current practices. Compl. ¶ 124 (“Plaintiffs ... seek a declaration [ ] that Adobe’s existing security measures do not comply with its contractual obligations-” (emphasis added)). Thus, the Court finds that Plaintiffs’ declaratory relief claim does not merely seek an advisory opinion for use in future breach of contract actions. The Court concludes that Plaintiffs have plausibly alleged that they satisfy the statutory jurisdictional requirements for obtaining declaratory relief. Adobe is not entitled to dismissal of Plaintiffs’ claim on •this basis. 3. Breach of Contract Claim in “Disguise” Adobe’s third and final challenge to Plaintiffs’ declaratory relief claim is that Plaintiffs are “seeking a declaration that Adobe has breached its contractual obligations” without having alleged all the elements of a breach of contract claim. Mot. at 15. Relying on Gamble v. GMAC Mortgage Corp., No. 08-5532, 2009 WL 400359 (N.D.Cal. Feb. 18, 2009), and Household Financial Services, Inc. v. Northern Trade Mortgage Corp., No. 99-2840, 1999 WL 782072 (N.D.Ill. Sept. 27, 1999), Adobe contends that Plaintiffs’ claim therefore falls outside the scope of the Declaratory Judgment Act. Id. Adobe miseharacterizes Plaintiffs’ declaratory relief claim. In both Gamble and Household Financial, the plaintiffs sought a judicial decree stating that the defendants had breached their contractual obligations. Gamble, 2009 WL 400359, at *2 (“[P]laintiffs want the court to issue a declaratory judgment declaring that defendants breached the forbearance agreements”); Household Fin., 1999 WL 782072, at *3 (“Plaintiff does not request the court to clarify the parties’ rights under the loan purchase agreement. Rather, plaintiff requests a judicial declaration that defendant breached the agreement.”). That is not what Plaintiffs seek here. As discussed above, Plaintiffs seek a declaration clarifying Adobe’s ongoing contractual obligation to provide reasonable security. Opp’n at 15; Compl. ¶ 124 (“Plaintiffs ... seek a declaration [" }, { "docid": "2928950", "title": "", "text": "drainage responsibility to local control, id. at 2, which plaintiff appears to have misinterpreted as a declaration “that from now on, the drainage obligation falls to the water districts on pain of losing their water,” see Pl.’s Resp. 25. Nowhere does the letter say that defendant refuses to perform a con- • tractual drainage obligation. Plaintiff also contends that “the Government’s forty years of failing to provide drainage and temporizing over the last twenty-six years is conduct from which a repudiation can be inferred.” Id. at 26 (citing Restatement (Second) of Contracts § 250). However, for an act to constitute repudiation, it “must be both voluntary and affirmative, and must make it actually or apparently impossible for [the obligated party] to perform.” Restatement (Second) of Contracts § 250 cmt. c. The government’s failure to provide drainage is not an affirmative act, nor has plaintiff alleged that it makes it actually or apparently impossible for the government to provide drainage in the future. Cf. id. And plaintiff has not shown any contractual obligation to provide drainage in the first place. See Part III.A.1. Plaintiff has failed to allege facts sufficient to state a plausible claim for relief based on an anticipatory breach theory. Cf. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. 3. Claim Six: Declaratory Relief Regarding Amounts to Be Paid Under the 1965 Repayment Contract and Any Future Repayment Contracts Plaintiff requests that, if the court finds neither a total breach nor an anticipatory breach of a contractual drainage obligation by defendant, Compl. ¶ 165, that the court grant declaratory judgment for West-lands “that any obligations [plaintiff] has under Section 9(d) of the [1939 Act], 43 U.S.C. § 485h(d), the 1965 Repayment Contract and/or any future repayment contracts must be based on inflation adjusted dollars going back to when the work should have been done,” id. ¶ 176. Defendant, without explaining its rationale, moves to dismiss this claim pursuant to RCFC 12(b)(6). See Def.’s Mot. 1. The 1965 Repayment Contract, governed by 43 U.S.C. § 485h(d), where section 9(d) of the 1939 Act has been codified, provides for repayment" }, { "docid": "19280786", "title": "", "text": "successors-in-interest to ACS, assumed contractual obligations and duties arising out of the Agreement and that them failure to satisfy these contractual duties and obligations amounted to negligence. Count III asserts a claim of breach of contract. According to plaintiffs, defendants, as successors-in-interest of the obligations of ACS set forth in the Agreement, have refused to meet their obligations either for an accounting or for the payments to plaintiffs required by the terms and provisions of the Agreement. In particular, plaintiffs assert that defendants have failed to comply with the buy-out provision of the Agreement and that defendants are therefore liable to plaintiffs for a prorated payment of the ACS acquisition price. Count IV alleges a claim of tortious interference with contractual relations. Plaintiffs allege that defendant CAI intentionally and improperly interfered with ACS’ performance of the Agreement and induced ACS to breach the contractual obligations owed by it to the plaintiffs. In Count V, plaintiffs seek declaratory relief, and in Count VI they request an accounting. In these Counts, plaintiffs ask the Court to determine and adjudicate the rights and liabilities of the parties with respect to the legal obligations of defendants as successors-in-interest to ACS and further ask that the Court order defendants to account for all sums representing revenue and expenditures since the date of their acquisition of ACS. III Summary Judgment Principles Since the parties in their memoranda have relied on affidavits and exhibits, the Court will treat defendants’ pending motion as one seeking summary judgment under Rule 56. The principles to be applied by this Court in considering under Rule 56 a motion for summary judgment are well established. A party moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, “the burden on the moving party [at the summary judgment stage] may be discharged by ‘showing’ — that is," }, { "docid": "2928992", "title": "", "text": "156, 163 (stating that plaintiff withdraws its fourth and fifth claims if the court does not declare that the government’s water service obligation is severable from the purported drainage obligation). Moreover, with respect to plaintiffs total breach claim as it relates to past contracts, plaintiffs acceptance of part performance by taking water deliveries operates as a waiver of such claims. See supra Part III.A2.b; cf. Mobil Oil, 530 U.S. at 622, 120 S.Ct. 2423 (“[Acceptance of performance under a once-repudiated contract can constitute a waiver of the right to restitution that repudiation would otherwise create.”). Plaintiff seeks a declaration of severability to overcome these problems: such a declaration would allow plaintiff to continue receiving benefits of the contracts — water service — while suing for only part of the alleged remaining performance— the drainage obligation — and would avoid the problem of waiver. However, such a declaration is not necessary to the resolution of plaintiffs claims; it is necessary only for plaintiff to prevail on them in the way that it wants. See supra Parts III.A2.b-c (discussing plaintiffs claims four and five); cf. Hydrothermal, 26 Cl.Ct. at 16. In addition, the declarations sought by plaintiff in connection with its claims for total and anticipatory breach are prospective because they would result in relieving plaintiff of present and future responsibilities, impacting the contractual relationship between the parties in the future. See Compl. 51 (requesting a declaratory judgment that “West-lands is relieved of all further responsibility to pay for drainage services or facilities under its contracts with the United States, including ... future extensions” of water service contracts) (emphasis added); cf. Katz, 16 F.3d at 1209. Lastly, such declaratory relief is not incidental or collateral to money damages because it does not constitute a “restoration to office or position, placement in appropriate duty or retirement status, [or] correction of applicable records.” Cf. 28 U.S.C. § 1491(a)(2). The court, therefore, holds that it lacks subject matter jurisdiction over plaintiffs requests for declaratory judgment, and that plaintiffs claim six and requests for declaratory relief with respect to claims four and five must be dismissed." }, { "docid": "23563760", "title": "", "text": "Florida in relation to his agreement with Burger King, any breach necessarily occurred outside the forum state. The Supreme Court imposed no artificial requirement that personal jurisdiction depend upon the place of the defendant’s allegedly wrongful conduct. See Burger King, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528. Second, the action at issue is not for breach of contract. Instead, it is an action for declaratory judgment on Calphalon’s obligations under the manufacturer’s representative agreement. No breach is asserted by Calphalon. Calphalon seeks only to adjudicate the parties’ obligations under the very contractual arrangement that has established Rowlette’s minimum contacts with Ohio. Indeed, this court in Southern Machine expressly recognized that a declaratory judgment action unquestionably arises out of a business agreement. The court rejected both the notion that a defendant’s breach of contract is required and the notion that the location of such breach is relevant to the jurisdictional analysis: [M]any of the operative facts of this controversy arose from obligations created by the license agreement and from acts performed under that agreement. Mohasco’s participation in establishing those obligations and in setting in motion that performance is clear. To suggest that Mohasco should not be joined in this action because it has been guilty of no breach of contract or bad faith conduct places emphasis on the wrong consideration. In personam jurisdiction is not assumed as punishment for the commission of a tort or the breach of a contract. Its assumption is not based on the fault of the defendant but on the interest of the state. A state has as much interest in resolving business differences before they cause damage as it has in providing a remedy once the damage has occurred. 401 F.2d at 384. Where, as here, the action seeks to adjudicate the rights of parties who have engaged in a seventeen year business relationship and to determine their respective obligations under the final contract between them, the action arises from the contacts established during that seventeen year relationship. There can be little doubt both that Row-lette purposefully availed itself of the privilege of doing" }, { "docid": "5113071", "title": "", "text": "The following factors should be considered: (1) whether the judgment would settle the controversy; (2) whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata”; (4) whether the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction; and (5) whether there is an alternative remedy that is better or more effective. Bituminous Cas. Corp. v. J & L Lumber Co., Inc., 373 F.3d 807, 813 (6th Cir.2004). Defendant argues that Plaintiffs’ claim for declaratory relief should be dismissed because the relief sought in connection with that claim is duplicative of Plaintiffs’ breach of contract claims, and because Plaintiffs have an adequate remedy at law. According to Defendant, the first, second and fifth factors weigh against entertaining this claim. Plaintiffs concede that a declaration that the various agreements are enforceable would not settle the controversy. They argue, however, that it would be useful for determining whether Plaintiffs can proceed on a breach of contract theory or must instead pursue the quasi-contractual and tort theories that have been pled in the alternative. Plaintiffs also maintain that there is no better alternative remedy. In the Court’s view, this is not an appropriate case in which to entertain a declaratory judgment action. Declaratory judgment is typically sought before an injury-in-fact has occurred. National Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.1997). “It gives a means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy and in cases in which a party who could sue for coercive relief has not yet done so.” It thereby minimizes “the danger of avoidable loss and unnecessary accrual of damages.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2751 (3d ed. 1998)." }, { "docid": "19280785", "title": "", "text": "George Parise, a Senior Vice President of CAI, relating to CATs acquisition of ACS and its possible purchase of ABS. According to Parks, Parise offered on behalf of CAI “to purchase the ABS portion of ACS.” Parks sought financial information which would permit him to determine what would be an appropriate sales price of ABS. However, no agreement was ever reached, nor did Parks receive payments from CAI or PCT as a purported partner of ABS. The financial information requested by Parks was never received. This civil action was filed in the Circuit Court for Anne Arundel County on August 2, 1999. Compensatory damages, a declaratory judgment, an accounting and other relief are sought., II Plaintiffs’ Claims In Count I of the complaint, plaintiffs have asserted a claim of constructive fraud. Plaintiffs allege that defendants, as successors-in-interest to ACS, breached their fiduciary duty to plaintiffs by ignoring the partnership obligations which defendants assumed after CAI acquired ACS. Count II is based on a theory of negligence. It is alleged in Count II that defendants, as successors-in-interest to ACS, assumed contractual obligations and duties arising out of the Agreement and that them failure to satisfy these contractual duties and obligations amounted to negligence. Count III asserts a claim of breach of contract. According to plaintiffs, defendants, as successors-in-interest of the obligations of ACS set forth in the Agreement, have refused to meet their obligations either for an accounting or for the payments to plaintiffs required by the terms and provisions of the Agreement. In particular, plaintiffs assert that defendants have failed to comply with the buy-out provision of the Agreement and that defendants are therefore liable to plaintiffs for a prorated payment of the ACS acquisition price. Count IV alleges a claim of tortious interference with contractual relations. Plaintiffs allege that defendant CAI intentionally and improperly interfered with ACS’ performance of the Agreement and induced ACS to breach the contractual obligations owed by it to the plaintiffs. In Count V, plaintiffs seek declaratory relief, and in Count VI they request an accounting. In these Counts, plaintiffs ask the Court to determine" }, { "docid": "23098589", "title": "", "text": "initiation of litigation against Volvo and the threats of future litigation distinguish this dispute from North Jefferson, a decision on which the Dealers rely. There, the district court determined that a controversy was not present under the Declaratory Judgment Act because the defendant had not taken any action, even of a preliminary nature, against the plaintiff, and the defendant had not indicated that it intended to take any future legal action against the plaintiff. N. Jefferson, 94 F.Supp.2d at 718. See generally GTE Directories Pub. Corp. v. Trimen Am., Inc., 67 F.3d 1563 (11th Cir.1995) (holding that threat of future litigation gives rise to actual controversy). . The'factual predicate underlying this appeal is analogous to the factual underpinnings of Kapiloff. There, we concluded that a “declaratory judgment action is designed to allay exactly the sort of uncertainty that flows from the threat that ambiguous contractual rights may be asserted,” and we observed that a \"declaratory judgment action allows the uncertain party to gain relief from the insecurity caused by a potential suit waiting in the wings.” Kapiloff, 155 F.3d at 494. The Dealers acknowledge that a federal court may exercise its declaratory judgment jurisdiction when a plaintiff is seeking a declaration to avoid the accrual of potential damages for past actions. See Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749 (7th Cir.1987) (observing that declaratory judgment is available where party desires declaration of legal effect of proposed or past course of action). In this dispute, Volvo was seeking such a declaration. . Volvo also contends that, in the absence of the Without Cause Provision, its terminations of the Dealer Agreements would not constitute breaches of contract because \"the Market Withdrawal Provision contemplates the possibility that Champion could completely disappear from the marketplace without liability following a discontinuation of the CHAMPION line of motor graders.” The Market Withdrawal Provision provides: Champion reserves the right at any time to change models, classification of models and specifications, or add to or discontinue any products or product lines without notice to [Dealer or Distributor] and without incurring any obligation to" }, { "docid": "12265515", "title": "", "text": "and CEO Michael Dow. With respect to Prosser’s individual role in the events leading to his termination, Plaintiff alleges only that “Jeffrey Prosser, a Board Member, Chairman of the Board and sole owner of the bank, specifically inquired as to what the total amount of the overdrafts were,” and was involved in a lengthy telephone, discussion concerning the overdrafts which “lasted approximately Vk hours.” (PL’s Compl. at ¶¶ 30, 32). Prosser’s inquiry regarding the overdrafts can not establish by clear and convincing evidence that the corporation is a facade which warrants piercing the corporate veil. As to Plaintiffs breach of contract and related tort claims, although Plaintiff alleges emotional distress, fraud and misrepresentation, Plaintiff cannot show that Prosser individually made any agreement between himself and Plaintiff separate from the Bank. The Court cannot find that a contractual obligation existed between Prosser and Matheson. Without a viable contract action, the remaining tort claims cannot endure. See Strojmaterialintorg, 815 F.Supp. at 105 (“to sustain a tort action separate from the breach of contract claim, the tortuous conduct must have breached a legal duty existing independently of the contractual relations between the parties”). Plaintiffs complaint states that “Defendant Jeffrey Prosser knew at the time the representations were made that they were misrepresentations.” However, a claim which is predicated on a breach of contractual arrangement “cannot be converted into a fraud claim simply by allegations that a defendant never intended to adhere to its obligations under the agreement.” Id. The Court will therefore grant Defendant’s motion for summary judgment as to these remaining counts. Because punitive damages are ancillary to these claims, the Court will also grant Defendant’s motion for summary judgment as to punitive damages. D. Wrongful Discharge (Count IV) Defendant seeks summary judgment as to Plaintiffs Wrongful Discharge claim, arguing that he cannot be held liable under the Wrongful Discharge Act because he is not an “employer” as defined by the Act. Section 62 of the Wrongful Discharge Act defines an “employer” as “any person acting in the interest of an employer directly or indirectly that has employed five (5) or more" } ]

[ { "docid": "22082017", "title": "", "text": "means a deliberate intention to do a wrongful act.” Adams v. Hazelwood, 271 Ga. 414, 520 S.E.2d 896, 898 (1999). No evidence indicates that the deputies acted with actual malice towards Melinda. Consequently, official immunity protects Sheriff Chitwood and his deputies with respect to Plaintiffs’ state law claims. V. Orders Spoliation We review the district court’s decision regarding spoliation sanctions for abuse of discretion. See Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27 (1991); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 946 (11th Cir.2005). In the Eleventh Circuit, “an adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (per curiam). While this circuit does not require a showing of malice in order to find bad faith, mere negligence in losing or destroying records is not sufficient to draw an adverse inference. See Id. Plaintiffs present five instances of alleged spoliation and ask for corresponding sanctions. However, Plaintiffs present no evidence that any party acted in bad faith regarding any of the instances. As such, the district court did not err in declining to draw an adverse inference against the defendants. Medical Expert Testimony Plaintiffs appeal the district court’s ruling that their expert’s second affidavit was untimely and did not meet any of the required criteria to excuse the delay. We review for abuse of discretion the district court’s decisions regarding the admissibility of expert testimony and the reliability of an expert opinion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997). Indeed, the “deference that is the hallmark of abuse-of-discretion review,” Id. at 143, 118 S.Ct. at 517, requires that we not reverse an evidentiary decision of a district court “unless the ruling is manifestly erroneous.” Id. at 142, 118 S.Ct. at 517 (quoting Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1878)). The district court set a March 12, 2007, deadline for the disclosure of expert" } ]

[ { "docid": "22435411", "title": "", "text": "later, sought thirteen different admissions, most of which pertained to Wall to Wall’s vehicles, equipment, employees, job history, and work at the Miami Home. His third set of requests, sent around 3:43 p.m., included nine interrogatories pertaining to Wall to Wall’s customers, employees, and accounting practices. The next day, February 4, 2009, Josendis moved the district court nunc pro tunc to extend the discovery period by four hours, i.e., to permit the discovery he had launched the afternoon of February 3, or, alternatively, for leave to conduct limited discovery pertaining only to Wall to Wall’s work at the Miami Home. Josendis sought discovery of the work done at the Miami Home based on 29 C.F.R. § 776.23. To summarize, Josendis claimed that, because the Miami Home was a hospital or institution for the care of the aged, it was an enterprise involved in interstate commerce for purposes of FLSA coverage, 29 U.S.C. § 203(s)(l)(B), and that evidence of Wall to Wall’s work at the Miami Home would accordingly help him demonstrate that he was subject to enterprise coverage by virtue of 29 C.F.R. § 776.23(c). The Miami Home’s financial records could also have helped Josendis to establish that Wall to Wall had at least $500,000 in gross sales in 2007. Wall to Wall opposed Josendis’s motion on two grounds. First, the requests, including the subpoena Josendis intended to have issued to the Miami Home, were untimely. Second, it argued that the requests were unnecessarily voluminous insofar as Josendis sought information that was not necessary to challenge the basis of Wall to Wall’s motion for summary judgment — that Josendis could not establish FLSA coverage. The court granted in part and denied in part Josendis’s nunc pro tunc motion and denied Josendis’s request for leave to subpoena the Miami Home’s records. To the extent the court found Josendis’s discovery requests germane to Wall to Wall’s motion, it gave him leave to propound such requests. The court, however, tailored certain requests to the issues before the court: individual coverage and enterprise coverage. The court denied the motion as to the remainder of" }, { "docid": "22435409", "title": "", "text": "Wall to Wall moved the district court to dismiss the VAC for failure to state a claim for relief or, alternatively, for summary judgment on the same grounds asserted in its September 3 motion: Josendis was ineligible for overtime compensation under the FLSA via individual and enterprise coverage. Josendis filed a memorandum in opposition to the motion on October 24, 2008. In the memorandum, he stated that he could not adequately defend against the motion, if treated as a motion for summary judgment, without additional time to complete the discovery he thought would be necessary to establish FLSA coverage. Despite the memorandum’s statement that additional time was needed for discovery, Josendis did nothing to obtain this necessary information while Wall to Wall’s motion was pending. In fact, nothing happened in the case until January 16, 2009, when the district court entered an order stating that it was treating Wall to Wall’s motion as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d) and granting Josendis “additional time for discovery.” The order required him to “propound [all] discovery requests seeking information necessary to defend against the instant Motion for Summary Judgment” by noon on February 3, 2009. The court gave Wall to Wall fifteen days to respond to such discovery requests and Josendis ten additional days to, if necessary, supplement his memorandum in opposition to the motion. When the clock struck noon on February 3, Josendis had not noticed the taking of any depositions or served Wall to Wall with any interrogatories or requests for admissions or production of documents. Nonetheless, approximately two hours after the court-imposed deadline had passed, Josendis faxed to defense counsel three sets of extensive discovery requests and a “notice” that he intended to serve a subpoena on the Miami Home to obtain all of the financial records relating to its dealings with Wall to Wall. The first set of discovery requests, sent at approximately 2:09 p.m., requested the production of twenty-three different categories of documents, covering the entire field of Wall to Wall’s operations. Josendis’s second set of requests, faxed forty-four minutes" }, { "docid": "22435469", "title": "", "text": "pertinent part, that “[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e)(1) (2009) (amended 2010). . The district court issued a separate order dismissing Count II of the VAC. The court reasoned that, having dismissed the federal claim which gave rise to its subject matter jurisdiction, dismissal of the state law claim was appropriate in the exercise of its discretion. 28 U.S.C. § 1367(c)(3). .We have jurisdiction over Josendis’s appeal pursuant to 28 U.S.C. § 1291. . The district court granted outright Josendis's nunc pro tunc motion, Order at 2-3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009), as to the following requests for production: 8. All records reflecting a summary of the gross income of [Wall to Wall] including, but not limited to, IRS tax records, bank statements, balance sheets and records of any financial audit(s). 14. All documents pertaining to [Wall to Wall’s] work at the Miami Jewish Home and Hospital, including, but not limited to, bills, contracts, invoices, permits, vendor receipts, vendor invoices and change orders. 17. All documents pertaining to unemployment compensation premiums or other amounts paid to the State or reported to the IRS. 18. All documents pertaining to worker's compensation insurance. 22. All documents pertaining to any remodeling or construction work performed by [Wall to Wall] for any hospital or home for the aged. Record, vol. 1, no. 33, Exhibit A at 4-5. We agree that the court properly granted Josendis’s motion in regard to these requests, which were neither overbroad nor irrelevant to FLSA coverage. The court also approved two additional production requests, Order at 2, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009), but ordered that they be narrowly read to pertain only to out-of-state projects and vendors, respectively. Those two requests were: 19. Copies of all permits pulled or sought by [Wall to Wall] or on behalf" }, { "docid": "22435482", "title": "", "text": "on to suggest — in the face of Wall to Wall’s admission that its business records “were lost forever” — that “Josendis might have obtained a corporate ledger indicating that Wall to Wall made at least $500,000 in 2006, 2007, or 2008.” Id. at 1318 n. 40. While Wall to Wall’s explanation for its failure to produce its financial records is more imaginative than blaming it on a fire, I find it difficult to accept. Nor am I willing to fault Josendis for not producing documents that Wall to Wall, by its own admission, failed to preserve and allowed its landlord to dispose of as garbage. More importantly, a jury could conclude that the documents were either destroyed or not produced because they would have shown that Wall to Wall in fact had at least $500,000 in gross sales. Indeed, the majority opinion alludes to the doctrine of spoliation, pursuant to which “an adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Id. at 1310 n. 28 (internal quotation marks omitted). Nevertheless, the majority opinion suggests that it was up to Josendis to “have moved the district court to consider the destruction of Wall to Wall’s corporate records as a bad faith act of spoliation,” and that “[a]bsent a finding of spoliation, we cannot hold against Wall to Wall the loss of its financial records.” Id. The doctrine of spoliation permits the trier of fact to draw an inference that, if records were destroyed in bad faith, it was done so to impede the opposing party from obtaining evidence that would support the latter’s position. More specifically, it provides a basis for denying a motion for summary judgment where there is sufficient probative evidence for a jury to find an act of spoliation and to draw the inference derived from such an act. Thus, in Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (per curiam), we agreed with the district court that “there was no probative evidence in this case to indicate appellees purposely lost" }, { "docid": "22435474", "title": "", "text": "unable to establish with any certainty — that is, beyond mere speculation— that Wall to Wall's expenditures bore any relationship to its earnings. As a result, the district court did not abuse its discretion when it denied Josendis the opportunity to obtain such circumstantial evidence. . The district court granted Josendis’s nunc pro tunc motion as to interrogatories 3, 4, and 9. Order at 3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009). They read as follows: 3. Please list the type of businesses for which [Wall to Wall] performed any work, or provided services to, at any time between 2005-2008. 4. For any address or business listed in response to Interrogatories 1 through 3, please state whether Plaintiff performed any work for any such business or residences, and if so, which ones. 9. Please state the name and job title of the person(s) affirming these interrogatories. Record, vol. 1, no. 33, Exhibit B at 6-7, 12. The court also permitted Josendis to request, in interrogatory 1, that Wall to Wall provide \"all addresses of all construction or remodeling jobs performed by [Wall to Wall] from 2005-2008,” but limited the scope of that request to \"all addresses for construction or remodeling jobs outside the State of Florida.” Id. As before, we find no abuse of discretion in the court’s limitation. See supra note 27. . See supra note 31. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . Federal Rule of Civil Procedure 37(a)(5)(B) states that a district court \"must not order” the payment of attorney’s fees after denying a motion to compel if the party moving to compel discovery was “substantially justified” in making the requests or if \"other circumstances make an award of expenses unjust.” Thus, if a motion to compel is \"substantially justified,” sanctions cannot issue. Fed. R.Civ.P. 37(a)(5)(B). . Josendis does not dispute that Wall to Wall’s 2006 tax return" }, { "docid": "22435472", "title": "", "text": "931 (11th Cir.1997) (per curiam)), but he failed to do so. Absent a finding of spoliation, we cannot hold against Wall to Wall the loss of its financial records. . By way of contrast to the denied requests for admissions, the court granted Josendis's motion for additional time as to the following requests, Order at 3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009), all of which were on point and relevant to the question of enterprise coverage: 6. [Wall to Wall] performed work for the Miami Jewish Home and Hospital at some point during 2005-2008. 7. [Wall to Wall] performed work for the Miami Jewish Home and Hospital located at 5200 NE 2nd Avenue at some point during 2005-2008. 8. Plaintiff performed work on behalf of [Wall to Wall] at the Miami Jewish Home and Hospital. 9. [Wall to Wall] employed more than fifteen (15) employees in 2007. 10. [Wall to Wall] employed more than fifteen (15) independent contractors in 2007. 11. [Wall to Wall] was paid more than fifty-thousand dollars ($50,000) for its work at the Miami Jewish Home. Record, vol. 1, no. 33, Exhibit C at 2. . Presumably, Josendis’s position is as follows: Wall to Wall could not have remained in business for long if it outspent its earnings, and if Josendis could establish how much Wall to Wall had spent on its vehicles, Josendis could assume that Wall to Wall had, at the very least, earned that amount during the relevant time period. There were two problems with that reasoning. First, earnings and spending are only loosely correlated; an enterprise can outspend its earnings in one year if that enterprise had a surplus in a previous year, and it could also borrow against projected future earnings to make up for a loss in the present year. Second, and more concretely, Wall to Wall actually failed, so it can be inferred that Wall to Wall actually spent more than it earned. Accordingly, even if Josendis were able to get the information he requested, he would still be" }, { "docid": "22435470", "title": "", "text": "pertaining to [Wall to Wall’s] work at the Miami Jewish Home and Hospital, including, but not limited to, bills, contracts, invoices, permits, vendor receipts, vendor invoices and change orders. 17. All documents pertaining to unemployment compensation premiums or other amounts paid to the State or reported to the IRS. 18. All documents pertaining to worker's compensation insurance. 22. All documents pertaining to any remodeling or construction work performed by [Wall to Wall] for any hospital or home for the aged. Record, vol. 1, no. 33, Exhibit A at 4-5. We agree that the court properly granted Josendis’s motion in regard to these requests, which were neither overbroad nor irrelevant to FLSA coverage. The court also approved two additional production requests, Order at 2, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009), but ordered that they be narrowly read to pertain only to out-of-state projects and vendors, respectively. Those two requests were: 19. Copies of all permits pulled or sought by [Wall to Wall] or on behalf of customers of [Wall to Wall]. 20. All receipts, invoices or other documents pertaining to any supplies purchased by [Wall to Wall]. Record, vol. 1, no. 33, Exhibit A at 5. Because one of the issues in this case is whether Wall to Wall engaged in construction work that crossed state lines, 29 U.S.C. § 203(b), (s)(l)(A)(i), we see no abuse of discretion in the limitations the court placed on these requests. . Josendis further states that he needed additional leeway to complete discovery because Wall to Wall's corporate records had been destroyed. See supra note 21. This argument is unavailing. Josendis could have moved the district court to consider the destruction of Wall to Wall’s corporate records as a bad faith act of spoliation, see, e.g., Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (\"In the Eleventh Circuit, 'an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.’ \") (quoting Bashir v. Amtrak, 119 F.3d 929," }, { "docid": "22435420", "title": "", "text": "1286 (11th Cir.2003) (quoting Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490, 493 (11th Cir.1997) (citation and internal quotation mark omitted)). First, the district court did not abuse its discretion by denying Josendis’s request to subpoena the Miami Home for the financial records arising out of its dealings with Wall to Wall. The court ordered that all discovery requests be submitted before noon on February 3, 2009. The court therefore had discretion to grant Wall to Wall a protective order in response to any discovery requests that were not submitted at or before that deadline. See Fed.R.Civ.P. 26(b) (reserving for the district courts broad authority to control the scope of discovery). And though the court had the authority to grant a post hoc extension of the discovery deadline for good cause, it was under no obligation to do so; in fact, we have often held that a district court’s decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion. E.g., Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1348-49 (11th Cir.2004) (up holding under an abuse of discretion standard a district court’s decision excluding an expert report disclosed after the deadline the court had established for its submission). That premise is especially true when, as here, the party who seeks a reprieve from the court has not yet taken any discovery. Josendis’s original complaint was filed on July 25, 2008; the discovery deadline was February 3, 2009; and, in between, Josendis propounded no interrogatories or requests and scheduled no depositions to obtain evidence that he had to have known would be, by the terms of his complaint, relevant to his claims. As such, because the district court had no duty to permit any discovery, its decision to deny Josendis’s subpoena request as untimely noticed was not an abuse of discretion. See id.-, see also Corwin v. Walt Disney World Co., 475 F.3d 1239, 1249 (11th Cir.2007) (indicating that a district court commits an abuse of discretion only where it has clearly acted contrary to the law or" }, { "docid": "22435410", "title": "", "text": "required him to “propound [all] discovery requests seeking information necessary to defend against the instant Motion for Summary Judgment” by noon on February 3, 2009. The court gave Wall to Wall fifteen days to respond to such discovery requests and Josendis ten additional days to, if necessary, supplement his memorandum in opposition to the motion. When the clock struck noon on February 3, Josendis had not noticed the taking of any depositions or served Wall to Wall with any interrogatories or requests for admissions or production of documents. Nonetheless, approximately two hours after the court-imposed deadline had passed, Josendis faxed to defense counsel three sets of extensive discovery requests and a “notice” that he intended to serve a subpoena on the Miami Home to obtain all of the financial records relating to its dealings with Wall to Wall. The first set of discovery requests, sent at approximately 2:09 p.m., requested the production of twenty-three different categories of documents, covering the entire field of Wall to Wall’s operations. Josendis’s second set of requests, faxed forty-four minutes later, sought thirteen different admissions, most of which pertained to Wall to Wall’s vehicles, equipment, employees, job history, and work at the Miami Home. His third set of requests, sent around 3:43 p.m., included nine interrogatories pertaining to Wall to Wall’s customers, employees, and accounting practices. The next day, February 4, 2009, Josendis moved the district court nunc pro tunc to extend the discovery period by four hours, i.e., to permit the discovery he had launched the afternoon of February 3, or, alternatively, for leave to conduct limited discovery pertaining only to Wall to Wall’s work at the Miami Home. Josendis sought discovery of the work done at the Miami Home based on 29 C.F.R. § 776.23. To summarize, Josendis claimed that, because the Miami Home was a hospital or institution for the care of the aged, it was an enterprise involved in interstate commerce for purposes of FLSA coverage, 29 U.S.C. § 203(s)(l)(B), and that evidence of Wall to Wall’s work at the Miami Home would accordingly help him demonstrate that he was subject" }, { "docid": "22435468", "title": "", "text": "Fed.R.Civ.P. 56 was reorganized and altered. The district court’s citation to Fed.R.Civ.P. 56(e) is now Fed.R.Civ.P. 56(c)(4). The changes to the rules do not affect our analysis in any way. For clarity, we will refer to Fed.R.Civ.P. 56 as it appeared when the district court ruled on the motion for summary judgment. . At the summary judgment stage, a verified pleading like the VAC may also serve as an affidavit—thereby providing evidence of the factual allegations contained therein—so long as it conforms to the requirements of Fed. R.Civ.P. 56(e). United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1444 n. 35 (11th Cir.1991) (explaining that, so long as Rule 56(e) — now Rule 56(c)(4) — is satisfied, the verified allegations in a complaint are treated as evidence at the summary judgment stage). As we explain infra, the VAC fails, in large part, to comply with Rule 56(e)’s personal knowledge requirement and therefore, to the extent of the failure, is not evidence a court may consider at summary judgment. . Rule 56(e) states, in pertinent part, that “[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e)(1) (2009) (amended 2010). . The district court issued a separate order dismissing Count II of the VAC. The court reasoned that, having dismissed the federal claim which gave rise to its subject matter jurisdiction, dismissal of the state law claim was appropriate in the exercise of its discretion. 28 U.S.C. § 1367(c)(3). .We have jurisdiction over Josendis’s appeal pursuant to 28 U.S.C. § 1291. . The district court granted outright Josendis's nunc pro tunc motion, Order at 2-3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009), as to the following requests for production: 8. All records reflecting a summary of the gross income of [Wall to Wall] including, but not limited to, IRS tax records, bank statements, balance sheets and records of any financial audit(s). 14. All documents" }, { "docid": "22435426", "title": "", "text": "to Wall’s] employees was not reflected in their respective paychecks, produce all documents evidencing the amount, date and nature and purpose of all such payments. 13. All documents pertaining the [sic] employees named in ... [the VAC]. 15. All documents pertaining to [Wall to Wall’s] work at the kitchen remodeling projects mentioned in ... the [VAC], 16. All documents pertaining to vehicles owned or leased by [Wall to Wall] for [Wall to Wall’s] construction or related businesses. 21. All documents pertaining to any remodeling or construction work performed by [Wall to Wall] for the relevant time period. 23. All bank records pertaining to [Wall to Wall] for the relevant period of time. Record, vol. 1, no. 33, Exhibit A at 3-5. Josendis argues that these requests could be grouped into three categories: (1) documents in which Wall to Wall reported its income to the federal government; (2) documents pertaining to the earnings of employees; and (3) documents concerning Wall to Wall’s past and present jobs. He also suggests that each of these document categories could have potentially led to the discovery of admissible evidence, namely circumstantial evidence that Wall to Wall had $500,000 or more in gross sales in any of the three years in which it employed Josendis. Presumably, Josendis reasons that, if he could have established that Wall to Wall’s expenditures had exceeded a cer tain sum, he could have then argued that Wall to Wall must have met the statutory threshold for enterprise coverage. And seeing as he raised the possibility that Acosta had intentionally underreported Wall to Wall’s income in 2006, Josendis asks that we overrule the district court and order the court to grant him additional discovery. Because the district court accurately characterized the denied requests, however, we cannot do as he asks. For instance, request 1, which seeks every document that relates to any of the allegations made in the VAC, was fairly construed as over-broad. Request 2 was certainly irrelevant, as Wall to Wall never once raised the possibility of asserting an affirmative defense to Josendis’s claims. Requests B through 6 and 9" }, { "docid": "22435481", "title": "", "text": "2006 tax return and a financial summary prepared by Acosta in preparation for a separate FLSA lawsuit previously filed against Wall to Wall.” Id. at 1304 n. 21. Jorge Acosta stated in support of the defendants’ motion for summary judgment that no tax returns were prepared for 2007 (or, apparently, for 2008). Acosta Decl. ¶ 4. Moreover, in an unsworn response to a document request, he alleged (in the words of the majority opinion) that, “[a]t some point after the initiation of Josendis’s suit [on July 25, 2008], Wall to Wall had been evicted from its office for not paying rent. Once the property owner reentered the premises, Wall to Wall’s business records were placed on the street. Neither Acosta nor Lim rescued those records, and they were lost forever.” Maj. Op. at 1304 n.21 (emphasis added). Nevertheless, the majority opinion finds that Wall to Wall “complied with the court’s instructions [ordering the production of these documents] and completed, to the best of its ability, the ordered discovery.” Id. at 1304. Moreover, the majority goes on to suggest — in the face of Wall to Wall’s admission that its business records “were lost forever” — that “Josendis might have obtained a corporate ledger indicating that Wall to Wall made at least $500,000 in 2006, 2007, or 2008.” Id. at 1318 n. 40. While Wall to Wall’s explanation for its failure to produce its financial records is more imaginative than blaming it on a fire, I find it difficult to accept. Nor am I willing to fault Josendis for not producing documents that Wall to Wall, by its own admission, failed to preserve and allowed its landlord to dispose of as garbage. More importantly, a jury could conclude that the documents were either destroyed or not produced because they would have shown that Wall to Wall in fact had at least $500,000 in gross sales. Indeed, the majority opinion alludes to the doctrine of spoliation, pursuant to which “an adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad" }, { "docid": "22435422", "title": "", "text": "the facts). Second, the court did not abuse its discretion in denying in part Josendis’s motion for additional time to begin discovery and granting Wall to Wall a protective order covering the denied discovery requests — in other words, the court was within the range of its broad discretion in declaring that the denied requests were either overbroad, irrelevant, or otherwise redundant. The court had previously ordered the parties to conduct only that discovery necessary to enable Josendis to respond to Wall to Wall’s summary judgment motion. The ordered discovery, then, was intentionally limited by the court to the issues raised in that motion; those issues — individual and enterprise coverage under the FLSA — defined the contours of permissible discovery. See Fed.R.Civ.P. 12(d) (requiring district courts to give the parties “a reasonable opportunity to present all the material that is pertinent to the motion” (emphasis added)). Any discovery requests that were not directly tied to individual and enterprise coverage accordingly exceeded the scope of the ordered discovery and, cabined by the court’s discretion, were subject to denial and the issuance of a protective order. See Fed.R.Civ.P. 26(b)-(c); see also Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11th Cir.1992) (finding no abuse of discretion when the district court denied discovery requests that were irrelevant to class certification). As we explain in more detail below, the court correctly determined that the denied discovery requests were either outside the scope of its discovery order or otherwise flawed. At the very least, the court’s decision was within its “range of choice” allotted under the abuse of discretion standard. See Betty K Agencies, 432 F.3d at 1337. For that reason alone, we must uphold the district court’s decision to deny in part Josendis’s motion and grant the protective order. 1. The court disallowed the following requests for production in Plaintiffs First Request for Production to Defendants as “overbroad” or “irrelevant,” Order at 2-3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D. Fla. Feb. 5, 2009): 1. Any and all documents that support, evidence, prove" }, { "docid": "22435483", "title": "", "text": "faith.” Id. at 1310 n. 28 (internal quotation marks omitted). Nevertheless, the majority opinion suggests that it was up to Josendis to “have moved the district court to consider the destruction of Wall to Wall’s corporate records as a bad faith act of spoliation,” and that “[a]bsent a finding of spoliation, we cannot hold against Wall to Wall the loss of its financial records.” Id. The doctrine of spoliation permits the trier of fact to draw an inference that, if records were destroyed in bad faith, it was done so to impede the opposing party from obtaining evidence that would support the latter’s position. More specifically, it provides a basis for denying a motion for summary judgment where there is sufficient probative evidence for a jury to find an act of spoliation and to draw the inference derived from such an act. Thus, in Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (per curiam), we agreed with the district court that “there was no probative evidence in this case to indicate appellees purposely lost or destroyed the relevant portion of the [evidence].” Consequently, we concluded that the district court had not erred in rejecting the adverse inference and granting the motion for summary judgment. Id. By contrast, in Kroniseh v. United States, 150 F.3d 112, 127 (2d Cir.1998), a case in which this inference turned on the veracity of the defendants’ explanation for the destruction of relevant documents, “the district court presumed for purposes of considering the motion for summary judgment that defendants had an obligation to preserve the files and that the destruction was intentional,” and this approach was characterized as “sound” by the Second Circuit. A factual finding of spoliation is necessary only where the district judge seeks to impose a particular sanction beyond submitting the issue to the jury. Nevertheless, I accept, for present purposes, the majority’s suggestion that, without a finding of bad faith by the district judge, we are precluded from considering whether Wall to Wall’s failure to produce its financial records supports an inference that would preclude summary judgment. The absence of those" }, { "docid": "22435473", "title": "", "text": "was paid more than fifty-thousand dollars ($50,000) for its work at the Miami Jewish Home. Record, vol. 1, no. 33, Exhibit C at 2. . Presumably, Josendis’s position is as follows: Wall to Wall could not have remained in business for long if it outspent its earnings, and if Josendis could establish how much Wall to Wall had spent on its vehicles, Josendis could assume that Wall to Wall had, at the very least, earned that amount during the relevant time period. There were two problems with that reasoning. First, earnings and spending are only loosely correlated; an enterprise can outspend its earnings in one year if that enterprise had a surplus in a previous year, and it could also borrow against projected future earnings to make up for a loss in the present year. Second, and more concretely, Wall to Wall actually failed, so it can be inferred that Wall to Wall actually spent more than it earned. Accordingly, even if Josendis were able to get the information he requested, he would still be unable to establish with any certainty — that is, beyond mere speculation— that Wall to Wall's expenditures bore any relationship to its earnings. As a result, the district court did not abuse its discretion when it denied Josendis the opportunity to obtain such circumstantial evidence. . The district court granted Josendis’s nunc pro tunc motion as to interrogatories 3, 4, and 9. Order at 3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009). They read as follows: 3. Please list the type of businesses for which [Wall to Wall] performed any work, or provided services to, at any time between 2005-2008. 4. For any address or business listed in response to Interrogatories 1 through 3, please state whether Plaintiff performed any work for any such business or residences, and if so, which ones. 9. Please state the name and job title of the person(s) affirming these interrogatories. Record, vol. 1, no. 33, Exhibit B at 6-7, 12. The court also permitted Josendis to request, in interrogatory" }, { "docid": "22435430", "title": "", "text": "or other vehicles for its construction work. 4. At any time during 2005-2008, [Wall to Wall] lease or leased [sic] more than ten vans or other vehicles for its construction work. 5. At any time during 2005-2008, [Wall to Wall] leased at least one other vehicle for its construction work. 12. [Wall to Wall] remodeled at least fifteen ... kitchens during 2008. 18. [Wall to Wall] remodeled at least fifteen ... kitchens during 2007. Record, vol. 1, no. 33, Exhibit C at 1-2. The district court denied these requests as either “overbroad” or “irrelevant.” Order at 3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0: 08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009). Josendis again claims, however, that had Wall to Wall been compelled to admit the foregoing facts he could have eventually proved that Wall to Wall’s gross receipts were in excess of the $500,000 statutory threshold. Yet again we see no error in the court’s characterizations of these requests. Requests 1 through 5 all deal with the vehicles Wall to Wall provided to its employees for their use in traveling to and from job sites. But any connection between Wall to Wall’s decision to lease vehicles and its gross receipts was, at best, tenuous. The court, then, made a permissible choice in denying Josendis’s motion as to requests 1 through 5. Neither did the court abuse its discretion in deeming requests 12 and 13, both of which pertained to the number of kitchen renovations Wall to Wall employees performed during Josendis’s employment, irrelevant to the question of FLSA coverage. The issue was not whether Wall to Wall actually performed remodeling work, but whether Wall to Wall had grossed $500,000 or more in sales per year as a result of that work. For that reason, the court’s decision on requests 12 and 13 was an acceptable exercise of its discretion. See Corwin, 475 F.3d at 1249; Betty K Agencies, 432 F.3d at 1337. 3. Finally, the district court did not abuse its discretion in denying Josendis’s motion to compel as applied to the following interrogatories: 2. Please" }, { "docid": "22435429", "title": "", "text": "to Wall’s sales in any fiscal year. In that sense, it does not matter that Josendis believes he might have obtained circumstantial evidence of Wall to Wall’s gross receipts from the documents he requested. The district court’s denial was not unreasonable based on the limitations it placed on discovery under Federal Rule of Civil Procedure 12(d) and its inherent power to control discovery under Rule 26. We will not upset a district court’s discovery ruling where, as now, its decision was within the realm of reasonable choices allotted to it. See Corwin, 475 F.3d at 1249; Betty K Agencies, 432 F.3d at 1337. 2. The same is true in regard to the following requests for admissions: 1. [The attached are] pictures of some of the vehicles owned or leased by ... [Wall to Wall] ... at some point during 2005-2008. 2. At any time during 2005-2008, [Wall to Wall] leased more than five vans or other vehicles for its construction work. 3. At any time during 2005-2008, [Wall to Wall] leased more than eight vans or other vehicles for its construction work. 4. At any time during 2005-2008, [Wall to Wall] lease or leased [sic] more than ten vans or other vehicles for its construction work. 5. At any time during 2005-2008, [Wall to Wall] leased at least one other vehicle for its construction work. 12. [Wall to Wall] remodeled at least fifteen ... kitchens during 2008. 18. [Wall to Wall] remodeled at least fifteen ... kitchens during 2007. Record, vol. 1, no. 33, Exhibit C at 1-2. The district court denied these requests as either “overbroad” or “irrelevant.” Order at 3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0: 08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009). Josendis again claims, however, that had Wall to Wall been compelled to admit the foregoing facts he could have eventually proved that Wall to Wall’s gross receipts were in excess of the $500,000 statutory threshold. Yet again we see no error in the court’s characterizations of these requests. Requests 1 through 5 all deal with the vehicles Wall to Wall" }, { "docid": "22435423", "title": "", "text": "subject to denial and the issuance of a protective order. See Fed.R.Civ.P. 26(b)-(c); see also Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11th Cir.1992) (finding no abuse of discretion when the district court denied discovery requests that were irrelevant to class certification). As we explain in more detail below, the court correctly determined that the denied discovery requests were either outside the scope of its discovery order or otherwise flawed. At the very least, the court’s decision was within its “range of choice” allotted under the abuse of discretion standard. See Betty K Agencies, 432 F.3d at 1337. For that reason alone, we must uphold the district court’s decision to deny in part Josendis’s motion and grant the protective order. 1. The court disallowed the following requests for production in Plaintiffs First Request for Production to Defendants as “overbroad” or “irrelevant,” Order at 2-3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D. Fla. Feb. 5, 2009): 1. Any and all documents that support, evidence, prove or relate to the allegations made in the [VAC]. 2. Any and all documents that support, evidence, prove or relate to any of [Wall to Wall’s] affirmative defenses. 3. All of the income reporting documents submitted by [Wall to Wall] to the Internal Revenue Service regarding the Plaintiff for [three calendar years prior to the filing of Josendis’s original complaint on July 25, 2008 (the “relevant period of time”)]. 4. All of the income reporting documents submitted by [Wall to Wall] to the Internal Revenue Service regarding all hourly employees who worked for [Wall to Wall] for the relevant period of time.... 5. All of the income reporting documents submitted by [Wall to Wall] to the Internal Revenue Service regarding all employees who held the same position or similar position(s) as Plaintiff who worked for [Wall to Wall] for the relevant period of time.... 6. All time sheets, time cards, time records, attendance records and documents which evidence the hours worked by all employees of [Wall to Wall] for the relevant period of time. 7." }, { "docid": "22435471", "title": "", "text": "of customers of [Wall to Wall]. 20. All receipts, invoices or other documents pertaining to any supplies purchased by [Wall to Wall]. Record, vol. 1, no. 33, Exhibit A at 5. Because one of the issues in this case is whether Wall to Wall engaged in construction work that crossed state lines, 29 U.S.C. § 203(b), (s)(l)(A)(i), we see no abuse of discretion in the limitations the court placed on these requests. . Josendis further states that he needed additional leeway to complete discovery because Wall to Wall's corporate records had been destroyed. See supra note 21. This argument is unavailing. Josendis could have moved the district court to consider the destruction of Wall to Wall’s corporate records as a bad faith act of spoliation, see, e.g., Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (\"In the Eleventh Circuit, 'an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.’ \") (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (per curiam)), but he failed to do so. Absent a finding of spoliation, we cannot hold against Wall to Wall the loss of its financial records. . By way of contrast to the denied requests for admissions, the court granted Josendis's motion for additional time as to the following requests, Order at 3, Josendis v. Wall to Wall Residence Repairs, Inc., No. 0:08-cv-61175-WJZ, 2009 WL 290241 (S.D.Fla. Feb. 5, 2009), all of which were on point and relevant to the question of enterprise coverage: 6. [Wall to Wall] performed work for the Miami Jewish Home and Hospital at some point during 2005-2008. 7. [Wall to Wall] performed work for the Miami Jewish Home and Hospital located at 5200 NE 2nd Avenue at some point during 2005-2008. 8. Plaintiff performed work on behalf of [Wall to Wall] at the Miami Jewish Home and Hospital. 9. [Wall to Wall] employed more than fifteen (15) employees in 2007. 10. [Wall to Wall] employed more than fifteen (15) independent contractors in 2007. 11. [Wall to Wall]" }, { "docid": "22435433", "title": "", "text": "of time and include the name of each individual accountant or bookkeeper who performed such services if the Certified Public Accounting firm, accounting firm or bookkeeping firm is or was a partnership, corporation or professional association. Record, vol. 1, no. 33, Exhibit B at 5, 8-11. The court denied Josendis’s motion to compel as to each of these interrogatories because they were either overbroad, irrelevant, or “redundant to other discovery requests already allowed.” The court was correct that the denied interrogatories were not specifically tailored to the issues raised in Wall to Wall’s summary judgment motion. Interrogatories 1, 2, and 5, for example, were overbroad and irrelevant based on our prior discussion. Interrogatories 1 and 2 were also redundant based on the district court’s decision to compel Wall to Wall to respond in limited fashion to interrogatory 1, which requested that Wall to Wall provide the addresses of all of its construction or remodeling jobs during the relevant time period, and to interrogatories 3 and 4, which requested that Wall to Wall list the clients for whom Wall to Wall and/or Josendis had performed any work between 2005 and 2008. Interrogatories 6 and 7, which again sought information about other Wall to Wall employees employed at the same time as Josendis, were irrelevant for the same reasons that the just-discussed requests were irrelevant. Also, interrogatory 8, concerning Wall to Wall’s accounting practices, was redundant based on the court’s prior decision to compel Wall to Wall to produce “[a]ll records reflecting a summary of the gross income of [Wall to Wall] including, but not limited to, IRS tax records, bank statements, balance sheets and records of any financial audit(s).” Ultimately, then, we find nothing in the record to indicate that the district court abused its discretion in denying Josendis’s motion to compel. As applied to the above requests and interrogatories, the court’s order denying the motion was within the bounds of reason and the law, and we will not disturb it. See Corwin, 475 F.3d at 1249; Betty K Agencies, 432 F.3d at 1337. We now turn to the question of" } ]

[ { "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": "6228808", "title": "", "text": "which reasonably induce or permit third parties to believe that an agency relationship exists.” 241 Kan. at 46, 734 P.2d 1071. The indices of apparent authority must come from the principal. Phillips v. Carson, 240 Kan. 462, 482, 731 P.2d 820 (1987); see In re Donald G. Atteberry, DVM, P.A., 1994 WL 191802, at *4 (D.Kan.1994) (citing Restatement (Second) of Agency § 27 (1958) (which defines apparent authority as “created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.”)). “An agency does not exist merely ‘because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem rational and probable...'\" In re Branding Iron Motel, Inc., 798 F.2d 396, 401 (10th Cir.1986) (quoting Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719, 723 (1976) (quoting in turn Shu- gar v. Antrim, 177 Kan. 70, 276 P.2d 372, 375 (1954))). It is the burden of the defendants as the parties relying on the asserted agency relationship to prove its existence by a preponderance of evidence that is clear and satisfactory. Barbara Oil Co. v. Kansas Gas Supply Corp. 250 Kan. 438, 448, 827 P.2d 24 (1992); Highland Lumber Co., Inc. v. Knudson, 219 Kan. at 366 Syl. ¶ 1, 548 P.2d 719. As part of this burden, the defendants must show their reliance on the agent’s apparent authority was reasonable. See Universal Premium Acceptance Corp. v. Preferred Nat. Ins. Co., 157 F.Supp.2d 1222, 1229 (D.Kan.2001). “[W]hat constitutes an agency and whether there is any competent evidence reasonably tending to prove its existence” are questions for the court, but “the weight to be given evidence and the resolution of conflicts therein are” matters reserved for the jury. Dealers Leasing, Inc. v. Allen 26 Kan.App.2d 745, 755, 994 P.2d 651(1999) (citations omitted)." }, { "docid": "1688491", "title": "", "text": "in this case which were not present in the cases relied on by Agri-Stor. As a result, the Bertholfs argue that there are genuine issues of material fact as to whether Dwight Gwaltney had actual authority, either express or implied, or apparent authority, to change the terms of the lease agreement. The court must agree, in part, with the Bertholfs. The law recognizes two distinct types of agency: actual and ostensible or apparent. Mohr v. State Bank of Stanley, 241 Kan. 42, 45, 734 P.2d 1071 (1987); Theis v. DuPont, Glore Forgan, Inc., 212 Kan. 301, 306, 510 P.2d 1212 (1973). The actual authority of an agent may be either express or implied. Id. In general terms, the Kansas Supreme Court has given the following guidance in distinguishing between the different types of agency: It is an express agency if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent. Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 236-37, 613 P.2d 1342 (1980); see also Professional Lens Plan, Inc. v. Polaris Leasing Co., 238 Kan. 384, 390-91, 710 P.2d 1297 (1985). Before addressing the applicability of the different theories of agency, the court will first note some features of the current case which distinguish it from the cases cited by AgriStor as being on point and controlling on this issue. In most of the cases relied on by Agri-Stor, the" }, { "docid": "1688492", "title": "", "text": "parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent. Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 236-37, 613 P.2d 1342 (1980); see also Professional Lens Plan, Inc. v. Polaris Leasing Co., 238 Kan. 384, 390-91, 710 P.2d 1297 (1985). Before addressing the applicability of the different theories of agency, the court will first note some features of the current case which distinguish it from the cases cited by AgriStor as being on point and controlling on this issue. In most of the cases relied on by Agri-Stor, the court found that an agency relationship had not been sufficiently shown because there were no facts properly before the court which could be construed as establishing that the alleged principal had any ability to “control” the alleged agent’s conduct. See Meuli, 634 F.Supp. at 1215; Kjergaard, No. 4-83-756, slip op. at 5, 1985 WL 403; and CIT Financial, 5 Kan.App.2d at 229, 615 P.2d 774. None of those cases, however, discuss or mention the applicability of agency by implied actual authority, by apparent authority, or by ratification. Thus, the court must assume that those theories were not properly before the court. In contrast, the Bertholfs have alleged and offered factual support (as more specifically addressed hereafter) for an agency by such theories. Moreover, this distinction is important to note, because with both implied actual authority and apparent authority, it is the principal’s action of furthering or allowing an appearance of au thority — not the actual ability to control the agent — which is key. Furthermore, two factually similar cases recently addressing the applicability of" }, { "docid": "11526717", "title": "", "text": "is evidence upon which the jury could properly find a verdict for that party. Brown v. McGraw-Edison Co., 736 F.2d 609, 612-13 (10th Cir.1984). The court may grant a motion for directed verdict only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position. O.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir.1989); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988). The evidence and the inferences to be drawn therefrom must be construed in a light most favorable to the nonmoving party. O.E.R., Inc., 880 F.2d at 1180; Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 498 (10th Cir.1984). It is not the function of the court to weigh the evidence or make credibility determinations. Hurd, 734 F.2d at 499. The issue of the existence of an agency relationship is normally a question of fact for the jury. Traylor v. Wachter, 3 Kan.App.2d 536, 543, 598 P.2d 1061 (1979), aff'd in part, rev’d in part on other grounds, 227 Kan. 221, 607 P.2d 1094 (1980). On appellate review, what constitutes agency and whether there is competent evidence reasonably tending to prove the relationship is a question of law. Id.; see Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 155, 453 P.2d 486 (1969); First National Bank of Denver v. Caro Construction Co., 211 Kan. 678, 681, 508 P.2d 516 (1973). While the determination of what constitutes agency and whether there is any evidence tending to prove its existence is a question of law, the weight to be given the evidence and the resolution of conflicts therein are functions of the trier of fact. Highland Lumber Co. v. Knudson, 219 Kan. 366, 371, 548 P.2d 719 (1976). When there is no material conflict in the evidence, the terms of the contract are not ambiguous or disputed, and only one inference may be drawn, the question of whether the relation of employer and employee exists is one of law for the court; otherwise it is one of fact for the jury. Houdek v. Gloyd, 152" }, { "docid": "1261524", "title": "", "text": "135 certification from the Federal Aviation Authority [FAA] for the 402B. 6. Consalvi and Baszner arranged all financial and insurance details involved in the purchase and operation of the 402B for Dronge. They did so under his authorization and were his agents. Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719 (1976); Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, 345 P.2d 702 (1959). 7. Consalvi and Baszner proposed the purchase of the 402B to Dronge in July 1974. Dronge anticipated that this plane might eventually be used for air taxi, charter, and rental use through Coastal Air, Inc. if such use could be cleared through the FAA by a Part 135 Certificate. However, the paperwork for this anticipated use was not perfected at the time the plane was purchased. 8. A retail installment contract to purchase the 402B was entered into by Dronge on July 31, 1974. The purchase was financed by the intervenor, Peoples Trust of New Jersey, now United Jersey Bank [United]. United was a loss payee and the beneficiary under the Breach of Warranty endorsement to the insurance policy, effective August 15, 1974. 9. The contract to purchase the aircraft was closed at the Teterboro Airport in New Jersey on July 31, 1974, at which time the relevant documents were signed. Present and in attendance at the closing were Louis Dronge, Robert Consalvi, Raymond Baszner and Robert Beach, who was representing the Peoples Trust. An insurance binder covering the 402B was given to Beach on or before this date. 10. At the time Dronge signed the contract no money exchanged hands. Norwood Aviation was to make all installment payments on the plane, and this was known to Beach and the Peoples Trust. However, Dronge was the sole owner and bore responsibility for payments. 11. There is conflicting testimony whether Beach was advised on or before the closing that it was anticipated that the 402B would be put up for Part 135 certification and would be used for charter, rental, and air taxi service. [Baszner testified that he told Beach; Beach and Dronge" }, { "docid": "11526719", "title": "", "text": "Kan. 789, 794, 107 P.2d 751 (1940). Under Kansas law, the controlling test in determining the existence of agency, so that the doctrine of respondeat superior would apply, is the right to control the purported employee. Hendrix, 203 Kan. at 155, 453 P.2d 486; see also Hughes v. Jones, 206 Kan. 82, 88, 476 P.2d 588 (1970). When agency relationship is in issue, the party relying on the existence of an agency relationship to establish his claim has the burden of establishing the existence of the relationship by clear and satisfactory evidence. Highland Lumber Co., 219 Kan. at 370, 548 P.2d 719. An employer is not liable for a tortious act committed by his employee, unless the act is done by authority of the employer, either express or implied, or unless the act is done by the employee in the course or within the scope of his employment. Beggerly v. Walker, 194 Kan. 61, 64, 397 P.2d 395 (1964). Under Kansas law, An employee is acting within the scope of his authority when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it. Williams v. Community Drive-in Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974) (quoting PIK 7.04); Hollinger v. Jane C. Stormont Hospital and Training School for Nurses, 2 Kan.App.2d 302, 311, 578 P.2d 1121 (1978). Whether an act is within the employee’s scope of employment ordinarily presents a question to be determined by the jury. Williams, 214 Kan. at 365, 520 P.2d 1296 (quoting 53 Am.Jur.2d, Master and Servant § 427). The liability of the employer for the acts of the employee depends upon whether the employee, when he did the wrong, was acting in the prosecution of the employer’s business and within the scope of his authority or whether he had stepped aside from" }, { "docid": "14518319", "title": "", "text": "legitimate, nonretaliatory justification for its termination of Foster’s employment. The company has sufficiently done so by contending that Foster was fired because she violated the company’s attendance rules. The burden now shifts back to Foster to demonstrate that the justification articulated by AlliedSignal is pretextual. To avoid summary judgment after an employer has articulated a legitimate, non-retaliatory reason for the termination, “the employee must assert specific facts establishing a triable issue as to whether the employer’s reason for discharge is a mere cover-up or pretext for retaliatory discharge.” Bracken v. Dixon Indus., Inc., 38 P.3d 679, 682 (Kan.2002) (citing Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994)). “Although the presumption of discrimination ‘drops out of the picture’ once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiffs prima facie case ‘and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.’ ” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citation omitted and ellipses in original) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The employee’s ultimate burden is to establish retaliation “by a preponderance of the evidence, but the evidence must be clear and convincing in nature.” Ortega, 874 P.2d at 1198. Evidence is clear “if it is certain, unambiguous, and plain to the understanding,” and it is convincing “if it is reasonable and persuasive enough to cause the trier of facts to believe it.” Id. Clear and convincing evidence is “not a quantum of proof, but rather a quality of proof.” Id.; see Barbara Oil Co. v. Kan. Gas Supply Corp., 250 Kan. 438, 827 P.2d 24, 32 (Kan.1992). Foster correctly notes that under Kansas law a plaintiff in a retaliation case “need not meet the clear and convincing standard at the summary judgment stage of the proceedings,” Rebarchek, 35 P.3d at 898, and that a plaintiff “can successfully oppose a motion for summary judgment by a preponderance" }, { "docid": "6228809", "title": "", "text": "v. Knudson, 219 Kan. 366, 548 P.2d 719, 723 (1976) (quoting in turn Shu- gar v. Antrim, 177 Kan. 70, 276 P.2d 372, 375 (1954))). It is the burden of the defendants as the parties relying on the asserted agency relationship to prove its existence by a preponderance of evidence that is clear and satisfactory. Barbara Oil Co. v. Kansas Gas Supply Corp. 250 Kan. 438, 448, 827 P.2d 24 (1992); Highland Lumber Co., Inc. v. Knudson, 219 Kan. at 366 Syl. ¶ 1, 548 P.2d 719. As part of this burden, the defendants must show their reliance on the agent’s apparent authority was reasonable. See Universal Premium Acceptance Corp. v. Preferred Nat. Ins. Co., 157 F.Supp.2d 1222, 1229 (D.Kan.2001). “[W]hat constitutes an agency and whether there is any competent evidence reasonably tending to prove its existence” are questions for the court, but “the weight to be given evidence and the resolution of conflicts therein are” matters reserved for the jury. Dealers Leasing, Inc. v. Allen 26 Kan.App.2d 745, 755, 994 P.2d 651(1999) (citations omitted). “Where the existence of agency is disputed, its existence or nonexistence is ordinarily a question of fact for the jury, to be determined upon proper instructions.” Barbara Oil Co. v. Kansas Gas Supply Corp. 250 Kan. at 447, 827 P.2d 24. The court believes there are questions of material fact concerning the defendants’ actual reliance on the plaintiffs conduct with regards to Phillip Altendorfs authority and the reasonableness of that asserted reliance. While saying they relied on Phillip Altendorfs title with Dodson International, there is no evidence that they made inquiries into the propriety of Altendorfs actions. The defendants competed with the plaintiff in the aviation salvage business, and the plaintiff conducted a larger volume of such business. For some of the transactions, the defendants had agreed to pay commissions to the Al-tendorfs from the profits and even paid the Altendorfs a commission in one such transaction. From these circumstances, the defendants were in a position where quite arguably a reasonable person would have inquired into the propriety of the Alten-dorfs engaging in such transactions" }, { "docid": "401548", "title": "", "text": "Inc., 212 Kan. 301, 510 P.2d 1212, 1216 (1973), Actual authority “may be either express or implied,” id., and “determining the scope of an agent’s actual authority will often require looking at the same evidence that established the existence of the relationship in the first place,” Golden Rule, 335 P.3d at 1195. Apparent authority is a little different. It is invoked “when a third party has dealt with an ostensible agent and then seeks to bind the principle to a transaction despite the fact that the agent had no .actual authority to bind him.” Theis, 510 P.2d at 1217 (citations omitted). But, actual authority and apparent authority are not mutually exclusive of .one another. Golden Rule, 335 P.3d at 1190, 1195. .Because 'the parties do not separate their arguments into the two steps required by Golden Rule, the court must consider whether plaintiff has alleged facts showing either actual or apparent authority. If plaintiff alleges that Mr. Leonard had authority to enter into the sale contract with plaintiff on Dinsdale’s behalf, then Dinsdale is bound to the contract as if it were a party to it. a. Actual Express Authority In a principal-agent relationship, express authority exists when “the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act.” Id. at 1189 (quoting Prof'l Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 710 P.2d 1297, 1303 (1985)); see also id. at 1188 (defining express authority as “stated in very specific or detailed' language” (quoting Restatement (Third) of Agency § 2.01 cmt. b)). The Complaint here alleges that Dinsdale sent Mr. Leonard to plaintiffs September 29, 2015 auction with express instructions to- purchase certain types of cattle on'Dinsdale’s behalf. Doc. 46 ¶¶ 9-11, 13. These allegations support a plausible inference that Dinsdale gave Mr. Leonard express authority to buy the cattle in question on Dinsdale’s behalf. Dinsdale tries to disagree. It argues that plaintiff alleges no authority because plaintiff never alleges “that Dinsdale Bros, had any kind of agency •-contract with” Mr. Leonard. Doc. 53 at 5. According to Dins-dale’s" }, { "docid": "17424605", "title": "", "text": "summary judgment on plaintiffs’ negligent entrustment claim. The court grants Enterprise Southwest’s Motion for Summary Judgment on this issue. C. Agency Relationship Between Enterprise Southwest and Kinslow Plaintiffs allege that Kinslow was acting as Enterprise Southwest’s agent at the time of the accident, thereby making Enterprise Southwest vicariously liable for plaintiffs’ injuries. Specifically, plaintiffs claim that, at the time of the accident, Enterprise Southwest had assumed control over the right to use and possess the 2000 Pontiac and had directed Kinslow to return the 2000 Pontiac to Garden City, Kansas. Plaintiffs contend that, because of the control and authority Enterprise Southwest allegedly exercised over the 2000 Pontiac in requiring its return to Garden City, Kansas, Kinslow was acting as an agent for Enterprise Southwest at the time of the accident. Enterprise Southwest denies Kinslow was its agent in any way, and claims plaintiffs have, as a matter of law, failed to establish the existence of an agency relationship between it and Kinslow. As the court noted in its September 29, 2003, Order, an agency is defined in Kansas as “a contract, either express or implied, by which one party confides to another the management of some business to be transacted in [the] party’s name, or on [the] party’s account, and by which the other assumes to do business and to render an account of it.” Barbara Oil Co. v. Kan. Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24, 31 (1992). The question of whether an agency existed is one of law for the court to decide; however, resolution of any factual disputes regarding the existence of an agency is left to the jury. Hartman v. Great Cent. Ins. Co., 915 F.Supp. 250, 254 (D.Kan.1996). An agency relationship may be either express or implied, and plaintiffs, as the party claiming the agency existed, must establish the existence of an agency. Barbara Oil Co., 250 Kan. at 448, 827 P.2d at 32; Highland Lumber Co. Inc. v. Knudson, 219 Kan. 366, 370, 548 P.2d 719, 722 (1976). Agency is express if the alleged principal party delegated authority to the alleged" }, { "docid": "6228807", "title": "", "text": "The defendants assert it is uncontroverted that any restrictions on Phillip Altendorfs authority were never communicated to the public or to Mansfield. “[A]cts and contracts of the agent as are within the apparent scope of the authority conferred on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the principal.” Bucher & Willis Consulting Engineers, Planners and Architects v. Smith, 7 Kan.App.2d 467, 469, 643 P.2d 1156 (1982). “An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent.” Mohr v. State Bank of Stanley, 241 Kan. 42, 45, 734 P.2d 1071 (1987) (quoting Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 236-37, 613 P.2d 1342 (1980)). An “[ajpparent agency is based on intentional actions or words of the principal toward third parties which reasonably induce or permit third parties to believe that an agency relationship exists.” 241 Kan. at 46, 734 P.2d 1071. The indices of apparent authority must come from the principal. Phillips v. Carson, 240 Kan. 462, 482, 731 P.2d 820 (1987); see In re Donald G. Atteberry, DVM, P.A., 1994 WL 191802, at *4 (D.Kan.1994) (citing Restatement (Second) of Agency § 27 (1958) (which defines apparent authority as “created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.”)). “An agency does not exist merely ‘because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem rational and probable...'\" In re Branding Iron Motel, Inc., 798 F.2d 396, 401 (10th Cir.1986) (quoting Highland Lumber Co., Inc." }, { "docid": "11526718", "title": "", "text": "227 Kan. 221, 607 P.2d 1094 (1980). On appellate review, what constitutes agency and whether there is competent evidence reasonably tending to prove the relationship is a question of law. Id.; see Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 155, 453 P.2d 486 (1969); First National Bank of Denver v. Caro Construction Co., 211 Kan. 678, 681, 508 P.2d 516 (1973). While the determination of what constitutes agency and whether there is any evidence tending to prove its existence is a question of law, the weight to be given the evidence and the resolution of conflicts therein are functions of the trier of fact. Highland Lumber Co. v. Knudson, 219 Kan. 366, 371, 548 P.2d 719 (1976). When there is no material conflict in the evidence, the terms of the contract are not ambiguous or disputed, and only one inference may be drawn, the question of whether the relation of employer and employee exists is one of law for the court; otherwise it is one of fact for the jury. Houdek v. Gloyd, 152 Kan. 789, 794, 107 P.2d 751 (1940). Under Kansas law, the controlling test in determining the existence of agency, so that the doctrine of respondeat superior would apply, is the right to control the purported employee. Hendrix, 203 Kan. at 155, 453 P.2d 486; see also Hughes v. Jones, 206 Kan. 82, 88, 476 P.2d 588 (1970). When agency relationship is in issue, the party relying on the existence of an agency relationship to establish his claim has the burden of establishing the existence of the relationship by clear and satisfactory evidence. Highland Lumber Co., 219 Kan. at 370, 548 P.2d 719. An employer is not liable for a tortious act committed by his employee, unless the act is done by authority of the employer, either express or implied, or unless the act is done by the employee in the course or within the scope of his employment. Beggerly v. Walker, 194 Kan. 61, 64, 397 P.2d 395 (1964). Under Kansas law, An employee is acting within the scope of his authority when he is" }, { "docid": "1261523", "title": "", "text": "aviation business written on Monarch in New Jersey at all times relevant. Hansman-McAvoy was an insurance brokerage firm located in Massachusetts, which brokered the subject policy. 3. Robert Consalvi and George Beviluaqua were partners and operated Norwood Aviation. Norwood Aviation was a fixed base operator on Norwood Airport, Nor-wood, Massachusetts; it had a flight school. Dronge had no interest in Norwood Aviation. However, he had in the past purchased several airplanes which were used by Norwood Aviation as student planes. Although Dronge was the owner of these aircraft, all payments on them, insurance matters, and other financial details were handled by persons other than Dronge. Dronge took no part in the daily operation of Norwood Aviation. 4. The principals of Norwood Aviation, Consalvi and Beviluaqua, formed a new corporation, Coastal Air, Inc. Coastal Air was formed for the purpose of operating an air taxi service. 5. Raymond Baszner was an aircraft consultant and broker who brokered the 402B and arranged for financing with Peoples Trust of New Jersey. Baszner also took part in obtaining Part 135 certification from the Federal Aviation Authority [FAA] for the 402B. 6. Consalvi and Baszner arranged all financial and insurance details involved in the purchase and operation of the 402B for Dronge. They did so under his authorization and were his agents. Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, 548 P.2d 719 (1976); Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, 345 P.2d 702 (1959). 7. Consalvi and Baszner proposed the purchase of the 402B to Dronge in July 1974. Dronge anticipated that this plane might eventually be used for air taxi, charter, and rental use through Coastal Air, Inc. if such use could be cleared through the FAA by a Part 135 Certificate. However, the paperwork for this anticipated use was not perfected at the time the plane was purchased. 8. A retail installment contract to purchase the 402B was entered into by Dronge on July 31, 1974. The purchase was financed by the intervenor, Peoples Trust of New Jersey, now United Jersey Bank [United]. United was a loss payee and" }, { "docid": "6228810", "title": "", "text": "“Where the existence of agency is disputed, its existence or nonexistence is ordinarily a question of fact for the jury, to be determined upon proper instructions.” Barbara Oil Co. v. Kansas Gas Supply Corp. 250 Kan. at 447, 827 P.2d 24. The court believes there are questions of material fact concerning the defendants’ actual reliance on the plaintiffs conduct with regards to Phillip Altendorfs authority and the reasonableness of that asserted reliance. While saying they relied on Phillip Altendorfs title with Dodson International, there is no evidence that they made inquiries into the propriety of Altendorfs actions. The defendants competed with the plaintiff in the aviation salvage business, and the plaintiff conducted a larger volume of such business. For some of the transactions, the defendants had agreed to pay commissions to the Al-tendorfs from the profits and even paid the Altendorfs a commission in one such transaction. From these circumstances, the defendants were in a position where quite arguably a reasonable person would have inquired into the propriety of the Alten-dorfs engaging in such transactions and the existence of such authority. See In re Branding Iron Motel, Inc., 798 F.2d at 401. These same circumstances seriously call into the question the reasonableness of the defendants’ assumption that Altendorfs had the authority to engage in transactions which would cost their employer profits and from which they would earn personal commissions. Id. As these are disputed material questions to be resolved by the finder of fact, the court denies the defendants’ motion for summary judgment on this issue. TRADE SECRETS The defendants contend that the plaintiffs claims for misappropriation of trade secrets in violation of K.S.A. 60-3320 must fail because the plaintiff has not specified with particularity the information alleged to be a trade secret, the plaintiff did not take reasonable steps to protect the secrecy of any such secrets, and the plaintiff cannot show that the defendants misappropriated this information. The plaintiff claims the Altendorfs in working with the defendants to formulate and submit bids on the different aircraft used the plaintiffs “confidential information and methods for calculating and perfecting and" }, { "docid": "7294296", "title": "", "text": "project was to be completed before the plaintiff was to receive the agreed compensation. 9. If the parties to a contract have signed a writing which they intended to be the final and exclusive statement of the terms of the agreement between them, it is completely integrated. There is no requirement of a formal writing and a handwritten memorandum containing the essential terms may be a binding and integrated contract. H. B. Zachary Co. v. O’Brien, 378 F.2d 423, 424 n.l & 426 (10th Cir. 1967). When a writing is complete, the court must look within the four corners of the instrument to determine the terms of the agreement and evidence which varies those terms is not admissible. First National Bank of Olathe v. Clark, 226 Kan. 619, 624, 602 P.2d 1299, 1303 (1979); Steel v. Eagle, 207 Kan. 146, 149, 483 P.2d 1063, 1066 (1971); Smith v. Russ, 184 Kan. 773, 778, 339 P.2d 286, 291 (1959). However, in order to determine in the first instance if a writing is completely integrated, the court is not restricted and should inquire into the circumstances surrounding the transaction, including the words and actions of the parties. See Martin v. Edwards, 219 Kan. 466, 474, 548 P.2d 779, 786 (1976); Allen v. Bowling, 173 Kan. 485, 490, 249 P.2d 679, 682 (1952); Amortibank Investment Co. v. Jehan, 220 Kan. 33, 43, 551 P.2d 918, 926 (1976); J. Murray, Contracts § 106 (2d rev. ed. 1974). 10. The memorandum of January 28, 1977, was handwritten by the plaintiff and signed by the defendant, Dale Frey. Its authenticity was stipulated by the parties. See Pretrial Conference Order Dk. 27 at 1 H. It is a memorialization of the agreed compensation for services between the plaintiff and the defendants, Dale Frey and Mt. Carmel Apartments, Inc. While the specific services are not described, the contract is not so indefinite that it cannot be enforced. See, e.g., Augusta Bank & Trust Co. v. Broomfield, 231 Kan. 52, 643 P.2d 100,107 (1982); Care Display, Inc. v. Didde-Glaser, Inc., 225 Kan. 232, 236, 589 P.2d 599, 604 (1979);" }, { "docid": "18595907", "title": "", "text": "ruling. We also disagree with the district court's determination that fact 29 is unsupported by the record. The record supports the bankruptcy court’s finding that Sandlian would realize a high percentage return on the transaction, record vol. IV at 202, that Branding Iron’s president would satisfy his debt, record vol. IV at 253, and that the real estate brokers would receive their commission from the sale. Record vol. IV at 154, 160 and 354. The record also is clear that Branding Iron would not benefit from the transaction, record Vol. IV at 310-11, and that the parties were aware of this, record Vol. IV at 191-92, 200, 203, 206-08, 239-40 and 349. These findings are also supported by facts 23, 24 and 25, which are uncontested. Record vol. Ill at 14-16. There is support, therefore, for the bankruptcy court’s characterization of the transaction as a “scheme.” The bankruptcy court rejected Sandlian’s assertion that Branding Iron’s president had the ostensible authority to encumber Branding Iron property to secure his personal debt. The district court rejected this legal conclusion by not accepting the bankruptcy court’s finding that Sandlian had actual notice that Branding Iron’s president was acting on his own behalf and not on behalf of the company. After carefully reviewing the record and Kansas law, we agree with the bankruptcy court that Branding Iron’s president was not an ostensible agent when it mortgaged company property to secure his personal debt. We begin by noting that a party asserting a principal-agent relationship bears the burden of establishing its existence by “clear and satisfactory evidence.” Rodgers v. Arapahoe Pipeline Co., 185 Kan. 424, 345 P.2d 702, 707 (1959). An agency does not exist merely “because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem rational and probable — ” Highland Lumber Co. v. Knudson, 219 Kan. 366, 548 P.2d 719, 723 (1976), quoting Shugar v. Antrim, 177 Kan. 70, 276 P.2d 372, 375 (1954). The Kansas Supreme Court has defined" }, { "docid": "342288", "title": "", "text": "City of Salina, Kan. v. Maryland Cas. Co., 856 F.Supp. 1467, 1475 (D.Kan.1994)). . Id. (citing Security State Bank of Kansas City v. Aetna Cas. & Sur. Co., 825 F.Supp. 944, 946 (D.Kan.1993)). . Black’s Law Dictionary 1158 (6th ed.1990). . Id. at 1291 (7th ed.1999). . Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir.2002). .Id. . K.S.A. 56-306(a). . In re Johnson, 19 B.R. 371, 374 (Bkrtcy.D.Kan.1982) (citing Grimm v. Pellesen, 215 Kan. 660, 527 P.2d 978 (1974)) (citing Potts v. Lux, 161 Kan. 217, 166 P.2d 694 (1946)). . Id. . Denison State Bank v. Madeira, 230 Kan. 684, 691, 230 Kan. 815, 640 P.2d 1235, 1241 (1982). . K.S.A. 56-321 (repealed 1999). . Rajala v. Allied Corp., 919 F.2d 610, 615 (10th Cir.1990) (quoting Denison State Bank, 230 Kan. at 696, 640 P.2d 1235). . Denison State Bank, 230 Kan. at 692, 230 Kan. 815, 640 P.2d 1235. . Rajala, 919 F.2d at 616-16 (citing Wolf v. Brungardt, 215 Kan. 272, 284-85, 524 P.2d 726, 736 (1974)). . Id. at 615. . Bonanza, Inc. v. McLean, 242 Kan. 209, 747 P.2d 792 (1987). . Denison State Bank, 230 Kan. at 691, 230 Kan. 815, 640 P.2d 1235. . Appeal of Scholastic Book Clubs, Inc,, 260 Kan. 528, 540, 920 P.2d 947 (1996). . Id. . Id. (citing Kunz, 124 F.2d at 913). . Id. . Id. (citing Turner and Boisseau, Chtd. v. Marshall Adjusting Corp., 775 F.Supp. 372, 378 (D.Kan.1991)). . Id. . Black’s Law Dictionary 1170 (7th ed.1999). . 17U.S.C. § 102(b). . Black’s Law Dictionary 1170 (7th ed.1999) (quoting Paul Goldstein, Copyright's Highway 12 (1994))." }, { "docid": "401549", "title": "", "text": "to the contract as if it were a party to it. a. Actual Express Authority In a principal-agent relationship, express authority exists when “the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act.” Id. at 1189 (quoting Prof'l Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 710 P.2d 1297, 1303 (1985)); see also id. at 1188 (defining express authority as “stated in very specific or detailed' language” (quoting Restatement (Third) of Agency § 2.01 cmt. b)). The Complaint here alleges that Dinsdale sent Mr. Leonard to plaintiffs September 29, 2015 auction with express instructions to- purchase certain types of cattle on'Dinsdale’s behalf. Doc. 46 ¶¶ 9-11, 13. These allegations support a plausible inference that Dinsdale gave Mr. Leonard express authority to buy the cattle in question on Dinsdale’s behalf. Dinsdale tries to disagree. It argues that plaintiff alleges no authority because plaintiff never alleges “that Dinsdale Bros, had any kind of agency •-contract with” Mr. Leonard. Doc. 53 at 5. According to Dins-dale’s argument, this omission precludes plaintiff from ever establishing any type of authority because an agent does not have authority unless “a contract [exists] establishing the agency that gives ... the agent ‘authority to bind’ the alleged principal.” Id. (citations omitted). For support, Dins-dale cites Scholastic Book Clubs. But to no avail. Nothing in Scholastic Book Clubs suggests that an agent lacks authority t’o act when no contract exists establishing his power to bind the principal. Indeed, the case stands for the opposite proposition: “While an express contract may create an agency relationship, ■ conduct implying an agency relationship serves just as well.” In re Scholastic Book Clubs, Inc., 920 P.2d at 955. Nothing in Kansas agency law requires plaintiff to allege the existence of an agency contract -granting Mr. Leonard the ability to bind Dinsdale. The court thus finds no fault with the absence of such allegations in the Complaint. Accordingly, the court concludes that plaintiff has alleged facts sufficient to show that Mr. Leonard had actual, express authority from Dinsdale to purchase the 668" }, { "docid": "17424606", "title": "", "text": "defined in Kansas as “a contract, either express or implied, by which one party confides to another the management of some business to be transacted in [the] party’s name, or on [the] party’s account, and by which the other assumes to do business and to render an account of it.” Barbara Oil Co. v. Kan. Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24, 31 (1992). The question of whether an agency existed is one of law for the court to decide; however, resolution of any factual disputes regarding the existence of an agency is left to the jury. Hartman v. Great Cent. Ins. Co., 915 F.Supp. 250, 254 (D.Kan.1996). An agency relationship may be either express or implied, and plaintiffs, as the party claiming the agency existed, must establish the existence of an agency. Barbara Oil Co., 250 Kan. at 448, 827 P.2d at 32; Highland Lumber Co. Inc. v. Knudson, 219 Kan. 366, 370, 548 P.2d 719, 722 (1976). Agency is express if the alleged principal party delegated authority to the alleged agent by words which expressly authorized the agent to do the delegated act. If no express authorization is found, the court must consider whether the alleged agent possessed implied power. Implied power exists when, from the facts and circumstances of the case, it appears there was an implied intention to create an agency — regardless of whether the alleged principal denies the intention to create an agency or whether the parties themselves understood the relationship to be one of agency. Highland Lumber Co. Inc., 219 Kan. at 370, 548 P.2d at 723. In Shugar v. Antrim, 177 Kan. 70, 74, 276 P.2d 372, 375 (1954), the Kansas Supreme Court held that an agency relationship is implied: if, from statements of the parties, their conduct and other relevant circumstances, it appears the intent of the parties was to create a relationship permitting the assumption of authority by an .agent which, when exercised by him, would normally and naturally lead others to believe in and rely on his acts as those of the principal. While the relations" }, { "docid": "18595908", "title": "", "text": "legal conclusion by not accepting the bankruptcy court’s finding that Sandlian had actual notice that Branding Iron’s president was acting on his own behalf and not on behalf of the company. After carefully reviewing the record and Kansas law, we agree with the bankruptcy court that Branding Iron’s president was not an ostensible agent when it mortgaged company property to secure his personal debt. We begin by noting that a party asserting a principal-agent relationship bears the burden of establishing its existence by “clear and satisfactory evidence.” Rodgers v. Arapahoe Pipeline Co., 185 Kan. 424, 345 P.2d 702, 707 (1959). An agency does not exist merely “because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem rational and probable — ” Highland Lumber Co. v. Knudson, 219 Kan. 366, 548 P.2d 719, 723 (1976), quoting Shugar v. Antrim, 177 Kan. 70, 276 P.2d 372, 375 (1954). The Kansas Supreme Court has defined an apparent or ostensible 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.” Greep v. Bruns, 160 Kan. 48, 159 P.2d 803, 808 (1945). This form of agency is based on a theory of estoppel and requires that an agent reasonably appear to third persons to be authorized to act for the principal. Id. at 809; Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, 75 (1975). The record reveals that Sandlian was aware that Branding Iron’s president was personally indebted to the real estate brokers. It is also clear that Sandlian was aware that Branding Iron’s president was mortgaging Branding Iron property to secure his personal loan. Because Sandlian knew that Branding Iron’s president was using company property to secure a personal debt, it should have inquired into the propriety of the transaction and the existence of authority. It was unreasonable for Sandlian to assume" } ]

[ { "docid": "22676331", "title": "", "text": "his own, of the underlying facts. As a consequence, petitioner contends, AEDPA erects no barrier to an evidentiary hearing in federal court. Section 2254(e)(2), the provision which controls whether petitioner may receive an evidentiary hearing in federal district court on the claims that were not developed in the Virginia courts, becomes the central point of our analysis. It provides as follows: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— “(A) the claim relies on— “(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or “(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and “(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” By the terms of its opening clause the statute applies only to prisoners who have “failed to develop the factual basis of a claim in State court proceedings.” If the prisoner has failed to develop the facts, an evidentiary hearing earinot be granted unless the prisoner’s case meets the other conditions of § 2254(e)(2). Here, petitioner concedes his case does not comply with § 2254(e)(2)(B), see Brief for Petitioner 25, so he may receive an evidentiary hearing only if his claims fall outside the opening clause. There was no hearing in state court on any of the claims for which petitioner now seeks an evidentiary hearing. That, says the Commonwealth, is the end of the matter. In its view petitioner, whether or not through his own fault or neglect, still “failed to develop the factual basis of a claim in State court proceedings.” Petitioner, on the other hand, says the phrase \"failed to develop” means lack of diligence in developing the claims, a defalcation he contends did not occur since he made adequate efforts during state-court" } ]

[ { "docid": "8086969", "title": "", "text": "fact are reviewed de novo. See, e.g., Foster v. Schomig, 223 F.3d 626, 634 n. 4 (7th Cir.2000); Warren v. Richland County Circuit Court, 223 F.3d 454 (7th Cir.2000). The purpose of the AEDPA is to advance the doctrines of comity, finality, and federalism. See Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). It is an attempt to “limit the scope of federal intrusion into state criminal adjudications and to safeguard the States’ interest in the integrity of their criminal and collateral proceedings.” Id. at 436, 120 S.Ct. 1479. A. Evidentiary Hearing Section 2254(e)(2) controls whether Richardson should have received an evi- dentiary hearing on his claim in the district court. The statute reads as follows: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on- — • (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. § 2254(e)(2). It is undisputed that Richardson did not fully develop the factual basis of his prosecutorial misconduct claim in state court. However, “[u]nder the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at 432, 120 S.Ct. 1479 (emphasis added). The district court found that there was no lack of diligence on the part of Richardson’s counsel; “rather[,] their further inquiry regarding the Myron Moses/Leonard Butler matter was effectively thwarted by their reasonable reliance on the veracity of the prosecutor’s misrepresentations" }, { "docid": "13816622", "title": "", "text": "instructions for the District Court to apply the proper AEDPA standards. See Terry Williams, 529 U.S. at 402-413, 120 S.Ct. 1495 (describing the difference between § 2254(d)’s standards and de novo review). In the course of this appeal, other issues have arisen that should be dealt with on remand. One issue involves the federal evidentiary hearing held by the Magistrate Judge. Although both the Magistrate Judge and District Court relied on testimony from that hearing, neither the Magistrate Judge’s Report and Recommendation nor the District Court’s opinion appeared to examine whether the hearing complied with AEDPA, 28 U.S.C. § 2254(e)(2). That section provides: If the applicant [for a writ of habeas corpus] has failed to develop the factual basis of a claim in State court proceedings, the [federal] court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. As Boyd does not contend that he can fulfill the conditions of either § 2254(e)(2)(A) or (B), the section’s opening clause is dispositive. If Boyd “failed to develop the factual basis” of his claim in state court, then he should not receive a federal evidentiary hearing. In construing this opening clause, the Supreme Court has stated that “[t]he purpose of the fault component of ‘failed’ is to ensure the prisoner undertakes his own diligent search for evidence.” Michael Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Boyd argues that he was sufficiently diligent in seeking an evidentiary hearing in state court, and that § 2254(e)(2) is therefore no obstacle to the Magistrate Judge’s hearing. See id. at 437, 120 S.Ct. 1479" }, { "docid": "4258086", "title": "", "text": "274 F.3d at 948-50; Joyner v. King, 786 F.2d 1317, 1321-22 (5th Cir.), cert. denied, 479 U.S. 1010, 107 S.Ct. 653, 93 L.Ed.2d 708 (1986). In contrast to former § 2254(d), AEDPA greatly curtailed federal habeas court discretion to conduct evidentiary hearings. Express restrictions are found at 28 U.S.C. § 2254(e)(2). If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on- — - (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2) (emphasis added). Understandably, this standard is almost identical to the one a petitioner must satisfy to be permitted to file a second or successive habeas application . under § 2254. See 28 U.S.C. § 2244(b)(2). Sub-part (e)(2) is recognized as a “dramatie[] restriction]” on “the ability of district courts to hold an evidentiary hearing”. Spreitzer v. Schomig, 219 F.3d 639, 648 n. 1 (7th Cir.2000), cert. denied, 532 U.S. 925, 121 S.Ct. 1366, 149 L.Ed.2d 294 (2001). Pursuant to its plain language, sub-part (e)(2)’s hearing-bar applies, however, only if a habeas petitioner failed in state court “to develop the factual basis” for his claim. Moreover, “[u]nder the opening clause of [subpart](e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel”. Michael Williams, 529 U.S. at 432, 120 S.Ct. 1479; see also Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000). Restated, if a petitioner develops a factual basis for a claim in state court (or sufficiently attempts" }, { "docid": "22976867", "title": "", "text": "were appropriate in this case. “If an applicant had failed to develop the factual basis of a claim in State court proceedings,” the federal court may hold an evidentiary hearing if: (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfin-der would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” (Michael) Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000). Furthermore, the (Michael) Williams Court associated the “failure to develop” standard with the cause inquiry for procedural default. See id. at 1494. Dowthitt argues that he exercised due diligence because he requested evidentiary hearings in state habeas proceedings, and those requests were denied. Thus, he asserts that his failure to develop his habeas claims are excused under § 2254(e)(2). We do not agree. Mere requests for evi-dentiary hearings will not suffice; the petitioner must be diligent in pursuing the factual development of his claim. As the state habeas court found, Dowthitt did not present affidavits from family members and did not show that they “could not be obtained absent an order for discovery or a hearing.” In response, Dowthitt now argues that his “proffers” of what would be presented at a hearing constituted due diligence. We do not find his argument persuasive. Given that the family members were willing to testify at a hearing, Dowthitt could have easily obtained their affidavits. A reasonable person in Dow-thitt’s place would have at least done as much. Dowthitt’s arguments that lack of funding" }, { "docid": "22976866", "title": "", "text": "lesser offenses of rape and murder.” Dowthitt thus fails to demonstrate that reasonable jurists would debate the propriety of not granting an instruction for lesser-included offenses. With no substantial showing on this claim, Dowthitt does not meet the requirement for a COA. F. District Court’s Evidentiary Hearing Dowthitt asserts that the district court erred in providing only a limited evidentiary hearing on his actual innocence claim and in not holding a hearing on his other claims. He argues that the lack of factual development below was not due to his actions or lack thereof. Dowthitt faults particularly the state habeas court judge’s actions. He states that the judge who presided over his state district court habeas proceedings, had recused himself from trial because one of the trial counsel was his own attorney in a divorce proceeding. The judge, however, did not recuse himself from the habeas proceedings, refused to conduct an evidentiary hearing on the habeas claims, and accepted verbatim the prosecution’s proposed findings. Section 2254(e)(2) guides our determination of whether these requested evidentia-ry hearings were appropriate in this case. “If an applicant had failed to develop the factual basis of a claim in State court proceedings,” the federal court may hold an evidentiary hearing if: (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfin-der would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” (Michael) Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000). Furthermore, the (Michael) Williams Court" }, { "docid": "15560113", "title": "", "text": "286 (3d Cir.2000)). As amended, Section 2254(e) provides as follows: (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2000). Under § 2254(e), the federal habeas court must initially ask “whether the factual basis was developed in the state court, which is ‘a question susceptible, in the normal course, of a simple yes or no answer.’ ” Henry, 218 F.Supp.2d at 684 (quoting Michael Williams, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)). In the case where the factual basis was developed, “the federal habeas court must apply the presumption of correctness codified in § 2254(e)(1), which petitioner can only rebut with clear and convincing evidence.” Id. (citations omitted). “If the factual basis was not developed, then the federal habeas court must determine whether the petitioner failed to develop the factual basis of his claim.” Id. (citing 28 U.S.C § 2254(e)(2)). In order to determine whether petitioner failed to develop the state court record, “[t]he question is not whether the facts could have been discovered but instead whether the petitioner was diligent in his efforts" }, { "docid": "23047589", "title": "", "text": "poor school performance, and his good character as an adult. In addition, Ward argues that his trial counsel failed to secure and submit affidavits from members of the community who would have asked the jury to spare his life. Under 28 U.S.C. § 2254(e)(2), as amended by the AEDPA, a federal court shall not hold an evidentiary hearing on a claim if the petitioner has failed to develop the factual basis for the claim in state court unless the petitioner shows that (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). If the petitioner was not diligent in his efforts to develop his claim in state court, he may not receive an evidentiary hearing unless he can satisfy the provisions of § 2254(e)(2)(A) and (B). See Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 1491, 146 L.Ed.2d 435 (2000). As regards the diligence requirement, the Supreme Court instructs us that [f]or state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner has failed to develop the factual basis of a claim where he was" }, { "docid": "15948386", "title": "", "text": "facts is presumed correct, unless the petitioner rebuts this presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). AEDPA also limits a federal court’s ability to grant an evidentiary hearing: (e).... (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254. In M. Williams v. Taylor, the Supreme Court interpreted the opening clause of § 2254(e)(2) to contain its own “diligence” requirement, separate from that of § 2254(e)(2)(A)(ii). See 529 U.S. 420, 434-35, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The “failed to develop” clause in § 2254(e)(2) means not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of “failed” is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.... Id. at 435, 120 S.Ct. 1479. “Diligence” for purposes of § 2254(e)(2) “will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437,120 S.Ct. 1479. If the petitioner fails the diligence requirement of § 2254(e)(2), he is channeled into the strict requirements of subparts (A) and (B). Under those circumstances, a federal court may grant an evidentiary hearing only if the claim relies" }, { "docid": "13756923", "title": "", "text": "2254 concerns the standards governing evidentiary hearings in federal habeas cases. One purpose of the AEDPA has been to simplify and speed the federal habeas process; consistent with this goal, the AEDPA added the following provision to § 2254: If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. 2254(e)(2). This provision places a fairly stringent limitation on the power of the federal courts to order evidentiary hearings in habeas cases.- Indeed, if a petitioner fails to develop an adequate factual record in the state courts, an evidentiary hearing could only be ordered if one of the two narrow exceptions to the general rule prohibiting such hearings applied. However, the question of what exactly constitutes a “failure to develop” the factual basis for a claim in state court is one on which we have not spoken. The Supreme Court, however, has addressed this question in a recent opinion, and stated that a petitioner cannot be said to have “failed to develop” relevant facts if he diligently sought, but was denied, the opportunity to present evidence at each stage of his state proceedings. Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (Williams I). The Court noted that § 2254(e) requires habe-as petitioners to be diligent in presenting the factual bases of their federal claims to state courts, and that a failure to do so will result in the denial of an evidentiary hearing in federal court (unless the statute’s other" }, { "docid": "21800117", "title": "", "text": "U. S. 420, 435 (2000) (Michael Williams). Thus, § 2254(e)(2) provides: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— “(A) the claim relies on— “(i) a new rule of constitutional law, made retroactive to eases on collateral review by the Supreme Court, that was previously unavailable; or “(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and “(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” In Michael Williams, we construed the opening clause of this provision — which triggers the bar on evidentiary hearings — to apply when “there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id., at 432. AEDPA thus bars an evidentiary hearing for a nondiligent petitioner unless the petitioner can satisfy both §§ 2254(e)(2)(A) and (B), which few petitioners can. Section 2254(e)(2) in this way incentivizes state petitioners to develop the factual basis of their claims in state court. To the limited extent that federal evidentiary hearings are available under AEDPA, they ensure that petitioners who diligently developed the factual basis of their claims in state court, discovered new evidence after the state-court proceeding, and cannot return to state court retain the ability to access the Great Writ. See ante, at 203-204 (Alito, J., concurring in part and concurring in judgment). “When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the ‘writ of habeas corpus plays a vital role in protecting constitutional rights.’” Holland v. Florida, 560 U. S. 631, 649 (2010) (quoting Slack v. McDaniel, 529 U. S. 473, 483 (2000)). Allowing a petitioner to introduce new evidence at a hearing in the limited circumstance permitted by § 2254(e)(2) does not upset the balance" }, { "docid": "22284030", "title": "", "text": "evidentiary hearing in federal court if (1) “the facts were not adequately developed in the state court, so long as that failure [was] not attributable to the petitioner,” Medina v. Barnes, 71 F.3d 363, 369-70 (10th Cir.1995), and (2) “his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.” Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir.2003) (en banc) (internal quotation marks omitted). AEDPA changed the standard. It provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i)- a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered .through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). If the prisoner did not “fail[ ] to develop the factual basis of [his] claim in State court, § 2254(e)(2) is not applicable and a federal habeas court should proceed to analyze whether a[n evi-dentiary] hearing is appropriate or required under pre-AEDPA standards.” Bryan, 335 F.3d at 1214 (internal citations and quotation marks omitted). We agree with the district court that Mr. Cannon has not satisfied the AEDPA requirements set forth in § 2254(e)(2)(A) or (B). To determine whether pre-AEDPA standards apply, we must review whether Mr. Cannon was diligent in trying to develop the factual record in state court. The Supreme" }, { "docid": "17429423", "title": "", "text": "to expand the record.” Id. at 790. However, we explained, “[t]hese procedural devices ... can be used to introduce new factual information into the record in lieu of an evidentiary hearing. When expansion of the record is used to achieve the same end as an evidentiary hearing, the petitioner ought to be subject to the same constraints that would be imposed if he had sought an evidentiary hearing.” Id. at 790 (citations and footnote omitted). We therefore held that the petitioner must satisfy § 2254(e)(2)’s “requirements before he may place new factual information before the federal court.” Id. at 790. Thus, to introduce the new affidavits, Mr. Owens must satisfy the standards of § 2254(e)(2). Section 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). In Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (Williams II), the Court explained that “failed to develop the factual basis,” as used in this opening clause of § 2254(e)(2), is a “conditional clause” which must be satisfied before the remainder of § 2254(e)(2) comes into play. Id. at 431, 120 S.Ct. 1479. The Court further stated that this clause “directs attention to the prisoner’s efforts in state court”: “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at" }, { "docid": "10066720", "title": "", "text": "this issue, however, because we affirm the dismissal of Lopez’s claim on an alternate ground. Even assuming that the district court should not have reached the issue of procedural default, Lopez failed to present any of the evidence in support of his expanded claim in state court. Thus, he is separately barred from seeking relief under 28 U.S.C. § 2254(e)(2). Section 2254(e)(2) imposes a high bar on expanding the record to include evidence that was not presented in state court. The section provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). These “same restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing.” Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); accord Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005). The parties here chiefly dispute whether the statute’s trigger — namely, the petitioner’s “fail[ure] to develop the factual basis of a claim in State court proceedings” — applies to Lopez. A petitioner “fail[s] to develop the factual basis of a claim in State court proceedings” under the opening clause of § 2254(e)(2) where “there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at 432, 120 S.Ct. 1479. Diligence “depends upon whether the pris oner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state" }, { "docid": "5564144", "title": "", "text": "and quotation omitted). The Court has noted that the rules “afford the district court substantial discretion in the conduct of a case,” including “a degree of discretion in determining whether to hold an evidentiary hearing.” Lonchar v. Thomas, 517 U.S. 314, 326, 116 S.Ct. 1293, 1300, 134 L.Ed.2d 440 (1996). In passing AEDPA, however, Congress modified the discretion afforded to the dis trict court and erected additional barriers limiting a habeas petitioner’s right to discovery or an evidentiary hearing. Section 2254(e)(2) states: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). The Supreme Court interpreted § 2254(e)(2) in its opinion in Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The Court considered whether the “failed to develop” language in the opening clause of the provision indicates that the § 2254(e)(2) bar is only applicable when a habeas petitioner has not been sufficiently diligent in his efforts to develop a record in state courts. The Court concluded that this language imported a “threshold standard of diligence,” such that the discovery provisions of § 2254(e)(2) only apply if the petitioner was not reasonably diligent in trying to develop the factual record while in state court. Id. at 433-34, 120 S.Ct. at 1489. The Court held that “[djiligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of information available at the time, to investigate and pursue claims in state court.”" }, { "docid": "22886946", "title": "", "text": "dispute of material fact, which if resolved in his favor would grant him relief, and he has been denied a full and fair hearing in the state proceedings, a federal evidentiary hearing is mandatory. See 372 U.S. at 312-13, 83 S.Ct. at 757, overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6, 112 S.Ct. 1715, 1717-18, 118 L.Ed.2d 318 (1992) (holding that where the petitioner has failed to develop a claim in state court proceedings, he must establish cause and prejudice in order to receive a federal evidentiary hearing). . 28 U.S.C. § 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evi-dentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (I) a new rule of constitutional law, made retroactively applicable to cases on collateral review by the Supreme Court, that was previously unavailable, or (ii) a factual predicate that could not have been discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. . The district court reached its decision prior to the Supreme Court’s decision in Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) in which the Supreme Court confirmed that § 2254(e)(2) did not bar evidentiary hearings when the failure to develop the record did not result from the prisoner's neglect or lack of due diligence. The Supreme Court handed down two decisions that we cite in this opinion in which the petitioner has the last name \"Williams.” We distinguish between those two decisions by including the petitioners' first names in our citation of these cases. . Rule 8(a) of the Rules Governing § 2254 Cases provides: If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are" }, { "docid": "1977031", "title": "", "text": "prepare or investigate possible mitigation evidence, and such failure was not a strategic or tactical decision; (4) the Petitioner is entitled to relief because the prosecution illegally suppressed Brady material which has only very recently been discovered; (5) the Court prematurely denied the Petitioner’s certificate of appealability. (1) The Court improperly denied the Petitioner discovery and an evidentiary hearing. 28 U.S.C. § 2254(e)(2) states: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- (A) the claim relies on - (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. The Supreme Court in Williams, — U.S. -, 120 S.Ct. 1479, 146 L.Ed.2d 435, held that “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 1488. Furthermore, the Court reasoned that “The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of ‘failed’ is to ensure the prisoner undertakes his own diligent search for evidence.” Id. at 1490. Importantly, to satisfy the diligence requirement, a petitioner “at a minimum [must] seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. The diligence requirement exists to preserve comity between the State and Federal courts. “Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the" }, { "docid": "2226886", "title": "", "text": "425 F.3d 853, 860 (10th Cir.2005) (“The purpose of an evidentiary hearing is to resolve conflicting evidence.”). The district court therefore correctly rejected Wilson’s request for an evidentiary hearing. V. Conclusion Because I conclude the OCCA correctly determined Wilson’s trial counsel was not constitutionally ineffective under Strickland, and because the district court did not abuse its discretion in denying an eviden-tiary hearing, I respectfully dissent from Part III of the majority’s opinion. . I agree with the majority 28 U.S.C. § 2254(e)(2) does not bar Wilson’s request for an evidentiary hearing because Wilson diligently sought to develop the factual basis for his ineffective assistance of counsel claim in state court. Because Wilson diligently requested, and was denied, the opportunity to develop the state court record, § 2254(e)(2) does not bar his request for an evidentiary hearing in federal court. See Williams, 529 U.S. at 432, 120 S.Ct. 1479; Barkell v. Crouse, 468 F.3d 684, 695-96 (10th Cir.2006). . See 28 U.S.C. § 2254(e)(2) (\"If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficienl to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”); Schriro, 127 S.Ct. at 1940 (\"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.”) . See 28 U.S.C. § 2254(d) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court" }, { "docid": "2647342", "title": "", "text": "is neither “contrary to” nor an “unreasonable application” of federal law. B. Hall also says that even if we were to conclude that his counsel’s performance does not entitle him to habeas relief from his conviction, we should remand the case for access to psychological testing and for an evidentiary hearing to develop the voluntary manslaughter claim. Again, we are unpersuaded. Under the AEDPA, evidentiary hearings are permitted only in a sharply delineated number of circumstances. In particular, the statute provides that: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2) (emphasis added). Recently, we explained the “failure to develop” language of § 2254(e)(2), holding that: [T]he question of what exactly constitutes a “failure to develop” the factual basis for a claim in state court is one on which we have not spoken. The Supreme Court, however, has addressed this question in a recent opinion, and stated that a petitioner cannot be said to have “failed to develop”' relevant facts if he diligently sought, but was denied, the opportunity to present evidence at each stage of his state proceedings. Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 485 (2000) ('Williams I): The Court noted that § 2254(e) requires habeas petitioners to be diligent in presenting the factual bases of their federal claims to state courts, and that a failure to do so will result in the denial of an evidentiary hearing in federal court (unless the statute’s other" }, { "docid": "23363102", "title": "", "text": "problem is that Mr. Fairchild did not present these affidavits to the state court.- . He produced them for the first time at federal habeas proceeding. We thus have the very situation that- the dissenters in Wilson had feared: that a prisoner might receive de novo review from the federal courts simply by withholding crucial evidence until habeas. This case, however, shows why those fears are groundless. First, in the ordinary case, counsel for the State would have challenged the petitioner’s right to an evidentiary hearing in federal court on the ground that the petitioner had not exercised due diligence in presenting the factual basis for his claim of ineffective assistance of counsel in state court. There is no reason apparent from the record why Mr. Fairchild’s state habeas counsel could not have produced the Smith and Crown affidavits as easily as federal habeas counsel did. 28 U.S.C. § 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactively applicable to cases on collateral review by the Supreme Court, that was previously unavailable, or (ii) a factual predicate that could not have been discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. In (Michael) Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), the Supreme Court held that § 2254(e)(2) does not bar a federal evidentiary hearing where the petitioner’s neglect or lack of diligence was not responsible for the failure to develop the record. But where the petitioner is not “diligent in developing the record,” thus “himself ... contributing to the absence of a full and fair adjudication in state court,” the Supreme Court made clear that “ § 2254(e)(2) prohibits an evidentiary" }, { "docid": "1046930", "title": "", "text": "due process rights were violated if his counsel was not given the PSI report. See also Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650, 657 (1976) (“if the court orders a presentence report, defense counsel has a right to examine its contents before sentencing and, if he contests any portion, to offer evidence in rebuttal.”). Of course, as Thomas acknowledges, the claim of a due process violation is speculative, and will remain so until it is known whether defense counsel received the PSI report. Thomas thus requests an evidentiary hearing on this issue. The Commonwealth contends that 28 U.S.C. § 2254(e)(2) forbids such a hearing. That section provides that “[i]f the [habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” The Supreme Court has stated, however, that the conditions imposed by § 2254(e)(2) apply only to the habeas petitioner who is “at fault for the deficiency in the state-court record.” Williams v. Taylor, 529 U.S. 420, 433, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). By contrast, said the Court in Williams, “[i]f there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not ‘failed to develop’ the facts under § 2254(e)(2)’s opening clause, and he will be excused from showing compliance with the balance of the subsection’s requirements.” Id. at 437, 120 S.Ct. 1479. The Williams habeas petitioner was found by the Court not to have exercised the diligence required to preserve the claim that nondisclosure" } ]

[ { "docid": "15841909", "title": "", "text": "discharge of the assignor was contemplated. The provisions regulating the administration of trusts created by voluntary assignments for the benefit of creditors apply whether the assignor is solvent or insolvent. They do not prevent creditors from bringing action against the debtor or require those seeking to participate in the distribution of the estate to stipu late for his discharge. And, quite in harmony with the purposes of the federal Act, the provisions of c. 128 that are regulatory of such voluntary assignments serve to protect creditors against each other and go to assure equality of distribution unaffected by any requirement or condition in respect of discharge. A proceeding under the Arkansas law derives its force solely from legislation that involves a judicial winding up of an insolvent estate and the discharge of the debtor. Such a law is within the field of the federal Act. Indeed, the declaration: “ Proceedings commenced under State insolvency laws before the passage of this Act shall not be affected by it ” (30 Stat. 566) suggests that Congress intended to supersede these local enactments. See In re Sievers, 91 Fed. 366. Star v. Johnson (Tex. Civ. App.), 44 S. W. (2d) 429. On the other hand the Wisconsin law merely governs the administration of trusts created by deeds like that in question, which do not differ substantially from those arising under common law assignments for the benefit of creditors. The substantive rights under such assignments depend upon contract; the legislation merely governs the execution of the trusts on which the property is conveyed. And as proceedings under any such assignment may be terminated upon petition of creditors filed within the time and in the manner prescribed by the federal Act (West Company v. Lea, 174 U. S. 590), it is apparent that Congress intended that such voluntary assignments, unless so put aside, should be regarded as not inconsistent with the purposes of the federal Act. Mayer v. Hellman, 91 U. S. 496, 501. Boese v. King, 108 U. S. 379, 385-387. Stellwagen v. Clum, 245 U. S. 605, 615. Straton v. New, 283 U." } ]

[ { "docid": "673534", "title": "", "text": "protect himself against payment by the bank to the assignor. See Brown v. Empire City Savings Bank, 23 Misc. 2d 1094, 203 N.Y.S.2d 339 (Sup. Ct.1960). Nevertheless, such notice is not a requirement of a perfected assignment, and it is not a prerequisite for the assignee to be accorded priority against subsequently-attaching creditors of the assignor. County Nat’l Bank v. Inter-County Farmers Coop. Assoc., 65 Misc. 2d 446, 317 N.Y.S.2d 790 (Sup.Ct. 1970). As to “possession” of the time deposit, a delivery of the property assigned to the assignee is not fundamental to an assignment, though it is to a pledge. See 3 Williston on Contracts § 430 at 172 (3d ed. 1960). See generally 3 N.Y.Juris., Assign. § 36 (1958). Thus the issue of the indispensable instrument doctrine appears irrelevant to the assignment asserted here. This result may be anomalous, for potential creditors of the assignor may be as deceived by an unrecorded or unpossessed assignment as by an undelivered pledge. The New York common law does not require either notice or filing of an assignment, however, and does not appear sensitive to the policy of protecting potential creditors in the assignment context. . See Fischer v. Liberty Nat’l Bank & Trust Co., 53 F.2d 856 (S.D.N.Y.1931), aff'd, 61 F.2d 757 (2d Cir. 1932), cert. denied, 288 U.S. 611, 53 S.ct. 403, 77 L.Ed. 985 (1933); United States v. Bush Construction Co., 176 F.Supp. 524, 526 (E.D.N.Y.1959) (delivery by nonparty to plaintiff of letter addressed to defendant authorizing it to pay funds due non-party to plaintiff constitutes irrevocable assignment); Doyle v. East New York Savings Bank, 44 N.Y.S.2d 318 (Mun.Ct.), aff'd, 44 N.Y.S.2d 328 (Sup.Ct.1943) (citing Brill v. Tuttle); Brill v. Tuttle, 81 N.Y. 454 (1880) (“when . . . an order is drawn upon a third party and made payable out of a particular fund, then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund”); Lauer v. Dunn, 115 N.Y. 405, 22 N.E. 270 (1889) (same); Seamon v. Federated Films," }, { "docid": "10794004", "title": "", "text": "has occurred is that the beneficiaries have borne the cost of creation of a fund for their benefit; it would be unduly harsh and grossly unfair to interpret the statute to require the contractor, as trustee, to bear the cost of recovering a judgment from the Court of Claims under such circumstances. Baldwin Kitchen Cabinet Corp. v. Artz, 27 Misc.2d 265, 209 N.Y.S.2d 39 (Sup.Ct.Nassau County 1960), modified on other grounds, 15 A.D.2d 560, 222 N.Y.S.2d 950 (2d Dept. 1961), and Naiztat Iron Works v. Tri-Neck Construction Corp., 62 Misc.2d 228, 308 N.Y.S.2d 427 (Sup.Ct.Kings County 1970), cited by In-galls, are distinguishable. In the former case, a prior mechanic’s lien against the property owner had been filed and prevailed over the attorney’s lien, and the mention of the statutory trust provisions was properly dictum. See 27 Misc.2d at 266, 209 N.Y.S.2d at 41 (“The lien of the subcontractor, however, had been filed one month earlier [than the attorney’s lien arose] and takes precedence.”). In the latter case, a contractor attempted to deduct the cost of administering the construction project itself from the amount shown by an accounting to be due to subcontractors. To extend the reach of these decisions to bar recovery of attorney’s fees, — the cost of producing a fund delivered to the trust — out of monies which otherwise would not have been available to the trust at all, would run counter to the objectives of the Lien Law and the tenets of trust law generally. Nor can Ingalls assert a temporal priority entitling it to the status of senior lienor. An attorney’s lien attaches when the cause of action to which it relates is commenced, Judiciary Law § 475. In re City of New York (United States v. Coblentz), 5 N.Y.2d 300, 306-307, 184 N.Y.S.2d 585, 157 N.E.2d 587 (1959), cert. denied, 363 U.S. 841, 80 S.Ct. 1606, 4 L.Ed.2d 1726 (1960). The lien prevails over the claims of creditors of the attorney’s client, Matter of Peters, 271 App.Div. 518, 521, 67 N.Y.S.2d 305 (3d Dept. 1946), modified on other grounds, 296 N.Y. 974, 73 N.E.2d" }, { "docid": "2832180", "title": "", "text": "they do not apply in bankruptcy. Davis v. Pringle, 1925, 268 U.S. 315, 45 S.Ct. 549, 69 L.Ed. 974. Reversed with instructions to treat $5,104.03 of the claim of the United States entered on April 10, 1958, plus all claims filed thereafter, as ordinary tax claims under § 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4). . The state claims $910.12 for unemployment insurance contributions and $25 for a corporate franchise tax. The city’s claim is for sales and business taxes in the amount of $747.82. . This policy, apparently founded on a desire to ensure that formalities would not defeat the rights of laborers and materialmen, whose claims sound in unjust enrichment, extends even to bankruptcy and validates a mechanic’s lien filed after a bankruptcy petition. Gates & Co. v. John F. Stevens Construction Co., 1917, 220 N.Y. 38, 115 N.E. 22. Since a tax assessment which postdates bankruptcy would not give rise to a statutory lien under the Internal Revenue Code, the federal claim is obviously distinguishable from the laborer’s. . E.g., Post & McCord v. City of New York, 1914, 86 Misc. 300, 148 N.Y.S. 568, affirmed 1915, 166 App.Div. 919, 152 N.Y. S. 1138; Matter of Marstan Plumbing Co., 1941, 176 Misc. 956, 28 N.Y.S.2d 190. . Statutes authorizing general assignments for the benefit of creditors have been approved by the Supreme Court as consistent with the policy of the Bankruptcy Act. “[Qluite in harmony with the purposes of the federal act * * * [statutes] that are regulatory of such voluntary assignments serve to protect creditors against each other, and go to assure equality of distribution * * Pobreslo v. Joseph M. Boyd Co., 1933, 287 U.S. 518, 526, 53 S.Ct. 262, 264, 77 L.Ed. 469." }, { "docid": "21921544", "title": "", "text": "notice. Accordingly, both courts held that the debt was dis-chargeable under Section 17a(3) of the Act. We disagree. CFT’s knowledge cannot be imputed to FMCC. The general rule is that notice to or knowledge of an agent may be imputed to the principal in certain situations. Notice or knowledge is imputed where the agent is acting within the scope of his authority and the knowledge pertains to matters within the scope of the agent’s authority. Curtis, Collins & Holbrook Co. v. United States, 262 U.S. 215, 43 S.Ct. 570, 67 L.Ed. 956 (1923); Anderson v. General American Life Insurance Co., 141 F.2d 898 (6th Cir.), cert. denied, 323 U.S. 798, 65 S.Ct. 554, 89 L.Ed. 637 (1944). Assuming CFT was authorized to accept installment payments on FMCC’s behalf, it does not follow that CFT was also authorized to accept legal notice on FMCC’s behalf. There is a significant difference between concluding that an agent may accept installment payments on another’s behalf and concluding that an agent is authorized to accept legal notice. The general rule for imputing an agent’s notice or knowledge is applicable in bankruptcy cases. In most of the cases where an agent’s knowledge of bankruptcy proceedings is imputed to a creditor, the agent is an attorney who has been authorized either to collect the balance due on a defaulted debt or represent the creditor in bankruptcy proceedings. American Southern Trust Co. v. Vester, 183 Ark. 9, 34 S.W.2d 747 (Ark.1931); Wise v. Curdes, 219 Ind. 606, 40 N.E.2d 122 (Ind.1942); Conley v. Lake St. Louis Estates Co., 579 S.W.2d 163 (Mo.App.1979); Keefauver v. Hevenor, 163 App.Div. 531, 148 N.Y.S. 434 (1914); Interstate Credit League v. Widdison, 50 Idaho 493, 297 P. 1106 (Idaho 1931); Application of Keilly, 262 N.Y.S.2d 310, 47 Misc.2d 99 (1965); Honig v. Minotti, 62 N.Y. S.2d 261, 270 App.Div. 947 (1946). An agent’s knowledge may also be imputed to a creditor even if the agent is not an attorney. Where the agent is not an attorney, however, courts strictly follow the general rule that the agent must acquire the notice or knowledge while" }, { "docid": "1557706", "title": "", "text": "84 N.Y.S.2d 853, 865 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.2d 903 (1st Dep’t 1950); In re First Nat’l Bank, 25 N.Y.S.2d 221, 227-28 (Sup.Ct. N.Y. County 1941); Matter of Cuddeback, 168 Misc. 698, 6 N.Y.S.2d 493, 496-97 (Sur.Ct. Orange County 1938); Matter of Balfe, 152 Misc. 739, 274 N.Y.S. 284, 294, 295-99 (Sur.Ct. Orange County 1934), aff’d, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of McCafferty, 147 Misc. 179, 264 N.Y.S. 38, 67, 70 (Sur.Ct. Kings County 1933); Matter of Winburn, 140 Misc. 18, 249 N.Y.S. 758, 763 (Sur.Ct. Westchester County 1931). . See cases cited in note 27 supra. . See Matter of Clark, 257 N.Y. 132, 139, 177 N.E. 397 (1931); Matter of Weston, 91 N.Y. 502, 509-10 (1883); Matter of Balfe, 152 Misc. 739, 274 N.Y.S. 284, 294-301 (Sur.Ct. Orange County 1934), aff’d, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of McCafferty, 147 Misc. 179, 264 N.Y.S. 38, 70-71 (Sur.Ct. Kings County 1933). . Matter of Cuddeback, 168 Misc. 698, 6 N.Y. S.2d 493, 496-97 (Sur.Ct. Orange County 1938); Matter of Winburn, 140 Misc. 18, 249 N.Y.S. 758, 763 (Sur.Ct. Westchester County 1931). . Matter of Clark, 257 N.Y. 132, 138-39, 177 N.E. 397 (1931); Matter of Weston, 91 N.Y. 502, 508 (1883). . See cases cited in note 27 supra. . As established in King v. Talbot, 40 N.Y. 76, 85-86 (1869) and reiterated recently in Matter of Bank of New York, 35 N.Y.2d 512, 518-19, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700, 704 (1974), a “trustee is [bound to employ] such diligence and such prudence in the care and management, as in general, prudent men of discretion and intelligence in such matters, employ in their own like affairs.” Plaintiffs argue that any application of this standard herein must take into consideration the fact that the defendant is a professional fiduciary, and consequently, having held itself out as possessing greater knowledge and skill than the average person, must be judged by a higher standard. In support, they rely largely upon general authority and cases from other" }, { "docid": "7736775", "title": "", "text": "as a source, is a standard no man should be judged by.” Costello v. Costello, 209 N.Y. 252, 262, 103 N.E. 148, 152; In re Cleveland Discount Co., D.C. Ohio 1924, 9 F.2d 97; Guggenheim v. Helvering, 2 Cir., 1941, 117 F.2d 469; Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647; cf. Irving Trust Co. v. Jacob Weckstein & Son, Inc., 2 Cir., 1933, 64 F.2d 333; Doric Apartment Co. v. Commissioner of Internal Revenue, 6 Cir., 1938, 94 F.2d 895. Frequently, however, a resort to such evidence is rendered necessary by the nature of the fact to be proven in that a confinement to contemporary events would result in grave injustice. For example, in Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 53 S.Ct. 736, 77 L.Ed. 1449, the Court permitted evidence of the subsequent use of a patent to show the value of the patent at the time of the breach of a contract to assign the same. See also Matter of Board of Water Supply in City of New York, App.Div. 3rd Dept. 1924, 209 App.Div. 231, 205 N.Y.S. 237. The plaintiff concedes the general rule but argues that such evidence should be admitted against the defendant as a wrongdoer to appraise the consequences of its wrongful act. I cannot see any merit in this argument. It might be true were we attempting here to follow an asset unlawfully diverted, shall we say, in order to restore to the original owner all the benefits and profits he would have received had the asset not been diverted by a wrongdoer and to take from the wrongdoer any advantage he may have obtained by his wrongful act. But aside from those observations, it is illogical to apply a purported rule for wrongdoers in order to prove the wrong. If it was certain that the defendant was a wrongdoer it would be unnecessary to use this evidence; and it may not therefore be used to establish a condition when such condition is a prerequisite to its invocation. The plaintiff further" }, { "docid": "8766035", "title": "", "text": "McCampbell v. N.Y. Life Ins. Co. (5th Cir. 1923) 288 P. 465, 470, cert. den. 262 U.S. 759, 43 S.Ct. 705, 67 L.Ed. 1219 (1923); Kaplan v. The Equitable Life Assur. Soc. of the U.S., 177 Misc. 792, 795, 31 N.Y.S.2d 972 (1940), aff’d 261 App.Div. 1067, 27 N.Y. S.2d 780 (1941); Copp v. New York Life Ins. Co., 154 Misc. 33, 34-35, 276 N.Y.S. 353 (1934), aff’d, 244 App.Div. 712, 279 N.Y.S. 972 (mem.); Brassell v. John Hancock Mutual Life Ins. Co., 134 Misc. 274, 235 N.Y.S. 195 (1929); Napier v. Bankers’ Life Ins. Co., 51 Misc. 283, 289-90,100 N.Y.S. 1072 (1906). The Strassberg’s policy was not delivered in New York — rather, it was mailed to the insured in New Jersey from the company’s Massachusetts headquarters. It does not fall in terms within the current protections of the statute, and in similar circumstances a New York court held that its predecessor statute afforded no protection to the beneficiary. Brassell v. John Hancock Mutual Life Ins. Co., supra. No New York interest is abridged by the failure of the federal district court, sitting as a California court, to apply section 151 to this case because New York courts hold the statute to be inapplicable to such extra-territorial events. (See Hurtado v. Superior Court, supra, 114 Cal.Rptr. at 111, 522 P.2d at 671 (where “it appears that the foreign state has no interest whatsoever in having its own law applied, California as the forum should apply California law.”); see also Bernhard v. Harrah's Club, supra, 128 Cal.Rptr. at 218-19, 546 P.2d at 722-23.) We are therefore persuaded that a California court would term the present situation a false conflict and apply its own law by which Strassberg is barred from recovering under the policy. AFFIRMED. . Strassberg’s counsel argued vigorously that New York had an interest in applying its law for the benefit of nonresidents doing business with New York insurance agents, to enhance the business of insurance within the state. Counsel cited only the case of Intercontinental Planning Limited v. Daystrom, Inc., 24 N.Y.2d 372, 300 N.Y.S.2d 817, 248" }, { "docid": "15742062", "title": "", "text": "Scott, 99 F.2d 299 (8th Cir. 1938); Tennant v. Joerns, 329 Ill. 34, 160 N.E. 160 (Ill.1928); Penrose v. Canton Nat’l Bank, 147 Md. 200, 127 A. 852 (Md.Ct. of Appeals 1925); Pardee v. Fetter, 345 Mich. 548, 77 N.W.2d 124 (Mich.1956); Dahmes v. Industrial Credit Co., 261 Minn. 26, 110 N.W.2d 484 (Minn.1961); Gelber v. Kugel’s Tavern, 10 N.J. 191, 89 A.2d 654 (N.J.1952); Ferdon v. Zarriello Bros. Inc., 87 N.J.Super. 124, 208 A.2d 186 (N.J.Super.Ct.1965); Fine v. H. Klein, Inc., 10 N.J.Super. 295, 77 A. 2d 295 (N.J.County Ct. 1950); General Phoenix Corp. v. Cabot, 300 N.Y. 87, 89 N.E.2d 238 (N.Y.1949); Waterman v. Witteman, 25 App.Div.2d 531, 267 N.Y.S. 2d 660 (Supreme Court, App.Div., 2d Dept. 1966); Pink v. Kaplan, 252 App.Div. 490, 300 N.Y.S. 45 (Supreme Court, App.Div., 2d Dept., 1987); Rosen v. Columbia Sav. & Loan Ass’n, 29 Misc.2d 329, 213 N.Y.S.2d 765 (Supreme Court, Nassau County, 1961), aff’d, 15 A.D.2d 810, 225 N.Y.S.2d 495 (1962); Metz v. Taglieri, 29 Misc.2d 841, 215 N.Y.S.2d 263 (Supreme Court, Suffolk County 1961); Margulis v. Messinger, 34 Misc. 2d 699, 210 N.Y.S.2d 855 (Supreme Court, Kings County, 1960); Elias v. Schwartz, 22 Misc.2d 129, 201 N.Y.S.2d 223 (Supreme Court, Nassau County, 1960); Ollendorf v. Lissberger, 176 Misc. 661, 28 N.Y.S.2d 455 (Supreme Court, New York County, 1941); Cabrera v. Olsen, 165 Misc. 374, 300 N.Y.S. 524 (Supreme Court, New York County, 1937); Yorktown Management Co. v. Record Realty Co., 236 N.Y.S.2d 866, 867 (New York City Civil Court, 1962); Raby v. Commercial Banking Corp., 208 Pa.Super. 52, 220 A.2d 659 (Pa.App.1966). A rationale advanced in support of the rule is that such a person has not been, to adapt an apt expression, “usurized” since he did not borrow the money. The corporation is the borrower and the individual surety has merely guaranteed the payment of the corporate obligation; therefore, it is assumed that he was not the unwitting nor the defenseless victim of financial duress. Hence, the policy supporting the usury laws is not violated if the individual endorser, who is not a victimized borrower, is forced to" }, { "docid": "8718120", "title": "", "text": "were breached by their refusal to transfer the stock to him and their transfer of it to these defendants. The decision was on the merit's of the claim and it bars further litigation of the controversy by the parties and their privies, regardless of the grounds upon which the arbitrators came to their conclusion. The judgment will be affirmed. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477. Mygatt v. Coe, 1891, 124 N.Y. 212, 26 N.E. 611, 613, 11 L.R.A. 646. Campbell v. Hall, 1858, 16 N.Y. 575; Masten ,v. Olcott, 1886, 101 N.Y. 152, 4 N.E. 274; Kahn v. Richard L. Walsh Co., 1911, 72 Misc. 20, 129 N.Y.S. 137; Application of Commercial Casualty Ins. Co., 1939, 257 App.Div. 536, 13 N.Y.S.2d 754. Murray v. Ballou, 1815, 1 Johns. Ch., N.Y., 566; Douglass v. Howland, 1840, 24 Wend., N.Y., 35, 53; Tauziede v. Jumel, 1891, 60 Hun 583, 15 N.Y.S. 24; McGean v. Metropolitan El. Ry. Co., 1892, 133 N.Y. 9, 30 N.E. 647; Butterly v. Deering, 1905, 102 App.Div. 395, 92 N.Y.S. 675; Application of Commercial Casualty Ins. Co., 1939, 257 App.Div. 536, 13 N.Y.S.2d 754. Restatement, Judgments, § 89. Guzzi v. Delaware & Hudson Co., 1915, 61 Pa.Super. 48. Chancellor Kent in Murray v. Ballou, 1815, 1 Johns. Ch., N.Y., 566, 576. Murray v. Ballou, 1815, 1 Johns. Ch., N.Y., 566, 576; Murray v. Lylburn, 1817, 2 Johns. Ch., N.Y., 441, 445. See Miller v. National City Bank of New York, 2 Cir., 1948, 166 F.2d 723, 726, 727. Compare Baltimore S. S. Co. v. Phillips, 1927, 274 U.S. 316, 321, 47 S.Ct. 600, 602, 71 L.Ed. 1069, in which the court said: “A cause of action does not consist of facts, but of the unlawful .violation of a right which the facts show.” Marsh v. Masterson, 1888, 101 N.Y. 401, 5 N.E. 59; Hull v. Hull, 1919, 225 N.Y. 342, 122 N.E. 252; Nernst Lamp Co. v. Hill, 1914, 243 Pa. 448, 90 A. 137; Long v. Stout, 1931, 305 Pa. 310, 157 A. 607; Restatement," }, { "docid": "13256400", "title": "", "text": "actions arising under the wrongful death statute and is available to extend the statute of limitations thereby created for a sixty day period. Kerr v. St. Luke’s Hospital, 176 Misc. 610, 28 N.Y. S.2d 193 (Sup.Ct., New York), affirmed, 262 App.Div. 822, 29 N.Y.S.2d 141, affirmed, 287 N.Y. 673, 39 N.E.2d 291 (1941). See also, Rose v. United States, 73 F.Supp. 759, 761 (E.D.N.Y.1947); Irons v. Michigan-Atlantic Corp., 279 App.Div. 32, 108 N.Y.S.2d 824, 827 (4 Dept.1951); Application of Gillespie, 180 Misc. 139, 72 N.Y.S.2d 773 (Sup.Ct., Albany 1947). It is equally clear that Section 203(b)(5) is applicable to diversity actions brought in the Federal Courts of New York and that this court will deem the United States Marshal for this District to be the equivalent of the appropriate New York Sheriff in order to implement the operation of the statute. 28 U.S.C. § 570; Myers v. Slotkin, 13 F.R.D. 191 (E.D.N.Y.1952); Nola Electric Co., Inc., v. Riley, 93 F.Supp. 164 (S.D.N.Y.); cert. denied sub nom., Riley v. Goddard, 340 U.S. 951, 71 S.Ct. 570, 95 L.Ed. 685 (1951). Two further procedural points need be noted in connection with Section 203(b)(5). A summons and complaint delivered to the Sheriff [Marshal] during the limitations period must be served within sixty days of the expiration of that period, but such service need not be made by the Sheriff [Marshal] or his deputy; any person may effect service upon the defendant during the sixty day interval. 1 Weinstein, Korn & Miller, New York Civil Practice ¶ 203.18 at 2-76 (1974). Additionally, service made within the sixty day extension period can be by personal delivery or by any other method authorized and permissible under law. Id. The application of the above set out legal principles to the relevant facts of this case is not a difficult matter. Plaintiff’s decedent died on January 31, 1972 and, therefore, the statute of limitations fixed by the New York wrongful death .statute, N.Y.E.P.T.L. § 5-4.1, would, as a matter of course, have expired on February 1, 1974. On September 15, 1972, a time clearly within the statute of" }, { "docid": "21063457", "title": "", "text": "be acquired thereunder by any person without notice or reasonable cause to believe that such conveyance, assignment, transfer, payment, judgment, lien or security would effect a preference * * *.” Thus, in order to recover under Section 15 of the Stock Corporation Law, the plaintiff must show one of two things: (1) That the corporation had failed to meet its obligations when due, or (2) that the transfer- or was insolvent or imminently in danger of insolvency when it made a preferential transfer to a creditor. Under the first sentence of Section 15, the words “notes or other obligations” are defined to mean obligations embodied in some form of written instrument and the definition retains such limitation excluding from the meaning of “obligations”, indebtedness for merchandise or for work, labor and services upon a running account or which has not been embodied in some more or less formal writing. Tierney v. J. C. Dowd & Co., Inc., 238 N.Y. 282, 144 N.E. 583. Since, under section 70, sub. e of the Bankruptcy Act, the trustee in this action derives his right to recover property transferred in violation of the New York Stock Corporation Law if a creditor could have avoided the transfer under that law, the trustee is limited to pursuing rights of creditors and may not seek, in this action, to enforce a right of the corporation against a director for alleged illegal acts. Thus, unless there is a showing that there were creditors who were injured by the transfers above referred to, the plaintiff has failed to meet the burden of proof requisite under the statutes on which he relied, for the proofs must conform to the statutory requirements. In Male v. National Pure Water Co. of Buffalo, Inc., 176 Misc. 743, 27 N.Y.S.2d 984, affirmed 261 App.Div. 1050, 27 N.Y.S.2d 1023, the court held that the statute making every transfer done in violation of sec. 15 void and not voidable, meant that such transfer is void only as to financially interested pa'rties whose rights have been or will be wrongfully invaded. In Campbell’s Estate, 164 Misc. 632," }, { "docid": "1557701", "title": "", "text": "of Lather, 137 Misc. 226, 234, 243 N.Y.S. 366, 376 (Sur. Ct. Westchester County 1930). . Matter of Clark, 257 N.Y. 132, 136, 177 N.E. 397, 398 (1931) (“it is impossible to say that trustees are wanting in sound discretion ‘simply because their judgment turned out wrong,’ ” quoting Green v. Crapo, 181 Mass. 55, 58, 62 N.E. 956, 957 (1902) (Holmes, J.)); Matter of Cowles, 22 A.D.2d 365, 255 N.Y.S.2d 160, 173 (1st Dep’t 1965), aff’d, 17 N.Y.2d 567, 268 N.Y.S.2d 327, 215 N.E.2d 509 (1966); Matter of Kellogg, 35 Misc.2d 541, 230 N.Y.S.2d 836, 845 (Sup.Ct. Erie County 1962); Matter of Pate, 84 N.Y.S.2d 853, 866 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.-2d 903 (1st Dep’t 1950); Matter ofBalfe, 152 Misc. 739, 274 N.Y.S. 284, 293 (Sur.Ct. Orange County 1934), aff’d, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of McCafferty, 147 Misc. 179, 264 N.Y.S. 38, 66 (Sur.Ct. Kings County 1933); Matter of Kent, 146 Misc. 155, 261 N.Y.S. 698, 702 (Sur.Ct. N.Y. County 1932), aff'd, 284 N.Y.S. 976 (1st Dep’t 1935); see Costello v. Costello, 209 N.Y. 252, 264, 103 N.E. 148, 153, (1913) (“All men of honesty, prudence and enlightenment do not think alike.”);' Matter of Morgan Guaranty Trust Co., 89 Misc.2d 1088, 1090, 396 N.Y.S.2d 781, 784 (Sur.Ct. N.Y. County 1977) (“[Tjhe test to be applied is one of conduct rather than performance . . .”). . Matter of Bank of New York, 35 N.Y.2d 512, 519, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700 (1974); Matter of Clark, 257 N.Y. 132, 137, 177 N.E. 397 (1931); Costello v. Costello, 209 N.Y. 252, 261, 103 N.E. 148 (1913); Matter of Pate, 84 N.Y.S.2d 853, 866 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.2d 903 (1st Dep’t 1950); In re First Nat’I Bank, 25 N.Y.S.2d 221, 225 (Sup.Ct. N.Y. County 1941); Matter of Balfe, 152 Misc. 739, 274 N.Y.S. 284, 294 (Sur.Ct. Orange County 1934), aff'd, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of Kent, 146 Misc. 155, 261 N.Y.S. 698, 702 (Sur.Ct. N.Y. County 1932)," }, { "docid": "1557703", "title": "", "text": "affd, 284 N.Y.S. 976 (1st Dep’t 1935). . Matter of Bank of New York, 35 N.Y.2d 512, 519, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700 (1974); Matter of Hubbell, 302 N.Y. 246, 257, 97 N.E.2d 888 (1951); Matter of Cowles, 22 A.D.2d 365, 255 N.Y.S.2d 160, 173 (1st Dep’t 1965), aff’d, 17 N.Y.2d 567, 268 N.Y.S.2d 327, 215 N.E.2d 509 (1966); Matter of Pate, 84 N.Y. S.2d 853, 866 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.2d 903 (1st Dep’t 1950); Matter of Balfe, 152 Misc. 739, 274 ' N.Y.S. 284, 294 (Sur.Ct. Orange County 1934), aff’d, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of McCafferty, 147 Misc. 179, 264 N.Y.S. 38, 65-66 (Sur.Ct. Kings County 1933). . Matter of Bank of New York, 35 N.Y.2d 512, 518-19, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700 (1974); Matter of Clark, 257 N.Y. 132, 136, 177 N.E. 397 (1931); Costello v. Costello, 209 N.Y. 252, 262, 103 N.E. 148, 152, (1913) (“A wisdom developed after an event and having it and its consequences as a source, is a standard no man should be judged by.”); Purdy v. Lynch, 145 N.Y. 462, 475-76, 40 N.E. 232 (1895); Matter of Cowles, 22 A.D.2d 365, 255 N.Y.S.2d 160, 173 (1st Dep’t 1965), aff’d, 17 N.Y.2d 567, 268 N.Y. S.2d 327, 215 N.E.2d 509 (1966); Matter of Pate, 84 N.Y.S.2d 853, 858 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.2d 903 (1st Dep’t 1950); Matter of Beebe, 52 N.Y. S.2d 736, 739 (Sur.Ct. Kings County 1943), aff’d, City Bank Farmers Trust Co., Res., 268 App.Div. 1051, 52 N.Y.S.2d 796 (2d Dep’t 1945); Central Hanover Bank & Trust Co. v. Brown, 30 N.Y.S.2d 85, 96-97 (Sup.Ct. N.Y. County 1941); In re First Nat’l Bank, 25 N.Y. S.2d 221, 225 (Sup.Ct. N.Y. County 1941); Matter of Cuddeback, 168 Misc. 698, 6 N.Y.S.2d 493, 495 (Sur.Ct. Orange County 1938); Matter of McCafferty, 147 Misc. 179, 264 N.Y.S. 38, 66 (Sur.Ct. Kings County 1933). . Matter of Clark, 257 N.Y. 132, 136-37, 177 N.E. 397 (1931); Matter of Cuddeback, 168 Misc. 698, 6" }, { "docid": "8759477", "title": "", "text": "Id. “[E]quity requires that the assets of the insolvent party be equally distributed among such general creditors.” Pink v. Title Guar. & Trust Co., 274 N.Y. 167, 175, 8 N.E.2d 321, 325 (1937); accord, Bohlinger v. Zanger, 306 N.Y. 228, 234, 117 N.E.2d 338, 341 (1954). New York courts have long held that a fund arising from reinsurance treaties must be distributed pro rata among all creditors. The original insured, as worthy a beneficiary of a court’s equitable sympathies as Guaranty, has continually been denied the right to a preference as to reinsurance proceeds. Sofia Bros., Inc. v. General Reins. Corp., supra, 153 Misc. at 10, 274 N.Y.S. at 569; Herckenrath v. American Mut. Ins. Co., 3 Barb.Ch. 63, 70 (1848). The preference Guaranty seeks would also be contrary to the terms of the Uniform Insurers Liquidation Act, which has long been the law in New York. 1940 N.Y. Laws, c. 631, § 1, codified, as amended, at N.Y. Ins. Law §§ 517-23 (McKinney 1966 & Cum.Supp. 1976-77). This act’s purpose is “to provide for a uniform, orderly and equitable method of making and processing claims against the defunct insurer and to provide for a fair procedure to distribute the assets of said defunct insurance carrier.” Vlasaty v. Avco Rent-A-Car Sys., Inc., 60 Misc.2d 928, 930, 304 N.Y.S.2d 118, 120 (Sup.Ct.1969). To assure equality, § 522(1) provides: In a delinquency proceeding against an insurer domiciled in this state, claims owing to residents of ancillary states shall be preferred claims if like claims are preferred under the laws of this state. All such claims whether owing to residents or nonresidents shall be given equal priority of payment from general assets regardless of where such assets are located. The New York property and liability insurance security fund, created in 1969 to extend protection to resident policyholders against the insolvency of insurers authorized to do business in New York, 1969 N.Y. Laws, c. 189, § 3, codified, as amended, at N.Y. Ins. Law § 334 (McKinney Cum.Supp. 1976-77); see Dutchess & Columbia Coop. Ins. Co. v. State, 81 Misc.2d 402, 403-04, 367 N.Y.S.2d" }, { "docid": "7970205", "title": "", "text": "the two-year limitation in the act is not a condition of the exercise or the assertion of the right, but a mere procedural requirement. And certainly some of the New York cases support this view. Under New York law, for example, a wrongful death complaint need not allege that suit was commenced within two years after the death occurred. Sharrow v. Inland Lines, Ltd., 1915, 214 N.Y. 101, 108 N.E. 217, L.R.A.1915E, 1192, Ann.Cas. 1916D, 1236. This decision is put upon the ground that by an amendment to the statute in 1880 the two-year period ceased to be a proviso — a condition upon the very existence of the right. True, the effect of the decision is somewhat weakened by Mossip v. F. H. Clement & Co., 1939, 256 App.Div. 469, 10 N.Y.S.2d 592, affirmed 283 N.Y. 554, 27 N.E.2d 279. There it was held that the two-year period is not extended by the existence of infancy or other disabilities excluded by a general procedural statute from the time to commence actions. Civil Practice Act, § 60. But another general procedural statute (to the effect that actions may be effectively, “commenced” by delivery of a summons to a sheriff; Civil Practice Act, § 17) was recently held applicable to wrongful death suits. Kerr v. St. Luke’s Hospital, 1940, 176 Misc. 610, 28 N.Y.S.2d 193, affirmed 262 App.Div. 822, 29 N.Y.S.2d 141, affirmed, and certified question answered in the affirmative 287 N.Y. 673, 39 N.E.2d 291. From these cases the libelants argue that the New York-created right of wrongful death is not conditioned upon the bringing of suit within two years. Therefore, they say, the two-year requirement is merely procedural, and it follows that the federal district court, sitting in admiralty, is free to apply the law of the forum, namely, that suit is not barred absolutely by the running of a state statute, but only if the suitor is guilty of laches. Before I touch upon this problem, which I consider basic here, I ought to mention one other contention made by libelants. They cite a number of decisions (e." }, { "docid": "673535", "title": "", "text": "an assignment, however, and does not appear sensitive to the policy of protecting potential creditors in the assignment context. . See Fischer v. Liberty Nat’l Bank & Trust Co., 53 F.2d 856 (S.D.N.Y.1931), aff'd, 61 F.2d 757 (2d Cir. 1932), cert. denied, 288 U.S. 611, 53 S.ct. 403, 77 L.Ed. 985 (1933); United States v. Bush Construction Co., 176 F.Supp. 524, 526 (E.D.N.Y.1959) (delivery by nonparty to plaintiff of letter addressed to defendant authorizing it to pay funds due non-party to plaintiff constitutes irrevocable assignment); Doyle v. East New York Savings Bank, 44 N.Y.S.2d 318 (Mun.Ct.), aff'd, 44 N.Y.S.2d 328 (Sup.Ct.1943) (citing Brill v. Tuttle); Brill v. Tuttle, 81 N.Y. 454 (1880) (“when . . . an order is drawn upon a third party and made payable out of a particular fund, then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund”); Lauer v. Dunn, 115 N.Y. 405, 22 N.E. 270 (1889) (same); Seamon v. Federated Films, Inc., 142 N.Y.S.2d 324, 332 (City Ct.1955) (assignment in form of an irrevocable direction to pay is valid); A. O. Andersen & Co. v. Lamborn, 112 Misc. 235, 184 N.Y.S. 88 (Sup.Ct. 1920); Associated Metals & Minerals Corp. v. Isletmeleri, 6 Ill.App.2d 548, 128 N.E.2d 595 (1955); Edmund Wright Ginsberg Corp. v. C. D. Kepner Leather Co., 317 Mass. 581, 59 N.E.2d 253 (1945); 3 Williston on Contracts § 426 (3d ed. 1960) (“An order by the creditor given directly to the debtor requesting him to pay a third person does not in the absence of notice to that person make him an assignee of the claim”); Restatement (Second) of Contracts, supra, § 157(1). . While some of the authority cited in note 19, supra, suggests that the delivery of an order gives rise to an “equitable” assignment, the distinction between legal and equitable assignments would appear inapplicable to the particular transactions before the Court. The defendant’s assignment arguments involve alleged assignments to it of (1) AIBC’s time deposits of Swiss Francs, and (2) AIBC’s" }, { "docid": "13256399", "title": "", "text": "and it is for this reason that the court sustains the personal jurisdiction obtained over the defendant by means of the second service. In support of an affirmative answer to this question, plaintiff relies upon Section 203(b)(5) of the New York Civil Practice Law and Rules, which provision states, in pertinent part: (b) Claim in complaint. A claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with him when 5. The summons is delivered for service upon the defendant to the sheriff in a county in which the defendant resides, is employed or is doing business, or if none of the foregoing be known to the plaintiff after reasonable inquiry, then in a county in which defendant is known to have last resided, been employed or been engaged in business ... if the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision . It is long settled that this Section (and its predecessor) is applicable to actions arising under the wrongful death statute and is available to extend the statute of limitations thereby created for a sixty day period. Kerr v. St. Luke’s Hospital, 176 Misc. 610, 28 N.Y. S.2d 193 (Sup.Ct., New York), affirmed, 262 App.Div. 822, 29 N.Y.S.2d 141, affirmed, 287 N.Y. 673, 39 N.E.2d 291 (1941). See also, Rose v. United States, 73 F.Supp. 759, 761 (E.D.N.Y.1947); Irons v. Michigan-Atlantic Corp., 279 App.Div. 32, 108 N.Y.S.2d 824, 827 (4 Dept.1951); Application of Gillespie, 180 Misc. 139, 72 N.Y.S.2d 773 (Sup.Ct., Albany 1947). It is equally clear that Section 203(b)(5) is applicable to diversity actions brought in the Federal Courts of New York and that this court will deem the United States Marshal for this District to be the equivalent of the appropriate New York Sheriff in order to implement the operation of the statute. 28 U.S.C. § 570; Myers v. Slotkin, 13 F.R.D. 191 (E.D.N.Y.1952); Nola Electric Co., Inc., v. Riley, 93 F.Supp. 164 (S.D.N.Y.); cert. denied sub nom., Riley v. Goddard, 340 U.S. 951, 71 S.Ct. 570," }, { "docid": "8766034", "title": "", "text": "insurance policy without knowing that he or she had incurred that risk. The Strassbergs are not members of the class for whose benefit Section 151 was intended, namely, New Yorkers. The New York statute applies, in terms, only to insurance policies which are “delivered or issued for delivery in this state” N.Y. Ins. Law § 151(1) (McKinney Supp. 1977) and states that its provisions do no apply to policies “delivered outside this state.” Id. § 151(6). There exists a long line of authority in the state and federal courts which holds that the non-forfeiture provisions of section 151 apply only to policy holders who live in New York State at the time the notice required by the statute would have to be issued. Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 554, 24 S.Ct. 538, 48 L.Ed. 788 (1904) (predecessor statute); Mutual Life Ins. Co. v. Cohen, 179 U.S. 262, 264-70, 21 S.Ct. 106, 45 L.Ed. 181 (1900); Mutual Life Ins. Co. v. Phinney, 178 U.S. 327, 20 S.Ct. 906, 44 L.Ed. 1088 (1900); McCampbell v. N.Y. Life Ins. Co. (5th Cir. 1923) 288 P. 465, 470, cert. den. 262 U.S. 759, 43 S.Ct. 705, 67 L.Ed. 1219 (1923); Kaplan v. The Equitable Life Assur. Soc. of the U.S., 177 Misc. 792, 795, 31 N.Y.S.2d 972 (1940), aff’d 261 App.Div. 1067, 27 N.Y. S.2d 780 (1941); Copp v. New York Life Ins. Co., 154 Misc. 33, 34-35, 276 N.Y.S. 353 (1934), aff’d, 244 App.Div. 712, 279 N.Y.S. 972 (mem.); Brassell v. John Hancock Mutual Life Ins. Co., 134 Misc. 274, 235 N.Y.S. 195 (1929); Napier v. Bankers’ Life Ins. Co., 51 Misc. 283, 289-90,100 N.Y.S. 1072 (1906). The Strassberg’s policy was not delivered in New York — rather, it was mailed to the insured in New Jersey from the company’s Massachusetts headquarters. It does not fall in terms within the current protections of the statute, and in similar circumstances a New York court held that its predecessor statute afforded no protection to the beneficiary. Brassell v. John Hancock Mutual Life Ins. Co., supra. No New York interest is abridged" }, { "docid": "1557702", "title": "", "text": "N.Y.S. 976 (1st Dep’t 1935); see Costello v. Costello, 209 N.Y. 252, 264, 103 N.E. 148, 153, (1913) (“All men of honesty, prudence and enlightenment do not think alike.”);' Matter of Morgan Guaranty Trust Co., 89 Misc.2d 1088, 1090, 396 N.Y.S.2d 781, 784 (Sur.Ct. N.Y. County 1977) (“[Tjhe test to be applied is one of conduct rather than performance . . .”). . Matter of Bank of New York, 35 N.Y.2d 512, 519, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700 (1974); Matter of Clark, 257 N.Y. 132, 137, 177 N.E. 397 (1931); Costello v. Costello, 209 N.Y. 252, 261, 103 N.E. 148 (1913); Matter of Pate, 84 N.Y.S.2d 853, 866 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.2d 903 (1st Dep’t 1950); In re First Nat’I Bank, 25 N.Y.S.2d 221, 225 (Sup.Ct. N.Y. County 1941); Matter of Balfe, 152 Misc. 739, 274 N.Y.S. 284, 294 (Sur.Ct. Orange County 1934), aff'd, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of Kent, 146 Misc. 155, 261 N.Y.S. 698, 702 (Sur.Ct. N.Y. County 1932), affd, 284 N.Y.S. 976 (1st Dep’t 1935). . Matter of Bank of New York, 35 N.Y.2d 512, 519, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700 (1974); Matter of Hubbell, 302 N.Y. 246, 257, 97 N.E.2d 888 (1951); Matter of Cowles, 22 A.D.2d 365, 255 N.Y.S.2d 160, 173 (1st Dep’t 1965), aff’d, 17 N.Y.2d 567, 268 N.Y.S.2d 327, 215 N.E.2d 509 (1966); Matter of Pate, 84 N.Y. S.2d 853, 866 (Sur.Ct. N.Y. County 1948), aff’d, 276 App.Div. 1008, 95 N.Y.S.2d 903 (1st Dep’t 1950); Matter of Balfe, 152 Misc. 739, 274 ' N.Y.S. 284, 294 (Sur.Ct. Orange County 1934), aff’d, 245 App.Div. 22, 280 N.Y.S. 128 (2d Dep’t 1935); Matter of McCafferty, 147 Misc. 179, 264 N.Y.S. 38, 65-66 (Sur.Ct. Kings County 1933). . Matter of Bank of New York, 35 N.Y.2d 512, 518-19, 364 N.Y.S.2d 164, 169, 323 N.E.2d 700 (1974); Matter of Clark, 257 N.Y. 132, 136, 177 N.E. 397 (1931); Costello v. Costello, 209 N.Y. 252, 262, 103 N.E. 148, 152, (1913) (“A wisdom developed after an event and having it and its" }, { "docid": "6790175", "title": "", "text": "932, 24 L.R.A. 548 (1894); see also Matter of American Fibre Chair Seat Corp., 265 N.Y. 416, 420, 193 N.E. 253, 255 (1934): “The stockholders of a corporation may be the real owners of the corporation, but their right to control the corporation is governed by the law of its creation” (Lehman, J.). Moreover, the “internal affairs” rule has been applied repeatedly in order to determine the fiduciary duty of a foreign corporation’s directors. Upson v. Otis, 155 F.2d 606, 610 (C.C.A.2, 1946); Stratton v. Bertles, 238 App.Div. 87, 263 N.Y.S. 466 (1933); Diamond v. Davis, 38 N.Y.S.2d 103 (Sup.Ct.1942); German-American Coffee Co. v. Diehl (No. 2), 86 Misc. 547, 149 N.Y.S. 413 (Sup.Ct. 1914), aff’d per curiam 168 App.Div. 913, 152 N.Y.S. 1113 (1915); Fayes, Inc. v. Kline, 136 F.Supp. 871, 872 (S.D.N.Y. 1955); and reference has been made to the law of the state of incorporation in order to resolve problems concerning one’s status as a stockholder, Milvy v. Adams, supra; Bankers Nat. Corp. v. Barr, supra; but see Hirshhorn v. Hirsh- horn, 280 App.Div. 791, 112 N.Y.S.2d 841 (2nd Dept. 1952). In addition, New York courts for many years have dismissed a variety of actions on grounds of forum non conveniens, in part because of the desirability of having foreign courts apply their own law to disputes involving corporations domiciled in their jurisdictions. See Langfelder v. Universal Laboratories, Inc., 293 N.Y. 200, 56 N.E.2d 550, 155 A.L.R. 1226 (1944); Sternfeld v. Toxaway Tanning Co., 290 N.Y. 294, 49 N.E.2d 145 (1943); Novich v. Rojtman, 5 Misc.2d 1029, 161 N.Y.S.2d 817 (Sup.Ct.1957). Compare Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Even if we were to assume, as appellants suggest, that these cases do not conclusively demonstrate that New York courts would apply the “internal affairs” rule in the present case, it would still be necessary for this Court, absent state authority directly in point, to forecast what rule they would follow in this instance. Hablas v. Armour & Co., 270 F.2d 71, 75-76 (8th Cir. 1959); Yost v." } ]

[ { "docid": "21545666", "title": "", "text": "the admissibility of evidence only upon a showing that a clear abuse of discretion has occurred. United States v. Mays, 822 F.2d 793, 796 (8th Cir.1987). Federal Rule of Evidence 901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The evidence, although not entirely consistent, was sufficient to support a finding that the exhibit was what the government claimed — amphetamine possessed and distributed by Drews on January 6, 1987. The district court thus did not abuse its discretion in admitting it. III. Drews next contends that the district court erred in admitting into evidence Carstensen’s and Bloyer’s written plea agreements. In this circuit, a confederate’s guilty plea or plea agreement is admissible on the government’s direct examination of the witness as evidence of the witness’ credibility or of his acknowledgement of participation in the offense. United States v. Braidlow, 806 F.2d 781, 783 (8th Cir.1986); United States v. Hutchings, 751 F.2d 230, 237 (8th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985). Drews argues that the agreements unfairly bolstered the witnesses’ credibility because their terms required Carstensen and Bloyer to testify truthfully. However, [w]hile the existence of a plea agreement may support the witness’ credibility by showing his or her interest in testifying truthfully, the plea agreement may also impeach the witness’ credibility by showing his or her interest in testifying as the government wishes regardless of the truth. Introduction of the entire plea agreement permits the jury to consider fully the possible conflicting motivations underlying the witness’ testimony and, thus, enables the jury to more accurately assess the witness’ credibility. United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986) (citations omitted); see also United States v. Mealy, 851 F.2d 890, 899 (7th Cir.1988). Furthermore, the district court instructed the jurors to give Carstensen’s and Bloyer’s testimony such weight as they thought it deserved, taking into account whether the witnesses’ testimony may have been influenced by a desire" } ]

[ { "docid": "13077702", "title": "", "text": "inference by the jury that the Government is attempting to keep from the jury the witnesses] bias.” Id. at 1052 (quoting United States v. Singh, 628 F.2d 758, 761 (2d Cir.1980)). Nevertheless, under Edwards any clause that the court thinks more likely to bolster than to impeach the witness’s credibility is inadmissible, including clauses that “the agreement was revocable if the witness perjured himself, that upon such perjury the witness might be subject to prosecution ..., and that anything the witness said could be held against him.” 631 F.2d at 1052. (The Second Circuit has since noted that its distinction between “impeaching” and “bolstering” provisions of a cooperation agreement has proven difficult to administer in practice. See United States v. Cosentino, 844 F.2d 30, 33 n. 1 (2d Cir.1988): “Were we writing on a blank slate, we might have followed the other circuits that avoid the distinctions we have required judges and lawyers to make during the heat of trial”) This court has not yet addressed the exclusionary aspect of the Edwards rule, and the other circuits are divided. Two courts of appeals appear to agree with the Second Circuit’s approach, see United States v. Wallace, 848 F.2d 1464, 1474 (9th Cir.1988); United States v. Cruz, 805 F.2d 1464, 1479-80 (11th Cir.1986), but at least seven courts of appeals have rejected its reasoning and permitted the prosecution on direct examination to introduce the witness’s cooperation agreement in its entirety. See, e.g., United States v. Lord, 907 F.2d 1028, 1031 (10th Cir.1990); United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989); United States v. Mealy, 851 F.2d 890, 898-900 (7th Cir.1988); United States v. Martin, 815 F.2d 818, 821 (1st Cir.1987); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983). See also United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984) (entire plea agreement admissible at least where Government could anticipate later effort to impeach witness), vacated on other grounds sub nom. United States v. Pflaumer, 473 U.S." }, { "docid": "15123206", "title": "", "text": "of these agreements requiring them to testify truthfully and subjecting these witnesses to prosecution for perjury if their testimony was untruthful. Because defendants did not raise an objection at trial to the admission of this evidence, we will not disturb the defendants’ convictions absent a showing of plain error. Fed.R.Crim.P. 52(b); see also United States v. Young, 470 U.S. 1, 14-16, 105 S.Ct. 1038, 1045-47, 84 L.Ed.2d 1 (1985). Before determining whether plain error existed, however, we must first determine whether the trial court committed any error. See Young, 470 U.S. at 14, 105 S.Ct. at 1045-46 (after determining error was committed, Court then addressed whether the error amounted to plain error, justifying reversal); cf. United States v. Martinez, 890 F.2d 1088, 1094 (10th Cir.1989) (court first determined whether alleged prosecutorial misconduct was error, before deciding whether error was harmless), cert. denied, — U.S. -, 110 S.Ct. 1532, 108 L.Ed.2d 771 (1990). The circuit courts are divided on the issue of when the government may present evidence of the truthfulness provisions of a witness’s plea or cooperation agreement with the government. The majority of circuits allow the government to admit evidence of the truthfulness provisions of an agreement on direct examination of a witness, prior to any challenge to the witness’s credibility. See United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989); United States v. Mealy, 851 F.2d 890, 898-900 (7th Cir.1988); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated and remanded on other grounds sub nom. United States v. Pflaumer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983); cf. United States v. Sobamowo, 892 F.2d 90, 95 n. 3 (D.C.Cir.1989) (witness’s testimony that he was ordered by the court to offer his full cooperation as part of a plea bargain did not serve to impermissibly bolster the witness’s testimony), petition for cert. filed," }, { "docid": "22880337", "title": "", "text": "evidence corroborates the testimony in question does not suffice. Id. at-, 119 S.Ct. at 1900. We find that the circumstances surrounding Polizzi’s statements in this case indicate that the statements were trustworthy, particularly in light of the fact that Polizzi’s statements were made to his son in confidence, rather than to the police or to any other authority for the purpose of shifting the blame to Tocco. See Bruton v. Phillips, 64 F.Supp.2d 669, 680 (E.D.Mich. 1999) (reasoning that statements made to a perceived ally rather than to police officers during an interrogation are trustworthy, citing Latine v. Mann, 25 F.3d 1162,1166— 67 (2d Cir.1994)). Therefore, the admission of Polizzi’s statements would withstand a Sixth Amendment challenge. Accordingly, we reject Tocco’s argument that the district court erred in allowing into evidence Polizzi’s out-of-court statements. (2) Documentary evidence relating to Polizzi We review the admission of exhibits under an abuse of discretion standard. Bonds, 12 F.3d at 554. The government argues that it sought to introduce Angelo Polizzi’s plea agreement and other exhibits relating to this witness “to blunt any cross-examination impeaching of Polizzi’s credibility” with respect to cooperating with the prosecution. The plea agreement provided, among other things, that Angelo Polizzi would “provide truthful and complete information.” Tocco maintains that introduction of this evidence impermissibly constituted a vouching for Polizzi’s credibility, particularly since he was a key witness for the prosecution. We have considered this question previously and have concluded that “[[Introduction of the entire plea agreement permits the jury to consider fully the possible conflicting motivations underlying the witness’ testimony.” United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986). We noted further: While the existence of a plea agreement may support the witness’ credibility by showing his or her interest in testifying truthfully, the plea agreement may also impeach the witness’ credibility by showing his or her interest in testifying as the government wishes regardless of the truth. Id.; accord, United States v. Mealy, 851 F.2d 890, 898-99 (7th Cir.1988) (holding that prosecutor may elicit testimony regarding plea agreement and may enter agreement into evidence). Tocco counters with" }, { "docid": "139033", "title": "", "text": "L.Ed.2d 673 (1985); United States v. Henderson, 717 F.2d 135, 137 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). Furthermore, McColpin did not testify that he washed titles for defendant or testify in any manner to link defendant to his illegal activities. It is also defendant’s contention that introduction of the entire plea agreement impermissibly bolstered McColpin’s credibility because it contained a promise by McColpin to testify truthfully. How ever, a majority of the courts that have considered this issue have held that elicitation during direct examination of a plea agreement containing a promise to testify truthfully does not constitute impermissible bolstering of the witness’ credibility. See United States v. Leslie, 759 F.2d 366, 378 (5th Cir.1985), rev’d on rehearing en banc on other grounds, 783 F.2d 541 (1986); Oxman, 740 F.2d at 1302-03; United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); Henderson, 717 F.2d at 137-38; United States v. Winter, 663 F.2d 1120, 1133-34 (1st Cir.1981); United States v. Craig, 573 F.2d 513, 519 (7th Cir.), cert. denied sub nom. Markert v. United States, 439 U.S. 820, 99 S.Ct. 83, 58 L.Ed.2d 111 (1978). While the existence of a plea agreement may support the witness’ credibility by showing his or her interest in testifying truthfully, the plea agreement may also impeach the witness’ credibility by showing his or her interest in testifying as the government wishes regardless of the truth. United States v. Arroyo-Angulo, 580 F.2d 1137, 1146 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d. 260 (1978). See also United States v. Borello, 766 F.2d 46, 56 (2d Cir.1985); McNeill, 728 F.2d at 14; United States v. Barnes, 604 F.2d 121, 151 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Introduction of the entire plea agreement permits the jury to consider fully the possible conflicting motivations underlying the witness’ testimony and, thus, enables the jury to more accurately assess the witness’ credibility. McNeill, 728 F.2d at 14; Winter, 663 F.2d at 1134; Craig, 573 F.2d at 519. Thus, we do" }, { "docid": "23102525", "title": "", "text": "can determine whether an actual conflict adversely affected defense counsel’s performance — that is, a conflict existed that might have foreclosed a specific and seemingly valid or genuine strategy or tactic in the handling of this witness. If the district court determines that an actual conflict adversely affected counsel’s performance and there was no valid waiver, the court should order a new trial. Otherwise, it should reinstate the judgment of conviction. See Winkle, 722 F.2d at 611-12. The defendant’s conviction is, therefore, VACATED, and the case is REMANDED to the district court for further proceedings consistent with this opinion. . A number of courts appear to regard credibility-bolstering as no different from credibility-vouching, and merge the two concepts. See, e.g., United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); Hilton, 772 F.2d at 786-87; United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated on other grounds, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. Beaty, 722 F.2d 1090, 1096-97 (3d Cir.1983); United States v. Henderson, 111 F.2d 135, 137-38 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). We consider these to be different issues; therefore, we analyze them separately. . On direct examination of agent Lanata, the following exchange occurred: \"Q. Now, in interviewing these particular witnesses, did you have an occasion to make them any promises or offer them any consideration in return for their interviews with you? A. No promises were made to them. The only understanding would be is that if they provided truthful information, then the court would be made aware.” II R. 13. .On cross examination, defense counsel elicited the following from agent Lanata: \"A. ... I ask them what they know about those people and their involvement. They tell me and they’re instructed both by myself and by the Assistant U.S. Attorney ... we want the truth and nothing but the truth. If they know nothing, they tell us that they know nothing. If they only know a little bit about an individual, they only tell us a little bit." }, { "docid": "14466966", "title": "", "text": "Cortellesso and Speakman provided an inducement for these witnesses to testify falsely. We do not agree that informing the jury of the contents of a plea agreement of, at least, normal stripe is error. Martin relies upon United States v. Roberts, 618 F.2d 530 (9th Cir.1980), a case markedly different from this (the prosecutor told the jury that a police officer had been monitoring the witness’s testimony). The Ninth Circuit commented on the side, A trial court should be alert to the problem of vouching before admitting a plea agreement containing a promise to testify truthfully. The court should consider the phrasing and content of the promise to ascertain its implications and decide whether an instruction to the jury would dispel any improper suggestions. Id. at 536. In the present case, a cautionary instruction was given. Recent circuit opinions have held that the admission into evidence of plea agreements “does not constitute impermissible bolstering of the witness’s credibility.” United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986). See, e.g., United States v. Binker, 795 F.2d 1218, 1223 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987); United States v. Dennis, 786 F.2d 1029, 1046-47 (11th Cir.1986). Such agreements may often, as in the present case, point in different directions: a warning therein that the defendant will be prosecuted for false testimony enhances his credibility as a witness, but the rewards promised to him in the same document may undermine his credibility by showing that he stood to gain from incriminating others. Townsend, 796 F.2d at 163. As the district court noted, redaction would leave the jury with a slanted and false picture of what the bargain entailed. Only by viewing the entire agreement can the jury get the whole picture, from which to assess, as best it can, the probable motives or interests the witnesses could have in testifying truthfully or falsely. Martin argues that, in any event, remarks made by the prosecutor in the redirect examination of Cortellesso and during rebuttal argument, constituted improper vouching for the witness’s credibility. But we do not" }, { "docid": "22075763", "title": "", "text": "The government suggests that the prosecutor’s unsupported argument was a response to Necoechea's ostensibly unsupported argument: [Gibson] doesn’t testify against Blomquist, or Romero, or Jackson. Now, why is that? Well, they’ve got Blomquist, Jackson and Romero talking to Agent Salazar. They’ve got him under surveillance, and they’ve got him on tape. They don't need her testimony for something like that. She needs to say something about a person against whom there’s no proof in order to save her own neck. The government is mistaken. Gibson testified that this was the first case in which she testified, and therefore Necoechea’s argument was nothing more than a permissible inference from the record; it was not an extra-record argument, nor was it an attack on the government’s integrity. It is simply a permissible attack on Gibson’s credibility which, standing alone, does not trigger the invited response rule. Cf. United States v. Smith, 962 F.2d 923, 934 (9th Cir.1992). . Indeed, most other circuits are not as concerned with whether truthfulness provisions are referred to before credibility has been challenged as our cases have been. See United States v. Lord, 907 F.2d 1028, 1029 (10th Cir. 1990) (recognizing that majority of circuits admit evidence of truthfulness provisions before credibility is challenged); see also United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984) (evidence of immunity agreement may be introduced on direct regardless of whether credibility will be attacked); United States v. Oxman, 740 F.2d 1298, 1303 (3d Cir.1984) (since government could reasonably anticipate impeachment of witness, not improper to disclose truthfulness provision on direct), vacated on other grounds sub nom. United States v. Pflaummer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983) (not an abuse of discretion to introduce terms of a plea bargain on direct examination), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989) (admission of plea agreement where witness promises to be truthful is not impermissible bolstering); United States v. Townsend, 796 F.2d 158, 162-63" }, { "docid": "17652225", "title": "", "text": "amount Knip-pel paid D&M and the amount D&M paid Sears. At that amount, § 2F1.1 requires a ten-level increase. In addition, Judge Williams added four levels for abusing a position of trust and obstructing justice for a total score of twenty-two points, which translates into a forty-one to fifty-one month sentencing range. Judge Williams sentenced Montani to forty-one months in prison. II. ANALYSIS Montani raises four issues on appeal. First, he challenges the district court’s decision to admit at trial evidence of Israel’s guilty plea. Second, he challenges the court’s decision to allow evidence regarding the CDG enterprise under Rule 404(b). Third, Montani challenges the sufficiency of the evidence against him, and finally, he contends the district court committed error by enhancing his sentence ten levels under § 2F1.1. A. Co-defendant’s Plea Montani contends that the district court improperly allowed evidence of Israel’s plea agreement to be admitted at trial. This Court reviews for abuse of discretion a trial judge’s decision to admit or exclude evidence. See United States v. Gibson, 170 F.3d 673, 680 (7th Cir.1999); United States v. Mealy, 851 F.2d 890, 898 (7th Cir.1988). The well-settled rule in this Circuit allows the government to take the sting out of a defendant’s cross-examination by introducing evidence of a co-defendant’s plea agreement as part of its case in chief. See Mealy, 851 F.2d at 898; United States v. LeFevour, 798 F.2d 977, 983-84 (7th Cir.1986). A party may not “bolster the credibility” of a witness on direct examination, but we have held repeatedly that introducing evidence of a witness’s guilty plea or immunity deal serves the “truth-seeking” function of the trial by presenting all relevant aspects of a witness’s testimony at one time. See LeFevour, 798 F.2d at 983; see also United States v. Hedman, 630 F.2d 1184, 1198 (7th Cir.1980); United States v. Craig, 573 F.2d 513, 519 (7th Cir.1978). Montani does not dispute this settled point of law. Rather, he argues that because he offered to stipulate before trial that he would not use evidence of Israel’s guilty plea to impeach Israel’s testimony, the reasoning of LeFevour" }, { "docid": "15123207", "title": "", "text": "or cooperation agreement with the government. The majority of circuits allow the government to admit evidence of the truthfulness provisions of an agreement on direct examination of a witness, prior to any challenge to the witness’s credibility. See United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989); United States v. Mealy, 851 F.2d 890, 898-900 (7th Cir.1988); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated and remanded on other grounds sub nom. United States v. Pflaumer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983); cf. United States v. Sobamowo, 892 F.2d 90, 95 n. 3 (D.C.Cir.1989) (witness’s testimony that he was ordered by the court to offer his full cooperation as part of a plea bargain did not serve to impermissibly bolster the witness’s testimony), petition for cert. filed, No. 89-6943 (Mar. 16, 1990). These courts have noted that evidence concerning a plea agreement and its provisions may have both a bolstering and an impeaching effect on the witness’s credibility. See, e.g., Drews, 877 F.2d at 12; Townsend, 796 F.2d at 163; McNeill, 728 F.2d at 14; see also United States v. Bowie, 892 F.2d 1494, 1499 (10th Cir.1990). Further, introduction of this evidence enables the jury to more accurately assess the witness’s credibility, see Sobamowo, 892 F.2d at 95 n. 3; Drews, 877 F.2d at 12; Mealy, 851 F.2d at 899; Townsend, 796 F.2d at 163, regardless of whether the defense intends to use the agreement to impeach the witness’s testimony, see McNeill, 728 F.2d at 14; Henderson, 717 F.2d at 138. The Second Circuit, however, has held that, while the government may present evidence of the existence of an agreement and the witness’s understanding of that agreement prior to any challenge to the witness’s credibility, it is error for the government to introduce evidence of the agreement’s truthfulness requirements pri- or to" }, { "docid": "23000676", "title": "", "text": "co-conspirators. The defendants contend that, as a result of these erroneous evidentiary rulings, they were denied their rights to due process of law and a fair and impartial trial. A reviewing court may overrule a trial court’s evidentiary rulings only if the trial court abused its discretion. United States v. Kaden, 819 F.2d 813, 818 (7th Cir.1987); United States v. Swiatek, 819 F.2d 721, 726 (7th Cir.), cert. denied, — U.S. —, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987). We find that the trial judge did not abuse his discretion in admitting the plea agreements and co-conspirator statements, and thus did not deprive the defendants of their rights to due process and a fair and impartial trial. 1. Plea Agreements Five government witnesses were unin-dicted co-conspirators who had agreed to plead guilty to the same or similar charges as the defendants. The defendants contend that the trial judge erred in admitting the five witnesses’ plea agreements into evidence because the plea agreements referred to the witnesses’ promises to provide truthful testimony. The defendants claim that admission of the plea agreements allowed the government to improperly bolster the credibility of these witnesses. The government may not bolster the credibility of its witnesses in advance. United States v. LeFevour, 798 F.2d 977, 983 (7th Cir.1986); see Fed.R.Evid. 608(a)(2) (“evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked”). Nevertheless, this circuit has recognized that “asking a witness whether he is testifying by agreement is not likely to bolster his credibility. If anything it is likely to have the opposite effect, by imputing a motive for the witness’s testifying as the prosecution wants him to testify, regardless of the truth.” LeFevour, 798 F.2d at 983; accord United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986). The well-established rule in this circuit is that, on direct examination, the prosecutor may elicit testimony regarding the witness’s plea agreement and actually introduce the plea agreement into evidence. See United States v. Machi, 811 F.2d 991, 1003 (7th Cir.1987); LeFevour, 798 F.2d at 983-84; United States v. Hedman," }, { "docid": "8176226", "title": "", "text": "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 had [sic] experience with the Williams organization, and by the way I mean by that [sic], is that they have purchased drugs from them, they have sold drugs for them, or even if they were on the streets in which the drugs were being dealt. (J.A. 208.) This testimony is not objectionable. As the district court pointed out in denying Appellants’ objections to the testimony, the Government has a right to explain its procedures and the relationship between the Government and its witnesses. See United States v. Evans, 917 F.2d 800, 809 (4th Cir.1990) (undercover agent’s testimony as to observation of his actions by supervisors not impermissible vouching); United States v. Henderson, 717 F.2d 135, 138 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984) (plea agreement is admissible to show the extent of a witness’ relationship with the government and does not constitute bolstering). Agent Woods merely explained the Government’s procedures for locating and interviewing witnesses and thereby put evidence in front of the jury from which the jury" }, { "docid": "637030", "title": "", "text": "have considered these contentions and find them to be without merit. None warrants extended discussion. CONCLUSION For the foregoing reasons, Cosentino’s conviction is affirmed. . Other courts, apparently less concerned with the precise balance between impeaching and bolstering aspects, have declined to impose comparable conditions on admission of evidence of agreements that include bolstering provisions. See, e.g., United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir.1987); United States v. Machi, 811 F.2d 991, 1003 (7th Cir.1987); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Binker, 795 F.2d 1218, 1223 (5th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987); United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated and remanded on other grounds, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). But see United States v. Hilton, 772 F.2d 783, 787 (11th Cir.1985) (requiring attack on credibility before admission of bolstering aspects). Were we writing on a blank slate, we might have followed the other circuits that avoid the distinctions we have required judges and lawyers to make during the heat of trial. . Before either side presented any evidence, Co-sentino’s counsel objected to the government's stated intent to offer the agreements on direct. It is unclear, however, whether the objection included testimony or was limited to the documents themselves. He said that it was all right for the witnesses \"to say that it’s part of [their] agreement[s] to speak truthfully — but to have a piece of paper saying that, it’s not necessary.” Tr. 42. We need not decide, however, whether this apparent concession waived objection to testimony about bolstering aspects of the agreements. Because of the defense’s opening statement, rehabilitation was in order and testimony about those aspects was clearly admissible. Under these circumstances, even a properly preserved objection would fail." }, { "docid": "15123208", "title": "", "text": "No. 89-6943 (Mar. 16, 1990). These courts have noted that evidence concerning a plea agreement and its provisions may have both a bolstering and an impeaching effect on the witness’s credibility. See, e.g., Drews, 877 F.2d at 12; Townsend, 796 F.2d at 163; McNeill, 728 F.2d at 14; see also United States v. Bowie, 892 F.2d 1494, 1499 (10th Cir.1990). Further, introduction of this evidence enables the jury to more accurately assess the witness’s credibility, see Sobamowo, 892 F.2d at 95 n. 3; Drews, 877 F.2d at 12; Mealy, 851 F.2d at 899; Townsend, 796 F.2d at 163, regardless of whether the defense intends to use the agreement to impeach the witness’s testimony, see McNeill, 728 F.2d at 14; Henderson, 717 F.2d at 138. The Second Circuit, however, has held that, while the government may present evidence of the existence of an agreement and the witness’s understanding of that agreement prior to any challenge to the witness’s credibility, it is error for the government to introduce evidence of the agreement’s truthfulness requirements pri- or to a challenge to the witness’s credibility. See United States v. Cosentino, 844 F.2d 30, 32-35 (2d Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988). The Eleventh Circuit also prohibits introduction of the truthfulness provisions of an agreement until the defense challenges the witness’s credibility. See United States v. Cruz, 805 F.2d 1464, 1479-80 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 and 482 U.S. 930, 107.S.Ct. 3215, 96 L.Ed.2d 702 (1987). The Second Circuit has determined that the existence of an agreement impeaches, rather than bolsters, the witness’s credibility and has further determined that it is necessary to allow the government to establish the existence of an agreement between the government and the witness on direct examination, in order to prevent the jury from improperly inferring, when the agreement is brought up on cross-examination, that the government has tried to conceal that fact. See, e.g., Cosentino, 844 F.2d at 33. Admission of the entire plea agreement or evidence concerning the truthfulness provisions included in the" }, { "docid": "22880338", "title": "", "text": "witness “to blunt any cross-examination impeaching of Polizzi’s credibility” with respect to cooperating with the prosecution. The plea agreement provided, among other things, that Angelo Polizzi would “provide truthful and complete information.” Tocco maintains that introduction of this evidence impermissibly constituted a vouching for Polizzi’s credibility, particularly since he was a key witness for the prosecution. We have considered this question previously and have concluded that “[[Introduction of the entire plea agreement permits the jury to consider fully the possible conflicting motivations underlying the witness’ testimony.” United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986). We noted further: While the existence of a plea agreement may support the witness’ credibility by showing his or her interest in testifying truthfully, the plea agreement may also impeach the witness’ credibility by showing his or her interest in testifying as the government wishes regardless of the truth. Id.; accord, United States v. Mealy, 851 F.2d 890, 898-99 (7th Cir.1988) (holding that prosecutor may elicit testimony regarding plea agreement and may enter agreement into evidence). Tocco counters with reliance upon United States v. Carroll, 26 F.3d 1380 (6th Cir.1994), which held that the prosecutor’s improper reliance in closing argument on such an agreement amounted to personal vouching for the truthfulness of the witness’ testimony under the circumstances. The prosecutor argued and emphasized in Carroll that the witness who had entered into a similar plea agreement “would be in jeopardy” if he were not testifying truthfully. Id. at 1389. Circumstances were not the same in this case; the prosecutor made no similar closing argument and did not personally vouch for the truthfulness of Polizzi’s testimony. We do not agree with Tocco that Carroll supports reversal by reason of the introduction of the plea agreement as an exhibit. Indeed, the prosecutor may refer to such agreement in appropriate circumstances to deflect defendant’s use of a plea agreement to attack the witness’ credibility. See Mealy, 851 F.2d at 898-99. Thus, we find no error in the admission of these exhibits, and this assignment of error, therefore, does not support a reversal of Tocco’s conviction. (3) Vitello’s" }, { "docid": "13077703", "title": "", "text": "other circuits are divided. Two courts of appeals appear to agree with the Second Circuit’s approach, see United States v. Wallace, 848 F.2d 1464, 1474 (9th Cir.1988); United States v. Cruz, 805 F.2d 1464, 1479-80 (11th Cir.1986), but at least seven courts of appeals have rejected its reasoning and permitted the prosecution on direct examination to introduce the witness’s cooperation agreement in its entirety. See, e.g., United States v. Lord, 907 F.2d 1028, 1031 (10th Cir.1990); United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989); United States v. Mealy, 851 F.2d 890, 898-900 (7th Cir.1988); United States v. Martin, 815 F.2d 818, 821 (1st Cir.1987); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983). See also United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984) (entire plea agreement admissible at least where Government could anticipate later effort to impeach witness), vacated on other grounds sub nom. United States v. Pflaumer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985). We think the majority position is the better reasoned. Simply put, we are not persuaded that evidence of the contents of a cooperation agreement • unduly bolsters the credibility of a Government witness. First, insofar as the agreement provides that if the witness lies the agreement is revokable, that the witness is liable to prosecution for perjury, and that his perjurious testimony may be used against him, it adds nothing to the law — as the defense is free to bring out upon cross-examination. Therefore, the agreement provides no special incentive for the Government witness to testify truthfully; hence, the jury is not likely to place special credence in the witness merely because of the terms of the agreement. Furthermore, that the Government may (obviously) impose a sanction upon the witness if he lies does nothing to enhance the Government’s ability to detect whether he is in fact lying; again the terms of the cooperation agreement should do nothing to enhance the witness’s credibility. Finally, at least" }, { "docid": "23000679", "title": "", "text": "not commit error in allowing a witness to read his entire plea agreement into the record. 811 F.2d at 1002-04. See also LeFevour, 798 F.2d at 984 (evidence was so overwhelming that any error in the admission of the plea agreements was harmless). Introducing the entire plea agreement into evidence may enable the jury to assess the witness’s credibility and motivations more accurately than simply eliciting testimony about the plea agreement. Townsend, 796 F.2d at 163 (citing Craig, 573 F.2d at 519). In fact, “[wjhile the existence of a plea agreement may support the witness’ credibility by showing his or her interest in testifying truthfully, the plea agreement may also impeach the witness’ credibility by showing his or her interest in testifying as the government wishes regardless of the truth.” Townsend, 796 F.2d at 163. In addition, if the government did not introduce the actual plea agreement into evidence, the defendant could argue convincingly to the jury that the government or its witness has something to hide. United States v. Hilton, 772 F.2d 783, 787 (11th Cir.1985); United States v. Halbert, 640 F.2d 1000, 1005 (9th Cir.1981). The plea agreements in this case were five pages in length, and each contained four or five references to the witness’s promise to testify truthfully. In drafting plea agreements, the government should avoid unnecessarily repetitive references to truthfulness if it wishes to introduce the agreements into evidence. Nevertheless, we do not believe that the plea agreements in this case disproportionately emphasized or repeated the promise of truthful testimony. See United States v. Henderson, 717 F.2d 135, 138 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984); Halbert, 640 F.2d at 1005. In any case, the judge’s instruction to the jury that they should use caution in evaluating the government witnesses’ testimony was sufficient to dispel any harmful effects of the references to truthful testimony. The defendants also claim that the prosecutor improperly vouched for the credibility of the witnesses. In introducing evidence of plea agreements, the prosecutor may not imply that he possessed information not heard by the" }, { "docid": "637029", "title": "", "text": "been fundamentally at odds with the distinctions we have drawn between the impeachment and bolstering aspects of cooperation agreements. Although we have required a prior attack on credibility so that the whole agreement serves a rehabilitative function, we have never restricted use of an agreement to support credibility once that condition is satisfied. Our view presupposes that the agreement may and will be used to support credibility. The district court’s treatment of the cooperation agreements was fully consistent with these principles. III. Cosentino raises three instances of allegedly improper questioning or comment by the prosecutor. He argues that the government improperly vouched for Rappa-port’s veracity by inquiring on redirect into his cooperation in other prosecutions. He also contends that the prosecutor improperly trapped him into stating that Rappaport and Eisenberg had lied in their testimony about the loan. He finally argues that certain rebuttal comments by the prosecu tor in closing might have suggested to the jury that it could convict him without considering evidence of his good character on the issue of guilt. We have considered these contentions and find them to be without merit. None warrants extended discussion. CONCLUSION For the foregoing reasons, Cosentino’s conviction is affirmed. . Other courts, apparently less concerned with the precise balance between impeaching and bolstering aspects, have declined to impose comparable conditions on admission of evidence of agreements that include bolstering provisions. See, e.g., United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir.1987); United States v. Machi, 811 F.2d 991, 1003 (7th Cir.1987); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Binker, 795 F.2d 1218, 1223 (5th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987); United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated and remanded on other grounds, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). But see United States v. Hilton, 772 F.2d" }, { "docid": "22075764", "title": "", "text": "challenged as our cases have been. See United States v. Lord, 907 F.2d 1028, 1029 (10th Cir. 1990) (recognizing that majority of circuits admit evidence of truthfulness provisions before credibility is challenged); see also United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984) (evidence of immunity agreement may be introduced on direct regardless of whether credibility will be attacked); United States v. Oxman, 740 F.2d 1298, 1303 (3d Cir.1984) (since government could reasonably anticipate impeachment of witness, not improper to disclose truthfulness provision on direct), vacated on other grounds sub nom. United States v. Pflaummer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983) (not an abuse of discretion to introduce terms of a plea bargain on direct examination), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989) (admission of plea agreement where witness promises to be truthful is not impermissible bolstering); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986) (affirming introduction of entire plea agreement on direct, noting that eliciting during direct examination a plea agreement with a truthfulness provision does not constitute impermissible bolstering); United States v. Mealy, 851 F.2d 890, 898-900 (7th Cir. 1988) (plea agreements do not impermissibly bolster credibility); United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989) (adopting Townsend). . Gibson claims that she lied to Salazar about \"dealing for years” in order to gain his confidence, so she did not contradict herself at trial. Salazar’s observation that Gibson knew how to inspect marijuana does not necessarily imply that Gibson had dealt before; nor does the unsigned memorandum stating that the \"snitch” had said \"she” had done drug deals before. The memorandum is double hearsay, does not explicitly mention Gibson, and acknowledges that the co-defendant was unwilling to meet with the investigator." }, { "docid": "23000677", "title": "", "text": "admission of the plea agreements allowed the government to improperly bolster the credibility of these witnesses. The government may not bolster the credibility of its witnesses in advance. United States v. LeFevour, 798 F.2d 977, 983 (7th Cir.1986); see Fed.R.Evid. 608(a)(2) (“evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked”). Nevertheless, this circuit has recognized that “asking a witness whether he is testifying by agreement is not likely to bolster his credibility. If anything it is likely to have the opposite effect, by imputing a motive for the witness’s testifying as the prosecution wants him to testify, regardless of the truth.” LeFevour, 798 F.2d at 983; accord United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986). The well-established rule in this circuit is that, on direct examination, the prosecutor may elicit testimony regarding the witness’s plea agreement and actually introduce the plea agreement into evidence. See United States v. Machi, 811 F.2d 991, 1003 (7th Cir.1987); LeFevour, 798 F.2d at 983-84; United States v. Hedman, 630 F.2d 1184, 1198-99 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed. 2d 614 (1981); United States v. Craig, 573 F.2d 513, 519 (7th Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 83, 58 L.Ed.2d 111 (1978); United States v. Creamer, 555 F.2d 612, 617-18 (7th Cir.), cert. denied, 434 U.S. 833, 98 S.Ct. 118, 54 L.Ed.2d 93 (1977); United States v. Isaacs, 493 F.2d 1124, 1165 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). The defendants do not dispute that the government properly elicited testimony regarding the plea agreements in this case. Rather, the defendants argue that introducing these particular plea agreements into evidence was prejudicial because of the numerous references to truthful testimony. Five plea agreements were admitted into evidence, each containing four or five references to the witness’s obligation to provide truthful testimony. While most of the authority on this subject deals with the proper scope of direct examination by the prosecutor, in Machi this court found that the trial court did" }, { "docid": "139032", "title": "", "text": "cert. denied, 464 U.S. 986, 104 S.Ct. 433, 78 L.Ed.2d 365 (1983). Rule 607 may not, however, be used “for the purpose of introducing irrelevant evidence or of establishing the defendant’s guilt by association with the witness.” Gorny, 732 F.2d at 604. See also Crouch, 731 F.2d at 624. It is defendant’s contention that the government elicited McColpin’s testimony that he had entered into a plea agreement regarding titles he “washed” for Cleveland, Tennessee, dealers solely for the purpose of establishing defendant’s guilt by association. However, courts have consistently recognized that “the elicitation of the fact of the agreement and the witness’ understanding of it ... should be permitted on direct examination in order to anticipate cross-examination by the defendant which might give the jury the unjustified impression that the Government was concealing this relevant fact.” United States v. Edwards, 631 F.2d 1049, 1052 (2d Cir.1980). See also United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated on other grounds sub nom. United States v. Pflaumer, — U.S. —, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. Henderson, 717 F.2d 135, 137 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984). Furthermore, McColpin did not testify that he washed titles for defendant or testify in any manner to link defendant to his illegal activities. It is also defendant’s contention that introduction of the entire plea agreement impermissibly bolstered McColpin’s credibility because it contained a promise by McColpin to testify truthfully. How ever, a majority of the courts that have considered this issue have held that elicitation during direct examination of a plea agreement containing a promise to testify truthfully does not constitute impermissible bolstering of the witness’ credibility. See United States v. Leslie, 759 F.2d 366, 378 (5th Cir.1985), rev’d on rehearing en banc on other grounds, 783 F.2d 541 (1986); Oxman, 740 F.2d at 1302-03; United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); Henderson, 717 F.2d at 137-38; United States v. Winter, 663 F.2d 1120, 1133-34 (1st Cir.1981); United States v. Craig, 573 F.2d 513, 519 (7th Cir.)," } ]

[ { "docid": "2303617", "title": "", "text": "opinion, and I join it in full. I write separately to underline Judge Callahan’s concern that “the return of property pursuant to Rule 41(g) is not necessarily the appropriate relief in this case.” Dissent at 1188-89. Even if the government had violated the plaintiffs’ Fourth Amendment rights, the remedy for the alleged violation imposed by the Nevada district court (Judge Mahan), and upheld by the majority, is both unprecedented and in conflict with the past several decades of the Supreme Court’s Fourth Amendment jurisprudence. Although a party can seek the return of property under Rule 41(g), and the exclusionary rule may prevent illegally seized evidence from being used for particular purposes during criminal proceedings, ordering the government to expunge all the information it obtained from a search or seizure of property is inconsistent with the limited scope of the modern exclusionary rule. But that is just what the district court’s order did: it directed the government not only to return the property seized during its search of Quest’s facilities, but to destroy all traces of information derived from that search. I therefore dissent from the majority’s affirmance of this order. Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Because there is no criminal proceeding pending against the plaintiffs in this case, we analyze their motion for return of property as an equitable analog to a motion under Rule 41(g). See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir.1993) (recognizing that “district courts have the power to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant”). Such pre-indictment Rule 41 motions “are" } ]

[ { "docid": "3056769", "title": "", "text": "documents in support of an application for a search warrant. Id. at 299, 301. The court there also observed that the First Amendment cases brought by news media seeking access to search warrant records were not precisely in point. Nevertheless, borrowing from the First Amendment analysis, the court concluded that search warrant records could be sealed, even from the person from whom property was seized, upon a showing that “a compelling governmental interest requires that the materials be kept under seal, and that there is no less restrictive means such as redaction available.” Id. at 299, 301-02. More than a eonclusory allegation about the need to protect a continuing investigation is necessary to meet the government’s burden of showing compelling need. Id. at 299-300. The Ohio Court’s reasoning is persuasive. The Fourth Amendment requirement of probable cause is meaningless without some way for targets of the search to chal lenge the lawfulness of that search. Where the government asserts a need to seal the information from the eyes of the person whose property was searched, it must make a specific showing of compelling need and must establish that there is no less restrictive alternative to sealing the records. This court’s conclusion is also supported by the terms of Federal Rule of Criminal Procedure 41(e). That Rule provides a procedure by which victims of unlawful searches may seek redress. Under Rule 41(e), a party aggrieved by an unlawful search and seizure may move for the return of the property. Fed.R.Crim.P. 41(e). If such a motion is made the Rule provides that the court shall receive evidence on any issue of fact necessary to decide the motion. In such cases, the court’s decision will almost always depend upon whether the affidavit submitted in support of the warrant application established probable cause to believe that evidence of a crime would be found in the place to be searched. At a hearing to determine whether the movant may obtain the return of his property, the government must establish that there was probable cause. The aggrieved person may also present evidence. The affidavit must be" }, { "docid": "16995619", "title": "", "text": "Tracey Directory based upon the April 7 search warrants, a contention we address in this consolidated appeal. Insofar as the dissent suggests that the pursuit of the April 30 search warrant evidences bad faith harassment by the government and an attempt to evade a possibly adverse order on the motion for return of property filed in the Central District of California, we decline to speculate. We have no reason to believe that the government sought the April 30 warrant for purposes of harassment, rather than to avoid an additional search of CDT that would have followed from authorization to seize the original copy in the Central District. Since no district court has ever held an evidentiary hearing, and the government complied with the commands of the criminal rules to secure search warrants from the magistrate judges in whose districts the property was located, based upon a showing of probable cause that incriminating evidence would be found, we see no signs of bad faith to support the district courts’ contrary conclusion. .Fed.R.Crim.P. 41(g) reads: Motion To Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. . See supra note 9. . The government moved for a stay of this order because the evidence was otherwise lawfully in its possession pursuant to the subpoena of May 6, 2004. Judge Mahan denied the motion on November 1, 2004, based on the government's failure to raise the subpoena argument at the original hearing. . We discuss the inapplicability of this warrant exception in Section III.A.4. See infra note 39. .These subpoenas were not the earliest ones issued in the investigation. The first subpoenas dated to January 16, 2004, and mandated" }, { "docid": "16995596", "title": "", "text": "erred in finding callous disregard of Fourth Amendment rights, the three other equitable jurisdiction factors weigh in favor of hearing the motions by the Players’ Association and CDT. See Ramsden, 2 F.3d at 326 (holding that three factors justified exercise of equitable jurisdiction to hear Fed.R.Crim.P. 41(g) motion). As such, we cannot say that either district court’s initial choice to hear the motion constituted an abuse of discretion. IV We turn now to the merits of the substantive rulings issued by Judge Cooper and Judge Mahan that ordered return of all property other than evidence directly related to the ten players named in the search warrants. A With respect to property taken during search warrants, Fed.R.Crim.P. 41(g) provides that a person who is deprived of property may move for its return. When such a motion is granted, the property in question must be returned to the moving party, but a court “may impose reasonable conditions to protect access to the property and its use in later proceedings.” Id. Although the rule itself does not set a standard for determining when property should be returned to a moving party, an advisory committee note explains that “reasonableness under all of the circumstances must be the test.” Fed.R.Crim.P. 41 advisory committee’s note. We have repeatedly held that a Fed. R.Crim.P. 41(g) motion is properly denied if “the government’s need for the property as evidence continues.” United States v. Fitzen, 80 F.3d 387, 388 (9th Cir.1996) (internal quotation marks omitted); United States v. Mills, 991 F.2d 609, 612 (9th Cir.1993) (same). The advisory committee note explains: “If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable.” Fed. R.Crim.P. 41 advisory committee’s note. It is when the government no longer needs the property as evidence that a presumption arises, giving the owner a right to have the property returned. Fitzen, 80 F.3d at 388. Here, the government already has provided copies of all documents seized, and it states that the remaining evidence is essential to its investigation and prosecution of the distribution" }, { "docid": "10697244", "title": "", "text": "filed, it shall be treated also as a motion to suppress under Rule 12. On April 20, 2002, the Supreme Court entered an order amending the Federal Rules of Criminal Procedure 1 through 60, effective December 1, 2002. As a result, Rule 41(e) became Rule 41(g) and provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. . On November 7, 2002, Pantelidis filed a petition for a Writ of Mandamus. By an order dated February 5, 2003, we consolidat ed that petition with this appeal. However, in his brief, Pantelidis does not address his petition for a writ of mandamus. Therefore, we must assume that he has abandoned that petition. . See n.2, supra. . At the time DiBella was decided, Rule 41(e) provided: A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be" }, { "docid": "23350287", "title": "", "text": "to Evans and made appropriate credibility determinations; and the court properly applied a dangerous-weapon enhancement to Evans’s offense level. Also, Evans’s argument that the district court improperly applied a four-level enhancement for serving as a leader of the conspiracy is frivolous; the argument was not raised in the district court, and on plain-error review Evans cannot prevail because the government introduced substantial evidence describing the supervisory power Evans wielded in the conspiracy. Finally, the district court imposed a reasonable sentence after giving due consideration to the § 3553(a) factors. Accordingly, we grant Evans’s counsel’s motion to withdraw. F. Thompson’s Rule 41(g) Motion When Thompson was arrested in May 2004, the government seized cash and personal property from Thompson’s residence and business. The seized property included computer equipment, financial documents, electronic equipment, a 2001 Ford Excursion (which is no longer in the government’s possession), and approximately $320,000 in cash. Although the indictment included a count seeking forfeiture of this property as proceeds of Thompson’s drug-trafficking activities, to our knowledge the government has not pursued forfeiture. Furthermore, apparently because of an oversight, no reference to the seized property was included in the PSR; it was not considered when the district court calculated Thompson’s guidelines range and imposed his sentence. While this appeal was pending, Thompson filed a pro se motion under Rule 41(g) of the Federal Rules of Criminal Procedure seeking the return of the property. Rule 41(g) provides: A person aggrieved ... by the deprivation of property may move for the property’s return.... The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Thompson argued (among other things) that he wanted the money returned in order to settle a pending tax dispute with the IRS and to support his wife and his 19 children. The district court held a status hearing on the motion and noted that because Thompson’s PSR did not include the seized funds" }, { "docid": "16602494", "title": "", "text": "his. Thompson produced no evidence to refute the government’s evidence that the conspiracy made massive amounts of money over its fifteen-year history. The parties offered conflicting explanations for the government’s failure to move for forfeiture of the money at sen- fencing on the basis that the $300,000-plus in cash, apparently all in small bills found at Thompson’s residence, constituted drug proceeds. Thompson insists that he and the government had entered into a verbal agreement according to which he agreed to plead guilty in exchange for the government’s agreement not to seek forfeiture of the seized funds. The government denies having entered into any such agreement and instead maintains that it simply “dropped the ball” in neglecting to seek forfeiture of the cash. Given that Thompson’s appeal of his sentence was pending before the Seventh Circuit at the time, I denied Thompson’s Rule 41(g) motion as premature. Id. at *3. On September 29, 2009, the Seventh Circuit affirmed Thompson’s sentence, see White, 582 F.3d at 807, and on January 30, 2009, Thompson renewed his Rule 41(g) motion. II. Rule 41(g) provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed.R.Crim.P. 41(g). “It is well settled that upon the termination of criminal proceedings, seized property, other than contraband, should be returned to the rightful owner.” United States v. David, 131 F.3d 55, 59 (2d Cir.1997) (quotation marks omitted); see also United States v. Pinson, 88 Fed.Appx. 939, 940 (7th Cir.2004) (“In general, seized property must be returned after criminal proceedings have terminated.”). “However, the government may retain after trial seized property in which it has a ‘continuing interest’ — that is, an interest beyond the property’s use in the" }, { "docid": "23350288", "title": "", "text": "apparently because of an oversight, no reference to the seized property was included in the PSR; it was not considered when the district court calculated Thompson’s guidelines range and imposed his sentence. While this appeal was pending, Thompson filed a pro se motion under Rule 41(g) of the Federal Rules of Criminal Procedure seeking the return of the property. Rule 41(g) provides: A person aggrieved ... by the deprivation of property may move for the property’s return.... The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Thompson argued (among other things) that he wanted the money returned in order to settle a pending tax dispute with the IRS and to support his wife and his 19 children. The district court held a status hearing on the motion and noted that because Thompson’s PSR did not include the seized funds as assets potentially available to Thompson, the true size of Thompson’s assets was not fully known at sentencing. The court suggested that this information might have warranted a larger fine beyond the $100,000 it imposed when it sentenced Thompson. Because Thompson’s appeal of his sentence was pending in this court and the district court lacked jurisdiction to revisit Thompson’s sentence unless we vacated it, the court decided to hold Thompson’s Rule 41(g) motion in abeyance until we resolved Thompson’s appeal. Thompson objected, and the district court shifted course and simply denied the motion as premature, saying that if Thompson’s sentence was affirmed, it would “promptly decide” a new Rule 41(g) motion. Thompson appealed this order, challenging several aspects of the district court’s handling of his motion. First, he argues that the district court should have entered a default judgment against the government. Second, he claims the district court erred by not deciding the merits of his Rule 41(g) motion. Third, he contends that the district court should not have held hearings on the Rule 41(g)" }, { "docid": "15489199", "title": "", "text": "of Criminal Procedure 41(e), which provides in full: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. AmeriSource argued for the return of its property on the ground that the “use by” date on the drugs would soon pass. Id. at 744. In addition, AmeriSource maintained that the government would suffer no hardship were it allowed to retain a sample of the confiscated drugs. Id. Assuring the court that it would give back the drugs before their expiration date, the government insisted that even a partial return was not possible because its “trial strategy was to present all of the property in question at trial, in order to establish the illicit nature of the criminal defendants’ sales activity.” Id. at 745. In addition, the government maintained that AmeriSource had failed to avail itself of alternative civil remedies against Norfolk. Id. In a report and recommendation ultimately adopted by the district court without challenge, a magistrate judge rejected AmeriSource’s petition because Ameri-Source could not identify with any reasonable degree of specificity the drugs it owned. Id. at 748. Apparently, the seized pharmaceuticals included drugs from a number of distributors, and they had all become commingled. See id. In addition, “[t]he magistrate found that AmeriSource had not demonstrated that it lacked an adequate remedy at law.” Id. In the proceeding that we have jurisdiction to review, the Court of Federal Claims granted summary judgment for the government. Id. at 752. The court ruled that the government had seized and retained the property pursuant to the police power, and, therefore, the Takings Clause did not apply. Id. at 751. The Court of Federal Claims reasoned that “[t]he ability of federal prosecutors" }, { "docid": "16214179", "title": "", "text": "remand the matter to the district court for findings regarding the government’s possession of the property. Should the district court determine on remand that the government is no longer in possession of the property, it should vacate its prior order granting the United States summary judgment and dismiss Clymore’s Rule 41 for lack of subject matter jurisdiction. TV. Conclusion We REVERSE and REMAND this matter to the district court for further findings consistent with this opinion. We DENY Clymore’s request for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and his request that any remand be assigned to a different district court judge. There being no objection by the government, we GRANT Clymore’s Motion to Augment the Record on Appeal, which was provisionally granted on May 8, 2003. . Effective December 1, 2002, Rule 41 was amended and reorganized. What was formerly Rule 41(e) is now found at Rule 41(g) with minor stylistic changes. Rule 41(g) provides: Motion to Return Property. A person aggrieved by an unlawful search and seizure of properly or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed. R. Crim. P. 41(g). For purposes of this appeal and to remain consistent with the parties' briefs, we will continue to refer to the rule as Rule 41(e). . This statute provides: (a) Subject property The following shall be subject to forfeiture to the United States and no property right shall exist in them: (1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter. (2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or listed" }, { "docid": "10697243", "title": "", "text": "to the district court for proceedings consistent with this opinion. . If the government cannot reach illegal proceeds directly, it can, under 21 U.S.C. § 853(p), seek forfeiture of other property of the defendant, called “substitute assets,” up to the value of the property. . When Pantelidis filed his Rule 41(e) motion it provided: A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence of any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. On April 20, 2002, the Supreme Court entered an order amending the Federal Rules of Criminal Procedure 1 through 60, effective December 1, 2002. As a result, Rule 41(e) became Rule 41(g) and provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. . On November 7, 2002, Pantelidis filed a petition for a Writ of Mandamus. By an order dated February 5, 2003, we consolidat ed that petition with this appeal. However, in his brief, Pantelidis does not address his petition for a writ of mandamus. Therefore, we" }, { "docid": "19333312", "title": "", "text": "exclusionary rule were well aware that it embodied a judgment that it is better for some guilty persons to go free than for the [Government] to behave in forbidden fashion.”). Fourth, the Government contends that returning or destroying the non-responsive files is “entirely impractical” because doing so would compromise the remaining data that was responsive to the warrant, making it impossible to authenticate or use it in a criminal prosecution. Appellee Br. at 34. We are not convinced that there is no other way to preserve the evidentiary chain of custody. But even if we assumed it were necessary to maintain a complete copy of the hard drive solely to authenticate evidence responsive to the original warrant, that does not provide a basis for using the mirror image for any other purpose. Finally, the Government argues that Ga-nias’s failure to bring a motion for the return of property, pursuant to Federal Rule of Criminal Procedure 41(g), precludes him from seeking suppression now. Although the district court accepted this argument, we find no authority for concluding that a Rule 41(g) motion is a prerequisite to a motion to suppress. See Fed.R.Crim.P. 41(g) (“A person aggrieved ... may move for the property’s return.” (emphasis added)); Fed.R.Crim.P. 41(h) (“A defendant may move to suppress evidence .... ” (emphasis added)). Imposing such a prerequisite makes little sense in this context, where Ganias still had the original computer files and did not need the Government’s copies to be returned to him. Moreover, we fail to see what purpose a Rule 41(g) motion would have served, given the Government’s position that non-responsive files in its possession could not feasibly have been returned or purged anyway. Because the Government has demonstrated no legal basis for retaining the non-responsive documents, its retention and subsequent search of those documents were unconstitutional. The Fourth Amendment was intended to prevent the Government from entering individuals’ homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes. See Entick, 95 Eng. Rep. at 817-18; see also Jones, 132 S.Ct. at 949. Yet this is exactly what" }, { "docid": "23209210", "title": "", "text": "the United States to pay Adeleke money damages for property that could not be returned pursuant to Fed.R.Crim.P. 41(g); (2) sovereign immunity also bars Adeleke’s due process claim to government insurance of his property during the one-year retrieval period, and the claim, being meritless, does not warrant transfer to the Court of Claims; (3) Adeleke cannot seek an award of property damages from the Air Stabilization Act’s Victim Compensation Fund; and (4) Adeleke’s damage claim fails to fall within the sovereign immunity waivers of the FTCA. Accordingly, the district court judgment is hereby AfFIRMED. . Fed.R.Crim.P. 41(e) provided: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move the district court for the district in which the property was seized for the return- of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. On December 1, 2002, Fed.R.Crim.P. 41(e) was redesignated Fed.R.Crim.P. 41(g) without substantive change. See Fed.R.Crim.P. 41 Advisory Committee Note to the 2002 aménd-ments. The current rule provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed.R.Crim.P. 41(g) (2003). To avoid confusion, throughout" }, { "docid": "2303618", "title": "", "text": "information derived from that search. I therefore dissent from the majority’s affirmance of this order. Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Because there is no criminal proceeding pending against the plaintiffs in this case, we analyze their motion for return of property as an equitable analog to a motion under Rule 41(g). See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir.1993) (recognizing that “district courts have the power to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant”). Such pre-indictment Rule 41 motions “are treated as civil equitable proceedings,” id., arising under the courts’ “supervisory jurisdiction.” Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir.1975). The Supreme Court has explained that a court’s authority to suppress evidence, whether under the court’s supervisory jurisdiction or under those provisions of the federal rules of criminal procedure expressly providing for suppression, is limited by the scope of the exclusionary rule. See United States v. Payner, 447 U.S. 727, 735-36, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) (holding that a federal court could not exercise its equitable supervisory powers to suppress evidence in circumstances where the exclusionary rule did not allow such suppression); United States v. Calandra, 414 U.S. 338, 348 n. 6, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (holding that a motion for the return of property “does not constitute a statutory expansion of the exclusionary rule”); see also Grimes v. Comm’r, 82 F.3d 286, 290 (9th Cir.1996) (holding that Rule 41 does not provide movants “any protection beyond that provided by the exclusionary rule”). Accordingly, courts must follow the Supreme" }, { "docid": "3544630", "title": "", "text": ". At the time of Potes Ramirez's arrest, the government also seized his Colombian passport. The passport was turned over to the Immigration and Naturalization Service and is not at issue in this case. . Rule 41(e) provides: Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made 'or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. Fed.R.Crim.P. 41(e). .Rule 4(b)(1)(A) provides: In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal. Fed. R.App. P. 4(b)(1)(A). The government contends that Potes Ramirez's notice of appeal was untimely even with the additional 30-day excusable neglect period afforded by Federal Rule of Appellate Procedure 4(b)(4). Rule 4(b)(4) provides: Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b). Fed. R.App. P. 4(b)(4). .Rule 4(a)(1)(B) provides that, in a civil case: When the United States or its officer or agency is a party, the notice" }, { "docid": "19333313", "title": "", "text": "that a Rule 41(g) motion is a prerequisite to a motion to suppress. See Fed.R.Crim.P. 41(g) (“A person aggrieved ... may move for the property’s return.” (emphasis added)); Fed.R.Crim.P. 41(h) (“A defendant may move to suppress evidence .... ” (emphasis added)). Imposing such a prerequisite makes little sense in this context, where Ganias still had the original computer files and did not need the Government’s copies to be returned to him. Moreover, we fail to see what purpose a Rule 41(g) motion would have served, given the Government’s position that non-responsive files in its possession could not feasibly have been returned or purged anyway. Because the Government has demonstrated no legal basis for retaining the non-responsive documents, its retention and subsequent search of those documents were unconstitutional. The Fourth Amendment was intended to prevent the Government from entering individuals’ homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes. See Entick, 95 Eng. Rep. at 817-18; see also Jones, 132 S.Ct. at 949. Yet this is exactly what the Government claims it may do when it executes a warrant calling for the seizure of particular electronic data relevant to a different crime. Perhaps the “wholesale removal” of intermingled computer records is permissible where off-site sorting is necessary and reasonable, Tamura, 694 F.2d at 595-97, but this accommodation does not somehow authorize the Government to retain all non-responsive documents indefinitely, for possible use in future criminal investigations. See Comprehensive Drug Testing, 621 F.3d at 1171. We turn now to the application of the exclusionary rule. As discussed above, suppression is required when (1) there is a widespread seizure of items not covered by the warrant and (2) agents do not act in good faith. United States v. Shi Yan Liu, 239 F.3d 138, 141 (2d Cir.2000). There must also be a weighing of (3) the benefits of deterrence against (4) the costs of suppression. Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). First, as we set forth above, the Government effected a widespread seizure of files beyond" }, { "docid": "2303553", "title": "", "text": "remedies, as a reason the exclusionary rule need not apply to grand jury proceedings. See 414 U.S. at 354 n. 10, 94 S.Ct. 613. Payner, which never mentions Rule 41 or a motion to return, simply held that “the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court.” 447 U.S. at 735, 100 S.Ct. 2439. This rule has no relevance here because no motion to suppress, whether based on Rule 41(h) or the supervisory power, is before us. That Rule 41(g) is broader than the exclusionary rule can no longer be in doubt in light of the 1989 amendments which explicitly authorize a motion to return property on behalf of any “person aggrieved by an unlawful search and seizure of property or by the deprivation of property.” Fed.R.Crim.P. 41(g) (emphasis added). This language was designed to expand the rule’s coverage to include property lawfully seized. See id. advisory committee notes. It goes without saying that lawfully seized evidence may not be suppressed. The return of seized property under Rule 41(g) and the exclusionary rule serve fundamentally different purposes. Suppression helps ensure that law enforcement personnel adhere to constitutional norms by denying them, and the government they serve, the benefit of property that is unlawfully seized. Rule 41(g) is concerned with those whose property or privacy interests are impaired by the seizure. Suppression applies only to criminal defendants whereas the class of those aggrieved can be, as this case illustrates, much broader. Most importantly, judicially-imposed restrictions on the scope of the exclusionary rule — itself a judicially-created remedy — are not applicable to orders for return of property which derive their authority from the Federal Rules of Criminal Procedure and their enabling legislation. This is not, in any event, a question properly presented in the ease now before us: What uses the government may make of the Quest evidence during a criminal proceeding must be decided in the context of such a proceeding, when and if criminal charges are brought against" }, { "docid": "5926847", "title": "", "text": "found under Rule 41(g). Rule 41(g) provides: Rule 41(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the mov-ant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. . Property that constitutes or is derived from proceeds traceable to food stamp trafficking in violation of 7 U.S.C. § 2024(b), or a conspiracy to commit food stamp trafficking, is subject to civil forfeiture, pursuant to 18 U.S.C. § 981(a)(1)(C). Property that is involved in a transaction or attempted transaction in violation of 18 U.S.C. § 1956, or any property traceable to such properly is subject to civil forfeiture, pursuant to 18 U.S.C. § 981(a)(1)(A). . Indeed, on July 2, 2003, during a court appearance before the undersigned, defendant’s counsel stated that defendant had filed a claim in the civil forfeiture proceeding. See 18 U.S.C. § 983. . The exclusion of civil forfeiture proceedings was previously governed by Rule 54. On December 1, 2002, the contents of Rule 54 were transferred by court order to Rule 1. Fed.R.Crim.P. 54. . Under prior Rule 41(e), an unlawful seizure claim was considered to be the equivalent of a motion to suppress. In re Two Search Warrants Issued March 14, 1986, 110 F.R.D. 354, 357 (E.D.N.Y.1986). However, pursuant to the 2003 amendments, under Rule 41(g) a court may return seized property to a claimant and \"impose reasonable conditions to protect access to the property and its use in later proceedings.” Fed. R. Crim P. 41(g). . Counsel is advised that a new period of excludable time pursuant to 18 U.S.C. § 3161(h)(1)(F) commences with the filing of this Report and Recommendation. Such period of excludable delay lasts only until objections to this Report and Recommendation are filed or until" }, { "docid": "13115075", "title": "", "text": "entitled to a new trial. VI Motion to Return Seized Property On February 5, 2002, Bowker filed a pro se motion for return of seized property and items, pursuant to Rule 41 of the Federal Rules of Criminal Procedure. He sought an order from the court directing the government to return all items and tangible objects which were not going to be used as evidence in his case. As of May 29, 2002, the district court had not yet ruled on the motion, so Bowker filed a “request for ruling on motion for return of property.” On June 4, 2002, the district court denied Bowker’s request for a ruling on the motion for return of property. No reasons were provided by the court for the denial, and the district court never held a hearing on, nor has it ever ruled on, the underlying motion for return of property. Rule 41 provides, in relevant part: (g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed.R.Crim.P. 41(g). In United States v. Hess, 982 F.2d 181 (6th Cir.1992), this Court observed that “ ‘[a] district court has both the jurisdiction and the duty to return the contested property once the government’s need for it has ended.’ ” Id. at 187 (internal quotation marks omitted); quoting United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir.1987) (citing United States v. Wilson, 540 F.2d 1100, 1103-04 (D.C.Cir.1976)). There, the district court had failed to address the legal or factual issues raised in a party’s motion for return of seized records. The Court found it significant that no hearing was held regarding who was entitled to possession of the" }, { "docid": "23209211", "title": "", "text": "returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. On December 1, 2002, Fed.R.Crim.P. 41(e) was redesignated Fed.R.Crim.P. 41(g) without substantive change. See Fed.R.Crim.P. 41 Advisory Committee Note to the 2002 aménd-ments. The current rule provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed.R.Crim.P. 41(g) (2003). To avoid confusion, throughout this opinion, the court refers to the rule by its present designation, 41(g). . The district court noted the sovereign immunity issue in this case but considered itself bound by Mora v. United States, 955 F.2d at 160; Soviero v. United States, 967 F.2d 791, 792-93 (2d Cir.1992); and Rufu v. United States, 20 F.3d 63, 65 (2d Cir.1994), cases discussed infra at Section II.A. . The record contains no government inventory of the property seized from Adeleke at the time of his arrest, perhaps because these records, like the property, were destroyed when the World Trade Center collapsed. For purposes of this appeal, we accept Adeleke’s list of belongings and his value estimate. . Nothing in the record before this court explains the government’s reasons for not forfeiting the $1,000, based upon Adeleke’s alleged post-arrest admission that this money represented the first installment on his payment for smuggling the seized heroin: See 21 U.S.C. § 853(a)(1). . Although the Ninth Circuit, whose decision in United States v. Martinson, 809 F.2d 1364, 1368 (1987) (recognizing" }, { "docid": "16602495", "title": "", "text": "motion. II. Rule 41(g) provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed.R.Crim.P. 41(g). “It is well settled that upon the termination of criminal proceedings, seized property, other than contraband, should be returned to the rightful owner.” United States v. David, 131 F.3d 55, 59 (2d Cir.1997) (quotation marks omitted); see also United States v. Pinson, 88 Fed.Appx. 939, 940 (7th Cir.2004) (“In general, seized property must be returned after criminal proceedings have terminated.”). “However, the government may retain after trial seized property in which it has a ‘continuing interest’ — that is, an interest beyond the property’s use in the criminal proceedings.” David, 131 F.3d at 59. Although there is no Seventh Circuit authority directly on point, other Courts of Appeals have uniformly held that where a government intends to use seized funds to offset a criminal penalty owed by the owner, the government has a “continuing interest” in the funds. Id.-, see also United States v. Duncan, 918 F.2d 647, 654 (6th Cir.1990) (“In this case, the government had an interest in insuring that the monetary penalties imposed as part of the sentence were paid.”) (citing United States v. 608 Taylor Ave., 584 F.2d 1297, 1303 (3d Cir.1978)). It follows that the government here has a continuing interest in at least as much of the seized funds as is necessary to cover the outstanding amount of Thompson’s fine. The government argues that, in light of Thompson’s dispute with the IRS, it should be allowed to keep the remainder of the money until Thompson’s tax debt is squared away. With respect to these funds, however, matters are rather more complicated. The government cites United States" } ]

[ { "docid": "22574111", "title": "", "text": "in loose-leaf and continually being modified with new pages. No doubt all this is an essential thread to enable the overburdened personnel officer to find his way through the Minoan labyrinth of Government personnel procedures. The Commission is, or should be, aware the volumes are also much used by lawyers and judges as law books. E.g. plaintiff’s attorney in this case stated in oral argument that he subscribes to the “system.” They are frequently cited in court opinions, as in two I have recently written for the court, Burton v. United States, ante at 172, 404 F. 2d 365; and Heffron v. United States, ante, at 474, 405 F. 2d 1307. When the Commission wants to make sure that an “instruction” will not be mistaken for a “regulation” and fastened on some Department in a Service v. Dulles decision, it knows how to do so, as witness Manual, Chapt. 752, Subch. 2-3a(l): It is usually best to deliver a notice to the employee personally and, if possible, to obtain his written acknowledgment of its receipt. (2) * * * If the agency relies on the mails, it probably is assuming an unnecessary risk. No court is going to say, I suppose, the Government is “bound by its own x'egulation” to effect notice of separation action to employees by service in hand, not by mail. But similar care is not always taken, nor can one expect it to be everywhere in such a behemoth of a book. Whence arises the controversy in the instant case and wherein, no doubt, is the seed for many others. In view of the position taken by defense counsel in this case, I deem it urgent that the Commission clarify its intentions about the Manual. A regulation is one kind of law, and like any other kind, the intent of the promulgating authority is a crucial factor, if ascertainable. The Supreme Court in deciding whether a HUD pronouncement is precatory or a regulation, has just now attached great weight to statements by HUD officials as to what they intended. Thorpe v. Housing Authority, 393 U.S. 268," } ]

[ { "docid": "6293313", "title": "", "text": "this document as mandatory, citing Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). In Thorpe however, Chief Justice Warren finds to be mandatory the “circular” there involved after a careful investigation of the intention of its authors. The case is not authority for fastening mandatory consequences on all sorts of papers emanating from Federal agencies, without regard to actual intentions. In Piccone v. United States, 407 F.2d 866, 186 Ct.Cl. 752 (1969) (concurring op. at 407 F.2d 876, 186 Ct.Cl. 770), there is a discussion of the difficult problems involved in making the determination whether a publication is mandatory or advisory. The same publication may be mandatory as to the rights of some and not so as to others. Chris Berg, Inc. v. United States, 426 F.2d 314, 192 Ct.Cl. 176 (decided May 15, 1970). Plaintiff was hired in Grade GS-13, not a trainee grade, but relatively high in the Civil Service pecking order. His title was “General Business Industry Officer.” His first assignment was to rewrite the ponderous Federal Aviation Procurement Manual. Though new to Government, he had many years of private business experience. Thus the inference is inescapable that the agency, when it hired plaintiff, thought he was capable of undertaking important and responsible work at once. It is impossible to find in the Handbook a clear mandate to take any specific measure within any specific period of time. The Handbook never mentions probationary employees and offers no time schedule within which the training, counseling, and employee development activities therein demanded of supervisors might all be made available during the short time an employee was in probationary status. It is apparently a general directive to supervisors, setting forth methods and standards of good supervision, to be implemented as found to be needed in individual cases. It was not written to prescribe an iron rule to be applied alike to probationary and tenure employees, to the experienced and inexperienced, to high grades and low. See Medoff v. Freeman, supra, (at p. 475 of 362 F.2d) interpreting an executive order on personnel matters as" }, { "docid": "364578", "title": "", "text": "manuals, handbooks, and in-house publications to contain statements that were not meant or are not wholly reliable. If they go counter to governing statutes and regulations of the highest or higher dignity, e.g. regulations published in the Federal Register, they do not bind the government, and persons relying on'them do so at their peril. Caterpillar Tractor Co. v. United States, 589 F.2d 1040, 1043, 218 Ct.Cl. 517 (1978) (A Handbook for Exporters, a Treasury publication). Dunphy v. United States [529 F.2d 532, 208 Ct.Cl. 986 (1975) ], supra (Navy publication entitled All Hands). In such cases it is necessary to examine any informal publication to see if it was really written to fasten legal consequences on the government. Dunphy, supra. See also Donovan v. United States, 433 F.2d 522 (D.C.Cir.), cert. denied, 401 U.S. 944, 91 S.Ct. 955, 28 L.Ed.2d 225 (1971). (Employees Performance Improvement Handbook, an FAA publication) (merely advisory and directory publications do not have mandatory consequences). The court went on to hold that the provision of the HUD Manual relied upon was \"blundering and unauthorized.\" Id. In the present case, we have no occasion to disparage the Postal Service’s Employee and Labor Relations Manual. We hold only that the specific provisions relied upon do not ascend to the level of binding regulations, and no procedural rights are thereby conferred upon the probationary employees." }, { "docid": "364577", "title": "", "text": "process rights apart from those which the agency has chosen to create by its own regulations, scrupulous compliance with those regulations is required to avoid any injustice.' ” 584 F.2d at 185, quoting Mazaleski v. Treusdell, 183 U.S.App.D.C. 182, 200, 562 F.2d 701, 719 (D.C.Cir.1977). This language was not part of the holding in Paige, because the court concluded that the plaintiff enjoyed a property interest in continuing employment with HUD, and the district court’s order dismissing the plaintiff’s complaint was reversed on this basis. However, this dicta in Paige suggests that, in proper circumstances, a federal agency can be bound by its own regulations even though such regulations merely establish internal operating procedures. Not all courts have had the same regard for the in-house publications of federal agencies. In Florentino v. United States, 607 F.2d 963, 968, 221 Ct.Cl. 545 (1979), cert. denied, 444 U.S. 1083, 100 S.Ct. 1039, 62 L.Ed.2d 768 (1980), the Court of Claims refused to follow the holding in Paige and observed: It is unfortunately all too common for government manuals, handbooks, and in-house publications to contain statements that were not meant or are not wholly reliable. If they go counter to governing statutes and regulations of the highest or higher dignity, e.g. regulations published in the Federal Register, they do not bind the government, and persons relying on'them do so at their peril. Caterpillar Tractor Co. v. United States, 589 F.2d 1040, 1043, 218 Ct.Cl. 517 (1978) (A Handbook for Exporters, a Treasury publication). Dunphy v. United States [529 F.2d 532, 208 Ct.Cl. 986 (1975) ], supra (Navy publication entitled All Hands). In such cases it is necessary to examine any informal publication to see if it was really written to fasten legal consequences on the government. Dunphy, supra. See also Donovan v. United States, 433 F.2d 522 (D.C.Cir.), cert. denied, 401 U.S. 944, 91 S.Ct. 955, 28 L.Ed.2d 225 (1971). (Employees Performance Improvement Handbook, an FAA publication) (merely advisory and directory publications do not have mandatory consequences). The court went on to hold that the provision of the HUD Manual relied upon was" }, { "docid": "11040061", "title": "", "text": "of Interior was required to comply with the procedural standards set forth in an internal order before dismissing an employee, even though in the absence of such standards the employee could have been dismissed summarily. The Court treated the provisions of the informal order as “regulations.” Id. at 539-40, 79 S.Ct. at 972-73. Moreover, in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 274-76, 89 S.Ct. 518, 522-23, 21 L.Ed.2d 474 (1969), the Court held that a circular distributed by the Department of Housing and Urban Development (HUD) was binding on the Department since the circular was issued pursuant to the agency’s general rule-making powers and was intended by the agency to be mandatory. The Court evaluated the circular as “an administrative regulation.” Id. at 276, 89 S.Ct. at 523. In Piccone, 407 F.2d at 871-72, the court held that a government employee’s removal was invalid because provisions of the Navy Civilian Personnel Instructions had been violated. In his concurrence, Judge Nichols directly confronted the issue of whether an unpublished (i.e., not promulgated under the procedures set forth in the APA) manual or document of a government agency could be considered a “regulation.” He stated that “whether [any piece of paper emanating from an agency] is a regulation would seem to depend in part on its contents and in part on agency intent ascertained by extrinsic evidence.” Id. at 877 (Nichols, J., concurring). Additionally, in Doe v. Hampton, 566 F.2d 265, 280-81 (D.C.Cir.1977), the court held that provisions of the Federal Personnel Manual may be binding on the Government if the author of the manual so intended, even if the manual was not published in the Federal Register. The intent of the promulgator should be ascertained by an examination of the provision’s language, its context, and any available extrinsic evidence. Id. at 281. In contrast, other court decisions have held that a provision of a manual or handbook is not a regulation that would be binding on the Government. In Khuri v. United States, 154 Ct.Cl. 58, 1961 WL 8723 (1961), the court held that provisions of the Foreign" }, { "docid": "20320386", "title": "", "text": "and undisputed that Grossman was aware of his rights under the ADEA and it was only a whim that prompted the plaintiff to file the present action. The Plaintiff disagrees with the above allegation and argues that he had no actual notice of the provisions of the ADEA, including the provisions for time within which a complaint should be filed with the EEOC. Moreover, the Plaintiff asserts that the Defendant failed to comply with its statutory duty to post adequate notice in the workplace of Mr. Gross-man sufficient to inform him of his right under the Act. Therefore, Plaintiff contends that under the circumstances of the case equitable tolling is appropriate. 29 U.S.C. § 627 imposes a mandatory obligation upon employees covered by the ADEA to post a notice setting forth information to effectuate the purposes of the Act. The regulation promulgated by the Secretary to implement the statute is 29 C.F.R. § 1627.10. The Secretary’s regulation, “will be sustained as long as [they are] ‘reasonably related to the purpose of the enabling legislation.’ Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973), quoting, Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). This “posting requirement [is] intended to alert other employees to their newly created rights ... [and] enable new employees to protect their rights by pursuing his claims independently or by an attorney to press his rights.” Charlier v. S.C. Johnson & Son, Inc., 556 F.2d 761, 764 (5th Cir.1977), quoting Edwards v. Kaiser Aluminum Chemical Sales, Inc., 515 F.2d 1195, 1197 (5th Cir.1975). Courts have generally found tolling appropriate when an employer has failed to post the required notice. See Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3d Cir.1977) cert. denied 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). The Court finds that there is a genuine issue of material fact as to whether the Plaintiff had actual or constructive notice of the EEOC filing requirement. Grocer’s Supply informed its employees of their ADEA rights by placing a notice on" }, { "docid": "23557937", "title": "", "text": "1804(d) authorizes the VA to deny participation in the loan guaranty program to private lenders who fail to provide adequate servicing of VA-guaranteed loans, and section 1816(a) permits the VA to refund the unpaid balance of the borrower’s loan obligation to the lender and receive an assignment of the loan and security from the lender. . There is also nothing in the record to suggest that the Ranks in any way relied to their detriment on VA Circular 26-75-8. . Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), relied on by appellees, is distinguishable. In Thorpe, HUD issued a circular requiring local housing authorities to explain to tenants facing eviction from federally-funded housing the reasons for the eviction. The Court held that the circular, issued pursuant to HUD’s rule-making power, was intended to have the force and effect of law. In Thorpe, however, the circular was to be incorporated into a HUD Manual containing implementing regulations that were, according to HUD, “ ‘the minimum considered consistent with fulfilling Federal responsibilities’ under the Act.” 393 U.S. at 275, 89 S.Ct. at 522. The circular was thus distinguished from the various “handbooks” and “booklets” issued by HUD that contain mere “instructions,” “technical suggestions,” and “items of consideration.” Id. . The legislative history of the Act, although generally unilluminating, suggests that Congress did not envision mandatory supplemental servicing by the VA. The loan guarantee program was originally conceived as a direct loan program administered by the VA to veterans. Because of congressional concern that such a program would require the creation of a huge, unwieldy bureaucracy, the loan guarantee provisions, designed to induce private lenders to make the loans to veterans, were substituted for the direct loan program. See, e.g., 90 Cong. Rec. 4654 (1944) (remarks of Rep. Jeffrey). . The dissent suggests that this construction deprives § 1816(a) of any meaning or purpose. We fail to understand, however, why it is meaningless to provide an administrative agen cy with a remedial tool that it may otherwise be powerless to employ. It is possible, of course, as" }, { "docid": "11040060", "title": "", "text": "status as a regulation simply because it was not promulgated and published in accordance with the requirements of the APA. Obviously, not every piece of paper released by an agency can be considered a regulation entitled to the force and effect of law. See Piccone v. United States, 407 F.2d 866, 877, 186 Ct.Cl. 752 (1969) (Nichols, J., concurring); Doe v. Hampton, 566 F.2d 265, 280-81 (D.C.Cir.1977). However, several courts have held that an agency manual or handbook can be a binding agency regulation. In Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), the Supreme Court held that an agency employee’s removal was invalid because it violated the United States Department of State’s Manual of Regulations and Procedures. The Court held that the unpublished manual, promulgated in accordance with the relevant executive order and statute, was binding on the Department. Id. at 374-76, 77 S.Ct. at 1158-59. Similarly, in Vitarelli v. Seaton, 359 U.S. 535, 538-40, 79 S.Ct. 968, 971-73, 3 L.Ed.2d 1012 (1959), the Court held that the Department of Interior was required to comply with the procedural standards set forth in an internal order before dismissing an employee, even though in the absence of such standards the employee could have been dismissed summarily. The Court treated the provisions of the informal order as “regulations.” Id. at 539-40, 79 S.Ct. at 972-73. Moreover, in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 274-76, 89 S.Ct. 518, 522-23, 21 L.Ed.2d 474 (1969), the Court held that a circular distributed by the Department of Housing and Urban Development (HUD) was binding on the Department since the circular was issued pursuant to the agency’s general rule-making powers and was intended by the agency to be mandatory. The Court evaluated the circular as “an administrative regulation.” Id. at 276, 89 S.Ct. at 523. In Piccone, 407 F.2d at 871-72, the court held that a government employee’s removal was invalid because provisions of the Navy Civilian Personnel Instructions had been violated. In his concurrence, Judge Nichols directly confronted the issue of whether an unpublished (i.e., not promulgated under" }, { "docid": "11568876", "title": "", "text": "authority. Federal Crop Ins. Corp. v. Merrill, 332 U. S. 380 (1947); Dunphy v. United States, 208 Ct. Cl. 986 (1975) and cases cited at 989; Montilla v. United States, 198 Ct. Cl. 48, 457 F.2d 978 (1972). In Sims v. Fox, 505 F.2d 857 (5th Cir. 1974) the court at 861, dealing with a \"property” claim by an Air Force officer to his commission, points out the impossibility of the Air Force making any regulation or contract to create such a right, if contrary to the statutes that governed the Service. If the government were not involved a case of apparent authority might be urged, but with claims against the government, the decisions agree authority must be actual. Plaintiff does not and cannot show that the author of HUD 302.2 and his HUD superiors had any authority to nullify the placement of lawyers in the excepted service. Since the document, by itself, is subject to two interpretations, we choose to give it its meaning in Federalese, evidently intended, under which its only impact is on the treatment of the involved lawyers in case of a RIF, and thus its validity is sustained. It is unfortunately all too common for government manuals, handbooks, and in-house publications to contain statements that were not meant or are not wholly reliable. If they go counter to governing statutes and regulations of the highest or higher dignity, e.g., regulations published in the Federal Register, they do not bind the government, and persons relying on them do so at their peril. Caterpillar Tractor Co. v. United States, 218 Ct. Cl. 517, 523, 589 F. 2d 1040, 1043 (1978) (A Handbook for Exporters, a Treasury publication). Dunphy v. United States, supra (Navy publication entitled All Hands). In such cases it is necessary to examine any informal publication to see if it was really written to fasten legal consequences on the government. Dunphy, supra. See also Donovan v. United States, 433 F.2d 522 (D.C. Cir.), cert. denied, 401 U.S. 944 (1971) (Employees Performance Improvement Handbook, an FAA publication) (merely advisory and directory publications do not have mandatory" }, { "docid": "2723665", "title": "", "text": "own interpretation of it. As the Ninth Circuit has previously observed, the “broad rule-making powers,” of the Secretary are “limited only by 42 U.S.C. § 1302 and the Constitution.” Arizona State Dept, of Public Welfare v. HEW, 449 F.2d 456, 468 (9th Cir.1971) (quoting Thorpe v. Housing Authority, 393 U.S. 268, 277 n. 28, 89 S.Ct. 518, 523 n. 28, 21 L.Ed.2d 474 (1969)). 42 U.S.C. § 1302 vests the Secretary with extensive power to promulgate regulations in order to assure efficient administration of AFDC. As we have noted, there can be no doubt, in light of 45 C.F.R. § 233.20(a)(3)(iv), that the Secretary exércised this “broad rule-making power” to classify withheld taxes as work expenses. Further, we do not believe that it can be seriously contended that the Secretary’s exercise of this power in his decision to classify withheld taxes as work expenses exceeded the parameters of the statutory authority granted by Congress. See 42 U.S.C. § 1302. See also Shea v. Vial pando, 416 U.S. at 254, 94 S.Ct. at 1750. Thus, we believe that it is a strained reading of the 1962 legislative history to argue that, because tax withholdings were not specifically mentioned, Congress intended that they not be included within the category of “any work expenses reasonably attributable to the earning of income.” We also reject the argument that, because certain states had apparently permitted individualized treatment of tax with-holdings, while allowing only a flat sum for work expenses, we should construe section 602(a)(7) in similar fashion. But see Turner, 707 F.2d at 1120. Even assuming that some state agencies in the pre-OBRA period had so provided, and Turner refers only to the 1970 Colorado plan described in Shea, according to the Summary of State Agency Practice, in January of 1972 at least five states (Arizona, Florida, Arkansas, Colorado, and Vermont) either allowed a flat amount to be disregarded for mandatory tax withholdings, or else included mandatory tax withholdings within an overall flat sum disregard. Thus, it is apparent that at least these five states did not regard themselves as bound to disregard all mandatory" }, { "docid": "15731579", "title": "", "text": "of course, well-established that an agency must abide by its own regulations in effecting the removal of one of its employees. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Mazaleski v. Treusdell, No. 75-1817, 183 U.S.App.D.C. 182, 562 F.2d 701 (1977). If the Manual provision to which appellant now refers us is indeed a binding regulation and if the agency has failed to comply with its mandate to the prejudice of its employee, then an essential predicate to a valid removal will have been wanting. We must thus address the question whether the above-quoted provision in the Manual is a regulation or something less which does not give employees enforceable substantive rights. We begin our analysis with the rather obvious proposition that not “every piece of paper emanating from a Department or Independent Agency is a regula tion.” Piccone v. United States, 407 F.2d 866, 877, 186 Ct.Cl. 752 (1969) (Nichols, J., concurring); see McGlasson v. United States, 397 F.2d 303, 308-09, 184 Ct.Cl. 542 (1968); Greenway v. United States, 175 Ct.Cl. 350, 362 n.5, cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966). It is less clear, however, to what extent provisions of the Manual not also published in the Federal Register or Code of Federal Regulations are mandatory rather than merely precatory. See Piccone, supra, 407 F.2d at 871-72 n.12. Certainly much of the Manual is not mandatory, but some unpublished provisions may be binding if so intended by the Commission. Thus, to determine the effect of a Manual provision, a court must determine the Commission’s intent in authoring it, as ascertained by an examination of the provision’s language, its context, and any available extrinsic evidence. This inquiry is not well suited to an appellate court, however, and consequently we must remand the case to the district court for resolution of this point. We of course recognize that the provision in question employs the directory “should be” rather than the mandatory “shall” or “must”, but this" }, { "docid": "21936031", "title": "", "text": "MEMORANDUM-ORDER GASCH, District Judge. This matter was heard on cross motions for summary judgment on plaintiff’s complaint for a declaratory judgment and mandatory judgment ordering the Secretary of Transportation to reinstate plaintiff in his position as General Business Industry Officer, GS-13, in the Federal Aviation Administration and for back pay. There are no material facts in dispute. On September 25, 1967, plaintiff was hired under a career conditional appointment as a General Business Industry Officer of the Federal Aviation Administration. The appointment was subject to a one year probationary period. Plaintiff’s duties during this period involved the drafting of guidelines and procedures for the supervision of Concessionaires at the Capital Airports. During his first three weeks on the job, he was assigned to rewrite the ponderous Federal Aviation Procurement Manual. Plaintiff states in his affidavit that he was given approximately one hour’s instruction on the operation of the Concessionaires at the Capital Airports and none at all on the style or content of government reports. Plaintiff’s superior, David Davenport, was absent from the office for 89 days between September 25, 1967, and July 26, 1968. Mr. Davenport did, however, recommend that the plaintiff be enrolled in the official Federal Aviation writing course. The recommendation was denied and no other training recommendations were made. On April 17, 1968, plaintiff’s superiors expressed dissatisfaction with his work product and indicated they doubted he possessed the requisite writing skills for the position. They held two conferences with the plaintiff ostensibly to discuss his performance and to suggest means of improvement. Excerpts from the formal memoranda of these conferences, written by plaintiff's editors, are revealing. The memorandum of the April 17, 1968, meeting relates the following discussion of plaintiff’s writing ability: “He [the plaintiff] felt that the matter had been ‘blown up out of proportion,’ although he was not able to explain too well as to what, specifically, he meant by this. Mr. Ormsbee stated that in his own view the matter was quite serious and had not been blown up out of proportion. Mr. Donovan attributed some of his evident problems to lack of" }, { "docid": "6293312", "title": "", "text": "as recognizing the special position of probationary employees under the Civil Service laws, and the burden resting upon them to demonstrate their character and fitness during the probationary period. We add Horne v. United States, 419 F.2d 416, 190 Ct.Cl. 145 (1969), and Stoddart v. United States, 189 Ct.Cl. 572 (1969). Mr. Donovan does not deny that he was unfit. That is what differentiates this case from the precedents. Rather he wants us to infer that he was unfit only because the employing agency did not help him to become fit as it should have done, during his probationary period. The lower court held (opinion reported 298 F.Supp. 674 (1969)) that the termination was illegal because the FAA had not followed, respecting plaintiff, certain provisions in its own regulations calling for his counseling and training. It attached in this connection most weight to the FAA Employee Performance Improvement Handbook, PT P 3400.2, promulgated November 17, 1964, but not published in the C.F.R. or Federal Register so far as counsel have advised. The court below viewed this document as mandatory, citing Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). In Thorpe however, Chief Justice Warren finds to be mandatory the “circular” there involved after a careful investigation of the intention of its authors. The case is not authority for fastening mandatory consequences on all sorts of papers emanating from Federal agencies, without regard to actual intentions. In Piccone v. United States, 407 F.2d 866, 186 Ct.Cl. 752 (1969) (concurring op. at 407 F.2d 876, 186 Ct.Cl. 770), there is a discussion of the difficult problems involved in making the determination whether a publication is mandatory or advisory. The same publication may be mandatory as to the rights of some and not so as to others. Chris Berg, Inc. v. United States, 426 F.2d 314, 192 Ct.Cl. 176 (decided May 15, 1970). Plaintiff was hired in Grade GS-13, not a trainee grade, but relatively high in the Civil Service pecking order. His title was “General Business Industry Officer.” His first assignment was to rewrite the ponderous" }, { "docid": "10339291", "title": "", "text": "court, in Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 5 Cir., 515 F.2d 1195 (1975), pretermitted the question of whether equitable considerations, such as an employer’s failure to post proper notices under 29 U.S.C. § 627 and 29 C.F.R. § 850.10, served to toll the 180-day period, the district court determined that such considerations were not applicable because Johnson Wax had complied with its statutory obligation of posting the necessary notice. 29 U.S.C. § 627 imposes a mandatory obligation upon employers covered by the ADEA to “post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Secretary [of Labor] setting forth information as the Secretary deems appropriate to effectuate the purposes of [the ADEA].” In implementing this statute the Secretary, pursuant to his statutory authority, has adopted 29 C.F.R. § 850.10. The Secretary’s regu lations “will be sustained so long as [they are] ‘reasonably related to the purposes of the enabling legislation.’ . . . ” Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973), quoting Thorpe v. Housing Authority, 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). This regulation clearly is so related. This “posting requirement [is] intended to alert older employees to their newly created rights . [and] enable an employee to protect these rights, by pursuing his claims independently or by procuring an attorney to press his rights.” Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1197 (5th Cir. 1975). While section 627 and regulation 850.10 do not require that an employer actually inform employees of the ADEA and its applicability, they do contemplate, the posting of notice “in prominent and accessible places where it can readily be observed by employees” so that older employees may know of their new rights. 29 C.F.R. § 850.-10 (1976). Because constructive notice often falls far short of its intended purpose, rigorous adherence to this mandate is essential, especially in view of the relatively short 180-day filing period prescribed by 29 U.S.C. § 626(d). To" }, { "docid": "6293314", "title": "", "text": "Federal Aviation Procurement Manual. Though new to Government, he had many years of private business experience. Thus the inference is inescapable that the agency, when it hired plaintiff, thought he was capable of undertaking important and responsible work at once. It is impossible to find in the Handbook a clear mandate to take any specific measure within any specific period of time. The Handbook never mentions probationary employees and offers no time schedule within which the training, counseling, and employee development activities therein demanded of supervisors might all be made available during the short time an employee was in probationary status. It is apparently a general directive to supervisors, setting forth methods and standards of good supervision, to be implemented as found to be needed in individual cases. It was not written to prescribe an iron rule to be applied alike to probationary and tenure employees, to the experienced and inexperienced, to high grades and low. See Medoff v. Freeman, supra, (at p. 475 of 362 F.2d) interpreting an executive order on personnel matters as “imposing no hard and fast directives on the many different kinds of employees” as leaving “large areas for the exercise of discretion” and as not abolishing “a major difference between the probationary and the permanent employee.” (The first two quotations above were drawn with approval by the Medoff court from Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965), cert. denied, Manhattan-Bronx Postal Union v. O’Brien, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966)). Plaintiff admits he got some counseling and training but says it was not enough. There is a dispute, which we need not resolve, whether plaintiff was not allowed to take a writing course because it was not given, or for some other reason. The court below lays great stress on the fact plaintiff’s superior was absent from the office for 89 days during the probationary period. Plaintiff and the court below refer to other handbooks which we need not itemize. They are no more specific in mandating anything for or about probationary employees than the one" }, { "docid": "21936035", "title": "", "text": "executive direction and congressional authorization has established an elaborate network of procedures for the supervision and training of its personnel. 49 U.S.C. § 1354(d) empowers the agency “to conduct a school or schools for the purpose of training employees of the agency.” 5 U.S.C. § 41 provides further authority and Executive Order 11348, April 20, 1967, adds executive support for such programs. These provisions have been implemented with the formulation of guidelines published, by agency order, in the FAA Handbook. The guidelines or regulations provide, in part, that “Determining employee training needs is a positive supervisory requirement.” (FAA Handbook 3430.2, 1/6/66). “Each supervisor shall: (a) Develop job performance standards with each employee he supervises. (b) Systematically review performance and keep the employee informed as to his performance achievements. (c) Determine employee development needs and meet them as necessary by: 1. Providing on-the-job counsel, training and instructions. 2. Requesting off-the-job training for the employee. 3. Encouraging employee to study at his own expense. 4. Arranging for assignments, such as job rotations, to provide additional experience. (d) As requested, use information gained from performance review in other personnel management programs. (e) Periodically review the performance standards for each employee he su pervises and with him make appropriate changes in the standards. (f) While holding management positions, insure that, for employees in watchstanding positions and similar positions in which an employee may have different immediate supervisors from day to day, the number of supervisors is kept to a minimum. Management is encouraged to assign one supervisor to whom the employee looks for primary guidance within this program even though he may have several immediate supervisors in the course of a relatively short period.” The language of these guidelines is commanding; their formulation official. There can be no doubt from their face and from the legislative history of the authority upon which they are predicated that they are mandatory. Under Thorpe v. Housing Authority, 89 S.Ct. 518, they must be followed. The plaintiff has presented facts indicating they were not followed. He stated in his affidavit that he was given little or no supervision," }, { "docid": "11040062", "title": "", "text": "the procedures set forth in the APA) manual or document of a government agency could be considered a “regulation.” He stated that “whether [any piece of paper emanating from an agency] is a regulation would seem to depend in part on its contents and in part on agency intent ascertained by extrinsic evidence.” Id. at 877 (Nichols, J., concurring). Additionally, in Doe v. Hampton, 566 F.2d 265, 280-81 (D.C.Cir.1977), the court held that provisions of the Federal Personnel Manual may be binding on the Government if the author of the manual so intended, even if the manual was not published in the Federal Register. The intent of the promulgator should be ascertained by an examination of the provision’s language, its context, and any available extrinsic evidence. Id. at 281. In contrast, other court decisions have held that a provision of a manual or handbook is not a regulation that would be binding on the Government. In Khuri v. United States, 154 Ct.Cl. 58, 1961 WL 8723 (1961), the court held that provisions of the Foreign Service Manual were not binding on the Government. Although the court considered the provisions to be “regulations,” the court determined that the Department of State did not intend the manual to be mandatory, but rather intended it to be a guide, setting forth general policies and principles. Id. at 64. Similarly, in Caterpillar Tractor Co. v. United States, 589 F.2d 1040,1043, 218 Ct.Cl. 517 (1978), the court held that a Department of Treasury handbook for exporters constituted “interpretive regulations” and, thus, was not binding on the Government. The court in Fiorentino v. United States, 607 F.2d 963, 968-69, 221 Ct.Cl. 545 (1979), found that a provision of a HUD employee manual was not a binding regulation because it contravened a statute. In Donovan v. United States, 433 F.2d 522, 523-24 (D.C.Cir.1970), the court determined that certain provisions of the unpublished Federal Aviation Administration employee handbook were advisory and not mandatory and, thus, not binding. Indeed, this court has, on several occasions, stated that provisions of the Federal Personnel Manual (FPM) were not binding regulations. In" }, { "docid": "11643717", "title": "", "text": "contend that the HUD Guide (FHA G 4015.9), which was the subject matter of plaintiffs’ original complaint and our October 11, 1974 opinion, as well as the HUD Handbook (4191.1), which was issued in April, 1974, to supercede the Guide, are covered by the § 553(a)(2) exemption. In support, they rely principally upon Brown v. Housing Authority of City of Milwaukee, 471 F.2d 63 (7th Cir. 1972) and Housing Authority of City of Omaha, Nebraska v. United States Housing Authority, 468 F.2d 1 (8th Cir. 1972), which held the notice provisions of the APA inapplicable to circulars issued by HUD in conjunction with other federal housing programs to the extent that the agency has a proprietary interest in the property, funds, or contracts involved. Citing language from these decisions, plaintiffs argue that the Guide and Handbook “effectuate the government’s stewardship” over the housing programs by setting forth obligations and sanctions arising out of the contract between HUD and the mortgagees, and that these publications should likewise be exempt under § 553(a)(2). The plaintiffs further contend that, when a document is not published in the Federal Register, “whether it is a regulation . . . depend [s] in part on its contents and in part on agency intent ascertained by extrinsic evidence.” Piccone v. United States, 407 F.2d 866, 186 Ct.Cl. 752 (Ct.Cl.1969) (Judge Nichols, concurring). Where basic policies and procedures are couched in mandatory terms such as “shall,” “will,” and “must,” they suggest an underlying agency intention to make the rules binding. The plaintiffs submit that the later HUD Handbook replaced the permissive language of the Guide with more precise, obligatory language. They particularly point to statements in the Handbook which provide: It is to be noted that the Handbook sets forth, in considerable detail, procedural standards to be observed by those servicing HUD insured mortgages. (Introduction) Mortgagees with poor servicing practices will be identified and the failure of any mortgagee to satisfactorily correct any servicing deficiencies in HUD-insured mortgages in accordance with the provisions of this Handbook, may result in suspension or termination of the lender’s acceptability as a" }, { "docid": "16672926", "title": "", "text": "(2d Cir.1981). It is unfortunately all too common for government manuals, handbooks, and in-house publications to contain statements that were not meant or are not wholly reliable. If they go counter to governing statutes and regulations of the highest or higher dignity, e.g. regulations published in the Federal Register, they do not bind the government, and persons relying on them do so at their peril. Caterpillar Tractor Co. v. United States, 589 F.2d 1040,1043, 218 Ct.Cl. 517 (1978) (A Handbook for Exporters, a Treasury publication). Dunphy v. United States [529 F.2d 532, 208 Ct.Cl. 986 (1975)], supra (Navy publication entitled All Hands). In such cases it is necessary to examine any informal publication to see if it was really written to fasten legal consequences on the government. Dunphy, supra. See also Donovan v. United States, 433 F.2d 522 (D.C.Cir.), cert. denied, 401 U.S. 944, 91 S.Ct. 955, 28 L.Ed.2d 225 (1971). (Employees Performance Improvement Handbook, an FAA publication) (merely advisory and directory publications do not have mandatory consequences). Bartholomew v. United States, 740 F.2d 526, 532 n. 3 (7th Cir.1984) (quoting Fiorentino v. United States, 607 F.2d 963, 968, 221 Ct.Cl. 545 (1979), cert. denied, 444 U.S. 1083, 100 S.Ct. 1039, 62 L.Ed.2d 768 (1980). Lecroy’s proposition that the statements in the handbook were binding is inapposite to the accepted law among the circuits that publications are not binding. We find that the Commissioner did not abuse his discretion in promulgating the challenged regulations. First, Farms and International did not justifiably rely on the Handbook. Taxpayers who rely on Treasury publications, which are mere guidelines, do so at their peril. Caterpillar Tractor v. United States, 589 F.2d 1040, 1043, 218 Ct.Cl. 517 (1978). Further, the Treasury’s position on the sixty-day rule was made public through proposed section 1.993-2(d)(2) in 1972, before the taxable years at issue. Charbonnet v. United States, 455 F.2d 1195, 1199-1200 (5th Cir. 1972). See also Wendland v. Commissioner of Internal Revenue, 739 F.2d 580, 581 (11th Cir.1984). Second, whatever harm has been suffered by Farms and International resulted from a lack of prudence. As even the" }, { "docid": "6293311", "title": "", "text": "NICHOLS, Judge: The plaintiff, Mr. Donovan, sues for back pay and reinstatement. A probationary employee of the Federal Aviation Administration (FAA), he was discharged for alleged incompetence within one year of his first employment. He sought administrative relief unsuccessfully with the Civil Service Commission (CSC), which denied it on the ground that he was not claiming under one of the limited grounds available to probationers. In his ensuing district court suit, both sides moved for summary judgment. The trial court denied defendant’s motion to strike certain exhibits and simultaneously granted plaintiff summary judgment. We disagree and reverse. The defendant relied below, and here, on the long-standing rule that the rights of a new probationary employee do not ripen into tenure until a year has run. Under 5 C.F.R. § 315.801-804, the agency is to determine the fitness of the employee during the probationary period and is to terminate him if he has not demonstrated his qualifications. Defendant cites Jaeger v. Freeman, 410 F.2d 528 (Fifth Cir.1969), and Medoff v. Freeman, 362 F.2d 472 (First Cir.1966), as recognizing the special position of probationary employees under the Civil Service laws, and the burden resting upon them to demonstrate their character and fitness during the probationary period. We add Horne v. United States, 419 F.2d 416, 190 Ct.Cl. 145 (1969), and Stoddart v. United States, 189 Ct.Cl. 572 (1969). Mr. Donovan does not deny that he was unfit. That is what differentiates this case from the precedents. Rather he wants us to infer that he was unfit only because the employing agency did not help him to become fit as it should have done, during his probationary period. The lower court held (opinion reported 298 F.Supp. 674 (1969)) that the termination was illegal because the FAA had not followed, respecting plaintiff, certain provisions in its own regulations calling for his counseling and training. It attached in this connection most weight to the FAA Employee Performance Improvement Handbook, PT P 3400.2, promulgated November 17, 1964, but not published in the C.F.R. or Federal Register so far as counsel have advised. The court below viewed" }, { "docid": "11568877", "title": "", "text": "on the treatment of the involved lawyers in case of a RIF, and thus its validity is sustained. It is unfortunately all too common for government manuals, handbooks, and in-house publications to contain statements that were not meant or are not wholly reliable. If they go counter to governing statutes and regulations of the highest or higher dignity, e.g., regulations published in the Federal Register, they do not bind the government, and persons relying on them do so at their peril. Caterpillar Tractor Co. v. United States, 218 Ct. Cl. 517, 523, 589 F. 2d 1040, 1043 (1978) (A Handbook for Exporters, a Treasury publication). Dunphy v. United States, supra (Navy publication entitled All Hands). In such cases it is necessary to examine any informal publication to see if it was really written to fasten legal consequences on the government. Dunphy, supra. See also Donovan v. United States, 433 F.2d 522 (D.C. Cir.), cert. denied, 401 U.S. 944 (1971) (Employees Performance Improvement Handbook, an FAA publication) (merely advisory and directory publications do not have mandatory consequences). The difficulty of deciding when a \"Manual” is a \"Regulation” is discussed, but not resolved in Piccone v. United States, 186 Ct. Cl. 752, 770, 407 F.2d 866, 876 (1969) (concurring opinion). The D. C. Circuit has recently grappled with a similar problem in the context we have here. In Mazaleski v. Treusdell, 562 F.2d 701 (D. C. Cir. 1977) the plaintiff claimed a \"property” interest in his government job by reason of various statements in a Personnel Manual which he added up to a commitment not to terminate his service except for cause, including language such as the following: * * * Termination will be considered only after the officer fails to respond to positive efforts to provide him with an opportunity to demonstrate his capabilities. [PHS Personnel Manual, Sec. C(2).] The majority deals with this in a footnote, No. 23 at 709-10, as it goes off on other grounds, but the footnote is apparently meant to answer a dissent by then Chief Judge Bazelon supporting the existence of a \"property” interest. The" } ]

[ { "docid": "22629949", "title": "", "text": "attorney stated that Malone had not complied with the pretrial order because Malone lacked the financial resources to do so. The district court granted the Government’s motion, and dismissed the action with prejudice on June 10, 1985. Malone timely appeals the order of dismissal. DISCUSSION Malone makes three basic arguments against the district court’s order of dismissal: 1) the district court abused its discretion in weighing the five factors which we have set forth to guide dismissal decisions; 2) the district court’s pretrial order was invalid and therefore the court was precluded from sanctioning Malone’s violation of the order; and 3) Malone has been unfairly punished for the faults of her attorney. We reject all of these arguments. I. Dismissal Factors The district court relied primarily on Fed. R.Civ.P. 16(f) in ordering dismissal. Rule 16(f) states that for violation of a pretrial order a judge may order sanctions as provided in Fed.R.Civ.P. 37(b)(2)(C). Rule 37(b)(2)(C) provides for the sanction of dismissal. The district court also relied on Fed.R.Civ.P. 41(b), which enables a court to order dismissal “[f]or failure of the plaintiff ... to comply with ... any order of [the] court....” The standards governing dismissal for failure to obey a court order are basically the same under either of these rules. See Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986). The district court’s dismissal of a case with prejudice is reviewed for abuse of discretion. Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.), cert. denied, — U.S. —, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). “Dismissal is a harsh penalty and is to be imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). Nevertheless, we will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions. Chism v. National Heritage Life Insurance Co., 637 F.2d 1328, 1331 (9th Cir.1981). A district court must weigh five factors in determining whether to dismiss a case for failure to comply with a court order: “(1) the public’s interest in expeditious resolution of" } ]

[ { "docid": "23106045", "title": "", "text": "37(d) and 41(b). Because we find adequate grounds for dismissal under Rule 41(b), we have not considered whether there were also adequate grounds for dismissal under Rule 37(d). Rule 37(d) permits a court to utilize the sanctions in Rule 37(b)(2)(A), (B) and (C) when a party fails to appear before an officer designated to take a deposition after proper notice. Among these sanctions is dismissal of the action. Rule 37(b)(2)(C). Dorey v. Dorey, 609 F.2d 1128 (5th Cir. 1980); Jones v. Louisiana State Bar Association, 602 F.2d 94 (5th Cir. 1979). Deliberate, repeated refusals to comply with discovery orders have been held to justify the use of the ultimate sanction of dismissal under Rule 37(d). Jones, supra, 602 F.2d 94; Bonaventure v. Butler, 593 F.2d 625 (5th Cir. 1979). . We note that in at least four cases where dismissal was held to be inappropriate, a factor was the lack of any indication in the record of the client’s knowledge of, or participation in, his attorney’s failure to prosecute. Gonzalez, supra, 610 F.2d 241; Silas, supra, 586 F.2d 382; Pond v. Braniff Airways Inc., 453 F.2d 347 (5th Cir. 1972); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). But cf. Link v. Wabash Railroad Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (actions of retained counsel may be attributed to client). This factor is clearly inapplicable here where Mrs. Anthony apparently knew of her counsel’s withdrawal from the case and where all notices after April 23 were sent not only to Mrs. Anthony’s original attorney but also to Mrs. Anthony herself. The record and the briefs do not indicate what, if any, communication there was between Mrs. Anthony’s original attorney and Mrs. Anthony. The record indicates that when Mrs. Anthony failed to appear at the June 26 deposition, the hospital attorneys placed a call with her original attorney which was never returned. Because we are reluctant to attribute to Mrs. Anthony any culpability on the part of her" }, { "docid": "18580133", "title": "", "text": "the case for a pretrial conference on November 8. However, counsel failed to appear at the pretrial conference and the court dismissed the case pursuant to Fed.Rs.Civ.P. 16(f) and 37(b)(2)(C). This appeal followed. II. Federal Rule of Civil Procedure 16(f) provides that the court may impose sanctions for failure “to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference.” The same criteria developed for evaluating dismissals for failure to prosecute under Fed.R.Civ.P. 41(b) are to be applied in a rule 16(f) case. Callip v. Harris County Child Welfare Dept. 757 F.2d 1513, 1518-19 (5th Cir,1985). We will uphold a district court’s involuntary dismissal with prejudice absent an abuse of discretion. Morris v. Ocean Systems, Inc., 730 F.2d 248, 251 (5th Cir.1984). However, since dismissal is a harsh sanction, we will affirm only if a “clear record of delay or contumacious conduct by the plaintiff” exists and “lesser sanctions would not serve the best interests of justice.” Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982) (quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972)). Additionally, most courts affirming dismissals have found at least one of three aggravating factors: (1) delay caused by plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct. Callip, 757 F.2d at 1519. A. Applying the above standards, we are of the opinion that the district court did not abuse its discretion in dismissing this action. Price failed to file a pretrial order in March 1984, and, as a result, the court stayed the case; a short time later the court continued the stay since Price’s counsel failed to certify his intent to comply with the standing pretrial instructions and procedural rules; nevertheless, nothing happened for over ten months. The district court then dismissed the case; Price finally responded with a motion to reinstate contending that the defendant had refused to cooperate in the pretrial proceedings. However, Price gave no explanation in the motion to reinstate as to" }, { "docid": "23039523", "title": "", "text": "Not only have the attorneys not met prior to the conference, but also the attorney for the plaintiff has not even attempted to prepare a Pre-trial Order or Proposed Pre-trial Order. This court is of the opinion that a dismissal with prejudice is warranted in the total circumstances. App. 33. II. The sole issue on appeal is whether the district court abused its discretion in dismissing the action. It is clear that the district court does have the power under Rule 41(b), Fed.R.Civ.P., to enter a sua sponte order of dismissal. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The dismissal of an action for an attorney’s failure to comply is a harsh sanction which the court should order only in extreme situations showing “a clear record of delay or contumacious conduct by the plaintiff.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978). See Edsall v. Penn Central Transp. Co., 479 F.2d 33 (6th Cir. 1973) (per curiam). Absent this showing, an order of dismissal is an abuse of discretion; the court is limited to lesser sanctions designed to achieve compliance, 586 F.2d at 385. The sanction of dismissal is appropriate only if the attorney’s dilatory actions amounted to failure to prosecute and no alternative sanction would protect the integrity of pre-trial procedures. J. F. Edwards Const. Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir. 1976) (per curiam). As the Seventh Circuit has stated, “the key is a failure to prosecute, whether styled as a failure to appear at a pre-trial conference, failure to file a pre-trial statement, failure to prepare for conference, or failure to comply with the pre-trial order.” Id. at 1323. Dismissal is usually inappropriate where the neglect is solely the fault of the attorney. Strict compliance with orders of a district court is an important duty of counsel. The attorney’s efforts here were wholly insufficient. He failed to engage in discovery, to discuss settlement, and to file appropriate pre-trial orders in a timely fashion as ordered by the court." }, { "docid": "22186090", "title": "", "text": "calendar on September 17, 1984, plaintiff’s counsel failed to appear, but instead reported to Superior Court. He sent an attorney not of record in the case to the district court to move for a continuance. The defendants, with their attorney and witnesses present in court, opposed the motion for continu- anee and moved that the case be dismissed for lack of prosecution. The district court judge stated that to grant the motion for continuance would punish the defendant doctors, who had can-celled appointments with patients to be ready for trial. The judge said, “I’m not accustomed to having lawyers ignore the court, and the only time I have ever seen or heard from [plaintiff’s counsel] has been when he came to pretrial conference. Other than that, he’s ignored everything the court has directed or required, including coming here this morning.” The district court granted defendants’ motion to dismiss for want of prosecution. A district court is authorized, on defendant’s motion, to dismiss an action for failure to prosecute or to obey a court order or federal rule. Fed.R.Civ.P. 41(b). The court’s power to dismiss is an inherent aspect of its authority to enforce its orders and insure prompt disposition of lawsuits. Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983). The legal standard to be applied under Rule 41(b) is whether there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Id.; Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). Dismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances. Jones v. Graham, 709 F.2d at 1458. The task of the reviewing court is to determine whether the trial court, in exercising its authority to dismiss, abused its discretion. Id. The district court found that plaintiff’s counsel engaged in a pattern of delay and deliberately refused to comply with the directions of the court. This finding is supported by the record. Despite the court’s" }, { "docid": "22083122", "title": "", "text": "The standard of poverty under the IFP statute requires a relatively minimal amount of sacrifice; it does not require an applicant to give up every amenity of life. See, e.g., Jones v. Zimmerman, 752 F.2d 76 (3rd Cir.1985). If a plaintiff has incurred sanctions for misconduct, a more stringent standard for allowing him to proceed with his case is appropriate because he has been given ac-cesos to the courts and has abused that privilege. No one should be permitted to misuse the courts with impunity. Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987) (discussing prisoner IFP litigation). If misuse has occurred and monetary sanctions have been imposed, the plaintiff, to continue his law suit, might be required to go into debt or to dispose of assets which the IFP process otherwise would have allowed him to keep. Moon’s affidavit in the district court showed that he owned an automobile. In short, Moon made no attempt to comply with the sanction order, nor did he ask the court to devise a way for him to comply partially. Instead, Moon continued to challenge the sanction on the ground that he had acted correctly at the deposition and that the magistrate therefore lacked the authority to impose the sanction. Rule 41(b) authorizes a district court to dismiss an action for failure to obey a court order. Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Silas v. Sears, Roe buck & Co., 586 F.2d 382, 385 (5th Cir.1978). A party’s claim that destitution prevented him from complying with the order is not an absolute bar to dismissal. See Bonaventure v. Butler, 593 F.2d 625 (5th Cir.1979); see also Stern v. Inter-Mountain Telephone Co., 226 F.2d 409 (6th Cir.1955) (dismissal for failure to pay costs is justified where court makes clear that payment is a condition for avoiding dismissal). The record supports what is implicit in the district court’s decision to dismiss this case — that Moon had been repeatedly and stubbornly defiant. Moon’s conduct and words" }, { "docid": "3890526", "title": "", "text": "and n. 5 (2d Cir.1972); Stebbins v. State Farm Mutual Automobile Ins. Co., 413 F.2d 1100 (D.C.Cir.1969) (per curiam); Nasser v. Isthmian Lines, 331 F.2d 124 (2d Cir.1964). The same presumption has been held to attach to Rule 16(f) as well, when that rule is used as authority for dismissing a case, since it incorporates the provision in Rule 37(b) that authorizes the sanction of dismissal and was not intended to alter the standards governing dismissals. Velazquez-Rivera v. Sea-Land Service, Inc., supra, 920 F.2d at 1075 nn. 4-5; Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1518— 19 (5th Cir.1985) (per curiam). It is plain, if only from Judge Baker’s invocation of Rule 41(b), that he thought that Lucien’s refusal to attend the final pretrial conference ought to terminate the case for all time. After all, Lucien had not merely moved for the substitution of a telephone conference for a conference in person; he had flatly refused to obey the subpoena ad testificandum that the judge had issued. This was contumacious conduct, which augured poorly for the orderly conduct of the litigation. The misfeasant, moreover, was the party himself, not any lawyer, so it is not a case of punishing the client for his lawyer’s failures, an authorized form of vicarious liability but not one to be imposed lightly. Ball v. City of Chicago, 2 F.3d 752, 757- 59 (7th Cir.1993). Dismissal with leave to reinstate would have been no sanction unless the statute of limitations had run, in which event it would have been the equivalent of dismissal with prejudice. If dismissal was to be a meaningful sanction, it had to be dismissal with prejudice. Lesser sanctions for Lucien’s particular misconduct could be imagined, however, so again we ask whether the judge erred by looking at the wrong rule. He did not. The criteria for sanctions under Rules 16(f), 37(b), and 41(b) are the same. Callip v. Harris County Child Welfare Dept., supra, 757 F.2d at 1518-19; Velazquez-Rivera v. Sea-Land Service, Inc., supra, 920 F.2d at 1075; Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th" }, { "docid": "22852746", "title": "", "text": "of right-to-sue. A party may challenge the validity of that reconsideration and second notice only by showing that the sole purpose of reconsideration was to extend the initial notice period. The district court’s dismissal of Gonzalez’s Title VII claim for failure to file suit within ninety days of his receipt of the first notice of right-to-sue issued to him by the EEOC was improper. III. Dismissal for Failure to Prosecute Gonzalez contends that the district court abused its discretion in dismissing his section 1981 claim for want of prosecution, arguing that his counsel’s failure to appear at the pre-trial conference did not amount to a clear record of delay or contumacious conduct and, therefore, did not justify dismissal of his claim with prejudice under Fed.R.Civ.P. 41(b). Firestone responds that the dismissal of Gonzalez’s section 1981 claim was proper in light of other conduct by Gonzalez and his attorney. Firestone characterizes the failure of Gonzalez’s attorney to appear at the pre-trial conference as the culmination of a series of procrastinating actions by Gonzalez that indicated a clear lack of willingness on his part to proceed toward trial. Fed.R.Civ.P. 41(b) allows a defendant to seek the dismissal of an action for lack of prosecution by the plaintiff or for his failure to comply with an order of the court or the Federal Rules of Civil Procedure. In addition to the authority granted by Rule 41(b), a federal district court possesses the inherent authority to dismiss an action for want of prosecution, which it may exercise on its own motion when necessary to maintain the orderly administration of justice. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Silas v. Sears, Roebuck & Co., 586 F.2d 382 (5th Cir. 1978); Lopez v. Aransas County Independent School District, 570 F.2d 541 (5th Cir. 1978); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). Dismissal with prejudice, however, is an extreme sanction that deprives a litigant of the opportunity to pursue his claim. Although" }, { "docid": "22103985", "title": "", "text": "a dismissal with prejudice for failure to prosecute for abuse of discretion. Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir.1985). A dismissal with prejudice “ ‘is an extreme sanction that deprives the litigant of the opportunity to pursue his claim.’ ” Callip, 757 F.2d at 1519 (quoting McGowan, 659 F.2d at 556); see also McGlathery, 792 F.2d at 474. Consequently, this Court has limited the district court’s discretion in dismissing cases with prejudice. McGlathery, 792 F.2d at 474; Callip, 757 F.2d at 1519. We will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile. Callip, 757 F.2d at 1519-21; McGlathery, 792 F.2d at 474; Boudwin, 756 F.2d at 401; Morris, 730 F.2d at 252. Additionally, in most cases where this Court has affirmed dismissals with prejudice, we found at least one of three aggravating factors: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” McGlathery, 792 F.2d at 474; see also Callip, 757 F.2d at 1529. Applying the standards pertaining to Fed.R.Civ.P. 41(b) to this case, we find that the district court abused its discretion by involuntarily dismissing Berry’s suit for failure to prosecute. The order of dismissal for failure to prosecute does not contain express findings upon which the dismissal was based. It merely states that the case was being dismissed because Berry had failed to move for default judgment against Cigna. Furthermore, nothing in the record indicates a clear record of delay or contumacious conduct. In fact, the rec ord contains no evidence showing significant periods of total inactivity.” See Morris, 730 F.2d at 252. In addition, there is no evidence that the district court determined that lesser sanctions would be appropriate." }, { "docid": "22186091", "title": "", "text": "federal rule. Fed.R.Civ.P. 41(b). The court’s power to dismiss is an inherent aspect of its authority to enforce its orders and insure prompt disposition of lawsuits. Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983). The legal standard to be applied under Rule 41(b) is whether there is a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Id.; Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). Dismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances. Jones v. Graham, 709 F.2d at 1458. The task of the reviewing court is to determine whether the trial court, in exercising its authority to dismiss, abused its discretion. Id. The district court found that plaintiff’s counsel engaged in a pattern of delay and deliberately refused to comply with the directions of the court. This finding is supported by the record. Despite the court’s repeated insistence that plaintiff’s counsel submit a preliminary statement, plaintiff’s counsel failed to submit such a statement. Plaintiff’s counsel also failed to appear for a pretrial conference in June 1984, as an alternative to submitting a preliminary statement. Finally, plaintiff’s counsel disobeyed the court’s instruction to be ready to proceed with trial on September 17, 1984. The record also supports an implicit finding that any lesser sanction than dismissal would not have served the interests of justice. The district court determined that by granting plaintiff’s motion for a continuance the court would have punished defendants. Defendants were physicians who had to cancel three days of appointments with patients to be present for trial. If the continuance were granted, defendants would have been forced to cancel several additional days of appointments. As any further delay would have greatly prejudiced defendants, a lesser sanction than dismissal would not have served the interests of justice. See id. at 1461-62; Veazey v. Young’s Yacht Sale & Service, Inc., 644 F.2d 475, 478 (5th Cir.1981). This Court is aware that" }, { "docid": "23135073", "title": "", "text": "of Civil Procedure authorizes the district court to dismiss a plaintiff’s action for failure to prosecute. In Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court upheld a district court’s dismissal under this rule of a plaintiff’s action because plaintiff’s counsel failed to appear at a scheduled pretrial and had, up to the time of the pretrial, deliberately proceeded in a dilatory fashion. Id. at 633, 82 S.Ct. at 1390. The Court was careful to note that it was not deciding “whether explained absence from a pretrial conference would alone justify dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.” Id. at 634, 82 S.Ct. at 13. In interpreting the district court’s authority under Rule 41(b) to dismiss a party’s action for a failure to prosecute or comply with a court order, this court has frequently cautioned that such a'dismissal “is a harsh sanction which the court should order only in extreme situations showing ‘a clear record of delay or contumacious conduct by the plaintiff.’ ” Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.1980) (quoting Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir.1978)). See also Bishop v. Cross, 790 F.2d 38, 39 (6th Cir.1986) (dismissal requires a “degree of willfulness, bad faith or contumacious conduct”); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.1980). However, in Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.1988), this court, after reviewing a number of earlier decisions from this circuit, concluded that [f]rom these cases we extract the principle that in absence of notice that dismissal is contemplated a district court should impose a penalty short of dismissal unless the derelict party has engaged in “bad faith or contumacious conduct.” See also Schilling v. Walworth County Park & Planning Commission, 805 F.2d 272, 276-77 (7th Cir.1986) (district court should warn pro se litigants of possible consequences of neglect if it intends to sanction with" }, { "docid": "22461266", "title": "", "text": "chosen by the district court— dismissal with prejudice — was reasonable under the circumstances of this case. We turn, therefore, to the standards which, within this circuit, determine the appropriateness of the court’s decision to dismiss McNeal’s suit. Rule 41(b) of the Federal Rules of Civil Procedure specifically gives a district court the power to sanction a plaintiff’s failure to prosecute by dismissing the plaintiff’s case with prejudice; the Supreme Court, moreover, has concluded that the district court’s power does not depend on the existence of a motion urging the sanction, Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). Instead, a district court can — under Rule 41(b) — decide sua sponte that dismissal is appropriate, and its decision must be up held by us on appeal unless we can say that by choosing this sanction, the court abused its discretion. Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir.1985). We have repeatedly recognized, however, that a dismissal with prejudice for failure to prosecute is an extreme sanction which is to be used only when the “plaintiffs conduct has threatened the integrity of the judicial process [in a way which] leav[es] the court no choice but to deny that plaintiff its benefits.” Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir.1982). Therefore, under our abuse of discretion review, we have consistently refused to permit a court to impose this sanction unless the history of a particular case discloses both (1) a clear record of delay or contumacious conduct by the plaintiff, and (2) that a lesser sanction would not better serve the best interests of justice. Sturgeon, 778 F.2d at 1159; Rogers, 669 F.2d at 321 (collecting cases); see also Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986) (applying Rule 41(b) standards to a Rule 16(f) dismissal with prejudice). Moreover, because of our reluctance to visit such a harsh sanction upon a party solely because of the sins of his counsel, in close cases we have often looked for proof of one of the following “aggravating factors” —" }, { "docid": "23039522", "title": "", "text": "statute of limitations defense. On December 5, 1978, Carter filed a motion to amend his complaint to state a Title VII claim. The next day the pre-trial conference was held. Defendant filed that day a motion to dismiss on the ground of statute of limitations and also filed a two-page proposed pre-trial order. On the same day Carter filed a supplemental brief which addressed the statute of limitations, the statement of the claim, the standard of proof and damages. Neither party had undertaken any discovery. On December 7, 1978, the district court dismissed the action with prejudice because of Carter’s noncompliance with its July 28, 1978 order. The order of dismissal stated: Counsel for the plaintiff brought to the pre-trial conference the original of a document called a Supplemental Brief, most of which is totally irrelevant to the issues in the lawsuit. The court inquired at the commencement of the conference whether any discovery had been obtained, to which counsel for the plaintiff replied that they had been trying to resolve the question of law. Not only have the attorneys not met prior to the conference, but also the attorney for the plaintiff has not even attempted to prepare a Pre-trial Order or Proposed Pre-trial Order. This court is of the opinion that a dismissal with prejudice is warranted in the total circumstances. App. 33. II. The sole issue on appeal is whether the district court abused its discretion in dismissing the action. It is clear that the district court does have the power under Rule 41(b), Fed.R.Civ.P., to enter a sua sponte order of dismissal. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The dismissal of an action for an attorney’s failure to comply is a harsh sanction which the court should order only in extreme situations showing “a clear record of delay or contumacious conduct by the plaintiff.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978). See Edsall v. Penn Central Transp. Co., 479 F.2d 33 (6th Cir. 1973) (per curiam). Absent this showing, an" }, { "docid": "3890525", "title": "", "text": "provisions of Rule 37(b)) should govern, rather than the general one, if it makes a difference. Note of the Advisory Committee to the 1983 Amendment of Rule 16; Velazquez-Rivera v. Sear-Land Service, Inc., 920 F.2d 1072, 1074-76 (1st Cir.1990); cf. Société Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958). It does not make a difference, at least in this case. Dismissal without prejudice is a feeble sanction, unless the statute of limitations has run. (Although it is, nevertheless, the normal sanction for violations of the Speedy Trial Act, 18 U.S.C. § 3162(a)(2); United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988); United States v. Arango, 879 F.2d 1501, 1508 (7th Cir.1989), the public is understood to have an overriding concern with the punishment of criminals.) So one is not surprised that Rule 37(b) has been interpreted to create a presumption that a dismissal under that rule is with prejudice. Papilsky v. Berndt, 466 F.2d 251, 254, 256 and n. 5 (2d Cir.1972); Stebbins v. State Farm Mutual Automobile Ins. Co., 413 F.2d 1100 (D.C.Cir.1969) (per curiam); Nasser v. Isthmian Lines, 331 F.2d 124 (2d Cir.1964). The same presumption has been held to attach to Rule 16(f) as well, when that rule is used as authority for dismissing a case, since it incorporates the provision in Rule 37(b) that authorizes the sanction of dismissal and was not intended to alter the standards governing dismissals. Velazquez-Rivera v. Sea-Land Service, Inc., supra, 920 F.2d at 1075 nn. 4-5; Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1518— 19 (5th Cir.1985) (per curiam). It is plain, if only from Judge Baker’s invocation of Rule 41(b), that he thought that Lucien’s refusal to attend the final pretrial conference ought to terminate the case for all time. After all, Lucien had not merely moved for the substitution of a telephone conference for a conference in person; he had flatly refused to obey the subpoena ad testificandum that the judge had issued. This was contumacious conduct, which" }, { "docid": "22852747", "title": "", "text": "clear lack of willingness on his part to proceed toward trial. Fed.R.Civ.P. 41(b) allows a defendant to seek the dismissal of an action for lack of prosecution by the plaintiff or for his failure to comply with an order of the court or the Federal Rules of Civil Procedure. In addition to the authority granted by Rule 41(b), a federal district court possesses the inherent authority to dismiss an action for want of prosecution, which it may exercise on its own motion when necessary to maintain the orderly administration of justice. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Silas v. Sears, Roebuck & Co., 586 F.2d 382 (5th Cir. 1978); Lopez v. Aransas County Independent School District, 570 F.2d 541 (5th Cir. 1978); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). Dismissal with prejudice, however, is an extreme sanction that deprives a litigant of the opportunity to pursue his claim. Although on an appeal from the imposition of such a sanction this court will confine its review to a determination of whether the district court abused its discretion, we have consistently held that dismissal with prejudice is warranted only where “a clear record of delay or contumacious conduct by the plaintiff” exists, Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1967), and “a lesser sanction would not better serve the interests of justice,” Brown v. Thompson, 430 F.2d 1214, 1216 (5th Cir. 1970). See Silas v. Sears, Roebuck & Co., 586 F.2d at 385; Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977); Connolly v. Papachristid Shipping Ltd., 504 F.2d 917, 920 (5th Cir. 1974); Flaksa v. Little River Marine Construction Co., 389 F.2d at 888. Applying this standard, we conclude that the record before us does not reflect that quality of delay or contumacious conduct by" }, { "docid": "3890527", "title": "", "text": "augured poorly for the orderly conduct of the litigation. The misfeasant, moreover, was the party himself, not any lawyer, so it is not a case of punishing the client for his lawyer’s failures, an authorized form of vicarious liability but not one to be imposed lightly. Ball v. City of Chicago, 2 F.3d 752, 757- 59 (7th Cir.1993). Dismissal with leave to reinstate would have been no sanction unless the statute of limitations had run, in which event it would have been the equivalent of dismissal with prejudice. If dismissal was to be a meaningful sanction, it had to be dismissal with prejudice. Lesser sanctions for Lucien’s particular misconduct could be imagined, however, so again we ask whether the judge erred by looking at the wrong rule. He did not. The criteria for sanctions under Rules 16(f), 37(b), and 41(b) are the same. Callip v. Harris County Child Welfare Dept., supra, 757 F.2d at 1518-19; Velazquez-Rivera v. Sea-Land Service, Inc., supra, 920 F.2d at 1075; Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.1987)'; Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986) (per curiam). Rule 41(b) states the general principle that failure to prosecute a case should be punished by dismissal of the ease with prejudice. One way in which a plaintiff can fail to prosecute his ease is by disobeying a discovery order and another way is by disobeying an order to attend a preconference hearing. A determination that by disobeying either type of order the plaintiff failed to prosecute his suit and that the suit should be dismissed with prejudice as a sanction for that failure is equivalent to a determination that the disobedience of such an order should be visited with the sanction of dismissal by the force of Rule 37(b) directly or as incorporated into Rule 16, without reference to 41(b). So the judge was looking at the right question and we cannot say that the answer he gave constituted an abuse of discretion— and we are certain that the result would not have been different had he referred to Rule 16(f) or" }, { "docid": "13291643", "title": "", "text": "21, 1977. In its “Memorandum of Opinion” filed in support of the judgment of dismissal, the court stated that no action had been taken on appellant’s discovery motions because the motions “could have been stricken under Rule 12(f) as redundant, impertinent and scandalous.” No reference was made to the motion for recusal. Rule 41(b) authorizes the district court to dismiss with prejudice an action for want of prosecution by the plaintiff. Link v. Wabash R. R. Co., 370 U.S. 626, 629, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1961). However, involuntary dismissal “is a drastic remedy to which a court may resort only in extreme circumstances.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th Cir. 1978). We have approved the sanction only where there is “a clear record of delay or contumacious conduct by the plaintiff.” Durham v. Florida East Coast R. R. Co., 385 F.2d 366, 368 (5th Cir. 1967). See also, e. g., Graves v. Kaiser Aluminum & Chemical Co., 528 F.2d 1360 (5th Cir. 1976). Our review is limited to whether the district court’s dismissal was an abuse of discretion. Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 887 (5th Cir. 1968). The district court rested its dismissal upon appellant’s repeated failures to appear for deposition. The instant case is controlled by Durgin v. Graham, 372 F.2d 130 (5th Cir. 1967). In Durgin, we upheld dismissal for lack of prosecution, where the plaintiffs willfully refused to appear for the taking of their depositions. Id. at 131. In the instant case appellant not only exhibited a pattern of delay, but also received a warning of dismissal and refused to obey court orders to appear. See Ramsay v. Bailey, 531 F.2d 706, 709 (5th Cir. 1976). Since appellant was acting pro se, he cannot attribute his dereliction of duty to another. See Flaksa, 389 F.2d at 889. Appellant claims that the district court’s dismissal was an abuse of discretion, because of the court’s refusal to rule on his various motions. Appellant filed a motion to compel SMU’s production of documents pursuant to Fed.R.Civ.P. 34, before" }, { "docid": "23106033", "title": "", "text": "hearing on the hospital’s motion to dismiss and for attorney’s fees. As set forth in the findings of fact and conclusions of law dated August 17, 1979, the district court dismissed the action with prejudice, pursuant to Rule 37(d) and Rule 41(b), Fed.R.Civ.P., providing respectively for dismissal for failure to appear for deposition and for failure to prosecute. Finding that Mrs. Anthony’s failure to prosecute was frivolous and vexatious, the district court awarded the hospital attorney’s fees pursuant to § 706(k) of Title VII, 42 U.S.C.A. § 2000e-5(k), and 42 U.S.C.A. § 1988. Judgment mailed September 7, 1979. On September 7, 1979, a copy of the bill of costs reflecting the judgment was mailed to Mrs. Anthony. Shortly thereafter, notice of entry of appearance of Robert L. Gibbs, Esquire, was filed on September 19, 1979, together with the notice of this appeal. No motion for relief from judgment pursuant to Rule 60, Fed.R.Civ.P., ever has been filed. On September 17, 1979, Mrs. Anthony, represented by her new counsel, filed another action under Title VII against the hospital. II. DISMISSAL WITH PREJUDICE Mrs. Anthony contends that the district court abused its discretion in dismissing her cause of action with prejudice. Rule 41(b) provides that a case may be dismissed for failure to prosecute. Not only may a district court dismiss for want of prosecution upon motion of a defendant, but it may also sua sponte dismiss an action whenever necessary to “achieve the orderly and expeditious disposition of cases.” Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir. 1980); Lopez v. Aransas County Independent School District, 570 F.2d 541 (5th Cir. 1978). Dismissal with prejudice, however, is an extreme sanction which is warranted only where “a clear record of delay or contumacious conduct by the plaintiff” exists, Gonzalez, supra, 610 F.2d 241 (5th Cir. 1980); Lopez, supra, 570 F.2d 541; Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th Cir. 1978); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), cert." }, { "docid": "23372146", "title": "", "text": "the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. Rule 37(b)(2)(C) authorizes as a sanction: An order ... dismissing the action or proceeding or any part thereof ... against the disobedient party. . Prior to 1983, Rule 16 contained no specific provision for sanctions, although courts did not hesitate to enforce failures by appropriate sanctions. See Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (relying on the inherent power of the court); Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712-13 (1st Cir.1977) (relying on Rule 41(b)). Rule 16(f) was added to \"reflect that existing practice and to obviate dependence upon Rule 41(b) or the court’s inherent power to regulate litigation,” Notes of Advisory Committee on Rules, 1983 Amendment, Subdivision (f); Sanctions. The rule incorporates by reference portions of Rule 37(b)(2), which governs sanctions for failure to comply with discovery orders. Rule 16(f) was not, however, intended to alter the standard for dismissal of an action for misconduct. See id. (suggesting that the purpose was “to reflect th[e] existing practice\"); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1518 (5th Cir.1985) (16(f) was not intended to change the standard for dismissal). . The district court did not indicate whether dismissal in this case was with or without prejudice. We note, however, that in the absence of any notation to the contrary, we presume that a dismissal is with prejudice. See Fed.R.Civ.P. 41(b) (\"Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir.1985) (dismissal under Rule 16(f) not explicitly without prejudice is governed" }, { "docid": "23605555", "title": "", "text": "should have immediately filed appropriate answers to the interrogatories as well as a response to the defendants’ third motion to dismiss. Instead, the plaintiffs did not respond until March 13, after the court had already dismissed the complaint. In denying the plaintiffs’ motion to alter judgment, the court also noted that its dismissal of the complaint was not based solely upon the plaintiffs’ failure to comply with the January 15 order but “also was based upon the plaintiffs’ failure to comply with a September 6, 1985 Order entered by the Honorable Michael S. Kanne, District Judge, the clearly inadequate answers to the interrogatories, the failure to obtain local counsel as required by Local Rule 1(d) and two court orders, and the failure to respond to either the Second Motion to Dismiss or the Third Motion to Dismiss filed by the defendants.” Id. at 2-3. II. In granting the defendants’ third motion to dismiss, the district court cited Rule 37 and Rule 41 of the Federal Rules of Civil Procedure. Our review of the court’s decision under both rules is limited to whether the court abused its discretion in dismissing the plaintiffs’ suit. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Link v. Wabash R.R. Co., 370 U.S. 626, 629-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). A. Under Rule 41(b), a court may dismiss an action with prejudice “[f]or failure of the plaintiff to prosecute or to comply with these rules [i.e., the Federal Rules of Civil Procedure] or any order of court.” A court reviewing the dismissal of an action or claim must consider the procedural history of the case as well as the status of the case at the time of the dismissal. Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.1986); Stevens v. Greyhound Lines, Inc., 710 F.2d 1224, 1228 (7th Cir.1983). We have often noted that the great severity of the sanction of dismissal with prejudice requires that district courts resort to it only infrequently. E.g.," }, { "docid": "22083123", "title": "", "text": "comply partially. Instead, Moon continued to challenge the sanction on the ground that he had acted correctly at the deposition and that the magistrate therefore lacked the authority to impose the sanction. Rule 41(b) authorizes a district court to dismiss an action for failure to obey a court order. Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Silas v. Sears, Roe buck & Co., 586 F.2d 382, 385 (5th Cir.1978). A party’s claim that destitution prevented him from complying with the order is not an absolute bar to dismissal. See Bonaventure v. Butler, 593 F.2d 625 (5th Cir.1979); see also Stern v. Inter-Mountain Telephone Co., 226 F.2d 409 (6th Cir.1955) (dismissal for failure to pay costs is justified where court makes clear that payment is a condition for avoiding dismissal). The record supports what is implicit in the district court’s decision to dismiss this case — that Moon had been repeatedly and stubbornly defiant. Moon’s conduct and words evidence a refusal to acknowledge the authority of the magistrate and indicate no willingness to comply with court orders. The district court was not required to select a sanction other than dismissal; under other sanctions, defendants would be forced to bear the costs for plaintiff’s (as an IFP, his lawsuit was already being subsidized) misconduct. See Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). The district court did not abuse its discretion in dismissing the case under these circumstances. The IFP statute afforded plaintiff reasonable access to the courts. He was warned repeatedly of the consequences of misconduct. His complaint was dismissed not because of his poverty, but because he stubbornly violated the Federal Rules and court orders. We therefore affirm the order of the district court dismissing this case for failure to pay sanctions imposed for violation of the discovery order. AFFIRMED. . Dismissal of an action is a proper sanction under Rule 37(b). Fed.Rule Civ.Pro. 37(b)(2)(C). Because plaintiffs misbehavior at the deposition was intentional, it would not have been an abuse of" } ]

[ { "docid": "22705765", "title": "", "text": "position taken by an agency before the Supreme Court, with full approval of the agency head, would not qualify. Rather, some unspecified degree of formal process was required — or was at least the only safe harbor. See Mead, supra, at 245-246 (Scalia, J., dissenting). This meant that many more issues appropriate for agency determination would reach the courts without benefit of an agency position entitled to Chevron deference, requiring the courts to rule on these issues de novo. As I pointed out in dissent, this in turn meant (under the law as it was understood until today) that many statutory ambiguities that might be resolved in varying fashions by successive agency administrations would be resolved finally, conclusively, and forever, by federal judges — producing an “ossification of large portions of our statutory law,” 583 U. S., at 247. The Court today moves to solve this problem of its own creation by inventing yet another breathtaking novelty: judicial decisions subject to reversal by executive officers. Imagine the following sequence of events: FCC action is challenged as ultra vires under the governing statute; the litigation reaches all the way to the Supreme Court of the United States. The Solicitor General sets forth the FCC’s official position (approved by the Commission) regarding interpretation of the statute. Applying Mead, however, the Court denies the agency position Chevron deference, finds that the best interpretation of the statute contradicts the agency’s position, and holds the challenged agency action unlawful. The agency promptly conducts a rulemaking, and adopts a rule that comports with its earlier position — in effect disagreeing with the Supreme Court concerning the best interpretation of the statute. According to today’s opinion, the agency is thereupon free to take the action that the Supreme Court found unlawful. This is not only bizarre. It is probably unconstitutional. As we held in Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 (1948), Article III courts do not sit to render decisions that can be reversed or ignored by executive officers. In that case, the Court of Appeals had determined" } ]

[ { "docid": "20597742", "title": "", "text": "as a justification to abdicate to the Executive all authority over interpretation of § 1337(a)(l)(B)(i). This desire to give the Commission free rein to prevent potential abuses highlights a more fundamental Poncern with the majority’s approach. The Commission is a creature of statute, with its powers narrowly defined by Congress. Kyocera, 545 F.3d at 1355. The Commission is also entirely at the whim of the President (through the United States Trade Representative), who can choose to set aside an exclusion order before it is enforced. 19 U.S.C. § 1337(j)(2). The Commission is therefore subject to the control of the Executive Branch, even though the Commission is nominally an independent agency with three commissioners from each political party that are appointed by the President upon the advice and consent of the Senate. Congress strictly defines the powers of the Commission, but the President has veto powers over the Commission’s assertions of power under § 1337. It is within this framework that we must ardently guard Congress’s power to establish the law and our.own power to “say what the law is.” Marbury v. Madison, 5 U.S. (1 Crunch) 137, 177, 2 L.Ed. 60 (1803). The majority, however, too easily defers to the Com-mission’s interpretation. By concluding that the statute is ambiguous, the majority emboldens the Executive at the expense of both Congress and this court. As long as we defer to the Commission’s interpretation of § 1337, that interpretation may change when the Administration changes. The value and importance of stare decisis in statutory interpretation is weakened by undue resort to Chevron. Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“[T]he consistency of an agency’s position is a factor in assessing the weight that position is due.”). The Commission no longer becomes a “creature of statute,” but instead a creature of its own making, an ever-expanding hydra that can sprout new areas of authority with each new interpretation. The majority nominally defers to the Commission because it finds that the statute is ambiguous due to the interplay of § 1337 and § 271(b), even" }, { "docid": "14130435", "title": "", "text": "the courts to decide.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“The judiciary is the final authority on issues of statutory construction.”). “Because the issue presented is a question of pure law and does not implicate agency expertise in any meaningful way, we need not defer under Chevron .... ” Maganar-Pizano v. INS, 200 F.3d 603, 611 n. 11 (9th Cir.1999). Moreover, since ANILCA’s enactment the agency has advocated two inconsistent interpretations of the statute. Initially, the agency insisted that the subsistence priority did not apply to any navigable waters. In Katie John I, however, the agency argued that the subsistence priority applied to navigable waters in which the United States has a reserved water right. The agency offered no explanation for this sudden interpretive change of heart. “An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” Cardoza-Fonseca, 480 U.S. at 446 n. 3, 107 S.Ct. 1207 (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)); see also Seldovia Native Ass’n, Inc. v. Lujan, 904 F.2d 1335, 1345 (9th Cir.1990) (noting that when an agency changes its interpretation of a statute without explanation it should be accorded less deference). Interpreting ANILCA is our responsibility. As Chief Justice Marshall observed: “It is .emphatically the province and the duty of the judicial department to say what the law is.” Marburg v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). We should not abdicate this responsibility by deferring to the agency’s interpretation of ANILCA. Even if deference to the agency’s interpretation of ANILCA were appropriate, we could not endorse as reasonable an interpretation that ignores congressional purpose and focuses myopically on the term “title.” The agency’s interpretation, which the Court today adopts as its own, forsakes a clear congressional purpose that runs consistently throughout the statute in favor" }, { "docid": "13206214", "title": "", "text": "63 L.Ed.2d 22 (1980). This principle, put another way, holds that “[a] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. The rationale behind the Chevron principle is the notion that, within limits, Congress is entitled to delegate certain policy choices to agencies or Executive departments presumed to possess the pertinent expertise. Thus, the Chevron principle of judicial deference is “but a short-hand way of saying that the judiciary is duty bound to respect the origi nal choice of the political branches in vesting authority in an agency to interpret and enforce a statute.” Continental Air Lines Inc., v. Dep’t of Transp., 843 F.2d 1444, 1454 (D.C.Cir.1988). In this context, judicial deference to an agency’s interpretation of its own statutes and regulations can be viewed as one aspect of the intricate choreography that maintains the appropriate balance of power among the three co-equal branches of government. This choreography insures that, in the dance of governance, no branch leads too much or steps on the toes of the other branches. But significantly, there are important limits to the notion of judicial deference. First, deference is appropriate only when an agency or department interprets its own rules and regulations. See, e.g., Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. Only in this event is there any validity to the assumption that underlies judicial deference, namely a congressional intent to delegate certain policy choices to expert independent agencies or to the Executive Branch. Equally evident is that deference is inappropriate where the department’s or agency’s interpretation is contrary to the plain language of the relevant statute or regulation. See, e.g., Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Auth., 464 U.S. 89, 98 n. 8, 104 S.Ct. 439, 445 n. 8, 78 L.Ed.2d 195 (1983); Int’l. Bhd. of Teamsters etc., v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979) (“[Deference is constrained by our obligation to honor the clear" }, { "docid": "22349629", "title": "", "text": "as divined from the statute and its legislative history, we owe it no deference.”). Indeed, if we hastily ‘throw up our hands’ and declare that Congress’s intent is unclear, we abdicate our duty; in essence, we leave statutory construction to an Article II agency, rather than accept the responsibility the Constitution imposes on Article III courts. See Marbury, 5 U.S. (1 Cranch) at 177. To .ascertain whether Congress had an intention on the precise question at issue, we employ the “traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. The first and foremost “tool” to be used is the statute’s text, giving it its plain meaning. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579 (Fed.Cir.1990). Because a statute’s text is Congress’s final expression of its intent, if the text answers the question, that is the end of the matter. See Muwwakkil, 18 F.3d at 924 (“When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails.”); West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 98-99, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). If, on the other hand, the statute’s text does not explicitly address the precise question, we do not at that point simply defer to the agency. Our search for Congress’s intent must be more thorough than that. The Supreme Court made this clear in Chevron: “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” 467 U.S. at 843 n. 9, 104 S.Ct. 2778 (emphasis added). Beyond the statute’s text, those “tools” include the statute’s structure, canons of statutory construction, and legislative history. See Dunn v. Commodity Futures Trading Com’n, 519 U.S. 465, -, 117 S.Ct. 913, 916-20, 137 L.Ed.2d 93 (1997) (considering the overall statute, a canon of statutory construction, and legislative history to ascertain Congress’s intent, when more than one reading of the literal text of the particular statutory phrase at issue is possible); Oshkosh Truck Corp. v." }, { "docid": "19402422", "title": "", "text": "§ 332(c)(7)(B)(ii) and (v) by adopting the 90- and 150-day time frames\"). And that has nothing do with whether the statutory provisions at issue are \"big\" or \"small.\" II \"It is emphatically the province and duty of the judicial department to say what the law is.\" Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide \"all relevant questions of law.\" 5 U.S.C. § 706. We do not ignore that command when we afford an agency's statutory interpretation Chevron deference; we respect it. We give binding deference to permissible agency interpretations of statutory ambiguities because Congress has delegated to the agency the authority to interpret those ambiguities \"with the force of law.\" United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) ; see also Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1, 27-28 (1983) (\"the court is not abdicating its constitutional duty to 'say what the law is' by deferring to agency interpretations of law: it is simply applying the law as 'made' by the authorized law-making entity\"). But before a court may grant such deference, it must on its own decide whether Congress-the branch vested with lawmaking authority under the Constitution-has in fact delegated to the agency lawmaking power over the ambiguity at issue. See ante, at 1876 (BREYER, J., concurring in part and concurring in judgment) (\"The question whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer independently.\"). Agencies are creatures of Congress; \"an agency literally has no power to act ... unless and until Congress confers power upon it.\" Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). Whether Congress has conferred such power is the \"relevant question[ ] of law\" that must be answered before affording Chevron deference. 5 U.S.C. § 706. III" }, { "docid": "23481782", "title": "", "text": "the appropriate role of courts when they review agency resolutions of policy issues.” 1 Kenneth Culp Davis, Richard J. Pierce, Jr., Administrative Law Treatise § 1.7 (3d ed.1994) (emphasis supplied). Where the agency decision is one of policy, the court is instructed to defer to any “reasonable” agency decisions. Chevron, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Although, “[t]he second step of Chevron has provoked great controversy among judges and scholars,” (1 Kenneth Culp Davis, Richard J. Pierce, Jr., Administrative Law Treatise § 1.7 (3d ed.1994)), there is no question that agency decisions that are irrational and unreasonable will not be upheld. The basic proposition that the judiciary will not give weight to the actions of administrative agencies that “are arbitrary, capricious, or manifestly contrary to the statute” is uncontroverted. INS v. Cardoza Fonseca, 480 U.S. 421, 444 n. 29, 107 S.Ct. 1207, 1220 n. 29, 94 L.Ed.2d 434 (1987); see generally, e.g., Richard J. Pierce, Jr., et ah, Administrative Law and Process 111-129 (2d ed.1992). In contrast to discretionary policy questions left open in legislation to administrative interpretation, questions of statutory construction are for the judiciary. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). For the last two centuries, this maxim has provided a touchstone in judicial review. While “[i]n the performance of assigned constitutional duties each branch of the government must initially interpret the Constitution,” United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974), ultimately the final word on the interpretation of the supreme law of the land, the Constitution, and of congressionally enacted statutes must come from the judiciary. As the Chevron Court itself recognized, “The judiciary is the final authority on issues of statutory construction____” Chevron v. Natural Resources Defense, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984). Where courts must rely on common law principles of statutory construction as interpreted by the Supreme" }, { "docid": "10692662", "title": "", "text": "relevant questions of law, interpret Constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” In particular, the reviewing court is to hold unlawful and set aside agency action, findings, and conclusions when they are found to be: arbitrary, capricious, an. abuse of discretion, or otherwise not in accordance with law; or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. § 706(2)(A) & (C). Moreover, the United States Supreme Court has ruled that ambiguous statutes are to be deemed provisions of policy discretion {i.e., for the agency), rather than of purely legal interpretation {i.e., for the courts) — and are thus properly “deferred” by courts to agencies for (reasonable) policymaking. Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (Stevens, J.). Accord Presley v. Etowah County Commission, — U.S. -, -, 112 S.Ct. 820, 831, 117 L.Ed.2d 51 (1992) (Kennedy, J.); United States v. Alaska, — U.S. -, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992) (White, J.). Chevron thus dictates that it is the clarity of the substantive statutory law, not merely the existence of it, which separates law and policy and accordingly dictates the appropriate degree of judicial review under the APA. See Chevron, supra, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9 (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent” by “employing traditional tools of statutory construction”)' (citations omitted); id. at 865-866, 104 S.Ct. at 2792-2793 (but, in the absence of clear statutory directives, courts must “respect legitimate policy choices” of government actors who are reviewable by a political constituency). See also Marbury v. Madison, 5 U.S -. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803) (Marshall, C.J.) (asserting that the courts’ reviewing power is triggered “where a specific duty is assigned by law....”; and that discretionary acts by the executive “are only politically examinable”). Thus, the applicable standard of review for ambiguous statutory directives, as well" }, { "docid": "1356838", "title": "", "text": "130 S.Ct. 3138, 177 L.Ed.2d 706 (2010). In so ruling, the Court emphasized, among other things, the novelty of the Board’s structure: “Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity.” Id. at 505, 130 S.Ct. 3138 (internal quotation marks omitted). In its 2014 decision in NLRB v. Noel Canning, the Supreme Court held that recess appointments in Senate recesses of fewer than 10 days were presumptively unconstitutional under Article II. — U.S.-, 134 S.Ct. 2550, 2567, 189 L.Ed.2d 538 (2014). Why 10 days? The Court explained: “Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions regulating the relationship between Congress and the President.” Id. at 2559 (internal quotation marks and alteration omitted). And the historical practice of Presidents and Senates had established a de facto 10-day line so that recess appointments in recesses of fewer than 10 days were impermissible. See id. at 2567. As those two cases illustrate, history and tradition are critical factors in sepa ration of powers cases where the constitutional text does not otherwise resolve the matter, As Justice Breyer wrote for the Court in Noel Canning, that bedrock principle—namely, that the “longstanding practice of the government can inform our determination of what the law is”—is “neither new nor controversial.” Id. at 2560 (internal quotation marks and citation omitted) (quoting McCulloch v. Maryland, 17 U.S. 4 Wheat. 316, 401, 4 L.Ed. 579 (1819) and Marburg v. Madison, 5 U.S. 1 Cranch 137, 177, 2 L.Ed. 60 (1803)). In this case, the single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person. The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmak-ing and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with" }, { "docid": "14595640", "title": "", "text": "a grant of power in the first instance. There is none here. Moreover, accepting DOT’S contention— that a statutory silence empowers it to promulgate any rules that Congress has not expressly forbidden — would vest agencies with near-plenary authority. Agencies would become the nation’s principal lawmakers. After all, it is the norm for statutes to be silent on whether they grant various powers to agencies. The ADA is silent on whether DOT has the power to oblige bus companies to give disabled persons free passage. It is also silent on whether DOT has the power to require that bus companies transport disabled passengers in their own individual buses. If we were to accept DOT’S view, we would be obliged to conclude that Congress somehow, if only ambiguously, has authorized the agency to adopt both of those rules, and consequently would be bound to afford them Chevron deference. We would not, of course, be obliged to rubber-stamp an agency’s interpretation of those, or any other, statutory silences; any such interpretation would still have to satisfy the reasonableness test of Chevron step two. See Chevron, 467 U.S. at 844, 104 S.Ct. 2778 (requiring courts to uphold only “a reasonable interpretation made by the administrator of an agency”). But it makes a mockery of Chevron to suggest that its second prong is even implicated by Congress’s failure to deny a power to an agency. The agency’s position — that that which is not forbidden is permitted — turns the basic assumption of the American system of government on its head. Our Constitution permits the national government to exercise only those powers affirmatively granted to it by the people of the several states. See, e.g., U.S. Const. amend. X; McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405, 4 L.Ed. 579 (1819) (“This government is acknowledged by all to be one of enumerated powers”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803) (“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.”). The Constitution’s presumption is" }, { "docid": "23481783", "title": "", "text": "policy questions left open in legislation to administrative interpretation, questions of statutory construction are for the judiciary. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). For the last two centuries, this maxim has provided a touchstone in judicial review. While “[i]n the performance of assigned constitutional duties each branch of the government must initially interpret the Constitution,” United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974), ultimately the final word on the interpretation of the supreme law of the land, the Constitution, and of congressionally enacted statutes must come from the judiciary. As the Chevron Court itself recognized, “The judiciary is the final authority on issues of statutory construction____” Chevron v. Natural Resources Defense, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984). Where courts must rely on common law principles of statutory construction as interpreted by the Supreme Court, “[tjhere is ... no reason for courts — the supposed experts in analyzing judicial decisions — to defer to agency interpretations of the Court’s opinions.” Akins v. Federal Election Comm’n., 101 F.3d 731, 741 (D.C.Cir.1996), cert. granted, — U.S. -, 117 S.Ct. 2451, 138 L.Ed.2d 210 (1997). Finally, any action taken by an administrative agency may be reviewed under the arbitrary and capricious test. The Supreme Court’s initial and most deferential statement of the rule required that an administrative action must be upheld “if any state of facts reasonably can be conceived that would sustain” the agency’s decision. Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138 (1935). “[Tjhis formulation [is similar to] what has become known as the loose rational relation test [in constitutional law]. The court continues to use this exceptionally deferential version of the arbitrary and capricious test in some important areas of judicial review” in areas of law not relevant to the instant case. 2 Kenneth Culp Davis, Richard J." }, { "docid": "22205175", "title": "", "text": "in us over “Cases ... arising under ... the Laws of the United States.” U.S. Const, art. Ill, § 1, § 2, cl. 1. The BIA’s authority to say what the law means, however, rests on the “executive Power” vested in the President and his general charge to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, § 1, § 3. We defer to an agency not because it is better situated to interpret statutes, but because we have determined that Congress created gaps in the statutory scheme that cannot be filled through interpretation alone, but require the exercise of policymaking judgment. See Chevron, 467 U.S. at 865, 104 S.Ct. 2778 (“[A]n agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”). “Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); see Brand X, 545 U.S. at 980, 125 S.Ct. 2688. Thus, the BIA’s interpretation of the INA is not a once-and-for-always definition of what the statute means, but an act of interpretation in light of its policymaking responsibilities that may be reconsidered “on a continuing basis.” Chevron, 467 U.S. at 864, 104 S.Ct. 2778. We defer to the agency out of separation-of-powers concerns for the policymaking function of the executive because we are “not part of either political branch of the Government.” Id. at 865, 104 S.Ct. 2778. But, for similar reasons, the executive may not insist that we treat the BIA’s construction of the INA as though it were a court of last resort exercising “judicial Power”; it is not. Indeed, the BIA equivocated over whether, post-Briones, it would acquiesce in our decision in Acosta. See Briones, 24 I. & N. Dec. at 371 n. 9 (“We need not decide" }, { "docid": "19642550", "title": "", "text": "matters to agency discretion as an allocation of interpretive authority. See, e.g.,National Cable & Telecommunications Assn. v. Brand X Internet Services,545 U.S. 967, 983, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005)(referring to the agency as \"the authoritative interpreter (within the limits of reason) of [ambiguous] statutes\"). But we sometimes treat that discretion as though it were a form of legislative power. See, e.g., United States v. Mead Corp.,533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(noting that the agency \"speak[s] with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law\" even when \" 'Congress did not actually have an intent' as to a particular result\"). Either way, Chevrondeference raises serious separation-of-powers questions. As I have explained elsewhere, \"[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.\" Perez v. Mortgage Bankers Assn.,575 U.S. ----, ----, 135 S.Ct. 1199, 1217, 191 L.Ed.2d 186 (2015)(opinion concurring in judgment). Interpreting federal statutes-including ambiguous ones administered by an agency-\"calls for that exercise of independent judgment.\" Id.,at ----, 135 S.Ct., at 1219. Chevrondeference precludes judges from exercising that judgment, forcing them to abandon what they believe is \"the best reading of an ambiguous statute\" in favor of an agency's construction. Brand X, supra,at 983, 125 S.Ct. 2688. It thus wrests from Courts the ultimate interpretative authority to \"say what the law is,\" Marbury v. Madison,1 Cranch 137, 177, 2 L.Ed. 60 (1803), and hands it over to the Executive. See Brand X, supra,at 983, 125 S.Ct. 2688(noting that the judicial construction of an ambiguous statute is \"not authoritative\"). Such a transfer is in tension with Article III's Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies. U.S. Const., Art. III, § 1. In reality, as the Court illustrates in the course of dismantling EPA's interpretation of § 112(n)(1)(A), agencies \"interpreting\" ambiguous statutes typically are not engaged in acts of interpretation at all. See, e.g., ante,at 2708. Instead, as Chevronitself acknowledged, they are engaged in the \"" }, { "docid": "10692663", "title": "", "text": "222 (1992) (White, J.). Chevron thus dictates that it is the clarity of the substantive statutory law, not merely the existence of it, which separates law and policy and accordingly dictates the appropriate degree of judicial review under the APA. See Chevron, supra, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9 (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent” by “employing traditional tools of statutory construction”)' (citations omitted); id. at 865-866, 104 S.Ct. at 2792-2793 (but, in the absence of clear statutory directives, courts must “respect legitimate policy choices” of government actors who are reviewable by a political constituency). See also Marbury v. Madison, 5 U.S -. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803) (Marshall, C.J.) (asserting that the courts’ reviewing power is triggered “where a specific duty is assigned by law....”; and that discretionary acts by the executive “are only politically examinable”). Thus, the applicable standard of review for ambiguous statutory directives, as well as for largely discretionary procedural statutory decisions under the NFMA and the NEPA, is whether the challenged action is reasonable (ie., relative to goals, or ends, themselves within the substantive “outer boundaries” of the NFMA). Chevron, supra, 467 U.S. at 865, 104 S.Ct. at 2792 (“an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”); Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 59, 103 S.Ct. 2856, 2875, 77 L.Ed.2d 443 (1984) (Rehnquist, J., concurring in part and dissenting in part) (“As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration.”); Citizens for Environmental Quality v. United States, 731 F.Supp. 970, 983 (D.Colo.1989) (holding that, in reviewing the Forest Service’s procedural decisions, a court should consider whether such are reasonable) (citing Portela v. Pierce, 650 F.2d 210, 213 (9th" }, { "docid": "13206213", "title": "", "text": "had already had adequate time to consider the matter. On December 7, 1993, the Attorney General concluded, in essence, and without explanation that no determination was required concerning the putative conflict between a 1990 executive order and Chang. Following receipt of the Attorney General’s statement the Court, pursuant to Rule 65(a)(2) Fed.R.CivJ?., ordered that the merits of the case should be accelerated and consolidated with the consideration of the preliminary injunction, and that the matter would be decided on December 16, 1993, the date on which the stay of the order of deportation and exclusion expires. Subsequently, the Court continued the effectiveness of the stay, pending issuance of this opinion. III. Analysis of the questions presented here properly begins with an elucidation of the well-established principle that an agency’s consistent interpretation of its statute or regulations is entitled to judicial deference. See Chevron U.S.A v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566-67, 100 S.Ct. 790, 797-98, 63 L.Ed.2d 22 (1980). This principle, put another way, holds that “[a] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. The rationale behind the Chevron principle is the notion that, within limits, Congress is entitled to delegate certain policy choices to agencies or Executive departments presumed to possess the pertinent expertise. Thus, the Chevron principle of judicial deference is “but a short-hand way of saying that the judiciary is duty bound to respect the origi nal choice of the political branches in vesting authority in an agency to interpret and enforce a statute.” Continental Air Lines Inc., v. Dep’t of Transp., 843 F.2d 1444, 1454 (D.C.Cir.1988). In this context, judicial deference to an agency’s interpretation of its own statutes and regulations can be viewed as one aspect of the intricate choreography that maintains the appropriate balance of power among the three co-equal branches of government. This choreography insures that, in the dance" }, { "docid": "19642551", "title": "", "text": "by an agency-\"calls for that exercise of independent judgment.\" Id.,at ----, 135 S.Ct., at 1219. Chevrondeference precludes judges from exercising that judgment, forcing them to abandon what they believe is \"the best reading of an ambiguous statute\" in favor of an agency's construction. Brand X, supra,at 983, 125 S.Ct. 2688. It thus wrests from Courts the ultimate interpretative authority to \"say what the law is,\" Marbury v. Madison,1 Cranch 137, 177, 2 L.Ed. 60 (1803), and hands it over to the Executive. See Brand X, supra,at 983, 125 S.Ct. 2688(noting that the judicial construction of an ambiguous statute is \"not authoritative\"). Such a transfer is in tension with Article III's Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies. U.S. Const., Art. III, § 1. In reality, as the Court illustrates in the course of dismantling EPA's interpretation of § 112(n)(1)(A), agencies \"interpreting\" ambiguous statutes typically are not engaged in acts of interpretation at all. See, e.g., ante,at 2708. Instead, as Chevronitself acknowledged, they are engaged in the \" 'formulation of policy.' \" 467 U.S., at 843, 104 S.Ct. 2778. Statutory ambiguity thus becomes an implicit delegation of rule-making authority, and that authority is used not to find the best meaning of the text, but to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress. Although acknowledging this fact might allow us to escape the jaws of Article III's Vesting Clause, it runs headlong into the teeth of Article I's, which vests \"[a]ll legislative Powers herein granted\" in Congress. U.S. Const., Art. I, § 1. For if we give the \"force of law\" to agency pronouncements on matters of private conduct as to which \" 'Congress did not actually have an intent,' \" Mead, supra,at 229, 121 S.Ct. 2164, we permit a body other than Congress to perform a function that requires an exercise of the legislative power. See Department of Transportation v. Association of American Railroads,575 U.S. ----, ---- - ----, 135 S.Ct. 1225, 1251-1252, 191 L.Ed.2d 153 (2015)(THOMAS, J., concurring in judgment)." }, { "docid": "20991991", "title": "", "text": "lawful presence and work authorizations through the INA's unambiguously specific and intricate provisions, we find no reason to allow DHS such leeway. There is no room among those specific and intricate provisions for the Secretary to \"exercise discretion in selecting a different threshold” for class-wide grants of lawful presence and work authorization under DAPA. Util. Air, 134 S.Ct. at 2446 n. 8. We merely apply the ordinary tools of statutory construction to conclude that Congress directly addressed, yet did not authorize, DAPA. See King, 135 S.Ct. at 2483 (noting that to determine whether Congress has expressed its intent, we \"must read the words in their context and with a view to their place in the overall statutory scheme”); City of Arlington v. F.C.C., - U.S. -, 133 S.Ct. 1863, 1868, - L.Ed.2d - (2013) (\"First, applying the ordinary tools of statutory construction, the court must determine whether Congress has directly spoken to the precise question at issue.”); Util. Air, 134 S.Ct. at 2441 (recognizing the \"fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two. See Chev ron, 467 U.S. at 844, 104 S.Ct. 2778; Mayo Found., 562 U.S. at 53, 131 S.Ct. 704. . Texas v. United States, 106 F.3d at 665 (\"Courts must give special deference to congressional and executive branch policy choices pertaining to immigration.”). . Medellin v. Texas, 552 U.S. 491, 532, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)). But see NLRB v. Noel Canning, - U.S. -, 134 S.Ct. 2550, 2560, 189 L.Ed.2d 538 (2014) (\"[T]he longstanding 'practice of the government' can inform our determination of ‘what the law is.'\" (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401, 4 L.Ed. 579 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177," }, { "docid": "5873161", "title": "", "text": "Act); Buckley v. Valeo, 424 U.S. 1, 134-35, 140, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (invalidating structure of Federal Election Commission); Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (invalidating provision requiring Senate consent to President’s removal of executive officer). Citing the fact that President Obama signed the Dodd-Frank Act that created the CFPB, some argue that the Executive Branch has somehow waived any objection to this Article II violation. But President George W. Bush signed the Sarbanes-Ox-ley Act that created the PCAOB. That fact did not deter the Supreme Court in Free Enterprise Fund. The Court firmly declared that “the separation of powers does not depend on the views of individual Presidents, nor on whether the encroached-upon branch approves the encroachment.” Free Enterprise Fund, 561 U.S. at 497, 130 S.Ct. 3138. A President cannot “choose to bind his successors by diminishing their powers.” Id. Some argue that the courts need not intervene to address the CFPB’s structural flaw because the CFPB is checked by Congress through Congress’s oversight power and ultimate control over appropriations. But Congress cannot supervise or direct the Director on an ongoing basis regarding what rules to issue, what enforcement actions to bring (or decline to bring), or how to resolve adjudications. In urging judicial deference to the single-Director structure, the CFPB also points out that the CFPB’s decisions are checked by the courts, so we should not worry too much about the CFPB's single-Director structure.' But much of what an agency does—determining what rules to issue within a broad statutory authorization and when, how, and against whom to bring enforcement actions to enforce the law—occurs in the twilight of discretion. Those discretionary actions have a critical impact on individual liberty. Yet courts do not review or only deferentially review such exercises of agency discretion. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Motor Vehicle Manufacturers Association of U.S., Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41-43, 103 S.Ct. 2856, 77 L.Ed.2d" }, { "docid": "22349628", "title": "", "text": "do not fulfill our duty to say what the law is, see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), by merely agreeing to Commerce’s interpretation of the statutory provision at issue if it is ‘reasonable,’ regardless of whether we think it correct. Rather, before granting an agency’s statutory interpretation such great deference (commonly referred to as ‘Chevron’ deference), we must first carefully investigate the matter to determine whether Congress’s purpose and intent on the question at issue is judicially ascertainable. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Only if, after this investigation, we conclude that Congress either had no intent on the matter, or that Congress’s purpose and intent regarding the matter is ultimately unclear, do we reach the issue of Chevron deference. See id.; cf. Muwwakkil v. Office of Personnel Management, 18 F.3d 921, 925 (Fed.Cir.1994) (“When an agency’s interpretation of a statute ... is contrary to the intent of Congress, as divined from the statute and its legislative history, we owe it no deference.”). Indeed, if we hastily ‘throw up our hands’ and declare that Congress’s intent is unclear, we abdicate our duty; in essence, we leave statutory construction to an Article II agency, rather than accept the responsibility the Constitution imposes on Article III courts. See Marbury, 5 U.S. (1 Cranch) at 177. To .ascertain whether Congress had an intention on the precise question at issue, we employ the “traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. The first and foremost “tool” to be used is the statute’s text, giving it its plain meaning. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579 (Fed.Cir.1990). Because a statute’s text is Congress’s final expression of its intent, if the text answers the question, that is the end of the matter. See Muwwakkil, 18 F.3d at 924 (“When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails.”); West Virginia Univ. Hosp.," }, { "docid": "22205174", "title": "", "text": "what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (emphasis added). Although it is true that the BIA is the authoritative arbiter of the meaning of the ambiguous provisions of the INA at issue here, Brand X, 545 U.S. at 983, 125 S.Ct. 2688, its role is considerably more circumscribed than that of an Article III court construing federal law (where no agency is entitled to deference) or a state’s high court construing its own law. That principle is vividly illustrated by the present situation. In Acosta, we issued a binding interpretation of ambiguous provisions of the INA, which was authoritative in this circuit at least until the agency issued a reasonable interpretation to the contrary. If the agency had never done so, Acosta would still be good law. Cf. Brand X, 545 U.S. at 983, 125 S.Ct. 2688. We construed the statute pursuant to “[t]he judicial Power” vested in us over “Cases ... arising under ... the Laws of the United States.” U.S. Const, art. Ill, § 1, § 2, cl. 1. The BIA’s authority to say what the law means, however, rests on the “executive Power” vested in the President and his general charge to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, § 1, § 3. We defer to an agency not because it is better situated to interpret statutes, but because we have determined that Congress created gaps in the statutory scheme that cannot be filled through interpretation alone, but require the exercise of policymaking judgment. See Chevron, 467 U.S. at 865, 104 S.Ct. 2778 (“[A]n agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”). “Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency" }, { "docid": "20991992", "title": "", "text": "statute must be read in their context and with a view to their place in the overall statutory scheme”). Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two. See Chev ron, 467 U.S. at 844, 104 S.Ct. 2778; Mayo Found., 562 U.S. at 53, 131 S.Ct. 704. . Texas v. United States, 106 F.3d at 665 (\"Courts must give special deference to congressional and executive branch policy choices pertaining to immigration.”). . Medellin v. Texas, 552 U.S. 491, 532, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)). But see NLRB v. Noel Canning, - U.S. -, 134 S.Ct. 2550, 2560, 189 L.Ed.2d 538 (2014) (\"[T]he longstanding 'practice of the government' can inform our determination of ‘what the law is.'\" (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401, 4 L.Ed. 579 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803))). . Andorra Bruno et al„ Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children 9 (July 13, 2012); see Charlotte J. Moore, Cong. Research Serv., ED206779, Review of U.S. Refugee Resettle•ment Programs and Policies 9, 12-14 (1980). . See Voluntary Departure for Out-of-Status Nonimmigrant H-l Nurses, 43 Fed.Reg. 2776, 2776'(Jan. 19, 1978) (deferring action on the removal of nonimmigrant nurses whose temporary licenses expired so that they could pass permanent licensure examinations); Memorandum from Michael Cronin, Acting Exec. Assoc. Comm'r, Office of Programs, INS, to Michael Pearson, Exec. Assoc. Comm’r, Office of Field Operations, INS 2 (Aug. 30, 2001) (directing that possible victims of the Victims of Trafficking and Violence Protection Act of 2000 (\"VTVPA”), Pub.L. No. 106-386, 114 Stat. 1464, “should not be removed from the United States until they have had the opportunity to avail themselves of the ... VTVPA,” including receipt of a T- or U-visa); Memorandum from Paul Virtue, Acting Exec." } ]

[ { "docid": "12432232", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. These appeals from decisions of the Tax Court present the question whether appellant met its burden of establishing that certain acquired intangible assets qualified for amortization for a limited period of time and that the length of this period was estimable with reasonable accuracy. The Tax Court held that appellant failed to meet its burden. We affirm. By written contract of sale S. S. Ballin Agency, Inc., purchased, for $156,-000, a business known as United Health Agency, a single proprietorship owned by Joseph Delman. The agency represented American Casualty Company in the sale and servicing of health and accident insurance policies. Transferred to appellant was the agency’s agreement with its insuring company; all contracts with agents and brokers; the right to expirations under the United Health Agency-American Casualty Company agreement; lists and records of customers or policy holders indicating policy expiration dates; all books, records, and documents of the agency; and the exclusive right to the use of the name, United Health Agency. Treating the purchase price as a cost of “earned commissions on renewal premiums,” appellant claimed a deduction for amortization under 26 U.S.C. § 167, contending that the assets had a limited useful life and thus qualified as an “intangible asset * * * to be of use in the business for only a limited period, the length of which can be estimated with reasonable accuracy.” Treas.Regs. 1.167(a)-3. The Commissioner disallowed the deduction and the Tax Court agreed. Although appellant persists in its contention that “only the mere right to commissions” was acquired, it argues that the label affixed to the transferred assets is immaterial. Thus, whether that which was purchased be regarded as “rights to commission” or “lists of expirations” is not important; what appellant deems critical is the proposition that because the assets had a limited useful life in the conduct of its business, appellant is entitled to the appropriate deduction for depreciation. Appellant emphasizes that it conducts its business by relying on leads obtained by advertising for a large volume of small individual policies, rather than concentrating on" } ]

[ { "docid": "13290975", "title": "", "text": "assumed that if this accident and health business was more than 50 percent of their business, as measured by their reserves, it could not be treated as a life insurance company. On the other hand, if their accident and health insurance were incidental and represented less than 50 percent of their business we treated them as a life insurance company. The issue presented by this appeal thus becomes a question of which scheme more properly taxes the total business arrangement. IY A life insurance company is defined in terms of a reserve-ratio qualification test. Section 801(a) provides: Life insurance company defined.— For purposes of this subtitle, the term “life insurance company” means an insurance company which is engaged in the business of issuing life insurance and annuity contracts (either separately or combined with health and accident insurance), or noncancellable contracts of health and accident insurance, if — ■ (1) its life insurance reserves (as defined in subsection (b)) , plus (2) unearned premiums, and unpaid losses (whether or not ascertained), on noncancellable life, health, or accident policies not included in life insurance reserves, comprises more than 50 percent of its total reserves (as defined in subsection (c)). The qualifying fraction can be expressed in simplified terms as follows: Qualifying reserves (numerator) Total reserves ( denominator) 1. Tabular reserves on life, annuity, and noncancellable accident and health policies 1. Tabular reserves on life, annuity, and noncancellable accident and health policies 2. Unearned premiums on non-cancellable life, health, or accident policies not included in (1) 2. Unearned premiums not included in (1) 3. Unpaid losses on noncancella-ble life, health, or accident policies not included in (1). 3. Unpaid losses not included in (1) 4. All other insurance reserves required by law. Alinco Life Ins. Co. v. United States, 373 F.2d 336, 350, 178 Ct.Cl. 813 (1967). Section 802(b) defines life insurance company taxable income as: The lesser of: (1) taxable investment income or (2) the gain from operations + 50% of the excess of gain from operations + the amount subtracted from policyholders surplus = Life Insurance Company Taxable Income (subject to" }, { "docid": "12919100", "title": "", "text": "set out in Section 242 so as to be taxed as such under Sections 242-245. The Board of Tax Appeals held that its life insurance reserves, built up from the excess of the early level premiums over the cost of the insurance to compensate for the later excess of cost over premium, precisely as the non-cancellable health and accident reserves are calculated, were “unearned premiums” within the meaning of Section 246(b) (5) and should be added to the pro rata unearned premium reserve for ordinary cancellable casualty policies. The question presented was analogous to the question here, and the Commissioner announced his formal acquiescence in the decision. X-2 C.B. 71 (1931). We agree with the conclusion of the Board that the holding “is in no way inconsistent with the wording or the purpose of that section [§ 246] and is economically sound”. The decision and reasoning are directly applicable here. The defendant, however, contends that the .additional reserve for non-cancellable health and accident policies is not to be added to unearned premiums in computing gross income, because Congress in the Revenue Act of 1926 made no provision for the deduction from gross premiums of insurance companies, other than life or mutual, of the net addition to reserve funds required by law, which had been allowed to all insurance companies prior to the Revenue Act of 1921. Close examination of the provisions of the Revenue Act of 1921 relating to insurance (which were re-enacted in the Revenue Acts of 1924 and 1926), and of their legislative history, discloses that no de-, parture was made from the previous system of taxing only the “earned premiums” of insurance companies. This had previously been accomplished by including all premiums in gross income and allowing the unearned portion represented by the net addition to reserve funds to be deducted. The new statute simply continued the same system, as far as insurance companies other than life or mutual were concerned, by defining underwriting income as “premiums earned” and providing for the computation of those premiums in Section 246(b) (5) by subtracting from gross premiums the “unearned" }, { "docid": "5392318", "title": "", "text": "\"accrual” does not conform to generally accepted accounting principles. For a more erudite description of insurance reserves, see Central National Life Ins. Co. of Omaha v. United States, 216 Ct.Cl. 290, 574 F.2d 1067 1978, 1 U.S.T.C. (CCH) ¶9378 at 83,984 (1978). . § 801. Definition of life insurance company (a) Life insurance company defined For purposes of this subtitle, the term \"life insurance company” means an insurance company which is engaged in the business of issuing life insurance and annuity contracts (either separately or combined with health and accident insurance), or noncancellable contracts of health and accident insurance, if— (1) its life insurance reserves (as defined in subsection (b)), plus (2) unearned premiums, and unpaid losses (whether or not ascertained), on noncancella-ble life, health, or accident policies not included in life insurance reserves, comprise more than 50 percent of its total reserves (as defined in subsection (c)). (b) Life insurance reserves defined (1) In general For purposes of this part, the term \"life insurance reserves\" means amounts— (A) which are computed or estimated on the basis of recognized mortality or morbidity tables and assumed rates of interests [sic], and (B) which are set aside to mature or liqui- . date, either by payment or reinsurance, future unaccrued claims arising from life insurance, annuity, and noncancellable health and accident insurance contracts (including life insurance or annuity contracts combined with non-cancellable health and accident insurance) involving, at the time with respect to which the reserve is computed, life, health, or accident contingencies. (2) Reserves must be required by law (c) Total reserves defined For purposes of subsection (a), the term \"total reserves” means— (1) life insurance reserves, (2) unearned premiums, and unpaid losses (whether or not ascertained), not included in life insurance reserves, and (3) all other insurance reserves required by law. 26 U.S.C. § 801 (1978 Supp.). . The outcome of this case turns on whether the term \"unpaid losses\" has the same meaning in the statute as it has in general use. To reduce confusion, we use quotation marks whenever we refer to the term in the statute and" }, { "docid": "13290961", "title": "", "text": "treaty as provided for [herein], and should the claims and expenses subsequently incurred and paid in connection with all business covered under this treaty then in force carried by STANDARD, plus one and seven-tenths per cent (l%o'%) of unearned gross premiums on such date of cancellation, exceed the unearned net premiums held by STANDARD on the date of cancellation, then NATIONAL [or UNITED] will, thirty (30) days after the expiry of all such insurance contribute to STANDARD a sum that would be necessary to reimburse STANDARD for the following items only to the extent that the total of such items exceed the unearned net premiums held by STANDARD on the date of said cancellation, but in no case more than 10% of the total premiums earned by NATIONAL [or UNITED] during the twelve (12) months immediately preceding the date of cancellation of this Contract: 1. One and seven-tenths percent (1%>%) of such gross unearned premiums. 2. STANDARD’S direct demonstrable expenses incurred after such effective date of cancellation. 3. Losses paid and incurred on all insurance written under this treaty not recovered through reinsurance with NATIONAL [or UNITED], The additional amount to be so retained by STANDARD, if any, shall be refunded to STANDARD by NATIONAL [or UNITED] on demand, any time before one (1) year after the expiration of the last of said policies. STANDARD shall have the right to retain all premiums unearned at the date of cancellation. II With respect to the agreement to rein-sure the H & A policies on an “earned” basis, at trial the parties stipulated as follows: National Life and United Life rein-sured credit accident and health insurance on a month-to-month basis, rather than for the full term of the policies, in order to avoid holding any unearned accident and health premium reserves and, therefore, reduce the amount of reserves which might be considered as nonqualifying reserves for the purpose of determining whether they were entitled to be taxed as life insurance companies under the reserve-ratio formula in § 801(a) of the Code. Standard reported the H & A reinsurance premiums not yet due" }, { "docid": "10411815", "title": "", "text": "of rules and regulations and that petitioner’s income tax returns for the same taxable years were not timely filed and that petitioner had not shown that the failure to timely file those returns was due to reasonable cause. Eespondent accordingly asserted 5-percent and 25-percent additions to the tax under sections 6653(a) and 6651(a) of the Code, respectively. Eespondent also disallowed deductions of $2,857.13 and $5,478.87, respectively, for expenses incurred by officers of petitioner on a trip to Hawaii in 1958 and for an operations loss carryback from 1962 to 1959. OPINION The first issue for decision is whether petitioner was a life insurance company within the meaning of section 801(a) during the years 1958 through 1961. Section 801, which, is applicable to all the years involved, provides in pertinent part: SEO. 801. DEFINITION OF LIFE INSURANCE COMPANY. (a) Live Insurance Company Defined. — -For purposes of this subtitle, the term “life insurance company” means an insurance company which is engaged in the business of issuing life insurance and annuity contracts (either separately or combined with health and accident insurance), or noneancellable contracts of health 'and accident insurance, if— (1) its life insurance reserves (as defined in subsection (b)), plus (2) unearned premiums, and unpaid losses (whether or not ascertained), on noneancellable life, health, or accident policies not included in life insurance reserves, comprise more than 50 percent of its total reserves (as defined in subsection (c)). (b) Lute Insurance Reserves Defined.— (1) In general. — For purposes of this part, the term “life insurance reserves” means amounts— (A) which are computed or estimated on the basis of recognized mortality or morbidity tables and assumed rates of interest, and (B) which are set aside to mature or liquidate, either by payment or reinsurance, future unaccrued claims arising from life insurance, annuity and noneancellable health and 'accident insurance contracts (including life insurance or annuity contracts combined with noneancellable health and accident insurance) involving, at the time with respect to which the reserve is computed, life, health, or accident contingencies. ******* (e) Total Reserves Defined. — For purposes of subsection (a), the term" }, { "docid": "13290989", "title": "", "text": "Massachusetts Protective Ass’n v. United States, 114 F.2d 304, 309 (1st Cir. 1940). In 1942, Congress provided that, in determining whether an insurer should be taxed as a life insurance company, noncancellable H & A contracts should be considered to be a part of the insurer’s business which was in the nature of life insurance. Revenue Act of 1942, ch. 619, § 163, 56 Stat. 798, The type of noncancellable policy in contemplation and the reserves attendant thereto were set out by the Senate Finance Committee: Since noncancellable contracts of health and accident insurance require the accumulation of substantial reserves against increased future risks, the writing of such insurance is analogous to life insurance and the definition has been changed to permit such companies to be taxed as life insurance companies. The unearned premiums and unpaid losses on noncancela-ble life, health, or accident policies, not included in life insurance reserves, are added to such reserves in determining whether a company is to be considered a life insurance company. The life insurance reserves defined in subsection (c) (2) as they pertain to noncancelable health and accident insurance policies are those amounts which must be reserved, in addition to unearned premiums, to provide for the additional cost of carrying such poli cies in the later years when the insured will be older and subject to greater risk and when the cost of carrying the risk will be greater than the premiums then being received. As the term is used in the industry, a noncaneelable insurance policy means a contract which the insurance company is under an obligation to renew at a specified premium, and with respect to which a reserve in addition to the unearned premium must be carried to cover the renewal obligation. S.Rep. No. 1631, 77th Cong., 2d Sess. 144-45 (1942). In the present statute, this change is reflected in § 801(a) (2). Plaintiffs attack Treasury Regulation ' § 1.801-3, which defines “noneaneel-lable” for purposes of the insurance company qualification ratio, as an invalid exercise of the Treasury’s rule-making authority because it has no support in the legislative history of" }, { "docid": "13291000", "title": "", "text": "approved claims where the date of payment is in the future) and the other to reflect claims that had been incurred but not yet reported.' . Group Life & Health Ins. Co. v. United States, 434 F.2d 115 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112 (1971). . Senate Hearings Before the Committee on Finance on Internal Revenue, 67th Cong., 1st Sess. 85 (1921). . Section 801(b) defines life insurance reserves in pertinent part as follows : (1) In general. — For purposes of this part, the term “life insurance reserves” means amounts— (A) which are computed or estimated on the basis of recognized mortality or morbidity tables and assumed rates of interest, and (B) which are set aside to mature or liquidate, either by payment or reinsurance, future unacerued claims arising from life insurance, annuity, and noncancellable health and accident insurance contracts (including life insurance or annuity con- . tracts combined with noncancellable health and accident insurance) involving, at the time with respect to which the reserve is computed, life, health, or accident contingencies. . See notes 14, 15, 16, 17 on page 476. 14. Section 801(c) defines “total reserves” as: (1) life insurance reserves, (2) unearned premiums, and unpaid losses (whether or not ascertained), not included in life insurance reserves, and (3) all other insurance reserves required by law. . Section 804 defines taxable investment income essentially as that portion of the return on investments which is not applied to the company’s insurance reserves (“the policyholders’ share of any item shall be that percentage obtained by dividing the policy Ins. Co., 381 U.S. 233, 239, 85 S.Ct. 1379, 14 and other contract liability by the investment yield”). See United States v. Atlas L.Ed.2d 358 (1965). . Section 809 defines gain from operations to include both the company’s share of investment yield and underwriting income. See Jefferson Standard Life Ins. Co. v. United States, 408 F.2d 842, 845 (4th Cir. 1969). . The taxpayers reported the following amounts on their tax returns pursuant to 26 U.S.C. § 802(b) : National Life 1959 United" }, { "docid": "13290988", "title": "", "text": "& A reserve attributable to taxpayers for tax purposes, it is necessary to pass on two alternative contentions not reached by the district court. A. Cancellability of H & A Insurance Taxpayers argue that the H & A coverage is “noncancellable” as that term is used in § 801(a). The significance of this argument is that, for purposes of the reserve ratio test, unearned premium reserves on noncancellable H & A coverage are includible in both the numerator and the denominator of the reserve franction, whereas all other H & A coverage is includible only in the numerator. Where an insurer is contractually bound to a long term noncancellable or guaranteed renewable H & A policy in exchange for a level annual premium, it faces an investment requirement similar to life insurance coverage. While over a short term the health of the policyholder is relatively constant, over a long term the insurance risk increases. Consequently, the company must set up a reserve in addition to the unearned premium reserve, that is, an equalization fund. See Massachusetts Protective Ass’n v. United States, 114 F.2d 304, 309 (1st Cir. 1940). In 1942, Congress provided that, in determining whether an insurer should be taxed as a life insurance company, noncancellable H & A contracts should be considered to be a part of the insurer’s business which was in the nature of life insurance. Revenue Act of 1942, ch. 619, § 163, 56 Stat. 798, The type of noncancellable policy in contemplation and the reserves attendant thereto were set out by the Senate Finance Committee: Since noncancellable contracts of health and accident insurance require the accumulation of substantial reserves against increased future risks, the writing of such insurance is analogous to life insurance and the definition has been changed to permit such companies to be taxed as life insurance companies. The unearned premiums and unpaid losses on noncancela-ble life, health, or accident policies, not included in life insurance reserves, are added to such reserves in determining whether a company is to be considered a life insurance company. The life insurance reserves defined in subsection" }, { "docid": "23100252", "title": "", "text": "received. Since these expenses already have been paid, the only future liabilities for which a reserve strictly is needed are claims. Nevertheless, state insurance departments uniformly require that A&H reserves be set up equivalent to the gross unearned premium. A&H reserves thus stand on a different footing from life insurance reserves, which are typically computed on the basis of mortality tables and assumed rates of interest. See § 801 (b). Life reserves contain no loading element. Although gross unearned premium reserves may not strictly comport with a logic of risk, from the viewpoint of insurance regulators this approach yields advantages in simplicity of computation. Establishing the larger reserve also tends to assure conservative operation and the availability of means to pay refunds in the event of cancellation. See generally Mayerson, Ensuring the Solvency of Property and Liability Insurance Companies, in Insurance, Government and Social Policy 146, 171-172 (S. Kimball & H. Denenberg eds. 1969); Dickerson 604-606; Utah Home Fire Ins. Co. v. Commissioner, 64 F. 2d, at 764. Since Congress thus has not adhered completely to the policy underlying its choice to tax life insurance companies differently from other insurance companies, we believe the court in Economy Finance Corp. v. United States, 501 F. 2d 466 (CA7 1974), relied too heavily on its reading of that policy in finding that unearned premium reserves should be attributed from the ceding company to the reinsurer in a Treaty I type agreement. See Penn Security, 207 Ct. Cl, at 608, 524 F. 2d, at 1162. Section 242 of the 1921 Act, 42 Stat. 261, provided: “That when used in this title the term ‘life insurance company’ means an insurance company engaged in the business of issuing life insurance and annuity contracts (including contracts of combined fife, health, and accident insurance), the reserve funds of which held for the fulfillment of such contracts comprise more than 50 per centum of its total reserve funds.” In 1942 Congress did add a definition of “total reserves,” specifying the same three elements that appear in the definition today. Revenue Act of 1942, § 163, 56 Stat. 867," }, { "docid": "12919099", "title": "", "text": "then understood. Home Title Insurance Co. v. United States, 2 Cir., 1931, 50 F.2d 107, 111. When the Revenue Act of 1926 re-enacted Section 246(b) (1) providing that “gross income” should be computed on the basis of the statement of the National Convention of Insurance Commissioners, the blank, as shown above, expressly provided for the deduction of the additional reserve for non-cancellable health and accident insurance in arriving at “earned premiums”. Congress, in re-enacting this section, must have been referring to this current statement including the deduction of this reserve. The close analogy of non-cancellable health and accident insurance, where the risk increases and the premium remains constant, to renewable term level premium life insurance has already been noted. In Travelers Equitable Insurance Co. v. Commissioner, supra, a life insurance company was taxed under Section 246 of the Revenue Acts of 1921 and 1924 (identical with the same section of the 1926 Act) as an insurance company, other than life or mutual, as it did not come within the definition of a life insurance company set out in Section 242 so as to be taxed as such under Sections 242-245. The Board of Tax Appeals held that its life insurance reserves, built up from the excess of the early level premiums over the cost of the insurance to compensate for the later excess of cost over premium, precisely as the non-cancellable health and accident reserves are calculated, were “unearned premiums” within the meaning of Section 246(b) (5) and should be added to the pro rata unearned premium reserve for ordinary cancellable casualty policies. The question presented was analogous to the question here, and the Commissioner announced his formal acquiescence in the decision. X-2 C.B. 71 (1931). We agree with the conclusion of the Board that the holding “is in no way inconsistent with the wording or the purpose of that section [§ 246] and is economically sound”. The decision and reasoning are directly applicable here. The defendant, however, contends that the .additional reserve for non-cancellable health and accident policies is not to be added to unearned premiums in computing gross" }, { "docid": "13290992", "title": "", "text": "premium reserves because the change in policyholders’ health over the term of these policies was, as plaintiffs’ expert testified, imperceptible. Taxpayers argue that, although a separate “additional reserve” is not established, the obligation is built into the net premium (morbidity element) and thus into the unearned premium reserve. If the change in health is imperceptible, it is not apparent why a factor designed to equalize the cost of carrying the insurance risk would be included when that risk remains constant. Even assuming that taxpayers built a factor into the premiums for increasing risk over time, this must have been in effect a charging of a “nonlevel” premium since no interest was expected on the temporary accumulation under the debenture arrangement. This factor differs substantially from the usual equalization fund, which depends on investment returns to insure the adequacy of the reserve against contract obligations. The interest portion necessary for policy obligations is recognized as an integral part of such reserves and therefore exempted from tax. Taxpayers further contend that in the insurance industry “noncancellable” means a policy which the insurance company cannot cancel and that Congress intended the meaning attached by the business which evolved the term. But Congress was specific as to the combined features of a “noncancellable” policy for tax purposes. Taxpayers’ policies do not fit within the framework of the statutory definition. Plaintiffs also argue that since the H & A coverage could only be obtained if life insurance was also purchased, this constitutes a “health and accident contract combined with a life insurance contract.” Even assuming these were combined contracts, taxpayers still fail to meet the equalization fund requirement. See Rev.Rul. 60-54, 1960-1 Cum.Bull. 266. This requirement is perfectly consistent with the tax objective of § 801 and the expressed intent of Congress. Group Life & Health Ins. Co. v. United States, 434 F.2d 115 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112. See also Rev.Rul. 71-367, 1971-2 Cum. Bull. 258 (H & A policies do not qualify as guaranteed renewable during the first three years where reserves consisted of" }, { "docid": "13290993", "title": "", "text": "a policy which the insurance company cannot cancel and that Congress intended the meaning attached by the business which evolved the term. But Congress was specific as to the combined features of a “noncancellable” policy for tax purposes. Taxpayers’ policies do not fit within the framework of the statutory definition. Plaintiffs also argue that since the H & A coverage could only be obtained if life insurance was also purchased, this constitutes a “health and accident contract combined with a life insurance contract.” Even assuming these were combined contracts, taxpayers still fail to meet the equalization fund requirement. See Rev.Rul. 60-54, 1960-1 Cum.Bull. 266. This requirement is perfectly consistent with the tax objective of § 801 and the expressed intent of Congress. Group Life & Health Ins. Co. v. United States, 434 F.2d 115 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112. See also Rev.Rul. 71-367, 1971-2 Cum. Bull. 258 (H & A policies do not qualify as guaranteed renewable during the first three years where reserves consisted of only gross unearned premiums but qualify thereafter where additional separate reserve established). B. Correct Measurement of the Unearned Premium Reserve Taxpayers’ final contention is that only the morbidity portion (net premium) of unearned premium reserves should be added to the denominator (total reserves) of the reserve-ratio fraction. They argue that, since the life insurance reserves included in the ratio are based on net premiums (mortality element), including only the morbidity element of H & A unearned premium reserves is the only way to provide an adequate basis for comparison of the two types of businesses represented by reserves. “Total reserves” are defined as “(1) life insurance reserves, (2) unearned premiums, and unpaid losses and (3) all other insurance reserves required by law.” 26 U.S.C. § 801(c). Treasury Regulation § 1.801-3 (e) defines unearned premiums as “those amounts which shall cover the cost of carrying the insurance risk for the period for which the premiums have been paid in advance.” Revenue Ruling 69-270 (1969-1) Cum. Bull. 185), dealing with qualification under § 801(a), cites numerous cases" }, { "docid": "13290976", "title": "", "text": "accident policies not included in life insurance reserves, comprises more than 50 percent of its total reserves (as defined in subsection (c)). The qualifying fraction can be expressed in simplified terms as follows: Qualifying reserves (numerator) Total reserves ( denominator) 1. Tabular reserves on life, annuity, and noncancellable accident and health policies 1. Tabular reserves on life, annuity, and noncancellable accident and health policies 2. Unearned premiums on non-cancellable life, health, or accident policies not included in (1) 2. Unearned premiums not included in (1) 3. Unpaid losses on noncancella-ble life, health, or accident policies not included in (1). 3. Unpaid losses not included in (1) 4. All other insurance reserves required by law. Alinco Life Ins. Co. v. United States, 373 F.2d 336, 350, 178 Ct.Cl. 813 (1967). Section 802(b) defines life insurance company taxable income as: The lesser of: (1) taxable investment income or (2) the gain from operations + 50% of the excess of gain from operations + the amount subtracted from policyholders surplus = Life Insurance Company Taxable Income (subject to tax at the normal corporate tax and surtax rate, 26 U.S.C. § 802(a)(1)) It can be seen that when gain from operations exceeds taxable investment income, underwriting income basically constitutes the excess. The taxed 50 percent of gain from operations is added to the shareholders surplus account, 26 U.S.C. § 815(d). The untaxed 50 percent of gain from operations is added to the policyholders surplus account (26 U. S.C. § 815(c)), which amounts are taxed only if and when they are distributed to shareholders. 26 U.S.C. § 815(a), (d)(1). As the government has noted, “[T]he immediate deferral of 50 percent of the underwriting income and the deduction amounts and the corresponding taxation of those amounts only when and if the company takes appropriate actions represents perhaps the major benefit (on an overall industry basis) flowing from qualification as a life insurance company.” Although taxpayers did not take advantage of the 50 percent deferral of gains from operations in the years in question, this potential offers a substantial tax benefit. Deferral is allowed because of the" }, { "docid": "23100242", "title": "", "text": "maintain the disputed unearned premium reserves. VI For the reasons stated, we hold for the taxpayers. The judgments in Nos. 75-1221 and 75-1285 are affirmed. The judgment in No. 75-1260 is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Section 801 (a) provides: “ (a) Life insurance company defined. “For purposes of this subtitle, the term “life insurance company” means an insurance company which is engaged in the business of issuing life insurance and annuity contracts (either separately or combined with health and accident insurance), or noncancellable contracts of health and accident insurance, if— “(1) its life insurance reserves (as defined in subsection (b)), plus “(2) unearned premiums, and unpaid losses (whether or not ascer tained), on noncancellable life, health, or accident policies not included in life insurance reserves, “comprise more than 50 percent of its total reserves (as defined in subsection (c)).” As may be seen, the statement in the text is somewhat oversimplified. Reserves for noncancellable life, health, or accident policies are added to life insurance reserves for purposes of computing the ratio. See generally Alinco Life Ins. Co. v. United States, 178 Ct. Cl. 813, 831-847, 373 F. 2d 336, 345-355 (1967). Since none of these cases, as they reach us, involves any issue concerning noncancellable policies, we may ignore this factor. Statutory citations, unless otherwise indicated, are to the Internal Revenue Code of 1954. The major benefit is that only 50% of underwriting income is taxed in the year of receipt, the balance being taxed only when made available to stockholders. The scheme for taxing life insurance companies is described in United States v. Atlas Life Ins. Co., 381 U. S. 233 (1965), and Jefferson Standard Life Ins. Co. v. United States, 408 F. 2d 842, 844-846 (CA4), cert. denied, 396 U. S. 828 (1969). Stock companies that fail to qualify as life insurance companies are taxed under the less favorable provisions of § 831. Most mutual insurance companies other than life are taxed under § 821, a section not implicated here since taxpayers are all stock" }, { "docid": "13290991", "title": "", "text": "§ 801. Treasury Regulation § 1.801-3 provides in pertinent part: (c) Noncaneellable life, health, or accident insurance policy. The term “noncaneellable life, health, or accident insurance policy” means a health and accident contract, or a health and accident contract combined with a life insurance or annuity contract, which the insurance company is under an obligation to renew or continue at a specified premium and with respect to which a reserve in addition to the unearned premiums (as defined in paragraph (e) of this section) must be carried to cover that obligation. We do not perceive how this regulation can be said to lack legislative support with regard to the relevant feature — namely, a policy “with respect to which a reserve in addition to the unearned premiums . . . must be carried to cover that obligation.” It is the necessity of an equalization fund in long term H & A coverage which compels the same treatment as that accorded life insurance reserves. Taxpayers did not establish an equalization fund in addition to the unearned premium reserves because the change in policyholders’ health over the term of these policies was, as plaintiffs’ expert testified, imperceptible. Taxpayers argue that, although a separate “additional reserve” is not established, the obligation is built into the net premium (morbidity element) and thus into the unearned premium reserve. If the change in health is imperceptible, it is not apparent why a factor designed to equalize the cost of carrying the insurance risk would be included when that risk remains constant. Even assuming that taxpayers built a factor into the premiums for increasing risk over time, this must have been in effect a charging of a “nonlevel” premium since no interest was expected on the temporary accumulation under the debenture arrangement. This factor differs substantially from the usual equalization fund, which depends on investment returns to insure the adequacy of the reserve against contract obligations. The interest portion necessary for policy obligations is recognized as an integral part of such reserves and therefore exempted from tax. Taxpayers further contend that in the insurance industry “noncancellable” means" }, { "docid": "9441944", "title": "", "text": "any lapses which result from legal cancellations, from policy holders dying or moving to another district, from underwriting cancellations or from the sale of insured property. Nor do the ratios take into consideration new policies added during the period, such policies being reflected in subsequent measuring periods. Farmers does, however, keep other records which indicate the percentage loss over each measuring period due to cancellations or other terminations of existing policies. In his joint income tax return for the years 1966 and 1967, Taxpayer and his wife claimed an annual amortization deduction of $12,367 with respect to the rights which he had acquired pursuant to the agreement of sale he had executed with Swofford. The Commissioner denied this deduction on the ground that Taxpayer had purchased intangible contract rights, equivalent to goodwill, having an indeterminate useful life. The Tax Court upheld the Commissioner on the ground that the assets acquired by Taxpayer did not meet the requirements for amortization under the Code and applicable regulations. 26 U.S.C. § 167 (a); T.R. 1.167(a)-3. The basis for the Tax Court’s opinion was that Swofford could not have transferred rights to renewal commissions because under his district manager’s appointment agreement these rights had remained at all times the property of Farmers. Rather, Taxpayer was held to have acquired the opportunity to be appointed district manager of an ongoing insurance business when Swofford ceased to hold that position with Farmers. Given that Taxpayer’s appointment was of indefinite duration, and that he fully expected to sell his management contract at such time in the future as he terminated his relationship with Farmers for more than he had paid Swofford, the Tax Court determined that Taxpayer had failed to establish either that the rights he had acquired constituted a wasting asset or that the asset had a determinable life span over which it could be amortized. Section 167(a) of the Internal Revenue Code, 26 U.S.C. § 167(a), permits as a deduction a reasonable allowance for the exhaustion, wear and tear, or obsolescence of property used by the taxpayer for the production of income in a trade" }, { "docid": "13290990", "title": "", "text": "(c) (2) as they pertain to noncancelable health and accident insurance policies are those amounts which must be reserved, in addition to unearned premiums, to provide for the additional cost of carrying such poli cies in the later years when the insured will be older and subject to greater risk and when the cost of carrying the risk will be greater than the premiums then being received. As the term is used in the industry, a noncaneelable insurance policy means a contract which the insurance company is under an obligation to renew at a specified premium, and with respect to which a reserve in addition to the unearned premium must be carried to cover the renewal obligation. S.Rep. No. 1631, 77th Cong., 2d Sess. 144-45 (1942). In the present statute, this change is reflected in § 801(a) (2). Plaintiffs attack Treasury Regulation ' § 1.801-3, which defines “noneaneel-lable” for purposes of the insurance company qualification ratio, as an invalid exercise of the Treasury’s rule-making authority because it has no support in the legislative history of § 801. Treasury Regulation § 1.801-3 provides in pertinent part: (c) Noncaneellable life, health, or accident insurance policy. The term “noncaneellable life, health, or accident insurance policy” means a health and accident contract, or a health and accident contract combined with a life insurance or annuity contract, which the insurance company is under an obligation to renew or continue at a specified premium and with respect to which a reserve in addition to the unearned premiums (as defined in paragraph (e) of this section) must be carried to cover that obligation. We do not perceive how this regulation can be said to lack legislative support with regard to the relevant feature — namely, a policy “with respect to which a reserve in addition to the unearned premiums . . . must be carried to cover that obligation.” It is the necessity of an equalization fund in long term H & A coverage which compels the same treatment as that accorded life insurance reserves. Taxpayers did not establish an equalization fund in addition to the unearned" }, { "docid": "13290974", "title": "", "text": "gross premium is calculated, the short term opportunity to invest unearned premium reserves is not considered significant. Consequently, underwriting income is the primary source of income. See 8 Mer-tens, Law of Federal Income Taxation § 44.17 (1970). It is this long term investment feature of life insurance companies which mandates special tax treatment. Until the life contract has been completely performed, it is not possible to ascertain the amount of income currently earned. For all other insurance contracts, where the event insured against may never occur and the risk of occurrence is relatively constant, the income derived from each policy period is currently capable of ascertainment. Thus in the instant case, the income taxpayers derived from H & A reinsurance is subject to different'tax considerations than that derived from life reinsurance. The problem arises because Congress chose not to tax the earnings from each type of insurance business separately. Some companies mix with their life business accident and health insurance. It is not practicable for all companies to disassociate those businesses so that we have assumed that if this accident and health business was more than 50 percent of their business, as measured by their reserves, it could not be treated as a life insurance company. On the other hand, if their accident and health insurance were incidental and represented less than 50 percent of their business we treated them as a life insurance company. The issue presented by this appeal thus becomes a question of which scheme more properly taxes the total business arrangement. IY A life insurance company is defined in terms of a reserve-ratio qualification test. Section 801(a) provides: Life insurance company defined.— For purposes of this subtitle, the term “life insurance company” means an insurance company which is engaged in the business of issuing life insurance and annuity contracts (either separately or combined with health and accident insurance), or noncancellable contracts of health and accident insurance, if — ■ (1) its life insurance reserves (as defined in subsection (b)) , plus (2) unearned premiums, and unpaid losses (whether or not ascertained), on noncancellable life, health, or" }, { "docid": "17851487", "title": "", "text": "202(a) of the 1939 Code, as amended in 1942, 56 Stat. at p. 870, to mean “the normal-tax net income minus the reserve and other policy liability credit provided in subsection (b) [of section 202] and flus the amount of the adjustment for certain reserves frovided in subsection (c) [of section 202]” [Emphasis supplied.] Subsection (c) of section 202, as amended in 1942, 56 Stat. at p. 870, defined the phrase “adjustment for certain reserves” in the following language : “(c) Adjustment for certain reserves. — In the case of a life insurance company writing contracts other than life insurance or annuity contracts (either separately or combined with noncancellable health and accident insurance), the term ‘adjustment for certain reserves’ means an amount equal to 3]4 per centum of the unearned premiums and unpaid losses on such other contracts which are not included in life insurance reserves. For the purposes of this subsection such unearned premiums shall not be considered to be less than 25 per centum of the net premiums written during the taxable year on such other contracts. In preparing its income tax return for the year 1949, and in computing “the amount of the adjustment for certain reserves” that was to be added to its normal-tax net income in accordance with section 202(c) of the Internal Revenue Code of 1939, as amended, plaintiff, with respect to the item of “unpaid losses,” included 3)4 percent of the amount ($1,078,876.87) held by it as reserves against unaccrued liabilities arising from its cancellable health and accident insurance contracts. Plaintiff did not include in this computation 3)4 percent of the amount ($2,469,553.50) of its accrued but unpaid liabilities arising from such contracts. Subsequently, the Internal Revenue Service assessed a deficiency in plaintiff’s Federal income tax for 1949, based upon an administrative determination that there should be included in plaintiff’s “adjustment for certain reserves” 3)4 percent of the $2,469,553.50 representing the amount of plaintiff’s accrued but unpaid liabilities in respect of unsettled policy claims on cancellable health and accident contracts. This deficiency, in the amount of $30,498.99, plus interest thereon in the amount" }, { "docid": "23640347", "title": "", "text": "in 1942, 56 ■Stat. at p. 870, to mean “the normal-tax net income z minus the reserve and other policy liability credit provided in subsection (b) [of section 202] and plus the amount of the adjustment for certain reserves provided in subsection (c) [of section 202]” [Emphasis supplied.] Subsection (c) of section 202, as amended in 1942, 56 Stat. at p. 870, defined the phrase “adjustment for certain reserves” in the following language: “(c) Adjustment for certain reserves. — In the case of a life insurance company writing contracts other than life insurance or annuity contracts (either separately or combined with noncancellable health and accident insurance), the term ‘adjustment for certain reserves’ means an amount equal to 3)4 per centum of the unearned premiums and unpaid losses on such other contracts which are not included in life insurance reserves. For the purposes of this subsection such unearned premiums shall not be considered to be less than 25 per centum of the net premiums written during the taxable year on. such other contracts.” In preparing its income tax return for the year 1949, and in computing “the amount of the adjustment for certain reserves” that was to be added to its normal-tax net income in accordance with section 202(c) of the Internal Revenue Code of 1939, as amended, plaintiff, with respect to the item of “unpaid losses,” included 3)4 percent of the amount ($1,-078, 876.87) held by it as reserves against unaccrued liabilities arising from its cancellable health and accident insurance contracts. Plaintiff did not include in this computation 3)4 percent of the amount ($2,469,553.50) of its accrued but unpaid liabilities arising from.such contracts. Subsequently, the Internal Revenue Service assessed a deficiency in plaintiff’s Federal income tax for 1949, based upon an administrative determination that there should be included in plaintiff’s “adjustment for certain reserves” 3)4 percent of the $2,469,553.50 representing the amount of plaintiff’s accrued but unpaid liabilities in respect of unsettled policy claims on cancellable health and accident contracts. This deficiency, in the amount of $30,498.99, plus interest thereon in the amount of $8,274.84, or a total of $38,773.83," } ]

[ { "docid": "8345645", "title": "", "text": "of the law, thereby insuring that highly qualified attorneys are attracted to the practice of bankruptcy law,” In re D’Lites of America, 92 B.R. 554, 556 (Bankr.N.D.Ga.1988); see also McCombs, 751 F.2d at 288; Carter, 101 B.R. at 171. Non-bankruptcy attorneys typically bill their travel time at the full hourly rate because it precludes them from engaging in other billable professional work, Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir.1984); In re Pine, 705 F.2d 936, 938 (7th Cir.1983). Because bankruptcy attorneys are no less entitled to compensation for opportunity costs, travel time should be considered as part of the total hours spent serving the client and should be reimbursed at the full hourly rate. Attorneys may not be as productive while travelling, but § 330(a)(1) does not demand that productivity be considered when awarding fees. Instead, as long as travel is necessary and the rate is reasonable, that provision is satisfied, see Carter, 101 B.R. at 173; In re Frontier Airlines, 74 B.R. 973, 979 (Bankr.D.Colo.1987). Of course,. reasonableness is an important factor. If, for example, the trip is unnecessary or the attorney would not have otherwise billed out the time, compensation is not called for, Rose Confections, 816 F.2d at 396; Henry, 738 F.2d at 194. Similarly, if the method of travel is overly luxurious or if travel fees become too large a percentage of the total requested compensation, the travel compensation should be reduced, Henry, 738 F.2d at 396; Carter, 101 B.R. at 173. These concerns are not raised in the present ease, however. Accordingly, it is ORDERED that Debtors’ counsel is entitled to full compensation for his travel time to the Newnan Division as set out in the Application. IT IS SO ORDERED." } ]

[ { "docid": "3720087", "title": "", "text": "of fees typically charged, and may reduce the requested fees accordingly. It is not necessary for the court to find that the time spent on any given task was excessive before reducing the award. In re Howell, 226 B.R. 279, 280 (Bankr.M.D.Fla.1998) (an hour-by-hour review in standard Chapter 13 cases would be a waste of judicial resources because such cases are susceptible to standard rates); In re Shamburger, 189 B.R. 965, 973 (Bankr.N.D.Ala.l995)(citing cases holding that hour-by-hour analysis of fees is not required where application is voluminous). Here, the court found that while the case involved tax matters, it presented no issues that were novel or required skill not common to all Chapter 13 cases. For this reason, the court determined that the total fees requested were unreasonable, and it appropriately reduced fees to an amount— determined by hours and rate — to be reasonable. There is no basis to find error in the court’s conclusion. Counsel also challenges the court’s holding that it was unreasonable to charge the full hourly rate for travel time in a routine Chapter 13 case, and counsel asserts that by disallowing full fees for travel time, the court has impinged on counsel’s ability to serve his clients and has placed him at a competitive disadvantage. While there is authority to support an award of compensation at the full hourly rate for attorney travel time, (see In re Zepecki, 224 B.R. 907, 911 (Bankr.E.D.Ark.1998); In re Braddy, 195 B.R. 365, 368 (Bankr.E.D.Mich.1996) (addressing issues of competitive disadvantage if travel time is not reimbursed at the full rate)), other authorities equally support the conclusion that attorneys should not be compensated at the full hourly rate while traveling because travel time is not time productively providing “legal services.” In re Anderson Grain Corp., 222 B.R. 528, 532 (Bankr.N.D.Tex.1998) (ludicrous to charge full hourly rates for travel time); In re Bennett Funding Group, Inc., 213 B.R. 234, 251 (Bankr.N.D.N.Y.1997) (allowing one-half normal rate unless work performed during the travel); In re Automobile Warranty Corp., 138 B.R. 72, 78 (Bankr.D.Colo.1991) (collecting cases with varying approaches). The Eighth Circuit has" }, { "docid": "22598799", "title": "", "text": "Lafayette Radio Electronics Corp., 16 B.R. 360, 362 (Bkrtcy.E.D.N.Y.1982). This applicant, an out-of-state attorney, has billed the debtor’s estate for 108.9 hours of time spent in transit, representing almost one-sixth of his total time, at his full hourly rate of $90.00. In addition, he has claimed the expenses of this traveling, including the expense of flying by private airplane from Albany, New York, to Vermont. Only a small fraction of this time in traveling involved legal work en route. Some Courts have held that travel time is inherently not compensable. In re Givliano Verna, Inc., 23 C.B.C. 360, 370 (E.D.Pa.1980); In re Seneca Oil Company, 65 B.R. 902, 909 (Bkrtcy.W.D.Okl.1986); In re Pacific Express, Inc., 56 B.R. 859, 865, 14 C.B.C.2d 157 (Bkrtcy.E.D.Cal.1985); In re Lafayette Radio Electronics Corp., 16 B.R. 360, 361 (Bkrtcy.E.D.N.Y.1982). Compare In re Perros, 14 B.R. 515, 518 (Bkrtcy.E.D.N.Y.1981) (paralegal’s travel time disallowed). Others, including this one, have reduced the fees for travel time. In re International Coins & Currency, Inc., 22 B.R. 127, 130 (Bkrtcy.D.Vt.1982); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 582 (Bkrtcy.D.Utah 1985); In re United Rockwool, Inc., 32 B.R. 558, 561 (Bkrtcy.E.D.Va.1983). See Vermont Local Bankruptcy Rule 13. (Time spent for local travel, defined as less than one hour, may not be billed to the estate.) While we recognize the reality that a lawyer’s time is the lawyer’s stock in trade; we believe that local travel time is an overhead expense built into a lawyer’s hourly rate. Time spent in excess of this parameter must be compensated. To hold otherwise is to penalize unjustly the bankruptcy practitioner. We now hold that time spent traveling to or from a single location exceeding one hour or longer may be compensated at one-half the attorney’s or other professional’s hourly rate. Compare In re Taylor, 66 B.R. 390, 397 (Bkrtcy.W.D.Pa.1986) (payment of a fifty percent rate for travel time is more than charitable); In re Watson Seafood & Poultry Company, Inc., 40 B.R. 436, 443 (Bkrtcy.E.D.N.C.1984) (travel time compensated at one-half hourly rate). Of course, time reasonably spent performing appropriate work on the case while" }, { "docid": "13934968", "title": "", "text": "TIME Courts are divided on how travel time should be treated. Some courts hold that travel time should be compensated at 50% of the attorney’s normal hourly rate. In re Taylor, 66 B.R. 390 (Bankr.W.D.Pa.1986). However, other courts have refused to discount travel time. In re Frontier Airlines, Inc., 74 B.R. 973 (Bankr.D.Colo. 1987). This court has previously held that travel time should be billed at a reduced rate. In re Microwave Products of America, 104 B.R. 900 (Bankr.W.D.Tenn.1989). EXPENSES All expenses must be adequately documented in order to be reimbursed, and must be incurred by a “professional person” under § 327(a) or § 1103, 11 U.S.C. § 330(a). In re Washington Mfg. Co., 101 B.R. 944 (Bankr.M.D.Tenn.1989). Further, time entries for telephone calls, conferences, research, etc., must indicate the persons involved, and the subject matter. In re Pettibone Corp., 74 B.R. 293 (Bankr.N.D.Ill.1982). The actual cost of photocopying, long-distance telephone charges, postal expense, and travel costs may be reimbursed. Matter of Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988). However, charges which are part of the cost of operating overhead are not properly chargeable to the bankruptcy estate. Id. The court notes that the future of the instant debtor is uncertain. This interim application covers the first six (6) months of the debtor’s existence, and the debtor’s counsel’s aggregate interim fee requests approximate Two Hundred Thousand Dollars ($200,000.00). While there is no Bankruptcy Code mandate that a hold-back be imposed in every case, the court has discretion to impose a holdback in appropriate cases. In re Wilson Foods Corp., 36 B.R. 317 (Bankr.W.D.Okla.1984). In the instant situation, the court deems that a 25% holdback is appropriate, and in the best interest of the estate. Therefore, interim compensation of 75% will be awarded, and expenses will be allowed in full. Inasmuch as this is an interim application, the court reserves any determination on reasonableness, duplication, travel time, and other issues raised in United States Trustee’s objection until the final fee application. Therefore, the 75% interim compensation and expenses allowed are, however, subject to the proviso that the court may allow final compensation" }, { "docid": "13934967", "title": "", "text": "forms a major part of many fee petitions”. In re Pettibone Corp., 74 B.R. at 303; In re Amatex Corp., 70 B.R. [624,] at 626 [ (Bkrtcy.E.D.Pa.1985) ]. The bankruptcy estate should not bear the cost of compensating each attorney present at an intra-office conference unless counsel can show that the estate benefitted from each attorney’s special area of expertise. In the absence of a showing of the purpose of the conference and why the conference was essential to efficient management of the case, this court will not award full compensation to each attorney present at the conference. In re Amatex Corp., 70 B.R. at 626. The same reasoning applies to duplicative court appearances. Id. See also, In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 583 (Bankr.D.Utah 1985). When more than one attorney appears in court, no fee or a reduced fee should be sought for non-participating counsel. This court will examine the frequency and length of duplicative services in individual cases to determine whether a reduction in compensation sought is appropriate, (citation omitted). TRAVEL TIME Courts are divided on how travel time should be treated. Some courts hold that travel time should be compensated at 50% of the attorney’s normal hourly rate. In re Taylor, 66 B.R. 390 (Bankr.W.D.Pa.1986). However, other courts have refused to discount travel time. In re Frontier Airlines, Inc., 74 B.R. 973 (Bankr.D.Colo. 1987). This court has previously held that travel time should be billed at a reduced rate. In re Microwave Products of America, 104 B.R. 900 (Bankr.W.D.Tenn.1989). EXPENSES All expenses must be adequately documented in order to be reimbursed, and must be incurred by a “professional person” under § 327(a) or § 1103, 11 U.S.C. § 330(a). In re Washington Mfg. Co., 101 B.R. 944 (Bankr.M.D.Tenn.1989). Further, time entries for telephone calls, conferences, research, etc., must indicate the persons involved, and the subject matter. In re Pettibone Corp., 74 B.R. 293 (Bankr.N.D.Ill.1982). The actual cost of photocopying, long-distance telephone charges, postal expense, and travel costs may be reimbursed. Matter of Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988). However, charges which are part of the" }, { "docid": "3587570", "title": "", "text": "charge is unreasonable. Counsel retained by clients who pay on a regular hourly basis customarily charge for travel time, and civil-rights counsel should be no worse off. This is a complex case, and it was not unreasonable for plaintiffs to choose to have more than one lawyer present at the oral argument. In fact, the complexity of the case is underscored by the fact that the Court on its own motion expanded the normal argument time for both sides. Our conclusion with respect to travel time is reinforced by a recent opinion of the Seventh Circuit, Henry v. Webermeier, 738 F.2d 188 (7th Cir.1984). Speaking for the Court, Judge Posner, p. 194 said: When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time____ And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorney’s fees ... the presumption ... should be that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer’s normal working time. Defendants also argue, citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), that the fee award should be reduced on account of plaintiffs’ not having prevailed on some issues. The judgment of the District Court was affirmed in a number of respects, and the relief obtained by plaintiffs may be further narrowed on remand because of the Eleventh Amendment defense that remains to be considered. We therefore agree that the lodestar figure claimed by plaintiffs must be reduced. How much of a reduction is appropriate is not a question that can be answered with mathematical precision. Simply listing the issues from the headings in the briefs and tabulating which way they went will" }, { "docid": "18549586", "title": "", "text": "ORDER GRANTING APPLICATION FOR ALLOWANCE OF ATTORNEY FEES STEVEN W. RHODES, Chief Judge. In this case, the issue is whether debtor’s counsel should be allowed his full hourly rate for travel time. The Court concludes that the full hourly rate should be allowed. I. The debtor’s attorney has filed an application for allowance of attorney fees in the amount of $4,095, for 23.4 hours of work at $175 per hour. In addition, counsel seeks costs of $405.06. The only objection was filed by the Chapter 13 Standing Trustee. The primary focus of the trustee’s objection is upon the applicant’s request for fees for travel time. The applicant travelled from his office in Clinton Township, Michigan, to downtown Detroit on three occasions in connection with this case. On July 17, 1995, the applicant spent three hours of time for the meeting of creditors, including travel time. On August 31, 1995, the applicant expended 2.5 hours for the confirmation hearing, including travel time. On September 14,1995, the applicant spent 4 hours for the adjourned confirmation hearing including travel time. The application does not separately identify the travel time on these occasions, but given the distance it was probably about 45 minutes to one hour each way depending on traffic. The trustee asserts that under 11 U.S.C. § 330, as interpreted in prior cases, the applicant should be permitted 50% of his standard hourly rate for travel time. The basis of this conclusion is that while travelling, the applicant is not productively providing “legal services.” See e.g., In re Hamilton Hardware Co., Inc., 11 B.R. 326, 331 (Bankr.E.D.Mich.1981). However, at the same time the applicant is obviously not available to provide billable legal services for other clients. It thus appears that allowing an attorney 50% of his normal hourly rate for travel is a kind of compromise in an effort to determine a “reasonable fee,” as required by the Bankruptcy Code. See e.g., In re Automobile Warranty Corp., 138 B.R. 72, 78 (Bankr.D.Colo.1991) (surveying the cases); In re Spanjer.Bros., Inc., 191 B.R. 738, 755 (Bankr.N.D.Ill.1996); In re Lowe, 169 B.R. 436, 440 (Bankr.E.D.Okla.1994);" }, { "docid": "3587569", "title": "", "text": "found that there were indeed lawyers in Arkansas ready, willing, and able to handle the case for a considerably lower fee. Thus, we thought it inappropriate to compensate out-of-state counsel at the higher rate, and awarded instead for his services the hourly rate that local counsel would have charged. No such situation is presented here. Richard Quiggle, the Arkansas lawyer who spent more time on this appeal than the other three lawyers for the appellants, claims an hourly rate of $95.00, only $5.00 greater than that claimed by his colleague from Minnesota, John Sommerville. Defendants do not assert that a $95.00 rate is unreasonable for Mr. Quiggle’s services. In fact, the time spent on this appeal is substantially the same as it would have been had all of the lawyers been residents of Minnesota, except in one relatively minor respect. Mr. Quiggle did have to travel from Little Rock to St. Paul to present the oral argument, and ten hours of travel time are claimed for this purpose. We cannot say that this kind of charge is unreasonable. Counsel retained by clients who pay on a regular hourly basis customarily charge for travel time, and civil-rights counsel should be no worse off. This is a complex case, and it was not unreasonable for plaintiffs to choose to have more than one lawyer present at the oral argument. In fact, the complexity of the case is underscored by the fact that the Court on its own motion expanded the normal argument time for both sides. Our conclusion with respect to travel time is reinforced by a recent opinion of the Seventh Circuit, Henry v. Webermeier, 738 F.2d 188 (7th Cir.1984). Speaking for the Court, Judge Posner, p. 194 said: When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time____ And if they charge their paying clients for" }, { "docid": "7202617", "title": "", "text": "the Court finds more suitable for a paralegal. In certain other instances, many tasks were lumped together which prevented a meaningful review of them by the Court. Although the Court has the discretion to disallow entries which are lumped together, because a vast majority of the entries in this case are lumped, the Court made an attempt to disallow only those portions of the lumped entries which are related to a task the Court decided was unnecessary or which is duplicative. While the Court’s attempt to calculate a reasonable amount of time for allowed tasks, from a time entry which includes multiple tasks, may appear subjective and create uncertainties regarding how the Court arrived at certain numbers, this is a direct result of the way in which the time was billed and illustrates why this practice is problematic. Some of the time entries include hours billed for time traveling between Columbia and Kansas City or Jefferson City. There is no indication that any work was being performed during these periods. The Court finds that it is appropriate to discount that time and allow it at half counsel’s normal hourly rate. In re Vantage Investments, Inc., 328 B.R. 137, 145 (Bankr.W.D.Mo.2005); see also Bachman v. Laughlin (In re McKeeman), 236 B.R. 667, 672 (8th Cir. BAP 1999) (unreasonable to charge full hourly rate for travel time) citing In re Anderson Grain Corp., 222 B.R. 528, 532 (Bankr.N.D.Tex.1998) (same). Accordingly, the Court will reduce by half, entries billed which include travel time. Bank Star seeks fees, costs and expenses from Walther, Antel, Stamper & Fischer, P.C. in the total amount of $15,603.83. The fee statements submitted as evidence support a fee amount of $8971.03, therefore, $6,632.80 is disallowed on the basis of no documentary support. The remaining amount of $8971.03 is disallowed because the statements are defective in that they fail to identify rates charged, which attorney or attorneys performed the work or, the amount of time spent. In addition, the descriptions of the services performed are very general. Testimony regarding these statements was equally vague. Therefore, the Court will disallow these" }, { "docid": "23232289", "title": "", "text": "that the total number of hours that the plaintiffs’ lawyers put in on the case was excessive, the travel time must have been worthwhile, and the only question therefore is the appropriate billing rate for it. Probably that is the same billing rate as would be appropriate for the other time the lawyers put in on the case. When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time, except when they are able to bill another client for part of the travel time (a lawyer might do work for client A while flying on an airplane to a meeting with client B). And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorneys’ fees. Of course, if the travel is unnecessary the time spent in travel should be subtracted out, cf. Hensley v. Eckerhart, supra, 103 S.Ct. at 1939-40; but that, as we have said, is not an issue here. If, though reasonable in terms of the amount of time consumed, the travel is unnecessarily luxurious, the court should not reimburse the plaintiffs for the entire out-of-pocket expenses of travel; but that is a completely separate issue from the hourly billing rate and an issue that the defendants will be entitled to explore on remand. The presumption, which the defendants have not attempted to rebut, should be that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer’s normal working time. Among the other factors that the judge used to reduce hourly billing rates here were the simplicity of the legal and factual issues in the case and the fact that the case was settled before trial. Whether these are good reasons for" }, { "docid": "23584412", "title": "", "text": "the professionals employed in the present case will be dealt with subsequently in connection with the discussion of individual fee requests. As to “outbound” travel, where the case is pending in this Court, necessary travel time of local counsel attending proceedings outside of the District and the like will normally be allowed. The presence of local counsel in the forum may make the attendance unnecessary. Travel time should be separately specified in the detail of activities required by Local Rule 34. As to the rate of reimbursement, the Court adopts the position espoused by In re Cano, 122 B.R. 812, 814 (Bankr.N.D.Ga.1991): Non-bankruptcy attorneys typically bill their travel time at the full hourly rate because it precludes them from engaging in other billable professional work. Because bankruptcy attorneys are no less entitled to compensation for opportunity costs, travel time should be considered as part of the total hours spent serving the client and should be reimbursed at the full hourly rate. Attorneys may not be as productive when travelling, but § 330(a)(1) does not demand that productivity be considered when awarding fees. Instead, as long as travel is necessary and the rate is reasonable, that provision is satisfied. Of course, reasonableness is an important factor. If, for example, the trip is unnecessary or the attorney would not have otherwise billed out the time, compensation is not called for. Similarly, if the method of travel is overly luxurious or if travel fees become too large a percentage of the total requested compensation, the travel compensation should be reduced, (citations omitted). SERVICES OF PARAPROFESSIONALS The Court accepts that paraprofessionals performing limited professional tasks can result in considerable savings in costs and efficiency in operations of estates. For that reason, hourly rates for such persons may be separately stated and compensated, subject to the same limitations as the fees of professionals. M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F.Supp. 819, 831 (D.Mass.1987). However, it should be noted that if the service performed by a paraprofessional consists of typing, data entry, checking court dockets or court dates, manually assembling, collating, marking, processing," }, { "docid": "23584411", "title": "", "text": "greater than those which would be incurred if the professional’s office were within the district. Following the practice of the Internal Revenue Service (“IRS”) as regards travel expenses, a professional travelling directly from home to court should deduct normal commuting time from the calculation of allowable travel time. These restrictions are neither parochial nor protectionist; they serve to place reasonable limits on charges against estates. As indicated in the foregoing discussion, if the local pool of professional talent can provide the necessary abilities to represent the interest requiring assistance, such persons should be retained. If the debt- or/trustee/committee wishes to obtain the services of professionals beyond the limits of the district, they may be approved, but on the same terms as local professionals; the estate, being before this Court, cannot afford the luxury of importing professionals without a compelling reason therefor. Applications for the employment of professionals not based within the District should explicitly specify where the operational personnel are based and what travel expenses are sought to be reimbursed. The rule as applied to the professionals employed in the present case will be dealt with subsequently in connection with the discussion of individual fee requests. As to “outbound” travel, where the case is pending in this Court, necessary travel time of local counsel attending proceedings outside of the District and the like will normally be allowed. The presence of local counsel in the forum may make the attendance unnecessary. Travel time should be separately specified in the detail of activities required by Local Rule 34. As to the rate of reimbursement, the Court adopts the position espoused by In re Cano, 122 B.R. 812, 814 (Bankr.N.D.Ga.1991): Non-bankruptcy attorneys typically bill their travel time at the full hourly rate because it precludes them from engaging in other billable professional work. Because bankruptcy attorneys are no less entitled to compensation for opportunity costs, travel time should be considered as part of the total hours spent serving the client and should be reimbursed at the full hourly rate. Attorneys may not be as productive when travelling, but § 330(a)(1) does not demand" }, { "docid": "8345642", "title": "", "text": "ORDER W. HOMER DRAKE, Jr., Bankruptcy Judge. On August 10, 1990, counsel for the above referenced Debtors filed an application for interim compensation asking for $20,130.00 for attorney’s fees, including $525.00 for travel time between Atlanta and the Newnan division representing 3.5 hours at Applicant’s full hourly rate of $150.00, plus $493.87 for actual expenses. The United States Trustee’s office filed comments concerning the application on August 20, one of which was that the travel time should not be compensated at a full hourly rate. This particular issue was taken under advisement at a hearing held on September-14. The Bankruptcy Courts in this District have not definitively ruled on whether travel time between the divisions should be compensated at a full hourly rate, nor is there a consensus among the nation’s bankruptcy courts as to how travel time should be compensated, see, e.g., In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W.D.Okl.1986) (travel time should not be billed); In re Four Star Terminals, Inc., 42 B.R. 419, 442 (Bankr.D.Alaska 1984) (travel time not allowed absent exceptional circumstances); In re Sinor, 87 B.R. 620, 624 (Bankr.E.D.Cal.1988) ($50 per hour); In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E.D.Pa.1985) ($40 per hour); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988) Qk of hourly rate); In re S.T.N. Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987) (% of hourly rate); In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va.1987) (75% of hourly rate); In re Carter, 101 B.R. 170, 171 (Bankr.D.S.D.1989) (full hourly rate). Non-bankruptcy courts also do not provide a clear direction, see, e.g., United States v. State of Washington, 626 F.Supp. 1405, 1447 n. 23 (W.D.Wash.1985) ($40 per hour); Maciera v. Pagan, 698 F.2d 38, 40 (1st Cir.1983) (V2 of hourly rate); McDonald v. Armontrout, 860 F.2d 1456, 1463 (8th Cir.1988) (V2 of hourly rate); Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396 (8th Cir.1987) (full hourly rate); Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984) (full hourly rate). The only principle that is eminently clear from these cases is that" }, { "docid": "22598800", "title": "", "text": "47 B.R. 557, 582 (Bkrtcy.D.Utah 1985); In re United Rockwool, Inc., 32 B.R. 558, 561 (Bkrtcy.E.D.Va.1983). See Vermont Local Bankruptcy Rule 13. (Time spent for local travel, defined as less than one hour, may not be billed to the estate.) While we recognize the reality that a lawyer’s time is the lawyer’s stock in trade; we believe that local travel time is an overhead expense built into a lawyer’s hourly rate. Time spent in excess of this parameter must be compensated. To hold otherwise is to penalize unjustly the bankruptcy practitioner. We now hold that time spent traveling to or from a single location exceeding one hour or longer may be compensated at one-half the attorney’s or other professional’s hourly rate. Compare In re Taylor, 66 B.R. 390, 397 (Bkrtcy.W.D.Pa.1986) (payment of a fifty percent rate for travel time is more than charitable); In re Watson Seafood & Poultry Company, Inc., 40 B.R. 436, 443 (Bkrtcy.E.D.N.C.1984) (travel time compensated at one-half hourly rate). Of course, time reasonably spent performing appropriate work on the case while traveling should be fully compensated. To claim this exception, the fee application must clearly show that work was performed while traveling. Compare In re Global International Airways Corp., 38 B.R. 440, 445 (Bkrtcy.W.D.Mo.1984) (hourly rate for travel time reduced, though credit granted for work performed in transit). Ordinarily, when an out-of-state attorney or firm lays no claim to any special expertise required by the debtor, and competent local bankruptcy counsel is available, the added travel time is not justified and should be considered an overhead expense voluntarily incurred by the firm to obtain out-of-state business. See In the Matter of Combined Croft Corp., 58 B.R. 819, 822 (Bkrtcy.W.D.Wis.1986); In re Four Star Terminals, Inc., 42 B.R. 419, 427, n. 1, 443 (Bkrtcy.D.Ark.1984). We shall not apply this principle here, however, because the attorney’s office is in Albany, New York, a distance only some two hours from this Court, no farther than a number of towns within the State. Time expended researching or analyzing abstract legal issues is inherently not compensable. In re Holthoff, 55 B.R." }, { "docid": "23584409", "title": "", "text": "B.R. 983 (Bankr.D.Nev.1990); In re Hogg, 103 B.R. 207 (Bankr.D.S.D.1988); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988); In re Taylor, 66 B.R. 390, 397 (Bankr.W.D.Pa.1986). Still others consider 75% of the attorney’s hourly rate appropriate. In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va. 1987). In re Frontier Airlines, Inc., 74 B.R. 973, 977 (Bankr.D.Colo.1987) held that travel time was compensable because it was reasonable and necessary. Accord In re Cano, 122 B.R. 812 (Bankr.N.D.Ga.1991). Approved, In re Microwave Products of America Inc., 102 B.R. 661 (Bankr.W.D.Tenn.1989). The Court feels that “travel time” is a generic within which different species may be differently treated. Commuting time, between an attorney’s residence and primary place of business — the attorney’s usual office — is charged to the business of life and not to the matters handled upon arrival. Travel from office to court may be just a few moments down the hill from Boston’s financial district, or almost 1,800 air miles from Houston, as is the case in one application before the Court. The Court is aware of the yardstick in § 330(a)(1) — that fees be based in part on the cost of comparable services outside of the bankruptcy arena. Nevertheless, a debtor or trustee under the Code must act reasonably. The debtor or trustee should act as would “a well-informed private client, paying his own fees.” Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir.1983). That case dealt primarily with the reasonableness of hiring distant counsel at a higher fee than the local rate, a problem not present in these applications. However, the case does point out that it is unreasonable to select non-local counsel “in an ordinary case requiring no specialized abilities not amply reflected among local lawyers.” Id. See also Palmigiano v. Garrahy, 707 F.2d 636 (1st Cir.1983). The Court may indulge a debtor, trustee, or committee desiring to retain professionals from outside of the district in a case which could be handled by local persons, but, generally speaking, it will not permit fees to be paid from the estate for travel time" }, { "docid": "18780223", "title": "", "text": "be appropriate for the other time the lawyers put in on the case. When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time, except when they are able to bill another client for part of the travel time (a lawyer might do work for client A while flying on an airplane to a meeting with client B). And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorneys’ fees. Of course, if the travel is unnecessary the time spent in travel should be subtracted out, cf. Hensley v. Eckerhart, [461 U.S. 424 at 434], 103 S.Ct. [1933] at 1939-40 [76 L.Ed.2d 40]; but that, as we have said, is not an issue here. If, though reasonable in terms of the amount of time consumed, the travel is unnecessarily luxurious, the court should not reimburse the plaintiffs for the entire out-of-pocket expenses of travel; but that is a completely separate issue from the hourly billing rate and an issue that the defendants will be entitled to explore on remand. The presumption, which the defendants have not attempted to rebut, should be that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer's normal working time. Id. at 194; accord Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984). This approach is consistent with the purpose of 5 U.S.C. § 7701(g)(1), which has “a general goal of removing impediments to the litigation of a meritorious claim.” Sterner v. Department of the Army, 711 F.2d 1563, 1570 (Fed.Cir.1983); cf. Keely v. Merit Systems Protection Board, 760 F.2d 246, 249 (Fed.Cir.1985) (purpose of Equal Access to Justice Act, eliminating legal expense as barrier to" }, { "docid": "18549587", "title": "", "text": "travel time. The application does not separately identify the travel time on these occasions, but given the distance it was probably about 45 minutes to one hour each way depending on traffic. The trustee asserts that under 11 U.S.C. § 330, as interpreted in prior cases, the applicant should be permitted 50% of his standard hourly rate for travel time. The basis of this conclusion is that while travelling, the applicant is not productively providing “legal services.” See e.g., In re Hamilton Hardware Co., Inc., 11 B.R. 326, 331 (Bankr.E.D.Mich.1981). However, at the same time the applicant is obviously not available to provide billable legal services for other clients. It thus appears that allowing an attorney 50% of his normal hourly rate for travel is a kind of compromise in an effort to determine a “reasonable fee,” as required by the Bankruptcy Code. See e.g., In re Automobile Warranty Corp., 138 B.R. 72, 78 (Bankr.D.Colo.1991) (surveying the cases); In re Spanjer.Bros., Inc., 191 B.R. 738, 755 (Bankr.N.D.Ill.1996); In re Lowe, 169 B.R. 436, 440 (Bankr.E.D.Okla.1994); In re Bob’s Supermarket’s, Inc., 146 B.R. 20, 23 (Bankr.D.Mont.1992), aff'd in part, rev’d in part, 165 B.R. 339 (9th Cir. BAP 1993). The applicant asserts that he is entitled to his full hourly rate for his travel time on the grounds that the time spent travelling is a reasonable and necessary component to the legal services provided. See e.g., In re Amdura Corp., 139 B.R. 963, 982-83 (Bankr.D.Colo.1992); In re Cano, 122 B.R. 812, 814 (Bankr.N.D.Ga.1991); In re Bank of New England Corp., 134 B.R. 450, 455 (Bankr.E.D.Mass.1991), aff'd, 142 B.R. 584 (D.Mass.1992); In re The Landing, Inc., 122 B.R. 701, 703-05 (Bankr.N.D.Ohio 1990); In re Carter, 101 B.R. 170, 171-74 (Bankr.D.S.D.1989). He specifically notes that his attendance at the meeting of creditors and at the confirmation hearings was required. He further notes that if his travel time is not awarded in full, he will be placed at a competitive disadvantage in the marketplace of chapter 13 legal services, compared to attorneys whose offices do not require any significant travel time. He adds that" }, { "docid": "3720091", "title": "", "text": "basis for compensating travel time at an attorney’s full hourly rate. See In re Braddy, at 367-68; In re Raytech Corp., 206 B.R. 646, 651(Bankr.D.Conn.1997); In re Spanjer Brothers, Inc., 191 B.R. 738, 755 (Bankr.N.D.Ill.1996). The analysis of these cases is not compelling here, however. In Braddy, for example, the court had before it only the Chapter 13 trustee’s objection to counsel’s travel time, not an objection to the overall reasonableness of counsel’s fees, and that court’s standards for reasonable compensation far exceeded what is reasonable in Nebraska. There, the court awarded compensation for over 23 hours of legal time at $175.00 per hour. The Braddy court simply was not operating on the same level of reasonableness regarding Chapter 13 fees as the court in Nebraska so that its treatment of travel time is not persuasive. Raytech and Spanjer were both Chapter 11 cases in which policy concerns of attracting competent counsel to the field of bankruptcy influence whether counsel should be compensated for travel at counsel’s full rate. Raytech, at 652. Because Chapter 13 case are more routine and involve standardized procedures, such policy concerns are less applicable, and we defer to the bankruptcy court for judgments pertaining to the competitiveness and development of its local legal community. In Chapter 13 cases, the relevant inquiry is the value of the services to the debtor. 11 U.S.C. § 330(a)(4)(B), and although counsel’s clients may have been willing to pay his fees, we find no abuse in the court’s decision to reduce those fees. Accordingly, for the forgoing reasons, we affirm the decision of the bankruptcy court. . The Honorable John C. Minahan, Jr., United States Bankruptcy Judge for the District of Nebraska. . Although the order on appeal recites that counsel sought approval of fees in the total amount of $3,575.00 and cost reimbursement of $205.30, Mr. Bachman’s third fee application requested fees in the amount of $3,595.00 and no amount for reimbursable costs and expenses. In fact, although the court can glean that counsel incurred expenses of $205.30 from counsel's billing records attached to the second and third fee" }, { "docid": "713192", "title": "", "text": "therefore, should not be fully compensated. Plaintiff responds that (1) a considerable period of time was spent in travel due to the lack of expeditious air connections between Fayetteville and Jacksonville, Florida; (2) numerous hours were spent in actual conference with Dr. Kirkham and many others in reviewing documents and preparing for the conference while in flight; and (3) only 5V2 hours were spent sleeping and IV2 for meals. Any argument that travel, per se is uncompensable is incorrect. Counsel retained by clients who pay on a regular hourly basis customarily charge for travel time and civil rights counsel should be treated no differently. Craik v. Minnesota State University Board, 738 F.2d at 350. As Judge Posner recently stated for the Seventh Circuit in Henry v. Webermeier, 738 F.2d 188, 194 (1984): When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time and usually at the same rate they charge for other time ... And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorney’s fees ... the presumption ... should be that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer’s normal working time. The Court agrees with Judge Posner’s analysis, but like any other block of time, the hours must not be unreasonable, excessive, or of such a concentrated nature that unproductive time must, of necessity, have been included within the expenditure. Applying the above principles, the Court reduces plaintiff’s Phase I hours by ten to a total of 22 due to the probable inclusion of unproductive time. Other than this reduction, counsel’s travel hours are fully compensable. 3. Conclusion—Total Compensable Hours With the few minor exceptions noted in the body of this opinion, counsel for plaintiff’s records are more than" }, { "docid": "18780222", "title": "", "text": "is the general billing practice in the community. Id., at 214-215. Crumbaker argues that the Board’s decision in his case is inconsistent with its own analysis in Mitchell which focused on the general billing practice in the community, that is, the fair market value of the attorney’s services. We, however, do not rest our decision on such an argument. The government defends the Board decision by citing a number of district court cases arguably consistent with it. See, e.g., Sun Publishing Co. v. Mecklenburg News, Inc., 594 F.Supp. 1512 (E.D.Va.1984); Davis v. Reed, 72 F.R.D. 644 (N.D.Miss.1976). Of course, there are also cases to the contrary, both in the district courts, see, e.g., Rakovich v. Wade, 602 F.Supp. 1444, 1451 (E.D.Wis.1985); International Wood Processors v. Power Dry, Inc., 598 F.Supp. 299, 303 (D.S.C.1984), and in the circuit courts, see, e.g., Henry v. Webermeier, 738 F.2d 188 (7th Cir.1984). We are persuaded that the analysis in Henry v. Webermeier is the better reasoned approach: Probably [the appropriate billing rate] is the same billing rate as would be appropriate for the other time the lawyers put in on the case. When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time, except when they are able to bill another client for part of the travel time (a lawyer might do work for client A while flying on an airplane to a meeting with client B). And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorneys’ fees. Of course, if the travel is unnecessary the time spent in travel should be subtracted out, cf. Hensley v. Eckerhart, [461 U.S. 424 at 434], 103 S.Ct. [1933] at 1939-40 [76 L.Ed.2d 40]; but that, as" }, { "docid": "3720088", "title": "", "text": "in a routine Chapter 13 case, and counsel asserts that by disallowing full fees for travel time, the court has impinged on counsel’s ability to serve his clients and has placed him at a competitive disadvantage. While there is authority to support an award of compensation at the full hourly rate for attorney travel time, (see In re Zepecki, 224 B.R. 907, 911 (Bankr.E.D.Ark.1998); In re Braddy, 195 B.R. 365, 368 (Bankr.E.D.Mich.1996) (addressing issues of competitive disadvantage if travel time is not reimbursed at the full rate)), other authorities equally support the conclusion that attorneys should not be compensated at the full hourly rate while traveling because travel time is not time productively providing “legal services.” In re Anderson Grain Corp., 222 B.R. 528, 532 (Bankr.N.D.Tex.1998) (ludicrous to charge full hourly rates for travel time); In re Bennett Funding Group, Inc., 213 B.R. 234, 251 (Bankr.N.D.N.Y.1997) (allowing one-half normal rate unless work performed during the travel); In re Automobile Warranty Corp., 138 B.R. 72, 78 (Bankr.D.Colo.1991) (collecting cases with varying approaches). The Eighth Circuit has addressed compensation for attorney travel time in the context of civil rights and employment discrimination proceedings with varying results. Because the lodestar method applies to calculation of reasonable attorney’s fees under such federal statutes, those cases provide guidance here. Kula, at 736 (citing use of the lodestar method in determining fees under various federal statutes). In Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984), for example, the Eighth Circuit awarded attorney’s fees for travel time at counsel’s full hourly rate, finding the charges for travel were reasonable and were the result of an unusually complex employment discrimination appeal. Conversely, in McDonald v. Armontrout, 860 F.2d 1456, 1462 (8th Cir.1988), a civil rights action, the court affirmed a district court decision which reduced by fifty percent the hourly rate for attorney travel time, holding that the award was reasonable and within the court’s discretion. Finally, in Winter v. Cerro Gordo County Conservation Board, 925 F.2d 1069, 1074 (8th Cir.1991), the appellate court affirmed disallowance of all expenses for travel, finding the expense" } ]

[ { "docid": "22867417", "title": "", "text": "was that if there were no judicial review available to an alien in the initial removal proceedings, then § 1231(a)(5)’s foreclosure of judicial review of constitutional and legal claims regarding that order after reinstatement arguably would implicate the Suspension Clause concerns articulated in St. Cyr. The REAL ID Act renders that discussion moot by codifying § 1252(a)(2)(D). In addition to carving out exceptions to the jurisdiction-stripping provisions of § 1252 for constitutional and legal claims, § 1252(a)(2)(D) states that “[no] other provision of this chapter ... which limits or eliminates judicial review, shall be construed as precluding constitutional claims or claims of law.” Section 1231 is in the same chapter as § 1252. Because § 1231(a)(5) limits judicial review, § 1252(a)(2)(D) prevents its operation in eases, such as this one, in which the validi ty of an underlying order is questioned on constitutional or legal grounds. B. The REAL ID Act does not, however, foreclose the applicability of two other jurisdictional barriers: the requirement that administrative remedies be exhausted before an alien seeks judicial review of a removal order and the fact that the initial removal proceedings must constitute a gross miscarriage of justice, Lara v. Trominski, 216 F.3d 487, 491 (5th Cir.2000), for this court to entertain a collateral attack on a removal order. Given our conclusion, which we will explain, that there is no gross miscarriage here, we pretermit discussion of the exhaustion question. In Lara, id., we held that “[w]e can review [a] collateral challenge to [a] prior deportation order if and only if that deportation involved a gross miscarriage of justice.” Ramirez-Molina is challenging reinstatement of the 1999 removal order on the ground that the already-executed order is invalid. Thus, even presented in the form of a petition for review instead of a habeas petition, the crux of his claim constitutes a collateral attack on the 1999 removal order. Accordingly, in the eon-text of a petition for review of a reinstatement decision, we can review the validity of the underlying removal order only if Ramirez-Molina establishes that there was a gross miscarriage of justice in the" } ]

[ { "docid": "13421951", "title": "", "text": "citizen. Garofalo became a naturalized United States citizen in March 1995, and on May 27, 1995, Herrera-Molina remarried Garofalo and obtained an official marriage license from the state of New York. II. Proceedings Below: Herrera-Molina’s Applications for Relief and Reinstatement of Herrera-Molina’s Prior Order of Deportation In late 1997, Garofalo filed on behalf of Herrera-Molina a Petition for Alien Relative (“Form 1-130”) and an Application to Adjust Status (“Form 1-485”). In connection with these applications, Herrera-Molina paid a fee for having entered the United States without inspection. In addition, in 2003, Herrera-Molina filed an Application for Permission to Reapply for Admission into the United States after Deportation or Removal (“Form 1-212”), which was denied on March 17, 2004. On February 23, 2007, ICE reinstated Herrera-Molina’s prior order of deportation from its original date, July 26, 1985, pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), and placed him in custody. On the same date, an ICE officer interviewed Herrera-Molina, at which time he indicated that he feared for his life if forced to return to Colombia. On April 25, 2007, an asylum officer issued a Reasonable Fear Determination finding that Herrera-Molina was credible and that he had a reasonable fear of returning to Colombia on account of his Mormon faith; in conclusion, the asylum officer opined that Herrera-Molina should be allowed to pursue his withholding of removal claim before an immigration judge. Based on the asylum officer’s findings, Herrera-Molina was placed in withholding of removal proceedings before an immigration judge (“IJ”), and on November 8, 2007, the IJ denied his application for withholding of removal. Herrera-Molina appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”) on December 4, 2007. On July 31, 2009, the BIA dismissed Herrera-Molina’s appeal, concluding that the IJ was not clearly erroneous in his determination that Herrera-Molina failed to provide credible testimony and evidence in support of his assertion that his family has been targeted for persecution. On October 5, 2009, we granted Herrera-Molina’s motion for a stay of removal pending disposition of Herrera-Molina’s present petition for review of the reinstatement of his prior" }, { "docid": "13421952", "title": "", "text": "Colombia. On April 25, 2007, an asylum officer issued a Reasonable Fear Determination finding that Herrera-Molina was credible and that he had a reasonable fear of returning to Colombia on account of his Mormon faith; in conclusion, the asylum officer opined that Herrera-Molina should be allowed to pursue his withholding of removal claim before an immigration judge. Based on the asylum officer’s findings, Herrera-Molina was placed in withholding of removal proceedings before an immigration judge (“IJ”), and on November 8, 2007, the IJ denied his application for withholding of removal. Herrera-Molina appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”) on December 4, 2007. On July 31, 2009, the BIA dismissed Herrera-Molina’s appeal, concluding that the IJ was not clearly erroneous in his determination that Herrera-Molina failed to provide credible testimony and evidence in support of his assertion that his family has been targeted for persecution. On October 5, 2009, we granted Herrera-Molina’s motion for a stay of removal pending disposition of Herrera-Molina’s present petition for review of the reinstatement of his prior deportation order. DISCUSSION Herrera-Molina argues that section 241(a)(5) — the provision pursuant to which his prior order of deportation was reinstated — is impermissibly retroactive as applied to him. Herrera-Molina further argues that, even if section 241(a)(5) is not impermissibly retroactive, the statute nevertheless deprives him of due process and we should interpret section 241(a)(5) to allow him to apply for additional types of relief. For the reasons set forth below, we hold that section 241(a)(5) is not impermissibly retroactive as applied Herrera-Molina, does not deprive him of due process, and forecloses him from applying for certain additional types of relief. I. Jurisdiction Before reaching the merits of Herrera-Molina’s arguments, we first address whether we have jurisdiction over this matter. The parties initially disputed our jurisdiction because, at the time that the parties filed their briefs, Herrera-Molina’s appeal of the IJ’s denial of withholding of removal was still pending before the BIA. Due to the pendency of the appeal, the Attorney General argued that the reinstated order of deportation was not a “final” order of" }, { "docid": "13421953", "title": "", "text": "deportation order. DISCUSSION Herrera-Molina argues that section 241(a)(5) — the provision pursuant to which his prior order of deportation was reinstated — is impermissibly retroactive as applied to him. Herrera-Molina further argues that, even if section 241(a)(5) is not impermissibly retroactive, the statute nevertheless deprives him of due process and we should interpret section 241(a)(5) to allow him to apply for additional types of relief. For the reasons set forth below, we hold that section 241(a)(5) is not impermissibly retroactive as applied Herrera-Molina, does not deprive him of due process, and forecloses him from applying for certain additional types of relief. I. Jurisdiction Before reaching the merits of Herrera-Molina’s arguments, we first address whether we have jurisdiction over this matter. The parties initially disputed our jurisdiction because, at the time that the parties filed their briefs, Herrera-Molina’s appeal of the IJ’s denial of withholding of removal was still pending before the BIA. Due to the pendency of the appeal, the Attorney General argued that the reinstated order of deportation was not a “final” order of removal over which we could exercise jurisdiction. See Chupina v. Holder, 570 F.3d 99, 103-04 (2d Cir.2009) (noting that our jurisdiction is limited to review of “final” orders of removal and that, when a petitioner’s “pending applications [for relief] directly affect whether he may be removed ..., [the] order of removal is not final until those applications have been resolved by the agency”). After the Attorney General filed his brief, however, the BIA subsequently dismissed Herrera-Molina’s appeal of the denial of withholding of removal. As a result, the Attorney General has withdrawn his argument that we lack jurisdiction to review the reinstatement of Herrera-Molina’s prior deportation order. See Resp’t Supp. Letter Br. of Oct. 28, 2009 at 2 (“With the Board’s dismissal of Mr. Herrera-Molina’s appeal of the denial of withholding of removal, the instant petition for review has ripened from a premature petition into a petition for review of a final order of removal.”). Likewise, by supplemental letter brief dated October 29, 2009, HeireraMolina concurred with the Attorney General’s position and represented that he" }, { "docid": "13421969", "title": "", "text": "id. § 1182(h) (1994) (providing that only a single offense of simple possession of thirty grams or less of marijuana may be waived and, even then, only in certain circumstances). Herrera-Molina fails to address this argument — •that he would have been ineligible for adjustment of status even under the old law — and instead argues that, notwithstanding his convictions, he would have been eligible to apply for suspension of deportation or asylum under the old law. Herrera-Molina’s claim that he reasonably relied on the availability of suspension of deportation or asylum fails for two reasons. First, the terms of section 241(a)(5) preclude such relief, see Discussion infra Part IV, and Herrera-Molina chose to remain in this country despite Congress’s warning that a new statutory framework that eliminated such relief was imminent and despite a six month grace period in which to alter his conduct. Second, with respect to suspension of deportation specifically, such relief has been completely repealed (not just in the context of section 241(a)(5)), and we have previously found that the repeal of this relief is not impermissibly retroactive. See Karageorgious v. Ashcroft, 374 F.3d 152, 156 (2d Cir.2004) (“The repeal of suspension of deportation does not ... attach any new legal consequences to petitioners’ pre-IIRIRA conduct. ... Petitioners had no right to remain living illegally and undetected in the United States. Therefore, they relinquished no rights and acquired no new obligations when they turned themselves in to the INS.” (internal citation and quotation marks omitted)). In sum, section 241(a)(5) does not create new consequences for prior, completed conduct. It is Herrera-Molina’s continued presence in the United States that serves as the predicate act to which section 241(a)(5) applies, not some prior, completed conduct that Herrera-Molina is helpless to correct. Nor does section 241(a)(5) impair Herrera-Molina’s vested rights. That Herrera-Molina married a United States citizen prior to section 241(a)(5)’s enactment does not alter these conclusions. Even if Herrera-Molina would have been eligible to apply for certain discretionary relief before section 241(a)(5) became effective, he did not make any such applica tion prior to the law’s effective date" }, { "docid": "13421970", "title": "", "text": "of this relief is not impermissibly retroactive. See Karageorgious v. Ashcroft, 374 F.3d 152, 156 (2d Cir.2004) (“The repeal of suspension of deportation does not ... attach any new legal consequences to petitioners’ pre-IIRIRA conduct. ... Petitioners had no right to remain living illegally and undetected in the United States. Therefore, they relinquished no rights and acquired no new obligations when they turned themselves in to the INS.” (internal citation and quotation marks omitted)). In sum, section 241(a)(5) does not create new consequences for prior, completed conduct. It is Herrera-Molina’s continued presence in the United States that serves as the predicate act to which section 241(a)(5) applies, not some prior, completed conduct that Herrera-Molina is helpless to correct. Nor does section 241(a)(5) impair Herrera-Molina’s vested rights. That Herrera-Molina married a United States citizen prior to section 241(a)(5)’s enactment does not alter these conclusions. Even if Herrera-Molina would have been eligible to apply for certain discretionary relief before section 241(a)(5) became effective, he did not make any such applica tion prior to the law’s effective date and, therefore, did not have any “vested” right to such relief. For the reasons discussed above, section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina. IV. The Scope of Relief Provided By Section 241(a)(5) and Petitioner’s Due Process Rights In addition to arguing that section 241(a)(5) is impermissibly retroactive, Herrera-Molina argues that section 241(a)(5)’s elimination of certain discretionary relief and the denial of a formal hearing in connection with the reinstatement of his prior deportation order deprived him of his due process rights. We squarely addressed these issues in Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir.2008). In Garcia-Villeda, we applied the two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to determine “whether elimination of the requirement of a hearing before an immigration judge, pursuant to 8 C.F.R. § 241.8 (2001), is consistent with the reinstatement of removal statute.” Garcia-Villeda, 531 F.3d at 144, 146. We further considered “whether the reinstatement of removal procedure set forth in 8" }, { "docid": "13421968", "title": "", "text": "hurt his chances of remaining in this country.” Velasquez-Gabriel, 263 F.3d at 109 (emphasis omitted); id. at 110 (concluding further that the petitioner’s “failure to apply to adjust his resident status before the new law took effect fatally undermines his contention that § 241(a)(5)’s application to him attaches new legal consequences to events completed before its enactment” (internal quotation marks omitted)). Further weakening Herrera-Molina’s retroactivity argument is the Attorney General’s contention, which Herrera-Molina fails to rebut, that Herrera-Molina would not have been entitled to adjustment of status even prior to section 241(a)(5)’s enactment. See Br. for Resp’t at 25-27. The Attorney General argues that, because of his 1985 conviction for possession of cocaine, Herrera-Molina would have been ineligible to adjust his status based upon his marriage to a United States citizen, even before section 241(a)(5)’s enactment. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (1994) (providing that aliens convicted of any controlled substance violation are an excludable class of aliens who are ineligible to receive a visa and who shall be excluded from admission into the United States); id. § 1182(h) (1994) (providing that only a single offense of simple possession of thirty grams or less of marijuana may be waived and, even then, only in certain circumstances). Herrera-Molina fails to address this argument — •that he would have been ineligible for adjustment of status even under the old law — and instead argues that, notwithstanding his convictions, he would have been eligible to apply for suspension of deportation or asylum under the old law. Herrera-Molina’s claim that he reasonably relied on the availability of suspension of deportation or asylum fails for two reasons. First, the terms of section 241(a)(5) preclude such relief, see Discussion infra Part IV, and Herrera-Molina chose to remain in this country despite Congress’s warning that a new statutory framework that eliminated such relief was imminent and despite a six month grace period in which to alter his conduct. Second, with respect to suspension of deportation specifically, such relief has been completely repealed (not just in the context of section 241(a)(5)), and we have previously found that the repeal" }, { "docid": "13421976", "title": "", "text": "types of relief other than withholding of removal. Furthermore, we reject Herrera-Molina’s argument that section 241(a)(5) deprives him of due process. Like the petitioner in Garcia-Villeda, Herrera-Molina admits all of the facts necessary to warrant reinstatement under section 241(a)(5): he was deported in 1985, illegally reentered the United States thereafter, and was apprehended while present in the United States. In addition, Herrera-Moli na does not allege any impropriety in the underlying 1985 deportation proceedings and does not argue that those earlier proceedings deprived him of due process. As in Garcia-Villeda, no “additional procedural protections ... would have changed” the determination that Herrera-Molina was subject to reinstatement of the prior deportation order. 531 F.3d at 149. Accordingly, because Herrera-Molina has failed to “allege some cognizable prejudice fairly attributable to the challenged process,” id. (internal quotation marks omitted), we conclude that he was not deprived of due process with regard to the reinstatement of his prior deportation order. CONCLUSION For the reasons set forth above, Herrera-Molina’s petition for review of the ICE order reinstating his prior order of deportation is DENIED. Having completed our review, the stay of removal that this Court previously granted in connection with this petition is VACATED. . On December 11, 2007, ICE paroled Herrera-Molina out of detention and placed him under supervision because he established that he was likely to appear at all hearings or other immigration matters and that he posed no danger to the community. . Herrera-Molina has presented no arguments here that challenge the BIA’s July 31, 2009 decision, and his counsel indicated at oral argument on November 16, 2009, that Herrera-Molina does not intend to seek review of that decision. . As we have previously noted, the terms \"order of deportation” and \"order of removal” are synonymous. See Chupina, 570 F.3d at 104. \"What was formerly known as 'deportation is now called ‘removal’ in IIRIRA.” Far nandez-Vargas v. Gonzales, 548 U.S. 30, 33 n. 1, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). . Although the above quoted language is frequently cited when analyzing retroactivity, the Supreme Court has made clear that this language" }, { "docid": "13421975", "title": "", "text": "Nicaraguan Adjustment and Central American Relief Act. Moreover, with regard to those aliens who express a fear of returning to the country designated in the reinstatement order, the provisions of 8 C.F.R. § 241.8 state only that there is an “[exception for withholding of removal” and do not state that there is any exception for asylum. See 8 C.F.R. § 241.8(e). In this context, “[i]f an asylum officer determines that an alien [subject to a reinstatement order] has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form 1-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only.” 8 C.F.R. § 208.31(e) (emphasis added). With regard to this screening process, the Department of Justice has made clear that “aliens subject to reinstatement of a previous removal order under section 241(a)(5)” are “ineligible for asylum.” 64 Fed.Reg. 8478, 8485 (Feb. 19, 1999) (emphasis added). Accordingly, we reject Herrera-Molina’s claim that he is entitled to apply for asylum or additional types of relief other than withholding of removal. Furthermore, we reject Herrera-Molina’s argument that section 241(a)(5) deprives him of due process. Like the petitioner in Garcia-Villeda, Herrera-Molina admits all of the facts necessary to warrant reinstatement under section 241(a)(5): he was deported in 1985, illegally reentered the United States thereafter, and was apprehended while present in the United States. In addition, Herrera-Moli na does not allege any impropriety in the underlying 1985 deportation proceedings and does not argue that those earlier proceedings deprived him of due process. As in Garcia-Villeda, no “additional procedural protections ... would have changed” the determination that Herrera-Molina was subject to reinstatement of the prior deportation order. 531 F.3d at 149. Accordingly, because Herrera-Molina has failed to “allege some cognizable prejudice fairly attributable to the challenged process,” id. (internal quotation marks omitted), we conclude that he was not deprived of due process with regard to the reinstatement of his prior deportation order. CONCLUSION For the reasons set forth above, Herrera-Molina’s petition for review of the ICE order reinstating his prior order" }, { "docid": "13421949", "title": "", "text": "STRAUB, Circuit Judge: Petitioner William Herrera-Molina seeks review of a February 23, 2007 decision of the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), reinstating a prior order of deportation for illegal entry, entered in July 1985 against Herrera-Molina. The first issue before us is whether the reinstatement of removal statute, section 241(a)(5) of the Immigration and Naturalization Act (“INA”), as added by section 305(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. § 1231(a)(5), is impermissibly retroactive as applied to Herrera-Molina, an alien who illegally reentered the United States and married a United States citizen prior to the statute’s enactment. For the reasons set forth below, we hold that section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina. We further hold, as discussed below, that section 241(a)(5) forecloses Herrera-Molina from applying for certain additional types of relief and that section 241(a)(5) does not deprive him of due process. BACKGROUND I. Herrera-Molina’s Initial Illegal Entry, Deportation, and Subsequent Illegal Reentry Herrera-Molina, a native and citizen of Colombia, illegally entered the United States in 1972 at the age of twenty-two. In 1985, he pled guilty to two crimes: (1) simple possession of a controlled substance (cocaine) in Nebraska and (2) fraudulent practices in the third degree in Iowa. On June 6, 1985, Herrera-Molina was served with an Order to Show Cause charging that he had entered the United States without inspection. On July 26, 1985, an Immigration Judge ordered him deported from the United States to Colombia based on the charges contained in the Order to Show Cause. Herrera-Molina waived appeal of that decision, and on October 21, 1985, he was deported from the United States to Colombia. In 1986, shortly after being deported to Colombia, Herrera-Molina reentered the United States without inspection. He asserts that he then married Rosa Haydee Garofalo in 1986 in a Mormon church in Texas but that the record of their marriage was misplaced by the church. Subsequently, on July 4,1988, Herrera-Molina and his wife had a child, William Herrera, Jr., who is a United States" }, { "docid": "19069638", "title": "", "text": "8 U.S.C. § 1252(a)(2)(B), (C), or any other provision of the INA shall preclude judicial review of such orders, unless such review is barred by some other provision of 8 U.S.C. § 1252.”). Accordingly, the thirty-day time limit set forth in § 1252(b)(1) is not altered by § 1252(a)(2)(D). B. Verde next asserts that his petition was timely because he filed it within thirty days of the 2011 reinstatement of his removal order. He argues that under Debeato v. Attorney General, 505 F.3d 231 (3d Cir.2007), an alien who has been removed may challenge a reinstated removal order in the same manner he would challenge the original order. In Debeato, the petitioner came to the United States in 1988 and was arrested on drug charges two years later. After serving prison time, she was deported because an IJ and the Board of Immigration Appeals (“BIA”) agreed that she was an aggravated felon. Id. at 233. She left the United States in 1998, but was found in the country again in 2000. She pled guilty to illegal reentry and went to prison again; while in prison, her original deportation order was reinstated. In 2003, Debeato filed a habeas petition arguing that the IJ erred in her original deportation proceedings by determining that she was ineligible for a waiver of deportation. In determining our jurisdiction, we reviewed the REAL ID Act, citing Papageorgiou for the proposition that § 1252(a)(2)(D) removed all jurisdictional bars to review of constitutional claims and questions of law except for those limitations in § 1252 itself. Id. at 234. Most importantly, we then addressed the question of how the holding in Papageorgiou applied to 8 U.S.C. § 1231(a)(5), which provides that when a removal order is reinstated from its original date, the alien is not eligible to apply for any relief under the chapter. We relied on Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir.2006), explaining that § 1231(a)(5) was overridden by § 1252(a)(2)(D), and consequently that we retained jurisdiction over Debeato’s petition. Debeato, 505 F.3d at 234-35 (“[T]here is no principled reason for reading § 1252(a)(2)(D) as" }, { "docid": "13421977", "title": "", "text": "of deportation is DENIED. Having completed our review, the stay of removal that this Court previously granted in connection with this petition is VACATED. . On December 11, 2007, ICE paroled Herrera-Molina out of detention and placed him under supervision because he established that he was likely to appear at all hearings or other immigration matters and that he posed no danger to the community. . Herrera-Molina has presented no arguments here that challenge the BIA’s July 31, 2009 decision, and his counsel indicated at oral argument on November 16, 2009, that Herrera-Molina does not intend to seek review of that decision. . As we have previously noted, the terms \"order of deportation” and \"order of removal” are synonymous. See Chupina, 570 F.3d at 104. \"What was formerly known as 'deportation is now called ‘removal’ in IIRIRA.” Far nandez-Vargas v. Gonzales, 548 U.S. 30, 33 n. 1, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). . Although the above quoted language is frequently cited when analyzing retroactivity, the Supreme Court has made clear that this language does not provide “the exclusive definition of presumptively impermissible retroactive legislation” and “does not purport to define the outer limit of impermissible retro-activity.” Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 947, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). . On April 30, 2007, Herrera-Molina filed a motion to withdraw his previously entered guilty plea with the District Court of Douglas County, Nebraska, which was denied on the merits on June 14, 2007. Herrera-Molina represents that he appealed this decision to the Court of Appeals for the State of Nebraska, which appeal was pending at the time that he submitted his brief to this court on January 7, 2008. On May 14, 2008, subsequent to the submission of his opening brief to this court, the Court of Appeals for the State of Nebraska remanded the matter to the district court with instructions to dismiss Herrera-Molina's motion to withdraw his guilty plea for lack of jurisdiction. State of Nebraska v. William Herrera, No. A-07-772, slip op. (Neb.Ct.App. May 14, 2008). In light of" }, { "docid": "13421974", "title": "", "text": "§ 1231(a)(5)). But see supra at 138 n. 7. In light of Garcia-Villeda, we reject Herrera-Molina’s argument that he is entitled to apply for additional relief. Herrera-Molina has already applied for withholding of removal, the only relevant relief apparently available to him, based on his fear of returning to Columbia, and that application has been denied. According to the relevant statutory and regulatory provisions, relief other than withholding of removal, e.g., asylum or cancellation of removal, is not available to this petitioner. As we noted in Garcia-Villeda, 8 C.F.R. § 241.8 allows “an alien subject to reinstatement to (1) ‘express[] a fear of returning to the country designated in [the reinstatement] order’; or (2) apply for adjustment of status under either the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan Adjustment and Central American Relief Act.” 531 F.3d at 151 n. 8 (alterations in original) (quoting 8 C.F.R. § 241.8(e)). Herrera-Molina does not argue that he is entitled to apply for adjustment of status under the Haitian Refugee Immigrant Fairness Act or the Nicaraguan Adjustment and Central American Relief Act. Moreover, with regard to those aliens who express a fear of returning to the country designated in the reinstatement order, the provisions of 8 C.F.R. § 241.8 state only that there is an “[exception for withholding of removal” and do not state that there is any exception for asylum. See 8 C.F.R. § 241.8(e). In this context, “[i]f an asylum officer determines that an alien [subject to a reinstatement order] has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form 1-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only.” 8 C.F.R. § 208.31(e) (emphasis added). With regard to this screening process, the Department of Justice has made clear that “aliens subject to reinstatement of a previous removal order under section 241(a)(5)” are “ineligible for asylum.” 64 Fed.Reg. 8478, 8485 (Feb. 19, 1999) (emphasis added). Accordingly, we reject Herrera-Molina’s claim that he is entitled to apply for asylum or additional" }, { "docid": "13421973", "title": "", "text": "be determined are ... the alien’s identity, the existence of a prior removal order, and whether the alien has unlawfully reentered.” Id. at 148 (internal quotation marks omitted). Furthermore, we rejected the petitioner’s due process challenges to the reinstatement order because he “admitted before the ICE and before us all of the facts necessary to warrant reinstatement under INA § 241(a)(5), i.e., that he is an alien who reentered the U.S. illegally after being previously deported.” Id. at 149 (internal quotation marks omitted); id. (“None of the additional procedural protections he demands ... would have changed this.”). Finally, we rejected the petitioner’s claim that, “before the reinstatement order could be issued, he was entitled to adjudication on the merits of his applications for [relief] filed with the DHS ... before the reinstatement order was issued.” Id. at 150. We concluded that “we cannot disre gard the statutory text” which provides that “[a]n illegal reentrant ‘is not eligible and may not apply for any relief under the INA.” Id. at 151 (emphasis omitted) (quoting 8 U.S.C. § 1231(a)(5)). But see supra at 138 n. 7. In light of Garcia-Villeda, we reject Herrera-Molina’s argument that he is entitled to apply for additional relief. Herrera-Molina has already applied for withholding of removal, the only relevant relief apparently available to him, based on his fear of returning to Columbia, and that application has been denied. According to the relevant statutory and regulatory provisions, relief other than withholding of removal, e.g., asylum or cancellation of removal, is not available to this petitioner. As we noted in Garcia-Villeda, 8 C.F.R. § 241.8 allows “an alien subject to reinstatement to (1) ‘express[] a fear of returning to the country designated in [the reinstatement] order’; or (2) apply for adjustment of status under either the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan Adjustment and Central American Relief Act.” 531 F.3d at 151 n. 8 (alterations in original) (quoting 8 C.F.R. § 241.8(e)). Herrera-Molina does not argue that he is entitled to apply for adjustment of status under the Haitian Refugee Immigrant Fairness Act or the" }, { "docid": "13421971", "title": "", "text": "and, therefore, did not have any “vested” right to such relief. For the reasons discussed above, section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina. IV. The Scope of Relief Provided By Section 241(a)(5) and Petitioner’s Due Process Rights In addition to arguing that section 241(a)(5) is impermissibly retroactive, Herrera-Molina argues that section 241(a)(5)’s elimination of certain discretionary relief and the denial of a formal hearing in connection with the reinstatement of his prior deportation order deprived him of his due process rights. We squarely addressed these issues in Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir.2008). In Garcia-Villeda, we applied the two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to determine “whether elimination of the requirement of a hearing before an immigration judge, pursuant to 8 C.F.R. § 241.8 (2001), is consistent with the reinstatement of removal statute.” Garcia-Villeda, 531 F.3d at 144, 146. We further considered “whether the reinstatement of removal procedure set forth in 8 C.F.R. § 241.8, both as applied in this case and on its face, comports with the Due Process Clause of the Fifth Amendment; ... and whether the ICE properly reinstated the underlying deportation order without first adjudicating petitioner’s pending applications for [relief].” Id. at 144. We rejected the petitioner’s arguments with regard to all of the above issues. First, we noted that, pursuant to section 241(a)(5)’s terms, “[t]he inquiry in a reinstatement proceeding is limited to whether the ‘alien has reentered the United States illegally after having been removed.’ ” Id. at 148 (quoting 8 U.S.C. § 1231(a)(5)). We further noted that, according to section 241(a)(5), “illegal reentrants are now categorically declared ineligible for any relief from removal.” Id. Accordingly, we had “little difficulty” granting Chevron deference to the government’s interpretation of section 241(a)(5), as set forth in 8 C.F.R. § 241.8. Id. at 148-49. We found the summary procedure set forth in 8 C.F.R. § 241.8, which eliminated the requirement of a hearing before an immigration judge, “quite appropriate [because] the only issues to" }, { "docid": "13421957", "title": "", "text": "at 35, 126 S.Ct. 2422 (internal quotation marks omitted). Prior to April 1, 1997, only aliens who had previously been deported on certain specified grounds, such as a conviction for an aggravated felony, were subject to having their original deportation orders reinstated, and even those aliens subject to reinstatement could seek certain kinds of discretionary relief. Id. at 33-34, 126 S.Ct. 2422; see 8 U.S.C. §§ 1252(e)-(f), 1254(a) (1994). By contrast, section 241(a)(5) “applies to all illegal reentrants, explicitly insulates the removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.” Fernandez-Vargas, 548 U.S. at 35, 126 S.Ct. 2422 (emphases added). III. Retroactivity Analysis As noted earlier, although Herrera-Molina applied for adjustment of status after section 241(a)(5) became effective, he illegally reentered the United States and married a United States citizen before section 241(a)(5) became effective. On this basis, Herrera-Molina contends that section 241(a)(5) is impermissibly retroactive as applied to him because “long standing INS practice created a reasonable expectation that Petitioner could defend against later deportation by seeking a discretionary adjustment of status to lawful permanent resident.” Opening Br. for Pet’r at 26. For the reasons discussed below, Herrera-Molina’s argument is unavailing. In one of its seminal retroactivity cases, the Supreme Court noted that “[elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In the same case, however, the Supreme Court observed that Congress may, within constitutional limits, enact laws that operate retroactively. Id. at 267-68, 114 S.Ct. 1483. The Court further acknowledged that “[r]etroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary.” Id. In light of these principles, the Supreme Court developed a two-step test for determining whether a statute" }, { "docid": "13421979", "title": "", "text": "this discussion about Herrera-Molina’s prior guilty plea, it is worth noting that this case is completely distinguishable from INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). In St. Cyr, the Supreme Court found that a law that eliminated discretionary relief was impermissibly retroactive as applied to a petitioner who relied on the old law when deciding whether to plead guilty to a crime. Unlike the prior, completed predicate act in St. Cyr (the guilty plea), the predicate act here is Herrera-Molina’s continued presence in the United States after section 241(a)(5) went into effect, which as discussed earlier, is not a prior, completed act. . We did note, however, that 8 C.F.R. § 241.8 allows \"an alien subject to reinstatement to (1) express!] a fear of returning to the country designated in [the reinstatement] order'; or (2) apply for adjustment of status under either the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan Adjustment and Central American Relief Act.” Garcia-Villeda, 531 F.3d at 151 n. 8 (alterations in original) (quoting 8 C.F.R. § 241.8(e)). . The Supreme Court in Fernandez-Vargas suggests in dicta that the above statutory and regulatory provisions \"rais[e] the possibility of asylum.\" See Fernandez-Vargas, 548 U.S. at 35, 126 S.Ct. 2422 n.4. It is true that an alien who \"expresses a fear of returning to the country\" designated in the reinstatement order \"shall be referred to an asylum officer for a reasonable fear determination.” 8 C.F.R. § 208.31(a), (b). Furthermore, if that asylum officer determines that the alien has established \"a reasonable fear of persecution or torture” — a showing relevant to establishing eligibility for asylum — the alien is referred to an Immigration Judge. 8 C.F.R. § 208.31(e). However, the regulations are clear that this referral to an Immigration Judge is for the purpose of considering the alien’s “request for withholding of removal only.” Id. (emphasis added). Accordingly, Herrera-Molina’s counsel properly conceded at oral argument that, if we find that section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina, he would be ineligible to apply for asylum under" }, { "docid": "13421956", "title": "", "text": "the reinstatement of his prior deportation order is now a reviewable final order and proceed to the merits of his arguments. II. The Reinstatement Provisions of Section 241(a)(5) Before analyzing Herrera-Molina’s specific arguments regarding section 241(a)(5), it is necessary to summarize briefly how section 241(a)(5) changed the law regarding reinstatement of removal orders, formerly known as deportation orders. Section 241(a)(5) provides that: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. 8 U.S.C. § 1231(a)(5). The statute became effective on April 1, 1997, “the first day of the first month beginning more than 180 days after” it was enacted on September 30, 1996. Fernandez-Vargas, 548 U.S. at 35, 126 S.Ct. 2422 (internal quotation marks omitted). Prior to April 1, 1997, only aliens who had previously been deported on certain specified grounds, such as a conviction for an aggravated felony, were subject to having their original deportation orders reinstated, and even those aliens subject to reinstatement could seek certain kinds of discretionary relief. Id. at 33-34, 126 S.Ct. 2422; see 8 U.S.C. §§ 1252(e)-(f), 1254(a) (1994). By contrast, section 241(a)(5) “applies to all illegal reentrants, explicitly insulates the removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.” Fernandez-Vargas, 548 U.S. at 35, 126 S.Ct. 2422 (emphases added). III. Retroactivity Analysis As noted earlier, although Herrera-Molina applied for adjustment of status after section 241(a)(5) became effective, he illegally reentered the United States and married a United States citizen before section 241(a)(5) became effective. On this basis, Herrera-Molina contends that section 241(a)(5) is impermissibly retroactive as applied to him because “long standing INS practice created a reasonable expectation that Petitioner could defend against later deportation by seeking" }, { "docid": "13421955", "title": "", "text": "“has elected not to seek review of’ the BIA’s July 31, 2009 decision dismissing his appeal from the IJ’s denial of withholding of removal. A premature petition for review of a not-yet-final order of removal can become a reviewable final order upon the adjudication of remaining applications for relief and protection, provided that the Attorney General has not shown prejudice. See Lewis v. Gonzales, 481 F.3d 125, 128-29 (2d Cir.2007); Foster v. INS, 376 F.3d 75, 77 (2d Cir.2004) (“Despite his premature petition to us, we exercised jurisdiction noting that the BIA has since affirmed petitioner’s removal order and the respondent has not shown prejudice.” (internal quotation marks omitted)). In the present case, the BIA has now rendered a decision resolving Herrera-Molina’s appeal of the denial of withholding of removal, and the Attorney General does not claim that he was prejudiced by Herrera-Molina filing a petition for review prior to the BIA’s decision — nor do we see how he could have been prejudiced. Accordingly, even if Herrera-Molina’s initial petition were premature, we conclude that the reinstatement of his prior deportation order is now a reviewable final order and proceed to the merits of his arguments. II. The Reinstatement Provisions of Section 241(a)(5) Before analyzing Herrera-Molina’s specific arguments regarding section 241(a)(5), it is necessary to summarize briefly how section 241(a)(5) changed the law regarding reinstatement of removal orders, formerly known as deportation orders. Section 241(a)(5) provides that: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. 8 U.S.C. § 1231(a)(5). The statute became effective on April 1, 1997, “the first day of the first month beginning more than 180 days after” it was enacted on September 30, 1996. Fernandez-Vargas, 548 U.S." }, { "docid": "13421980", "title": "", "text": "original) (quoting 8 C.F.R. § 241.8(e)). . The Supreme Court in Fernandez-Vargas suggests in dicta that the above statutory and regulatory provisions \"rais[e] the possibility of asylum.\" See Fernandez-Vargas, 548 U.S. at 35, 126 S.Ct. 2422 n.4. It is true that an alien who \"expresses a fear of returning to the country\" designated in the reinstatement order \"shall be referred to an asylum officer for a reasonable fear determination.” 8 C.F.R. § 208.31(a), (b). Furthermore, if that asylum officer determines that the alien has established \"a reasonable fear of persecution or torture” — a showing relevant to establishing eligibility for asylum — the alien is referred to an Immigration Judge. 8 C.F.R. § 208.31(e). However, the regulations are clear that this referral to an Immigration Judge is for the purpose of considering the alien’s “request for withholding of removal only.” Id. (emphasis added). Accordingly, Herrera-Molina’s counsel properly conceded at oral argument that, if we find that section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina, he would be ineligible to apply for asylum under the relevant statutory and regulatory provisions. . Because Herrera-Molina does not challenge the process afforded him in connection with his underlying deportation order, we need not consider the issue of whether we would have jurisdiction to review legal or constitutional challenges to the validity of that underlying deportation order. See Debeato v. Attorney Gen., 505 F.3d 231, 234-35 (3d Cir.2007); Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir.2006)." }, { "docid": "22729020", "title": "", "text": "circuit courts with jurisdiction to hear “constitutional claims or questions of law” that might otherwise be barred under the INA. That provision states in full: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) 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 filed with an appropriate court of appeals in accordance with this section. § 1252(a)(2)(D) (emphasis added). All three circuit courts that have considered the interplay between § 1252(a)(2)(D) and § 1231(a)(5) have held that § 1252(a)(2)(D) re-vests the circuit courts with jurisdiction over constitutional claims or questions of law raised in the context of reinstatement proceedings. See Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007) (“Congress clearly provided for our review of ‘constitutional claims or questions of law’ related to reinstatement orders.”) (empha sis added) (quoting 8 U.S.C. § 1252(a)(2)(D)); Debeato v. Atty. Gen. of U.S., 505 F.3d 231, 235 (3d Cir.2007) (“Accordingly, we conclude that § 1252(a)(2)(D)[ ] permits us to exercise jurisdiction over legal and constitutional challenges to final orders of removal, including those final orders that the Attorney General has reinstated pursuant to § 1231(a)(5).”); Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir.2006) (“Because § 1231(a)(5) limits judicial review, § 1252(a)(2)(D) prevents its operation in cases, such as this one, in which the validity of an underlying order is questioned on constitutional or legal grounds.”). In Martinez-Merino v. Mukasey, 525 F.3d 801, 804 (9th Cir.2008), which also addressed the reviewability of a collateral attack on an underlying removal order raised after the reinstatement of that order, the court acknowledged these three decisions but ultimately did not “decide [ ] the precise effect of § 1252(a)(2)(D) on our review of reinstated removal orders.” Both Debeato and Ramirez-Molina hold that § 1252(a)(2)(D) permits some collateral attack on an underlying removal order during review of a reinstatement order if the petitioner can show that he has suffered a “gross miscarriage of justice” in the initial deportation proceeding. Debea-to, 505 F.3d" } ]

[ { "docid": "2622676", "title": "", "text": "liable in damages. Ibid.; Stall & McDermott v. The Southern Cross, 5 Cir., 196 F.2d 309. In a case such as this, where the towed vessel is unmanned, the tower is clearly and solely responsible for the safe navigation of the tug and tow. The tower is always charged with responsibility for knowledge of the conditions of navigation in the waters where the tug operates, including knowledge of channels, depth of water, obstructions, shoals and other dangers known generally to men experienced in navigation. The Severance, 4 Cir., 152 F.2d 916, certiorari denied [Stone v. Diamond Steamship Transportation Corp.], 328 U.S. 853, 66 S.Ct. 1344, 90 L.Ed. 1626. Although an injury to the tow raises no presumption of fault on the part of the tug, 86 C.J.S., Towage, § 34, the cases hold that evidence of grounding of a barge or other vessel in tow of a tug establishes a prima facie case of negligence on the part of the tug. The Reichert Line, 2 Cir., 64 F.2d 13; The Anaconda, 4 Cir., 164 F.2d 224; The Evelyn v. Gregory, 4 Cir., 170 F.2d 899. The Court stated in The Anaconda, 164 F.2d at page 228, that a tug was not an insurer; “ * * * But when an accident occurs under circumstances in which it would not ordinarily have occurred had the proper care been exercised, there is imposed upon the tug the duty of proving that the proper care was exercised. * * * And the cases amply support the application of this rule when in a reasonably wide and well-marked channel the tow leaves the channel and is grounded.” Libelant has not come forward with any satisfactory explanation of why his tug went aground on a charted shoal outside the inland waterway channel, on a calm, clear day. Libelant admits that the tug passed too close to the beacon or marker, but argues that this was an error of judgment on the part of the mate. Under the circumstances here present, it was more than an error of judgment, it was negligence, and libelant is liable" } ]

[ { "docid": "14074122", "title": "", "text": ". The Anaconda, while proceeding under tow through a 500 foot channel, was grounded by its tug, and the court applied res ipsa loquitur because the accident would not have ordinarily occurred had the proper care been exercised. The damaged vessel was a barge, without engines, and was under complete control of its tug. In the Marian case, the third or last barge being towed by a tug collided with an anchored drilling rig. The court held that the burden of proof to show absence of negligence was on the moving vessel, the tug. In the Australia there was a collision between two barges, both of which were being towed by steamers. The court did not speak of res ipsa loquitur, but a presumption of negligence was raised against the Australia. The reported decision does not make it clear whether the Australia was completely in tow or proceeding partly under its own power. Nevertheless, it was being piloted by its own master and was in the tow of a tug steamer when the collision occurred. In the Sanders case the tug ran on a shoal, the barge’s momentum carried it by the tug and snapped the towing hawser, and the barge ran aground. The court said, “In a case such as this, where the towed vessel is unmanned, the tower is clearly and solely responsible for the safo navigation of the tug and tow.” [124 F.Supp. 82] The Texas Co. case involved a barge in tow of a tug. The tug allowed the barge to scrape the concrete wall of a canal at Lockport, Illinois, and a presumption of negligence was raised against the tug. The Kit, an English case, involved a tug towing a “dumb barge”. . The steamship Severance was being towed by a tug and piloted by the master of the tug. The pilot was in complete command of the ship. It took a sudden sheer to port and struck a bridge piling. The Fourth Circuit held that, there was a presumption of negligence on the part of the pilot that called for a reasonable explanation. The" }, { "docid": "16874621", "title": "", "text": "that it headed upstream; that he heard no signals and blew none, and as the tows approached the Socony 9 made a hard right turn when the Tucker was about 150 feet above Buoy No. 4, and the Socony 9 was only about 200 feet away; upon observing that swing, Colligan rang for full astern and made his prompt escape from the pilot-house as he realized that a collision was inevitable. He says that he heard three blasts from the Socony 9 just after the above swing was made, and that the collision took place at the place stated; and that the barge Socony 111 struck the Tucker tug on its starboard quarter, doing the damage complained of. Whether Colligan is right in saying that he was at all times close to the Staten Island edge of the channel is important in connection with the narrative-of Frantz, because it was what he observed of the Tucker tow which is relied upon to vindicate his failure to blow an alarm. The channel was about 400 feet wide and there was no other navigation then moving in these waters, and since the combined width of the tows did not exceed 115 feet, there was 285 feet of margin for clearance; of course there should have been no collision, and the fact that one occurred at all puts a heavy burden of explanation on both tugs. It would be possible for Frantz to be mistaken as to the position of the Tucker tow when he first observed it, since he was looking across an expanse of water at night and undertook to place the position of the other tow at a distance from him of better than a mile. Colligan says that he had no lookout on either the tug or the barge and, when he first saw the Socony 9, he observed her green starboard light but, because of the bend in the Kill, he could not tell then in which side of the channel the Socony tow was proceeding, and that he did not see the latter’s red light until the" }, { "docid": "1632849", "title": "", "text": "in character, so that the exact limits are not always the same. When this tug undertook to go through the Slue with these barges, it was about low water, so that the difficulty of finding water deep enough was at its maximum. There was also a good deal of sea running, and a current setting to the eastward. Besides the peculiar dangers of the channel itself, the operation of getting the barges safely through it was attended with a further difficulty involved in the length (if the tow as a whole. Between each' two of its members was a hawser 180 fathoms long, so that the tug must have been very nearly half a mile ahead of the West Virginia, the last of the two vessels she uras undertaking to direct. The only responsibility resting upon the barges was that of so steering as to keep in the wake of the tug; in all other respects the responsibility for their direction rested upon the tug. It is not only for the sake of vessels other than those she is towing that a tug which undertakes to navigate a fleet of this length is held to the extremest care; she owes the same degree of care toward the vessels in tow. The Gladiator, 79 Fed. 445, 25 C. C. A. 32. While there was little reason to apprehend difficulty in finding water enough for the tug or the hue, the West .Virginia drew 20 feet 3 inches aft, and in the Slue could not safely be permitted to go anywhere except -where the very deepest water was to be found. All of the above risks and difficulties attending the attempt to take the barges through the Slue channel were clearly to have been anticipated by the tug, when she elected to make that attempt instead of adopting the Great Round Shoal route. She was bound to know them, and to use that degree of care and skill which was necessary in order to avoid them. Damage to a vessel while being towed does not under ordinary circumstances raise a presumption of" }, { "docid": "1285917", "title": "", "text": "absolutely upon the presumption that a buoy placed by the government to indicate a dangerous obstruction to navigation in such harbor is in its proper position, but is bound, especially when towing a large ship past the obstruction, to observe the bearing of such buoy and watch for any change in its position.” The court further says: “Oertainly, there is no more important duty devolving upon the captain of a tug than to ascertain the location of an obstruction he has to move around with a large ship.” Did the tug meet the requirements imposed by law upon a steamer doing towage service in so dangerous a location ? The account which the master of the schooner gives is that the vessel proceeded from the wharf a short distance before she came to the range, which he says is marked by a tree and hoister on the mainland to the westerly and by certain Objects on Clark’s Island at the easterly end of the channel, these monuments being in range line. He says that when the tug boat came alongside that morning Capt. Holmes was in command and in the pilot house; and that he (Capt. Mehaffey) had seven men,— himself, the mate; steward, and four sailors; that Warren Allen, the local pilot, but not in the employment of the schooner, was aboard the tug with two of his sons; that the tug came along, backed under the schooner’s bow, and made fast to the tow with two hawsers; that the schooner had nothing to do with determining the length of the hawsers, but that this was determined by the mate of the tug; after the hawsers were made fast, the towboat started; soon after starting, when they got abreast of Ringbolt Ledge, and before getting to the rangeway, the tug turned to go down the channel at a point'50 or 60 feet to the northward of the center of the range line; that he saw the tug was swinging before he got into the range; that he spoke to the pilot, who said, “Holler at him, holler at him!”" }, { "docid": "14722969", "title": "", "text": "Company, there is a charted and well-known shoal known as the “11-foot roek.” The_ chart also shows that northerly of this rock and narrowing the channel at this point there is shallow water of only 14 feet depth at mean low tide. The average depth of the channel through the Kill is approximately 27 feet. Just above the narrow portion of the channel, on the Staten Island side of the Southwest Reach, was a red buoy which not only served to mark the easterly bank of the channel, but to warn mariners of the 11-foot shoal and the shallow waters lying northerly of the rocks. The night was clear and cold, with light, westerly, or northwesterly winds. The tide was ebb, and the current favored the tow. As the captain of the tug navigated his tow around Tremley Point, proceeding at a rate of 7 knots an hour through the water, he encountered a cloud of vapors and smoke. The captain testified that, when he ran into the smoke, he reduced his speed to half speed, but was unable to say at what rate he continued on down the channel. Others on the tug and barge failed to notice any appreciable reduction in speed after the smoke was reached. According to the evidence of the captain of the barge, the tow had proceeded “just a little way” after encountering smoke when the barge hit the easterly bank of the channel. . The location of the stranded barge was about 100 feet from the red buoy which then appeared off the starboard quarter. At this point, according to the chart, the area of shallow water projects into the channel just above the 11-foot shoal. The tide was unusually low at about 10:30 o’clock p. m. when the barge stranded, and soundings showed a depth of only 12 to 13 feet. That the level of the water at the time of the stranding would be below mean low water was predicted by government tide tables. After the barge struck, she began to fill in the forward compartment, and it was impossible to" }, { "docid": "14074123", "title": "", "text": "In the Sanders case the tug ran on a shoal, the barge’s momentum carried it by the tug and snapped the towing hawser, and the barge ran aground. The court said, “In a case such as this, where the towed vessel is unmanned, the tower is clearly and solely responsible for the safo navigation of the tug and tow.” [124 F.Supp. 82] The Texas Co. case involved a barge in tow of a tug. The tug allowed the barge to scrape the concrete wall of a canal at Lockport, Illinois, and a presumption of negligence was raised against the tug. The Kit, an English case, involved a tug towing a “dumb barge”. . The steamship Severance was being towed by a tug and piloted by the master of the tug. The pilot was in complete command of the ship. It took a sudden sheer to port and struck a bridge piling. The Fourth Circuit held that, there was a presumption of negligence on the part of the pilot that called for a reasonable explanation. The pilot however was relying on a tug to tow the Severance, and the tug proved inadequate to do the job. In the Fribourg case the tug captain had boarded the Jules Fribourg to act as pilot. The vessel was proceeding under her own power but was assisted by a tug. The court did not speak in terms of res ipsa loquitur or presumptions, but held that the pilot was negligent in attempting to dock the vessel with only one tug. The Wilson case involved a schooner in charge of a Charleston Harbor pilot and being towed by a tug. The libelant alleged that the schooner was grounded because of the negligence of the pilot and the contributory negligence of the tug. The court held this pleading was sufficient and that the libel need not allege specific acts of negligence. The case was heard on its merits, and the libel against the pilot and the Charleston Pilots’ Association was dismissed. The damaged vessel was proceeding out of the harbor under tow, but the Charleston River Pilot" }, { "docid": "7803381", "title": "", "text": "of water, it was customary for tows to go through the pass, rather than the Uniontown lock. On the night of June 26 — 27, 1972, the Forwarder was approaching the Uniontown dam heading upstream. The Forwarder is a 5000 horsepower towboat, 168 feet long and 40 feet wide, owned and operated by OBL. At this time the master of the Forwarder was Stanley Roll and the pilot was Charles Young. The Forwarder was pushing 17 barges laden with ore, 15 ahead (3 wide and 5 long) and one lashed to each side. This made the tow 1070 feet long and 105 feet wide. At midnight the watch changed and pilot Young received the helm. All barges were inspected and found to be in good order. At this time the tow was nine miles below the Uniontown dam. The tow moved upstream until it was required to move out of the main channel, approximately three-quarters of a mile below the Uniontown lock, and stand out of the current waiting for a vessel coming downstream to negotiate the pass. Once the other vessel was below it, the Forwarder headed back into the main channel at full throttle with its search lights on. This throttle setting is customary when taking a tow from a full stop into a swift current, because it gives the tow sufficient maneuverability to maintain control in the current. However, when going through exceptionally rough water, such a throttle setting is dangerous, as excessive speed in such conditions can cause barges to dive under the water and sink. Pilot Young testified that he planned to throttle back shortly before the bow of the tow reached the pass so as to safely negotiate the head of water, but that while the bow was still 600 feet below the pass, the front three barges dove into the water and sank. All three barges were owned by OBL. The Coast Guard was immediately informed, and the next day it placed a marker on the sunken barges, which were approximately 300 feet from the Uniontown lock wall. At this time the pass" }, { "docid": "13027127", "title": "", "text": "ft. Then cross to a R/B temp DMK [right bank temporary daymark] approx. 200 yrds. above Bushwacker Lt. [light] 246.0 R/B with a channel width of 200 ft. wide, channel rebuoyed with 3 black cans 8 ft. and 2 red nuns 8V2 ft. Waverly gauge reading 11.3R. 28 October 80. The Corps of Engineers issued a channel report and steering directions stating that the Corps had found a depth of 8V2 feet for a length of 300 feet at Mile 246 on October 28, 1980. On October 30, 1980, the DAN C. BURNETT was downbound on the Missouri River with 9 loaded barges in tow. The deepest reported draft of the barges in tow was 8 feet 3 inches. On the morning of October 30, 1980, the DAN C. BURNETT, with its tow, passed the Coast Guard Cutter OBION. Captain Oberle had radio contact with Captain Pierce of the OBION as the OBION was going upstream. Also that morning, the DAN C. BURNETT had radio communication with the M/V LESTA K, several hours after the LESTA K had passed through Mile 246 going upstream. On October 30, 1980, at some point in time in the afternoon, the DAN C. BURNETT, piloted by Captain Herbst, grounded approximately in the middle of the marked navigation channel at Mile 246. The following barges were damaged in the accident of October 30, 1980: SCNO 1434, SCNO 1535, SCNO 1483, SCNO 1446, FUJA 106, SCNO 1450 and SCNO 1322. Barges SCNO 1434, SCNO 1322 and FUJA 106 were repaired following the accident. SCNO 1535, SCNO 1483, SCNO 1446 and SCNO 1450 have not had permanent repairs made as a result of the damages sustained on October 30, 1980. Shortly after the October 30, 1980 grounding, the Corps of Engineers sounded the area and discovered 5V2 feet to 6 feet of water within the navigation channel. The Coast Guard investigation revealed the proximate cause of the accident to be re duction of the water depth (to below 9 feet) due to shoaling. The Court finds the stipulated damage summary in the amount of $60,918.93 to be" }, { "docid": "1285925", "title": "", "text": "not in the deepest water as she approached Gangway Ledge, that she was out of position with reference to the rangeway, and that the schooner was not in the channel, there would then have-been too little time to have changed the course of the tug and avoided the stranding. The court is of the- opinion, from the preponderance of evidence, that the principal cause of the stranding of the schooner was that the master of the tug, although he had had many years’ experience in towing vessels at this point, did not know the channel; that he took the testimony of certain pilots as to where the location of the deepest water was; that he turned into the channel too early, and several feet too far to the northward; that he did this either without knowledge of the range marks, or without paying suitable attention to them, thinking that the deepest water was next to Gangway Ledge, whereas the preponderance of evidence clearly shows that the deepest water was near the center of the channel; that the tugboat did not follow the usual marks which pilots of experience had been accustomed to follow in going in and out, but attempted to go down on the northerly side of the channel in shoal water, under the mistaken impression that the deep water was at that point, giving the buoy only a small margin; and the result of the stranding shows that the schooner was approaching in such a way that she brushed the buoy, the buoy being found under her bilge after the tide had ebbed. It was the duty of the master further to know, with reference to the location of the buoy on Gangway Ledge, whether or not it was out of position at the time of the towage service. It is unnecessary to find whether or not the buoy was actually misplaced on that morning, but clearly it was the duty of the captain to be informed upon this fact before assuming the hazards of towing a large vessel down through this dangerous passage. In these respects the" }, { "docid": "14722968", "title": "", "text": "tug on the latter’s port side. The bow of the barge was about 59 feet forward of the bow of the tug and 79 feet forward of the wheelhouse. Around 8 o’clock in the evening, the tug with her tow left Poor House flats and proceeded down through the channel in Arthur Kill, which lies between the New Jersey shore and Staten Island. They proceeded down the westerly side of Prall’s Island through what is known as the Northwest Reach. As the channel rounds Tremley Point on the New Jersey shore, its course changes, first near the southerly end of Prall’s Island, and about 1,000 feet below at the northerly entrance of the Southwest Reach, so called, it again changes to SW%S. The Southwest Reach begins about 1500 feet northeasterly of the plant of the American Cyanamid Company, impleaded in these proceedings, and the channel runs in a straight line as it passes the Cyanamid Company’s works. At a point on the easterly side of the Kill and opposite the plant of the American Cyanamid Company, there is a charted and well-known shoal known as the “11-foot roek.” The_ chart also shows that northerly of this rock and narrowing the channel at this point there is shallow water of only 14 feet depth at mean low tide. The average depth of the channel through the Kill is approximately 27 feet. Just above the narrow portion of the channel, on the Staten Island side of the Southwest Reach, was a red buoy which not only served to mark the easterly bank of the channel, but to warn mariners of the 11-foot shoal and the shallow waters lying northerly of the rocks. The night was clear and cold, with light, westerly, or northwesterly winds. The tide was ebb, and the current favored the tow. As the captain of the tug navigated his tow around Tremley Point, proceeding at a rate of 7 knots an hour through the water, he encountered a cloud of vapors and smoke. The captain testified that, when he ran into the smoke, he reduced his speed to half" }, { "docid": "14722971", "title": "", "text": "float her even at high tide. She was not taken off until the next day. That the barge ran upon a well-known shoal cannot be doubted. The captain of the tug was unable to state definitely what course he followed in rounding Tremley Point. The best he can give is that he was within the limits of the channel. Prom all the evidence I find that he was not shaping his course down the westerly, or starboard, side of the channel. On the contrary, the location of the stranded barge admits of only one conclusion, and that is that the tug had adopted a course in rounding Tremley Point which brought the tow over to the extreme easterly edge of the channel at a point where the charted depth of the water at mean low water was only 14 feet, which was precisely the draft of the barge, and where, on the day in question, the water being below mean low level, was of insufficient depth to enable the barge to pass without striking the bank: Navigators had been cautioned by the United States Army engineers to use the New Jersey side of the dredged canal when passing Tremley Point because “numerous rocky shoals lie in the easterly or Staten Island side of this stretch of channel commencing opposite the mouth of the Rahway River and extending upstream.” The captain of the tug testified that when he first encountered the smoke he was some distance from the red buoy, and that he immediately sent one of the crew to look for lights along the shore while he himself looked for the red buoy. He had run past the buoy because, when he first saw it, it w,as some 35 feet away on the port side and very near amidships on the barge. He then swung his tug to the westward. • At this time he must have been well over on the port side of the channel, because, notwithstanding his attempt to turn the barge to the starboard side of the channel, the barge struck the easterly bank. The witnesses" }, { "docid": "14722970", "title": "", "text": "speed, but was unable to say at what rate he continued on down the channel. Others on the tug and barge failed to notice any appreciable reduction in speed after the smoke was reached. According to the evidence of the captain of the barge, the tow had proceeded “just a little way” after encountering smoke when the barge hit the easterly bank of the channel. . The location of the stranded barge was about 100 feet from the red buoy which then appeared off the starboard quarter. At this point, according to the chart, the area of shallow water projects into the channel just above the 11-foot shoal. The tide was unusually low at about 10:30 o’clock p. m. when the barge stranded, and soundings showed a depth of only 12 to 13 feet. That the level of the water at the time of the stranding would be below mean low water was predicted by government tide tables. After the barge struck, she began to fill in the forward compartment, and it was impossible to float her even at high tide. She was not taken off until the next day. That the barge ran upon a well-known shoal cannot be doubted. The captain of the tug was unable to state definitely what course he followed in rounding Tremley Point. The best he can give is that he was within the limits of the channel. Prom all the evidence I find that he was not shaping his course down the westerly, or starboard, side of the channel. On the contrary, the location of the stranded barge admits of only one conclusion, and that is that the tug had adopted a course in rounding Tremley Point which brought the tow over to the extreme easterly edge of the channel at a point where the charted depth of the water at mean low water was only 14 feet, which was precisely the draft of the barge, and where, on the day in question, the water being below mean low level, was of insufficient depth to enable the barge to pass without striking the" }, { "docid": "5989928", "title": "", "text": "that the course taken by the navigator in the emergency .was such as might well have been taken by a prudent and skillful navigator. These facts are not in dispute: The Cromwell was 312 feet long,'43 feet wide, 21.10 feet deep, 3,086 tons gross, 1,877 ttms net, register, drawing at the time of the collision 16 feet of water. The agent: of the Cromwell employed the tug Gladiator, owned by the Diamond Steamboat & Wrecking Company to tow the ship up the river through the draw of the railroad bridge to the Swift Fertilizer Works. Although the draw of the bridge had been approved by the government engineers as a lawful structure, the bridge crossed the river diagonally, and only 61 feet of open way was left for the passage of vessels. This construction and the limited space, together with the presence of shoals in the river, made the towing of vessels through the draw a task so difficult and perilous that it was the subject of much anxiety and complaint by all pilots and persons concerned in the commerce of the port. The main peril to be guarded against was the sheering of the ship on its near approach to the lower shoal necessary to the passage. The Diamond Company was a local company of good reputation, and Sanders, who directed the movements of the tug Gladiator was an experienced officer and pilot, who had taken a number of other vessels through the draw. The master of the Cromwell had no knowledge of the river, and relied entirely on Sanders to navigate tug and tow. The pilots of the port used two methods in towing large vessels through the draw: Some pulled the tow through by a hawser attached to the tug; others used what they thought the safer method of lashing the tug to the vessel and at a certain point releasing the vessel while in motion, thus “kicking” it through. But there was no consensus of opinion that the former method was less safe than the latter, nor do the facts justify such a conclusion. A number" }, { "docid": "19824664", "title": "", "text": "of each barge and the length of the pole extending down from the barge to which the depth sounder is attached, the pilot can determine how much water is beneath the tow. 18. On March 4, 1981, Pilot Chism and Captain Nochta were using only one (1) of the two (2) depth sounders on the NAYE’s tow. It was attached to a pole one (1) foot below the lead (empty) barge in the center string, which barge had a draft of one (1) and one-half (Vs) feet. However, on March 4, 1981, Pilot Chism was unaware of the depth that the sounder was set, to indicate an area not navigable by the NAYE and its tow. There was no evidence that the sounder alarm went off prior to the grounding of the barge CHEM-104. 19. Pilot Chism was negligent in two (2) ways with respect to the depth sounders. First, he was negligent in not being aware of the depth to which the attached sounder was set. Second, both he and Captain Nochta were negligent in not attaching the second depth sounder to the lead barge of the stern string or to the barge CHEM-104 itself, where the barge CHEM-104 was in the stern string rather than the center string. The depth sounder attached to the lead barge in the center string was not in a position to record or register the depth over which the port string barges were going, including the barge CHEM-104 which contained a toxic chemical. 20. It was neither unreasonable nor negligent for ACL and Inland Tugs to vest their captains and pilots with discretion as to the use of depth sounders. 21. A rebuttable presumption of negligence on the part of Pilot Chism arises from the fact that the barge CHEM-104 grounded outside of the navigable channel. Said presumption was not rebutted by ACL and Inland Tugs. The strength of said presumption is bolstered by the fact that other vessels had made this crossing prior to March 4, 1981, without incident. 22. The grounding of the barge CHEM-104, and the subsequent escape of styrene," }, { "docid": "1062490", "title": "", "text": "the court explained the difficulties faced by a vessel in AJAX’s dilemma: “When the pilot of the vessel received word from the tower operator at 12:34 he had two choices: Either turn to port and drop anchor in the area immediately adjacent to the Pennsylvania edge of the channel, or time the opening of the drawspan by moving slowly up the channel and arrive at the bridge slightly after 12:40 when he expected the draw would be opened. Large vessels cannot stop immediately or hover in one spot in narrow channels by turning around in circles; they must either drop anchor or proceed above a minimum speed in order to maintain headway * * (Ibid, 320 F.2d at page 267) There the S. S. MARIE LEONHARDT was 522 feet in length. Here the Tug AJAX and tow had a combined length in excess of 600 feet and the channel in question was about 125 feet wide. Thus, there was no way for the AJAX and tow to “heave to” or turn into the current. She would have been aground, across the There are many cases which hold that a vessel, having properly sounded channel and completely at the mercy of the strong eastward current that would have pushed the entire flotilla into the full width of the Paris Road Bridge. If the AJAX had simply proceeded at “slow speed,” without going astern on her engine, she would have invited collision between her lead barge and the steel pontoon of the bridge. With a cargo of gasoline, collision between steel barges is to invite disaster. As it was, she collided with the less dangerous wooden piling. The Clement case is the leading authority for this doctrine and is still the law. There a vessel gave the appropriate signal but the bridge did not open in time, and despite the avoiding action taken by the vessel, she could not stop in time and the collision resulted. In finding the bridge solely at fault, the Court said: “A bridge spanning a navigable river is an obstruction to navigation tolerated because of necessity and" }, { "docid": "16874620", "title": "", "text": "not draw more than 9 feet, there was sufficient depth outside the channel to admit of the presence of this tow where Frantz placed it. Due to the Tucker’s heading, of course she showed only her red light to Frantz at the time of which, he speaks; he says that thereafter the Tucker tow changed her course abruptly and shot across the waters of the Kill to the Staten Island side of the channel, opening her green light to the Socony 9 when the latter was about 300 feet below Buoy No. 4. It should be said that each Captain puts his speed at about 6 miles an hour; the Socony tow having whatever tide there was, under foot, and the Tucker tow having to breast it but being aided by the northeasterly wind; this means that they approached at about 1200 feet a minute or 20 feet a second. For the Tucker, her Captain says that he first observed the upbound tow when it was off the Shell Oil Dock at Sewaren, and then that it headed upstream; that he heard no signals and blew none, and as the tows approached the Socony 9 made a hard right turn when the Tucker was about 150 feet above Buoy No. 4, and the Socony 9 was only about 200 feet away; upon observing that swing, Colligan rang for full astern and made his prompt escape from the pilot-house as he realized that a collision was inevitable. He says that he heard three blasts from the Socony 9 just after the above swing was made, and that the collision took place at the place stated; and that the barge Socony 111 struck the Tucker tug on its starboard quarter, doing the damage complained of. Whether Colligan is right in saying that he was at all times close to the Staten Island edge of the channel is important in connection with the narrative-of Frantz, because it was what he observed of the Tucker tow which is relied upon to vindicate his failure to blow an alarm. The channel was about 400 feet" }, { "docid": "3771314", "title": "", "text": "should have had such familiarity with the location of Mission Bay Rock, even though the buoy, indicating where it was, had been displaced some 200 feet. That distance, at the short range from Long wharf, where the towage began, was sufficient to have been observed by a careful pilot. In fact the master of the Hercules did not even look to see if the buoy was where he could not have failed to know the rock was. All this, of course, has to do with the finding of fault on the part of the master, negligence pure and simple. Philadelphia Electric Co. v. Curtis Bay Towing Co., 260 F.Supp. 505 (E.D.Pa.1966), aff’d, 390 F.2d 125 (3d Cir. 1968), also strongly relied upon by appellant, is practically a replica of The Hercules. No reference is made to 33 C.F.R. Section 62.25-55 (1970) or to the rule of The Pennsylvania. The master of a tug with a coal barge in tow, at what was close to low water, instead of proceeding directly to the channel adjacent to the Windy Point coal pier off the Philadelphia Naval Base, cut across Horseshoe Shoal, a well-known obstacle to navigation, in the immediate vicinity of the coal pier and fetched up. The court held the master of the tug solely at fault despite the displacement of a buoy that was supposed to mark both the shoal and the channel. This was because the buoy was “so far removed from its charted position” that the master of the tug, who was perfectly familiar with local conditions off the coal pier, should have known that there was not sufficient water in the river to warrant navigation “at the then stage of the tide.” The various cases involving ranges apply the same principle. If a range is available all the navigator need do is to look up the range. If the buoy is on the range instead of where it is supposed to be the navigator is on notice that it has been displaced. And, if he fails to take the trouble to look, of course he is at" }, { "docid": "3771313", "title": "", "text": "of danger, still it does not justify navigators, particularly masters of tugs, who are selected and employed for their supposed familiarity with obstacles to navigation in crowded harbors, in following blindly these signals of danger. The towing operation in The Hercules consisted in moving the Benjamin F. Packard, a vessel 244.2 feet in length and 26.8 feet in depth, from the north side of a wharf in San Francisco Bay “into the stream for the purpose of completing her loading.” Precisely opposite the wharf and only 475 feet away was Mission Bay Rock, a well-known obstacle to navigation. The buoy marking Mission Bay Rock had been displaced a distance of 200 feet. While the master of the Hercules did not know of this displacement, the court held that the duty of the master of a tug to his tow required him to be familiar with the presence and location of the rock. The holding was (81 F. at 225): Applying the law as established by these cases, it follows that the master of the Hercules should have had such familiarity with the location of Mission Bay Rock, even though the buoy, indicating where it was, had been displaced some 200 feet. That distance, at the short range from Long wharf, where the towage began, was sufficient to have been observed by a careful pilot. In fact the master of the Hercules did not even look to see if the buoy was where he could not have failed to know the rock was. All this, of course, has to do with the finding of fault on the part of the master, negligence pure and simple. Philadelphia Electric Co. v. Curtis Bay Towing Co., 260 F.Supp. 505 (E.D.Pa.1966), aff’d, 390 F.2d 125 (3d Cir. 1968), also strongly relied upon by appellant, is practically a replica of The Hercules. No reference is made to 33 C.F.R. Section 62.25-55 (1970) or to the rule of The Pennsylvania. The master of a tug with a coal barge in tow, at what was close to low water, instead of proceeding directly to the channel adjacent to" }, { "docid": "19824658", "title": "", "text": "not unsafe. Captain Nochta, the captain of the NAYE on March 4, 1981, and a duly licensed river pilot and tankerman, had complete discretion to place the barges into any configuration that he determined safe for navigation and this Court credits his testimony that it was safe to place the barge CHEM-104 in the port stern string. It is speculation to assume that the barge CHEM-104 would not have grounded if it had been placed in the center string of the tow. It was neither unreasonable nor negligent for ACL and Inland Tugs to vest sole discretion with respect to tow configuration in their captains. 9. During the late afternoon of March 4, 1981, at approximately 5:40 p.m., the NAYE was proceeding northbound on the Upper Mississippi River under the helm of Pilot Michael Chism, a duly licensed river towboat pilot, when the barge CHEM-104 grounded on an unknown and unmarked sandbar or other object ten (10) to fifteen (15) feet outside of the navigable channel while making the crossing between Ells-wood light, below the crossing, and Burr Oak light, above the crossing, at approximately Mile 253.5. 10. Prior to committing himself to making the crossing, Pilot Chism stopped the NAYE and its tow at the beginning of the crossing and made a visual observation of the existing conditions in the river channel. Both Pilot Chism and Captain Nochta were aware that the U.S. Coast Guard had not made its first buoy run of the year because many buoys were missing or dragged off position. Three (3) of the five (5) black buoys that mark the channel on the right descending bank (Missouri side of the river) were missing and only one black buoy, located approximately one (1) mile up river near Red’s Landing, was visible. 11. Pilot Chism was familiar with this stretch of the river and had successfully navigated this crossing on numerous prior occasions. 12. This was the first run by either Pilot Chism or Captain Nochta on the Upper Mississippi following the winter of 1980-81. It is common practice for towboats to begin their navigation season" }, { "docid": "1632861", "title": "", "text": "nor the Ivie was drawing more than 16% feet, so that no danger of grounding either of them was to be apprehended. The fact, however, that the West Virginia needed nearly 4 feet more depth than either of them was not sufficiently allowed for. Whether she grounded forward or aft, at first, I do not think is clearly shown by the evidence, nor do I consider it important to determine. The master of the tug was entirely ignorant regarding the altered conditions in the channel recently created by the new shoal, and of the fact that a new buoy was to be placed or had been placed to mark its extremity. There had been nothing in his previous experience to warn him that a vessel of the barge’s draft could not be safely towed past the three buoys at low water on the line between the two lightships. Neither on the charts nor in the books of sailing directions in common use, and published prior to the location of the new buoy, was anything.to be found to indicate that such were the facts. I think the evidence sfiows that, before the new shoal had rendered it dangerous, a vessel of the barge’s draft.could safely have been towed where he was towing this barge at the time she grounded, under the like conditions, and that the danger incurred by him was of recent origin. But-1 am unable to regard his ignorance of the facts as they existed at the time the barge grounded as an exoneration of the tug from the charge of negligence. It was long ago held in this court that a tug is bound, as regards her tow, to know the nature of the bottom, as well as the depth of the water, and this whether in their natural state or as changed by permanent excavations. The Effie J. Simmons (D. C.) 6 Fed. 639; The Henry Chapel (D. C.) 10 Fed. 777. In a locality more than usually dangerous, as this was, the tug is held to a proportionately higher degree of care and skill. The Somers" } ]

[ { "docid": "8440187", "title": "", "text": "De La Rosa challenges this construction of the statute. We hold that an alien is only “lawfully admitted for permanent residence” for purposes of the INA if his or her adjustment to lawful permanent resident complied with substantive legal requirements. We therefore affirm the decision of the BIA and deny the petition. I. De La Rosa came to the United States from the Dominican Republic at some point during the 1980s. De La Rosa adjusted her status to lawful permanent resident in 1989 pursuant to the amnesty provision of the Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.). Eligibility for the amnesty provision, which expired in November 1986, was limited to aliens who “entered the United States before January 1,1982” and “resided continuously in the United States in an unlawful status since such date and through the date [their] application” was filed. 8 U.S.C. § 1255a(a)(2)(A). In 1992, De La Rosa was convicted of a felony drug sale in New York state court pursuant to a guilty plea. In August 2004, she was placed in removal proceedings based on her status as a criminal alien. De La Rosa conceded that she was removable and declared her intention to apply for a waiver under § 212(c). Prior to its repeal in 1996, § 212(c) granted the Attorney General the discretion to waive grounds of exclusion for “[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelin-quished domicile of seven consecutive years.” 8 U.S.C. § 1182(c) (repealed 1996); see also Matter of G-A-, 7 I. & N. Dec. 274 (B.I.A.1956) (extending § 212(c) relief to deportation proceedings). Although § 212(c) has been repealed, it continues to be applied to aliens, such as De La Rosa, who pleaded guilty to certain deportable offenses prior to the effective date of the change. See Drax v. Reno, 338 F.3d 98, 102 (2d Cir.2003); see also INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct." } ]

[ { "docid": "23470976", "title": "", "text": "stamp on her passport, whereupon the DAO denied her request for documentation, crossed out the 1-551 stamp on her passport, and wrote “cancelled with prejudice” over the seal. Assuming the truth of Sharkey’s factual allegations, the agency’s acts clearly constituted final agency action. First, by revoking Sharkey’s (allegedly) previously granted LPR status through its inscription of “cancelled with prejudice” on her stamped passport, the agency “con-summat[ed its] decisionmaking process” regarding both the revocation and its refusal to provide her with proof of her previously-conferred status. See Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 733-34 (D.C.Cir.2003) (holding that an “unequivocal statement of the agency’s position” is sufficient to meet the first requisite for final agency action). Second, the revocation was clearly an action “by which rights or obligations have been determined” and which “directly affect[ed] the parties,” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. I.B (ii) Ripeness The APA requirement of final agency action relates closely to the prudential doctrine of ripeness. “Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat'l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). This claim is ripe for review. First, because the dispute presents legal questions and there is a concrete dispute between the parties, the issues are fit for judicial decision. See id. at 812, 123 S.Ct. 2026. It is true that the factual record is not yet fully developed, and many putatively important pieces of evidence have been crossed out and made illegible, making judicial review potentially difficult. Cf. id. However, as discussed below, discovery may clarify the factual record. Further, because Sharkey’s 1-551 stamp, if genuine, creates a rebuttable presumption of LPR status, see 8 C.F.R. § 103.2(b)(17), the absence of a clear, accompanying factual record may facilitate, rather than frustrate, judicial review. That is, if the agency does not provide countervailing evidence sufficient to rebut the presumption created by her" }, { "docid": "23470954", "title": "", "text": "claims arise under the Administrative Procedure Act (“APA”); (b) the Mandamus Statute, codified at 28 U.S.C. § 1361, on the ground that her claims seek to compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int’l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without following mandatory statutory and regulatory rescission procedures. The Director moved to dismiss Shar-key’s complaint (a) for lack of subject matter jurisdiction under Fed. R. Civ. Pr. 12(b)(1) or (b) for summary judgment. In support of its motions, the Director provided the district court with copies of Mr. Sharkey’s Petition for Alien Relative (I-130 petition) and Ms. Sharkey’s adjustment of status application (Form 1-485). Based on this evidence, the Director contended that the petitioner, as a matter of law, could not have been granted LPR status, because an approved 1-130 petition is a prerequisite to eligibility for adjustment of status and Sharkey’s 1-130 petition was not approved. In support of this last contention, the director argued that all approved 1-130 petitions have an approval stamp on the “action block,” but no approval stamp appears on the “action block” on Sharkey’s 1-130 petition. Thus, the Director contended that even if the immigration official reviewing Sharkey’s case decided to adjust her status, this decision had no legal effect or validity because Sharkey was not eligible, as a matter of law, for LPR status. The Director urges us “not to spin a grant of [LPR] status out of what was, at most, an INS Officer’s mistake.” In response, Sharkey noted that the action block on the 1-130 petition contained a written inscription that had been crossed-out and made illegible. She contended that the crossed-out writings indicated approval of the petition. In addition, she requested discovery to determine why the 1-551 stamp on her passport and the writings on her 1-130 petition had all been crossed out. She stated that if the administrative record did not contain any more" }, { "docid": "23470983", "title": "", "text": "visit abroad.”). Similarly here, the court would not be changing Sharkey’s LPR status; rather, it would be finding facts,- and applying law, to determine whether she was granted that status in the first place. Moreover, by providing that a reviewing court, in the removal context, can determine whether a petitioner has LPR status, see 8 U.S.C. § 1252(e)(2), Congress has made clear that courts may determine whether an alien has LPR status without violating the separation of powers. III. Motion for dismissal under 12(b)(6) “Although the district court erroneously dismissed the action pursuant to Rule 12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise proper based on failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d Cir.2006) (determining that district court’s Rule 12(b)(1) dismissal was erroneous, then holding that dismissal under Rule 12(b)(6) would have been erroneous too); Adeleke v. United States, 355 F.3d 144, 147 (2d Cir.2004) (reviewing court may affirm district court decision on any ground in the record). The Director asks us to so proceed because “the Court should reject Sharkey’s attempt to spin a grant of lawful permanent resident status out of what was, at most, an INS officer’s mistake” in placing a Temporary 1-551 stamp on her passport. In order to state a claim upon which relief can be granted, a complaint need only plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). We continue to assume the truth of Sharkey’s allegations, including her allegation that the immigration officer decided to adjust her status and her allegation that her adjustment application and her husband’s 1-130 petition were filed concurrently. The Director argues that rescission hearings were unnecessary because, as a matter of law, regardless of the immigration officer’s decision, Sharkey’s status could not have been adjusted to LPR since Sharkey was not eligible" }, { "docid": "23470977", "title": "", "text": "review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat'l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). This claim is ripe for review. First, because the dispute presents legal questions and there is a concrete dispute between the parties, the issues are fit for judicial decision. See id. at 812, 123 S.Ct. 2026. It is true that the factual record is not yet fully developed, and many putatively important pieces of evidence have been crossed out and made illegible, making judicial review potentially difficult. Cf. id. However, as discussed below, discovery may clarify the factual record. Further, because Sharkey’s 1-551 stamp, if genuine, creates a rebuttable presumption of LPR status, see 8 C.F.R. § 103.2(b)(17), the absence of a clear, accompanying factual record may facilitate, rather than frustrate, judicial review. That is, if the agency does not provide countervailing evidence sufficient to rebut the presumption created by her 1-551 stamp-such as testimony by the immigration official who reviewed her case stating he did not intend to adjust her status-then Sharkey might prevail on the current record. Finally, Congress has empowered district courts, sitting in habeas jurisdiction, to determine whether an alien has been granted LPR status, suggesting that this sort of issue is fit for judicial decision. See 8 U.S.C. § 1252(e)(2)(C) (providing that in the removal context, a habeas court may decide whether a “petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence”). Second, Sharkey would suffer significant hardship if no court considered the issue. It is true that Sharkey could renew her application for LPR status if the court withheld review, but that is a far cry from the remedy she seeks. If Sharkey prevails in all aspects of her APA suit, the court will recognize that she was previously granted LPR status, set aside the unlawful rescission, and order the agency to furnish her with proof of her LPR" }, { "docid": "23470966", "title": "", "text": "grant occurred. In Subhan v. Ashcroft, the Seventh Circuit, discussing a similar question, interpreted Section 1252(a)(2)(B)® as precluding review, in relevant part, only of “a judgment denying a request for adjustment of status.” 383 F.3d 591, 594 (7th Cir.2004). This accords with our decision in Sepulveda v. Gonzales, in which we held that “8 U.S.C. § 1252(a)(2)(B) does not strip courts of jurisdiction to review non-discretionary decisions regarding an alien’s eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)®.” 407 F.3d 59, 62-63 (2d Cir.2005) (footnote omitted) (emphasis added). Sharkey does not seek review of a denial of her application for LPR status. Rather, she seeks judicial recognition that her application was approved. In order to determine whether Sharkey’s status was adjusted, the district court need only address whether the immigration officer reviewing Sharkey’s case was empowered to adjust Sharkey’s status and, if so, whether the officer decided to adjust Shar-key’s status. In the course of this inquiry, the district court will not subject to judicial review any discretionary decision by the agency. The court will simply seek to determine what decision was made, not whether the decision was correct or a proper exercise of discretion. Thus, the Section 1252(a)(2)(B)® bar does not apply. LA (ii) Jurisdiction to Determine Sharkey’s Unlawful Rescission Claim We next address whether Section 1252(a)(2)(B) strips the district court of jurisdiction to review whether the agency was required to hold a rescission hearing prior to rescinding Sharkey’s status. The rescission regulation provides in relevant part: If it appears to a district director that a person residing in his or her district was not in fact eligible for the adjustment of status made in his or her case ... a proceeding shall be commenced by the personal service upon such person of a notice of intent to rescind, which shall inform him or her of the allegations upon which it is intended to rescind the adjustment of his or her status. 8 C.F.R. § 246.1 (emphasis added) (implementing 8 U.S.C. § 1256(a)). For reasons similar to those outlined above, Section 1252(a)(2)(B)(i) does not bar the district" }, { "docid": "23470989", "title": "", "text": "1-130 petition was filed on his or her behalf before April 30, 2001. . Although the standardized stamp is marked \"temporary” and contains an expiration date, it is temporary evidence of a permanent status. A leading treatise explains the process: Upon approving the application, the USCIS grants the applicant the status of lawful permanent resident.... A permanent resident card (Form 1-551, formerly 1-151), popularly known as the green card, is eventually delivered to the applicant as evidence of lawful admission for permanent residence. As such delivery may take months, the interviewing officer places an endorsement of the approval in the applicant’s passport as temporary evidence of residence to facilitate foreign travel and return to the United States. That endorsement, as well as the 1-551 green card, are deemed by the USCIS regulations to be official records for purposes of verifying the grant of lawful residence.... The stamped endorsement of approval reads: 'Processed for 1-551. Temporary Evidence of Lawful Admission for Permanent Residence Valid Until [date]. Employment Authorized.' 4 Gordon, Mailman, & Yale-Loehr, 51.06[2][e] & n. 58.1 (2007) (quoting 8 C.F.R. § 103.2(b)(17)). . Sharkey advances two theories of how she obtained her LPR status. First, Sharkey argues that her status was adjusted because the immigration official reviewing her case decided to adjust her status. On this theory, the temporary 1-551 stamp is mere evidence of the immigration officer’s decision to adjust her status and the determinative issue is still whether the immigration official reviewing her case decided to adjust her status. Second, Sharkey appears to argue that she derived LPR status from the placement of the stamp on the passport, even if the placement of the stamp was inadvertent. On this theory, the mere existence of the stamp might create LPR status, even if the officer reviewing her case decided not to adjust her status. Shar-key offers no support for this latter theory and the cited regulation provides none. The theory has no merit: if the agency can show, through \"countervailing evidence,” 8 C.F.R. § 103.2(b)(17), that the officer reviewing her case decided not to adjust her status, then Sharkey's" }, { "docid": "23470953", "title": "", "text": "evidence,” a “passport[ ] ... endorsed to show admission for permanent resident status ... will be regarded as establishing lawful admission for permanent residence,” 8 C.F.R. § 103.2(b)(17). At oral argument, the government conceded that absent mistake or fraud, an immigration official places a temporary 1551 stamp on an alien’s passport only if the officer has decided to adjust the alien’s status to a permanent resident. Sharkey argued that when the agency crossed out the 1-551 stamp on her passport and wrote “cancelled with prejudice” above the seal, the agency attempted to rescind her LPR status without following the mandatory statutory and regulatory procedures governing the rescission of LPR status. As a remedy, Sharkey asked the district court to hold unlawful the putative rescission of her LPR status and to order the agency to issue her new documentary evidence of her previously granted LPR status. In her complaint, Sharkey asserted, inter alia, the following jurisdictional bases for her claims: (a) the Federal Question Statute, codified at 28 U.S.C. § 1331, on the ground that her claims arise under the Administrative Procedure Act (“APA”); (b) the Mandamus Statute, codified at 28 U.S.C. § 1361, on the ground that her claims seek to compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int’l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without following mandatory statutory and regulatory rescission procedures. The Director moved to dismiss Shar-key’s complaint (a) for lack of subject matter jurisdiction under Fed. R. Civ. Pr. 12(b)(1) or (b) for summary judgment. In support of its motions, the Director provided the district court with copies of Mr. Sharkey’s Petition for Alien Relative (I-130 petition) and Ms. Sharkey’s adjustment of status application (Form 1-485). Based on this evidence, the Director contended that the petitioner, as a matter of law, could not have been granted LPR status, because an approved 1-130 petition is a prerequisite to eligibility for adjustment of status" }, { "docid": "23470986", "title": "", "text": "inappropriate to resolve in dismissing an action under Rule 12(b)(6). See Bell Atlantic Corp., 127 S.Ct. at 1965 (“Rule 12(b)(6) does not countenance ... dismissals based on a judge’s disbelief of a complaint’s factual allegations.” (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989))). Second, and more important, the Director’s argument proves too much. According to the Director, there is no need for a rescission hearing in any case where the alien was not in fact eligible for the adjustment. The proffered reason is that, if the alien was not eligible for the adjustment, no adjustment could have been made as a matter of law, and, therefore, there was no legally conferred status to rescind. If this were correct; the rescission statute and regulation would be nullities, because, together, they call for a rescission hearing, within five years, in precisely those circumstances in which the Director contends no hearing is necessary: i.e., when the alien was “not in fact eligible” for the adjustment, see 8 U.S.C. § 1256(a); 8 C.F.R. § 246.1 (“[A rescission] proceeding shall be commenced” when it appears to the Director that the alien “was not in fact eligible for adjustment of status.” (emphases added)). In effect, the Director seeks to avoid rescission hearings by asserting the very fact (i.e., the alien’s ineligibility) that the agency is required to prove during a rescission hearing, see Kim v. Meese, 810 F.2d 1494, 1496 (9th Cir.1987) (during a rescission hearing, the agency must prove that the alien was “ineligible for adjustment of status”). This would allow the Director to avoid rescission hearings in every case. We cannot accept the Director’s interpretation of the statute and the regulation, which would render them nullities. For these reasons, we conclude that Sharkey’s complaint states two APA claims upon which relief can be granted. However, because Sharkey’s claims for mandamus duplicate her claims under the APA, and because we hold that Sharkey’s APA claims survive the Director’s 12(b)(1) and 12(b)(6) motions to dismiss, we affirm the district court’s dismissal of the mandamus claims on the alternative ground" }, { "docid": "23470967", "title": "", "text": "court will simply seek to determine what decision was made, not whether the decision was correct or a proper exercise of discretion. Thus, the Section 1252(a)(2)(B)® bar does not apply. LA (ii) Jurisdiction to Determine Sharkey’s Unlawful Rescission Claim We next address whether Section 1252(a)(2)(B) strips the district court of jurisdiction to review whether the agency was required to hold a rescission hearing prior to rescinding Sharkey’s status. The rescission regulation provides in relevant part: If it appears to a district director that a person residing in his or her district was not in fact eligible for the adjustment of status made in his or her case ... a proceeding shall be commenced by the personal service upon such person of a notice of intent to rescind, which shall inform him or her of the allegations upon which it is intended to rescind the adjustment of his or her status. 8 C.F.R. § 246.1 (emphasis added) (implementing 8 U.S.C. § 1256(a)). For reasons similar to those outlined above, Section 1252(a)(2)(B)(i) does not bar the district court from deciding Sharkey’s unlawful rescission claim because the agency has a non-discretionary duty to commence rescission procedures prior to rescinding LPR status, see 8 C.F.R. § 246.1. The jurisdictional bar in Section 1252(a)(2)(B)(ii) does not apply either. That section bars review, in relevant part, of “any other decision or action ... the authority for which is specified to be in the discretion of the Attorney General or Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). We have discussed the applicability of Section 1252(a)(2)(B)(ii) to circumstances very similar to those present in this case. See Firstland Int'l, Inc., 877 F.3d 127. In Firstland, the immigration agency attempted to revoke its approval of an immigrant visa petition on the ground that the petitioner was never eligible for that immigrant visa. Id. at 129. The agency attempted to revoke the visa under the putative authority of 8 U.S.C. § 1155, which provides, in relevant part, that the Attorney General “may, at any time, for what he deems to be good and sufficient cause,” revoke a" }, { "docid": "23471000", "title": "", "text": "who participated in the decision to give testimony explaining their action” when this is \"the only way there can be effective judicial review.” Overton Park, 401 U.S. at 420, 91 S.Ct. 814. In any event, where, ■ as here, the agency may have the burden to produce countervailing evidence, see 8 C.F.R. § 103.2(b)(17), the agency’s failure to produce evidence may be counted against the agency. . See Zaoutis v. Kiley, 558 F.2d 1096, 1100 (2d Cir.1977) (\"If ... no notice to rescind is filed within the fivé-year period, the 'alien may justifiably rely on his adjusted status.”). . Nothing in De La Rosa v. U.S. Dep’t of Homeland Sec., 489 F.3d 551 (2d Cir.2007) (per curiam), is to the contrary. In De La Rosa, we addressed a very different question-an LPR’s continuing eligibility for a § 212(c) waiver-and we did not discuss or mention the rescission statute or regulation. Further, the type of mistake here alleged by the Director, if true, was the result of the agency's mistaken insertion of an 155(1) stamp, despite nonap-proval of an underlying petition that Sharkey concurrently filed, not the result of the \"alien [’s] [failure to] compl[y] with the substantive legal requirements in place at the time she was admitted for permanent residence,” De La Rosa, 489 F.3d at 553 (emphases added)." }, { "docid": "23470992", "title": "", "text": "federal courts and Sepulveda's interpretation of the statute applies to all federal courts. The district court also emphasized that Section 1252(a)(5) vests exclusive jurisdiction in the Courts of Appeals to review final orders of removal; however, this section is inapplicable because Sharkey does not seek review of a final order of removal. . There is an initial dispute concerning whether Sharkey’s claim that she was granted LPR status is a factual allegation or a legal conclusion couched as a factual allegation. Sharkey alleges that the immigration official who reviewed her case decided to adjust her status. This is a factual allegation, which we must assume to be true. However, Sharkey also argues that the immigration officer’s decision had the legal effect of adjusting her status within the meaning of the rescission statute and regulation. In response, the government argues that, even if we assume that the immigration officer decided to adjust Sharkey’s status, this decision was void ab initio and without legal effect because Shar-key was not eligible, as a matter of law, to have her status adjusted. We agree that Sharkey’s assertion of LPR status raises a mixed question of law and fact. We assume the truth of Sharkey's factual allegations but we do not assume the truth of Sharkey's legal assertion that the facts as alleged had the legal effect of “adjusting” Sharkey's LPR status within the meaning of the rescission statute and regulation. In any event, very little turns on this distinction for purposes of this appeal. . There is a second reason why Section 1252(a)(2)(B)(i) cannot be interpreted to bar judicial review of whether LPR status' was granted. In the removal context, Section 1252(e)(2)(C) explicitly empowers district courts to make this determination. See 8 U.S.C. § 1252(e)(2)(C) (providing that in the removal context, a district court may decide \"whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence.\"). Significantly, the jurisdictional bar in Section 1252(a)(2)(B)(i) — unlike the jurisdictional bars in the adjacent Section 1252(a)(2)(A) — makes no exception for Section 1252(e) determinations. Cf." }, { "docid": "23470952", "title": "", "text": "her passport. The DAO who saw her on the visit manually crossed out the 1-551 stamp and wrote “cancelled with prejudice” above the seal on the stamp. Sharkey has not yet received her Alien Registration Card or any other suitable evidence of her alleged LPR status. On June 14, 2005, Sharkey filed an action in the United States District Court for the Southern District of New York suing the District Director (“the Director”) of the New York District of the United States Customs and Immigration Services (“USCIS”) in her official capacity. Shar-key argued that her status was adjusted to that of an LPR when, on November 29, 2001, the immigration officer reviewing her case decided to adjust her status. As evidence that the immigration official decided to adjust her status, Sharkey appended to her complaint a copy of the temporary I-551 stamp placed on her passport, which reads “Processed for 1-551. Temporary Evidence of Lawful Admission for Permanent Residence Valid Until — November 29, 2002.” She argued that by regulation, “in the absence of countervailing evidence,” a “passport[ ] ... endorsed to show admission for permanent resident status ... will be regarded as establishing lawful admission for permanent residence,” 8 C.F.R. § 103.2(b)(17). At oral argument, the government conceded that absent mistake or fraud, an immigration official places a temporary 1551 stamp on an alien’s passport only if the officer has decided to adjust the alien’s status to a permanent resident. Sharkey argued that when the agency crossed out the 1-551 stamp on her passport and wrote “cancelled with prejudice” above the seal, the agency attempted to rescind her LPR status without following the mandatory statutory and regulatory procedures governing the rescission of LPR status. As a remedy, Sharkey asked the district court to hold unlawful the putative rescission of her LPR status and to order the agency to issue her new documentary evidence of her previously granted LPR status. In her complaint, Sharkey asserted, inter alia, the following jurisdictional bases for her claims: (a) the Federal Question Statute, codified at 28 U.S.C. § 1331, on the ground that her" }, { "docid": "23470984", "title": "", "text": "147 (2d Cir.2004) (reviewing court may affirm district court decision on any ground in the record). The Director asks us to so proceed because “the Court should reject Sharkey’s attempt to spin a grant of lawful permanent resident status out of what was, at most, an INS officer’s mistake” in placing a Temporary 1-551 stamp on her passport. In order to state a claim upon which relief can be granted, a complaint need only plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). We continue to assume the truth of Sharkey’s allegations, including her allegation that the immigration officer decided to adjust her status and her allegation that her adjustment application and her husband’s 1-130 petition were filed concurrently. The Director argues that rescission hearings were unnecessary because, as a matter of law, regardless of the immigration officer’s decision, Sharkey’s status could not have been adjusted to LPR since Sharkey was not eligible for that status. Specifically, the Director argues that Shar-key, as an alien who entered the country unlawfully, was not eligible for LPR status unless and until her husband’s Alien Relative petition (Form 1-130) was approved. See 8 U.S.C. §§ 1255(i)(l)(B)(i) & (i)(2)(B). The Director argues, further, that the record evidence establishes that the 1-130 petition was not approved, since the form contains no approval stamp in the “action stamp” block. Thus, according to the Director, even if the immigration official reviewing Sharkey’s case decided to adjust her status, Sharkey’s ineligibility for that status rendered the decision invalid ab ini-tio. This argument is unavailing at this stage of the litigation for two reasons. First, Sharkey points out that the action block in the Form 1-130 contains writing that has been crossed out and made illegible. She argues that this suggests that the petitions were initially approved, but that the evidence of their approval was later crossed out. She has asked for discovery on these issues. The crossed-out inscriptions create a factual issue, which it would be" }, { "docid": "8440190", "title": "", "text": "The BIA noted that De La Rosa bore the burden of proof in establishing her eligibility for a waiver and that the IJ had “properly found that [De La Rosa] failed to meet this burden.” II. De La Rosa primarily argues that because she had previously adjusted her status to lawful permanent resident, the IJ erred in determining that she had not been “lawfully admitted” for purposes of § 212(e). In construing the INA we are guided by the familiar two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (recognizing that “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication” (quotation marks omitted)). We ask first “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. However, “[i]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. We need not concern ourselves with the first step of the Chevron analysis as the BIA has offered a permissible interpretation of the statute to which we would defer if we were to find that the language at issue was ambiguous. In Matter of Koloamatangi, 23 I. & N. Dec. 548 (B.I.A.2003), the BIA explained that an alien whose status has been adjusted to lawful permanent resident but who is subsequently determined in an immigration proceeding to have originally been ineligible for that status has not been “lawfully admitted for permanent residence” because the “alien is deemed, ab initio, never to have obtained lawful permanent resident status.” Id. at 551. While Koloamatangi" }, { "docid": "23470958", "title": "", "text": "previously conferred status .... ” (emphasis added). On appeal, Sharkey concedes that the decision to grant or deny LPR status is left to the agency’s discretion. She argues, however, that in order to rescind an adjustment to LPR status, the USCIS has a non-discretionary duty to follow the mandatory rescission procedures, as set out in 8 C.F.R. § 246.1-7, which it did not do. Sharkey contends that the alleged rescission is reviewable under Firstland because Section 1252(a)(2)(B) does not strip federal courts of jurisdiction to review an agency’s failure to comply with its non-discretionary duty to adhere to procedures for rescinding a prior grant of immigration status. See Firstland, 377 F.3d at 132. DISCUSSION “On appeal from a judgment entered pursuant to Federal Rule of Civil Procedure 12(b)(1), we review conclusions of law de novo.” Building and Const. Trades Council of Buffalo, New York and Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 144 (2d Cir.2006). “The party invoking federal jurisdiction bears the burden of establishing” that jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Each factual issue necessary to support subject matter jurisdiction “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. A district court has discretion to hold a hearing to resolve factual disputes that bear on the court’s jurisdiction, but where, as here, the case is at the pleading stage and no evi-dentiary hearings have been held, “[i]n reviewing the grant of a motion to dismiss [under Rule 12(b)(1)] we must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor.” Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001); see Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“At the pleading stage, general factual allegations ... may suffice [to establish jurisdiction], for on a motion to dismiss we presume that general allegations embrace those specific facts that are" }, { "docid": "23470999", "title": "", "text": "involved in her case to explain whether the petitions were initially granted and, if so, when and why the approval was rescinded; she also sought an affidavit from DAO Kinosewitz to explain the placement of the 1-551 stamp on her passport. In a suit under the APA, discovery rights are significantly limited. The respondent agency must turn over the whole administrative record as it existed at the time of the challenged agency action, but normally no more. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); see also Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (\"The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.”). However, there is an exception whereby \"the court may require the administrative officials who participated in the decision to give testimony explaining their action” when this is \"the only way there can be effective judicial review.” Overton Park, 401 U.S. at 420, 91 S.Ct. 814. In any event, where, ■ as here, the agency may have the burden to produce countervailing evidence, see 8 C.F.R. § 103.2(b)(17), the agency’s failure to produce evidence may be counted against the agency. . See Zaoutis v. Kiley, 558 F.2d 1096, 1100 (2d Cir.1977) (\"If ... no notice to rescind is filed within the fivé-year period, the 'alien may justifiably rely on his adjusted status.”). . Nothing in De La Rosa v. U.S. Dep’t of Homeland Sec., 489 F.3d 551 (2d Cir.2007) (per curiam), is to the contrary. In De La Rosa, we addressed a very different question-an LPR’s continuing eligibility for a § 212(c) waiver-and we did not discuss or mention the rescission statute or regulation. Further, the type of mistake here alleged by the Director, if true, was the result of the agency's mistaken insertion of an 155(1) stamp, despite" }, { "docid": "23470978", "title": "", "text": "1-551 stamp-such as testimony by the immigration official who reviewed her case stating he did not intend to adjust her status-then Sharkey might prevail on the current record. Finally, Congress has empowered district courts, sitting in habeas jurisdiction, to determine whether an alien has been granted LPR status, suggesting that this sort of issue is fit for judicial decision. See 8 U.S.C. § 1252(e)(2)(C) (providing that in the removal context, a habeas court may decide whether a “petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence”). Second, Sharkey would suffer significant hardship if no court considered the issue. It is true that Sharkey could renew her application for LPR status if the court withheld review, but that is a far cry from the remedy she seeks. If Sharkey prevails in all aspects of her APA suit, the court will recognize that she was previously granted LPR status, set aside the unlawful rescission, and order the agency to furnish her with proof of her LPR status. The mere opportunity for Sharkey to submit to the discretion of the agency a renewed request for LPR status would not relieve the hardship caused by our withholding court consideration of Sharkey’s claim that she already has that status. Thus, the issues are ripe for review. Cf. McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 95 L.Ed. 173 (1950) (holding that a declaratory judgment suit to recognize an alien’s residence, and consequent eligibility for citizenship, was ripe for review even though the same issues could be presented on habeas review). I.B (iii) Exhaustion Finally, under the APA, “[c]ourts are not free to impose an exhaustion requirement unless the specific statutory scheme at issue imposes such a requirement.” Air España, 165 F.3d at 151 (internal quotation marks omitted); see Darby, 509 U.S. at 154,113 S.Ct. 2539 (holding that under the APA, the doctrine of exhaustion applies “only when expressly required by statute or when an agency rule requires appeal before [judicial] review and the administrative action is made inoperative pending that review”). The" }, { "docid": "23470998", "title": "", "text": "5 U.S.C. § 704 (limiting review to \"final agency action for which there is no other adequate remedy in a court”). The Supreme Court narrowly construed this limitation to apply only in instances when there are “special and adequate review procedures” that permit an adequate substitute remedy. See Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). Although Sharkey, if ordered removed under 8 U.S.C. § 1225(b)(1), could raise her putative LPR status in a habeas petition, see 8 U.S.C. § 1252(e)(2), Sharkey has not been ordered removed and, further, the only remedy available in such a proceeding would be an order requiring a different type of removal hearing, see 8 U.S.C. § 1252(e)(4)(B). Thus, Section 1252(e) is plainly not a \"special and adequate review procedure” sufficient to oust a court of its normal jurisdiction under the APA. See Bowen, 487 U.S. at 904-07, 108 S.Ct. 2722. . In response to the Director's motions for dismissal under 12(b)(1) and summary judgment, Sharkey asked for limited discovery from the immigration officials involved in her case to explain whether the petitions were initially granted and, if so, when and why the approval was rescinded; she also sought an affidavit from DAO Kinosewitz to explain the placement of the 1-551 stamp on her passport. In a suit under the APA, discovery rights are significantly limited. The respondent agency must turn over the whole administrative record as it existed at the time of the challenged agency action, but normally no more. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); see also Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (\"The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.”). However, there is an exception whereby \"the court may require the administrative officials" }, { "docid": "23470957", "title": "", "text": "its finding that decisions to grant, deny, or rescind LPR status are committed to agency discretion by law. The district court held, finally, that Section 1252(a)(2)(B)(i) of Title 8 strips federal courts of jurisdiction to review “any judgment regarding the granting of relief’ under Section 1255 of Title 8, which, inter alia, governs applications for adjustment of status. The district court reasoned that even if this section bars review only of discretionary decisions, the bar nevertheless precluded Sharkey’s suit because Sharkey challenged agency action committed to agency discretion. The district court concluded that Shar-key had failed to allege a proper jurisdictional base for her claims and dismissed her suit for lack of subject matter jurisdiction. In so concluding, the district court relied at each stage of the analysis on its finding that the USCIS has non-reviewable discretion with regard to applications for adjustment of immigration status. This wide discretion [encompasses] cases like Sharkey’s, which allege unlawful withholding of permanent resident status either by denial of such status in the first instance or by rescission of previously conferred status .... ” (emphasis added). On appeal, Sharkey concedes that the decision to grant or deny LPR status is left to the agency’s discretion. She argues, however, that in order to rescind an adjustment to LPR status, the USCIS has a non-discretionary duty to follow the mandatory rescission procedures, as set out in 8 C.F.R. § 246.1-7, which it did not do. Sharkey contends that the alleged rescission is reviewable under Firstland because Section 1252(a)(2)(B) does not strip federal courts of jurisdiction to review an agency’s failure to comply with its non-discretionary duty to adhere to procedures for rescinding a prior grant of immigration status. See Firstland, 377 F.3d at 132. DISCUSSION “On appeal from a judgment entered pursuant to Federal Rule of Civil Procedure 12(b)(1), we review conclusions of law de novo.” Building and Const. Trades Council of Buffalo, New York and Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 144 (2d Cir.2006). “The party invoking federal jurisdiction bears the burden of establishing” that jurisdiction exists. Lujan v. Defenders of Wildlife, 504" }, { "docid": "23470979", "title": "", "text": "status. The mere opportunity for Sharkey to submit to the discretion of the agency a renewed request for LPR status would not relieve the hardship caused by our withholding court consideration of Sharkey’s claim that she already has that status. Thus, the issues are ripe for review. Cf. McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 95 L.Ed. 173 (1950) (holding that a declaratory judgment suit to recognize an alien’s residence, and consequent eligibility for citizenship, was ripe for review even though the same issues could be presented on habeas review). I.B (iii) Exhaustion Finally, under the APA, “[c]ourts are not free to impose an exhaustion requirement unless the specific statutory scheme at issue imposes such a requirement.” Air España, 165 F.3d at 151 (internal quotation marks omitted); see Darby, 509 U.S. at 154,113 S.Ct. 2539 (holding that under the APA, the doctrine of exhaustion applies “only when expressly required by statute or when an agency rule requires appeal before [judicial] review and the administrative action is made inoperative pending that review”). The Director has not pointed to any statute or regulation that expressly mandates exhaustion of her claims. I.B (iv) Committed to Agency Discretion The district judge determined that the challenged actions were committed to agency discretion. Final agency action is not subject to judicial review under the APA “to the extent that such action is committed to agency discretion by law.” Lunney, 319 F.3d at 558 (internal quotation marks omitted); see 5 U.S.C. § 701(a)(2). This restriction applies only in “those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (internal citation omitted); see Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (restriction applies only if the statute or regulation said to govern the challenged agency action “is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion”). As we have" } ]

[ { "docid": "23268963", "title": "", "text": "urge that Mississippi’s one-year statute of limitations for certain intentional torts should apply to Bogard’s claims, thus barring relief for all but the stabbing incident of July 7,1972. Mississippi’s one-year statute of limitations reads: All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the per son or title, and for libels, shall be commenced within one year next after the cause of such action accrued, and not after. Miss.Code § 15-1-35. The one-year limitation period is qualified, however, by Mississippi Code § 15-1-61, which tolls the statute of limitations period for those in Bogard’s circumstance in most of the above actions: If any person entitled to bring an action for assault, assault and battery, or maiming, shall, at the time the cause of such action accrued, have been in custody as a convict, such person may bring such action within one year after his release. Since we apply the same limitation period that the State would apply, the tolling section of the Mississippi limitations scheme must be borrowed along with the substantive provision. The defendants attempt to circumvent the tolling statute by characterizing Bogard’s suit as one for “menace,” which is subject to the one-year limitation period but is not listed as among the actions tolled in § 15-1-61. Bogard’s suit is not one for “menace,” as that action is customarily defined. See Dennis v. Travelers Ins. Co., 234 So.2d 624, 626 (Miss.1970); 57 C.J.S. Menace p. 1048 (1948). His action is more akin to assault or maiming, both tolled under § 15 -1-61, or an action sounding in negligence, which is covered by Mississippi’s general six-year limitation period. §15 1 49. Bogard’s suit is therefore not barred by any applicable statute of limitations. C. The Eleventh Amendment and Monell The plaintiff brought his suit against the Parchman defendants both in their individual and official capacities. Insofar as the defendants are sued in their individual capacities they enjoy a qualified immunity defense, and as we hold in Part IV, that defense absolves them of individual liability in this" } ]

[ { "docid": "6669680", "title": "", "text": "omitted). A material fact is one which has the “potential to affect the outcome of the suit under the applicable law.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (internal citations and quotation omitted). The moving party bears the initial burden of establishing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If that burden is met, the opposing party can avoid summary judgment only by providing properly supported evidence of disputed material facts that would require trial. See id. at 324, 106 S.Ct. at 2553. In evaluating motions for summary judgment, however, the court will not consider “conclusory allegations, improbable inferences, and unsupported speculation.” Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004) (internal citation omitted). B. Statute of Limitations Goebel asserts that Cambridge’s claims are barred by a three-year statute of limitations because they arise from and are preempted by the Copyright Act, are subject to the Copyright Act’s three-year limitations period, and accrued, at the latest, in September 1995, more than three years before the plaintiff filed its initial complaint. Alternatively, Goebel argues that even if Cambridge’s claims arise under Massachusetts law, they are governed by the state’s three-year limitations period for tort claims. However, Cambridge argues that its claims arise under state law, are contractual in nature, and are governed by the six-year statute of limitations for contract actions, which does not bar its claims. Moreover, Cambridge argues that even if the Copyright Act governs this case, the Act’s limitations provision does not apply, and the court still must look to state law for the appropriate statute of limitations. Finally, Cambridge argues that any three year statute of limitations either had not expired before suit was brought or was tolled. For the reasons detailed herein, this court finds that Cambridge’s claims are governed by the Copyright Act, including the Act’s three-year statute of limitations, and that Cambridge’s ownership claims are time-barred. Furthermore, this court concludes that even if state law arguably applied in this case, the result would" }, { "docid": "17163009", "title": "", "text": "issue, and the court will review the merits of the arguments. Beall v. Kearney & Trecker Corp., 350 F.Supp. 978, 981 (D.Md.1972). II. Statute of Limitations A. Applicable Statute of Limitations In his Opposition to the motions for summary judgment filed by Anchor and Local 557, the plaintiff asserts that the six month filing period contained in § 10(b) of the National Labor Relations Act should be applied prospectively when the factors enunciated in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), are considered. In the present case, the plaintiff contends, the three year statute of limitations initially applied in this case at 510 F.Supp. 716 is appropriate. On June 8, 1983, the Supreme Court held in this very case that the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160, applied to actions brought by an employee for breach of contract and breach of fair representation, DelCostello, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). A review of that decision reveals that the Supreme Court applied its decision retroactively to the parties before the Court. In the companion case consolidated with DelCostello, United Steelworkers v. Flowers, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), Flowers had filed suit in 1979 on a cause of action which had accrued 10 months earlier. The court of appeals had found his action timely under a state three-year statute. The Court applied the six month statute of limitations of § 10(b) and held that Flowers’ action was, therefore, barred. Because there was a question in DelCostello as to whether certain events operated to toll the running of the statute of limitations, this case was remanded only for an examination of that issue. Thus, the Court retroactively applied its decision to the causes of action accruing several years earlier. See Lincoln v. District 9 of International Ass’n of Machinists, 723 F.2d 627, 630 (8th Cir.1984); Rogers v. Lockheed-Georgia Co., 720 F.2d 1247, 1249 (11th Cir.1983). In a recent case before the Fourth Circuit, Murray v." }, { "docid": "18326115", "title": "", "text": "granted after the 90 day statutory period had expired. His court-appointed counsel then waited eight months to file suit. No other pleadings were filed in the record except the motion for appointment of counsel. Since the Supreme Court has held that filing a motion for appointment of counsel does not give sufficient timely notice to the defendants, and since Jackson has failed to set forth sufficient equitable principles to justify tolling for eight months the statute of limitations, the defendants’ motion for summary judgment on Jackson’s Title VII claim must be granted. Pala and McCurley also have moved for summary judgment on Jackson’s second cause of action which was filed pursuant to 42 U.S.C. § 1981 and the Fifth Amendment to the United States Constitution. Defendants contend this second cause of action should be dismissed because: (1) they are not governmental entities; and (2) plaintiff’s suit on his second cause of action has prescribed. Defendants’ first contention is without merit. A cause of action based on 42 U.S.C. § 1981 is applicable to private parties for private discriminatory acts. Sanders v. Dobbs House, Inc., 431 F.2d 1097, 1099 (5th Cir. 1970); Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.1974), and cases cited therein at 503 n. 4. Pala and McCurley further contend that Jackson’s § 1981 action is time barred since it was filed more than one year after his employment was terminated. Since there is no specifically stated or otherwise relevant federal statute of limitations for claims under § 1981, the controlling period would ordinarily be the most appropriate period provided by state law. Board of Regents v. Tomanio, 446 U.S. 478, 485, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975). The Fifth Circuit has held that the general one year tort prescription statute, Louisiana Civil Code article 3492 applies in suits filed under § 1981. Cross v. Lucius, 713 F.2d 153, 156 (5th Cir.1983); Jones v. Orleans Parish School Board, 688 F.2d 342, 344 (5th Cir. 1982). Jackson, in" }, { "docid": "13358146", "title": "", "text": "evidence “show[s] 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). Title 15 U.S.C. § 1640(e) states that, “Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.... ” The parties do not dispute that the one-year statute of limitations applies to this case and that the statute of limitations bars Weston’s complaint unless the statute of limitations is tolled. Rather, Weston argues that the statute of limitations on her TILA claim was tolled during the pendency of the Dressel class action and that once tolling applies, her complaint was filed within the applicable one-year period. The district court determined that Weston’s TILA claim was not tolled and, therefore, that her claim was barred by the one-year statute of limitations. In American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 552-53, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that the commencement of a class action suit tolls the applicable statute of limitations for all class members who make timely motions to intervene upon denial of certification. The Court tolled the statute of limitations because class actions are designed to “avoid, rather than encourage, unnecessary filing of repetitious papers and motions,” 414 U.S. at 550, 94 S.Ct. 756, and because the “policies of ensuring essential fairness to defendants and of barring a plaintiff who has slept on his rights, are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” 414 U.S. at 554-55, 94 S.Ct. 756 (citations omitted). In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350-52, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court extended the" }, { "docid": "4487673", "title": "", "text": "day limit prescribed in Title VII. Defendant’s motion in this regard is puzzling since the Court previously addressed and decided this precise issue. See 445 F.Supp. at 145. Defendant brings no additional factors to the Court’s attention which warrant modification of the previous decision. Accordingly, defendant’s motion for summary judgment as to count one is denied for the reasons set forth in 445 F.Supp. at 145. COUNT TWO The motion of defendants Sharon Board of Education and Eugene Artac for summary judgment on count two of the complaint is predicated on several contentions. The contentions will be addressed seriatim. Defendants initially contend that count two is barred by the applicable statute of limitations. Count two was filed on June 8, 1977, approximately seven years after plaintiff’s resignation. Defendants therefore contend that even if a six year statute of limitations is applied, plaintiff’s action under Section 1983 is untimely. Since the Civil Rights Acts contain no statute of limitations, the limitation to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law. Wilson v. Sharon Steel Corp., 549 F.2d 276, 280 (3d Cir. 1977). Recently it has been decided in this circuit that the appropriate Pennsylvania State statute of limitations for a case of this nature is six years. Davis v. United States Steel Supply, Division of United States Steel Corporation, 581 F.2d 335 (3d Cir. 1978). However, this Court has previously held that denial of reinstatement as well as termination can be the applicable act of discrimination for jurisdictional purposes in civil rights suits. Failure to reinstate is particularly appropriate as a jurisdictional basis for suit in the case sub judice in view of the fact that plaintiff specifically requested future reinstatement in her letter of resignation. She, therefore, would not have reason to know of the alleged discriminatory policy permanently terminating her status as a teacher until after her pregnancy and convalescence when it became apparent that her request for reinstatement would not be granted. Accordingly, Count" }, { "docid": "20152913", "title": "", "text": "to run at the time of the wrongful acts or omissions {see Stevens v. Equidyne Extractive Indus. 1980, 694 F.Supp. 1057, 1068 [S.D.N.Y.1988]). Although generally the statute begins to accrue at the time the malpractice occurs, the statute may be tolled, as in medical malpractice actions, when there is a “continuous relationship” between the accountant and client (Hall & Co. v. Steiner & Mon-dore, 147 A.D.2d 225, 543 N.Y.S.2d 190 [3d Dep’t 1989]). That is, the running of the statute of limitations is prolonged until the accountant ceases rendering professional services to the plaintiff (see Hall & Co. v. Steiner and' Mondore, supra; see also Wilkin v. Dana R. Pickup & Co., 74 Misc.2d 1025, 347 N.Y.S.2d 122 [Sup.Ct. Allegany County 1973]). In applying CPLR 214(6), the Court is mindful that under certain circumstances, a six-year statute of limitations applies in malpractice actions which are essentially based upon breach of contract (see, e.g., Axel Johnson, Inc. v. Arthur Andersen & Co., 738 F.Supp. 772, 775 [S.D.N.Y.1990]). However, where, as in this case, the existence of a contract or agreement is neither alleged in the complaint nor in the affidavits, the six-year statute is inapplicable and the three-year limitation period applies (see Wilkin v. Dana R. Pickup & Co., supra). This action was commenced by the plaintiff on March 26, 1987. Thus, the Court must determine whether this action accrued prior to March 26,1984. If so, this claim is time barred. Since the defendant moved pursuant to Fed.R.Civ.P. 56 on this ground, the standard governing summary judgment applies, and not the standard on a motion for judgment on the pleadings. That is, summary judgment may only be granted if it is demonstrated that there are no genuine issues of material fact for trial (see Fed.R.Civ.P. 56[c]; Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 571-573 [2d Cir.1991]). “[T]he judge’s function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there does indeed exist a genuine issue for trial” (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106" }, { "docid": "7888060", "title": "", "text": "to the claims against it arising under the Federal Tort Claims Act be and the same is hereby denied. 4. That the motion for summary judgment filed by the United States against plaintiff-intervenor Carrie Bell Griffin be and the same is hereby granted insofar as it relates to the constitutional claims arising under the Tucker Act. 5. That the motion for summary judgment filed by the United States against plaintiff-intervenor Carrie Bell Griffin be and the same is hereby denied insofar as it relates to the contract claims arising under the Tucker Act. . As authority for this proposition, plaintiffs cite Willis v. Reddin, 418 F.2d 702 (9th Cir. 1969), which held that the District Court had erred in applying the. six-month statute of limitations provided by the California Tort Claims Act to a § 1983 action against police officers. Reading this case in the light of the substantial body of case law which lias developed in support of the proposition that applicable state limitation periods will be adopted in the absence of express federal limitation periods, this Court is of the opinion that Willis v. Reddin stands only for the more limited proposition that the District Court should have applied California’s three-year “liability created by statute” limitation rather than the six-month Tort Claims statute of limitations. . Because Alabama law is looked to for the proper statute of limitations to apply to a cause of action arising under the civil rights statutes, it is arguable that Alabama law should also be looked to for any rules suspending or tolling that statute of limitations. Title 7, § 42 of the Alabama Code extends the period within which any action based upon fraud may be brought for an additional period of one year following discovery. This statute is in conflict with the general federal principle that a fraudulently concealed cause of action does not accrue until discovered, Holmberg v. Armbrecht, supra, and must, . therefore, be rejected in favor of the inconsistent federal rule. 42 U.S.C. § 1988. . Responses to interrogatories addressed by the United States to plaintiffs who are" }, { "docid": "23268964", "title": "", "text": "limitations scheme must be borrowed along with the substantive provision. The defendants attempt to circumvent the tolling statute by characterizing Bogard’s suit as one for “menace,” which is subject to the one-year limitation period but is not listed as among the actions tolled in § 15-1-61. Bogard’s suit is not one for “menace,” as that action is customarily defined. See Dennis v. Travelers Ins. Co., 234 So.2d 624, 626 (Miss.1970); 57 C.J.S. Menace p. 1048 (1948). His action is more akin to assault or maiming, both tolled under § 15 -1-61, or an action sounding in negligence, which is covered by Mississippi’s general six-year limitation period. §15 1 49. Bogard’s suit is therefore not barred by any applicable statute of limitations. C. The Eleventh Amendment and Monell The plaintiff brought his suit against the Parchman defendants both in their individual and official capacities. Insofar as the defendants are sued in their individual capacities they enjoy a qualified immunity defense, and as we hold in Part IV, that defense absolves them of individual liability in this case. The plaintiff maintains, however, that when sued in their official capacities, the suit against the defendants becomes in effect a suit against the State of Mississippi. The plaintiff further argues that because the jury’s award would be paid by the State itself if the defendants are liable in their official capacities, the defense of qualified immunity would no longer be applicable. The flaw in the plaintiff’s argument is that he may not maintain this action against the State of Mississippi. Retrospective monetary relief against a state is barred by the eleventh amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The plaintiff contends that the recent Supreme Court decision in Monell v. Soc. Serv. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), has abrogated the state’s eleventh amendment immunity when it is sued pursuant to 42 U.S.C. § 1983. Nothing in Monell, however, goes that far. The Supreme Court explicitly noted that its Monell holding was “limited to local government units which are not" }, { "docid": "15857277", "title": "", "text": "406. . The tort analogy “unduly cramps the significance of section 1983 as a broad, statutory remedy.” Id. Although Garmon involved Iowa statutes of limitations, the rationale of that case may reasonably be said to extend to the present factual context. We recognized in Garmon that the Civil Rights Act creates rights and imposes obligations different from any which would exist at common law. Id. at 404, 406, citing Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970). We also stated that while Iowa has no specific period of limitations for actions based upon liability created by statute, such a statute of limitations may appropriately govern a § 1983 action. Id. at 406 n.ll. An instance involving a state period of limitations for statutory liabilities is presented by this appeal. Minnesota law provides a six-year statute of limitations for statutory actions. This limitations period is the obvious alternative to the two-year tort limitations period applied by the district court. Under the rationale of Garmon, the federal cause of action should not be foreclosed by a limitations period directed at the alleged underlying tortious conduct. Id. at 404. Minnesota’s six-year statute of limitations clearly would apply, were appellant today to file his § 1983 action based on (1) For libel, slander, assault, battery, false imprisonment, or other tort, resulting in personal injury, and all actions against physicians, surgeons, dentists, hospitals, sanitoriums, for malpractice, error, mistake or failure to cure, whether based on contract or tort[.] a cause that accrued subsequent to our decision in Garmon. The present case is complicated, however, by the fact that this is in a significant respect a pre- Garmon case. The incident which gave rise to appellant’s § 1983 claim occurred on October 7, 1975. Appellant brought suit approximately five years and four months later, on January 29, 1981. The district court issued its summary judgment on July 31, 1981. All of these developments occurred before our decision in Garmon on January 5, 1982. Appellant’s cause of action is saved only if Garmon applies retroactively. (i) The Standard of Retroactivity. Retroactive application of decisional law in" }, { "docid": "15712501", "title": "", "text": "on a criminal sentence. Defendant has not established the date of completion of Munoz’s entire prison sentence. The court cannot make any determination as a matter of law on the record presented. Defendant’s supplemental briefing provided no help to resolve these questions. The issue is material because California recognizes a tolling period for incarcerated prisoners. If a person entitled to bring an action “is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the term of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.” Cal.Code Civ. P. § 852.1(a) (emphasis added); see Ellis, 176 F.3d 1183 (applicable limitations period for arrestee’s federal civil rights claims was tolled as result of his incarceration; therefore, action brought within one year from arrestee’s release date was timely filed). The tolling provision applies only to “an action to recover damages or that portion of an action that is for the recovery of damages, relating to the conditions of confinement, including an action brought by that person pursuant to Section 1983 of Title 42 of the United States Code.” Cal. Code Civ. P. § 352.1(c). In addition to an injunction, Munoz seeks damages related to the conditions of his County Jail confinement. Neither side raises the potential application of the statutory tolling provision on the timeliness of Munoz’s claims nor briefs the issue. An issue of material fact appears from the evidence presented that precludes summary adjudication for Defendant on grounds the action is time-barred with respect to the first three periods of County Jail confinement Munoz challenges. The court may grant a motion to dismiss a plaintiffs complaint on statute of limitations grounds only if the allegations in the complaint, construed with the requisite liberality, would not permit the plaintiff to prove that the statute was tolled. Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir.1993) (citing Jablon v. Dean Witter & Co., 614 F.2d 677, 682" }, { "docid": "11124974", "title": "", "text": "a § 1983 suit based on a Fifth Amendment violation. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam). Under Heck and Trimble, Jackson’s Fifth Amendment claim accrued when his initial conviction was overturned in March 2004. The length of the limitations period for § 1983 actions is governed by state law. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.2004). The parties agree, as they must, that the applicable statute of limitations under California law is two years. Id. (“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury actions.... Effective January 1, 2003, the new California statute of limitations for assault, battery, and other personal injury claims is two years instead of one.” (citing Cal.Civ.Proc.Code § 335.1)). Jackson filed his complaint in September 2004, six months after his claim accrued and well within the statute of limitations. Thus, Jackson’s claim is not time-barred. C. Defendants also contend that summary-judgment was properly awarded to Barnes because, even if Jackson succeeds on the merits of his claim, he cannot show that he is entitled to damages. Defendants point out that Jackson was not imprisoned for any additional time as a result of his first, illegal conviction. They are correct, as at the time of Jackson’s first conviction he had already begun to serve 29 years for various unrelated convictions. His earliest release date for those convictions, along with the rape conviction on which this Court denied relief, was in 2007, two years after Jackson was convicted for the second time. Thus, as defendants assert, Jackson is not entitled to compensatory damages for any time he spent in prison. The fact that Jackson is not entitled to compensatory damages for any time he spent in prison does not mean, however, that he would not be entitled to any damages were he to prevail on the merits of his action. Although the district court did not reach the damages issue, it is clear, for example, that punitive damages may be recovered in appropriate circumstances under § 1983. See" }, { "docid": "8100332", "title": "", "text": "for the proposition that a motion to intervene in one action tolls the statute of limitations in a separate, independent action. As the Supreme Court held in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983): Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action, (emphasis added) Id. at 354, 103 S.Ct. at 2397-98. Plaintiffs made the unusual decision in the case sub judice of pursuing both alternatives, seeking to intervene in Payne first and later filing their own suits. The decision to intervene in Payne may have been timely made, however, the filing of the complaint in this action on September 29, 1983 was untimely for the reasons stated above. Plaintiffs have advanced no explanation for their failure to file EEOC charges simultaneously with their motion to intervene in Payne. Accordingly, the court finds that the plaintiffs’ motion to reconsider the court’s dismissal of their Title VII claims should be denied. B. Plaintiffs’ Section 1981 Claims Defendants ask the court to reconsider its earlier denial of their motion to dismiss the plaintiffs’ Section 1981 claims on statute of limitations grounds. In this motion to reconsider, defendants argue that the applicable statute of limitation is Mississippi’s one-year statute for personal injury claims, Miss.Code Ann. § 15-1-35 (1972), for the plaintiffs’ Section 1981 claims and not the previously argued six-year statute, Miss.Code Ann. § 15-1-49 (1972). The plaintiffs concede that the six-year statute may not be the appropriate one, but argue instead that the appropriate statute of limitation is Mississippi's three-year statute, applicable to actions on accounts and unwritten contracts. Miss.Code Ann. § 15-1-29 (1972). The court must determine which statute of limitations applies to plaintiffs’ Section 1981 claims because Section 1981 itself contains no limitation provision. In making this determination, the Supreme Court has advised that the “most appropriate” state statute of limitation or the state statute" }, { "docid": "12031856", "title": "", "text": "to “assault” were barred under Ohio Rev.Code Ann. § 2305.-11, whereas the claims akin to “trespass” were properly brought within the four-year period contained in section 2305.09. The precedential effect of Schorle was further eroded by subsequent federal court decisions which continued to apply different statutes of limitations to § 1983 claims arising within Ohio. For example, in Kilgore v. City of Mansfield, 679 F.2d 632 (6th Cir.1982), this court upheld the district court’s refusal to apply either the four-year limitation period found in section 2305.09 or the six-year period in section 2305.07, and instead, held that the plaintiff’s 42 U.S.C. § 1983 claims based on an allegedly wrongful arrest were barred by the one-year period in section 2305.11 which applied to claims for a “false imprisonment.” 679 F.2d at 634. All three of these cases, Hines, Woods and Kilgore, were decided in the interim between the issuance of the supposedly definitive decision in Schorle and the point at which plaintiff's cause of action accrued. Under these circumstances, we find that the plaintiff was not justified in relying on the Schorle decision adopting Ohio’s four-year statute of limitations for all § 1983 claims. This court has previously held that a “clean break” does not automatically occur every time an appellate court renders a definitive ruling which clarifies the law by resolving an issue that had previously been a subject of confusion and conflict amongst the lower courts. See Lawson v. Truck Drivers, 698 F.2d 250, 254 (6th Cir.), cert, denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). The conflicting precedents discussed above demonstrate that this area of the law remained unsettled until we issued our opinion in Mulligan. Therefore, under the Chevron analysis, our decision in Mulligan adopting Ohio’s one-year limitation period for all § 1983 claims can be applied retroactively to bar plaintiff’s claims brought in this case. Upon reconsideration, the motion for rehearing is GRANTED and the judgment of the district court is AFFIRMED. . Although the Mulligan court did not elaborate, it is clear that it felt compelled to apply Wilson v. Garcia, 471" }, { "docid": "23572350", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: This appeal requires that we determine the prescriptive period which applies to actions brought in the State of Mississippi under 42 U.S.C. § 1983. Guided by the recent decision of the Supreme Court in Wilson v. Garcia, — U.S. ---, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), we conclude that the one-year period provided by Miss. Code Ann. § 15-1-35 governs such actions. Because plaintiff’s suit was not filed within one year from the accrual of the cause of action, we affirm the district court’s summary judgment in favor of the defendants. I. Mrs. Peggy Gates brought this action under 42 U.S.C. § 1983 against various officials of the Hattiesburg Municipal Separate School District alleging that she was discharged from her position as a teacher in retribution for her exercise of rights protected by the first amendment. The defendants moved for summary judgment asserting that Mrs. Gates’ claim was not timely brought within the one-year period provided by Miss.Code Ann. § 15-1-29 (1976) for actions on unwritten contracts. The district court, relying on binding circuit authority — White v. United Parcel Service, 692 F.2d 1 (5th Cir.1982), and Breland v. Board of Education, 729 F.2d 360 (5th Cir.1984) — granted defendants’ motion. On appeal, Mrs. Gates in brief and oral argument contended that her claim was governed by the six-year period provided by Mississippi Code Annotated § 15-1-49 (1972). The Supreme Court announced its decision in Wilson v. Garcia after we heard oral argument in this case. We deferred deciding this case until the parties filed supplemental briefs on which Mississippi limitation period should be selected in light of Wilson. II. The Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1981-1988, set no time limitation on the cause of action created by section 1983. Burnett v. Grattan, — U.S. ---, 104 S.Ct. 2924, 2929, 18 L.Ed.2d 36 (1984). Congress instead allowed the courts to fill this statutory void. Id. 104 S.Ct. at 2928. Our responsibility in applying section 1988 has been described by the Supreme Court in these terms: First, courts are to look to the" }, { "docid": "21555394", "title": "", "text": "supplemental agreement signed by Weinberger. This number was based on a written response by Weinberger’s attorney, an audit of the books of Weinberger Homes, and Wein-berger’s own deposition testimony that these six people were covered by the agreement. Appellants’ claim to a genuine issue of fact arises from a later affidavit signed by Mr. Weinberger that stated that not all of these six people were laborers within the meaning of the term. However, this circuit has held that “a party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts his earlier deposition testimony.” Reid v. Sears, Roebuck and Co., 790 F.2d 453 (6th Cir.1986). Therefore, there was no genuine issue of how many people were covered by the agreement, and appellant cannot defeat the motion for summary judgment on this basis. III Appellants also contend that the plaintiffs’ action was barred by the applicable statute of limitations, which they claim is three years. In support of their position, appellants point out that the statute of limitations in Michigan for corporate suits is three years. See M.C.L.A. § 450.1554. Appellees contend that we should not even consider this argument as it was not raised in the district court. However, the argument is easily disposed of. In Central States Southeast and Southwest Areas Pension Fund v. Kraftco, Inc., 799 F.2d 1098 (6th Cir.1986), this court considered the appropriate statute of limitations in an action initiated in a Tennessee federal court to collect delinquent pension contributions pursuant to ERISA, since ERISA does not supply its own statute of limitations. This court held that the Tennessee six-year statute of limitations for actions under a written contract was the most analogous state statute of limitations to ERISA. Id. at 1105. In the present case, the district court used Kraftco as a guide and applied Michigan’s statute of limitations governing actions based on written contracts, which is also six years. See M.S.A. § 27A.5807(8) [M.C.L.A. § 600.5807(8)]. The appellants’ argument that the court should have applied different statutes of limitations for the individual defendant" }, { "docid": "23692095", "title": "", "text": "Detroit, 780 F.2d 583 (6th Cir.1986); Cooper v. Shumway, 780 F.2d 27 (10th Cir.1985); Scott v. Schmidt, 773 F.2d 160 (7th Cir.1985). The policy interests underlying Rules 59 and 60, securing the finality of judgments, were not implicated in this case because the action was still proceeding against other defendants in the district court. The appellant also submits that the district court improperly denied her Motion for Leave to Amend her Complaint to include previously unknown Mississippi Narcotics agents. We agree. The district court denied the motion on the ground that the amendment was barred under a one-year statute of limitations. In so ruling, the district court did not have the benefit of two controlling cases decided thereafter. In Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the Supreme Court held that in states with more than one statute of limitation for personal injury actions, § 1983 actions should be governed by the residual or general personal injury limitations period. Under Owens, the three year residual period provided by Section 15-1-49, Miss.Code Ann. applies. In Thomas v. City of New Albany, 901 F.2d 476 (5th Cir.1990), this court held that Owens should be retroactively applied. Thus, the district court erred in not allowing the plaintiff to amend her complaint to name the Mississippi narcotics officers. Summary Judgment The appellant contends that the district court improperly granted summary judgment as to all defendants. Summary judgment is appropriate if the record discloses “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.” All facts contained in the pleadings, depositions, admissions, and answers to interrogatories are reviewed by “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). The standard of review is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the non-moving party based upon the record evidence before" }, { "docid": "6871482", "title": "", "text": "federal policy underlying the cause of action under consideration.” Johnson v. Railway Express Agency, 421 U.S. at 465, 95 S.Ct. at 1722. In a case applying the Pennsylvania limitation period to the RICO statute, a court in this circuit has applied the six year period pursuant to the theory of common law fraud. In D’Iorio v. Adonizio, 554 F.Supp. 222, 227, 232 (M.D.Pa.1982), the court determined that “[t]he jurisdictional underpinnings of this case require pleading and proof of federal mail and wire fraud, both of which depend upon the existence of a scheme or artifice to defraud.” Although in the case sub judice the plaintiffs also rely on securities fraud, the RICO count is capable of being sustained, if the averments are proven, solely on the mail and wire fraud allegations. In light of Congress’ intent to have the RICO statute liberally construed to effectuate its remedial purposes, Section 904(a) of RICO, 84 Stat. 947, this court will apply the longer limitation period. In many cases the affirmative defense of a statute of limitations is most properly determined in a motion for summary judgment because it requires consideration of evidence outside the pleadings. The defense may be raised by a motion to dismiss under Fed.R.Civ.P. 12(b)(6) if the time alleged in the complaint shows clearly that the cause of action has not been brought within the statute of limitations. Demetrius v. Marsh, 560 F.Supp. 1157 (E.D.Pa.1983) (citing Bethel v. Jendoco Construction Corp., 570 F.2d 1168,1174 (3d Cir.1978). In the case sub judice the complaint does not satisfy the exception which would permit disposition pursuant to a 12(b)(6) motion. Once discovery has shed light on the issue, the parties may make the appropriate motions to this court with regard to the statute of limitations issue. II. THE SECURITIES CLAIM Having resolved the issues raised by the defendants on the RICO claim, the court will now turn to their motions concerning the securities claim. Defendant Weinstein asserts initially that the plaintiffs have failed to state a cause of action under the securities laws and regulations. As stated earlier, plaintiffs’ amended complaint is" }, { "docid": "17163008", "title": "", "text": "Cir.1973), and permit amendments to the pleadings under Rule 15. See Barnes v. Callaghan & Co., 559 F.2d 1102 (7th Cir.1977); Transport Trailer Service Inc. v. Upjohn Co., 506 F.Supp. 442 (E.D.Pa.1981). Here the court is satisfied that the interests of justice are served by allowing Local 557 to assert the affirmative defense of the statute of limitations in its recently filed summary judgment motion. The failure to comply with the applicable period of limitations, as the plaintiff recognized in a brief filed before this court on May 27, 1981, is apparent from the face of the complaint. In addition, the purpose of Rule 8(c) is more than met. The parties to this lawsuit and the courts have examined the issue of the applicable statute of limitations for more than three years. In light of the history of this case, the plaintiff can hardly complain of any prejudice resulting from lack of a meaningful opportunity to respond to this affirmative defense. Finally, the parties in the present case are prepared to address themselves to this issue, and the court will review the merits of the arguments. Beall v. Kearney & Trecker Corp., 350 F.Supp. 978, 981 (D.Md.1972). II. Statute of Limitations A. Applicable Statute of Limitations In his Opposition to the motions for summary judgment filed by Anchor and Local 557, the plaintiff asserts that the six month filing period contained in § 10(b) of the National Labor Relations Act should be applied prospectively when the factors enunciated in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), are considered. In the present case, the plaintiff contends, the three year statute of limitations initially applied in this case at 510 F.Supp. 716 is appropriate. On June 8, 1983, the Supreme Court held in this very case that the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160, applied to actions brought by an employee for breach of contract and breach of fair representation, DelCostello, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). A review" }, { "docid": "6986183", "title": "", "text": "38 L.Ed.2d 112 (1973) (same). . See, e.g., Rinehart v. Locke, 454 F.2d 313 (7th Cir. 1971) (general statute of limitations applied in § 1983 action); Franklin v. City of Marks, 439 F.2d 665 (5th Cir. 1971) (same). . In response to inquiries by the court at oral argument, the parties commented on § 613A.5 of the Iowa Code which prescribes the “Limitation of Actions” for “Tort Liability of Governmental Subdivisions.” The statute requires any person claiming damages against a municipality to commence the action within six months of the incident. If the municipality receives written notice describing the claim within six months of the incident, however, the plaintiff may commence the suit within two years after such notice. In Rosales v. Lewis, 454 F.Supp. 956 (S.D.Ia.1978), the court ruled that § 613A.5, which operates as both a claims provision and a statute of limitations, does not apply to actions brought under 42 U.S.C. § 1983. The purpose behind § 613A.5’s shortened statute of limitations and notice provisions [i.e. to allow prompt investigation of the alleged tort], is less compelling in civil rights actions where liability is based upon personal responsibility which means that the defendants should have knowledge of the events at issue. [454 F.Supp. at 960.] In this case, however, the state did not raise this provision as a defense in its motion to dismiss, in its motion to reconsider the denial of summary judgment, or in its brief to this court. Because it is axiomatic that the defendant bears the burden of raising the statute of limitations as an affirmative defense, we do not further consider the applicability of this section. . Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) later overruled the aspect of Monroe v. Pape which held local governments wholly immune from suit under § 1983. . Iowa has no specific period of limitations for actions based upon liability created by statute. Such a statute of limitations may appropriately govern an unlimited federal civil rights action. See note 7 supra. . Because this case involved a" }, { "docid": "18573907", "title": "", "text": "§ 108(a). Defendants additionally argue Jordan should be granted partial summary judgment because he is an officer of Shiloh, and is thus protected by the veil of corporate immunity. Debtors resist the motion, alleging that the proper statute of limitations is either three years under I.C. § 5-218 (action for trespass, trover, replev-in or fraud) or four years under I.C. § 5-224 (action not otherwise provided for by statute), and that Jordan is individually liable for violation of the automatic stay. Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, made applicable here by F.R.B.P. 7056. Summary judgment should be granted 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.” F.R.C.P. 56(c). Section 362(h) permits a party to recover for “willful” violations of the automatic stay. 11 U.S.C. § 362(h). Defendants wrongly assume section 108 requires application of a state statute of limitations. Section 108 is involved only where there is “applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement” limiting the time in which an action may be brought. Section 362(h) creates a federal bankruptcy cause of action, and no nonbankruptcy law is involved. Moreover, section 108 acts only to toll causes of action during the pendency of bankruptcy, not to provide a substantive statute of limitations. The parties have not cited, and the Court has not found, any reported case imposing a statute of limitations on section 362(h). In failing to address the issue, a Seventh Circuit decision suggests an action under section 362(h) is valid even though brought six years after the violation of the automatic stay. Martin-Trigona v. Champion Fed. Sav. and Loan Ass’n, 892 F.2d 575, 577 (7th Cir.1989) (“[I]t would be clear that a suit to enforce one’s rights under section 362(h) could be brought in district court before a district judge, as Martin-Trigona has done”; the court concluded there was no violation of the stay). Congress passed section 362(h) without limiting the period in which such a" } ]

[ { "docid": "6543505", "title": "", "text": "to remedy the constitutional infirmities in the Bankruptcy Code found by the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). See generally 1984 U.S.Code Cong. & Ad.News 576, 590, 602-06 (June 29,1984) (statement of Honorable Orrin G. Hatch). In Marathon, the Supreme Court decided that bankruptcy judges cannot adjudicate claims or causes of action based upon state or common law, on the ground that the jurisdictional grant to a bankruptcy court to adjudicate such claims was a grant of judicial power which could only be exercised by an Article III court. The 1984 Act deals with the Marathon problem by distinguishing between “core” proceedings and claims under Title 11, and “non-core” proceedings or claims “related” to Title 11 cases, namely claims arising under traditional state law which must be determined by state law. Pursuant to 28 U.S.C. § 1334, as amended by the 1984 Act, the district court has “original and exclusive jurisdiction of all cases under Title 11,” and has “original but not exclusive jurisdiction of all civil proceedings arising under Title 11, or arising in or related to cases under Title 11.” 28 U.S.C.A. § 1334(a) & (b) (West Supp. Sept. 1984). (All such cases and proceedings are hereinafter referred to collectively as “bankruptcy matters.”) Under 28 U.S.C.A. § 157(a) (West Supp. Sept. 1984), each district court may provide that any or all bankruptcy matters under Title 11 (core and non-core proceedings) shall be referred to the bankruptcy judges for the district. By order dated July 10, 1984, the Honorable Robert J. Ward, Acting Chief Judge for the United States District Court for the Southern District of New York, made a blanket reference of all bankruptcy matters to the bankruptcy judges of this district. The remainder of section 157 sets forth the manner in which the bankruptcy courts and the district courts are to deal with core and non-core proceedings. Pursuant to section 157(b)(1), bankruptcy judges may hear and enter final orders in all cases under Title 11 and in all core proceedings, subject" } ]

[ { "docid": "18904032", "title": "", "text": "proceeding. 28 U.S.C. § 157(b)(3); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: {T}he ‘adjunct’ bankruptcy courts created'by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowell [Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one-Court interpreted Marathon: {T}he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1986). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., ‘related proceedings’)_ {I}n no way did Marathon implicate the jurisdiction of the bankruptcy courts in other matters within the ‘traditional’ bankruptcy jurisdiction. The Court’s invalidation of the jurisdictional grant was on separability grounds, not on the grounds that bankruptcy courts could not adjudicate traditional bankruptcy matters. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580 (2d Cir.1983) (citation and footnote omitted). In this proceeding, it is undisputed that Debtor, in its capacity as a Chapter" }, { "docid": "18790681", "title": "", "text": "DECISION & ORDER C. ALBERT PARENTE, Bankruptcy Judge. On December 6, 1984, Marianne DeRosa (the “trustee”) commenced an adversary proceeding in the Eastern District of New York to avoid, pursuant to 11 U.S.C. § 547, alleged preferential transfers made by the debtor, Legend Industries, Inc., to the defendants. One of the defendants is C.P.P. Corp., a California corporation whose principal shareholder, Philip Meisinger, is also principal shareholder and director of the debtor. The other defendant is Maryellen Lorton, a California resident and the mother-in-law of Meisinger. The summons and complaint commencing the action against C.P.P. Corp. was served upon Meisinger. Lorton was separately served in her own name. On January 25, 1985, the defendants jointly moved for a dismissal of the trustee’s action, or in the alternative for a change of venue. THE MOTION TO DISMISS The defendants have asserted two grounds for the dismissal of the trustee’s action. First, relying on In re Associated Grocers of Nebraska Cooperative, Inc., 46 B.R. 173, 12 B.C.D. 737 (Bankr.D.Neb.1985), the defendants contend that under Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (“Marathon”), Congress could not constitutionally grant a bankruptcy judge subject matter jurisdiction over private disputes between nonconsenting parties. However, this circuit in In re Kaiser, 722 F.2d 1574 (2d Cir.1983) (“Kaiser”), when confronted by a similar argument, rejected such a narrow reading of Marathon. In upholding the constitutionality of the Emergency Rule promulgated post Marathon, but prior to the enactment of the Bankruptcy Amendments and Federal Judgeship Act, the court found that Marathon did not implicate a bankruptcy judge’s jurisdiction to adjudicate traditional bankruptcy disputes. Id. at 1580. Kaiser was recently reaffirmed by this circuit, In re Lafayette Radio Electronics Corp., 761 F.2d 84, 91 (2d Cir.1985). Under the analysis employed in Kaiser, if a cause of action arises under a federal bankruptcy statute, a bankruptcy judge may constitutionally decide the matter. Kaiser, 722 F.2d at 1582. The trustee’s cause of action is brought under Title 11 U.S.C. § 547 and thus arises under a federal bankruptcy statute. Accordingly, this" }, { "docid": "18603013", "title": "", "text": "v. Marathon Pipeline Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one Court interpreted Marathon: [T]he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1985). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582, 11 BCD 529, 9 CBC.2d 910 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 BCD 201, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., related proceedings). ... [I]n no way did Marathon implicate the jurisdiction of the bankruptcy courts in other matters within the ‘traditional’ bankruptcy jurisdiction. The Court’s invalidation of the jurisdictional grant was on separability grounds, not on the grounds that bankruptcy courts could not adjudicate traditional bankruptcy matters. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580, 11 BCD 529, 9 CBC.2d 910 (2d Cir.1983) (citation and footnote omitted). As for the Bankruptcy Court’s related jurisdiction, in Turner v. Ermiger (In re Turner), 724 F.2d 338, 341, 11 BCD 728, 10 CBC.2d 782 (2d Cir.1983), our Circuit Court of Appeals applied a narrow scope of “related to” jurisdiction to require a showing of any “significant connection” to the debt- or’s bankruptcy. In Turner, a Chapter 11 debtor had claimed as exempt a contingent cause of action for conversion against her landlord. Afterwards, she filed a complaint against the landlord in Bankruptcy Court. The District Court found jurisdiction to be “related to” under the then existing Emergency Resolution, as within the definition of “ ‘those civil proceedings that, in" }, { "docid": "18904031", "title": "", "text": "matter. We have subject matter jurisdiction regardless of its core or non-core status. See, In re WEFCO, Inc., 97 B.R. 749 (E.D.N.Y.1989). “Core” is not defined, nor is it limited to the fifteen nonexclusive categories contained in 28 U.S.C. § 157(b)(2). Some Courts have confined themselves to a narrow approach in ascertaining the scope of what matters may be core, while others have taken a more expansive approach. See, Atlas Fire Apparatus, Inc. v. Beaver (In re Atlas Fire Apparatus, Inc.), 56 B.R. 927, 932, 13 BCD 1304, 14 CBC.2d 429 (Bkrtcy.E.D.N.C.1986) (listing of representative cases within the two camps). The mere characterization of an adversary proceeding within the core terms of 28 U.S.C. §§ 157(b)(2)(A)-(0) will not be dispositive whether the proceeding is core. Taxel v. Commercebank (In re World Financial Services Center, Inc.), supra, 64 B.R. at 986, 15 CBC.2d at 843. Moreover, just because the resolution of the Trustee’s and AM Cable’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core proceeding. 28 U.S.C. § 157(b)(3); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: {T}he ‘adjunct’ bankruptcy courts created'by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowell [Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one-Court interpreted Marathon: {T}he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a" }, { "docid": "14593627", "title": "", "text": "627-628 (Rehnquist, J., concurring in the judgment). In his dissenting opinion, Justice White voiced his concern that the plurality opinion placed undue emphasis upon the existence of state law issues in the proceeding under consideration in Marathon: [T]he distinction between claims based on state law and those based on federal law disregards the real character of bankruptcy proceedings.... The crucial point to be made is that in the ordinary bankruptcy proceeding the great bulk of creditor claims are claims that have accrued under state law prior to bankruptcy — claims for goods sold, wages, rent, utilities, and the like.... Every such claim must be filed and its validity is subject to adjudication by the bankruptcy court. The existence and validity of such claims recurringly depend on state law. Hence, the bankruptcy judge is constantly enmeshed in state-law issues. 458 U.S. at 96-97, 102 S.Ct. at 2884-85, 73 L.Ed.2d at 631 (White, J., dissenting). In sum, in invalidating the Reform Act’s broad jurisdictional grant to bankruptcy courts, the plurality opinion drew the distinction between “restructuring of debtor-creditor relations which is at the core of the federal bankruptcy power” and “the adjudication of state created private rights to recover contract damages.” 458 U.S. at 71, 102 S.Ct. at 2871, 73 L.Ed.2d at 615. The Supreme Court’s Marathon decision clearly did not implicate the jurisdiction of the bankruptcy courts to hear and determine matters falling within the “traditional” bankruptcy jurisdiction. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580 (2d Cir.1983). Stated differently, the Marathon Court’s invalidation of the jurisdictional grant of the Reform Act clearly was not on the ground that a bankruptcy court is not empowered to adjudicate traditional bankruptcy matters. 3. BAFJA: The Congressional Response to Marathon In 1984, Congress responded to the Supreme Court’s Marathon decision by enacting BAFJA. The key jurisdictional provisions of BAFJA are found in 28 U.S.C. §§ 157 and 1334. Each of these jurisdictional provisions, which define the source and limits of the bankruptcy court’s subject matter jurisdiction, shall be examined below. (a) 28 U.S.C. Section 1334 Section 1334 provides in relevant part as" }, { "docid": "18904033", "title": "", "text": "state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1986). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., ‘related proceedings’)_ {I}n no way did Marathon implicate the jurisdiction of the bankruptcy courts in other matters within the ‘traditional’ bankruptcy jurisdiction. The Court’s invalidation of the jurisdictional grant was on separability grounds, not on the grounds that bankruptcy courts could not adjudicate traditional bankruptcy matters. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580 (2d Cir.1983) (citation and footnote omitted). In this proceeding, it is undisputed that Debtor, in its capacity as a Chapter 11 debtor-in-possession, entered post-petition into some kind of contract with AM Cable for the installation of underground cable in Yero Beach, Florida. The Trustee’s action centers around this post-petition contract. This, without more, is a core proceeding because it arises in a Title 11 case. Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper), 896 F.2d 1394 (2d Cir.1990). We believe that a post-petition contract does not raise the Marathon issue. The State law claim in Marathon was based on “a right independent of and antecedent to the reorganization petition that conferred jurisdiction upon the bankruptcy court.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., supra, 458 U.S. at 84, 102 S.Ct. at 2878 (emphasis added). As a commentator has said on an analogous issue: A conflict exists in cases decided under the 1984 legislation with respect to whether an action brought on a postpetition account receivable is a related or ‘core’ matter. The better result is that the proceeding is core; such a cause of action" }, { "docid": "1180634", "title": "", "text": "action arising under state law, without consent of the litigants, and subject only to ordinary appellate review.” Thomas, 105 S.Ct. at 3335, citing Marathon, 458 U.S. at 84, 102 S.Ct. at 2878 (plurality opinion), id., at 90-92, 102 S.Ct. at 2881-2882 (opinion concurring in judgment), id., at 92, 102 S.Ct. at 2882 (Burger, C.J., dissenting). Marathon did not “implicate the jurisdiction of the bankruptcy courts in other matters within the ‘traditional’ bankruptcy jurisdiction.” In re Kaiser, 722 F.2d 1574, 1580 (2d Cir.1983). As the Court pointed out in Kaiser: [Marathon ] stated that “the restructuring of the debtor-creditor relations, which is at the core of the federal bankruptcy power, ... may well be a ‘public right’ ” and thus subject to adjudication in an Article I court. 458 U.S. at 71 [102 S.Ct. at 2871]. See also 458 U.S. at 92 [102 S.Ct. at 2882] (Burger, C.J., dissenting) (“I write separately to emphasize that, notwithstanding the plurality opinion, the Court does not hold today that Congress’ broad grant of jurisdiction to the new bankruptcy courts is generally inconsistent with Article III_ Rather, the Court’s holding is limited to the proposition stated by Justice Rehnquist in his concurrence in the judgment — that a ‘traditional’ state common-law action, not made subject to a federal rule of decision, and related only peripherally to an adjudication of bankruptcy under federal law, must, absent consent of the litigants, be heard by an ‘Article III court’ if it is to be heard by any court or agency of the United States. This limited holding, of course, does not suggest that there is something inherently unconstitutional about the new bankruptcy courts; nor does it preclude such courts from adjudicating all but a relatively narrow category of claims ‘arising under’ or ‘arising in or related to cases under’ the Bankruptcy Act.”). In re Kaiser, 722 F.2d at 1580, n. 2. The Supreme Court invalidated the jurisdictional grant on separability grounds, not on the grounds the bankruptcy courts could not adjudicate traditional bankruptcy matters. Id. at 1580. The Trade Creditors’ claim that giving bankruptcy courts’ jurisdiction to make" }, { "docid": "22978266", "title": "", "text": "proceeding. The court began its discussion by pointing out that because § 157(b)(3) provides that “[a] determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be effected by state law,” the issue could best be resolved by considering the “nexus” between this proceeding involving a state law claim and the bankruptcy estate. Mann v. Kreiss, 58 B.R. at 1004. The court went on to discuss Salo-mon v. Kaiser (In Re Kaiser), 722 F.2d 1574 (2d Cir.1983) which held in part that an action to impose a constructive trust is a core proceeding. The Mann court cited Kaiser for its astute observation that although an action to impose a constructive trust could very well have been brought in a state court, the adversary proceeding was brought on as a result of fraudulent transfers made in derogation of the bankruptcy laws. “In other words, federal law provides the right upon which the remedy of the constructive trust sought here is based. In contrast, the action in Marathon was independent of the bankruptcy laws.” Mann, 58 B.R. at 1005 (quoting Salomon at 1582). Applying this analysis to the facts of the Mann case, the district court concluded that since it was not a traditional action to attach assets or to declare the validity or construction of a testamentary trust, but instead was an action brought pursuant to 11 U.S.C. § 541(a)(5)(A) and § 541(c)(2), “the nexus between the proceeding and the bankruptcy estate is sufficiently close to find that it is a ‘core proceeding.’ ” Mann, 58 B.R. at 1005. The critical point made by Mann v. Kress and Salomon v. Kaiser is that where a cause of action “has no life of its own in either state or federal common law or statute independent of the federal bankruptcy laws,” then it is a core proceeding. Mann, 58 B.R. at 1005 (quoting Salomon at 1582). The bankruptcy court in R.I. Lithograph Corp. v. Aetna Casualty & Surety Co. (In Re R.I. Lithograph Corp.), 60 B.R. 199 (Bkrtcy.R.I.1986) had to determine whether" }, { "docid": "18603012", "title": "", "text": "F.2d 90, 96 (5th Cir.1987). Moreover, just because the resolution of some of Trustee’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core proceeding. 28 U.S.C. § 157(b)(3); Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper), supra, 896 F.2d at 1400 (2d Cir.1990); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609, 12 BCD 536, 11 CBC.2d 1216 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: [T]he ‘adjunct’ bankruptcy courts created by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowel [Crowel v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 87, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (brackets supplied for clarity). As one Court interpreted Marathon: [T]he constitutional ability of an adjunct bankruptcy court to determine state law issues is to be determined by the nature and extent of control by Article III courts and whether there is a nexus between the proceeding involving a state law cause of action and the bankruptcy estate. Lessor v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850, 856, 12 BCD 840, 12 CBC.2d 59 (Bkrtcy.S.D.N.Y.1985), aff'd, 63 B.R. 199 (S.D.N.Y.1985). See also, Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582, 11 BCD 529, 9 CBC.2d 910 (2d Cir.1983); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Satelco, 58 B.R. 781, 786, 14 BCD 201, 14 CBC.2d 487 (Bkrtcy.N.D.Tex.1986). Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in a district court or a state court (i.e., related proceedings). ..." }, { "docid": "1279403", "title": "", "text": "Corp., 94 B.R. 797, 803 (Bankr.D. Mass.1988). That the potential requirement of a jury trial of this adversary proceeding does not require its present removal from the bankruptcy court is a conclusion supported by 28 U.S.C. § 157(c)(1). This jurisdictional provision, passed after the Supreme Court’s decision in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), in an effort to cure constitutional deficiencies noted in that opinion, permits “a bankruptcy judge[to] hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” 28 U.S.C. § 157(c)(1). To avoid the Article III problems examined in Marathon, Congress determined that in such an instance, the bankruptcy court may not enter a final order or judgment without the consent of the parties; as opposed to the situation in a core proceeding, the bankruptcy court’s role in a non-core matter is limited by statute to rendering proposed findings and conclusions which are subject to de novo review by the Article III court. 28 U.S.C. § 157(c)(1) and (2). See also 1 Collier on Bankruptcy § 3.01 at 3-49 — 3-54 (15th ed. 1987). This limitation, however, does not prevent the bankruptcy judge from adjudicating pre-trial interlocutory matters. 1 Collier, § 301 at 3-54. The statute “preserves only ‘final’ orders for entry by the district judge.” In re THB Corp., 94 B.R. 797, 803 (citing, among other decisions, In re Lion Capital Group, 46 B.R. 850, 854 (Bankr.S. D.N.Y.1985)). Thus, if the Terranova’s are correct in characterizing this as a non-core proceeding, the bankruptcy court, nevertheless, has the power to oversee pretrial matters arising in the proceeding, including the power to make interlocutory rulings and make proposed rulings upon any dis-positive motions. In the event of the latter, the statute and Article III are complied with so long as a district court engages in de novo review of any such proposed disposition. See 28 U.S.C. § 157(c)(1); cf. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412-13, 65 L.Ed.2d 424 (1980) (analogous" }, { "docid": "4688119", "title": "", "text": "on a prepetition contract or account receivable is not a matter at the core of the bankruptcy power. Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71, 102 S.Ct. 2858, 2871, 73 L.Ed.2d 598 (1982) (holding that right to recover contract damages is not “at the core of the federal bankruptcy power”); In re Colorado Energy Supply, Inc., 728 F.2d 1283, 1286 (10th Cir.1984) (“Related proceedings are those civil proceedings that, in the absence of a petition in bankruptcy, could have been brought in a district court or a state court”); In re K-Rom Construction Corp., 46 B.R. 745 (S.D.N.Y.1985) (suit on construction contract a non-core proceeding); In re George Woloch, Inc., 49 B.R. 68 (E.D.Pa.1985) (suit for prepetition accounts receivable a non-core proceeding). In non-core proceedings such as the present, Congress has carefully limited the bankruptcy court’s power. Congress’s 1984 amendments to the bankruptcy code define those limits. Section 157(c)(1) of title 28 provides: A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a proceeding under title 11. In such a proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. Section 157(c) is modeled after the magistrate system, a constitutional system of referral. 1 Collier on Bankruptcy ¶ 3.01[ii] (1986). See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (upholding constitutionality of 1978 Federal Magistrate’s Act, based on district court’s retention of ultimate control over final decisions). See also Marathon, 458 U.S. at 78, 102 S.Ct. at 2875 (distinguishing magistrate system on that basis). Under this new system, bankruptcy judges function as magistrates in non-core matters. The Marathon plurality recognized that such a system does not unconstitutionally erode article III judicial powers so long as “the ultimate decision is made by the district" }, { "docid": "16057565", "title": "", "text": "We agree with the six federal circuit courts that have considered this issue and found the emergency rules a valid exercise of the district court’s power. See Oklahoma Health Services Federal Credit Union v. Webb, 726 F.2d 624 (10th Cir.1984); Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574 (2d Cir.1983); Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190 (3d Cir.), cert. denied, — U.S.-, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983); White Motor Corp. v. Citibank, N.A., 704 F.2d 254 (6th Cir.1983); First National Bank of Tekamah v. Hansen (In re Hansen), 702 F.2d 728 (8th Cir.) (per curiam), cert. denied, 463 U.S. 1208, 103 S.Ct. 3539, 77 L.Ed.2d 1389 (1983); Braniff Airways, Inc. v. Civil Aeronautics Board (In re Braniff Airways, Inc.), 700 F.2d 214 (5th Cir.) cert. denied, 461 U.S. 944, 103 S.Ct. 2122, 77 L.Ed.2d 1302 (1983). We reach this conclusion for two reasons. First, the Marathon decision did not affect the jurisdiction of the district courts to adjudicate bankruptcy cases, but rather only invalidated 28 U.S.C. § 1471(c) which gave broad jurisdictional powers to the bankruptcy courts. Briney v. Burley (In re Burley), 738 F.2d 981, 984 (9th Cir. 984); see also In re Kaiser, 722 F.2d at 1578; Coastal Steel, 709 F.2d at 200; White Motor, 704 F.2d at 260; In re Hansen, 702 F.2d at 729. Thus, under section 1471(a) and (b), the district court had jurisdiction to adjudicate bankruptcy cases during the transitional period. Second, the interim rule itself was a valid exercise of the district court’s power. General Order 242-A is fully consistent with the requirements of Article III and the holding of Marathon. Marathon only invalidated the jurisdiction of the bankruptcy court to make final determinations in matters that could have been brought in district court or a state court. See In re Kaiser, 722 F.2d at 1580. The interim rule cures this defect because the district courts retain primary jurisdiction over all bankruptcy proceedings and the bankruptcy courts have only derivative jurisdiction; the district court retains authority to revoke the referral of any case to the bankruptcy" }, { "docid": "18603011", "title": "", "text": "what matters may be core, while others have taken a more expansive approach. See, Atlas Fire Apparatus, Inc. v. Beaver (In re Atlas Fire Apparatus, Inc.), 56 B.R. 927, 932, 14 CBC.2d 429, 13 BCD 1304 (Bkrtcy.E.D.N.C.1986) (listing of representative cases within the two camps). It is now clear in our Circuit the expansive approach applies. Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper, Inc.), 896 F.2d 1394, 1398-1399, 20 BCD 139, 22 CBC.2d 729 (2d Cir.1990) cert. granted, — U.S. -, 110 S.Ct. 3269, 111 L.Ed.2d 779 (1990). The mere characterization of an adversary proceeding within the core terms of 28 U.S.C. §§ 157(b)(2)(A)-(0) will not be dispositive on whether the proceeding is core. Taxel v. Commercebank (In re World Financial Services Center, Inc.), supra, 64 B.R. at 986, 15 CBC.2d at 843 (Bkrtcy.S.D.Cal.1986). For example, matters that are only tangentially related to the administration of the bankruptcy estate, may, in appropriate cases, be non-core related proceedings. See, e.g., Wood v. Wood (In re Wood), 825 F.2d 90, 96 (5th Cir.1987). Moreover, just because the resolution of some of Trustee’s action may turn on the application of State law, this will not, ipso facto, turn this adversary proceeding into non-core proceeding. 28 U.S.C. § 157(b)(3); Ben Cooper, Inc. v. The Insurance Company of the State of Pennsylvania (In re Ben Cooper), supra, 896 F.2d at 1400 (2d Cir.1990); Mann v. Kreiss (In re Kreiss), 58 B.R. 999, 1004 (E.D.N.Y.1986); In re Tom Carter Enterprises, Inc., 44 B.R. 605, 609, 12 BCD 536, 11 CBC.2d 1216 (C.D.Cal.1984). We are ever mindful of Marathon’s plurality holding and Article III proscriptions: [T]he ‘adjunct’ bankruptcy courts created by the Act [1978, 28 U.S.C. § 1471] exercise jurisdiction behind the facade of a grant to the district courts, and of exercising powers far greater than those lodged in the adjuncts approved in either Crowel [Crowel v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932)] or Raddatz [U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)]. Northern Pipeline Constr. Co." }, { "docid": "22131706", "title": "", "text": "in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). They also argue that the referral rule adopted by the United States District Court for the Southern District of New York (Emergency Bankruptcy Rule I) through which the Bankruptcy Court in this District continues to oversee bankruptcy proceedings, represents an unconstitutional attempt by the district courts to delegate authority. These arguments need not detain us. Since this appeal was submitted, our Court of Appeals has upheld the district courts’ jurisdiction over bankruptcy matters under both 28 U.S.C. § 1471 and 28 U.S.C. § 1334 (1976), and determined that the district courts’ authority over bankruptcy matters is not affected by the Marathon decision. In re Kaiser, 722 F.2d 1574 at 1577-78 (2d Cir.1983). In addition, the Court of Appeals determined that the district courts acted properly by promulgating rules for bankruptcy adjudication following Marathon, and also upheld the constitutionality of our Emergency Rule itself. Id. at 1578-81. GAF also argues that since the direct action suits in this case are based on state law, Marathon, which denies the bankruptcy judges’ power to decide related common law state claims, 102 S.Ct. at 2880, n. 40, requires reversal of the Bankruptcy Court’s decision insofar as it attempts to enjoin direct actions suits against the insurers founded on state law. The answer to this argument is that the issuance and continuance of stays under §§ 105 and 362 is a bankruptcy matter arising directly under the Code. Stays against proceedings in other courts are issued pursuant to the Bankruptcy Court’s authority to protect the Debtor’s estate and its ability to undertake the reorganization process. The granting, denial or modification of stays clearly does not constitute “related” claims based upon state law. Significantly, the Emergency Rules themselves explicitly remove stay proceedings from the definition of those “related proceedings” over which the Bankruptcy Court has no jurisdiction: “Related proceedings do not include: ... proceedings in respect to lifting of the automatic stay.” [Emergency Rule 1(d)(3)(A)]. In addition to its Constitutional arguments, GAF contends that § 362" }, { "docid": "13295554", "title": "", "text": "any equitable ground. An order under this subsection remanding a claim or cause of action, or a decision not so remanding is not reviewable by appeal or otherwise. “A prerequisite for removal under section 1478 is that the bankruptcy court have jurisdiction over the claim or cause of action sought to be removed.” In re Mansen, 20 B.R. 391, 393 (Bkrtcy.D.Mass.1982). See also Flint v. Speir Insurance Agency, Inc., 33 B.R. 814 (D.C.D.Nev.1983). George Seybolt argues that the decision of the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) invalidated § 241(a) of the Bankruptcy Reform Act in its entirety, which added §§ 1471-1482 to Title 28 of the United States Code, and thus this Court no longer has the power to remove this case from the state court. However, despite the broad characterization of the issue by the plurality opinion in Northern Pipeline, appellate courts which have interpreted that decision have virtually unanimously held that the only issue decided by the Supreme Court in Northern Pipeline concerned the jurisdiction of bankruptcy courts under 28 U.S.C. § 1471(c) as enacted in § 241(a) of the Bankruptcy Reform Act. See In re Kaiser, 722 F.2d 1574 (2nd Cir.1983); In re Braniff Airways, Inc., 27 B.R. 231 (Bkrtcy.N.D.Tex.1983), aff'd, 700 F.2d 214 (5th Cir.1983), cert. denied, — U.S. -, 103 S.Ct. 2122, 77 L.Ed.2d 1302; White Motor v. Citibank, N.A., 704 F.2d 254 (6th Cir.1983); In re Hansen, 702 F.2d 728 (8th Cir.1983); In re South Portland Shipyard and Maine Railways Corp., 32 B.R. 1012, 10 B.C.D. 1385 (D.C.D.Me.1983); and In re Romeo J. Roy, 32 B.R. 1008, 10 B.C.D. 1392 (D.C.D.Me.1983). But see Rhodes v. Stewart, 705 F.2d 159 (6th Cir.1983) (section 1471 declared unconstitutional in toto in Northern Pipeline) (dicta). Those decisions which hold that 28 U.S.C. § 1471 was not invalidated in its entirety apply a fortiori in support of the continued vitality of 28 U.S.C. § 1478. See In re Metal Center, Inc., 31 B.R. 458 (Bkrtcy.D.Conn.1983). This reading of the Northern Pipeline decision" }, { "docid": "18790682", "title": "", "text": "Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (“Marathon”), Congress could not constitutionally grant a bankruptcy judge subject matter jurisdiction over private disputes between nonconsenting parties. However, this circuit in In re Kaiser, 722 F.2d 1574 (2d Cir.1983) (“Kaiser”), when confronted by a similar argument, rejected such a narrow reading of Marathon. In upholding the constitutionality of the Emergency Rule promulgated post Marathon, but prior to the enactment of the Bankruptcy Amendments and Federal Judgeship Act, the court found that Marathon did not implicate a bankruptcy judge’s jurisdiction to adjudicate traditional bankruptcy disputes. Id. at 1580. Kaiser was recently reaffirmed by this circuit, In re Lafayette Radio Electronics Corp., 761 F.2d 84, 91 (2d Cir.1985). Under the analysis employed in Kaiser, if a cause of action arises under a federal bankruptcy statute, a bankruptcy judge may constitutionally decide the matter. Kaiser, 722 F.2d at 1582. The trustee’s cause of action is brought under Title 11 U.S.C. § 547 and thus arises under a federal bankruptcy statute. Accordingly, this court is constitutionally empowered to decide the matter. In addition to the defendants’ joint challenge to this court’s subject matter jurisdiction over the proceeding, one of the defendants, C.P.P. Corp., contests the court’s in personam jurisdiction. C.P.P. contends that service upon Meisinger, who although a shareholder was not an officer or director of the corporation, did not constitute proper service. Bankruptcy Rule 7004(b) and Federal Rule of Civil Procedure 4(d), incorporated by reference, require that service upon a domestic corporation be made by serving an “officer, a managing or general agent, or ... any other agent authorized by appointment or by law to receive service of process.” Alternatively, service may be in accordance with the service requirements of the state in which service is made. The determination of whether an individual is a “managing or general agent” depends on a factual analysis of the individual’s authority within the corporation. It is not necessary that the individual have a formal title. Insurance Co. of No. America v. S/S “Hellenic Challenger”, 88 F.R.D. 545 (S.D.N.Y.1980). However, it" }, { "docid": "8345448", "title": "", "text": ". The Emergency Bankruptcy Rule is a response to the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 454 U.S. 1029, 102 S.Ct. 564, 70 L.Ed.2d 472 (1982). In that decision, the Court declared 28 U.S.C. § 1471(c) unconstitutional because it attempted to confer on Article I bankruptcy judges the authority to determine related proceedings which could otherwise only be determined by an Article III judge. A related proceeding is a suit brought by the trustee against a party who has not filed a claim or otherwise appeared in the proceedings. The Court held that this aspect of the Code was an unseverable fallacy, and invalidated the entire grant of jurisdiction to the bankruptcy judges. The Southern District of New York has adopted Emergency Bankruptcy Rule I as a means of addressing the problems addressed by Marathon. Similar rules have been adopted by every district in the nation. Under this Rule, the District Court has referred all Title 11 proceedings to bankruptcy judges. Core bankruptcy matters are extensively illustrated in paragraph (d)(3)(A) of the Emergency Rule. In related proceedings, as exemplified by Marathon, a bankruptcy judge cannot enter final judgments or final orders. See paragraph (d)(3)(B). With respect to core bankruptcy matters, a bankruptcy judge is permitted to enter orders and judgments, which are then subject to the appellate review of the District Court. The Second Circuit, as well as four other circuit courts of appeal and eight district courts have upheld the constitutionality of the Emergency Rule. Salomon v. Kaiser, 722 F.2d 1574 (2d Cir.1983); Coastal Steel Corp. v. Tilgham Wheelabrator, Ltd., 709 F.2d 190 (3d Cir.1983); First National Bank of Tekamah v. Hansen, 702 F.2d 728 (8th Cir.1983); Matter of Braniff Airways, Inc., 700 F.2d 214 (5th Cir.1983); aff’g In re Braniff Airways, Inc., 27 B.R. 231 (Bkrtcy.N.D.Tex.). See, e.g., Matter of United Grocers Corp., 30 B.R. 46 (D.N.J.1983). .See note 3, supra. . Federal Rule 8 provides in pertinent part: (a) A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain ...," }, { "docid": "13743928", "title": "", "text": "and will add significantly to the efficient administration of justice). . 458 U.S. 50, 102 S.Ct. 2858, 73 L.F.d.2d 598 (1982). Federal Procedure, L.Ed. § 3:371 (1981). . Other circuits have regarded as binding an automatic slay of actions against the debtor issued by a bankruptcy» court pursuant to 11 U.S.C. § 362(a). See, e.g., Ellison v. Northwest Engineering Co., 707 F.2d 1310 (11th Cir.1983); Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 449 (3d Cir.1982); Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 690 F.2d 367 (3d Cir.1982). We have given binding effect to slays ordered by a district court under 11 U.S.C. § 362(a), while recognizing the jurisdiction of other courts to determine whether any of the statutory exceptions applied. SEC v. First Financial Group of Texas, 645 F.2d 429 (5th Cir.1981). In an earlier case, we upheld, on grounds of comity, the decision of a district court sitting in Texas to honor an injunction issued against it by a district court presiding over bankruptcy proceedings in Florida. In re Cohen, 107 F.2d 881, 883 (5th Cir.1939). . 28 U.S.C. § 1334 provides: \"The district courts shall have original jurisdiction, exclusive of the stales, of all matters and proceedings in bankruptcy.\" . Accord In re Hansen, 702 F.2d 728 (8th Cir.), cert. denied, — U.S. -, 103 S.Ct. 3539, 77 L.Ed.2d 1389 (1983); Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574 (2d Cir.1983). . White Motor Corp. v. Citibank, N.A., 704 F.2d 254 (6th Cir.1983). . 704 F.2d at 260. 28 U.S.C. § 1471(c) provides “The bankruptcy court for the district in which a case under title 11 is commenced shall exercise all of the jurisdiction conferred by this section on the district court.” . 458 U.S. at 81, 102 S.Ct. at 2876, 73 L.Ed.2d at 621. . Several district courts and bankruptcy courts have held that Marathon invalidated § 1471 in its entirely and thus vitiated the bankruptcy courts’jurisdiction along with any jurisdictional grant to the district .courts. See, e.g., In re Williamson, 28 B.R. 276 (Bkrtcy.M.D.Ga.1983);" }, { "docid": "7668243", "title": "", "text": "such cases and proceedings to the bankruptcy judges for this district. They are to be handled as core or related proceedings in a manner similar to that formerly decreed by Emergency Bankruptcy Rule I adopted by the district court for this district. Jurisdiction thus lies in the district courts and upon referral subject to the exceptions provided in 28 U.S.C. § 157, is to be initially exercised by the bankruptcy judges. The district court’s providing bankruptcy judges with power to enter judgments and orders for what 28 U.S.C. § 157(b) now refers to as core proceedings has been held by this circuit to pass constitutional muster. Salomon v. Kaiser, 722 F.2d 1974 (2d Cir.1983). Referral to bankruptcy judges of non-core proceedings with power only to submit findings of fact and conclusions of law is similarly acceptable since those findings and conclusions are subject to de novo review by the district court. Cf. Northern Pipeline Constr. Co. v. Marathon Pipe Une Co., 458 U.S. 50, 77, 102 S.Ct. 2858, 2874, 73 L.Ed.2d 598; United States v. Radd at Z, 447 U.S. 667, 671-77, 681-83, 100 S.Ct. 2406, 2410-13, 2415-16, 65 L.Ed.2d 424 (1980). In these circumstances where Congress has acted to resolve the jurisdictional debate that followed Northern Pipeline, the mere pendency of a motion to withdraw the reference is no warrant for delay. Indeed, the pendency of that motion counsels in favor of addressing the Trustee’s motion with respect to the pleadings. In ruling on a withdrawal motion, the district court should be presented with a case or proceeding as it is, not as it has been stylized through deficient pleadings. Motions addressed to the pleadings are part of the pre-trial structuring of a case for trial. The parties are entitled to efficient resolution of their matters whether they are to be tried here or in the district court. The duty of this court to handle all matters expedi tiously is heightened in eases such as these where a trustee seeks to recover on a debt alleged to be owed to the estate. The size of this estate, dependent in" }, { "docid": "14593628", "title": "", "text": "debtor-creditor relations which is at the core of the federal bankruptcy power” and “the adjudication of state created private rights to recover contract damages.” 458 U.S. at 71, 102 S.Ct. at 2871, 73 L.Ed.2d at 615. The Supreme Court’s Marathon decision clearly did not implicate the jurisdiction of the bankruptcy courts to hear and determine matters falling within the “traditional” bankruptcy jurisdiction. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1580 (2d Cir.1983). Stated differently, the Marathon Court’s invalidation of the jurisdictional grant of the Reform Act clearly was not on the ground that a bankruptcy court is not empowered to adjudicate traditional bankruptcy matters. 3. BAFJA: The Congressional Response to Marathon In 1984, Congress responded to the Supreme Court’s Marathon decision by enacting BAFJA. The key jurisdictional provisions of BAFJA are found in 28 U.S.C. §§ 157 and 1334. Each of these jurisdictional provisions, which define the source and limits of the bankruptcy court’s subject matter jurisdiction, shall be examined below. (a) 28 U.S.C. Section 1334 Section 1334 provides in relevant part as follows: § 1334. Bankruptcy cases and proceedings (a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. The four categories of matters set forth in § 1334 that are within the jurisdiction of the district court are: (1) a case under Title 11; (2) a civil proceeding arising under Title 11; (3) a civil proceeding arising in a case under Title 11; and (4) a civil proceeding related to a case under Title 11. (i) Cases As Collier notes, “[t]he ‘case’ referred to in § 1334(a) is the case upon which all of the proceedings which follow the filing of the petition are predicated.” 1 Collier on Bankruptcy if 3.01[l][c][i] at 3-20" } ]

[ { "docid": "21932251", "title": "", "text": "the district court’s application of the guidelines and review for clear error its underlying findings of fact. United States v. Noe, 411 F.3d 878, 888 (8th Cir.2005). We note that under the advisory guidelines scheme, sentencing judges are required to find sentence-enhancing facts only by a preponderance of the evidence. United States v. Pirani, 406 F.3d 543, 551 n. 4 (8th Cir. 2005) (en banc); United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.2006). Scott contends that the district court erred in enhancing his offense level based upon an amount of loss of more than $200,000 instead of the $28,110.97 amount stated in the indictment. Section 2B1.1(b)(1)(G) of the guidelines provides that the amount of loss is generally the greater of the actual or intended loss. U.S.S.G. § 2B1.1, cmt. n. 3(A). The district court need make only a reasonable estimate of the loss, and we accord particular deference to the loss determination because of the district court’s unique ability to assess the evidence and estimate the loss. U.S.S.G. § 2B1.1, cmt. n. 3(C); United States v. Ameri, 412 F.3d 893, 899-900 (8th Cir.2005). As recounted above, the government presented evidence of a check register found on Scott’s computer detailing $200,000 worth of checks created by Scott during the course of the conspiracy, testimony that a codefendant admitted that they had defrauded banks of one million dollars, and evidence that other portions of the codefendant’s statement had been corroborated. We conclude that the district court did not err in determining that a preponderance of the evidence supported a finding that $200,000 was a reasonable estimate of actual or intended loss. Scott next argues that the district court erred in applying an enhancement for Scott’s role in the offense pursuant to § 3B1.1 of the guidelines. Scott alleges that this enhancement was inappropriate because there were only four participants in the conspiracy and because he neither directed the actions of his eoconspirators nor received a large share of the conspiracy’s proceeds. Section 3B1.1 provides that a four-level enhancement is appropriate if “the defendant was an organizer or leader of a" } ]

[ { "docid": "14562467", "title": "", "text": "loss.” United States v. John, 597 F.3d 263, 279 (5th Cir.2010) (citing U.S.S.G. § 2Bl.l(b)(l)). They provide for a ten-level increase if the offense results in a loss of more than $120,000 but less than $200,000, U.S.S.G. § 2Bl.l(b)(l)(F); and a twelve-level increase if the offense results in a loss of more $200,000 but less than $400,000, U.S.S.G. § 2Bl.l(b)(l)(G). The district' court adopted the PSR’s calculation that Kenneth Brown was responsible for a $304,553.62 loss and Leah Brown was. responsible for a $142,554.48 loss; found, based on,their particular involvement in the conspiracy, that those loss amounts were “reasonably foreseeable” to each defendant; and adjusted upward their offense levels accordingly. A district court’s loss calculation, and its embedded'determination that the loss amount was reasonably foreseeable to the defendant, are factual findings reviewed for clear error. United States v. Hebron, 684 F.3d 554, 560 (5th Cir.2012) (loss calculation reviewed for clear error); United States v. Hull, 160 F.3d 265, 269 (5th Cir.1998) (foreseeability determination reviewed for clear error). The district court need only make “a reasonable estimate of the loss,” Hebron, 684 F.3d at 560 (citing § 2B1.1 cmt. n. 3(C)), and, given the “unique position” it occupies to assess the loss amount, its loss calculation is entitled to appropriate deference, id. a. Kenneth Brown The district court attributed to Kenneth Brown a loss amount of $304,553.62 based on the fourteen checks he cashed and twenty-five checks made payable to his friends, associates, and family members. Kenneth Brown contends that he. “should only have been held responsible for the loss amount of the checks he actually endorsed.” Brown’s position that he is not responsible for checks cashed by others participating in the scheme is contradicted by U.S.S.G. § lB1.3(a)(l)(B), which provides that a defendant is responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” The district court’s finding that the loss resulting from the checks cashed by other members of the conspiracy was reasonably foreseeable to Brown is well supported. Brown recruited others to join, cashed checks when others backed out, and" }, { "docid": "21150964", "title": "", "text": "as the scope and duration of the fraud and the revenues generated by similar operations. Id. Or, if the amount of loss cannot reasonably be determined, the court may use the offender’s gain from committing the fraud as an alternative estimate. Id. “The amount of fraud loss for sentencing purposes is the greater of the loss [the] defendant ] intended to inflict at the time of the fraud, or the actual loss.” Coon, 187 F.3d at 899; U.S.S.G. § 2B1.1 cmt. n. 3(A). The district court based its $200,000 to $400,000 loss calculation on two evidentiary submissions. The court accepted the government’s evidence establishing the amount of credit card charges Farrington ran through Converge Now’s merchant accounts, and the court also took into account the losses sustained by the broadcast companies for Converge Now’s unpaid radio advertising. We find that the district court’s loss calculation properly included these sums because they flowed from Farrington’s fraudulent Converge Now scheme, and Farrington intended the losses when he billed the charges. See U.S.S.G. § 2B1.1 cmt. n. 3(A)(ii). Because the district court need only make a reasonable estimate of loss rather than a precise determination, Agboola, 417 F.3d at 870, and the district court’s loss determination is plausible in light of the record as a whole, Coon, 187 F.3d at 899, we conclude that the district court’s loss amount determination was not clearly erroneous. C. Calculation of Restitution Amount Farrington also contends that the district court improperly calculated his restitution amount. The court ordered Farrington to pay $258,566.76 in restitution pursuant to 18 U.S.C. § 3663A(a)(l). This amount included $167,586.70 for losses to the merchant account holders, $60,560.00 for losses to the broadcast companies, and $30,420.06 for losses to individual subscribers. “We review the district court’s decision to order restitution for an abuse of discretion.” United States v. Pierce, 479 F.3d 546, 553 (8th Cir.2007). “The district court’s factual determinations underlying an order for restitution are reviewed for clear error.” Id. The government has the burden of proving the amount of restitution by a preponderance of the evidence. Id. This standard “simply requires" }, { "docid": "17083899", "title": "", "text": "purpose of the § 2Bl.l(b)(l) enhancement, a district court may consider the “greater of actual loss or intended loss” and must only make a “reasonable estimate” of that amount based on available information. U.S.S.G. § 2B1.1 cmt. n. 3(A), (C). In a case like this one involving jointly undertaken criminal activity, a particular loss may be attributed to a defendant if it results from the conduct of others so long as the conduct was “in furtherance of, and reasonably foreseeable in connection with” the criminal activity. U.S.S.G. § lB1.3(a)(l)(B) & cmt. n. 2. In this case, the district court made a reasonable estimate that the intended loss reasonably foreseeable to Otuya was in excess of $200,000. In reaching that determination, the court referenced a detailed spreadsheet that the government constructed describing 78 specific losses that were intended in the course of the fraud scheme. The court then selected the 33 particular losses that it found to be in furtherance of the conspiracy and reasonably foreseeable to Otuya, either because he personally perpetrated the underlying fraudulent transactions or because he had a close working connection with the conspirators who did. There is no dispute that the total of the intended losses from those transactions exceeded $200,000, and in fact approached $400,000. In view of this strong evidence, the court did not clearly err in its loss calculation or the resulting imposition of a twelve-level enhancement. B. Otuya’s second challenge to his sentence concerns the court’s application of a four-level enhancement for a crime having fifty or more victims under U.S.S.G. § 2Bl.l(b)(2)(B). That guideline provision defines the term “victim” to include, inter alia, “any person who sustained any part of the actual loss.” U.S.S.G. § 2B1.1 cmt. n. 1. “Actual loss” is defined to mean “pecuniary harm,” which in turn encompasses “harm that is monetary or that otherwise is readily measurable in money” and does not include “non-economic harm.” U.S.S.G. § 2B1.1 cmt. n. 3(A)(i), (iii). We review the court’s ruling on this enhancement for clear error with respect to factual findings and de novo as to legal conclusions. See United" }, { "docid": "4996852", "title": "", "text": "personal checks. During the evidentiary hearing, co-conspirators testified as to Troup’s important role in almost every aspect of the conspiracy. Subcontractors testified Troup was consistently their main point of contact and supervised their work. Others testified Troup solicited their participation in the scheme. Many of the victims dealt almost exclusively with Troup. This evidence is sufficient to support the district court’s conclusion Troup had a managerial role in the conspiracy. Based upon the evidence in the record, the district court reasonably could have concluded Troup (1) exercised decision making authority, (2) extensively participated in the offense, (3) recruited accomplices, (4) claimed the right to a larger share of the fruits of the crime than many other coconspirators, (5) participated in planning and organizing the offense, (6) repeatedly participated in almost 200 fraudulent transactions in at least three separate cities, and (7) exercised control and authority over other co-conspirators. The district court’s conclusion that Troup had a managerial role in the conspiracy warranting a two-level increase in Troup’s base offense level was not clearly erroneous. B. Loss Calculation The district court concluded the amount of loss resulting from the mortgage scheme was between $20-50 million. On appeal, defendants argue the district court erred in calculating the amount of loss because the court failed to consider market conditions. Defendants insist the amount of loss would not have been as high had it not been for the downturn in the economy in general and the housing market in particular, and defendants should not be responsible for losses “arising from external factors.” “As recognized by the Guidelines, the damage wrought by fraud is sometimes difficult to calculate.” United States v. Agboola, 417 F.3d 860, 870 (8th Cir.2005). For this reason, a district court is charged only with making “a reasonable estimate of the loss.” United States v. Scott, 448 F.3d 1040, 1044 (8th Cir.2006) (citations omitted). A court should base its loss estimate upon a preponderance of the evidence. See United States v. Boesen, 541 F.3d 838, 850 (8th Cir.2008) (citations omitted). Because “[t]he sentencing judge is in a unique position to assess the" }, { "docid": "14562466", "title": "", "text": "97 F.3d 782, 799 (5th Cir.1996). The district court’s conclusion that the managerial role enhancement was therefore warranted is not implausible in light of the evidence as a whole, Guidelines commentary that “the recruitment of accomplices” is one factor “court[s] should consider,” § 3Bl.l(b) cmt. n. 4, and our precedent affirming role enhancements for similar conduct, see United States v. Liu, 960 F.2d 449, 456 (5th Cir.1992) (finding no clear error in district court’s application of “manager or supervisor” enhancement to defendant responsible for finding accomplices to join, and customers to fund, an immigration fraud scheme); see also United States v. Ramcharan, 83 Fed.Appx. 667, 671 (5th Cir.2003) (per curiam) (unpublished) (finding no clear error in district court’s application of “manager or supervisor” enhancement where the defendant recruited family members to join an insurance fraud conspiracy and directed them in the filing of fraudulent claims). 2. Loss calculation The Guidelines “createf ] a sliding scale that increases the defendant’s base offense level by zero to thirty [levels] depending on the amount of [actual or intended] loss.” United States v. John, 597 F.3d 263, 279 (5th Cir.2010) (citing U.S.S.G. § 2Bl.l(b)(l)). They provide for a ten-level increase if the offense results in a loss of more than $120,000 but less than $200,000, U.S.S.G. § 2Bl.l(b)(l)(F); and a twelve-level increase if the offense results in a loss of more $200,000 but less than $400,000, U.S.S.G. § 2Bl.l(b)(l)(G). The district' court adopted the PSR’s calculation that Kenneth Brown was responsible for a $304,553.62 loss and Leah Brown was. responsible for a $142,554.48 loss; found, based on,their particular involvement in the conspiracy, that those loss amounts were “reasonably foreseeable” to each defendant; and adjusted upward their offense levels accordingly. A district court’s loss calculation, and its embedded'determination that the loss amount was reasonably foreseeable to the defendant, are factual findings reviewed for clear error. United States v. Hebron, 684 F.3d 554, 560 (5th Cir.2012) (loss calculation reviewed for clear error); United States v. Hull, 160 F.3d 265, 269 (5th Cir.1998) (foreseeability determination reviewed for clear error). The district court need only make “a reasonable" }, { "docid": "4996853", "title": "", "text": "Loss Calculation The district court concluded the amount of loss resulting from the mortgage scheme was between $20-50 million. On appeal, defendants argue the district court erred in calculating the amount of loss because the court failed to consider market conditions. Defendants insist the amount of loss would not have been as high had it not been for the downturn in the economy in general and the housing market in particular, and defendants should not be responsible for losses “arising from external factors.” “As recognized by the Guidelines, the damage wrought by fraud is sometimes difficult to calculate.” United States v. Agboola, 417 F.3d 860, 870 (8th Cir.2005). For this reason, a district court is charged only with making “a reasonable estimate of the loss.” United States v. Scott, 448 F.3d 1040, 1044 (8th Cir.2006) (citations omitted). A court should base its loss estimate upon a preponderance of the evidence. See United States v. Boesen, 541 F.3d 838, 850 (8th Cir.2008) (citations omitted). Because “[t]he sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence ... [t]he court’s loss determination is entitled to appropriate deference.” U.S.S.G. § 2B1.1 app. n. 3(C). Thus, we review a district court’s loss calculation for clear error. Boesen, 541 F.3d at 850 (citations omitted). As a general rule, the amount of loss is the greater of actual loss of intended loss. U.S.S.G. § 2B1.1 app. n. 3(A); Agboola, 417 F.3d at 868. “ ‘Actual loss’ means the reasonably foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1 app. n. 3(A)(i). “ ‘[Reasonably foreseeable pecuniary harm’ means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.” Id. § 2B1.1 app. n. 3(A)(iv). In contrast, intended loss is “the pecuniary harm that was intended to result from the offense.” Id. § 2B1.1 app. n. 3(A)(ii). If the loss cannot reasonably be determined, a “court shall use the gain that resulted from the offense as an alternative measure of loss.” Id. § 2B1.1 app. n." }, { "docid": "17104030", "title": "", "text": "may be sentenced under either Sections 2B1.1, 2B1.5, 2C1.1 or 2C1.2, the latter of which applies, inter alia, to receipt and solicitation of gratuities, see U.S.S.G. app. A, at 543. The Guidelines also provide that violations of Sections 1341 and 1343 are to be sentenced under either Section 2B1.1 or 2C1.1. However, the Guidelines do not provide that honest services fraud convictions under Sections 1341 and 1343 are to be sentenced under the 2C1.2 gratuities Guideline, see U.S.S.G. app. A, at 546. Accordingly, we find no error in the district court’s application of Section 2C1.1 with a base offense level of 14 to Bahel. 2. Proceeds from the Fraud The district court enhanced Bahel’s sentence by 14 levels based on the court’s observation that Bahel gained in excess of $400,000 from the fraud. See U.S.S.G. §§ 2Bl.l(b)(l)(H), 201.1(b)(2), at 80, 127. Bahel claims that this enhancement was in error because the district court’s calculation of the benefits he received was based on speculative evidence. We disagree. Much of the case law relating to estimating the price of fraud relates to estimations of losses suffered as a result of the fraud. In this case, however, the relevant measurement is how much Bahel profited from his fraud. In calculating this number, the principles relating to estimating losses are equally applicable to estimating gains. In estimating the cost of fraud, the “Guidelines do not require that the sentencing court calculate the amount of loss with certainty or precision.” United States v. Bryant, 128 F.3d 74, 75 (2d Cir.1997). The sentencing court “need only make a reasonable estimate of the loss, given the available information.” United States v. Uddin, 551 F.3d 176, 180 (2d Cir.2009) (internal quotation marks omitted); see also U.S.S.G. § 2B1.1, cmt. n. 3(C), at 87. Disputed facts relevant to sentencing determinations should be supported by a preponderance of the evidence. See, e.g., United States v. Garcia, 413 F.3d 201, 220 n. 15 (2d Cir.2005). Because the sentencing court “is in a unique position to assess the evidence and estimate the loss based upon that evidence,” its findings are “entitled to" }, { "docid": "3389060", "title": "", "text": "through false representations and the defendant is the recipient of the loan proceeds. Therefore, we find the district court properly refused DeRosier’s proposed instruction because it did not contain a proper statement of the law. See United States v. McQuarry, 726 F.2d 401 (8th Cir.1984) (affirming the district court’s rejection of the proposed instruction because the instruction was unsupported by case law). B. Loss Amount Appellant argues that the district court erred in calculating the amount of loss and restitution. The district court ordered an eight-level enhancement for the loss amount being greater than $70,000 but less than $120,000 — the court determined the loss was $79,353.42. We review findings of facts underlying its calculation of the guidelines for clear error. United States v. Scott, 448 F.3d 1040, 1043 (8th Cir.2006). We conduct a de novo review of the district court’s application of the guidelines to the facts. Id. at 1043. Appellant alleges four points of error in calculating loss: (1) the amount for TierOne’s attorney fees, legal fees, and other employee costs related to the investigation of DeRosier were inappropriately included; (2) Jane Peterson’s waiver of bank loan fees in the amount of $623.88 are not substantially related to the counts in the indictment, and the fees constitute lost profits, not true loss; (3) the $19,100.00 loan from Jack Tudor should not have been considered because no evidence was presented on this loan, and it was not substantially connected to DeRosier’s convicted conduct; and, (4) the $10,000 loss amount related to the dismissed Vera Bullington charge should be excluded. Critical to the calculation of Appellant’s sentence in this case is the calculation of loss. See U.S.S.G § 2B1.1. We recognize that “[t]he district court need make only a reasonable estimate of the loss, and we accord particular deference to the loss determination because of the district court’s unique ability to assess the evidence and estimate the loss.” Scott, 448 F.3d at 1044. Appellant argues that she should not be accountable for the bank’s legal and employee fees associated with the investigation of her conduct because they are consequential and" }, { "docid": "17083898", "title": "", "text": "history); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (“The title of a statute cannot limit the plain meaning of the text.” (internal quotation marks and alterations omitted)). As we have explained, the plain meaning of § 1028A(a)(l) is unambiguous: one who uses a means of identification to commit an enumerated felony does not act with “lawful authority.” We thus affirm Otuya’s conviction for aggravated identity theft. IV. With his challenges to his convictions unavailing, Otuya attempts next to contest the district court’s application of the sentencing guidelines. Otuya claims that the district court erred in three respects, but his arguments are unpersuasive. A. Otuya’s first claim is that the trial court erroneously imposed a twelve-level enhancement pursuant to U.S.S.G. § 2Bl.l(b)(l)(G) on the ground that Otu-ya’s offense involved an intended loss amount in excess of $200,000. We review the court’s calculation of loss amount for clear error. United States v. Allen, 491 F.3d 178, 193 (4th Cir.2007). In calculating the amount of loss for the purpose of the § 2Bl.l(b)(l) enhancement, a district court may consider the “greater of actual loss or intended loss” and must only make a “reasonable estimate” of that amount based on available information. U.S.S.G. § 2B1.1 cmt. n. 3(A), (C). In a case like this one involving jointly undertaken criminal activity, a particular loss may be attributed to a defendant if it results from the conduct of others so long as the conduct was “in furtherance of, and reasonably foreseeable in connection with” the criminal activity. U.S.S.G. § lB1.3(a)(l)(B) & cmt. n. 2. In this case, the district court made a reasonable estimate that the intended loss reasonably foreseeable to Otuya was in excess of $200,000. In reaching that determination, the court referenced a detailed spreadsheet that the government constructed describing 78 specific losses that were intended in the course of the fraud scheme. The court then selected the 33 particular losses that it found to be in furtherance of the conspiracy and reasonably foreseeable to Otuya, either because he personally perpetrated the underlying fraudulent" }, { "docid": "21150962", "title": "", "text": "admitting the challenged evidence. See Schumacher, 238 F.3d at 980 (“The mere fact that the evidence was unfavorable, is by no means so unfairly prejudicial as to be misleading and not aid and assist the jury in making a material determination in the case.”) (internal quotations and citation omitted). B. Amount of Loss Enhancement Farrington also contends that the district court erred in enhancing his offense level based upon the amount of loss. The district court determined that the loss from the fraudulent scheme totaled between $200,000 and $400,000. Farrington avers that the court miscalculated the loss because it should have only used the amount of loss specifically listed in the indictment for the 34 counts for which he was convicted. “We review the district court’s fraud loss findings for clear error; ‘as long as the determination is plausible in light of the record as a whole, clear error does not exist.’ ” United States v. Coon, 187 F.3d 888, 899 (8th Cir.1999) (quoting United States v. Jackson, 155 F.3d 942, 948 (8th Cir.1998)). We note that under the advisory Guidelines scheme, sentencing judges are only required to find sentence-enhancing facts by a preponderance of the evidence. United States v. Scott, 448 F.3d 1040, 1043 (8th Cir.2006). Guidelines § 2Bl.l(a) establishes a base offense level of 6 for Farring-ton’s convictions, but § 2Bl.l(b)(l)(G) mandates a 12-level enhancement if the loss is between $200,000 and $400,000. The district court’s loss determination does not have to be precise; the court only has to make “a reasonable estimate” of the loss. United States v. Agboola, 417 F.3d 860, 870 (8th Cir.2005); Scott, 448 F.3d at 1044; U.S.S.G. § 2B1.1, cmt. n. 3(C). “[W]e accord particular deference to the loss determination because of the district court’s unique ability to assess the evidence and estimate the loss.” Scott, 448 F.3d at 1044. The loss estimate may be based on the approximate number of victims multiplied by the average loss to each victim. U.S.S.G. § 2B1. 1, cmt. n. 3(C); Agboola, 417 F.3d at 868. Also, the loss may be based on more general factors, such" }, { "docid": "21150963", "title": "", "text": "note that under the advisory Guidelines scheme, sentencing judges are only required to find sentence-enhancing facts by a preponderance of the evidence. United States v. Scott, 448 F.3d 1040, 1043 (8th Cir.2006). Guidelines § 2Bl.l(a) establishes a base offense level of 6 for Farring-ton’s convictions, but § 2Bl.l(b)(l)(G) mandates a 12-level enhancement if the loss is between $200,000 and $400,000. The district court’s loss determination does not have to be precise; the court only has to make “a reasonable estimate” of the loss. United States v. Agboola, 417 F.3d 860, 870 (8th Cir.2005); Scott, 448 F.3d at 1044; U.S.S.G. § 2B1.1, cmt. n. 3(C). “[W]e accord particular deference to the loss determination because of the district court’s unique ability to assess the evidence and estimate the loss.” Scott, 448 F.3d at 1044. The loss estimate may be based on the approximate number of victims multiplied by the average loss to each victim. U.S.S.G. § 2B1. 1, cmt. n. 3(C); Agboola, 417 F.3d at 868. Also, the loss may be based on more general factors, such as the scope and duration of the fraud and the revenues generated by similar operations. Id. Or, if the amount of loss cannot reasonably be determined, the court may use the offender’s gain from committing the fraud as an alternative estimate. Id. “The amount of fraud loss for sentencing purposes is the greater of the loss [the] defendant ] intended to inflict at the time of the fraud, or the actual loss.” Coon, 187 F.3d at 899; U.S.S.G. § 2B1.1 cmt. n. 3(A). The district court based its $200,000 to $400,000 loss calculation on two evidentiary submissions. The court accepted the government’s evidence establishing the amount of credit card charges Farrington ran through Converge Now’s merchant accounts, and the court also took into account the losses sustained by the broadcast companies for Converge Now’s unpaid radio advertising. We find that the district court’s loss calculation properly included these sums because they flowed from Farrington’s fraudulent Converge Now scheme, and Farrington intended the losses when he billed the charges. See U.S.S.G. § 2B1.1 cmt. n. 3(A)(ii)." }, { "docid": "2274905", "title": "", "text": "district court thus used an offense level of 21 to sentence Mr. Frank, and an offense level of 20 to sentence Mr. Ahlers (not including the increases for role in the offense and obstruction of justice). Under the 2002 sentencing guidelines, if the defendant committed the underlying offense from which the laundered funds were derived and the offense level for that offense can be determined, then the base offense level for money laundering is the offense level for the underlying offense. See U.S.S.G. § 2Sl.l(a)(l) (2002). In this case, the primary underlying offenses were fraud offenses, and the guideline for these offenses is U.S.S.G. § 2B1.1. Pursuant to § 2Bl.l(a), the base offense level is 6. This level is then increased based on a scale of offense-level increases found in § 2Bl.l(b)(l) corresponding to the amount of loss. As we have realized in relation to this guideline, “[s]ometimes the computation of loss is complicated.” United States v. Wheeldon, 313 F.3d 1070, 1071 (8th Cir.2002). The loss figure to be used is the greater of actual loss or intended loss. U.S.S.G. § 2B1.1, comment. (n.2(A)) (2002). In determining this loss figure, “[t]he court need only make a reasonable estimate of the loss. The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. For this reason, the court’s loss determination is entitled to appropriate deference.” U.S.S.G. § 2B1.1, comment. (n.2(C)) (2002). Here, the district court determined at Mr. Frank’s sentencing hearing that it could “reasonably and conservatively guess that the Defendant’s relevant conduct for these instant offenses of conviction involved an intended loss of at least $200,000, but not more than $350,000.” Based on this determination, the court found that an increase of 12 levels was warranted pursuant to § 2Bl.l(b)(l)(G) of the 2002 guidelines. We conclude that the district court’s determination that the intended pecuniary harm to the government from the fraudulent acts was at least $200,000 was a reasonable estimate. The amount that Mr. Frank owed had grown to over $500,000 by the time of trial. While he had made" }, { "docid": "21150961", "title": "", "text": "and prejudicial impact of the evidence.” United States v. Ruiz, 412 F.3d 871, 881 (8th Cir.2005) (internal citation omitted). “We review the district court’s decision to admit evidence for abuse of discretion.” Looking Cloud, 419 F.3d at 785. Farrington was charged with 36 counts of wire fraud. “The essential elements of wire fraud are a scheme to defraud, the use of interstate wires incident to the scheme, and an intent to cause harm.” United States v. Edelmann, 458 F.3d 791, 812 (8th Cir.2006). “Intent to defraud may be inferred from all the facts and circumstances surrounding the defendant’s actions.” United States v. Schumacher, 238 F.3d 978, 980 (8th Cir.2001). Consequently, the challenged evidence was admissible as it tended to show that Far-rington used Converge Now as a scheme to defraud and that Farrington had the necessary intent to commit wire fraud. Accordingly, giving deference to the district court’s balancing of the probative value and prejudicial impact of the evidence, Ruiz, 412 F.3d at 881, we hold that the court did not abuse its discretion in admitting the challenged evidence. See Schumacher, 238 F.3d at 980 (“The mere fact that the evidence was unfavorable, is by no means so unfairly prejudicial as to be misleading and not aid and assist the jury in making a material determination in the case.”) (internal quotations and citation omitted). B. Amount of Loss Enhancement Farrington also contends that the district court erred in enhancing his offense level based upon the amount of loss. The district court determined that the loss from the fraudulent scheme totaled between $200,000 and $400,000. Farrington avers that the court miscalculated the loss because it should have only used the amount of loss specifically listed in the indictment for the 34 counts for which he was convicted. “We review the district court’s fraud loss findings for clear error; ‘as long as the determination is plausible in light of the record as a whole, clear error does not exist.’ ” United States v. Coon, 187 F.3d 888, 899 (8th Cir.1999) (quoting United States v. Jackson, 155 F.3d 942, 948 (8th Cir.1998)). We" }, { "docid": "18139139", "title": "", "text": "involuntary by the Supreme Court’s subsequent issuance of Booker or Blakely. United States v. Green, 405 F.3d 1180, 1190 (10th Cir.2005). Similarly, we do not believe these decisions should negate waivers of other' constitutional rights, such as the right to a trial by jury- Furthermore, the record indicates that after Blakely was decided, the district court offered Defendant an opportunity to withdraw her guilty plea and waiver of jury trial rights, an opportunity Defendant refused. If there was any doubt as to the scope or voluntariness of Defendant’s pre-Blakely waiver, that doubt was erased when Defendant, having full knowledge of Blakely, declined the offer to withdraw her plea.- 2. Conclusion Because Defendant waived, without qualification, her right to a jury trial in her guilty plea, we conclude that she may not now assign as error the failure of the district court to afford her a jury determination of facts relevant to sentencing. We will, however, consider Defendant’s two points of error related to the district court’s application of the guidelines. B. Application of U.S.S.G. § 2Bl.l(b)(l)(F): Loss attributable to Defendant Based on evidence presented at the sentencing hearing, the district court found beyond a reasonable doubt that the monetary loss attributable to Defendant’s conduct was $134,571.34. This finding permitted the court to apply a sentencing enhancement under U.S.S.G. § 2Bl.l(b)(l)(F), which permits a ten-level increase in a defendant’s offense level if the loss suffered exceeds $120,000 but is not more than $200,000. On appeal, Defendant argues that the district court miscalculated the loss attributable to her conduct and therefore erroneously applied the guideline enhancement. When reviewing a district court’s application of the sentencing guidelines, we review legal questions de novo and any factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts. United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005). In calculating the loss attributable to defendant, the district court “need only make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n. 3(C). The sentencing judge is in a unique position to assess the evidence and estimate" }, { "docid": "4193763", "title": "", "text": "F.3d 712, 720 (5th Cir.2008). F. Sentencing 1. Mary Ellis Ellis contends the district court erred in calculating her offense level at sentencing. In considering her argument, “we review the district court’s factual findings for clear error and its interpretation of the Guidelines de novo.” Mauskar, 557 F.3d at 232. At sentencing, the district court applied an enhancement under U.S.S.G. § 2Bl.l(b)(l)(H) (2011) based on an attributable loss of more than $400,000. Ellis objected. ■ She argues on appeal that the evidence did not support a finding that she subjectively intended to cause such a loss and that the loss was not based on her conduct. Commentary to Section 2B1.1 states that the “loss is the greater of actual loss or intended loss.” § 2B1.1 cmt. n. 3(A). Given the arguments at sentencing and the court’s stated determinations, we examine the “actual loss,” which is “the reasonably foreseeable, pecuniary harm that resulted from the offense.” U.S.S.G. §.2B1.1 cmt. n. 3(A)(i). Actual loss requires a causal connection in .fact, that is, a finding that Ellis truly caused the loss. See United States v. Olis, 429 F.3d 540, 545-46 (5th Cir.2005). The district court “need only make a reasonable estimate of the loss.” § 2B1.1 cmt. n. 3(C). The court “is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range.” Mauskar, 557 F.3d at 234. The district court estimated that the loss attributable to Ellis was $401,000. At sentencing, the Government initially contended the loss was $1,025,899.87 and presented an exhibit which listed beneficiaries for whom Ellis had prepared at least one nursing note and the amount billed to Medicare for each patient. 'Ellis objected, arguing that she did not know at least 12 of the patients on the exhibit. She also contended the total was $131,000 based on the. patients she admitted to referring, which would have resulted in- a reduced enhancement; See § 2Bl.l(b)(l). The court was persuaded that the Government could prove at least $400,000 in loss because the evidence showed that Ellis provided skilled nursing services" }, { "docid": "18148206", "title": "", "text": "challenges only the calculation of the amount of loss, not the amount of restitution the district court ordered. Guidelines section 2Fl.l(a) provides a base offense level of 6 for fraud offenses. Section 2F1.1(b)(1)(E) mandates a ten-level enhancement if the loss is over $500,000 but less than $800,000. Application note 9 instructs “the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information.” U.S.S.G. § 2F1.1 cmt. n.9. This estimate “may be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations. The offender’s gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss.” Id. “The amount of fraud loss for sentencing purposes is the greater of the loss defendants intended to inflict at the time of the fraud, or the actual loss.” United States v. Coon, 187 F.3d 888, 899 (8th Cir.1999). We conclude the district court’s finding that there were victims and losses from Agboola’s crimes was not clearly erroneous. A victim is the object or target of the defendant’s crime. United States v. Manfre, 368 F.3d 832, 845 (8th Cir.2004). As the district court found, Agboola purchased properties at low prices, held title to the properties a short period of time, then resold the properties at prices that materially overstated the true market value, often selling the properties the same day he purchased them. Agent Klug testified to specific instances of such “flipping.” The prices and sales were based on Aihe’s fraudulent appraisals. Agboola’s victims were those who purchased the properties at the fraudulently inflated prices, and the lenders who made loans for the fraudulently inflated home values. According to Agent Klug, these lenders lost money because they lent more money than a particular property was worth, due to the fraudulent appraisals. The court also found Agboola was involved in all of the properties listed in the PSR, concluding Agboo-la’s claims that he" }, { "docid": "18139140", "title": "", "text": "2Bl.l(b)(l)(F): Loss attributable to Defendant Based on evidence presented at the sentencing hearing, the district court found beyond a reasonable doubt that the monetary loss attributable to Defendant’s conduct was $134,571.34. This finding permitted the court to apply a sentencing enhancement under U.S.S.G. § 2Bl.l(b)(l)(F), which permits a ten-level increase in a defendant’s offense level if the loss suffered exceeds $120,000 but is not more than $200,000. On appeal, Defendant argues that the district court miscalculated the loss attributable to her conduct and therefore erroneously applied the guideline enhancement. When reviewing a district court’s application of the sentencing guidelines, we review legal questions de novo and any factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts. United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005). In calculating the loss attributable to defendant, the district court “need only make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n. 3(C). The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. Id. For this reason, the court’s loss determination is entitled to appropriate deference. Id. (citing 18 U.S.C. § 3742(e) and (f)). Here, the district court relied on an exhibit furnished by VOM which purported to estimate the amount of contributions lost from 1999 to 2003, the period during which Defendant was a USPS employee. During this time, each time a check was reported uncashed, VOM (acting pursuant to its internal policy) made an entry into a spreadsheet. This report contained the date each undelivered check was reported, the check number, the donor’s name and address, the amount of the donation, and the estimated date the donation was mailed. The total number of donations reported lost during this period was $253,555.42 (“the gross loss”). However, it appears that some of the donors who reported uncashed checks sent in “replacement donations” when they were informed that their original donations had not been received by VOM. A donation was categorized by VOM as a “replacement donation” when it was (1) the same" }, { "docid": "23620139", "title": "", "text": "the Sixth Amendment” to preserve a Booker claim. Under our plain error analysis, Erhart is required to show “a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence” to show that his substantial rights were affected. Id. at 552 (applying the third prong of the plain error test found in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In this case, Erhart did not argue Ap-prendi Blakely, or the Sixth Amendment to the district court, and, thus, we review his Booker argument for plain error. Nothing in the record indicates that the district court would have given Erhart a lesser sentence had it viewed the Guidelines in an advisory capacity. See Pirani, 406 F.3d at 553. As such, Erhart’s Booker claim fails. C. Loss Determination Erhart argues next that the district court erred in setting the fraud rate at seventy-five percent. Specifically he argues that the court discounted all evidence regarding the fraud rate and decided to adopt the rate from the pre-sentence report (“PSR”). We review Erhart’s claim that the district court erred in its calculation of the loss determination for clear error. United States v. Dolan, 120 F.3d 856, 870 (8th Cir.1997); see also United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005) (explaining that, post Booker, we still review factual findings made by the district court for clear error). We note that, although the sentencing court is not expected to determine the fraud rate and attributable loss with precision, it should make a reasonable estimate of the loss, given available information. United States v. Wells, 127 F.3d 739, 748 (8th Cir.1997). It is the government’s burden to prove the amount of fraud loss by a preponderance of the evidence. United States v. Coon, 187 F.3d 888, 899 (8th Cir.1999). However, the district judge “is in a unique position to assess the evidence and estimate the loss based upon that evidence. For this reason, the court’s loss determination is entitled to appropriate deference.” U.S.S.G. § 2B1.1, app." }, { "docid": "18148205", "title": "", "text": "used that license to open a bank account to deposit checks he received in Minnesota. When Agboola returned to Minnesota in 2001, he told one of his former clients he was under investigation but “was just keeping low.” Agboola knew before he again left Minnesota that he was under investigation. Finally, upon his arrest, Agboola stated he was tired of running and being a fugitive. These facts show Agboola actively impeded arrest and resolution of his case. Agboo-la’s conduct was sufficient to establish obstruction of justice, and the district court did not err in applying the enhancement. 3. Amount of Loss Agboola contends the district court erred in finding the amount of loss was between $500,000 and $800,000, and thereby erred in increasing his base offense level on the fraud counts. Specifically, Agboola claims there were no victims and no loss associated with the property flipping schemes. The district court found the loss from property flipping amounted to $563,785, and the loss from the bankruptcy fraud was $174,713, for a total loss of $738,498. Agboola challenges only the calculation of the amount of loss, not the amount of restitution the district court ordered. Guidelines section 2Fl.l(a) provides a base offense level of 6 for fraud offenses. Section 2F1.1(b)(1)(E) mandates a ten-level enhancement if the loss is over $500,000 but less than $800,000. Application note 9 instructs “the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information.” U.S.S.G. § 2F1.1 cmt. n.9. This estimate “may be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations. The offender’s gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss.” Id. “The amount of fraud loss for sentencing purposes is the greater of the loss defendants intended to inflict at the time of the fraud, or the actual loss.” United States v. Coon, 187 F.3d 888, 899" }, { "docid": "10110933", "title": "", "text": "error did not affect Ford’s substantial rights. E. Sentencing Ford argues that her sentence is procedurally unreasonable because the district court’s calculation of the loss amount, resulting in an enhancement under U.S.S.G. § 2B1.1(b)(1)(H), and the number of victims, resulting in an enhancement under U.S.S.G. § 2Bl.l(b)(2)(C), was not supported by sufficient evidence. Ford also argues that the district court erroneously defined “victim.” We review a district court’s interpretation and application of the Sentencing Guidelines de novo but accept the court’s factual findings unless they are clearly erroneous. United States v. Cruz, 713 F.3d 600, 605 (11th Cir.2013). For a factual finding to be clearly erroneous, we must have a definite and firm conviction that a mistake has been made. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.2010). 1. Loss Amount We review the district court’s calculation of the loss amount, pursuant to U.S.S.G. § 2B1.1(b)(1), for clear error. United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir.2011). Although it may not speculate about the existence of facts and must base its estimate on reliable and specific evidence, the district court is required only to make a reasonable estimate of the loss. Id.; see also U.S.S.G. § 2B1.1, Application Note 3(C) (“The court need only make a reasonable estimate of the loss.”); United States v. Woodard, 459 F.3d 1078, 1087 (11th Cir.2006) (per curiam) (“For sentencing purposes, the loss amount does not need to be precise and may only be a reasonable estimate of the loss based on the available information.”). And we give the estimate “appropriate deference.” U.S.S.G. § 2B1.1, Application .Note 3(C) (citing 18 U.S.C. § 3742(e) and (0). The district court did not clearly err in finding that the government proved by a preponderance of the evidence that the loss amount of Ford’s offense was greater than $400,000. The court considered the evidence at trial, reviewed additional summary charts prepared by the IRS for sentencing, and heard the testimony of the IRS agent in charge of Ford’s investigation. The IRS agent testified at sentencing that he reviewed all of the tax returns. Because many" } ]

[ { "docid": "22662713", "title": "", "text": "Mr. Chief Justice Warren delivered the opinion of the Court. This case, in its present posture raising questions as to the right to a plenary hearing in federal habeas corpus, comes to us once again after a tangle of prior proceedings. In 1955 the petitioner, Charles Townsend, was tried before a jury for murder in the Criminal Court of Cook County, Illinois. At his trial petitioner, through his court-appointed counsel, the public defender, objected to the introduction of his confession on the ground that it was the product of coercion. A hearing was held outside the presence of the jury, and the trial judge denied the motion to suppress. He later admitted the confession into evidence. Further evidence relating to the issue of volun-tariness was introduced before the jury. The charge permitted them to disregard the confession if they found that it was involuntary. Under Illinois law the admissibility of the confession is determined solely by the trial judge, but the question of voluntariness, because it bears on the issue of credibility, may also be presented to the jury. See, e. g., People v. Schwarts, 3 Ill. 2d 520, 523, 121 N. E. 2d 758, 760; People v. Roach, 369 Ill. 95, 15 N. E. 2d 873. The jury found petitioner guilty and affixed the death penalty to its verdict. The Supreme Court of Illinois affirmed the conviction, two justices dissenting. People v. Townsend, 11 Ill. 2d 30, 141 N. E. 2d 729. This Court denied a writ of certiorari. 355 U. S. 850. Petitioner next sought post-conviction collateral relief in the Illinois State courts. The Cook County Criminal Court dismissed his petition without holding an eviden-tiary hearing. The Supreme Court of Illinois by order affirmed, holding that the issue of coercion was res judi-cata, and this Court again denied certiorari. 358 U. S. 887. The issue of coercion was pressed at all stages of these proceedings. Having thoroughly exhausted his state remedies, Townsend petitioned for habeas corpus in the United States District Court for the Northern District of Illinois. That court, considering only the pleadings filed in the course" } ]

[ { "docid": "22996386", "title": "", "text": "added.) The New York Court of Appeals also rejected Rogers’ contentions, accepting the Appellate Division’s assumption that “the informer had seen narcotic drug transactions in the apartment”. 15 N.Y. 2d 422, 424, 260 N.Y.S.2d 433, 434, 208 N.E.2d 422 (1965). Having unsuccessfully litigated his claims in the state courts, Rogers applied for a writ of habeas corpus in the United States District Court. The judge did not reach the merits of appellant’s claim but, citing our decision in U. S. ex rel. Glenn v. McMann, 349 F.2d 1018 (1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966), denied the application on the ground that appellant’s plea of guilty in the state court barred him from raising his Fourth Amendment claims in a federal habeas corpus proceeding. 255 F.Supp. 516 (N.D.N.Y. 1965). Judge Port having granted a certificate of probable cause, we now review his denial of the writ. II. Waiver At the threshold we must decide whether, in light of the procedures provided by New York in section 813-c, Rogers’ plea of guilty in the state courts foreclosed him from challenging the validity of the search warrant in the federal courts. The general rule, well established in this and other Circuits, is that a “voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him.” U. S. ex rel. Glenn v. McMann, 349 F.2d at 1019. See U. S. ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965); Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965), cert, denied, sub nom. Wallace v. Oliver, 384 U.S. 954, 86 S.Ct. 954 (1966); Alexander v. United States, 290 F.2d 252 (5th Cir.) cert, denied, 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed. 89 (1961). The rationale behind this doctrine is not difficult to discover. It is reasonable to conclude that when a defendant knowingly enters a guilty plea, it is an independent admission of the facts charged; thus, it becomes unnecessary for the prosecution to offer any evidence. And, since the conviction is" }, { "docid": "15349035", "title": "", "text": "testimony, would not warrant habeas corpus relief); Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir. 1958) (newly discovered evidence in form of confession by another does not subject conviction to collateral attack by habeas corpus); Figueroa v. Saldana, 23 F.2d 327, 328 (1st Cir. 1927), cert. denied, 277 U.S. 574, 48 S.Ct. 530, 72 L.Ed. 995 (1928) (confession by another affords no basis for habeas corpus relief); but see United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975) (stating three-prong test in habeas corpus proceeding to determine whether recantation necessitates new trial); Tropiano v. United States, 323 F.Supp. 964 (D.Conn. 1971) (allegation of newly discovered evidence considered under a § 2255 petition). . Movant’s first trial ended in a hung jury. . There is no evidence to support the allegation in the § 2255 motion that the government knowingly used the perjured testimony of an informant to convict movant. Apart from the fact that Santiago’s testimony was not used at trial, there is no evidence the government knew of the alleged inaccuracies in Santiago’s statement. . The motions were denied. . The district court stated in its opinion that the government had complied with its duty to provide the name and address of its informant to plaintiff and there is no evidence to the contrary. We see no basis for movant’s claim that exculpatory evidence was withheld by the government, . The judge below also presided at the trial at which movant was found guilty. . Thus, Santiago could no longer be prosecuted. 18 U.S.C. § 3282." }, { "docid": "11357881", "title": "", "text": "PER CURIAM. On the eve of execution under a sentence of death which was affirmed by the Court of Criminal Appeals of Texas, Shaver v. State, 306 S.W.2d 128, 129, certiorari denied 355 U.S. 864, 78 S.Ct. 98, 2 L.Ed.2d 70, Petitioner sought habeas corpus on the ground that another had confessed to the crime. The petition for habeas corpus, presented after denial of habeas corpus by the State Courts, all of the allegations of which we may take as true, states what then occurred. The District Court denied the writ. This Court, not being fully informed, granted a stay of execution pending this hearing. Petitioner contends that since the “confession shows on its face that he (petitioner) is innocent of the crime for which he has been convicted,” a substantial federal question of denial of due process exists because he has been denied an alleged right to have this newly discovered evidence considered by a court although he assiduously avoids protestations of his innocence or of the truth of the confession and on his brief states that he is not in a position to say whether it is true or false. But it is clear that questions of guilt or innocence are not matters to be considered upon petition for habeas corpus. The sole purpose of such proceedings is to test the validity or legality of the restraint of the petitioner. Widener v. Harris, 4 Cir., 60 F.2d 956; United States ex rel. Sheffield v. Waller, D.C.La., 126 F.Supp. 537, affirmed per curiam 5 Cir., 224 F.2d 280; Ex parte Banspach, 130 Tex.Cr.R. 3, 91 S.W.2d 365; and see Matter of Yamashita, 327 U.S. 1, 66 S.Ct. 340, 8, 90 L.Ed. 499, 505; 25 Am.Jur., Habeas Corpus § 27, p. 161. Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not to its legality. This is not a new proposition. In Figueroa v. Saldana, 1 Cir., 23 F.2d 327, certiorari denied 277 U.S. 574," }, { "docid": "2736318", "title": "", "text": "result of open plea bargaining which resulted in dismissal of the habitual criminal count; (3) conferred with his attorney as to his guilty plea and as to the raising of constitutional rights; and (4) does not contend that his guilty plea was involuntary. Under these circumstances, we believe that the petitioner’s guilty plea forecloses his allegation that he was denied a speedy trial. A voluntary plea of guilty constitutes a waiver of all non-jurisdictional defects. Fowler v. United States, 391 F.2d 276 (5th Cir. 1968); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2nd Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). The issue of the right to a speedy trial is non-jurisdictional in nature. Fowler v. United States, supra; United States v. Doyle, 348 F.2d 715 (2nd Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); Pate v. United States, 297 F.2d 166 (8th Cir.), cert. denied, 370 U. S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507 (1962); United States v. Parrino, 203 F.2d 284 (2nd Cir. 1953). And more important than any automatic bar which may arise from a guilty plea, we believe that the petitioner’s actions relative to entering his plea of guilty indicate an actual, knowing waiver of his claim of an unconstitutional denial of a speedy trial. United States v. Doyle, supra. There is nothing in the record to indicate that the guilty plea was unknowing or involuntary. See, e. g., Luckman v. Burke, 299 F.Supp. 488 (E.D.Wis.1969). Cf., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). The decision of the District Court is affirmed." }, { "docid": "15349034", "title": "", "text": "Casias v. United States, 337 F.2d 354, 356 (10th Cir. 1964); United States v. Gross, 446 F.Supp. 948, 952 (D.N.J.1978); 8A Moore’s Federal Practice ¶ 33.03[2] at 33-16 n.12 (2d ed. 1978). . See United States ex rel. House v. Swope, 219 F.2d 538, 539 (5th Cir. 1955), vacated and remanded for consideration in light of new information, 350 U.S. 945, 76 S.Ct. 324, 100 L.Ed. 824 (1956); Clark v. United States, 370 F.Supp. 92, 95 (W.D.Penn.), aff'd without published opinion, 506 F.2d 1050 (3d Cir. 1974) (newly discovered evidence, even in the form of a confession of another, is not a ground for § 2255 relief); 8A Moore’s Federal Practice ¶ 33.02[3] at 33-9 (2d ed. 1978); cf. Lemire v. McCarthy, 570 F.2d 17, 21 (1st Cir. 1978) (doubt expressed that recantation, absent state misconduct, is cognizable on a petition for habeas corpus); Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir.), cert. denied, 423 U.S. 933, 96 S.Ct. 287,46 L.Ed.2d 263 (1975) (recantation of accomplice, in absence of state’s knowing use of false testimony, would not warrant habeas corpus relief); Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir. 1958) (newly discovered evidence in form of confession by another does not subject conviction to collateral attack by habeas corpus); Figueroa v. Saldana, 23 F.2d 327, 328 (1st Cir. 1927), cert. denied, 277 U.S. 574, 48 S.Ct. 530, 72 L.Ed. 995 (1928) (confession by another affords no basis for habeas corpus relief); but see United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975) (stating three-prong test in habeas corpus proceeding to determine whether recantation necessitates new trial); Tropiano v. United States, 323 F.Supp. 964 (D.Conn. 1971) (allegation of newly discovered evidence considered under a § 2255 petition). . Movant’s first trial ended in a hung jury. . There is no evidence to support the allegation in the § 2255 motion that the government knowingly used the perjured testimony of an informant to convict movant. Apart from the fact that Santiago’s testimony was not" }, { "docid": "22963362", "title": "", "text": "a plea of guilty are based entirely upon the plea and not upon any evidence which may have been improperly acquired by the prosecuting authorities. United States ex rel. Boucher v. Reincke, supra; Gawantka v. United States, 327 F.2d 129 (3rd Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1650, 12 L. Ed.2d 738 (1964). Appellant apparently attempts to circumvent the waiver attending the plea of guilty by claiming that'the plea was involuntary in that it was the product of, or induced by, certain coerced admissions which had been obtained from him by the police. That this may be a ground for habeas corpus relief appears to be well settled. (See Commonwealth of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); , Johnson v. Wilson, 371 F.2d 911 (9th Cir. 1967); Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964); Bell v. State of Alabama, 367 F.2d 243 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967). See also United States ex rel. Vaughn v. LaValle, 318 F.2d 499 (2nd Cir. 1963), language in which was disavowed in United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2nd Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966), to the extent it was not in accord with the principle that a voluntary plea of guilty entered on advice of counsel is a waiver of all non-jurisdictional defects in prior proceedings.) However, this argument is advanced here for the first time. Because this argument was not made below, it would only be a proper consideration here to prevent a manifest miscarriage of justice. From the present record, we cannot say that the said confessions were the “involuntary end product of coercive influences,” Davis v. State of North Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 1770, 16 L.Ed.2d 895 (1966), nor that appellant’s conviction constituted a miscarriage of justice. Assuming that appellant had alleged and proved that his confessions" }, { "docid": "18161622", "title": "", "text": "are correct, a writ of habeas corpus should be granted. See Smith v. Florida, 410 F.2d 1349 (5th Cir. 1969). Second, the state contends that even on petitioner’s facts, the prosecutor did not know Nicholson was lying so the state did not deprive petitioner of a constitutionally fair trial. The petitioner does allege, however, that Nicholson was a state law enforcement officer. As such, he was a member of the prosecution team. If the state through its law enforcement agents suborns perjury for use at the trial, a constitutional due process claim would not be defeated merely because the prosecuting attorney was not personally aware of this prosecutorial activity. Smith, supra, at 1351; Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964); Curran v. Delaware, 259 F.2d 707, 713 (3d Cir. 1958), citing original record in Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). Shaver v. Ellis, 255 F.2d 509 (5th Cir. 1958), the case upon which the district court relies, is inapposite. The petitioner in Shaver did not allege any constitutional defect in his original trial. He did not accuse any state official of manufacturing evidence against him. Instead, Shaver claimed that, since trial, another person had confessed to his alleged crime and the state procedures for considering that newly discovered evidence were constitutionally defective. The court held the procedures adequate, and said it did not have the power to reconsider the merits of a constitutionally legal conviction. 255 F.2d at 511. In contrast, Schneider directly challenges the legality of his original conviction as being fundamentally unfair. Last, the state asserts that any error in Schneider’s trial was harmless because after he was found guilty of armed robbery, the court sentenced him to only 10 years, which was within the sentencing limit allowable under the then applicable theft statute. In view of the drastic disparity between the potential sentences for the two crimes, and with no indication that the Texas court would give Schneider the maximum sentence available, or what other sentence it might give if the crime did not involve a firearm," }, { "docid": "20807355", "title": "", "text": "They cannot be considered stale through passage of time. Though the subsequent warnings may have been inadequate under the strict requirements of Miranda, they were sufficient to indicate to petitioner that he should be cautious in what he said. That petitioner repeated his statements to the police before his friends and acquaintances is further evidence that his confessions were voluntary. The court concludes that the record of petitioner’s trial adequately supports a finding that petitioner’s subsequent incriminating statements were voluntary, did not result from prior admissions illegally obtained, and that their introduction into evidence at petitioner’s trial was not improper. At the trial, petitioner took the stand and denied making any confessions, and testified as to alleged police threats. It should be noted that habeas corpus will not lie to question the sufficiency of evidence supporting a conviction unless there is such an absence of evidence that the conviction violates the Due Process clause of the Fourteenth Amendment. Mathis v. People of the State of Colorado, 425 F.2d 1165 (9th Cir. 1970); Martinez v. Patterson, 371 F.2d 815 (9th Cir. 1966); Hall v. Crouse, 339 F.2d 316 (10th Cir. 1964), cert. denied, 381 U.S. 941, 85 S.Ct. 1777, 14 L.Ed.2d 704 (1965); Faust v. State of North Carolina, 307 F.2d 869 (4th Cir. 1962), cert. denied, 371 U.S. 964, 83 S.Ct. 547, 9 L.Ed.2d 511 (1963). Nor will matters of credibility be tested on habeas corpus. Trujillo v. Tinsley, 333 F.2d 185 (10th Cir. 1964); Judy v. Pepersack, 284 F.2d 443 (4th Cir. 1960), cert. denied, 366 U.S. 939, 81 S.Ct. 1667, 6 L.Ed.2d 850 (1961), United States ex rel. Rooney v. Ragen, 173 F.2d 668 (7th Cir.), cert. denied, 337 U.S. 961, 69 S.Ct. 1524, 93 L.Ed. 1759 (1949). Whether petitioner’s testimony at the trial in which he denied making the confessions effectively waived the protection of Miranda (cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)), we need not decide in view of our holding, supra. Accordingly, it is hereby ordered that petitioner’s motion for appointment of counsel will be and is" }, { "docid": "23158538", "title": "", "text": "J. JOSEPH SMITH, Circuit Judge (with whom WATEEMAN, IEVING E. KAUFMAN, HAYS, ANDEESON and FEINBEEG, Circuit Judges, concur): I. United States ex rel. Ross v. McMann is an appeal from a dismissal without hearing of an application by a state prisoner for writ of habeas corpus in the District Court for the Eastern District of New York, Walter Bruchhausen, Judge. Eelator, confined in a New York State prison for a term of 45 years to life on conviction upon plea of guilty to murder in the second degree, petitioned the Supreme Court of the State of New York for Kings County for a writ of error coram nobis on the ground that his guilty plea was induced by coerced confessions. The writ was deniéd without a hearing, the decision affirmed without opinion by the Appellate Division, People v. Ross, 26 A.D.2d 773, 272 N.Y.S.2d 969 (2d Dept. 1966) and leave to appeal denied by the New York Court of Appeals. The District Court entertained the application for writ of habeas corpus, and dismissed the petition without a hearing on the ground that “a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him,” relying on United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2 Cir. 1965), cert. denied 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). In his complaint and supplemental affidavit Ross alleges that he pleaded guilty because his attorney had'refused to attempt to suppress a confession which had been illegally obtained from him and had warned him that if he risked a trial, the confession and other evidence against him would surely lead to his conviction for first degree murder and sentence to the electric chair. We hold that these allegations raise a sufficient question as to the voluntariness of the plea of guilty to require a hearing before the issue is determined. On the record before us, it appears that Ross has sufficiently raised his present claims in the state courts to satisfy the requirement of exhaustion of state" }, { "docid": "2736317", "title": "", "text": "PER CURIAM. The petitioner, Carl Becker, is presently confined in the . Nebraska Penal and Correctional Complex serving a five-year sentence for the possession of a forged instrument. He contends that he was denied his right to a speedy trial. After exhausting state remedies, he sought habeas corpus relief in the United States District Court for the District of Nebraska pursuant to 28 U.S.C.A. § 2241. Judge Van Pelt granted an evidentiary hearing and, on April 6, 1970, entered a Memorandum and Order denying the petitioner relief. Becker v. State of Nebraska, 310 F.Supp. 1275 (D.Neb. 1970). Petitioner appeals in forma pauperis from Judge Van Pelt’s decision and seeks his release. We affirm. Judge Van Pelt’s opinion detailed the factual basis underlying the petitioner’s contention and denied relief on the merits. We do not reach the petitioner’s substantive Sixth Amendment contention. The record clearly indicates that the petitioner (1) was originally charged with an additional count under Nebraska’s Habitual Criminal Statute, § 29-2221, R.R.S. 1943; (2) pled guilty to the forged instrument charge as a result of open plea bargaining which resulted in dismissal of the habitual criminal count; (3) conferred with his attorney as to his guilty plea and as to the raising of constitutional rights; and (4) does not contend that his guilty plea was involuntary. Under these circumstances, we believe that the petitioner’s guilty plea forecloses his allegation that he was denied a speedy trial. A voluntary plea of guilty constitutes a waiver of all non-jurisdictional defects. Fowler v. United States, 391 F.2d 276 (5th Cir. 1968); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2nd Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). The issue of the right to a speedy trial is non-jurisdictional in nature. Fowler v. United States, supra; United States v. Doyle, 348 F.2d 715 (2nd Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); Pate v. United States, 297 F.2d 166 (8th Cir.), cert. denied, 370 U. S. 928, 82 S.Ct." }, { "docid": "6911734", "title": "", "text": "itself invoke habeas corpus relief, but only where the violation of the state’s evidentiary rules results in a denial of fundamental fairness should habeas be granted. Woods v. Estelle, 547 F.2d 269 (5th Cir. 1977). As a guideline to applying the criterion of fundamental fairness, the erroneous admission of prejudicial evidence can justify habeas corpus relief only if it is “material in the sense of a crucial, critical, highly significant factor.” Hills v. Henderson, 529 F.2d 397 (5th Cir. 1976), quoting Corpus v. Beto, 469 F.2d 953 (5th Cir. 1972), cert, denied 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed.2d 162. Whether the trial court violated Louisiana law or acted imprudently under federal standards of evidence in admitting the gun solely on the testimony of Melinda Moore, the admission of the gun into evidence did not constitute a violation of due process and, thus, does not justify federal habeas corpus relief. III. Newly Discovered Evidence Petitioners further allege that the district court’s denial of their petition, without holding an evidentiary hearing, was improper in light of their allegations of newly discovered evidence — in particular, state witness Madison’s affidavit recanting his trial testimony. In their appellate brief, petitioners also include an affidavit from a Johnny Rogers, a fellow inmate of the Andersons’, in which Rogers confesses to the crime and exculpates petitioners. Yet, in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the definitive opinion on the standards for determining when an evidentiary hearing should be held to examine allegations contained in a habeas corpus petition, the Supreme Court stated that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on habeas corpus.” 372 U.S. at 317, 83 S.Ct. at 759. Similarly, in Shaver v. Ellis, 255 F.2d 509 (5th Cir. 1958), this court held: Questions of guilt or innocence are not matters to be considered upon petition for habeas corpus. . . . Newly discovered evidence in the form of a confession by another does not render the conviction void and subject" }, { "docid": "12846328", "title": "", "text": "bias, or a possible temptation so severe that we might presume an actual, substantial incentive to be biased. Therefore, Del Vecchio cannot prevail on his claim that he was denied due process because Judge Garippo presided at his trial. III. The next constitutional issue Del Vecchio raises concerns the confessions he gave in 1965. He claims that the confessions were coerced, and he demands at least the opportunity to challenge the voluntariness of the confessions in an evidentiary hearing. The district court granted the writ of habeas corpus on this issue, remanding the cause to state court to conduct such a hearing. The district court determined that Del Vecchio was entitled to a hearing under the Supreme Court’s decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Illinois filed its cross-appeal to challenge that ruling. The Illinois Supreme Court addressed this issue in Del Vecchio’s direct appeal. It determined that, under Illinois law, Del Veechio’s guilty plea in 1965 waived his challenge to the voluntariness of the confessions. Del Vecchio, 86 Ill.Dec. at 470, 475 N.E.2d at 849. A federal court is required to avoid collateral review of an issue in a habeas corpus case if the last state court which considered the issue resolved it on independent and adequate state law grounds. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Here, there is no question that the Illinois Supreme Court resolved the confession issue on independent state law grounds. The court determined that, as a matter of Illinois law, the guilty plea waived any subsequent challenge to the voluntariness of the confessions; this proposition finds a measure of support in Illinois law. See, e.g., People v. Brown, 41 Ill.2d 503, 244 N.E.2d 159, 160 (1969) (“A constitutional right, like any other right of an accused, may be waived, and a voluntary plea of guilty waives all errors or irregularities that are not jurisdictional.”). See also People v. Phelps, 51 Ill.2d 35, 280 N.E.2d 203, 204" }, { "docid": "3152293", "title": "", "text": ". be served concurrent with his Iowa sentence. We deem the appeal frivolous and affirm the order of the district court. The defendant did not raise the alleged denial of his right to a speedy trial in his motion for post-conviction relief and that question would ordinarily not be entertained in the first instance by this court on appeal. However, to avoid the processing of another frivolous petition, we choose to pass on the claim here. The law is clear that the defendant’s guilty plea waived all non-jurisdictional defects, including the alleged denial of a speedy trial. Becker v. State, 435 F.2d 157 (8th Cir. 1970), cert. denied, 402 U.S. 981, 91 S.Ct. 1684, 29 L.Ed.2d 145 (1971); Pate v. United States, 297 F.2d 166 (8th Cir.), cert. denied, 370 U.S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507 (1962). Even if this were not so, defendant’s claim is based solely on the fact that there was a A\\/2 month delay from the time of indictment to the time of his removal from state custody to federal custody for trial on the federal charge. No actual prejudice is shown to have resulted from this delay. More than the passage of time must be shown under these circumstances. The district court properly denied the defendant’s request for an evidentiary hearing on defendant’s conclusory allegation that he was denied effective assistance of counsel. Before such a hearing is required, it is necessary to allege facts which, if true, would entitle the petitioner to relief. See Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Here, the defendant stated mere conclusions totally unsupported by the records and files of the case and a hearing was not required. Poole v. United States, 438 F.2d 325 (8th Cir. 1971); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967). Defendant’s pro se motion was primarily motivated by his dissatisfaction with the district court’s judgment that the sentence imposed commence after defendant’s state incarceration. It was clearly within the discretion of the district court to impose such a sentence. Truesdell v. United States," }, { "docid": "23158539", "title": "", "text": "without a hearing on the ground that “a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him,” relying on United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2 Cir. 1965), cert. denied 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). In his complaint and supplemental affidavit Ross alleges that he pleaded guilty because his attorney had'refused to attempt to suppress a confession which had been illegally obtained from him and had warned him that if he risked a trial, the confession and other evidence against him would surely lead to his conviction for first degree murder and sentence to the electric chair. We hold that these allegations raise a sufficient question as to the voluntariness of the plea of guilty to require a hearing before the issue is determined. On the record before us, it appears that Ross has sufficiently raised his present claims in the state courts to satisfy the requirement of exhaustion of state remedies. On oral argument, how ever, it was represented that a second petition by Eoss for relief by writ of error coram nobis has been brought to and is pending in the state courts. If this is determined by the District Court to be the fact, that court may defer hearing in this matter pending final determination of the action in the state courts. And, if hearing is had on the issue in the state courts, the District Court may find further hearing before it unnecessary to its determination of the merits. We reverse and remand to the District Court for further proceedings not inconsistent with this opinion. This case raises the narrow question whether a District Court should apply the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in determining whether to hold an evidentiary hearing upon a habeas corpus petition where the petitioner is confined after a plea of guilty and is contending that the plea was not voluntary, because it was induced by the existence," }, { "docid": "3152292", "title": "", "text": "LAY, Circuit Judge. Defendant John Henry Lee pleaded guilty to one count of knowingly and intentionally distributing heroin in violation of 21 U.S.C. §-841(a)(1). At the time of his plea, he was serving a ten-year sentence in the state of Iowa for an unrelated offense. The federal district court sentenced him to five years in prison to be followed by a special parole term of three years. The court directed that the federal term run consecutive to the state sentence. Thereafter, the defendant moved pro se to vacate his federal sentence. The district court considered his petition under 28 U.S.C. § 2255 and alternatively under Rule 35 Fed.R. Crim.P. and denied relief. The defendant thereafter filed this appeal. The defendant alleges through newly appointed counsel on appeal (1) that he was denied a speedy trial, (2) that he was improperly denied an evidentiary hearing in the district court on his allegation of ineffective assistance of counsel, and (3) that the district court abused its discretion by refusing to sentence the defendant to a term to . be served concurrent with his Iowa sentence. We deem the appeal frivolous and affirm the order of the district court. The defendant did not raise the alleged denial of his right to a speedy trial in his motion for post-conviction relief and that question would ordinarily not be entertained in the first instance by this court on appeal. However, to avoid the processing of another frivolous petition, we choose to pass on the claim here. The law is clear that the defendant’s guilty plea waived all non-jurisdictional defects, including the alleged denial of a speedy trial. Becker v. State, 435 F.2d 157 (8th Cir. 1970), cert. denied, 402 U.S. 981, 91 S.Ct. 1684, 29 L.Ed.2d 145 (1971); Pate v. United States, 297 F.2d 166 (8th Cir.), cert. denied, 370 U.S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507 (1962). Even if this were not so, defendant’s claim is based solely on the fact that there was a A\\/2 month delay from the time of indictment to the time of his removal from state custody to" }, { "docid": "15239135", "title": "", "text": "in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), expressly stated that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not ground for relief on federal habeas corpus.” Id. at 317, 83 S.Ct. at 759, 9 L.Ed.2d at 788. Although some circuits appear not to have followed Townsend’s mandate, see Grace v. Butterworth, 586 F.2d 878, 880 (1st Cir.1978); United States ex rel Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975), the Fifth Circuit Court of Appeals clearly has adhered to its dictates. The court in Shaver v. Ellis, 255 F.2d 509 (5th Cir.1958) held that “[n]ewly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality.” Id. at 511. Thus, the role of habeas corpus is limited to consideration of challenges to the legality of a conviction; it may not be used to retry the defendant’s innocence or guilt. Id. See also Anderson v. Maggio, 555 F.2d 447 (5th Cir.1977) (habeas corpus relief based on a third party confession unwarranted even though no evidentiary hearing was held at either the state or federal level). Consequently, under Townsend and Shaver, the bare assertion of a third party confession is insufficient to warrant habeas relief. II. Pursuit of Inconsistent Theories at Trial Drake contends that the prosecution pursued wholly inconsistent theories at each trial in order to procure death penalties for both defendants. He raises the novel claim that such a tack constitutes an “affront to the rudimentary demands of justice” in violation of his due process rights. Appellant’s Brief at 41. A review of the record reveals that the state’s theories in the two trials were not totally inconsistent. At each trial, the state clearly demonstrated its belief that both Drake and Campbell were involved in the murder-robbery. At Campbell’s trial, the prosecutor alleged that Campbell actually perpetrated" }, { "docid": "6911735", "title": "", "text": "of their allegations of newly discovered evidence — in particular, state witness Madison’s affidavit recanting his trial testimony. In their appellate brief, petitioners also include an affidavit from a Johnny Rogers, a fellow inmate of the Andersons’, in which Rogers confesses to the crime and exculpates petitioners. Yet, in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the definitive opinion on the standards for determining when an evidentiary hearing should be held to examine allegations contained in a habeas corpus petition, the Supreme Court stated that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on habeas corpus.” 372 U.S. at 317, 83 S.Ct. at 759. Similarly, in Shaver v. Ellis, 255 F.2d 509 (5th Cir. 1958), this court held: Questions of guilt or innocence are not matters to be considered upon petition for habeas corpus. . . . Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not to its legality . . . [T]he confession ‘might be urged as the proper subject for executive clemency, but it affords no basis for judicial action.’ 255 F.2d at 511 (citation omitted). Thus, neither Madison’s recantation nor Rogers’ confession is sufficient to require habeas relief. IV. Insufficiency of the Evidence Petitioners’ most substantial basis for requesting habeas corpus relief is that the evidence presented at their state trial was too weak to support a conviction. Our review of the record in the state trial confirms petitioners’ argument that the State did adduce little evidence against them. Thus, the only evidence upon which a conviction could have been based was the testimony of two witnesses: Melinda Moore and Donald Madison. Melinda Moore, who was only eleven years old at the time of the robbery, identified Jordan Anderson as one of the robbers. She made this identification, notwithstanding her admission that she was in the store for only a moment during" }, { "docid": "320862", "title": "", "text": "them. If the district court should conclude after an evidentiary hearing that the statements were not available to trial counsel, Smith will be confronted with a variation of Catch-22 created in part by 28 U.S.C. § 2254(d). The state could presumably argue that state court’s finding that the statements were available is a historical fact entitled to a presumption of correctness, but that counsel rendered effective assistance under the circumstances because the statements were, in fact, unavailable. Such a situation no doubt results from the difficulties inherent in the administration of justice by means of the writ of habeas corpus. Nevertheless, if this situation arises, the district court should conclude that, under 28 U.S.C. § 2254(d)(3), “the material facts were not adequately developed at the state court hearing,” see Thomas v. Zant, 697 F.2d 977, 980 (11th Cir.1983), and issue the writ under Brady v. Maryland. We have no doubt that statements were “material either to guilt or to punishment” under Brady. 373 U.S. at 87, 83 S.Ct. at 1196. C. Recantations of Wesley Johnson. Finally, Smith contends that the district court should also receive evidence concerning the post-trial recantations of Wesley Johnson. A panel of this court recently addressed a similar claim in Drake v. Francis, 727 F.2d 990 (11th Cir.1984). This court vacated the opinion in Drake for en banc consideration, and we recently received briefs and heard oral argument on several issues raised in Drake. We see no need to hold this case pending the decision in Drake, however. We perceive that the panel in Drake accurately stated the law in this circuit concerning claims of newly discovered evidence in habeas corpus proceedings. As long ago as 1958, the former Fifth Circuit Court of Appeals summarized the law in this area: “Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality.” Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir.1958), cert, denied, 355 U.S. 864, 78 S.Ct. 98, 2 L.Ed.2d" }, { "docid": "320863", "title": "", "text": "Finally, Smith contends that the district court should also receive evidence concerning the post-trial recantations of Wesley Johnson. A panel of this court recently addressed a similar claim in Drake v. Francis, 727 F.2d 990 (11th Cir.1984). This court vacated the opinion in Drake for en banc consideration, and we recently received briefs and heard oral argument on several issues raised in Drake. We see no need to hold this case pending the decision in Drake, however. We perceive that the panel in Drake accurately stated the law in this circuit concerning claims of newly discovered evidence in habeas corpus proceedings. As long ago as 1958, the former Fifth Circuit Court of Appeals summarized the law in this area: “Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality.” Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir.1958), cert, denied, 355 U.S. 864, 78 S.Ct. 98, 2 L.Ed.2d 70 (1957). To be distinguished are situations in which the new evidence bears directly on the constitutionality of the conviction. For example, in Schneider v. Estelle, 552 F.2d 593 (5th Cir.1977), the petitioner claimed new evidence would show that the state had suborned perjury in obtaining a conviction against the petitioner. The court remanded for an evidentiary hearing, holding that the writ should issue if the petitioner proved the allegations of his complaint. Id. at 596; see also Smith v. Florida, 410 F.2d 1349 (5th Cir.1969). In this case, we seriously doubt that Smith has alleged subornation of perjury by the state. To prove such a claim, Smith would have to show that the prosecutor or the police officers knew that the testimony of one of the Johnsons was false. Schneider, 552 F.2d at 595; Smith; 410 F.2d at 1350-51. Smith has made no proffer of any evidence supporting such a contention. Absent such evidence, this claim does not warrant habeas corpus relief. II. COERCION OF TESTIMONY Smith next contends that Johnson confessed and agreed" }, { "docid": "15239134", "title": "", "text": "trial. On the strength of this incriminating testimony, the jury convicted Drake and recommended that he be sentenced to death. A few years after Drake’s conviction, Campbell recanted his prior testimony and signed the aforementioned affidavit professing Drake’s innocence in the crimes and admitting his own guilt. Drake now urges that this exonerating affidavit warrants ha-beas corpus relief. In evaluating this claim, the threshold question before us is whether the allegation of newly discovered evidence rises to a constitutional dimension cognizable in a federal habeas corpus action. We conclude that it does not. The law is well settled that direct appeal is the primary vehicle for the review of state court convictions and “[t]he role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited.” Barefoot v. Estelle, — U.S. —, —, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090, 1100 (1983). In order for a claim of newly discovered evidence to justify habeas review, the evidence must bear on the constitutionality of the defendant’, conviction. The Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), expressly stated that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not ground for relief on federal habeas corpus.” Id. at 317, 83 S.Ct. at 759, 9 L.Ed.2d at 788. Although some circuits appear not to have followed Townsend’s mandate, see Grace v. Butterworth, 586 F.2d 878, 880 (1st Cir.1978); United States ex rel Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975), the Fifth Circuit Court of Appeals clearly has adhered to its dictates. The court in Shaver v. Ellis, 255 F.2d 509 (5th Cir.1958) held that “[n]ewly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality.” Id. at 511. Thus, the role of habeas corpus is limited to consideration of challenges to" } ]

[ { "docid": "13747875", "title": "", "text": "useful” evidence is not available, there is no due process violation unless the government acted in bad faith. Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Negligence, even gross negligence, on the part of the government does not constitute bad faith. Wright, 260 F.3d at 571. Once bad faith is shown, the defendant must also demonstrate that he cannot obtain comparable evidence by other reasonable available means. Id. (citing United States v. Jobson, 102 F.3d 214, 218 (6th Cir.1996.)). On appeal, Branch argued only that the videotape constituted merely “potentially useful” exculpatory evidence, and did not argue it was material exculpatory evidence. Thus, the due process issue is whether the tape’s destruction was due to Colston acting in bad faith. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Colston testified that he failed to preserve the videotape because it lacked an audio track and was therefore “flawed,” and that he “recirculated it intentionally.” Colston acknowledged that “it was probably a bad decision on my part,” but that “[r]ight or wrong,” he thought the tape had no evidentiary value so it could be recirculated. The district court found no credible evidence that Colston acted in bad faith. We review this factual decision for clear error. See United States v. Cody, 498 F.3d 582, 589 (6th Cir.2007) (district court’s acceptance of officer’s reason for destroying evidence was not clearly erroneous (and citations therein)). We can find none. Although recirculation of the tape may have been negligent, or even grossly negligent, as the district court found, it was not in bad faith. Therefore, the tape’s recirculation did not violate Branch’s right to due process. Cf. United States v. Femia, 9 F.3d 990, 993-94 (1 st Cir.1993) (holding that the government’s destruction of tape recordings of conversations between defendant and alleged co-conspirators did not violate due process, despite the government’s gross negligence in failing to preserve them). In short, the district court did not err in denying Branch’s motion to dismiss based on a due process violation. C. Safety-valve Branch argues that the district court lacked authority to modify the previously imposed sentence" } ]

[ { "docid": "2526440", "title": "", "text": "armed while cocaine was being packaged and sold. A videotape portrayed Williams brandishing a gun while a co-conspirator counted money on a kitchen counter bearing cocaine. In light of this evidence, we think it extremely unlikely that the improperly admitted evidence swayed the jury. See Mazza, 792 F.2d at 1221 (fair assurance standard satisfied if it is highly probable that the challenged action did not affect the judgment). Because we find the admission of this evidence to be harmless, we do not reach the question of whether the court committed an abuse of discretion in admitting the evidence under Rule 403. Karas, 950 F.2d at 38; United States v. Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir.1988). Nor is it necessary to review the court’s failure to issue a limiting instruction, especially where trial counsel did not request one. See United States v. De La Cruz, 902 F.2d 121, 124 (1st Cir.1990) (stating general rule that failure of trial court sua sponte to issue limiting instruction is not reversible error). Our finding of harmless error does not lessen our continuing conviction that the government and the courts must exercise great caution in handling evidence of other bad acts. Williams’s statement was unrelated to the offenses charged and was highly inflammatory. To infect and jeopardize a prosecution with such evidence is unwise and unjustifiable. It comes with ill grace to introduce marginally justifiable evidence and then to defend its use by arguing that there was so much evidence of guilt that any error would be harmless. Courts, in turn, should remain vigilant to whether other-acts evidence serves a genuinely probative purpose that substantially outweighs the risk of unfair prejudice. Hernandez-Bermudez, 857 F.2d at 54. At a minimum, courts routinely may wish to issue an instruction limiting the use of Rule 404(b) evidence, Oppon, 863 F.2d at 147, or to ascertain whether defense counsel desires one. III. Defendant also contends that the district court erred in limiting his cross examination of Gray. Defendant sought to inquire into Gray’s knowledge regarding the preparation and use of cocaine and her brother’s alleged cocaine dealing to" }, { "docid": "11478262", "title": "", "text": "out further evidence of cocaine smuggling activity. There may be instances where the actions of law enforcement agents are so outrageous as to bar prosecution, but we do not find that in this case. The defendants also argue that the trial court should have acquitted them because, as a matter of law, they had been entrapped. While entrapment may defeat a conspiracy charge it will not do so if the criminal intent originates with the conspirators, even though the government furnishes the opportunity to carry out the crime, United States v. Puma, 5 Cir. 1977, 548 F.2d 508, 510. The evidence shows that these defendants were knowledgeable about the narcotics trade; ' they discussed various methods to smuggle contraband into the country; and they appeared anxious to receive a down payment for a future shipment. They were willing, not induced, participants in what went on here. III. PROSECUTORIAL MISCONDUCT The defendants urge that we should reverse their convictions because of prosecu-torial misconduct both before the grand jury and at trial. The defendants cite several instances of statements made by the prosecuting attorney which they allege prejudiced their opportunity for a fair trial. A review of the trial instances reveals that the statements complained of were not prejudicial or were adequately corrected by instructions by the trial court so that they could not have had a prejudicial effect on the jury. Also complained of was the failure of the government to present evidence to the grand jury which the defendants thought would have been exculpatory. This contention is wholly without merit. IV. PRIMA FACIE CASE; SUFFICIENCY OF THE EVIDENCE Appellants argue that the trial court reversibly failed to comply ,with Rule 104, Fed.R.Evid.: (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. . Under the teachings of United States v. Ochoa," }, { "docid": "22453965", "title": "", "text": "reasonable jury to find beyond a reasonable doubt the existence of an agreement to distribute cocaine, as opposed to Medina’s mere purchase or sale of cocaine. A jury could have credited Mundy’s and Riddle’s expert opinion testimony that markings found on plastic wrappers were consistent with codes referring to different drug sellers, and that the wrappings were consistent with the common practice of “piggybacking” different loads. A jury could have inferred a conspiracy from the involvement of different seller codes, the sheer amount of cocaine allegedly involved, and the materials available for weighing and repackaging cocaine for resale. A jury could have inferred agreement and cooperation between Medina and the driver of the red truck based upon their frequent interactions in a short time frame, Medina’s assistance in carrying suitcases from the driver’s truck, and Medina’s riding in the truck. A jury also could have credited the agents’ expert testimony regarding the drug ledgers, and inferred a conspiracy from the keeping of records regarding the progress of different shipments and payments. Viewed in the light most favorable to the Government, a rational jury could conclude that the above evidence demonstrates beyond a reasonable doubt Medina’s involvement in a conspiracy to distribute or conspiracy to possess with intent to distribute five or more kilograms of cocaine. We therefore AFFIRM the district court’s denial of Medina’s motion for a judgment of acquittal. VI. Medina’s remaining arguments Having concluded that Medina is entitled to a remand for retrial, due to the likely prejudice of certain inadmissible evidence, we need not address Medina’s argument that he is entitled to a remand due to prosecutorial misconduct. This argument centers around the prosecutor’s repeated reliance upon the inadmissible evidence discussed in Part IV. Having clarified that the evidence at issue was in fact improperly admitted and sufficiently prejudicial to warrant a new trial, we need not further consider whether the prosecutor’s actions constituted prosecutorial misconduct. Finally, having vacated Medina’s conviction and sentence, we need not reach Medina’s arguments pertaining to errors in sentencing. VII. Conclusion For the foregoing reasons, we VACATE Medina’s conviction and sentence, and" }, { "docid": "3891709", "title": "", "text": "to give his understanding of its relevance to his plea. His interpretation was not incorrect and caused no prejudice to defendants. The district court did not abuse its discretion in allowing Hunt to testify on-this matter. 2) Oldham’s testimony Defendants argue that Oldham, a former Quadel salesman, should have been allowed to testify regarding prior bad acts of Watson. They wanted to show that Watson had previously misused escrow funds and misappropriated partnership funds. Federal Rule of Evidence 608(b) governs admission of such evidence and provides as follows: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Defense counsel stated that they wanted to use Oldham’s testimony to rebut Watson’s testimony regarding the Park Place investment and to attack Watson’s credibility. The district court correctly pointed out that Rule 608(b) prohibits such extrinsic evidence regarding credibility and that defense counsel are “stuck with” the response given on cross-examination. Exclusion of this testimony by Oldham was a correct application of Fed.R.Evid. 608(b). 3. Defendants’ Right to a Fair Trial A. Alleged Prosecutorial Misconduct Defendants claim that the government was guilty of numerous acts of prosecutori al misconduct which prevented defendants from receiving a fair trial. Specifically, they contend that the government: 1) injected civil standards of professional conduct into the trial; 2) improperly appealed to class prejudice through references to defendants’ lifestyles; 3) improperly referred to unrelated criminal activity such as the Butcher bank failures; 4) withheld Brady material; and 5) committed other acts of misconduct. We have held that “[t]o warrant a new trial, ... prosecutorial misconduct ‘must be so pronounced and persistent that it permeates the entire atmosphere of" }, { "docid": "22241063", "title": "", "text": "for construction work performed at his home. . Scothorn pled guilty to one count of mail fraud and received a 14 month sentence. Scothorn was also convicted in state court of embezzlement. He testified on behalf of the government at trial. . Carter was given immunity for her testimony and cooperation with the government investigation. . It is unclear from the record at what point Contesti decided to accept a plea, but he did not ultimately proceed to trial. Only Defendants Gardiner and Lupo were ever tried. . At oral arguments, Defendant Lupo's attorney requested permission to file a motion to join Defendant Gardiner's appeal of his sufficiency of evidence and prosecutorial misconduct claims. We decline to grant this motion due to its untimeliness, but note that even if we were to grant Lupo's motion, his claims would still fail on the merits for the same reasons that they are denied as to Defendant Gardiner. Specifically, we would find that the evidence adduced at trial is sufficient to establish conspiratorial agreement and effect on interstate commerce; and, as discussed infra under Defendant Gardiner’s claims, there was no prosecutorial misconduct that impacted Lupo’s substantial rights. . Defendant Lupo argues that the court improperly enhanced his sentence on the finding that the amount of loss attributable to him was $400,000. We have already addressed this argument with respect to Defendant Gardiner. The case law is clear that the district court is allowed to engage in fact finding to determine the amount of loss attributable to a defendant for sentencing purposes. Here the testimony showed that Lupo received $300,000 in bribes from Hudson and an additional $100,000 in work on his home. Therefore, the 14 level enhancement for the amount of loss was appropriate. . Admission of polygraph evidence is disfavored in this Circuit and such evidence will only be admitted if it is relevant, and its probative value outweighs the risk of unfair prejudice. See United States v. Barger, 931 F.2d 359, 370 (6th Cir.1991) (citations omitted)." }, { "docid": "20537078", "title": "", "text": "charged in the indictment. Before using this evidence, you must decide whether it is more likely than not that the defendant took the actions that are not charged in the indictment. If you decide that he did, then you may consider that evidence to help you decide whether the defendant was the same person as the one called “Güero.” You may not consider this evidence for any other purpose. To be more specific, you may not infer that, because the defendant committed an act in the past, he must have committed the crimes charged in the indictment. The reason is that the defendant is on trial here for specific charges of conspiracy to possess cocaine with intent to distribute and using a telephone to facilitate a drug crime. He is- not on trial for those other acts. It is the government’s burden to prove beyond a reasonable doubt the elements of the specific crimes charged here. The government cannot meet its burden by inviting you to infer that the defendant is a person whose past acts suggest he has a bad character or a tendency to commit crimes. Nevertheless, after having done so much to improve our circuit’s law under Rule 404(b), the en banc majority still affirms Gomez’s conviction despite the serious Rule 404(b) error. The majority does so by finding that the Rule 404(b) error was harmless, in Part II-B-2 of its opinion. From this conclusion and the resulting af-firmance, I respectfully dissent. We should reverse this conviction and remand for a new trial without the highly prejudicial evidence admitted erroneously under Rule 404(b). To be sure, the government’s case against the person called “Güero” was airtight. But was Gomez “Güero”? The government offered substantial evidence that he was. But that evidence is not as clear as the majority contends, particularly when we keep in view the requirement of proof beyond a reasonable doubt. The applicable standard for harmless error is provided by Federal Rule of Criminal Procedure 52(a), which requires the court to disregard an error that “does not affect substantial rights.” The burden is on the" }, { "docid": "16261830", "title": "", "text": "Defendant's third basis for asserting he has a right to a new trial is also unpersuasive. As the district court pointed out, Clemons' statement to Officer Sharpe upon arrest, indicating that his cocaine came from a man named Skip, was not newly discovered; the defense was probably aware of the statement because defendant was represented by the same counsel or the same law firm as Clemons. The district court also stated that this evidence, even if newly discovered, was not material. Again, defendant has not established that the government knowingly put on false testimony; it had no reason to believe the statement made by Clemons while being arrested rather than the testimony of UI-mer under oath. Therefore, the test for materiality is whether there is a reasonable probability that the result of the trial would have been different had Clemons' statement been disclosed. Clemons did not testify for the government at defendant's trial, so the only relevance of the statement would be to cast doubt upon the possible inference that the particular kilo sold by Clemons to Officer Sharpe came from defendant. As discussed earlier, evidence of the connection between the cocaine and wrapper confiscated from Clemons and those seen at defendant's home was not particularly strong, and the inference that this cocaine and wrapper came from defendant was by no means essential to his conviction. Thus, the district court did not clearly abuse its discretion in holding that it is not reasonably probable that the result of the trial would have been different had Clemons' statement been presented to the jury. D. Motion To Vacate Sentence Defendant argues that the district court erred in denying his motion to vacate sentence under 28 U.S.C. § 2255, filed after imprisonment following the second trial. Hawkins contends that he was entitled to relief because of ineffective assistance of counsel, prosecutorial misconduct, and the use of an illegal search warrant. We will take these up in reverse order. We note preliminarily that an order denying a motion to vacate will not be reversed unless that order contains \"a fundamental defect which inherently results" }, { "docid": "8693451", "title": "", "text": "that Richards’s drug conversations with a man known as Pelón suggested Richards knew of drug trafficking originating from the Pelón ranch, thereby showing Richards knew the bags contained drugs. It did not. Instead, the government simply used the California calls to label Richards a cocaine trafficker and 'rested its case there. That is the propensity inference that Miller, Jones, and Simpson prohibit. See Miller, 673 F.3d at 699 (“[T]he government must affirmatively show why a particular prior eon-viction tends to show the more forward-looking fact of purpose, design, or volition to commit the new crime.” (quoting Jones, 389 F.3d at 757-58)). Neither Bowman nor Bell suggests otherwise. Both cases found the challenged statements devoid of “propensity aspects” or submitted for a non-propensity purpose, such as challenging the defendant’s credibility after he had testified. Bell, 624 F.3d at 811-12; Bowman, 353 F.3d at 551 (noting prosecutor never “asked the jury to draw the inference that because Bowman had admitted problems abiding by the law, he must be guilty”). Reduced to its core, the government’s closing argument revolved around the propensity inference with the California calls as its centerpiece. The government paid scant attention to the knowledge rationale that justified admitting the tapes and instead deployed the tapes as evidence of Richards’s propensity for drug trafficking. That argument was improper, and we conclude that the district court abused its discretion in concluding otherwise. 2. The Government’s Propensity Arguments at Closing Prejudiced Richards and Entitle Him to a New Trial Prejudice does not require an ironclad guarantee that, absent the prosecutorial misconduct, the outcome of trial would have differed. See Simpson, 479 F.3d at 505 (“[I]t is not enough to say that the outcome probably would have been the same without the prosecutor’s improper propensity inference and the evidence of [the defendant’s] past unrelated drug deals.”). “Doubts — a lack of ‘fair assurance’ — call for a new trial.” Miller, 673 F.3d at 701. Thus, Richards need not show that, on remand, a jury would not convict him a second time. When gauging prejudice, we “consider the remarks in light of the entire" }, { "docid": "19865404", "title": "", "text": "in the world.” The district court also expressed concern regarding the efficacy of its instruction regarding the nonevidentiary nature of the transcript. After reaching the conclusion to grant Berry’s motion, the district judge noted that the case law in this, circuit would allow him to provide a jury with a copy of a transcript during its deliberations, and the judge expressed his intent that he would “likely” send future transcripts back with the jury. The government appealed the district court’s decision granting a new trial, and we remanded the matter to the district court to make an explicit determination as to whether there was a reasonable possibility that Berry was prejudiced by the jury’s use of the transcript during deliberations. United States v. Berry, 64 F.3d 305, 308 (7th Cir.1995). On remand, the district court recognized the importance of the transcript to the jury’s guilty verdict on count two. The district court reasoned: Since the sole issue in Count II was whether defendant Berry was one of the speakers on the recording, the transcription’s identification of one speaker as the defendant clearly had an influence upon the jury’s verdict which was prejudicial to the defendant. As Judge Rovner wrote in her concurring opinion, “it is difficult to imagine evidence that would be more prejudicial to the defendant than a transcription of a conversation in which he allegedly sold crack cocaine to a government informant, where the transcription identified him as the speaker and the sole issue in the case is who was speaking during the transaction.” (quoting Berry, 64 F.3d at 309 (Rovner, J., concurring)). The government appeals, challenging the district court’s finding of prejudice. A criminal defendant has “a right to be tried on the basis of the evidence admitted at his trial, and this right may be violated if the jury gets access to extra-record evidence ... even if the access is not the result of any prosecutorial misconduct.” United States v. Sababu, 891 F.2d 1308, 1333 (7th Cir.1989) (quoting United States v. Bruscino, 687 F.2d 938, 940 (7th Cir.1982) (en banc), cert. denied, 459 U.S. 1228, 103" }, { "docid": "22576539", "title": "", "text": "defendant does not constitute a due process violation. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Mitchell v. Goldsmith, 878 F.2d 319, 321 (9th Cir.1989). Where the government fails to preserve evidence that is only potentially exculpatory, the right to due process is violated only if it possesses “an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Moreover, in Youngblood, the Supreme Court modified the Trombetta test by imposing the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38. Hernandez presents no evidence of bad faith. Indeed, he does not even challenge the district court’s finding that the government did not act in bad faith in destroying the gun. The district court’s finding of no bad faith, based on Ruiz’s testimony that she destroyed the gun pursuant to standard department procedures, is clearly supported by the record. Without proof of bad faith, Hernandez’s claim fails under Young-blood. Conclusion The district court did not commit reversible error by failing to recuse itself or by refusing to dismiss the indictment due to the government’s destruction of the gun. However, the district court abused its discretion in allowing introduction of highly prejudicial evidence. This error was not harmless. Accordingly, we reverse Henandez’s conviction and remand to the district court. REVERSED and REMANDED. . The district court did not have the benefit of Old Chiefs holding at the time of its ruling. . After deliberating for approximately 3-4 hours, the jury sent a note to the trial court that it could not reach a unanimous decision. The court gave the jury an Allen charge shortly after which the jury reached its unanimous decision. We do not reach the contention that the giving of this instruction was error. See footnote 7, infra." }, { "docid": "14996069", "title": "", "text": "for appellate review. Wilson v. Williams, 182 F.3d 562, 564 (7th Cir.1999) (en banc) (\"a definitive ruling in limine preserves an issue for appellate review — without the need for later objection.”). DIANE P. WOOD, Circuit Judge, dissenting. Marcus Harris stood trial on a single charge of unlawfully distributing cocaine— not conspiring to distribute cocaine, not possessing a controlled substance with intent to distribute it. This means that the government was obliged to prove, beyond a reasonable doubt, that he committed this particular crime. The majority spends a great deal of time and energy arguing forcefully that the evidence before the jury was sufficient to support a conviction on the distribution charge. If that was what this appeal was about, I would agree that the evidence taken in the light most favorable to the jury’s verdict would easily support an affirmance. But that is not Harris’s argument on appeal. Instead, his principal point is that the prosecutor made comments that violated his right to a fair trial, and these errors were so serious that he is entitled to a new trial. Even taking into consideration the demanding plain error standard of review Harris faces, I am persuaded that he is right. I would reverse Harris’s conviction and remand for a new trial, and I therefore respectfully dissent. The statements Harris challenges are set out in the majority opinion. As my colleagues essentially acknowledge, the government has conceded that at least some of them were improper. Ante at 700. Nevertheless, both because this court has an independent obligation to assess the propriety of any such confession of error, and because affirmance would be required if the statements were not improper, I consider the propriety question first, and then the question of the impact of any improprieties on the trial as a whole. This is in keeping with the usual test that is applied to plain error review of prosecuto-rial misconduct under cases like United States v. Renteria, 106 F.3d 765 (7th Cir.1997), to which the majority refers ante at 699: first we consider whether the challenged remarks were improper; if they" }, { "docid": "17106212", "title": "", "text": "error in admitting such evidence is subject to harmless error review, and reversal is not required unless there is a ‘reasonable possibility that the improperly admitted evidence contributed to the conviction.’ ” United States v. Williams, 620 F.3d 483, 492 (5th Cir.2010). Meza argues that the probative value of Sanchez’s prior statements was minimal, as Sanchez had acknowledged his recantation on the stand. Meza maintains that the potential for undue prejudice was great because it allowed the government to “improperly focus the jury on an inculpatory (but unsworn) prior version of Sanchez’s statement rather than the exculpatory trial testimony made under oath.” Meza further argues that the evidentiary error affected his substantial rights because the government intended to use Sanchez’s statements as more than impeachment evidence. The government contends that the probative value of Sanchez’s prior statement was high because Sanchez’s credibility was a critical issue at trial, whereas any prejudicial effect was minimal because the district court issued limiting instructions regarding the recording and the statement was cumulative of Sanchez’s admission on the stand. The government also argues that admission of the statement, even if erroneous, was harmless. We hold that the district court did not commit a clear abuse of discretion in admitting the statements. As the government notes, the prior statements were probative of Sanchez’s credibility, a central issue in the case. Indeed, even Meza relied upon Sanchez’s testimony to support his joint occupancy argument. Although the statements prejudiced Meza, this prejudice was not unfair and did not substantially outweigh the statements’ probative value. IV. The government did not engage in misconduct during closing argument. A. Standard of Review This court “analyze[s] assertions of prosecutorial misconduct in closing arguments in two parts. [First, the court] considers] whether the prosecutor made an improper remark; if so, [the court] then evaluated] whether the remark affected the substantial rights of the defendant. The first question is reviewed de novo; the second is reviewed for abuse of discretion.” United States v. Turner, 674 F.3d 420, 438-39 (5th Cir.2012) (internal quotation marks and footnotes omitted). “Ordinarily, a defendant’s substantial rights are affected" }, { "docid": "12846210", "title": "", "text": "questions posed by the prosecution constituted prosecutorial misconduct prejudicing the jury and meriting a retrial. We disagree. Where defense counsel objects at trial to acts of alleged prosecutorial misconduct, we review for harmless error on defendant’s appeal; absent such an objection, we review under the more deferential plain error standard. United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986). Hinton first argues that the prosecutor committed prosecutorial misconduct in detailing Hinton’s prior acts to prove his violent character. Having concluded that this evidence was properly admitted and, relative to its probative purpose, not disproportionately prejudicial, we find no misconduct, much less reversible error, in the Government’s presentation of the bad acts evidence. Hinton also alleges prosecutorial misconduct occurred when the Government: (i) cross-examined Hinton as to whether he thought his visits to Brenda Kenton, a fortune teller, excused his violent behavior; (ii) questioned the victim about her subjective belief as to when she first thought her husband would kill her; and (iii) cross-examined Hinton regarding whether he thought the victim was lying. Because defense counsel objected at trial to each of these acts, we review for harmless error. Endicott, 803 F.2d at 513. These contentions are unpersuasive because Hinton faded to demonstrate resulting prejudice. To obtain a reversal for prosecutorial misconduct, a defendant must demonstrate that he was prejudiced by the misconduct. United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir.1987). “Reversal is warranted only if it is more probable than not that the [prosecutorial] misconduct materially affected the verdict.” Id. The prosecution’s alleged misconduct must be viewed in the context of the entire trial. Id. at 1300. Here, no prejudice arose because the prosecutor’s questions and comments at issue did not elicit a prejudicial response and did not permit the jury to make any negative inferences beyond those which other evidence already abundantly invited. As to the cross- examination pertaining to Hinton’s visits to a fortune teller, the district court struck the prosecutor’s comment “[a]nd that gives you an excuse for your violent behavior.” In addition, because Hinton answered “no” before his counsel objected, the bell to" }, { "docid": "13647553", "title": "", "text": "not contribute to the verdict. See United States v. González Sánchez, 825 F.2d 572, 580 (1st Cir.1987). Although the government’s case against Rivera Ortiz was strong, we are unable to state, in good conscience, that it was so overwhelming that it was highly probable that the government would have prevailed even in the absence of the illegitimate boost that it received when the jury heard that cocaine had been found in Rivera Ortiz’ house at the time of his arrest. Consequently, we hold that the error was not harmless, vacate Rivera Ortiz’ convictions, and remand the case to the district court for retrial. Because of our disposition of this issue, we do not need to reach Rivera Ortiz’ alternate contention that he is entitled to a new trial because his motion to sever was improperly denied. B. José Heredia Nieves (No. 87-1859) Heredia was convicted on counts 1 and 11. He appeals his convictions on three grounds. First, he argues that his conviction on count 1 must be reversed because there is insufficient evidence in the record to support it. Second, he argues that both his convictions must be reversed because the trial court erroneously admitted into evidence proof of extrinsic acts that he had committed. Third, he argues that he should be resentenced because his sentence is excessive, inconsistent, and based on facts that should not have been considered. 1. There are two parts to the sufficiency of the evidence argument with respect to count 1. Heredia argues that the government failed to prove the conspiracy that it charged in the indictment, and alternatively, that even if it did prove the charged conspiracy, the government failed to prove that he had joined it. We address each part in turn. Heredia apparently argues that although the government charged one conspiracy, the proof that it offered at trial actually proved several different, disconnected, and smaller conspiracies. The variance between the indictment and the proof was so prejudicial that it mandates the reversal of his conviction on count 1. See Kotteakos v. United States, 328 U.S. 750, 757, 766, 66 S.Ct. 1239," }, { "docid": "3891710", "title": "", "text": "has testified. Defense counsel stated that they wanted to use Oldham’s testimony to rebut Watson’s testimony regarding the Park Place investment and to attack Watson’s credibility. The district court correctly pointed out that Rule 608(b) prohibits such extrinsic evidence regarding credibility and that defense counsel are “stuck with” the response given on cross-examination. Exclusion of this testimony by Oldham was a correct application of Fed.R.Evid. 608(b). 3. Defendants’ Right to a Fair Trial A. Alleged Prosecutorial Misconduct Defendants claim that the government was guilty of numerous acts of prosecutori al misconduct which prevented defendants from receiving a fair trial. Specifically, they contend that the government: 1) injected civil standards of professional conduct into the trial; 2) improperly appealed to class prejudice through references to defendants’ lifestyles; 3) improperly referred to unrelated criminal activity such as the Butcher bank failures; 4) withheld Brady material; and 5) committed other acts of misconduct. We have held that “[t]o warrant a new trial, ... prosecutorial misconduct ‘must be so pronounced and persistent that it permeates the entire atmosphere of the trial.’ Furthermore, the prejudicial effect of improper comment or questioning may be negated by curative instructions to the jury.” United States v. Thomas, 728 F.2d 313, 320 (6th Cir.1984) (citations omitted). We consider each of defendants’ contentions separately. 1) Injection of Civil Standards The district court granted Frost’s motion in limine to exclude evidence concerning violations of civil standards of professional conduct for accountants. Defendants claim that, at trial, the government violated the order, injected civil standards, and thus apparently led the jury to believe that violation of civil standards constituted a criminal offense. During cross-examination of Frost, the prosecutor commented, “Isn’t that unethical?” to Frost’s response that he received a commission from Quadel from the money invested by his clients pursuant to his advice. Defense counsel objected and the court sustained the objection. The court gave the following curative instruction:. Ladies and gentlemen of the jury, I have sustained the Defense’s objection to this, and I would just remind you that, as I told you earlier in the case and will tell you" }, { "docid": "22426293", "title": "", "text": "823 F.2d 1457, 1462 (11th Cir.1987) (holding that although prosecutorial misconduct alone would not have merited reversal, “the cumulative effect of the errors committed by the judge and the prosecutor ... denied the defendants a fair trial”). The elements of this case — the introduction of highly inflammatory, irrelevant evidence; the nature -of the government’s case, which depended on the jury’s assessment of the relative credibility of the prosecution and defense witnesses; and the additional prejudice created by the prosecutor’s misconduct — add up to a conclusion that the improper admission of evidence was not harmless error. CONCLUSION For the foregoing reasons, we REVERSE and REMAND to the district court for further proceedings in accordance with this opinion. . Hands raises a number of other challenges to his conviction and sentence, arguing, inter alia, (1) that the government presented insufficient evidence to convict him on either count; (2) that the procedures the district court used to present the forfeiture issue to the jury constituted reversible error; (3) that because a minor error in the district court's instruction made it unclear which type of drug the jury found Hands had conspired to distribute, he should have received a sentence no longer than the shortest of the statutory maximum sentences applicable to the types of drugs in question; and (4) that the district court erred in applying a four-point increase to his offense level pursuant to United States Sentencing Guideline § 3Bl.l(a). Because we reverse for a new trial on other grounds, we do not reach these issues. . During the jury’s deliberations, the trial court determined that the government had not offered sufficient proof that Hands owned any of this real property; it therefore ordered the jury not to consider whether the property was forfeitable. . Superseding Indictment, Rl-21 at 4, ¶ 6. . Hands's gun-carrying practices were relevant to the government’s case because some prosecution witnesses had testified that he had a practice of carrying one of several guns while dealing drugs. . Trial Tr., RIO at 811. . Id. at 812. . Id. at 813. . Id. . Id." }, { "docid": "23303672", "title": "", "text": "he contends that the government failed to reveal Dominguez' grand jury testimony where he mistakenly identified ROBERTS, and not GILBERT, as known by the alias “Bee.” Second, ROBERTS claims that the government withheld evidence of criminal activity by government witness Stevens which would have served to impeach Stevens’ testimony against ROBERTS. Third, ROBERTS claims that government agents improperly coached identification witnesses. This Court will reverse a conviction for prosecutorial misconduct only if, when viewed in the context of the whole trial, the misconduct may have prejudiced the substantial rights of the accused. United States v. Esle, 743 F.2d 1465 (11th Cir.1984) (per curiam). The test for such misconduct is whether the conduct was improper and was prejudicial to the substantial rights of the defendants. United States v. Zielie, 734 F.2d 1447 (11th Cir.1984). The record does not support ROBERTS’ claim that he suffered prejudice from the government’s conduct. Dominguez testified on direct and redirect that he had misnamed ROBERTS before the grand jury and that he did not know ROBERTS’ alias. As for the evidence of Stevens’ criminal activity, as noted earlier, the only crime not disclosed was Stevens’ firearm violation. In light of all the other evidence of Stevens’ criminal activity fully revealed on cross-examination, e.g., Stevens’ operation of a crack smoke house, his commission of robberies as part of the armored car conspiracy, and his indictment for conspiracy to distribute cocaine and heroin, ROBERTS did not suffer prejudice by not being able to impeach Stevens with this firearm violation. Finally, we can find no evidence in the record, and ROBERTS fails to cite any, that supports his accusation that government agents improperly coached identification witnesses. III. CONCLUSION For the foregoing reasons, the convictions of all of the appellants except GILBERT are AFFIRMED. We REVERSE the conviction of GILBERT on all counts for the Bruton violation and REMAND for a new trial. . Quevedo testified regarding statements made to him by Valera, a co-conspirator in the organization. Although Valera was named in the indictment, he was a fugitive when these defendants were tried and was therefore tried separately. ." }, { "docid": "7009990", "title": "", "text": "of the evidence about the open unit, although unquestionably error in our judgment, may have been harmless in itself. But its prejudicial impact cannot be assessed in isolation from the prejudicial impact of the government’s knowingly using perjured testimony and concealing evidence of favoritism which the defendants could have used to attack the credibility of the prisoner witnesses. It is the total impact of all the irregularities at trial, rather than the impact of each one examined in isolation, that determines whether a defendant is entitled to a new trial. United States v. Boyd, supra, 55 F.3d at 243. The determination of prejudice is to be made in the first instance by the district judge and in making this determination Judge Mills did not take into account the impact of the exclusion of the evidence about the witnesses’ placement in the open unit because he did not think the exclusion erroneous. We know that he did not think the prosecutorial misconduct alone could have changed the result of the trial or undermined confidence in the verdict. But we do not know what he might think of the combined impact of that misconduct and the exclusion of the evidence about the open unit and — a point we haven’t mentioned before — the evidence of prior bad acts of two of the defendants that was improperly presented to the jury and that Judge Mills instructed the jury to ignore; he may not have thought that the curative instruction reduced the prejudicial impact of the bad acts evidence to zero. We must remand the case to Judge Mills for a determination whether there is a reasonable likelihood that the totality of the irregularities that occurred at the trial affected the verdicts. The judgments are vacated and matter is remanded to the district court for further proceedings limited to determining whether exclusion of the evidence about the open unit, when added to the instances of prosecutorial misconduct (including eliciting testimony as to prior bad acts by two of the defendants), constituted a prejudicial error and so entitles the defendants to a new trial." }, { "docid": "22453966", "title": "", "text": "most favorable to the Government, a rational jury could conclude that the above evidence demonstrates beyond a reasonable doubt Medina’s involvement in a conspiracy to distribute or conspiracy to possess with intent to distribute five or more kilograms of cocaine. We therefore AFFIRM the district court’s denial of Medina’s motion for a judgment of acquittal. VI. Medina’s remaining arguments Having concluded that Medina is entitled to a remand for retrial, due to the likely prejudice of certain inadmissible evidence, we need not address Medina’s argument that he is entitled to a remand due to prosecutorial misconduct. This argument centers around the prosecutor’s repeated reliance upon the inadmissible evidence discussed in Part IV. Having clarified that the evidence at issue was in fact improperly admitted and sufficiently prejudicial to warrant a new trial, we need not further consider whether the prosecutor’s actions constituted prosecutorial misconduct. Finally, having vacated Medina’s conviction and sentence, we need not reach Medina’s arguments pertaining to errors in sentencing. VII. Conclusion For the foregoing reasons, we VACATE Medina’s conviction and sentence, and REMAND for proceedings consistent with this opinion. . The paragraph reads in Spanish: \"Me sido consultado para permitir a los agentes del departamento de drogas y narcóticos el registrar.” JA31. . The paragraph reads in Spanish: “Yo libre-mente conseinto a este registro.\" JA 31. . As Medina notes, the record is unclear as to whether Corona’s PSR was submitted to the jury. Because our ultimate concern is risk of prejudice, we assume that it was submitted. . Medina also raises an argument in his Reply Brief that the prosecutor should have disclosed that he intended to use Agents Mundy and Riddle as experts. This argument was not raised in Medina's Main Brief, and we do not address it. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (deeming arguments that are not raised in the appellant's main brief, or raised merely in a perfunctory manner, as waived). . Such co-conspirator statements are considered nontestimonial and their admissibility is not affected by the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct." }, { "docid": "20694565", "title": "", "text": "evidence did not violate Armstrong’s right to procedural due process; and (2) Norset-ter’s alleged actions in 1980 violated no law clearly established at that time. 1. Violation of a Constitutional Right To show that Norsetter’s actions in causing the loss or destruction of the drug paraphernalia evidence violated his constitutional right to due process of law, Armstrong relies on Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), where the Supreme Court held that the destruction of potentially exculpatory evidence is not a denial of due process of law unless it is done in bad faith. See also California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (good faith failure to preserve evidence with no apparent exculpatory value did not violate due process). Norsetter argues that Armstrong’s “allegations of bad faith are inherently contradictory,” that the drug paraphernalia evidence “did not have ‘apparent’ potentially exculpatory value,” and that this evidence was not particularly important because the alleged cocaine user would likely have left other prints in the apartment. Whatever weight these argument may have at' a-later stage of the case, they cannot prevail in this appeal from a denial of a motion to dismiss on the pleadings. We must accept the facts pled in the complaint as true and draw all reasonable inferences in Armstrong’s favor. In that light, Armstrong has sufficiently alleged facts that Norsetter knew the evidence had significant exculpatory value and acted in bad faith. Armstrong alleges that Norsetter acted “with bad faith from the very beginning of the investigation.” And this is no bare legal conclusion. Rule 9(b) allows states of mind to be alleged generally. Even if it did not, the facts alleged here certainly permit a reasonable inference that Norsetter was acting in bad faith. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint states that Norsetter admitted under oath in a 2009 state court hearing on prosecutorial misconduct that" } ]

[ { "docid": "22677769", "title": "", "text": "law in believing it could not sentence below the applicable Guidelines range for offenses involving crack cocaine. To resolve this issue, we examine Booker and our case law explaining the sentencing process courts are to follow gost-Booker. D. Merits As others have observed, the separate opinions in Booker establish that there are two types of Booker error. First, a district court could err by relying upon judge-found facts, other than prior convictions, to enhance a defendant’s sentence beyond the statutory maximum for file crime the defendant was convicted. Booker, 543 U.S. at 244, 125 S.Ct. 738. The Sixth Amendment prohibits this practice, id., sometimes referred to as “constitutional” Booker error. See, e.g., United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.2005) (en banc); McConnell, supra, at 669. Second, a sentencing court could err by applying the Guidelines man-datorily (even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon a prior conviction), as Booker makes them no more than advisory. This is sometimes referred to as “non-constitutional” Booker error. See Gonzalez-Huerta, 403 F.3d at 731-32; McConnell, supra, at 669. In this context, our post-Booker precedent instructs district courts to follow a three-step sentencing process. See United States v. King, 454 F.3d 187 (3d Cir.2006). (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. See id. at 196; see also Cooper, 437 F.3d at 330. (2) In doing so, they must “formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account [our] Circuit’s pre-Booker case law, which continues to have advisory force.” King, 454 F.3d at 196. (3) Finally, they are required to “exercise[ ] [their] discretion by considering the relevant [§ 3553(a)] factors,” id. at 194 (quoting Cooper, 437 F.3d at 329), in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. While the District Court complied with steps one and" } ]

[ { "docid": "22041900", "title": "", "text": "S.Ct. 1854, 114 L.Ed.2d 385 (1991). This power includes the ability “to override our precedent through amendments to the Guidelines.” Williams, 808 F.3d at 258. With this framework in mind, we turn to the Guidelines applicable to sentencing reductions. B. Under' the Sentencing Reform Act, a federal court generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). However, Congress has provided an exception to that rule: when the Commission makes a Guidelines amendment retroactive, a district court may reduce an otherwise final sentence based on the amended provision, as long as the reduction remains consistent with applicable Commission policy statements. Id. In considering whether and by how much to reduce a sentence under § 3582(c)(2), a district court follows a two-step inquiry. Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). The court first “followfe] the Commission’s instructions in § 1B1.10 to determine .the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Id. at 827, 130 S.Ct. 2683. Specifically, § 1B1.10(b)(1) requires the court to “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (d) had been in effect,at the time” of the defendant’s initial sentencing. U.S.S.G. § 1B1.10(b)(1). At step two, a district court considers relevant sentencing factors to determine whether, in its discretion, a reduction “is warranted in whole or in’ part under the particular circumstances of the case.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683. C. This appeal—and the issue in Munn— concerns how a court calculates the amended guideline range at step one. In particular, the parties dispute whether the resentencing court calculates the range using a pre-departure criminal history category or a post-departure criminal history category. In Munn—decided prior to Amendment 759—this court held that a defendant’s applicable guideline range is determined after applying any departures. 595 F.3d at 192-95. Therefore, the defendant in Munn—a career offender who received a departure for overrepresentation of criminal history at his original sentencing—was entitled to" }, { "docid": "23090333", "title": "", "text": "Cir.2008) (agreeing that defendants granted a downward departure under § 4A1.3, and sentenced under the Guidelines range that \"would be in effect absent the career offender guideline[s],” would be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2)). . The Munn Court did not analyze separately the two statutory requirements for a sentence reduction under § 3582(c)(2)—i.e., that (1) the defendant’s sentence was \"based on” a sentencing range that has been subsequently lowered, and (2) that any sentence reduction be consistent with the Sentencing Commission’s policy statements—but rather focused its analysis on the second requirement, which we discuss below in Part III.B. In that regard, the Fourth Circuit appears to have assumed (as at least one other Circuit has) that the two requirements of § 3582(c)(2) are interchangeable. See Munn, 595 F.3d at 187 (“Together, § 3582(c)(2) and the Policy Statement make clear that a defendant whose offense of conviction involved crack is eligible for a reduced sentence only if Amendment 706 lowers the defendant’s applicable guideline range.”); cf. United States v. Dryden, 563 F.3d 1168, 1170-71 (10th Cir.2009) (concluding that the two requirements are \"identical” and ”convey[] the same meaning”). . With an offense level of 22 and a criminal history category of V, the advisory sentencing range for Flemming would have been 77 to 96 months' imprisonment (instead of 92 to 115 months). . As the Supreme Court recently confirmed, the Sentencing Commission's policy statement in § 1B1.10 is binding on courts. See Dillon v. United States, - U.S. -, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). . We have explained that while the policy statement and the first requirement of § 3582(c)(2) are \"complementary,” the policy statement is \"narrower.” Doe, 564 F.3d at 310-11 (rejecting the argument that the policy statement in § IB 1.10 \"implicitly redefines the § 3582(c)(2) term ‘based on’ ”). . To be clear, these \"steps” are not the same as those we have required district courts to follow in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Gunter," }, { "docid": "20506047", "title": "", "text": "Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). As the Supreme Court has observed, “[b]y its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the Commission.” Dillon v. United, States, 560 U.S. 817, 825, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (holding that § 3582(c)(2) sentence-reduction proceedings do not implicate the Sixth Amendment, and therefore United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) does not apply to such proceedings). The statute’s plain text “authorize^] only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Id. at 826, 130 S.Ct. 2683. The Guidelines are consistent with this understanding of the limited nature of § 3582(c)(2) sentence-reduction proceedings. Under U.S.S.G. § lB1.10(b), when a district court reduces a sentence under § 3582(c)(2), it leaves undisturbed the findings and calculations that formed the recommended sentencing range, changing only the revised Guideline. This procedure does not in any way resemble a full resentencing. Indeed, § 3582 itself provides that “[n]otwithstanding the fact that a sentence to imprisonment can subsequently be modified pursuant to the provisions of [§ 3582(c) ], a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.” § 3582(b)(1). Consequently, we have recently held in an analogous context that because “ ‘a modification of a sentence does not affect the finality of a criminal judgment,’ ” a sentence reduction under § 3582(c)(2) does not restart the clock for AEDPA’s one-year limitations period for the filing of § 2255 motions. United States v. Olvera, 775 F.3d 726," }, { "docid": "23090334", "title": "", "text": "F.3d 1168, 1170-71 (10th Cir.2009) (concluding that the two requirements are \"identical” and ”convey[] the same meaning”). . With an offense level of 22 and a criminal history category of V, the advisory sentencing range for Flemming would have been 77 to 96 months' imprisonment (instead of 92 to 115 months). . As the Supreme Court recently confirmed, the Sentencing Commission's policy statement in § 1B1.10 is binding on courts. See Dillon v. United States, - U.S. -, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). . We have explained that while the policy statement and the first requirement of § 3582(c)(2) are \"complementary,” the policy statement is \"narrower.” Doe, 564 F.3d at 310-11 (rejecting the argument that the policy statement in § IB 1.10 \"implicitly redefines the § 3582(c)(2) term ‘based on’ ”). . To be clear, these \"steps” are not the same as those we have required district courts to follow in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006); accord United States v. Grier, 585 F.3d 138, 141-42 (3d Cir.2009) (en banc). Under that procedure, district courts must (1) \"continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker ”; (2) rule on any departure motions, and determine how any departure \"affects the Guidelines calculation”; and (3) impose a sentence after considering the factors in 18 U.S.C. § 3553(a). Gunter, 462 F.3d at 247. By contrast, we deal in this case solely with a question of Guidelines interpretation {i.e., at what point a defendant’s \"applicable guideline range” has been set), and whether the Application Instructions provide a clear answer to that question. Moreover, as the Supreme Court has now ruled, Booker does not apply in the § 3582(c)(2) context. See Dillon, 130 S.Ct. at 2692. . As Judge Fuentes noted in his concurring opinion in Doe, our precedent \"allows a district court to consider the seriousness of a defendant's offense—often reflected in the § 5A Guidelines range [i.e., the range calculated under the Crack" }, { "docid": "22998841", "title": "", "text": "retroactive amendments to the crack-cocaine guidelines, Clark moved for a sentence reduction. The district court determined that the recalculated Guidelines range was 97 to 121 months and reduced his sentence to 121 months’ imprisonment. On appeal, Clark argues that the district court failed to adequately consider or explain its application of the sentencing factors contained in 18 U.S.C. § 3553(a). In addition, he argues that the district court failed to recognize the full extent of its discretion as provided in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We recently reiterated our position that the modification of a defendant’s sentence pursuant to § 3582(c)(2) does not constitute a full resentencing. See United States v. Starks, 551 F.3d 839, 841 (8th Cir.2009) (“[T]here are clear and significant differences between original sentencing proceedings and sentence modification proceedings.” (quotation omitted)); see also U.S.S.G. § 1B1.10(a)(3) (“[PJroceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.”). In Starks, we rejected a Boo/cer-based challenge from a defendant who argued that § 3553(a) authorized the reduction of an initial, within-Guidelines-range sentence to a sentence below an amended and recalculated Guidelines range under § 3582(c)(2). Starks, 551 F.3d at 840-43. We held that the relevant Guidelines sections precluded such an amendment, and we emphasized that, because the Supreme Court in Booker had not vacated the statutory basis for sentence modifications, § 3582(c) remained the separate, statutory source of authority for sentence modifications. Id. at 842 (“This section was not excised, or even mentioned, in Booker.”); see also United States v. Jones, No. 08-2996, 2009 WL 982161, at *2 (8th Cir. Apr.14, 2009) (unpublished) (“[I]n enacting § 3582(c) Congress limited the authority of a district court to modify a sentence.”). Accordingly, our precedent requires that we reject Clark’s Kimbrough- and Boo&er-based challenges. That having been said, § 3553(a) still plays a role in sentence modification proceedings under § 3582(c). See U.S.S.G. § 1B1.10 cmt. (n.1(B)(i)) (“Consistent with §" }, { "docid": "20165143", "title": "", "text": "the Commission. 508 U.S. 36, 39, 44, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Application Note 4(A) thus justifies — indeed requires — discarding our prior interpretation of section 1B1.10. See Miller, 335 F.3d at 900 (intervening higher authority justifies overturning prior panel opinion). Morales argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Application Note 4(A) is at most advisory. But Booker concerned the significance of the guidelines when the district court imposes a sentence. See id. at 259, 125 S.Ct. 738. The issue here is whether the district court even has jurisdiction under section 3582(c)(2) to modify Morales’s sentence. In this situation, Booker doesn’t control. See Leniear, 574 F.3d at 674. The Supreme Court explained in Braxton v. United States that “Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U.S.C. § 994(u). This power has been implemented in U.S.S.G. § 1B1.10, which sets forth the amendments that justify sentence reduction.” 500 U.S. 344, 348, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991). Moreover, 18 U.S.C. § 3582(c)(2) requires that a reduction be consistent with the Commission’s policy statements. Between sections 994(u) and 3582(c)(2), then, the Commission’s policy statement concerning whether a sentence reduction is authorized — section 1B1.10 — is binding. See United States v. Washington, 584 F.3d 693, 699-700 (6th Cir.2009); United States v. Doe, 564 F.3d 305, 310 (3d Cir.2009); United States v. Dunphy, 551 F.3d 247, 250-51 (4th Cir.2009); United States v. Walsh, 26 F.3d 75, 77 (8th Cir.1994). And Application Note 4(A) is an authoritative interpretation of section 1B1.10. See pp. 1051-52 supra. The district court therefore correctly concluded that Morales wasn’t eligible for a reduction under section 3582(c)(2). Morales satisfies the first requirement for a sentence reduction pursuant to section 3582(c)(2): Under Etherton, Morales has been sentenced to a term of imprisonment “based on a sentencing range that has subsequently been lowered.” But Morales fails to satisfy the second: A reduction isn’t consistent with the Commission’s applicable policy" }, { "docid": "22990987", "title": "", "text": "U.S.C. § 1291. II. The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory. Under Booker, we review the sentence imposed by the District Court for reasonableness, Booker, 543 U.S. at 261-62, 125 S.Ct. 738 which, in essence, calls upon us to “ask[ ] whether the trial court abused its discretion. ...” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). To determine whether a sentence is reasonable, the court must examine “whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc); see also United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006) (“The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.”). In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), we set out a three-step process for district courts to follow in imposing sentences after Booker. Those steps are: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors, in setting the sentence they impose regardless [of] whether it varies from the sentence calculated under the Guidelines. Id. at 247 (internal citations, quotation marks, and brackets omitted). On appeal, “we must ... ascertain whether [the § 3553(a)] factors were reasonably applied to the circumstances of the case.” Cooper, 437 F.3d at 330. Our review is deferential, id., but a “significant departure” from the Guidelines range “must be adequately supported by the record.” United States v. King, 454 F.3d 187, 195 (3d Cir.2006). Applying those standards here, we conclude" }, { "docid": "23090335", "title": "", "text": "462 F.3d 237, 247 (3d Cir.2006); accord United States v. Grier, 585 F.3d 138, 141-42 (3d Cir.2009) (en banc). Under that procedure, district courts must (1) \"continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker ”; (2) rule on any departure motions, and determine how any departure \"affects the Guidelines calculation”; and (3) impose a sentence after considering the factors in 18 U.S.C. § 3553(a). Gunter, 462 F.3d at 247. By contrast, we deal in this case solely with a question of Guidelines interpretation {i.e., at what point a defendant’s \"applicable guideline range” has been set), and whether the Application Instructions provide a clear answer to that question. Moreover, as the Supreme Court has now ruled, Booker does not apply in the § 3582(c)(2) context. See Dillon, 130 S.Ct. at 2692. . As Judge Fuentes noted in his concurring opinion in Doe, our precedent \"allows a district court to consider the seriousness of a defendant's offense—often reflected in the § 5A Guidelines range [i.e., the range calculated under the Crack Cocaine Guidelines]— in determining the extent of a substantial assistance departure.” 564 F.3d at 315 (Fuentes, J., concurring) (citing United States v. Casiano, 113 F.3d 420, 431 (3d Cir.1997)). However, \"[w]e are alone in this approach; all other circuits to have addressed the issue have held that the maximum extent of a substantial assistance departure may be based only on the defendant's substantial assistance.” Id. at 315 n. 1. . Some of our sister circuit courts have reached the same conclusion through a different analysis; i.e., because U.S.S.G. § 5G1.1(b) provides that the mandatory minimum sentence becomes \"the guideline sentence,” a defendant subject to a mandatory minimum sentence is not sentenced \"based on a sentencing range \" that subsequently could be lowered by the Sentencing Commission, 18 U.S.C. § 3582(c)(2) (emphasis added), and thus fails to satisfy the first requirement of § 3582(c)(2). See Cook, 594 F.3d at 886-87 (collecting cases). .In his concurring opinion in Doe, Judge Fuentes expressed concern that the majority had not distinguished the Does' circumstances from \"another category of defendants”—career" }, { "docid": "23090344", "title": "", "text": "Court has not (until today) had occasion to apply the rule of lenity to the Guidelines since Booker, we nonetheless have addressed rule-of-lenity arguments without suggesting that the rule does not apply to the now-advisory Guidelines. See, e.g., Doe, 564 F.3d at 314-15; United States v. Lennon, 372 F.3d 535, 539-40 (3d Cir.2004). In any event, we need not decide in this case whether the rule of lenity is generally applicable to the Sentencing Guidelines post-Booker because (1) the Government has raised no such argument, and (2) here we are faced with interpreting provisions of the Guidelines that are not advisory. See Dillon, 130 S.Ct. at 2694 (holding that Booker does not affect the binding nature of the Sentencing Commission’s policy statement in § IB 1.10, which “permits a sentence reduction within the narrow bounds established by the Commission”). In that light, we are bound to apply our preBooker caselaw, which makes clear that the rule of lenity may apply to mandatory provisions of the Sentencing Guidelines. See, e.g., Fenton, 309 F.3d at 828 n. 3. . As noted, the Fourth Circuit concluded that the \"plain text” of § IB 1.1 unambiguously directs sentencing courts to apply a § 4A1.3 departure at step (f) of the Application Instructions. Munn, 595 F.3d at 194. It suggested further that, were it authorized to consider the 2003 definition of \"departure,” the \"Guidelines would be rendered ambiguous on this point, as the Application Instructions indicate that [a § 4A1.3] departure is to be made before calculating the applicable guideline range, while the commentary to those instructions—through its loose usage of the phrase 'applicable guideline range’—arguably suggests otherwise.” Id. The Court concluded that, \"in the face of any such ambiguity, [it] would be obliged to apply the rule of lenity and resolve the conflict in the defendant's favor.” Id. (emphasis in original). Because the question is not before us, we do not decide whether a career offender granted a § 4A1.3 downward departure under a post-2003 edition of the Sentencing Guidelines would be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). However, in" }, { "docid": "22604814", "title": "", "text": "point for determining the applicable guideline range.... ”). Leniear nonetheless claims that the term “sentencing range” includes not only what might be termed the “ultimate sentencing range” but also sentencing ranges corresponding to any base offense levels. This argument ignores the fact that only one sentencing range is calculated in the course of a sentencing recommendation; a sentencing range is not determined for each intermediate step. Second, modification of Leniear’s sentence would not, as also required by § 3582(c)(2), be “consistent with applicable policy statements issued by the Sentencing Commission.” The Sentencing Commission has issued such a policy statement in the form of U.S.S.G. § 1B1.10. A sentence reduction is not consistent with U.S.S.G. § 1B1.10 if “[a]n amendment ... does not have the effect of lowering the defendant’s applicable guideline range.” The application notes further elaborate that “a reduction in the defendant’s term of imprisonment ... is not consistent with this policy statement if ... an amendment ... is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline.” U.S.S.G. § 1B1.10 cmt. n. 1(A)(emphasis added). This application note perfectly describes the situation here— Amendment 706 applies to Leniear but does not have the effect of lowering his applicable guideline range because of the operation of U.S.S.G. § 3D1.4. Leniear argues, however, that such an application of U.S.S.G. § 1B1.10 would mandate harsher treatment for a subset of crack cocaine offenders in contravention of the Supreme Court’s holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the Senteneing Guidelines are advisory only. But any disparate application of Amendment 706 to crack cocaine offenders is one imposed not by U.S.S.G. § 1B1.10, but rather by a statute, namely 18 U.S.C. § 3582(c)(2). Moreover, while the Ninth Circuit has made clear that policy statements that would require mandatory application of the Sentencing Guidelines “must give way,” Hicks, 472 F.3d at 1173, that holding is inapposite here as it is a statute — again, 18 U.S.C. § 3582(c)(2)" }, { "docid": "22044253", "title": "", "text": ".Amendment 759 also made four other changes to the Sentencing Guidelines. First, it added Amendment 750 to § IB 1.10(c), thereby making Amendment 750's application in § 3582(c)(2) proceedings retroactive. See infra note 12. Second, it made otherwise appropriate sentence reductions inappropriate for defendants that originally received sentences below the guideline range unless the departure below the guideline range was for \"substantial assistance to authorities” under U.S.S.G. § 5K1.1. Third, it added Application Note 6 to § lBl.lO's Commentary, see infra note 15, requiring courts to use the Sentencing Guidelines in force at the time of a § 3582(c)(2) proceeding. Fourth, it added a sentence to § IB 1.10 explaining that the Supreme Court has held that § 3582(c)(2) proceedings are not governed by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that § 1B1.10 is binding on the courts. See Dillon v. United States, - U.S. -, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). . Amendment 750 is listed in subsection (c). . See supra note 9, for explanation of why his guideline range is 108 to 135 months’ imprisonment under Amendment 750. . Hippolyte’s criminal history category remained the same at II. See supra note 8, for calculations supporting the reduction in Hip-polyte’s offense level from 34 to 30 under Amendment 750. . Hippolyte also correctly points out that Amendment 759 also added a Commentary Application Note 6 to U.S.S.G. § 1B1.10 requiring a court to use the version of the Sentencing Guidelines that is in effect at the time of the sentence reduction proceedings. Thus, Hippolyte argues, the District Court should have used the new definition of “applicable guideline range” in Amendment 759, which became effective November 1, 2011, when it considered and denied Hippolyte’s motion for a sentence reduction on November 29, 2011. .21 U.S.C. § 841 (b)( 1)(B)(iii) (2012); see supra note 10, for explanation of why Hippo-lyte’s statutory mandatory minimum under the FSA is 10 years instead of 20. . See Amendment 759, U.S.S.G.App. C — Vol. Ill, at 421 (Nov. 2011). . Id. (“The First, Second," }, { "docid": "22397000", "title": "", "text": "3, 2008). . A district court may depart from a statutorily mandated minimum sentence on motion of the government under 18 U.S.C. § 3553(e). Melendez v. United States, 518 U.S. 120, 124-30, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996) (holding that 5K1.1 letter is not, alone, sufficient to impose sentence below statutorily mandated minimum absent a separate motion under 18 U.S.C. § 3553(e) for substantial assistance); United States v. Phillips, 382 F.3d 489, 499 (5th Cir.2004) (holding that district court may impose a sentence below statutory minimum on the state’s motion under 18 U.S.C. § 3553(e) or (f)) (citing United States v. Solis, 169 F.3d 224, 226-27 (5th Cir.1999)). Here, the government filed such a motion. . If \"a defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statement at issue is the newly amended U.S.S.G. § 1B1.10, which states that when “a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” U.S.S.G. § lB1.10(l)(a). To be eligible for reconsideration under U.S.S.G. § IB 1.10(b)(2), the original sentence must generally have been imposed pre-Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See U.S.S.G. § 1B1.10(b)(2)(B). That condition is satisfied here. . United States v. Evans, No. 08-41259, 587 F.3d 667, 2009 WL 3647042, at *3 (5th Cir. Nov. 5, 2009) (internal citations omitted). . Id. at 671-72, 2009 WL 3647042, at *3. . Id. at 672, 2009 WL 3647042, at *3. . Id. at 671-72, 2009 WL 3647042, at *3. . This court reviews the" }, { "docid": "22595415", "title": "", "text": "reduction in sentence, § 1B1.10(b)(2) provides that “the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range 30....” U.S.S.G. § lB1.10(b)(2)(A). If the original sentence was lower than the applicable range, the policy statement provides for a commensurate reduction in the amended sentence. § lB1.10(b)(2)(B) (“If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range ... may be appropriate.”). Finally, despite United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the Guidelines merely advisory, the limitations on the degree of a sentence reduction under § 3582(c)(2) are mandatory: “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). B. Our Precedents The legal context in which we decide Rivera’s case also includes our own precedents, which establish two important principles. First, if a crack offender who was also a career offender under § 4B1.1 received no downward departure at his initial sentence, he is not eligible for a reduction, at least where “the career offender range ... remains unaltered by the crack cocaine amendments.” United States v. Martinez, 572 F.3d 82, 83 (2d Cir.2009). In those circumstances, the sentence was “based on” the career offender range, which has not been lowered by the Commission, rather than the range produced by the amended crack guideline. Id. at 84-85. Martinez is in accord with the holdings of our sister circuits. Second, if the sentencing judge in this case had said he was departing from the career offender guideline in order to base the sentence on the range provided by the offense guideline, ie., § 2D1.1, Rivera would be eligible for a" }, { "docid": "19911392", "title": "", "text": "States v. Colson, 573 F.3d 915, 916 (9th Cir.2009). We review a district court’s interpretation of a statute de novo. United States v. Paulk, No. 08-50229, 2009 WL 2393222, at * (9th Cir. Aug.6, 2009). We also review the district court’s interpretation of the Federal Rules of Criminal Procedure de novo. Id. DISCUSSION Under 18 U.S.C. § 3582(c), a district court generally “may not modify a term of imprisonment once it has been imposed.” There are, however, three exceptions, one of which is provided by § 3582(c)(2). This section states: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. The policy statements to which the statute refers appear in U.S.S.G. § 1B1.10 and its accompanying Application Notes. The policy statements note that where the imposed term of imprisonment is less than the applicable Guidelines sentencing range, “a reduction comparably less than the amended guideline range ... may be appropriate” but that relief is unlikely to be appropriate where the sentence was a non-Guidelines sentence determined under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and 18 U.S.C. § 3553(a). See U.S.S.G. § 1B1.10(b)(2)(B). Bride argues that the district court erred when it held that it lacked authority to consider his motion because a sentence imposed pursuant to a Rule 11(c)(1)(C) plea necessarily is not “based on a sentencing range that has subsequently been lowered by the Sentencing Commission” as required by § 3582(c)(2). Bride urges us to hold that a sentence is based on the Guidelines where there is some “nexus” between the applicable Guidelines range and the actual sentence. We decline" }, { "docid": "22280664", "title": "", "text": "absent the career offender effect upon his guideline calculation.” The'government nevertheless objects to McGee’s claim of eligibility, stating as follows: (1) a court may reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) only “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission”; and (2) U.S.S.G. § 1B1.10, which is a policy statement, indicates that its reference to the “guideline range applicable to th[e] defendant” refers to the pre-departure (rather than post-departure) sentencing range. As relevant here, that policy statement provides that-a reduction .in a defendant’s sentence is not authorized where the amendment in question, in this case Amendment 706, “does not have the effect of lowering the defendant’s applicable guideline range,” Id. § lB1.10(a)(2)(B). To assess whether a reduction is warranted, a district court is instructed to determine the Guidelines range “that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced,” while leaving “all other guideline application decisions unaffected.” ' Id. § 1B1.10(b)(1). And after stating the general rule that “the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range,” id. § 1B1.10(b)(2)(A), the district court is instructed that the' following exception applies: If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a further reduction generally would not be appropriate. Id. § 1B1.10(b)(2)(B). Focusing on the language of the exception, the government argues that the policy statement treats the applicable guideline range as the pre-departure range, here the career offender guideline range which, as noted," }, { "docid": "21237607", "title": "", "text": "downward departure, and we have the benefit of an original sentence, and rather than go through the calculation of what my offense level arrived at in terms of a guideline, I thought it better just to give you the specific sentence departure. So I don’t think it’s accurate to say that the departure doesn’t reflect the court’s assessment of the guideline range. (App.56-57.) On appeal, Floyd asks us to remand for resentencing because the District Court never provided her thé benefit of the departure it granted. II. Discussion A The Supreme Court rendered the Sentencing Guidelines advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and we now review sentences for reasonableness, United States v. Cooper, 437 F.3d 324, 326-27 (3d Cir.2006). In spite of these changes, district courts must still calculate an applicable Guidelines range and rule on any motions for departure. United States v. King, 454 F.3d 187, 196 (3d Cir.2006). We have thus described post-Booker sentencing as proceeding in the following three steps: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal quotation marks, citations, and alterations omitted). This process serves to clarify the basis for the sentence imposed. See United States v. Jackson, 467 F.3d 834, 838-39 (3d Cir.2006). The calculations of the first two steps provide “a natural starting point” from which a court exercises its discretion at step three. Cooper, 437 F.3d at 331. Under the advisory Guidelines regime, we have distinguished between two types of sentence" }, { "docid": "22071888", "title": "", "text": "for abuse of discretion. Colson, 573 F.3d at 916. “A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact.” United States v. Light-foot, 626 F.3d 1092, 1094 (9th Cir.2010) (citation and quotes omitted). DISCUSSION Section 3582(c)(2) authorizes district courts to modify an imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A district court then “may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. The Supreme Court has clarified that § 3582(c)(2) requires a two-step inquiry. Dillon, 130 S.Ct. at 2691. First, a district court must determine whether a prisoner is eligible for a sentence modification under the Commission’s policy statement in USSG § 1B1.10. Id. Second, a district court must “consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” Id. at 2692. I. Jurisdiction We must first decide whether we have jurisdiction to review the district court’s denial of Dunn’s motion for a § 3582(c)(2) sentence reduction. In making this determination, we are bound by United States v. Colson, which held that § 3582(c)(2) sentence reduction decisions are renewable in their entirety for abuse of discretion under 28 U.S.C. § 1291. 573 F.3d at 916. In Colson, we applied United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Carty, 520 F.3d 984 (9th Cir.2008) (en banc), which each held that any element of a sentencing decision, whether discretionary or not, may be unreasonable, and therefore unlawful. Id. Colson overruled our prior decision in United States v. Lowe," }, { "docid": "23079331", "title": "", "text": "cocaine offenses by two levels. See U.S.S.G. supp. to app. C, amend. 706. On March 3, 2008, Amendment 713 went into effect, giving Amendment 706 retroactive effect. See U.S.S.G. supp. to app. C, amend. 713. On February 25, 2008, Watkins filed a motion for reduction of sentence pursuant to section 3582(c)(2) based on Amendment 505, Amendment 706, consideration of the section 3553(a) sentencing factors, and application of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court denied Watkins’s motion. The district court declined to consider a reduction based on Amendment 505 because it had previously denied three similar motions and it found no justi fication for a reduction. The district court also found that Watkins’s sentencing range was not affected by Amendment 706 and it thus lacked authority to reduce his sentence based on Amendment 706. Watkins appeals. II. STATUTORY FRAMEWORK AND STANDARD OF REVIEW A district court may modify a defendant’s sentence only as authorized by statute. See United States v. Johnson, 564 F.3d 419, 421 (6th Cir.2009). Under section 3582(c)(2), a district court may modify a term of imprisonment: in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o) ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The Supreme Court has held that section 3582(c) establishes a two-step inquiry. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). At step one of the inquiry, the court must determine the defendant’s eligibility for a sentence modification under the Sentencing Commission’s policy statements and the extent of reduction authorized. Id. The Sentencing Commission has identified the amendments that may apply retroactively and the procedure for deciding a motion for reduction of sentence in a policy statement. See U.S.S.G. § 1B1.10. Both Amendment 505" }, { "docid": "22465807", "title": "", "text": "that range as a starting point for the entirety of the § 3553(a) analysis. Based on its consideration of the § 3553(a) factors, the Court must state the reasons for its sentence and explain whether a within-Guidelines sentence is appropriate in the particular case, a process which generally will require a correct Guidelines calculation. Third and finally, a correctly calculated Guidelines range will often be a necessary precondition of our reasonableness review. Where a district court begins with an erroneous range, it will be difficult for us to determine that it fulfilled its duty to consider the Guidelines and reason through to the ultimate sentence. We will discuss these considerations in turn. A. Duty to calculate the Guidelines range in each individual case In rendering the Guidelines advisory, the Supreme Court made clear that sentencing courts are required to “consider” the Guidelines in crafting a sentence. United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our Court thereafter provided district courts with a three-step process to follow in order to comply with the Supreme Court’s ruling in Booker: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (quotation marks, brackets, and citations omitted); see also United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir.2006) (stating that courts should calculate Guidelines ranges just as they would have before Booker); United States v. Crosby, 397 F.3d 103, 112 (2d Cir.2005) (“The applicable Guidelines range is normally to be determined in the same manner as before" }, { "docid": "12118319", "title": "", "text": "1B1.10(b)(2)(A). II. Conclusion For the foregoing reasons, the order of the district court denying Fanfan’s motion for reconsideration is affirmed. Affirmed. . As the Supreme Court has recently explained, \"the point of Kimbrough \" was to recognize \"district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” Spears v. United States, - U.S. -, -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (emphasis in original); Kimbrough v. United States, - U.S. -, -, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007). . Of course, Booker instructed district courts to read the Sentencing Guidelines as “effectively advisory,” thereby permitting variant sentences below the bottom of the guideline range, even where there was no grounds for a departure under the guidelines. United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . We have not addressed, and need not here address, the retroactivity of Kimbrough. . Subdivision (B) of the relevant guidelines provides an exception allowing a below guideline sentence where the original term of imprisonment was below the original guideline range. U.S.S.G. IB 1.10(b)(2)(B). Fanfan's original term of imprisonment was within the guideline range, so this exception is not applicable here. . See also United States v. Jordan, 162 F.3d 1, 5 (1st Cir.1998) (interpreting a previous version of U.S.S.G. 1B1.10 to reach a similar result in ruling that even where § 3582(c)(2) was triggered by adjustment to a guideline range, that section did not permit a district court to grant a departure under § 5K2.0 where none was available at the initial sentencing). . Fanfan suggests it would be a \"great irony” if we allow his sentence to stand because we view U.S.S.G. 1B1.10 as mandatory, since in this same case, the district court imposed its previous sentence under the erroneous belief, rejected in Kimbrough, that it could not disagree with the policy judgments incorporated into the crack cocaine guidelines. Though Fanfan's comment on this point does not squarely raise" } ]

[ { "docid": "23441221", "title": "", "text": "2 (1976). The trial judge sentenced Losing to a total of fif teen years’ imprisonment to be followed by a five-year special parole period. This court affirmed the convictions on appeal. United States v. Losing, 560 F.2d 906 (8th . Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977) [Losing I]. Losing II, supra, 584 F.2d at 290. Losing II was the consolidated appeal of two orders of the district court denying motions filed by Losing. One of the motions denied is substantially identical to the motion presently before the Court. The court disposed of the matter as follows: Losing seeks a transcript to aid him in the preparation of a claim for postconviction relief under 28 U.S.C. § 2255. He states in his brief that he has not yet filed such a claim. Under 28 U.S.C. § 753(f) (1970), transcripts may be furnished without charge to indigent persons “in proceedings brought under [28 U.S.C.] section 2255 * * * if the trial judge or a circuit judge certifies that the suit or appeals is not frivolous- and that the transcript is needed to decide the issue presented * * *.” We think it clear under this statutory language and the Supreme Court’s decision in United States v. MacCollum, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), that any request for a free transcript prior to the filing of a section 2255 complaint is premature. Losing’s motion for a free transcript is thus premature, and the district court’s denial of that motion is affirmed. Id. In his present motion and brief Losing again states that he seeks the records and transcript from his criminal trial “for the purpose of eventually filing a 28 U.S.C. § 2255 motion.” He emphasizes that he does not want a “free transcript” under section 753(f) but rather only seeks “access” to the existing records under section 753(b). Losing’s whole access argument is derived from the decision of the Seventh Circuit in Rush v. United States, 559 F.2d 455 (7th Cir. 1977). In Rush the Seventh Circuit concluded that indigent" } ]

[ { "docid": "23441224", "title": "", "text": "F.2d at 459. The court ordered district courts to devise some method to allow prisoners seeking to prepare collateral attacks on their convictions reasonable access to their trial records, with appropriate safeguards to maintain the integrity of the records. Based on 28 U.S.C. § 753(b) and on Rush, Losing contends he is entitled to “access” to the records even though he has not yet filed a section 2255 motion. Although the opinion of this court in Losing II does not discuss section 753(b) or Rush, these same arguments were presented to the court in that case, and the holding of the court implicitly rejects them. No other circuits have adopted the Seventh Circuit position, and the one reported district court opinion attempting to implement the instructions of the Seventh Circuit interprets Rush restrictively. See United States v. Davidson, 438 F.Supp. 1253 (N.D.Ind.1977). United States v. MacCollum, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), cited by this court in Losing II, held that the restrictions imposed' by section 753(f) on the availability of free transcripts to indigent prisoners for collateral relief purposes are constitutional. MacCollum was decided before Rush, but the Seventh Circuit found it distinguishable, primarily because in Rush petitioners sought pre-existing records. The Court assumed that no cost to the government would accrue, thereby obviating any need to resort to the section 753(f) provisions for payment of transcript fees by the government. The no cost assumption seems questionable, and, even if true, the distinction is tenuous. MacCollum was decided by a closely divided Court (4-1-4), and the “access” argument based on section 753(b) was not discussed in that case. Nevertheless, it is clear that a majority of the Court concluded that a prisoner has no absolute right to a transcript to assist him in the preparation of a collateral attack on his conviction, and that constitutional requirements are met by providing such materials only after judicial certification that they are required to decide the issues presented by a non-frivolous pending case. Affirmed. . In Losing II, Losing sought only a transcript. In the present action he" }, { "docid": "8831557", "title": "", "text": "MEMORANDUM AND ORDER PETTINE, Senior District Judge. Defendant Freddy Fabian has filed a motion for transcripts to be provided at the government’s expense so that he may prepare a claim under 28 U.S.C. § 2255. For the reasons set out below, Fabian has failed to meet the criteria of 28 U.S.C. § 753(f), the provision governing transcripts for indigents, and his motion is denied. I. Background Fabian was tried before a court and jury in July 1989 and found guilty, along with his two codefendants, Victor Martinez and Hector Vidal. All of the defendants were sentenced on October 18, 1989. Each of the defendants was represented by retained counsel at trial. At the sentencing hearing, each of the defendants, including Fabian, was advised of his right to appeal his conviction and sentence. Each of the defendants, including Fabian, filed timely notices of appeal. Fabian contends that he did not pursue his appeal because he could not afford to pay his attorney any additional money. His appeal was dismissed for want of prosecution on February 21, 1990. Fabian’s codefendants, Martinez and Vidal, did press their appeals; on January 9, 1991, judgments were entered upholding their convictions and sentences. United States v. Martinez, and United States v. Vidal, 922 F.2d 914. Fabian has now filed two motions, a motion to proceed in forma pauperis and a motion for transcripts. Both motions contemplate a later filing of a claim under 28 U.S.C. § 2255. In the motion for transcripts, Fabian asserts that he plans to challenge his conviction and sentencing based upon constitutional errors at his trial and sentencing hearing and also claims that he was further denied his rights when his counsel refused to prosecute his appeal. Fabian argues that without access to transcripts he will have to rely solely on his memory and, as a result, will not be able to present an adequate § 2255 claim. II. Legal Standard The statute under which an indigent may obtain transcripts to aid in a § 2255 action is 28 U.S.C. § 753(f). It states, in part, that Fees for transcripts furnished in" }, { "docid": "20099830", "title": "", "text": "framing a motion under Section 2255. As this Court observed in Smith v. United States, 421 F.2d 1300 (6th Cir. Feb. 10, 1970), “In general, indigents are not accorded a right to a free transcript [to frame a motion pursuant to 28 U.S.C. § 2255]. The basis of this rule being to prevent the wasting of court time on frivolous appeals. It is assumed that, absent special circumstances, a man in custody can recall sufficiently the circumstances of a nonfrivolous error to frame an appropriate motion to vacate sentence. Dorsey v. United States, 333 F.2d 1015 (6th Cir. 1964); Ketcherside v. United States, 317 F.2d 807 (6th Cir. 1963). Recently, the United States Supreme Court has intimated some departure from our language in Smith. Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970). Wade involved an indigent prisoner who had been entitled as a matter of state law to a free transcript on direct appeal which his court appointed counsel borrowed for purposes of that direct appeal. In a subsequent action the prisoner was held to be entitled to borrow, or otherwise obtain, a free transcript to prepare a petition for collateral relief. In so holding the United States Supreme Court noted that its decision was based on the special circumstances of the California state laws and procedures legally entitling the indigent to a transcript on his original appeal of which he was subsequently deprived. They refrained from deciding whether “the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief.” 396 U.S. at 286, 90 S.Ct. at 505. The facts of the instant case do not reveal any “special circumstances” which mandate a departure from the general rule expressed in Smith v. United States. Unlike Wade, the Appellant was neither entitled to a free transcript on direct appeal as a matter of law, nor does he allege that he had access to a transcript and was unlawfully deprived of it. The general rule on direct appeal is that an" }, { "docid": "23169957", "title": "", "text": "to pay the $105.00 filing fee, the cost of transcribing the defendants’ closing argument, and the cost of printing the briefs, he cannot afford the cost of preparing the entire trial transcript. Without the trial transcript, Walker contends that he will be prevented from appealing certain trial matters. He therefore requests that portions of the transcript be furnished at public expense. Government monies may be allocated to fund the preparation of transcripts under 28 U.S.C. § 753(f). In relevant part, the statute prescribes: Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. § 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. Fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question). By its express terms, section 753(f) allows litigants to receive transcripts at public expense only if they are proceeding in forma pauperis, regardless of whether their case involves criminal, habeas, section 2255, or “other” proceedings. See Maloney v. E.I. DuPont de Nemours & Co., 396 F.2d 939, 940 (D.C.Cir.1967) (considering a request that portions of the trial transcript be furnished at government cost to an appellant who had already paid the required filing fee, and holding, in reliance on section 753(f), that “[bjefore a free transcript can be furnished, ... the appeal must be permitted in forma pauperis, and the required certification must be made”)," }, { "docid": "8831559", "title": "", "text": "proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. Id. The leading case on § 753(f) is United States v. MacCollom, in which the Supreme Court upheld the constitutionality of the statute. 426 U.S. 317, 324-25, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976) (plurality); id. at 330, 96 S.Ct. at 2094 (Blackmun, J., concurring). MacCollom was similar to the instant case. MacCollom, like Fabian, did not directly appeal his conviction and sentence. Id. at 319, 96 S.Ct. at 2088. MacCollom then filed a “Motion for Transcript in Forma Pauperis,” which the court returned to him with the instruction that he must first file a motion under § 2255. MacCollom then filed “a complaint for Declaratory Judgment and Injunctive Relief,” in which he alleged that he planned to move for vacation of his sentence pursuant to § 2255. Id. He claimed that a transcript would show that he had ineffective assistance of counsel and that there was not sufficient evidence to support the guilty verdict. Id. Without a transcript, according to MacCollom, he would not be able to frame his arguments. Id. at 319-20, 96 S.Ct. at 2088-89. The district court treated this pleading as a § 2255 motion, appointed counsel and held a hearing. Id. at 320, 96 S.Ct. at 2089. After the hearing, the complaint was dismissed for failure to state claim upon which relief could be granted. Id. at 320, 96 S.Ct. at 2089. In sum, both MacCollom and Fabian failed to appeal directly and then claimed a right to a transcript before a § 2255 action was filed in order to assist in preparation of such a claim. The Supreme Court, in addition to noting that MacCollom would have had a right to a transcript had he pressed a direct" }, { "docid": "20099829", "title": "", "text": "PER CURIAM. This is an appeal from the United States District Court for the Western District of Kentucky of a denial of Appellant’s motion for permission to obtain court records in forma pauperis. The Appellant was convicted in April, 1965, for a violation of 18 U.S.C. § 2113(d) and sentenced to a term of twenty-five years in federal prison. The conviction was affirmed on appeal to this Court. Lucas v. United States, 360 F.2d 937 (6th Cir. 1966), cert. denied, 385 U.S. 875, 87 S.Ct. 152, 17 L.Ed.2d 102. Appellant alleges that although he had court appointed counsel, he was not furnished free transcripts for the purpose of taking his direct appeal. He alleges no other errors as a basis for receiving a transcript, claiming he needs such a transcript to frame a motion under 28 U.S.C. § 2255. It is generally accepted that absent a special showing of necessity, United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964), an indigent prisoner is not entitled to a free transcript for the sole purpose of framing a motion under Section 2255. As this Court observed in Smith v. United States, 421 F.2d 1300 (6th Cir. Feb. 10, 1970), “In general, indigents are not accorded a right to a free transcript [to frame a motion pursuant to 28 U.S.C. § 2255]. The basis of this rule being to prevent the wasting of court time on frivolous appeals. It is assumed that, absent special circumstances, a man in custody can recall sufficiently the circumstances of a nonfrivolous error to frame an appropriate motion to vacate sentence. Dorsey v. United States, 333 F.2d 1015 (6th Cir. 1964); Ketcherside v. United States, 317 F.2d 807 (6th Cir. 1963). Recently, the United States Supreme Court has intimated some departure from our language in Smith. Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970). Wade involved an indigent prisoner who had been entitled as a matter of state law to a free transcript on direct appeal which his court appointed counsel borrowed for purposes of that direct appeal. In a subsequent action" }, { "docid": "8831562", "title": "", "text": "chosen to appeal from his conviction, and remained available on the conditions set forth in § 753 to an indigent proceeding under § 2255, afforded respondent an adequate opportunity to attack his conviction.” Id. at 328, 96 S.Ct. at 2093 (plurality). As it is clear that the conditions of § 753(f) are valid, this Court must now determine whether Fabian has met those conditions. The very first condition is that the transcript is to be “furnished in proceedings brought under section 2255.” 28 U.S.C. § 753(f). Although Fabian has indicated that he intends to file a § 2255 petition, he has not yet instituted such an action. In and of itself, the premature timing of Fabian’s request for a transcript would be sufficient for a denial. See U.S. v. Losing, 601 F.2d 351, 352 (8th Cir.1979); see also MacCollom, 426 U.S. at 319, 96 S.Ct. at 2088. The other conditions imposed by § 753(f) are that “the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal.” 28 U.S.C. § 753(f). Fabian’s motion does not even come within striking distance of these requirements. Fabian states that he “proposes to challenge the legality of his sentence and conviction based upon constitutional errors which occurred during the above proceedings.” Fabian has not indicated so much as which constitutional rights were violated, much less made the kind of factual allegations required by the statute. See Crossley v. U.S., 538 F.2d 508, 509 (2d Cir.1976). It is simply impossible for this Court to determine, on this record, that Fabian’s claims relating to his conviction and sentencing are not frivolous and that they require a transcript for their resolution. Fabian also alleges in his motion for a transcript that his attorney refused to file an appeal without an advance of $6,000. According to Fabian, this violates his constitutional rights to due process and equal protection. While this statement is more specific than his reference to constitutional violations at trial, it does not sufficiently justify Fabian’s failure to appeal. Fabian does not need a" }, { "docid": "8831558", "title": "", "text": "1990. Fabian’s codefendants, Martinez and Vidal, did press their appeals; on January 9, 1991, judgments were entered upholding their convictions and sentences. United States v. Martinez, and United States v. Vidal, 922 F.2d 914. Fabian has now filed two motions, a motion to proceed in forma pauperis and a motion for transcripts. Both motions contemplate a later filing of a claim under 28 U.S.C. § 2255. In the motion for transcripts, Fabian asserts that he plans to challenge his conviction and sentencing based upon constitutional errors at his trial and sentencing hearing and also claims that he was further denied his rights when his counsel refused to prosecute his appeal. Fabian argues that without access to transcripts he will have to rely solely on his memory and, as a result, will not be able to present an adequate § 2255 claim. II. Legal Standard The statute under which an indigent may obtain transcripts to aid in a § 2255 action is 28 U.S.C. § 753(f). It states, in part, that Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. Id. The leading case on § 753(f) is United States v. MacCollom, in which the Supreme Court upheld the constitutionality of the statute. 426 U.S. 317, 324-25, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976) (plurality); id. at 330, 96 S.Ct. at 2094 (Blackmun, J., concurring). MacCollom was similar to the instant case. MacCollom, like Fabian, did not directly appeal his conviction and sentence. Id. at 319, 96 S.Ct. at 2088. MacCollom then filed a “Motion for Transcript in Forma Pauperis,” which the court returned to him with the instruction that he must first file a motion under § 2255. MacCollom then filed “a complaint for Declaratory Judgment and Injunctive" }, { "docid": "23169958", "title": "", "text": "circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. Fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question). By its express terms, section 753(f) allows litigants to receive transcripts at public expense only if they are proceeding in forma pauperis, regardless of whether their case involves criminal, habeas, section 2255, or “other” proceedings. See Maloney v. E.I. DuPont de Nemours & Co., 396 F.2d 939, 940 (D.C.Cir.1967) (considering a request that portions of the trial transcript be furnished at government cost to an appellant who had already paid the required filing fee, and holding, in reliance on section 753(f), that “[bjefore a free transcript can be furnished, ... the appeal must be permitted in forma pauperis, and the required certification must be made”), cert. denied, 396 U.S. 1030, 90 S.Ct. 585, 24 L.Ed.2d 525, reh’g denied, 397 U.S. 930, 90 S.Ct. 936, 25 L.Ed.2d 112 (1970). We have previously recognized a form of partial in forma pauperis status by approving the procedure of allowing litigants who seek to proceed in forma pauperis to pay a partial filing fee. See Bullock v. Suomela, 710 F.2d 102 (3d Cir.1983). We considered the rationale of this procedure in Jones v. Zimmerman, 752 F.2d 76 (3d Cir.1985), and set forth the following guiding principles: “The purpose of [28 U.S.C.] § 1915 is to provide an entre, not a barrier, to the indigent seeking relief in the federal court.” As explained by the Supreme Court, the in forma pauperis statute was “intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, ‘in any court of the United States’ solely because his poverty makes it impossible for him to pay or secure the costs.” It would be contrary to the spirit of that" }, { "docid": "22728640", "title": "", "text": "clearly appears from the language of that section, supra, at 320. Congress did in that section make transcripts available automatically on direct appeal, but in the same section limited their availability in § 2255 motions to cases where the trial judge certifies that the § 2255 suit is not frivolous and that the transcript is needed to decide the issue presented by the suit. Our Brother Stevens advances what may well be very sound policy reasons for furnishing free transcripts as a matter of course to § 2255 plaintiffs, as well as to convicted defendants pursuing direct appeals. But it is plain from a reading of § 753 (f) that these considerations have not yet commended themselves to Congress. The difference is not as great as it might appear to be, however, because habeas corpus petitioners who wish to proceed in forma pauperis must still overcome a “nonfrivolous” barrier under 28 U. S. C. § 1915. E. g., Kitchens v. Alderman, 376 F. 2d 262 (CA5 1967); Blair v. California, 340 F. 2d 741 (CA9 1965). The constitutional treatment of habeas corpus, of course, is not contained in the Due Process Clause, but in Art. I, § 9, cl. 2, of the Constitution. Since a § 2255 claim is usually presented to the trial judge he will likely have an independent recollection of counsel’s performance which may well lead him to conclude that a movant’s claim is nonfrivolous. E. g., Ellis v. Maine, 448 F. 2d 1325 (CA1 1971); United States ex rel. Buford v. Henderson, 524 F. 2d 147 (CA2 1975); United States v. Shoaf, 341 F. 2d 832 (CA4 1964); United States v. Herrera, 474 F. 2d 1049 (CA5 1973); Hoover v. United States, 416 F. 2d 431 (CA6 1969); United States ex rel. Nunes v. Nelson, 467 F. 2d 1380 (CA9 1972) (habeas corpus); Taylor v. United States, 238 F. 2d 409 (CA9 1956) (§ 2255 motion); Hines v. Baker, 422 F. 2d 1002 (CA10 1970). This opinion and other aspects of this question were thoroughly discussed shortly after the 1965 amendment to § 753 (f) in" }, { "docid": "22728627", "title": "", "text": "appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. . . .” The statute thus provides for a free transcript for indigent prisoners asserting a claim under § 2255 if a judge certifies that the asserted claim is “not frivolous” and that the transcript is “needed to decide the issue.” The District Court, by its conclusion that respondent failed to state a claim upon which relief could be granted, implicitly decided one of these two issues against respondent. The Court of Appeals held that it was not necessary to declare § 753 (f) unconstitutional in order to grant respondent relief. Rather, the court held that the section “does not prohibit courts from . . . requiring the government to supply an imprisoned indigent with a free transcript before he files a § 2255 motion. Such a court order would simply fill a constitutional deficit not addressed by the statute.” (Emphasis added.) 511 F. 2d, at 1119-1120. This is a novel approach to statutory construction. The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress. Reeside v. Walker, 11 How. 272, 291 (1851). This particular statute contains a limited grant of authority to the courts to authorize the expenditure of public funds for furnishing transcripts to plaintiffs in § 2255 actions. The fact that the statute does not “prohibit” the furnishing of free transcripts in other circumstances is of little significance, since most such statutes speak only in terms of granting authority for the expenditure of federal funds. Where Congress has addressed the subject as it has here, and authorized expenditures where a condition is met, the clear implication is that where the condition is not met, the expenditure is not authorized. Botany Mills v. United States, 278 U. S. 282, 289 (1929); Passenger Corp. v. Passengers Assn., 414 U. S. 453, 458 (1974). It" }, { "docid": "22728624", "title": "", "text": "Mr. Justice Rehnquist announced the judgment of the Court in an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Powell join. This case presents the question of whether the restrictions imposed by 28 U. S. C. § 753 on the availability to an indigent prisoner of a free trial transcript to aid him in preparing a petition for collateral relief are consistent with the Fifth Amendment to the Constitution. The Court of Appeals for the Ninth Circuit, in contrast to every other Court of Appeals which has ruled on the issue, held that such prisoners have an absolute right to a transcript. We reverse. I Respondent was convicted of uttering forged currency in violation of 18 U. S. C. § 472 after a jury trial in the United States District Court for the Western District of Washington. On June 3, 1970, he was sentenced to 10 years’ imprisonment. He did not appeal. Nearly two years later respondent, acting pro se, filed in the District Court a paper designated “Motion for Transcript in Forma Pauperis.” This was returned to respondent with the advice that he first had to file a motion pursuant to 28 U. S. C. § 2255 before the court could act on his request for a transcript. Respondent then filed a “complaint for Declaratory Judgment and Injunctive Relief” in which he alleged that he “intends to move this Court for vacation of his sentence pursuant to 28 U. S. C. § 2255.” He asserted that he was unable to afford a transcript, that a transcript would show that he had not been afforded effective assistance of counsel, and that there was insufficient evidence to support the verdict of guilty. The complaint further alleged that without a transcript respondent would be “unable to frame his arguments for fair and effective review.” The complaint did not elaborate upon respondent’s two asserted grounds for relief. The District Court treated this pleading as a motion under 28 U. S. C. § 2255, granted respondent leave to proceed in forma pauperis, appointed counsel, and held a hearing. After the" }, { "docid": "12822900", "title": "", "text": "people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’ Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716. See also Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220.” Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 589 (1956). As we have pointed out above, however, past precedent in our court requires a prior showing of need. In these past cases, as well as in the present one, we were and are confronted by a flat statutory requirement of an existing case and issue and á showing of need for the transcript to decide that issue. “Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. * * * ” 28 U.S.C. § 753(f) (Supp. V 1965-69). We conclude that if the Supreme Court desires now to hold that a prior showing of need cannot constitutionally be made a requisite for a free transcript for an indigent who desires to file a § 2255 petition, this case affords a wholly appropriate vehicle to do so. If this decision is made affirmatively, Congressional appropriations will be required to finance some considerable expansion of the reportorial and stenographic services available to the District Courts. Our Circuit can, of course, decide the right to transcripts. But under the existing shortage of reportorial and secretarial services in this Circuit, we cannot deliver many of them. It seems appropriate to us under these circumstances to adhere to this Circuit’s past decisions until and unless the Supreme Court invalidates on constitutional grounds the existing issue and need requirements of the statute set forth above. The judgment of the District" }, { "docid": "22728639", "title": "", "text": "than a similarly situated prisoner of some, but not unlimited, means, who presumably would make an evaluation much like that prescribed in § 753 (f) before he spent his own funds for a transcript. “[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Ross v. Moffitt, 417 U. S., at 616. The judgment of the Court of Appeals for the Ninth Circuit is Reversed. Our Brother SteveNs would construe the pertinent part of § 753 (f) to “make transcripts available almost automatically in § 2255 proceedings . . . post, at 338. We think such a construction would do violence to the intent of Congress which clearly appears from the language of that section, supra, at 320. Congress did in that section make transcripts available automatically on direct appeal, but in the same section limited their availability in § 2255 motions to cases where the trial judge certifies that the § 2255 suit is not frivolous and that the transcript is needed to decide the issue presented by the suit. Our Brother Stevens advances what may well be very sound policy reasons for furnishing free transcripts as a matter of course to § 2255 plaintiffs, as well as to convicted defendants pursuing direct appeals. But it is plain from a reading of § 753 (f) that these considerations have not yet commended themselves to Congress. The difference is not as great as it might appear to be, however, because habeas corpus petitioners who wish to proceed in forma pauperis must still overcome a “nonfrivolous” barrier under 28 U. S. C. § 1915. E. g., Kitchens v. Alderman, 376 F. 2d 262 (CA5 1967); Blair v. California, 340 F. 2d 741 (CA9" }, { "docid": "8831561", "title": "", "text": "appeal, id. at 323-25, 96 S.Ct. at 2090-91 (plurality), stressed that § 753(f) does not require that a petitioner prove that his claim is valid, but only requires the threshold showing that the claim is not frivolous. Id. at 326, 96 S.Ct. at 2092 (plurality). The Court surmised that a petitioner should be able to meet such a low standard without the aid of a transcript: The usual grounds for successful collateral attack upon convictions arise out of occurrences outside of the courtroom or of events in the courtroom of which the defendant was aware and can recall without the need of having his memory refreshed by reading a transcript. He may well have a need of a transcript [to support his claim] but rarely, if ever, ... to become aware of the events or occurrences which constitute a ground for collateral attack. Id. at 327-28, 96 S.Ct. at 2092-93 (plurality) (quoting U.S. v. Shoaf, 341 F.2d 832, 835 (4th Cir.1964)). The plurality thus held that “the fact that a transcript was available had respondent chosen to appeal from his conviction, and remained available on the conditions set forth in § 753 to an indigent proceeding under § 2255, afforded respondent an adequate opportunity to attack his conviction.” Id. at 328, 96 S.Ct. at 2093 (plurality). As it is clear that the conditions of § 753(f) are valid, this Court must now determine whether Fabian has met those conditions. The very first condition is that the transcript is to be “furnished in proceedings brought under section 2255.” 28 U.S.C. § 753(f). Although Fabian has indicated that he intends to file a § 2255 petition, he has not yet instituted such an action. In and of itself, the premature timing of Fabian’s request for a transcript would be sufficient for a denial. See U.S. v. Losing, 601 F.2d 351, 352 (8th Cir.1979); see also MacCollom, 426 U.S. at 319, 96 S.Ct. at 2088. The other conditions imposed by § 753(f) are that “the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by" }, { "docid": "23441220", "title": "", "text": "FER CURIAM. On November 29,1978, Russell Losing, Jr. filed in the district court a “Motion for the ‘Pre-Existing’ Records and Transcripts under 28 U.S.C. § 753(b).” The district court denied the motion for the reason that “any request for a full transcript prior to the filing of a § 2255 complaint is premature.” Losing filed a timely notice of appeal and was granted leave to appeal in forma pau-peris by the district court. This court has previously ruled adversely to Losing on this issue. See United States v. Losing, 584 F.2d 289, 290 (8th Cir. 1978) (Losing II). We affirm the district court. Losing’s conviction is summarized in a prior opinion of this court. Appellant Russell Losing, Jr., was convicted by a jury of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1976), possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1976), and four counts of use of the telephone to facilitate distribution of heroin in violation of 21 U.S.C. § 843 (1976) and 18 U.S.C. § 2 (1976). The trial judge sentenced Losing to a total of fif teen years’ imprisonment to be followed by a five-year special parole period. This court affirmed the convictions on appeal. United States v. Losing, 560 F.2d 906 (8th . Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977) [Losing I]. Losing II, supra, 584 F.2d at 290. Losing II was the consolidated appeal of two orders of the district court denying motions filed by Losing. One of the motions denied is substantially identical to the motion presently before the Court. The court disposed of the matter as follows: Losing seeks a transcript to aid him in the preparation of a claim for postconviction relief under 28 U.S.C. § 2255. He states in his brief that he has not yet filed such a claim. Under 28 U.S.C. § 753(f) (1970), transcripts may be furnished without charge to indigent persons “in proceedings brought under [28 U.S.C.] section 2255 * * * if the trial judge or a circuit judge certifies that the" }, { "docid": "22728633", "title": "", "text": "considerable assistance in resolving respondent’s equal protection claim. Respondent in this case had an opportunity for direct appeal, and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings. But having forgone that right, and instead some years later having sought to obtain a free transcript in order to make the best case he could in a proceeding under § 2255, respondent stands in a different position. The Court has held that when a State grants a right to collateral review, it may not deny the right to an indigent simply because of inability to pay the required filing fee, Smith v. Bennett, 365 U. S. 708 (1961). There is no such impediment here; respondent was permitted to proceed in forma pauperis in his § 2255 action. The Court has also held that a State may not confide to the public defender the final decision as to whether a transcript shall be available to the criminal defendant who collaterally attacks his conviction, Lane v. Brown, 372 U. S. 477 (1963). There the Court observed that the state provision “confers upon a state officer outside the judicial system power to take from an indigent all hope of any appeal at all.” Id., at 485. The congressional statute governing the furnishing of free transcripts to plaintiffs in § 2255 actions has no such infirmity. The decision as to the provisions of the transcript at public expense is made initially by an official at the very heart of the judicial system — a district judge in the judicial district in which the § 2255 plaintiff was tried. The district court has the power to order a free transcript furnished if it finds that the “suit ... is not frivolous and that the transcript is needed to decide the issue presented . . . .” 28 U. S. C. § 753 (f). We think that the formula devised by Congress satisfies the equal protection component of the Fifth Amendment. Respondent chose to forgo his opportunity for direct appeal with its attendant unconditional free transcript. This choice" }, { "docid": "3485327", "title": "", "text": "ORDER Petitioners Hoover and Norris, on the 25th of September, 1967, after a full hearing plead guilty to a charge of breaking and entering a federal post office and passing counterfeit money in violation of 18 U.S.C. §§ 2115 and 2. The sentences of each of them were to run on their concurrent convictions for nine years. No appeals were taken on any of the four separate convictions. In June, 1969, motions were filed by Petitioners in the United States District Court for the Western District of Tennessee in forma pauperis seeking trial and hearing transcripts in order to frame a motion to vacate sentence under 28 U.S.C. § 2255. The District Court denied motions to allow a transcript at Government expense for the reason there was no proceeding pending before the Court. In these actions Petitioners are appealing the denial of their motions for a transcript to aid them in preparing a motion under 28 U.S.C. § 2255. They allege that (1) they will file a motion under 28 U.S.C. § 2255 although one is not now pending, (2) they believe there have been specific substantive violations of their rights and (3) they require their transcripts to better frame a § 2255 motion. In general, a federal prisoner is not entitled under 28 U.S.C. §§ 753(f) and 1915 to obtain such a transcript at government expense for the purpose of preparing a case pursuant to 28 U.S.C. § 2255. Ketcherside v. United States, 317 F.2d 807 (6th Cir. 1963); Dorsey v. United States, 333 F.2d 1015 (6th Cir. 1964). However, where the petitioner seeking a transcript has stated the reasons why he believes his conviction is contrary to law and a transcript is indispensable to the filing of a motion, then it may be granted at the government's expense. See United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964); United States v. Glass, 317 F.2d 200 (4th Cir. 1963). Neither specific grounds of relief nor indispensability of the transcript is alleged here. Finally, it should be noted that the present actions are dissimilar to Gardner v. California, 393" }, { "docid": "22728657", "title": "", "text": "the ineptitude of his appointed counsel. I recognize that my view does not reflect a necessary reading of the statute as applied to respondent's § 2255 motion, but it certainly is permissible to rule as a matter of law that his allegations are sufficient to plead a non-frivolous claim that cannot be resolved without a transcript. Such a ruling would have the added virtue of avoiding the constitutional issue discussed in Part III of the plurality’s opinion. Cf. United States v. Jin Fuey Moy, 241 17. S. 394, 401. On balance, I would therefore affirm the judgment of the Court of Appeals for the Ninth Circuit. 28 U. S. C. §753 (f); 18 U. S. C. §§3006A (a), .(c), (d)(6). The provision for free transcripts in § 2255 cases was added in 1965 by Pub. L. 89-167, 79 Stat. 647, which followed verbatim a proposal of the Judicial Conference in 1961. Report of the Judicial Conference of the United States, Proceedings 100-101 (1961). The primary purpose of the amendment was to make transcripts as available to indigent federal prisoners on § 2255 motions as on habeas corpus. See H. R. Rep. No. 133, 89th Cong., 1st Sess. (1965); S. Rep. No. 617, 89th Cong., 1st Sess. (1965); 111 Cong. Rec. 5000 (1965) (remarks of Rep. Celler); id., at 20828-20829. The legislative sources do not discuss what standards should be applied in determining nonfrivolousness and need. Specifically, the legislative history does not address the question whether federal prisoners are required to make a stronger showing of nonfrivolousness and need on § 2255 motions than on habeas corpus. Although § 753 (f) expressly requires certification of nonfrivo-lousness and need only in § 2255 cases, it requires prior leave to proceed in forma pauperis in both habeas corpus and § 2255 proceedings. This requirement, in turn, imports the requirement of nonfrivolousness contained in 28 U. S. C. §1915 (d). The legislative history contains no indication that the standard of nonfrivo-lousness for § 2255 cases was to be any stronger than that imposed by § 1915 (d). See Blackmun, Allowance of In Forma Pauperis" }, { "docid": "22728626", "title": "", "text": "hearing the court dismissed the complaint for failure to state a claim upon which relief could be granted. Respondent appealed, and a divided panel of the Court of Appeals reversed, 511 F. 2d 1116 (1974), holding that respondent was entitled to a transcript “in order to assist him in the preparation of a post-conviction motion under 28 U. S. C. [§] 2255.” Id., at 1124. II Congress has expressly addressed the question of furnishing transcripts at public expense in 28 U. S. C. § 753 (f), which provides in pertinent part: “Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U. S. C. [§] 3006A)) or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pau-peris shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. . . .” The statute thus provides for a free transcript for indigent prisoners asserting a claim under § 2255 if a judge certifies that the asserted claim is “not frivolous” and that the transcript is “needed to decide the issue.” The District Court, by its conclusion that respondent failed to state a claim upon which relief could be granted, implicitly decided one of these two issues against respondent. The Court of Appeals held that it was not necessary to declare § 753 (f) unconstitutional in order to grant respondent relief. Rather, the court held that the section “does not prohibit courts from . . . requiring the government to supply an imprisoned indigent with a free transcript before he files a § 2255 motion. Such a court order would simply fill a constitutional deficit not addressed by" } ]

[ { "docid": "22788238", "title": "", "text": "appeal. DISCUSSION When we review the grant of a motion to dismiss under Rule 9(b) or Rule 12(b)(6), we accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader. IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1062 (2d Cir. November 19,1993). Dismissal under either rule is proper where the plaintiff cannot recover on the facts he has alleged. See Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984). I. The Rule 10b-5 Claims The district court dismissed the Rule 10b-5 securities fraud claims on the grounds that the plaintiffs: (1) had not pled fraud with particularity under Rule 9(b), and (2) had not alleged facts that gave rise to a strong inference of fraudulent intent. Rule 10b-5 proscribes persons from making untrue or misleading statements of material fact in connection with a securities transaction. Employment contracts promising shares as compensation are generally considered securities transactions within Rule 10b-5. See Dubin v. E.F. Hutton Group Inc., 695 F.Supp. 138, 146-47 (S.D.N.Y.1988). A person who promises to perform a specific act in the' future, while secretly intending not to perform, violates Rule 10b-5, provided that the promise is given as consideration for the transfer of securities. Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986). A Rule 10b-5 plaintiff must comply with Rule 9(b), which requires that fraud be pled with particularity. Specifically, the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). A. Walsh, Miles and Mello The fraud allegations of Walsh, Miles and Mello fail because, even though these plaintiffs have served an original and two amended complaints, they still have not linked the alleged fraudulent statements to particular Directors. Rule 9(b) is not satisfied where the complaint vaguely attributes the alleged fraudulent statements to “defendants”. Luce, 802 F.2d at 54. See DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242," } ]

[ { "docid": "9581751", "title": "", "text": "§ 1961(1). Because the RICO complaint alleges fraud as its predicate acts, it is governed in part by the strict pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) provides that “[i]n all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity. Malice, intent, knowledge, and other condition of mind may be averred generally.” Fed.R.Civ.P. 9(b). Rule 9(b) is thus an exception to the general policy of the federal rules, which require plaintiffs only to set forth “a short and plain statement” of a claim sufficient to give the opposing party notice. Fed.R.Civ.P. 8. To satisfy the requirements of Rule 9 with respect to their fraud allegations, plaintiffs must, at a minimum, “(1) specify the statements that [they] contend[] were fraudulent, (2) identify the speaker, (3) state where and the statements were made, and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993) (citing Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989)). Although Rule 9 does relax its particularity requirement with respect to allegations of malice, intent and knowledge, plaintiffs must still allege facts that “give rise to a strong inference of fraudulent intent.” Shields v. Citytrust Bancorp, 25 F.3d 1124, 1128 (2d Cir.1994). The requisite “strong inference” may be established “either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. Under the “conscious behavior” approach, however, “the strength of the circumstantial allegations must be correspondingly greater.” Beck v. Manufacturers Hanover Trust, 820 F.2d 46, 50 (2d Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). a. Mail and Wire Fraud To state a claim of mail fraud under 18 U.S.C. § 1341 or wire fraud under 18 U.S.C. § 1343, a complaint must allege “(1) a scheme or artifice to defraud or to obtain money by means of false pretenses, representations, or promises; (2) use of the mails [or wires] for the" }, { "docid": "22157475", "title": "", "text": "divest its positions in such a market, (iii) that Morgan would assist Eternity in such a liquidation, and that (iv) Morgan failed to provide secondary-market pricing for the swaps on five to six occasions in October and November 2001. A. Fraud To state a claim for fraudulent misrepresentation under New York law “a plaintiff must show that (1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a re- suit of such reliance.” Banque Arabe et Internationale D’Investissement v. Md. Nat’l Bank, 57 F.3d 146, 153 (2d Cir.1995). Fraud must be pled with particularity, Fed.R.Civ.P. 9(b), which requires that the plaintiff “(1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Harsco, 91 F.3d at 347. We agree with the district court that Eternity fails • adequately to plead scienter. See Eternity II, -2003 WL 21305355, at *2-3. Although “[m]alice, intent, knowledge and other condition of mind of a person may be averred generally,” Fed R. Civ. P. 9(b), this leeway is not a “license to base claims of fraud on speculation and conclusory allegations.” Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995) (internal quotation marks and citation omitted). “[P]laintiffs must allege facts that give rise to a strong inference of fraudulent intent,” which may be established “either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). Eternity asserts that Morgan knew that its representations about a secondary market were false when they were made eight months prior to Eternity’s purchase of the disputed credit default swaps. But what is lacking are “particularized facts to support the inference .that the defendants acted recklessly" }, { "docid": "22355984", "title": "", "text": "F.3d 1124, 1127 (2d Cir.1994). When the complaint contains allegations of fraud, however, Fed.R.Civ.P. 9(b) requires that “the circumstances constituting fraud ... be stated with particularity.” We have stated that “the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993). Rule 9(b) also states that “[m]aliee, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). Because Rule 9(b) is intended “to provide a defendant with fair notice of a plaintiffs claim, to safeguard a defendant’s reputation from ‘improvident charges of wrongdoing,’ and to protect a defendant against the institution of a strike suit,” O’Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991), we must not mistake the relaxation of Rule 9(b)’s specificity requirement regarding condition of mind for a “license to base claims of fraud on speculation and conclusory allegations,” Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir.1990). Accordingly, plaintiffs must allege facts that give rise to a strong inference of fraudulent intent. Shields, 25 F.3d at 1128; accord Mills, 12 F.3d at 1176; O’Brien, 936 F.2d at 676; Ouaknine v. MacFarlane, 897 F.2d 75, 80 (2d Cir.1990). “The requisite ‘strong inference’ of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields, 25 F.3d at 1128. “To state a cause of action under Rule 10b-5, a plaintiff must plead that ‘in connection with the purchase or sale of securities, the defendant, acting with scienter, made a false material representation or omitted to disclose material information and that plaintiff’s reliance on defendant’s action caused [plaintiff] injury.’ ” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 264 (2d Cir.1993) (quoting Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985))," }, { "docid": "21291485", "title": "", "text": "v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir.2006) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). “The primary purpose of Rule 9(b) is to afford defendant fair notice of the plaintiffs claim and the factual ground upon which it is based.” Novak v. Kasaks, 216 F.3d 300, 314 (2d Cir.2000) (quoting Ross v. Bolton, 904 F.2d 819, 823 (2d Cir.1990)). Rule 9(b) further provides that “[mjalice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). The Second Circuit has cautioned, however, that because “we must not mistake the relaxation of Rule 9(b)’s specificity requirement regarding condition of mind for a license to base claims of fraud on speculation and conclusory allegations^] ... plaintiffs must allege facts that give rise to a strong inference of fraudulent intent.” Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995) (internal quotation marks and citation omitted). See also Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 187 (2d Cir.2004) (“this leeway is not a ‘license to base claims of fraud on speculation and conclusory allegations’ ”) (quoting Acito, 47 F.3d at 52). “The requisite ‘strong inference’ of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). In addition, even with respect to claims other than fraud, the Supreme Court has recently stiffened the pleading standards under the Federal Rules. For many years, federal courts, relying on the statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” had denied motions to dismiss where any conceivable set of facts consistent with" }, { "docid": "8239174", "title": "", "text": "Federal Rules of Civil Procedure requires that the circumstances constituting fraud or mistake shall be stated with particularity. Fed.R.Civ.P. 9(b). However, “[m]alice, intent, knowledge, and other conditions of mind of a person’s mind may be alleged generally.” Id. The rule is “intended to ensure that each defendant is provided with reasonable detail concerning the nature of his particular involvement in the alleged fraud.” The Equitable Life Assurance Society v. Alexander Grant & Co., 627 F.Supp. 1023, 1028 (S.D.N.Y.1985). Fraud allegations in a complaint therefore must: “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Although the scienter requirement need not be plead with particularity, “[i]n order to avoid abuse ... plaintiffs are required to allege facts that give rise to a strong inference of fraudulent intent.” Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 663 (2d Cir.1997) (internal quotation marks and citations omitted). The requisite “strong inference” of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Shields, 25 F.3d at 1128. In cases involving multiple defendants, Rule 9(b) requires that the pleading identify the nature of each defendant’s participation in the alleged fraud. DiVittorio v. Equidyne Extractive Industries, 822 F.2d 1242, 1247 (2d Cir.1987); Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986). 12(e) Standard Rule 12(e) allows for an order requiring a more definite statement when the pleading is so vague that the opposing party cannot reasonably be required to respond. Whether to grant a motion for a more definite statement is in the discretion of the court. 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1377 (2d ed. 1990); see also Vaden v. Lantz, 459 F.Supp.2d 149, 150 (D.Conn.2006). For a more definite statement to be warranted, the complaint" }, { "docid": "13280068", "title": "", "text": "All allegations except those relating to Corzon are dismissed as to the DCI defendants. IY. Scienter Defendants’ argument that plaintiffs failed to plead scienter adequately is now moot with respect to all of the allegations except the Corzon allegations. The DCI Defendants’ motion to dismiss for failure to plead the Corzon allegations adequately is denied. To state a prima facie case of securities fraud, plaintiffs must allege (1) material representation or omission; (2) made with scienter; (3) upon which plaintiffs relied; and (4) which proximately caused plaintiffs’ injuries. Kalnit v. Eichler, 264 F.3d 131 (2d Cir.2001); Acito, 47 F.3d at 52; Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1127-28 (2d Cir.1994). Plaintiffs must also meet the requirements of Rule 9(b), which states that “the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b). Under Rule 9(b), however, “[m]alice, intent, knowledge and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). This somewhat more relaxed pleading requirement “must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.” Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir.1990). The Private Securities Litigation Reform Act, (“PSLRA”), requires that plaintiffs set forth each allegedly misleading statement and explain why it is misleading. To state a claim with the required particularity, a complaint “must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the fraudulent statements were made, and (4) explain why the statements were fraudulent.” Stevelman v. Alias Research Inc., 174 F.3d 79, 83 (2d Cir.1999) (quoting Acito, 47 F.3d at 51) (internal citation omitted). To plead scienter, plaintiffs must establish a “strong inference of fraudulent intent.” Chill, 101 F.3d at 267 (emphasis in original); see also Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001). The inference may be established either by (a) alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Chill, 101 F.3d at 267 (citing" }, { "docid": "9851651", "title": "", "text": "7009. To satisfy these requirements, the securities fraud plaintiff must specify the statements that he contends were fraudulent, identify the speaker, state where and when the statements were made, and explain why the statements were fraudulent. Stevelman v. Alias Research, Inc., 174 F.3d 79, 84 (2d Cir.1999); Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir.1995). In addition, the complaint must allege facts giving rise to a strong inference of scienter — viz., intent to defraud. See 15 U.S.C. § 78u 4(b)(2); Novak v. Kasaks, 216 F.3d 300, 307 (2d Cir.2000). The plaintiff may satisfy this requirement by (1) alleging facts showing the defendant’s motive and opportunity to commit fraud, or (2) alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001); Acito v. IMCERA Group, Inc., 47 F.3d at 52; Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Allegations of motive must show that the defendant hoped to realize personal, concrete benefits from the fraud, as opposed to the general benefits that inure to all corporate executives. Kalnit v. Eichler, 264 F.3d at 139. “Opportunity” is shown by “means and likely prospect of achieving concrete benefits by the means alleged.” BRS Assocs., L.P. v. Dansker, 246 B.R. 755, 768 (S.D.N.Y.2000)(quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d at 1129). The Complaint adequately pleads motive. Gregg knew the SSOL Warrants were worth more than he told the Committee and the debtor. He initially negotiated to buy them for himself and his father. WAP ultimately made the purchase, paying $3,525,000.00 for $20 million worth of SSOL Warrants, but Gregg owned a substantial percentage of WAP. Thus, he stood to gain a significant personal benefit from the sale. In addition, the Complaint adequately pleads opportunity. As a member of the Committee, Gregg was aware of the debt- or’s and the Committee’s desire to sell the securities, and became a prime mover. He provided inaccurate information regarding their value, and then made an extremely low offer. After he won the telephonic auction, WAP drafted the sale" }, { "docid": "14419726", "title": "", "text": "3. Rule 9(b) Rule 9(b) requires that “in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R.Civ.P. 9(b). A complaint alleging violations of Section 10(b) and Rule 10b-5 must satisfy the particularity requirement set forth in Rule 9(b). See Stevelman v. Alias Research, Inc., 174 F.3d 79, 84 (2d Cir.1999) (citing Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir.1982)). The complaint must “ ‘(1) specify the statements that plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Novak v. Kasaks, 216 F.3d 300, 306 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993))). Rule 9(b) also provides that “malice, intent, knowledge, and other condition of mind may be averred generally.” Fed. R.Civ.P. 9(b). The Court of Appeals in Shields noted that: Since Rule 9(b) is intended “to provide a defendant with fair notice of a plaintiffs claim, to safeguard a defendant’s reputation from improvident charges of wrongdoing, and to protect a defendant against the institution of a strike suit ..., the relaxation of Rule 9(b)’s specificity requirement for scienter ‘must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.’ ” Shields, 25 F.3d at 1128 (internal citations omitted). Therefore, to give meaning to the overall purpose of Rule 9(b), a fraud plaintiff must “allege facts that give rise to a strong inference of fraudulent intent.” The Private Securities Litigation Reform Act of 1995 (“PSLRA”) also adopts this heightened pleading standard for scienter in securities fraud actions. See 15 U.S.C. § 78u-4(b)(l) (setting out the requirements for pleading securities fraud actions, including the requirement that a complaint “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind”). Chill v. Gen. Elec. Co., 101 F.3d 263, 267 (2d Cir.1996) (quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995)). Read" }, { "docid": "22811953", "title": "", "text": "the very least these fact[s] sufficiently plead a cause of action for negligence”). Accordingly, we vacate the judgment of the district court to the extent that it dismissed the plaintiffs’ claims for negligence against a defendant bank in which his, her, or its funds were deposited. III. Fraud Federal Rule of Civil Procedure 9(b) sets forth a heightened pleading standard for allegations of fraud: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” We have explained that in order to comply with Rule 9(b), “the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993). Under Rule 9(b), “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed. R.Civ.P. 9(b). But because “we must not mistake the relaxation of Rule 9(b)’s specificity requirement regarding condition of mind for a license to base claims of fraud on speculation and conclusory allegations^] ... plaintiffs must allege facts that give rise to a strong inference of fraudulent intent.” Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995) (internal quotation marks and citation omitted). “The requisite ‘strong inference’ of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). A. Fraudulent Misrepresentation Under New York law, “[t]o state a cause of action for fraud, a plaintiff must allege a representation of material fact, the falsity of the representation, knowledge by the party making the representation that it was false when made, justifiable reliance by the plaintiff and resulting injury.” Kaufman v. Cohen, 307 A.D.2d 113, 119, 760 N.Y.S.2d 157, 165 (1st Dep’t 2003). Only one plaintiff, Regal Trade, has alleged an affirmative representation that it relied" }, { "docid": "22157476", "title": "", "text": "adequately to plead scienter. See Eternity II, -2003 WL 21305355, at *2-3. Although “[m]alice, intent, knowledge and other condition of mind of a person may be averred generally,” Fed R. Civ. P. 9(b), this leeway is not a “license to base claims of fraud on speculation and conclusory allegations.” Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995) (internal quotation marks and citation omitted). “[P]laintiffs must allege facts that give rise to a strong inference of fraudulent intent,” which may be established “either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). Eternity asserts that Morgan knew that its representations about a secondary market were false when they were made eight months prior to Eternity’s purchase of the disputed credit default swaps. But what is lacking are “particularized facts to support the inference .that the defendants acted recklessly or with fraudulent intent.” Shields, 25 F.3d at 1129. The fact that Morgan could not arrange to market the CDSs in October and November 2001-does not support an inference that Morgan knew or believed that no such market existed eight months earlier. We have repeatedly held that such conclusory allegations do not satisfy Rule.9(b).. B. Negligent Misrepresentation It is well-settled under New York law that “words as well as acts may serve as the premise for a negligence action.” Heard v. City of New York, 82 N.Y.2d 66, 73, 603 N.Y.S.2d 414, 623 N.E.2d 541 (1993). But misstatements are actionable only if the defendant is “under a duty to the plaintiff to exercise reasonable care in giving the information, and plaintiffs’ reliance upon the information [is] foreseeable.” Id. at 74, 603 N.Y.S.2d 414, 623 N.E.2d 541. There “ ‘must be knowledge or -its equivalent’ ” on the defendant’s part “ ‘that the information is desired for a serious purpose,’ ” that the plaintiff intends to “ ‘rely and act upon it,’ ” and that if" }, { "docid": "19283170", "title": "", "text": "Chem. Bank, 818 F.2d 240, 251 (2d Cir.1987). Pursuant to Rule 9(b) “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). The Second Circuit has stated that the complaint must: “(1) detail the statements (or omissions) that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) were fraudulent.” Harsco Corp. v. Segui, 91 F.3d 337, 347 (2d Cir.1996) (citations omitted). Although the second part of Rule 9(b) permits scienter to be pleaded generally, the pleader must “allege facts that give rise to a strong inference of fraudulent intent.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (citation omitted); see also The Responsible Pers. of Musicland Holding Corp. v. Best Buy Co., Inc. (In re Musicland Holding Corp.), 398 B.R. 761, 773 (Bankr.S.D.N.Y.2008). Plaintiffs may not allege “fraud by hindsight.” See Shields, 25 F.3d at 1129 (quoting Denny v. Barber, 576 F.2d 465, 470 (2d Cir.1978) (Friendly, J.)). A strong inference of fraudulent intent “may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. at 1128; accord ATSI Commc’ns, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). The purpose of Rule 9(b) is to further three goals: “(1) providing a defendant fair notice of plaintiffs claim, to enable preparation of defense; (2) protecting a defendant from harm to his reputation or goodwill; and (3) reducing the number of strike suits.” Di Vittorio v. Equidyne Extractive Indus. Inc., 822 F.2d 1242, 1247 (2d Cir.1987) (citation omitted). For claims brought by a bankruptcy trustee, “courts take a more liberal view when examining allegations of actual fraud ... in the context of a fraudulent conveyance, since a trustee is an outsider to the transaction who" }, { "docid": "22586512", "title": "", "text": "(2d Cir.1982). Although it is true that Rule 9(b) also provides that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally,” it is well established that a plaintiff must still “allege facts that give rise to a strong inference of fraudulent intent.” Chill, 101 F.3d at 267 (emphasis in original) (quoting Acito v. IMC-ERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995)). To state a claim with the required particularity, a complaint “must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Acito, 47 F.3d at 51 (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). In this case, the District Court ruled that Stevelman’s complaint satisfied the first three prongs of the Mills test, but failed to allege facts answering the “why” prong, that is, the complaint failed to allege facts giving rise to a “strong inference” of fraudulent intent. In this Circuit, a complaint may establish the requisite “strong inference” of fraudulent intent either (a) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness, or (b) by alleging facts to show that defendants had both motive and opportunity to commit fraud. See Chill, 101 F.3d at 267 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). Either set of allegations will suffice to satisfy the necessary scienter element of a securities fraud claim. See Acito, 47 F.3d at 53. A. Conscious Misbehavior or Recklessness Stevelman argues that Alias’s disregarding of GAAP and industry standards in its financial reporting is itself strong circumstantial evidence of conscious misbehavior or recklessness. But this may not, in itself, be sufficient: “Allegations of a violation of GAAP provisions or SEC regulations, without corresponding fraudulent intent, are not sufficient to state a securities fraud claim.” Chill, 101 F.3d at 270; see also SEC v. Price Waterhouse, 797 F.Supp. 1217, 1240 (S.D.N.Y.1992) (noting that recklessness standard in securities fraud action “requires more than a misapplication of accounting" }, { "docid": "9851650", "title": "", "text": "the value of the Underwriter’s Warrant prior to the auction, or that the debt- or’s and Committee’s professionals did not rely on the Charts. (See Gregg’s Memorandum 28.) Joe Fair told Ken Rickel that the number of warrants exceeded what the Motion Chart showed, but Ken Rickel believed that this meant that the debtor owned more SSOL warrants than it was selling to WAP. (Report 34.) In addition, the professionals were not able to confirm the number and strike price of the Underwriter’s Warrant, despite their efforts, and this may simply indicate that the information was not as easily obtainable as Gregg now suggests. Finally, the Examiner concluded that securities fraud claims exist against Gregg, notwithstanding his findings. (Id. at 50.) In short, the Report does not establish the absence of reasonable reliance as a matter of law. iii. Failure to Plead with Particularity Next, Gregg argues that the first claim fails to plead fraud with particularity, as required by Section 21D of the 1934 Act and Fed.R.Civ.P. 9(b), made applicable by Fed. R. Bankr.P. 7009. To satisfy these requirements, the securities fraud plaintiff must specify the statements that he contends were fraudulent, identify the speaker, state where and when the statements were made, and explain why the statements were fraudulent. Stevelman v. Alias Research, Inc., 174 F.3d 79, 84 (2d Cir.1999); Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir.1995). In addition, the complaint must allege facts giving rise to a strong inference of scienter — viz., intent to defraud. See 15 U.S.C. § 78u 4(b)(2); Novak v. Kasaks, 216 F.3d 300, 307 (2d Cir.2000). The plaintiff may satisfy this requirement by (1) alleging facts showing the defendant’s motive and opportunity to commit fraud, or (2) alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001); Acito v. IMCERA Group, Inc., 47 F.3d at 52; Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Allegations of motive must show that the defendant hoped to realize personal, concrete benefits from the fraud, as opposed" }, { "docid": "21511526", "title": "", "text": "L.P. v. Bear, Stearns & Co., 17 F.Supp.2d 275, 285-86 (S.D.N.Y.1998). See O’Brien v. Price Waterhouse, 740 F.Supp. 276, 279 (S.D.N.Y.1990), aff'd, 936 F.2d 674 (2d Cir.1991). To satisfy Rule 9(b)’s pleading requirements “ ‘a complaint must allege with some specificity the acts constituting fraud ... conclusory allegations that defendant’s conduct was fraudulent or deceptive are not enough.’ ” Silverman v. Actrade Capital, Inc. (In re Aetrade Fin. Techs. Ltd.), 337 B.R. 791, 801 (Bankr.S.D.N.Y.2005) (quoting Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings, Ltd., 85 F.Supp.2d 282, 293 (S.D.N.Y.2000)). Rule 9(b) requires that allegations of fraudulent misrepresentations must “ ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1127-28 (2d Cir.1994) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). While Rule 9(b) provides that “intent ... may be averred generally,” plaintiffs are required “to allege facts that give rise to a strong inference of fraudulent intent.” Shields, 25 F.3d at 1128. The Second Circuit has found that a strong inference of fraudulent intent “may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields, 25 F.3d at 1128. A more liberal standard has been applied to fraud allegations in bankruptcy cases. See, e.g., Nisselson v. Ford Motor Co. (In re Monahan Ford Corp. of Flushing), 340 B.R. 1, 21 (Bankr.E.D.N.Y.2006); Wieboldt Stores, Inc. v. Schottenstein, 94 B.R. 488, 498 (N.D.Ill.1988); Harrison v. Entm’t, Inc. (In re Rave Commc’ns, Inc.), 138 B.R. 390, 396 (Bankr.S.D.N.Y.1992). This is because in such cases, “it is often the trustee, a third party, who is pleading fraud on secondhand information.” Hassett v. Zimmerman (In re O.P.M. Leasing Servs., Inc.), 32 B.R. 199, 202 (Bankr.S.D.N.Y.1983). As one court found, “[s]ince a bankruptcy trustee rarely has personal knowledge of the events preceding his appointment, he can" }, { "docid": "16899110", "title": "", "text": "alleging that the Halls misrepresented their knowledge and experience in the golf industry, plaintiffs claim that defendants misrepresented that (1) there would be an IPO; (2) the $1 million proceeds of the offering would be sufficient to accomplish United Golfs purposes as described in the Offering Memorandum; (3) United Golf would seek out and acquire golf properties; and (4) the proceeds of the plaintiffs’ $1 million investment would be used for the purposes identified in the Offering Memorandum. See Amended Complaint at ¶¶ 16, 18, 52-54. Rule 9(b) requires that in all allegations of fraud, including actions under § 10(b) and Rule 10b-5, the circumstances constituting the fraud must be stated with particularity. With respect to pleading scienter, Rule 9(b) requires that plaintiffs “allege facts that give rise to a strong inference of fraudulent intent.” Chill v. General Elec. Co., 101 F.3d 263, 267 (2d Cir.1996) (citing Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995)). This strong inference of fraudulent intent can be established either (1) “by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness”; or (2) “by alleging facts to show that defendants had both motive and opportunity to commit fraud.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994); see San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 813 (2d Cir.1996); Acito, 47 F.3d at 52. a. Strong Circumstantial Evidence of Fraudulent Intent Plaintiffs do not plead facts that constitute strong circumstantial evidence of the requisite scienter. Indeed, the Complaint is devoid of any facts which even remotely suggest that at the time that the Offering Memorandum was circulated, defendants knew or were reckless in failing to know that any of their statements were false or misleading. Neither plaintiffs’ conelusory allegations of the Halls’ knowledge and intent, nor their averments that some future events discussed in the Offering Memorandum did not come to pass, support an inference of fraud. See generally Shields, 25 F.3d at 1128-29. The sufficiency of plaintiffs’ pleadings under Rule 9(b), therefore, turns on their averments of motive and" }, { "docid": "10950816", "title": "", "text": "the circumstances constituting fraud or mistake shall be stated with particularity,’ an exception to the generally liberal scope of pleadings allowed by Rule 8.” Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986). Rule 9(b) “is intended to ‘provide a defendant with fair notice of a plaintiffs claim, to safeguard a defendant’s reputation from improvident charges of wrongdoing, and to protect a defendant against a strike suit.’” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1127 (2d Cir.1994) (quoting O’Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991)). Ordinarily, allegations of fraud cannot be founded solely “upon information and belief,” except to those matters particularly within the opposing party’s knowledge; in the latter instance, allegations must be accompanied by statements of facts upon which the belief is founded. Luce, 802 F.2d at 54 n. 1. In order to satisfy Rule 9(b), the complaint must “(1) specify the statements that the plaintiff contends were fraudulent; (2) identify the speaker; (3) state where and when the statements were made; and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d at 1175. Although Rule 9(b) allows a plaintiff to allege fraudulent intent generally, a plaintiff must allege facts that give rise to a strong inference of fraudulent intent. Shields, 25 F.3d at 1128. This strong inference can be established either “(a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. Mere nonperformance of contractual agreements does not give rise to an inference of fraudulent intent unless “a defendant violated an agreement so maliciously and so soon after it is made that his desire to do so before he entered into the agreement is evident.” Powers v. British Vita, P.L.C., 57 F.3d 176, 185 (2d Cir.1995). The plaintiff has failed to allege any facts to support its fraud allegations. The plaintiffs fraud claim is based only on the defendants’ failure to fulfill its contractual obligations and “upon information and belief’ that the defendants falsely" }, { "docid": "5244296", "title": "", "text": "of fraud on speculation and conclusory allegations.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Rather, the Second Circuit has explained: “[T]o serve the purposes of Rule 9(b), we require plaintiffs to allege facts that give rise to a strong inference of fraudulent intent.” Id. The PSLRA essentially adopted the Second Circuit’s “strong inference” standard for securities fraud cases. Novak v. Kasaks, 216 F.3d 300, 311 (2d Cir.2000). The statute requires that “the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The requisite state of mind in a securities fraud case is scienter, or fraudulent intent. The Second Circuit has established that a strong inference of fraudulent intent “may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995). 2. Motive and Opportunity As defendants have not contested their opportunity to commit the alleged fraud, the issue is whether plaintiffs have sufficiently pleaded motive. The Sec ond Circuit has explained that motive “entail[s] concrete benefits that could be realized by one or more of the false statements and wrongful nondisclosures alleged.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1130 (2d Cir.1994). “General allegations that the defendants acted in their economic self-interest are not enough.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 170 (2d Cir.2000). In addition, “[m]o-tives that are generally possessed by most corporate directors and officers do not suffice.” Kalnit v. Eichler, 264 F.3d 131, 139 (2d Cir.2001). Plaintiffs argue that defendants’ fraud was motivated by the desire to maximize proceeds from and to facilitate the success of 51job’s September 28, 2004 IPO. PI. Opp. at 20-21. But defendants’ allegedly misleading statements were not made until November 4, 2004 — over a month after the Company’s IPO. Thus, this" }, { "docid": "17922765", "title": "", "text": "fraudulent concealment or omission, where the plaintiff is unable to specify the time and place because no act occurred, the complaint must still allege: (1) what the omissions were; (2) the person responsible for the failure to disclose; (3) the context of the omissions and the manner in which they misled the plaintiff; and (4) what the defendant obtained through fraud.” Soroof Trading Dev. Co. v. GE Fuel Cell Sys., LLC, 842 F.Supp.2d 502, 513 (S.D.N.Y.2012) (quotation marks omitted). A plaintiff must also “allege facts that give rise to a strong inference of fraudulent intent, which may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Eternity Glob. Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir.2004) (citing Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52 (2d Cir.1995), and Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)) (quotation marks omitted). The Court concludes that Catalano has failed to plead facts establishing a strong inference of defendants’ fraudulent intent. As explained below, he has not alleged facts showing either that BMW had a motive and opportunity to commit fraud or facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. First, the FAC never identifies or explains BMW’s motive to commit fraud. To the extent that the FAC could be construed as pleading that BMW acted to increase sales/profits, a generalized motive that could be possessed by any corporate actor or director or officer is insufficient. To adequately plead motive for purposes of Rule 9(b), a plaintiff must allege “concrete benefits that could be realized by one or more of the false statements and wrongful nondisclosures alleged.” Kalnit v. Eichler, 264 F.3d 131, 139 (2d Cir.2001). For instance, “[a] plaintiff must do more than merely charge that executives aim to prolong the benefits of the positions they hold.” Id.; see also Acito, 47 F.3d at 54. Second, the allegations do not provide strong circumstantial evidence" }, { "docid": "11605619", "title": "", "text": "unjust enrichment are equitably tolled. C. Plaintiff’s Claims 1. Fraud Plaintiff alleges that it was: induced to enter into its contract with [defendant], and to deposit U.S. dollars in account No. B35677, upon the representations of [defendant] that these monies were to be repaid in U.S. dollars, and would not have entered into this contract nor deposited this money but for [defendant]^ fraudulent withholding of the fact that it intended to repay the amounts in local currency if that proved more beneficial to [defendant]. (Am.ComplY 23). Defendant argues that plaintiff has failed to satisfy the heightened pleading requirements of Rule 9(b) for claims of fraud. I agree. Rule 9(b) of the Federal Rules of Civil Procedure requires that “[i]n all averments of fraud ..., the circumstances constituting fraud ... shall be stated with particularity.” Fed.R.Civ.P. 9(b). To plead fraud with “particularity,” the amended complaint must: (1) specify the statements that plaintiff contends were fraudulent; (2) identify the speaker; (3) state where and when the statements were made; and (4) explain why the statements were fraudulent. See Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir.1995) (citations omitted). Plaintiff must also allege facts that give rise to a strong inference of fraudulent intent. Id. at 52; see also Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Here, plaintiff has not satisfied any of these elements. (See Am. Compl. ¶¶ 19-26). The amended complaint does not specify what statements were fraudulent. It does not allege who made the allegedly fraudulent statements or who was involved in the allegedly fraudulent conduct. There is no allegation of where or when the statements were made, and plaintiff does not allege facts that give rise to a strong inference of defendant’s fraudulent intent. Moreover, it is well settled under New York law that a plaintiff cannot convert a breach of contract claim into a fraud claim merely by adding “an allegation that defendant never intended to uphold [its] end of the deal.” Sudul v. Computer Outsourcing Services, Inc., 868 F.Supp. 59, 62 (S.D.N.Y.1994). As Judge Martin explained in Sudul: where a" }, { "docid": "18046416", "title": "", "text": "source of information to the DOH concerning the alleged misappropriation of funds. Accordingly, because Phipps’s qui tarn action is based upon public disclosure of allegations or transactions within the meaning of Section 3730(e)(4)(A) and because she is not the original source of the pertinent information, this Court does not have subject matter jurisdiction over the present action and thus Phipps’s Complaint is dismissed with prejudice. V. The Moving Defendants also argue that Phipps’s allegations of fraud do not meet the particularity requirement of Fed.R.Civ.P. 9(b). Fed.R.Civ.P. 9(b) provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b). The pleading requirements of Rule 9(b) apply to FCA claims. See Gold v. Morrisoi-Knudsen Co., 68 F.3d 1475, 1476 (2d Cir. 1995). To meet the requirements of Rule 9(b), a complaint must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993). Although Rule 9(b) allows a plaintiff to allege fraudulent intent generally, a plaintiff must allege facts that give rise to a strong inference of fraudulent intent. Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). This strong inference can be established either “(a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id.; accord PI, Inc. v. Ogle, 932 F.Supp. 80, 84 (S.D.N.Y.1996). Ordinarily, allegations of fraud cannot be founded solely “upon information and belief,” except as to those matters particularly within the opposing party’s knowledge; in the latter instance, allegations must be accompanied by statements of facts upon which such belief is reasonably founded. See Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990); Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986); Sibersky v. Borah, Goldstein, Altschuler & Schwartz, P.C., No. 99 Civ. 3227, 2000 WL 1448635, at *7" } ]

[ { "docid": "22198853", "title": "", "text": "with this opinion. It is so ordered. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Stewart base their concurrence in the judgment of reversal upon Redrup v. New York, 386 U. S. 767. Mr. Justice Harlan, dissenting. A police officer filed a sworn affidavit that he had personally witnessed the commission of a crime, to wit, the possession and exhibition of obscene motion pictures. He was granted a warrant to seize the pictures, and did so. In Marcus v. Search Warrant, 367 U. S. 717, officers were given a general warrant to seize obscene materials, pursuant to which they selected and seized 11,000 copies of 280 publications most of which were later found non-obscene. With barely a nod to the difference between 11,000 books and magazines selected for seizure by the officers themselves after a warrant had been issued and two obscene movies named in the affidavit, the Court reverses the present conviction on the authority of Marcus. I think that Marcus was correctly decided, but I cannot discern its application here. Police officers may not be given carte blanche to seize, but they may certainly seize a specifically named item on probable cause, before the work “taken as a whole” has been adjudicated obscene. Any other rule would make adjudication not merely “not as easily arrange[d]” in the case of movies but quite impossible. If the Court means only that the officer should not merely say that he has seen a movie and considers it obscene, but should offer something in the way of a box score of what transpires therein, I consider it absurd to think that a magistrate, armed with the luminous guidance this Court has afforded, will be thus able to make a better judgment of probable obscenity. Since the petitioner does not contend that the movies in question here were not obscene, I find it unnecessary to reach the point relied on by my Brothers Black, Douglas, and Stewart." } ]

[ { "docid": "22915430", "title": "", "text": "expression.” Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757 (1973). “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” Id. at 501, 93 S.Ct. at 2800. In Roaden, the Court overturned the conviction of a drive-in theater manager for exhibiting an allegedly obscene film, because at the time of the defendant’s arrest, the arresting officers violated the fourth amendment by seizing without a warrant a film then showing at the theater. Crucial to the Court’s decision were two factors: first, that the seizure of a film then being exhibited to the general public worked an impermissible “prior restraint of the right of expression,” id. at 504, 93 S.Ct. at 2801, and second, that the judgment of the arresting officer alone was insufficient to insure that the film was contraband obscenity, id. at 506, 93 S.Ct. at 2802. Roaden is part of a line of Supreme Court cases addressing the seizure of alleg edly obscene materials. These cases recognize that endemic in obscenity is a definitional problem. “[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.” United States v. Sherwin, 572 F.2d 196, 200 (9th Cir.1977), cert. denied, 437 U.S. 909 (1978) (quoting Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). To insure that unconditionally protected speech is not wrongfully seized and suppressed, exceptions to the warrant requirement, perhaps acceptable in other contexts, are unacceptable for the seizure of allegedly obscene material. “Otherwise, police officers could seize any publication or film they deem unprotected by the First Amend-ment_” United States v. Hale, 784 F.2d 1465, 1469 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986). For example, as Roaden itself holds, the first amendment requires an exception to “the general rule under the Fourth Amendment ... that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without" }, { "docid": "17036642", "title": "", "text": "violated the Fourteenth Amendment. In Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), the Court held that an adversary hearing was not required before authorities could seize a single copy of an allegedly obscene film as evidence in a criminal prosecution. However, the Court relied upon the fact that a threshold determination of obscenity had been made by a neutral and detached magistrate before the film was seized and the arrest of the theatre manager was made. In addition, the Court observed that a prompt post-seizure judicial resolution of the obscenity issue at the request of an interested party was vital to the constitutionality of the seizure. Finally, in Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), the Court held that seizure of a film which was being exhibited to the general public without authority of a constitutionally sufficient warrant created a form of prior restraint which rendered the seizure unreasonable under the Fourth Amendment to the United States Constitution. Taken together, Bantam Books, Heller, and Roaden appear to stand for the proposition that before state officials may undertake a series of warrantless arrests which generate reasonably foreseeable effects in terms of removing presumptively protected speech from the public eye, judicial intervention of some dimension is constitutionally required. Plaintiffs argue that a full blown adversary hearing is required before an arrest under Ga.Code § 26-2101 may be made because the limited life span of the instant publications renders virtually any prior restraint a final restraint. Cf. United States v. Thirty Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968). We are initially of the opinion that such an adversary hearing would unduly impede the valid functions of law enforcement officials by requiring them to in effect conduct a “mini-trial” upon the merits before being allowed to arrest a party who arguably has been apprehended in the act of violating Ga.Code § 26-2101. However, we are not called upon to make this" }, { "docid": "6298322", "title": "", "text": "belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). This is accomplished by removing from the officer executing the warrant all discretion as to what is to be seized .... [T]he particularity requirement is even more stringent where the things to be seized have the presumptive protection of the First Amendment: “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). A warrant may not simply direct the officers to seize “obscene” materials, leaving it to the officers to decide what is “obscene” and what is not. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). ... The Supreme Court in Stanford, 379 U.S. 476 [85 S.Ct. 506, 13 L.Ed.2d 431], was careful [however] to limit its holding there to materials under the presumptive protection of the First Amendment: The word “books” in the context of a phrase like “books and records” has, of course, a quite different meaning. A “book” which is no more than a ledger of an unlawful enterprise thus might stand on a quite different constitutional footing from the books involved in the present case. In contexts that do not involve First Amendment considerations, the test for the necessary particularity is a pragmatic one: “The degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved . . . [T]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized.” United States v." }, { "docid": "18714260", "title": "", "text": "Cardwell, 680 F.2d 75, 78 (9th Cir.1982). The portion of the warrant that specifically described “Bambino” and the three sets of photographs is valid. The only item which formed the basis for the indictment and conviction but was not specified in the warrant was the magazine “Joe and His Uncle.” Under Supreme Court and Ninth Circuit precedent, the “First Amendment imposes special constraints on searches for and seizures of presumptively protected material ... and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.” Maryland v. Macon, — U.S. —, 105 S.Ct. 2778, 2781-2, 86 L.Ed.2d 370 (1985); United States v. Sherwin, 572 F.2d 196, 199-200 (9th Cir.1977), cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978); United States v. Tupler, 564 F.2d 1294, 1297 (9th Cir.1977). As we have held, “Because of the First Amendment, the seizure of all publications must meet higher procedural standards than normal.” Sherwin, 572 F.2d at 200. These “higher procedural standards” take two forms. First, the warrant must specifically describe the material to be seized. Blanket clauses that do not refer to specific items and to material directly related to specific items are not proper bases for constitutional searches and seizures. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323-24, 60 L.Ed.2d 920 (1979); Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965); Sherwin, 572 F.2d at 200. Second, the exceptions to the warrant requirement are narrowly construed. The plain view exception argued by the government, for example, cannot be used to search for or seize alleged obscenity or alleged child pornography that is unspecified in the warrant. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979); Sherwin, 572 F.2d at 200. Otherwise, police officers could seize any publication or film they deem to be unprotected by the First Amendment, thereby subverting the higher procedural standards that require a" }, { "docid": "17036641", "title": "", "text": "S.Ct. 625, 75 L.Ed. 1357 (1930); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Plaintiffs argue on the basis of Heller v. New York, supra; Bantam Books v. Sullivan, supra; and Roaden v. Kentucky, supra, that the Fulton County Solicitor’s office has put in place such a system. In Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), Rhode Island law had created a “Commission to Encourage Morality in Youth” which expressed opinions to retailers concerning the obscenity of certain publications with the nominal purpose of preventing youthful readers from being exposed to those publications. Finding that no procedures were provided before the publication was listed by the Commission and noting that the effect of listing a publication with the Commission was to completely suppress the subject publication, the Court held that the Rhode Island scheme violated the Fourteenth Amendment. In Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), the Court held that an adversary hearing was not required before authorities could seize a single copy of an allegedly obscene film as evidence in a criminal prosecution. However, the Court relied upon the fact that a threshold determination of obscenity had been made by a neutral and detached magistrate before the film was seized and the arrest of the theatre manager was made. In addition, the Court observed that a prompt post-seizure judicial resolution of the obscenity issue at the request of an interested party was vital to the constitutionality of the seizure. Finally, in Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), the Court held that seizure of a film which was being exhibited to the general public without authority of a constitutionally sufficient warrant created a form of prior restraint which rendered the seizure unreasonable under the Fourth Amendment to the United States Constitution. Taken together, Bantam Books," }, { "docid": "3230629", "title": "", "text": "that rendered the seizure unreasonable under the Fourth Amendment to the United States Constitution. Taken together, Heller and Roaden establish the minimum constitutional requirement for a seizure of allegedly obscene materials. The Constitution at a minimum apparently requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. See Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968). But the procedure adopted and enforced by McAuliffe was much more dramatic and devastating than the mere seizure of one film to be used as evidence. Instead, it resulted in the “constructive seizure” of every magazine in Fulton County, Georgia, that McAuliffe deemed to be obscene. The arrests effectuating this “constructive seizure” were made without warrants and the issue of obscenity was never examined by a neutral, detached magistrate. While the Supreme Court has indicated that a complete judicial adversary hearing may be required before or shortly after initiating a series of warrantless arrests that have the obvious effect of seizing presumptively protected materials, we need not go this far. See McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Property Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Classics, Ltd. v. Busch, 339 F.Supp. 43 (C.D.Cal.) aff’d, 409 U.S. 807, 93 S.Ct. 105, 34 L.Ed.2d 66 (1972); Universal Amusement Co., Inc. v. Vance, 587 F.2d 159, 169-72 (5 Cir. 1979) (en banc); cf. G.I. Distributors, Inc. v. Murphy, 490 F.2d 1167 (2d Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1941, 40 L.Ed.2d 290 (1974). It is enough to note that the procedure adopted by McAuliffe, including a series of warrant-less arrests, does not comport with the minimum constitutional requirements enumerated" }, { "docid": "3691381", "title": "", "text": "court suppressed some but not all of the materials seized in the search of Torch and his van, and denied Torch’s standing to challenge the warehouse search. Torch raises several arguments on appeal. The only ones to which we need devote discussion are that all the evidence seized in these searches should have been suppressed, and that the evidence adduced on trial was insufficient to support the conviction on the critical element of interstate transportation. I Torch argues that the warrants authorizing the search of his person and of his van did not set forth with sufficient particularity the things to be seized, rendering them constitutionally impermissible as general warrants. The requirement set forth in the Fourth Amendment that things to be seized be particularly described is to prevent “a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). This is accomplished by removing from the officer executing the warrant all discretion as to what is to be seized. As Torch correctly points out, the particularity requirement is even more stringent where the things to be seized have the presumptive protection of the First Amendment: “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). A warrant may not simply direct the officers to seize “obscene” materials, leaving it to the officers to decide what is “obscene” and what is not. Lo-Ji Sales, Inc. v. New York, - U.S. -, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). Torch has largely won this argument already, however. The district court held that" }, { "docid": "12063654", "title": "", "text": "it implicates his First Amendment right of freedom of association. He is correct in recognizing that searches and seizures involving items protected by the First Amendment may be subject to a more demanding scrutiny than would otherwise be the case. The First Amendment sometimes “imposes special constraints on searches for and seizures of presumptively protected material, and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.” Maryland v. Macon, 472 U.S. 463, 468, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985) (citations omitted) (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965)); see Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980-81, 56 L.Ed.2d 525 (1978); Roaden v. Kentucky, 413 U.S. 496, 504-05, 93 S.Ct. 2796, 2801-02, 37 L.Ed.2d 757 (1973); see also Stanford v. Texas, 379 U.S. at 485, 85 S.Ct. at 512 (“No less a standard could be faithful to First Amendment freedoms.”). The Supreme Court, however, has refused to extend this heightened scrutiny to all searches and seizures involving First Amendment rights. See New York v. P.J. Video, 475 U.S. 868, 875, 106 S.Ct. 1610, 1615, 89 L.Ed.2d 871 (1986) (rejecting assertion that warrant to seize material protected by First Amendment requires higher standard of probable cause); Macon, 472 U.S. at 469, 105 S.Ct. at 2781-82 (holding that heightened scrutiny is not necessary where police officer purchased magazine from bookstore as evidence); Zurcher, 436 U.S. at 565, 98 S.Ct. at 1981-82 (rejecting contention that more than warrant issued on probable cause was required to seize photographs from newspaper office); Heller v. New York, 413 U.S. 483, 490, 93 S.Ct. 2789, 2793-94, 37 L.Ed.2d 745 (1973) (holding that First Amendment does not require hearing prior to seizing film as evidence when seizure did not prevent film from being exhibited). More importantly, for our purposes, the Court has explicitly stated that the reason for applying the more demanding standard in the First Amendment context is the special threat posed by prior restraints to First Amendment guarantees. “The risk of pri- or restraint, ... is the" }, { "docid": "3691382", "title": "", "text": "correctly points out, the particularity requirement is even more stringent where the things to be seized have the presumptive protection of the First Amendment: “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). A warrant may not simply direct the officers to seize “obscene” materials, leaving it to the officers to decide what is “obscene” and what is not. Lo-Ji Sales, Inc. v. New York, - U.S. -, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). See also Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). Torch has largely won this argument already, however. The district court held that the warrants authorized the seizure of “two different kinds of property: (1) business records kept by Torch and Majestic News Company pertaining to the transportation of allegedly obscene materials; and (2) the allegedly obscene materials themselves.” The district court found the warrants invalid as to the films and magazines themselves, except the film “Dog Fucker,” which was particularly named, but found the warrants valid as to the business records. Torch argues that the same standard for judging the validity of the warrants as to the films and magazines should have ap plied to the business records. Specifically, his argument is that [hjaving reached the conclusion that the officers could not make an ad hoc determination of the obscenity vel non of the publications, it logically follows that the officers were no better able to make a determination as to what “written material and records” would show the transportation of obscene material in interstate commerce. We do not agree that this follows as the night the day. The Supreme Court in Stanford, 379 U.S. 476, 85" }, { "docid": "1390800", "title": "", "text": "and therefore, his consent to the search of his apartment was involuntary. Second, he contends that as a matter of law, the police should seek probable cause review from a neutral magistrate before executing an arrest. On a denial of a motion to suppress, we review the lower court’s findings of fact for clear error and its conclusions of law de novo. See United States v. Scheets, 188 F.3d 829, 835 (7th Cir.1999). The application of facts to a legal standard such as probable cause constitutes a mixed question of law and fact that we review de novo. See United States v. Johnson, 170 F.3d 708, 713 (7th Cir.1999). A. Prior Review In Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), the Supreme Court held that the government must obtain a warrant before seizing allegedly obscene material. The case involved the seizure of a film by a county sheriff who had viewed the film and thought it violated the state’s anti-obscenity law. The Court reasoned that the material in question “fell arguably within First Amendment protection” and its seizure “is plainly a form of prior restraint.” Id. at 504, 93 S.Ct. 2796. A “prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness.” Id. The Court demanded “the most scrupulous exactitude” in applying the warrant requirement “when the ‘things’ [to be seized] are books, and the basis for their seizure is the ideas which they contain.” Id. (quoting Stanford v. Texas, 379 U.S. 476, 486, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)). Moore asks us to extend this rule to require prior judicial approval of arrests for possession of child pornography. On one occasion, the Coui\"t expressly refused to decide whether a warrant is required to arrest a suspect on obscenity charges, see Maryland v. Macon, 472 U.S. 463, 467, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), and we reject Moore’s suggestion for two reasons. First, Roaden involved the war-rantless seizure of obscene material, not the arrest of a person, and that" }, { "docid": "18714261", "title": "", "text": "be seized. Blanket clauses that do not refer to specific items and to material directly related to specific items are not proper bases for constitutional searches and seizures. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323-24, 60 L.Ed.2d 920 (1979); Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965); Sherwin, 572 F.2d at 200. Second, the exceptions to the warrant requirement are narrowly construed. The plain view exception argued by the government, for example, cannot be used to search for or seize alleged obscenity or alleged child pornography that is unspecified in the warrant. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979); Sherwin, 572 F.2d at 200. Otherwise, police officers could seize any publication or film they deem to be unprotected by the First Amendment, thereby subverting the higher procedural standards that require a neutral magistrate to make the initial determination of probable cause as to specific items. The fact that child pornography is unprotected by the First Amendment is irrelevant. All expression is presumptively protected at the time of the warrantless seizure; child pornography is no different in this regard from obscenity. Applying these “higher procedural standards” to the seizure of “Joe and His Uncle,” we conclude that the magazine was improperly seized and should have been excluded. There is no basis in the warrant for the seizure of “Joe and His Uncle.” The first part of the warrant did not specifically describe the magazine, and the second part of the warrant is too general to support the seizure of material that was, at the time of the seizure, arguably protected by the First Amendment. Since there is no basis in the record for the seizure of “Joe and His Uncle,” we consider whether the good faith exception to the exclusionary rule should nevertheless allow the introduction of “Joe and His Uncle” in evidence. United States v. Leon," }, { "docid": "23613949", "title": "", "text": "that in this case there was no seizure so as to make the fourth amendment applicable. II. SEIZURE OF THE SEVENTEEN CARTONS WITHOUT AN ADVERSARY HEARING ON THE QUESTION OF OBSCENITY The district court also held that the magistrate’s order to seize the seventeen cartons of books was invalid on the ground that the first amendment requires an adversary hearing, with proper notice to the parties, prior to the seizure of allegedly obscene materials. Certainly the notice given the parties in the instant case was totally inadequate for the purpose of satisfying such a standard. However, we do not agree that an adversary hearing prior to the seizure in this case was required by the first amendment. The Supreme Court has made clear that there is no absolute right to an adversary hearing prior to the seizure of allegedly obscene material. Heller v. New York, 413 U.S. 483, 488, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 504 n.5, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In the instant case a neutral magistrate personally examined the books and independently determined probable cause for obscenity. This is all that is required under the first amendment for a valid warrant, as long as a prompt adver sary hearing is available at the request of the parties. The proper means for requesting an adversary hearing on the question of obscenity is by moving for the return of seized property, as made by the defendants in the instant case. The delays in consideration of these motions were made without objection by the defendants. See note 2 supra. Thus we hold they have not been denied the prompt adversary hearing required under the first amendment. However, Heller held that a court should grant the request of a party for return of copies not needed for evidentiary purposes, pending an adversary hearing on the question of obscenity. 413 U.S. at 492-93, 93 S.Ct. 2789. Therefore, we affirm the district court’s order for the return of seized property to the extent it has been carried out. The remaining copies of the books" }, { "docid": "3230626", "title": "", "text": "of the procedures resulted in a “constructive seizure” of the magazines from the shelves of the Fulton County retail establishments and created an informal system of prior restraint. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); compare Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977) (war-rantless arrest of individual who sold two obscene magazines to policeman did not constitute a seizure or prior restraint because the arrest was not part of a calculated scheme resulting in a constructive seizure) with Hall v. State, 139 Ga.App. 488, 229 S.E.2d 12 (1976) (actual seizure of film pursuant to warrantless arrest constituted unconstitutional prior restraint). C. Unconstitutional Prior Restraint. The final question requires a determination whether the district court correctly found that the informal system of prior restraint was proscribed by the First and Fourteenth Amendments to the United States Constitution. We must initially note that there is a strong presumption against the constitutional validity of a system of prior restraint. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Bantam Books, supra; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1930); International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809 (5 Cir. 1979). When dealing in the area of presumptively protected material, greater procedural safeguards must be afforded before the occurrence of a “constructive seizure.” This usually involves the requirement of a judicial determination of some type by a neutral, detached magistrate either before or immediately after the seizure of allegedly obscene material. The Supreme Court decided two cases on the same day that essentially established the minimum constitutional requirements for determining when a seizure of allegedly obscene materials constitutes an unconstitutional prior restraint. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In Heller, a judge of the New York Criminal Court, after viewing a film in its entirety, signed a search warrant for the seizure of the filtn and" }, { "docid": "22365255", "title": "", "text": "meaning of the Fourth Amendment unless a neutral and detached magistrate has issued a warrant particularly describing the things to be seized, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); Stanford v. Texas, supra, and the probable-cause determination supporting the warrant is based on a proceeding in which the magistrate has the opportunity to “focus searchingly on the question of obscenity,” Marcus v. Search Warrant, supra, at 732; see also Roaden v. Kentucky, supra; Heller v. New York, 413 U. S. 483 (1973); Lee Art Theatre v. Virginia, 392 U. S. 636 (1968). These strict requirements reflect a judgment that the inherently difficult decision respecting whether particular material is obscene can under no circumstances properly be left to investigating authorities “engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U. S. 10, 14 (1948). The difficulty of applying the arcane standards governing obscenity determinations exacerbates the risk of overzealous use of the power to search and seize. Marcus v. Search Warrant, supra, at 732. And the consequence of such a seizure is a restraint on the distribution of presumptively protected materials. “[WJithout the authority of a constitutionally sufficient warrant, [seizure] is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.” Roaden v. Kentucky, supra, at 504. Because official seizure of allegedly obscene books, magazines, and films requires a prior judicial determination of probable obscenity, it follows that seizure of a person for allegedly distributing such materials must meet the same requirements. A warrantless arrest involves the same diffi culties and poses the same risks as does a warrantless seizure of books, magazines, or films. An officer in the field faces the same daunting task of applying the standards of Miller v. California, 413 U. S. 15 (1973), in determining whether books or magazines offered for sale support a finding of probable cause sufficient to justify the obscenity arrest. And the situation poses the same risk that the officer’s zeal to enforce the law will lead to erroneous judgments with respect to the obscenity of" }, { "docid": "22915429", "title": "", "text": "for collection. See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Given this unwaivering line of precedent, it is clear that appellants’ argument that they had a legitimate expectation of privacy against state scrutiny is mimical to established fourth amendment doctrine. The Supreme Court consistently has rejected such arguments. B In this case, appellants demand the core protection afforded by the fourth amendment — a search warrant issuable only upon probable cause — despite the fact that the fourth amendment does not even characterize the government’s use of undercover informers as a “search” because it does not intrude upon a legitimate expectation of privacy. They argue that the first amendment context of this case makes all the difference. 1 The Supreme Court has addressed the interplay between the fourth and first amendments in various contexts. The Court has noted that seizures of articles protected by the first amendment may “invoke[] ... Fourth Amendment warrant requirements because we examine what is ‘unreasonable’ in the light of the values of freedom of expression.” Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757 (1973). “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” Id. at 501, 93 S.Ct. at 2800. In Roaden, the Court overturned the conviction of a drive-in theater manager for exhibiting an allegedly obscene film, because at the time of the defendant’s arrest, the arresting officers violated the fourth amendment by seizing without a warrant a film then showing at the theater. Crucial to the Court’s decision were two factors: first, that the seizure of a film then being exhibited to the general public worked an impermissible “prior restraint of the right of expression,” id. at 504, 93 S.Ct. at 2801, and second, that the judgment of the arresting officer alone was insufficient to insure that the film was contraband obscenity, id. at 506, 93 S.Ct. at 2802. Roaden is part of a line of Supreme Court cases addressing the seizure of" }, { "docid": "3230627", "title": "", "text": "713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Bantam Books, supra; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1930); International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809 (5 Cir. 1979). When dealing in the area of presumptively protected material, greater procedural safeguards must be afforded before the occurrence of a “constructive seizure.” This usually involves the requirement of a judicial determination of some type by a neutral, detached magistrate either before or immediately after the seizure of allegedly obscene material. The Supreme Court decided two cases on the same day that essentially established the minimum constitutional requirements for determining when a seizure of allegedly obscene materials constitutes an unconstitutional prior restraint. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In Heller, a judge of the New York Criminal Court, after viewing a film in its entirety, signed a search warrant for the seizure of the filtn and three arrest warrants because he believed that the film was obscene. No one at the theatre was notified or consulted prior to the issuance of the warrants and the film was seized without a prior adversary hearing. The Supreme Court upheld this procedure since the film was examined by a neutral, detached magistrate who had a full opportunity for an independent judicial determination of probable cause prior to issuing the warrant. The film was declared obscene following an adversary trial occurring within 48 days after the temporary seizure of the film. This procedure was approved because a seizure of one film to be used as evidence does not constitute a final restraint but merely a temporary seizure. In Roaden, a film which was being exhibited was also temporarily seized as evidence but without the authority of a constitutionally sufficient warrant. The Supreme Court found that, in light of the absence of a prior determina tion by a judicial officer on the question of obscenity, the seizure of the film created a form of prior restraint" }, { "docid": "18041134", "title": "", "text": "Second Circuit Court of Appeals. “This was strictly an underground operation in hard core pornography with clandestine storage facilities not intended to be available to the public . . . The ‘setting’ then is hardly such as to presumptively invoke first amendment protection.” United States v. Cangiano, 2 Cir. 1974, 491 F.2d 906, 913, cert. denied, 419 U.S. 904, 95 S.Ct. 188, 42 L.Ed.2d 149. It is, of course, true that the procedural safeguards required by the first amendment vary with “the nature of the materials seized and the setting in which they are taken”. Roaden v. Kentucky, 1973, 413 U.S. 496, 503, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757. A prior adversary hearing must be held before a large quantity of expressive material is seized by the government for the purpose of destruction. See A Quantity of Books v. Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Marcus v. Search Warrant of Property, 1961, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Lee Art Theatre v. Virginia, 1968, 392 U.S. 636, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (per curiam). “[Sjeizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding.” Heller v. New York, 1973, 413 U.S. 483, 492, 93 S.Ct. 2789, 2794, 37 L.Ed.2d 745. Such a seizure is permissible if a neutral magistrate issuing the warrant determines that there is probable cause to believe that the film is obscene and an adversary hearing is available promptly after the seizure. When films are not subject to absolute suppression, in the sense of destruction, and the public interest in free circulation of the films is attenuated, less stringent procedural limitations on governmental action may be justified. This does not mean, however, that films furtively distributed to a small cadre of customers lose all constitutional protection and may be treated by the government as if they were contraband or ordinary instruments of a crime. The protection of" }, { "docid": "13471708", "title": "", "text": "that a violation of 18 U.S.C. § 1462 had occurred, that the items described were evidence thereof, and that the items were at the place to be searched. The description of the items — “certain documents pertaining to the interstate shipment of obscene materials including way bills, shipping orders, contracts for exhibition, receipts, cancelled bank drafts, and advertising materials and motion picture shipping containers” — was more than sufficient to circumscribe a police officer’s discretion in conducting the search. See United States v. Honore, 450 F.2d 31 (9th Cir. 1971). The search warrant issued June 12, 1973, for seizure of the film was also valid. The warrant was issued only after an adversary hearing before a neutral magistrate had established probable cause to believe the movie obscene. See Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). And the affidavit accompanying the application for the warrant established probable cause to believe that the film had been received from interstate commerce on May 10, 1973. Thus, to the extent they are relevant to the specific offense alleged in the indictment, the seized items are admissible. Appellant’s final contention is that, absent an indictment, the magistrate was without statutory jurisdiction to hold a preseizure adversary hearing to determine the probable obscenity of the film, and that therefore no valid adversary hearing was held, the warrant was invalid, and the seized film should be suppressed. We agree with the Second Circuit that F.R.Crim.P. 41, which establishes procedures and requirements for issuance of warrants (procedures which may be employed prior to indictment), may be read here to authorize the magistrate to fashion and employ procedures for determining probable cause for the issuance of the warrant. Perial Amusement Corp. v. Morse, 482 F.2d 515, 521-523 (2d Cir. 1973). See Maizels v. Van Hoomissen, 429 F.2d 982 (9th Cir. 1970) (per curiam) (Chambers, J., concurring). The judgment of conviction is reversed, and the matter remanded for further proceedings consistent with Hamling and the views expressed herein. The Ilonorable" }, { "docid": "18008065", "title": "", "text": "commerce. Both defendant Haft and Tupler were present when the warrant was executed. The defendants argued below, and in this court, that the warrant was not based upon probable cause and that their motion to suppress the films should have been granted. We must start from the recognition that the films were presumptively protected by the First Amendment. Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). Since seizure of First Amendment-protected materials constitutes a form of prior restraint, the materials are entitled to special treatment not accorded other forms of contraband. See, e. g., Road-en v. Kentucky, supra (seizure of allegedly obscene film without a warrant per se illegal under the Fourth Amendment although incident to an arrest); A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) (lack of adversary hearing prior to seizing large quantity of allegedly obscene material for purposes of destruction invalid, as different standards apply to searches and seizures governing allegedly obscene materials than to narcotics, gambling paraphernalia, and other contraband); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) (standards for a warrant are more exacting when the things to be seized are books and the basis for their seizure is the ideas they contain). First Amendment protection of allegedly obscene material includes the requirement that no seizure warrant be issued without a procedure “designed to focus searchingly upon the question of obscenity.” See Marcus v. Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). No such procedure was followed in this case. At the time the search warrant was issued, neither the FBI agent who wrote the affidavit for the warrant nor the judge who issued the warrant had ever viewed any part of the films. The affidavit upon which the warrant was based described in some detail the photographic labels which were affixed to the film boxes. This description may have given the judge probable cause to believe that the labels were obscene. However, labels may or may not fairly represent the" }, { "docid": "3230628", "title": "", "text": "three arrest warrants because he believed that the film was obscene. No one at the theatre was notified or consulted prior to the issuance of the warrants and the film was seized without a prior adversary hearing. The Supreme Court upheld this procedure since the film was examined by a neutral, detached magistrate who had a full opportunity for an independent judicial determination of probable cause prior to issuing the warrant. The film was declared obscene following an adversary trial occurring within 48 days after the temporary seizure of the film. This procedure was approved because a seizure of one film to be used as evidence does not constitute a final restraint but merely a temporary seizure. In Roaden, a film which was being exhibited was also temporarily seized as evidence but without the authority of a constitutionally sufficient warrant. The Supreme Court found that, in light of the absence of a prior determina tion by a judicial officer on the question of obscenity, the seizure of the film created a form of prior restraint that rendered the seizure unreasonable under the Fourth Amendment to the United States Constitution. Taken together, Heller and Roaden establish the minimum constitutional requirement for a seizure of allegedly obscene materials. The Constitution at a minimum apparently requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. See Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968). But the procedure adopted and enforced by McAuliffe was much more dramatic and devastating than the mere seizure of one film to be used as evidence. Instead, it resulted in the “constructive seizure” of every magazine in Fulton County, Georgia, that McAuliffe deemed to be obscene. The arrests effectuating this “constructive seizure” were made without warrants and the issue of obscenity was never examined by a neutral, detached magistrate. While the Supreme Court has indicated that a complete judicial" } ]

[ { "docid": "11312762", "title": "", "text": "MEMORANDUM AND ORDER WEXLER, District Judge. Petitioners Felix Cosme, Sr., Judith Cosme, and Felix Cosme, Jr. file two petitions to quash certain summonses issued by the Internal Revenue Service (“IRS”) to various third party recordkeepers. These two petitions received separate docket numbers. Under Misc. 88-0265, petitioners challenge four Internal Revenue Service summonses issued to; (1) the European American Bank in Central Islip, New York; (2) the National Westminster Bank in Central Islip, New York; (3) the Sag Harbor Savings Bank in Commack, New York; and (4) Manufacturer’s Hanover Trust in Brent-wood, New York. Under docket number Misc. 88-0499 petitioners contest two IRS summonses issued to the Royal Bank de Puerto Rico in Santurce, Puerto Rico, and one summons issued to Merrill, Lynch, Pierce, Fenner and Smith (“Merrill Lynch”) in Hato Rey, Puerto Rico. The IRS moves to dismiss both petitions. By order dated January 18, 1989 this Court consolidated both cases under Misc. 88-0265. For simplicity, however, the Court will discuss the two docketed cases separately. The IRS through its revenue agent Kathianne Porter is currently engaged in an audit aimed at determining the proper tax liability of Felix Cosme, Sr. (“Mr. Cosme”) for the years 1984-1986. In furtherance of that investigation and pursuant to the power granted by 26 U.S.C. § 7602, the IRS issued the above-mentioned summonses. Each summons directs the third-party recordkeepers to produce all books, records, other data, and testimony relating to the taxpayer’s correct income and tax liabilities. The summonses request information for the years 1983 through 1987. None of the third-party recordkeepers contest the summonses. PETITION FOR MISC. 88-0265 Section 331(a) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), 26 U.S.C. § 7609(b)(2), establishes time limits within which a taxpayer can contest a summons issued to a third-party record-keeper. Specifically, the taxpayer is required to “begin a proceeding to quash [the] summons not later than the 20th day after the day ... notice is given____” 26 U.S.C. § 7609(b)(2)(A). Courts have held repeatedly that the 20-day period during which a petitioner may move to quash an IRS summons commences on the" } ]

[ { "docid": "1224223", "title": "", "text": "MEMORANDUM OPINION MOTLEY, District Judge. Respondents, Morgan Guaranty Trust Company and Bank of New York, were ordered, upon the application of petitioners, United States of America and William C. VanShufflin, to show cause why they should not be compelled to comply with three Internal Revenue Service (IRS) summonses duly issued and served on respondents, pursuant to 26 U.S.C. §§ 7402(b) and 7604(a). Neither of the respondents appeared or opposed the enforcement of the summonses. However, the taxpayer whose records were summoned, Mr. Leonard D. Summa (the taxpayer), exercised his right under 26 U.S.C. § 7609(b) to intervene in the action, and moved to quash the summonses, compel discovery and transfer the action to the Northern District of New York. A hearing on the petition to enforce the summonses and the taxpayer’s motions was held on January 20, 1981. For the reasons stated below, the taxpayer’s motions are denied and the court holds that petitioners are entitled to enforcement of the IRS summonses pursuant to 26 U.S.C. § 7602. This action arises out of an active IRS investigation of the taxpayer. The purpose of this investigation, according to the affidavit sworn to by IRS Special Agent VanShufflin, is to determine whether the taxpayer had gross income sufficient to require him to file tax returns in 1978 and 1979, and if so, to determine his tax liabilities for those years. The taxpayer did not report his income in those years on the ground that it would violate his Fifth Amendment right against self-incrimination. The challenged summonses, which were issued by Special Agent VanShufflin on September 4, 1980, directed respondents to appear before Special Agent Stocker on September 23, 1980, to testify and produce certain records pertaining to the taxpayer’s accounts at the respondent banks for the tax years in question. The IRS sent notice of service of the summonses and copies of the summonses to the taxpayer as required by 26 U.S.C. § 7609(a). By letters dated September 11, 1980, the taxpayer requested respondents not to comply with the summonses, pursuant to 26 U.S.C. § 7609(b)(2). Respondents failed to appear on the" }, { "docid": "18275300", "title": "", "text": "tax of petitioner and his wife. Exhibits L and M are similar summonses served upon an accountant in California. A petition to quash an I.R.S. summons is authorized by 26 U.S.C. § 7609(b)(2), which by its definition pertains only to summonses served upon third-party recordkeepers. Section 7609 makes it clear that third-party summonses are those which seek the records of a person “other than the person summoned.” Thus, the eight summonses served upon the four corporations that seek the corporation’s own records a fortiori cannot be third-party summonses. This conclusion is further compelled by § 7609(a)(3) which defines third-party recordkeepers as banks, credit agencies, brokers, attorneys, accountants and the like. Clearly not included are corporations of which the taxpayer is an officer. If the corporations believe they have valid claims of privilege, or other grounds for noncompliance, they can object to a petition to enforce the summonses filed by the I.R.S. 26 U.S.C. § 7604. Therefore, the petition to quash the summonses is dismissed with respect to those summonses identified as exhibits A through H. The petition to quash is also dismissed with respect to those summonses identified as L and M, directed to Ira Gelfman, because Gelfman, the third-party recordkeeper, does not reside in, nor can he be found in, this district. See 26 U.S.C. § 7609(h)(1). Indeed, petitioner has already brought suit in California to quash those summonses. While the government clearly may issue a summons to someone out of this district, and the recordkeeper could choose to comply, the I.R.S. could not enforce that summons in this district, § 7604(a), nor can the taxpayer move to quash it here, § 7609(h)(1). The only summonses properly before this court, then, are the three issued to the Connecticut accountants, who are third-party recordkeepers of tax records of Ralph and Jeanne Smith. Petitioner has challenged these summonses on a multitude of grounds. For the court to enforce the summonses, it must first be found that the government has established a prima facie case of proper issuance. The government may establish its prima facie case through the affidavit of the agent" }, { "docid": "3039558", "title": "", "text": "ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION TO QUASH CONTI, District Judge. This is a petition to quash certain IRS collection summonses served on Rome Finance Company in regard to the assessed tax liabilities of John and Cheryl Hayes. The summonses were issued on July 3, 1985 and September 5, 1985. Respondent United States no longer seeks enforcement of the July 3, 1985 summonses. Accordingly, the only summons presently at issue is the September 5, 1985 summons. The September 5, 1985 summons seeks information of any ownership interest the petitioners may have in certain diamonds. This information will be used by the Internal Revenue Service (“IRS”) in an attempt to collect on petitioners’ assessed tax liability for the years 1979 and 1980. Termination assessments for those years were made against petitioners on June 3, 1985 in the amounts of $2,381,949.52 and $1,565,-842.74. In its present motion, respondent United States contends that petitioners lack standing under the relevant statute to bring the petition to quash, and that therefore the petition should be dismissed. Petitioners, on the other hand, claim that they have standing and that issuance of the summons is in any event barred under § 7602(c)(1), which provides that no IRS summons may issue “with respect to any person if there is a Justice Department referral in effect with respect to such person.” 26 U.S.C. § 7602(c)(1). Since petitioner John Hayes was indicted for conspiring to defraud the IRS during the tax years of 1976 and 1977, petitioners contend that § 7602(c)(1) bars issuance of the present summons which is directed at collecting on petitioners’ assessed tax liability for the years 1979 and 1980. Upon a review of the record, the court finds petitioners’ arguments to be without merit. As regards the standing issue, § 7609(b) of the Internal Revenue Code provides that ... any person who is entitled to notice of a summons under subsection (a) shall have the right to begin a proceeding to quash such summons____ 26 U.S.C. § 7609(b)(2)(A). Subsection (a), however, provides that persons are only entitled to notice (and thus to bring a petition" }, { "docid": "15032110", "title": "", "text": "— If— (A) any summons described in subsection (c) is served on any person who is a third-party recordkeeper, and (B) the summons requires the production of any portion of records made or kept of the business transactions or affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons, then notice of the summons shall be given to any person so identified within 3 days of the day on which such service is made, but no later than the 23rd day before the day fixed in the summons as the day upon which such records are to be examined. Such notice shall be accompanied by a copy of the summons which has been served and shall contain an explanation of the right under subsection (b)(2) to bring a proceeding to quash the summons. The rights created by § 7609 extend to summonses issued pursuant to § 7602(a)(2), as are the summonses challenged here. Section 7609(b) provides that any person entitled to notice of the summons may bring an action to quash the summons in the appropriate district court, and § 7609(h) confers jurisdiction to hear that action upon the United States District Court for the district in which the summoned party resides or may be found. Section 7609(a)(3)(E) provides that among those considered to be a “third-party recordkeeper” is “any attorney.” This action is purportedly brought by the John Doe clients pursuant to § 7609(b)(2)(A), with the law firms intervening as the third-party recordkeepers. The IRS contends that the law firms are simply not third-party recordkeepers and therefore the court lacks jurisdiction under § 7609. Petitioners point out that included among those considered to be “third-party recordkeepers” is “any attorney”. 26 U.S.C. § 7609(a)(3)(E). However, it is simply not enough to be “any attorney” to fall within the protections of § 7609. Section 7609(a)(1)(B) indicates that the section only applies if “the summons requires the production of any portions of records made or kept of the business transactions or affairs of any person (other than the person summoned).”" }, { "docid": "3985108", "title": "", "text": "attached a memorandum requesting comments and an explanation for the discrepancies. Barrett held a series of discussions with his Group Manager and in February 1981 referred the case to the Criminal Investigation Division of the IRS. In early 1981, Special Agent Mark Lawler, who had been assigned to the investigation, issued a summons to the taxpayers requesting production of various records and documents in their possession. Taxpayers complied with this summons and brought in the requested records. Based on its examination of these records, the IRS decided to expand its investigation to include taxpayers’ 1977 tax returns. Between May 21,1981 and June 23, 1981, Special Agent Lawler issued an IRS summons, pursuant to 26 U.S.C. § 7602 (1976), to eight third-party recordkeepers seeking various records and documents in their possession relating to taxpayers’ financial activities. Taxpayers directed these record-keepers not to comply with the summonses. On January 26, 1982, the Government filed petitions with the district court for enforcement of these eight summonses. Taxpayers moved to intervene pursuant to 26 U.S.C. § 7609(b)(1) (1976), and filed answers to the Government’s petitions. Taxpayers also filed a deposition notice and a Rule 34 Request for Production of Documents, and, in preparation for the show cause hearing, served subpoenas duces tecum upon several IRS employees who participated in the investigation. The district court consolidated the eight summons enforcement proceedings, and on April 30, 1982, ordered that the IRS summonses be enforced. The court quashed taxpayers’ deposition notice and subpoenas duces tecum and issued a protective order covering the Rule 34 document request. This appeal followed. I. The Good Faith Requirements of United States v. Powell Section 7602 of the Internal Revenue Code, 26 U.S.C. § 7602 (1976), provides that the IRS, through the use of an administrative summons, may examine any books, papers, records, or persons in determining the tax liability of any person or ascertaining the correctness of any return. The IRS, however, has no power of its own to enforce the summons but must apply to the district court in order to compel production of the requested materials. See 26 U.S.C." }, { "docid": "19212789", "title": "", "text": "BALDOCK, Circuit Judge. To determine whether petitioner-appellant John E. Codner had violated any Internal Revenue laws, the Internal Revenue Service issued twelve administrative summonses to various third parties requesting financial information regarding Codner. Codner timely filed a petition to quash the summonses on various grounds. IRS answered and filed a petition to enforce six of the summonses issued to parties residing within the District of Utah. The district court determined that it lacked jurisdiction over the petition to quash the summonses issued to the five parties who did not reside in the district, see 26 U.S.C. § 7609(h)(1), and to the Church of Jesus Christ of Latter-Day Saints because the Church was not a third-party recordkeeper, see 26 U.S.C. § 7609(a)(3). It therefore dismissed the portion of Codner’s petition dealing with these six parties. After concluding that IRS had complied with the statutory requirements applicable to issuance of the remaining six summonses, the district court denied Codner’s petition to quash and granted IRS’s petition to enforce these summonses. Codner appeals. We have jurisdiction under 28 U.S.C. § 1291. IRS has broad authority to issue summonses in support of its efforts to determine taxpayers’ tax liabilities. See 26 U.S.C. §§ 7601, 7602; United States v. Arthur Young & Co., 465 U.S. 805, 816, 104 S.Ct. 1495, 1502, 79 L.Ed.2d 826 (1984). To enforce the summonses, IRS must show “that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the [IRS] Commissioner’s possession, and that the administrative steps required by the Code have been followed. ...” United States v. Balanced Fin. Mgmt., Inc., 769 F.2d 1440, 1443 (10th Cir.1985) (quoting United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964)). IRS met its burden of showing the prima facie legitimacy of the summonses in this case through the affidavit of the special agent who issued them. See id. (IRS’s burden is “slight” and is generally met through affida vit of agent issuing summons and seeking enforcement). Codner challenges" }, { "docid": "11535901", "title": "", "text": "the taxpayer’s petition to quash the summonses issued to him as the representative of his three solely owned businesses, viz., the Village Market, Godwin’s Silverbrook Arco and Godwin Enterprises, Inc., is based on 26 U.S.C. § 7609(b). However, it is clear that the taxpayer lacks standing to quash these summonses. The provisions of Section 7609(b), permitting a taxpayer to begin a proceeding in an appropriate United States District Court to quash an IRS summons, applies only to a summons issued to a “third-party recordkeeper,” as defined in Section 7609(a)(3), for records of the business transactions or affairs of a person other than the summoned party. 26 U.S.C. § 7609(a)(l)(A & B). The three summonses issued for records of the taxpayer’s three solely owned businesses do not fall within the purview of Section 7609. They are not summonses directed to “third-party record-keepers.” Consequently, the taxpayer does not have standing to quash those three summonses under Section 7609 and the respondent’s motion for summary denial of the taxpayer’s petition to quash those three summonses will be granted. III. Summary Enforcement Of Third-Party Recordkeeper Summonses This Court has jurisdiction over taxpayer’s petitions to quash the seven summonses issued to the two accountants and the three financial institutions, all third-party record-keepers, as defined in 26 U.S.C. § 7609(a)(3), by reason of the new procedure set forth in Section 7609(b), as amended by the Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, 96 Stat. 324 (“TEFRA”). Sections 7609 and 7602, as amended by TEFRA, brought important changes to the procedures for the enforcement of IRS summonses. Of especial importance to this case are two of these changes: first, TE-FRA changed the type of proceeding in which enforcement of a third-party record-keeper summons is litigated, and second, it replaced the vague solely-criminal purpose defense with a “bright line” test under which a summons may be issued for a criminal purpose as long as there was no “Department of Justice referral.” However, these two changes did not alter the showing required by the government to establish a prima facie case for the enforcement of" }, { "docid": "11312765", "title": "", "text": "at the time the IRS mailed notice of the four summonses, the information before the IRS indicated that petitioners resided in Nesconset. In fact, on April 11, 1988 Felix Cosme appeared at the Internal Revenue Service office in Smithtown, New York. See Declaration of Special Agent Kathianne Porter, Para. 16. Only in August 1988 was the IRS informed that petitioners changed their residence to Puerto Rico. Therefore, on May 18, 1988 the IRS complied fully with the notice provision of 26 U.S.C. § 7609(a)(2) by mailing the notice to petitioners last known address. See Nardini v. United States, supra; Grisham v. United States, 578 F.Supp. 73 (S.D.N.Y.1983). Therefore, petitioners motion to quash the four summonses docketed as Misc. 88-0265 is untimely. PETITION FOR MISC. 88-0499 Under docket number Misc. 88-0499, petitioners move to quash, in a timely manner, the summonses issued to the Royal Bank de Puerto Rico and to Merrill Lynch. With reference to the two summonses issued to the Royal Bank de Puerto Rico, this Court does not possess jurisdiction to decide petitioners’ motion. 26 U.S.C. § 7609(h)(1) limits federal district court jurisdiction to hear petitions to quash summonses; the proceeding to quash must be commenced only in the district where the summoned person resides or is found. Therefore, in a petition to quash a summons issued to a third-party recordkeeper, jurisdiction exists where the third-party resides or does business. See Masat v. United States, 745 F.2d 985 (5th Cir.1984); Bilodeau v. United States, 577 F.Supp. 234 (D.N.H.1983). The Royal Bank de Puerto Rico obviously resides in Puerto Rico. Therefore, this Court is without jurisdiction to hear petitioners’ motion to quash the two summonses issued to that third-party. Finally, the Court turns to the one summons which petitioners filed timely and in the correct jurisdiction, the Merrill Lynch summons. For the reason discussed below, their petition is denied. Normally, when a taxpayer moves to quash a third party summons, the government moves simultaneously to compel compliance with the summons. 26 U.S.C. § 7609(b)(2)(A). Under the standard set forth by the Supreme Court in United States v. Powell, 379" }, { "docid": "11535900", "title": "", "text": "OPINION LATCHUM, Chief Judge. This matter is before the Court upon the petition of Harold F. Godwin (“taxpayer”), filed pursuant to 26 U.S.C. § 7609(b), to quash ten Internal Revenue Service (“IRS”) summonses and the cross motion of the United States (“respondent”), filed under 26 U.S.C. § 7609(h), for summary denial of petitioner’s motion to quash three of the summonses and for summary enforcement of the seven other summonses. I. Background Facts Between January 13, 1983 and February 1, 1983, Ronald J. Poplos, a special agent with the IRS, Criminal Investigation Division, issued ten summonses to obtain information for an investigation into the tax liabilities of the taxpayer. Four of the summonses were issued to two accountants, three were issued to financial institu tions, and three were issued to the taxpayer trading as The Village Market, trading as Godwin’s Silverbrook Arco, and as President of Godwin Enterprises, Inc. II. Respondent’s Motion For Summary Denial Of Taxpayer’s Petition To Quash The Three Summonses Issued To Him As Representative Of His Three Business Enterprises As stated above, the taxpayer’s petition to quash the summonses issued to him as the representative of his three solely owned businesses, viz., the Village Market, Godwin’s Silverbrook Arco and Godwin Enterprises, Inc., is based on 26 U.S.C. § 7609(b). However, it is clear that the taxpayer lacks standing to quash these summonses. The provisions of Section 7609(b), permitting a taxpayer to begin a proceeding in an appropriate United States District Court to quash an IRS summons, applies only to a summons issued to a “third-party recordkeeper,” as defined in Section 7609(a)(3), for records of the business transactions or affairs of a person other than the summoned party. 26 U.S.C. § 7609(a)(l)(A & B). The three summonses issued for records of the taxpayer’s three solely owned businesses do not fall within the purview of Section 7609. They are not summonses directed to “third-party record-keepers.” Consequently, the taxpayer does not have standing to quash those three summonses under Section 7609 and the respondent’s motion for summary denial of the taxpayer’s petition to quash those three summonses will be granted." }, { "docid": "18275301", "title": "", "text": "The petition to quash is also dismissed with respect to those summonses identified as L and M, directed to Ira Gelfman, because Gelfman, the third-party recordkeeper, does not reside in, nor can he be found in, this district. See 26 U.S.C. § 7609(h)(1). Indeed, petitioner has already brought suit in California to quash those summonses. While the government clearly may issue a summons to someone out of this district, and the recordkeeper could choose to comply, the I.R.S. could not enforce that summons in this district, § 7604(a), nor can the taxpayer move to quash it here, § 7609(h)(1). The only summonses properly before this court, then, are the three issued to the Connecticut accountants, who are third-party recordkeepers of tax records of Ralph and Jeanne Smith. Petitioner has challenged these summonses on a multitude of grounds. For the court to enforce the summonses, it must first be found that the government has established a prima facie case of proper issuance. The government may establish its prima facie case through the affidavit of the agent who issued the summons, Godwin v. United States, 564 F.Supp. 1209, 1212 (D.Del.1983), showing: (1) that the investigation will be conducted for a legitimate purpose, (2) that the data sought is relevant to that purpose, (3) that the data being sought is not already in the possession of the I.R.S., and (4) that the administrative steps required by the Internal Revenue Code have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). In addition, 26 U.S.C. § 7602(b), (e) appears to require an additional showing that there has been no “Justice Department referral.” In this case, Agent Richard Uhrlass has sworn in his affidavit to the above requirements, including the giving of notice by certified mail as required by § 7609(a). Despite petitioner’s allegations to the contrary, government exhibits 1(a), 1(b) and 1(c) show proof of service. Thus, the I.R.S. has established its prima facie case of proper issuance. The burden is on petitioner to rebut the government’s showing of valid issuance. In order to be" }, { "docid": "15032109", "title": "", "text": "taxpayer sufficient due process, and neither the summoned witness nor the taxpayer may act pre-emptively to enjoin a summons which the IRS has not sought to enforce. Id., at 450, 84 S.Ct. at 514. There are at least two statutory exceptions to this general rule, both of which the petitioners rely upon. The first is the “third-party record-keeper summons” pursuant to 26 U.S.C. § 7609. The second is the “John Doe summons” pursuant to 26 U.S.C. § 7609(f). As a general rule, neither a summoned party nor the taxpayer under investigation has any right to initiate an action to quash a summons or to prevent the summoned party from complying voluntarily. Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964). Section 7609 of the Code creates limited exceptions to that rule with respect to summonses issued to statutorily enumerated “third-party recordkeep-ers” and the so-called “John Doe summonses”. Section 7609 gives taxpayers certain notice of procedural rights in a case of third-party summonses. Section 7609(a) provides as follows: Notice.— (1) In general. — If— (A) any summons described in subsection (c) is served on any person who is a third-party recordkeeper, and (B) the summons requires the production of any portion of records made or kept of the business transactions or affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons, then notice of the summons shall be given to any person so identified within 3 days of the day on which such service is made, but no later than the 23rd day before the day fixed in the summons as the day upon which such records are to be examined. Such notice shall be accompanied by a copy of the summons which has been served and shall contain an explanation of the right under subsection (b)(2) to bring a proceeding to quash the summons. The rights created by § 7609 extend to summonses issued pursuant to § 7602(a)(2), as are the summonses challenged here. Section 7609(b) provides that any person entitled to notice of" }, { "docid": "453851", "title": "", "text": "which can be afforded, the factual showing required to satisfy the above standard should frequently be less exacting for a temporary restraining order than when a preliminary injunction is sought. Plaintiff has advanced three arguments in support of its application for temporary restraining orders. First, it argues that the IRS summons violates 26 U.S.C. § 7609(f)’s provisions relating to “John Doe” summonses. Second, plaintiff argues that it is entitled to an injunction under Kelley v. United States, 503 F.2d 93 (9th Cir.1974). Finally, plaintiff contends that it is entitled to the general protections of 26 U.S.C. § 7609 because Compucraft is an “accountant” within the meaning of section 7609(a)(2). Background on IRS Summonses Under 26 U.S.C. § 7602, the IRS has authority during the course of an investigation to determine the tax liability of a person “to examine any books, papers, records or other data” which may be relevant or material to the investigation. 26 U.S.C. § 7602(a)(1). This includes not only the right to examine records in the possession of the taxpayer, but also the authority to issue a summons to “any person having possession or custody of records” relating to the business of the person under investigation. 26 U.S.C. § 7602(a)(2). See generally S.Rep. No. 938-Part I, 94th Cong.2d Sess. 367-68, reprinted in 1976 U.S.Code Cong. & Ad.News 2897, 3439, 3796-97 (Senate Report). In 1976, Congress amended the Internal Revenue Code to require that the IRS notify taxpayers of the issuance of summonses to specified kinds of third-party recordkeepers. Senate Report at 369. Section 7609(a)(1) now provides that: (a) Notice.— (1) In general. — If— (A) any summons ... is served on any person who is a third-party record-keeper, and (B) the summons requires the production of any portion of records made or kept of the business transactions or affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons, then notice of the summons shall be given to any person so identified within 3 days of the day on which such service is made, but no" }, { "docid": "22951730", "title": "", "text": "BEEZER, Circuit Judge: We decide whether the Internal Revenue Service, after serving a summons on a third-party reeordkeeper, must serve an attested copy of the summons on the taxpayer. John H. Fortney appeals pro se the district court’s dismissal of his motion to quash Internal Revenue Service (“IRS”) summonses issued to third-party recordkeepers pursuant to 26 U.S.C. § 7602. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that 26 U.S.C. § 7609(a) does not require an attested copy of the summons be served on the taxpayer, we affirm. I As part of an investigation into John Fortney’s tax liability for the taxable years 1988-1992, IRS Special Agent John Heeran issued summonses on June 8 and 15, 1993 to the First Interstate Bank in Carson City, Nevada, and the First Interstate Bank in State-line, Nevada. The summonses requested information “on all accounts in which the subject [Fortney] has an interest for the periods so designated.” Additionally, the summons issued to the Stateline Bank identified one known account of Fortney’s. An attested copy of the appropriate summons was served on each bank. Heeran gave notice of service of the summonses (including copies of the summonses) to Fortney by certified mail. The copies were not attested. Fortney filed a timely petition to quash the summonses on both Nevada banks. Fortney’s petition also sought to quash a third summons served on Southern California Bank in Rowland Heights, California. The United States filed a response to Fortney’s petition and a petition to enforce the Nevada summonses. The United States requested that the district court dismiss for lack of subject matter jurisdiction the action regarding service of a summons on a California bank. Pursuant to the district court’s standing-order, the matter was referred to a United States Magistrate Judge. On October 5, 1993, a hearing was held before the Magistrate Judge on the petitions of Fortney and the United States. Fortney raised a number of objections to the adequacy and propriety of the summonses. The United States submitted a Declaration from Agent Heeran explaining both the purpose behind issuance of the summonses and" }, { "docid": "11312766", "title": "", "text": "motion. 26 U.S.C. § 7609(h)(1) limits federal district court jurisdiction to hear petitions to quash summonses; the proceeding to quash must be commenced only in the district where the summoned person resides or is found. Therefore, in a petition to quash a summons issued to a third-party recordkeeper, jurisdiction exists where the third-party resides or does business. See Masat v. United States, 745 F.2d 985 (5th Cir.1984); Bilodeau v. United States, 577 F.Supp. 234 (D.N.H.1983). The Royal Bank de Puerto Rico obviously resides in Puerto Rico. Therefore, this Court is without jurisdiction to hear petitioners’ motion to quash the two summonses issued to that third-party. Finally, the Court turns to the one summons which petitioners filed timely and in the correct jurisdiction, the Merrill Lynch summons. For the reason discussed below, their petition is denied. Normally, when a taxpayer moves to quash a third party summons, the government moves simultaneously to compel compliance with the summons. 26 U.S.C. § 7609(b)(2)(A). Under the standard set forth by the Supreme Court in United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the government is entitled to enforcement of an IRS summons when it can present a prima facie case for enforcement, and the taxpayer fails to show sufficient facts indicating the existence of a defense to enforcement of the summons. Powell at 58, 85 S.Ct. at 255. A prima facie case for enforcement is established where the government can show; (1) the summons was issued for a legitimate purpose; (2) the inquiry may be relevant for that purpose; (3) the informa tion sought is not already within the government’s possession; and (4) the administrative steps required by the Internal Revenue Code for issuance and service of the summons have been followed. Powell, 379 U.S. at 57-58, 85 S.Ct. at 254-55. In an enforcement proceeding, once the government establishes a prima facie case, the petitioner must show sufficient facts to establish a defense to the summons. However, when faced with a petition to quash an IRS third-party summons, the government need not move to enforce the summons. Instead" }, { "docid": "453852", "title": "", "text": "the authority to issue a summons to “any person having possession or custody of records” relating to the business of the person under investigation. 26 U.S.C. § 7602(a)(2). See generally S.Rep. No. 938-Part I, 94th Cong.2d Sess. 367-68, reprinted in 1976 U.S.Code Cong. & Ad.News 2897, 3439, 3796-97 (Senate Report). In 1976, Congress amended the Internal Revenue Code to require that the IRS notify taxpayers of the issuance of summonses to specified kinds of third-party recordkeepers. Senate Report at 369. Section 7609(a)(1) now provides that: (a) Notice.— (1) In general. — If— (A) any summons ... is served on any person who is a third-party record-keeper, and (B) the summons requires the production of any portion of records made or kept of the business transactions or affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons, then notice of the summons shall be given to any person so identified within 3 days of the day on which such service is made, but no later than the 23rd day before the day fixed in the summons as the day upon which such records are to be examined. Such notice shall be accompanied by a copy of the summons which has been served and shall contain an explanation of the right ... to bring a proceeding to quash the summons. Section 7609(a)(3) defines third-party recordkeepers as including banks, savings and loans, credit unions, brokers, consumer reporting agencies, attorneys and accountants. Section 7609 goes on to impose additional requirements in the case of “John Doe” summonses: (f) Additional requirement in the case of a John Doe summons. — Any summons ... which does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that— (1) the summons relates to the investigation of a particular person or ascertainable group or class of persons, (2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed" }, { "docid": "3985107", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. Taxpayers James E. Lask and Ruth L. Lask appeal from the district court order directing enforcement of Internal Revenue Service summonses issued to various third-party recordkeepers. Taxpayers contend (1) that the IRS acted in bad faith in carrying out the investigation, (2) that a portion of the time period covered by the IRS summonses is barred by the statute of limitations contained in 26 U.S.C. § 6501(a) (1976), and (3) that the district court erred in denying taxpayers’ discovery requests and in quashing their trial subpoenas duces tecum. We affirm. In July 1980, Revenue Agent John Barrett, acting on information given to the IRS by an unidentified informant, began an investigation into the federal tax liability of taxpayers for 1978 and 1979. Using information which the taxpayers provided, Barrett found significant discrepancies between the amount of tax liability he calculated for 1978 and 1979 and the amount of tax liability taxpayers reported for those two years. Barrett provided taxpayers’ tax representative, Albert Grabel, with copies of his work papers and attached a memorandum requesting comments and an explanation for the discrepancies. Barrett held a series of discussions with his Group Manager and in February 1981 referred the case to the Criminal Investigation Division of the IRS. In early 1981, Special Agent Mark Lawler, who had been assigned to the investigation, issued a summons to the taxpayers requesting production of various records and documents in their possession. Taxpayers complied with this summons and brought in the requested records. Based on its examination of these records, the IRS decided to expand its investigation to include taxpayers’ 1977 tax returns. Between May 21,1981 and June 23, 1981, Special Agent Lawler issued an IRS summons, pursuant to 26 U.S.C. § 7602 (1976), to eight third-party recordkeepers seeking various records and documents in their possession relating to taxpayers’ financial activities. Taxpayers directed these record-keepers not to comply with the summonses. On January 26, 1982, the Government filed petitions with the district court for enforcement of these eight summonses. Taxpayers moved to intervene pursuant to 26 U.S.C. § 7609(b)(1) (1976), and" }, { "docid": "13631565", "title": "", "text": "DUNIWAY, Circuit Judge: Wang and Chen appeal from the district court order dismissing their petition to quash an Internal Revenue Service (IRS) summons issued to Whitfield Management Services. They argue (1) that Whitfield is a “third party recordkeeper” under 26 U.S.C. § 7609 and the summons was improper because they were not given notice, and (2) that as a “target” of a third party subpoena, they are independently entitled to intervene under general law principles. In addition, (3) they challenge the district court’s denial of a discovery request. We affirm on each point. I. Background. In November 1982, the IRS initiated a criminal tax investigation of petitioner Chen. On May 31, 1983, an IRS summons was issued to Whitfield Management Services, a financial service organization which has prepared Wang’s tax returns, demanding the production of any and all records relating to payments by Wang to Chen. Wang filed a petition in the district court to quash the summons, arguing that the summons was unenforceable because the IRS failed to give Wang notice of its issuance as required by 26 U.S.C. § 7609(a)(1). The government moved to dismiss the petition, arguing that Whitfield is not a third party recordkeeper under § 7609(a)(3) and therefore Wang cannot bring a proceeding to quash the summons. The district court granted the government’s motion to dismiss the petition for lack of subject matter jurisdiction under § 7609(h)(1). Wang and Chen filed an ex parte application and motion seeking an order requiring the production of documents. The district court denied the discovery request. II. Third Party Recordkeeper. Under 26 U.S.C. § 7602, the IRS has broad powers to summon information relevant to determining the liability of any taxpayer. The IRS may obtain such information from the taxpayer himself, or it may require production from “any person” holding records “relating to the business of the person liable for tax” or “any other person the Secretary or his delegate may deem proper.” 26 U.S.C. § 7602(a). Under §§ 7609(b)(2) and (h)(1), a district court has jurisdiction of a proceeding to quash a third-party summons when such an action" }, { "docid": "18275299", "title": "", "text": "RULING ON PETITION TO QUASH SUMMONS AND RESPONDENT’S MOTION FOR PROTECTIVE ORDER ELLEN B. BURNS, District Judge. Petitioner has sought to quash thirteen summonses served by the Internal Revenue Service (I.R.S.) on various parties. He also seeks discovery of the government and requests an evidentiary hearing. The I.R.S. has moved for a protective order against the discovery, opposes an evidentiary hearing, seeks to enforce three summonses that were served on third-party record-keepers, and seeks to have the petition dismissed as to the other ten summonses due to jurisdictional defects. The court agrees with the government that the summonses fall into three categories and must be approached in procedurally different manners. The first category includes eight summonses (Petitioner’s exhibits A-H), four served upon Donald Smith as officer of four corporations, and four served upon petitioner as president of the same four corporations. The summonses seek the books and records of the corporations themselves. The second group of summonses, (exhibit I, J and K) were served upon accountants in Connecticut, seeking records pertaining to the personal income tax of petitioner and his wife. Exhibits L and M are similar summonses served upon an accountant in California. A petition to quash an I.R.S. summons is authorized by 26 U.S.C. § 7609(b)(2), which by its definition pertains only to summonses served upon third-party recordkeepers. Section 7609 makes it clear that third-party summonses are those which seek the records of a person “other than the person summoned.” Thus, the eight summonses served upon the four corporations that seek the corporation’s own records a fortiori cannot be third-party summonses. This conclusion is further compelled by § 7609(a)(3) which defines third-party recordkeepers as banks, credit agencies, brokers, attorneys, accountants and the like. Clearly not included are corporations of which the taxpayer is an officer. If the corporations believe they have valid claims of privilege, or other grounds for noncompliance, they can object to a petition to enforce the summonses filed by the I.R.S. 26 U.S.C. § 7604. Therefore, the petition to quash the summonses is dismissed with respect to those summonses identified as exhibits A through H." }, { "docid": "13631566", "title": "", "text": "as required by 26 U.S.C. § 7609(a)(1). The government moved to dismiss the petition, arguing that Whitfield is not a third party recordkeeper under § 7609(a)(3) and therefore Wang cannot bring a proceeding to quash the summons. The district court granted the government’s motion to dismiss the petition for lack of subject matter jurisdiction under § 7609(h)(1). Wang and Chen filed an ex parte application and motion seeking an order requiring the production of documents. The district court denied the discovery request. II. Third Party Recordkeeper. Under 26 U.S.C. § 7602, the IRS has broad powers to summon information relevant to determining the liability of any taxpayer. The IRS may obtain such information from the taxpayer himself, or it may require production from “any person” holding records “relating to the business of the person liable for tax” or “any other person the Secretary or his delegate may deem proper.” 26 U.S.C. § 7602(a). Under §§ 7609(b)(2) and (h)(1), a district court has jurisdiction of a proceeding to quash a third-party summons when such an action is brought by a person entitled to notice of summons under § 7609(a). A person identified in the description of the records contained in the summons is entitled to notice if the summons is served upon a third party recordkeeper as defined in § 7609(a)(3). This subsection lists seven categories of third party recordkeepers including “any accountant.” § 7609(a)(3)(F). The district court relied upon Treas.Reg. 301.7609-2(a)(l) (26 C.F.R.) to find that Whitfield is not a third party recordkeeper under Section 7609: A person is an “accountant” under sec-. tion 7609(a)(3)(F) for purposes of determining whether that person is a third-party recordkeeper if the person is registered, licensed, or certified under State law as an accountant. Appellants argue that Whitfield falls into the category “any accountant” under § 7609(a)(3)(F) when that term is properly construed and that the Treasury Regulation is an invalid limitation on the section. Whitfield was licensed by the State of California as an Income Tax Return Preparer before the California licensing law expired in 1982. However, Whitfield is not registered with or" }, { "docid": "11312768", "title": "", "text": "the government can rely on the voluntary compliance of third parties to effectuate the summons. Thus, when a taxpayer petitions to quash a summons, the government can move to dismiss the petition. Such a motion mirrors a 12(b)(6) motion to dismiss for failure to state a claim. See Jungles v. United States, 634 F.Supp. 585 (N.D.Ill.1986). In a motion to dismiss the petition, the government does not have to establish a Powell prima facie case. Instead, the burden shifts immediately to the petitioner to establish a valid defense to the summons. See Deleeuw v. I.R.S., 681 F.Supp. 402 (E.D.Mich.1987). Here the government does not seek to enforce the summonses. Relying on the voluntary compliance of the third-parties, the government moves only to dismiss the petition to quash. Accordingly, the burden of proof, in the first instance, shifts to petitioners to establish a proper defense to the summonses. Alleging solely that the IRS issued the summons as part of a “fishing expedition seeking information for criminal prosecution beyond any right or probable cause to do so____”, petitioner moves to quash the summons. Petition, paragraph 9. The IRS is precluded from issuing any summons once there is a Justice Department referral. See 26 U.S.C. § 7602(c); Garpeg, Ltd. v. United States, 583 F.Supp. 799 (S.D.N.Y.1984). In this case the IRS never issued such a referral. Therefore, the IRS may issue summonses to ascertain Mr. Cosme’s tax liabilities. Accordingly, petitioners claim that the summonses are part of a criminal investigation is irrelevant. Finally, petitioners’ argument that the summons amounts to a fishing expedition which lacks probable cause lacks merit. “Probable cause” is not the applicable standard in a tax summons cases. Instead, the government need show only that the records sought “might ... throw light upon the correctness of the taxpayer’s return.” United States v. Arthur Young & Co., 465 U.S. 805, 814, 104 S.Ct. 1495, 1501, 79 L.Ed.2d 826 (1984). Here, the government passes this low threshold standard. Mr. Cosme transacted business with all the third parties who were issued summonses. The records possessed by these third parties may throw light on" } ]

[ { "docid": "11943888", "title": "", "text": "loses none of its importance because, recently, the Board, for the time being at least, divested itself of the power it claims Congress gave it to deny to a union its civil liberty of notice and an opportunity to be heard. This was done by the Board’s, promulgation of a rule granting that right. The right now exists, the Board claims, solely by virtue of its grant. The Board makes strong and now repeated insistence, first, that Congress can create in the administrative process such absolutism of control over human relations, and, second, that it intended to create it in the Labor Board. It is apparent that the Board may annul its rule, attempt to abrogate the right and reassume the absolute power it claims. Significant is the absence at the hearing of any request by the Board for a return of this proceeding for service on the employees’ association, to give it an opportunity to be heard on the charge of employer dominance. Preliminarily it may be said that this court recognizes that no case subject to our review could show more clearly the need for a wise and deliberative exercise of the national administrative process which Congress has created for the control of labor relations in industrial plants throughout the United States. This proceeding was initiated by a nation-wide union of the American Federation of Labor. It was seeking to bring into its organization the 70-odd employees of a small manufacturing plant in Los Ange-les, California. A rival union, organized by the men within the plant, had a membership of 75 percent of the employees. The great Brotherhood’s national organizers filed a complaint which led to the Board proceeding in which the destroying order removed its rival. None of the national organizers was an employee of the plant. One of them had his headquarters in Chicago. The central control of the national union was in Washington, with a power and prestige in the American industrial world which, in large part, arises from its millions of associated employee-members in unions in every state. It was such cases as this" } ]

[ { "docid": "8555371", "title": "", "text": "to shift our society from a competitive to a monopolistic economy. Finding no purpose of Congress to immunize labor unions who aid and abet manufacturers and traders in violating the Sherman Act, we hold that the district court correctly concluded that the respondents had violated the Act.” (Italics added.) Columbia River Packers Ass’n v. Hinton, 1942, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750, is another instance where the Supreme Court held that injunctive relief was not barred by the Norris-La Guardia Act, when a violation of the Sherman Act was involved. In the instant case, Section 6 of the Clayton Act (15 U.S.C.A. § 17, supra) does not sanction the alliance of the peddler defendants and the defendant Union, because such alliance was not formed for the purpose of “mutual help”, but rather for the purpose of enabling the peddlers, the Union and the processors together to obtain control of the waste grease trade in the Los Angeles area, with consequent restrictions upon the free flow of yellow grease in foreign commerce. As stated in the Allen Bradley case, supra, Congress did not intend to permit violations of the Sherman Act to go unpunished merely because a labor union is one of the parties to the unlawful combination condemned by that Act. Nor does the Norris-La Guardia Act furnish refuge for the defendants. The strikes and picketing here involved are not “labor disputes” within the meaning of the Act: for these disputes grew out of the refusal of some of the processors to buy waste grease only from Union peddlers, and in no way related to the improvement of wages or working conditions of the Union members. The instant case is clearly parallel to the Columbia Packers case, supra, in that the disputes centered about the processors’ purchase of a commodity (waste grease), and in nowise related to the employer-employee relationship. Therefore, Section 4(b) of the Norris-La Guardia Act (29 U.S.C.A. § 104(b), supra) does not prohibit the issuance of a decree which would terminate the membership of grease peddlers in defendant Union. Defendants assert that this court" }, { "docid": "8555360", "title": "", "text": "discussion is that it furnishes another instance of a union’s attempt to compel the joinder of self-employed persons whose activities tend in some manner to compete with the functions of union members, thus affecting unfavorably the wages and employment of the union members. Upon the basis of the Bakery Drivers and Milk Wagon Drivers’ cases, supra, it may be said that the Supreme Court apparently and impliedly sanctions the union’s coercing the joinder of independent contractors, jobbers or vendors (1) if these groups compete with union members by doing the same or similar work; and (2) if the object of having these groups join the union is to eliminate their unfair competition with union members, and the consequent lowering of the wages and working conditions of union members. In the instant case, the facts contained in the stipulation show that neither of these conditions for the proper joinder of independent contractors with a labor union, is present. The members of defendant Union (Los Angeles Meat and Provision Drivers Union, Local 626) are truck drivers engaged in loading, unloading and transporting meat and meat products for packing houses and related employers. Every processor of yellow grease in the Los Angeles area has employees who are members of the defendant Union. The grease peddler defendants are independent, self-employed businessmen who purchase.waste grease from restaurants and other institutions, and then transport the grease in their own trucks to the processing companies, to whom they sell the grease. These facts do not show that there is competition between the peddlers and the union employees of the processors. On the contrary, there is no competition between these groups because each is engaged in a different line' of work, the peddlers buying grease, transporting and selling it to the processors, and the union members performing other functions for their employers (the processors). The defendant Union solicited the membership of the peddler defendants not for the purpose of raising the wages and working conditions of the peddlers and the union employees of the processors, but for the sole purpose of increasing the income of the peddlers alone," }, { "docid": "8555356", "title": "", "text": "Los Angeles area. It is further stipulated: 1. That the acts of defendants and their co-conspirators constitute a direct, substantial and unreasonable restraint upon foreign trade and commerce in yellow grease. 2. That defendants unlawfully combined and conspired in unreasonable restraint of trade in violation of Section 1 of the Sherman Act. 3. That the court may enter judgment that defendants have violated Section 1 of the Sherman Act as charged in the complaint. 4. That plaintiff is entitled to injunctive relief perpetually enjoining defendants from participating, and from forcing the processors to participate, in any plan the purpose and effect of which is to fix prices and eliminate competition in the peddlers’ gathering grease and selling it to processors. The sole remaining issue in the case is whether the decree should include a provision that the Union be ordered to terminate the membership of peddlers and be perpetually enjoined from accepting peddlers as members, unless they become bona fide employees, and that the peddler defendants be enjoined from holding-membership in and participating in the affairs of the Union, unless they become bona fide employees. Defendants’ first argument in opposition to the ouster of peddlers from defendant Union, is that “membership of peddlers in a union does not transform the union into an illegal combination in restraint of trade under the antitrust laws.” The proposition thus stated appears to be pointless, inasmuch as plaintiff and defendants have stipulated to the fact that the defendants (including the Union and its peddler members) “unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease in violation of Section 1 of the Sherman Act.” (Italics added.) The issue at hand is whether, under the facts as stipulated, the court may properly enter a decree compelling the defendant Union to oust its peddler members. Defendants cite many Supreme Court cases which they claim condone a union’s taking independent contractors into membership. Therefore, what defendants are presumably arguing is that since there is nothing illegal per se about an independent contractor’s joining a union, this court has no power to compel'" }, { "docid": "8555361", "title": "", "text": "in loading, unloading and transporting meat and meat products for packing houses and related employers. Every processor of yellow grease in the Los Angeles area has employees who are members of the defendant Union. The grease peddler defendants are independent, self-employed businessmen who purchase.waste grease from restaurants and other institutions, and then transport the grease in their own trucks to the processing companies, to whom they sell the grease. These facts do not show that there is competition between the peddlers and the union employees of the processors. On the contrary, there is no competition between these groups because each is engaged in a different line' of work, the peddlers buying grease, transporting and selling it to the processors, and the union members performing other functions for their employers (the processors). The defendant Union solicited the membership of the peddler defendants not for the purpose of raising the wages and working conditions of the peddlers and the union employees of the processors, but for the sole purpose of increasing the income of the peddlers alone, and enabling the Union, the peddlers and the processors to control the business of purchasing and selling waste grease in the Los Angeles area. In United States v. Fish Smokers Trade Council, Inc., D.C.S.D.N.Y.1960, 183 F.Supp. 227, which is quite similar on its facts to the instant case, the court concluded 'that the jobbers (independent businessmen) were not a proper subject of unionization because, regardless of how the jobbers were characterized, there was no competition between them and the union employees. The Fish Smokers case involved a suit under Section 4 of the Sherman Act to prevent and restrain continuing violations by defendants of Section 1 of the Act. There, the defendant Union had a total membership of about 700, of which about 75 were jobbers (the counterpart of the peddlers here) who purchased fish from smokehouses for resale to customers. The remaining members of the defendant Union were true employees, a number of whom performed the same function in their capacity as employees of the employer smokehouses, i. e., the employees delivered the fish" }, { "docid": "8555353", "title": "", "text": "ability to load, unload and drive a truck. Grease peddlers drive from restaurant to restaurant picking up small amounts of waste grease in cans and, on the same day, transport and unload the entire collection to one of the processing companies. Their earnings represent the difference between the buy and sell price of the waste grease, diminished by the cost of maintaining and operating the truck. The processing companies who buy the waste restaurant grease from the peddlers then convert it into yellow grease, which they sell either directly to buyers in foreign countries or to buyers in California for shipment to foreign countries. Therefore, any restraint on or disruption in, or interference with, the purchase of waste restaurant grease by peddlers and its sales to processors, and any suppression or elimination of competition in the purchase and sale of waste grease by processors from peddlers, necessarily and directly restrains and affects the flow of yellow grease in foreign commerce. Prior to 1954, the grease peddlers of Los Angeles were not members of, or in any way affiliated with, any labor union. However, in the fall of 1954, the defendant Singer, a business agent of defendant Union, and certain grease peddlers, caused most of the grease peddlers in Los Angeles County to become members of defendant Union. In soliciting their membership, Union representatives, including defendant Singer, proposed the following general plan: The Union would increase the profits of the grease peddlers by increasing the margin between the prices paid by said peddlers for restaurant grease and the prices they would be paid by processors; grease peddlers would be prevented from soliciting or buying grease from the accounts of other peddlers; the processors would be required to deal only with those grease peddlers who were members in good standing of the Union; and unless grease peddlers became members of the Union, they would have no place to sell their restaurant grease and would be forced out of business. In October 1954, a majority of grease peddlers in Los Angeles County, including defendants Taylor, Brandt, Klein and Carlis, joined the defendant Union," }, { "docid": "8555355", "title": "", "text": "thereby agreeing to make operative the plan outlined by defendant Singer and other Union representatives. During the period between October 1954 and May 27, 1959 (the period covered by the complaint), there were in Los Angeles County about 40 to 50 grease peddlers, 35 to 45 of whom were members of defendant Union. After April 1955, these grease peddlers held their membership in a subdivision of the Union known as Local 626-B. During this same period, there were in Los Angeles County eight processors of yellow grease, six of which acquired all or most of their waste grease from grease peddlers. The parties filed a stipulation providing that seventy-two facts set forth therein were admitted, required no proof and should be accepted by the court as being true for purposes of the instant action. These facts relate in detail the plan and the activities of the defendants, and support fully the allegations of the complaint that defendants were guilty of price-fixing and elimination of competition in the gathering and sale of waste grease in the Los Angeles area. It is further stipulated: 1. That the acts of defendants and their co-conspirators constitute a direct, substantial and unreasonable restraint upon foreign trade and commerce in yellow grease. 2. That defendants unlawfully combined and conspired in unreasonable restraint of trade in violation of Section 1 of the Sherman Act. 3. That the court may enter judgment that defendants have violated Section 1 of the Sherman Act as charged in the complaint. 4. That plaintiff is entitled to injunctive relief perpetually enjoining defendants from participating, and from forcing the processors to participate, in any plan the purpose and effect of which is to fix prices and eliminate competition in the peddlers’ gathering grease and selling it to processors. The sole remaining issue in the case is whether the decree should include a provision that the Union be ordered to terminate the membership of peddlers and be perpetually enjoined from accepting peddlers as members, unless they become bona fide employees, and that the peddler defendants be enjoined from holding-membership in and participating in the" }, { "docid": "8555362", "title": "", "text": "and enabling the Union, the peddlers and the processors to control the business of purchasing and selling waste grease in the Los Angeles area. In United States v. Fish Smokers Trade Council, Inc., D.C.S.D.N.Y.1960, 183 F.Supp. 227, which is quite similar on its facts to the instant case, the court concluded 'that the jobbers (independent businessmen) were not a proper subject of unionization because, regardless of how the jobbers were characterized, there was no competition between them and the union employees. The Fish Smokers case involved a suit under Section 4 of the Sherman Act to prevent and restrain continuing violations by defendants of Section 1 of the Act. There, the defendant Union had a total membership of about 700, of which about 75 were jobbers (the counterpart of the peddlers here) who purchased fish from smokehouses for resale to customers. The remaining members of the defendant Union were true employees, a number of whom performed the same function in their capacity as employees of the employer smokehouses, i. e., the employees delivered the fish from the smokehouses to wholesale or retail outlets. The jobbers had joined the Union because of an agreement between the Union and the smokehouses providing that the latter would not sell fish to jobbers who were not Union members. This agreement the Union enforced by threats of strikes against smokehouses refusing to boycott non-Union jobbers. Under these facts, the court concluded that the jobbers were not properly Union members, stating at pages 234 and 235 of 183 F.Supp.: “If the work and functions they [the jobbers] performed in the smoked fish industry conflicted with or competed with the work and functions performed by the chauffeur employees of the smokehouses, and affected the hours, working conditions and wages of these men, then, regardless of what they called themselves, the jobbers would lawfully be forced into the Union. However, it is evident that the mere fact that the jobbers worked long hours and at times earned less than the chauffeur employees had no effect on the working conditions or wages of the chauffeurs — other than the" }, { "docid": "8555373", "title": "", "text": "cannot frame a decree compelling defendant Union to oust its grease peddler members, because such a decree would violate due process by abrogating the contract rights of those who are not parties to the within proceeding. Defendants’ argument runs thus: The defendant Union is affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehousemen. Both the defendant Union and other unions affiliated with the International Brotherhood, have peddler members. Since neither the International Brotherhood nor its other affiliated unions are parties to this action, a decree of this court ordering the ouster of grease peddlers from the defendant Union would violate due process by abrogating the contracts between the absent unions and their peddler members. To state this argument is to refute it: for how can a decree ordering the defendant Union to expel its grease peddler members possibly affect the contracts between other unions in the International Brotherhood and their peddler members ? In support of their contention, defendants cite Consolidated Edison Co. of New York v. N. L. R. B., 1938, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 and N. L. R. B. v. Sterling Electric Motors, 9 Cir., 1940, 112 F.2d 63. In both of these cases the issue under consideration was whether the National Labor Relations Board had jurisdiction to enter orders affecting vital •rights of union members without first giving the union notice or an opportunity to be heard. This issue is not pertinent in the instant case: for here, the decree terminating the peddlers’ membership in the Union would be rendered by a court of the United States and not by an administrative agency, such as the National Labor Relations Board. Furthermore, such a decree would be rendered only after having given the interested parties (Local Union 626, including its grease peddler members) a full hearing. Surely it cannot be seriously contended that the International Brotherhood and its other affiliated unions are “interested parties” to a decree which would terminate only the membership of grease peddlers in Local 626, and would in nowise affect the membership of other peddlers in Local 626," }, { "docid": "8555376", "title": "", "text": "defendant Union who deal in any commodity other than waste restaurant grease. Therefore, a decree compelling defendant Union to oust peddlers from its ranks would not be too vague or too broad because it would not affect the membership of any but the grease peddlers, whose activities as Union members are stipulated to have contributed to the violation of Section 1 of the Sherman Act. However, any remaining doubt as to which Union members would be reached by the mandatory injunction, would be quickly dispelled simply by inserting the adjective “grease” before the noun “peddlers” in the final form of the injunction. Defendants next argue that the proposed mandatory injunction is punitive because the expulsion of grease peddlers from defendant Union is not necessary in order to insure against possible future violations of the Sherman Act by defendants. In antitrust cases, it is the duty of the court to frame its decree so as to suppress the unlawful practices and to take such reasonable measures as will preclude their revival. United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; Ethyl Gasoline Corp. v. United States, 1940, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852. Accordingly, in recent years the Supreme Court has, upon at least three occasions, approved antitrust decrees providing for dissolution or divestiture in order to put an end to combinations whose activities violated the Sherman Act. International Boxing Club of New York, Inc. v. United States, 1959, 358 U. S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270; Schine Chain Theatres v. United States, 1948, 334 U.S. 110, 68 S.Ct. 947, 92 L. Ed. 1245; United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160. In International Boxing Club v. United States, supra, the District Court, 150 F. Supp. 397, found, as the Government had charged, that defendants had violated §§ 1 and 2 of the Sherman Act by conspiring to restrain interstate trade and commerce in, and by monopolizing, the promotion, broadcasting and televising of world championship boxing contests. After further hearings on" }, { "docid": "8555354", "title": "", "text": "any way affiliated with, any labor union. However, in the fall of 1954, the defendant Singer, a business agent of defendant Union, and certain grease peddlers, caused most of the grease peddlers in Los Angeles County to become members of defendant Union. In soliciting their membership, Union representatives, including defendant Singer, proposed the following general plan: The Union would increase the profits of the grease peddlers by increasing the margin between the prices paid by said peddlers for restaurant grease and the prices they would be paid by processors; grease peddlers would be prevented from soliciting or buying grease from the accounts of other peddlers; the processors would be required to deal only with those grease peddlers who were members in good standing of the Union; and unless grease peddlers became members of the Union, they would have no place to sell their restaurant grease and would be forced out of business. In October 1954, a majority of grease peddlers in Los Angeles County, including defendants Taylor, Brandt, Klein and Carlis, joined the defendant Union, thereby agreeing to make operative the plan outlined by defendant Singer and other Union representatives. During the period between October 1954 and May 27, 1959 (the period covered by the complaint), there were in Los Angeles County about 40 to 50 grease peddlers, 35 to 45 of whom were members of defendant Union. After April 1955, these grease peddlers held their membership in a subdivision of the Union known as Local 626-B. During this same period, there were in Los Angeles County eight processors of yellow grease, six of which acquired all or most of their waste grease from grease peddlers. The parties filed a stipulation providing that seventy-two facts set forth therein were admitted, required no proof and should be accepted by the court as being true for purposes of the instant action. These facts relate in detail the plan and the activities of the defendants, and support fully the allegations of the complaint that defendants were guilty of price-fixing and elimination of competition in the gathering and sale of waste grease in the" }, { "docid": "8555367", "title": "", "text": "the Milk Wagon Drivers’ Union decision, or whether it was really a conspiracy masquerading as a labor agreement in order to restrain competition between business men as in Allen Bradley Co. v. Local Union No. 3, supra, * * *, depends on whether the jobbers, although so-called independent business men, were really a labor group.” Defendant peddlers and the defendant Union’s employees in this case did not compete with each other. Therefore, the peddlers are not a labor group and are not the proper subject of unionization. Moreover, in this case the peddlers were taken into the defendant Union for the purpose of raising their income and enabling the Union, the peddlers and the processors to put together a combination to control the business of buying and selling waste grease in the Los Angeles area, thereby restraining foreign commerce in yellow grease in violation of the Sherman Act. Defendants contend that it is not possible to grant the relief sought by plaintiff because of Section 6 of the Clayton Act [15 U.S.C.A. § 17] and Section 4 (b) of the Norris-La Guardia Act [29 U. S.C.A. § 104(b)] . It has long been settled law that neither the Clayton Act nor the Norris-La Guardia Act permits labor unions to combine with other, non-labor groups for the purpose of monopolizing trade in violation of the Sherman Act. Allen Bradley Co. v. Local Union No. 3, 1945, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939; Columbia River Packers Ass’n v. Hinton, 1942, 315 U.S. 143, 62 S.Ct. 520, 86 L. Ed. 750. In Allen Bradley Co. v. Local Union No. 3, supra, the Electrical Workers Union and its members, prompted by the desire to get and hold jobs for themselves at good wages and under high working standards, combined with employers and manufacturers of electrical equipment to restrain competition in, and to monopolize the marketing of, electrical equipment. The Supreme Court held that the Union’s activities constituted a violation of the Sherman Act, despite the provisions of the Clayton and Norris-La Guardia Acts. In this regard, the court made the following" }, { "docid": "8555357", "title": "", "text": "affairs of the Union, unless they become bona fide employees. Defendants’ first argument in opposition to the ouster of peddlers from defendant Union, is that “membership of peddlers in a union does not transform the union into an illegal combination in restraint of trade under the antitrust laws.” The proposition thus stated appears to be pointless, inasmuch as plaintiff and defendants have stipulated to the fact that the defendants (including the Union and its peddler members) “unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease in violation of Section 1 of the Sherman Act.” (Italics added.) The issue at hand is whether, under the facts as stipulated, the court may properly enter a decree compelling the defendant Union to oust its peddler members. Defendants cite many Supreme Court cases which they claim condone a union’s taking independent contractors into membership. Therefore, what defendants are presumably arguing is that since there is nothing illegal per se about an independent contractor’s joining a union, this court has no power to compel' the expulsion of defendant peddlers from defendant Union. It may be noted at the outset that the precise issue of whether an independent contractor may properly join a union appears never to have been before the Supreme Court. At any rate, this issue was not decided in any of the cases cited by defendants in their brief. A reading of these eases discloses that only in the most indirect fashion did the court indicate its views as to the propriety of extending union membership to independent contractors, jobbers, vendors, or the like. For example, in Bakery and Pastry Drivers and Helpers Local, etc. v. Wohl, 1941, 315 U.S. 769, 62 S.Ct. 816, 86 L. Ed. 1178, in an effort to compel peddlers (independent jobbers) to join the bakery drivers’ union, members of that union had peacefully picketed bakeries from which peddlers obtained their goods, carrying placards with the peddlers’ names and a true statement of the union’s grievances. The Supreme Court held that a state court injunction against such picketing was an unconstitutional invasion of" }, { "docid": "8555372", "title": "", "text": "stated in the Allen Bradley case, supra, Congress did not intend to permit violations of the Sherman Act to go unpunished merely because a labor union is one of the parties to the unlawful combination condemned by that Act. Nor does the Norris-La Guardia Act furnish refuge for the defendants. The strikes and picketing here involved are not “labor disputes” within the meaning of the Act: for these disputes grew out of the refusal of some of the processors to buy waste grease only from Union peddlers, and in no way related to the improvement of wages or working conditions of the Union members. The instant case is clearly parallel to the Columbia Packers case, supra, in that the disputes centered about the processors’ purchase of a commodity (waste grease), and in nowise related to the employer-employee relationship. Therefore, Section 4(b) of the Norris-La Guardia Act (29 U.S.C.A. § 104(b), supra) does not prohibit the issuance of a decree which would terminate the membership of grease peddlers in defendant Union. Defendants assert that this court cannot frame a decree compelling defendant Union to oust its grease peddler members, because such a decree would violate due process by abrogating the contract rights of those who are not parties to the within proceeding. Defendants’ argument runs thus: The defendant Union is affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehousemen. Both the defendant Union and other unions affiliated with the International Brotherhood, have peddler members. Since neither the International Brotherhood nor its other affiliated unions are parties to this action, a decree of this court ordering the ouster of grease peddlers from the defendant Union would violate due process by abrogating the contracts between the absent unions and their peddler members. To state this argument is to refute it: for how can a decree ordering the defendant Union to expel its grease peddler members possibly affect the contracts between other unions in the International Brotherhood and their peddler members ? In support of their contention, defendants cite Consolidated Edison Co. of New York v. N. L. R. B., 1938, 305 U.S." }, { "docid": "8555375", "title": "", "text": "or of grease peddlers or any species of peddlers in any other union affiliated with the International Brotherhood. The mandatory injunction sought by plaintiff would embody a provision that the Union be ordered to terminate the membership of peddlers in' said Union and be perpetually enjoined from accepting peddlers as members thereof, unless they become bona fide employees. Defendants argue that such a mandatory provision is too vague and broad because it would expel from defendant Union not only the 30 or 40 grease peddler members, but in addition all of the Union’s 500 or 600 peddler members. The term “peddlers” as used throughout this action is defined by sub-paragraph 15, Paragraph IV of the complaint (page 3) as “persons who are self-employed entrepreneurs engaged in the business of buying and selling restaurant grease for their own account from restaurants, hotels, and institutions, transporting said grease in trucks owned or operated by themselves to the plants of processors, and selling such restaurant grease to said processors.” Such a definition certainly excludes all peddler members of defendant Union who deal in any commodity other than waste restaurant grease. Therefore, a decree compelling defendant Union to oust peddlers from its ranks would not be too vague or too broad because it would not affect the membership of any but the grease peddlers, whose activities as Union members are stipulated to have contributed to the violation of Section 1 of the Sherman Act. However, any remaining doubt as to which Union members would be reached by the mandatory injunction, would be quickly dispelled simply by inserting the adjective “grease” before the noun “peddlers” in the final form of the injunction. Defendants next argue that the proposed mandatory injunction is punitive because the expulsion of grease peddlers from defendant Union is not necessary in order to insure against possible future violations of the Sherman Act by defendants. In antitrust cases, it is the duty of the court to frame its decree so as to suppress the unlawful practices and to take such reasonable measures as will preclude their revival. United States v. Crescent Amusement" }, { "docid": "8555378", "title": "", "text": "the nature and extent of the relief necessary to protect the public interest, the District Court entered a final judgment dissolving the international boxing clubs, directing the individual defendants to divest themselves of their stock in Madison Square Garden, and granting injunctive relief designed to open up the market in the business of promoting professional world championship boxing matches. The Supreme Court affirmed the judgment, holding that the relief granted was not beyond the allowable discretion of the District Court. In United States v. Crescent Amusement Co., supra the United States brought civil suit against nine affiliated companies operating motion picture theaters throughout five States, and against eight major distributors of motion pictures, charging them with conspiracy to restrain interstate trade and commerce in motion picture films and to monopolize the exhibition of films in violation of §§ 1 and 2 of the Sherman Act. The District Court found that certain of the defendants had violated the Act, and entered a decree which required, among other things, that the corporate exhibí tors divest themselves of ownership of stock or any other interest in any other ■corporate defendant, and that certain corporate officers resign from their positions. The Supreme Court affirmed the ■divestiture and resignation provisions of the decree. In the instant case, the stipulated facts clearly show that before the grease peddlers joined the defendant Union, there was no suppression of competition among them, and that only the support of the Union and the powerful weapons at its command enabled the peddlers and the Union together to destroy free competition in the purchase and sale of waste grease, and to drive several processors •out of business. As long as this association of the peddlers and the Union continues, there is danger that their combined activities will be revived and that further suppression ■of competition in the yellow grease industry will result. To borrow the language of the Supreme Court in the Crescent Amusement Co. case, supra, “The ■proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in" }, { "docid": "8555374", "title": "", "text": "197, 59 S.Ct. 206, 83 L.Ed. 126 and N. L. R. B. v. Sterling Electric Motors, 9 Cir., 1940, 112 F.2d 63. In both of these cases the issue under consideration was whether the National Labor Relations Board had jurisdiction to enter orders affecting vital •rights of union members without first giving the union notice or an opportunity to be heard. This issue is not pertinent in the instant case: for here, the decree terminating the peddlers’ membership in the Union would be rendered by a court of the United States and not by an administrative agency, such as the National Labor Relations Board. Furthermore, such a decree would be rendered only after having given the interested parties (Local Union 626, including its grease peddler members) a full hearing. Surely it cannot be seriously contended that the International Brotherhood and its other affiliated unions are “interested parties” to a decree which would terminate only the membership of grease peddlers in Local 626, and would in nowise affect the membership of other peddlers in Local 626, or of grease peddlers or any species of peddlers in any other union affiliated with the International Brotherhood. The mandatory injunction sought by plaintiff would embody a provision that the Union be ordered to terminate the membership of peddlers in' said Union and be perpetually enjoined from accepting peddlers as members thereof, unless they become bona fide employees. Defendants argue that such a mandatory provision is too vague and broad because it would expel from defendant Union not only the 30 or 40 grease peddler members, but in addition all of the Union’s 500 or 600 peddler members. The term “peddlers” as used throughout this action is defined by sub-paragraph 15, Paragraph IV of the complaint (page 3) as “persons who are self-employed entrepreneurs engaged in the business of buying and selling restaurant grease for their own account from restaurants, hotels, and institutions, transporting said grease in trucks owned or operated by themselves to the plants of processors, and selling such restaurant grease to said processors.” Such a definition certainly excludes all peddler members of" }, { "docid": "8555380", "title": "", "text": "the future.” [323 U.S. 173, 65 S.Ct. 262.] Therefore, far from being punitive, a decree terminating the member.ship of the grease peddlers in defendant Union appears to be the most effective, if not the only, means of preventing a ■recurrence of defendants’ unlawful activities. The decree shall include a provision ordering defendant Union to terminate the membership of its grease peddler members, and perpetually enjoining the Union from accepting grease peddlers as members unless they become bona fide employees. It shall also enjoin the peddler defendants from holding membership in .and participating in the affairs of the Union, unless they become bona fide employees. Counsel for plaintiffs is directed to prepare, serve and lodge findings and judgment in accordance with local rule 7, West’s Ann.Code. . Title 15 U.S.C.A. “§ 17. Antitrust laws not applicable to labor organizations “Tlie labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purpose of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.” . Title 29 U.S.O.A. “§ 104. Enumeration of specific acts not subject to restraining orders or injunctions “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are heroin defined) from doing, whether singly or in concert, any of the following acts: * * * * * “(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as described in section 103 of this title;”" }, { "docid": "8555379", "title": "", "text": "ownership of stock or any other interest in any other ■corporate defendant, and that certain corporate officers resign from their positions. The Supreme Court affirmed the ■divestiture and resignation provisions of the decree. In the instant case, the stipulated facts clearly show that before the grease peddlers joined the defendant Union, there was no suppression of competition among them, and that only the support of the Union and the powerful weapons at its command enabled the peddlers and the Union together to destroy free competition in the purchase and sale of waste grease, and to drive several processors •out of business. As long as this association of the peddlers and the Union continues, there is danger that their combined activities will be revived and that further suppression ■of competition in the yellow grease industry will result. To borrow the language of the Supreme Court in the Crescent Amusement Co. case, supra, “The ■proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in the future.” [323 U.S. 173, 65 S.Ct. 262.] Therefore, far from being punitive, a decree terminating the member.ship of the grease peddlers in defendant Union appears to be the most effective, if not the only, means of preventing a ■recurrence of defendants’ unlawful activities. The decree shall include a provision ordering defendant Union to terminate the membership of its grease peddler members, and perpetually enjoining the Union from accepting grease peddlers as members unless they become bona fide employees. It shall also enjoin the peddler defendants from holding membership in .and participating in the affairs of the Union, unless they become bona fide employees. Counsel for plaintiffs is directed to prepare, serve and lodge findings and judgment in accordance with local rule 7, West’s Ann.Code. . Title 15 U.S.C.A. “§ 17. Antitrust laws not applicable to labor organizations “Tlie labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for" }, { "docid": "8555352", "title": "", "text": "BYBNE, District Judge. The United States filed its complaint under Section 4 of the Sherman Act (15 U.S.C.A. § 4) seeking to prevent and restrain a continuing violation by defendants of Section 1 of the Act (15 U.S.C.A. § 1). The defendant Los Angeles Meat and Provision Drivers Union, Local 626, is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America, and has its principal place of business in Los Angeles, California. Defendant Meyer Singer is business representative of the Union who actively managed and coordinated the affairs and acts of the grease peddler members of the Union. Defendants Lee Taylor, Hubert Brandt, Walter Klein and Harold Carlis are grease peddler members of the Union. “Grease peddlers” are defined as independent businessmen who are in the business of buying, transporting and selling waste restaurant grease for their own account. These self-employed peddlers have no established place of business; no employees, except an occasional loader; no capital investment, except a small equity in a truck; no skill or special qualifications except the ability to load, unload and drive a truck. Grease peddlers drive from restaurant to restaurant picking up small amounts of waste grease in cans and, on the same day, transport and unload the entire collection to one of the processing companies. Their earnings represent the difference between the buy and sell price of the waste grease, diminished by the cost of maintaining and operating the truck. The processing companies who buy the waste restaurant grease from the peddlers then convert it into yellow grease, which they sell either directly to buyers in foreign countries or to buyers in California for shipment to foreign countries. Therefore, any restraint on or disruption in, or interference with, the purchase of waste restaurant grease by peddlers and its sales to processors, and any suppression or elimination of competition in the purchase and sale of waste grease by processors from peddlers, necessarily and directly restrains and affects the flow of yellow grease in foreign commerce. Prior to 1954, the grease peddlers of Los Angeles were not members of, or in" }, { "docid": "8555366", "title": "", "text": "business men as plaintiff maintains and therefore not a proper subject of unionization; if they are, then it follows that the defendants’ alleged activities in forcing them into the Union and into agreements to allocate their customers is an act in restraint of trade within the stricture of the antitrust laws, Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939. If, however, these jobbers are a labor group as defendants contend, then their activities are protected by the Clayton and Norris-La Guardia Acts and under Milk Wagon Drivers’ Union, etc. v. Lake Valley Farm Products, 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63.” and again at page 234: “But whether such agreement among the smokehouses, the Union and the jobbers was simply the usual closed shop labor agreement in order ‘to see that each of them (the Jobber) earns a living, and that not one guy gets it all * * * and that everyone gets an even break’, as defendant argues, and consequently lawful under the Milk Wagon Drivers’ Union decision, or whether it was really a conspiracy masquerading as a labor agreement in order to restrain competition between business men as in Allen Bradley Co. v. Local Union No. 3, supra, * * *, depends on whether the jobbers, although so-called independent business men, were really a labor group.” Defendant peddlers and the defendant Union’s employees in this case did not compete with each other. Therefore, the peddlers are not a labor group and are not the proper subject of unionization. Moreover, in this case the peddlers were taken into the defendant Union for the purpose of raising their income and enabling the Union, the peddlers and the processors to put together a combination to control the business of buying and selling waste grease in the Los Angeles area, thereby restraining foreign commerce in yellow grease in violation of the Sherman Act. Defendants contend that it is not possible to grant the relief sought by plaintiff because of Section 6 of the Clayton Act [15 U.S.C.A. § 17] and" } ]

[ { "docid": "22218121", "title": "", "text": "case has presented a sensitive issue, with allegations of a policy of perpetuating a white majority in local government, and resultant racial tensions. We cannot allow those allegations to have us take on the “abstract questions of wide public significance,” however, especially those already addressed by governmental institutions competent to provide redress. Warth, 422 U.S. at 500, 95 S.Ct. 2197 (recognizing that “standing in no way depends on the merits of the plaintiffs contention that particular conduct is illegal”). Thus, we reverse the district court’s dismissal of the Amended Complaint insofar as Taliaferro and Alexander have alleged that their property values will be damaged by the grant of the variance because such a claim meets the constitutional standing requirements under Article III and because abstention would be not be appropriate. In all other respects, the judgment of the district court is affirmed. . The United States Department of Housing and Urban Development and two of its officials were originally named in the Complaint but are no longer involved in the case. . This count was dismissed as against Defendant Healy on September 22, 2004. . Litigants may bring an action on behalf of third parties only in limited circumstances, when: (1) the litigant has suffered an injury in fact, giving him a sufficiently concrete interest in the outcome of the issue; (2) the litigant has a close relation to the third party; and (3) there exists some hindrance to the third party's ability to protect his own interest. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (citing Singleton v. Wulff, 428 U.S. 106, 111-16, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976)). . There is no indication in the record that any developer was injured by a zoning decision blocking construction efforts or took steps to appeal an adverse ruling. . Further, any claim in the nature of a breach of contract regarding the condemnation of these Appellants' land surely would be barred by the statute of limitations, rendering appropriate dismissal under" } ]

[ { "docid": "12180125", "title": "", "text": "who seek access to their market or function.”). This exception applies to the current case. In order to bring claims on behalf of third parties, a litigant must satisfy three important criteria. [T]he litigant must have suffered an “injury-in-fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir.1994) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (citations omitted)). All three of these criteria are met in the current case. First, as already noted, Young Apartments has sufficiently alleged that it has a concrete interest in the outcome of this dispute. Young Apartments’ pursuit of economic damages is sufficient to ensure that it would be an effective advocate in this dispute. See Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1212-13 (8th Cir.1972). This prong weighs particularly strongly in favor of standing for Young Apartments, because it claims an economic injury (for the loss in value of its housing property) that would not be remedied in a suit brought by the immigrant tenants themselves. See Puglisi, 947 F.Supp. at 688. Second, the interests of Young Apartments and its tenants are sufficiently aligned to ensure that Young Apartments will properly frame the issues in this dispute. See Harris, 20 F.3d at 1123. The district court found that Young Apartments had no standing because its interests were not “intimately close” to the interests of its tenants. (D. Ct. Op. at 7 n.4.) But this test is overly strict. The appropriate question is whether the identity of interests between plaintiff and the third party are “sufficiently close.” As another circuit court has stated, “[tjhough, generally speaking, the right to equal protection is a personal right of individuals, this is ‘only a rule of practice,’ which will not be followed where the identity of interest between the party" }, { "docid": "8274294", "title": "", "text": "L.Ed.2d 346 (1976). Although \" 'article III judicial power exists only to redress or otherwise protect against injury to the complaining party,' ” Rocks v. City of Phila., 868 F.2d 644, 647 (3d Cir.1989) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)), there are prudential limits on standing that, under narrow circumstances, may be extended to permit a litigant to raise the rights of a third party. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). More specifically, third-party standing exists if the following three criteria are satisfied: The litigant must have suffered an \"injury in fact,” thus giving him or her a \"sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must be some hindrance to the third party’s ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (internal citations omitted). This doctrine may be relaxed in First Amendment overbreadth challenges, Serv. Employees Int'l Union, Local 3 v. Mun. of Mt. Lebanon, 446 F.3d 419, 423 (3d Cir.2006), but Geisenberger has not sought to invalidate 11 U.S.C. § 526 on overbreadth grounds. Nor has he challenged the law as unconstitutionally vague. More importantly, in the absence of an alleged \"injury in fact” to his own interests, Geisenberger has not satisfied the first requirement of the prudential standing doctrine. Id. Without standing, I am precluded from reviewing the constitutionality of 11 U.S.C. § 526(a)(4) on the merits. On its face, though, this provision is a content-based restriction on speech because it prohibits attorneys from communicating a particular message and, doctrinally, would be reviewed with heightened scrutiny. . There are two paragraphs in the Complaint that are preceded by the numeral \"4.” This cite is to the second." }, { "docid": "22631195", "title": "", "text": "Court of Registration, 179 U. S. 405, 406-407 (1900); Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 220 (1903); Owings v. Norwood’s Lessee, 5 Cranch 344, 348 (1809) (Marshall, C. J.); In re Wellington, 33 Mass. 87, 96 (1834) (Shaw, C. J.); Barrows v. Jackson, 346 U. S. 249, 264-266, and n. 6 (1953) (Vinson, C. J., dissenting). Justice Ginsburg, with whom Justice Stevens and Justice Souter join, dissenting. Plaintiffs-respondents Arthur M. Fitzgerald and Michael D. Vogler are Michigan attorneys who have routinely received appointments to represent defendants in state-court criminal appeals, including appeals from plea-based convictions. They assert third-party standing to challenge a state law limiting an indigent’s right to counsel: As codified in Mich. Comp. Laws Ann. §770.3a(l) (West 2000), the challenged law prescribes that most indigents “who plea[d] guilty, guilty but mentally ill, or nolo con-tendere shall not have appellate counsel appointed for review of the defendant’s conviction or sentence.” The attorneys before us emphasize that indigent defendants generally are unable to navigate the appellate process pro se. In view of that reality, the attorneys brought this action under 42 U. S. C. § 1983, to advance indigent defendants’ constitutional right to counsel’s aid in pursuing appeals from plea-based convictions. “Ordinarily,” attorneys Fitzgerald and Vogler acknowledge, “one may not claim standing... to vindicate the constitutional rights of [a] third party.” Barrows v. Jackson, 346 U. S. 249, 255 (1953). The Court has recognized exceptions to the general rule, however, when certain circumstances combine: (1) “The litigant [has] suffered an ‘injury in fact,’... giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”; (2) “the litigant [has] a close relation to the third party”; and (3) “there [exists] some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (quot ing Singleton v. Wulff, 428 U. S. 106, 112 (1976)). The first requirement is of a different order than the second and third, for whether a litigant meets the constitutional prescription of injury in fact determines" }, { "docid": "11770494", "title": "", "text": "Lyons, 461 U.S. at 108, 103 S.Ct. at 1668-69 (acknowledging that someone in the future may be killed by the unconstitutional application of a chokehold, but finding no standing because it was only speculation that the plaintiff would). As for the second rationale, the Supreme Court has held that “[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” Valley Forge Christian College, 454 U.S. at 489, 102 S.Ct. at 767 (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)). Nor would our analysis change if the named residential care facilities and doctors could assert these claims on behalf of their patients. See Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411 (1991) (holding that a litigant may bring an action on behalf of a third party so long as: (1) the litigant has suffered an “injury in fact”; (2) the litigant has a close relation to the third party; and (3) there is some hindrance to the third party’s ability to protect his or her own interests). At best, the doctors and residential care facilities would be asserting the interests of unnamed patients who are no closer to suffering the asserted injury than Eisner. Because these unnamed patients would not have standing to assert their own interests, their doctors and care-givers cannot have standing to assert interests on their behalf. Lastly, the fact that Plaintiffs filed their complaint as a class action is of no moment. Standing “is a jurisdictional element that must be satisfied prior to class certification.” Nelsen, 895 F.2d at 1249-50 (quoting LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th Cir.1985)). “If the litigant fails to establish standing, he may not ‘seek relief on behalf of himself or any other member of the class.’ ” Id. at 1250 (quoting O'Shea, 414 U.S. at 494, 94 S.Ct. at 675). None of the Plaintiffs can assert an “injury in fact” resulting from the alleged equal protection, due process, Americans" }, { "docid": "2576710", "title": "", "text": "of third parties. Saladin, 812 F.2d at 690. This third prudential consideration, the general prohibition against third-party standing, is our primary concern in- the instant case. B. Third-party Standing We find that Harris lacks standing in this case under the general principle that a litigant must assert his own legal rights and interests and may not ordinarily rely on the rights and interests of third parties. The prohibition against third-party standing promotes the fundamental purpose of the standing requirement by ensuring that the courts hear only concrete disputes between interested litigants who will frame the issues properly. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220-21, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974). In spite of these important purposes, the Supreme Court has recognized several factors that may justify exceptions to the general rule against third-party standing. One of the Court’s most recent pronouncements on the issue, Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), involved the rights of criminal defendants to raise the equal protection rights of jurors who are excluded on the basis of race. There, the Court characterized the third-party standing inquiry as follows: We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an “injury-in-fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Id. at 409-12, 111 S.Ct. at 1370-71 (citations omitted). We have examined each of these factors and find that none justifies granting Harris standing to litigate the First Amendment rights of prison employees. 1. Injury in Fact In order to have third-party standing, a party must first show that he has suffered an actual or threatened injury. Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976) (plurality opinion). In other words, the plaintiff" }, { "docid": "911293", "title": "", "text": "standing, or whether courts are instead to balance them. In some cases, the Court has explicitly or implicitly held that an obstacle to the rightholder’s suit is not an absolute requirement for third party standing. In Caplin & Drysdale, for example, the Court held that a lawyer had third party standing to raise the Sixth Amendment rights of a client when challenging a statute that might have inhibited the client from paying his attorneys’ fees. The Court concluded that even though a criminal defendant suffers no serious obstacles to advancing his or her own claim, the other two factors weighed strongly enough that the lawyer had standing. Id. Similarly, the Court has held that in First Amendment overbreadth challenges, the danger of chilling expression is so important that the showing of an obstacle is not required. Munson, 467 U.S. at 957, 104 S.Ct. at 2847 (“Although [failure to show an obstacle] might defeat a party’s standing outside the First Amendment context, this Court has not found the argument dispositive in determining whether standing exists to challenge a statute that allegedly chills free speech.”). See also Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (no inquiry into obstacle in summarily upholding booksellers’ standing to raise bookbuyers’ First Amendment rights in facial challenge to statute). On the other hand, in Powers v. Ohio, which upheld the standing of a litigant to raise the Equal Protection claims of jurors peremptorily challenged due to their race, the Court’s language seemed to require certain showings from would-be third party claimants: We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute ...; the litigant must have a close relation to the third party ...; and there must exist some hindrance to the third party’s ability to protect his or her own interests.... Ill S.Ct. at 1370-71 (citations omitted). Despite this" }, { "docid": "9995859", "title": "", "text": "would change its rules if the ones it had promulgated were vacated satisfied the redressability requirement because it gave the petitioner the opportunity of a favorable outcome in the new rulemaking). Thus, because it is possible that the court could find that the names should be published, Lepelletier has satisfied this final requirement. We therefore find that Lepelletier has standing under Article III to bring a due process claim. Next, we must determine whether Lepelletier, as a third party, may raise a claim alleging a violation of the depositors’ due process rights. Although the “limitations on a litigant’s assertion of pis tertii are not constitutionally mandated, ... [they] stem from a salutary ‘rule of self-restraint’ designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative.” Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The Supreme Court has articulated three prudential considerations to be weighed when determining whether an individual may assert the rights of others: (1) “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute,” (2) “the litigant must have a close relation to the third party,” and (3) “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112-16, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)); see also Craig, 429 U.S. at 195-96, 97 S.Ct. 451. In this case, the first and third factors are easily satisfied. As discussed above, Lepelletier has suffered an injury in fact—• the loss of a real business opportunity— which gives him a concrete interest in the resolution of this suit. There is also a hindrance preventing the depositors from protecting their interests: the depositors are likely unaware of their unclaimed funds, and these funds soon will be forfeited to the FDIC. And even though a depositor may be able to bring a due process claim after" }, { "docid": "15986608", "title": "", "text": "attributes common to persons who may have been excluded from residence in the town is an insufficient predicate for the conclusion that [plaintiffs] themselves have been excluded....” Id. Here, the Storinos have conceded that they are not members of the class of low and moderate income persons described in their Complaint. Unlike the individual plaintiffs in Worth, they do not even allege that they are among the class of people whose equal protection rights have been violated by the adoption of this Ordinance. Their second asserted basis for standing, therefore, runs afoul of the holding in Worth that “a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court’s intervention.” Id. at 508, 95 S.Ct. 2197 (emphasis added). In general, a litigant may assert only his own legal rights or interests, and can not “rest a claim to relief on the legal rights or interests of third parties.” Pow ers, 499 U.S. at 410, 111 S.Ct. 1364. The Court has recognized a limited right of litigants to bring actions on behalf of third parties only when the following three criteria are met: (1) the litigant has suffered an injury in fact giving him a sufficiently concrete interest in the outcome of the issue; (2) the litigant has a close relation to the third party; and (3) there exists some hindrance to the third party’s ability to protect his own interests. Id. at 410-11, 111 S.Ct. 1364 (citing Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). This well-settled precedent makes clear that it is only possible to find third party standing when there is also an injury in fact alleged by the first party plaintiff. As was explained above, the Storinos have not alleged an injury in fact. Nonetheless, in their supplemental brief, the Storinos claim that their “standing in the shoes of low income people” argument is analogous to" }, { "docid": "4028945", "title": "", "text": "News’ ability to raise the rights of third parties. In addition to asserting its own rights, The Pitt News also attempts to argue that enforcement of Act 199 violates the First Amendment rights of its former advertisers, who are subject to the provisions of the statute, as well as those of its adult readers. How ever, the federal courts adhere to a prudential rule that “[ojrdinarily, one may not claim standing ... to vindicate the constitutional rights of some third party.” Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (quoting Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953)). We apply this prudential rule against third party standing even when the requirements of Article III have been met, to “avoid deciding questions of broad social import ... [and] to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). There is, however, a narrow exception to the prohibition on third party standing, provided three criteria are satisfied. First, the plaintiff must have suffered an actual injury, although not necessarily one to its own legally protected interests. See Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411 (1991). Second, the plaintiff must have a close enough relationship with the party whose rights he or she is asserting, “thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute” and ensuring that the plaintiff will be an effective advocate. Id. Third, “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Id. Thus, a plaintiff who meets all these criteria, but who would otherwise lack Article III standing to sue because his or her own legally protected rights were not injured, may assert the rights of a third party. The impact felt by such a plaintiff, combined with the nexus between the plaintiffs injury and the rights" }, { "docid": "2576711", "title": "", "text": "protection rights of jurors who are excluded on the basis of race. There, the Court characterized the third-party standing inquiry as follows: We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an “injury-in-fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Id. at 409-12, 111 S.Ct. at 1370-71 (citations omitted). We have examined each of these factors and find that none justifies granting Harris standing to litigate the First Amendment rights of prison employees. 1. Injury in Fact In order to have third-party standing, a party must first show that he has suffered an actual or threatened injury. Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976) (plurality opinion). In other words, the plaintiff must show that he has “a sufficiently concrete interest in the outcome of [the] suit to make it a case or controversy subject to a federal court’s Art. Ill jurisdiction.” Id. In describing the types of injuries that satisfy the Article III requirement, the Supreme Court has used the terms “distinct and palpable injury,” Warth, 422 U.S. at 601, 95 S.Ct. at 2206, “particular concrete injury,” United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 2946, 41 L.Ed.2d 678 (1974), and “specific present objective harm,” Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972). We find that Harris has failed to make the requisite showing of a concrete injury in fact. Harris’s complaint alleged only that he had requested that prison employees write recommendation letters on his behalf to the parole board, but that the DOC policy prevented them from doing so. Harris never made any showing that there were specific prison employees who, but for the prison policy, would have written favorable letters on his behalf." }, { "docid": "3668013", "title": "", "text": "bring lawsuits on behalf of unwitting strangers. Coalition of Clergy, 189 F.Supp.2d at 1044. Having demonstrated no relationship either as to any individual detainee or to the detainees en masse, the efficacy of the Coalition’s representation is in serious doubt. At best, the Coalition can only assert “a generalized interest in constitutional governance.” Whitmore, 495 U.S. at 164, 110 S.Ct. 1717. This relationship is insufficient to support next-friend standing. B. Third-party standing. It is a well-established rule that a litigant may assert only his own legal rights and interests and cannot rest a claim to relief on the legal rights or interests of third parties. Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Warth, 422 U.S. at 499, 95 S.Ct. 2197. As the prohibition against third-party standing is prudential, rather than constitutional, the Supreme Court has recognized exceptions to this general rule. For example, in Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which upheld a litigant’s third-party standing to raise equal protection claims of jurors peremptorily challenged due to race, the Supreme Court recognized three requirements for would-be third-party petitioners. We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Id. (citations omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shaw.v. Hahn, 56 F.3d 1128, 1130 n. 3 (9th Cir.1995) (third party must have suffered an injury-in-fact) (citing Singleton, 428 U.S. at 112-16, 96 S.Ct. 2868). Of the three requirements for third-party standing: (1) injury-in-fact; (2) close relationship to the third party; and (3) hindrance to the third party; the Coalition addresses only the last. It contends that a litigant" }, { "docid": "3668014", "title": "", "text": "claims of jurors peremptorily challenged due to race, the Supreme Court recognized three requirements for would-be third-party petitioners. We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Id. (citations omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shaw.v. Hahn, 56 F.3d 1128, 1130 n. 3 (9th Cir.1995) (third party must have suffered an injury-in-fact) (citing Singleton, 428 U.S. at 112-16, 96 S.Ct. 2868). Of the three requirements for third-party standing: (1) injury-in-fact; (2) close relationship to the third party; and (3) hindrance to the third party; the Coalition addresses only the last. It contends that a litigant may raise the claims of a third party if there is reason to believe that the individual is unlikely to be able to sue for himself or herself. Even if we were to assume satisfaction, of the third requirement, a hindrance to the detainees’ ability to assert their own claims, we would nevertheless conclude that the Coalition lacks third-party standing because neither it nor its members can demonstrate either the first requirement of an injury-in-fact or the second requirement of a close relationship. As to the first, the Coalition makes no allegation of personal injury to its members, and as to the second, it has alleged no relationship to the detainees. As in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485-86, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the members of the Coalition: fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees." }, { "docid": "9661186", "title": "", "text": "merit. “It is a well-established tenet of standing that ‘a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.’ ” Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 288 (3d Cir.2002) (quoting Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). ‘Yet the prohibition is not invariable and our jurisprudence recognizes third-party standing under certain circumstances.” Id. (citations omitted). To establish third-party standing, a litigant must demonstrate that (1) she has suffered an “injury in fact” that provides her with a “sufficiently concrete interest in the outcome of the issue in dispute”; (2) she has a “close relation to the third party”; and (3) there exists “some hindrance to the third party’s ability to protect his or her own interests.” Powers, 499 U.S. at 411, 111 S.Ct. 1364 (internal quotation marks and citations omitted). In the present case, the parties agree that licensed counselors have a sufficiently “close relationship” to their clients, see Pennsylvania Psychiatric Soc’y, 280 F.3d at 289-90, but dispute whether Plaintiffs have suffered a sufficient “injury in fact” and whether Plaintiffs’ clients are sufficiently “hindered” in their ability to bring suit themselves. We will address these two elements in turn. Plaintiffs argue that the District Court erred by holding that they did not suffer an “injury in fact.” We agree. The District Court reasoned that “Plaintiffs’ ability to bring third-party claims hinges on whether they suffered any constitutional wrongs by the passage of A3371.” J.A. 24. We have never held, however, that a plaintiff must possess a successful constitutional claim in order to establish an “injury in fact” sufficient to confer third-party standing. In Craig v. Boren, 429 U.S. 190, 191-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), for example, the Supreme Court granted third-party standing to a vendor who did not even allege a violation of her own constitutional rights—she merely alleged that the law at issue, in violating the rights of her customers, resulted in a reduction in" }, { "docid": "11770495", "title": "", "text": "to the third party; and (3) there is some hindrance to the third party’s ability to protect his or her own interests). At best, the doctors and residential care facilities would be asserting the interests of unnamed patients who are no closer to suffering the asserted injury than Eisner. Because these unnamed patients would not have standing to assert their own interests, their doctors and care-givers cannot have standing to assert interests on their behalf. Lastly, the fact that Plaintiffs filed their complaint as a class action is of no moment. Standing “is a jurisdictional element that must be satisfied prior to class certification.” Nelsen, 895 F.2d at 1249-50 (quoting LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th Cir.1985)). “If the litigant fails to establish standing, he may not ‘seek relief on behalf of himself or any other member of the class.’ ” Id. at 1250 (quoting O'Shea, 414 U.S. at 494, 94 S.Ct. at 675). None of the Plaintiffs can assert an “injury in fact” resulting from the alleged equal protection, due process, Americans with Disabilities Act, or Rehabilitation Act violations. While wé also doubt that Plaintiffs have met the other two constitutional requirements for standing — that there is a causal connection between the injury and the conduct complained of and that the injury will be redressed by a favorable decision — we need not address these concerns. The failure to assert an “injury in fact” requires the dismissal of these claims. B. First Amendment and RFRA Claims The district court found that Dr. William Petty, Maryville Nursing Home, Sister Geraldine Bernards as Maryville Nursing Home’s administrator, Willows Home, and Fritz and June Beck as the owners of Willows Home all had standing to assert that they will be forced to carry out certain actions under Measure 16 in violation of their rights under the First Amendment and the Religious Freedom Restoration Act. These plaintiffs assert two different types of injuries: First, all five of these plaintiffs assert that Measure 16 will force them to participate in the prescription of life-ending medication, either by being required to transfer" }, { "docid": "12180124", "title": "", "text": "— to challenge the allegedly discriminatory nature of Jupiter’s actions. ii. Prudential Principles of Standing Do Not Bar Young Apartments’ Claims. Prudential principles of third-party standing also present no bar to Young Apartments’ standing in this case. These prudential principles “are not constitutionally mandated, but rather stem from a salutary ‘rule of self-restraint’ designed to minimize unwarranted intervention into controversies where the applicable questions are ill defined and speculative.” Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In an ordinary case, a plaintiff is denied standing to assert the rights of third parties. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). One exception to this rule, however, allows businesses to advocate, on behalf of their clients and customers, against discriminatory actions that interfere with that business relationship. See Craig, 429 U.S. at 195, 97 S.Ct. 451 (“[V]endors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.”). This exception applies to the current case. In order to bring claims on behalf of third parties, a litigant must satisfy three important criteria. [T]he litigant must have suffered an “injury-in-fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir.1994) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (citations omitted)). All three of these criteria are met in the current case. First, as already noted, Young Apartments has sufficiently alleged that it has a concrete interest in the outcome of this dispute. Young Apartments’ pursuit of economic damages is sufficient to ensure that it would be an effective advocate in this dispute. See Park View Heights Corp. v. City of Black Jack, 467 F.2d" }, { "docid": "911294", "title": "", "text": "challenge a statute that allegedly chills free speech.”). See also Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (no inquiry into obstacle in summarily upholding booksellers’ standing to raise bookbuyers’ First Amendment rights in facial challenge to statute). On the other hand, in Powers v. Ohio, which upheld the standing of a litigant to raise the Equal Protection claims of jurors peremptorily challenged due to their race, the Court’s language seemed to require certain showings from would-be third party claimants: We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute ...; the litigant must have a close relation to the third party ...; and there must exist some hindrance to the third party’s ability to protect his or her own interests.... Ill S.Ct. at 1370-71 (citations omitted). Despite this language, however, we very much doubt that the Court in Powers intended silently to overrule its standing holdings in cases such as Caplin & Drys-dale, Munson, and American Booksellers, especially in a case where it in fact allowed third party standing. Rather, the discus sion in Powers may merely reflect that where, as in Powers, all three conditions exist, the Court will recognize third party standing. Furthermore, the Caplin & Drysdale balancing approach has the virtue of incorporating the strength of the showings on each factor. For example, obstacles to suit do not come in one size. Even if an obstacle to the third party's suit exists, surely the severity of the hindrance is relevant. Similarly, the extent of potential conflicts of interests between the plaintiff and the third party whose rights are asserted matters a good deal. While it may be that standing need not be denied because of a slight, essentially theoretical conflict of interest, we have held that genuine conflicts strongly counsel against third party standing. See Polaroid Corp. v. Disney, 862" }, { "docid": "22631196", "title": "", "text": "In view of that reality, the attorneys brought this action under 42 U. S. C. § 1983, to advance indigent defendants’ constitutional right to counsel’s aid in pursuing appeals from plea-based convictions. “Ordinarily,” attorneys Fitzgerald and Vogler acknowledge, “one may not claim standing... to vindicate the constitutional rights of [a] third party.” Barrows v. Jackson, 346 U. S. 249, 255 (1953). The Court has recognized exceptions to the general rule, however, when certain circumstances combine: (1) “The litigant [has] suffered an ‘injury in fact,’... giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”; (2) “the litigant [has] a close relation to the third party”; and (3) “there [exists] some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (quot ing Singleton v. Wulff, 428 U. S. 106, 112 (1976)). The first requirement is of a different order than the second and third, for whether a litigant meets the constitutional prescription of injury in fact determines whether his suit is “a case or controversy subject to a federal court’s Art. Ill jurisdiction.” Ibid. By contrast, the close relation and hindrance criteria are “prudential considerations,” Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984), “judge made rule[s] . . . fashion[ed] for our own governance,” id., at 972 (Stevens, J., concurring). Our precedent leaves scant room for doubt that attorneys Fitzgerald and Vogler have shown both injury in fact, and the requisite close relation to indigent defendants who seek the assistance of counsel to appeal from plea-based convictions. I conclude, as well, that those attorneys have demonstrated a formidable hindrance to the indigents’ ability to proceed without the aid of counsel. As to injury in fact, attorneys Fitzgerald and Vogler alleged in their complaint that Mich. Comp. Laws Ann. § 770.3a would cause them direct economic loss because it will “reduce] the number of cases in which they could be appointed and paid as assigned appellate counsel.” App. 16a. This allegation is hardly debatable. The" }, { "docid": "3330973", "title": "", "text": "R. Lee, The Standing of Qui Tam Relators Under the False Claims Act, 57 U. Chi. L. Rev. 543, 569 (1990). Significantly, Congress could create standing for any individual simply by passing a law to create a cause of action, and then assign the right to litigate to qui tam plaintiffs. Id. In addition, if this assignment theory is permitted to stand, there is little to stop Congress from adding qui tam provisions to even federal criminal statutes. Id. Such a result, cannot be squared with established Supreme Court standing doctrine. The Court has allowed only limited exceptions to the general prudential rule that a plaintiff must assert his own legal rights and interests, rather than those of third parties. The Court has recognized the rights of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to. protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411 (1991) (citations omitted). Even when the Court has allowed “citizen suits” or suits by “private attorneys general,” it has not dispensed with the injury-in-fact requirement. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453, U.S. 1, 16, 101 S.Ct. 2615, 2624, 69 L.Ed.2d 435 (1981) (holding that citizen-suit provisions of Federal Water Pollution Control Act “apply only to persons who can claim some sort of injury”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 2145-46, 119 L.Ed.2d 351 (1992) (holding that citizen-suit provisions of the Endangered Species Act may not abandon the requirement of injury); Sierra Club v. Morton, 405 U.S. 727, 735, 741, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972) (holding that an environmental group lacked standing to challenge national park development because it lacked an injury). Qui tam suits" }, { "docid": "12461435", "title": "", "text": "(O’Conner, J. & Kennedy, J., concurring). Nevertheless, third-party standing is authorized in limited circumstances: The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute, the litigant must have a close relation to the third party, and there must exist some hindrance to the third party’s ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). Plaintiff neither makes nor attempts a showing that any of the requirements of third-party standing are present here. Rather, in his amended complaint, plaintiff relied on allegations that he is the Geiersbachs’ power of attorney, their fiduciary, and an assignee of their claims. As defendant correctly argues, the purported assignment is invalid, as the Anti-Assignment Act, 31 U.S.C. § 3727 (2000), explicitly prohibits such assignments of claims against the United States: “An assignment may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued.” At argument plaintiff simply waived a white flag as a demurrer to all of defendant’s arguments and asked for a voluntary dismissal, hoping to avoid a ruling in Saladino III. He took the position that, because the previous judge did not rule on the motion to dismiss and considerable time had passed, he could elude a ruling. Plaintiff thus agrees with defendant that he lacks standing to assert claims of others; he seeks to avoid a ruling in Saladino III because that would foreclose him from refraining his claims relating to the Geiersbachs. In sum, plaintiffs claims asserting a tax refund on behalf of the Geiersbachs (1) are precluded by virtue of Saladino I; (2) fail under RCFC 12(b)(6) because plaintiff cannot relitigate his lack of standing by virtue of Saladino II; and (3) fail because plaintiff does not have standing even apart from the preclusive effect of Saladino II. 3. Defendant’s" }, { "docid": "15986609", "title": "", "text": "at 410, 111 S.Ct. 1364. The Court has recognized a limited right of litigants to bring actions on behalf of third parties only when the following three criteria are met: (1) the litigant has suffered an injury in fact giving him a sufficiently concrete interest in the outcome of the issue; (2) the litigant has a close relation to the third party; and (3) there exists some hindrance to the third party’s ability to protect his own interests. Id. at 410-11, 111 S.Ct. 1364 (citing Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). This well-settled precedent makes clear that it is only possible to find third party standing when there is also an injury in fact alleged by the first party plaintiff. As was explained above, the Storinos have not alleged an injury in fact. Nonetheless, in their supplemental brief, the Storinos claim that their “standing in the shoes of low income people” argument is analogous to the Craig v. Boren form of third party standing. In Craig, the operation of a state law inflicted injury upon a beer vendor because she was “obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through the constriction of the buyers’ market, or to disobey the statutory command and suffer, ... ‘sanctions and perhaps loss of license.’” 429 U.S. at 194, 97 S.Ct. 451 (citations omitted). Accordingly, the Supreme Court found that the beer vendor met the injury in fact requirement for first party standing. Id. at 194-95, 97 S.Ct. 451. The Court found that the beer vendor was also entitled to “assert those concomitant rights of ... [young males] that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.” Id. at 195, 97 S.Ct. 451. The Storinos argue that, like the beer vendor who argued on behalf of third party beer buyers in Craig, they should be permitted to litigate their claim “by acting as advocates of the rights of third parties" } ]