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[ { "docid": "21591653", "title": "", "text": "them, although not conclusive, weighs heavily in support of the district court finding of no discrimination. See United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.1987); United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987). Lane also urges this court to consider the prosecutor’s stated reason for striking Lucas in its review of whether a prima facie case of discrimination has been raised as to Robinson. Since Batson instructs the court to consider all “relevant circumstances,” we agree that a prosecutor’s stated reason for one challenge may be used to show that a prima facie case of discrimination existed for a prior challenge. Lewis, 837 F.2d at 417. However, in light of all relevant circumstances including the reason given for challenging Lucas, Lane did not establish a prima facie case of discrimination as a result of the challenge to Robinson. V. Since Lane made no showing that the prosecutor’s questions or conduct during voir dire or the exercise of his challenges demonstrated a discriminatory tendency, the district court determination that the peremptory challenge to alternate juror Lucas failed to show a pattern of discrimination likewise was not clearly erroneous. The peremptory challenge to one black prospective petit juror and one black prospective alternate alone is insufficient to establish a pattern. By contrast, a pattern of discrimination may be established by a prosecutor’s successive use of peremptory challenges to strike black veniremen. Tindle, 860 F.2d at 128; United States v. Allen, 666 F.Supp. 847, 853 (E.D.Va.1987), aff'd sub nom. United States v. Harrell, 847 F.2d 138, 139 (4th Cir.1988). In Tindle, the prosecutor used five of six challenges against black prospective jurors and no black juror served. Similarly, in Allen, although three black jurors served, a pattern was found where the prosecutor exercised five of six peremptory challenges against black veniremen. Although no mathematical formula can be devised to signal the establishment of a prima facie case, United States v. Clemons, 843 F.2d 741, 746 (3d Cir.1988), the fact that two black jurors were seated on Lane’s" } ]

[ { "docid": "16201401", "title": "", "text": "show that these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. “Relevant circumstances” may include, but are not limited to, a pattern of peremptorily striking black jurors and the government’s questions during voir dire and in exercising its challenges. Id. at 96-97, 106 S.Ct. at 1722-23. While Batson “involved a state prosecution and application of the fourteenth amendment, the same limitations are imposed on federal prosecutors by the fifth amendment.” United States v. Lane, 866 F.2d 103, 104 n. 1 (4th Cir.1989). If a defendant makes out a prima facie case, the burden shifts to the prosecutor to come forward with a neutral explanation for challenging black veniremen. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. To meet this burden of production, the explanation must relate to the particular case to be tried. Id. at 98, 106 S.Ct. at 1723. Of course, at all times, the defendant bears the ultimate burden of persuasion to prove the existence of purposeful discrimination. Id. at 93, 106 S.Ct. at 1721. The trial judge plays a “pivotal role ... in determining a prima facie case.” United States v. Clemons, 843 F.2d 741, 746 (3d Cir.1988). See also Batson, 476 U.S. at 97, 98 n. 21, 99 n. 22, 106 S.Ct. at 1723, 1724 n. 21, 1724 n. 22; United States v. Allen, 814 F.2d 977, 978 (4th Cir.1987); United States v. Woods, 812 F.2d 1483, 1487 (4th Cir.1987); United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987); United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986). He or she has the opportunity to observe voir dire and the prosecution’s exercise of its peremptory challenges. The trial judge also has the experience “to identify a prima facie case of purposeful discrimination.” Batson, 476 U.S. at 99 n. 22, 106 S.Ct. at 1724 n. 22. As in the Title VII context, moreover, a trial judge’s “ ‘finding of intentional discrimination is a finding of fact,’ ” id. at 98 n. 21, 106" }, { "docid": "22953938", "title": "", "text": "pattern of strikes or even from the style of the prosecutor’s questions during voir dire. Id. at 97, 106 S.Ct. at 1723. However, because of the elusive nature of the inquiry, the Court wisely chose not to limit the possible sources of discriminatory inferences to just these two instances. Rather, it gave trial judges broad latitude to consider the totality of the circumstances when determining whether a defendant has raised an inference of discrimination. Id. at 97, 98 n. 21, 106 S.Ct. at 1723, 1724 n. 21. The sole reason Stavroulakis offered at trial to establish a prima facie case of discrimination was that the excused venireman, Eddie Holmes, was black. Reference merely to the race of one excused venireman, without more, is insufficient to raise an inference of discrimination. See United States v. Lane, 866 F.2d 103, 105-06 (4th Cir.1989); United States v. Ingram, 839 F.2d 1327, 1329-30 (8th Cir.1988); United States v. Lewis, 837 F.2d 415, 417 (9th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988). A member of any race can be the subject of a proper peremptory challenge. When other factors such as patterns of strikes or lines of questioning combine with race, the inference of discrimination may arise. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Here, defendant offered no evidence of a pattern of peremptory challenges to black members of the venire; nor did he assert that any of the prosecutor’s questions raised an inference of discrimination; nor did he suggest that any other circumstances raised such an inference. Defense counsel argues that the district court prevented him from establishing his prima facie case by abruptly cutting him off and making a summary ruling on the objection. We too are concerned about the haste with which the district ruled, and, at oral argument, we afforded defense counsel an opportunity to set forth his prima facie case. However, appellate counsel articulated little else than that the excused venireman was black in attempting to persuade us that the prosecutor’s peremptory challenge raised an inference of racial discrimination. Stavroulakis also" }, { "docid": "9637845", "title": "", "text": "476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson held that the equal protection clause “forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Id. 106 S.Ct. at 1719. Under Batson, “a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of relevant facts gives rise to an inference of discriminatory purpose.” Id. at 1721; see United States v. Thompson, 827 F.2d 1254, 1256-57 (9th Cir.1987). Only after the defendant has established a prima facie case is the prosecutor required to rebut the inference of discrimination by presenting a neutral basis for her challenges. See Batson, 106 S.Ct. at 1721; Thompson, 827 F.2d at 1256-57. Batson sets forth what is essentially a two-part inquiry for determining whether a defendant has established a prima facie case of discriminatory exclusion by the prosecutor. Batson, 106 S.Ct. at 1722-23. First, the defendant “must show that he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. at 1723. Then, the defendant must show circumstances that “raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. The defendant has satisfied the first requirement of the prima facie inquiry, but the record does not demonstrate circumstances raising an inference of prosecutorial bias. The defense counsel made no showing beyond the fact of the exercise of a peremptory strike against a black venire.man. There was no suggestion that the questions or statements on voir dire showed bias or that the prosecutor evidenced a “pattern” of such strikes in the particular venire, nor did the defense call any other circumstances to the court’s attention. See Batson, 106 S.Ct. at 1723; see also United States v. Vaccaro," }, { "docid": "22280937", "title": "", "text": "In Batson v. Kentucky, the Supreme Court eased the burden of proving that the prosecution engaged in purposeful discrimination by exercising its peremptory challenges to strike blacks from the petit jury. The Court ruled that a defendant “may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id. at 94-98, 106 S.Ct. at 1722-23. To establish a prima facie case, the defendant must first show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove members of his race from the venire. Id. at 96-98, 106 S.Ct. at 1723. He then must show that “these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. at 96-98, 106 S.Ct. at 1723. If the defendant is able to show these factors are present in the impanelling of the petit jury, an inference of purposeful discrimination arises. Ibid. The district court must examine all relevant circumstances in determining whether a prima facie case has been shown. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. Ibid. Although both the defense and the prosecution may have a great interest presenting their views on this issue, the trial court bears the ultimate responsibility for determining whether a prima facie case has been established. See, Ibid. (“We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.”). Once a defendant has made a prima facie case, “the burden shifts to the [prosecutor] to come forward with a neutral explanation" }, { "docid": "23403233", "title": "", "text": "group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory chal lenges creates a prima facie case of discrimination against black jurors. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. The Batson standard for assessing a prima facie showing is fluid, mainly because it places great confidence in the ability of trial judges to assess whether discrimination is at work based on the evidence at hand. The judge’s assessment “largely will turn on evaluation of credibility,” id. at 98 n. 21, 106 S.Ct. 1712, and “[t]he analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process.” Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The defendant’s burden at the initial stage is to show merely that jurors of his race have been struck and that the strikes are indicative" }, { "docid": "4091750", "title": "", "text": "other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Batson v. Kentucky, — U.S. at —, 106 S.Ct. at 1723. In determining whether the defendant has made out a prima facie case of purposeful discrimination, courts are to consider “all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Id. In this case, we find it clear that defendants failed to make out a prima facie case of purposeful discrimination. As an initial matter, the relevant “cognizable racial group,” for the purposes of our analysis, is the group of blacks generally and not just black males, as appellants urge. The test we apply to determine whether appellants are members of a cognizable racial group under Batson is the test applied in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498, cited in Batson, — U.S. at —, 106 S.Ct. at 1723. Such a group is “one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.” Castaneda, 430 U.S. at 494, 97 S.Ct. at 1274. The group of blacks generally clearly qualifies under this definition; appellants have failed to show, however, that black males constitute a distinct, recognizable subclass of individuals who have been singled out for different treatment under the laws not simply as blacks, but as black males. It would therefore be inappropriate for us to narrow the “cognizable racial group,” for present purposes, to include only black males and exclude black females. The government utilized only three of the six peremptory challenges it was allowed during the selection of the twelve jurors who decided the case, and one of the two challenges to alternates that it was allowed. The government exercised two of the three challenges it exercised when selecting" }, { "docid": "13028562", "title": "", "text": "sufficient to establish or negate a prima facie case. See Fuller, 887 F.2d at 146; United States v. Washington, 886 F.2d 154, 156 (8th Cir.1989). As noted by the Supreme Court in Bat-son, the district court must evaluate all the relevant facts and circumstances when making the prima facie determination. To establish a prima facie case, the defendant must show that the prosecutor exercised peremptory challenges to exclude members of the defendant’s cognizable racial group and that “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 106 S.Ct. at 1723. In Batson, the Supreme Court remanded for further proceedings to determine whether the facts established a prima facie case of discrimination in light of the prosecutor’s use of four of six potential strikes to exclude all of the black members of the venire. Id. at 83, 100, 106 S.Ct. at 1725. Thus, a district court cannot base a prima facie finding solely on the number of peremptory challenges the prosecutor exercises to exclude black members of the venire. A pattern of striking blacks and the prosecutor’s questions and statements during voir dire are among the factors the district court should consider when determining whether a defendant established a prima facie case. See id., 476 U.S. at 97, 106 S.Ct. at 1723. Here, the district court, based on its observations during jury selection, determined that the facts and circumstances did not support an inference of discrimination. The factors which the Court outlined in Batson do not support a conclusion contrary to that of the district court. The prosecutor’s voir dire consisted of only a few questions concerning potential scheduling and health problems and general questions regarding experiences with the government. There was no evidence beyond the number of blacks struck to indicate a pattern of excluding blacks. Dawn and McCree did not put any facts in the record supporting the contention that the district court erred in finding that they had failed to establish a prima" }, { "docid": "23380368", "title": "", "text": "it would otherwise have. The court’s proposed order, however, was not adopted because of Vaccaro’s and Lane’s objections. The court then adopted the Fed.R.Crim.P. 24(b) guidelines allowing ten peremptory challenges for the defendants and six for the Government. See Fed.R.Crim.P. 24(b). This use of the Rule 24(b) guidelines is within the discretion of the court and was not impermissible coercion. See McClendon, 782 F.2d at 787-788. XIV. EXCLUSION OF BLACK VENIREMEN The Vaccaros and Snider contend that the prosecutor’s exercise of peremptory challenges to exclude the only two black veniremen violated their Sixth Amendment rights. In Batson v. Kentucky, — U.S. -, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court formulated a test for proving purposeful discrimination in the selection of a jury. To establish a prima facie case, the defendant must show that the facts and circumstances of the jury selection raise an inference of discriminatory exclusion by the prosecutor. Id. 106 S.Ct. at 1723. The defendants rely on one example provided by the Supreme Court, that of a “pattern” of strikes against black jurors. Id. We conclude that striking just two jurors does not constitute such a pattern indicating a systematic exclusion of blacks. Even if it did, however, we find that the Government has expressed a neutral, reasonable basis for challenging the black jurors. At trial, the prosecutor stated his reasons for exclusion. One prospective juror had a brother who was in prison for a robbery conviction. The prosecutor felt that the other prospective juror had a poor attitude in answering voir dire questions. Both of these reasons are proper, because a prosecutor may use peremptory challenges when he cannot formulate and sustain a legal objection to a juror, and yet has reason to question the impartiality of a juror due to his habits and associations. Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887); Weathersby v. Morris, 708 F.2d 1493, 1496-97 (9th Cir. 1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). Furthermore, in Batson, the Court stated that in order to establish a" }, { "docid": "16201400", "title": "", "text": "facie case of discrimination was established, the court did not require the government to explain the reasons for its strikes. Defendants appeal. II. We will review at the outset the law as it relates to racial discrimination in the exercise of peremptory challenges, and the critical role of the trial judge in its implementation. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that a defendant may make a prima facie case of purposeful racial discrimination in jury selection by showing the racially discriminatory use of peremptories by the prosecution in his case alone. To establish a prima facie case under Batson, a defendant must show that “he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. 476 U.S. at 96, 106 S.Ct. at 1723 (citation omitted). The defendant may rely on the fact that the peremptory challenges may disguise racial discrimination. Id. Then, “the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. “Relevant circumstances” may include, but are not limited to, a pattern of peremptorily striking black jurors and the government’s questions during voir dire and in exercising its challenges. Id. at 96-97, 106 S.Ct. at 1722-23. While Batson “involved a state prosecution and application of the fourteenth amendment, the same limitations are imposed on federal prosecutors by the fifth amendment.” United States v. Lane, 866 F.2d 103, 104 n. 1 (4th Cir.1989). If a defendant makes out a prima facie case, the burden shifts to the prosecutor to come forward with a neutral explanation for challenging black veniremen. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. To meet this burden of production, the explanation must relate to the particular case to be tried. Id. at 98, 106 S.Ct. at 1723. Of course, at all times, the defendant bears the ultimate burden of persuasion" }, { "docid": "8013844", "title": "", "text": "some equitable consideration in that regard.” (Sent. tr. at 15.) The court sentenced Gordon to thirty-three months on each count to be served concurrently. This appeal followed. Gordon first contends that the district court erred by concluding that he failed to establish a prima facie Batson violation based on the prosecutor’s use of two of his six peremptory strikes to exclude black venirepersons from the petit jury. In Bat-son, the Supreme Court held that “a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Batson, 476 U.S. at 96, 106 S.Ct. at 1723. The defendant must point to facts and circumstances which raise an inference of racial discrimination. Id. “[A] ‘pattern’ of strikes against black jurors ... might give rise to [such] an inference,” and a prosecutor’s statements during jury selection “may support or refute an inference of discriminatory purpose.” Id. at 97, 106 S.Ct. at 1723. We review a district court’s determination of whether a defendant has established a prima facie Batson violation under the clearly erroneous standard. United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990). Here, the district court correctly found that Gordon had failed to establish a prima facie case because the prosecutor used only two of his six challenges to strike black jurors and three blacks remained on the petit jury after both parties exercised their challenges. See United States v. Young-Bey, 893 F.2d 178, 180 (8th Cir.1990) (no prima facie Batson violation when prosecutor used two peremptories to strike black venirepersons, but two blacks served on petit jury and one served as an alternate); United States v. Fuller, 887 F.2d 144, 146-47 (8th Cir.1989) (no prima facie Batson violation when prosecutor used two strikes to exclude black venirepersons, but three blacks remained on petit jury), cert. denied, 496 U.S. 908, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). Gordon argues that because one of the excluded venirepersons made no statements during voir dire, it is reasonable to infer that she was excluded on" }, { "docid": "23585218", "title": "", "text": "as a group will be unable impartially to consider the State’s case against a black defendant.” Id. at 1719. When a defendant alleges the prosecution has used its peremptory challenges in a discriminatory fashion, therefore, the general principles of Equal Protection apply. Id. at 1719. The burden is on the defendant initially to make “a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Id. at 1721. To make this showing, it is not necessary for the defendant to show that the prosecutor’s actions in past cases have demonstrated a pattern or practice of discriminatory use of peremptory challenges. Id. at 1720-21. “A defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. at 1722-23. Then, “the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. at 1723. These “relevant circumstances” may include a pattern of peremptorily striking black jurors, the prosecution’s questions and statements during voir dire, and the prosecution’s statements and actions in exercising his peremptory strikes. Id. If the trial judge determines that the defendant has made a sufficient prima facie showing, “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Id. at 1723. Although “the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause,” Id. at 1723, “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be" }, { "docid": "9637846", "title": "", "text": "of discriminatory exclusion by the prosecutor. Batson, 106 S.Ct. at 1722-23. First, the defendant “must show that he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. at 1723. Then, the defendant must show circumstances that “raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. The defendant has satisfied the first requirement of the prima facie inquiry, but the record does not demonstrate circumstances raising an inference of prosecutorial bias. The defense counsel made no showing beyond the fact of the exercise of a peremptory strike against a black venire.man. There was no suggestion that the questions or statements on voir dire showed bias or that the prosecutor evidenced a “pattern” of such strikes in the particular venire, nor did the defense call any other circumstances to the court’s attention. See Batson, 106 S.Ct. at 1723; see also United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.) (finding that the systematic exclusion of blacks could not be inferred from the exclusion of the only two black veniremen), cert. denied, — U.S. -, 108 S.Ct. 262, 98 L.Ed.2d 220 (1987). Without expressly ruling on whether a prima facie showing had been made, the trial judge observed that the peremptory strike might implicate Batson. The prosecutor then proceeded to place her justifications on the record. The defendant argues that these justifications were “shams” and that they raise an inference of discriminatory intent sufficient to establish a prima facie case. For the purposes of this appeal, we accept the defendant’s argument that the prosecutor’s volunteered justifications may be considered as part of his prima facie case. See Batson, 106 S.Ct. at 1721 (holding that a prima facie case may be shown by “the totality of relevant facts”). We assume that the prosecutor’s justifications will not establish a prima facie case if they are adequate to rebut an inference of discriminatory intent. Because the trial court’s findings concerning discriminatory intent" }, { "docid": "12658861", "title": "", "text": "LAY, Chief Judge. Russell Dereck Battle appeals from his judgment of conviction for possession of heroin with intent to distribute. Battle was convicted of violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (possession with intent to distribute heroin) and sentenced to ten years imprisonment to be followed by a special parole term of three years. Battle challenges the admissibility of certain evidence, and the sufficiency of the evidence to support his conviction. In addition, Battle maintains the government improperly exercised its peremptory challenges in selection of the jury. At this time we need only address the peremptory challenges exercised by the government. Battle, who is black, maintains that the government unconstitutionally used its peremptory challenges to substantially reduce the number of blacks available to sit on the jury. To establish a constitutional violation, a defendant must first establish a prima facie case of purposeful discrimination in selection of the jury panel. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “[A] defendant may establish a prima facie case of purposeful discrimination * * * solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id, at 96. To establish a prima facie case, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to exclude members of his race from the jury. He then “must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [his peremptory] practice to exclude the veniremen from the petit jury on account of their race.” Id. In determining whether a defendant has established the requisite showing of purposeful discrimination, the trial court should consider all relevant circumstances including, but not limited to, a pattern of strikes against black jurors, as well as the prosecutor’s questions and statements during voir dire. Id. at 96-97. If the defendant establishes a prima facie case of purposeful discrimination, the burden then shifts to the prosecution to articulate a neutral explanation for challenging the black veniremen. While the prosecutor’s explanation need not rise to the" }, { "docid": "4091749", "title": "", "text": "a prima facie case of unconstitutional discrimination by the prosecutor in the exercise of his peremptory challenges in the defendant’s case, the prosecutor should be required by the trial court to offer a neutral explanation for the allegedly discriminatory challenges that is related to the particular case to be tried. The Supreme Court stated that a defendant could establish a prima facie case of purposeful discrimination as follows: [T]he defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, [430 U.S. 482, 494, 97 S.Ct. 1272, 1275, 51 L.Ed.2d 498 (1977)], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Avery v. Georgia, [345 U.S. 559, 562, 73 S.Ct. 891 (1953)]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Batson v. Kentucky, — U.S. at —, 106 S.Ct. at 1723. In determining whether the defendant has made out a prima facie case of purposeful discrimination, courts are to consider “all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Id. In this case, we find it clear that defendants failed to make out a prima facie case of purposeful discrimination. As an initial matter, the relevant “cognizable racial group,” for the purposes of our analysis, is the group of blacks generally and not just black males, as appellants urge. The test we apply to determine whether appellants are members of a cognizable racial group under Batson is the test applied" }, { "docid": "2526424", "title": "", "text": "Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory ’ purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” The court then explained the shifting of the burden and the prosecutor’s response to the creation of a prima facie case, as follows: “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level of justifying exercise of a challenge for cause. See, McCray v. Abrams, 750 F.2d [1113] at 1132 [(C.A.2 1984)]; Booker v. Jabe, 775 F.2d 762, 773 (C.A. 6 1985), cert. pending 85-1028 [— U.S. —, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986) ]. But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption-or his intuitive judgment-that they would be partial to the defendant because of their shared race.” The court goes on to explain that the prosecutor may not rebut the defendant’s case merely by denying that he had" }, { "docid": "2526423", "title": "", "text": "race as to why he used his peremptory challenges, not only on the four blacks but also on the one white.” II. In Batson v. Kentucky, the court outlined the requirements for a defendant to prove a prima facie case of discriminatory selection of a petit jury on evidence of a prosecutor’s exercise of peremptory challenges, at-, 106 S.Ct. at p. 1723: “To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, [430 U.S. 482] at 494 [97 S.Ct. 1272 at 1280, 51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ Avery v. Georgia, supra [345 U.S. 559] at 562 [73 S.Ct. 891 at 892, 97 L.Ed. 1244 (1953)]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory ’ purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” The court then explained the shifting of the burden" }, { "docid": "15451468", "title": "", "text": "Id. at 97, 106 S.Ct. at 1723. “In determining whether a defendant has established the requisite showing of purposeful discrimination, the trial court should consider all relevant circumstances including, but not limited to, a pattern of strikes against black jurors, as well as the prosecutor’s questions and statements during voir dire.” United States v. Porter, 831 F.2d 760, 767 (8th Cir.1987), cert. filed (Dec. 4, 1987). Once a prima facie case has been established, the burden shifts to the government to provide a neutral explanation for the peremptory challenge. Id.; Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723. In this case, the defendant, in support of his argument that a prima facie case of discrimination has been established, relies solely on the fact that the prosecution struck one of two potential black jurors. The Eighth Circuit has said that “bare reliance on the fact that the government used one of its peremptory challenges to exclude one of two black veniremen falls short of raising an inference of purposeful discrimination necessary to establish a prima facie case under Batson.” Porter, 831 F.2d at 767-68. See United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.1987). We conclude that the facts and circumstances of this case likewise do not raise the necessary inference of discrimination and that the district court was correct in overruling the motion for a mistrial without.further inquiry of the prosecutor. D. Conclusion The decision of the district court is affirmed. . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri. . There was some confusion at the suppression hearing and at trial regarding which of the two police officers actually read the defendant his rights. The defendant does not dispute, however, that one of the two officers did give the defendant a Miranda warning at this point. . This case is easily distinguished from United States v. Battle, 836 F.2d 1084 (8th Cir.1987). In Battle, the court found that a prima facie case was established when the government used five of its six challenges to strike five of seven potential black" }, { "docid": "17712822", "title": "", "text": "his motion to quash the indictment. See United States v. Amy Frances Johnson, 861 F.2d 510, 512-13 (8th Cir.1988) (specific performance of non-prosecution agreement inappropriate unless, inter alia, defendant complies with terms of agreement). B. Batson Issue Johnson also alleges that the district court erred in failing to find that he established a prima facie case of race discrimination in the selection of the jury panel under Batson v. Kentucky. The claim has merit. In Batson, the Supreme Court held that in deciding whether a defendant has established a prima facie case, “the trial court should consider all relevant circumstances”, including “a ‘pattern’ of strikes against black jurors included in the particular venire” and “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges * * Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-1723. Of its six peremptory challenges, the Government used two to exclude two black veniremen of a panel of twenty-eight. The two black veniremen did not respond to any questions nor did four white veniremen who were selected as jurors. At least two blacks remained on the jury panel. In addition, the Government used its one peremptory challenge to alternate jurors to strike a black, who also made no response to voir dire questions. After the Government exercised the strikes, Johnson requested that the district court require the Government to articulate its reasons for striking the black veniremen. The Government responded it need not articulate a reason if two blacks remained on the panel. The district court cautioned the Government that if its position was “in error, it would redound to the defendant’s benefit.” The court then ruled that the Government need not articulate an explanation for striking the blacks as jurors. The Batson decision placed confidence in a trial judge’s ability to identify a prima facie case of race discrimination. 476 U.S. at 97, 99 n. 22, 106 S.Ct. at 1723, 1724 n. 22. However, in this case the district court accepted the persistent argument of the Government based on numbers alone, and in doing so the ruling rested upon an" }, { "docid": "22661313", "title": "", "text": "to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Avery v. Georgia, 345 U. S., at 562. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circum stances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams, 750 F. 2d, at 1132; Booker v. Jabe, 775 F. 2d 762, 773 (CA6 1985), cert. pending, No. 85-1028. But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of" }, { "docid": "15451467", "title": "", "text": "persons, two of whom were black. The prosecution utilized one of its six peremptory challenges to strike one of the two potential black jurors from the panel. The second black juror remained on the panel for the duration of trial. After the peremptory strikes were announced, the defendant, a black man, moved for a mistrial based on the government’s unconstitutional use of its challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court overruled the motion without requiring the prosecution to provide an explanation for its strike of the black juror, holding, implicitly, that the defendant had failed to establish a prima facie case as required by Batson. Under Batson, a prima facie case of purposeful discrimination in the selection of a jury panel is established by a showing that the government’s use of its peremptory challenges and any other relevant circumstances “raise an inference that the prosecutor * * * exclude[d] * * * veniremen from the petit jury on account of their race.” Id. at 97, 106 S.Ct. at 1723. “In determining whether a defendant has established the requisite showing of purposeful discrimination, the trial court should consider all relevant circumstances including, but not limited to, a pattern of strikes against black jurors, as well as the prosecutor’s questions and statements during voir dire.” United States v. Porter, 831 F.2d 760, 767 (8th Cir.1987), cert. filed (Dec. 4, 1987). Once a prima facie case has been established, the burden shifts to the government to provide a neutral explanation for the peremptory challenge. Id.; Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723. In this case, the defendant, in support of his argument that a prima facie case of discrimination has been established, relies solely on the fact that the prosecution struck one of two potential black jurors. The Eighth Circuit has said that “bare reliance on the fact that the government used one of its peremptory challenges to exclude one of two black veniremen falls short of raising an inference of purposeful discrimination necessary to establish a prima" } ]

[ { "docid": "8582600", "title": "", "text": "26 L.Ed.2d 142 (1970). “[F]acts and inferences must be viewed most favorably to” plaintiff. Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir.1981). See also Dalke v. Upjohn Co., 555 F.2d 245, 248 (9th Cir.1977). If testimony conflicts so “that a result other than the district court’s conclusion is possible,” this court must reverse because “neither an appellate court nor a trial court are permitted to weigh the evidence, pass upon credibility, or speculate as to the ultimate findings of fact.” Id. To defeat summary judgment in the district court plaintiff was required to present evidence of specific facts showing that contradiction of the drug companies’ theory of non-liability is possible. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978). Our review is de novo. Jewel Companies, Inc. v. Pay Less Drug Stores Northwest, Inc., 741 F.2d 1555, 1559-60 (9th Cir.1984). I. Exclusion of Hearsay In opposition to summary judgment, plaintiff presented her mother’s deposition testimony that in 1952 her attending doctor told her she was being given “stilbestrol” — another name for DES. The district court declined to consider this testimony, holding it was hearsay and not admissible under Fed.R.Evid. 803(4) or 803(24). We agree. Rule 803(4) applies only to statements made by the patient to the doctor, not the reverse. Rule 803(24) requires guarantees of trustworthiness not present here — the statement of plaintiff’s mother was plainly self-serving and no corroboration was available. The court also declined to consider the affidavits of Dr. Sack and Dr. Townsend presented in opposition to the motion. Dr. Sack stated he had observed “ ‘changes’ in the tissue of [plaintiff’s] vaginal area which, in my opinion, were caused by her mother’s ingestion of the drug diethylstil-besterol [sic] (DES) while she was pregnant with” plaintiff. Dr. Townsend, who operated on plaintiff's cancer, said in his affidavit his examination of plaintiff “showed changes that are commonly seen in DES exposed offspring and rarely seen in non- DES exposed individuals, send’s post-operative reports also reflected his opinion that plaintiff’s injuries were caused by DES. ” Dr. Town- The district court" } ]

[ { "docid": "23370089", "title": "", "text": "all of the IDOC captains but was not aware that they had been pulled for any other employees. She did not know who pulled the records. Her testimony on how she learned this information was brief and is worth repeating: Q: How did you become aware that voting records had been pulled? A: It came up in a conversation with the captains’ layoff. Q: Who was — who told you that? A: Mr. Underwood. Q: Did he pull them? A: No, I don’t believe he had the ability to do that. Q: What did Mr. Underwood say to you in regards to the voting records? A: He told me how many captains were registered Republicans versus Democrats. Q: Did you ask him how he knew that? A: I knew he obtained that information from the Governor’s office. Q: Did he say anything else to you about the voting records? A: No. R. 53, Ex. 5, at 40-42. The district court found that Danner’s testimony about Underwood’s statements was inadmissible hearsay. The court also found that Danner’s statement was irrelevant because it related to a different layoff — the layoff of IDOC captains — and because the plaintiffs did not tie Underwood’s claim to any of the defendants here. Gunville and Oakley now argue that Danner’s testimony was not hearsay. They characterize Underwood as a coconspirator of Snyder, and contend that Danner’s report of Underwood’s statement falls under the co-conspirator exception of Fed.R.Evid. 801(d)(2)(E). They also cite Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265 (3d Cir.2007), in support of their claim that this evidence is both admissible and relevant. Admissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment. Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 533 (7th Cir.2003) (inadmissible evidence will not overcome a motion for summary judgment). See also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996) (evidence relied upon at the summary judgment stage must be competent evidence of a type otherwise admissible at trial). A party may not rely upon" }, { "docid": "2445706", "title": "", "text": "if the statements were excluded under the exception to the hearsay doctrine, the expert witness typically was permitted to relate the statements if they formed a basis of his opinion, a rule now embodied in Rule 703: The distinction thus called for was one most unlikely to be made by the juries. The rule accordingly rejects the limitation. This position is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field. Advisory Committee Note to Fed.R.Evid. 803(4); see also Robert P. Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.R. 257, 259-61 (1989). There exist, therefore, two distinct rationales for the admissibility of statements to medical doctors: (1) the “selfish treatment” rationale, where the statement is made to a treating physician; and (2) the “basis of the expert’s opinion” rationale, where the statement is made to a diagnosing physician. B. Admissibility of the Victim’s Statements to a Doctor Identifying the Perpetrator As set forth in the Advisory Committee Note to Rule 803(4), a declarant’s statement identifying the person allegedly responsible for her injuries generally is inadmissible because such.statements usually are not necessary to promote effective treatment, or to permit the expert to reach an appropriate diagnosis. Advisory Committee Note to Fed. R.Evid. 803(4). Thus, a patient’s statement to his doctor that he was struck by an automobile would fall within the hearsay exception, but not his statement that the car was driven by Bob Smith through a red light. Advisory Committee Note to Fed.R.Evid. 803(4). This is not, however, a hard and fast rule, especially in the context of child sex abuse allegations. The Fourth, Eighth, Ninth and Tenth Circuits have held that statements made by a victim of sexual abuse to a physician which identify the abuser as a member of the family or household may, under certain conditions, be “reasonably pertinent to diagnosis or treatment” and, hence, admissible. See United States v. Joe, 8 F.3d 1488, 1493-95" }, { "docid": "23641913", "title": "", "text": "shortly after she told an F.B.I. agent that Gabe had sexually abused her. Dr. Jones did not explain to V.G. that identifying her abuser was pertinent to her diagnosis and treatment. Indeed, the identity of V.G.’s abuser was not important to the medical examination Dr. Jones conducted—Dr. Jones had never seen V.G. before this examination, he did not prescribe any additional medical treatment, and he did not evaluate whether she needed psychological counseling. The government argues that V.G.’s statement to Dr. Jones falls within the medical-treatment hearsay exception because “she was clearly of an age where she understood the physician’s role in order to trigger the motivation to provide truthful information.” We agree that most adults and older children generally understand a physician’s role in providing diagnosis and treatment. But not even an adult necessarily understands the connection between a sex abuser’s identity and her medical treatment. Rule 803(4) is premised on the patient’s selfish motive in receiving proper medical treatment; therefore, the proponent must establish that the declarant’s frapie of mind when making the hearsay declaration “was that of a patient seeking medical treatment.” Olesen v. Class, 164 F.3d 1096, 1098 (8th Cir.1999); accord United States v. White, 11 F.3d 1446, 1449-50 (8th Cir.1993); Ring v. Erickson, 983 F.2d 818, 820 (8th Cir.1993). Here, the government presented no evidence that V.G. repeated her accusation to Dr. Jones for purposes of medical diagnosis or treatment. Given the context, V.G.’s statement identifying Gabe as her abuser to Dr. Jones is no more reliable than her initial accusation to agent Weir, which the district court properly excluded because V.G. was available to testify at trial. In these circumstances, V.G.’s hearsay declaration identifying Gabe as the abuser to Dr. Jones is, like most such identity statements, inadmissible under Rule 803(4). Error in admitting a sex abuse victim’s out-of-court declarations is subject to harmless error analysis. Balfany, 965 F.2d at 582. In this case, the government’s primary trial witness was the victim, V.G. She described at length and in detail various occasions on which Gabe had abused her, including the three incidents underlying the" }, { "docid": "8540908", "title": "", "text": "Kirk. The trial court allowed D.C.’s mother and Dr. Tyler to testify as to the information relayed to them by D.C. A. Testimony of Dr. Tyler The hearsay statements offered during Dr. Tyler’s testimony were admitted under Fed.R.Evid. 703, which allows an expert to testify as to the basis of her opinion. Dr. Tyler testified that she had relied upon D.C.’s comments during their interview as well as the drawings made by D.C. to arrive at her opinion. IV R. 2-20. Therefore, Rule 703 would allow the expert to testify regarding the information, even if the evidence would not otherwise be admissible. Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d 1149, 1153 (10th Cir.1990). The judge issued a proper warning to the jury explaining that the testimony was being received for the limited purpose of laying a foundation for the doctor’s opinion. See Hickok v. G.D. Searle & Co., 496 F.2d 444, 447 (10th Cir. 1974). Alternatively, these statements would be admissible under Fed.R.Evid. 803(4), which allows hearsay statements that were made “for purposes of medical diagnosis and treatment.” The trial court expressed concern because Dr. Tyler was not D.C.’s regular treating physician. However, “Rule 803(4) ‘abolished the [common-law] distinction between the doctor who is consulted for the purpose of treatment and an examination for the purpose of diagnosis only: the latter usually refers to a doctor who is consulted only in order to testify as a witness.’ ” Morgan v. Foretich, 846 F.2d 941, 950 (4th Cir. 1988) (quoting United States v. Iron Shell, 633 F.2d 77, 83 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981)). B. Testimony of the Victim’s Mother Mr. Farley also contends that the testimony of the victim’s mother contained inadmissible hearsay, improperly allowed by the trial court under Fed.R.Evid. 803(24), the residual exception to the hearsay rule. We note that not all of the testimony discussed by Defendant constitutes hearsay. Fed. R.Evid. 801(c). For example, D.C.’s mother overheard D.C. tell a sibling during a dispute, “ ‘Darryl [sic] Farley is going to get you. He’s a bad man.’" }, { "docid": "137131", "title": "", "text": "symptoms, pain, or sensations or (iii) about the inception or general character of the cause or external source thereof (3) insofar as they are reasonably pertinent to diagnosis or treatment.” Danaipour v. McLarey, 386 F.3d 289, 297 (1st Cir.2004) (footnote omitted). There is no requirement, either in the text of the Rule, or the case law, that the speaker be the patient himself. Id.; see also 4 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 803.02[5][d] (8th ed. 2002) (“[Statements by bystanders, family members, and others, made for the purposes of treating an injured person and pertinent to that treatment, have often been admitted under Rule 803(4).”). In general, under Rule 803(4), “the declar-ant’s motive to promote treatment or diagnosis is the factor crucial to reliability.” Danaipour, 386 F.3d at 298. Sometimes, when the declarant of an out-of-court statement is unknown, there is less certainty that the statement was made for the purpose of treating or diagnosing the patient, and the statement itself may not bear the indicia of that purpose. See, e.g., Stull v. Fuqua Indus., Inc., 906 F.2d 1271, 1273-74 (8th Cir.1990) (A statement in the medical record that “[ajpparently, [the plaintiff] ... jumped off the lawn mower and got his left heel under the law mower” was not admissible under Rule 803(4) because “the word ‘apparently’ in the hospital record indicates that the statement ... may not have been made by [the plaintiff]; it may instead represent conjecture on the part of the person filling out the record.”). Here, some statements in the medical records were clearly made by Bucci or a witness to the attack for purposes of medical treatment. For some of the other statements, the identity of the declarant cannot be discerned, but it is nonetheless clear that the statements were made for purposes of medical treatment and were admissible. The district court carefully and fairly heard Bucci’s case. The court’s conclusion is unimpeachable. IV. The district court’s judgment is affirmed. No costs are awarded. . Federal diversity jurisdiction under 28 U.S.C § 1332 exists in this case since Bucci is" }, { "docid": "23142976", "title": "", "text": "as to causation during the course of treatment. Id. at 871. Although the court did not elaborate on the type of evidence on which it relied in concluding that the physician formed his opinion during the course of treatment, it did distinguish Fielden from an unpublished Sixth Circuit case where there was “no evidence that the treating physician reached the same conclusions regarding causation at the time he treated the patient.” Id. (citing Mohney v. USA Hockey, Inc., 138 Fed.Appx. 804, 811 (6th Cir.2005)) (internal quotation marks and brackets omitted). In addition to the Sixth Circuit, other courts hold that Rule 26 requires parties to disclose a treating physician’s written report in the absence of some evidence that the physician formed his opinion during the course of treatment. The Seventh Circuit recently held that a treating physician who is offered to provide expert testimony as to the cause of the plaintiffs injury, but who did not make that determination in the course of providing treatment, is required to submit an expert report under Rule 26(a)(2). Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir.2010) (affirming grant of summary judgment where no evidence in the record suggested that plaintiffs doctors considered or determined the cause of his injuries during the course of treatment). The Eighth Circuit goes further, requiring disclosure of a written report any time a party seeks to have a treating physician testify as to the causation of a medical condition, as opposed to merely the existence of the condition. Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 900 (8th Cir.2010) (affirming grant of summary judgment because, without expert testimony as to causation, plaintiff could not prove an essential element under the Federal Employers Liability Act). District courts within this circuit have limited treating physician testimony to opinions formed during the course of treatment when the party seeking admission of the testimony disclosed no expert report. See, e.g., Durham v. Cnty. of Maui, 729 F.Supp.2d 1188, 1195-96 (D.Haw.2010); Armatis v. Owens-Brockway Glass Container, Inc., No. S-08-2538, 2010 WL 148692, at *1 (E.D.Cal. Jan. 14, 2010);" }, { "docid": "9430244", "title": "", "text": "the lawn mower and got his left heel under the lawn mower.” The medical records exception to the hearsay rule assumes that a person making a statement for the purpose of obtaining medical diagnosis or treatment will likely tell the truth to a medical person and that the statement is therefore inherently reli able. Hence, to fall within the exception, the statement must be obtained from the person seeking treatment, or in some instances from someone with a special relationship to the person seeking treatment, such as a parent. Here the word “apparently” in the hospital record indicates that the statement about jumping off the mower may not have been made by Stull; it may instead represent conjecture on the part of the person filling out the record. Fuqua introduced no evidence rebutting this possibility. In fact, Dr. Wolf, the treating physician, testified that he did not know from whom the statement was obtained. In the absence of any evidence attributing the statement to Stull, the district court acted well within its discretion in excluding the hospital record. Cf. Petrocelli v. Gallison, 679 F.2d 286, 289-90 (1st Cir.1982) (statements of medical diagnosis in hospital records did not fall within the business records exception to the hearsay rule in the absence of any evidence attributing the statement to doctors or other persons with knowledge); see generally 4 J. Weinstein & M. Berger, Weinstein’s Evidence 11 803(4)[01] (1988). In a related contention, Fuqua argues that the trial court erred in excluding a letter written by Stull's counsel to the Consumer Product Safety Commission (CPSC) in which counsel stated that Stull “tried to jump off the mower.” Fuqua contends that this admission by the representative of a party-opponent, Fed.R.Evid. 801(d)(2)(D), should have been admitted to corroborate Fuqua’s theory of the case and to impeach Stull’s testimony that he never told anyone that he jumped off the mower. Federal trial courts possess broad discretion to exclude confusing or misleading evidence. See Fed.R.Evid. 403, 611(a). Here the trial court excluded the CPSC letter as ambiguous. Transcript at 167. In common usage, the word “jump” could" }, { "docid": "16526824", "title": "", "text": "testimony regarding injury, treatment, or diagnosis is given by a licensed and qualified medical doctor. The motion is granted in part and denied in part. Statements made by a medical provider to a witness are inadmissable hearsay if offered by the witness to prove the truth of the matters asserted. See, e.g., Bombard v. Fort Wayne Newspapers, 92 F.3d 560 (7th Cir.1996); Field v. Trigg County Hosp., Inc., 386 F.3d 729 (6th Cir.2004). Of course, plaintiff may testify about her own pain and suffering, and so too may other testimonially competent witnesses. (Rule 602, Federal Rules of Evidence). And statements by the witnesses about relevant statements made by the plaintiff that satisfy the requirements of Rule 803(3) or 803(4) will be admissible under those hearsay exceptions. Motion 3 — To prevent any comment, suggestion or reference in any manner, as to the existence of non-existence of any insurance covering Defendant for this case. The Plaintiff does not object to the motion and therefore it is granted. Motion 4 — To bar any unpaid medical bills until it has been affirmatively established through competent medical testimony that the bills are fair and reasonable. The defendant has withdrawn the motion based on the representation that there are no unpaid medical bills. Motion 5 — To bar any comment or reference to any settlement negotiations including any offers of settlements, settlement demands, offers of compromise, the amounts of such offers and demands and any rejections of such offers. The Plaintiff does not object to the motion and it is therefore granted. Motion 6 — Barring from the courtroom during the introduction of evidence and testimony those whom Plaintiff intends or expects to call as a witness. To the extent that the motion relates to potential, non-party witnesses, the motion is granted. The parties have agreed that each may have an expert at counsel table during the trial. As to these witnesses, the motion is denied as moot. See United States v. Seschillie, 310 F.3d 1208 (9th Cir.2002); Rule 615(3). Motion 7 — Barring any comment, argument or mention that the plaintiffs future is" }, { "docid": "18019217", "title": "", "text": "the light most favorable to Makowski and drawing all reasonable inferences in her favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.2010). Summary judgment is appropriate where the admissible evidence shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Makowski first contends that the district court erred in excluding O’Gara’s statements to Makowski concerning her termination and in failing to consider other evidence provided by Makowski. Second, Makowski argues that this evidence creates a genuine issue of material fact as to whether Makowski was terminated due to her pregnancy and her taking medical leave. Finally, Makowski alleges that the district court erred in failing to address her FMLA interference claim independently of her FMLA retaliation and discrimination claims. A. O’Gara’s Statements As we noted above, Makowski alleges that O’Gara told her that Makowski was terminated because she was pregnant and took medical leave, and informed her of the Firm’s discriminatory treatment toward other pregnant employees. The district court ruled that O’Gara’s statements were not admissions and excluded them as inadmissible hearsay. Makowski contends on appeal that O’Gara’s statements were admissions and therefore should be admitted as evidence of discrimination. We review a district court’s evidentiary ruling for abuse of discretion. United States v. Owens, 424 F.3d 649, 653 (7th Cir.2005). O’Gara’s statements fall under the definition of hearsay, because they were made out of court and are being offered for their truth. See Fed.R.Evid. 801(c). To be admissible, Makowski must establish that an exception to the hearsay rule applies or that the statements are not hearsay. See id. at 801(d), 803. Rule 801(d)(2)(D) of the Federal Rules of Evidence provides that “[a] statement is not hearsay if ... the statement is offered against a party and is ... (D) a statement" }, { "docid": "2333985", "title": "", "text": "could proceed to question Dr. Anderson about the substance of the statements). Therefore, the only possible purpose for taking the additional step of telling the jury what was allegedly said by the Vanderbilt physicians was to expose the jury to the substance of those statements and persuade the jury of their truth — namely, that Dr. Anderson was “doing - everything appropriately.” The statements were hearsay because they went well beyond conveying that Dr. Anderson sought out a consultation to the entirely self-serving purpose of exposing the jury to the approving words of two purported experts' from a purportedly esteemed medical institution. Defendant next contends that even if the testimony was offered for the truth of the matter asserted, it was admissible pursuant to the hearsay exception contained in Fed.R.Evid. 803(4), which permits the admission of statements made for purposes of medical diagnoses or treatment. The rule states in relevant part: The following are not excluded by the hearsay rule .... Statements made for purposes of medical diagnosis or treatment describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. The rationale behind this exception is that statements made by an individual to physicians for purposes of diagnosis or treatment are considered exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. White v. Illinois, 502 U.S. 346, 355-56, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). As such, courts have interpreted the exception to be limited to statements made by the one actually seeking medical treatment or care. See Stull v. Fuqua Inds., Inc., 906 F.2d 1271, 1273-74 (8th Cir.1990) (“[T]o fall within the exception [of Fed.R.Evid. 803(4) ], the statement must be obtained from the person seeking treatment, or in some instances from someone with a special relationship to the person seeking treatment, such as a parent.”); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir.1985) (“Rule 803(4) applies only to statements made by the patient to" }, { "docid": "15209737", "title": "", "text": "and greet” gathering at his house for friends and associates to meet Hayworth. In October or November 1993, Grabinski was recruited to join the Hayworth campaign’s finance committee. In March 1994, Grabinski was recruited by then-Coalition Field Director, Guy Rodgers, to be the chairman of the Arizona Christian Coalition, which was formally incorporated in June 1994. Grabin-ski did not discuss his new role with the Coalition in much detail with Hayworth. However, Grabinski was instrumental in identifying other Southern Baptist churches in the state where Hayworth might worship when he was away from the Phoenix area on a Sunday. Another connection between the Hayworth campaign and the Coalition was the friendship between Hayworth’s campaign manager, Scott Hildebrand. Hildebrand had known Chuck Cunningham, the Coalition’s Director of Voter Education, since 1982, when they worked together. During the 1994 campaign, Hildebrand and Cunningham would discuss the general tenor of the campaign and politics in general. In the summer of 1994, the Coalition sent the Hayworth campaign a questionnaire for use in preparing a voter guide. Fifty-two questions were asked. The Coalition’s 1994 Primary Voter Guide listed ten issues and the responses of the five candidates. ■ For the general election, the Coalition prepared a handbill voter guide comparing the positions of Hayworth and the Democratic incumbent, Karen English, on six issues. From Coalition documents, as of three weeks prior to the election, it appears the Coalition planned to send 200,-000 voter guides to the Sixth District and about 150,000 guides to other congressional districts in Arizona. Grabinski was largely responsible for identifying churches where the guides could be distributed and for recruiting individuals to distribute the guides to the churches. No record evidence demonstrates that Grabin-ski discussed his selection of distribution points or personnel with the Hayworth campaign. The actual number of guides distributed may have been somewhat more or less than planned. The Coalition also reduced the guide to postcard size for mailing to individuals. This was an idea Cunningham brought to the Coalition from his experience with the National Rifle Association. As the Coalition’s Director of Voter Education, Cunningham alone" }, { "docid": "23142977", "title": "", "text": "Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir.2010) (affirming grant of summary judgment where no evidence in the record suggested that plaintiffs doctors considered or determined the cause of his injuries during the course of treatment). The Eighth Circuit goes further, requiring disclosure of a written report any time a party seeks to have a treating physician testify as to the causation of a medical condition, as opposed to merely the existence of the condition. Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 900 (8th Cir.2010) (affirming grant of summary judgment because, without expert testimony as to causation, plaintiff could not prove an essential element under the Federal Employers Liability Act). District courts within this circuit have limited treating physician testimony to opinions formed during the course of treatment when the party seeking admission of the testimony disclosed no expert report. See, e.g., Durham v. Cnty. of Maui, 729 F.Supp.2d 1188, 1195-96 (D.Haw.2010); Armatis v. Owens-Brockway Glass Container, Inc., No. S-08-2538, 2010 WL 148692, at *1 (E.D.Cal. Jan. 14, 2010); J.W. v. City of Oxnard, No. CV 07-06191, 2008 WL 4810298, at *7 (C.D.Cal. Oct. 27, 2008); Vines v. United States, No. 2:05-cv-02370, 2008 WL 4470795, at *3 (E.D.Cal. Oct. 2, 2008); Headley v. Ferro Corp., 630 F.Supp.2d 1261, 1266-67 (W.D.Wash.2008). Today we join those circuits that have addressed the issue and hold that a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the course of treatment. Goodman specifically retained a number of her treating physicians to render expert testimony beyond the scope of the treatment rendered; indeed, to form their opinions, these doctors reviewed information provided by Goodman’s attorney that they hadn’t reviewed during the course of treatment. For these reasons, we agree with the district court that those doctors fell outside the scope of the “treating physician” exception insofar as their additional opinions are concerned. Therefore, Rule 26(a)(2)(B) required disclosure of written reports. By failing to provide these reports until long after the deadline for plaintiffs expert disclosures had passed, Goodman" }, { "docid": "9460684", "title": "", "text": "trial court gives an instruction to the jury that the out-of-court statements that are being related are admissible only to buttress the credibility of a witness, the statements are not hearsay. United States v. Demarrias, 876 F.2d 674, 677-78 (8th Cir.1989). We find no error in admitting evidence of a prior consistent statement for the'narrow purpose of rehabilitating a witness. c. The third category of statements contains those that Martinez testified that R.H. made when Martinez and Brings Him Back interviewed R.H. The trial court admitted these statements under Rule 803(4) as substantive evidence. That rule provides that “[statements made for purposes of medical diagnosis or treatment and describing medical history ...” are not excluded by the rule against hearsay. The reason for this exception to the general rule is that “a person seeking medical treatment is unlikely to lie to a doctor she wants to treat her since it’ is in her best interest to tell the truth.” Ring v. Erickson, 983 F.2d 818, 820 (8th Cir.1992). In Ring, the alleged victim of child sexual abuse had been brought by her mother to see a doctor. We held that statements made to the doctor were inadmissible because the requisite indicia of reliability were absent: the child did not herself seek the doctor’s help and there was no evidence that she knew, she was talking to a doctor. We have held that the. medical-diagnosis exception may apply “to statements about abuse ... made by a child to a trained social worker or psychologist pursuant to diagnosis or treatment for emotional or psychological injuries-....” United States v. Balfany, 965 F.2d 575, 581 (8th Cir.1992). The Government must, of course, still satisfy the subjective standard of Ring: it must show that R.H. understood that he was speaking to a trained professional for the purposes of obtaining diagnosis of, or providing treatment for, emotional or psychological injuries. Whether Martinez was in fact a “trained social worker” may be relevant both to whether R.H. understood that her purpose was to diagnose or treat his injuries and to whether she qualifies for the medical-diagnosis exception" }, { "docid": "14206204", "title": "", "text": "factual findings on which the judge based the upward departures. Newman points out that Diana Scharff did not testify and that the psychologist’s testimony was hearsay. But the rules of evidence do not apply to sentencing hearings, Fed.R.Evid. 1101(d)(3); United States v. Agyemang, 876 F.2d 1264, 1271 (7th Cir.1989), and the psychologist’s testimony would in any event have been admissible under the hearsay exception for “statements for purposes of medical diagnosis or treatment.” Fed.R.Evid. 803(4). Is psychology medicine? For purposes of the rule, it is. The idea behind the rule is that a person who believes that he is or may be ill or injured has a strong incentive to tell the professional from whom he seeks diagnosis or treatment the truth about his medical history, symptoms, etc. because if he doesn’t it will be harder for the professional to diagnose his problem and treat it effectively. Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir.1988); Gong v. Hirsck, 913 F.2d 1269, 1273 (7th Cir.1990); Meaney v. United States, 112 F.2d 538, 539-40 (2d Cir.1940) (L. Hand, J.). The rationale applies as forcefully to a clinical psychologist as to a physician, and warrants us in reading “medical” broadly. A clinical psychologist can do everything that a psychiatrist— who in this country is a medical doctor and hence within the core of the medical-treatment exception to the hearsay rule, State v. Wyss, 124 Wis.2d 681, 710, 370 N.W.2d 745, 759 (1985)—can do except prescribe medications and (in some states) admit a patient to a hospital. Rule 803(4) has been extended as far as social workers, United States v. DeNoyer, 811 F.2d 436 (8th Cir.1987), though we need not decide in this case whether we agree with that extension. If, moreover, Newman or his counsel had really thought that Diana Scharff would contradict the psychologist’s story, they would have made a more serious effort to subpoena her. Handing the subpoena to her father—who had tried to kill Newman—was hardly calculated to get the subpoena to her, especially when it was not done until the day before the sentencing hearing, too late to" }, { "docid": "15939756", "title": "", "text": "705. Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony.” Id. (emphasis added). Testimony as to the diagnosis and treatment of a patient, and the reasons therefore, is beyond the ability of the average lay witness’ competency and is necessarily based on “the expert’s scientific, technical, or other specialized knowledge,” in the form of doctors’ medical training and experience. See Fed. R. Evid. 702; see also Zitzka v. Village of Westmont, No. 07 C 0949, 2011 WL 4738249, at *11, 2011 U.S. Dist. LEXIS 115922, at *34 (N.D. Ill. Oct. 7, 2011) (“Treating physicians are occurrence witnesses to the diagnosis of a patient’s condition, diagnosis, and treatment — but they are able to diagnose and treat a patient in a way a lay person could not, because in fact they are experts in the way that is contemplated by Fed. R. Evid. 702.”). Indeed, the plaintiff is presumably offering the Medical Witnesses’ testimony to “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a); see also Bell v. Gonzales, No. 03-163, 2005 WL 3555490, at *12 (D.D.C. Dec. 23, 2005). Thus, if the plaintiff wishes her doctors to testify as to her “diagnosis and the treatment prescribed,” as she has proffered, that testimony is properly classified as “expert testimony” and subject to the disclosure requirements of Rule 26(a)(2)(C). The cases relied upon by the plaintiff and by the court in Hancock refer not to Rule 26(a)(2)(C) disclosures but to Rule 26(a)(2)(13) disclosures. See Hancock, 13 F.Supp.3d at 10-13, 2014 WL 60288, at *7-8 (citing Bynum v. MVM, Inc., 241 F.R.D. 52, 54 (D.D.C.2007) and Riddick v. Wash. Hosp. Ctr., 183 F.R.D. 327, 330 (D.D.C.1998)). While those opinions state that a treating physician may testify without a Rule 26(a)(2)(13) disclosure, they do not address the Rule 26(a)(2)(C) standard and do not, as the plaintiff contends, stand for the proposition that treating physicians are not experts. Indeed, one of the cases relied on by the Riddick court makes this distinction" }, { "docid": "2333987", "title": "", "text": "the doctor, not the reverse.”); see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir.1996) (holding that statements made by a doctor to a patient are not admissible under Fed.R.Evid. 803(4) because the rule does not except statements by the person providing medical care). We agree that the hearsay exception set forth in Fed. R.Evid. 803(4) applies only to statements made by the one actually seeking or receiving medical treatment. Accordingly, the Vanderbilt physicians’ statements — as statements made by consulting physicians to the treating physician — are not admissible pursuant to the Fed.R.Evid. 803(4) hearsay exception. Having determined that the statements were hearsay and that they do not fall under the hearsay exception set forth in Fed.R.Evid. 803(4), we now turn to the question of the statements’ impact. We will vacate a jury’s verdict based on a district court’s erroneous admission of hearsay evidence only if the testimony’s admission amounted to more than harmless error. Argentine v. United Steelworkers of America, 287 F.3d 476, 486 (6th Cir.2002). The critical question for the jury in this case was whether Dr. Anderson administered the standard of care to Tina Field that a reasonable physician under similar circumstances would have administered. Each side presented three medical expert witnesses concerning Dr. Anderson’s standard of care. Having reviewed the record, it is clear that the district court’s admission of the Vanderbilt physicians’ statements was highly prejudicial because it enabled Dr. Anderson to introduce two additional expert opinions vouching for his standard of care. Yet unlike the other expert witnesses, the Vanderbilt physicians’ identities and credentials were entirely unknown and their opinions were never subject to cross-examination. Of greatest concern to this Court is that the Vanderbilt physicians’ statements were the strongest evidence at trial that Dr. Anderson might have provided Tina Field with proper care because they were made while that care was being administered. That is, unlike the other medical experts who testified at trial by opining retrospectively on a cold record, Dr. Anderson’s testimony about the Vanderbilt physicians’ statements permitted him to convey the highly prejudicial impression that" }, { "docid": "21062776", "title": "", "text": "testimony admitted pursuant to the residual hearsay exceptions set forth in Federal Rules of Evidence 803(24) and 804(b)(5) must possess “circumstantial guarantees of trustworthiness” which the statements that Plaintiffs seek to introduce simply do not possess. Additionally, the court rejects Plaintiffs’ contentions that certain statements should be admissible as statements against interest and that certain other statements should be admissible as statements made for the purposes of medical diagnosis or treatment. Rock v. Huffco, No. 88-2998, slip op. at 3 (E.D.La. Oct. 5, 1989). The plaintiffs now appeal the district court’s evidentiary rulings and seek reversal of the court’s order granting summary judgment for the defendants. II. DISCUSSION A. Inadmissibility of Hearsay District courts are given broad discretion in rulings on the admissibility of evidence; we will reverse an evidentiary ruling only when the district court has clearly abused this discretion and “a substantial right of [a] party is affected.” See Muzyka v. Remington Arms Co., Inc., 774 F.2d 1309, 1313 (5th Cir.1985); McNeese v. Reading and Bates Drilling Co., 749 F.2d 270, 275 (5th Cir.1985); Fed.R.Evid. 103(a). Applying this standard, we analyze, in turn, each of the district court’s evidentiary determinations. 1. Statements to Physicians Appellants first suggest that written and testimonial evidence concerning the history of Rock’s alleged accidents, which were given by Rock to the doctors treating his ankle, should be admissible under Federal Rule of Evidence 803(4). This rule provides that otherwise inadmissible hearsay should not be excluded if the statement was initially “made for purposes of medical diagnosis or treatment and describes] medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Fed.R.Evid. 803(4) (emphasis added). Admissibility of a statement made to one’s physician turns on the guarantee of the absent declarant’s trustworthiness. See Fed.R.Evid. 803(4) advisory committee’s note. Therefore, before admitting such hearsay statements, the court should determine whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought. Details of the injury not necessary for" }, { "docid": "2333986", "title": "", "text": "or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. The rationale behind this exception is that statements made by an individual to physicians for purposes of diagnosis or treatment are considered exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. White v. Illinois, 502 U.S. 346, 355-56, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). As such, courts have interpreted the exception to be limited to statements made by the one actually seeking medical treatment or care. See Stull v. Fuqua Inds., Inc., 906 F.2d 1271, 1273-74 (8th Cir.1990) (“[T]o fall within the exception [of Fed.R.Evid. 803(4) ], the statement must be obtained from the person seeking treatment, or in some instances from someone with a special relationship to the person seeking treatment, such as a parent.”); Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir.1985) (“Rule 803(4) applies only to statements made by the patient to the doctor, not the reverse.”); see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir.1996) (holding that statements made by a doctor to a patient are not admissible under Fed.R.Evid. 803(4) because the rule does not except statements by the person providing medical care). We agree that the hearsay exception set forth in Fed. R.Evid. 803(4) applies only to statements made by the one actually seeking or receiving medical treatment. Accordingly, the Vanderbilt physicians’ statements — as statements made by consulting physicians to the treating physician — are not admissible pursuant to the Fed.R.Evid. 803(4) hearsay exception. Having determined that the statements were hearsay and that they do not fall under the hearsay exception set forth in Fed.R.Evid. 803(4), we now turn to the question of the statements’ impact. We will vacate a jury’s verdict based on a district court’s erroneous admission of hearsay evidence only if the testimony’s admission amounted to more than harmless error. Argentine v. United Steelworkers of America, 287 F.3d 476, 486 (6th Cir.2002). The critical question" }, { "docid": "16526823", "title": "", "text": "be deferred until trial so that questions of foundation, relevancy and potential prejudice versus probativeness can be resolved in the informed setting only a trial can provide. See Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D.Ill.1993). See also United States, v. Connelly, 874 F.2d 412, 416 (7th Cir.1989). Rulings on motions in limine are inevitably preliminary and subject to revision as the evidence comes in at trial. “Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). B. DEFENDANT’S “GENERAL MOTIONS” [Collectively #159] Motion 1 — To bar mention that the defendant, its attorneys or agents have ever delayed the trial of this cause. There being no objection to the motion, it is granted. Motion 2 — To bar any mention of the condition of the plaintiffs injury other than degree, location and frequency of pain, unless that testimony regarding injury, treatment, or diagnosis is given by a licensed and qualified medical doctor. The motion is granted in part and denied in part. Statements made by a medical provider to a witness are inadmissable hearsay if offered by the witness to prove the truth of the matters asserted. See, e.g., Bombard v. Fort Wayne Newspapers, 92 F.3d 560 (7th Cir.1996); Field v. Trigg County Hosp., Inc., 386 F.3d 729 (6th Cir.2004). Of course, plaintiff may testify about her own pain and suffering, and so too may other testimonially competent witnesses. (Rule 602, Federal Rules of Evidence). And statements by the witnesses about relevant statements made by the plaintiff that satisfy the requirements of Rule 803(3) or 803(4) will be admissible under those hearsay exceptions. Motion 3 — To prevent any comment, suggestion or reference in any manner, as to the existence of non-existence of any insurance covering Defendant for this case. The Plaintiff does not object to the motion and therefore it is granted. Motion 4 — To bar any unpaid medical bills" }, { "docid": "22163347", "title": "", "text": "forth sufficient evidence that he could perform the essential functions of his job with reasonable accommodation. The only evidence Bombard offers in support of the fact that he is a “qualified individual with a disability” is his testimony in his deposition, repeated later in his affidavit: “I could have been put on part-time. In fact, on March 25, when I went to the doctor, before I knew I was terminated, that [sic] she said, ‘Well, why don’t we try and work just part time, half the day and gradually ease into it.’ ” Bombard properly acknowledges in his reply brief that his testimony regarding the doctor’s statement is hearsay. Reply Br. at 9. Nevertheless, he argues that his relation of the doctor’s statement is competent evidence that he was a “qualified individual” because the statement would otherwise be admissible under Fed. R. Evid. 803(4). Rule 803(4) excepts the following from the realm of inadmissible hearsay: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Fed. R. Evid. 803(4). The Rule excepts statements made by a person seeking medical attention to the person providing that attention. Rule 803(4) does not purport to except, nor can it reasonably be interpreted as excepting, statements by the person providing the medical attention to the patient. See Gong v. Hirsch, 913 F.2d 1269, 1273-74 & n. 5 (7th Cir.1990) (detailing the limited scope of Rule 803(4)). Bombard’s testimony regarding his doctor’s statement, submitted for the purpose of establishing his ability to perform the essential functions of his job with accommodation, is therefore inadmissible and incompetent evidence to oppose summary judgment. See Wigod, 981 F.2d at 1519. After removing from consideration the statement of Bombard’s doctor, it is clear that Bombard has failed to produce sufficient evidence to establish a genuine issue of material fact as to his ability to perform the essential functions of his job with reasonable accommodation. That conclusion is" } ]

[ { "docid": "16702946", "title": "", "text": "sexual advances made and/or for engaging in the filing of complaints and/or grievances against said co-defendant. Moreover, a claim of sexual harassment and employment discrimination, as referred above may rise to a civil rights violation under § 1983 and/or for relief under § 1981a. In view of the foregoing, it is recommended that co-defendant Padrón’s request for dismissal for lack of showing of a sexual harassment claim under Title VII and Puerto Rico Laws be DENIED. Individual Liability under Puerto Rico Laws 80, 100, 69 and 17. Co-defendants Fuller, López and Escal-era contend there is no individual liability under Puerto Rico Laws 80, 100, 69 and 17. (Docket No. 10). Plaintiffs Opposition fails ,to argue this issue in detail. (Docket No. 22). A. Puerto Rico Law 80. In Flamand v. American. Intern. Group. Inc., 876 F.Supp. 356, 364 (D.Puerto Rico 1994), this Court explicitly held supervisors are not employers under Puerto Rico Law 80 explaining there is no explicit definition for “employer” under Law 80 for severance pay. Additionally, the Court reasoned that the only remedies available under Law 80 is the salary the employed may have earned, the salary corresponding to one month as indemnity, and an additional indemnity equal to one week for each year in employ. Therefore, because the remedy is based on wages, and because it does not make sense that a supervisor should pay wages to an employee, this Court found that supervisors are not “employers” under 29 L.P.R.A. § 185a. Accordingly, -the Court ruled that the individual defendants were not “employers” under Law 80. See also, Pacheco Bonilla v. Tooling & Stamping, Inc., 281 F.Supp.2d 336, 339 (D.Puerto Rico 2003) (same); Mandavilli v. Maldonado, 38 F.Supp.2d 180, 205 (D.Puerto Rico 1999) (same). In the absence of any contrary guidance from the Puerto Rico Supreme Court, this Magistrate Judge sees no reason not to follow the holding in Flamand. Thus, since there is no individual liability against co-defendants López and Escalera under Puerto Rico Law 80, it is recommended that López and Escalera’s Motion to Dismiss the claims under Law 80 BE GRANTED. B.Puerto Rico" } ]

[ { "docid": "5866944", "title": "", "text": "employ. Therefore, because the remedy is based on wages, and because it does not make sense that a supervisor should pay wages to an employee, this Court does not find that supervisors are “employers” under 29 L.P.R.A. § 185a. Accordingly, the Court finds that defendants Hammer and Subirats are not “employers” under Law 80. The Court hereby grants defendants’ motion for summary judgment and shall dismiss the Law 80 severance pay claim as against Hammer and Subirats. 3. Contract Claim For Severance Pay Defendants also contend that because plaintiffs do not allege that Hammer or Subirats promised to pay Flamand severance “out of their own pockets” (emphasis omitted), Hammer and Subirats are not appropriate defendants in plaintiffs’ breach of contract claim for severance pay. Plaintiffs object. Neither party, however, offers any law. It seems from the facts that plaintiffs are alleging that Hammer and Subirats are liable as agents of the corporate defendants. Therefore, plaintiffs’ cause of action exists only against those corporate defendants with whom plaintiff allegedly contracted and not said defendants’ agents. Accordingly, the Court grants defendants’ motion and shall dismiss plaintiffs’ contract claim for severance pay as against Hammer and Subirats. 4. Defamation Claims A defamation claim entails plaintiffs proving (1) that the information is false, (2) that the information was published with full knowledge of its falsehood, (3) that the publication was negligent, and (4) plaintiff suffered real damages. Villanueva v. Hernandez Class, 91 J.T.S. 58, p. 8697 (1991) (citing Totres-Silva v. El Mundo, 106 D.P.R. 415, 421, 427, 106 Off.Trans. 581, 589-91, 598 (1977)). Defendants argue that each alleged defamatory statement constitutes a separate claim. See De Leon v. St., Joseph Hosp., 871 F.2d 1229 (4th Cir.), cert. denied, 493 U.S. 825, 110 S.Ct. 87, 107 L.Ed.2d 52 (1989). Plaintiffs oppose this argument stating that there is only one defamation claim, which is supported by various statements. The Court finds that Puerto Rico defamation law analyzes whether a certain “publication” was defamatory not whether “statements” are defamatory. It is true that upon one defamation statement, plaintiffs can prove defamation and be awarded a remedy. And" }, { "docid": "3656774", "title": "", "text": "115, 120 (D.P.R.1997) (ADEA).” Julia v. Janssen, Inc., 92 F.Supp.2d 25, 28-29 (D.P.R.2000) (citing Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R. 1999(SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R. 1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R. 1996)(PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R. 1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act); Baublitz v. California, No. C98-0434 CRB, 1998 WL 427444 at * 1 (N.D.Cal. July 27, 1998) (Rehabilitation Act); Huck v. Mega Nursing Servs., Inc., 989 F.Supp. 1462, 1464 (S.D.Fl.1997) (Rehabilitation Act). Therefore, Plaintiffs claim against under Title VII Defendants in their individual capacity are hereby DISMISSED. 2. Individual Liability Under Puerto Rico Anti-discrimination Laws Contrary to what Defendants aver, Plaintiffs claims against Defendants in their individual capacity under Puerto Rico laws do not lack merit. The Supreme Court of Puerto Rico recently found that under Puerto Rico Law Nos. 17, 69 and 100, an agent, official, administrator or supervisor of a business can be found personally liable for violations of the aforementioned laws. Rosario Toledo v. Distribuidora Kikuet, Inc., — D.P.R. -, 2000 WL 943550 at *5 (P.R.2000). However, a c'onjugal partnership’s assets will not be found liable for damages caused by one of the partners. Id. Consequently, Defendants’ Motion for Summary Judgment on the issue of personal liability under Puerto Rico laws is DENIED in part as to the claims against: 1) Jose A." }, { "docid": "5866943", "title": "", "text": "without good cause shall be entitled to receive from his employer ” a severance payment. 29 L.P.R.A. § 185a (emphasis added). Because “employer” is not defined in the law itself, defendants argue that employer must be defined as only those who normally pay wages or salary. Plaintiffs argue that “employer” under Law 80 includes agents, managers, administrators and representatives of the employer because other statutes in Title 29 of the Puerto Rico Law Annotated utilize said definition. See 29 L.P.R.A. §§ 142, 155(a), 139, and 194. The sections cited by plaintiff specifically define either the sections of Title 29 or the circumstances under which the definition shall be used. None of these definitions refer to Law 80 or circumstances present in a Law 80 claim. And, as stated above, there is no explicit definition for “employer” under Law 80. Additionally, the only remedies available under Law 80 is the salary the employee may have earned, the salary corresponding to one month as indemnity, and an additional indemnity equal to one week for each year in employ. Therefore, because the remedy is based on wages, and because it does not make sense that a supervisor should pay wages to an employee, this Court does not find that supervisors are “employers” under 29 L.P.R.A. § 185a. Accordingly, the Court finds that defendants Hammer and Subirats are not “employers” under Law 80. The Court hereby grants defendants’ motion for summary judgment and shall dismiss the Law 80 severance pay claim as against Hammer and Subirats. 3. Contract Claim For Severance Pay Defendants also contend that because plaintiffs do not allege that Hammer or Subirats promised to pay Flamand severance “out of their own pockets” (emphasis omitted), Hammer and Subirats are not appropriate defendants in plaintiffs’ breach of contract claim for severance pay. Plaintiffs object. Neither party, however, offers any law. It seems from the facts that plaintiffs are alleging that Hammer and Subirats are liable as agents of the corporate defendants. Therefore, plaintiffs’ cause of action exists only against those corporate defendants with whom plaintiff allegedly contracted and not said defendants’ agents. Accordingly," }, { "docid": "1842686", "title": "", "text": "plaintiffs claim under Title VII against co-defendants Genzana and Cabrera for lack of individual liability under Title VII. II. Individual Liability under Puerto Rico Laws 100, 69,17 and 80. Co-defendants Genzana and Cabrera make a general claim the dismissal of the federal claims entails the dismissal of the state law claims because the Court, without federal claims, would not have original jurisdiction to exercise supplemental jurisdiction over the state law claims. (Docket No. 4). In turn, plaintiff contends there is individual liability under Puerto Rico Laws 100, 69 and 17, as such, the Motion to Dismiss state law claims under Laws 100, 69 and 17 should be denied. Plaintiff does not address Law 80 as to this matter. (Docket No. 7). A. Puerto Rico Law 100. The Puerto Rico Supreme Court has expressly considered the question of supervisor liability under Law 100. In Rosario Toledo v. Distribuidora Kikuet, Inc., 151 D.P.R. 634, 2000 WL 943550, 2000 JTS 108 (2000), the Court held that, different from the most popular interpretation of Title VII, Puerto Rico’s law against discrimination in the workplace, Law 100, does provide for the imposition of supervisor liability on the president of a corporation when he is the supervisor of the plaintiff, and is personally responsible for causing the plaintiffs injury. The Court’s holding, in fact, was later extended, via reconsideration, to include not only the actual employer, or the owner and the president of the corporation, but also any other person responsible for the illegal conduct, without any distinction. Id.; see also Pacheco Bonilla v. Tooling & Stamping, Inc., 281 F.Supp.2d 336, 339-340 (D.Puerto Rico 2003); Rosado Sostre v. Turabo Testing, Inc., 364 F.Supp.2d 144 (D.Puerto Rico 2005) (while First Circuit has not yet decided issue of individual liability under Title VII, individual employers or supervisors may be held personally liable under Puerto Rico’s “Law 100,” Title VIPs local counterpart, for their discriminatory actions); Mejías Miranda v. BBII Acquisition Corp., 120 F.Supp.2d 157, 172 (1st Cir.2000). Taking the allegations of the complaint as true, it is clear co-defendants Genzana and Cabrera were the alleged harassers. Thus, given" }, { "docid": "1842689", "title": "", "text": "are merely amplifications of principles already contained in Law 100, which allows individual liability pursuant to the Puerto Rico Supreme Court’s decision in Rosario Toledo, 2000 JTS at 193. Accordingly, Law 17 and Law 69 are, according to the canons of statutory construction, to be interpreted in pari mate-ria with Law 100. See Beauchamp v. Holsum Bakers, 116 D.P.R. 522, 526-27, 1985 WL 301220 (1985) (setting forth that laws covering the same matter or object should be interpreted in pari materia, allowing the clear part of one statute to illuminate unclear parts of another). See also Suárez Ruiz v. Figueroa Colón, 145 D.P.R. 142 (1998) (stating that Law 17 and Law 69 represent more specific prohibitions of what is already prohibited by Law 100 and that all three statutes form a single legislative scheme to create a public policy against sex discrimination); Vélez Miranda v. Servicios Legales de Puerto Rico, Inc., 144 D.P.R. 673 (1998) (holding that Law 17 makes express the prohibition on sexual harassment and serves the same purpose as Law 100); Sánchez v. Autoridad de Energía Eléctrica, 142 D.P.R. 880 (1997) (asserting that sexual harassment is a form of sex discrimination prohibited by Law 100); Delgado Zagas, 137 P.R. Dec. at 651; Rodríguez Meléndez v. Supermercado Amigo, Inc., 126 P.R. Dec. 117, 124 (1990) (same). In view of the foregoing, this Magistrate Judge concludes Law 17 and Law 69 do support individual liability as Law 100 also does. Accordingly, and in light of our recommendation as to Law 100, it is recommended co-defendants Genzana and Cabrera’s Motion to Dismiss the state claims under Law 69 and Law 17 be DENIED. C. Puerto Rico Law 80. In Flamand v. American Intern. Group, Inc., 876 F.Supp. 356, 364 (D.Puerto Rico 1994), this Court explicitly held supervisors are not employers under Puer-to Rico Law 80 explaining there is no explicit definition for “employer” under Law 80 for severance pay. Additionally, the Court reasoned that the only remedies available under Law 80 is the salary the employee may have earned, the salary corresponding to one month as indemnity, and an additional" }, { "docid": "5121211", "title": "", "text": "ORDER DOMINGUEZ, District Judge. Pending before the Court is Defendant’s Motion to Dismiss the personal liability claim against co-defendant Juan A. Net Brunet (Docket No. 8) and Plaintiff Benigno Contreras Bordallo’s Opposition thereto (Docket No. 12). The issue is the individual liability under Title VII of codefendant Juan A. Net Brunet hereinafter referred to as “Net.” Defendants also request the dismissal of Plaintiffs local law claim under Law 100, P.R.Laws Ann.Tit. 29 § 146 et sec. The issue of individual liability under Title VII has not been decided in the First Circuit or by the Supreme Court of the United States. District Judge Héctor M. Laffitte in the case of Elba Colón Hernández v. Patrick Wangen, 938 F.Supp. 1052 (D.P.R.1996) recently performed an exhaustive restatement of circuit court and district court decisions in this district. Id. at 1062-1063, n. 6. See also Anonymous v. Legal Services Corp. of Puerto Rico, 932 F.Supp. 49 (D.P.R.1996) (Pérez Giménez J.). Although a circuit court has authorized individual liability under Title VII and ADEA, the definition of employer being substantially identical under both laws, most circuits that have confronted the issue, have concluded that there is no personal liability. Only the Fourth Circuit Court has imposed personal liability to supervisors. In this district there are various decisions dismissing individual liability claims against supervisors. Elba Colón v. Patrick Wangen, supra; Flamand v. American International Group, Inc., 876 F.Supp. 356, 361-364 (D.P.R.1994); Hernández Torres v. Intercontinental Trading Ltd., 1994 WL 752591, *3 (D.P.R.1994 Laffitte J.). The Court recognizes that there are district court opinions in the First Circuit holding for personal supervisory liability. This Court has scrutinized the statute and agrees with the well reasoned opinion of Judge Laffitte: “The overall language of Title VII, the legislative history, and the Civil Rights Act of 1991 demonstrate that Congress used the word “agent” in the definition of “employer” to incorporate, the doctrine of respondeat superior into the law [citations omitted]. There is absolutely no mention in the statute language or in the legislative history of Title VII’s application to individual defendants (footnote omitted). As it was with" }, { "docid": "7826764", "title": "", "text": "on the lack of a definition of “employer” under Law 80, combined with the fact that it made no sense to have a supervisor pay wages to an employee. While Plaintiffs are not alleging that the individual Defendants are supervisors, they are nevertheless attempting to hold liable the individual employees of UPR involved in the tenure decisions. The Court is persuaded by the reasoning in Flamand, and finds that it can be extended to the case at hand involving individual employees of UPR. Therefore, Plaintiffs claims under Law 80 against the individual Defendants are hereby DISMISSED. The only Puerto Rico Law claims that remain are those under the general tort liability statute, Article 1802 of the Puerto Rico Civil Code, against the individual Defendants. Plaintiffs Gast and Castañeyra’s only remaining federal claims are for procedural due process under the Fifth and Fourteenth Amendments pursuant to § 1983. Plaintiffs Mandavilli and Mastran-gelo have, in addition to the procedural due process claims, ADEA and Title VII sex discrimination claims. The Court does not believe the Puerto Rico Law claims for tort liability “form part of the same case of controversy under Article III of the United States Constitution” as the remaining federal claims. 28 U.S.C. § 1367(a). Thus, the Court hereby DISMISSES Plaintiffs claims under Article 1802 of the Puerto Rico Civil Code WITHOUT PREJUDICE. Further, Dr. Mandavilli’s wife, Ranga Mandavilli and the Mandavilli-Mandavilli conjugal partnership; Dr. Gast’s wife, Maria Isabel Cubides-Camacho and the Gast-Cubides- conjugal partnership; Dr. Mas-trangelo’s husband, Vladimir Lebduschka and the Lebdusehka-Mastrangelo conjugal partnership; Professor Castaheyra’s husband, Jose G. Angulo-Cuzzi and the Casta-heyra-Angulo conjugal partnership, cannot maintain an action separate from that of Professor Castaheyra’s action, and therefore, their claims under Puerto Rico Law are also DISMISSED WITHOUT PREJUDICE. See Maldonado v. Banco Central, 95 J.T.S. 48. IV. Conclusion For the reasons set forth above, the Court hereby DISMISSES the following claims WITH PREJUDICE: (1) Satya N. Mandavilli: national origin/race/ethnic background discrimination under Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and 42 U.S.C. § 1983; (2) Laura Mastrangelo Puech:" }, { "docid": "5866981", "title": "", "text": ". Defendants have not moved for summary judgment on plaintiffs’ claim against defendants for attempting to demote Flamand. . Law 50 is the predecessor to Law 80, which is at issue in this case. . See section B infra. . See section A infra. . See also Barreto v. H.F. Mortgage Bankers, Case No. 92-1613 (HL) (D.P.R. Aug. 26, 1992) (stating \"A conjugal partnership has no independent standing to sue under ADEA because it is not an 'employee' within the meaning of the ADEA. Paredes Figueroa v. Int. Air Serv. of Puerto Rico, 662 F.Supp. 1202 (D.P.R.1987). Plaintiff’s spouse lack's standing to sue under the ADEA for the same reason. Zavala v. G.D. Searle & Co., 1991 WL 128222 (D.P.R.1991). In Zavala, the Court also denied standing to a wife and conjugal partnership under Law 100. Id., 1991 WL 128222, ~4. We follow the court’s reasoning in that case, and similarly hold that plaintiff's wife and conjugal partnership lack standing to prosecute this claim under Law 100.”). It should be noted that the Puerto Rico Supreme Court has recently held that family members of an employee bringing suit under Law 100 may bring an action under Article 1802 for damages suffered due to the employer's discrimination against the employee. Santini Rivera v. Seiv Air, Inc., 94 J.T.S. 121 (1994). In the case at hand, plaintiff is bringing an action under Article 1802 for negligent and tortious actions, which includes the defendants' conduct towards Fla-mand \"that went beyond Flamand’s constructive dismissal.” Plaintiff's Specification of Claims. Defendants' motion to dismiss and/or summary judgment does not address said Article 1802 claim, and therefore this Court shall not address same in this Opinion and Order." }, { "docid": "18545973", "title": "", "text": "distinct factual allegations to support a tort claim separate from the labor law claims. (Docket No. 6, ¶¶ 8-23). Ac cordingly, plaintiffs Article 1802 and 1803 claims are dismissed with prejudice. B. Law 80 Defendants argue correctly that plaintiffs Law 80 claims against the individual defendants should be dismissed (Docket No. 13, p. 7) because Law 80 does not provide for individual liability. Flamand v. Am. Int’l Group, Inc., 876 F.Supp. 356, 364-65 (D.P.R.1994). Plaintiff concedes this point. (Docket No. 20, p. 3). Therefore, plaintiffs Law 80 claims against the individual defendants are dismissed with prejudice. C. Law 100 Finally, defendants argue that plaintiffs Law 100 cause of action against the individual defendants fails to state a plausible claim for relief under the Twombly pleading standard. (Docket No. 13, p. 7-9). Unlike Law 80, Law 100, which prohibits workplace discrimination based on characteristics including age, does permit individual liability. 29 L.P.R.A. § 146; Rosario Toledo v. Distribuidora Kikuet, Inc., 151 D.P.R. 634 (2000). Plaintiff responds that the complaint’s allegations are sufficient. (Docket No. 20, p. 3-4). The amended complaint alleges that starting in 2006, Guilliani, López, “and other officials began harassing” all nine of INSEC’s “coordinators,” all of whom were allegedly over age 40. Plaintiff further alleges that “[a]s part of the harassment, the old employees were called for meetings and left waiting for hours, and would be transferred” without regard to their residence, such that, “[a]s part of the harassment, Plaintiff was made” to commute between Sabana Grande and Arecibo for ten months. Plaintiff further alleges that Vélez “would threaten the coordinators that she would remove all of them and replace them with younger employees.” (Docket No. 6, ¶¶ 7,15-17). It is true that the allegation that Guilliani and López “began harassing” the coordinators, standing alone, would be too conclusory to state a colorable claim. But the subsequent allegations that defendants discriminatorily exacerbated two of the banes of modern life—commuting and waiting around for meetings—provide enough detail to “nudge[ ] [plaintiffs] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 567, 127 S.Ct. 1955. “[A]llegations that" }, { "docid": "7826762", "title": "", "text": "Civil Code, P.R. Laws Ann. tit. 31 § 5141 (1990). Defendants state, without citing any evidence or supporting case law, that UPR is immune against damage suits under Puer-to Rico law, and further, that Defendants are not an “employer” under Law 80. Further, Defendants ask the Court to dismiss Plaintiffs’ supplemental Puerto Rico law claims if their federal claims are dismissed. Plaintiffs did not respond to these arguments. First, the Court addresses Defendant UPR’s claim of Eleventh Amendment immunity. The Eleventh Amendment protects a state defendant from suit in federal court. The University of Puerto Rico has been found to be an “arm of the state within the purview of the Eleventh Amendment.” Pinto v. Universidad De Puerto Rico, 895 F.2d 18, 18 (1st Cir.1990). Thus, unless there is an explicit waiver of sovereign immunity, UPR is immune from suit. See Silva v. Universidad de Puerto Rico, 817 F.Supp. 1000 (D.Puerto Rico 1993). The Court finds that neither Law 80 nor Article 1802 of the Puerto Rico Civil Code contain a waiver of sovereign immunity. See id.; P.R. Laws Ann. tit. 26 § 2004. Therefore, Plaintiffs cannot sustain an action under Puerto Rico law against UPR, and therefore, all of Plaintiffs’ claims under Puerto Rico Law are hereby DISMISSED as to UPR. Defendants next argue that the individual Defendants are not “employers” under Law 80. Defendants do not cite to any definition of employer under Puerto Rico Law 80, nor do they present any additional arguments as to individual liability. The Court first notes that “employer” is not defined in Law 80 itself. See 29 L.P.R.A. § 185a-185k; Flamand v. American Int'l. Group Inc., 876 F.Supp. 356, 364 (D.Puerto Rico 1994) (citing and cataloging the definitions of “employer” in other sections of Title 29 of the Laws of Puerto Rico). In analyzing whether or not individual supervisors could be held liable under Law 80, the Court in Flamand v. American International Group, Inc., emphasized that the only remedy available under Law 80 is salary or wages. Therefore, the Flamand Court held that supervisors are not “employers” under Law 80, based" }, { "docid": "5866980", "title": "", "text": "the employer may be liable for a sum no less than fifty dollars and no more than one thousand dollars or double the amount of the pecuniary damages. . 29 L.P.R.A. § 194 is entitled Reprisals against employee for offering testimony, and defines employer as \"whichever person that has one or more employees. This includes the agents of the employer.\" (Translation ours). . The Court notes that this decision is consistent with its above discussion, which found supervisors to be not liable under ADEA as \"employers” in part because it would be nonsensical for supervisors to pay wage damages or reinstate an employee. . Defendants in their motion for summary judgment attempt to treat each statement as a separate claim, thereby creating five claims out of just one incident. As stated above, the Court finds that because defamation law deals with \"publications,\" and because these five clauses appear to have been published at one time, by one person, and to one person, the Court shall treat them as one claim. . See, note 3 infra. . Defendants have not moved for summary judgment on plaintiffs’ claim against defendants for attempting to demote Flamand. . Law 50 is the predecessor to Law 80, which is at issue in this case. . See section B infra. . See section A infra. . See also Barreto v. H.F. Mortgage Bankers, Case No. 92-1613 (HL) (D.P.R. Aug. 26, 1992) (stating \"A conjugal partnership has no independent standing to sue under ADEA because it is not an 'employee' within the meaning of the ADEA. Paredes Figueroa v. Int. Air Serv. of Puerto Rico, 662 F.Supp. 1202 (D.P.R.1987). Plaintiff’s spouse lack's standing to sue under the ADEA for the same reason. Zavala v. G.D. Searle & Co., 1991 WL 128222 (D.P.R.1991). In Zavala, the Court also denied standing to a wife and conjugal partnership under Law 100. Id., 1991 WL 128222, ~4. We follow the court’s reasoning in that case, and similarly hold that plaintiff's wife and conjugal partnership lack standing to prosecute this claim under Law 100.”). It should be noted that the Puerto Rico" }, { "docid": "18545972", "title": "", "text": "of the Civil Code are supplementary to special legislation,” Barreto v. ITT World Directories, Inc., 62 F.Supp.2d 387, 393 (D.P.R.1999), an employment discrimination plaintiff may pursue claims under Articles 1802 and 1803 only when they are based on “tortious or negligent conduct distinct from that covered by the specific laws invoked, or which have an independent basis to support them.” Rivera-Cartagena v. Wal-Mart P.R., Inc., 767 F.Supp.2d 310, 320 (D.P.R.2011) (internal citations, quotations, and alterations omitted). Defendants maintain that plaintiffs labor law claims arise from the same conduct as the tort claims. (Docket No. 13, p. 6). Plaintiffs only argument in response is that her tort claims are alleged in the alternative to her Law 80 claims and it should be left to a jury to decide whether defendants committed negligent acts in addition to discriminatory ones. (Docket No. 20, p. 3). The court finds plaintiffs argument unpersuasive. A cursory review of the amended complaint, which alleges succinctly that defendants suspended and then terminated plaintiff after three years of age-based harassment by Guilliani, reveals no distinct factual allegations to support a tort claim separate from the labor law claims. (Docket No. 6, ¶¶ 8-23). Ac cordingly, plaintiffs Article 1802 and 1803 claims are dismissed with prejudice. B. Law 80 Defendants argue correctly that plaintiffs Law 80 claims against the individual defendants should be dismissed (Docket No. 13, p. 7) because Law 80 does not provide for individual liability. Flamand v. Am. Int’l Group, Inc., 876 F.Supp. 356, 364-65 (D.P.R.1994). Plaintiff concedes this point. (Docket No. 20, p. 3). Therefore, plaintiffs Law 80 claims against the individual defendants are dismissed with prejudice. C. Law 100 Finally, defendants argue that plaintiffs Law 100 cause of action against the individual defendants fails to state a plausible claim for relief under the Twombly pleading standard. (Docket No. 13, p. 7-9). Unlike Law 80, Law 100, which prohibits workplace discrimination based on characteristics including age, does permit individual liability. 29 L.P.R.A. § 146; Rosario Toledo v. Distribuidora Kikuet, Inc., 151 D.P.R. 634 (2000). Plaintiff responds that the complaint’s allegations are sufficient. (Docket No. 20, p." }, { "docid": "16702945", "title": "", "text": "the three (3) co-defendants asked her to “keep quite” in order not to harm Fuller’s reputation. Pa-drón offered plaintiff, with the knowledge and consent of López and Escalera, a written excuse or letter for his actions in exchange for a written release and waiver of rights by plaintiff. Plaintiff avers that no relief was offered and instead, a hostile work environment was created, as for example, plaintiff was threatened with dismissal after she informed her sexual harassment complaint. Finally, .plaintiff claims she was forced to leave her job and income, thus being constructively discharged. As summarized above, plaintiff has submitted in the complaint claims that provide details of the incident at the Campomar restaurant, other incidents and actions which ensued afterwards by the three (3) co-defendants, and dates, that would survive a request for dismissal under Fed. R.Civ.P. 12 of a sexual harassment discrimination claim while working at Fuller. The complaint also submits a well-pleaded version of plaintiffs numerous complaints of co-defendant Padrón’s acts, that resulted in retaliation because of her refusal to accept the sexual advances made and/or for engaging in the filing of complaints and/or grievances against said co-defendant. Moreover, a claim of sexual harassment and employment discrimination, as referred above may rise to a civil rights violation under § 1983 and/or for relief under § 1981a. In view of the foregoing, it is recommended that co-defendant Padrón’s request for dismissal for lack of showing of a sexual harassment claim under Title VII and Puerto Rico Laws be DENIED. Individual Liability under Puerto Rico Laws 80, 100, 69 and 17. Co-defendants Fuller, López and Escal-era contend there is no individual liability under Puerto Rico Laws 80, 100, 69 and 17. (Docket No. 10). Plaintiffs Opposition fails ,to argue this issue in detail. (Docket No. 22). A. Puerto Rico Law 80. In Flamand v. American. Intern. Group. Inc., 876 F.Supp. 356, 364 (D.Puerto Rico 1994), this Court explicitly held supervisors are not employers under Puerto Rico Law 80 explaining there is no explicit definition for “employer” under Law 80 for severance pay. Additionally, the Court reasoned that the only" }, { "docid": "17971225", "title": "", "text": "corporate entity’s own employees but those individuals who work for the employer outside the company”. Recapitulating, there are two convincing arguments that impress the court, adopted by Circuit and District Courts in analyzing potential personal liability under Title VII. ( See generally Contreras Bordallo v. Banco Bilbao Vizcaya, 952 F.Supp. 72, 73, n.2 (D.P.R.1997) and Flamand 876 F.Supp. at 361-64 containing the circuit court opinions discussing personal liability of supervisors and/or agents.) First the definition of “employer” under the Act, 42 U.S.C. § 2000e(b), which includes the employer’s “agents”, is not a vehicle to impute liability upon said agent, but a means to incorporate respondent superior liability into the law. Maxwell’s Int’l Inc., 991 F.2d at 587; Tomka, 66 F.3d at 1314 (“there is a noticeable absence of any mention of agent liability in the floor debates over § 2000e(b)”.) Second the statutory scheme of Title VII indicates that Congress did not intent to impose individual liability over agents and/ or supervisors as employees. Title VII limits the liability to employers with fifteen or more employees 42 U.S.C. § 2000e(b) obviously in an attempt not to burden small entities with the costs of litigating these types of claims. Further in authorizing compensatory and punitive damages, 42 U.S.C. § 1981(a), Congress in 1991 limited the liability of employers based on the number of employees of the corporation. “If Congress decided to protect such entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liabilities to run against individual employees.” Maxwell’s Int’l Inc., 991 F.2d at 587, and at n. 2. Because the liability of Co-defendants Co-lón and Rodriguez is grounded exclusively on individual liability as “agents” and/ or supervisors, the court must dismiss the Title VII cause of action , THEREFORE, the court grants Co-defendants motion to dismiss. IT IS SO ORDERED. . The family of Co-plaintiff Acevedo lack cause of action to sue in the case under Title VII. Said family members as third parties do not comply with the definition of \"employees\" under the Act. 42 U.S.C. § 2000e(b). Under local law, the Puerto" }, { "docid": "5121212", "title": "", "text": "substantially identical under both laws, most circuits that have confronted the issue, have concluded that there is no personal liability. Only the Fourth Circuit Court has imposed personal liability to supervisors. In this district there are various decisions dismissing individual liability claims against supervisors. Elba Colón v. Patrick Wangen, supra; Flamand v. American International Group, Inc., 876 F.Supp. 356, 361-364 (D.P.R.1994); Hernández Torres v. Intercontinental Trading Ltd., 1994 WL 752591, *3 (D.P.R.1994 Laffitte J.). The Court recognizes that there are district court opinions in the First Circuit holding for personal supervisory liability. This Court has scrutinized the statute and agrees with the well reasoned opinion of Judge Laffitte: “The overall language of Title VII, the legislative history, and the Civil Rights Act of 1991 demonstrate that Congress used the word “agent” in the definition of “employer” to incorporate, the doctrine of respondeat superior into the law [citations omitted]. There is absolutely no mention in the statute language or in the legislative history of Title VII’s application to individual defendants (footnote omitted). As it was with other civil rights statutes such as Section 1981, Congress would have included individuals like supervisors as potential liable parties ... Finally the language of the Civil Rights Act reflects Congress’ pellucid desire to protect small corporate entities from the burdens of litigating discrimination lawsuits (footnote omitted). It shields all defendants with lower than fifteen employees from -liability, 42 U.S.C.A. 1931a(a)(3) (1994). Moreover, for defendants with more than fourteen employees, it limits the amount for compensatory and punitive damages recoverable proportionally to the number of total employees. Id. Once again as with Title VII, there was absolutely no discussion of expanding liability to include individual defendants (footnote omitted). Indeed it would be nothing short of bizarre if Congress placed such heightened emphasis and concern on limiting the damages recoverable against small corporate entities and yet simultaneously, silently exposed all individual defendants to unlimited liability.” Wangen, supra at 1064-65. Since the law is totally silent as to individual liability, and the word “agent” has been incorporated in the definition of “employer” to include the doctrine of respondeat" }, { "docid": "1842685", "title": "", "text": "v. Colón, 2 F.Supp.2d 203, 206 (D.Puerto Rico 1998); Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 92-93 (D.Puerto Rico 1997); Hernández v. Wangen, 938 F.Supp. 1052 (D.Puerto Rico 1996); Anonymous v. Legal Services Corp., 932 F.Supp. at 50-51. This Magistrate Judge agrees with numerous judicial reasoning within this District Court insofar Title VIPs statutory structure suggests Congress did not intend to impose individual liability over supervisors or agents of employers. Had Congress intended to hold individuals liable, it would have addressed the actions and conditions that would subject them to liability. Canabal, 48 F.Supp.2d at 96. Tasks mandated to employers under Title VII are applicable to the corporate entities and not to individual supervisors. See Hernández v. Wangen, 938 F.Supp. at 1060 (noting that tasks such as maintaining records that shed light on potential unlawful employment practices and posting notices about the provisions of Title VII in conspicuous places on the work premises are undoubtedly tasks associated with corporate entities, not individuals.). Accordingly, it is recommended the Motions to Dismiss be GRANTED insofar as plaintiffs claim under Title VII against co-defendants Genzana and Cabrera for lack of individual liability under Title VII. II. Individual Liability under Puerto Rico Laws 100, 69,17 and 80. Co-defendants Genzana and Cabrera make a general claim the dismissal of the federal claims entails the dismissal of the state law claims because the Court, without federal claims, would not have original jurisdiction to exercise supplemental jurisdiction over the state law claims. (Docket No. 4). In turn, plaintiff contends there is individual liability under Puerto Rico Laws 100, 69 and 17, as such, the Motion to Dismiss state law claims under Laws 100, 69 and 17 should be denied. Plaintiff does not address Law 80 as to this matter. (Docket No. 7). A. Puerto Rico Law 100. The Puerto Rico Supreme Court has expressly considered the question of supervisor liability under Law 100. In Rosario Toledo v. Distribuidora Kikuet, Inc., 151 D.P.R. 634, 2000 WL 943550, 2000 JTS 108 (2000), the Court held that, different from the most popular interpretation of Title VII, Puerto Rico’s law" }, { "docid": "1842691", "title": "", "text": "indemnity equal to one week for each year in employ. Therefore, because the remedy is based on wages, and because it does not make sense that a supervisor should pay wages to an employee, this Court found that supervisors are not “employers” under 29 L.P.R.A. § 185a. Accordingly, the Court ruled that the individual defendants were not “employers” under Law 80. See also, Pacheco Bonilla, 281 F.Supp.2d at 339 (same); Mandavilli v. Maldonado, 38 F.Supp.2d 180, 205 (D.Puerto Rico 1999) (same). In the absence of any contrary guidance from the Puerto Rico Supreme Court, this Magistrate Judge sees no reason not to follow the holding in Flamand. Thus, since there is no individual liability against co-defendants Genzana and Cabrera under Puerto Rico Law 80, it is recommended that Genzana and Cabrera’s Motion to Dismiss the claims under Law 80 be GRANTED. III. Dismissal Request for Failure to State a Sexual Harassment Claim under Title VII and Puerto Rico Laws. Co-defendants Genzana and Cabrera ask this Court to dismiss plaintiffs claims against them under Title VII and Puerto Rico Laws on the basis the complaint fails to state a sexual harassment claim. Plaintiffs opposition states that, taking the allegations of the complaint as true, it is clear co-defendants Genzana and Cabrera were the alleged harassers. Therefore, according to the complaint, these co-defendants are responsible for the illegal conduct and the Motion to Dismiss should be denied. To survive a motion to dismiss plaintiff needs only to submit in the complaint a short, plain statement of the claim that would show entitlement to relief so that the defendant receives fair notice of what the plaintiffs claim is and the grounds upon which it rests. Fed.R.Civ.P. 8. See Conley v. Gibson, 355 U.S. 41 at 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80. The instant complaint submits that, since plaintiff started working under the supervision of Genzana and Cabrera in 1998, they often made sexual demanding jokes about female customers and they kept photos of women in bikinis and lingerie in the store tailor’s room. In October 2001, the sexual comments began to escalate" }, { "docid": "3503286", "title": "", "text": "most favorable to Plaintiff, the Court must deny Defendants’ motion for summary judgment on Plaintiffs retaliation claim. D. Claims Against Supervisen- in Individual Capacity: Co-Defendant Wangen moves for the dismissal of Plaintiffs Title VII claim against him in his personal and official capacities. Wangen argues that he is not an “employer” under Title VII and, therefore, Plaintiff can not sue him for sexual harassment. Although the Court acknowledges that (a) neither the Supreme Court nor the First Circuit Court of Appeals has yet to rule upon this issue and (b) there is a well-known split among the Circuit Courts of Appeals and even within the District Court of Puerto Rico on this issue, this Court shall follow the holding of Hernandez-Torres v. Intercontinental Trading, Ltd., No. Civ. 94-1057, 1994 WL 752591, (D.P.R. December 22,1994) (dismissing Title VII claims against a supervisor in official and personal capacities). See also Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (holding that supervisors are not “employers” under ADEA because of the tradition of ADEA rooted in FLSA, the context of the employer-employee relationship within which ADEA is imbedded, and the language of the statute itself). The debate over the scope of Title VII begins with the statutory definition of “employer.” For the purposes of Title VII, an “employer” is “a person engaged in an indus try ... and any agent of such person.” 42 U.S.C.A. § 2000e(b) (1994). Some courts and commentators interpret this language broadly to extend liability to the “agents” including the supervisors of employers. They substantiate this sweeping interpretation with four rationales: (1) the language must be interpreted expansively to effectuate the intent of Title VII which is to eradicate discrimination in the work place; (2) the use of the word “agent” within the definition of “employer” implies an intent to include supervisoiy liability; (3) the Civil Rights Act of 1991 amended Title VII expanding the damages obtainable to include not only equitable remedies, such as reinstatement and back pay, but also compensatory and punitive damages traditionally associated with actions against individual defendants; and (4) amplifying the application" }, { "docid": "7826763", "title": "", "text": "See id.; P.R. Laws Ann. tit. 26 § 2004. Therefore, Plaintiffs cannot sustain an action under Puerto Rico law against UPR, and therefore, all of Plaintiffs’ claims under Puerto Rico Law are hereby DISMISSED as to UPR. Defendants next argue that the individual Defendants are not “employers” under Law 80. Defendants do not cite to any definition of employer under Puerto Rico Law 80, nor do they present any additional arguments as to individual liability. The Court first notes that “employer” is not defined in Law 80 itself. See 29 L.P.R.A. § 185a-185k; Flamand v. American Int'l. Group Inc., 876 F.Supp. 356, 364 (D.Puerto Rico 1994) (citing and cataloging the definitions of “employer” in other sections of Title 29 of the Laws of Puerto Rico). In analyzing whether or not individual supervisors could be held liable under Law 80, the Court in Flamand v. American International Group, Inc., emphasized that the only remedy available under Law 80 is salary or wages. Therefore, the Flamand Court held that supervisors are not “employers” under Law 80, based on the lack of a definition of “employer” under Law 80, combined with the fact that it made no sense to have a supervisor pay wages to an employee. While Plaintiffs are not alleging that the individual Defendants are supervisors, they are nevertheless attempting to hold liable the individual employees of UPR involved in the tenure decisions. The Court is persuaded by the reasoning in Flamand, and finds that it can be extended to the case at hand involving individual employees of UPR. Therefore, Plaintiffs claims under Law 80 against the individual Defendants are hereby DISMISSED. The only Puerto Rico Law claims that remain are those under the general tort liability statute, Article 1802 of the Puerto Rico Civil Code, against the individual Defendants. Plaintiffs Gast and Castañeyra’s only remaining federal claims are for procedural due process under the Fifth and Fourteenth Amendments pursuant to § 1983. Plaintiffs Mandavilli and Mastran-gelo have, in addition to the procedural due process claims, ADEA and Title VII sex discrimination claims. The Court does not believe the Puerto Rico" }, { "docid": "1842690", "title": "", "text": "v. Autoridad de Energía Eléctrica, 142 D.P.R. 880 (1997) (asserting that sexual harassment is a form of sex discrimination prohibited by Law 100); Delgado Zagas, 137 P.R. Dec. at 651; Rodríguez Meléndez v. Supermercado Amigo, Inc., 126 P.R. Dec. 117, 124 (1990) (same). In view of the foregoing, this Magistrate Judge concludes Law 17 and Law 69 do support individual liability as Law 100 also does. Accordingly, and in light of our recommendation as to Law 100, it is recommended co-defendants Genzana and Cabrera’s Motion to Dismiss the state claims under Law 69 and Law 17 be DENIED. C. Puerto Rico Law 80. In Flamand v. American Intern. Group, Inc., 876 F.Supp. 356, 364 (D.Puerto Rico 1994), this Court explicitly held supervisors are not employers under Puer-to Rico Law 80 explaining there is no explicit definition for “employer” under Law 80 for severance pay. Additionally, the Court reasoned that the only remedies available under Law 80 is the salary the employee may have earned, the salary corresponding to one month as indemnity, and an additional indemnity equal to one week for each year in employ. Therefore, because the remedy is based on wages, and because it does not make sense that a supervisor should pay wages to an employee, this Court found that supervisors are not “employers” under 29 L.P.R.A. § 185a. Accordingly, the Court ruled that the individual defendants were not “employers” under Law 80. See also, Pacheco Bonilla, 281 F.Supp.2d at 339 (same); Mandavilli v. Maldonado, 38 F.Supp.2d 180, 205 (D.Puerto Rico 1999) (same). In the absence of any contrary guidance from the Puerto Rico Supreme Court, this Magistrate Judge sees no reason not to follow the holding in Flamand. Thus, since there is no individual liability against co-defendants Genzana and Cabrera under Puerto Rico Law 80, it is recommended that Genzana and Cabrera’s Motion to Dismiss the claims under Law 80 be GRANTED. III. Dismissal Request for Failure to State a Sexual Harassment Claim under Title VII and Puerto Rico Laws. Co-defendants Genzana and Cabrera ask this Court to dismiss plaintiffs claims against them under Title VII" } ]

[ { "docid": "22701020", "title": "", "text": "its unsuccessful adversary’s fees. The uniform acceptance of this rule reflects, at least in part, intuitive notions of fairness to litigants. Put simply, ordinary conceptions of just returns reject the idea that a party who wrongly charges someone with violations of the law should be able to force that defendant to pay the costs of the wholly unsuccessful suit against it. Before we will conclude Congress abandoned this established principle that a successful party need not pay its unsuccessful adversary’s fees — rooted as it is in intuitive notions of fairness and widely manifested in numerous different contexts — a clear showing that this result was intended is required. Also relevant in deciding whether to accept the reading of “appropriate” urged by respondents is the fact that § 307(f) affects fee awards against the United States, as well as against private individuals. Except to the extent it has waived its immunity, the Government is immune from claims for attorney’s fees, Alyeska, supra, at 267-268, and n. 42. Waivers of immunity must be “construed strictly in favor of the sovereign,” McMahon v. United States, 342 U. S. 25, 27 (1951), and not “enlarge[d] . . . beyond what the language requires.” Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927). In determining what sorts of fee awards are “appropriate,” care must be taken not to “enlarge” §307(f)’s waiver of immunity beyond what a fair reading of the language of the section requires. Given all the foregoing, we fail to find in § 307(f) the requisite indication that Congress meant to abandon historic fee-shifting principles and intuitive notions of fairness when it enacted the section. Instead, we believe that the term “appropriate” modifies but does not completely reject the traditional rule that a fee claimant must “prevail” before it may recover attorney’s fees. This result is the most reasonable interpretation of congressional intent. M HH Respondents make relatively little effort to dispute much of the foregoing, devoting their principal attention to the legislative history of § 307(f). Respondents’ arguments rest primarily on the following excerpt from the 1977 House" } ]

[ { "docid": "6342580", "title": "", "text": "claim is premised specifically precludes judicial review of the plaintiffs’ claims. Def.’s Reply at 2. In addition, the defendant contends that the plaintiffs’ reliance on 42 U.S.C. § 7604(a)(2) is misplaced because (1) the statute does not impose a “mandatory” obligation on the Administrator to take the action sought by the plaintiffs and (2) the Clean Air Act’s citizen suit provision does not waive the United States’ sovereign immunity regarding regulatory duties, whether mandatory or not. Def.’s Mem. at 7-11. The plaintiffs respond, arguing that the' defendant’s contentions are without merit because (1) the APA’s waiver of sovereign immunity applies in this case as they are seeking non-monetary relief, Pl.’s Reply at 2, and (2), contrary to the defendant’s contentions, 42 U.S.C. § 7604(a)(2) of- the Clean Air Act does not preclude the relief they are seeking to obtain. Id. at 5. IV. Legal Analysis The Court must begin its analysis by determining whether the Clean Air Act vests subject matter jurisdiction in this Court because if it does, an assessment of the Court’s jurisdiction pursuant to the APA is unnecessary as subject matter jurisdiction under the APA only lies when “there is no other adequate remedy in a court.” 5 U.S.C. § 704; see Bennett v. Spear, 520 U.S. 154, 161-62, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The essence of this analysis requires the Court to determine whether 42 U.S.C. § 7604(a)(2) waives the government’s sovereign immunity such that the Court has subject matter jurisdiction in this case. The answer to this question requires an interpretation of the statute and its associated regulations. When construing these provisions, the Court is mindful that a waiver of sovereign immunity -may not be implied, but rather, there must be an “ ‘unequivocal expression’ ” of congressional intent to waive the Government’s immunity. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). And, any waiver of sovereign immunity must be narrowly construed in favor of the government. United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). “The primary" }, { "docid": "1048721", "title": "", "text": "willingness to litigate or adjudicate has helped to define the limits of Federal authority. Boudin, 732 F.2d at 1114 (quoting H.R.Rep. No. 96-1418, at 6, reprinted in 1980 U.S.C.C.A.N. 4984, 4988-89). . The Government additionally argues, tracking language in Boudin, that the availability of EAJA relief must be construed strictly in favor of the Government insofar as it is a waiver of sovereign immunity. Boudin, 732 F.2d at 1114-15; see also Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (\"The EAJA renders the United States liable for attorney's fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United States.”). This argument is unavailing here. We recognize that, in this context, our interpretation of whether the Government has waived sovereign immunity turns on our interpretation of the EAJA term \"civil action.” We too acknowledge that, with this holding today, we are not construing the term “civil action” in the most narrow possible manner — rather, we are distinguishing this case from Boudin, and we are deciding for the first time that for the purposes of EAJA a \"civil action” includes a habeas petition in the immigration context. Because we are interpreting \"civil action” more broadly than the Government would like, we may be thought to be construing the sovereign immunity waiver in a less than \"strict” manner. We recognize this possible interpretation of our holding today, but we underscore that we interpret \"civil action” not with an aim to narrow or expand its meaning. Rather, we discern as best we can Congress’s intent. We have done so, and our interpretation of Congress’s intent compels us to conclude that the EAJA term \"civil action” includes immigration-context habeas petitions. Cf. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (holding that when construing a waiver of sovereign immunity, we should not \"assume the authority to narrow the waiver that Congress intended”). . At oral argument, the Government argued that because" }, { "docid": "4925985", "title": "", "text": "United States (or an agency thereof.) The United States currently owns property along the Columbia River banks, where it operates the McNary Levees System of the McNary Lock and Dam Project. Therefore, the CERCLA waiver of immunity applies to any contamination resulting from that site. To the extent that Plaintiffs allege the United States is responsible for property not currently owned by the United States, the court finds the reasoning of Redland Soccer Club, Inc. v. Department of Army, 801 F.Supp. 1432 (M.D.Pa.1992), persuasive. Therefore, the United States can not be held liable for any sites not currently owned or operated by the United States. B. Fourth Cause of Action; Claim for Damages under Washington State Hazardous Waste Management Act Plaintiffs’ fourth cause of action seeks damages against the Corps under Washington’s HWMA, RCW § 70.105.005 et seq. The Corps argues that lawsuits for damages under state law are not within the RCRA waiver of sovereign immunity contained in 42 U.S.C. § 6961(a). In response, Plaintiffs assert that the RCRA waives immunity for state substantive and procedural requirements, and that immunity is therefore waived for private cost recovery contribution actions based on the HWMA. Sovereign immunity requires that the government consent before it may be sued; any waiver of that sovereign immunity is strictly construed in favor of the government, and will only be found where the waiver is unequivocal. United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 1633, 118 L.Ed.2d 255 (1992). In United States Dep’t of Energy, the Supreme Court reviewed the imposition of punitive fines against the DOE by the State of Ohio, based on the DOE’s alleged violations of the RCRA, the Clean Water Aet, 33 U.S.C. § 1251, et seq., and State environmental laws. The Supreme Court found that 42 U.S.C. § 6961 did not refer to mechanisms for enforcing future compliance, and therefore held that the Government had not waived sovereign immunity for civil fines imposed by a State for past violations of the RCRA. Id. at 628, 112 S.Ct. at 1640. Concurrent to the Supreme Court’s consideration" }, { "docid": "19696300", "title": "", "text": "have passed new laws in view of the provisions of the legislation already enacted.” Hellon, 958 F.2d at 297. Since Congress waived the United States’ immunity to liability for costs awards long before § 7413(b) was enacted in its present form, Congress is presumed to have been aware that costs were already recoverable for prevailing parties in actions against the government when it provided that the government’s unreasonableness was a basis for recovery in actions under the Clean Air Act. Id. Yet, the Clean Air Act does not state that costs are available only if the Government was unreasonable, nor does it state that costs may not be recovered unless the Government was unreasonable. Rather, the Clean Air Act provides that “the court may award costs ... if the court finds that such action was unreasonable.” Thus, nothing in the language indicates an intent to preclude application of the previously enacted EAJA. III. SOVEREIGN IMMUNITY The government argues that the Clean Air Act' provides a narrow waiver of sovereign immunity which governs the award of costs in this action. Waivers of immunity must be strictly construed in favor of the sovereign. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983); United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 1633, 118 L.Ed.2d 255 (1992); Ardestani v. I.N.S., 502 U.S. 129, 137, 112 S.Ct. 515, 520-21, 116 L.Ed.2d 496 (1991). They must not be “enlarged beyond what the language requires.” Ruckelshaus, 463 U.S. at 686, 103 S.Ct. at 3278. “Neither, however, should we assume to narrow the waiver that Congress intended.” United States v. Idaho, ex rel. Director, Idaho Dep’t of Water Resources, 508 U.S. 1, 7, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (1993) (quoting Smith v. United States, 507 U.S. 197, 203, 113 S.Ct. 1178, 1183, 122 L.Ed.2d 548 (1993)). This argument merely reiterates the government’s argument that the Clean Air Act’s more limited waiver should trump the general waiver of the EAJA, given the latter’s exception clause. However, here, as ex plained above, Congress has left" }, { "docid": "8994407", "title": "", "text": "makes a “facial attack” on the complaint; accordingly the Court has only reviewed the complaint, which was assumed to be true for purposes of this motion. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). 2. Sovereign Immunity As the Sixth Circuit explained, [t]he Supreme Court has held that “the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). The doctrine of sovereign immunity serves as a bar to suit against the United States unless the government has explicitly waived sovereign immunity. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1325 (6th Cir.1993). The Supreme Court has further declared that: [tjhere is no doubt that waivers of federal sovereign immunity must be “unequivocally expressed” in the statutory text. “Any such waiver must be strictly construed in favor of the United States,” and not enlarged beyond what the language of the statute requires. But just as “ ‘we should not take it upon ourselves to extend the waiver beyond that which Congress intended[,] ... [njeither, however, should we assume the authority to narrow the waiver that Congress intended.’ ” United States v. Idaho, — U.S. -, -, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (1993) (citations omitted). A. As part of the Superfund Amendments and Reauthorization Act of 1986, section 120(a) of CERCLA, 42 U.S.C. § 9620(a), waives sovereign immunity for “federal facilities.” It begins with a broad waiver of immunity regarding the CERCLA claims, stating: Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title. Nothing in this section shall be construed to affect the liability of any person or entity under" }, { "docid": "19696299", "title": "", "text": "to apply only to cases (other than tort eases) where fee awards against the government are not already authorized. H.R.Rep. No. 96-1418, 96th Cong., 2nd Sess. 189 (1980), reprinted in 1980 U.S.C.C.A.N. at 4997. Given the purpose of the EAJA, there is no reason not to give the exception clause in the EAJA’s cost-shifting provision the same meaning as in its fee-shifting provision. Neither the legislative history nor the language of the EAJA justifies an interpretation of the EAJA that expands the bases for recovery of attorneys’ fees but restricts the availability of costs awards. The Clean Air Act and the EAJA may be read harmoniously if they are interpreted to provide alternative bases for the recovery of costs. Under this construction, the exception clause in the EAJA’s cost-shifting provision precludes application of the statute only if another statute allows costs even if the litigant does not prevail, or .specifically bars costs awards, thus creating an irreconcilable conflict. We finally observe that “Congress must be presumed to have known of its former legislation and to have passed new laws in view of the provisions of the legislation already enacted.” Hellon, 958 F.2d at 297. Since Congress waived the United States’ immunity to liability for costs awards long before § 7413(b) was enacted in its present form, Congress is presumed to have been aware that costs were already recoverable for prevailing parties in actions against the government when it provided that the government’s unreasonableness was a basis for recovery in actions under the Clean Air Act. Id. Yet, the Clean Air Act does not state that costs are available only if the Government was unreasonable, nor does it state that costs may not be recovered unless the Government was unreasonable. Rather, the Clean Air Act provides that “the court may award costs ... if the court finds that such action was unreasonable.” Thus, nothing in the language indicates an intent to preclude application of the previously enacted EAJA. III. SOVEREIGN IMMUNITY The government argues that the Clean Air Act' provides a narrow waiver of sovereign immunity which governs the award of" }, { "docid": "4925986", "title": "", "text": "and procedural requirements, and that immunity is therefore waived for private cost recovery contribution actions based on the HWMA. Sovereign immunity requires that the government consent before it may be sued; any waiver of that sovereign immunity is strictly construed in favor of the government, and will only be found where the waiver is unequivocal. United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 1633, 118 L.Ed.2d 255 (1992). In United States Dep’t of Energy, the Supreme Court reviewed the imposition of punitive fines against the DOE by the State of Ohio, based on the DOE’s alleged violations of the RCRA, the Clean Water Aet, 33 U.S.C. § 1251, et seq., and State environmental laws. The Supreme Court found that 42 U.S.C. § 6961 did not refer to mechanisms for enforcing future compliance, and therefore held that the Government had not waived sovereign immunity for civil fines imposed by a State for past violations of the RCRA. Id. at 628, 112 S.Ct. at 1640. Concurrent to the Supreme Court’s consideration of United States Dep’t Of Energy, Congress was amending 42 U.S.C. § 6961. The amended version of § 6961 reiterates and further emphasizes the waiver of sovereign immunity. It reads, in pertinent part, Each department, agency, and instrumentality of the ... Federal Government ... engaged in any activity resulting, or which may result, in the disposal ... of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including ... any provisions or injunctive relief and such sanctions as may be imposed by a court to enforce such relief)_ The ... State ... requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines.... The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any substantive or procedural requirement (including, but not limited to, any injunctive relief, any administrative order or civil or administrative penalty ... The 1992 amendment was a clear effort" }, { "docid": "19696301", "title": "", "text": "costs in this action. Waivers of immunity must be strictly construed in favor of the sovereign. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983); United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 1633, 118 L.Ed.2d 255 (1992); Ardestani v. I.N.S., 502 U.S. 129, 137, 112 S.Ct. 515, 520-21, 116 L.Ed.2d 496 (1991). They must not be “enlarged beyond what the language requires.” Ruckelshaus, 463 U.S. at 686, 103 S.Ct. at 3278. “Neither, however, should we assume to narrow the waiver that Congress intended.” United States v. Idaho, ex rel. Director, Idaho Dep’t of Water Resources, 508 U.S. 1, 7, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (1993) (quoting Smith v. United States, 507 U.S. 197, 203, 113 S.Ct. 1178, 1183, 122 L.Ed.2d 548 (1993)). This argument merely reiterates the government’s argument that the Clean Air Act’s more limited waiver should trump the general waiver of the EAJA, given the latter’s exception clause. However, here, as ex plained above, Congress has left no doubt that it intended to waive the government’s immunity to costs awards. On this basis we have concluded that Congress intended that the costs provision of the EAJA apply to § 7413(b) actions. Therefore, the district court did not err in taxing costs against the government. AFFIRMED. . Because this action arose in 1988, the 1988 versions of the Clean Air Act and related regulations govern these proceedings. . Smaller penalties were also assessed against Hinton ($2,500) and Stakkeland ($5,000). . Rule 68 provides, in relevant part: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof" }, { "docid": "16266339", "title": "", "text": "cases have invoked this fidelity principle in refusing to read one statutory provision as limiting judicial review under another. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1286-87 (D.C.Cir.2004); Boston Edison Co. v. United States, 64 Fed.Cl. 167, 176 (2005). Nor does the canon requiring strict construction of waivers of sovereign immunity compel a broad reading of section 1500. The Supreme Court, in Richlin Sec. Serv. Co. v. Chertoff — U.S. —, —, 128 S.Ct. 2007, 2019, 170 L.Ed.2d 960 (2008), recently emphasized the limitations of that canon, stating— The sovereign immunity canon is just that — a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutoiy construction. Indeed, the cases on which the Government relies all used other tools of construction in tandem with the sovereign immunity canon. See Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 116 L.Ed.2d 496 ... (1991) (relying on the canon as “reinforce[ment]” for the independent “conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory lan guage”); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682, 685-686, 103 S.Ct. 3274, 77 L.Ed.2d 938 ... (1983) (relying on the canon in tandem with “historic principles of fee-shifting in this and other countries” to define the scope of a fee-shifting statute); Department of Energy v. Ohio, 503 U.S. 607, 626-627, 112 S.Ct. 1627, 118 L.Ed.2d 255 ... (1992) (resorting to the canon only after a close reading of the statutory provision had left the Court “with an unanswered question and an unresolved tension between closely related statutory provisions”); see also Smith v. United States, 507 U.S. 197, 201-203, 113 S.Ct. 1178, 122 L.Ed.2d 548 ... (1993) (invoking the sovereign immunity canon only after observing that the claimant’s argument was “undermine[d]” by the “eommonsense meaning” of the statutory language). In that case, the Court concluded that “[tjhere is no need for us to resort to the sovereign immunity canon because there is no ambiguity left for us to construe.”" }, { "docid": "23654178", "title": "", "text": "services, whether or not they are an employee” of a prevailing party and therefore the time spent by FP & M employees should also be compensable. The government responds that the term “agent” only covers outside consultants and not employees of the prevailing party and therefore FP & M cannot recover any of its expenses relating to the work of its employees or principal because they are not “agents” for purposes of EAJA. The government further argues that 'the statute was not intended to compensate a prevailing party for any time spent by a prevailing party on its own litigation and therefore none of the time spent by FP & M employees or its principal is compensable under EAJA. We begin our analysis by noting that, as a waiver of sovereign immunity, the EAJA must be strictly construed in favor of the sovereign. See Levernier Constr., Inc. v. United States, 947 F.2d 497, 502 (Fed.Cir.1991). The EAJA ‘“lifts the bar of sovereign immunity for award of fees in suits brought by litigants qualifying under the statute, [but] does so only to the extent explicitly and unequivocally provided.’ ” Id. (quoting Fidelity Const. Co. v. United States, 700 F.2d 1379, 1386 (Fed.Cir.1983)); see also United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (waiver of sovereign immunity requires unequivocal expression); Ardestani v. I.N.S., 502 U.S. 129, 137, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (explaining that, when the United States is liable for attorneys fees it otherwise would not be liable for, the United States has partially waived its sovereign immunity and such waiver must be construed in favor of the United States). As with any question of statutory interpretation, we begin our inquiry with the language of the statute. See Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We also consider “not only the bare meaning of the word but also its placement and purpose in the statutory scheme.” Id. at 145, 116 S.Ct. 501. The EAJA does not define the term “agent.” However, the" }, { "docid": "23001245", "title": "", "text": "However, merely mentioning the Rehabilitation Act constitutes neither an. express nor an unequivocal waiver of sovereign immunity from suit under VEVRA. We cannot enlarge the waiver in the Rehabilitation Act “beyond what the language of the statute requires.” United States v. Idaho, ex rel. Director Dep’t. of Water Resources, 508 U.S. 1, 7, 113 S.Ct. 1893, 1896, 128 L.Ed.2d 563 (1993). The Agency correctly argues that the language in § 4214 does not purport to waive sovereign immunity or to create an express cause of action. Nevertheless, Antol contends that when Congress amended the Rehabilitation Act in 1978 to include the remedies of § 505, Congress knew that § 403 of VEVRA mentioned Rehabilitation Act § 501, and therefore Congress intended to incorporate into VEVRA the rights, remedies, and waiver of sovereign immunity expressed in the Rehabilitation Act. The Supreme Court made clear in United States v. Nordic Village Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992), that the “unequivocal expression” of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report. As we stated in Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91 (3d Cir.1995), even if we were disposed to imply a cause of action ..., we could not imply a waiver of sovereign immunity with respect to that cause of action without running afoul of the well-established injunction against recognizing a waiver of federal sovereign immunity not evidenced in the statutory text. Id. at 95, citing Idaho, 508 U.S. at 7, 113 S.Ct. at 1896; see also Dorsey v. United States Dept. of Labor, 41 F.3d 1551, 1555 (D.C.Cir.1994) (legislative history cannot supply an express or unequivocal waiver). The district court did not address whether VEVRA contained an express waiver of sovereign immunity. It first concluded that the mere reference in VEVRA to the affirmative action plan required under § 501(b) of the Rehabilitation Act does not provide an express private cause of action. It then concluded that a private cause of action" }, { "docid": "6499552", "title": "", "text": "‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). Nothing in these provisions extends fee-shifting to issues not adjudicated. Section 2412(d)(1)(A) provides no indication that attorneys’ fees should be awarded with respect to positions of the United States challenged by the claimant but unaddressed by the reviewing court. Nor does the definition clause in Section 2412(d)(2)(D) support fee-shifting. That clause was amended to its current form in 1985 to focus courts on both the government’s litigation position and the agency’s ruling. Comm’r, INS v. Jean, 496 U.S. 154, 159, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). In the absence of clear statutory text authorizing fee-shifting, we decline to become a “roving authority” awarding attorneys’ fees. Buckhannon, 532 U.S. at 610, 121 S.Ct. 1835. 1 There are good reasons for denial of attorneys’ fees in situations regarding which the EAJA is silent. First, “[t]he EAJA renders the United States liable for attorney’s fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity.” Ardestani 502 U.S. at 137, 112 S.Ct. 515. “Waivers of immunity,” of course, “must be construed strictly in favor of the sovereign, and not enlarge[d] ... beyond what the language requires.” Ruckelshaus, 463 U.S. at 685-86, 103 S.Ct. 3274 (internal citations and quotation marks omitted) (citing Alyeska, 421 U.S. at 267-68, 95 S.Ct. 1612). The Supreme Court has repeatedly interpreted attorneys’ fees statutes narrowly because of this concern. In Ardestani for example, the Court reasoned that its interpretation of the EAJA as not applying to administrative deportation proceedings was “reinforced ... by the limited nature of waivers of sovereign immunity [which] must be strictly construed in favor of the United States.” Id. at 137, 112 S.Ct. 515. Similarly, in Ruckelshaus, the Court interpreted an attorneys’ fee statute to require that a party prevail because “[i]n determining what sorts of fee awards are appropriate, care must be taken not to" }, { "docid": "9622119", "title": "", "text": "ordinary meaning of the words used.” Ardestani v. INS, 502 U.S. 129,-, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991). “Case” has been defined broadly as “[a] general term for an action, cause, suit, or controversy, at law or in equity.” Black’s Law Dictionary 215 (6th ed. 1990). “Appeal” means a “[rjesort to a superior (ie. appellate) court to review the decision of an inferior (ie. trial) court or administrative agency.” Id. at 96. Jones’s and Karnas’s applications fit squarely within the definitions of “case” and “appeal.” Furthermore, despite the contrary assertion of the Secretary, “any” generally means “every.” Webster’s New World Dictionary 62 (3d ed. 1988). See United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (The term “any” is an expansive one; “[i]t is difficult to imagine broader language.”). We thus conclude that the phrases “any case pending” or “any appeal ... pending” are clear and mean exactly what they say: any case or appeal pending, including pending EAJA applications. We recognize, as the Secretary argues, that waivers of sovereign immunity are strictly construed in favor of the United States. Ardestani, 502 U.S. at -, 112 S.Ct. at 520 (“The EAJA renders the United States liable for attorney’s fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity[, which] must be strictly construed in favor of the United States.”); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969) (waiver of sovereign immunity must be unequivocally expressed). However, Congress has waived sovereign immunity for costs and fees in all pending cases and appeals at the Court of Veterans Appeals and the Federal Circuit. Once Congress has waived sovereign immunity over certain subject matter, we cannot “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). Section 506 constitutes an unequivocal expression of the government’s consent to be sued with respect to costs and fees in the Court of Veterans Appeals," }, { "docid": "22581632", "title": "", "text": "fees and other expenses on behalf of indigent criminal defendants). In considering legislation that is claimed to have the effect of waiving sovereign immunity in a particular class of cases, courts usually have been guided by two maxims. First, a waiver of sovereign immunity must be definitely and unequivocally expressed. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); In re Perry, 882 F.2d at 544. The Court has gone so far as to suggest that the unequivocal expression must appear in the text of the statute itself. See United States v. Nordic Village, Inc., — U.S. -, -, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992); Ardestani v. INS, 502 U.S. 129, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991). Second, a waiver of sovereign immunity always is to be construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries as its language plainly requires. See Nordic Village, — U.S. at-, 112 S.Ct. at 1014-15; Ruckelshaus, 463 U.S. at 685, 103 S.Ct. at 3277-78; In re Perry, 882 F.2d at 544. Applying these tests, several courts have held that monetary sanctions for litigation abuse are not barred by sovereign immunity in certain classes of cases on the theory that an enacted statute, typically the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (allowing prevailing parties to recover fees from the government in certain civil and administrative proceedings), serves to waive the government’s immunity. See, e.g., M.A. Mortenson Co. v. United States, 996 F.2d 1177, 1181-82 (Fed.Cir.1993) (holding that the EAJA works a waiver of immunity suffi cient to allow the imposition of fees under Fed.R.Civ.P. 37); In re Good Hope Indus., Inc., 886 F.2d 480, 482 (1st Cir.1989) (same, in respect to fees under 28 U.S.C. § 1912 and Fed.R.App.P. 38); Adamson v. Bowen, 855 F.2d 668, 672 (10th Cir.1988) (same, in respect to monetary sanction under Fed. R.Civ.P. 11); United States v. Gavilan Joint Comm’y Coll. Dist., 849 F.2d 1246, 1251 (9th Cir.1988) (similar); see also Schanen v. United States DOJ," }, { "docid": "8994417", "title": "", "text": "operated by any department, agency, or instrumentality of the United States.”) (emphasis added). Such consistency within a section suggests that the reference to federal facilities in section 9620(a)(4) should be construed in the present tense as well. See United States Dep’t of Energy v. Ohio, — U.S. -, -, 112 S.Ct. 1627, 1637, 118 L.Ed.2d 255 (1992) (“The term’s context, of course, may supply a clarity that the term lacks in isolation”). In sum, this Court holds that the words of section 9620(a) conclusively indicate that state law shall apply to facilities which are owned or operated by the United States. E. But even if the statutory language were deemed to be less than conclusive, this Court’s holding would not change. As explained above, the Supreme Court has explained that any waiver of sovereign immunity must be unequivocally expressed in the statute and strictly construed in favor of the United States. United States v. Idaho, — U.S. -, -, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (1993). Accordingly, where there is any ambiguity regarding the extent of a waiver of immunity in the statute, the waiver must necessarily be construed narrowly. See, e.g., United States Dep’t of Energy v. Ohio, - U.S. -, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). Consistent with that teaching, any ambiguity that may exist in section 9620(a)(4) cannot be construed broadly as allowing all state environmental law claims to be brought against the United States, regardless of the current status of the United States’ ownership or operation of the facility in question. Rather, the narrower interpretation that the waiver of sovereign immunity in section 9620(a)(4) applies only to facilities currently owned or operated by the United States is appropriate. Conclusion For the reasons set forth above, the United States’ motion to dismiss Counts III and IV for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) is hereby GRANTED. Counts III and IV against the United States shall be DISMISSED. An order consistent with this opinion shall issue forthwith. ORDER In accordance with the opinion entered this date; The United States of America’s motion to dismiss" }, { "docid": "12211016", "title": "", "text": "paying them. This is an issue of statutory interpretation, over which we exercise plenary review. See, e.g., Texas Food Indus. Ass’n v. USDA, 81 F.3d 578, 580 (5th Cir.1996) (conclusions of law underlying a denial of attorney fees are reviewed de novo). Because the Act exposes the government to liability for attorney fees and expenses to which it would not otherwise be subjected, it is a waiver of sovereign immunity. Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 520-21, 116 L.Ed.2d 496 (1991). As such, it “must be strictly construed in favor of the United States.” Id. Once Congress has waived sovereign immunity, however, we should not “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979); see also Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1185 (Fed.Cir.1994) (“The rule requiring strict construction of waivers of sovereign immunity is not a talisman that permits the government to avoid liability in all cases.”). We begin our quest with the language of the statute itself. Ardestani, 502 U.S. at 135, 112 S.Ct. at 519-20. The Act provides, in pertinent part, that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U.S.C. § 504(a)(1) (1994) (emphasis added). To recover these fees and expenses, a corporation also must have had a net worth of $7,000,000 or less and 500 or fewer employees at the time the “adversary adjudication” was initiated. Id. § 504(b)(1)(B) (defining “party”). “Neither EAJA nor the legislative history provides a definition of the word ‘incur.’ ” SEC v. Comserv Corp., 908 F.2d 1407, 1413 (8th Cir.1990) (construing 28 U.S.C. § 2412, the Act’s provision applying to fees incurred in court proceedings). Relying- on the “statute’s plain words” and on a dictionary, the board" }, { "docid": "12211015", "title": "", "text": "to Bituminous until April 1995, when it capped its fees at $26,620.90, “except to the extent that [Wilson] receives an award of attorneys’ fees.” In September 1995, the board held that Wilson was entitled to $20,-836.61 plus interest. Ed A. Wilson, Inc. v. General Servs. Admin., GSBCA No. 12596, 96-1 BCA ¶ 27,934 (1995). Wilson then submitted an application for an award of $49,209.85, pursuant to the Equal Access to Justice Act, codified in pertinent part at 5 U.S.C.A. § 504 (West 1994 & Supp.1997) (“EAJA” or “Act”). The requested amount includes $43,520.50 for attorney fees, $3,558.27 for attorney expenses, and $2,131.08 for labor costs incurred by Wilson’s employees in monitoring the claim. The board denied the application, concluding that (1) the Act does not permit the recovery of Wilson’s expenses, and (2) Wilson did not incur any attorney fees or expenses, as required by the Act; Bituminous did. Wilson appeals. Discussion The primary and narrow question before us is whether, under the Act, Wilson has “incurred” legal fees when its insurer is responsible for paying them. This is an issue of statutory interpretation, over which we exercise plenary review. See, e.g., Texas Food Indus. Ass’n v. USDA, 81 F.3d 578, 580 (5th Cir.1996) (conclusions of law underlying a denial of attorney fees are reviewed de novo). Because the Act exposes the government to liability for attorney fees and expenses to which it would not otherwise be subjected, it is a waiver of sovereign immunity. Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 520-21, 116 L.Ed.2d 496 (1991). As such, it “must be strictly construed in favor of the United States.” Id. Once Congress has waived sovereign immunity, however, we should not “assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979); see also Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1185 (Fed.Cir.1994) (“The rule requiring strict construction of waivers of sovereign immunity is not a talisman that permits the government to avoid liability in all cases.”). We begin our" }, { "docid": "5712581", "title": "", "text": "by arguing that the phrase “the State laws” in the second sentence must be referring to the same “State law” mentioned in the first sentence, and that since the phrase in the first sentence is clearly directed to substantive state water law, the phrase in the second sentence must be so directed as well. There is no doubt that waivers of federal sovereign immunity must be “unequivocally expressed” in the statutory text. See Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990); Department of Energy v. Ohio, 503 U. S. 607, 615 (1992); United States v. Nordic Village, Inc., 503 U. S. 30, 33-34 (1992). “Any such waiver must be strictly construed in favor of the United States,” Ardestani v. INS, 502 U. S. 129, 137 (1991), and not enlarged beyond what the language of the statute requires, Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983). But just as “ ‘we should not take it upon ourselves to extend the waiver beyond that which Congress intended[,] . . . [njeither, however, should we assume the authority to narrow the waiver that Congress intended.’ ” Smith v. United States, 507 U. S. 197, 206 (1993) (quoting United States v. Kubrick, 444 U. S. 111, 117-118 (1979)). We are unable to accept either party’s contention. The argument of the United States is weak, simply as a matter of grammar, because the critical term in the second sentence is “the State laws,” while the corresponding language in the first sentence is “State law.” And such a construction would render the amendment’s consent to suit largely nugatory, allowing the Government to argue for some special federal rule defeating established state-law rules governing pleading, discovery, and the admissibility of evidence at trial. We do not believe that Congress intended to create such a legal no-man’s land in enacting the MeCarran Amendment. We rejected a similarly technical argument of the Government in construing the MeCarran Amendment in United States v. District Court, County of Eagle, 401 U. S. 520, 525 (1971), saying “[w]e think that argument is extremely technical; and we" }, { "docid": "23001244", "title": "", "text": "B. It is a “well-settled principle that the federal government is immune from suit save as it consents to be sued.” FMC Corp. v. United States Dept. of Commerce, 29 F.3d 888, 839 (3d Cir.1994)(in bane) (internal quotations omitted). As an agency of the United States, sovereign immunity protects the Defense Logistics Agency of the Department of Defense. In Re University Medical Center, 973 F.2d 1065, 1085 (3d Cir.1992). The federal government must unequivocally consent to be sued and the consent “must be construed narrowly in favor of the government.” FMC Corp., 29 F.3d at 839. The Supreme Court cautioned in Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979), that “implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best.” Antol asserts that VEVRA’s express requirement — that the Agency include its affirmative action'plan for disabled veterans in its Rehabilitation Act affirmative action plan — suffices to incorporate the Rehabilitation Act’s waiver of sovereign immunity into VEVRA However, merely mentioning the Rehabilitation Act constitutes neither an. express nor an unequivocal waiver of sovereign immunity from suit under VEVRA. We cannot enlarge the waiver in the Rehabilitation Act “beyond what the language of the statute requires.” United States v. Idaho, ex rel. Director Dep’t. of Water Resources, 508 U.S. 1, 7, 113 S.Ct. 1893, 1896, 128 L.Ed.2d 563 (1993). The Agency correctly argues that the language in § 4214 does not purport to waive sovereign immunity or to create an express cause of action. Nevertheless, Antol contends that when Congress amended the Rehabilitation Act in 1978 to include the remedies of § 505, Congress knew that § 403 of VEVRA mentioned Rehabilitation Act § 501, and therefore Congress intended to incorporate into VEVRA the rights, remedies, and waiver of sovereign immunity expressed in the Rehabilitation Act. The Supreme Court made clear in United States v. Nordic Village Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992), that the “unequivocal expression” of elimination of sovereign immunity that we insist upon" }, { "docid": "6499553", "title": "", "text": "renders the United States liable for attorney’s fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity.” Ardestani 502 U.S. at 137, 112 S.Ct. 515. “Waivers of immunity,” of course, “must be construed strictly in favor of the sovereign, and not enlarge[d] ... beyond what the language requires.” Ruckelshaus, 463 U.S. at 685-86, 103 S.Ct. 3274 (internal citations and quotation marks omitted) (citing Alyeska, 421 U.S. at 267-68, 95 S.Ct. 1612). The Supreme Court has repeatedly interpreted attorneys’ fees statutes narrowly because of this concern. In Ardestani for example, the Court reasoned that its interpretation of the EAJA as not applying to administrative deportation proceedings was “reinforced ... by the limited nature of waivers of sovereign immunity [which] must be strictly construed in favor of the United States.” Id. at 137, 112 S.Ct. 515. Similarly, in Ruckelshaus, the Court interpreted an attorneys’ fee statute to require that a party prevail because “[i]n determining what sorts of fee awards are appropriate, care must be taken not to enlarge [the statute’s] waiver of immunity beyond what a fair reading of the language of the section requires.” 463 U.S. at 686, 103 S.Ct. 3274 (internal quotation marks omitted). And in Alyeska, the Court reversed an award of attorneys’ fees absent statutory authorization, noting the “well-known common-law rule that a sovereign is not liable for costs unless specific provision for such liability is made by law.” 421 U.S. at 267-68 & n. 42, 95 S.Ct. 1612. Sovereign immunity concerns are especially relevant to interpretation of the attorneys’ fees provisions in the EAJA, which does not broadly waive immunity. Ardestani, 502 U.S. at 137, 112 S.Ct. 515. Such concerns are also particularly relevant to this case. An award of attorneys’ fees without textual support in the EAJA, as Hardisty desires, increases the exposure of the United States treasury. Such a step, without clear statutory authorization, we decline to take. We are especially hesitant because extending the EAJA in this case constitutes an extreme departure from the American Rule, as the claimant failed to prevail on the" } ]

[ { "docid": "18212917", "title": "", "text": "therefore distinguishable. The language and legislative history of Chapter 13 demonstrate congressional intent to protect home mortgage lenders. We affirm. When a creditor is secured only by the debtor’s principal residence, a Chapter 13 plan is barred from “modifying” the rights of the secured creditor. 11 U.S.C. § 1322(b)(2). Seidel’s plan proposes to pay off a note, which had already reached its due date before he filed for bankruptcy, in installments over the next five years with a balloon payment at the end of that period. His plan therefore affects the rights of the creditor who holds both the note and the security interest in Seidel’s home mortgage. We must decide whether the plan will so affect the creditor’s rights that it amounts to “modifying” them, in violation of § 1322(b)(2). In deciding whether a plan rises to the level of “modifying” rights we first consider whether that plan merely “cures” a default. Section 1322(b)(3) authorizes “the curing or waiving of any default,” while section 1322(b)(5) authorizes the curing of a default when “the last payment is due after the date on which the final payment under the plan is due.” We hold that Seidel’s plan “modifies” his creditor’s rights in violation of subsection b(2), and that the “cure” provisions of subsections b(3) and b(5) are inapplicable when a debt has reached its maturity date in the absence of acceleration, prior to the filing of the Chapter 13 petition. I. Delay in payment of an already-matured debt is a “modification.” The distinctive feature of Seidel’s plan is that it extends the time for complete payment of a note far beyond the time originally contemplated by the parties. In contrast to the bulk of section 1322(b) cases, in which a creditor has exercised its power to accelerate payment before a debt came naturally due, this case involves a note which had already fully matured and was immediately due and payable even before the plan was filed. Furthermore, Seidel proposes to delay payment of the matured debt over the next five years — the maximum period allowable under the statute, and only" } ]

[ { "docid": "13796328", "title": "", "text": "specifically notwithstanding that provision, a debtor’s plan may provide for “the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due,” 11 U.S.C. § 1322(b)(5). The courts interpreting this provision are in general agreement that a proposed plan may cure a pre-petition default if the debt has not been accelerated prior to filing of a Chapter 13 petition and that an accelerated debt may not be cured if it has actually resulted in a foreclosure sale to a third party. However, as to other situations between these limits, several lines of authority have developed with regard to the curing of a default that has been accelerated prior to the filing of a Chapter 13 petition. These discrepancies have developed because, with regard to the issue before us, on its face the statute seems to present an ambiguity with regard to the curing of a default on “a claim secured only by a security interest in real property that is the debtor’s principal residence.” § 1322(b)(1). If read without reference to its statutory history and context, the literal wording of § 1322 is open to the interpretation that (b)(3) (permitting the plan to “provide for the curing of any default”) is not applicable to a home-mortgage debt, and that a default on a long-term home mortgage may be cured only if “the last payment is due after the date on which the final payment under the plan is due,” (b)(5) (emphasis supplied). Indeed, if so read, — and if the term “on which the last payment is due” is given its state-law meaning as to an accelerated debt that thereby becomes fully “due” — , then § 1322(b) may be construed as did the panel. It thus would bar — whenever the home mortgage debt had been accelerated prior to a debtor’s petition — any Chapter 13 relief by which the debtor could save his home by" }, { "docid": "6996067", "title": "", "text": "only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (emphasis added). Thus, home mortgage lenders are to be treated differently from other claimants. Although a Chapter 13 plan may provide for “cure” of a default, it may not “modify” the rights of a home mortgage lender. In re Roach, supra, presented the issue of “whether 11 U.S.C. § 1322(b) evidences a congressional intent to authorize cure of a default on a home mortgage after there has been a contractual acceleration of the full mortgage debt, a foreclosure judgment, and a foreclosure sale, so long as the state law redemption period has not expired.” 824 F.2d at 1371-72. We stressed at the outset that we were required to approach the task of ascertaining congressional intent with two things in mind: we must approach that task with the realization that the Bankruptcy Code was written with the expectation that it would be applied in the context of state law and that federal courts are not licensed to disregard interests created by state law when that course is not clearly required to effectuate federal interests. 824 F.2d at 1374. Examining the text of § 1322 and its legislative history from this perspective, we concluded that § 1322(b)(5) preempts state law to the extent of authorizing debtors to “cure” mortgage defaults after acceleration and before foreclosure, by paying the arrearage in a Chapter 13 plan and restoring the original mortgage relationship. At the same time, we noted that upon entry of a foreclosure judgment, New Jersey establishes a new relationship between the mortgagor and mortgagee which includes a right on the part of lender to immediate payment of the debt from the proceeds of a sale of the" }, { "docid": "10216230", "title": "", "text": "not a reasonable time under § 1322(b)(5). Id. Judge Deitz noted that there were several recent cases that disagreed with the Coleman decision, but that he was bound by the law of this district. On this appeal, debtors argue that this court should follow those other cases, reverse the bankruptcy court, and allow them to cure their default and pay the amount due over the course of their proposed plan. The bank responds by contending that this case can be distinguished from that line of authority because it involves a debt that matured on its own, and that has been reduced to a foreclosure judgment in state court. Thus, Coleman applies, the entire amount is due, and sixty months is not a reasonable time to cure the default. For the reasons set forth below, the court agrees with debtors’ arguments and will reverse the bankruptcy court. The curing of defaults in Chapter 13 cases is governed by 11 U.S.C. § 1322 which provides that: (b) the plan may— ... (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this Subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; .... 11 U.S.C. § 1322(b)(2), (3), and (5). Three circuit courts have recently interpreted this statute. In re Taddeo, 685 F.2d 24 (2d Cir.1982); Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984); and Matter of Clark, 738 F.2d 869 (7th Cir.1984). In Taddeo debtors defaulted on a long-term mortgage. The mortgagee accelerated the mortgage, declared its balance due immediately, and initiated foreclosure proceedings. Those proceedings were stayed when debtors filed a Chapter 13 petition. The bankruptcy court held" }, { "docid": "1363600", "title": "", "text": "agreement between the debtors and Allstate Insurance Co. covering the debtors’ residence. A fire occurred in the debtors’ residence on August 18, 1982, and two weeks later the residence was vandalized. Subsequent to these events, on September 22, 1982, the residence was sold at a foreclosure sale to the DVA. At about the same time, the debtors hired Mr. Magar to represent them in their attempts to recover against the insurance company after their claim had been denied. The agreement between the debtors and Mr. Magar provided that the debtors would pay to Mr. Magar 10% of any recovery or $3,000.00, whichever was less. On March 18, 1983, the debtors filed their chapter 13 petition. Soon thereafter, the debtors’ attorney asserted a possessory lien on the insurance drafts and tendered them to the trustee. The plan proposes that Mr. Magar be paid upon his possessory lien from the insurance proceeds when the plan is confirmed. The DVA contends that the debtors’ proposed cure and payment in full over the life of the plan is not permitted where, as here, a mortgage default has triggered a foreclosure judgment and sale of the property prior to the filing of a chapter 13 petition. The DVA further contends that it is entitled to the insurance proceeds under the terms of the insurance agreement. The issues before the court are as follows: (1) whether a chapter 13 debtor can cure a default on a residential mortgage after a final decree of foreclosure has been entered and a sale has been made; (2) if a post sale cure is permissible, whether it can be effected by paying the arrearages which triggered the default and the mortgage debt in full within the life of the plan; and (3)who is entitled to the insurance proceeds, the DVA or the debtors and the debtors’ attorney. 11 U.S.C. § 1322(b) provides that a chapter 13 plan may: “(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of" }, { "docid": "6825260", "title": "", "text": "follow from Illinois law that following the foreclosure decree there is no debt default to be cured in bankruptcy. There remains under Illinois law an accelerated debt computed by the judgment that can be paid before foreclosure sale and even after sale until the end of the redemption period when title finally passes. Thus, despite the entry of foreclosure judgment in state court, Debtors here still had title in their property at the time they filed their Chapter 13 petition. 3. Application of § 1322(b)(5) in “lien” theory state. Section 1322(b) governs the content of any Chapter 13 plan that proposes to cure a mortgage default as to debtor’s residence. It provides in pertinent part that the plan may: * * * * * * (2) modify the rights of holders of secured claims other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim nor secured claim on which the last payment is due after the date on which the final payment under the plan is due; ...” Thus, § 1322(b)(5) indicates, notwithstanding § 1322(b)(2), that debtor can cure default within a reasonable time and maintain mortgage payments provided the last mortgage payment is due after the final payment under the plan. See 5 Collier on Bankruptcy ¶ 1322.01, at 1322-11 (15th Ed.1981). That statutory language, however, does not specify whether § 1322(b)(5) can be used to cure the debtor’s default once the debt is accelerated and brought to judgment prior to the filing of the debtor’s Chapter 13 petition. In a case decided under Wisconsin law, the Seventh Circuit has interpreted § 1322(b)(5) as allowing debtor to cure default on a residential mortgage loan where the Chapter 13 petition is filed after state court enters foreclosure judgment. Matter of Clark, 738 F.2d 869" }, { "docid": "5125263", "title": "", "text": "as well as the regular monthly mortgage payments that come due during the term of the plan, the default would be cured, the mortgage reinstated and the house saved. Unfortunately for the Debtors, however, this Court cannot confirm their plan. DISCUSSION A. The Debtors’ rights to cure under § 1322(b)(5). A debtor may cure a default on his mortgage through a Chapter 13 plan pursuant to § 1322(b) of the Bankruptcy Code, 11 U.S.C. § 1322(b): (b) ... the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; .... Under this provision, even though a mortgage is in default, the mortgagee has accelerated the maturity date of the loan (meaning that it called the loan and demanded immediate payment of the entire balance) and the debtor has no right under non-bankruptcy law to cure the default, he can do so in a Chapter 13 case. In In the Matter of Clark, 738 F.2d 869, 874 (7th Cir.1984), the court concluded that the debtor’s right to “cure” under section 1322(b)(5) permits a debtor to “de-accelerate” the payments due under a note secured by a residential property mortgage and reinstate the long term mortgage. The court held that “cure, as used in § 1322(b)(2) and (5), [means] to remedy or rectify the default” and “to restore matters to the way they were before the default.” Id., at 872. Moreover, a Chapter 13 debtor’s right to cure a default and reinstate a mortgage survives even if a foreclosure judgment was" }, { "docid": "15923131", "title": "", "text": ".thus nullified. This is the concept of ‘cure’ used throughout the Bankruptcy Code. Secondly, we believe that the power to ‘cure any default’ granted in § 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in § 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing defaults and maintaining payments’ under (b)(5) to be modifications of claims.” Id. at 241 (quoting In re Taddeo, 685 F.2d at 25-26). Furthermore, the court interpreted the language in § 1322(b)(5) “on which the last payment is due” to mean “on which the last payment before acceleration is due.” Id. at 241 n. 7. The court ultimately concluded that neither the curing of the default proposed under the plan nor the plan’s provision for payment of the matured amount on the debt “may be regarded as proposals to ‘modify’ [the debt- or’s] home-mortgage indebtedness” which is prohibited under § 1322(b). Other courts appear to be in agreement that “[i]f a creditor holding a claim secured solely by a security interest in real property that is the debtor’s principal residence accelerates payments on the debt as a result of the debtor’s default, then the plan may decelerate the payments, reinstate the regular payments, and cure the default.” Butler, Bankruptcy Handbook, ¶ 12.42 at p. 12-43 (1997 & Supp.1998-2000); Jim Walter Homes, Inc. v. Spears (In re Thompson), 894 F.2d 1227 (“[A]ll circuits that have addressed the issue have agreed that contractual acceleration of mortgage debt upon default does not end the debtors’ right to cure the mortgage default in bankruptcy by paying the amount of the original default, rather than the entire accelerated debt.”); In re Roach, 824 F.2d 1370, 1373 (3d Cir.1987) (“Thus far, each court of appeals that has decided whether a home mortgage default may be cured after contractual acceleration of the full mortgage debt has provided an affirmative answer.”). Thus, this Court concludes that the fact that the debt to BNY was accelerated due to Debtor’s default does not prohibit the curing of such default through the Chapter 13 Plan. Furthermore, the Court notes" }, { "docid": "1119288", "title": "", "text": "not a claim on which the last payment is due after the date on which the final payment under the plan is due, so the claim for the matured debt cannot be treated under this section. Section 1322(b)(2) prohibits modification of the rights of a holder of a secured claim if the claim is secured only by a security interest in real property that is the debtor’s principal residence. The parties agree that Barnett’s claim is secured only by a security interest in real property that is the Debtors’ principal residence. Accordingly, under § 1322(b)(2), Barnett’s rights may not be modified. Section 1322(b)(3) provides that a plan may provide for the curing or waiving of any default. The failure to make the balloon payment upon maturity of the Barnett note is a default. The sharply focused question is whether permitting a Chapter 13 debtor to pay a matured home mortgage loan through a Chapter 13 plan is an impermissible modification of the rights of a home mortgagee under § 1322(b)(2) or a permissible curing of a default under § 1322(b)(3). There is substantial respectable authority for both positions. One line of authority reasons that a Chapter 13 plan which extends payment beyond the final payment date contained in the original agreement is a modification of the rights of the holder of the claim, and is prohibited by subsection (b)(2), notwithstanding the fact that the plan proposes full payment of the claim. The second line of authority holds that subsection (b)(3) provides for the curing of any default through a Chapter 13 plan, and that the default created by the failure to pay a home mortgage loan which has matured prior to the commencement of the Chapter 13 case may be cured through a Chapter 13 plan. The first line of cases is lead by the case of In re Seidel, 752 F.2d 1382 (9th Cir.1985), in which the Ninth Circuit Court of Appeals considered whether a Chapter 13 plan may be confirmed that proposes to satisfy a home mortgage loan that had fully matured pre-petition. The court concluded that this" }, { "docid": "20870820", "title": "", "text": "authority to extend South Dakota’s redemption period and defer Prudential’s right to receive legal title and possession of the land. They also contend that the right to cure default under subsections (3) and (5) includes the ability to reverse the statutory acceleration of debt and return to pre-default conditions, at least until the state redemption period has expired. In both cases they claim that contrary state law provisions are preempted by section 1222(b). They argue more generally that in enacting Chapter 12, Congress intended to provide farmers with a uniform system of reorganization, and that sections 1222(b)(3) and (5) empower federal courts to create a federal right to cure default in these circumstances. We consider these arguments in turn. I. The Justices first argue that section 1222(b)(2) empowers debtors to extend a state’s redemption period and defer the right of the buyer at a foreclosure sale to receive legal title and possession of the land. The section provides that a plan may “modify the rights” of holders of secured or unsecured claims. 11 U.S.C. § 1222(b)(2). Unlike section 1322(b)(2) of Chapter 13, upon which it is based, section 1222(b)(2) does not prohibit debtors from modifying the rights of holders of “claims secured only by a security interest in real property that is the debtor’s principal place of residence.” 11 U.S.C. § 1322(b)(2). The Justices argue that by omitting this restriction from section 1222(b)(2), Congress deleted the only language limiting a debtor's ability to cure default and redeem property through a reorganization plan, and indicated its intent to provide home mortgage lenders with somewhat less protection under Chapter 12 than they enjoy under Chapter 13. On this basis the Justices argue that even though debtors may not extend statutory redemption periods in similar circumstances under section 1322(b)(2), see, e.g., In re Roach, 824 F.2d 1370, 1377-79 (3d Cir.1987), they should be allowed to do so under Chapter 12. For several reasons, we do not believe that the statutory right of redemption is subject to modification under section 1222(b)(2). First, the Justices’ proposed extension of the redemption period under subsection (b)(2) is" }, { "docid": "2654471", "title": "", "text": "which the last payment is due after the date on which the final payment under the plan is due. 11 U.S.C. 1322(b)(5). The Bankruptcy Appellate Panel has previously held that a Chapter 13 debtor could not restore his pre-foreclosure interest in property once the mortgage contract had been extinguished by a decree of foreclosure under Oregon law. In re Broker, 125 B.R. 798 (9th Cir. BAP 1991). The Panel in Broker reasoned that the curing of a default under § 1322(b)(5) requires an existing contract: “The circuit courts concluded that the curing of a default under 11 U.S.C. section 1322(b)(5) requires an existing contractual relationship.” Broker at 800. (The Broker Panel referring specifically to: Justice v. Valley National Bank, 849 F.2d 1078, 1085 (8th Cir.1988); In re Mann Farms, Inc., 917 F.2d 1210, 1214 (9th Cir.1990); In re Roach, 824 F.2d 1370, 1377 (3rd Cir.1987); In re Glenn, 760 F.2d 1428, 1442 (6th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); and In re Tynan, 773 F.2d 177, 178 (7th Cir.1985)). Referring to those same decisions, the Broker Panel stated: “The circuit courts reasoned the need for a contractual relationship from the common meaning of the words ‘cure’ and ‘default.’ To have a cure, there must be a default, and to have a default, there must be a contract.” Broker at 801. As the bankruptcy court below pointed out, no foreclosure sale has occurred in the facts of this case. Under Broker, however, one must come to the same result because the court identified that it was the decree of foreclosure that was the crucial event in cutting off the debtors’ right to cure under § 1322(b)(5): “An Oregon decree of foreclosure also extinguishes the mortgage, contract.” Broker at 800 (emphasis added) (citing Call v. Jeremiah, 246 Or. 568, 571, 425 P.2d 502, 505 (1967)). The holding in In re Seidel, 752 F.2d 1382 (9th Cir.1985) is of no assistance to the debtors. There, the Ninth Circuit affirmed the denial of confirmation of a Chapter 13 plan that proposed to pay off a mortgage note" }, { "docid": "2654449", "title": "", "text": "performance of an obligation that was secured by the property in question and maintain payments while the case is pending.” In re Hurt, 136 B.R. 859, 861 (Bankr.D.Or.1992). This appeal followed. ISSUES Whether 11 U.S.C. § 1322(b)(5) permits the debtor to cure a default on a debt secured by the debtors’ principal residence following the entry of the foreclosure judgment but prior to the foreclosure sale. STANDARD OF REVIEW The interpretation of 11 U.S.C. § 1322(b)(5) is a question of law reviewed de novo. In re Quintana, 915 F.2d 513, 515 (9th Cir.1990); In re Acequia, Inc., 787 F.2d 1352, 1357 (9th Cir.1986); In re Braker, 125 B.R. 798, 799 (9th Cir. BAP 1991). DISCUSSION I. The Circuit Courts Have Not Reached An Identifiable Consensus Interpreting 11 U.S.C. § 1322(b)(5) Section 1322(b)(5) enables a debtor to cure a default on a home mortgage through a Chapter 13 plan. Section 1322(b)(5) provides: (b) Subject to subsections (a) and (c) of this section, the plan may— (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; 11 U.S.C. § 1322(b)(5). However, § 1322(b)(5) does not specify when this right to cure terminates: (1) at the time of the contractual acceleration; (2) upon entry of foreclosure judgment; (3) at the time of the foreclosure sale; or (4) upon expiration of the redemption period. See, In re Roach, 824 F.2d 1370, 1372 (3d Cir.1987). All of the circuit courts that have addressed the cure provisions in § 1322(b)(5) agree that the default may be cured after the contractual acceleration of the full mortgage. See, In re Thompson, 894 F.2d 1227, 1230 (10th Cir.1990); Justice v. Valley Nat. Bank, 849 F.2d 1078 (8th Cir.1988); In re Roach, 824 F.2d 1370, 1374-77 (3d Cir.1987); In re Metz, 820 F.2d 1495, 1497 (9th Cir.1987); In re Glenn, 760 F.2d 1428, 1431-36 (6th Cir.1985)," }, { "docid": "15575024", "title": "", "text": "principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims; * * * (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due. 11 U.S.C. § 1322(b)(2), (b)(5). Thus, a debt- or whose mortgage is in default may cure the arrearage over the life of the plan, and thereby maintain the mortgage. The application of the statute is ambiguous in that the term “default” is not defined. It is unclear whether default includes the situations in which a judgment of foreclosure is entered, in which a sale has occurred, in which a sale has been confirmed, or in which the debtor’s state-law redemption rights have expired. The debtor asserts that he may cure the arrearage since the redemption period has not yet expired. Under debtor’s theory, property of the estate includes the right to redeem the property such that the debtor must be permitted to redeem the property. The Eighth Circuit has addressed this issue in the Chapter 12 context. See Justice v. Valley National Bank, 849 F.2d 1078 (8th Cir.1988). Each of the circuit court cases to address this issue have ruled that the right to cure a default under section 1322(b)(5) terminates with sale of the property. See In re Thompson, 894 F.2d 1227 (10th Cir.1990); Matter of Tynan, 773 F.2d 177 (7th Cir.1985); In re Glenn, 760 F.2d 1428 (6th Cir.1985), cert. denied sub nom, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); see also In re Roach, 824 F.2d 1370 (3d Cir.1987) (cure provision expires upon entry of foreclosure judgment). In the Chapter 12 context, the Eighth Circuit concluded that the right to cure a default terminates after the foreclosure sale: Because a foreclosure sale extinguishes the mortgage contract and works a substantial change in the relationship of the parties" }, { "docid": "2654472", "title": "", "text": "Cir.1985)). Referring to those same decisions, the Broker Panel stated: “The circuit courts reasoned the need for a contractual relationship from the common meaning of the words ‘cure’ and ‘default.’ To have a cure, there must be a default, and to have a default, there must be a contract.” Broker at 801. As the bankruptcy court below pointed out, no foreclosure sale has occurred in the facts of this case. Under Broker, however, one must come to the same result because the court identified that it was the decree of foreclosure that was the crucial event in cutting off the debtors’ right to cure under § 1322(b)(5): “An Oregon decree of foreclosure also extinguishes the mortgage, contract.” Broker at 800 (emphasis added) (citing Call v. Jeremiah, 246 Or. 568, 571, 425 P.2d 502, 505 (1967)). The holding in In re Seidel, 752 F.2d 1382 (9th Cir.1985) is of no assistance to the debtors. There, the Ninth Circuit affirmed the denial of confirmation of a Chapter 13 plan that proposed to pay off a mortgage note secured by the debtors’ home which had become due, without acceleration, before the filing of the debtors’ petition. Id. at 1383 (affirming In re Seidel, 31 B.R. 262 (Bankr.D.Or.1983)). The Ninth Circuit held that the arrangement contemplated by the plan amounted to an impermissible “modification” of a claim secured by the debtor’s principal residence which was specifically prohibited by § 1322(b)(2). Id. at 1387. The contractual relationship in this case has been irrevocably extinguished by the entry of the decree of foreclosure. That foreclosure decree was entered before the debtors’ petition was filed. There was no contract remaining to which to apply § 1322(b)(5) to cure at the time of the petition under Oregon law. Under both Broker and Seidel, § 1322 does not resurrect rights that have terminated under state law. “The cure contemplated by section 1322(b)(5) is a cure that provides both debt- or and creditor with the equivalent of their state law rights.” Braker, at 801; cf. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136" }, { "docid": "6825261", "title": "", "text": "subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim nor secured claim on which the last payment is due after the date on which the final payment under the plan is due; ...” Thus, § 1322(b)(5) indicates, notwithstanding § 1322(b)(2), that debtor can cure default within a reasonable time and maintain mortgage payments provided the last mortgage payment is due after the final payment under the plan. See 5 Collier on Bankruptcy ¶ 1322.01, at 1322-11 (15th Ed.1981). That statutory language, however, does not specify whether § 1322(b)(5) can be used to cure the debtor’s default once the debt is accelerated and brought to judgment prior to the filing of the debtor’s Chapter 13 petition. In a case decided under Wisconsin law, the Seventh Circuit has interpreted § 1322(b)(5) as allowing debtor to cure default on a residential mortgage loan where the Chapter 13 petition is filed after state court enters foreclosure judgment. Matter of Clark, 738 F.2d 869 (7th Cir.1984). In reaching this conclusion, the Clark court recognized the interplay between § 1322(b)(2) and § 1322(b)(5). While noting that § 1322(b)(2) does not permit a plan to modify a creditor’s rights secured by an interest in debtor’s residence, the concept of cure under § 1322(b)(5) is different: Since to cure means to restore matters to the way they were before the default, we think that the power to cure in § 1322(b) necessarily includes the power to de-ac-celerate the payments on the note. De-acceleration, therefore, is not a form of modification banned by (b)(2) but rather is a permissible and necessary concomitant of the power to cure defaults. Clark, Id., 738 F.2d at 872. In Clark it was also contended, that as a result of acceleration, mortgagee’s claim was not a claim on which the last payment was due after the date on which the final payment under the plan was due under § 1322(b)(5). The Court rejected that argument, stating that most notes provide that lenders can accelerate upon any default, and" }, { "docid": "1119289", "title": "", "text": "a default under § 1322(b)(3). There is substantial respectable authority for both positions. One line of authority reasons that a Chapter 13 plan which extends payment beyond the final payment date contained in the original agreement is a modification of the rights of the holder of the claim, and is prohibited by subsection (b)(2), notwithstanding the fact that the plan proposes full payment of the claim. The second line of authority holds that subsection (b)(3) provides for the curing of any default through a Chapter 13 plan, and that the default created by the failure to pay a home mortgage loan which has matured prior to the commencement of the Chapter 13 case may be cured through a Chapter 13 plan. The first line of cases is lead by the case of In re Seidel, 752 F.2d 1382 (9th Cir.1985), in which the Ninth Circuit Court of Appeals considered whether a Chapter 13 plan may be confirmed that proposes to satisfy a home mortgage loan that had fully matured pre-petition. The court concluded that this was an impermissible modification of the home mortgage. The Court discussed the plain meaning of the word “modification,” the concept of “cure,” and legislative intent. In our view, the plain meaning of the word “modification” in subsection (b)(2) must bar Seidel’s plan. By postponing payment of the debt beyond the time originally contemplated by the parties to the contract, his plan clearly amounts to a unilateral “modification” of the original debt contract as that word is ordinarily used. Seidel, 752 F.2d at 1384. The decisions [reaching contrary results] rely on the fact that “the plain meaning of ‘cure,’ as used in § 1322(b)(3) and (5), is to remedy or rectify the default and restore matters to the status quo ante.” When a debt has been accelerated, “cure” therefore results in the reinstatement of the original payment terms of the debt. But when a debt has already naturally matured — -as in Seidel’s case — “cure” as defined by these courts cannot aid the debtor, since reinstatement of the original terms of the debt will merely" }, { "docid": "17937579", "title": "", "text": "debtor’s principal residence, a Chapter 13 plan is barred from “modifying” the rights of the secured creditor. 11 U.S.C. § 1322(b)(2). Seidel’s plan proposes to pay off a note, which had already reached its due date before he filed for bankruptcy, in installments over the next five years with a balloon payment at the end of that period. His plan therefore affects the rights of the creditor who holds both the note and the security interest in Seidel’s home mortgage. We must decide whether the plan will so affect the creditor’s rights that it amounts to “modifying” them, in violation of § 1322(b)(2). In deciding whether a plan rises to the level of “modifying” rights we first consider whether that plan merely “cures” a default. Section 1322(b)(3) authorizes “the curing or waiving of any default,” while section 1322(b)(5) authorizes the curing of a default when “the last payment is due after the date on which the final payment under the plan is due.” We hold that Seidel’s plan “modifies” his creditor’s rights in violation of subsection b(2) and that the “cure” provisions of subsections b(3) and b(5) are inapplicable when a debt has reached its maturity date in the absence of acceleration, prior to the filing of the Chapter 13 petition. Seidel, 752 F.2d at 1383. In Seidel the court held that debtors cannot use Chapter 13 to delay payment of an unaccelerated debt that matures before the filing of the petition. Seidel, 752 F.2d at 1383. Harlan made the rule in Seidel applicable to debts that mature before the end of the plan period. Harlan, 783 F.2d at 840-41. See also In re Gavia, 24 B.R. 573, 574-75 (9th Cir. BAP 1982). Here, the Rubottoms’ promissory note matured after plan confirmation. The plan did not provide for the payment of principal, interest, late charges, and fees that became due on July 18, 1991. The Rubot-toms have not paid the amount owed and are “postponing payment of the debt beyond the time originally contemplated by the parties to the contract.” Seidel, 752 F.2d at 1384. The plan therefore violated §" }, { "docid": "1363601", "title": "", "text": "permitted where, as here, a mortgage default has triggered a foreclosure judgment and sale of the property prior to the filing of a chapter 13 petition. The DVA further contends that it is entitled to the insurance proceeds under the terms of the insurance agreement. The issues before the court are as follows: (1) whether a chapter 13 debtor can cure a default on a residential mortgage after a final decree of foreclosure has been entered and a sale has been made; (2) if a post sale cure is permissible, whether it can be effected by paying the arrearages which triggered the default and the mortgage debt in full within the life of the plan; and (3)who is entitled to the insurance proceeds, the DVA or the debtors and the debtors’ attorney. 11 U.S.C. § 1322(b) provides that a chapter 13 plan may: “(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title.” The case law under 11 U.S.C. § 1322(b) indicates that the courts are not in agreement over whether and under what circumstances a cure can be allowed once a default on a mortgage debt has triggered acceleration of the debt, a judgment or a sale. The differences in viewpoint may be generally categorized as follows: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981); In re Allen, 17 B.R. 119, 8 BCD 945 (Bkrtcy.N.D.Ohio" }, { "docid": "2654470", "title": "", "text": "859, 861 (Bankr.D.Or.1992). We affirm the bankruptcy court adopting the estate theory developed by the Tenth Circuit. The estate theory enables a debtor to “cure” under § 1322(b)(5) up to the foreclosure sale. We do not agree with the bankruptcy court’s implication that the “cure” under § 1322(b)(5) is available during the statutory period of redemption. The Bankruptcy Appellate Panel in In re Broker, specifically stated that the cure under § 1322(b)(5) is not available to a debtor after the foreclosure sale is completed. RUSSELL, Bankruptcy Judge, dissenting: I respectfully dissent and would reverse. The Oregon Department of Veterans’ Affairs (“ODVA”) asserts that § 1322(b)(5) does not provide for the cure and reinstatement of a mortgage note secured by a debtor’s primary residence after the issuance of a foreclosure decree. I agree. Section 1322(b)(5) provides that a Chapter 13 plan may: Notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due. 11 U.S.C. 1322(b)(5). The Bankruptcy Appellate Panel has previously held that a Chapter 13 debtor could not restore his pre-foreclosure interest in property once the mortgage contract had been extinguished by a decree of foreclosure under Oregon law. In re Broker, 125 B.R. 798 (9th Cir. BAP 1991). The Panel in Broker reasoned that the curing of a default under § 1322(b)(5) requires an existing contract: “The circuit courts concluded that the curing of a default under 11 U.S.C. section 1322(b)(5) requires an existing contractual relationship.” Broker at 800. (The Broker Panel referring specifically to: Justice v. Valley National Bank, 849 F.2d 1078, 1085 (8th Cir.1988); In re Mann Farms, Inc., 917 F.2d 1210, 1214 (9th Cir.1990); In re Roach, 824 F.2d 1370, 1377 (3rd Cir.1987); In re Glenn, 760 F.2d 1428, 1442 (6th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); and In re Tynan, 773 F.2d 177, 178 (7th" }, { "docid": "1092892", "title": "", "text": "creditor’s economic interests. See, for example, 11 U.S.C. § 361, § 362, § 1307, § 1322 and § 1325. ODVA’s objection will be overruled and the court will enter an order confirming the debtors’ plan. . Section 1322(b)(5): (b) Subject to subsections (a) and (c) of this section, the plan may— (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due. . In Seidel, the debtor argued to the Ninth Circuit Court of Appeals (as the BAP argues in Broker) that, under Oregon law, the creditor's consensual security interest under the original contract was converted into a non-consensual judicial lien once the foreclosure decree was entered. Thus, the debtor argued, § 1322(b)(2)’s ban on modification did not apply thereby allowing the debtor to effectively change the maturity date provided in the contract. This court had previously rejected this same argument made by the debtors in re Ivory, 32 B.R. 788, 793 (Bankr.Or.1983). The Ninth Circuit also rejected this argument in Seidel and cited Ivory with approval on this issue. Seidel at 1387. As stated in the main text of the present opinion, the Ninth Circuit held that the creditor’s claim retained its character as a consensual security interest, i.e., a contract, despite contrary state law. Seidel at 1386. Thus, the Ninth Circuit has already rejected the BAP’s analysis of this issue. The Bankruptcy Appellate Panel quotes the following from Seidel: \"We hold ... that the ‘cure’ provisions of subsection (b)(3) and (b)(5) are inapplicable when a debt has reached its maturity date in the absence of acceleration, prior to the filing of the Chapter 13 petition.” Broker at 801 (quoting from Seidel at 1383.) It may be that the Ninth Circuit’s use of the term \"inapplicable” in Seidel was imprecise. The precise meaning of the quoted language from Seidel concerning the \"inapplicability” of the “cure” provisions" }, { "docid": "13775085", "title": "", "text": "mortgagees possess an unwarranted and likely insurmountable advantage: wage earners seldom will possess the sophistication in bankruptcy matters that financial institutions do, and often will not have retained counsel in time for counsel to do much good. In re Taddeo, 685 F.2d at 27. Thus, considering the text of § 1322(b), its legislative history, and the practical consequences of the tendered alternative interpretation, we hold that § 1322(b)(5) authorized the cure of the Roaches’ default after the acceleration of the balance of the loan and at least up until the entry of judgment in the foreclosure proceeding. IV. Having determined that the right to cure a default on a home mortgage survives acceleration, we must confront the issue of when it terminates. When we apply the text of § 1322(b) in the context of New Jersey law, we are led to the conclusion that the right to such a cure expires when the mortgagee obtains a foreclosure judgment. Moreover, we conclude that beyond that point in the foreclosure process there are no substantial federal interests that would justify ignoring property interests created by the judgment of a New Jersey court. Accordingly, we hold that the bankruptcy court properly refused to approve the Roaches’ plan. As we have seen, § 1322(b)(5) authorizes plans that “provide for the curing of any default ... and maintenance of payments ... on any ... secured claim on which the last payment is due after” expiration of the Chapter 13 plan. Given the commonly understood meaning of the words “cure” and “default” in a context like this, we read § 1322(b)(5) to authorize the curing of a default in, and restoration of, a contractual relationship. When a debtor files a Chapter 13 petition in New Jersey and proposes a plan attempting to utilize the authority of § 1322(b)(5) after the entry of a foreclosure judgment, no contractual relationship remains and the mortgagee’s rights are those that arise from its judgment. Accord In re Brown, 73 B.R. 306 (Bankr.D.N.J.1987). In New Jersey, as in many states, the mortgage is merged into the final judgment of foreclosure and" } ]

[ { "docid": "22664168", "title": "", "text": "who had implicated him. After listening to the tape for several minutes, petitioner said that he would make a statement so long as it was not tape-recorded. The detectives informed him that the recording was irrelevant since they could testify in court concerning whatever he said. Edwards replied: “I’ll tell you anything you want to know, but I don’t want it on tape.” He thereupon implicated himself in the crime. Prior to trial, Edwards moved to suppress his confession on the ground that his Miranda rights had been violated when the officers returned to question him after he had invoked his right to counsel. The trial court initially granted the motion to suppress, but reversed its ruling when presented with a supposedly controlling decision of a higher Arizona court. The court stated without explanation that it found Edwards’ statement to be voluntary. Edwards was tried twice and convicted. Evidence concerning his confession was admitted at both trials. On appeal, the Arizona Supreme Court held that Edwards had invoked both his right to remain silent and his right to counsel during the interrogation conducted on the night of January 19. 122 Ariz. 206, 594 P. 2d 72. The court then went on to determine, however, that Edwards had waived both rights during the January 20 meeting when he voluntarily gave his statement to the detectives after again being informed that he need not answer questions and that he need not answer without the advice of counsel: “The trial court’s finding that the waiver and confession were voluntarily and knowingly made is upheld.” Id., at 212, 594 P. 2d, at 78. Because the use of Edward’s confession against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, supra, we reverse the judgment of the Arizona Supreme Court. II In Miranda v. Arizona, the Court determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence" } ]

[ { "docid": "14049222", "title": "", "text": "facts and circumstance surrounding that case, including the background, experience, and conduct of the accused.’ ” Id. at 374-75, 99 S.Ct. at 1758 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). See also Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979) (whether incriminating statements admissible on the basis of waiver is a question to be resolved on the totality of the circumstances surrounding the interrogation). In the present case, the totality of the circumstances indicates that Stawicki knowingly and intelligently waived his Miranda rights. The Wisconsin trial court found that Stawicki had been fully advised of his Miranda rights and, as Stawicki himself testified at the pre-trial suppression hearing, that he understood the warnings. Although Stawicki never expressly waived his right to remain silent, his re quest to speak to Detective Sobczyk prior to confessing indicated his willingness to make a statement. As far as Stawicki’s background and experience are concerned, the trial court considered many of the same factors discussed above in connection with the voluntariness of the confession itself. Stawicki was twenty-three years old, of average intelligence, and had prior experience with the police. In one of his previous encounters with law enforcement, Stawicki had given a statement after receiving Miranda warnings. Under the totality of the circumstances, we conclude that the trial court did not err in holding that Stawicki knowingly and intelligently waived his Miranda rights. III. In conclusion, we find no constitutional infirmity in the Wisconsin trial court’s admission of Stawicki’s confession into evidence. The district court’s denial of Stawicki’s petition for a writ of habeas corpus is accordingly Affirmed. . Stawicki also argues that his consent to search and impound the Blazer was not voluntary and intelligent. Because Stawicki was provided an opportunity for “full and fair litigation” of this Fourth Amendment claim in the Wisconsin courts, however, he cannot be granted federal habeas corpus relief on this basis. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976); see also Sanders v." }, { "docid": "23191000", "title": "", "text": "Frank did not request that the interview be terminated. Special Agent Raucci testified that no threats or promises were made to Frank. Frank appeared to be alert and to understand the questions asked of him at all times. The testimony presented by the Government shows that Frank was treated properly by the police before and during the interrogation, and was not subjected to coercion. There is no evidence in the record of police overreaching or oppressive conduct that caused Frank to confess involuntarily. If anything, the record shows the officers where fully respectful of his constitutional rights. In fact, one of the officers told Frank to be quiet when he volunteered during booking that had committed violent acts. The district court did not err in concluding that Frank confessed voluntarily. Frank contends that testimony at the competency hearing presented by the Government established that he was unable to comprehend his Miranda rights. The test we must apply in determining whether a waiver of Miranda rights was knowing and intelligent is set forth in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1985). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Id. at 421, 106 S.Ct. at 1141 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). When considering the totality of the circumstances, relevant factors include “age, experience, education, background and intelli-gence_” Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979). As discussed above, there is no evidence in the record that Frank was intimidated, coerced, or" }, { "docid": "14202261", "title": "", "text": "the governing Supreme Court precedent on ambiguous invocations of the right to counsel. Having determined that Hart made his statement to the police freely, voluntarily, and intelligently, the only alternative basis for suppression presented to the trial court was that Hart had, in his discussion with the police, invoked his right to counsel. On its facts, Davis, is actually similar to this case, except that, as the trial court correctly concluded, Hart did not unequivocally invoke his right to counsel. See id. at 455, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (suspect advised of rights, waived rights orally and in writing, later made equivocal statements about getting a lawyer, and eventually clearly invoked right to counsel). . The exact issue presented to the trial court was not focused on just three words (“honesty wouldn't hurt”) in the lengthy interview described in the record, but rather on the totality of the circumstances. Hart argued generally that his confession was involuntarily obtained because it was obtained through police threats and direct or implied promises of leniency or benefits. Hart did not testify or argue that Schuster's statement to Hart that \"honesty wouldn’t hurt him” coerced his confession. . The majority seems to mean that the trial court did not consider what the majority, on de novo review, now concludes is the most important of the totality of the circumstances, Schuster's isolated statement. The majority's de novo approach to the review of the volun-tariness of Hart's confession typifies the pre-1996 approach to habeas corpus review of such confessions. Compare Miller v. Fenton, 474 U.S. 104, 110-11, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). After the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, § 104, federal courts are required to apply a more deferential standard for habeas review of state court decisions. . See Fare v. Michael C, 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)(factors for evaluating juvenile confession include the suspect's age, experience, education, background, intelligence, capacity to understand the Miranda warnings, the nature of his Fifth Amendment rights, and the consequences of" }, { "docid": "22167783", "title": "", "text": "Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979). I agree with the majority in the pending case that the defendant’s confession was not coerced in violation of the Constitution and that he waived his Miranda rights. But the statutory violation remains. The Supreme Court’s decision in Michael C, involving a state conviction tested against constitutional requirements, had no occasion to consider section 5033. Neither the District Court nor the majority has given any explicit consideration to the fact that the defendant’s mother was not advised of his rights after custody attached as required by section 5033 or that her prior consent to questioning in her absence was obtained only on the assurance that he was not in custody. Though appellant has not cited section 5033, his brief presses the point that none of the interrogating officers “bothered to inform [the mother], who was sitting just outside, that her son had now been placed into custody.” Brief for Appellant at 40. The absence of a statutory citation ought not to waive a legal issue, the facts of which are undisputed in the record and are advocated on appeal. It may well be that not every instance of noncompliance with the requirements of section 5033 invalidates a juvenile’s confession. See United States v. Doe, 701 F.2d 819, 822-23 (9th Cir.1983) (prompt notification excused where parents outside the United States). But where compliance is readily feasible, lack of compliance ought not to be excused unless it appears, with reasonable certainty, that the noncompliance did not contribute to obtaining the confession. That cannot be said here. The likelihood is that the mother, informed of her son’s peril and of his rights, would have advised him not to speak to the agents before obtaining legal representation. The fact that, without his parent’s advice, he agreed to speak to the agents provides no assurance that he would have done so had section 5033 been followed. For these reasons, I think the confession should have been suppressed, and the conviction vacated. At a minimum, the case should be remanded to afford" }, { "docid": "16762588", "title": "", "text": "the hill where the victim’s body was found and he was hoping that someone living there had seen or heard something helpful to the investigation.) Arvin Benally, accompanied by his mother, went to the investigator’s office. The subsequent interview lasted twenty to thirty minutes and was conducted in an interview room by plain-clothes investigators. Following the interview, defendant went home with his mother. Defendant points to his mother’s testimony that she felt compelled to attend the initial interview. He contends that, by demanding his mother’s presence at the police station, Officer Tolbertson curtailed his freedom of action as well. Upon consideration of that testimony, the district court found that it had “not received evidence of the nature that would indicate that Arvin himself heard anything other than his mom saying that they needed to go to the police station. I don’t believe that that rises to the level of coercive police action.” Supp. R. at 132. Although the testimony presented at the suppression hearing was not entirely consistent, Arvin conceded he was not present when Tolbert-son spoke with Julia Benally, and we determine that the district court’s conclusion was not clearly erroneous. Later that day, the investigators asked Arvin to return to their offices. When he did so, Arvin was told that his earlier statement did not make sense. The investigators testified that Arvin was informed of his Miranda rights and subsequently produced a statement admitting that he had been present at Russell’s murder. Arvin was at the police station for approximately one-and-a-half hours. Defendant insists he was interrogated during this second interview prior to receiving the Miranda warning. There is adequate evidence to the contrary. At the hearing on the motion to suppress, Officer Tolbertson testified that the defendant was informed of his rights before making his statement. On independent evaluation of the record, we conclude that defendant was properly informed of his rights before this second interview. Nor do we agree that defendant’s statements made at both interviews were involuntary. Whether a confession is coerced depends upon several factors: (1) the age, intelligence, and education of the defendant;" }, { "docid": "23610232", "title": "", "text": "S.Ct. 2560, 61 L.Ed.2d 197 (1979). In juvenile cases, the totality approach requires an “evaluation of the juvenile’s age, experience, education, background, and intelligence” as well as the circumstances regarding the confession. Fare, 442 U.S. at 725, 99 S.Ct. 2560. The Supreme Court in the past has spoken of the need to exercise “special caution” when assessing the voluntariness of a juvenile confession, particularly when there is prolonged or repeated questioning or when the interrogation occurs in the absence of a parent, lawyer, or other friendly adult. In re Gault, 387 U.S. 1, 45, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gallegos v. Colorado, 370 U.S. 49, 53-55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332 U.S. 596, 599-601, 68 S.Ct. 302, 92 L.Ed. 224 (1948). In this case, the trial court correctly recognized that it was required to apply a totality of the circumstances analysis and also stated, “I do realize and I do take into consideration that the defendant is a juvenile. And that this court must take great care to insure that the admission was voluntary.” The Illinois Appellate Court also stated that it would scrutinize the juvenile confession “with particular care.” People v. Hardaway, 307 Ill.App.3d 592, 241 Ill.Dec. 111, 718 N.E.2d 682, 693 (1999). Notwithstanding these protestations, the district court found that the analysis of both state courts was an unreasonable application of the totality of the circumstances test in light of Haley, Gallegos, and Gault, and it therefore issued the writ. The district court had good reason for doing so, in that it relied on several Supreme Court decisions that had held that the Fifth Amendment rights of a juvenile had indeed been violated. In Haley, a 15-year-old boy was arrested at midnight and interrogated for five straight hours by six officers in relays of one or two officers at a time. At 5 a.m., after being falsely told that two other boys had implicated him, the defendant confessed. Haley, 332 U.S. at 598, 68 S.Ct. 302. He was then held for three more days before being charged while his mother" }, { "docid": "8867459", "title": "", "text": "101 S.Ct. at 1886-87). The Court’s reasoning was simply that once a defendant has invoked his right to counsel he may not again be questioned unless he himself initiates the further communication with the police. Edwards’s admissions were excluded even though he was again informed of his Miranda rights (as Stumes was not on the afternoon of October 2), and even though he was “willing to talk,” 101 S.Ct. at 1882, and told the officers “ ‘I’ll tell you anything you want to know,’ ” ibid. Perhaps petitioner’s statement was “voluntary,” in the sense that it was not coerced, but under Edwards that is not enough. See id. at 1884. It must also be apparent that the prisoner has knowingly and intelligently relinquished his right to counsel. In our view, when this case is judged by the Edwards standard, such a waiver cannot be said to have occurred. It is worth repeating that Stumes’s request for counsel was neither generalized nor abstract. His mother had retained counsel for him, it was this particular lawyer whom he wished to consult, and the police knew not only that this lawyer had been retained, but also that he had advised Stumes to exercise his constitutional right of silence. 4. Upon arrival at the Minnehaha County Jail on the evening of October 2, petitioner requested to speak to Detective Skadsen and subsequently made further inculpatory statements to him. This incident presents us with a close question. Viewed in isolation, it may fall within the exception expressed in Edwards where an accused himself has initiated further conversation with the police. Considering, however, the “totality of the circumstances” surrounding the various interrogations, Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979), we conclude that if it had not been for the improper questioning of petitioner by the police officers after petitioner had invoked his right to counsel, his initial highly incriminating statements would not have been made. And probably petitioner would not have asked to talk to Detective Skadsen, further implicating himself in the crime, if those earlier inculpatory" }, { "docid": "22333099", "title": "", "text": "her that another friend, detective Joe Harris, would be conducting the interrogation, a female FBI agent actually conducted the interrogation. The fact that deputy Porter exhibited sympathy and created an atmosphere of trust does not demonstrate the type of police overreaching prohibited by Spano. See United States v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir.1992) (“Expressions of sympathy by an officer are not coercive.”). Watson was allowed to call her mother, the only person she asked to call. Watson never asked to terminate the interview, never requested counsel, and signed a written waiver of her rights. Although she testified at the suppression hearing that agents threatened that she would never see her daughter again, the district court found that this testimony was not credible. Watson also argues that her confession was inadmissible under the Fifth and Sixth Amendments because it was obtained in violation of her right to counsel. Agent Norman testified that he read Watson her Miranda rights as soon as she was arrested and that she indicated that she understood those rights. This circuit has held that “[a]s long as the police administer Miranda warnings before proceeding, a defendant’s voluntary-decision to answer questions without claiming his right to have a lawyer present to advise him constitutes a ‘knowing and intelligent,’ and therefore valid, waiver of his Sixth Amendment right.” Montoya v. Collins, 955 F.2d 279, 282 (5th Cir.1992) (quoting Patterson v. Illinois, 487 U.S. 285, 292-97, 108 S.Ct. 2389, 2394-97, 101 L.Ed.2d 261 (1988)). Watson acknowledges that “[t]he evidence was in dispute as to whether, where, and when [she] indicated that she wanted to contact counsel.” (Watson’s brief at 19) She appears to argue that she invoked her right to counsel at her mother’s home when she was arrested, and that she gave another indication that she had not waived her right to counsel when she commented to deputy Porter later at the DEA building that she “might have to get a lawyer then, huh?” in response to Porter’s reiteration of her right to counsel. In support of her argument that she invoked her right to counsel at" }, { "docid": "4242123", "title": "", "text": "has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights and the consequences of waiving those rights.” Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979). The length of time that the juvenile was questioned by the authorities and the absence or presence of a parent or other friendly adult are additional factors that bear on the voluntariness of the juvenile’s confession. Hardaway, 302 F.3d at 762. A juvenile’s ability to consult with a friendly adult is relevant because, as the Supreme Court explained in Gallegos v. Colorado, a teenager may not on his own be able to fully appreciate what is at stake when the police seek to question him: [A] fourteen-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his right — from someone concerned with securing him those rights — and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a fourteen-year-old boy would not be able to know, let alone assert, such constitutional rights as he had.... 370 U.S. 49, 54, 82 S.Ct. 1209, 1212-13, 8 L.Ed.2d 325 (1962); see also A.M. v. Butler, 360 F.3d 787, 800-01 & nn. 10-11 (7th Cir.2004); Kenneth J. King, Waiving Childhood Goodbye: How Juvenile Courts Fail to Protect Children from Unknowing, Unintelligent, and Involuntary Waivers of Miranda Rights, 2006 Wis. L.Rev. 431, 432-33, 434-44 (noting the complexity of a decision to waive one’s rights and" }, { "docid": "16754786", "title": "", "text": "the orders of his superior officers. Record Vol. I at 50. Thus, Cherry was “turned over” to FBI agents for questioning. Id. The court held, therefore, that there was no custodial interrogation that would bar the defendant’s confession under Dunaway and Wong Sun. Furthermore, since there was no “arrest” at 1:00 p.m. on December 7th, the district court held that Cherry’s rights under Fed. R.Crim.P. 5(a) and Mallory were not violated. Record Vol. I at 50a. The district court also found that the defendant’s confession was not coerced or obtained in violation of his Miranda rights. The court found that Cherry understood his Miranda rights and that he knowingly and voluntarily waived those rights. Id. Cherry reurges these contentions on appeal, and asserts that the district court erred in failing to suppress his confession on each of the four grounds. Violation of Cherry’s Miranda Rights. Our careful review of the record convinces us that Cherry’s confession was obtained in violation of his Miranda rights; thus, it should not have been admitted at trial. Our conclusion in this respect renders it unnecessary for us to decide whether the confession should have been suppressed for the other reasons Cherry has advanced. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court recognized that “[ujnless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id. at 458, 86 S.Ct. at 1619. Access to legal counsel was held essential to secure the fifth amendment privilege against self-incrimination. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id. at 474, 86 S.Ct. at 1628. Miranda therefore created a “rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979). In this case, however, Cherry did not unambiguously indicate that he wanted" }, { "docid": "23610235", "title": "", "text": "After his arrest, he was locked for five days in juvenile hall, where his mother was not permitted to see him. He signed a full and formal confession at the end of the week. During that time, he never asked to see his parents or an attorney. The Court admitted that there was no prolonged questioning or use of fear to break down the defendant, but it found that under “the totality of the circumstances” the five-day detention and refusal to permit the boy’s mother to see him gave the case an “ominous cast.” Id. at 54, 82 S.Ct. 1209. It concluded that “a 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police .... He would have no way of knowing what the consequences of his confession were without advice as to his rights — from someone concerned with securing him those rights.” Id. The Court therefore found that the formal confession had to be suppressed. Id. at 55, 82 S.Ct. 1209. In many respects, this case is quite similar to Gallegos. Like Gallegos, Hardaway was only 14 at the time of his arrest. He was questioned for a longer time than Gallegos before his first confession, and no friendly adult was present to explain his rights to him until many hours later (even if we assumed that the passive Geraci served that function). Thus, reading the Gallegos decision in isolation, we would likely affirm the district court’s judgment. Later decisions, however, indicate that the mere absence of a friendly adult is by itself insufficient to require suppression of a juvenile confession. In Fare, the Supreme Court held that a totality of the circumstances analysis was adequate “to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved.” 442 U.S. at 725, 99 S.Ct. 2560. Turning to the specific facts of the case before it, the Court found voluntary the confession of a 16-year-old with a prior criminal record" }, { "docid": "912803", "title": "", "text": "HAMILTON, Circuit Judge. Petitioner Brendan Dassey confessed on videotape to participating in the 2005 rape and murder of Teresa Halbach and the mutilation of her corpse. The Wisconsin state courts upheld Dasse/s convictions for these crimes, finding that his confession was voluntary and could be used against him. The principal issue in • this habeas corpus appeal is whether that finding was based on an unreasonable application of Supreme Court precedent or an unreasonable view of the facts. See 28 U.S.C. § 2254(d). Whether Dassey’s confession was voluntary or not is measured against a general standard that takes into account the totality of the circumstances. See Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993); Gallegos v. Colorado, 370 U.S. 49, 55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); see also Fare v. Michael C., 442 U.S. 707, 727, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (admissibility of juvenile confession). Some factors would tend to support a finding that Dassey’s confession was not voluntary: his youth, his limited intellectual ability, some suggestions by. the interrogators, their broad assurances to a vulnerable suspect .that honesty would produce leniency, and inconsistencies in Dassey’s confession. Many other factors, however, point toward a finding that it was voluntary. Dassey spoke with the interrogators freely, after receiving and understanding Miranda warnings, and with his mother’s consent. The interrogation took place in a comfortable setting, without any physical coercion or intimidation, without even raised voices, and over a relatively brief time. Dassey provided many of the most damning details himself in response to open-ended questions. On a number of occasions he resisted the interrogators’ strong suggestions on particular details. Also, the investigators made no specific promises of leniency. After the state courts found the confession voluntary, a federal district court and a divided panel of this court found that the state courts’ decision was. unreasonable and that Dassey was entitled to a writ of habeas corpus. We granted en banc review to consider the application of the deferential standards of 28 U.S.C. § 2254(d) and the implications of the panel decision" }, { "docid": "14096947", "title": "", "text": "of [Morgan’s] interrogation prior to his confession indicates that he was considered a witness only.... The focus of the police investigation had always been on adult suspects.” The court did not mention that Morgan was alone, his age, his prior inexperience with the criminal justice system, or the fact that the interrogation took place in a closed police room. Nor did it acknowledge that Morgan was dependent on the police for transportation home, and Cassidy testified that he would not have let Morgan go. And, while Morgan was never told he was not free to leave, he was also not told he was free to leave, either. All these factors lead to only one conclusion — on the basis of this record, Morgan was, for all practical purposes, under arrest within the meaning of the Fourth Amendment when he made his inculpatory statements. Finally, the state court’s decision regarding whether Morgan’s confession and waiver of his Fifth Amendment right to remain silent was voluntary was objectively unreasonable. A voluntary relinquishment of a right occurs when a waiver is the “product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In evaluating voluntariness, we are required to examine the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Among other factors, a court must examine the juvenile’s age, experience, education, background and intelligence, prior experience with the criminal justice system, whether the questioning was repeated or prolonged, and the presence or absence of a friendly adult such as a parent or an attorney. Michael C., 442 U.S. at 725-26, 99 S.Ct. 2560. In fact, the Supreme Court has consistently recognized that a confession or waiver of rights by a juvenile is not the same as a confession or waiver by an adult. A defendant’s age is an important factor in determining whether a confession is voluntary. See, e.g., Withrow, 507" }, { "docid": "23288294", "title": "", "text": "amendment. We, therefore, will not require that the evidence obtained as a result of her detention be suppressed, without consideration of the constitutionality of the Delaware statute. C. We next discuss Velasquez’ claim that the district court erred in denying her mo tion to suppress the statements she made to Agent Glanz while in custody. Velasquez argues that she did not waive the Miranda rights which she had previously invoked and that the statements should not have been admitted. In its landmark decision in Miranda v. Arizona, the Supreme Court imposed certain obligations on police in custodial interrogations, in order to dissipate the “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). Prior to questioning, the police must inform the suspect of his right to remain silent and his right to have counsel present during interrogation, as well as their intent to use his statements to secure a conviction. See id. at 468-70, 86 S.Ct. at 1624-26. They also must cease the interrogation if at any point the suspect indicates that he wishes to remain silent or that he wants an attorney. See id. at 473-74, 86 S.Ct. at 1627-28. Miranda allows the suspect to waive these rights, “provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. at 1612. The inquiry has two components. First, the waiver must have been voluntary “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (citing Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). Second, the waiver “must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. In Edwards v. Arizona, the Supreme Court held that an accused person in custody" }, { "docid": "4098596", "title": "", "text": "Riley v. Franzen, 653 F.2d 1153, 1160 (7th Cir.1981). Cf. Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (federal law does not require presence of a juvenile’s probation officer, either). Although federal courts do not enforce state rules for evidence gathering, a state law may identify factors that affect a confession’s voluntariness and reliability and therefore matter under federal law. It is easier to overbear the will of a juvenile than of a parent or attorney, so in marginal cases— when it appears the officer or agent has attempted to take advantage of the suspect’s youth or mental shortcomings — -lack of parental or legal advice could tip the balance against admission. Moreover, even if the judge determines that a confession is voluntary, a defendant is entitled to urge the jury to discount the confession in light of circumstances, such as the absence of parental advice, that may diminish its reliability. 18 U.S.C. § 3501(a); Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). Wilderness therefore was free to show at trial that the police turned away his mother when she tried to speak with him. (His mother testified at the suppression hearing that the police denied having her son in custody when she appeared at the station-house. The district judge did not determine whether this recollection is correct.) But on this appeal Wilderness does not contend that agent Gancarz took advantage of a known weakness in his ability to bear up under interrogation (recall that Wilderness is a veteran of the criminal justice system and that Gancarz resumed the questioning only at his request) and does not contend that relevant information was kept from the jury; he insists that the judge was obliged to suppress the confession simply because Gancarz did not follow Indiana law. That contention is unavailing, so the judgment is AFFIRMED." }, { "docid": "22167779", "title": "", "text": "a juvenile is taken into custody ... [t]he arresting officer shall immediately advise such juvenile of his legal rights ... [and] shall also notify the parents ... of the rights of the juvenile .18 U.S.C. § 5033 (emphasis added). That provision was violated in this case. Because I believe the violation resulted in a confession that the Government has not shown would have been obtained had the statute’s requirement been observed, I think the confession should have been suppressed. I therefore respectfully dissent. The key facts are not disputed. At the time the confession was obtained, the defendant was 16. He had an IQ of 71 and was diagnosed with Attention Deficit Hyperactivity Disorder and “learning problems.” The questioning that produced the confession occurred at-a military police station at Fort Hamilton in Brooklyn, N.Y. When the questioning began, the federal agents regarded the defendant as an informant, not a suspect. Nevertheless, before any questioning occurred, the juvenile called his mother and asked her to come to the police station. When she arrived, a military police investigator informed her that her son was not a suspect and was not in any trouble, and obtained her permission to speak to her son without her presence. As the investigator candidly testified, he “knew that it might be easier to get information from [the juvenile] if his mother wasn’t present.” During the course of the ensuing questioning, however, circumstances changed. The interrogating officers began to suspect the defendant of participation in a robbery. The principal questioner then shifted his chair to confront the defendant, changed his tone of voice, displayed his badge, and read the defendant his Miranda rights. As the District Court found, and the majority agrees, the defendant at that point was in custody. When a juvenile is in “custody,” section 5033 requires the arresting officers not only to notify him of his rights but also to notify his parents of the juvenile’s rights. Such a notification was especially important in this case because permission to question the juvenile in the absence of a parent had been obtained only on the representation" }, { "docid": "14049221", "title": "", "text": "burden in these situations to demonstrate that the waiver is both knowing and intelligent. Id. at 475, 86 S.Ct. at 1628. An express waiver of a suspect’s Miranda rights is not indispensable, however, to a finding of waiver. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, can never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. Id. The question of waiver must be determined, the Court continued, “on ‘the particular facts and circumstance surrounding that case, including the background, experience, and conduct of the accused.’ ” Id. at 374-75, 99 S.Ct. at 1758 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). See also Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979) (whether incriminating statements admissible on the basis of waiver is a question to be resolved on the totality of the circumstances surrounding the interrogation). In the present case, the totality of the circumstances indicates that Stawicki knowingly and intelligently waived his Miranda rights. The Wisconsin trial court found that Stawicki had been fully advised of his Miranda rights and, as Stawicki himself testified at the pre-trial suppression hearing, that he understood the warnings. Although Stawicki never expressly waived his right to remain silent, his re quest to speak to Detective Sobczyk prior to confessing indicated his willingness to make a statement. As far as Stawicki’s background and experience are concerned, the trial court considered many of the same" }, { "docid": "918432", "title": "", "text": "an extradition hearing. The judge informed him of his right to remain silent, but apparently the only reference to counsel meant that counsel could be obtained for purposes of an extradition proceeding. Appellant pro se waived extradition. As appellant was being escorted from the Rockville Courthouse in the custody of a Metropolitan police detective, appellant’s mother appeared, identified herself to the detective, and asked whether she might talk with her son. The detective explained that she might but that he would have to be present, and advised appellant that anything he might say to his mother might be used against him. Appellant said he wanted to talk to his mother. A room was designated in the courthouse for appellant to talk to his mother and there appellant admitted to his mother that he had killed a woman with his hands. Again, these are the facts as testified to by the police and found by the District Judges. Appellant denied that he had been advised of his right to remain silent and testified that he asked the officer whether he would have to tell his mother what happened, whereupon the officer said he might as well because she would find out eventually anyway. Appellant was then returned to the District of Columbia, and at about 4:35 that afternoon received a preliminary hearing before a judge of the Court of General Sessions who fully advised him concerning his privilege against self-incrimination and his right to have counsel appointed to represent him. As a result of the determinations at the pre-trial suppression hearing and the trial hearing, the first oral confession, the admission to his mother, and the articles of clothing seized under warrant, were admitted in evidence at the trial. Appellant claims each of these rulings was reversible error. II Appellant’s Confession to the Detectives. We consider first the admissibility of appellant’s oral confession at the Montgomery County police station. Three inter-related strands of law must be taken into account in considering the admissibility of this confession. Stated summai'ily at this introductory juncture, the doctrines hold that a defendant’s confession is inadmissible—" }, { "docid": "22167782", "title": "", "text": "knowledgeable and responsible adult ... in order to protect the defendant from himself.” United States v. Nash, 620 F.Supp. 1439, 1443 (S.D.N.Y.1985). The fact that the juvenile was offered and declined an opportunity to speak with his mother after custody attached only underscores how important it was to comply with section 5033 and let the parent decide what advice to give her son. As the Supreme Court has said, a juvenile in police custody needs the aid of more mature judgment as to the steps he should take in [his] predicament .... [A]n adult relative ... could have given [the juvenile] the protection which his own immaturity could not.” Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325 (1962). The Supreme Court has recognized that a juvenile may waive his Fifth Amendment rights and that even the denial of a request to speak with a parent is only one circumstance to be assessed in determining whether a juvenile in custody waived his constitutional right to remain silent. See Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979). I agree with the majority in the pending case that the defendant’s confession was not coerced in violation of the Constitution and that he waived his Miranda rights. But the statutory violation remains. The Supreme Court’s decision in Michael C, involving a state conviction tested against constitutional requirements, had no occasion to consider section 5033. Neither the District Court nor the majority has given any explicit consideration to the fact that the defendant’s mother was not advised of his rights after custody attached as required by section 5033 or that her prior consent to questioning in her absence was obtained only on the assurance that he was not in custody. Though appellant has not cited section 5033, his brief presses the point that none of the interrogating officers “bothered to inform [the mother], who was sitting just outside, that her son had now been placed into custody.” Brief for Appellant at 40. The absence of a statutory citation ought not to" }, { "docid": "4242127", "title": "", "text": "the circumstances surrounding the interrogation. See Michael C., 442 U.S. at 725, 99 S.Ct. at 2572 (“The totality approach permits — indeed it mandates — inquiry into all the circumstances surrounding the interrogation.”); King, Waiving Childhood Goodbye, 2006 Wis. L.Rev. at 450 {“[Michael C.’s ] undeniably broad language and its direction to inquire into the juvenile’s capacity to understand the warnings, Fifth Amendment rights generally, and the consequences of a waiver of those rights more specifically, suggests that the determination of whether a juvenile has knowingly, intelligently, and voluntarily waived [his] rights will be a broad, probing inquiry.”). Obviously a hearing will be compulsory when the relevant facts are disputed. Jackson, 378 U.S. at 391-92, 84 S.Ct. at 1789. However, we cannot say that the Illinois Appellate Court acted unreasonably in proceeding to assess the voluntariness of Gilbert’s confession not withstanding the limited state of the ev-identiary record. The court recognized that the voluntariness of the confession must be evaluated on the totality of the circumstances, and it identified the range of circumstances that are relevant. App. Ct. Order at ll. However, the court observed that the exclusive focus of Gilbert’s arguments in the post-conviction court and on appeal was on his inability to speak with his mother before or during his interrogation. App. Ct. Order at 12. It was undisputed that Gilbert’s mother had not been permitted to see him at any time prior to his confession; the only question was the import of his sequestration from her. Gilbert’s assertion, as the appellate court understood it, was that (in view of his age) the absence of his mother during questioning in and of itself compelled the conclusion that his confession was involuntary. App. Ct. Order at 12. But as the appellate court correctly recognized, the absence of a parent is not dispositive: it is the totality of the circumstances underlying a juvenile confession, rather than the presence or absence of a single circumstance, that determines whether or not the confession should be deemed voluntary. Michael C., 442 U.S. at 724-27, 99 S.Ct. at 2571-73; Bridges, 447 F.3d at 997," } ]

[ { "docid": "22731025", "title": "", "text": "would only do so if the right to such payment was the exclusive remedy and they would not be subject to additional law suits because of that injury. “Since 1946, due to a number of decisions by the U. S. Supreme Court [starting with Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946)], it has been possible for an injured longshoreman to avail himself of the benefits of the Longshoremen’s and Harbor Workers’ Compensation Act and to sue the owner of the ship on which he was working for damages as a result of this injury. The Supreme Court has ruled that such ship owner, under the doctrine of seaworthiness, was liable for damages caused by any injury regardless of fault. In addition, [under the ruling of Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956),] shipping companies generally have succeeded in recovering the damages for which they are held liable to injured longshoremen from the stevedore on theories of express or implied warranty, thereby transferring their liability to the stevedore company, the actual employer of the longshoremen.” S. Rep. 4. “The end result is that, despite the provision in the Act which limits an employer’s liability to the compensation and medical benefits provided in the Act, a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel under the unseaworthiness doctrine.” Id., at 9. “The social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers’ services have seldom resulted in a real increase in actual benefits for injured workers.” Id., at 4. See Pub. L. 92-576, §§ 5-11,18, 86 Stat. 1253. S. Rep. 12-13. This appears in the section of the report called Extension of Coverage to Shoreside Areas. The House Report, H. R. Rep. No. 92-1441, pp. 10-11 (1972) (hereinafter H. R. Rep.) contains the identical section. 33 U. S. C. §903 (1970 ed., Supp. Y). Congress also removed the provision that precluded federal recovery if a state workmen's compensation remedy were available. It retained the" } ]

[ { "docid": "23065359", "title": "", "text": "the Canal Zone will be dismantled. Given this time constraint, we think the district court did not abuse its discretion by reentering its order certifying the interlocutory appeal. We turn then to the merits of this case. II. To determine what effect, if any, the 1972 amendments to the LHWCA had on those members of the jurisprudentiallycreated class of Sieracki seamen who are not covered by that act, we first review the pre-amendment case-law and examine the legislation and its legislative history before we assess the impact of the congressional action on the remedies available under the Sieracki-Ryan construct. A. Pre-1972 LHWCA Amendments. The Supreme Court held in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), that a longshoreman who does work that has customarily been done by seamen has an action against the vessel owner for damages based on the unseaworthiness of - the vessel even though he is covered by a compensation act. The longshoreman is considered a seaman pro hoc vice. Seas Shipping Co., v. Sieracki, 328 U.S. at 99, 66 S.Ct. at 880, 90 L.Ed. at 1109. The strict liability action is allowed even though the vessel owner is the longshore man’s employer. Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Jackson v. Lykes Bros. S. S. Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967). See G. Gilmore & C. Black, The Law of Admiralty 444 — 46 (2d ed. 1975). Thus the vessel and its owner become, under some circumstances, liable to the injured longshoreman both in compensation and in tort. Vessel owners who employed independent stevedores succeeded in shifting their unseaworthiness liability to the longshoreman’s stevedore-employer. In Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Supreme Court recognized a warranty of workmanlike service running from the stevedore to the vessel. If the unseaworthy condition of the vessel is chargeable to the stevedore’s breach of this implied warranty, the shipowner liable to a Sieracki seaman is entitled to" }, { "docid": "22704025", "title": "", "text": "of the winch had caused the initial spillage of the sacks, thus necessitating a cleanup, or had later been the proximate cause of the additional sacks falling from the pallet and injuring Santos. Accordingly, the Court of Appeals set aside the judgment of the District Court and remanded for further proceedings. II Initially, we must briefly revisit the 1972 Amendments to the Act. Prior to 1972, a longshoreman injured while loading or unloading a ship could receive compensation payments and also have judgment against the shipowner if the injury was caused by the ship’s unseaworthiness or negligence. Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Proof of unseaworthiness required no proof of fault on the part of the shipowner other than an unsafe, injury-causing condition on the vessel. This was true even though the condition was caused, created, or brought into play by the stevedore or its employees. In the latter event, the shipowner could recover over against a stevedore for breach of express or implied warranty to handle the cargo in a reasonably safe manner. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956). The 1972 Amendments, particularly by adding § 905 (b), radically changed this scheme of things. The compensation payments due the longshoreman from the stevedore for injuries incurred in the course of his employment were substantially increased; the longshoreman’s right to recover for unseaworthiness was abolished; his right to recover from the shipowner for negligence was preserved in § 905 (b), which provided a statutory negligence action against the ship; and the stevedore’s obligation to indemnify the shipowner if the latter was held liable to the longshoreman was abolished. Section 905 (b) did not specify the acts or omissions of the vessel that would constitute negligence. In light of the differences among the lower federal courts as to the construction and application of § 905 (b), neither can it be said that the legislative history, which has been analyzed and reanalyzed in the course of these cases, furnishes sure guidance for construing § 905 (b). Much was left to be resolved" }, { "docid": "936620", "title": "", "text": "amendments to the LHWCA, a longshoreman injured while performing stevedoring operations was entitled to compensation benefits and judgment against the vessel if the injury was caused by unseaworthiness or negligence attributable to the vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Liability for unseaworthiness was imposed without regard to fault; the injured person had only to prove an unsafe, injury-causing condition on the vessel. If the injury-causing condition was occasioned by the stevedore, the shipowner could recoup its losses from the stevedore for breach of the warranty to handle the cargo in a reasonably safe manner. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The 1972 amendments made dramatic changes beyond substantially increasing benefits. The longshoreman’s right to recover for unseaworthiness and the stevedore’s obligation to indemnify the shipowner were abolished. The longshoreman’s right to recover for negligence was preserved by section 905(b), but the section did not specify what acts or omissions would constitute actionable negligence. The legislative history provides only limited assistance and, perhaps not unexpectedly, a divergence of opinion developed among the circuits. The divergence was most critical concerning the vessel’s duty when hazardous conditions arose during the stevedoring operations. The Scindia decision seeks to resolve that conflict. In Scindia, a defective ship’s winch that was being operated by longshoremen caused a sack of wheat to fall and injure a longshoreman. The longshoremen were aware that the winch had been malfunctioning for two days but continued to use it. There was no evidence that any member of the ship’s crew was aware of the malfunction. In considering the ship’s negligence, the Supreme Court first observed that “the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore.” 451 U.S. at 172, 101 S.Ct. at 1624. The Court went on to state, however, that if a defect exists from the outset of the stevedoring operation, or if" }, { "docid": "8961745", "title": "", "text": "also sued Kerr-McGee, time-charterer of the C.C. RIDER, for vessel negligence as authorized by section 5(b) of the LHWCA. We now consider whether the district court erred in overruling Kerr-McGee’s motion for directed verdict and for judgment n.o.v. on Lyons’ section 5(b) claim on the ground that as a time-charterer Kerr-McGee was not guilty of or responsible for any of the vessel negligence shown. Section 5 (now section 5(a)) of the original 1927 Act expressly stated that LHWCA compensation was the exclusive remedy for covered employees against their employer. However, the combined effect of two prominent Supreme Court cases—Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) —undermined this exclusivity in some circumstances by permitting an injured long shoreman to bring an unseaworthiness action against the shipowner, who was then permitted to bring an indemnity action against the stevedore employer. See generally Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 1620-21, 68 L.Ed.2d 1 (1981); G. Gilmore & C. Black, The Law of Admiralty, § 6-46 at 410-11 (1975). Two subsequent Supreme Court cases pushed SierackiRyan a step further by permitting a longshoreman to bring an unseaworthiness claim against the shipowner even if the shipowner was also his employer. Reed v. Steamship Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967). Reed and Jackson rested on the notion that a longshoreman employed by the shipowner should have the same remedies as those employed by third parties. This was where matters stood when Congress amended the Act in 1972. In the 1972 amendments, Congress retained the exclusivity provision — section 5 — as new section 5(a), and added subsection (b), which permits covered employees to sue the “vessel” for its negligence, but overrules that part of Sieracki that allowed unseaworthiness claims. See Edmonds v. Compagnie Generate Transatlantique, 443 U.S. 256, 99 S.Ct. 2753," }, { "docid": "17344586", "title": "", "text": "ship’s winch and boom broke, sought to sue the ship and its owner for damages. The Court held that the ship’s obligation of seaworthiness, traditionally owed by ships to seamen, extended to a stevedore who was injured while aboard the vessel and incurring seamen’s hazards. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The unseaworthiness claim so authorized omitted any requirement that a shipowner’s negligence or fault'in causing the injury be proven. In Sieracki, the Court stated that its holding did not conflict with the Longshore Act because the LHWCA did not foreclose personal injury actions under general admiralty law except against the employer. Id. at 101, 66 S.Ct. at 880. Commentators have since suggested that Sieracki was a direct result of the failure of Congress to improve the paltry compensation payable under the LHWCA and raise the incentives for safety in the shipping industry. G. Gilmore & C. Black, The Law of Admiralty at 446-48. Ten years later, with “Sieracki -seamen” suits flourishing, the Court was again confronted with a seeming inequity. The absolute nondelegable seaworthiness warranty imposed upon a shipowner had resulted in shipowner liability even where others, chiefly the stevedoring companies, were responsible for the workers’ injuries. In Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Court decided that the vessel could recover the damages for which it was liable to the injured longshoreman from the stevedore company if it had breached an express or implied warranty of workmanship performance owed the vessel. Thus was erected the final leg of the triangular damage suits which had originated with Sieracki. Congress undertook a comprehensive reform of the Longshore Act in 1972, including as a prime element the abolition of the Sieracki-Ryan unseaworthiness action for covered workers. See Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir.1981). In its place a complex quid pro quo was effectuated which included for covered workers higher compensation for injuries, and the option of bringing a negligence action against the vessel if the injury was" }, { "docid": "1458838", "title": "", "text": "been available only to seamen. Because the responsibility of a vessel to be in seaworthy condition calls for strict liability, regardless of fault, the vessel could be liable to longshoremen, notwithstanding that the unseaworthy condition may have been caused by the stevedore and not by the vessel’s crew. See H.R.Rep. No. 92-1441, 1972 U.S.C.C.A.N. at 4702; see also Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164-65, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Second, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 850 U.S. 124, 132-35, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Supreme Court held that the vessel could seek indemnity from the stevedore-employer for the vessel’s liability to an injured longshoreman-employee for unseaworthiness, based on the theory that the stevedore had breached an express or implied warranty of workmanlike performance to the vessel. In this manner, the stevedore-employer became indirectly liable in maritime tort to its injured longshoreman-employee under the no-fault doctrine of unseaworthiness, notwithstanding that the LHWCA provided that the stevedore-employer’s exclusive liability to its injured employees was for the statutory compensation payments. See 33 U.S.C. §§ 904, 905(a). In effect, the injured employee could get tort damages from his employer despite the statutory proscription against suing his employer directly. The 1972 Amendments made substantial changes to this framework. The statutory compensation benefits provided under the LHWCA were substantially increased. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261-62, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). At the same time, section 5(b) of the LHWCA, 33 U.S.C. § 905(b), was amended to overrule Sieracki and Ryan. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 262, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). The longshoreman-employee’s right to recover for unseaworthiness was abolished; his right to recover from the vessel was preserved but was limited to an action for negligence; and the vessel owner’s right to indemnity from the stevedore was abolished. See Scindia, 451 U.S. at 165, 101 S.Ct. 1614. Under these amendments, section 905(b) provided in relevant part: In the event of injury to a person covered under this" }, { "docid": "22836508", "title": "", "text": "“a matter of judgment committed to the stevedore in the first instance”). The stevedore’s obligations in this regard may not be diminished by transferring them to the vessel. Given the legal and practical realities of the maritime trade, we concluded in Scindia Steam that imposing a duty upon vessels to supervise and inspect cargo operations for the benefit of longshoremen then on board would undermine Congress’ intent in §5(b) to terminate the vessel’s “automatic, faultless responsibility for conditions caused by the negligence or other defaults of the stevedore,” id., at 168, and to foreclose liability “based on a theory of unseaworthiness or nondelegable duty,” id., at 172. Agreeing with the Court, Justice Powell further observed that imposing such a duty — in light of the stevedore-employer’s right to receive reimbursement for its payment of statutory compensation if a longshoreman prevails in a § 5(b) action against a vessel, see Edmonds v. Compagnie Generale Transatlantique, 443 U. S., at 269-270— would “decrease significantly the incentives toward safety of the party in the best position to prevent injuries.” Scindia Steam, supra, at 181 (concurring opinion); see also Edmonds, supra, at 274 (Blackmun, J., dissenting). It is also worth noting that an injured longshoreman’s acceptance of statutory compensation operates as an assignment to the stevedore-employer of the longshoreman’s right to bring suit against the vessel, so long as the longshoreman does not sue within six months of accepting compensation. 33 U. S. C. § 933(b). Were we to have accepted the longshoreman’s contentions in Scindia Steam, we would have run the risk of promoting the kind of collateral litigation between stevedores and vessels (albeit in a different guise) that had consumed an intolerable amount of litigation costs prior to the 1972 Amendments. See Gilmore & Black §6-46, at 411. The foregoing principles, while taken from Scindia Steam’s examination of the vessel’s duty to intervene, bear as well on the nature of the vessel’s turnover duty, and hence on the case before us. We consider first Hewlett's view that a vessel must make reasonable inspections during stevedoring operations to ensure a proper stow and" }, { "docid": "22704031", "title": "", "text": "oversee the stevedore’s activity and insure the safety of longshoremen would . . . saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate by amending section 905 (b).” Hurst v. Triad Shipping Co., 554 F. 2d 1237, 1249-1250, n. 35 (CA3 1977); Evans v. S.S. “Campeche,” 639 F. 2d 848, 856 (CA2 1981). As a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards. Section 41 of the Act, 33 U. S. C. § 941, requires the stevedore, the longshoremen’s employer, to provide a “reasonably safe” place to work and to take such safeguards with respect to equipment and working conditions as the Secretary of Labor may determine to be necessary to avoid injury to longshoremen. The ship is not the common employer of the longshoremen and owes no such statutory duty to them. Furthermore, as our cases indicate, the stevedore normally warrants to discharge his duties in a workmanlike manner; and although the 1972 Amendments relieved the stevedore of his duty to indemnify the shipowner for damages paid to longshoremen for injuries caused by the stevedore’s breach of warranty, they did not otherwise disturb the contractual undertaking of the stevedore nor the rightful expectation of the vessel that the stevedore would perform his task properly without supervision by the ship. The approach of the indemnity cases in this Court, beginning with Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956), was that the stevedore was in the best position to avoid accidents during cargo operations and that the shipowner could rely on the stevedore’s warranty to perform competently. In Italia Societa v. Oregon Stevedoring Co., 376 U. S. 315 (1964), for example, the vessel was found liable for injuries to a longshoreman caused by an unsea-worthy condition arising when the stevedore, without negligence, supplied defective equipment used in handling the cargo. We held the vessel entitled to recover over against the stevedore, saying: “Oregon, a specialist in stevedoring, was hired to load and unload the petitioner’s vessels and to supply the ordinary" }, { "docid": "22209414", "title": "", "text": "at 2. During the hearings on the 1959 amendments, the rule that an employer would not be required to bear a proportionate share of the longshoreman’s cost of recovery was specifically drawn to Congress’ attention, and one witness suggested that it should be abandoned. Instead, Congress elected not to disturb the existing rule. Recognizing that no change had been contemplated, the courts continued to hold that a stevedore would not be required to bear a proportionate share of the longshoreman’s legal expenses. See Haynes v. Rederi A/S Aladdin, 362 F. 2d 345 (CA5 1966); Ashcraft & Gerel v. Liberty Mutual Ins. Co., 120 U. S. App. D. C. 51, 343 F. 2d 333 (1965); Petition of Sheffield Tankers Cory., 222 F. Supp. 441 (ND Cal. 1963). In 1972, Congress enacted more extensive Amendments to the Act, see Edmonds v. Compagnie Oenerale Transatlantique, 443 U. S. 256, 262 (1979), and it is these Amendments that according to petitioner, justify a change in the rule with respect to attorney’s fees. Concerned that compensation benefits had been far too low, Congress altered the benefit structure of the Act so as to increase both maximum and minimum benefits substantially. These increases were linked to two provisions designed to reduce litigation and to ensure that stevedores would have sufficient funds to pay the additional compensation. First, Congress abolished the unseaworthiness remedy for longshoremen, recognized in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), and limited the longshoreman’s action against the shipowner to one based on negligence. Second, Congress eliminated the third-party action by the shipowner against the stevedore, recognized-in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956). In that case the Court held that a shipowner could obtain damages from the stevedore when it showed that the stevedore had breached its warranty to the shipowner of workmanlike service. As the House Report notes, the consequence was that “a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel,” with the result “that much of the financial resources which could better" }, { "docid": "22836498", "title": "", "text": "U. S. C. §§ 904, 905(a); Norris, supra, §§4:7-4:10. The longshoreman also may seek damages in a third-party negligence action against the owner of the vessel on which he was injured, and may do so without forgoing statutory compensation if he follows certain procedures. See Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469 (1992). Section 5(b) provides in relevant part: “In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party ..., and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.... The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred.” 33 U. S. C. § 905(b). This provision, enacted as part of the extensive 1972 amendments to the Act, effected fundamental changes in the nature of the third-party action. First, it abolished the longshoreman’s pre-existing right to sue a shipowner based upon the warranty of seaworthiness, a right that had been established in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Section 5(b) also eliminated the stevedore’s obligation, imposed by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956), to indemnify a shipowner, if held liable to a longshoreman, for breach of the stevedore’s express or implied warranty to conduct cargo operations with reasonable safety. See generally Scindia Steam Nav. Co. v. De los Santos, 451 U. S. 156, 165 (1981); G. Gilmore & C. Black, Law of Admiralty §6-57, pp. 449-455 (2d ed. 1975) (hereinafter Gilmore & Black). Other sections of the 1972 amendments provided for a substantial increase in the statutory benefits injured longshoremen are entitled to receive from their stevedore-employers. See Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 261-262 (1977); Gilmore & Black §6-46, at 411; Note, 13 Tulane Mar. L. J. 163, 163-164" }, { "docid": "1458837", "title": "", "text": "from tort liability under section 905(a)) and vessel owner (against which liability for negligence may lie under section 905(b)). This question requires an understanding of the significant amendments to the LHWCA enacted by the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, Pub.L. No. 92-576, 86 Stat. 1251 (hereafter “1972 Amendments”). Prior to 1972, the exclusivity of the employer’s liability under section 905 had been severely undermined as a result of two Supreme Court decisions. See generally H.R.Rep. No. 92-1441 (1972), reprinted in 1972 U.S.C.C.A.N. 4698. First, in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95-96, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the Supreme Court held that longshoremen and other employees covered under the LHWCA, who were injured while working on a vessel, were entitled to maintain an action against the vessel, as a third party, based on the theory of unseaworthiness — a doctrine of strict liability. Under Sieracki, vessels were liable as third parties to longshoremen for injuries resulting from the vessels’ “unseaworthy” condition. An action for unseaworthiness had previously been available only to seamen. Because the responsibility of a vessel to be in seaworthy condition calls for strict liability, regardless of fault, the vessel could be liable to longshoremen, notwithstanding that the unseaworthy condition may have been caused by the stevedore and not by the vessel’s crew. See H.R.Rep. No. 92-1441, 1972 U.S.C.C.A.N. at 4702; see also Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164-65, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Second, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 850 U.S. 124, 132-35, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Supreme Court held that the vessel could seek indemnity from the stevedore-employer for the vessel’s liability to an injured longshoreman-employee for unseaworthiness, based on the theory that the stevedore had breached an express or implied warranty of workmanlike performance to the vessel. In this manner, the stevedore-employer became indirectly liable in maritime tort to its injured longshoreman-employee under the no-fault doctrine of unseaworthiness, notwithstanding that the LHWCA provided that the stevedore-employer’s exclusive liability to its injured employees" }, { "docid": "22836507", "title": "", "text": "“the justifiable expectations of the vessel that the stevedore would perform with reasonable competence and see to the safety of the cargo operations.” Ibid.; see also Hugev v. Dampskisaktieselskabet Int’l, 170 F. Supp. 601, 609-610 (SD Cal. 1959), aff’d sub nom. Metropolitan Stevedore Co. v. Dampskisaktieselskabet Int’l, 274 F. 2d 875 (CA9), cert. denied, 363 U. S. 803 (1960). These expectations derive in part from §41 of the Act, 33 U. S. C. §941, which requires the stevedore, as the longshoreman’s employer, to provide a “reasonably safe” place to work and to take safeguards necessary to avoid injuries. Scindia Steam, 451 U. S., at 170. The expectations also derive from indemnity cases decided prior to the 1972 Act, which teach that “the stevedore [is] in the best position to avoid accidents during cargo operations” and that “the shipowner [can] rely on the stevedore’s warranty to perform competently.” Id., at 171, citing Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315 (1964); see also 451 U. S., at 175 (safety is “a matter of judgment committed to the stevedore in the first instance”). The stevedore’s obligations in this regard may not be diminished by transferring them to the vessel. Given the legal and practical realities of the maritime trade, we concluded in Scindia Steam that imposing a duty upon vessels to supervise and inspect cargo operations for the benefit of longshoremen then on board would undermine Congress’ intent in §5(b) to terminate the vessel’s “automatic, faultless responsibility for conditions caused by the negligence or other defaults of the stevedore,” id., at 168, and to foreclose liability “based on a theory of unseaworthiness or nondelegable duty,” id., at 172. Agreeing with the Court, Justice Powell further observed that imposing such a duty — in light of the stevedore-employer’s right to receive reimbursement for its payment of statutory compensation if a longshoreman prevails in a § 5(b) action against a vessel, see Edmonds v. Compagnie Generale Transatlantique, 443 U. S., at 269-270— would “decrease significantly the incentives toward safety of the party in the best position to prevent" }, { "docid": "3096418", "title": "", "text": "unless the possessor should anticipate the harm despite such knowledge or obviousness. Second, relying on Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the district court held that the shipowner may be liable if the ship’s gear malfunctions during unloading and the stevedore’s decision to continue to use the malfunctioning gear is “so obviously improvident” that “an unreasonable risk of harm to the longshoremen” is created. Applying these principles, the district court found that Hango should not have anticipated the harm which occurred, apparently on the grounds that (1) the injury was so unprecedented that it was not reasonably foreseeable, and (2) the shipowner was entitled to rely on the stevedore to select unloading equipment which would rectify the open and obvious danger posed by the manner in which the cargo was stowed. As to the duty of care set forth in Scindia, the district court held that it had not been breached in this case because (1) the malfunctioning gear was provided by the stevedore, not the shipowner, and (2) the stevedore’s decision to use the breakout clamps was not “obviously improvident.” Although we agree, in large part, with the district court’s description of a shipowner’s responsibilities vis-a-vis longshoremen during unloading operations, we do not agree with the conclusion that Hango was not responsible for plaintiff’s injury in this ease as a matter of law. II. Prior to the 1972 amendments to the Act, a longshoreman injured while unloading a vessel could recover from the shipowner if the injury was caused by the ship’s unseaworthiness or negligence. Scindia, 451 U.S. at 163-164, 101 S.Ct. at 1619-1620, 68 L.Ed.2d at 10-11. Unseaworthiness of the vessel was proven solely by showing the existence of an unsafe condition on the vessel; the shipowner was liable to the injured longshoreman without proof of fault on its part if that unsafe condition caused or contributed to the longshoreman’s injury, and liable even if the unsafe condition was caused or created by the longshoreman’s employer, the stevedore. Id. at 164, 101 S.Ct. at 1620, 68" }, { "docid": "22836500", "title": "", "text": "(1988). The design of these changes was to shift more of the responsibility for compensating injured longshoremen to the party best able to prevent injuries: the stevedore-employer. See Scindia Steam, 451 U. S., at 171. Subjecting vessels to suit for injuries that could be anticipated and prevented by a competent stevedore would threaten to upset the balance Congress was careful to strike in enacting the 1972 amendments. The question whether Howlett produced evidence sufficient to hold Birkdale liable for his injuries turns on the meaning of the term “negligence” in §5(b). Because Congress did not “specify the acts or omissions of the vessel that would constitute negligence,” the contours of a vessel’s duty to longshoremen are “left to be resolved through the ‘appli cation of accepted principles of tort law and the ordinary process of litigation.’” Id., at 165-166. The starting point in this regard must be our decision in Scindia Steam, which outlined the three general duties shipowners owe to longshoremen. The first, which courts have come to call the “turnover duty,” relates to the condition of the ship upon the commencement of stevedoring operations. See id., at 167. The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the “active control of the vessel.” Ibid. The third duty, called the “duty to intervene,” concerns the vessel’s obligations with regard to cargo operations in areas under the principal control of the independent stevedore. See id., at 167-178. The allegations of Howlett’s complaint, and the facts adduced during pretrial proceedings, implicate only the vessel’s turnover duty. We provided a brief statement of the turnover duty in Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U. S. 404 (1969): A vessel must “exercise ordinary care under the circumstances” to turn over the ship and its equipment and appliances “in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the" }, { "docid": "22836499", "title": "", "text": "changes in the nature of the third-party action. First, it abolished the longshoreman’s pre-existing right to sue a shipowner based upon the warranty of seaworthiness, a right that had been established in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Section 5(b) also eliminated the stevedore’s obligation, imposed by Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956), to indemnify a shipowner, if held liable to a longshoreman, for breach of the stevedore’s express or implied warranty to conduct cargo operations with reasonable safety. See generally Scindia Steam Nav. Co. v. De los Santos, 451 U. S. 156, 165 (1981); G. Gilmore & C. Black, Law of Admiralty §6-57, pp. 449-455 (2d ed. 1975) (hereinafter Gilmore & Black). Other sections of the 1972 amendments provided for a substantial increase in the statutory benefits injured longshoremen are entitled to receive from their stevedore-employers. See Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 261-262 (1977); Gilmore & Black §6-46, at 411; Note, 13 Tulane Mar. L. J. 163, 163-164 (1988). The design of these changes was to shift more of the responsibility for compensating injured longshoremen to the party best able to prevent injuries: the stevedore-employer. See Scindia Steam, 451 U. S., at 171. Subjecting vessels to suit for injuries that could be anticipated and prevented by a competent stevedore would threaten to upset the balance Congress was careful to strike in enacting the 1972 amendments. The question whether Howlett produced evidence sufficient to hold Birkdale liable for his injuries turns on the meaning of the term “negligence” in §5(b). Because Congress did not “specify the acts or omissions of the vessel that would constitute negligence,” the contours of a vessel’s duty to longshoremen are “left to be resolved through the ‘appli cation of accepted principles of tort law and the ordinary process of litigation.’” Id., at 165-166. The starting point in this regard must be our decision in Scindia Steam, which outlined the three general duties shipowners owe to longshoremen. The first, which courts have come to call the “turnover duty,” relates to" }, { "docid": "18889634", "title": "", "text": "and appreciated it. See Scindia, 451 U.S. at 165 n. 13, 101 S.Ct. at 1621 n. 13; supra at 543-44 (defining obviousness). Scindia does not require us to treat long-shore workers as experts and experienced for purposes of the active operations duty. The Supreme Court’s reference to an “experienced stevedore” in Scindia was premised on the 1972 amendments to the Act eliminating the vessel’s theretofore strict liability to longshore workers for injuries they sustained on account of the stevedore’s negligence in its cargo operations, not the vessel’s negligence in its active operations. Specifically, Scindia articulated that Congress amended § 5(b) of the Act in 1972 “to eliminate the vessel’s liability without fault” by confining a vessel’s liability to its own negligence “ ‘rather than the [theretofore controlling] no-fault concept of seaworthiness.’ ” Derr, 835 F.2d at 492 (quoting H.R.Rep. No. 1441, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4698, 4703). Our holdings with respect to the active operations duty comport with that mandate completely. F. The Legal and Legislative History of the Act Before concluding, it will be valuable to demonstrate how the standards we have set forth interact with the other Scindia duties to implement the workers’ compensation scheme Congress intended to erect with the Act. The confounding problem Congress confronted regarding liability to longshore workers suffering work-related injuries in their perilous trade was to apportion liability between the stevedore/employer and the vessel/contractor. Congress intended the 1927 Act (before the 1972 amendments) to institute a workers’ compensation scheme, with its attendant advantages and disadvantages, see Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 140-41, 76 S.Ct. 232, 240-41, 100 L.Ed. 133 (1956) (Black, J., concurring), for longshore and other harbor workers, but Congress apparently gave little thought to the fact that longshore workers ‘“regularly work on premises (i.e., ships) owned by third parties (shipowners) which are temporarily relinquished to the employers (master stevedores).’ ” Hurst, 554 F.2d at 1242 (quoting Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 6-46, at 410 (2d ed. 1975)). The implications of Congress’ oversight were soon" }, { "docid": "22836509", "title": "", "text": "injuries.” Scindia Steam, supra, at 181 (concurring opinion); see also Edmonds, supra, at 274 (Blackmun, J., dissenting). It is also worth noting that an injured longshoreman’s acceptance of statutory compensation operates as an assignment to the stevedore-employer of the longshoreman’s right to bring suit against the vessel, so long as the longshoreman does not sue within six months of accepting compensation. 33 U. S. C. § 933(b). Were we to have accepted the longshoreman’s contentions in Scindia Steam, we would have run the risk of promoting the kind of collateral litigation between stevedores and vessels (albeit in a different guise) that had consumed an intolerable amount of litigation costs prior to the 1972 Amendments. See Gilmore & Black §6-46, at 411. The foregoing principles, while taken from Scindia Steam’s examination of the vessel’s duty to intervene, bear as well on the nature of the vessel’s turnover duty, and hence on the case before us. We consider first Hewlett's view that a vessel must make reasonable inspections during stevedoring operations to ensure a proper stow and to detect any hazards or defects before they become hidden. The beneficiaries of this proposed duty would be longshoremen who unload or otherwise deal with the cargo at later ports. But if, as we held in Scindia Steam, a vessel need not supervise or inspect ongoing cargo operations for the benefit of longshoremen then on board, it would make little sense to impose the same obligation for the benefit of longshoremen at subse quent ports. In practical effect, then, adopting Howlett’s proposal would impose inconsistent standards upon shipowners as to different sets of longshoremen, and would render much of our holding in Scindia Steam an empty gesture. These concerns are mitigated somewhat when a longshoreman, such as Howlett, works on cargo stowed in a foreign port and undisturbed by longshoremen in a prior American port of call. Foreign longshoremen are not covered by the Act, so requiring vessels to supervise and inspect a foreign stevedore’s ongoing operations would not be inconsistent with the precise rule laid down in Scindia Steam. This consideration, however, does not" }, { "docid": "936619", "title": "", "text": "to the longshoremen. II. Section 905(b) Liability We must determine the extent of a vessel’s duty to longshoremen under 33 U.S.C. § 905(b), and the impact, if any, of the recent Supreme Court decision in Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), on the law in this circuit concerning the specific negligence issue now under consideration. If Scindia changed the law as previously applied in this circuit we must examine the present case in light of the new standards. If Scindia occasions no change regarding the situation before us, we must determine whether the trial judge correctly applied the controlling rules. We conclude that Scindia did not change the pertinent law heretofore recognized in this circuit regarding the narrow issue here presented and that the trial judge committed no error in resolving the liability issue. The Sandia Rule A brief overview of the development of shipowners’ liability to injured longshoremen is helpful in placing the Scindia decision in proper perspective. Prior to the 1972 amendments to the LHWCA, a longshoreman injured while performing stevedoring operations was entitled to compensation benefits and judgment against the vessel if the injury was caused by unseaworthiness or negligence attributable to the vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Liability for unseaworthiness was imposed without regard to fault; the injured person had only to prove an unsafe, injury-causing condition on the vessel. If the injury-causing condition was occasioned by the stevedore, the shipowner could recoup its losses from the stevedore for breach of the warranty to handle the cargo in a reasonably safe manner. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The 1972 amendments made dramatic changes beyond substantially increasing benefits. The longshoreman’s right to recover for unseaworthiness and the stevedore’s obligation to indemnify the shipowner were abolished. The longshoreman’s right to recover for negligence was preserved by section 905(b), but the section did not specify what acts or omissions would constitute actionable negligence. The" }, { "docid": "23065360", "title": "", "text": "Sieracki, 328 U.S. at 99, 66 S.Ct. at 880, 90 L.Ed. at 1109. The strict liability action is allowed even though the vessel owner is the longshore man’s employer. Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Jackson v. Lykes Bros. S. S. Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967). See G. Gilmore & C. Black, The Law of Admiralty 444 — 46 (2d ed. 1975). Thus the vessel and its owner become, under some circumstances, liable to the injured longshoreman both in compensation and in tort. Vessel owners who employed independent stevedores succeeded in shifting their unseaworthiness liability to the longshoreman’s stevedore-employer. In Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Supreme Court recognized a warranty of workmanlike service running from the stevedore to the vessel. If the unseaworthy condition of the vessel is chargeable to the stevedore’s breach of this implied warranty, the shipowner liable to a Sieracki seaman is entitled to full indemnity from the stevedore-employer. Because the shipowner’s recovery is based on a contractual right to indemnity, the indemnity is due the vessel despite the limitation in the LHWCA, 33 U.S.C. § 905, restricting the employer’s liability to compensation payments. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. at 128-30, 76 S.Ct. at 234-36, 100 L.Ed. at 138-39. See generally G. Gilmore & C. Black, The Law of Admiralty 438-46 (2d ed. 1975). Federally-employed harbor workers are not covered by the LHWCA but by a separate compensation statute, FECA. We have held that a federal employee engaged, as were all four plaintiffs in this case, as a linehandler in the Panama Canal Zone is entitled to Sieracki seaman status and the right to bring an action for unseaworthiness against the vessel on which he was injured while aiding in the vessel’s navigation of the Canal. Sandoval v. Mitsui Sempaku K. K. Tokyo, 460 F.2d 1163 (5th Cir. 1972). The vessel owner was permitted to bring the Ryan indemnity action against the Panama Canal Company" }, { "docid": "22209415", "title": "", "text": "too low, Congress altered the benefit structure of the Act so as to increase both maximum and minimum benefits substantially. These increases were linked to two provisions designed to reduce litigation and to ensure that stevedores would have sufficient funds to pay the additional compensation. First, Congress abolished the unseaworthiness remedy for longshoremen, recognized in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), and limited the longshoreman’s action against the shipowner to one based on negligence. Second, Congress eliminated the third-party action by the shipowner against the stevedore, recognized-in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956). In that case the Court held that a shipowner could obtain damages from the stevedore when it showed that the stevedore had breached its warranty to the shipowner of workmanlike service. As the House Report notes, the consequence was that “a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel,” with the result “that much of the financial resources which could better be utilized to pay improved compensation benefits were now being spent to defray litigation costs.” H. R. Rep. No. 92-1441, p. 5 (1972); see S. Rep. No. 92-1125, p. 9 (1972). Indeed, there was considerable testimony during the hearings that third-party actions had resulted in congested courts and that the primary beneficiaries had been lawyers, not injured longshoremen. The Senate Report stated that \"[t]he social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers’ services have seldom resulted in a real increase in actual benefits for injured workers.” Id., at 4. The elimination of the shipowner’s cause of action against the stevedore was intended to reduce litigation, immunize stevedores and their insurers from liability in third-party actions, and assure conservation of stevedore resources for compensation awards to longshoremen. Witnesses also brought to the attention of Congress the longstanding rule that an employer could recover the full amount of its compensation award from the longshoreman’s recovery against the shipowner. Congress did not, however, enact any legislation concerning" } ]

[ { "docid": "22844792", "title": "", "text": "Nichols, Judge, delivered tbe opinion of tbe court: This case is a petition for a redetermination of excessive profits under Section 108 of tbe Eenegotiation Act of 1951, 50 U.S.C. App. § 1218, as amended by P.L. 92-41, 85 Stat. 97 (1971). 'Petitioner, a closely held corporation, during its fiscal year ended May 31, 1967, bad manufactured and sold wire rope assemblies and fittings, nylon cargo nets, sling cargo nets and cargo sets. Its renegotiable sales, according to tbe petition, were $3,875,535 and its renegotiable net profit was $117,969, of which tbe Eenegotiation Board determined that $125,000 was excessive. Plaintiff has not paid tbe refund and bas not filed a bond to stay the execution of tbe Board’s order. It says it is unable to do so because it is insolvent and in bankruptcy. It is said a bank bas seized all its assets. Defendant would have us default tbe plaintiff, or, in the alternative, enter a judgment in aid of execution of the Board’s order. Plaintiff says that each alternative, if adopted, would effect an unconstitutional denial of due process of law. Tbe statute cited above does not prescribe any consequence of not filing a bond except that execution of tbe Board’s order is not stayed. Tbe seminal Eenegotiation Act of 1943 (Section 701 (b) of the Revenue Act of 1943, P.L. No. 78-235, 58 Stat. 21, approved February 25, 1944) expressly provided that the filing of a petition for redetermination (then in the Tax Court): shall not operate to stay the execution of the order of the Board * * * (Sec. 701(e)(1)). Upon making an agreement or entering an order the Board was to direct the service Secretaries to eliminate excessive profits by withholding from amounts otherwise due the contractor, or by action in the “appropriate courts of the United States” (Sec. 701(c)(2)(e)). The Tax Court was not an “appropriate court” and 'Government suits were always in the District Courts. When an order was appropriately enforceable as a counterclaim, the Court of Claims was also an “appropriate court.” Frantz Equipment Co. v. United States, 122 Ct. Cl." } ]

[ { "docid": "16540642", "title": "", "text": "relevant the analogy to contract-appeals litigation (administrative and judicial) — the cost of which would not be reimbursable under the ASPR clause. The informal negotiation which characterizes proceedings before the Renegotiation Board also accurately portrays the process occurring between a contractor and the contracting officer when attempts are first made to resolve \"under the contract” disputes. Similarly, in each type of proceeding, the reaching of an agreement (between the contractor and the Renegotiation Board, or between the contractor and the contracting officer) finally resolves the dispute. Moreover, failure to reach an agreement initiates a similar process in each type of proceeding; under the Renegotiation Act, if negotiations reach an impasse, the statutory board issues a unilateral order which becomes final and conclusive if not contested within 90 days, 50 U.S.C. App. § 1215 (1970 & Supp. V 1975), while decisions of the contracting officer concerning a dispute are also final unless appealed to a board of contract appeals within 30 days of receipt, Standard Disputes Clause, Standard Form 23-A (October 1969). When the unilateral order or a contracting officer’s final decision is appealed, the contractor receives a de novo determination in the Court of Claims or before a board of contract appeals. 50 U.S.C. App. § 1218 (1970 & Supp. V 1975); Southwest Welding & Mfg. Co. v. United States, 188 Ct. Cl. 925, 954, 413 F.2d 1167, 1184-85 (1969). In both classes of case, this de novo proceeding is the first in which the contractor is afforded due process. Lichter v. United States, 334 U.S. 742, 791-92 (1948); Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 112-13, 462 F.2d 1388, 1391-92 (1972); L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 588 n.2, 390 F.2d 711, 712 n.2 (1968). Even burdens of persuasion may be identical in both types of proceedings: in renegotiation cases, the plaintiff of course has the burden of proof as to disputed accounting data; however, with regard to the existence and amount of excessive profits the Government has the burden of persuasion after the contractor has met its burden of going forward," }, { "docid": "15393367", "title": "", "text": "collecting the amount deemed owed by the Renegotiation Board. Moreover, case-by-case review would encourage the filing of frivolous appeals by plaintiffs seeking only to delay payment of Board orders. Such a result would clearly contradict the Congressional Intention to utilize the pay now, litigate later sequence of § 1218. Such changed circumstances might include revision of a tendered 100 percent bond based on plaintiff’s good faith estimate of Federal income tax credit when the actual figures became known. See note 1, supra. Additionally, other circumstances might necessitate an adjustment of the dollar amount, e.g., recalculation by the Board of the amount deemed excessive. However, it is clear that such revision occurs only after the initial filing of a 100 percent bond. Nichols, Judge, concurring: I concur in the opinion and judgment but would like to add the following observations. We have in the above case and in Bannercraft Clothing Co., Inc., post at 199, two more of what bids fair to be an endless series of impecunious defense contractors seeking relief from excessive profits determinations. We naturally think of one /who has allegedly realized excessive profits as being richer than we would deem proper. Why is he so often at the other end of the economic scale? If we can explain this apparent paradox, a more satisfactory disposition of the cases may be possible. At times tlie condition results from an uneven distribution of profit and loss contracts over different fiscal years, with insufficient impact of carry forward and other equalization measures. See my article, Equalizing Profit and Loss In Renegotiation, 45 Va. Law Rev. 41 (1959). Other times, those in control of corporations or partnerships have taken advantage of the usual long lapse of time between the end of a fiscal year and a Board order dealing with that year, to drain off the profits to transferees. Despite mistaken assertions to the contrary, dissenting in Sandnes’ Sons, Co. v. United States, 199 Ct. Cl. 107, 120, 462 F. 2d 1388, 1395 (1972), it is also perfectly possible for a person who never does business with the United States, never" }, { "docid": "21374694", "title": "", "text": "affirmance, filed Sept. 5, 1980, in Ct. Cl. No. 44-79) and A. C. Hoyle Co., ASBCA No. 15363, 71-2 BCA ¶ 9137. This is an entirely new contention. It was not made to the court when the case was previously before us, nor were these cases cited and our opinion therefore has no discus sion of the matter since it was never made an issue. The trial judge, in his opinion, had specifically and expressly held that plaintiff would be able to recover damages because of the impossible specifications despite plaintiffs subsequent failure to perform. Defendant never challenged that portion of the trial judge’s opinion. Defendant does not indicate why it did not make this argument before. It cannot claim to have been unaware of the trial judge’s reasoning. Normally this would be sufficient grounds for denying a motion for reconsideration. Niagara Mohawk Power Corp. v. United States, 207 Ct. Cl. 594 (1976) (order on rehearing); Mason & Hanger-Silas Mason Co. v. United States, 207 Ct. Cl. 183, 523 F.2d 1384 (1975) (order on plaintiffs motion for reconsideration); General Electric Co. v. United States, 189 Ct. Cl. 116, 416 F.2d 1320 (1969). Nevertheless, since we consider the question an important and difficult one, we have decided to consider it on its merits. We have here a case where both parties defaulted on their contractural obligations. Defendant was the first to default by supplying impossible specifications. Plaintiff defaulted later by failing to deliver conforming goods under the modified specifications although such failure was unrelated to defendant’s default. Defendant’s default injured plaintiff by causing it an out-of-pocket loss in the form of expenditures for efforts wasted because of the impossible specifications. Had plaintiff completed the contract, it would have been entitled to recover the contract price plus an equitable adjustment for the wasted work. Instead, plaintiff defaulted and the Government never received the use or benefit of any of plaintiffs work. The question is whether defendant can now escape liability for that injury. That is, in cases where the contractor’s work does not benefit defendant, is a contractor’s subsequent failure to perform," }, { "docid": "15393368", "title": "", "text": "We naturally think of one /who has allegedly realized excessive profits as being richer than we would deem proper. Why is he so often at the other end of the economic scale? If we can explain this apparent paradox, a more satisfactory disposition of the cases may be possible. At times tlie condition results from an uneven distribution of profit and loss contracts over different fiscal years, with insufficient impact of carry forward and other equalization measures. See my article, Equalizing Profit and Loss In Renegotiation, 45 Va. Law Rev. 41 (1959). Other times, those in control of corporations or partnerships have taken advantage of the usual long lapse of time between the end of a fiscal year and a Board order dealing with that year, to drain off the profits to transferees. Despite mistaken assertions to the contrary, dissenting in Sandnes’ Sons, Co. v. United States, 199 Ct. Cl. 107, 120, 462 F. 2d 1388, 1395 (1972), it is also perfectly possible for a person who never does business with the United States, never has a contract or purchase order containing a renegotiation clause or notice, and never heard of the Renegotiation Act to become subject to renegotiation. Such person may pay off profits to stockholders or creditors without setting up a proper reserve for this liability, and learn of it only later. Thus we are dealing with some people who have got into this predicament without any fault or negligence of their own, and with others whose good faith we may well decry. But even this latter group may ask where is the provision in the Renegotiation Act to bar their distributing assets to transferees while a renegotiation is pending? None can be found. I hasten to add, I have no idea in which category the parties now before us belong. The collection provisions of the Renegotiation Act of 1951, 50 U.S.C. App. § 1215(b) (1) and ff. were originally drafted for the 1943 Act, in the midst of World War II. At that time no one could do business in many industrial lines of endeavor, unless he" }, { "docid": "16540688", "title": "", "text": "not be successful. There is nothing in the Renegotiation Act to require a contractor to set aside funds to pay future such demands. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977), and cases cited therein, illustrate a wide variety of instances where the contractor has not set money aside and as a result, is unable to pay the refund the board proposes. Contractors who cannot pay usually cannot obtain a bond to stay execution of the board’s order under 50 U.S.C. app. § 1218. Accordingly, the government is entitled to obtain before trial and normally does obtain in such cases a judgment in aid of execution, for which it asks in a pleading called a counterclaim. It is my impression that such judgments are often uncollectible for the reason that the alleged excessive profits, if ever really realized, have long since been distributed to stockholders, or otherwise dissipated, which the statute in no way frowns on the contractor doing. Thus the pursuit of the money to be refunded is a matter of considerable difficulty and may often fail, or succeed only in part. Whether the contractor can prosecute its petition here in no way turns on whether it has paid, or filed a bond, and I suppose we have adjudicated many cases where neither occurred. The court’s assertion in Part II that the petition by the contractor always seeks to obtain repayment of money already paid to the government, or else the freeing of money not yet fully available, because secured by a bond, may be accurate in the case of established government prime contractors such as Grumman, but in the sweeping form uttered in the opinion, disregards facts that are manifest in our published decisions. The court I imagine does not intend to limit its holding to cases as to which its generalization is true: it does not intend to hold that a renegotiation petition by Solitron in this court reflects a claim by the government, but one by Grumman a claim against the government. Thus the" }, { "docid": "15393349", "title": "", "text": "Kunzig, Judge, delivered the opinion of the court: The question here at issue is whether the filing of a bond in an amount less than 100 percent of the net excessive profits found by the Eenegotiation Board (Board) is sufficient to stay the execution of the Board’s order during de novo redetermination in this court. A similar issue is presented in Bannercraft Clothing Co., Inc. v. United States, post at 199, 518 F. 2d 605 (1975). We bold tbat execution of tbe Board’s order is stayed only by the filing of a 100 percent bond. Plaintiff filed its petition in this court on September 17, 1974 for a redetermination of excessive profits for fiscal years 1967, 1968, and 1969, under Section 108 of the Renegotiation Act of 1951, 50 U.S.C. App. § 1218, as amended (Supp. II, 1972). Its renegotiable sales, according to the petition, were $5,655,467 and its renegotiable profit was $981,957, of which the Board determined that $418,279 was excessive. Federal tax credits for the years at issue were de termined by the Internal Revenue Service to be $204,294.71, leaving tbe Board’s determination of net excessive profits at $213,984.29. On September 27, 1974, ten days after filing its petition, plaintiff tendered to the court bonds in the amount of $150,000, approximately 70 percent of the net amount of the Board’s orders. Accompanying the bond was a motion for waiver of Ct. Cl. R. 26(b) and for leave to file bond in lesser amount. Defendant filed its opposition to plaintiff’s motion on October 3, 1974 and, on November 7, 1974, filed the present motion for judgment in aid of execution of the Board’s orders, the single issue now before this court. Plaintiff’s opposition to defendant’s motion is grounded on the same arguments presented to Trial Judge White in plaintiff’s motion for waiver of Ct. Cl. R. 26(b) and accompanying request to file bond in lesser amount. It is plaintiff’s position that this court has discretion to determine the amount of bond needed to stay execution of a Board order; that a trial judge, under Ct. Cl. R. 26(e) has" }, { "docid": "15516611", "title": "", "text": "the entry of a judgment in aid of execution. Manufacturers Service Co., Inc. v. United States, supra, and O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). In the instant case, plaintiff has presented nothing that would persuade this court to apply a different standard. As to plaintiff’s jurisdictional challenge, we are of the belief that our holding in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F. 2d 1388 (1972), is dispositive. Plaintiff argues that defendant’s motion for judgment in aid of execution is, in effect, a counterclaim, by whatever name it is called. As such, our statutory authority for granting judgment on a counterclaim, 28 U.S.C. § 2508, precludes our rendering of the requested judgment while plaintiff’s claim in chief is undecided. In other words, plaintiff asserts the Government does not presently have any claim for money damages and will only obtain a claim if the defendant prevails in the principal action. This is the exact argument we rejected in Sandnes’ Sons, Inc. v. United States, supra, and we again reject today. We thus conclude that where an approved surety or collateral bond is not timely filed, the Government possesses an immediate right to seek a judgment in aid of execution. This court lias jurisdiction to grant defendant’s motions for judgments under 28 U.S.C. §2508 in renegotiation cases, even though the claim in chief is undecided. Such judgment will be granted absent some compelling showing of unusual or mitigating circumstances. Accordingly, defendant’s motions for judgment in aid of execution of the Board’s orders are granted and judgment is entered in the amount of seven hundred seventy-seven thousand nine hundred twenty-nine dollars and thirty-five cents ($777,929.35), with interest as provided by law. 50 U.S.C. App. § 1215(b) ft). Renegotiable sales for the two years were as follows : EX 1966 — $2,349,882.50 EX 1967 — $5,000,884.24 Renegotiable profit for each component year was as follows: EX 1966 — $ 187,530.94 EX 1967 — $1,638,450.21 Annual excessive profits, adjusted for taxes measured by Income, other than Federal taxes, were as follows: EX 1966" }, { "docid": "21295773", "title": "", "text": "50 U.S.C. App. § 1218 (Supp. V 1975). The court has provided in Rule 26 that the amount of the bond shall be 100 percent of the Board decision less applicable tax credits. Absent such a stay of execution, the Government will ordinarily be entitled to judgment on its customary counterclaim for the amount determined by the Board. In one case the court held that a contractor in bankruptcy might on prescribed proofs press his suit without filing a bond, in the interest of preserving his constitutional right to challenge the unilateral determination of the Board. Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F.2d 1388 (1972). The instant petitioner applied for the same privilege, on the ground of financial hardship. It was denied relief, the Government was granted judgment on its counterclaim for $157,432.55, the amount ordered by the Board less applicable taxes, and the petitioner has satisfied the judgment: O’Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). By and large, therefore, it may be said that substantially every petitioner who seeks a redetermination of excessive profits has or will be required either to pay the amount ordered by the Board before or during the pendency of his suit for redetermination, or to give security in the form of a bond for the amount. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977). If the contractor who has paid prevails in his suit for a redetermination, he will obtain a judgment determining in what amount, less than that determined by the Board, excessive profits were realized. No judgment is given in this court for the difference between the amounts determined by the Board and by this court; the court is limited to a determination that no excessive profits were realized or that excessive profits were realized in a stated amount less than that determined by the Board. But section 108 of the Act itself provides that the successfúl contractor is to receive a refund following a determination in his favor:" }, { "docid": "23517720", "title": "", "text": "of proof, together or separately mandate the complete eclipse of the Board and its personnel that has occurred. Defendant in the rehearing motion before us has been blunt, far beyond the criticisms usual in rehearing motions. It says we have denied it the possibility of success in future renegotiation trials here, and fouled up the future operations of the administrative board. I respect bluntness in advocacy, and wish we had more of it. But it invites bluntness in return. I have been blunt and I will further bluntly say the prospects of success of defendant in future renegotiation cases here are less than rosy, unless it can persuade itself to adapt to our decisions. This is not, however, to say I think defendant should have been done markedly better than it did, in our reported decisions to date, with a different style of advocacy, or other testimony. In most of them, plaintiffs had things going for them that no procedure or allocation of burden of proof could have leached away. This is markedly true of the case immediately before us. Major Goat Go. had government business forced on it against its will, and had to drop its major civilian customers, as a result, to its great and apparently lasting detriment. At least, in our other reported cases, the contractors were in defense business voluntarily. Gf. observations of Cowen, Ghief Judge, in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 120, 462 F.2d 1388, 1395 (1972): * * * The most important consideration, and one which the plaintiff has failed to meet, is that it became subject to renegotiation only because it voluntarily entered into contractual relationships with the United States. That its contracts would be subject to renegotiation was expressly stated in the contracts; it is inarguable that the plaintiff is chargeable with knowledge of the terms of its contracts and the statutes and regulations governing Federal procurement. * * * While the court’s fact recitals show that Major Coat did sign the contracts awarded to it, they also strongly suggest duress or at least compulsion, which in" }, { "docid": "15393360", "title": "", "text": "mere showing of financial hardship has been held to be insufficient to excuse noncompliance. O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). Plaintiff has not shown any circumstances which would justify our denial of defendant’s motion. In fact, plaintiff has merely asserted that the bond tendered in the instant case might well provide defendant with better protection than the Government might obtain through seizure of plaintiff’s assets under a judgment. Even assuming plaintiff’s assertions to be correct, we feel constrained to point out that it is defendant’s prerogative to decide for itself how it can best protect its interest. It is not the role of this court or plaintiff to make this executive determination. We thus conclude that where a 100 percent bond is not timely filed, the Government possesses an immediate right to seek a judgment in aid of execution. Such judgment will be granted absent some compelling showing of unusual or mitigating circumstances. It is defendant’s responsibility to use the judgment wisely. If defendant ascertains that the Government is in little danger of dissipation of plaintiff’s assets, then it should negotiate a payment plan or other alternative with plaintiff so that plaintiff’s business is not unnecessarily disrupted. But we as a court must presume that the Government will act in good faith and in the public interest. Plaintiff has not made any showing which rebuts this presumption. Accordingly, defendant’s motion for judgment in aid of execution of the Board’s order is granted and judgment is entered in the amount of two hundred thirteen thousand nine hundred eighty-four dollars and twenty-nine cents ($213,-984.29), with interest as provided by law. 50 U.S.C. App. § 1215(b) (2). Net excessive profits are the excessive profits found by the Renegotiation Board less appropriate tax credits. Before issuing an order, the Board adjusts the excessive profit computation to reflect allowable credit for any taxes measured by income, exclusive of Federal Income taxes. A further credit for Federal Income taxes is computed by the Internal Revenue Service subsequent to the Board’s order. In computing the amount of the bond to" }, { "docid": "16540666", "title": "", "text": "a vague reference to cost allowability of professional fees when necessarily incurred by reason of some act or demand of the Government. The cases cited, The Remler Co., ASBCA No. 5354. 59-1 BCA ¶ 2264 (1959), Lake Union Drydock Co., ASBCA No. 3073, 59-1 BCA ¶ 2229 (1959), permitted recovery primarily because the contractor equitably deserved reimbursement due to unreasonable refusals and demands by the Government. These equitable considerations are not applicable to the Government’s good faith assertion that the contractor had earned excessive profits. That decision there states: \"In fact, a renegotiation case is unlike any other case filed in this court, because the plaintiff here [the contractor] is not seeking to recover a money judgment against the United States. It is the Government, based upon a unilateral order of the Renegotiation Board, which asserts that the contractor owes it money. If the contractor wholly prevails, the court will enter a declaratory judgment that no excessive profits were realized during the year involved.” Also, see Lykes Bros. S. S. Co. v. United States, 198 Ct. Cl. at 328, 459 F.2d at 1402; Aero Spacelines, Inc. v. United States, 208 Ct. Cl. 704, 715, 530 F.2d 324, 332 (1976). Certainly Lykes Bros., in holding that the Government bears the burden of proof in renegotiation, does not stand for the proposition that the party with that burden in a proceeding is the one who is making a claim against the other for all purposes. And this is as it should be for decisions allocating burdens of proof consider factors not relevant to cost allowability. Important in Lykes Bros., for example, was the recognition that placing the burden upon the contractor might run askew of statutory commands that our redetermination proceedings not be treated as review of the Board’s order, 50 U.S.C. App. §§ 1218, 1215(a) (1970 & Supp. V*, 1975). Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. at 323, 459 F.2d at 1399. Furthermore, considerations of fairness, probability and policy often play a significant role in deciding where to allocate burdens of proof, Cleary, Presuming and Pleading: An" }, { "docid": "15393359", "title": "", "text": "bond where changed circumstances dictate such an alteration. Such alteration of the dollar amount would be permitted only in those situations where one of the parties makes a showing that such adjustment is necessary to maintain the 100 percent equilibrium. To give this rule any other interpretation would have the effect of rendering the ten day filing time meaningless. Since we deem it clear from the above discussion that plaintiff’s tender of less than a 100 percent bond does not comply with our rule to stay the execution of the Board’s orders, defendant’s motion for judgment in aid of execution must be granted absent some unusual or mitigating circumstances that excuse plaintiff’s failure. In the instant case, plaintiff has not succeeded in making such a showing. This court has previously stated that a plaintiff seeking to avoid suffering execution of a judgment for failure to file the required bond must clearly show that the granting of the judgment might serve to “chill” the de novo redetermination litigation. Sandnes’ Sons, Inc. v. United States, supra. The mere showing of financial hardship has been held to be insufficient to excuse noncompliance. O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). Plaintiff has not shown any circumstances which would justify our denial of defendant’s motion. In fact, plaintiff has merely asserted that the bond tendered in the instant case might well provide defendant with better protection than the Government might obtain through seizure of plaintiff’s assets under a judgment. Even assuming plaintiff’s assertions to be correct, we feel constrained to point out that it is defendant’s prerogative to decide for itself how it can best protect its interest. It is not the role of this court or plaintiff to make this executive determination. We thus conclude that where a 100 percent bond is not timely filed, the Government possesses an immediate right to seek a judgment in aid of execution. Such judgment will be granted absent some compelling showing of unusual or mitigating circumstances. It is defendant’s responsibility to use the judgment wisely. If defendant ascertains that the Government" }, { "docid": "23517721", "title": "", "text": "the case immediately before us. Major Goat Go. had government business forced on it against its will, and had to drop its major civilian customers, as a result, to its great and apparently lasting detriment. At least, in our other reported cases, the contractors were in defense business voluntarily. Gf. observations of Cowen, Ghief Judge, in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 120, 462 F.2d 1388, 1395 (1972): * * * The most important consideration, and one which the plaintiff has failed to meet, is that it became subject to renegotiation only because it voluntarily entered into contractual relationships with the United States. That its contracts would be subject to renegotiation was expressly stated in the contracts; it is inarguable that the plaintiff is chargeable with knowledge of the terms of its contracts and the statutes and regulations governing Federal procurement. * * * While the court’s fact recitals show that Major Coat did sign the contracts awarded to it, they also strongly suggest duress or at least compulsion, which in law may not be the same thing exactly. I would not automatically exempt from renegotiation a contract awarded under such circumstances since I do not think the law does so, but I would determine excessive profits and assess a refund only with the greatest hesitation, on clear and convincing evidence that the profits were, under all the statutory factors, excessive. In World War II, when renegotiation started, all defense contracting, practically, was subject to “rated orders.” In the Vietnam war situation, the burden on Major Coat was special and peculiar. The Army seems to have also used rated orders in Blue Belly Inc. v. United States, No. 603-71 (slip op. filed April 8,1977) but without the degree either of coercion or of detriment to the contractor’, shown in Major Ooat. In World War II a manufacturer practically had to have rated orders so he could stay in business. He needed the ratings to pass on to his suppliers. Thus, a “rated order” was then a benefit, even a necessity, not a detriment. I am unable" }, { "docid": "21295774", "title": "", "text": "that substantially every petitioner who seeks a redetermination of excessive profits has or will be required either to pay the amount ordered by the Board before or during the pendency of his suit for redetermination, or to give security in the form of a bond for the amount. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977). If the contractor who has paid prevails in his suit for a redetermination, he will obtain a judgment determining in what amount, less than that determined by the Board, excessive profits were realized. No judgment is given in this court for the difference between the amounts determined by the Board and by this court; the court is limited to a determination that no excessive profits were realized or that excessive profits were realized in a stated amount less than that determined by the Board. But section 108 of the Act itself provides that the successfúl contractor is to receive a refund following a determination in his favor: \"Any amount collected by the United States under an order of the Board in excess of the amount found to be due under a determination of excessive profits by the Court of Claims shall be refunded to the contractor or subcontractor with interest. . . .” 50 U.S.C. App. § 1218 (1970 & Supp. V 1975). And so the court’s conclusion of law in a case in which a contractor has been successful in part, has contained all of the following: a determination that the plaintiff realized excessive profits in a stated amount (less than that determined by the Board and paid by the plaintiff), a judgment for that amount in favor of the Government, on its customary counterclaim, and an order that \"plaintiff is entitled to a refund” of the difference between the amount paid by it and the amount of the judgment on the counterclaim. See Major Coat Co. v. United States, 211 Ct. Cl. 1, 48-49, 543 F.2d 97, 124 (1976). The last provision — that plaintiff is \"entitled” to a refund" }, { "docid": "15516610", "title": "", "text": "stay is an integral part of the bond provision of 50 U.S.C. App. § 1218. Without such a time limitation, it seems apparent that the Congressional intention of prompt payment to protect the Government’s interest could be circumvented by the filing of frivolous appeals by plaintiffs seeking only to forestall compliance. Thus, even if the tendered collateral was of the type approved by this court, its tardy filing would preclude the granting of a stay of execution of the Board’s orders. Since plaintiff’s belated tender of an interest in real estate as collateral does not comply with, our rule to stay the execution of the Board’s orders, defendant’s motions for judgment must be granted absent some unusual or mitigating circumstances that excuse plaintiff’s failure. In the instant case, plaintiff has not succeeded in making such a showing. The thrust of plaintiff’s opposition to defendant’s motions is centered on the alleged financial hardship plaintiff would suffer if judgment was entered. However, the mere assertion of potential financial hardship has been held to be insufficient to prevent the entry of a judgment in aid of execution. Manufacturers Service Co., Inc. v. United States, supra, and O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). In the instant case, plaintiff has presented nothing that would persuade this court to apply a different standard. As to plaintiff’s jurisdictional challenge, we are of the belief that our holding in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F. 2d 1388 (1972), is dispositive. Plaintiff argues that defendant’s motion for judgment in aid of execution is, in effect, a counterclaim, by whatever name it is called. As such, our statutory authority for granting judgment on a counterclaim, 28 U.S.C. § 2508, precludes our rendering of the requested judgment while plaintiff’s claim in chief is undecided. In other words, plaintiff asserts the Government does not presently have any claim for money damages and will only obtain a claim if the defendant prevails in the principal action. This is the exact argument we rejected in Sandnes’ Sons, Inc. v. United States," }, { "docid": "23517693", "title": "", "text": "has little place in an inquiry into profit reasonableness. The second objection relates to the validity of using the remaining AG-44 firms’ profit percentages, as well as the earnings rates of the four firms singled out by defendant’s expert. The after-renegotiation profit figures supposedly eliminate any excessive profits realized in the firms’ review year earnings, and so theoretically provide reasonable profits against which plaintiff’s review year performance might be measured. The point that defendant presses is that the use of profit figures revised by the board, sometimes pursuant to unilateral order and sometimes to effect a compromise settlement, is of questionable propriety in a de novo redetermination proceeding. See section 108 of the Act, 50 U.S.C. App. § 1218 (Supp. V, 1975). Certainly, one difficulty in making use of these figures is our lack of full knowledge on the information the board had before it and the judgments and adjustments it made in the course of issuing orders and accepting settlements. But all the after-renegotiation figures, even those arising from settlements, make at least some attempt to reconstruct what the renegotiated contractors’ profits would have been in a competitive market, and so are not totally lacking in probative value. The data available for comparisons in redetermination proceedings is frequently sparse and plagued with ambiguities and unknowns, yet the vital need for comparative data means that it is not to be disregarded completely without strong reason. Mason & Hanger-Silas Mason Co. v. United States, supra, 207 Ct. Cl. at 143-44, 518 F. 2d at 1363; Aero Spacelines, Inc. v. United States, supra, 208 Ct. Cl. at 729-30, 530 F. 2d at 340. In that plaintiff is the one that has brought the several AG-44 manufacturers’ after-renegotiation profits before the court, thus acceding to their probativeness in determining a reasonable profit for itself, we think we may safely use these figures. It was up to defendant to produce evidence of their lack of comparability, if it so desired. Defendant, of course, does not as freely enjoy the privilege of importing board-created profit figures into the record, for this would likely result in" }, { "docid": "16540643", "title": "", "text": "or a contracting officer’s final decision is appealed, the contractor receives a de novo determination in the Court of Claims or before a board of contract appeals. 50 U.S.C. App. § 1218 (1970 & Supp. V 1975); Southwest Welding & Mfg. Co. v. United States, 188 Ct. Cl. 925, 954, 413 F.2d 1167, 1184-85 (1969). In both classes of case, this de novo proceeding is the first in which the contractor is afforded due process. Lichter v. United States, 334 U.S. 742, 791-92 (1948); Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 112-13, 462 F.2d 1388, 1391-92 (1972); L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 588 n.2, 390 F.2d 711, 712 n.2 (1968). Even burdens of persuasion may be identical in both types of proceedings: in renegotiation cases, the plaintiff of course has the burden of proof as to disputed accounting data; however, with regard to the existence and amount of excessive profits the Government has the burden of persuasion after the contractor has met its burden of going forward, Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. 312, 459 F.2d 1393 (1972); Camel Mfg. Co. v. United States, 215 Ct. Cl. 460, 572 F. 2d 280 (1978); in certain types of cases \"under the contract,” the Government must also bear the ultimate burden of persuasion, Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. at 329, 459 F.2d at 1403, citing Eastern Tool & Mfg. Co., ASBCA No. 4815, 58-2 BCA ¶ 1947 (excess costs of reprocurement). The sum of it is that, for present purposes, renegotiation does not differ significantly from contract disputes, and therefore that plaintiff, which accepts the application of the ASPR clause to professional fees incurred in the course of an appeal to a board of contract appeals or in a court suit to review such a board decision (see, e.g., Reed & Prince Mfg. Co., ASBCA No. 3172, 59-1 BCA ¶ 2172 (1959), note 18, infra), cannot complain that it is improper to reimburse professional expenses at one stage of a continuous process while denying reimbursement" }, { "docid": "15516603", "title": "", "text": "Kttnzig, Judge, delivered the opinion of the court: The question here at issue is whether a Covenant Not to Convey (or other interest in real estate) is acceptable collateral sufficient to stay the execution of the orders of tha Renegotiation Board (Board) during de novo redetermination in tbis court. A similar issue was presented in Manufacturers Service Co. v. United State, ante at 185, 518 F. 2d 1202 (1975). We reaffirm the principle enunciated in Manufacturers Service Co. v. United States, supra, and hold that execution of the Board’s orders is stayed only by the filing of a 100 percent surety or collateral bond as defined by Ct. Cl. R. 26. Plaintiff corporation filed its petitions in this court on September 26,1974 for a redetermination of excessive profits for its fiscal years 1966 and 1967, under Section 108 of the Renegotiation Act of 1951, 50 U.S.C. App. § 1218, as amended (Supp. II, 1972). Its renegotiable sales, according to the petitions, were $7,850,766.74 and its renegotiable profits were $1,825,981.15, of which the Board determined that $1,496,018 was excessive. Federal tax credits for the two years at issue were determined by the Internal Revenue Service to be $718,088.65, leaving the Board’s determinations of net excessive profits at $777,929.35. On November 21, 1974, defendant filed its answer and counterclaim to each of plaintiff’s two petitions. At the same time, defendant filed the present motions for judgment in aid of execution of the Board’s orders. As of the above date, plaintiff had made no attempt to file any bond with this court nor had any attempt been made to obtain a judicial waiver of the bond requirement. Instead, plaintiff waited until February 6,1975, the date of its response to defendant’s motions for judgment, to request this court’s approval of a Covenant Not to Convey and various other guarantees as collateral sufficient to stay the execution of the Board’s orders. Plaintiff added a jurisdictional argument by supplemental brief filed March 17,1975. Plaintiff’s opposition to defendant’s motions is two-fold. It is plaintiff’s primary position that contra to our Buie 26 definition, the tendered security on" }, { "docid": "21295772", "title": "", "text": "aggrieved by an order of the Board, however, he may under section 108 of the Act (50 U.S.C. App. § 1218) file a petition with this court — such as the present action — for a redetermination of the amount of excessive profits. The suit is to be heard and determined de novo, not as a proceeding to review the determination of the Board. The petition was prior to 1972 filed in the Tax Court; at that time jurisdiction was transferred to this Court. Act of July 1,1971, Pub. L. No. 92-41, 85 Stat. 97, 50 U.S.C. App. § 1218 (Supp. V 1975). If the contractor does not pay the amount ordered by the Board, and brings the proceeding for redetermination with which we are now concerned, the filing of the petition in this court acts as a stay of execution of the order of the Board if, but only if, within 10 days of the filing of the petition, the plaintiff files with the court a bond in the amount determined by the court. 50 U.S.C. App. § 1218 (Supp. V 1975). The court has provided in Rule 26 that the amount of the bond shall be 100 percent of the Board decision less applicable tax credits. Absent such a stay of execution, the Government will ordinarily be entitled to judgment on its customary counterclaim for the amount determined by the Board. In one case the court held that a contractor in bankruptcy might on prescribed proofs press his suit without filing a bond, in the interest of preserving his constitutional right to challenge the unilateral determination of the Board. Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F.2d 1388 (1972). The instant petitioner applied for the same privilege, on the ground of financial hardship. It was denied relief, the Government was granted judgment on its counterclaim for $157,432.55, the amount ordered by the Board less applicable taxes, and the petitioner has satisfied the judgment: O’Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). By and large, therefore, it may be said" }, { "docid": "16540687", "title": "", "text": "being a claim by the government, does not suddenly lose that character because the procedures the government has prescribed by statute maneuver the prior claimee (if I can coin a word) into becoming at that point a petitioner in a judicial or quasi-judicial tribunal. A true claim against the government is one which was that from the day it was born, of which we have many examples in our jurisprudence. Most claims before the ASBCA, claims for equitable adjustment for change orders, etc., are in that category, so I do not leave § 15.205.31(d) with nothing to apply to. I confess that my analysis has not been much aided by the efforts of both parties to put across their own theories of the nature of renegotiation, and a lot of briefing effort has been wasted so far as my feeble intellect is concerned. It does stick in my mind as an incontrovertible fact that a unilateral order of the Renegotiation Board was and is a demand for money by the government. It may and may not be successful. There is nothing in the Renegotiation Act to require a contractor to set aside funds to pay future such demands. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977), and cases cited therein, illustrate a wide variety of instances where the contractor has not set money aside and as a result, is unable to pay the refund the board proposes. Contractors who cannot pay usually cannot obtain a bond to stay execution of the board’s order under 50 U.S.C. app. § 1218. Accordingly, the government is entitled to obtain before trial and normally does obtain in such cases a judgment in aid of execution, for which it asks in a pleading called a counterclaim. It is my impression that such judgments are often uncollectible for the reason that the alleged excessive profits, if ever really realized, have long since been distributed to stockholders, or otherwise dissipated, which the statute in no way frowns on the contractor doing. Thus the pursuit of" } ]

[ { "docid": "17832403", "title": "", "text": "OPINION OF THE COURT PER CURIAM: After careful consideration of the contentions presented by appellant, we will affirm the judgment of the district court. We write to record a few observations, however, because various appeals have requested us to grant relief on the theory that the recent decision in Berkebile v. Brantly Helicopter Corp., Pa., 337 A.2d 893 (1975), changed the Pennsylvania rules of strict liability. Since 1966, § 402A of the Restatement of Torts, Second has served as the law of strict liability in Pennsylvania. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). In Berkebile, Chief Justice Jones wrote the lead opinion and “held” that the requirement of “unreasonably dangerous” should be purged from the law of strict liability in Pennsylvania. The court affirmed a reversal of a verdict for defendant. Only one other justice, however, joined in Justice Jones’ opinion; three justices concurred in the result only; and two justices concurred specially, each filing a short opinion. Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), declined to follow a prior opinion representing the views of only two justices; the Supreme Court of Pennsylvania there reasoned that an opinion “joined by only one other member of this Court has no binding precedential value.” Ibid, at 260, 248 A.2d at 35. Applying the rationale of Little to the Berkebile situation, we are constrained to accept the reasoning set forth by The Honorable Daniel H. Huyett, 3rd, in Beron v. Kramer-Trenton Co., 402 F.Supp. 1268, 1277 (E.D.Pa.1975), i. e., “that the views expressed in Chief Justice Jones’ opinion in Berkebile are not the law of Pennsylvania, and that it is proper to instruct a jury that it must find that a defective condition be unreasonably dangerous to the user or consumer.” Moreover, we note that in this case appellant submitted requests for jury instructions using the phrase “unreasonably dangerous” and made no objection to the court’s inclusion, vel non, of this phrase in its charge. The judgment of the district court will be affirmed." } ]

[ { "docid": "13814211", "title": "", "text": "at 94, 337 A.2d at 899 (quoting Restatement (Second) of Torts § 402A-(2)(a)). Berkebile rejects any suggestion that the use of the phrase “unreasonably dangerous” in the text of Restatement § 402A brings issues of fault and negligence back into Pennsylvania products liability law. The court explains that the words “unreasonably dangerous” appear in the text only to ensure that liability is limited to defective products, so that manufacturers of innately dangerous products such as whiskey and knives are not “ ‘automatically [held] responsible for all the harm that such things do in the world.’ ” 462 Pa. at 95, 337 A.2d at 899 (quoting Prosser, Strict Liability to the Consumer in California, 18 Hast. L.J. 9, 23 (1966)). The 1978 case of Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020, completes the Pennsylvania trilogy. Azzarello, a unanimous opinion of the Pennsylvania Supreme Court, clarifies the plurality opinion in Berkebile. The phrase “unreasonably dangerous” used in Restatement § 402A, the court explains, is not utterly without meaning. Although the phrase has “no independent significance,” it does “represent a label to be used where it is determined that the risk of loss should be placed upon the supplier.” 480 Pa. at 556, 391 A.2d at 1025. This issue of whether the risk of loss should be placed on the supplier is a question of law for the court to decide with an eye toward the “social policy” underlying Pennsylvania products liability law. Id. at 558, 391 A.2d at 1026. The trial court must exercise its own judgment in determining whether the facts alleged by plaintiff, if true, would justify imposition of strict liability. Only after the court answers this question in the affirmative may it turn the case over to the jury for a determination as to whether the facts alleged are true. Id. Azzarello concludes by reemphasizing the high standards to which manufacturers are held under Pennsylvania law: For the term guarantor to have any meaning ... the supplier must at least provide a product which is designed to make it safe for its intended use. Under" }, { "docid": "2038337", "title": "", "text": "to actions grounded in Section 402A.” Id. (footnotes omitted). Later, in Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court imposed an even stricter standard of liability on the manufacturer when it held that the trial court had erred in instructing the jury that a defect in a product is one that is “unreasonably dangerous,” a term expressly provided in Restatement (Second) of Torts § 402A. In the Supreme Court’s view, “the term ‘unreasonably dangerous’ has no place in the instructions to a jury as to the question of ‘defect’ in this type of case” because it improperly introduces negligence concepts into the proceeding. 480 Pa. at 559, 391 A.2d at 1027. Instead, the court endorsed the instruction of its Committee for Proposed Standard Jury Instructions, Civil Instruction Subcommittee, which provided: The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for [its intended] use, and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant’s control, lacked any element necessary to make it safe for [its intended] use or contained any condition that made it unsafe for [its intended] use, then the product was defective, and the defendant is liable for all harm caused by such defect. Id. at 559, 391 A.2d at 1027 n. 12. In a similar vein, other courts have observed that the function of products liabili ty, at least under Pennsylvania law, is to shift the loss to the party who can most easily bear it. Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 43-44, 527 A.2d 140, 143 (1987). The Supreme Court’s decisions protecting plaintiffs in strict products liability cases have been applied in the Superior Court as well, though as we shall demonstrate, not always faithfully. In Stay-mates, the Superior Court confirmed that the Supreme Court’s decisions “provide[ ] a clear indication of the direction the Court was taking with respect to its product liability doctrine. At a" }, { "docid": "23480480", "title": "", "text": "824-26. Third, the absence of prior accidents may simply mean that the plaintiff was the first to be injured; there is always a first victim. See id. at 825; Spi-no, 696 A.2d at 1173. Fourth, testimony concerning the absence of prior accidents “does not tell us how many near-accidents, nor how many fortuitous escapes from injury, may have oecurred[.]” See Jones, 700 P.2d at 826. This fourth concern is especially salient in product liability cases arising under Pennsylvania law, which deems a product defective if it “left the supplier’s control lacking any element necessary to make it safe for its intended use.” Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987) (quoting Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1027 (1978)). The Pennsylvania Supreme Court has stated that “products are to be evaluated at the time of distribution when examining a claim of product defect.” Duchess v. Langston Corp., 564 Pa. 529, 769 A.2d 1131, 1142 (2001). Pennsylvania’s approach is reflected in the fact that risk-utility analysis concerning whether a product is unreasonably dangerous (which is required under § 402A of the Restatement (Second) of Torts) is performed by the trial judge rather than the jury. See Azzarello, 391 A.2d at 1026. “In answering this question a court is essentially making a social policy determination and acting as both a social philosopher and a risk-utility economic analyst.” Riley v. Warren Mfg. Inc., 455 Pa.Super. 384, 688 A.2d 221, 224 (1997) (citing Fitzpatrick v. Madonna, 424 Pa.Super. 473, 623 A.2d 322, 324 (1993)). Thus, where the plaintiff has surmounted this initial hurdle and the case has reached the jury, the jury’s focus is on the product in se, and specifically on whether the product as designed presents a potential danger to the intended user. The nature of this inquiry is such that evidence of near-misses or fortuitous escapes would be highly probative of the existence of a danger, and thus of the existence of a defect. Such evidence, however, is by definition extremely difficult to obtain, if for no other reason" }, { "docid": "16730674", "title": "", "text": "F.3d 38, 40 (3d Cir. 2009) (holding that if confronted with the question, the Supreme Court of Pennsylvania would apply sections 1 and 2 of the Restatement (Third) of Torts to products liability cases), cert. denied, — U.S.-, 130 S.Ct. 553, 175 L.Ed.2d 383 (2009). After examining the contentions of the parties and the recent decisions of Pennsylvania’s highest court, we conclude that the state of the law is no different now than it was when we decided Berrier. Rather than exhume the arguments and considerations we laid to rest there, we will apply stare decisis. 1. In past products liability cases, the Supreme Court of Pennsylvania has looked to section 402A of the Restatement (Second) of Torts. E.g., Webb v. Zem, 422 Pa. 424, 220 A.2d 853, 854 (1966) (“We hereby adopt the foregoing language [of § 402A] as the law of Pennsylvania.”). Section 402A makes sellers liable for harm caused to consumers by unreasonably dangerous products, even if the seller exercised reasonable care: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Restatement (Second) of Torts § 402A (1965). Section 402A thus creates a strict liability regime by insulating products liability cases from negligence concepts. See id. § 402A(2)(a); Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1025-1026 (1978) (charging courts to avoid negligence concepts when instructing a jury pursuant to § 402A.). During the past 40 years, however, the" }, { "docid": "17758187", "title": "", "text": "proved that as to him the product was unreasonably dangerous. It is therefore unnecessary and improper to charge the jury on ‘reasonableness.’ 462 Pa. at 96-97, 337 A.2d at 900. Chief Justice Jones’ opinion was joined, however, by only one other Justice. The other five members of the court either filed concurring opinions or concurred in the result. Thus, less than a majority of the court concluded that a trial court errs when it charges that section 402A liability hinges on a jury finding that a product is unreasonably dangerous. Precisely because Chief Justice Jones’ opinion did not have the support of a majority of the supreme court, we held in Bair v. American Motors Corp., 535 F.2d 249, 250 (3d Cir. 1976) (per curiam), that Berkebile did not change longstanding Pennsylvania law that a jury instruction using the “unreasonably dangerous” language of section 402A is proper. As a result, in denying the motion for a new trial, the district court found itself bound by the precedent of this Court to ignore Berkebile. The district court’s order denying the Bakers’ motion was filed on June 16, 1978. However, on October 5,1978, after the Bakers had filed their original appellate brief but prior to argument before this Court, the Pennsylvania Supreme Court decided Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). Azzarello had been injured at work. He sued the manufacturer of the machine that had injured him, under a strict liability theory based on section 402A. The manufacturer joined Azzarello’s employer as an additional defendant. In its charge to the jury, the trial court frequently stated that the manufacturer’s liability depended on a finding that its machine was “unreasonably dangerous.” The jury found in favor of the manufacturer and against Azzarello’s employer. The employer then moved for a new trial, which was granted by the trial court on the theory that the court’s charge was inconsistent with Berkebile, which had been decided subsequent to the charge and the jury’s verdict. In affirming the grant of the new trial motion, the supreme court in a unanimous opinion" }, { "docid": "1755397", "title": "", "text": "under § 402A, at no time was the jury informed that this charge was to be considered in reaching a decision on Interrogatory # 1. In fact, the language of this portion of the charge more closely tracks the language and the approach in Interrogatory # 3: “Did the defendants know or should they have reasonably foreseen, that the product would be used by persons, that is, such as plaintiff, unaware of its flammability and of the hazards of smoking while using the product?” Therefore, it is more probable that the jury considered this supplemental charge in answering Interrogatory # 3, rather than Interrogatory # 1. Even if there were no confusion as to the scope of the § 402A charge, (which there is) the direction does not furnish the answer. If the jury received the proper instruction, it is pure speculation as to how they resolved it. Neither this court nor the trial court can conclude that the warnings to the employees were adequate, because the jury has never spoken on that issue. In the absence of such a finding, no judgment should be entered. Therefore, if Pennsylvania law requires that the adequacy of warnings under § 402A be evaluated in terms of the ultimate user, then a jury should be afforded the opportunity to decide that question, and accordingly a remand for a new trial on the issue of strict liability is required. . Support for the view that Pennsylvania law requires that warnings must be considered with regard to the ultimate user is found in Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (Pa.1978), Pegg v. General Motors Corp., 391 A.2d 1074 (Sup.Ct.Pa.1978), and the Comments to § 402A of the Restatement (Second) of Torts. . The trial judge stated that in his view, the question omitted from Interrogatory # 1 was in fact answered in Interrogatory # 3: “It may be that ... there can be liability under § 402A itself, notwithstanding the adequacy of warnings to the purchaser, if the warnings to the purchaser’s employees are likely to be inadequate.... This latter" }, { "docid": "17758178", "title": "", "text": "OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This appeal concerns the propriety under Pennsylvania law of two aspects of a district court’s jury charge in a products liability case. First, relying on the specific language of section 402A of the Restatement of Torts, the court repeatedly stated that, for the defendant Outboard Marine Corporation to be held liable for damages to the plaintiffs, Jennifer and Susan Baker, the jury must find that a lawn mower manufactured by Outboard was “defective and unreasonably dangerous.” (emphasis added). Second, the court declined to inform the jury that for a third party’s negligent acts to constitute intervening cause sufficient to shield Outboard from liability to the Bakers, those acts must be “so extraordinary as not to have been reasonably foreseeable.” The jury entered a verdict in favor of Outboard, and the Bakers’ motion for a new trial was denied. On appeal, the Bakers claim, inter alia, that the district court’s use of the “defective and unreasonably dangerous” instruction is prohibited by the Pennsylvania Supreme Court’s recent decision in Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). In addition, the Bakers contend that the court’s instruction regarding third party negligence and intervening cause was inconsistent with this Court’s holding in Eshbach v. W. T. Grant’s & Co., 481 F.2d 940, 944-45 (3d Cir. 1973). We agree with the Bakers that the district court’s use of the phrase “unreasonably dangerous” was contrary to the rule established by Azzarello. As a result, we reverse the district court’s order denying the Bakers’ new trial motion and remand the case to the district court for a new trial. In addition, because the issue of intervening causation is likely to arise again in the new trial, it is appropriate to observe that the court’s failure to give an instruction on third party negligence consistent with our holding in Eshbach was also error. I FACTS Outboard manufactures lawn mowers, including the Lawn Boy 30-inch riding rotary mower. One such Lawn Boy mower was owned by Clarence L. Weller, the father of plaintiff-appellant Susan Baker and" }, { "docid": "17653942", "title": "", "text": "product. Instead, over the appellant’s objections, the court instructed the jury on substantial change without any reference to reasonable foreseeability. Given these instructions, the jury returned with a verdict for the defendant. In its motion for new trial the appellant raised the arguments which are made here: (1) that any reference to the doctrine of substantial change in a jury instruction was barred by the Pennsylvania Supreme Court’s decision in Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); (2) that, in this case, the question before the jury was one of proximate cause and not of substantial change; and, (3) that, if instructions were given on the question of substantial change, then those instructions must also discuss the foreseeability of such change. Appropriate requests for instruc tions and objections to the charge were timely made by appellant. The trial court denied this motion and the instant appeal followed. Because we believe that the appellant is correct on the last of these three contentions we will reverse and remand for a new trial. The appellant has argued vigorously that the concept of substantial change has no place in Pennsylvania’s law of products liability following Azzarello v. Black Bros. Co. Inc., supra. As the appellant reads it, Azzarello purports to condemn broadly the use in product liability cases of any concept which “rings of negligence”. Because the question of substantial change is often framed in terms of reasonable foreseeability, the appellant argues that it is essentially a negligence concept. Therefore, under the appellant’s reasoning, Azzarello precludes any reference to substantial change in jury instructions in product liability cases. We disagree. In our opinion, the appellant’s reliance on Azzarello is misplaced in this case. As we view it, that decision simply concluded that the phrase “unreasonably dangerous” was inconsistent with the policy of consumer protection underlying § 402A because it unnecessarily diverted the jury’s attention from the factual question of whether a “defective condition” existed; instead, the phrase focused jury attention on the legal question, necessarily informed by a balancing of social policy considerations, whether the alleged defective" }, { "docid": "1755385", "title": "", "text": "to appear before it for a conference to consider (1) The simplification of the issues; (2) The necessity or desirability of amendments to the pleadings; (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; (4) The limitation of the number of expert witnesses; (5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury; (6) Such other matters as may aid in the disposition of the action. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. . In 1978 the Pennsylvania Supreme Court dropped from its § 402A doctrine the term “unreasonably dangerous.” Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978). Thus, to this extent, Pennsylvania’s formulation of strict liability under § 402A does not track that of the Restatement. . Section 402A of the Restatement (Second) of Torts was adopted by Pennsylvania Supreme Court as the law of Pennsylvania in Webb v. Zem, 422 Pa. 424, 220 A.2d 853, 854 (1966). But see Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978). . Appellee admits in his brief that Interrogatories # 1 and # 3 address separate theories of liability: Specifically, the first Interrogatory was framed in terms of Section 402A of the Restatement of Torts 2nd while the third Interrogatory was framed in terms of Section 388 of the Restatement of Torts 2nd. The first Interrogatory spoke only in terms of the product being defective and unreasonably dangerous at the time of delivery by reason of inadequate warnings concerning flammability. The Jury by answering in the negative found that indeed the product was not" }, { "docid": "9540552", "title": "", "text": "and specifications of the purchaser,” the count concluded that Kranco’s reliance on those plans was reasonable and therefore it was not liable for negligence. On the strict liability count, the court found there was no defect in the crane. The court noted “the products liability rule holding a manufacturer liable does not apply where the product has been manufactured in accordance with the plans and specifications of the purchaser except when such plans are so obviously dangerous that they should not reasonably be followed. Id. at 375, citing Littlehale v. E.I. du Pont & Co., 268 F.Supp. 791, 802 n.16 (S.D.N.Y.1966), aff’d, 380 F.2d 274 (2d Cir. 1967). Thus, the court inquired whether reliance on the plans was reasonable and whether the plans were so obviously dangerous that they should not have been followed. Before applying these rules to the present case, I note that this case may be governed by Pennsylvania law so I must consider whether the Pennsylvania Supreme Court’s opinion in Azzarello v. Black Bros., Co., 480 Pa. 547, 391 A.2d 1020 (1978) effects the applicability of the Kranco rule in Pennsylvania. In Azzarello, the Pennsylvania Supreme Court held that negligence concepts have no place in Pennsylvania 402A law so far as the trial, evidence, and jury charge are concerned. See Azzarello v. Black Bros., Co., 480 Pa. at 553, 391 A.2d at 1020; Bailey v. Atlas Power Co., 602 F.2d 585 (3d Cir. 1979). But the case does not eliminate negligence concepts such as reasonableness from a court’s determination of liability as a matter of law. This motion presents the question of when and to whom liability under § 402A should attach. Reasonableness can be considered on this type of inquiry. Holloway v. J. B. Systems, Ltd., 609 F.2d 1069, 1071 n.5 (3d Cir. 1979); Abdul-Warith v. Arthur G. McKee and Co., 488 F.Supp. 306, 314 (E.D.Pa.1980). Accordingly, I find that even if Pennsylvania law applies, consideration of the factors of reasonableness applied by the Kranco court to a specifications case is not precluded by Azzarello. With respect to the negligence count, it cannot be said" }, { "docid": "1755386", "title": "", "text": "doctrine the term “unreasonably dangerous.” Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978). Thus, to this extent, Pennsylvania’s formulation of strict liability under § 402A does not track that of the Restatement. . Section 402A of the Restatement (Second) of Torts was adopted by Pennsylvania Supreme Court as the law of Pennsylvania in Webb v. Zem, 422 Pa. 424, 220 A.2d 853, 854 (1966). But see Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978). . Appellee admits in his brief that Interrogatories # 1 and # 3 address separate theories of liability: Specifically, the first Interrogatory was framed in terms of Section 402A of the Restatement of Torts 2nd while the third Interrogatory was framed in terms of Section 388 of the Restatement of Torts 2nd. The first Interrogatory spoke only in terms of the product being defective and unreasonably dangerous at the time of delivery by reason of inadequate warnings concerning flammability. The Jury by answering in the negative found that indeed the product was not defective at time of delivery as to inadequate warnings concerning fíammability. However, in answering the third Interrogatory in the affirmative, the Jury found that the defendants, under a negligence standard, failed to reasonably foresee that the product would be used by persons such as the instant appellee who would be unaware of flammability and of the hazards of smoking while using the product. Appellee’s Brief at 29 (emphasis in original). Therefore, we need not address the issue of whether the jury’s answer to Interrogatory # 3 may have suggested some possible ground for liability under section 402A. . See Comment h to section 402A which clarifies that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a “defective condition.” Comment j states that “in order to prevent the product from being unreasonably dangerous, the seller may be required to put directions or warning, on the container, as to its use. See also Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 209, 219-30" }, { "docid": "23372105", "title": "", "text": "Johns-Manville Corp., 759 F.2d 271, 273-74 (3d Cir.1985); Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 553 n. 3 (3d Cir.1985). We start with the proposition that Pennsylvania has adopted Restatement (Second) of Torts § 402A. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Under § 402A(1), [o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer, ... if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. In applying this Restatement rule, the Supreme Court of Pennsylvania has held that the trial judge must decide a threshold issue as a matter of law: taking the allegations of the complaint to be true, would the social policy considerations underlying strict liability justify recovery under § 402A in this case. Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). The court must thus balance the product’s social utility against its unavoidable risks to determine whether the condition of the product could be labeled “unreasonably dangerous” and the risk of loss placed on the manufacturer. Only if the court decides that strict liability would be appropriate does the case go to the jury for a determination regarding the truth of the plaintiff’s allegations. See 391 A.2d at 1025-27. The jury is not introduced to the concept of “unreasonably dangerous” so that notions from the law of negligence will not creep into its deliberations. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 899-900 (1975) (plurality opinion); Holloway v. J.B. Sys., Ltd., 609 F.2d 1069, 1073 (3d Cir.1979) (per curiam) (applying Pennsylvania law). In Pennsylvania, a plaintiff asserting a strict liability claim against a manufacturer of a product must show that: (1) the product was in a defective condition when it left the hands of the manufacturer; and (2) the defect was a proximate" }, { "docid": "17758188", "title": "", "text": "court’s order denying the Bakers’ motion was filed on June 16, 1978. However, on October 5,1978, after the Bakers had filed their original appellate brief but prior to argument before this Court, the Pennsylvania Supreme Court decided Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). Azzarello had been injured at work. He sued the manufacturer of the machine that had injured him, under a strict liability theory based on section 402A. The manufacturer joined Azzarello’s employer as an additional defendant. In its charge to the jury, the trial court frequently stated that the manufacturer’s liability depended on a finding that its machine was “unreasonably dangerous.” The jury found in favor of the manufacturer and against Azzarello’s employer. The employer then moved for a new trial, which was granted by the trial court on the theory that the court’s charge was inconsistent with Berkebile, which had been decided subsequent to the charge and the jury’s verdict. In affirming the grant of the new trial motion, the supreme court in a unanimous opinion made it clear that reference in jury instructions to the “unreasonably dangerous” language of section 402A was reversible error mandating a new trial. The court noted that the phrase has “no independent significance and merely represent[s] a label to be used where it is determined that the risk of loss should be placed upon the supplier.” Because the determination of risk of loss is “a judicial function,” whether a product is “unreasonably dangerous” does not “fall within the orbit of a factual dispute which is properly assigned to the jury for resolution.” Thus, the court held that “[i]t is clear that the term ‘unreasonably dangerous’ has no place in the instructions to a jury” in a section 402A case. Under the doctrine of Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we, and the district court, are bound in diversity cases by the law of Pennsylvania as it has been determined by the state supreme court. Since that court has now ruled that a trial judge may not" }, { "docid": "1851248", "title": "", "text": "Mr. Holloway’s injuries. In any event, although the Holloways discussed this portion of the charge with the trial judge, they did not object to it or request a clarifying instruction. Accordingly, they may not contest the propriety of the charge on appeal. Fed.R.Civ.P. 51. The judgment of the district court will be affirmed; each side to bear its own costs. . App. § 6(a), at 9-158. . Deposition of Harry Roberts 179. . Record at 6-41 to 6-42, 10-97 to 10-99, 10-33. . Id. at 6-42 to 6-43. . Restatement (Second) of Torts § 402A (1965). The Pennsylvania Supreme Court has removed from consideration by the jury the question whether a defect causes the product to be “unreasonably dangerous.” Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). The court stated in Azzarello that the question is relevant to a judicial policy decision whether to assign liability to a particular seller, but could lead jurors to believe that the negligence concept of the “reasonable person” was a factor in assessing whether a product is defective. Id. at 554-60, 391 A.2d at 1025-27. . The reporters of the Restatement recognized that a seller’s failure to warn may itself be a defect in the product’s condition: In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. * * * * * * Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. Restatement (Second) of Torts § 402A, Comment j (1965). . As we have previously noted, whether a product is defective is, under Pennsylvania law, a question of fact. Heckman v. Federal Press Co., 587 F.2d 612, 617 (3d Cir. 1978). In the absence of an explicit challenge on appeal, we will not decide whether the evidence was sufficient to warrant submission of the case to the jury." }, { "docid": "17758203", "title": "", "text": "on Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), in which the Pennsylvania Supreme Court refused to follow a prior opinion representing the views of only two justices on the theory that it had “no binding precedential value.” Id. at 260, 248 A.2d at 35. We reached an identical result in Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 91 (3d Cir. 1976), where we held that a statement in Chief Justice Jones’ opinion in Berkebile that a defect exists when the seller fails to warn about a product’s risks and limitations did not become Pennsylvania law because it was not supported by a majority of the court. . See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). . The Bakers also claimed that even if Berkebile was equivocal as to the law of Pennsylvania, two Pennsylvania superior court cases decided after Berkebile established that an instruction based on the “unreasonably dangerous” language of section 402A was erroneous. See Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976); Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822 (1976). In its opinion denying the motion for a new trial, the district court rejected the Bakers’ interpretation of those cases. In view of our holding infra that Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), decided after both Lenkiewicz and Cornell Drilling, is the dispositive pronouncement of Pennsylvania law with respect to the “unreasonably dangerous” instruction, the two superior court cases are irrelevant to our disposition of this appeal. . For example, the trial court explained to the jury that: “one who sells any product in a defective condition, unreasonably dangerous to the user, is subject to liability”; that “the plaintiff must prove that the defendant sold the product involved in a defective condition, unreasonably dangerous to the user”; that “the focal issue in these cases is whether the absence of safety devices created an unreasonable danger to the operator”; and that “[a] properly made product is defective if its design is unreasonably dangerous.” See 480 Pa. 550, 391 A.2d" }, { "docid": "3369273", "title": "", "text": "liability, their counsel has advised that plaintiffs intend to proceed at trial only on a cause of action based on strict products liability or Restatement of Torts Second Section 402A. The elements of a Sec. 402A case in Pennsylvania are set forth succinctly in Schriner v. Pennsylvania Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128 (1985). To prevail, a plaintiff must establish the following: 1. a product; 2. a sale of product; 3. a user or consumer; 4. defective condition, unreasonably dangerous and 5. causation. If any of these requisite elements remains unsatisfied, Sec. 402A has no applicability. Id. 501 A.2d at 1132. Prior to submitting the case to a jury, the trial judge must determine whether the product is “unreasonably dangerous”. Whether or not a product is “unreasonably dangerous” is a social policy matter that is determined by the trial judge and is now settled law in Pennsylvania. “When a products liability claim is pleaded the trial judge makes a threshold determination whether as a matter of social policy the case is appropriate for treatment under the rubric of products liability. In making this determination the judge acts as a combination social philosopher and risk-utility economic analyst. Carrecter v. Colson Equipment Co., 346 Pa. Super. [95] at 101 n. 7, 499 A.2d [326] at 330 n. 7 [1985]”. See also footnote No. 6, in Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 545 A.2d 906 (1988). These threshold judicial determinations spring from an analysis of the Supreme Court of Pennsylvania’s decision in the case of Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 391 A.2d 1020 (1978). The Pennsylvania Superior Court in the case of Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 31, 527 A.2d 134 (1987), in discussing Azzarello stated: “In Azzarello the Supreme Court was asked to consider whether it was proper to instruct the jury using the term ‘unreasonably dangerous’ and the Court concluded that the jury should not be so instructed. The Court stated ‘even if we agree that the phrase “unreasonably dangerous” serves a useful purpose in predicting" }, { "docid": "19092710", "title": "", "text": "chemical (among others) under theories of negligence and strict liability. The Pennsylvania Superior Court held that he could recover even in the absence of privity. The court based liability on whether the manufacturer “place[d] a defective article in the stream of commerce.” Id. at 1079 (quoting Salvador, 319 A.2d at 907). Liability did not turn on the relationship between Pegg and the manufacturer. However, since the Superior Court’s decision in Pegg, the Supreme Court has issued opinions which appear to limit recovery under Section 402A to intended users. In Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), an employee’s right hand was injured when it was pinched between two hard rubber rollers in a coating machine owned by her employer. The employee sued the manufacturer asserting only a cause of action for strict liability under Section 402A, and the manufacturer joined the employer as an additional defendant arguing that the employer’s negligence caused the accident in whole or in part. The trial resulted in a verdict in favor of the manufacturer and the employee moved for a new trial, asserting, inter alia, that the trial judge incorrectly instructed the jury that her burden of proof under Section 402A required a showing that the machine was “unreasonably dangerous.” Id. at 1022. On appeal to the Supreme Court, the employee won a new trial. The Court held that the trial court’s use of “unreasonably dangerous” in the jury instructions had improperly introduced negligence concepts into the proceeding. Id. at 1025. The erroneous instruction burdened the injured plaintiff with proof of an element which rings of negligence. As a result, if, in the view of the trier of fact, the “ordinary consumer” would have expected the defective condition of a product, the seller is not strictly liable, regardless of the expectations of the injured plaintiff..... Id. at 1025 (citation and quotation marks omitted). The Court conceded that limiting liability to defects that are “unreasonably dangerous” “may ... serve the beneficial purpose of preventing the seller from being treated as the insurer of its products.” Id. (citation omitted). However," }, { "docid": "17758204", "title": "", "text": "v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822 (1976). In its opinion denying the motion for a new trial, the district court rejected the Bakers’ interpretation of those cases. In view of our holding infra that Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), decided after both Lenkiewicz and Cornell Drilling, is the dispositive pronouncement of Pennsylvania law with respect to the “unreasonably dangerous” instruction, the two superior court cases are irrelevant to our disposition of this appeal. . For example, the trial court explained to the jury that: “one who sells any product in a defective condition, unreasonably dangerous to the user, is subject to liability”; that “the plaintiff must prove that the defendant sold the product involved in a defective condition, unreasonably dangerous to the user”; that “the focal issue in these cases is whether the absence of safety devices created an unreasonable danger to the operator”; and that “[a] properly made product is defective if its design is unreasonably dangerous.” See 480 Pa. 550, 391 A.2d at 1022 n.2. . It is unclear from the state supreme court’s recitation of the facts whether the manufacturer was found to be not liable and the employer was found to be liable in an action by Azzarello against both of them, or whether the employer was held liable to the manufacturer in a third party suit after the manufacturer was found liable to Azzarello in the original suit. . 480 Pa. at 556, 391 A.2d at 1025. . Id. at 558, 391 A.2d at 1026. . Id. . Id. at 559, 391 A.2d at 1027. . Outboard claims that the court in Azzarello did not intend to suggest that the “mere use” of the words “unreasonably dangerous” in a jury charge automatically required a new trial. Supplemental Brief for Appellant at 1. Rather, in Outboard’s view, Azzarello holds only that a court cannot use “unreasonably dangerous” in such a way as to mislead the jury into thinking that a manufacturer’s liability depends on whether its conduct was unreasonable. Outboard asserts that the district court’s" }, { "docid": "2412387", "title": "", "text": "a verdict in favor of Mr. Pacheco on the issues of whether the tire changer was defective and whether the defect was a proximate cause of Mr. Pacheco’s injuries. In' accordance with the jury’s responses to the special interrogatories, the district court entered judgment in favor of Mr. Pacheco in the amount of $300,000, and in favor of Mrs. Pacheco in the amount of $25,000 on her claim for loss of consortium. The Coats Company and Hennessy Industries timely moved pursuant to Federal Rule of Civil Procedure 50 for a judgment notwithstanding the verdict, or alternatively, for a new trial pursuant to Federal Rule of Civil Procedure 59. They withdrew their Rule 59 motion; the district court denied their Rule 50 motion in an order dated July 20, 1998. Notwithstanding its acknowledgement that the trial produced conflicting evidence as to whether the Coats 40-40 was defective in design, the court found substantial evidence to support the jury’s verdict as to all the issues. The Coats Company and Hennessy Industries timely appealed the district court’s final order. Reviewing the record in a light most favorable to the non-moving party, we must ascertain de novo whether the record contains sufficient evidence to sustain the jury’s verdict. See, e.g., Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979) (in banc). II. Mr. Pacheco’s personal injury case was brought under the laws of Pennsylvania for defective products. The Pennsylvania Supreme Court has adopted § 402A of the Restatement (Second) of Torts to govern strict product liability claims. Webb v. Zern, 422 Pa. 424, 220 A.2d 853, 854 (1966). We review well-settled principles of Pennsylvania law regarding this section. A. Section 402A imposes strict liability for injuries caused by defective product design. See Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 592 (1987) (citations omitted). In Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court of Pennsylvania set forth the legal standard for defective design strict liability claims. The court held that before such a claim is submitted to a jury" }, { "docid": "17653941", "title": "", "text": "ram of the press. Following his injury the appellant brought this action against E. W. Bliss Company in the United States District Court. At trial the appellant proceeded under the theory that Bliss was strictly liable for his injury because Bliss’ failure to install adequate point of operation guards rendered the press unsafe for its intended use at the time it left the manufacturer’s hands. In its defense Bliss relied principally upon the doctrine of substantial change, as set forth in § 402A(l)(b) of the Restatement (Second) of Torts. According to Bliss it could not be held liable for the injuries suffered by Mr. Merriweather because the press in question had been substantially changed by General Electric after it had left Bliss’ control. Because of the nature of the defense raised by Bliss the trial court, in its charge to the jury, referred extensively to the concept of substantial change. The court refused, however, to charge that reasonably foreseeable changes in a product would not absolve the manufacturer of liability for injuries caused by that product. Instead, over the appellant’s objections, the court instructed the jury on substantial change without any reference to reasonable foreseeability. Given these instructions, the jury returned with a verdict for the defendant. In its motion for new trial the appellant raised the arguments which are made here: (1) that any reference to the doctrine of substantial change in a jury instruction was barred by the Pennsylvania Supreme Court’s decision in Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); (2) that, in this case, the question before the jury was one of proximate cause and not of substantial change; and, (3) that, if instructions were given on the question of substantial change, then those instructions must also discuss the foreseeability of such change. Appropriate requests for instruc tions and objections to the charge were timely made by appellant. The trial court denied this motion and the instant appeal followed. Because we believe that the appellant is correct on the last of these three contentions we will reverse and remand for a" } ]

[ { "docid": "945518", "title": "", "text": "for injuries (or benefits) that he sustains in common with the general community. In addition to an award based on the market value of the property, the property owner who is actually displaced is entitled, to reasonable moving expenses not to exceed $500 if the property is a private residence or $5,000 if the property is a place of business. The legislature has authorized participation by the State and its political subdivisions in the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Program. By such participation, the condemnor may pay to displaced property owners supplemental benefits to permit them to acquire replacement housing, rental supplements, and additional compensation for any expenses incurred in the transfer of the property to the condemnor. In Corbin, the Supreme Court of Texas recently summarized .what may be taken into consideration in ascertaining the market value of the property as of the time of the taking. In determining the landowner’s just compensation for what is táken from him, the fact finder is entitled to consider every factor affecting the price which the prudent and willing buyer and seller would exchange for the property. Some realities, however, must be excluded from the computation, which means that the exercise becomes to some extent hypothetical. The willingness and ability of buyer and seller are assumed. The fact of condemnation itself is excluded; fair market value must, by definition, be computed as if there were no proceedings to eliminate that market. 504 S.W.2d at 830. Under this standard, modification of the fair market value “is allowed up to the time that the condemnor manifests a definite purpose to take the particular land,” even though this announcement preceeds the filing of a Statement in Condemnation in the County Court at Law. City of Fort Worth v. Corbin, 504 S.W.2d at 831-832. Just as the property owners in Corbin could not benefit by the increase in fair market value that developed after the announcement of the public project and before the filing of the Statement in Condemnation, so too property owners cannot be divested of justifiable compensation due to a" } ]

[ { "docid": "22102868", "title": "", "text": "I. My disagreement with the majority opinion centers around the second ripeness requirement, that the Dodds “seek compensation through the procedures the State has provided for doing so.” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985). According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95, 105 S.Ct. at 3120-21. The Supreme Court in Williamson County did not state that claimants seeking just compensation from state or local governments need seek in state proceedings only the remedies provided by state law. Rather, the Court required claimants to utilize state “procedures” to obtain just compensation. Id. at 194, 105 S.Ct. at 3120. The procedure available to the claimant in Williamson County was an inverse condemnation suit, as provided by Tenn.Code Ann. § 29-16-123. 473 U.S. at 196-97, 105 S.Ct. at 3121-22. Inverse condemnation suits do not provide only the just compensation required under state law. Rather, such suits are a method of obtaining the just compensation required by the Fifth and Fourteenth Amendments. “A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987) (internal quotation omitted). “Claims for just compensation are grounded in the Constitution itself.” Id. The state procedure Williamson County references is the procedure necessary to raise a federal taking claim in state court. Thus, under Williamson County, a taking claimant must litigate the federal constitutional claim through the processes the state provides. The Supreme Court also compared the process for making a claim, against state or local governments to the process for making a claim against the federal government. A taking claim against the federal government is “premature until" }, { "docid": "22711020", "title": "", "text": "act by a state employee does not state a claim under the Due Process Clause merely by alleging the deprivation of property. In such a situation, the Constitution does not require predeprivation process because it would be impossible or impracticable to provide a meaningful hearing before the deprivation. Instead, the Constitution is satisfied by the provision of meaningful postdeprivation process. Thus, the State’s action is not “complete” in the sense of causing a constitutional injury “unless or until the state fails to provide an adequate postdeprivation remedy for the property loss.” Hudson v. Palmer, 468 U. S. 517, 532, n. 12 (1984). Likewise, because the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State’s action here is not “complete” until the State fails to provide adequate compensation for the taking. Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances. Tenn. Code Ann. § 29-16-123 (1980). The statutory scheme for eminent domain proceedings outlines the procedures by which government entities must exercise the right of eminent domain. §§29-16-101 to 29-16-121. The State is prohibited from “entering] upon [condemned] land” until these procedures have been utilized and compensation has been paid the owner, § 29-16-122, but if a government entity does take possession of the land without following the required procedures, “the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way....” § 29-16-123. The Tennessee state courts have interpreted §29-16-123 to allow recovery through inverse condemnation where the “taking” is effected by restrictive zoning laws or development regulations. See Davis v. Metropolitan Govt. of Nashville, 620 S. W. 2d 532, 533-534 (Tenn. App. 1981); Speight v. Lockhart, 524 S. W. 2d 249 (Tenn. App. 1975). Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has" }, { "docid": "3847976", "title": "", "text": "From the time the con-demnor files the original statement or petition seeking condemnation until the time of the special commissioners’ award, the proceeding is administrative in nature. See Amason, 682 S.W.2d at 242; Lower Nueces River Water Supply Dist. v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 754 (1959); Blackstock, 879 S.W.2d at 126. If the condemnor is satisfied with the award, it must either pay the amount of the award to the condemnee or deposit that amount in the court’s registry. See Tex.Prop.Code Ann. § 21.021(a)(1); Blackstock, 879 S.W.2d at 126. If there is dissatisfaction with the special commissioners’ award, either party may file timely objections in the appropriate court. See Tex.Prop.Code Ann. § 21.018(a); Blackstock, 879 S.W.2d at 126. Upon the filing of the objections, the special commissioners’ award is vacated, and the administrative proceeding converts into a normal judicial case in civil court. See Tex.Prof.Code Ann. § 21.018(b); Amason, 682 S.W.2d at 242; Blackstock, 879 S.W.2d at 126-27. TxDOT is a Texas governmental authority with the power of eminent domain. See Tex. Transp.Code Ann. § 224.001. In Texas, as in many jurisdictions, a genuine effort to purchase the land by agreement between the parties, and a failure to do so, is a condition precedent to commencing condemnation proceedings: (a) If the United States, this state, a political subdivision of this state, a corporation with eminent domain authority, or an irrigation, water improvement, or water power control district created by law wants to acquire real property for public use but is unable to agree with the owner of the property on the amount of damages, the condemning entity may begin a condemnation proceeding by filing a petition in the proper court. Tex.Prop.Code AnN. § 21.012. In this case, the institution of formal condemnation proceedings was not required because Weingarten agreed to convey the property to TxDOT. The deed of conveyance specifically states that “THE CONSIDERATION RECITED HEREIN REPRESENTS A SETTLEMENT AND COMPROMISE BY ALL PARTIES AS TO THE VALUE OF THE PROPERTY HEREIN CONVEYED IN ORDER TO AVOID FORMAL EMINENT DOMAIN PROCEEDINGS AND THE ADDED EXPENSES OF LITIGATION.”" }, { "docid": "3847977", "title": "", "text": "Transp.Code Ann. § 224.001. In Texas, as in many jurisdictions, a genuine effort to purchase the land by agreement between the parties, and a failure to do so, is a condition precedent to commencing condemnation proceedings: (a) If the United States, this state, a political subdivision of this state, a corporation with eminent domain authority, or an irrigation, water improvement, or water power control district created by law wants to acquire real property for public use but is unable to agree with the owner of the property on the amount of damages, the condemning entity may begin a condemnation proceeding by filing a petition in the proper court. Tex.Prop.Code AnN. § 21.012. In this case, the institution of formal condemnation proceedings was not required because Weingarten agreed to convey the property to TxDOT. The deed of conveyance specifically states that “THE CONSIDERATION RECITED HEREIN REPRESENTS A SETTLEMENT AND COMPROMISE BY ALL PARTIES AS TO THE VALUE OF THE PROPERTY HEREIN CONVEYED IN ORDER TO AVOID FORMAL EMINENT DOMAIN PROCEEDINGS AND THE ADDED EXPENSES OF LITIGATION.” Wein-garten’s appraisal expert, David Bolton (“Bolton”), confirmed at deposition that “[t]he taking was ... a negotiated purchase.” An agreement to convey property to a governmental authority has the same effect as a formal condemnation proceeding. See United States v. Petty Motor Co., 327 U.S. 372, 374-75, 66 S.Ct. 596, 90 L.Ed. 729 (1946); Harris County Flood Control Dist. v. Glenbrook Patiohome Owners Ass’n, 933 S.W.2d 570, 577 (Tex. App.—Houston [1st Dist.] 1996, writ denied). “The conveyance of land for a public purpose will ordinarily vest in the grantee the same rights as though the land had been acquired by condemnation proceedings.” State v. Brewer, 141 Tex. 1, 169 S.W.2d 468, 471 (1943); see Petty Motor Co., 327 U.S. at 374, 66 S.Ct. 596; Ervay, Inc., 373 S.W.2d at 383. Indeed, “whenever the owner accepts a sum of money as compensation for land for such a use, his property, to the extent of the taking, is expropriated to the use of the public.” Howard v. Nolan County, 319 S.W.2d 947, 950 (Tex.Civ.App.—Eastland 1959, no writ). The" }, { "docid": "6955088", "title": "", "text": "the Takings Clause of the Fifth Amendment (applied against the states through the Fourteenth Amendment). Complaint ¶¶ 20-21, Appellants’ Appendix at D-8. But, the Himelsteins’ complaint is premature. As the Supreme Court recently opined: The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. [264], at 297, n. 40 [101 S.Ct. 2352, at 2371, n. 40, 69 L.Ed.2d 1 (1981)]. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a “ ‘reasonable, certain and adequate provision for obtaining compensation’ ” exist at the time of the taking. Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-125 [95 S.Ct. 335, 349, 42 L.Ed.2d 320] (1974) (quoting Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 [10 S.Ct. 965, 971-972, 34 L.Ed. 295] (1890))_ [I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used that procedure and been denied compensation. [Bjecause the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State’s action here is not “complete” until the State fails to provide adequate compensation for the taking. Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194-195, 105 S.Ct. 3108, 3120-3121, 87 L.Ed.2d 126 (1985) (citations and footnote omitted). The Himelsteins’ takings claim was dismissed, in part, because the Himelsteins had not attempted to bring an inverse condemnation suit in Indiana. The dismissal was correct. All of the circuits, including ours, that have so far interpreted Williamson have held that a federal takings claim is not ripe until it is apparent that the state does not intend to pay compensation. This means that the Himelsteins must bring an inverse condemnation suit in the Indiana courts before a takings claim will be ripe for prosecution in the federal arena. Coniston Corp. v. Village of" }, { "docid": "22471977", "title": "", "text": "ripe because the plaintiffs had not yet availed themselves of the state procedures for seeking just compensation. In the alternative, the court held that the defendants’ alleged actions did not rise to the level of a taking. The Fifth Amendment proscribes the taking of private property for public use without just compensation. See U.S. Const, amend. V. It is well-recognized that this prohibition applies to state and local governments under the Fourteenth Amendment. See Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897). The Supreme Court has recognized that just compensation need not be paid in advance of the taking' — “all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking.” Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (quotation omitted). Therefore, if a state has provided an adequate procedure for seeking just compensation and a landowner has used those procedures to obtain just compensation, there is no violation of the Takings Clause. See id. It follows that “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation.” Id. at 195, 105 S.Ct. 3108. Pennsylvania’s Eminent Domain Code provides inverse condemnation procedures through which a landowner may seek just compensation for the taking of property. See 26 Pa. Cons.Stat. Ann. §§ 1-408, 1-502(e), 1-609. Indeed, many landowners have invoked these procedures to seek just compensation for takings. See, e.g., In re Prop. Situate Along Pine Rd. in Earl Township, 743 A.2d 990 (Pa.Commw.1999); Gross v. City of Pittsburgh, 741 A.2d 234 (Pa.Commw.1999); Lehigh-Northampton Airport Auth. v. WBF Assocs., 728 A.2d 981 (Pa.Commw.1999). In the case at hand, the plaintiffs do not contend that they attempted to use these procedures but were denied just compensation. Instead, they argue they were not required to file an inverse condemnation petition because the" }, { "docid": "8042439", "title": "", "text": "(1974)), the taking is not complete until the state fails to provide adequate compensation. Thus, the Court in Williamson held, Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances. Tenn.Code Ann. § 29-16-123 (1980). The statutory scheme for eminent domain proceedings outlines the procedures by which government entities must exercise the right of eminent domain. §§ 29-16-101 to 29-16-121. The State is prohibited from “enter[ing] upon [condemned land]” until these procedures have been utilized and compensation has been paid the owner, § 29-16-122, but if a government entity does take possession of the land without following the required procedures, “the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way ...” § 29-16-123. ... Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature. Williamson, 473 U.S. at 196-97, 105 S.Ct. at 3122. The case before us, however, is not a claim of taking by application of governmental regulation; it is not a case in which the property owner has failed to resort to the administrative procedures which might obviate the need to address the constitutional question; it is not a case in which the state has provided a statutory procedure to obtain post-deprivation compensation. The case before us is a completed physical taking of the appellants’ property by the Village, without notice and wholly in violation of the statutory requirements governing appropriation of property. Of particular importance here, unlike Tennessee and a number of other states which have explicit statutory procedures governing inverse condemnation to compensate landowners whose property has been taken in violation of the Constitution and the state’s eminent-domain statutes, Ohio does not have such a statute. Ohio property owners who find themselves in the Kruses’ position do not have available to them “reasonable, certain and adequate” state" }, { "docid": "19186783", "title": "", "text": "application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Hamilton Bank, supra, 473 U.S. at 186, 105 S.Ct. at 3117, 87 L.Ed.2d at 139. Further, and more importantly here, the Court in Hamilton Bank held that, “... if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the just compensation clause [of the Fifth Amendment] until [the property owner] has used the procedure and been denied just compensation.” Hamilton Bank, supra, 473 U.S. at 172, 105 S.Ct. at 3121, 87 L.Ed.2d at 144. Accordingly, after noting that the relevant state law gave to plaintiff a cause of action for inverse condemnation in order to obtain just compensation for an alleged taking of property by the government, the Court in Hamilton Bank concluded that, since “[Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until [he] has utilized that procedure, [his] taking claim is premature.” Hamilton Bank, supra, 473 U.S. at 196-197,105 S.Ct. at 3122,87 L.Ed.2d at 145. See also MacDonald, Sommer & Frates v. Yolo County, 477 U.S.-, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). In applying the Hamilton Bank rule to the instant case, this Court is of the opinion that the plaintiff’s Fifth Amendment claim (Count II) is due to be dismissed inasmuch as the plaintiff has admittedly failed to utilize Alabama’s post-taking remedy of an inverse condemnation action. Indeed, as recognized by the plaintiff himself, it has long been the rule of law in Alabama that an inverse condemnation action may be maintained against the state or a subdivision thereof if private property is taken by an entity having the power of condemnation and that taking is without the payment of just compensation. See Middleton v. St. Louis & S.F.R. Co., 288 Ala. 323, 153 So. 256 (1934); Hunter v. City of Mobile, 244 Ala. 318, 13 So.2d 656 (1943); Engelhardt v. Jenkins," }, { "docid": "23043318", "title": "", "text": "S.Ct. 158, 67 L.Ed. 322 (1922)), then they will have shown a deprivation of a property right. On the second prong, the plaintiffs allege that the Board’s actions were unrelated to the public welfare because their land is not suitable for its present zoning status. Accordingly, the plaintiffs’ complaint states as applied arbitrary and capricious due process claims. These counts (three and eight) should proceed. 4.Counts Four and Nine of Complaint Counts four and nine of the plaintiffs’ complaint allege that the Board’s actions amounted to a confiscation of property. A claim that a government regulation effects a taking of property without just compensation is not ripe until the government entity charged with implementing the regulation has made a final decision regarding the application of the regulation to the property at issue. Williamson County, 473 U.S. at 186, 105 S.Ct. at 3116; Eide, at 720. Moreover, if the government has provided an adequate process for the property owner to obtain compensation, and if resort to that process yields just compensation, then the owner has no just compensation claim. Williamson County, 473 U.S. at 194-95, 105 S.Ct. at 3120-21. Reverse condemnation proceedings are one procedure for pursuing just compensation. Id. at 196-97, 105 S.Ct. at 3121-22. In First Lutheran Church, the Supreme Court held that when a state regulation temporarily deprives a property owner of all use of his property, the state must provide compensation under the just compensation clause. First Lutheran Church, 482 U.S. at 315, 107 S.Ct. at 2386. The Florida courts have recognized that under First Lutheran Church property owners have the right to bring reverse condemnation proceedings seeking compensation for regulatory takings. Joint Ventures, at 622. Accordingly, under Williamson County the plaintiffs’ claims that the government has confiscated property without just compensation (counts four and nine) are not ripe for adjudication because the plaintiffs have not pursued compensation through a reverse condemnation proceeding. Williamson County, 473 U.S. at 195, 105 S.Ct. at 3121 (“a property owner has not suffered a violation of the just compensation clause until the owner has unsuccessfully attempted to obtain just compensation_”); see" }, { "docid": "6294691", "title": "", "text": "Appellants maintain that the appellees’ action in wrongfully issuing the building permit upon land which they knew or should have known was unsuitable for a septic tank system resulted in their inability to use the dwelling as a residence. We find no merit to this claim. The just compensation clause of the Fifth Amendment prohibits private property from being taken for public use without just compensation. That clause is made applicable to the states through the due process clause of the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980). The question of what constitutes a taking has, in many instances proven to be a problem of considerable difficulty. Obviously, when a government entity exercises its power of eminent domain to obtain title to the property through formal condemnation proceedings there has been a taking. See, e.g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed.2d 27 (1954). A permanent physical occupation of the property through some state usage or authorization, absent a formal condemnation proceeding, may also be a taking. See, e.g., Loretto v. Teleprompter Manhattan CATV. Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (installation of cable television equipment on private property pursuant to state authorization). Where the government condemns a leasehold interest for temporary use, the “taking” includes the value of fixtures and permanent improvements as well as the lessee’s cost of moving. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed.2d 311 (1945). Finally, police power regulations restricting the use of property may in some limited circumstances amount to a taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed.2d 322 (1922) (State regulation prohibiting an owner from mining coal it owned beneath the house of an owner who bought only an interest in the surface). In this case, in order for there to have been a taking, plaintiffs must allege they have been denied any viable economic use of their property. See Hernandez v. City of" }, { "docid": "3847973", "title": "", "text": "physical appropriation is not required.” Felts, 915 S.W.2d at 484; see State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994); City of Austin v. Teague, 570 S.W.2d 389, 393 (Tex.1978); DuPuy v. City of Waco, 396 S.W.2d 103, 106 (Tex.1965); State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736 (1941). “An owner acquires a legal right to compensation when he sustains a legal injury respecting his ‘property.’ Under the condemnation statutes, this occurs when a condemnor acquires title to the whole or a part of the owner’s ‘property.’ ” State v. Schmidt, 805 S.W.2d 25, 29 (Tex.App.—Austin 1991), rev’d on other grounds, 867 S.W.2d 769 (Tex.1993). Generally, in Texas, “the government compensates the owner before appropriating property, either by paying a mutually agreed price or by paying the value as determined in a statutory condemnation proceeding.” Westgate, Ltd., 843 S.W.2d at 452; see Tex.Prop.Code Ann. § 21.042; Callaway, 971 S.W.2d at 148; Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 746 (Tex.App.—Houston [1st Dist.] 1988, no writ). “If, however, the government appropriates property without paying adequate compensation, the owner may recover the resulting damages in an ‘inverse condemnation’ suit.” Westgate, Ltd., 843 S.W.2d at 452; see Teague, 570 S.W.2d at 393; Callaway, 971 S.W.2d at 148; Trail Enters., Inc., 957 S.W.2d at 630; Woodson Lumber Co., 752 S.W.2d at 746. “An inverse condemnation may occur when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner’s right to use and enjoy the property, such as by restricting access or denying a permit for development.” Westgate, Ltd., 843 S.W.2d at 452; see Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 904, 130 L.Ed.2d 787 (1995); Teague, 570 S.W.2d at 393; Callaway, 971 S.W.2d at 148; Trail Enters., Inc., 957 S.W.2d at 630. “Governmental restrictions on the use of property can be so burdensome that they result in a compensable taking.” Id. In Texas, the statutory land condemnation procedure is a two-part process involving, first, an administrative hearing, and then, if necessary, a" }, { "docid": "3847974", "title": "", "text": "property without paying adequate compensation, the owner may recover the resulting damages in an ‘inverse condemnation’ suit.” Westgate, Ltd., 843 S.W.2d at 452; see Teague, 570 S.W.2d at 393; Callaway, 971 S.W.2d at 148; Trail Enters., Inc., 957 S.W.2d at 630; Woodson Lumber Co., 752 S.W.2d at 746. “An inverse condemnation may occur when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner’s right to use and enjoy the property, such as by restricting access or denying a permit for development.” Westgate, Ltd., 843 S.W.2d at 452; see Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 904, 130 L.Ed.2d 787 (1995); Teague, 570 S.W.2d at 393; Callaway, 971 S.W.2d at 148; Trail Enters., Inc., 957 S.W.2d at 630. “Governmental restrictions on the use of property can be so burdensome that they result in a compensable taking.” Id. In Texas, the statutory land condemnation procedure is a two-part process involving, first, an administrative hearing, and then, if necessary, a judicial proceeding. See State v. Blackstock, 879 S.W.2d 125, 126 (Tex.App.—Houston [14th Dist.] 1994, writ denied) (citing Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241-42 (Tex.1984)). When a condemning authority desires to condemn land for public use, but cannot agree on settlement terms with the landowner, the governmental authority must file a statement seeking condemnation in the proper court. See Tex. Prop.Code Ann. § 21.012(a); Blackstock, 879 S.W.2d at 126. The statement or petition must be filed either in the district court or the county court at law of the county in which the land is located. See TexPROP.Code Ann. §§ 21.001, 21.013; Blackstock, 879 S.W.2d at 126. Upon the filing of the petition, the trial court judge appoints as special commissioners three disinterested landowners who are residents of the county. See id. The special commissioners assess the damages of the landowner and submit an award which reflects their opinion regarding the value of the condemned land. See TexPROP.Code Ann. §§ 21.014-21.016, 21.042; Amason, 682 S.W.2d at 241-42; Blackstock, 879 S.W.2d at 126." }, { "docid": "945507", "title": "", "text": "a judicial question. This power resides in the Legislature, and may either be exercised by the Legislature or delegated by it to public officers. “Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the State may designate. They are legislative questions, no matter who may be charged with their decision . . . .” (Citation omitted) Rindge Co. v. County of Los Angeles, 262 U.S. 700, 709, 43 S.Ct. 689, 693, 67 L.Ed. 1186 (1923). Accord Sears v. City of Akron, 246 U.S. 242, 251, 38 S.Ct. 245, 62 L.Ed. 688 (1918). 2. Pre-Judgment Possession. Plaintiffs next challenge the litigation procedures that precede a final adjudication of the propriety and cost of an appropriation of private property. The gravamen of their complaint on this point is that potential condemnors may acquire the right to possession through Article 3268 prior to an adjudication of the right of condemnation, the necessity for condemnation, or the amount of compensation to be paid. We are unable to find a constitutional defect in this portion of the eminent domain framework. Initially, we note that both the Texas Constitution and the Fourteenth Amend ment require that condemnation be for a public purpose and that just compensation be paid to the property owner. Any owner who believes that the condemnor is without authority to initiate condemnation proceedings or that there is no public purpose for the condemnation has two avenues of judicial review. First, by including these issues in the written objections filed in response to the Report of the Special Commissioners in Condemnation, the property owner may litigate these matters in the County Court at Law with the right of appellate review of any final judgment. Pursuit of this avenue of review does pose the risk that the condemnor will gain the right of possession through Article 3268. As an alternative, however, property owners may commence a simultaneous collateral injunctive action in district court. If the proposed appropriation is not for a public purpose or the condemn- or does not have" }, { "docid": "3847972", "title": "", "text": "Yee, 503 U.S. at 522, 112 S.Ct. 1522. “But where the government merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole.” Id. at 522-23, 112 S.Ct. 1522. The Texas Constitution also contains a “Takings Clause,” which provides that “[n]o person’s property shall be taken, damaged or destroyed for or applied to a public use without adequate compensation being made.” Tex. Const, art. I, § 17; see Felts v. Harris County, 915 S.W.2d 482, 484 (Tex.1996); Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992); Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 148 (Tex.App.—Austin 1998, no pet.); Trail Enters., Inc., 957 S.W.2d at 630. As with the United States Constitution, under the Takings Clause of the Texas Constitution, “an actual taking or physical appropriation is not required.” Felts, 915 S.W.2d at 484; see State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994); City of Austin v. Teague, 570 S.W.2d 389, 393 (Tex.1978); DuPuy v. City of Waco, 396 S.W.2d 103, 106 (Tex.1965); State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736 (1941). “An owner acquires a legal right to compensation when he sustains a legal injury respecting his ‘property.’ Under the condemnation statutes, this occurs when a condemnor acquires title to the whole or a part of the owner’s ‘property.’ ” State v. Schmidt, 805 S.W.2d 25, 29 (Tex.App.—Austin 1991), rev’d on other grounds, 867 S.W.2d 769 (Tex.1993). Generally, in Texas, “the government compensates the owner before appropriating property, either by paying a mutually agreed price or by paying the value as determined in a statutory condemnation proceeding.” Westgate, Ltd., 843 S.W.2d at 452; see Tex.Prop.Code Ann. § 21.042; Callaway, 971 S.W.2d at 148; Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 746 (Tex.App.—Houston [1st Dist.] 1988, no writ). “If, however, the government appropriates" }, { "docid": "23583108", "title": "", "text": "contents of the complaint, and all allegations of material fact must be taken as true and construed in the light most favorable to the non-moving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986). DISCUSSION A. The Fifth Amendment Taking Claim Cassettari contends that the County’s conduct “resulted in a permanent and substantial interference with Plaintiffs’ use and enjoyment of their property rights amounting to a taking of an interest in Plaintiffs’ property and property rights, without compensation, in violation of the Fifth Amendment to the United States Constitution.” Cassettari does not allege that he made use of the state procedures which were available for obtaining just compensation for the taking of his property. In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court addressed the issue whether a taking of private property by a county can be deemed a violation of the fifth amendment’s just compensation clause prior to use of available state compensation procedures. The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a “ ‘reasonable, certain and adequate provision for obtaining compensation’ ” exist at the time of the taking_ Thus ... if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances.... Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature. Williamson, 473 U.S. at 194-97, 105 S.Ct. at 3121-22 (citations omitted) (footnotes omitted) (emphasis added). California law permits a" }, { "docid": "8042438", "title": "", "text": "Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause.... [Tjhis Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. Id. at 190-91, 105 S.Ct. at 3118-19 (internal citations omitted) (emphasis added). Second, the Court held that because the Takings Clause of the Fifth Amendment does not require pretaking compensation, so long as the state has, at the time of the taking, “a reasonable, certain and adequate provision for obtaining compensation,” id. at 194, 105 S.Ct. at 3120 (internal quotation marks omitted) (quoting Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 124-25, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974)), the taking is not complete until the state fails to provide adequate compensation. Thus, the Court in Williamson held, Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances. Tenn.Code Ann. § 29-16-123 (1980). The statutory scheme for eminent domain proceedings outlines the procedures by which government entities must exercise the right of eminent domain. §§ 29-16-101 to 29-16-121. The State is prohibited from “enter[ing] upon [condemned land]” until these procedures have been utilized and compensation has been paid the owner, § 29-16-122, but if a government entity does take possession of the land without following the required procedures, “the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way ...” § 29-16-123. ... Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has" }, { "docid": "5392737", "title": "", "text": "legislature, Ill.Const. art. 13 § 4; Ill.Rev. Stat. ch. 85 ¶¶ 1-101 et seq.) could be enjoined. Laws authorizing condemnation entitle a governmental entity (and sometimes a private one as well, usually a railroad or other company needing a right of way) to take private property for its own use without the owner’s consent. But because there is a just-compensation requirement in our world, the taker must pay the fair market value of the property. Normally it files a petition for condemnation. Suppose it does not — it just takes the property. It cannot by doing so extinguish the owner’s right to the fair market value of his property. The owner can bring a suit for inverse condemnation, in effect treating the case as one in which the taker had filed a petition for condemnation, and requiring the taker to pay the fair market value of what it has taken. This remedy (which in Illinois is judicially created, Roe v. Cook County, 358 Ill. 568, 570-72, 193 N.E. 472, 473 (1934)) protects the interests of the state as well as of the citizen. For it enables the state to oppose injunctions against takings on the ground that the owner’s only right is to monetary compensation — the whole point of eminent domain is to prevent the owner from resisting the compelled taking of his property — and he can get that in the inverse-condemnation suit. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-17, 104 S.Ct. 2862, 2879-80, 81 L.Ed.2d 815 (1984); Lake Louise Improvement Ass’n v. Multimedia Cablevision of Oak Lawn, Inc., 157 Ill.App.3d 713, 717, 109 Ill.Dec. 914, 917, 510 N.E.2d 982, 985 (1987). Nothing in the notion of “property,” whether as used in the due process clause of the Fourteenth Amendment, which has been held (by incorporation of the just-compensation clause of the Fifth Amendment) to require just compensation when state government takes private property for a public use, or in the constitutional and statutory provisions of Illinois governing condemnation, limits condemnation and inverse condemnation to real property. It is rare for American governments to requisition personal property," }, { "docid": "8042437", "title": "", "text": "argues, and the district court found, that Williamson requires a plaintiff to avail himself of state procedures for obtaining compensation, or to demonstrate that those procedures are inadequate, prior to bringing an action under § 1983, and that the Kruses’ claims are not ripe because they did not pursue a state-law cause of action for inverse condemnation. We think, however, that Williamson does not require this result in the case at hand. The issue in Williamson on which the Supreme Court granted certiorari was “whether Federal, State, and Local governments must pay money damages to a landowner whose property allegedly has been ‘taken’ temporarily by the application of government regulations.” 473 U.S. at 185, 105 S.Ct. at 3115. The Court ultimately held that the property owner’s 42 U.S.C. § 1983 action was not ripe because the property owner had neither obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to the property nor utilized the procedures Tennessee provides for obtaining just compensation. As to the first ground, the Court explained, Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause.... [Tjhis Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. Id. at 190-91, 105 S.Ct. at 3118-19 (internal citations omitted) (emphasis added). Second, the Court held that because the Takings Clause of the Fifth Amendment does not require pretaking compensation, so long as the state has, at the time of the taking, “a reasonable, certain and adequate provision for obtaining compensation,” id. at 194, 105 S.Ct. at 3120 (internal quotation marks omitted) (quoting Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 124-25, 95 S.Ct. 335, 349, 42 L.Ed.2d 320" }, { "docid": "3847975", "title": "", "text": "judicial proceeding. See State v. Blackstock, 879 S.W.2d 125, 126 (Tex.App.—Houston [14th Dist.] 1994, writ denied) (citing Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241-42 (Tex.1984)). When a condemning authority desires to condemn land for public use, but cannot agree on settlement terms with the landowner, the governmental authority must file a statement seeking condemnation in the proper court. See Tex. Prop.Code Ann. § 21.012(a); Blackstock, 879 S.W.2d at 126. The statement or petition must be filed either in the district court or the county court at law of the county in which the land is located. See TexPROP.Code Ann. §§ 21.001, 21.013; Blackstock, 879 S.W.2d at 126. Upon the filing of the petition, the trial court judge appoints as special commissioners three disinterested landowners who are residents of the county. See id. The special commissioners assess the damages of the landowner and submit an award which reflects their opinion regarding the value of the condemned land. See TexPROP.Code Ann. §§ 21.014-21.016, 21.042; Amason, 682 S.W.2d at 241-42; Blackstock, 879 S.W.2d at 126. From the time the con-demnor files the original statement or petition seeking condemnation until the time of the special commissioners’ award, the proceeding is administrative in nature. See Amason, 682 S.W.2d at 242; Lower Nueces River Water Supply Dist. v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 754 (1959); Blackstock, 879 S.W.2d at 126. If the condemnor is satisfied with the award, it must either pay the amount of the award to the condemnee or deposit that amount in the court’s registry. See Tex.Prop.Code Ann. § 21.021(a)(1); Blackstock, 879 S.W.2d at 126. If there is dissatisfaction with the special commissioners’ award, either party may file timely objections in the appropriate court. See Tex.Prop.Code Ann. § 21.018(a); Blackstock, 879 S.W.2d at 126. Upon the filing of the objections, the special commissioners’ award is vacated, and the administrative proceeding converts into a normal judicial case in civil court. See Tex.Prof.Code Ann. § 21.018(b); Amason, 682 S.W.2d at 242; Blackstock, 879 S.W.2d at 126-27. TxDOT is a Texas governmental authority with the power of eminent domain. See Tex." }, { "docid": "22471978", "title": "", "text": "has used those procedures to obtain just compensation, there is no violation of the Takings Clause. See id. It follows that “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation.” Id. at 195, 105 S.Ct. 3108. Pennsylvania’s Eminent Domain Code provides inverse condemnation procedures through which a landowner may seek just compensation for the taking of property. See 26 Pa. Cons.Stat. Ann. §§ 1-408, 1-502(e), 1-609. Indeed, many landowners have invoked these procedures to seek just compensation for takings. See, e.g., In re Prop. Situate Along Pine Rd. in Earl Township, 743 A.2d 990 (Pa.Commw.1999); Gross v. City of Pittsburgh, 741 A.2d 234 (Pa.Commw.1999); Lehigh-Northampton Airport Auth. v. WBF Assocs., 728 A.2d 981 (Pa.Commw.1999). In the case at hand, the plaintiffs do not contend that they attempted to use these procedures but were denied just compensation. Instead, they argue they were not required to file an inverse condemnation petition because the Township did not have legal authority under the Eminent Domain Code or any other power to impose the hens. In addition, they claim that they “exhausted state remedies” by raising the merits of the two liens in bankruptcy court. We reject the plaintiffs’ arguments. The plaintiffs’ ability to file an inverse condemnation petition in state court in order to obtain just compensation was not related to the Township’s right to impose the liens. In addition, adjudication in federal bankruptcy court is not an appropriate alternative to the state inverse condemnation procedures. As the Township notes, the bankruptcy courts never determined whether there had been a taking of the plaintiffs’ property. Because the plaintiffs have not availed themselves of the appropriate procedures under Pennsylvania law to obtain just compensation, we agree with the District Court that their takings claim is not ripe. Even if the plaintiffs’ takings claim were ripe, the defendants’ actions do not amount to a taking. The plaintiffs argue the two liens amounted to a regulatory taking because the liens forced them to" } ]

[ { "docid": "22719281", "title": "", "text": "may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the .law. It reduces the Fourth Amendment to a form of words. 232 U. S. 393. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot bé used by it in the way proposed. The numerous decisions, like Adams v. New York, 192 U. S. 585, holding that a collateral inquiry into the mode in which evidence has been got will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding, as is explained in Weeks v. United States, 232 U. S. 383, 394, 395. Whether some of those decisions have gone too far or have given wrong reasons it is unnecessary to inquire; the principle applicable to the present case seems to us plain. It is stated satisfactorily in Flagg v. United States, 233 Fed. Rep. 481, 483. In Linn v. United States, 251 Fed. Rep. 476, 480, it was thought that a different rule applied to a corporation, on the ground that it was not privileged from producing its" } ]

[ { "docid": "22648749", "title": "", "text": "the time that the prohibition agents were there. These affidavits show that O’Brien said he had a warrant of arrest and produced a paper which several of these affiants say they read and believe to be the warrant issued by the commissioner, a copy bf which was filed with the moving papers. As to these details there is no conflict in the evidence. The district court refused to sustain the contention that no use was made of thé warrant and accepted the state- ■ ments that O’Brien claimed to have warrants for the arrests and searches. The Circuit Court of Appeals did not definitely express opinion as to that matter. We have examined the evidence. It requires a finding that O’Brien did so claim, that he had the warrant issued by the commissioner or a copy of it and that when he arrested Gowen and Bartels he claimed and purported to act under the warrant. No warrant for the search of the premises was issued. The orders dismissing petitioners’ suits in equity are not before us. The question whether the district court had jurisdiction summarily-to deal with petitioners’ applications, while not brought forward by the parties, arises upon the record, was considered by the Circuit Court of Appeals and suggested during the argument here. United States, commissioners are inferior officers. United States v. Allred, 155 U. S. 591, 594. Rice v. Ames, 180 U. S. 371, 377, 378. Cf. Ex parte Hennen, 13 Pet. 230, 257, et seg. The Act of May 28, 1896, 29 Stat. 184, abolished commissioners of the circuit courts, authorized each district court to appoint United States commissioners, gave to them the same powers and duties that commissioners of the circuit courts had, required such appointments to be entered of record in the district courts, provided that the commissioners should hold their office subject to removal by the court appointing them (28 U. S. C., § 526) and required them to keep records of proceedings before them in criminal cases and deliver the same to the clerks of the courts on the commissioners’ ceasing to hold" }, { "docid": "22648752", "title": "", "text": "18 U. S. C., § 591. All the commissioner’s acts and the things doné by the prohibition officers in respect of this matter were preparatory and preliminary to a consideration of the charge by a grand jury and, if an indictment should be found, the final disposition of the case in the district court. The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time. Todd v. United States, ubi supra. Collins v. Miller, ubi supra. United States v. Berry, supra. United States v. Casino, 286 Fed. 976, 979. Notwithstanding the order to show cause was addressed to the United States alone, this is in substance and effect a proceeding against the United States attorney and the special agent in charge. The special agent in charge was the prosecuting witness. It was his duty under the statute to report violations to the United States attorney. Donnelley v. United States, 276 U. S. 505. And he was authorized, subject to. the control of the United States attorney, to “ conduct the prosecution at the committing trial for the purpose of having the offenders held for the action of a grand jury,” 27 U. S. C., § 11. It is immaterial whether he intended or was personally to conduct the prosecution before the commissioner. As the United States attorney had control of the prosecution‘before the commissioner, whether conducted by his assistants or prohibition agents, the papers were held subject to his control and direction although in the immediate care and custody of the prohibition officers. He and they voluntarily came before the court to defend the seizure, the retention and proposed use of the papers and so in effect became parties to the proceeding. By making the papers a part of O’Brien’s affidavit they brought the papers within the power of the court and constructively into its possession, if indeed the papers had not already come within its reach. In so far as it purports to" }, { "docid": "18464488", "title": "", "text": "restrictions embodied in the Fourth Amendment or other parts of the United States Constitution (United States v. Welsh [D. C.] 247 Fed. 239; Ex parte Harvell [D. C.] 267 Fed. 997; United States v. Borkowski [D. C.] 268 Fed. 408; United States v. Kraus [D. C.] 270 Fed. 578, 582; Kathriner v. United States [C. C. A. 9] 276 Fed. 808; Elrod v. Moss [C. C. A. 4] 278 Fed. 123; United States v. Bateman [D. C.] 278 Fed. 231; United States v. Snyder [D. C.] 278 Fed. 650; In re Mobile [D. C.] 278 Fed. 949). As to the cases cited by petitioner: In Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, the defendants’ respective homes were entered and searched, and certain of their properties (relevant evidence on the charges against them) seized, without a search warrant. These respective properties were subsequently used as evidence against -them in a trial which resulted in their conviction. In Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182 (64 L. Ed. 319), the defendants had been adjudged in contempt for refusing to obey an order of court “to produce [certain] books and documents of the company before the grand jury to be used in regard to alleged violation of the statutes of the United States” by the said defendants. See 251 U. S. at page 390, 40 Sup. Ct. 182, 64 L. Ed. 319. Knowledge of the contents of these boqlcs and documents had been obtained by the United States attorney while in his possession through an illegal seizure thereof. These cases are of a different type than the instant case. In the Weeks and Amos Cases, the seizures were made in the defendants5 private dwellings. In the Weeks and Silverthorne Cases private books and papers wer'e seized for the purpose of evidence only. In the instant case the things seized, in the" }, { "docid": "23233738", "title": "", "text": "court jurisdiction before any criminal prosecution was commenced, or the petitioner even arrested? Viewed as an effort to recover possession of property illegally withheld by the prohibition administrator, has the court power in a summary proceeding to direct an order to such an official? It is regrettable that the court has received no assistance from either counsel in the solution of these preliminary questions, which go to the jurisdiction of the District Court and must be dealt with before the validity of the seizure can be considered. At the outset it must be noted that possession of petitioner’s property is alleged to be in the prohibition administrator. If the property were under the control of an officer of the court, whether he be the United States attorney, the marshal, the clerk, or an attorney at law admitted to practice before the District Court, the court’s disciplinary power over its own officers might supply the necessary jurisdictional fact for a summary proceeding to direct him to return property illegally withheld from its owner, even before criminal prosecution or proceedings for forfeiture had been commenced. This was the basis for Judge Hough’s consideration of the owner’s motion for return of a book held by the district attorney in United States v. Maresca, 266 F. 713, 717 (D. C. S. D. N. Y.). There the moving party was under indictment, but there is a dictum that the right to move would exist even were no prosecution pending. See, also, United States v. Hee, 219 F. 1019, 1020 (D. C. N. J.); Weeks v. United States, 232 U. S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Cogen v. United States, 278 U. S. 221, 225, 49 S. Ct. 118, 73 L. Ed. 275. But a prohibition administrator is not an officer of the court; he is an officer of another branch of the government, and, in the present instance, neither he nor his deputies have assumed to act pursuant to any judicial authority or process. Jurisdiction to order such an officer to" }, { "docid": "22667386", "title": "", "text": "While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd Case, the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection.” If such a seizure under the authority of a warrant supposed to be legal, constitutes a violation of the constitutional protection, a fortiori does the attempt of an officer of the United States, the United States Marshal, acting under color of his office, without even the sanction of a warrant, constitute an invasion of the rights within the protection afforded by the Fourth Amendment. Another case relied upon is American Tobacco Co. v. Werckmeister, 207 U. S. 284, in which it was held that the seizure by the United States Marshal in a copyright case of certain pictures under a writ of replevin did not constitute an unreasonable search and seizure. The other case from this court relied upon is Holt v. United States, 218 U. S. 245, in which it was held that testimony tending to show that a certain blouse which was in evidence as ■ incriminating him, had been put upon the prisoner and fitted him, did not violate his constitutional right. We are at a loss to see the application of these cases to the one in hand. . The right of the court to deal with papers and documents in the possession of the District Attorney and other officers of the court and subject to its authority was recognized in Wise v. Henkel, 220 U. S. 556. That papers wrongfully seized should be turned over to the accused has been frequently recognized in the early as well as later decisions of the courts. 1 Bishop on Criminal Procedure, § 210; Rex v. Barnett, 3 C. & P. 600; Rex v. Kinsey, 7 C. & P. 447; United States v. Mills, 185 Fed. Rep. 318; United States v. McHie, 194" }, { "docid": "22648754", "title": "", "text": "run .against the United States, the form of the order may be treated as a mere irregularity. The United States attorney and the special agent in charge, as officers authorized to conduct such prosecution and having .control and custody of the papers for that purpose, are, in respect of the acts relating to such prosecution, alike subject to the proper exertion of the disciplinary powers of the court. And on the facts here shown it is plain that the district court had jurisdiction summarily to determine whether the evidence should be suppressed and the papers returned to the petitioners. Weeks v. United States, 232 U. S. 383, 398. Wise v. Henkel, 220 U. S. 556, 558. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 390. Cogen v. United States 278 U. S. 221, 225. United States v. Mills, 185 Fed. 318. United States v. McHie, 194 Fed. 894, 898. United States v. Lydecker, 275 Fed. 976, 980. United States v. Kraus, 270 Fed. 578, 580. Cf. Applybe v. United States, 32 F. (2d) 873, 874. The Government concedes that the warrant did not authorize O’Brien or other prohibition agents to make the arrests. The complaint, which in substance is recited in the warrant, was verified,merely on information and belief and does not state facts sufficient to constitute an offense. Ex parte Burford, 3 Cranch 448,453. Rice v. Ames, supra, 374. Byars v. United States, 273 U. S. 28. United States v. Cruikshank, 92 U. S. 542, 558. United States v. Hess, 124 U. S. 483. United States v. Ruroede, 220 Fed. 210, 212, 213. The warrant was improvidently issued and invalid on its face. It does not purport to authorize anyone other than the marshal and his deputies. The company is not mentioned in the complaint or warrant and is a stranger to the proceeding before the commissioner. Unquestionably the order of the district court as to it was final and appealable. Cogen v. United States, ubi supra. Ex parte Tiffany, 252 U., S. 32. Savannah v. Jesup, 106 U. S. 563. Gumbel v. Pitkin, 113 U. S." }, { "docid": "22816396", "title": "", "text": "put all the constitutional questions to one side. We have here no problem concerning the interplay of the Fourth and the Fourteenth Amendments nor the use which New Mexico might make of the evidence. The District Court is not asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law. Cf. Boske v. Comingore, 177 U. S. 459. The only relief asked is against a federal agent, who obtained the property as a result of the abuse of process issued by a United States Commissioner. The property seized is contraband which Congress has made “subject only to the orders and decrees of the courts of the United States having jurisdiction thereof,” as provided in 28 U. S. C. § 2463, already quoted. In this posture we have then a case that raises not a constitutional question but one concerning our supervisory powers over federal law enforcement agencies. Cf. McNabb v. United States, 318 U. S. 332. A federal agent has violated the federal Rules governing searches and seizures — Rules prescribed by this Court and made effective after submission to the Congress. See 327 U. S. 821 et seg. The power of the federal courts extends to policing those requirements and making certain that they are observed. As stated in Wise v. Henkel, 220 U. S. 556, 558, which involved an order directing the district attorney to return certain books and papers unlawfully seized: “. . . it was within the power of the court to take jurisdiction of the subject of the return and pass upon it as the result of its inherent authority to consider and decide questions arising before it concerning an alleged unreasonable exertion of authority in connection with the execution of the process of the court.” No injunction is sought against a state official. The only remedy asked is against a federal agent who, we are told, plans to use his illegal search and seizure as the basis of testimony in the state court. To enjoin the federal agent from testifying is merely to enforce the federal" }, { "docid": "22648753", "title": "", "text": "276 U. S. 505. And he was authorized, subject to. the control of the United States attorney, to “ conduct the prosecution at the committing trial for the purpose of having the offenders held for the action of a grand jury,” 27 U. S. C., § 11. It is immaterial whether he intended or was personally to conduct the prosecution before the commissioner. As the United States attorney had control of the prosecution‘before the commissioner, whether conducted by his assistants or prohibition agents, the papers were held subject to his control and direction although in the immediate care and custody of the prohibition officers. He and they voluntarily came before the court to defend the seizure, the retention and proposed use of the papers and so in effect became parties to the proceeding. By making the papers a part of O’Brien’s affidavit they brought the papers within the power of the court and constructively into its possession, if indeed the papers had not already come within its reach. In so far as it purports to run .against the United States, the form of the order may be treated as a mere irregularity. The United States attorney and the special agent in charge, as officers authorized to conduct such prosecution and having .control and custody of the papers for that purpose, are, in respect of the acts relating to such prosecution, alike subject to the proper exertion of the disciplinary powers of the court. And on the facts here shown it is plain that the district court had jurisdiction summarily to determine whether the evidence should be suppressed and the papers returned to the petitioners. Weeks v. United States, 232 U. S. 383, 398. Wise v. Henkel, 220 U. S. 556, 558. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 390. Cogen v. United States 278 U. S. 221, 225. United States v. Mills, 185 Fed. 318. United States v. McHie, 194 Fed. 894, 898. United States v. Lydecker, 275 Fed. 976, 980. United States v. Kraus, 270 Fed. 578, 580. Cf. Applybe v. United States, 32 F. (2d)" }, { "docid": "22615596", "title": "", "text": "“the Fourth Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal Government and its agencies.” 232 U. S., at 398. Despité the limited discussion of this second ruling in the Weeks opinion, the right of the prosecutor in a federal criminal trial to avail himself of evidence unlawfully seized by state officers apparently went unquestioned for the next thirty-five years. See, e. g., Byars v. United States, 273 U. S. 28, 33; Feldman v. United States, 322 U. S. 487, 492. That such a rule would engender practical difficulties in an era of expanding federal criminal jurisdiction could not, perhaps, have been foreseen. In any event the difficulties soon appeared. They arose from the entirely commendable practice of state and federal agents to cooperate with each other in the investigation and detection of criminal activity. When in a federal criminal prosecution evidence which had been illegally seized by state officers was sought to be introduced, the question inevitably arose whether there had been such participation by federal agents in the search and seizure as to make applicable the exclusionary rule of Weeks. See Flagg v. United States, 233 Fed. 481, 483; United States v. Slusser, 270 Fed. 818, 820; United States v. Falloco, 277 Fed. 75, 82; Legman v. United States, 295 Fed. 474, 476-478; Marron v. United States, 8 F. 2d 251, 259; United States v. Brown, 8 F. 2d 630, 631. This Court first came to grips with the problem in Byars v. United States, 273 U. S. 28. There it was held that when the participation of the federal agent in the search was “under color of his federal office” and the search “in substance and effect was a joint operation of the local and federal officers,” then the evidence .must be excluded, because “the effect is the same as though [the federal agent] had engaged in the undertaking as one exclusively his own.” 273 U. S., at 33. In Gambino v. United States, 275 U. S. 310, the Court went further. There state officers had seized liquor from the defendants’" }, { "docid": "22648751", "title": "", "text": "office. Id., § 529. They are authorized by statute in respect of numerous matters and the relations between them and the district courts vary as do their official acts. Cf. United States v. Allred, ubi supra. Grin v. Shine, 187 U. S. 181, 187. Todd v. United States, 158 U. S. 278, 282. Collins v. Miller, 252 U. S. 364, 369. United States v. Berry, 4 Fed. 779. Ex parte Perkins, 29 Fed. 900. The Mary, 233 Fed. 121. We need not consider what power the district court may exert over the commissioners dealing with matters unlike that now before us. Here the commissioner acted under R.'S., § 1014, which provides that for any crime or offense against the'United. States, the offender may by any justice or judge of the United States or by any commissioner of the circuit court to take bail (now United States commissioner) be arrested and imprisoned, or bailed, as the \"case may be, for trial before such court of the United States as by law has cognizance of the offense. 18 U. S. C., § 591. All the commissioner’s acts and the things doné by the prohibition officers in respect of this matter were preparatory and preliminary to a consideration of the charge by a grand jury and, if an indictment should be found, the final disposition of the case in the district court. The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time. Todd v. United States, ubi supra. Collins v. Miller, ubi supra. United States v. Berry, supra. United States v. Casino, 286 Fed. 976, 979. Notwithstanding the order to show cause was addressed to the United States alone, this is in substance and effect a proceeding against the United States attorney and the special agent in charge. The special agent in charge was the prosecuting witness. It was his duty under the statute to report violations to the United States attorney. Donnelley v. United States," }, { "docid": "22648755", "title": "", "text": "873, 874. The Government concedes that the warrant did not authorize O’Brien or other prohibition agents to make the arrests. The complaint, which in substance is recited in the warrant, was verified,merely on information and belief and does not state facts sufficient to constitute an offense. Ex parte Burford, 3 Cranch 448,453. Rice v. Ames, supra, 374. Byars v. United States, 273 U. S. 28. United States v. Cruikshank, 92 U. S. 542, 558. United States v. Hess, 124 U. S. 483. United States v. Ruroede, 220 Fed. 210, 212, 213. The warrant was improvidently issued and invalid on its face. It does not purport to authorize anyone other than the marshal and his deputies. The company is not mentioned in the complaint or warrant and is a stranger to the proceeding before the commissioner. Unquestionably the order of the district court as to it was final and appealable. Cogen v. United States, ubi supra. Ex parte Tiffany, 252 U., S. 32. Savannah v. Jesup, 106 U. S. 563. Gumbel v. Pitkin, 113 U. S. 545: When the application was made, no information or indictment had been found'or returned against Gowen or Bartels. There was nothing to show that any criminal proceeding would ever be instituted in that court against them. Post v. United States, 161 U. S. 583, 587. And, as above shown, the complaint does not state an offense. It follows that the order of the district court was not made in. or dependent upon any case or proceeding there pending and therefore the order as to them was appealable. Cogen v. United States, ubi supra. Perlman v. United States, 247 U. S. 7, 13. Burdeau v. McDowell, 256 U. S. 465. Without pausing to consider the matter, we assume, as held by the lower courts, that the facts of which Calhoun and O’Brien, had been informed prior to the arrests are sufficient to justify the apprehension without a warrant of Gowen and Bartels for the conspiracy referred to in Braidwood’s affidavit and on that basis we treat the arrests as lawful and valid. No question is here" }, { "docid": "22780913", "title": "", "text": "it is the duty of the trial court to entertain an objection to their admission or a motion for their exclusion and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before ttpal.” Upon a review of the final judgment against the defendant, both the refusal to order return of the property and its admission in evidence are commonly assigned as errors. See Weeks v. United States, 232 U. S. 383, 387-389; Byars v. United States, 273 U. S. 28, 29; Marron v. United States, 275 U. S. 192, 193-194. Compare Adams v. New York, 192 U. S 585, 594. Motions for the return of papers and the suppression of evidence made in the cause in advance of the trial, under this rule of practice, must be differentiated from independent proceedings brought for a similar purpose. Where the proceeding is a plenary one, like the bill in equity in Dowling v. Collins, 10 F. (2d) 62, its independent character is obvious; and the appealability of the decree therein is unaffected by the fact that the purpose of the suit is solely to influence or control the trial of a pending criminal prosecution. Applications for return of papers or other property may, however, often be made by motion or other summary proceeding, by reason of the fact that the person in possession is an officer of the court. See United States v. Maresca, 266 Fed. 713; United States v. Hee, 219 Fed. 1019, 1020. Compare Weinstein v. Attorney General, 271 Fed. 673. Where an application is filed in that form, its essential character and the circumstances under which it is made will determine whether it is an independent proceeding or merely a step in the trial of the criminal case. The independent character of the summary proceedings is clear, even where the motion is filed in a criminal case, whenever the application for the papers or other property is made by a stranger to the litigation, compare Ex parte Tiffany, 252 U. S. 32; Savannah v. Jesup, 106 U." }, { "docid": "22667387", "title": "", "text": "and seizure. The other case from this court relied upon is Holt v. United States, 218 U. S. 245, in which it was held that testimony tending to show that a certain blouse which was in evidence as ■ incriminating him, had been put upon the prisoner and fitted him, did not violate his constitutional right. We are at a loss to see the application of these cases to the one in hand. . The right of the court to deal with papers and documents in the possession of the District Attorney and other officers of the court and subject to its authority was recognized in Wise v. Henkel, 220 U. S. 556. That papers wrongfully seized should be turned over to the accused has been frequently recognized in the early as well as later decisions of the courts. 1 Bishop on Criminal Procedure, § 210; Rex v. Barnett, 3 C. & P. 600; Rex v. Kinsey, 7 C. & P. 447; United States v. Mills, 185 Fed. Rep. 318; United States v. McHie, 194 Fed. Rep. 894, 898. We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant; that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court , should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed. As to the papers and property seized by the policemen, it does not appear that they acted under any claim of Federal authority such .as would make the Amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the Federal court, under what supposed right" }, { "docid": "22754435", "title": "", "text": "Miller v. United States, 300 Fed. 529, 535. Schechter v. United States, 7 F. (2d) 881. Cf. Todd v. United States, 48 F. (2d) 530, 532. The facts and circumstances stated in the affidavits of the prohibition agents do not support but are inconsistent with and negative the assertions therein contained to the effect thaf respondents were arrested while committing the crime of conspiracy or nuisance. The only question presented is whether the searches of the desks, cabinet and baskets and the seizures of the things taken from them were reasonable as an incident of the arrests. And that must be decided on the basis of valid arrests under the warrant. Save as given by that warrant and as lawfully incident to its execution, the officers had no authority over respondents or anything in the room. The' disclosed circumstances clearly show that the prohibition agents assumed the right contemporaneously with the arrest to search out and scru tinize everything in the room in order to ascertain whether the books, papers or other things contained or constituted evidence of respondents’ guilt of crime, whether that specified in the warrant or some other offense against the Act. Their conduct was unrestrained. The lists printed in the ' margin show how numerous and varied were the things found and taken. The Fourth Amendment forbids every search that is unreasonable and is construed liberally to safeguard the right of privacy. Byars v. United States, 273 U. S. 28, 32. Its protection extends to offenders as well as to the law abiding. Weeks v. United States, 232 U. S. 383. Agnello v. United States, 269 U. S. 20, 32. The authority of officers to search one’s house or place of business contemporaneously with his lawful arrest therein upon a valid warrant of arrest certainly is not greater than that conferred by a search warrant issued upon adequate proof and sufficiently describing the premises and the things sought to be obtained. Indeed, the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to" }, { "docid": "1428645", "title": "", "text": "574, 65 L.Ed. 1048; Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. See Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Turner v. Camp, 5 Cir., 1941, 123 F.2d 840; In re No. 32 East Sixty-Seventh Street, 2 Cir., 1938, 96 F.2d 153, 156; Foley v. United States, 5 Cir., 1933, 64 F.2d 1; Goodman v. Lane, 8 Cir., 1931, 48 F.2d 32; United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382. The rationale of such cases is that the petition for relief is addressed to the inherent power of the court to discipline an officer of the court. Cf. In re Behrens, 2 Cir., 1930, 39 F.2d 561. Thus in Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344 at page 355, 51 S.Ct. 153, at page 157, 75 L.Ed. 374, the Court explained: ■ “The United States attorney and the special agent in charge, as officers authorized to conduct such prosecution and having control and custody of the papers for that purpose, are, in respect of the acts relating to. such prosecution, alike' subject to the proper exertion of the disciplinary powers of the court. And on the facts here shown it is plain that the district court had jurisdiction summarily to determine whether the evidence should be suppressed and the papers returned to the petitioners.” Judge Hough made a similar explanation in a much-quoted passage in United States v. Maresca, D.C.S.D.N.Y.1920, 266 F. 713, 717: “Whenever an officer of the court has in his possession or under his control books or papers, or (by parity of reasoning) any other articles in which the court has official interest, and of which any person (whether party to a pending litigation or not) has been unlawfully deprived, that person may petition the court for restitution. This I take to be an elementary principle, depending upon the inherent disciplinary power of any court of record. “Attorneys are officers of the court, and the United States attorney does not by taking office escape" }, { "docid": "18464487", "title": "", "text": "particulars to be observed before issuing warrants. Reasonable searches and seizures are not forbidden. Boyd v. United States, supra, 116 U. S. pp. 623, 624, 641, 6 Sup. Ct. 524, 29 L. Ed. 746; Haywood v. United States (C. C. A. 7) 268 Fed. 795, 803; United States v. Bookbinder (D. C.) 278 Fed. 216, 218. And there is no inhibition of making either without a warrant. Kathriner v. United States (C. C. A. 9) 276 Fed. 808; United States v. Snyder (D. C.) 278 Fed. 650. The right to arrest a person or thing offending against the law, without written warrant, under certain circumstances, long preexisted the causes which led to the judicial condemnation of arrest on warrants which failed to particularly describe the person or thing to be apprehended. This right was not drawn into question by such condemnation (In re John Wilkes, 19 Howell’s State Trials, 981, 988; Dryden Leach v. Money, Id. 1001, 1026; Entick v. Carrington, Id. 1029; Wilkes v. Wood, Id. 1153), and continues unaffected by the prohibition and restrictions embodied in the Fourth Amendment or other parts of the United States Constitution (United States v. Welsh [D. C.] 247 Fed. 239; Ex parte Harvell [D. C.] 267 Fed. 997; United States v. Borkowski [D. C.] 268 Fed. 408; United States v. Kraus [D. C.] 270 Fed. 578, 582; Kathriner v. United States [C. C. A. 9] 276 Fed. 808; Elrod v. Moss [C. C. A. 4] 278 Fed. 123; United States v. Bateman [D. C.] 278 Fed. 231; United States v. Snyder [D. C.] 278 Fed. 650; In re Mobile [D. C.] 278 Fed. 949). As to the cases cited by petitioner: In Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, the defendants’ respective homes were entered and searched, and certain of their properties (relevant evidence on the charges against them) seized, without a search warrant. These respective properties" }, { "docid": "22982073", "title": "", "text": "offense ” and that the criminal proceeding “ arises out of and solely by reason of the acts performed by your petitioner as an officer acting” under the authority of the revenue laws and the National Prohibition Act. The protection afforded by § 33 extends to prohibition agents. 27 U. S. C., § 45. The various acts of Congress constituting the section as it now stands were enacted to maintain the supremacy of the laws of the United States by safeguarding officers and others acting under federal authority against peril of punishment for violation of state law or obstruction or embarrassment by reason of opposing policy on the part of those exerting or controlling state power. Tennessee v. Davis, 100 U. S. 257. Maryland v. Soper (No. 1), 270 U. S. 9, 32. The Mayor v. Cooper, 6 Wall. 247, 253. Findley v. Satterfield, Fed. Cas. No. 4,792. It scarcely need be said that such measures are to be liberally construed to give full effect to the purposes for which they were enacted. See Venable v. Richards, 105 U. S. 636, 638. State v. Sullivan, 50 Fed. 593, 594. And it is axiomatic that the right of the States, consistently with the Constitution and laws of the United States, to make and enforce their own laws is equal to the right of the federal government to exert exclusive and supreme power in the field that by virtue of the Constitution belongs to it. The removal statute under consideration is to be construed with highest regard for such equality. Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law. Congress is not to be deemed to have intended that jurisdiction to try persons accused of violating the laws of a state should be wrested from its courts in the absence of a full disclosure of the facts constituting the grounds on which they claim protection under § 33. Here the State of Colorado charges petitioner with deliberate murder. While homicide that is excusable or justifiable may be committed" }, { "docid": "23233739", "title": "", "text": "prosecution or proceedings for forfeiture had been commenced. This was the basis for Judge Hough’s consideration of the owner’s motion for return of a book held by the district attorney in United States v. Maresca, 266 F. 713, 717 (D. C. S. D. N. Y.). There the moving party was under indictment, but there is a dictum that the right to move would exist even were no prosecution pending. See, also, United States v. Hee, 219 F. 1019, 1020 (D. C. N. J.); Weeks v. United States, 232 U. S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Cogen v. United States, 278 U. S. 221, 225, 49 S. Ct. 118, 73 L. Ed. 275. But a prohibition administrator is not an officer of the court; he is an officer of another branch of the government, and, in the present instance, neither he nor his deputies have assumed to act pursuant to any judicial authority or process. Jurisdiction to order such an officer to return property illegally seized and wrongfully detained must find a basis other than the court’s disciplinary power over its own officers. In United States v. Hee, supra, it was held that the District Court had .no jurisdiction in a summary proceeding to order the return of property illegally seized by revenue officers, where no proceedings fpr forfeiture had been started. Accord, In re Allen, 1 F.(2d) 1020 (D. C. W. D. Pa.); similarly, as to customs officers, In re Chin K. Shue, 199 F. 282, 285 (D. C. Mass.); Sims v. Stuart, 291 F. 707 (D. C. S. D. N. Y.); as to immigration officials and other government officers, Weinstein v. Attorney General, 271 F. 673, 675 (C. C. A. 2); as to prohibition officers, Applybe v. United States, 32 F.(2d) 873 (C. C. A. 9), on rehearing (C. C. A.) 33 F.(2d) 897; Lewis v. McCarthy, 274 F. 496 (D. C. Mass.) ; United States v. Casino, 286 F. 976, 978 (D. C. S. D. N. Y.). In the ease last cited it is" }, { "docid": "22648750", "title": "", "text": "us. The question whether the district court had jurisdiction summarily-to deal with petitioners’ applications, while not brought forward by the parties, arises upon the record, was considered by the Circuit Court of Appeals and suggested during the argument here. United States, commissioners are inferior officers. United States v. Allred, 155 U. S. 591, 594. Rice v. Ames, 180 U. S. 371, 377, 378. Cf. Ex parte Hennen, 13 Pet. 230, 257, et seg. The Act of May 28, 1896, 29 Stat. 184, abolished commissioners of the circuit courts, authorized each district court to appoint United States commissioners, gave to them the same powers and duties that commissioners of the circuit courts had, required such appointments to be entered of record in the district courts, provided that the commissioners should hold their office subject to removal by the court appointing them (28 U. S. C., § 526) and required them to keep records of proceedings before them in criminal cases and deliver the same to the clerks of the courts on the commissioners’ ceasing to hold office. Id., § 529. They are authorized by statute in respect of numerous matters and the relations between them and the district courts vary as do their official acts. Cf. United States v. Allred, ubi supra. Grin v. Shine, 187 U. S. 181, 187. Todd v. United States, 158 U. S. 278, 282. Collins v. Miller, 252 U. S. 364, 369. United States v. Berry, 4 Fed. 779. Ex parte Perkins, 29 Fed. 900. The Mary, 233 Fed. 121. We need not consider what power the district court may exert over the commissioners dealing with matters unlike that now before us. Here the commissioner acted under R.'S., § 1014, which provides that for any crime or offense against the'United. States, the offender may by any justice or judge of the United States or by any commissioner of the circuit court to take bail (now United States commissioner) be arrested and imprisoned, or bailed, as the \"case may be, for trial before such court of the United States as by law has cognizance of the offense." }, { "docid": "22603776", "title": "", "text": "people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law ‘the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. Otis’ Argument against Writs of Assistance. See Tudor, James Otis, p. 66; John Adams, Wbrks, Vol. II, p. 524; Minot, Continuation of the History of Massachusetts Bay, Vol. II, p. 95. Entick v. Carrington, 19 Howell’s State Trials, 1030, 1066. In Interstate Commerce Commission v. Brimson, 154 U. S. 447, 479, the statement made in 'the Boyd ease was repeated; and the Court quoted the statement of Mr. Justice Field in In re Pacific Railway Commission, 32 Fed. 241, 250:*'Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers, from the-inspection and scrutiny of others. ' Without the enjoyment of this right, all others would lose' half their value.” The Boyd case has been recently reaffirmed in Silverthome Lumber Co. v. United States, 251 U. S. 385, in Gouled v. United States, 255 U. S. 298, and in Byars v. United States, 273 U. S. 28. ' Gouled v. United States, 255 U. S. 298. Weeks v. United States, 232 U. S. 383; Amos v. United States, 255 U. S. 313; Agnello v. United States, 269 U. S. 20; Byars v. United States, 273 U. S. 28. Boyd v. United States, 116 U. S. 616; Hale v. Henkel, 201 U. S. 43, 70; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Govled v. United States, 255 U. S. 298; Marron v. United States, 275 U. S. 192. Ex parte Jackson, 96" } ]

[ { "docid": "3977663", "title": "", "text": "presented his current claim to the state trial court, but by changing the basis of his argument between the trial court and the appellate court, Howard did not fairly present the question of ineffective assistance of trial counsel to the Illinois Appellate Court. Accordingly, he has procedurally defaulted that claim. See also Momient-El v. DeTella, 118 F.3d 535, 540 (7th Cir.1997) (failing to appeal issues raised in an Illinois post-conviction petition for relief results in procedural default on habeas review). As a last ditch measure to ward off this conclusion, Howard contends that a footnote in his state appellate brief gave the appellate court a fair opportunity to pass on the substance of his current claim. It is true that the claims presented in state and federal courts need not be exact replicas of each other to satisfy the fair presentment requirement, see Kurzawa, 146 F.3d at 441, but the footnote to which our attention is directed presented neither the legal nor the factual basis of the ineffective assistance of trial counsel claim to the state appellate court. Cf. Picard, 404 U.S. at 278, 92 S.Ct. 509; Everett v. Barnett, 162 F.3d 498, 502 (7th Cir.1998). Like the rest of the brief, it discusses the work of post-conviction counsel. That is not enough to preserve a claim based on ineffectiveness of trial counsel for purposes of federal habeas corpus, for the simple reason that it is a different legal theory. And while the footnote does present some of the facts underlying the claim of trial counsel’s ineffectiveness (indeed, it is in this footnote that the claims about the advertised reward and the weather reports make their only appearance before the state courts), nowhere does it discuss the failure to investigate the potential alibi witnesses, which is now that claim’s main thrust. This footnote is not enough to save thé day, or the petition. Finally, although there are two exceptions to the procedural default rule, Howard satisfies neither. Procedural default will be excused if the petitioner can show cause and prejudice for her failure to exhaust her claims, or if a" } ]

[ { "docid": "1284239", "title": "", "text": "HENLEY, Senior Circuit Judge. The State of Missouri appeals and petitioner George C. Gilmore cross-appeals from the district court’s order granting Gilmore’s 28 U.S.C. § 2254 petition for writ of habeas corpus upon the basis of two of the nine grounds set forth therein, and ordering a new trial in the punishment phase of Gilmore’s state capital murder trial, or in the alternative, alleviation of the death sentence imposed. For reasons to be stated, we conclude that Gilmore’s challenges to his conviction and sentence do not warrant habeas corpus relief. Accordingly, we reverse the district court’s order and reinstate the original sentence. I. Gilmore is a state prisoner currently incarcerated at the Missouri State Penitentiary in Jefferson City, Missouri. In March, 1982 he was convicted by jury of capital murder and sentenced to death in connection with the slaying of an elderly woman, Mary Luella Watters. Gilmore’s conviction and sentence were affirmed by the Missouri Supreme Court on direct appeal. State v. Gilmore, 661 S.W.2d 519 (Mo.1983) (en banc), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). Gilmore then filed a motion for state post-conviction relief pursuant to Missouri Supreme Court Rule 27.26, which was denied after an evidentiary hearing. The denial of the motion was affirmed by the Missouri Court of Appeals. Gilmore v. State, 712 S.W.2d 438 (Mo.Ct.App.1986). Thereafter, Gilmore commenced the present action for federal habeas corpus relief. In an amended petition filed June 1, 1987, after the appointment of counsel, Gilmore advanced the claims that: (1) his conviction was obtained in violation of the sixth amendment because he was not represented by counsel at his arraignment and plea; (2) he was forced to wear leg irons in the presence of the jury, in violation of the fifth amendment; (3) his trial attorney rendered ineffective assistance; (4) the state trial court’s action of unilaterally striking a juror denied Gilmore a trial by a jury chosen from a cross-section of the population, in violation of the sixth amendment; (5) the prosecuting attorney made improper remarks during his closing argument in the punishment phase of" }, { "docid": "11256363", "title": "", "text": "136 L.Ed.2d 721 (1997)) and rehearing was denied on March 3, 1997 (Wronke v. Canady, — U.S. -, 117 S.Ct. 1122, 137 L.Ed.2d 322 (1997)). Wronke has filed various other appeals regarding other related proceedings. However, Wronke clearly has exhausted his state court remedies as to the October 5, 1995, order of indirect civil contempt. That is the only matter now before this court. ANALYSIS “Normally, the federal courts do not become involved in child support disputes, as this is one of the matters most clearly allocated to the state courts in our federal system.” Puchner v. Kruziki, 111 F.3d 541, 542 (7th Cir.), cert. denied, — U.S. -, 118 S.Ct. 166, 139 L.Ed.2d 109 (1997). In this case, as in Puchner, Wronke’s failure to pay child support became a federal case when he sought a writ of habeas corpus under 28 U.S.C. § 2254 “challenging his incarceration pursuant to a contempt order entered by the state court judge.” See Puchner, 111 F.3d at 542. Wronke filed his petition after April 24, 1996, so this court’s analysis is governed by 28 U.S.C. § 2254 as amended by Section 104 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A federal court may grant a writ of habeas corpus when, under a state court judgment, a person is held in custody in violation of the United States Constitution. 28 U.S.C. § 2254; Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996). Before a federal court will consider the merits of a habeas petition, the applicant must fairly present any federal claims in state court first, or risk procedural default. United States ex rel. Walton v. Gilmore, 1998 WL 485679 (N.D.Ill.1998). I. CONSTITUTIONAL CLAIMS Wronke first argues that he is entitled to habeas corpus relief because he was denied his request for a jury trial and has, in fact, spent much more than six months in custody. Wronke also argues that his “incarceration for civil contempt interminably was contrary and repugnant to existing" }, { "docid": "1679488", "title": "", "text": "before it was amended, was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment; (2) the Illinois courts’ interpretation that the 1991 amendment merely clarified, rather than changed, the previous sentencing statute violated his due process rights; and (3) an extended-term sentence for all offenses committed against property owned by persons 60 years or older amounted to cruel and unusual punishment under the Eighth Amendment. The district court denied the petition. United States ex rel. Bocian v. Godinez, No. 94 C 6147, 1995 WL 549020 (N.D.Ill. Sept. 12, 1995). Boeian raises the same three issues on appeal to this Court. We agree with the district court that Boeian is not entitled to habeas relief, and therefore affirm the denial of his petition. Analysis Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254; Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.1996). With respect to the district court’s denial of habeas relief, we review the district court’s findings of fact under a clearly erroneous standard and its legal conclusions de novo. Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir.1996). Before a federal court will consider a petition for a writ of habeas corpus on its merit, the petitioner must (1) exhaust all remedies available in state courts (28 U.S.C. § 2254(b)(1)(A)), and (2) fairly present any federal claims in state court first, or risk procedural default (Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Verdin v. O’Leary, 972 F.2d 1467, 1472-73 (7th Cir.1992)). Respondent concedes that Boeian has exhausted his state remedies. Respondent contends, however, that Boeian failed to fairly present his constitutional claims in state court. We agree with Respondent to the extent that one of Bo-cian’s three arguments to this Court was not fairly presented to the Illinois courts. Specifically, we glean from the record that Bo-cian fairly presented his ex post facto and Eighth Amendment claims to the Illinois courts, and those claims are properly" }, { "docid": "4533827", "title": "", "text": "process by failing to notify him that it might revoke all of his probation and execute his sentence; (3) his counsel was ineffective for failing to raise issue (1) on appeal; and (4) the revocation of all of his probation and the execution of all of his stayed sentences was so grossly disproportionate to his conduct as to violate the Eighth Amendment. The magistrate judge issued a Report and Recommendation finding that Murphy’s Eighth Amendment claim was procedurally barred, as he failed to exhaust this issue in the state courts. See 28 U.S.C. § 2254(b)(1)(A). The district court agreed and denied the petition for a writ of habeas corpus in all respects, but granted a certificate of appealability on whether Murphy’s sentence violates the Eighth Amendment’s prohibition of cruel and unusual punishments. II. Murphy challenges the district court’s denial of habeas relief, arguing the court erred in determining that his Eighth Amendment claim was proeedurally defaulted. On appeal from a district court’s denial of habeas corpus relief, this court reviews de novo a finding of procedural default. Kerns v. Ault, 408 F.3d 447, 449 (8th Cir.2005). A petitioner in custody by judgment of a state court is entitled to habeas relief only by showing that his detention violates the Constitution, federal law, or treaties of the United States. 28 U.S.C. § 2254(a). Before seeking federal relief under § 2254, a petitioner ordinarily must “fairly present” the federal claim to the state courts. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State”). By exhausting all available state court remedies, the prisoner gives a state the “ ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam), quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). “In order" }, { "docid": "2538310", "title": "", "text": "Medloek sought to raise an ineffective assistance of counsel claim in his federal habeas petition, the basis of which was not raised in his application for state post-conviction relief. The federal district court alluded to the possibility that Med-lock’s ineffective assistance of counsel claim may have been procedurally barred. But the court chose not to decide the question of procedural bar, instead denying Medlock’s petition on the merits, pursuant to 28 U.S.C. § 2254(b)(2), which states that “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.” The district court thus acted pursuant to statute when it chose to deny Medlock’s ineffective assistance claim on the merits. However, we elect instead to deny his claim due to procedural bar, with regard to which Med-lock has not shown cause for failing to exhaust his state remedies. In general, petitioners must exhaust available state court remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir.1999). In the present case, Medloek “has not ... raised before the state courts any of the bases upon which his current ineffective assistance of counsel claim[] reifies].” Smallwood, 191 F.3d at 1267. Therefore, he has failed to exhaust his ineffective assistance claim. In Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court held that if “the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims proeedurally barred,” petitioner’s claims are proeedurally defaulted for purposes of federal habeas corpus relief. Oklahoma deems waived claims that were not raised in an initial application for post-conviction relief in a death penalty case. See Okla. Stat. tit. 22, §§ 1086, 1089(D)(2). Medlock did not raise his present ineffective assistance claim, involving the failure of his counsel to investigate and present at sentencing his family’s history of mental" }, { "docid": "12595752", "title": "", "text": "federal habeas corpus relief, which the district court denied. The district court also denied Ashford a certificate of appeala-bility. He requested a certificate of appeala-bility from this court, and on April 8, 1998, we granted a certificate of appealability on two issues. The first issue is whether Ash-ford’s trial counsel provided ineffective assistance of counsel by heeding his client’s advice not to produce evidence which would tend to mitigate his sentence. The second issue is whether the sentencing judge’s receipt of an ex parte memorandum regarding potential security issues at the sentencing pronouncement denied Ashford due process of law. II. As amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254 authorizes the issuance of a writ of habeas corpus only if the challenged decision of the state court “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). We first address whether Ashford’s trial counsel provided ineffective assistance of counsel during the sentencing phase of the trial. Ashford contends that the Illinois Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court gives some deference to the state court’s application. “[Ojnly a clear error in applying Strickland’s standard would support a writ of habeas corpus.” Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir.1997) (citing Porter v. Gramley, 112 F.3d 1308, 1312-14 (7th Cir.1997); Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir.1997); Pitsonbarger v. Gramley, 103 F.3d 1293, 1297 (7th Cir.1996); and Neal v. Gramley, 99 F.3d 841, 843 (7th Cir.1996)). Ashford, however, asks to abandon this standard, and instead adopt the approach of the First Circuit. See O’Brien v. Dubois, 145 F.3d 16, 21-23 & n. 4 (1st Cir.1998). In O’Brien, the First Circuit stated that Hall v. Washington, 106 F.3d 742 (7th Cir.1997), conflicts with the other Seventh Circuit precedent regarding" }, { "docid": "16722893", "title": "", "text": "a mitigation specialist and with regard to counsel’s alleged failure to investigate Ogan’s history in an effort to discover mitigating evidence. The court also found that Ogan had failed to demonstrate that his conviction was unlawfully obtained. On April 28, 1999, the Texas Court of Criminal Appeals denied Ogan’s petition for habeas relief. In a brief order, the court stated:' In the instant cause, applicant presents a single allegation challenging the validity of his conviction and resulting sentence. The trial court has entered findings of fact and conclusions of law recommending the relief sought be denied. This court has reviewed the record. The findings and conclusions entered by the trial court are supported by the record and upon such basis the relief sought by the applicant is denied. Ex Parte Ogan, No. 41,220-01 (Tex.Crim. App. April 28, 1999) (per curiam) (unpublished). V. Federal Habeas Proceedings On August 3, 1999, Ogan filed a preliminary petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 30, 1999, Ogan filed a supplemental petition for a writ of habeas corpus. The petition requested relief on the following bases: (1) insufficient evidence to sustain the jury’s affirmative answer to the statutory punishment issue on deliberate conduct; (2) insufficient evidence to sustain the jury’s affirmative answer to the statutory punishment issue on future dangerousness; (3) ineffective assistance of counsel based on trial counsel’s limitation of the jury instruction on mitigation; (4) ineffective ' assistance of counsel based on trial counsel’s failure adequately to develop and present mitigation evidence; and (5) Ogan’s purported incompetency to stand trial. The State moved for summary judgment on all of Ogan’s claims, and the district court granted that motion. The district court rejected Ogan’s two insufficieney-of-the-evidence claims regarding the special issues on the merits. Additionally, the court rejected Ogan’s claim of ineffective assistance of counsel regarding the jury instructions on mitigating evidence. The district court found that Ogan had failed to present his claim of lack of competency to stand trial on direct review, or during the s,tate habeas proceedings and that he had failed to" }, { "docid": "15914144", "title": "", "text": "1194, 10 L.Ed.2d 215 (1963); (2) the violation of Clark’s Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment resulting from the prosecution’s inconsistent argument in a subsequent related trial as to the identity of the shooter and the state trial court’s jury instructions, which permitted a capital murder conviction and a sentence of death without a finding that Clark was, the actual killer, had attempted to kill, or had intended that a human life be taken; (3) the violation of Clark’s due process rights resulting from the trial court’s failure to instruct .the jury that Clark would be ineligible for parole for thirty-five years if sentenced to life imprisonment; (4) the denial of effective assistance as guaranteed by the Sixth and Fourteenth Amendments at a critical stage during Clark’s direct appeal that precluded him from seeking a rehearing in the Court of Criminal Appeals and a petition for writ of certiorari to the United States Supreme Court; and (5) the denial of effective assistance of counsel at the punishment stage of the capital murder trial during which Clark’s counsel presented no favorable evidence despite its availability, in violation of the Sixth and Fourteenth Amendments. Clark additionally challenges the federal district court’s refusal to permit discovery or to hold an evidentiary hearing to determine the validity of Clark’s claim of a Brady violation and of ineffective assistance of counsel at the punishment stage. This case is governed by the AEDPA because Clark’s petition for federal habeas relief was filed on July 27, 1998, after the AEDPA effective date of April 24, 1996. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.1997). As Clark seeks to appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court,” he must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may issue only if Clark “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Such a showing requires the applicant to demonstrate that the issues are debatable" }, { "docid": "11256364", "title": "", "text": "court’s analysis is governed by 28 U.S.C. § 2254 as amended by Section 104 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A federal court may grant a writ of habeas corpus when, under a state court judgment, a person is held in custody in violation of the United States Constitution. 28 U.S.C. § 2254; Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996). Before a federal court will consider the merits of a habeas petition, the applicant must fairly present any federal claims in state court first, or risk procedural default. United States ex rel. Walton v. Gilmore, 1998 WL 485679 (N.D.Ill.1998). I. CONSTITUTIONAL CLAIMS Wronke first argues that he is entitled to habeas corpus relief because he was denied his request for a jury trial and has, in fact, spent much more than six months in custody. Wronke also argues that his “incarceration for civil contempt interminably was contrary and repugnant to existing law constitutionally.” These claims were not raised in Wronke’s appeal from the October 5, 1995, order. Accordingly, the claims could be considered procedurally defaulted. However, this court will address Wronke’s constitutional claims on the merits pursuant to 28 U.S.C. § 2254(b)(2) because the record shows the claims are clearly without merit. It is true that a criminal contemnor cannot be imprisoned more than a total of six months without a jury trial. Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). However, a jury trial is not required in civil contempt proceedings. Cheff, 384 U.S. at 377, 86 S.Ct. 1523; see also Hicks v. Feiock, 485 U.S. 624, 637, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) (it is only when the punishment is criminal in nature that federal constitutional protections must be applied in the contempt proceeding). Civil and criminal contempt differ in important respects. Puchner, 111 F.3d at 544. “ ‘If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if" }, { "docid": "1679487", "title": "", "text": "the time of the offense or such person’s property. Ill.Rev.Stat.1991, ch. 38, para. 1005-5-3.2(b)(4)(ii) (current version at 730 III. Comp. Stat. 5/5—5—3.2(b)(4)(ii) (West 1992)) (emphasis added). Boeian currently is serving his sentence in Statesville Correctional Center, Joliet, Illinois. Boeian appealed his sentence to the Illinois Appellate Court, arguing that: (1) the imposition of an extended-term sentence pursuant to the amended statute violated his right not to be punished under an ex post facto law, as guaranteed by the United States and Illinois Constitutions; (2) the extended-term sentence was improper because Boeian was not aware of the property owners’ ages; and (3) the extended-term sentence was unwarranted and grossly and excessively severe. The Illinois Appellate Court affirmed Bocian’s sentence. People v. Gramo, 251 Ill.App.3d 958, 191 Ill.Dec. 336, 623 N.E.2d 926 (1993). Bocian’s leave to appeal to the Illinois Supreme Court was denied. People v. Gramo, 155 Ill.2d 569, 198 Ill.Dec. 547, 633 N.E.2d 9 (1994). Boeian filed a petition for a writ of habeas corpus in federal district court, arguing that: (1) the sentencing statute, before it was amended, was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment; (2) the Illinois courts’ interpretation that the 1991 amendment merely clarified, rather than changed, the previous sentencing statute violated his due process rights; and (3) an extended-term sentence for all offenses committed against property owned by persons 60 years or older amounted to cruel and unusual punishment under the Eighth Amendment. The district court denied the petition. United States ex rel. Bocian v. Godinez, No. 94 C 6147, 1995 WL 549020 (N.D.Ill. Sept. 12, 1995). Boeian raises the same three issues on appeal to this Court. We agree with the district court that Boeian is not entitled to habeas relief, and therefore affirm the denial of his petition. Analysis Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254; Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.1996). With respect to the district court’s denial of habeas" }, { "docid": "11011263", "title": "", "text": "the range of competent assistance, form a basis for an ineffective assistance claim under the federal constitution. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Under the circumstances presented here, it certainly can be argued that Jackson’s failure either to seriously argue this issue in the initial hearing on the motion to vacate the guilty plea or to raise this issue on appeal constituted ineffective assistance of counsel. The Illinois courts have strictly enforced the notice requirement of the extended term statute. Steward, therefore, has a credible argument that he was prejudiced by his counsel’s failure to press this issue. However, the state courts have never had the opportunity to consider the ineffectiveness claim in this form. Steward did not raise it in his pro se post-conviction petition, his appointed post-conviction counsel did little to supplement his pro se petition and his appointed appellate counsel for the post-conviction proceeding withdrew from the case, apparently without consulting Steward. Thus, while this claim may have arguable merit, it was not properly before the district court and is not before this court. Should Steward wish to pursue a claim of ineffective assistance of appellate counsel for failing to raise a patently meritorious state law issue he must therefore return to the Illinois courts. Perhaps the difficulties he has had with his appointed counsel would excuse the submission of a second post-conviction petition in the Illinois courts. People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25 (1971). Rather than raise the effectiveness of counsel issue just discussed, Steward in his habeas corpus petition claims that the trial court abused its discretion by imposing the extended term sentence without having made the proper admonishments. Violations of state law alone are, of course, not cognizable in federal habeas corpus proceedings, however. A habeas petitioner must show that the state law violation resulted in a violation of federal constitutional rights. In an attempt to frame the violation of the extended term statute in constitutional terms, Steward argues that imposition of the extended term sentence in breach of the Illinois statute violated his constitutional rights to receive" }, { "docid": "10066710", "title": "", "text": "the record, the Arizona Supreme Court affirmed. Id. at 1271. Lopez petitioned for post-conviction relief. The trial court held that “no material issue of fact or law exist[ed] which would be served by any further proceedings” and dismissed the petition. With respect to Lopez’s claims of ineffective assistance of counsel, the court found that Lopez failed to show that his counsel’s “performance fell below prevailing professional norms” and that there was no “reasonable probability that the result of the trial or sentencing procedures would have been different [but for] counsel’s alleged ineffective assis tance.” The Arizona Supreme Court summarily denied Lopez’s petition for review. Lopez then filed a petition for a writ of habeas corpus in federal district court. The district court denied Lopez’s petition. In particular, the district court rejected claim 7 of Lopez’s petition, which alleged that the trial judge failed to consider mitigating evidence at sentencing due to Arizona law impermissibly precluding consideration of such evidence absent a causal nexus to the crime. The district court also found that portions of claim 1(C) — Lopez’s ineffective assistance claim challenging counsel’s failure to prepare his psychiatric expert at sentencing — substantially altered the claim he had presented in his state post-conviction proceeding and were therefore procedurally barred. The district court denied the exhausted portion of claim 1(C) on the merits. The district court also denied Lopez’s Brady claim as procedurally defaulted because Lopez failed to present the issue in state court. The district court held that even if the government’s failure to disclose the information constituted cause to excuse the procedural default, Lopez failed to establish that the note was prejudicial. Analysis Because Lopez filed his habeas petition in 1998, AEDPA applies. We review de novo a district court’s denial of a § 2254 habeas corpus petition. Luna v. Cambra, 306 F.3d 954, 959, as amended, 311 F.3d 928 (9th Cir.2002). In conducting review of a state court decision, we “look to the last reasoned state-court decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). Under AEDPA, courts may grant habeas relief only if the state" }, { "docid": "11011264", "title": "", "text": "is not before this court. Should Steward wish to pursue a claim of ineffective assistance of appellate counsel for failing to raise a patently meritorious state law issue he must therefore return to the Illinois courts. Perhaps the difficulties he has had with his appointed counsel would excuse the submission of a second post-conviction petition in the Illinois courts. People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25 (1971). Rather than raise the effectiveness of counsel issue just discussed, Steward in his habeas corpus petition claims that the trial court abused its discretion by imposing the extended term sentence without having made the proper admonishments. Violations of state law alone are, of course, not cognizable in federal habeas corpus proceedings, however. A habeas petitioner must show that the state law violation resulted in a violation of federal constitutional rights. In an attempt to frame the violation of the extended term statute in constitutional terms, Steward argues that imposition of the extended term sentence in breach of the Illinois statute violated his constitutional rights to receive due process of law and to be free of cruel and unusual punishment. To support his due process claim Steward argues that the imposition of the extended term sentence was arbitrary and that the failure to comply with the statutory notice requirement rendered his plea not knowing, voluntary or intelligent. These arguments must fail. There was nothing arbitrary about the sentencing judge’s invocation of the extended term provision. He made specific findings concerning the aggravating factors required by statute. The judge’s determination that these factors were present to a degree sufficient to warrant imposition of the extended term involved no abuse of discretion and no violation of due process. Neither did the sentencing judge’s failure to comply with the statutory notice requirement render Steward’s plea not knowing, voluntary and intelligent. The question of compliance with these statutory requirements is entirely distinct from the constitutional issue regarding the knowing and voluntary nature of the plea. The State is quite correct in arguing that the court’s admonition regarding the possibility of a death sentence was sufficient to" }, { "docid": "17137863", "title": "", "text": "(1) Henry’s claim that he was denied due process of law when the state destroyed the substances seized from his car and introduced evidence that those substances were cannabis and cocaine; and (2) his claim that his 80 year sentence violated the Eighth Amendment because it was disproportionate to the crime for which it was imposed. The district court reviewed these claims and found no basis for issuing a writ of habeas corpus, but did find an adequate basis for issuing a certificate of appealability on both issues. See 28 U.S.C. § 2253(b)(2). We now consider the merits of Henry’s claims. II. Analysis The statute governing this habeas case provides that: (d) [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.... 28 U.S.C. § 2254(d)(1). Habeas relief under § 2254(d)(1) is appropriate only if “the Supreme Court has ‘clearly established’ the propositions essential to [the petitioner’s] arguments.” Mueller v. Sullivan, 141 F.3d 1232, 1234 (7th Cir.1998). A rule is “clearly established” only if it is compelled by existing Supreme Court precedent. Hogan v. Hanks, 97 F.3d 189, 192 (7th Cir.1996). “We may no longer rely upon our own precedent or that of other circuit courts of appeals to grant a writ.” Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.1999). Rather, the petitioner must have a Supreme Court case to support his claim, “and that Supreme Court decision must have clearly established the relevant principle as of the time of his direct appeal.” Id. If a petitioner can support his claim with clearly established Supreme Court precedent, he must next show that the state court’s decision was “contrary to” or “involved an unreasonable application” of that federal law. See Bocian v. Godinez," }, { "docid": "5210347", "title": "", "text": "filed an application for state post-conviction relief raising three issues: (1) ineffective assistance of trial counsel for failing to present compelling and relevant mitigating evidence at the sentencing hearing; (2) the state trial judge allowed victim impact evidence to play a significant role in the sentencing deliberations and, specifically, the weighing of aggravating and mitigating circumstances; and (3) ineffective assistance of appellate counsel for failing to raise the issue set forth in proposition two. On September 13, 2005, the OCCA denied post-conviction relief in a published opinion. Thacker v. State, 120 P.3d 1193 (Okla. Crim.App.2005) (Thacker II). Thacker’s initiation of these federal habeas proceedings Thacker initiated these federal habeas proceedings on January 17, 2006, by filing a motion for appointment of counsel. The district court granted that motion and appointed counsel for Thacker on January 19, 2006. On September 8, 2006, Thacker filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition asserted ten grounds for relief: (1) trial counsel was ineffective during pre-plea discussions, resulting in an unknowing and involuntary guilty plea, and for failing to file the proper and necessary paperwork to preserve Thacker’s right to file a certiorari appeal; (2) Thacker was denied equal protection and due process of law because the Oklahoma courts failed to follow established procedures to determine whether he desired an appeal; (3) Thacker was denied due process of law because the state trial court considered information of which Thacker was unaware and had no opportunity to deny or explain; (4) Thacker’s execution would violate the Eighth Amendment prohibition against cruel and unusual punishment because Thacker suffered from a severe mental disorder or disability at the time of his crimes; (5) trial counsel was ineffective for failing to present available mitigating evidence; (6) the admission of victim impact evidence, which explicitly called for Thacker’s execution, violated Thacker’s right to a fundamentally fair sentencing proceeding; (7) the state trial court, in balancing the aggravating and mitigating circumstances, gave inappropriate weight to the victim impact evidence, in violation of the Eighth Amendment; (8) the heinous, atrocious, or cruel aggravating" }, { "docid": "12405289", "title": "", "text": "review these claims results in a fundamental miscarriage of justice. See Howard, 185 F.3d at 726; Steward v. Gilmore, 80 F.3d 1205, 1211 (7th Cir.1996); see generally Barksdale v. Lane, 957 F.2d 379, 385 (7th Cir.1992) (requiring “some external objective factor, such as interference by officials or unavailability of the factual or legal basis for a claim” to show cause). Spreitzer has failed to present any evidence of any external cause that prevented him from raising his ineffective assistance claims before the Illinois Supreme Court, nor has he made an attempt to show actual innocence, as opposed to legal innocence, as required to support the finding of a fundamental miscarriage of justice. See Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Therefore, we find no reason to excuse Spreitzer from the requirement that he first exhaust his available state remedies. We are barred from reviewing the claims in Spreitzer’s habeas corpus petition, and we will affirm the district court’s dismissal of the petition. B. Denial of Evidentiary Hearings Finally, Spreitzer contends that the district court erred in denying him the opportunity to conduct an evidentiary hearing on his ineffective assistance of sentencing counsel claims. The district court did not express the reasons for his denial, but in reaching the merits of Spreitzer’s claim, the court noted that Spreitzer would be unable to demonstrate prejudice caused by the truth of either claim in the face of overwhelming evidence against him. Spreitzer appeals these denials, claiming that under Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he was entitled to a determination of both ineffective assistance and prejudice before denying his motion for an evidentiary hearing. “[A] federal evidentiary hearing is required if a habeas petitioner alleges facts which, if proved, would entitle him to relief and the state courts — for reasons beyond the control of the petitioner — never considered the claim in a full and fair hearing.” Porter, 112 F.3d at 1317; see also Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 9 L.Ed.2d 770" }, { "docid": "2370788", "title": "", "text": "OPINION OF THE COURT GARTH, Circuit Judge: The first of the issues raised in appellant Jerry Mason’s (“Mason”) appeal — whether a state court’s inordinate delay of four years in processing a petition for collateral relief under Pennsylvania’s Post Conviction Relief Act, 42 Pa. Cons.Stat. §§ 9541 et seq. (“PCRA”) constitutes a due process violation cognizable in a federal habeas corpus proceeding pursuant to 28 U.S.C. § 2254 — has already been addressed and resolved by this court. See Hassine v. Zimmerman, 160 F.3d 941 (3d Cir.1998) (holding that a delay in processing a collateral proceeding is not cognizable in federal habeas corpus, even if the delay amounts to a constitutional violation); Heiser v. Ryan, 15 F.3d 299 (3d Cir.1994). The second issue raised in Mason’s appeal is whether the District Court should have permitted Mason to amend his § 2254 petition to include a second claim because the two-strike provision of the An-titerrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244, effectively precludes petitioners from filing a second or subsequent habeas petition except in the most unusual of circumstances. We hold that Mason is entitled to the same prophylactic warnings we recently mandated in United States v. Miller, 197 F.3d 644 (3d Cir.1999) — that the District Court must advise Mason, as a pro se petitioner, of the AEDPA implications before ruling on Mason’s petition. Because the District Court did not have the benefit of our recent instructions, we will vacate the District Court’s orders and remand so that the District Court may comply with our Miller decision. I. Mason was convicted of various crimes in 1988, in the Court of Common Pleas of Luzerne County, Pennsylvania. In 1989, Mason was sentenced to a term of imprisonment of between fourteen and twenty-eight years and restitution. Mason appealed his conviction and sentence to the Superior Court of Pennsylvania. On August 27, 1990, the Superior Court affirmed his conviction and sentence but vacated the restitution order. On March 24, 1992, Mason filed a petition under the PCRA alleging ineffective assistance of trial counsel. The court appointed counsel" }, { "docid": "23118504", "title": "", "text": "T.G. NELSON, Circuit Judge. Michael Cooper-Smith appeals the district court’s denial of his writ of habeas corpus for alleged ineffective assistance of counsel. The district court denied Petitioner’s habeas petition after declining to expand the record under Rule 7 of the Rules Governing 28 U.S.C. § 2254 cases. Petitioner objects to this decision. Petitioner also presents the uncertified issue that his sentence violated Apprendi v. New Jersey. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm the district court's denial of Petitioner’s habeas petition and its decision not to expand the record under Rule 7. We decline to expand the Certificate of Appealability in order to reach Petitioner’s Apprendi issue. I. Procedural History and Facts A. Procedural History Petitioner Michael Cooper-Smith sought federal habeas relief on the basis that, inter alia, (1) his state trial counsel (“Counsel”) rendered ineffective assistance when he failed to pursue a motion to suppress evidence seized from Petitioner’s home and to suppress eyewitness identifications; (2) Counsel rendered ineffective assistance when he failed to call Petitioner’s doctor, Dr. True, as a witness at Petitioner’s sentencing hearing; and (3) the trial court violated Petitioner’s constitutional rights under the Fifth, Sixth and Fourteenth Amendments when it imposed a dangerous offender sentence without the predicate facts being proven to a jury. The district court analogized the ineffectiveness claim for Counsel’s failure to pursue the suppression motion to similar claims in the guilty plea context. The district court reviewed the claim unconstrained by 28 U.S.C. § 2254(d)(1) because the Oregon post-conviction trial court applied a standard that was “con trary to” Supreme Court precedent. The Oregon court applied a “more probable than not” standard rather than the Strickland v. Washington “reasonable probability” standard. Applying Strickland, the district court denied the claim because Petitioner failed to demonstrate prejudice. The district court also declined to expand the record under Rule 7 to include a declaration from the Petitioner because he had not satisfied the requirements of 28 U.S.C. § 2254(e)(2). The district court also denied the ineffective assistance claim based on Counsel’s failure to call Dr. True at the sentencing" }, { "docid": "19107881", "title": "", "text": "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. In interpreting this section, we have predictably held that [a] state court decision may not be overturned on habeas review, for example, because of a conflict with Ninth Circuit-based law, but rather a writ may issue only when the state court decision is “contrary to, or involved an unreasonable application of,” an authoritative decision of the Supreme Court. Moore v. Calderon, 108 F.3d 261, 264 (9th Cir.1997) (quoting 28 U.S.C. § 2254(d)); see also Bocian v. Godinez, 101 F.3d 465, 471 (7th Cir.1996) (“Federal Courts are no longer permitted to apply their own jurisprudence, but must look exclusively to Supreme Court caselaw.”). Because all claims presented by Houston in this petition were presented to. the state court, we may only grant Houston’s petition if his conviction is contrary to “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d). Houston argues that if the AED-PA is read this way, it constitutes a suspension of the writ of habeas corpus and therefore violates Article I, § 9, clause 2, of the Constitution. However, the AED-PA does not suspend the writ; it only requires well-established federal law, as determined by the Supreme Court, before a federal court can reverse a state court decision. Contrary to Houston’s argument, the Supreme Court need not have addressed a factually identical case, § 2254(d) only requires that the Supreme Court clearly determine the law. See Davis v. Kramer, 167 F.3d 494, 498 (9th Cir.1999), petition for cert. filed, 67 U.S.L.W. 3570 (U.S. Mar. 8,1999) (No. 98-1427). II. Individual Sentencing Doctrine Houston argues that the California Penal Code violates the Eighth Amendment by imposing a sentence of life" }, { "docid": "17043526", "title": "", "text": "MEMORANDUM OPINION AND ORDER BUCKLO, District Judge. In 1995, Mr. Wright was convicted of first degree murder in Illinois Circuit Court, for which he received a sentence of 60 years in prison, and attempted armed robbery, for which he got a further eight years. He appealed to the Illinois Appellate Court, and in 1996 his attempted robbery sentence was vacated, but his murder sentence was affirmed. In 1996, he filed an unsuccessful pro se petition for state post-conviction relief. In 1999, Mr. Wright filed this petition for federal habe-as corpus under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. I deny his claim for habeas relief. Mr. Wright raised three issues in his direct appeal to the state courts. He argued that: (1) the- trial court erred in denying his motion to quash arrest and suppress statements where he was arrested without probable cause because the police informant was unreliable; (2) the state failed to prove attempted robbery beyond a reasonable doubt; and (3) the trial court abused its discretion in imposing the maximum sentence. In the present petition, he also raises three grounds. (1') is the same as (1) above, but he also argues that (2') the court failed to dismiss the indictment when the government’s bill of particulars was erroneous, and (3') the indictment did not charge an offense properly and the judge misinstructed the jury. A state prisoner like Mr. Wright may obtain federal habeas review of his claims only if he has exhausted his state remedies and avoided procedurally defaulting his claim. 28 U.S.C. § 2254(b) & (c); Schaff v. Snyder, 190 F.3d 513, 524 (7th Cir.1999). Because Mr. Wright did not raise his claims as to the bill of particulars and the indictment and misinstruction on direct appeal, these claims have been procedurally defaulted. Mr. Wright has also procedurally defaulted his claim about arrest without probable cause. He did indeed appeal this claim to the Illinois Appellate Court, but he did not raise the argument in his petition for leave to appeal to the Illinois Supreme" } ]

[ { "docid": "4377074", "title": "", "text": "Farm’s failure to offer extended PIP benefits to Madrid for injured pedestrians, he sought reformation of the Madrid policy to include extended PIP benefits in accordance with section 710. In addition, Clark brought claims for breach of contract for failure to pay extended PIP benefits, breach of the duty of good faith and fair dealing, willful and wanton breach of contract, and deceptive trade practices. The district court dismissed all of Clark’s claims because it concluded that Brennan could not be applied retroactively, relying on a statement in Brennan that it was appropriate to apply the decision prospectively. The district court also reasoned that retroactive application of the new rule announced in Brennan would undermine widespread reliance on the prior understanding of section 710’s scope, which did not include pedestrians. Retroactive application of Brennan, the district court explained, would prove “both inequitable and impracticable.” Clark appealed the district court’s dismissal of all claims. III. DISCUSSION A. Standard of Review This court reviews de novo a dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Sutton v. Utah Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). We accept all well-pleaded factual allegations in the complaint as true and view them in the light most favorable to the nonmoving party. Id. A dismissal pursuant to 12(b)(6) will be affirmed “only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.” McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir.2002) (quotation omitted). The parties agree on appeal that Colorado substantive law governs this case. See Blackhawk-Central City Sanitation Dist. v. Am. Guar. & Liab. Ins. Co., 214 F.3d 1183, 1188 (10th Cir.2000) (applying substantive law of the state parties agree controls). In exercising de novo review, this court affords no deference to a district court’s interpretation of state law. See Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 727 (10th Cir. 1991) (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991))." } ]

[ { "docid": "23358634", "title": "", "text": "final deportation order places an alien constructively “in custody” because of “the specialized meaning those words have in the context of an immigration-related habeas petition”). Because the petitioners are clearly challenging “the validity and constitutionality of the statutes” governing their final deportation orders, our reasoning in Ho v. Greene is apposite: statutes, such as INA § 242(g), restricting judicial review of discretionary decisions do not preclude review of claims challenging the constitutionality of those statutes. We therefore exercise jurisdiction under the general habeas statute, 28 U.S.C. § 2241, which permits the granting of a writ of habeas corpus when a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1145 (10th Cir.1999) (en banc) (noting that alien may seek habeas review under both the INA and 28 U.S.C. § 2241). In holding we may exercise habeas jurisdiction, we emphasize we do so pursuant to § 2241 and need not therefore grant a certificate of appealability as is required in some habeas cases. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996); accord Ojo v. INS, 106 F.3d 680, 681-82 (5th Cir.1997). II. Standard of Review We review a district court’s dismissal for lack of subject matter jurisdiction de novo. Johnson v. Rodrigues, 226 F.3d 1103, 1107 (10th Cir.2000) (en banc); U.S. West Inc. v. Tristani 182 F.3d 1202, 1206 (10th Cir.1999) (reviewing dismissal under Rule 12(b)(1) de novo). In addition, because the legal sufficiency of a complaint is a question of law, we review dismissals under Rule 12(b)(6) for failure to state a claim de novo. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). A court considering a Rule 12(b)(6) motion will not weigh potential evidence, accepting instead all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the nonmoving party. Id. A court should not grant a Rule 12(b)(6) motion ‘“unless it appears beyond doubt that the plaintiff can prove no set of facts" }, { "docid": "13050525", "title": "", "text": "claim against the Chancellor, in dismissing the state law claims, and in declining to recuse himself as requested by Plaintiff in 1995. We have jurisdiction under 28 U.S.C. § 1291. We first address the district court’s decision to dismiss Plaintiffs § 1983 due process- and equal protection-based reinstatement claim against the University Chancellor. We review de novo a Rule 12(b)(6) dismissal for failure to state a claim. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In assessing whether the complaint sufficiently articulates a claim for which relief may be granted, we must accept as true all well-pleaded allegations and view them in the light most favorable to Plaintiff. See id. If, after doing so, “it appears beyond doubt that” Plaintiff “can prove no set of facts in support of his claim which would entitle him to relief,” then dismissal is required. Id. (quotation and citation omitted). In Tonkovich I, this court discussed Plaintiffs copious complaint in minute detail. See Tonkovich I, 159 F.3d at 510-15. We do not think it necessary to do so again. Although Tonkovich I dealt with qualified immunity, its analysis and, more importantly, its holding are germane to our -Rule 12(b)(6) inquiry. The relevance becomes apparent upon comparing the two analyses. First, both analytical frameworks employ the same factual lens: “[A]ll of the well-pleaded allegations in the complaint [are accepted] as true.” Id. at 510 (quotations and citation omitted). Second, the qualified immunity inquiry itself— whether Defendants (1) violated (2) clearly established law — requires a court to confront an obvious Rule 12(b)(6) issue: whether Plaintiff has alleged a legal violation at all. Put more specifically, both analyses require the court to determine whether Plaintiff has argued facts that, if proven, would demonstrate illegal conduct by Defendants for which relief may be granted. Significantly, the Tonkovich I court granted the individual Defendants qualified immunity because it concluded that Plaintiffs complaint did not indicate that any of the Defendants even violated his procedural or substantive due process or equal protection rights. See id. at 526 (discussing lack of" }, { "docid": "16258650", "title": "", "text": "that the search of their residence violated their Fourth Amendment rights to be free from unreasonable searches and seizures and their procedural and substantive due process rights under the Fifth and Fourteenth Amendments. The district court granted Defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The court concluded that Plaintiffs’ pleadings did not support the element of state action required to bring a claim under § 1983. The court then declined to exercise supplemental jurisdiction over Plaintiffs’ remaining state claims. Yanaki and Moss filed a timely notice of appeal challenging the district court’s order granting Defendants’ motion to dismiss. III. STANDARD OF REVIEW This court reviews a Rule 12(b)(6) dismissal de novo, accepting all well-pleaded facts as true and in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). “A 12(b)(6) motion should not be granted 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.” Id. (quotation omitted). IV. DISCUSSION To state a claim under § 1983, Plaintiffs must allege that they were deprived of a right “secured by the Constitution and laws” of the United States and that this deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). On appeal Plaintiffs contend that the district court erred when it concluded that the complaint failed to satisfy the color of state law requirement of § 1983. Plaintiffs argue that the involvement of the police in searching Moss and Yanaki’s home and seizing their property pursuant to the Search and Enforcement Orders suffices to establish conduct committed under color of law. To be under color of law, the deprivation of a federal right “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible” .and “the party charged with" }, { "docid": "8405241", "title": "", "text": "sufficiency of a complaint is a question of law; therefore, a Rule 12(b)(6) dismissal is reviewed de novó. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). [A]ll well-pleaded factual allegations in the. ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party. A 12(b)(6) motion should not be granted 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. Id. (quotations and citation omitted). Under this standard of review, we affirm the district court’s dismissal of Elliott’s antitrust claims. ' Section 1 of the Sherman Act declares illegal “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade of commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Section 2 of the Sherman Act provides that “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce ... shall be deemed guilty of a felony....” 15 U.S.C. § 2. Under Section 4 of the Clayton Act, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ..., and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15(a). Despite the broad language of Section 4, a private plaintiff must have suffered an antitrust injury and must have standing to bring an antitrust claim. Atl. Richfield Co. v. USA Petroleum, Co., 495 U.S. 328, 344, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990); see also Sharp v. United Airlines, Inc., 967 F.2d 404, 406 (10th Cir.1992). Antitrust injury and antitrust standing are overlapping concepts; “[standing cannot be established without an antitrust injury, but the existence of an antitrust injury does not automatically confer standing.” Sharp, 967 F.2d at 406 (quotation omitted). “An antitrust injury is an injury of the type the" }, { "docid": "12247016", "title": "", "text": "participating in exit interviews. Plaintiffs maintain their grievances and attempts to apply for re-employment were ignored. According to Plaintiffs, after their termination, the School’s administrators and other agents - published allegedly defamatory statements regarding Plaintiffs in the Longmont Times-Call, suggesting they had caused “unfortunate problems” at the School and publicizing their termination with the implication that there was “just cause” as required by their contracts for termination. In addition, agents of the School sent allegedly defamatory letters to parents of the School’s students, suggesting Plaintiffs had resigned (without mentioning the rescission of their resignations), had caused the need for replacements, and had damaged the quality of the School’s education program. Plaintiffs maintain the letters, published statements, performance evaluations, and other communications by the School or its agents were part of a conspiracy among Defendants to damage Plaintiffs, causing a loss of ability to be employed as teachers, loss of income, and damage to their personal and professional reputations. II. Applicable Legal Standard “[T]he Federal Rules of Civil Procedure erect a powerful presumption against rejecting pleadings for failure to state a claim.” Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989). In considering whether dismissal is proper under Rule 12(b)(6), all well-pleaded allegations in the complaint are accepted as true and viewed in the light most favorable to the nonmov-ing party. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). Only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims which would entitle him to relief, should a Rule 12(b)(6) motion be granted. Id. III. Merits A. Third Claim for Relief for Breach of Plaintiffs’ Liberty Interest/Repu-tational Due Process Rights under the Fifth and Fourteenth Amendments of the United States Constitution (against all Defendants). Defendants move to dismiss the third claim for relief stated against all Defendants for “breach of the plaintiffs’ liberty interest/reputational due process rights pursuant to the Fifth and Fourteenth Amendments to the U.S. Constitution.” (Compl.f 118.) They contend the Complaint fails to meet the requirement" }, { "docid": "22365591", "title": "", "text": "438 F.3d 1036, 1039 (10th Cir.2006). Again, for purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff. Id. “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (internal quotation omitted). The Supreme Court recently retired “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court replaced the Conley standard with a new standard in Twombly, which “prescribed a new inquiry for [courts] to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Twombly, 127 S.Ct. at 1974). The Court explained that “a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Id. (internal citation and brackets omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Id. In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits, Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir.1994), and" }, { "docid": "23280021", "title": "", "text": "Defendants violated Utah’s Government Records Access and Management Act, Utah Code Ann. § 63-2-101 to 909, based on their refusal to provide Appellant with copies of POST’s records concerning him. Appellant’s second cause of action alleged that Defendants violated 42 U.S.C. § 1983 by failing to provide him both substantive and procedural due process while effectively revoking his certificate as a peace officer and foreclosing his employment opportunities. Appellant also alleged that Defendants invaded his constitutional right to privacy. The district court dismissed Appellant’s federal claims under Federal Rule of Civil Procedure 12(b)(6) and remanded his state claim to Utah’s Third District Court. Only the federal claims are at issue on appeal. We review de novo the district court’s grant of a 12(b)(6) motion to dismiss, bearing in mind that “all well-pleaded allegations in the ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In addition, a “12(b)(6) motion should not be granted 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.” Id. (quotation and citation omitted). II. Due Process Claims A. Property Interest: Peace Officer Certification Appellant first contends that the district court erred in holding that he failed to allege that the State deprived him of a constitutional property right without procedural due process. Appellant argues that he had a constitutionally-protected property right in his certification as a peace officer, which POST effectively revoked without notice or hearing. Procedural due process is only available to plaintiffs that establish the existence of a recognized property or liberty interest. See Setliff v. Mem’l Hosp., 850 F.2d 1384, 1394 (10th Cir.1988) (citing Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The Supreme Court has held that a license to practice one’s calling or profession is a protected property right. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90" }, { "docid": "6864775", "title": "", "text": "immunity grounds. On December 10, 1999, the magistrate judge recommended that Ms. McDowall’s motion be granted as to Plaintiffs claims against her in her official capacity, but denied as to Plaintiffs claims against her in her individual capacity. In so recommending, the magistrate judge relied on this court’s decision in Northington v. Mann, 102 F.3d 1564 (10th Cir.1996), to find that labeling a prisoner a snitch violates a prisoner’s constitutional rights under the Eighth Amendment, and that the law was clearly established in this circuit at the time the alleged offense occurred. Following consideration of the objections of both parties and de novo review, the district court issued an order adopting the recommendations of the magistrate judge. In its order, the district court concluded that Plaintiffs allegation that Ms. McDowall deliberately exposed him to harm at the hands of other inmates by labeling him a snitch stated an Eighth Amendment violation which “[a]t this stage of the proceedings ... survives [McDowall’s] assertion of qualified immunity.” Aplt. Br., Att. 1 at 5. For the following reasons, we agree. II. A denial of qualified immunity that accepts the plaintiffs version of the facts and concludes that given those facts, the defendant violated clearly established law is immediately appealable because it presents for appellate review an abstract legal issue, rather than a mere factual dispute. Johnson v. Martin, 195 F.3d 1208, 1214-15 (10th Cir.1999). We review the denial of a Rule 12(b)(6) motion to dismiss de novo, applying the same standard as the district court. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). “We accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff.” Ramirez v. Dep’t of Corrections, 222 F.3d 1238, 1240 (10th Cir.2000) (citation omitted). A complaint should not be dismissed under Rule 12(b)(6) “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.” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d" }, { "docid": "5781363", "title": "", "text": "investigator. Grisham used The Dreams of Ada— and found it to be particularly helpful — in his research for The Innocent Man. Shortly after Grisham’s book was published, Broadway Books reissued The Dreams of Ada with a new afterword written by Mayer. With the exception of Actual Innocence, all these books were released (or, in the case of The Dreams of Ada, re-released) in October 2006. One year later, Peterson and Rogers filed suit alleging defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. They subsequently amended their complaint to add Hett as a plaintiff. After defendants filed motions to dismiss, the district court directed plaintiffs to file a second amended complaint specifying the alleged defamatory statements. In their 116-page second amended complaint, plaintiffs claimed that defendants engaged in “a massive joint defamatory attack” against them. This attack was motivated in part by defendants’ shared desire “to further efforts to abolish the [d]eath [pjenalty.” The district court dismissed the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Peterson v. Grisham, No. CIV-07-317-RAW, 2008 WL 4363653, at *10 (E.D.Okla. Sept. 17, 2008) (unpublished). It also dismissed plaintiffs’ motion to further amend their complaint. Id. This appeal ensued. II We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs amended complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). We accept all well-pled factual allegations as true and view these allegations in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts to make her “claim for relief ... plausible" }, { "docid": "18225273", "title": "", "text": "Value of the newspaper’s assets and specified the method by which it would conduct the appraisal. Media-News and SLTPC responded with a letter agreeing to retain MPI’s services. In combination, MPI’s letter to the party appraisers and SLTPC and MediaNews’s response constitute the Appraisal Agreement. Pursuant to the Appraisal Agreement, and after conducting the necessary investigation and receiving comments from both parties, MPI issued its final report valuing the newspaper’s assets at $331 million. Claiming that MPI failed to produce its appraisal under the standards required by the Option Agreement, SLTPC sued Me-diaNews and MPI in district court seeking, inter alia, (1) a declaration that MPI’s appraisal may not be used to calculate the exercise price, (2) a ruling imposing a new appraisal process using all new appraisals, a new valuation date, and a new selection of a third appraiser, (3) compensatory damages from MPI based on its alleged breach of contract, (4) compensatory and punitive damages based on MPI’s alleged breach of fiduciary duty, and (5) if MPI’s appraisal were deemed an “arbitration award,” an order vacating such award. In an order denying, in part, motions to dismiss filed by MediaNews and MPI, the court below concluded that MPI’s appraisal constituted an arbitration within the meaning of the FAA, which allowed SLTPC to file a motion to vacate to overturn MPI’s “arbitration award.” Following that order, SLTPC filed a motion to vacate under the FAA, which the district court denied. At this juncture, the court granted the defendants’ motion to dismiss. In its final order, the court determined that its prior orders concluding that MPI’s appraisal was an arbitration, not vacated under the FAA, resolved SLTPC’s first, second, and fifth claims in favor of Media-News. Accordingly, the court dismissed all of SLTPC’s claims against MediaNews. In dismissing SLTPC’s claims against MPI, the court concluded that MPI acted as an arbitrator and therefore was entitled to immunity from civil liability for all acts performed in its arbitral capacity. SLTPC appealed. II We review a district court’s dismissal under Fed.R.Civ.P. 12(b)(6) de novo, accepting the well-pleaded allegations of the complaint as" }, { "docid": "18225285", "title": "", "text": "a dispute unless it has consented thereto.”). Because we are reviewing the district court’s dismissal of SLTPC’s complaint pursuant to Rule 12(b)(6), we must accept the well-pleaded allegations in the complaint as true and view them in the light most favorable to SLTPC. See Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.1996). The complaint reveals that the parties did not consent to, or intend to establish, an arbitration process. We accept as true that at no time during the negotiation of the Option Agreement did the parties discuss utilizing the Third Appraisal in an arbitral manner. Our review of the pleadings, which include, by incorporation, the Option Agreement and Appraisal Agreement, confirms that at the time of contracting the parties did not understand that the Third Appraisal would be subject to the FAA and its limitations on judicial review. Furthermore, at no point during negotiations with MPI did any party suggest that MPI would function as an arbitrator or that its appraisal would be considered an arbitral award. Neither at the time of negotiating the Option Agreement nor during discussions with MPI did the parties intend to contractually bind themselves to arbitration. When SLTPC and MediaNews negotiated the Option Agreement they did not intend to submit a dispute over the exercise price to arbitration governed by the FAA. Rather they crafted a flexible process maximizing the likelihood that their respective values would contribute to the exercise price and permitting a single scenario under which only one of their appraised values would factor into the price. Simply because MPI assigned a value to the newspaper’s assets that was closer to one of the parties’ evaluations than the parties were to each other does not render MPI’s report an arbitrator’s decision deserving immunity. Accordingly, we reverse the district court’s order dismissing SLTPC’s claims. Because the court below erred in resolving this dispute on the basis of arbitral immunity, the court failed to resolve SLTPC’s claims at the 12(b)(6) stage. This leaves us no alternative but reluctantly to remand for further proceedings. In doing so, we do not intend this decision to" }, { "docid": "13050524", "title": "", "text": "the fact that Plaintiff had not alleged any conduct that constituted due process or equal protection violations. This court remanded the case to the district court for dismissal of the individual Defendants and for additional proceedings consistent with the opinion. See id. at 534. The district court accordingly dismissed the individual Defendants. This left Plaintiff with only one remaining federal cause of action: his § 1983 claim for reinstatement against the University Chancellor in his official capacity. The Chancellor moved to dismiss the equity claim for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and all the individual Defendants moved to dismiss the state law claims for lack of federal jurisdiction. Based on the Tonkovich I holdings, the district court ruled that Plaintiff had not stated a claim upon which relief could be granted against the Chancellor and dismissed the § 1983 reinstatement claim. Lacking a cognizable federal claim, the court also dismissed the pendent state law claims. Plaintiff appeals, arguing that the district court erred in dismissing the reinstatement claim against the Chancellor, in dismissing the state law claims, and in declining to recuse himself as requested by Plaintiff in 1995. We have jurisdiction under 28 U.S.C. § 1291. We first address the district court’s decision to dismiss Plaintiffs § 1983 due process- and equal protection-based reinstatement claim against the University Chancellor. We review de novo a Rule 12(b)(6) dismissal for failure to state a claim. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In assessing whether the complaint sufficiently articulates a claim for which relief may be granted, we must accept as true all well-pleaded allegations and view them in the light most favorable to Plaintiff. See id. If, after doing so, “it appears beyond doubt that” Plaintiff “can prove no set of facts in support of his claim which would entitle him to relief,” then dismissal is required. Id. (quotation and citation omitted). In Tonkovich I, this court discussed Plaintiffs copious complaint in minute detail. See Tonkovich I, 159 F.3d at 510-15. We" }, { "docid": "18225283", "title": "", "text": "the parties may, under certain circumstances, have used to fix the exercise price under the Option Agreement. MPI’s report would not necessarily settle a dispute between SLTPC and Me-diaNews. Perhaps recognizing that MPI’s appraisal, standing alone, does not constitute an arbitration, MediaNews stated at oral argument that the entire process, including the party appraisals, was an arbitration. MediaNews suggests that the appraisers respectively hand-picked by the two parties, whose qualifications, abilities, and methods have been thoroughly impugned by the opposing party in the briefs, were somehow co-equal arbitrators with MPI. First, the court below dismissed SLTPC’s claims based on its conclusion that MPI’s appraisal constituted an arbitration. Nowhere did the district court suggest that the entire process constituted an arbitration. See Salt Lake Tribune Publishing Company, LLC v. Management Planning, Inc., No. 2.-03-CV-565 TS, slip op. at 7, 12 (D.Utah Sept. 18, 2003) (“Defendants contend that the Third Appraisal is an arbitration ....”) (“the court finds that, under Delaware law, the Third Appraisal is an arbitration.”). Second, to the extent there existed a dispute requiring arbitration, the party appraisers produced the dispute by affixing values more than ten percent apart. The appraisers selected by the individual parties functioned more like dueling experts than arbitrators. Also belying the suggestion that the process constituted arbitration is the express language of the Appraisal Agreement that provides in the event the Option Agreement “preclude[s] an appraisal in accordance with ... industry standards and principles, ... the parties agree to then seek guidance from the Court to resolve that conflict.” This hardly sounds like arbitration to us. Because the three-appraisal process does not resemble classic arbitration, we reject MediaNews’s suggestion that the entire process constituted an arbitration. Although our conclusion that the parties did not structure a process sufficiently resembling classic arbitration resolves the question before us, we also note that the parties did not intend to submit their dispute to arbitration. See, e.g., Oil, Chemical & Atomic Workers Int’l Union v. American Oil Co., 528 F.2d 252, 254 (10th Cir.1976) (“The issue of arbitrability is for judicial determination because no party has to arbitrate" }, { "docid": "9827949", "title": "", "text": "Duran’s second amended complaint failed to state a claim under RICO, and declining pendant jurisdiction over Mr. Duran’s state law claims. In so doing, the court determined that Mr. Duran failed to establish a pattern of racketeering or that the alleged predicate acts posed a threat of continued criminal activity. The court concluded that the matter was basically “a boundary dispute and a dispute over prescriptive rights between adjoining landowners,” which was settled and unlikely to occur again. R. Vol. 1, tab 51 at 8. Mr. Duran appeals. II. “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (quotation omitted). The legal sufficiency of a complaint is a question of law; hence, a Rule 12(b)(6) dismissal is reviewed de novo. Id. In reviewing the district court’s decision we accept as true all well-pleaded allegations in the complaint and construe them in favor of the nonmoving party. Id. “Granting defendant’s motion to dismiss is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Cottrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d 1248, 1251 (10th Cir.1999) (quotations omitted). Section 1962(c) of RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” RICO defines “pattern of racketeering activity” as requiring “at least two acts of racketeering activity” within a ten-year period. Id. § 1961(5). In his complaint, Mr. Duran alleges that defendants engaged in a pattern of racketeering activity including extortion and bribery. In order to satisfy RICO’s pattern requirement, Mr. Duran must show" }, { "docid": "22365590", "title": "", "text": "medical records. As a result, we conclude Smith has not appealed the dismissal of his claims regarding lost medical records. See Fed. R.App. P. 28(a)(9)(A) (requiring the appellant’s opening brief to contain the contentions raised on appeal); Becker v. Kroll, 494 F.3d 904, 913 n. 6 (10th Cir.2007) (concluding that issues and arguments on which an appellant desires appellate review must be raised in the appellant’s opening brief or be waived). C. District Court’s Memorandum and Order Dismissing Smith’s Claims 1. Standard of Review A dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) is reviewed de novo. Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.2007). A facial attack on the complaint’s allegations regarding subject matter jurisdiction questions the complaint’s sufficiency and requires the court to accept the allegations as true. Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1292 (10th Cir.2005). The legal sufficiency of a complaint is a question of law, and a Rule 12(b)(6) dismissal is reviewed de novo. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006). Again, for purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff. Id. “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (internal quotation omitted). The Supreme Court recently retired “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929" }, { "docid": "3450357", "title": "", "text": "powerline project as an anticipatory public nuisance, and (2) a writ of mandamus requiring the County to enforce the Code against the project. In particular, the complaint alleged that the County’s settlement agreement “lacks any basis in fact or law.” (2 id. at 361.) PNM moved to dismiss intervenors’ complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. In January 2001, the district court heard argument on PNM’s motion and granted it in a ruling from the bench. Intervenors now appeal the dismissal of their complaint; they also appeal the district court’s approval of the County’s and PNM’s Rule 41 motion. II Because the district court dismissed intervenors’ complaint under Rule 12(b)(6), we review that dismissal de novo, applying the same standards as the district court. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In reviewing a motion for dismissal under Rule 12(b)(6), we accept as true “all well-pleaded factual allegations in the amended complaint,” and those allegations are “viewed in the light most favorable to the nonmoving party.” Id. As a result, a “12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of Ms claim which would entitle him to relief.” Id. (quotation omitted.) “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for wMch relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). We also “must indulge all reasonable inferences in favor of the plaintiff.” Curtis Ambulance of Fla., Inc. v. Bd. of County Comm’rs, 811 F.2d 1371, 1374 (10th Cir.1987). In deciding a Rule 12(b)(6) motion, a federal court may only consider facts alleged within the complaint. Miller, 948 F.2d at 1565. There are two exceptions to this rule. First, a district court may review “mere argument contained in a memorandum in opposition to" }, { "docid": "18225274", "title": "", "text": "an order vacating such award. In an order denying, in part, motions to dismiss filed by MediaNews and MPI, the court below concluded that MPI’s appraisal constituted an arbitration within the meaning of the FAA, which allowed SLTPC to file a motion to vacate to overturn MPI’s “arbitration award.” Following that order, SLTPC filed a motion to vacate under the FAA, which the district court denied. At this juncture, the court granted the defendants’ motion to dismiss. In its final order, the court determined that its prior orders concluding that MPI’s appraisal was an arbitration, not vacated under the FAA, resolved SLTPC’s first, second, and fifth claims in favor of Media-News. Accordingly, the court dismissed all of SLTPC’s claims against MediaNews. In dismissing SLTPC’s claims against MPI, the court concluded that MPI acted as an arbitrator and therefore was entitled to immunity from civil liability for all acts performed in its arbitral capacity. SLTPC appealed. II We review a district court’s dismissal under Fed.R.Civ.P. 12(b)(6) de novo, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003). A We begin by analyzing whether MPI’s appraisal constituted an arbitration within the meaning of the FAA. Because Congress did not define “arbitration” in the FAA, we must first decide which source of law provides that definition. Relying on the Option Agreement’s choice-of-law provision electing Delaware law, the district court turned to Delaware law to define “arbitration.” On appeal, SLTPC urges us to apply federal law. Our review of the authorities leads us to conclude that SLTPC’s position is correct and that federal law supplies the standard by which we must determine whether MPI’s appraisal was an arbitration. In the absence of clear evidence that Congress intended state law to define “arbitration,” we must assume that federal law provides the definition. The meaning that the law attaches to the term “arbitration” establishes the scope and force of the FAA. Unless Congress plainly intended the various states’ laws to define “arbitration,” and" }, { "docid": "23685701", "title": "", "text": "v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). The second is the requirement that the violated right was “clearly established” at the time of the alleged conduct. Id. at 232, 111 S.Ct. 1789. The district court dismissed Plaintiffs complaint because the stated facts did not rise to the conscience-shocking level necessary to plead a constitutional violation and because Plaintiff had not demonstrated that the alleged constitutional violation was contrary to clearly established law. Plaintiff appeals this order of dismissal of his complaint. Because the sufficiency of a complaint is a question of law, we review de novo the district court’s grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), applying the same standards as the district court. Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999). “That is, all well-pleaded factual allegations in the ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party.” Id. It is true that dismissal under Rule 12(b)(6) “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir.2001) (quotation and citation omitted). It is also well established that dismissal of a complaint is proper only if “it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Gas-A-Car, Inc. v. Am. Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Pleading his case that his constitutional rights were violated, Plaintiff claims “[i]t is beyond cavil that the Due Process Clause protects an individual’s right to ‘bodily integrity.’” Aplt. Br. at 13. But the Supreme Court has recognized a liberty interest in bodily integrity in only very limited circumstances involving such things as abortions, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d" }, { "docid": "16048221", "title": "", "text": "the scien-ter requirement). As has been noted, “an inevitable tension arises” between the strict pleading requirements of the Reform Act and the “customary latitude granted the plaintiff’ under Rule 12(b)(6). Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir.2002). A court’s function on a Rule 12(b)(6) motion “is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (quotation omitted). “A 12(b)(6) motion should not be granted ‘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.’ ” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (quoting Conley v. Gibson, 356 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Because this is a question of law, we review a 12(b)(6) dismissal de novo, Grossman v. Novell, Inc., 120 F.3d 1112, 1118 (10th Cir.1997), and, in general, “all well-pleaded factual allegations in the ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party,” Sutton, 173 F.3d at 1236. In Gompper, the Ninth Circuit determined that, as regards the state of mind requirement of the Reform Act, the 12(b)(6) standard has been modified by that statute. According to the Ninth Circuit, because the Reform Act requires plaintiffs to plead facts with particularity giving rise to a “strong inference” that the defendant acted with scienter, § 78u-4(b)(2), a court considering whether scienter has been established “must consider all reasonable inferences to be drawn from the allegations, including inferences unfavorable to the plaintiffs.” 298 F.3d at 897. At first glance, the position of the Ninth Circuit seems to be in conflict with our precedent in Fleming, a case applying the Reform Act that reiterated that we accept a plaintiffs well-pleaded allegations as true and view them “in the light most favorable to the nonmoving party.”" }, { "docid": "8405240", "title": "", "text": "district court granted Appellees’ motion to dismiss. The court concluded that because Elliott failed to show “that they have been damaged by an anticom-petitive effect of defendants’ actions,” Elliott has not demonstrated an antitrust injury or that it has standing to bring an antitrust claim. On appeal Elliott argues that the district court erred in concluding it did not suffer an antitrust injury and did not have standing to bring its antitrust claims. Elliott argues that it is a captive consumer in the market for gas processing services and Appellees, in violation of Section 1 of the Sherman Act, formed a cartel to horizontally fix prices for gas processing services at anticompetitive levels and injured the class. Secondly, in violation of Section 2, Elliott claims that it was. injured as a supplier of raw natural gas with entrained NGLs because only one purchaser, Appel-lees, exercised monopolistic power to use their excessive gas processing to drive down the amount the class receives as payment for the natural gas and NGLs supplied to the marketplace. The legal sufficiency of a complaint is a question of law; therefore, a Rule 12(b)(6) dismissal is reviewed de novó. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). [A]ll well-pleaded factual allegations in the. ... complaint are accepted as true and viewed in the light most favorable to the nonmoving party. A 12(b)(6) motion should not be granted 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. Id. (quotations and citation omitted). Under this standard of review, we affirm the district court’s dismissal of Elliott’s antitrust claims. ' Section 1 of the Sherman Act declares illegal “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade of commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Section 2 of the Sherman Act provides that “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to" } ]

[ { "docid": "22621741", "title": "", "text": "all the notes were still located in Kissinger’s office at the State Department. For this reason, we do not rest our resolution of his claim on the grounds that there was no withholding by the State Department. As outlined above, the Act only prohibits the withholding of “agency records.” We conclude that the Safire request sought disclosure of documents which were not “agency records” within the meaning of the FOIA. Safire’s request sought only a limited category of documents. He requested the Department to produce all transcripts of telephone conversations made by Kissinger from his White House office between January 21, 1969, and Febru ary 12, 1971, in which (1) Safire’s name appeared; or (2) in which Kissinger discussed the subject of information “leaks” with General Alexander-Haig, Attorney General John Mitchell, President Richard Nixon, J. Edgar Hoover, or any other official of the FBI. The FOIA does render the “Executive Office of the President” an agency subject to the Act. 5 U. S. C. § 552 (e). The legislative history is unambiguous, however, in explaining that the “Executive Office” does not include the Office of the President. The Conference Report for the 1974 FOIA Amendments indicates that “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President” are not included within the term “agency” under the FOIA. H. R. Conf. Rep. No. 93-1380, p. 15 (1974), reprinted in Source Book II, p. 232. Safire’s request was limited to a period of time in which Kissinger was serving as Assistant to the President. Thus these telephone notes were not “agency records” when they were made. The RCFP requesters have argued that since some of the telephone notes made while Kissinger was adviser to the President may have related to the National Security Council they may have been National Security Council records and therefore subject to the Act. See H. R. Rep No. 93-876, p. 8 (1974), Source Book II, p. 128, indicating that the National Security Council is an executive agency to which the FOIA applies. We need not decide" } ]

[ { "docid": "16687680", "title": "", "text": "executive department, the Office is subject to the FOIA. The Government argues against FOIA coverage on the ground that Congress did not intend to apply the Act to units whose sole function is to advise and assist the President. This argument purports to rely on the legislative history of the 1974 amendment. Having expanded the “agency” definition “to include those entities which may not be considered agencies under section 551(1) of title 5, U.S.Code, but which perform governmental functions and control information of interest to the public,” H.R.Rep.No.93-876, 93d Cong., 2d Sess. 8 (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6267, 6274, Congress made clear that it did not intend to include “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” Conf.Rep.No.93-1200, 93d Cong., 2d Sess. 15 (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, p. 6293. The “advise and assist the President” language applies as a limitation upon FOIA coverage only within the Executive Office of the President. The Government’s contention attempts to apply this limitation throughout the executive branch. That is an unwarranted interpretation of the 1974 amendment, which, if accepted, would lead to significant reduction in FOIA coverage, contrary to the wording and purpose of the amendment. The Government also argues that even if the Office of the Pardon Attorney is covered by the FOIA, the files of that Office are entirely exempt from disclosure under the FOIA’s Exemption 5, 5 U.S.C. § 552(b)(5). This exemption covers “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The availability of this exemption may be established either by testimony or affidavits, without the need for in camera inspection of the documents sought. EPA v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 55 L.Ed.2d 119 (1973); Lead Industries Ass’n v. OSHA, 610 F.2d 70 (2d Cir. 1979). In the District Court the Government attached to its motion for summary judgment a memorandum from the Office of the Pardon Attorney" }, { "docid": "10734257", "title": "", "text": "FOIA. See 5 U.S.C. § 552a(a)(l) (expressly incorporating the FOIA’s definition of “agency”). Under the FOIA, “agency” includes “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f). Though the Executive Office of the President is expressly mentioned in the FOIA definition of “agency,” the Supreme Court has held that the FOIA’s reference to “the ‘Executive Office’ does not include the Office of the President.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). The Kissinger Court also stated that “ ‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Id. (citing H.R. Conf. Rep. No. 93-1380, p. 15 (1974)). A. The EOP’s Motion to Dismiss The EOP argues that the White House Office should not be considered an “agency” subject to the Privacy Act because it is not an agency subject to the FOIA. Broad-drick disagrees, suggesting that the statutory definition of the term “agency” and the Privacy Act’s legislative history require that the Privacy Act be applied to the EOP without exception. In support of their positions, both Broaddrick and the EOP cite recent district court opinions from this court, which decided whether the EOP was subject to the Privacy Act. Compare Alexander v. F.B.I., 971 F.Supp. 603, 607 (D.D.C.1997) (Lamberth, J.) (holding that the EOP was an “agency” subject to the Privacy Act), with Memorandum, Barr v. Executive Office of the President, No. 99-1695, (D.D.C. Aug. 9, 2000) (Green, J.L., J.) (holding that the EOP was not an “agency” subject to the Privacy Act). See also Falwell v. Executive Office of the President, 113 F.Supp.2d 967, 970 (W.D.Va.2000) (holding that the Office of the President is not subject to the Privacy Act). Despite suggestions to the con trary, the Alexander and Barr opinions are not binding upon this" }, { "docid": "17881927", "title": "", "text": "that “the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President” are not included within the term “agency” under the FOIA. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong.2d Sess. 15 (1974)). Although the Executive Residence is not a unit within the Executive Office of the President (“EOP”), see Reorganization Plan No. 1 of 1977, reprinted in 3 U.S.C. Ch. 2 note at 431, 434 (1994) (Message of the President) (listing units within the EOP), we believe it is analogous to an EOP unit for purposes of a FOIA analysis because the Residence staff, like units within the EOP, is responsible directly to the President and assists him by performing whatever duties he may prescribe. See 3 U.S.C. § 105(b)(1) (1994). Thus, we rely on FOIA cases dealing with the responsibilities of EOP units in determining whether the Executive Residence is to be treated as an agency within the meaning of FOIA. As we pointed out in Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993), every one of the EOP units that we found to be subject to FOIA has wielded substantial authority independently of the President. Id. at 1292 (discussing eases). For example, in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), we held that the Office of Science and Technology was subject to FOIA because it had independent authority to evaluate federal scientific programs, initiate and support research, and award scholarships. See id. at 1075; Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). Similarly, in Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980), we held that the Council on Environmental Quality — an entity within the EOP with power to coordinate federal environmental programs and issue guidelines and regulations to federal agencies — was an agency for the purposes of FOIA. Id. at 1263. By contrast, in cases involving units of the Executive Office that lacked substantial independent authority, we" }, { "docid": "10734254", "title": "", "text": "the President is a part, responded on October 27, 1999, denying Broaddrick’s request on the grounds that the “President’s immediate personal staff and units in the Executive Office of the President whose sole function is to advise and assist the President are not included within the term ‘agency’ under the FOIA and the Privacy Act.” Compl. at Ex. 2. The White House Office also noted that the FOIA and the Privacy Act do not establish a statutory right to records Broaddrick seeks from the EOP, if such records exist. This suit followed. In Count I of her Complaint, Broaddrick alleges that the EOP and DOJ violated the Privacy Act by maintaining records on Broaddrick as “part of a pattern of willful and intentional misconduct undertaken for purposes of attacking or threatening attacks on Plaintiff, and others similarly situated.” Compl. ¶ 22. Broaddrick contends that this maintenance of records is in violation of 5 U.S.C. §§ 552a(e)(l) and (g)(1)(D). Broaddrick also alleges that the EOP and DOJ disseminated information from her records in violation of 5 U.S.C. §§ 552a(e)(l) and (g)(1)(D). Finally, Bro-addrick claims that the EOP and DOJ refused her request for access to records in violation of 5 U.S.C. §§ 552a(d)(l) and (g)(1)(B). The EOP and DOJ filed motions to dismiss and for summary judgement. The EOP argues that the case against it should be dismissed because the EOP’s White House Office is not an “agency” subject to the Privacy Act. DOJ argues that the claims against the FBI, a part of DOJ, should be dismissed because Broaddrick does not allege that she submitted a Privacy Act request to the FBI. Broaddrick filed a cross motion for partial summary judgment on these same issues. Finally, DOJ filed an amended motion for summary judgment. In that motion, DOJ contends, inter alia, that Broaddrick’s allegations against DOJ are unfounded in fact and in law. II. ANALYSIS The Privacy Act of 1974, 5 U.S.C. § 552a et seq., regulates the collection, maintenance, use, and dissemination of an individual’s personal information by federal government agencies. See 5 U.S.C. § 552a(e). The Privacy Act" }, { "docid": "18837446", "title": "", "text": "“agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(e) (emphasis added). As clearly shown by the legislative history, however, Congress intended to codify our earlier decision (interpreting more general predecessor language) in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). In that case, we held that the Office of Science and Technology (OST), a distinct entity within the Executive Office of the President, was a FOIA “agency.” Although we acknowledged that OST advised and assisted the President, we emphasized that OST also had inherited from the National Science Foundation “substantial independent authority, ’! such as evaluating federal programs, initiating and supporting research, and awarding scholarships. Id. at 1073-75 (emphasis added); see also Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). OST was a FOIA agency precisely because it could act directly and independently beyond advising and assisting the President. “By virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act.” Soucie, 448 F.2d at 1075. In Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Supreme Court followed the legislative history and held that the Act did not cover “ ‘the President’s immediate personal staff or units , in the Executive Office whose sole function is to advise and assist the President.’ ” Id. at 156, 100 S.Ct. at 971 (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974)) (emphasis added). Shortly after Kissinger, in Pacific Legal Found, v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980), we decided that the Council on Environmental Quality (CEQ), an entity within the Executive Office of the President, was a FOIA agency. But subsequently in Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985), we distinguished the Council of Economic Advisers (CEA) from the CEQ and exempted it from FOIA." }, { "docid": "18818561", "title": "", "text": "FOIA.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)), 1974 U.S.C.C.A.N. 6267. The Supreme Court test adopted in Kissinger for determining which entities within the EOP are agencies subject to the FOIA was originally developed by this court in Soucie v. David, 448 F.2d 1067 (1971). In Soucie, this court held that only entities whose “sole function [is] to advise and assist the President” are not separate agencies subject to the FOIA. Id. at 1075. Thus, the court concluded that the Office of Science and Technology (“OST”) — the precursor of the OSTP, one of the agencies whose guidelines are at issue in this appeal — was an agency subject to the FOIA because its duties went beyond advising the President and included evaluating federal scientific programs. Id. The legislative history of the PRA could not be clearer in indicating congressional intent to adopt the test articulated in Soucie to determine what entities are “agencies” subject to the FOIA: The [PRA] does not modify the applicability of the [FOIA] to White House and [EOP] records.... That is, it does not redefine the term agency to include entities not now covered by the FOIA. The Conference Report for the 1974 Freedom of Information Act amendments stated that “[w]ith respect to the meaning of the term ‘[EOP]’ the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 [(D.C.Cir.1971)]. The term is not interpreted as including the President’s immediate staff or units in the [EOP] whose sole function is to advise and assist the President.” H.R.Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 13 (1974)), reprinted in 1978 U.S.C.C.A.N. 5732, 5742. The FOIA Conference Report quoted in the PRA legislative history is the same report upon which the Supreme Court relied in Kissinger, 445 U.S. at 156, 100 S.Ct. at 971. This court has consistently applied the “sole function” test developed in Soucie and adopted in Kissinger in" }, { "docid": "10734253", "title": "", "text": "MEMORANDUM OPINION KENNEDY, District Judge. Juanita Broaddrick (“Broaddrick”) filed this suit against defendants The Executive Office of the President (“EOP”) and the Department of Justice (“DOJ”), alleging that the EOP and DOJ violated the Privacy Act, 5 U.S.C. § 552a et seq. Before the court are the EOP’s motion to dismiss, Broaddriek’s cross motion for partial summary judgment, DOJ’s motion to dismiss, and DOJ’s amended motion for summary judgment. Upon consideration of the motions, the opposition thereto, and the record of the case, the court grants the EOP’s motion to dismiss, denies Broaddrick’s cross motion for partial summary judgment, grants DOJ’s motion to dismiss her denial of access claim, and grants DOJ’s amended motion for summary judgment on all remaining claims. I. BACKGROUND On October 12,1999, Broaddrick submitted a written request to the EOP pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, for any documents that refer or relate to Juanita Broaddrick. The White House Office, of which the Office of Counsel to the President is a part, responded on October 27, 1999, denying Broaddrick’s request on the grounds that the “President’s immediate personal staff and units in the Executive Office of the President whose sole function is to advise and assist the President are not included within the term ‘agency’ under the FOIA and the Privacy Act.” Compl. at Ex. 2. The White House Office also noted that the FOIA and the Privacy Act do not establish a statutory right to records Broaddrick seeks from the EOP, if such records exist. This suit followed. In Count I of her Complaint, Broaddrick alleges that the EOP and DOJ violated the Privacy Act by maintaining records on Broaddrick as “part of a pattern of willful and intentional misconduct undertaken for purposes of attacking or threatening attacks on Plaintiff, and others similarly situated.” Compl. ¶ 22. Broaddrick contends that this maintenance of records is in violation of 5 U.S.C. §§ 552a(e)(l) and (g)(1)(D). Broaddrick also alleges that the EOP and DOJ disseminated information from her records in violation of 5" }, { "docid": "18181705", "title": "", "text": "such information to “establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity -” Id. § 552a(e)(10). In addition, the Act prohibits agencies, subject to certain exceptions, from disclosing information about an individual in its records without the individual’s consent. See id. § 552a(b). Upon receipt of a proper request from an individual, any federal agency subject to the Privacy Act must permit that individual to have access to, and the opportunity to correct and amend, its records regarding that individual. See' id. at § 552a(d). The Privacy Act grants jurisdiction to federal courts for civil actions to compel compliance with its terms and, in the case of intentional or willful violations, to award damages. See id. at § 552a(g). The sole issue presently raised for this Court’s determination is whether the White House Office, a unit within the EOP, may be considered an “agency” which is subject to the terms of the Privacy Act. See EOP’s Mem. at 1-2. The Privacy Act provides that the term “agency” means “agency” as defined by the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(f). See 5 U.S.C. § 552a(a)(l); Dong v. Smithsonian Inst., 125 F.3d 877, 878 (D.C.Cir.1997) (holding that the Privacy Act “borrows the definition of ‘agency’ found in FOIA”). FOIA, in turn, defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of Government (including the Executive Office of the President), or any inde pendent regulatory agency.” 5 U.S.C. § 552(f). Although the plain language of the statute expressly includes the “Executive Office of the President,” FOIA’s legislative history specifies that the term “Executive Office of the President” is “not to be interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” S. CONF. REP. NO. 93-1200, at 15 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6923; H.R. CONF. REP. NO. 93-1380, at 14 (1974) (same). Recognizing" }, { "docid": "16687679", "title": "", "text": "§ 551(1). In amending the FOIA in 1974, Congress added the following definition of an agency: For purposes of this section, the term “agency” as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. Pub.L.No.93-502, 88 Stat. 1561, 1564 (1974), codified at 5 U.S.C. § 552(e). Even before this amendment there was no doubt that executive departments, and units within such departments, were agencies within the meaning of § 551(1). Blackwell College of Business v. Attorney General, 147 U.S.App. D.C. 85, 90, 454 F.2d 928, 933 (D.C.Cir. 1971) (Immigration and Naturalization Service). The Office of the Pardon Attorney is located within the Department of Justice, 28 C.F.R. §§ 0.1, 0.35. In addition to handling pardon applications, the Office is authorized to perform “any other duties assigned by the Attorney General or the Deputy Attorney General.” 28 C.F.R. § 0.35. As a unit within an executive department, the Office is subject to the FOIA. The Government argues against FOIA coverage on the ground that Congress did not intend to apply the Act to units whose sole function is to advise and assist the President. This argument purports to rely on the legislative history of the 1974 amendment. Having expanded the “agency” definition “to include those entities which may not be considered agencies under section 551(1) of title 5, U.S.Code, but which perform governmental functions and control information of interest to the public,” H.R.Rep.No.93-876, 93d Cong., 2d Sess. 8 (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6267, 6274, Congress made clear that it did not intend to include “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” Conf.Rep.No.93-1200, 93d Cong., 2d Sess. 15 (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, p. 6293. The “advise and assist the President” language applies as a limitation upon FOIA coverage only within the Executive Office of the President. The Government’s" }, { "docid": "18181707", "title": "", "text": "congressional intent, the Supreme Court has held that the FOIA definition of “agency” does not include the “Office of the President,” also known as the White House Office. See Kissinger, 445 U.S. at 156, 100 S.Ct. 960. The Kissinger Court based this finding, in part, on the Conference Report for the 1974 FOIA Amendments which indicate that the term “agency” shall not apply to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” See id. (citing H.R. CONF. REP. NO. 93-1380, at 15 (1974)). Accordingly, the Court held that such staff and units “are not included within the term ‘agency’ under the FOIA.” Id. Following the Supreme Court’s opinion in Kissinger, the United States Court of Appeals for the District of Columbia Circuit recognized that “it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA.” United States v. Espy, 145 F.3d 1369, 1373 (D.C.Cir.1998). By the same rationale, the Court of Appeals noted that an entity within the EOP does not qualify as an “agency” unless it exercises “substantially independent authority.” Id. Accordingly, the court noted that the Chief of Staff or the President’s Counsel would not constitute an “agency” for FOIA purposes. Id.; see also Nat’l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990) (“The Supreme Court has made clear that the [White House Office] is not an ‘agency’ for purposes of the FOIA.”). While they concur that the White House Office is exempt from FOIA, the parties dispute its status under the Privacy Act. Both Plaintiff and the EOP argue that the Privacy Act is in some way “clear” on its face with regard to this issue. That is, the EOP argues that the statute clearly adopts the FOIA definition of “agency” and construes that statement as an adoption of the FOIA definition precisely as it has been applied and interpreted in FOIA actions. See EOP’s Mem. at 16-18. In contrast, Plaintiff argues that the plain text of the definition" }, { "docid": "5736914", "title": "", "text": "within the meaning of FOIA. As to the Sunshine Act claim, the court held that the Act did not apply to CEA inasmuch as the Council is not a collegial body. This appeal followed. II The first issue before us is whether the CEA is an “agency” within the meaning of FOIA. The operative statutory provision sets forth the following definition of that term: “For purposes of this section, the term agency ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(e). Plaintiffs argument is simple and straightforward: since the CEA is an establishment in the Executive Office of the President, it is subject to FOIA. But the issue is not so easily resolved. As the Supreme Court has made clear, “ ‘Executive Office’ does not include the Office of the President ... [, and] ‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Rep. No. 1380, 93d Cong., 2d Sess. 8 (1974)). While not all units within the Executive Office of the President are subject to FOIA, appellant seeks to buttress his position by repairing to the legislative history, specifically the House Report on the 1974 amendments to FOIA. That Report states that the definition of “agency” was being expanded from that which previously obtained. The Report further states that “[t]he term ‘establishment in the Executive Office of the President,’ as used in this amendment, means such functional entities as ... the Council of Economic Advisers....” H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin. News 1974, 6267, 6274. It is thus clear, as appellant argues, that the House version of the 1974 amendments contemplated that the CEA would be subject to FOIA." }, { "docid": "18181706", "title": "", "text": "EOP’s Mem. at 1-2. The Privacy Act provides that the term “agency” means “agency” as defined by the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(f). See 5 U.S.C. § 552a(a)(l); Dong v. Smithsonian Inst., 125 F.3d 877, 878 (D.C.Cir.1997) (holding that the Privacy Act “borrows the definition of ‘agency’ found in FOIA”). FOIA, in turn, defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of Government (including the Executive Office of the President), or any inde pendent regulatory agency.” 5 U.S.C. § 552(f). Although the plain language of the statute expressly includes the “Executive Office of the President,” FOIA’s legislative history specifies that the term “Executive Office of the President” is “not to be interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” S. CONF. REP. NO. 93-1200, at 15 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6923; H.R. CONF. REP. NO. 93-1380, at 14 (1974) (same). Recognizing congressional intent, the Supreme Court has held that the FOIA definition of “agency” does not include the “Office of the President,” also known as the White House Office. See Kissinger, 445 U.S. at 156, 100 S.Ct. 960. The Kissinger Court based this finding, in part, on the Conference Report for the 1974 FOIA Amendments which indicate that the term “agency” shall not apply to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” See id. (citing H.R. CONF. REP. NO. 93-1380, at 15 (1974)). Accordingly, the Court held that such staff and units “are not included within the term ‘agency’ under the FOIA.” Id. Following the Supreme Court’s opinion in Kissinger, the United States Court of Appeals for the District of Columbia Circuit recognized that “it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA.” United States v. Espy, 145 F.3d 1369, 1373 (D.C.Cir.1998). By the same rationale, the Court of Appeals" }, { "docid": "18933764", "title": "", "text": "whether or not it is within or subject to review by another agency,” subject to certain exceptions not applicable here. 5 U.S.C. § 551(1). In 1974, Congress amended the FOIA to clarify that the § 551(1) definition of agency, as applied to the FOIA, “includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government 0including .the Executive Office of the President), or any independent regulatory agency.” FOIA Amendments of 1974, Pub.L. No. 93-502, sec. 3, § 552(e), 88 Stat. 1561, 1564 (codified as amended at 5 U.S.C. § 552(f)(1)) (emphasis added). Main Street argues that the highlighted FOIA language is unambiguous and, therefore, dispositive of the single issue on this appeal: the NSC is an “establishment in the executive branch of the Government” within “the Executive Office of the President” and, therefore, an “agency” subject to the FOIA. Generally, “if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis.” Zuni Pub. Sch. Dist. No. 89 v. Dep’t ofEduc., 550 U.S. 81, 93, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007); see United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir.2012). The Supreme Court, however, has not strictly applied this rule in construing the above-highlighted language of the FOIA. Rather, in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 155-57, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court looked to the FOIA’s legislative history in concluding that notes made by the President’s National Security Advisor were not agency records subject to the FOIA. The history referenced in Kissinger indicates that Congress did not intend for “ ‘the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President’ ” to be “included within the term ‘agency’ under the FOIA.” Id. at 156, 100 S.Ct. 960 (quoting H.R.Rep. No. 93-1380 (1974) (Conf.Rep.), reprinted in Subcomm. on Gov’t Info & Indiv. Rights of the H. Comm, on Gov’t Operations, 94th Cong.," }, { "docid": "17223345", "title": "", "text": "in this case and the NEPDG were all a part of the deliberative process and should be protected under Exemption 5. See DOI and BLM Rep. at 14-15. The term “agency” is defined by the FOIA to mean “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1). The legislative history makes clear, however, that the term “agency” does not include “the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. at 156, 100 S.Ct. 960 (quoting H.R. Conf. Rep. No. 93-1380, 93 Cong., 2d Sess. at 15 (1974)) Whether an entity within the Executive Office of the President is an “agency” under the FOIA is determined by analyzing whether, in addition to advising and assisting the President, the entity also has “substantial independent authority.” Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). NEPDG would be considered an agency for FOIA purposes if “it could act directly and independently beyond advising and assisting the President.” Id.; see also Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1263 (D.C.Cir.1980) (Council on Environmental Quality is FOIA agency because it has the power to coordinate federal programs and to issue guidelines to federal agencies and the authority to promulgate regulations); cf. Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1043 (D.C.Cir.1985) (Council of Economic Advisers is not FOIA agency because its purpose is to appraise federal programs and make recommendations to the President; it has no regulatory power). Neither the U.S. Court of Appeals for this Circuit nor any judge of this Court has squarely addressed the issue of whether the NEPDG should be considered to be an agency for purposes of the FOIA, although the assumption is that it is not. See In re Cheney, 334 F.3d 1096, 1116 n. 2 (D.C.Cir.2003) (Randolph, J., dissenting) (“None of" }, { "docid": "18818562", "title": "", "text": "entities are “agencies” subject to the FOIA: The [PRA] does not modify the applicability of the [FOIA] to White House and [EOP] records.... That is, it does not redefine the term agency to include entities not now covered by the FOIA. The Conference Report for the 1974 Freedom of Information Act amendments stated that “[w]ith respect to the meaning of the term ‘[EOP]’ the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 [(D.C.Cir.1971)]. The term is not interpreted as including the President’s immediate staff or units in the [EOP] whose sole function is to advise and assist the President.” H.R.Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 13 (1974)), reprinted in 1978 U.S.C.C.A.N. 5732, 5742. The FOIA Conference Report quoted in the PRA legislative history is the same report upon which the Supreme Court relied in Kissinger, 445 U.S. at 156, 100 S.Ct. at 971. This court has consistently applied the “sole function” test developed in Soucie and adopted in Kissinger in its subsequent decisions. In Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), we rejected the argument that certain records of the Attorney General regarding judicial nominations were not subject to the FOIA because the Attorney General was acting in his independent capacity as an advisor to the President when he prepared the records in question. Id. at 788. The Court explained that Soucie did not intimate that the [OST] might be an agency only when performing its non-advisory functions, and still be a presidential staff component, or non-agency, when performing its other function of advising the President. In fact, the reports under consideration in Soucie were requested by the President precisely for advisory purposes, but we did not deem the [OST] to be a non-agency in that specific context. Id. (citing Soucie, 448 F.2d at 1075-76). See also Pacific Legal Foundation v. Council on Environmental Equality, 636 F.2d 1259 (D.C.Cir.1980) (holding that the Council on Environmental Equality (“CEQ”) is a FOIA agency because, in addition to advising the President, the CEQ coordinated federal environmental" }, { "docid": "18818559", "title": "", "text": "of Presidential Records Having held that the recordkeeping guidelines defining presidential records are subject to judicial review, and having remanded to the district court for that purpose, it remains for us to discuss the definition of “presidential records” to be applied on remand. As our previous discussion of the PRA, supra pages 1290, 1292-93, has undoubtedly indicated, we must turn again to the PRA provision exempting from its scope any materials that are official records of an agency, as “agency” is defined in the FOIA, 5 U.S.C. § 552(f). 44 U.S.C. § 2201(2)(A)(i). Congress expressly intended when it passed the PRA to preserve unchanged the coherent body of law that had been developed under the FOIA, and it is that body of law that provides the basis for our limited review of the definition of presidential records provided in the guidelines. The guidelines violate the PRA to the extent that they classify as presidential records materials that would otherwise be subject to the FOIA. The FOIA definition of “agency” invoked in the PRA raises a clear but somewhat intricate set of references and cross-references. The FOIA provision mentioned in the PRA, 5 U.S.C. § 552(f), incorporates the definition of agency provided at 5 U.S.C. § 551(1): “agency means each authority of the Government of the United States, whether or not it is subject to review by another agency, but does not include ... the Congress ... [or] the courts of the United States.” 5 U.S.C. § 551(1). Section 552(f) itself adds an additional proviso: [AJgency ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the Presi dent), or any independent regulatory agency. 5 U.S.C. § 552(f). The Supreme Court has added still another layer of complexity, holding that for FOIA purposes, the EOP does not include the Office of the President. “ ‘[T]he President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the" }, { "docid": "17881926", "title": "", "text": "for the District of Columbia seeking declaratory and injunctive relief. The district court held that the Executive Residence was not an agency for the purposes of FOIA and, on that basis, granted Mr. Walters’ motion to dismiss on the grounds that the court lacked jurisdiction and that Mr. Sweetland had failed to state a claim on which relief could be granted. Mr. Sweetland appeals the dismissal of his complaint. II. Discussion FOIA directs agencies, as defined therein, to make certain information available to the public. 5 U.S.C. § 552. Mr. Sweetland argues that the district court erred when it concluded that the Executive Residence was not an “agency” for the purposes of FOIA. As amended in 1974, FOIA provides: For the purposes of this section, the term “agency” ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President ), or any other independent regulatory agency. 5 U.S.C. § 552(f) (emphasis added). The Supreme Court has held that “the President’s immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President” are not included within the term “agency” under the FOIA. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong.2d Sess. 15 (1974)). Although the Executive Residence is not a unit within the Executive Office of the President (“EOP”), see Reorganization Plan No. 1 of 1977, reprinted in 3 U.S.C. Ch. 2 note at 431, 434 (1994) (Message of the President) (listing units within the EOP), we believe it is analogous to an EOP unit for purposes of a FOIA analysis because the Residence staff, like units within the EOP, is responsible directly to the President and assists him by performing whatever duties he may prescribe. See 3 U.S.C. § 105(b)(1) (1994). Thus, we rely on FOIA cases dealing with the responsibilities of EOP units in determining whether the Executive Residence is to" }, { "docid": "18837472", "title": "", "text": "(1975) [hereinafter FOIA Source Book], These amendments expanded the definition of an “agency” expressly to include an “establishment ... in the Executive Office of the President.” 5 U.S.C. § 552(e). As the majority points out, the House/Senate conference committee, citing this court’s decision in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), clarified that “Executive Office of the President ... is not to be interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” H.R.Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974), reprinted in FOIA Source Book 219, 233 [hereinafter Conference Report]. What the majority overlooks, however, is the additional and quite specific guidance Congress provided for determining when an establishment in the Executive Office of the President is an “agency” for FOIA purposes. Most significantly, Congress contemplated that “agency” would encompass entities, like the Task Force, which are created solely by executive order. The statutory language expanding the definition of an agency originated in the House bill, H.R. 12471. In its report accompanying that legislation, the House Committee on Government Operations stated: For the purposes of this section, the definition of “agency” has been expanded to include those entities which may not be considered agencies under [the APA, 5 U.S.C. § 551(1)], but which perform governmental functions and control information of interest to the public. The bill expands the definition of agency for purposes of [FOIA],... The term “establishment in the Executive Office of the President,” as used in the amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress through statute or by Executive order. H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. $ Admin.News 1974, 6274, reprinted in FOIA Source Book 121, 128 (emphases added). Additionally, the legislative history indicates that in focusing on “functional entities” within the Executive Office of the President, Congress" }, { "docid": "18818560", "title": "", "text": "clear but somewhat intricate set of references and cross-references. The FOIA provision mentioned in the PRA, 5 U.S.C. § 552(f), incorporates the definition of agency provided at 5 U.S.C. § 551(1): “agency means each authority of the Government of the United States, whether or not it is subject to review by another agency, but does not include ... the Congress ... [or] the courts of the United States.” 5 U.S.C. § 551(1). Section 552(f) itself adds an additional proviso: [AJgency ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the Presi dent), or any independent regulatory agency. 5 U.S.C. § 552(f). The Supreme Court has added still another layer of complexity, holding that for FOIA purposes, the EOP does not include the Office of the President. “ ‘[T]he President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)), 1974 U.S.C.C.A.N. 6267. The Supreme Court test adopted in Kissinger for determining which entities within the EOP are agencies subject to the FOIA was originally developed by this court in Soucie v. David, 448 F.2d 1067 (1971). In Soucie, this court held that only entities whose “sole function [is] to advise and assist the President” are not separate agencies subject to the FOIA. Id. at 1075. Thus, the court concluded that the Office of Science and Technology (“OST”) — the precursor of the OSTP, one of the agencies whose guidelines are at issue in this appeal — was an agency subject to the FOIA because its duties went beyond advising the President and included evaluating federal scientific programs. Id. The legislative history of the PRA could not be clearer in indicating congressional intent to adopt the test articulated in Soucie to determine what" }, { "docid": "10734256", "title": "", "text": "provides that each agency that maintains a “system of records” shall maintain “only such infor mation about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.” Id. § 552a(e)(l). The Privacy Act also states that “upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system,” the agency shall provide the individual with access to review such records. Id. § 552a(d)(l). Finally, subject to certain exceptions, the Privacy Act requires that “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” Id. § 552a(b). Before addressing the parties’ arguments, it is important to note that the Privacy Act applies only to an “agency” as defined by the FOIA. See 5 U.S.C. § 552a(a)(l) (expressly incorporating the FOIA’s definition of “agency”). Under the FOIA, “agency” includes “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f). Though the Executive Office of the President is expressly mentioned in the FOIA definition of “agency,” the Supreme Court has held that the FOIA’s reference to “the ‘Executive Office’ does not include the Office of the President.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). The Kissinger Court also stated that “ ‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Id. (citing H.R. Conf. Rep. No. 93-1380, p. 15 (1974)). A. The EOP’s Motion to Dismiss The EOP argues that the White House Office should not" } ]

[ { "docid": "20916813", "title": "", "text": "within the original sentence; it requires only that the sentence adjudged on rehearing be not more severe than, or in excess of, that originally imposed. The Manual patently provides such lesser punishments. Consequently, both trial counsel and the court erred in assuming that the court had no alternative except a bad-conduct discharge, or no punishment.” The foregoing decisions clearly indicate the propriety of the law officer’s instructions, quoted above. Indeed, it was the absence of such advice which led the board of review to order the last rehearing on sentence. In light of these precedents, we are satisfied the law officer did not err in so informing the members of the existence of possible alternative penalties. Our conclusion with regard to the second issue similarly does not necessitate reversal. Here, we are concerned with the law officer’s refusal to inform a court member that the tribunal did not possess the authority to suspend a sentence. The defense argues that our decision in United States v Samuels, 10 USCMA 206, 27 CMR 280, requires that this be held prejudicially erroneous. There, the court trying the accused sentenced him to confinement, forfeitures, reduction, and a suspended bad-conduct discharge. The law officer acquiesced in the announced punishment and did not advise the court that it could not suspend execution of a punitive discharge. Of his failure so to advise the members, we stated, at page 211: “In view of the remarks by the president of the court-martial, made against the backdrop of the accused’s commendable naval record, if the court-martial had been advised that the sentence was void and that the attempt to suspend the bad-conduct discharge was not binding upon the convening authority, it may well have adjudged a sentence which did not include a bad-conduct discharge.” [Emphasis supplied.] The same reasoning is, however, not applicable to the record now before us. The court-martial was informed that it might permissibly consider alternative punishments lesser in degree than a bad-conduct discharge. Yet, it announced a sentence including the lat ter penalty and made no attempt to include a provision for its suspension. This" } ]

[ { "docid": "22120224", "title": "", "text": "convictions should be excluded. See 75b (2) as to further limitations on consideration of previous convictions. If an accused is found guilty of an offense or offenses for none of which dishonorable or bad-conduct discharge is authorized, proof of two or more previous convictions adjudged by a court during the three years next preceding the commission of any offense of which the accused stands convicted will authorize bad-conduct discharge and forfeiture of all pay and allowances and, if the confinement otherwise authorized is less than three months, confinement at hard labor for three months. See 15b concerning the limitations on the power of special courts-martial to adjudge a bad-conduct discharge and forfeitures and 75 b (2) for limitations on consideration of previous convictions. The records of trial which have reached this Court do not suggest frequent invocation of these provisions. . United States v. Brown, 13 U.S.C.M.A. 333, 32 C.M.R. 333 (1962); United States v. Prow, 13 U.S.C.M.A. 63, 32 C.M.R. 63 (1962); United States v. Smith, 12 U.S.C.M.A. 595, 31 C.M.R. 181 (1961). . Mr. Justice Blackmun, whose vote was decisive in Baldasar, see n. 11, supra, concurred in Middendorf v. Henry, supra, which held that counsel was not constitutionally required in a summary court-martial. Thus, he could readily distinguish Baldasar from a case where the record of a prior summary court-martial conviction or nonjudicial punishment in which the accused had no counsel was used to enhance punishment. . Originally the Uniform Code gave no right to object to trial by summary court-martial if an accused had been offered and had refused nonjudicial punishment. However, Article 20 was later amended so that in every instance an accused may object to trial by summary court-martial. . Baldasar does not address the specific point of whether a conviction can be used if it results from the trial of a non-indigent defendant who refuses to hire a lawyer or of an indigent defendant who intelligently and knowingly waives the right to have appointed counsel for the trial of his case. However, in these instances it would appear from a reading of the" }, { "docid": "12058672", "title": "", "text": "service. Under the limitations imposed on special courts-martial by Article 19 of the Uniform Code-not by any provision of the Manual-a special court-martial may not sentence an officer to dismissal. Therefore, from the stand point of appellant’s commander, trial by special court-martial was never a viable option; only a general court-martial would have possessed power to impose the punishment which the commander deemed appropriate. The appellant relies on United States v. Varnadore, 9 U.S.C.M.A. 471, 26 C.M.R. 251 (1958), wherein this Court invalidated a provision of the Manual for Courts-Martial, United States, 1951, that a sentence which did not include a punitive discharge could not include confinement for more than 6 months. In one sense, this limitation imposed a ceiling on punishment in that, if a court-martial were unwilling to adjudge a punitive discharge, if could not impose confinement for more than 6 months. However, at the same time this Manual provision might operate to an accused’s prejudice, because court members who believed that the offenses committed merited lengthy confinement might be induced to adjudge the punitive discharge so that adequate confinement could be adjudged. Appellant’s reliance on Varnadore is misplaced. Unlike the corresponding provision in the 1951 Manual for Courts-Martial, paragraph 126d of the current Manual does not require dismissal of an officer if he is to be confined. Thus, the present Manual does not impose a limitation on a court-martial’s discretion to impose confinement without dismissal, or vice versa. The general court-martial which tried appellant sentenced him to dismissal but did not adjudge confinement. It was free to do the converse-although such a sentence would have been unusual in light of Service customs. Since the 1951 Manual required dismissal if confinement were to be imposed and since a special court-martial could not sentence an officer to dismissal, there was no occasion at that time to provide that a special court-martial could not sentence an officer to confinement. When the earlier limitation was deleted, the President imposed a limitation on the authority of special courts-martial to sentence officers to confinement. In light of the unique special position of honor" }, { "docid": "18697921", "title": "", "text": "in this case followed the former rationale. Having reasoned that the illegal attempt to impose an administrative discharge rendered the entire sentence void, that court found no impediment to the authority of the court-martial to go forward and adjudge a legal sentence which included a bad-conduct discharge. In a similar situation, the United States Army Court of Military Review, in United States v. Cowan, 47 C.M.R. 519 (A.C.M.R.1973), ruled that the illegal portion of the sentence going to the undesirable discharge did not affect the vitality of the remaining, legal elements and that the second sentence which imposed a bad-conduct discharge was unlawfully more severe on reconsideration than the first one announced. Paragraph 76c, MCM 1969 (Rev.). See United States v. Kuzilik, 49 C.M.R. 525 (A.F.C.M.R.1974); United States v. Laraway, 30 C.M.R. 436 (A.B.R.1960). The opinion of this Court in United States v. Long, 4 U.S.C.M.A. 101, 15 C.M.R. 101 (1954), supports the latter viewpoint. Upon the trial court’s having convicted Long of four specifications of larceny, the law officer [now the military judge] instructed the members that the total maximum authorized punishment for the offenses was a dishonorable discharge, confinement at hard labor for eight years, and forfeiture of all pay and allowances. After deliberation, the president of the court announced that the court had sentenced Long to be confined at hard labor for 24 months and to forfeit $50.00 per month for 24 months. At that point, the law officer advised the court members of paragraph 127b, Manual for Courts-Martial, United States, 1951, which directed that a court-martial could not adjudge confinement at hard labor in excess of 6 months, nor forfeiture of pay in excess of two-thirds pay per month for 6 months, unless the court in the same sentence levied upon the accused a punitive discharge. The law officer then admonished the court to close to reconsider this “illegal sentence.” Ultimately, the court returned a sentence to a bad-conduct discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances. After its review of the ease, an Army Board of Review concluded" }, { "docid": "18697919", "title": "", "text": "undesirable discharge or any other type of discharge, administrative discharge, that is the procedure and it’s not an authorized court-martial procedure, therefore reclose and reconsider that portion of the sentence or the whole sentence, the sentence as a whole. Then the military judge again closed the court, and, 12 minutes later, the court reopened and the president announced that the appellant had been sentenced: To be reduced to the grade of E-3; To be confined at hard labor for twelve months; and To be discharged from the service with a Bad-Conduct Discharge. An examination of the Sentence Worksheet reveals that the members had lined out the words, “with a bad-conduct discharge” in line 11 and had written in the words, “as undesirable at completion of confinement.” Additionally, they had “scratched] out” line 12 entirely. II Paragraph 76c, Manual for Courts-Martial, United States, 1969 (Revised Edition), provides, inter alia: If the military judge notes any ambiguity or apparent illegality in the sentence as announced by the court, he should bring the irregularity to the attention of the court so that it may close to reconsider and correct the sentence. The court may not, however, reconsider the sentence with a view to increasing its severity after the sentence has been announced unless the sentence prescribed for the offense of which the accused has been convicted is mandatory (Art. 62(b)). (Emphasis added). It is beyond cavil that a court-martial is powerless to adjudge an administrative separation from the service, such as an undesirable discharge. United States v. Keith, 22 U.S.C.M.A. 59, 46 C.M.R. 59 (1972); United States v. Turner, 14 U.S.C.M.A. 435, 34 C.M.R. 215 (1964); United States v. Phipps, 12 U.S.C.M.A. 14, 30 C.M.R. 14 (1960); see paragraph 126a, MCM 1969 (Rev.). Therefore, any purported effort to do so is a legal nullity. Critical to resolution of the issue at bar is whether such an attempt renders void the entire announced sentence, or only that illegal part concerning an administrative discharge. The Courts of Military Review have split on this question. The United States Navy Court of Military Review in its opinion" }, { "docid": "22723641", "title": "", "text": "cases cited therein. In our view the language of this finding “fairly embraced” the conduct that resulted in a conviction of consensual sodomy. See United States v. Baker, 14 M.J. 361 (C.M.A.1983). The evidence before the trial court permits no other conclusion. In United States v. Doss, 15 M.J. 409 (C.M.A.1983), the Court of Military Appeals held that multiplicity for findings is apparent where one of the offenses is lesser included of the other. Unpublished opinion at 3. Having decided that only the conviction for consensual sodomy could be affirmed, the Court of Military Review proceeded to “reassess the sentence in light of the error discussed, the offense affirmed and the record before us.” To a request by appellate defense counsel that the punitive discharge be set aside, the court replied that “[g]ood as the accused’s record may be to this point, our reading of the transcript convinces us that the adjudged sentence is clearly appropriate and it is AFFIRMED.” Id. at 3-4. We granted review of the sole issue presented by appellant’s petition: WHETHER THE EFFECT OF THE AIR FORCE COURT OF MILITARY REVIEW’S REASSESSMENT OF SENTENCE DEPRIVED APPELLANT OF HIS STATUTORY RIGHT TO HAVE HIS SENTENCE ADJUDGED BY THE COURT MEMBERS. I At the trial level, the military judge treated the court-martial’s findings as separate not only for the purpose of conviction but also in computing the maximum punishment imposable. Accordingly, the judge concluded that 10 years was the maximum confinement that could be adjudged, rather than the 5 years’ confinement that would have been the maximum for committing either lewd acts or consensual sodomy with an adult. See Table of Maximum Punish ment, para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). The Government has not proceeded under Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2), to certify for our review the holding of the Court of Military Review that the findings of guilty were multiplicious; so this ruling constitutes the law of the case and binds the parties. Cf. United States v. Bell, 7 U.S.C.M.A. 744, 23 C.M.R. 208 (1957); United States v. Morris, 13 M.J." }, { "docid": "10585020", "title": "", "text": "Opinion of the Court Robert E. Quinn, Chief Judge: The question in this ease is whether the president of the special court-martial that tried the accused, erroneously instructed the court on the limits of punishment. The accused contends the instruction is improper under our decision in United States v Green, 11 USCMA 478, 29 CMR 294. In the Green case the president of the special court-martial instructed the court members, in substance, that the maximum penalty for the offense charged was a dishonorable discharge, total forfeitures, and confinement at hard labor for five years but since the court was a special court-martial it was limited to a bad-conduct discharge and confinement at hard labor for six months. This Court held it was error to instruct on the limits of the particular offense prescribed in the Table of Maximum Punishments set out in the Manual for -Courts-Martial, United States, 1951, when those limits exceed the jurisdictional power of the court-martial. The error was considered prejudicial because the higher penalty for the offense prescribed by the Table of Maximum Punishments might reasonably have influenced the court to impose a more severe sentence. Nowhere in the instructions in this case was the court advised of a penalty in excess of that which it was empowered to adjudge under the Uniform Code of Military Justice. The instruction challenged by the accused is as follows: “PRES: The court is advised that the maximum permissible [sic] punishment to be adjudged is a Bad Conduct Discharge. Confinement at hard labor for a period not to exceed six months. Forfeiture of 2/3’s pay per month for a period not to exceed six months. Speeeifieally [sic] as to the maximum permissible [sic] sentence for the specification and charges of which conviction is to be adjudged. Article 134, Confinement at hard labor not to exceed four months. Forfeiture of two-thirds pay per month for a period not to exceed four months. Specification II, Bad Conduct Discharge, Forfeiture 2/3’s pay per month for a period not to exceed six months and confinement at hard labor not to exceed 6 months. Article" }, { "docid": "23103994", "title": "", "text": "of his pay for any month.” This specific language which was contained in the prior 1969 Manual for Courts-Martial at paragraph 886, was deleted from the 1984 Manual. Compare R.C.M. 1107(d)(2) with paragraph 88b, Manual, 1969. The “long standing policy” which appellant seeks to have this Court enforce is no longer a legal directive in the 1984 Manual. Furthermore, appellate government counsel suggest that, even under the 1969 Manual, there was only precatory language— “should” — rather than mandatory language, so total forfeitures were permissible even then. C Manual for Courts-Martial, United States, 1951, provided that a court-martial could not adjudge a sentence which imposed “[forfeitures of pay at a rate greater than two-thirds of” the servicemember’s “pay per month” or “two-thirds of his pay for 6 months,” unless the sentence also included a dishonorable or bad-conduct discharge. Similarly, a court-martial could not sentence a servicemember to confinement at hard labor for more than 6 months unless a punitive discharge was imposed. See para. 1276. Ultimately, these limitations were held invalid, because adjudging confinement for more than 6 months or total forfeitures without a punitive discharge was not expressly forbidden by the Uniform Code. United States v. Jobe, 10 U.S.C.M.A. 276, 27 C.M.R. 350 (1959); United States v. Varnadore, 9 U.S.C.M.A. 471, 26 C.M.R. 251 (1958). Although in Jobe this Court held erroneous an instruction that the court-martial “may not adjudge a sentence including forfeiture of more than two-thirds pay per month without also awarding a punitive discharge,” 10 U.S.C.M.A. at 278, 27 C.M.R. at 352 — an instruction based on paragraph 1276 of the 1951 Manual — it also explained: A court-martial cannot impose “cruel or unusual punishment.” Article 55, Uniform Code of Military Justice, 10 USC § 855. To impose forfeiture of all pay and allowances upon an accused who is required to continue in the service for a substantial period of time might possibly violate this provision. Cf. Trop v. Dulles, 356 US 86, 2 L Ed 2d 630, 78 S Ct 590. As a matter of fact, the Manual provision [prohibiting total forfeitures without a punitive" }, { "docid": "2522586", "title": "", "text": "judge’s inquiry into the providence of the accused’s proposed plea of guilty was, if anything, even more comprehensive than in Dusenberry. Here, as in Dusenberry, be fore accepting the plea, the judge secured the accused’s acknowledgment that a guilty plea constituted a judicial confession to the offense. Further, he personally and directly advised the accused that his plea would waive for appellate purposes any objection he might have to consideration of his pretrial statement. Under the circumstances, we hold the assignment without merit. The accused’s plea of guilty was voluntary and informed and not rendered improvident by the supervisory authority’s subsequent determination that the pretrial statement was erroneously received in evidence. United States v. Stewart, 20 U.S.C.M.A. 272, 43 C.M.R. 112 (1971); United States v. Tharp, 11 U.S.C.M.A. 467, 29 C.M.R. 283 (1960); United States v. Trojanowski, 5 U.S.C.M.A. 305, 17 C.M.R. 305 (1954); see McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In their second assertion of error, counsel contend it was prejudicially improper for the trial counsel to argue on sentence: Each one of the Charges before you, alone, has a possible maximum punishment of the maximum that this particular court-martial can give: a Bad Conduct Discharge, confinement at hard labor for six months, forfeiture of two-thirds pay and allowances for six months, and reduction to the lowest enlisted grade. Each one of those, individually, has the possible maximum punishment. Taken together they require it. We perceive no sentencing prejudice to the accused in the trial counsel’s remarks and accordingly find the assignment to be without merit. Without question, it is error for the trial counsel of a special court-martial, in arguing on the sentence, to inform the court members of the maximum penalty authorized by the Table of Maximum Punishment (Manual for Courts-Martial, 1969 (Rev.), paragraph 127c) where such maximum exceeds the jurisdictional punishment limitation of a special court-martial. United States v. Crutcher, 11 U.S.C.M.A. 483, 29 C.M.R. 299 (1960); United States v. Green, 11 U.S.C.M.A. 478, 29 C.M.R. 294 (1960); United States v. Whiteacre, 12 U.S.C.M.A. 345, 30 C.M.R. 345 (1961)." }, { "docid": "12692519", "title": "", "text": "by the court, and his failure to instruct that forfeitures might be imposed in the place of a bad-conduct discharge. In United States v Brousseau, 13 USCMA 624, 33 CMR 166 (1963), also a rehearing, an analogous question was before us. In Brousseau, as here, the original sentence was a bad-conduct discharge, confinement at hard labor for six months, and reduction to airman basic. The law officer, in Brousseau, after informing the court of the maximum imposable punishment, stated, “ T would like to call your attention to the fact that no forfeiture may be adjudged in this case.’ ” (Id., at page 625.) Before closing to deliberate on sentence, the following colloquy took place: “ ‘PRES: We are correct in understanding that no forfeiture may be adjudged? “ ‘LO: No forfeiture may be adjudged in any degree. “ ‘PRES: Not in connection with the maximum sentence? “ ‘LO: No forfeiture of any kind may be imposed.’ ” [Id., at page 626.] In reversing and directing that a rehearing on sentence may be ordered, we stated in Brousseau, at page 626: “In case of a rehearing ‘no sentence in excess of or more severe than the original sentence may be imposed.’ Article 63(b), Uniform Code of Military Justice, 10 USC § 863. “We appreciate the fact that, as in this instance, upon rehearing on the merits, the law officer is in a difficult and delicate position. He is under the obligation of instructing the court as to the maximum sentence imposable. He must choose such language as to limit the maximum imposable sentence to that at the prior trial and still he dare not indicate that such was the punishment found appropriate on a prior trial. See United States v Jones, 10 USCMA 532, 28 CMR 98 [1959]. Notwithstanding, it is essential that the court-martial be fully and properly informed as to the sentences available to it. “In his original statement as to the maximum sentence the law officer was, minimally, correct. United States v Eschmann, 11 USCMA 64, 28 CMR 288 [1959]. However, in the language he chose in" }, { "docid": "22723642", "title": "", "text": "THE EFFECT OF THE AIR FORCE COURT OF MILITARY REVIEW’S REASSESSMENT OF SENTENCE DEPRIVED APPELLANT OF HIS STATUTORY RIGHT TO HAVE HIS SENTENCE ADJUDGED BY THE COURT MEMBERS. I At the trial level, the military judge treated the court-martial’s findings as separate not only for the purpose of conviction but also in computing the maximum punishment imposable. Accordingly, the judge concluded that 10 years was the maximum confinement that could be adjudged, rather than the 5 years’ confinement that would have been the maximum for committing either lewd acts or consensual sodomy with an adult. See Table of Maximum Punish ment, para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). The Government has not proceeded under Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2), to certify for our review the holding of the Court of Military Review that the findings of guilty were multiplicious; so this ruling constitutes the law of the case and binds the parties. Cf. United States v. Bell, 7 U.S.C.M.A. 744, 23 C.M.R. 208 (1957); United States v. Morris, 13 M.J. 297, 299 (C.M.A.1982) (Everett, C.J., concurring in the result). If, therefore, the findings must be considered multiplicious, obviously the military judge erred at trial in computing the maximum sentence imposable and instructing the members accordingly. Now, the question is whether that error obligated the Court of Military Review to give appellant relief by granting a rehearing on sentence or by reducing the sentence pursuant to its own reassessment thereof. In some cases, the Court of Military Review may conclude that it cannot reliably determine what sentence would have been imposed at the trial level if the error had not occurred. Under these circumstances, a rehearing on sentence is in order. Cf. United States v. Gibson, 11 M.J. 435 (C.M.A.1981); United States v. Voorhees, 4 U.S.C.M.A. 509, 16 C.M.R. 83 (1954). At this rehearing, the accused would be present; and, just as if he had not previously been sentenced, both the accused and the Government could offer evidence as to what sentence would be appropriate. The sentence originally adjudged would be relevant only in setting a" }, { "docid": "12109896", "title": "", "text": "permissible. Manual for Courts-Martial 1969 (rev.), Paragraphs 76c and 76d. Post-trial recommendations for clemency are normally based, in part, upon information not available at trial. But, see, United States v. Welch, 1 M.J. 1201 (A.F.C.M.R.1976). After trial, the military judge or court members may consider, inter alia, the accused’s post-trial duty performance and military bearing; his cooperation with law enforcement authorities; and the formal clemency evaluation, if any. See United States v. Canterbury, 33 C.M.R. 545 (A.B.R.1963). In this regard, we believe the Manual’s preference that any recommendations for clemency be made post-trial, while not binding, United States v. Yuille, 14 C.M.R. 450, 459 (N.B.R.1953), is well advised. Manual, supra, Paragraph 77a. . A recommendation to remit or reduce some or all of the adjudged punishment is within the power of the sentencing authority to implement. A recommendation to substitute an administrative discharge for a punitive discharge does not fit squarely into this category, but the Court of Military Appeals has held that such a recommendation is tantamount to recommending that the punitive discharge be remitted. United States v. Grcich, 10 U.S.C.M.A. 495, 28 C.M.R. 61 (1959). Later, the Court indicated such a contemporaneous recommendation would be permissible if contingent upon evaluation of the accused’s post-trial conduct. United States v. Turner, 14 U.S.C.M.A. 435, 34 C.M.R. 215 (1964). Notwithstanding the foregoing, we have held that a contemporaneous recommendation to substitute an administrative discharge for a punitive discharge, even if not contingent upon future conduct, is permissible provided that: (1) the sentencing authority was fully cognizant that the recommendation was in no way binding upon the convening authority, and (2) the sentencing authority was satisfied that the adjudged sentence was appropriate, even if the recommended clemency was not granted. United States v. Tharp, 49 C.M.R. 233 (A.F.C.M.R.1974). Based upon Tharp, the last sentence of the penultimate paragraph of Instruction 6-37, Courts-Martial Instruction Guide, Air Force Manual 111-2, 15 October 1971, should be omitted when the trial judge determines it appropriate to give the clemency instruction to court members. See, United States v. Keith, 22 U.S.C.M.A. 59, 46 C.M.R. 59 (1972). ." }, { "docid": "12047766", "title": "", "text": "no error since the defense invited this form of rebuttal. Nevertheless, we will consider the trial counsel’s argument erroneous and test for prejudice. Weighing the seriousness of the offense and the maximum sentence available against the sentence imposed, it is our opinion that the reference to deterrence in trial counsel’s argument had a negligible impact on the adjudged sentence. The findings of guilty and the sentence are affirmed. Senior Judges BAILEY and CLAUSE, Judges COSTELLO, DeFORD and DONAHUE concur. Judge O’DONNELL not participating. . Prepared in compliance with paragraph 85 b, MCM 1969 (Rev.) and Article 65(b), UCMJ. . See paragraph 126, MCM 1969 (Rev.). . Article 19, UCMJ and paragraph 15b, MCM 1969 (Rev.), established the sentence perimeters as a bad-conduct discharge, confinement at hard labor for six months, forfeiture of two-thirds pay per month for six months, and reduction to the lowest enlisted grade. . United States v. Knoche, 46 C.M.R. 458 (A.C. M.R.1972); United States v. Maroste, 40 C.M.R. 606 (A.B.R.1969). . United States v. Bruce, 46 C.M.R. 968 (A.C. M.R.1972), which cites several unpublished decisions of like purport involving bad-conduct special courts-martial; United States v. Phenis, 43 C.M.R. 558 (A.C.M.R.1970). . Id. . “This case and others coming before the Court make it apparent that the post-trial review of the staff judge advocate has occasioned recurrent complaints about what should be included in it. Similar outcries have been voiced because of the misleading nature of certain reviews. Because of these continual and often repeated claims of error, plus the delay in determining their validity and correction, we deem it appropriate and expedient to take corrective action.” United States v. Goode, supra, 23 U.S.C.M.A. at page 370, 50 C.M.R. at page 4, 1 M.J. at page 6. . La Haye, Check List of Post-Trial Review Errors, The Army Lawyer (Feb. 1976). . United States v. Goode, supra, 23 U.S.C.M.A. at p. 369, 50 C.M.R. at p. 3, 1 M.J. at p. 5; United States v. Boatner, 20 U.S.C.M.A. 376, 43 C.M.R. 216 (1971); United States v. Wilson, 9 U.S.C.M.A. 223, 26 C.M.R. 3 (1958); United States v." }, { "docid": "12055623", "title": "", "text": "correct in law and fact. Reassessing the sentence on the basis of the findings herein approved, we find only so much thereof appropriate as provides for bad conduct discharge, reduction in grade to airman basic and a fine of $2,300.00. The findings of guilty and the sentence, both as modified herein are AFFIRMED. EARLY, Senior Judge, and FORAY, Judge, concur. . The maximum penalty provided for each of these offenses includes confinement at hard labor for three years. Manual for Courts-Martial, 1969, paragraph 127c (Table of Maximum Punishments), page 25-15. . Air Force Regulation 35-16, USAF CAREER MOTIVATION PROGRAM, 30 May 1975, Volume I, paragraphs 8-8 and 8-9b. . See AFR 35-16, supra, paragraph 7-11. . Our opinion in this respect includes not only the type of “special case” considered in Noble, supra, but also frauds against the Government. See dissenting opinion of Judge Ferguson in United States v. Martin, 10 U.S.C.M.A. 636, 28 C.M.R. 202, 211-212(1959). . See United States v. Landry, 14 U.S.C.M.A. 553, 34 C.M.R. 333 (1964); United States v. Hounshell, 7 U.S.C.M.A. 3, 21 C.M.R. 129 (1956). . See Air Force Summary of Changes in the Manual for Courts-Martial, 1969, Chapter XXV, Punishments, paragraph 126h (3), page 50, which states: This subparagraph [paragraph 126h (3)] and the fourth paragraph of Section B, 127c, as now written, make a fine when adjudged by a general court-martial a truly additional punishment. . Furthermore, we are unaware of any Air Force policy restricting the imposition of fines and forfeitures in general courts-martial involving enlisted personnel. Usually, Air Force policies affecting sentence limitations are set forth in Air Force Manual 111-1, Military Justice Guide, Chapter 7." }, { "docid": "21568985", "title": "", "text": "States, 441 F.2d 1219 (7th Cir. 1971), concluded such an error was not sufficient to render a plea of guilty improvident and this would appear to be entirely consistent with Richardson and Parker. Accordingly, I likewise conclude that an accused “assumes the risk of ordinary error” in assessing the maximum imposable punishment as it relates to the voluntariness of his pleas of guilty. While United States v. Harden, supra, teaches that an extraordinary case may warrant a contrary result, I further conclude that extraordinary circumstances are not presented in the case at hand and the appellant’s pleas of guilty were providently entered. See United States v. Zemartis, supra. Left for consideration is whether the trial judge’s incorrect determination of the maximum imposable confinement prejudiced the appellant as to the sentence adjudged. United States v. Frangoules, supra. The Court of Military Review considered the issue and upon reassessing the sentence, approved it. That court has the authority to either reassess the sentence or order a rehearing thereon and this Court will not normally interfere with its authority in such matters. See United States v. Zunino, 15 U.S.C.M.A. 179, 35 C.M.R. 151 (1964); United States v. Christopher, 13 U.S.C.M.A. 231, 32 C.M.R. 231 (1962). The court’s action on the matter was not inappropriate as a matter of law. I would, therefore, affirm the decision of the Army Court of Military Review. . The Court of Military Review also reassessed the sentence on the basis that the appellant was sentenced on the misapprehension of the maximum sentence, but concluded the sentence, as approved by the convening authority, was appropriate. United States v. Castrillon Moreno, 3 M.J. 894, 897-8 (A.C.M.R.1977). . The maximum imposable punishment was escalated by the admission of three previous convictions. See section B, para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). . As noted in the majority opinion, I also authored United States v. Brown, 1 M.J. 465 (C.M.A.1976), which cited United States v. Harden, 1 M.J. 258 (C.M.A.1976). However, Brown held that the accused’s pleas of guilty were not improvidently entered because the military judge failed to" }, { "docid": "12140096", "title": "", "text": "DECISION EARLY, Senior Judge: Tried by general court-martial, military judge alone, the accused was convicted, pur suant to his pleas, of transferring, possessing and using heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The adjudged sentence extended to a bad conduct discharge, confinement at hard labor.for 24 months, forfeiture of all pay and allowances and reduction to airman basic. The convening authority reduced the period of confinement to 12 months and otherwise approved the sentence. Appellate defense counsel assign two errors. In the first they assert: THE ACCUSED’S PLEAS OF GUILTY WERE IMPROVIDENT DUE TO THE ERRONEOUS ADVICE AS TO THE MAXIMUM PUNISHMENT. During the inquiry into the providency of the accused’s plea conducted in accord with the mandate of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), all the parties at trial agreed that the maximum punishment included 40 years confinement at hard labor. Subsequent to trial, the Court of Military Appeals in United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), held that in drug offenses where there is a regulation prohibiting the same conduct which could have been charged under Article 92, the maximum sentence imposable is limited to that under Article 92 rather than that under Article 134. Later, in United States v. Graves [order] (6 Aug. 1976), where the accused pleaded guilty to six drug offenses charged under Article 134 and was advised that the maximum sentence to confinement was 60 years, rather than 12 years had the offense been charged under Article 92, the Court remanded the record for further consideration in light of Courtney, supra, and United States v. Harden, 24 U.S.C. M.A. 76, 51 C.M.R. 249, 1 M.J. 258 (1976). In Harden, the Court held the accused’s guilty plea improvident where the trial participants and the convening authority erroneously considered the maximum penalty to be 20 years confinement at hard labor whereas, because of multiplicity, it should have been considered 10 years. On the basis of these decisions appellate defense counsel ask us to set aside the" }, { "docid": "12109897", "title": "", "text": "remitted. United States v. Grcich, 10 U.S.C.M.A. 495, 28 C.M.R. 61 (1959). Later, the Court indicated such a contemporaneous recommendation would be permissible if contingent upon evaluation of the accused’s post-trial conduct. United States v. Turner, 14 U.S.C.M.A. 435, 34 C.M.R. 215 (1964). Notwithstanding the foregoing, we have held that a contemporaneous recommendation to substitute an administrative discharge for a punitive discharge, even if not contingent upon future conduct, is permissible provided that: (1) the sentencing authority was fully cognizant that the recommendation was in no way binding upon the convening authority, and (2) the sentencing authority was satisfied that the adjudged sentence was appropriate, even if the recommended clemency was not granted. United States v. Tharp, 49 C.M.R. 233 (A.F.C.M.R.1974). Based upon Tharp, the last sentence of the penultimate paragraph of Instruction 6-37, Courts-Martial Instruction Guide, Air Force Manual 111-2, 15 October 1971, should be omitted when the trial judge determines it appropriate to give the clemency instruction to court members. See, United States v. Keith, 22 U.S.C.M.A. 59, 46 C.M.R. 59 (1972). . Examples of permissible future contingencies include: good post-trial conduct, United States v. McBride, 50 C.M.R. 126 (A.F.C.M.R.1975); cooperation with law enforcement authorities, United States v. Bender, 1 M.J. 900 (A.F.C.M.R. 1976); and restitution to victims, United States v. Turner, 14 U.S.C.M.A. 435, 439, 34 C.M.R. 215, 219 (1964). . The sentencing authority at a court-martial does not have the power to suspend any portion of the adjudged sentence. United States v. Occhi, 2 M.J. 60 (C.M.A.1976). Thus, a recommendation to suspend any portion or all of the adjudged sentence will not impeach the sentence provided it is clear that the appropriateness of the adjudged sentence is not contingent upon the implementation of the clemency recommendation. See United States v. Williams, 2 M.J. 74 (C.M.A.1976). . United States v. Rector, 49 C.M.R. 117 (A.C.M.R.1974). In the case at hand the convening authority did not implement any of the military judge’s recommendations for clemency. Even if he had, however, the result would be the same, because the impeached portion of the sentence was improperly adjudged. Id." }, { "docid": "12692518", "title": "", "text": "this is not an ordinary case. Here the military judge had permitted counsel to discuss administrative discharges at length leading a court member “to believe that other types of discharge were possible.” The member inquired, “Do we, in fact, decide on retention or BCD only or do we have an option of something in-between.” (Appellate Exhibit 4.) Under the circumstances of this case, we believe that the military judge erred in failing to inform the court of the conditions under which they could, after announcement of sentence, recommend an administrative discharge, disapproval of the adjudged punitive discharge or suspension of the latter. (See Appendix.) We need not decide, however, whether the failure to so instruct was prejudicial as we find other error necessitating a rehearing on sentence. We note in passing that defense counsel was not foreclosed from later formulating a clemency petition. Paragraphs 48fc(l) and 77a, Manual, supra. II The second issue questions whether the sentence instructions were incomplete, misleading, and erroneous because of the military judge’s instruction that no forfeitures would be adjudged by the court, and his failure to instruct that forfeitures might be imposed in the place of a bad-conduct discharge. In United States v Brousseau, 13 USCMA 624, 33 CMR 166 (1963), also a rehearing, an analogous question was before us. In Brousseau, as here, the original sentence was a bad-conduct discharge, confinement at hard labor for six months, and reduction to airman basic. The law officer, in Brousseau, after informing the court of the maximum imposable punishment, stated, “ T would like to call your attention to the fact that no forfeiture may be adjudged in this case.’ ” (Id., at page 625.) Before closing to deliberate on sentence, the following colloquy took place: “ ‘PRES: We are correct in understanding that no forfeiture may be adjudged? “ ‘LO: No forfeiture may be adjudged in any degree. “ ‘PRES: Not in connection with the maximum sentence? “ ‘LO: No forfeiture of any kind may be imposed.’ ” [Id., at page 626.] In reversing and directing that a rehearing on sentence may be ordered, we" }, { "docid": "22106791", "title": "", "text": "hard labor for 5 years, can be referred to a special court-martial for trial; because the special court-martial has power to impose only a bad-conduct discharge, not a dishonorable discharge, and confinement at hard labor not in excess of 6 months, the maximum punishment to which the accused is subject is materially less than that provided in the table of maximum punishments. In such instances, the result is achieved by affirmative action by the court-martial authority in a particular case. As Walter points out, a regulation prohibiting conduct already enjoined by the Uniform Code does not, itself, automatically reduce the penalty prescribed by the President for a specified offense. I agree with what the Court said on the subject in Walter. As we have seen, the punishment provision for violation of an order or regulation does not increase the penalty if the Table lists a lesser penalty for the same misconduct. Similarly, the mere existence of a general order or regulation cannot decrease the punishment expressly provided in the Table for the same misconduct. To illustrate, let us suppose a general order defining the conduct of trainees directs that they obey the orders of their commissioned officers. Willful disobedience of an order of an officer by a trainee would violate the order, but it also violates Article 90, Code, supra, 10 U.S.C. § 890, which is listed to the Table; if convicted of the latter offense, the accused is subject to the maximum punishment provided for Article 90, which includes confinement for five years, notwithstanding the existence of the general order and the two years confinement limit provided in the Table for violation thereof. Inapplicability of the penalty listed for an Article 92 offense in both situations results from the fact that, in the absence of special circumstances (see United States v. Yunque-Burgos, 3 U.S.C.M.A. 498, 13 C.M.R. 54 (1953); United States v. Loos, 4 U.S.C.M.A. 478, 16 C.M.R. 52 (1954)), an order or regulation which merely enjoins conduct already imposed upon the individual by law is substantially an order to obey the law and, as such, has no effect" }, { "docid": "22120223", "title": "", "text": "“the Manual for Courts-Martial” be amended to “[s]pecify the service member’s right to consult with independent counsel, and define [that term] and [specify] the extent of advice that will be provided service members.” GAO Report to the Secretary of Defense, Better Administration of the Military’s Article 15 Punishments for Minor Offenses Is Needed, September 2, 1980, P. vi. . The pertinent part of section B provides as follows: Permissible additional punishments. If an accused is found guilty of an offense or offenses for none of which dishonorable discharge is authorized, proof of three or more previous convictions adjudged by a court during the year next preceding the commission of any offense of which the accused stands convicted will authorize dishonorable discharge and forfeiture of all pay and allowances and, if the confinement otherwise authorized is less than one year, confinement at hard labor for one year. In computing the one-year period preceding the commission of any offense, periods of unauthorized absence as shown by the findings in the case or by the evidence of previous convictions should be excluded. See 75b (2) as to further limitations on consideration of previous convictions. If an accused is found guilty of an offense or offenses for none of which dishonorable or bad-conduct discharge is authorized, proof of two or more previous convictions adjudged by a court during the three years next preceding the commission of any offense of which the accused stands convicted will authorize bad-conduct discharge and forfeiture of all pay and allowances and, if the confinement otherwise authorized is less than three months, confinement at hard labor for three months. See 15b concerning the limitations on the power of special courts-martial to adjudge a bad-conduct discharge and forfeitures and 75 b (2) for limitations on consideration of previous convictions. The records of trial which have reached this Court do not suggest frequent invocation of these provisions. . United States v. Brown, 13 U.S.C.M.A. 333, 32 C.M.R. 333 (1962); United States v. Prow, 13 U.S.C.M.A. 63, 32 C.M.R. 63 (1962); United States v. Smith, 12 U.S.C.M.A. 595, 31 C.M.R. 181 (1961). ." }, { "docid": "8245347", "title": "", "text": "trial, is transmitted. Therefore, if a psychiatric examination of the accused was obtained, the results should (in addition to the notation on page one of the review) be summarized in the body of the review. g. If one or more of several accused tried at a joint or common trial by special court-martial receives a bad conduct discharge, the staff judge advocate to the general court-martial authority should indicate in his review the action taken by his headquarters with respect to the findings or sentehce adjudged as to any accused who was not sentenced to punitive discharge. h. Mandatory items required by MCM, 1969 (Rev), para 86b, must be included in the staff judge advocate’s review, unless there was an acquittal of all charges. Specific comment on the accused’s sanity is one of the required items. * i. In some cases it is desirable to advise the convening or supervisory authority in detail of his ability to commute the sentence to a different but lesser form of punishment. This is particularly true when a punitive discharge, together with a short period of confinement or no confinement, has been adjudged and a practical problem arises with regard to designation of the 3320th Retraining Group as the place of confinement (see para 7-19d). Additionally, in these and other cases, various factors affect the remaining period of confinement, e. g., the time required to transcribe a lengthy record of trial, the travel time required to transport the accused from a location overseas to the Retraining Group, or, in case of a rehearing, the credit which must be given the accused for certain of the time between the first and subsequent trials (see UCMJ, Article 57; MCM para 89c(8); United States v. Blackwell, 19 U.S.C.M.A. 196, 41 C.M.R. 196 (1970); Reed v. Ohman, 19 U.S.C.M.A. 110, 41 C.M.R. 110 (1969)). In such situations, the discussion in the review should include reasons for and against commutation and a recommendation on the subject. j. A staff judge advocate, in his review, may recommend reassessment of the sentence, but the reassessment itself, and any modification of the" } ]

[ { "docid": "22723008", "title": "", "text": "terrorists.” This finding rests on speculation about what types of questions the IJ believed Indian officials would ask in such a situation. This is an impermissible ground for determining credibility. See Ge, 367 F.3d at 1124-25 (IJ’s personal conjecture about what Chinese authorities would do in a given situation is impermissible basis for adverse credibility finding). Accordingly, the evidence does not support the IJ’s finding that this testimony was vague or confusing, nor does it support an adverse credibility determination. The IJ also found Mr. Singh’s testimony about the Sikh religion to be vague because he provided conflicting and garbled answers when asked about differences between the various types of Sikhs. However, Mr. Singh’s claim of persecution is based on imputed political opinion. His knowledge of the Sikh religion is not relevant to his claim that the police persecuted him because they believed he was a Sikh or shared the views of Sikh separatists or terrorists. See Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir.1985) (under an imputed political opinion theory, the applicant’s actual beliefs are irrelevant). G The only inconsistency the IJ cites which arguably goes to the heart of Mr. Singh’s claim is his inability to recall whether he transported demonstrators to rallies “many times,” as he initially testified, or only once or twice, as he later testified. A single supported ground for an adverse credibility finding is sufficient if it “relates to the basis forfpetitioner’s] alleged fear of persecution” and goes to the heart of the claim. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (quoting de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997)). An inconsistency goes to the heart of a claim if it concerns events central to petitioner’s version of why he was persecuted and fled. Id. at 1043 (citing Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)). However, an inconsistency that concerns the basis for a petitioner’s claim of persecution will not necessarily support an adverse credibility finding. In Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir.1988), the petitioner and his cousin testified that they were chased through the" } ]

[ { "docid": "22684551", "title": "", "text": "BIA’s finding justified.” Id. (emphasis added) In short, our case law does not mandate that we, or the IJ for that matter, abandon our common sense in favor of rules of general application. It is well established in this circuit that false statements and other inconsistencies must be viewed in light of all the evidence presented in the case. See Kaur v. Ashcroft, 379 F.3d 876, 889 (9th Cir.2004) (“Misrepresentations must instead be evaluated in light of all the circumstances of the case.... ”); Turcios v. INS, 821 F.2d 1396, 1400 (9th Cir.1987) (observing that “it is the examiner’s responsibility to evaluate [untrue] statements in the light of all the circumstances of the case”). Hence, it is incumbent upon the IJ to view each portion of an alien’s testimony, not solely as independent pieces of evidence with no bearing on the testimony as a whole, but in light of all of the evidence presented. Importantly, in Garrovillas, we explicitly qualified the general rule regarding inconsistencies that weaken an asylum claim by stating that when “the inconsistency's] accompanied by other indications of dishonesty,” such testimony might in fact support an adverse credibility finding. 156 F.3d at 1014 (emphasis added). Cf. Alvarez-Santos, 332 F.3d at 1254 (“Inconsistencies due to an unscrupulous preparer, without other evidence of dishonesty ... do not provide a specific and cogent basis for an adverse credibility finding.”) (internal citation omitted) (emphasis added). “[0]ther indications of dishonesty” abound in this case. Garrovillas, 156 F.3d at 1014. Indeed, the inconsistencies are so numerous and so blatant as to cast doubt on Kaur’s entire story. For example, Kaur declared in her first asylum application that she had campaigned personally for the boycott of the February 1992 state assembly election in the Punjab region of India. She later stated that her political activities were limited to voting in the November 1989 elections. Moreover, her first asylum application represented that she was not married, but her second application indicated that she was married and indeed had one child. Kaur admitted in her testimony that she lied about her marital status in order to" }, { "docid": "23301780", "title": "", "text": "PER CURIAM: Petitioner argues that the BIA erred by denying her request for asylum and withholding of deportation. We must affirm the BIA-if its decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)(quoting 8 U.S.C. § 1105a(a)(4)). Petitioner Rodas-Mendoza’s testimony, which the BIA determined to be credible, , establishes that the Salvadoran government persecuted her sporadically between 1978 and 1980 because she was a member of the Farabundo Marti National Liberation Front (FMLN). In 1980, Rodas-Mendoza fled her home canton to San Salvador, the nation’s capital. Rodas-Mendoza lived in San Salvador for 11 years, where she continued to participate in FMLN activities. During this time, she suffered no persecution. In 1991, government forces came to the house where she lived looking for FMLN sympathizers. When she learned of this, Rodas-Mendoza fled to the United States. An immigrant is eligible for asylum if she has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999). She must demonstrate that her fear is both “subjectively genuine and objectively reasonable.” Id. An immigrant may demonstrate that her fear is subjectively genuine merely by “credibly testifying that [s]he genuinely fears persecution.” Id. Rodas-Mendoza testified that she feared persecution. The BIA found her testimony to be credible. Accordingly, Rodas-Mendoza demonstrated that her fear of persecution was subjectively genuine. An immigrant may demonstrate that her fear of persecution is objectively reasonable in either of two ways. First, if an asylum applicant establishes that she has been the victim of past persecution, then she creates a presumption that her fear of persecution is objectively reasonable. -See id. The government then bears the burden of demonstrating by a preponderance of the evidence that changed country conditions render the immigrant’s fear objectively unreasonable despite her past persecution. Id. The BIA found, and the government concedes, that Rodas-Mendoza suffered past persecution. The BIA concluded, however, that the government" }, { "docid": "22054331", "title": "", "text": "the CBP officers and to the district court. Carrion Garcia was given many opportunities to clarify or explain her inconsistent statements, but she did not do so. The principle that we voiced in Soto-Olarte is not applicable. We hold that substantial evidence supports the IJ’s and the BIA’s adverse credibility determinations. Carrion Garcia suggests plausible alternatives to the IJ’s .conclusion. Yet she cannot show that the record compels a different interpretation, and that is fatal to her challenge to the adverse credibility determination. IV To qualify for withholding of removal, an applicant must show a “clear probability” of future persecution. Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir.2003). That persecution must be apparent from objective evidence, Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), and must be “on account of’ one of the statutorily enumerated grounds: race, religion, nationality, political opinion, or membership in a particular social group, INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). A petitioner carries the burden of persuading the fact finder that the evidence offered is credible. Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997). Substantial evidence supports the IJ’s and the BIA’s denial of relief under withholding of removal because Carrion Garcia cannot overcome the adverse credibility determination. The IJ considered the additional corroborating documents presented by Carrion Garcia and found them “insufficient to rehabilitate [Carrion Garcia’s] testimony” because the preparers, her mother and the man from the Dominican Republic living in New York, were not available for cross examination and the authenticity of the documents relied on Carrion Garcia’s discredited testimony. These documents do not reveal any independent knowledge of Carrion Garcia’s alleged abuse. The IJ and BIA reasonably concluded that the documents were not sufficient to rehabilitate Carrion Garcia’s testimony, or to support a withholding of removal claim independently. The record does not compel a conclusion to the contrary and so her claim for withholding of removal fails. V Finally, we turn to Carrion Garcia’s claim that she is entitled to protection under the CAT. The CAT “provides that a signatory nation will" }, { "docid": "22108720", "title": "", "text": "forth above. 8 C.F.R. § 1003.1(e)(4); see also Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). Because Smolniakova was first placed in deportation proceedings before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, and a final order of deportation was entered after October 30, 1996, her appeal is governed by the transitional rules of IIRIRA. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). III. Discussion A. Asylum 1. The Adverse Credibility Determination Adverse credibility determinations must be “based on specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000); see also de De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997). The inconsistencies that an IJ adduces to establish a lack of credibility must therefore be specific and concrete, and “must go to the heart of [the] asylum claim.” Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002) (internal quotation omitted). The perceived contradictions that the IJ attributed to Smolniakova in support of her adverse credibility finding are based on a misconstruction of the record, insufficient evidence and improper speculation and conjecture. See Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004) (stating that adverse credibility determinations cannot be justified by speculation or conjecture). Moreover, many of the putative inconsistencies fail to “go to the heart” of the asylum claim. In support of her adverse credibility finding, the IJ first pointed to discrepancies between Smolniakova’s asylum application, completed without the assistance of counsel, and her testimony at the merits hearing. The IJ noted that “[rjespondent testified at the merits hearing that her wrist was slashed by a man, but yet respondent did not mention this in her asylum application.” In her first asylum application, Smolniakova explained that she had been “mistreated and threatened a lot of times” and that she “want[edj to specify one of the terrible incidents.” This court has recognized that “an applicant’s testimony is not per se lacking in credibility simply because it includes details that are not set" }, { "docid": "23040233", "title": "", "text": "evidence such as a membership card or letter from a party representative corroborating that she was in fact a member of the Movement for the Survival of the Ogoni People. Cf. Abdulrahman v. Ashcroft, 330 F.3d 587, 598-99 (3d Cir.2003) (upholding adverse credibility finding based in part on alien’s failure to substantiate his generalized testimony by providing documentation of his membership or involvement in a politically active student union). At the hearing, Oforji conceded that she told the immigration inspector on the date of her arrival that she was seeking political asylum solely for economic reasons and that she had not been persecuted in Nigeria. This is inconsistent with her testimony at the hearing that she fled because of her political activity and because the Aba-cha administration had arrested and killed her husband. To this date, Oforji has failed to explain why she told the immigration inspector that she had never been persecuted in Nigeria. In addition, at the hearing, Oforji testified that she fled because the government had planned to arrest her because she was too “outspoken,” but she offered no support for this statement. On cross-examination, consistent with her response to the immigration inspector at the time of her attempted entry to this country, she admitted that she fled the same night of her husband’s arrest because the back of her house was falling away. Further, Oforji claimed that the Ogoni Tribe lived in “River State,” and suffered from poor roads, schools, and water. However, Oforji acknowledged that her sister also lived in River State, but did not suffer from a lack of water, nor did she have problems with the Abacha administration. Similarly, Oforji also claimed that the Abacha government was persecuting her because of “oil” but failed to offer any facts supporting this conclusion, other than her assertion that she “knew it to be true.” Importantly, despite claiming that she fled because of persecution from the Abacha administration, she conceded that Abacha was no longer in power in Nigeria due to his death. Contrary to Oforji’s contention, it was her responsibility to ensure that the inspecting" }, { "docid": "22246146", "title": "", "text": "worried about my child. Tr. of Asylum Hearing, Apr. 24, 2003, at 45-46. The IJ also asked Diallo to explain why she did not indicate in her original asylum application that she had been detained for five months following her arrest by Guinean authorities in 2000. She responded: “I did tell the preparer. Maybe that preparer made a mistake and never mentioned.” Id. at 42. The IJ’s Decision Following a hearing, the IJ issued an oral decision finding that “there are far too many inconsistencies and contradictions in the evidence offered [] to consider the respondent a credible or rehable witness.” Oral Decision of the IJ, dated Apr. 24, 2003, at 8-9. The IJ highlighted two primary inconsistencies: (1) Diallo’s original application for asylum did not mention the five-month detention she later described; and (2) the asylum officer reported that Diallo told him during her asylum interview that she had been raped but she later indicated that she had never been raped. The IJ commented that Diallo had offered “little explanation” for the first discrepancy, and that her explanation for the second, in the course of the colloquy set forth above, was “evasive and hesitant,” “bordering on incoherent.” Id. at 9. The IJ also noted that Diallo “was unable to give much detail” regarding the platform of her political party and that “the only corroborating evidence the respondent has offered [regarding her political participation] is a card indicating that she was a member of the UPR and a letter.” Id. at 9-10. From this, the IJ concluded that “[p]erhaps the respondent is a member of this party, but clearly, she does not have much knowledge of the party, or is not very active in the party.” Id. at 10. Thus, the IJ concluded that “based on the respondent’s lack of credibility and her failure to corroborate her claim, the Court finds that she has failed to meet her burden.” Id. The BIA’s Decision Diallo appealed the IJ’s decision to the BIA. In a one-paragraph per curiam opinion, the BIA concluded that “the inconsistencies upon which the Immigration Judge based her" }, { "docid": "4767813", "title": "", "text": "determination must rest on discrepancies or inconsistencies that are central to the claim (that is, the discrepancies or inconsistencies must go to the heart of the matter). See Ying Jin Lin, 561 F.3d at 72; Bebri, 545 F.3d at 50; Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006). The petitioner contends that the discrepancies which marred her testimony were too insubstantial to warrant an adverse credibility determination. We disagree. These discrepancies are major and cut to the core of her foundational claim that her husband was arrested, detained, and mistreated as a result of his political activities and that, after his departure, she had a well-founded fear of similar mistreatment that prompted her to flee. We explain briefly. The IJ focused on the petitioner’s inability to tell a coherent story about her husband’s alleged arrest, detention, escape, and flight from Cambodia. She gave at least three conflicting dates, each a year or more apart, as the date she last saw her husband. This was especially important because her husband, an ardent political activist by her account, was the lightning rod both for the harassment that she described and for the future persecution that she feared. The IJ also focused, of course, on the petitioner’s claim to have been politically involved in her own right. He took special note that the petitioner professed to have joined the Sam Rainsy Party in 1993 — a full five years before that party came into being. This stark discrepancy was neither minor nor peripheral. It went directly to the foundation of the petitioner’s claim. Taken together, these discrepancies fundamentally undercut the petitioner’s asylum application. See Mam v. Holder, 566 F.3d 280, 283-85 (1st Cir.2009) (hold ing gross discrepancies concerning dates of key events with respect to asylum claim sufficient to justify adverse credibility determination); Bebri, 545 F.3d at 51 (holding that an adverse credibility determination may rest on major discrepancies concerning time, place, and manner); see also Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.2007) (“Some of these inconsistencies, in isolation, may seem like small potatoes. What counts, however, is that their" }, { "docid": "22699120", "title": "", "text": "and false identification in the United States, which he used to procure a U.S. passport. On November 19, 1992, the Immigration and Naturalization Service issued an Order to Show Cause, charging Molina with entering the United States without inspection in violation of INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (recodified at INA § 237, 8 U.S.C. § 1227). In 1997, the IJ denied Molina’s application for asylum and withholding of deportation, and ordered him deported to El Salvador. The IJ found that Molina was not credible, and that, even if he were, he failed to show that he was persecuted “on account of’ political opinion, or any other ground protected under the INA. Molina appealed to the BIA, which dismissed his appeal in a 2-1 decision. The BIA did not find it necessary to make a credibility determination, because it found that even if Molina’s testimony were credible, he failed to meet his burden of proving eligibility for asylum. The BIA ntlted that Molina “provided no evidence that he opposed the ARENA party or that he was in any way involved with a political party or in political activities in El Salvador.” The BIA also asserted that Molina’s “attackers did not mention the ARENA party, or anything else of a political nature during the attack.” The BIA concluded that Molina’s “attackers were [not] in any way motivated by the respondent’s political opinion or an opinion they imputed to him.... Rather, the evidence suggests that he fears harm because of a personal matter between him and Carmen Salazar.” The BIA found that Molina failed to establish either past persecution or a well-founded fear of future persecution “on account of’ any of the statutory grounds, and thus did not qualify for either asylum or withholding of deportation. Molina filed a timely petition for review. Standard of Review We review de novo determinations by the BIA of purely legal questions concerning requirements of the INA. See Vang v. INS, 146 F.3d 1114, 1116 (9th Cir.1998). We examine the BIA’s factual findings under the substantial evidence standard. See Marcu v. INS, 147 F.3d 1078," }, { "docid": "13565405", "title": "", "text": "the Convention Against Torture. He found that her testimony at the hearing and the information supplied in the second asylum application were inconsistent with the original asylum application, particularly the fact that the original application made no reference to the RPG or any political organization. He also noted that she checked “no” in response to the question on the application concerning whether she or any member of her family belonged to a political party or group. As for the attack, the immigration judge found that Kante acknowledged in an asylum interview that when she used the word “rebels” she was including both Guinean government forces or rogue individuals from Guinea or Sierra Leone. Given these facts, the immigration judge found no nexus between the attack on Kante in October 2001 and her or her family’s political activity, and that she was not “targeted for persecution” because she was part of a “particular social group,” that is, females subject to sexual assault. He found “no evidence” that women were a “disfavored group” in Guinea, or that there was a “pattern or practice” of persecution against them. Finally, the immigration judge found “no evidence” that it was more likely than not that Kante would be tortured if she returned to Guinea. Finding Kante removable as charged, the immigration judge noted inconsistencies among her two applications and her testimony such that Kante failed to provide “sufficient, credible testimony and other evidence” to support her claim of past persecution. The Board’s Decision On July 28, 2008, the Board of Immigration Appeals dismissed Kante’s appeal, agreeing that Kante “failed to establish by credible evidence that any harm she may have suffered while in Guinea was related to a protected ground” and that the inconsistencies between her original application on the one hand and her second application and hearing testimony on the other “was sufficient to place her veracity into question.” It also found that Kante had failed to establish that “females subject to sexual assault” was a readily-identifiable social group that could be defined “with sufficient particularity to delimit its membership.” Finally, the Board found" }, { "docid": "15231399", "title": "", "text": "the alien need only prove a well-founded fear of persecution. De Valle v. INS, 901 F.2d 787, 790 (9th Cir.1990) (De Valle). A well-founded fear must be both subjectively and objectively reasonable. See id. The subjective component requires a showing that the alien’s fear is genuine. Id. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution. Id. We review the Board’s denial of asylum eligibility for substantial evidence. Id. Under each deferential standard, we may not reverse the Board simply because we disagree with its evaluation of the facts, but only if we conclude that the Board’s evaluation is not supported by substantial evidence. Echeverria-Hernandez v. INS, 923 F.2d 688, 691 (9th Cir.1991). This standard requires only that the Board’s conclusion, based on the evidence presented, is substantially reasonable. Id. A. We first discuss Estrada’s claim that she is entitled to political asylum. Estrada argues that her uncle’s death, her cousin’s disappearance, and the forced move of her mother’s relatives justify a finding of a well-founded fear of persecution. The evidence offered in this regard consisted solely of her own testimony. We have held that where corroborating documentary evidence is unavailable, an alien’s testimony alone will suffice to prove a well-founded fear, but only if “it is credible, persuasive, and specific.” Aguilera-Cota v. INS, 914 F.2d 1375, 1379 (9th Cir.1990). The immigration judge, however, determined that Estrada was not a credible witness. After listening to Estrada’s testimony, he found it “replete with vague, unspecific, general, inconsistent and contradictory testimony.” For example, when asked on her application for asylum whether any member of her family had been mistreated by authorities in Guatemala, Estrada stated that her brother was killed in his role as a guard for a political figure. When questioned by the immigration judge at her deportation hearing, however, Estrada contradicted this statement by replying that all three of her brothers were living, one in Canada and two in the United States. Estrada argues that substantial evidence does not support the immigration judge’s adverse" }, { "docid": "22580753", "title": "", "text": ".had properly found that statements petitioner made regarding the dates of her marriage and the registration of her marriage differed substantially from the documentary evidence petitioner provided in support of her asylum application. See id. Because the BIA further held that these “substantial inconsistencies” involved a “material element” of petitioner’s claim, namely her marriage, the BIA affirmed the IJ’s adverse credibility finding and the resulting denial of petitioner’s application for asylum and withholding of removal. Id. DISCUSSION Petitioner contends that the BIA’s holding is legally insufficient because the inconsistencies for which the BIA faulted her, regarding the dates of her marriage, “were minor and did not go to the heart of her asylum claim.” Petitioner’s Br. at 21 (citing Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir.2003)). She argues further that the BIA committed reversible error by failing to address the documentary evidence she submitted in support of her asylum application, which included (1) a radiology report confirming her sterility, (2) a letter from a U.S. doctor certifying that petitioner had undergone tubal sterilization surgery, and (3) a photograph of her sterilization scar. Id. at 47. As an initial matter, we agree with petitioner’s contention that whether she was married in the spring or in the fall is of little significance to her asylum claim. We do find it significant, however, that petitioner was unable to recall whether she was married in the spring or in the fall and that she was generally unable to provide a coherent chronological account of her personal history. Had petitioner’s testimony been generally credible and coherent, an isolated discrepancy regarding the date of her marriage may not have been a sufficient basis for denying her application for asylum. See, e.g., Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000) (“Where an applicant’s testimony is generally consistent, rational, and believable, disparities ... need not be fatal to credibility, especially if the errors are relatively minor and isolated .... ”). The discrepancies with respect to the dates of petitioner’s marriage, however, were not isolated. Petitioner’s testimony was, in fact, replete with inconsistencies. As a result," }, { "docid": "11878032", "title": "", "text": "the pain” that Taylor caused the Nigerian people. She later married a Nigerian, John Clifford Bernard, whom she had met at the camp, and together they had two children. Bernard was murdered and then her children were killed in a fire. Rapheal claims the fire was purposely set by Nigerian government agents because of her husband’s political activities. The IJ found that Rapheal was not credible because she had earlier told immigration officers that her maiden name was Kocoker. Although Rapheal testified that she had never heard the name Kocoker before, the IJ found her testimony not credible given that she had signed the earlier statement listing her maiden name as Kocoker. The IJ determined that the inconsistencies relating to her name and identity went to the heart of her claim that she would be harmed in Liberia because the “vast majority” of her claim “rests on her assertion that the Rapheal name is well-known as a supporter of Charles Taylor.” Further, the IJ noted that Rapheal had failed to submit any corroborative evidence relating to her identity, her parents’ identity, her husband’s identity, or evidence that the Rapheal family was well-known in Liberia. Additionally, the IJ found that she did not provide any explanation for her lack of corroborative evidence. The IJ then denied Ra-pheal asylum, withholding of removal, and CAT relief because under the REAL ID Act she did not meet “her burden of proof through credible, consistent testimony or a combination of testimony and corroboration.” IJ Decision at 27. The IJ ordered Rapheal removed to Germany, with an alternate order of removal to Liberia. Rapheal appealed to the Board. The Board dismissed Rapheal’s appeal, concluding that the IJ properly found that Rapheal failed to meet her burden of proof for asylum, withholding of removal, and CAT relief because “she did not provide corroborative evidence and could have done so_” Board Decision at 2. The Board concluded that it need not reach the issue of Rapheal’s credibility because Ra-pheal was not entitled to relief given her lack of corroborative evidence. Rapheal petitions this court for relief. II Rapheal" }, { "docid": "22684552", "title": "", "text": "inconsistency's] accompanied by other indications of dishonesty,” such testimony might in fact support an adverse credibility finding. 156 F.3d at 1014 (emphasis added). Cf. Alvarez-Santos, 332 F.3d at 1254 (“Inconsistencies due to an unscrupulous preparer, without other evidence of dishonesty ... do not provide a specific and cogent basis for an adverse credibility finding.”) (internal citation omitted) (emphasis added). “[0]ther indications of dishonesty” abound in this case. Garrovillas, 156 F.3d at 1014. Indeed, the inconsistencies are so numerous and so blatant as to cast doubt on Kaur’s entire story. For example, Kaur declared in her first asylum application that she had campaigned personally for the boycott of the February 1992 state assembly election in the Punjab region of India. She later stated that her political activities were limited to voting in the November 1989 elections. Moreover, her first asylum application represented that she was not married, but her second application indicated that she was married and indeed had one child. Kaur admitted in her testimony that she lied about her marital status in order to ensure the possibility that her husband could file an asylum application in the event hers was denied. Unlike the “plausible explanation” offered by the petitioner in Garrovillas, Kaur’s explanation cannot be said to “reflect[ ] no culpable conduct on [her] part.” 156 F.3d at 1014. Kaur also stated in her second asylum application that only 8 to 12 members of the Punjabi police entered her home; her first application listed the number between 65 and 70. The date of the raid on her home also changed from one application to the next. These discrepancies are significant because they concern one of the few interactions between Kaur and the Punjabi police. Even during the asylum hearing, Kaur seemed unsure of her story, first stating that her grandfather was a member of the Federation, and then stating only that it was “possible” that he was a member. More significantly, however, in her second application Kaur retracted her original statement that she had been raped by the Punjabi police. This material inconsistency goes to the heart of Kaur’s" }, { "docid": "22580752", "title": "", "text": "opposition to China’s coercive family planning policies. Following a December 11, 2001 hearing, the IJ denied petitioner’s application for asylum and withholding of removal based, inter alia, on' his finding that petitioner was not credible. Petitioner appealed , the IJ’s decision to the BIA, arguing that she was legally entitled to asylum because she was forcibly sterilized in China in February 1991. See In re Y-T-L-, 23 I. & N. Dec. 601, 607 (BIA 2003) (“Coerced sterilization [should be] viewed as a permanent and continuing act of persecution ....”); see also 8 U.S.C. § 1101(a)(42) (providing, in relevant part, that “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization ... shall be deemed to have been persecuted on account of political opinion”). . In its order dismissing petitioner’s appeal, the BIA “adopt[ed] and affirm[ed] the decision of the Immigration Judge.” BIA Order at 1. In so holding, the BIA stated that it did “not accept all elements of the Immigration Judge’s adverse credibility finding,” but noted that the IJ .had properly found that statements petitioner made regarding the dates of her marriage and the registration of her marriage differed substantially from the documentary evidence petitioner provided in support of her asylum application. See id. Because the BIA further held that these “substantial inconsistencies” involved a “material element” of petitioner’s claim, namely her marriage, the BIA affirmed the IJ’s adverse credibility finding and the resulting denial of petitioner’s application for asylum and withholding of removal. Id. DISCUSSION Petitioner contends that the BIA’s holding is legally insufficient because the inconsistencies for which the BIA faulted her, regarding the dates of her marriage, “were minor and did not go to the heart of her asylum claim.” Petitioner’s Br. at 21 (citing Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir.2003)). She argues further that the BIA committed reversible error by failing to address the documentary evidence she submitted in support of her asylum application, which included (1) a radiology report confirming her sterility, (2) a letter from a U.S. doctor certifying that petitioner had undergone tubal sterilization" }, { "docid": "22684539", "title": "", "text": "BYBEE, Circuit Judge. Preet Kaur (“Kaur”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”) decision denying her requests for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The IJ denied Kaui*’s application because he found her not credible. Kaur asserts that the IJ’s adverse credibility determination was based upon impermissible grounds and was not supported by substantial evidence. Specifically, she argues that the IJ relied on inconsistencies that may have weakened her claim for asylum, but that had no bearing on her credibility. The question presented here is significant: Must an IJ ignore repeated and blatant inconsistencies throughout an alien’s hearing testimony and applications, simply because, when viewed individually, each inconsistency actually served to weaken her eligibility for relief? We conclude that nothing in our case law mandates such a technical approach to credibility determinations. Accordingly, we hold that, in light of the facts of this case, the IJ’s adverse credibility determination was supported by substantial evidence. We deny the petition. I. FACTS AND PROCEEDINGS BELOW Petitioner Kaur, a native and citizen of India, entered the United States in March of 1993. Subsequently, in January 1995, Kaur applied for asylum, withholding of removal, and relief under the CAT. In her initial application, Kaur provided certain biographical information about herself, specifically representing that she was not married. She claimed that she was persecuted because her brother and father were members of the All India Sikh Student Federation (“Federation”) and had been active in local political affairs. Kaur described in her application how, in December of 1991, more than 65 Punjabi police officers raided her home and arrested her brother and father. She also stated that she had personally campaigned for the boycott of the February 1992 state assembly election in the Punjab region of India. She recalled that she was arrested, in May of 1992, taken to a police station, and raped twice by a local police officer. She represented that she subsequently fled India by traveling first to Nepal, then to Singapore, Canada, and finally, the" }, { "docid": "21818843", "title": "", "text": "HOWARD, Chief Judge. Petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate a Board of Immigration Appeals (“BIA” or “Board”) order rejecting her claim for withholding of removal. Aguilar’s application for relief was predicated upon alleged domestic violence by her ex-husband. Because the BIA failed to consider potentially significant documentary evidence submitted in support of Aguilar’s claim, we vacate the agency’s order. I. Aguilar first entered the United States in August 2005, but she was apprehended and removed to Honduras. About four years later, Aguilar returned to the United States. She was again apprehended, and the Department of Homeland Security filed a notice to reinstate her prior removal order. The case was subsequently referred to Immigration Court. Aguilar then filed the instant application for withholding of removal. In order to succeed on a withholding claim, an applicant must establish that her. “life or freedom would be threatened” in her home country because of her “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A), In light of her reinstated removal order, Aguilar was not eligible to apply for asylum, a separate form of relief for aliens harboring a “well-founded fear of persecution on account of’ a protected ground. 8 U.S.C. § 1101(a)(42)(A); see also Garcia v. Sessions, 856 F.3d 27, 33 (1st Cir. 2017). In March 2013, an immigration judge (“IJ”) conducted a merits hearing. At the hearing, Aguilar testified to suffering relentless physical, emotional, and sexual abuse by Victor Gonzalez, whom she mar ried in 1997 and later divorced. The IJ, however, citing various perceived inconsistencies, found that Aguilar’s testimony was “not credible” and therefore discounted it. After rendering this adverse credibility finding, the IJ went on to separately address the other evidence that Aguilar had submitted “[a]side from her discredited testimony.” Aguilar had provided “police reports, a family court order, a medical record, and two declarations” evidencing her abusive relationship with Gonzalez. According to the IJ, this documentary evidence “suggested] that between 2004 and 2008, [Gonzalez] struck [Aguilar] once or twice, threatened [Aguilar] and her family, and publicly" }, { "docid": "397382", "title": "", "text": "those who asked expressly about political asylum were forced to sign the voluntary departure form. Gloria Esperanza Benitez de Flores was apprehended in March, 1982. The day after her apprehension, INS agents requested more than five times that she sign for voluntary departure. The agents placed her in a jail cell and told her she would remain there for a long time if she did not sign. When Beni-tez de Flores asked the agents about asylum, she was told that the INS was not giving anyone asylum, that it would be useless for her to stay, and it would be better for her to sign for voluntary departure. Dora Elia Estrada, arrested in 1980, refused to sign a voluntary departure form and asked for asylum. The agent who arrested her told her that political asylum “wasn’t given” in the United States, and that if she did not sign for voluntary departure she was going to be in detention for a long time in a jail where there were “only men.” Another guard told Estrada that if she asked for asylum, the money she posted for bail would be lost and she would be returned to El Salvador; another agent told her that the information she gave them would be sent to El Salvador. Many class members recounted similar stories of their experiences during the period before the preliminary injunction was entered. They included Jose Sanchez Flores, Hector Abel Giron Funes, Manuel de Jesus Umana Fiallos, Jose Francisco Marroquin Salvador, Louis Renato Canjura, Crosby Wilfredo Orantes-Hernandez, Esperanza Alvarado Orteaga, Benigno Li-nares Gonzalez, Maria Bonilla Amaya, Camilo Daniel Medrano Melendez, Ines Margarita Montano-Amaya, Julio Cesar Martinez Flores, Ana Estela Guevara Flores, and Delia Elizabeth Garcia-Quin-tanilla. It is significant that the government offered no contradictory evidence to suggest these events did not occur. It is at least equally significant that the testimony of INS agents themselves confirmed it was their accepted practice not to inform Salvadorans about asylum and to proffer only voluntary departure, even when the Salvadorans expressed fear of return. This practice was directly contrary to the stated policy of the" }, { "docid": "397383", "title": "", "text": "if she asked for asylum, the money she posted for bail would be lost and she would be returned to El Salvador; another agent told her that the information she gave them would be sent to El Salvador. Many class members recounted similar stories of their experiences during the period before the preliminary injunction was entered. They included Jose Sanchez Flores, Hector Abel Giron Funes, Manuel de Jesus Umana Fiallos, Jose Francisco Marroquin Salvador, Louis Renato Canjura, Crosby Wilfredo Orantes-Hernandez, Esperanza Alvarado Orteaga, Benigno Li-nares Gonzalez, Maria Bonilla Amaya, Camilo Daniel Medrano Melendez, Ines Margarita Montano-Amaya, Julio Cesar Martinez Flores, Ana Estela Guevara Flores, and Delia Elizabeth Garcia-Quin-tanilla. It is significant that the government offered no contradictory evidence to suggest these events did not occur. It is at least equally significant that the testimony of INS agents themselves confirmed it was their accepted practice not to inform Salvadorans about asylum and to proffer only voluntary departure, even when the Salvadorans expressed fear of return. This practice was directly contrary to the stated policy of the head of the INS, who had represented that INS agents provide notice of the right to apply for asylum to aliens who indicate they fear persecution in their homeland. See Oversight Hearings, 96th Cong., 2d Sess. 225 (1980). Examples of the agents’ testimony in this case are as follows. Border Patrol Agent Michael Singh testified that prior to the Orantes injunction, he was instructed to continue processing an alien if, during processing, the alien says that he is afraid to return to his country. Singh would fill out an asylum application only if the alien used the words “I want political asylum.” If the alien did not use those words, the general policy was to continue processing for deportation. Even if the alien said that he feared persecution on return to his country, processing continued and no asylum form would be proffered. Singh was aware of no policy that the INS had to inform Salvadorans of their right to asylum if they feared persecution. He testified that prior to the injunction it was not his" }, { "docid": "4767812", "title": "", "text": "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An asylum applicant’s credible testimony alone may suffice to satisfy this burden. See Bebri, 545 F.3d at 50; Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). This does not mean, however, that an IJ is obliged to accept an asylum applicant’s testimony at face value. Should the IJ reasonably determine that the alien’s testimony is not credible, he may disregard it in whole or in part. See Muñoz-Monsalve, 551 F.3d at 8; Bebri, 545 F.3d at 50. Unexplained inconsistencies or contradictions in an alien’s version of events may thus derail her asylum claim. See, e.g., Ying Jin Lin v. Holder, 561 F.3d 68, 72-73 (1st Cir.2009); Bebri, 545 F.3d at 51. The credibility determination in this case is governed by the “heart of the matter” rule. Under that rule, an adverse credibility determination may not rest on discrepancies or inconsistencies that are merely peripheral to the alien’s claim; instead, the determination must rest on discrepancies or inconsistencies that are central to the claim (that is, the discrepancies or inconsistencies must go to the heart of the matter). See Ying Jin Lin, 561 F.3d at 72; Bebri, 545 F.3d at 50; Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006). The petitioner contends that the discrepancies which marred her testimony were too insubstantial to warrant an adverse credibility determination. We disagree. These discrepancies are major and cut to the core of her foundational claim that her husband was arrested, detained, and mistreated as a result of his political activities and that, after his departure, she had a well-founded fear of similar mistreatment that prompted her to flee. We explain briefly. The IJ focused on the petitioner’s inability to tell a coherent story about her husband’s alleged arrest, detention, escape, and flight from Cambodia. She gave at least three conflicting dates, each a year or more apart, as the date she last saw her husband. This was especially important because her husband, an ardent political activist by" }, { "docid": "23040232", "title": "", "text": "the fear, the alien must show, based upon credible, direct, and specific evidence, that a reasonable person in the same circumstances would fear persecution if returned to the petitioner’s native country. Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir.1999). We turn first to the IJ’s adverse credibility findings which are entitled to “highly deferential review.” Mansour v. INS, 230 F.3d 902, 905 (7th Cir.2000); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir.2002) (‘We give great deference to an immigration judge’s decisions regarding an alien’s credibility.”). We require that an adverse credibility finding merely be supported by “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Ahmad v. INS, 163 F.3d 457, 461 (citations omitted). Adverse credibility findings are overturned only under “extraordinary circumstances.” Pop v. INS, 270 F.3d 527, 531-32 (7th Cir.2001). Here, the IJ found multiple inconsistencies in Oforji’s testimony and these “specific, cogent reasons” “bear a legitimate nexus” to the denial of her claim. As an initial matter, Oforji does not dispute the IJ’s finding that she presented no evidence such as a membership card or letter from a party representative corroborating that she was in fact a member of the Movement for the Survival of the Ogoni People. Cf. Abdulrahman v. Ashcroft, 330 F.3d 587, 598-99 (3d Cir.2003) (upholding adverse credibility finding based in part on alien’s failure to substantiate his generalized testimony by providing documentation of his membership or involvement in a politically active student union). At the hearing, Oforji conceded that she told the immigration inspector on the date of her arrival that she was seeking political asylum solely for economic reasons and that she had not been persecuted in Nigeria. This is inconsistent with her testimony at the hearing that she fled because of her political activity and because the Aba-cha administration had arrested and killed her husband. To this date, Oforji has failed to explain why she told the immigration inspector that she had never been persecuted in Nigeria. In addition, at the hearing, Oforji testified that she fled because the government had planned to arrest her because she" } ]

[ { "docid": "22684008", "title": "", "text": "a legislative denunciation and condemnation of an individual often acted to impose retroactive punishment. See Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, pp. 92-93 (1956). In this case, for example, appellant faults the Act for taking custody of his papers but not those of other Presidents. Brief for Appellant 130. But even a congressional definition of the class consisting of all Presidents would have been vulnerable to the claim of being overly specific, since the definition might more generally include all members of the Executive Branch, or all members of the Government, or all in possession of Presidential papers, or all in possession of Government papers. This does not dispose of appellant’s contention that the Act focuses upon him with the requisite degree of specificity for a bill of attainder, see infra, at 471-472, but it demonstrates that simple reference to the breadth of the Act’s focus cannot be determinative of the reach of the Bill of Attainder Clause as a limitation upon legislative action that disadvantages a person or group. See, e. g., United States v. Brown, 381 U. S. 437, 474-475 (1965) (White, J., dissenting); n. 34, infra. “The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.” We observe that appellant originally argued that “for similar reasons” the Act violates both the Bill of Attainder Clause and equal protection of the laws. Jurisdictional Statement 27-28. He has since abandoned reliance upon the equal protection argument, apparently recognizing that mere underinclusiveness is not fatal to the validity of a law under the equal protection component of the Fifth Amendment, New Orleans v. Dukes, 427 U. S. 297 (1976); Katzenbach v. Morgan, 384 U. S. 641, 657 (1966), even if the law disadvantages an individual or identifiable members of a group, see, e. g., Williamson v. Lee Optical Co., 348 U. S. 483 (1955) (opticians); Daniel v. Family Ins. Co., 336 U." } ]

[ { "docid": "3744421", "title": "", "text": "dual function of the National Guard, that it has set as a goal force readiness for mobilization, and the deployability of reservists who must meet strict physical standards, are matters which can best be entrusted to the military itself. See Peñagarícano v. Llenza, 747 F.2d 55 (1st Cir.1984); Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). That the Air Force has deelded that reservists who cannot be deployed overseas cannot remain in deployable positions must be left to military discretion and expertise. Plaintiffs also argue that defendants did not follow their own policy by failing to give John Doe a hearing and notice, pursuant to ANGR 39-10, paragraph 8-26 prior to his transfer to the Standby Reserves. Paragraph 8-26 contains the procedure for discharge, incorporating the notice procedure of Chapter 1, Section D, as well as the Administrative Discharge Board of paragraph 1-23. While ANGR 39-10 paragraph 1-23 requires that the reservists be offered the opportunity of a hearing before the administrative discharge board, the applicability of Paragraph 8-26 to HIV seropositive reservists was derogated on August 10, 1990, prior to Doe's discharge, and therefore he had no right to a hearing and notice under this paragraph. As explained by Captain Robinson, the change was a recognition that an administrative discharge board was not the proper forum to deal with these cases. The administrative discharge board is made up of members of the unit who do not have medical backgrounds. Moreover, considering that plaintiffs themselves have consistently agreed that the fitness of an HIV seropositive reservist to continue his duties should be a medical determination, we find their challenge on this point contradictory. Plaintiffs also take issue with the fact that no medical board was convened. The procedure followed, as described by Sgt. Romeo, calls for convening a medical board after it is determined that a non-deployable position(s) exists for which the reservist would otherwise qualify. Inasmuch as the initial policy determination required that Doe be restricted to a non-deployable position, and no compatible non-deployable position was available for him, defendants determined that a medical review board was not needed" }, { "docid": "18873747", "title": "", "text": "the record for the district court’s finding that no suitable, nondeployable positions were available. Consequently, we conclude that plaintiffs discharge from PRANG and transfer to the Standby Reserve did not violate ANGR 39-10 ¶ 8-25. Plaintiff next attacks the absence of a hearing accompanying his discharge as viola-tive of ANGR 39-10. According to plaintiff, paragraph 1-23 of ANGR 39-10 guaranteed him a hearing. That paragraph provided: Unless otherwise indicated, airman [sic] recommended for discharge under [ANGR 39-10] will be offered an opportunity for administrative discharge board [procedures] .... ANGR 39-10 ¶ 1-23. Prior to plaintiffs discharge, however, ANGR 39-10 was amended as follows: Effective immediately [August 10, 1990,] members processed [in accordance ivith] ANGR 39-10, para 8-25 will not be notified nor offered an opportunity for administrative discharge board procedures. The upcoming revision of ANGR 39-10 will indicate these cases will be administered through appropriate medical channels. (Emphasis added.) Citing Nicholson v. Brown, 599 F.2d 639, 648 (5th Cir.1979), for the proposition that an agency’s “application to a case of new principles announced in the course of deciding that case may be so tinged with unfairness as to amount to an abuse” of discretion, plaintiff argues that the amendment was invalid as to him. While we agree that the amendment became effective after he tested positive for HIV, we disagree that it constituted a new rule developed in the course of a proceeding affecting plaintiff. Rather, the amendment to ANGR 39-10 was procedural, not substantive, and became effective before plaintiffs discharge was processed. “The [procedural] regulations in force at the time administrative proceedings take place govern, not those in effect at some earlier time when the events giving rise to the action occurred.” Chilcott v. Orr, 747 F.2d 29, 34 (1st Cir.1984); accord Alberico v. United States, 783 F.2d 1024, 1028 (Fed.Cir.1986). Accordingly, the amendment to ANGR 39-10 deleting the right to an administrative hearing applied to plaintiffs case. Plaintiff attempts to impugn the amendment by arguing that it is analogous to a bill of attainder, and that it was never formally adopted. A bill of attainder is a law" }, { "docid": "18873751", "title": "", "text": "is unavailing, however, because he was a reservist, not on active duty. There is a provision regarding reservists with HIV in each of the memoranda containing that policy statement. The Defense Department policy states that “the Secretaries of the Military Departments may restrict individuals [in the Reserves] with serologic evidence of HIV infection to nondeployable units or positions for purposes of force readiness.” Air Force policy, in turn, states that reservists “shall be transferred to the Standby Reserve, only if they cannot be utilized in the Selected [i.e., Ready] Reserve,” and that the decision regarding fitness for the Selected Reserve must take into account that “military personnel [with HIV] shall only be assigned to nondeployable units and positions.” In this case, plaintiff was not separated solely because of his HIV condition. He was transferred to the Standby Reserve and discharged from PRANG because he tested positive for HIV and there were no compatible, nondeployable positions available. The second prong of plaintiffs argument is that the Secretary of the Air Force allegedly abused his discretion in restricting reservists with HIV to nondeployable positions. A Defense Department policy provided the Secretary with the authority to make such a restriction “for purposes of force readiness.” According to plaintiff, the restriction is groundless because persons with HIV can lead normal lives. Our standard of review of decisions committed to an agency’s discretion is invariably deferential. See New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 169 (1st Cir.1989). And in the context of a decision such as the Secretary’s, in which “force readiness” is at issue, courts must be especially circumspect. The Supreme Court has stated that “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973); see also Chilcott, 747 F.2d at 32 (“Interference by the judiciary with the administration of the military would undermine this nation’s ability to maintain a disciplined and ready fighting force.”). The record provides ample support for our finding that the Secretary did" }, { "docid": "3744422", "title": "", "text": "on August 10, 1990, prior to Doe's discharge, and therefore he had no right to a hearing and notice under this paragraph. As explained by Captain Robinson, the change was a recognition that an administrative discharge board was not the proper forum to deal with these cases. The administrative discharge board is made up of members of the unit who do not have medical backgrounds. Moreover, considering that plaintiffs themselves have consistently agreed that the fitness of an HIV seropositive reservist to continue his duties should be a medical determination, we find their challenge on this point contradictory. Plaintiffs also take issue with the fact that no medical board was convened. The procedure followed, as described by Sgt. Romeo, calls for convening a medical board after it is determined that a non-deployable position(s) exists for which the reservist would otherwise qualify. Inasmuch as the initial policy determination required that Doe be restricted to a non-deployable position, and no compatible non-deployable position was available for him, defendants determined that a medical review board was not needed to evaluate plaintiffs’ particular fitness to fill a non-existent job. Moreover, considering that reservists such as Doe who are not on extended active duty do not receive their medical care through the military establishment, the National Guard does not put the reservist to the expense of medical testing for the futile purpose of evaluation by a medical board that would have no position for which to evaluate his fitness. We, therefore, find that the procedure described by Captain Robinson falls within the parameters of the further case-by-case consideration to determine the specific suitability of an individual HIV positive reservist for an available position. Plaintiffs’ allegation that ANGR 39-10, as applied, violates the Department of Defense and Air Force policies prohibiting the use of results obtained from laboratory tests for HIV as the sole basis for the service member’s separation are equally meritless. It is clear from the evidence that John Doe’s separation was based upon the fact that he tested seropositive and a non-deployable position compatible to his could not be found. Moreover, both policies" }, { "docid": "18873749", "title": "", "text": "that inflicts punishment upon identifiable members of a class without providing a judicial trial. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468-69, 97 S.Ct. 2777, 2802-03, 53 L.Ed.2d 867 (1977). Plaintiffs allegations are unsupported by the record. Captain Robinson, the National Guard Bureau officer responsible for the amendment to ANGR 39-10, testified that he proposed it in 1989 to eliminate unnecessary procedures where the individual’s HIV status was undisputed, and where there were no nondeployable positions available. According to Robinson, only if a nondeployable position were available would further procedures be warranted to make a medical determination of whether the HIV infection would interfere with the duties of that position. An administrative board, however, could not make such an evaluation because it lacks a medical faculty. And because Guard members are generally not entitled to military medical health care, the infected individual would have to pay for any additional medical tests. It is undisputed that plaintiffs status in the Guard did not entitle him to military health care. Robinson testified that his superiors approved the amendment and that it became effective on August 10, 1990. The uncontra-dieted evidence thus indicates that the amendment was a duly-approved, general policy change, designed to effect the nonpun-itive purpose of eliminating unnecessary, costly procedures. See Alberico, 783 F.2d at 1028 (rejecting argument that generally-applicable amendment of regulation affecting plaintiffs service record constituted bill of attainder, even though amendment was “certainly inspired by his case”). HIV Policy Plaintiffs next argument is that his discharge violated Defense Department policy. There are two prongs to plaintiffs argument. First, plaintiff quotes the following policy statement from the Defense Department and the Air Force, regarding active duty personnel infected with HIV, in an effort to prove that ANGR 39-10 conflicted with Department policy: Individuals with serologic evidence of HIV infection and who show no evidence of clinical illness or other indication of immunologic or neurologic impairment related to HIV infection, shall not be separated solely on the basis of serologic evidence of HIV infection. (Emphasis added.) Plaintiffs attempt to use that policy statement to undermine ANGR 39-10" }, { "docid": "18873753", "title": "", "text": "not abuse his discretion in adopting the policy underlying ANGR 39-10. The Air Force Ready Reserve (including the National Guard) makes demands of its members that civilians might not normally face, and these demands bear on “force readiness.” The National Guard’s “whole reason for being is to be ready to be deployed, generally outside of the United States.” Doe, 800 F.Supp. at 1045. There is ample support for the finding that persons with HIV who are asymptomatic are not deployable because of their restricted capacity to be immunized, their inability to donate blood, and the unpredictability of the onset of symptoms. Id. It follows that force readiness is affected when nondeployable persons staff deployable positions. No further criticism of the Secretary’s decision is warranted under the circumstances. Equal Protection Plaintiffs next argument is that ANGR 39-10 on its face and as applied violated his right to equal protection. Plaintiff argues in his brief that policies of the Department of Defense and Air Force draw an invalid distinction between reservists and active duty personnel by permitting the former to be discharged solely because of their HIV status, while guaranteeing to the latter the right not to be discharged on the basis of HIV infection alone. The district court declined to reach a similar issue in its order because plaintiff did not adequately raise it in his complaint or at trial. See Doe, 800 F.Supp. at 1044 n. 1. Our review of the record substantiates that finding. While plaintiff flagged the issue in his posttrial brief and in his memorandum supporting his motion for an injunction, his complaint alleged that he suffered a violation of equal protection because of his HIV status, not because of his status as a reservist. Even if the issue were preserved, we would find it groundless. The policies and regulations at issue in this case do not mandate that reservists be separated solely on the basis of HIV infection. Rather, a reservist with HIV is transferred to the Standby Reserve only if there are no nondeployable positions available. To the extent plaintiff seeks appellate review of the" }, { "docid": "18873748", "title": "", "text": "course of deciding that case may be so tinged with unfairness as to amount to an abuse” of discretion, plaintiff argues that the amendment was invalid as to him. While we agree that the amendment became effective after he tested positive for HIV, we disagree that it constituted a new rule developed in the course of a proceeding affecting plaintiff. Rather, the amendment to ANGR 39-10 was procedural, not substantive, and became effective before plaintiffs discharge was processed. “The [procedural] regulations in force at the time administrative proceedings take place govern, not those in effect at some earlier time when the events giving rise to the action occurred.” Chilcott v. Orr, 747 F.2d 29, 34 (1st Cir.1984); accord Alberico v. United States, 783 F.2d 1024, 1028 (Fed.Cir.1986). Accordingly, the amendment to ANGR 39-10 deleting the right to an administrative hearing applied to plaintiffs case. Plaintiff attempts to impugn the amendment by arguing that it is analogous to a bill of attainder, and that it was never formally adopted. A bill of attainder is a law that inflicts punishment upon identifiable members of a class without providing a judicial trial. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468-69, 97 S.Ct. 2777, 2802-03, 53 L.Ed.2d 867 (1977). Plaintiffs allegations are unsupported by the record. Captain Robinson, the National Guard Bureau officer responsible for the amendment to ANGR 39-10, testified that he proposed it in 1989 to eliminate unnecessary procedures where the individual’s HIV status was undisputed, and where there were no nondeployable positions available. According to Robinson, only if a nondeployable position were available would further procedures be warranted to make a medical determination of whether the HIV infection would interfere with the duties of that position. An administrative board, however, could not make such an evaluation because it lacks a medical faculty. And because Guard members are generally not entitled to military medical health care, the infected individual would have to pay for any additional medical tests. It is undisputed that plaintiffs status in the Guard did not entitle him to military health care. Robinson testified that his superiors" }, { "docid": "18873744", "title": "", "text": "trial court’s decision that ANGR 39-10 was valid, and that plaintiffs separation from PRANG and from his federal position did not violate due process and equal protection principles. In addition to assailing several of the court’s factual findings, plaintiff raises the following legal issues: [1] whether the lack of a hearing upon his discharge violated ANGR 39-10 and his right to procedural due process; [2] whether ANGR 39-10 conflicted with Defense Department policy; [3] whether ANGR 39-10 violated his right to equal protection; and [4] whether he was entitled to a hearing before a medical board. II. MERITS Regulations Plaintiff argues that PRANG failed to follow ANGR 39-10 in discharging him. At the time of the discharge, that regulation provided in pertinent part: Members [of the Air National Guard] not entitled to military medical health care who display serologic evidence [of HIV infection] will be transferred to the Standby Reserves if they cannot be used in a non-deployable position. These members will be referred to their private physicians for medical care and counseling. ANGR 39-10 ¶ 8-25(b). Plaintiff does not argue that PRANG lacked the authority to discharge him once he was transferred to the Standby Reserve. Rather, plaintiffs argument is that PRANG did not follow the procedures required by ANGR 39-10 when he was transferred to the Standby Reserve. The court found that plaintiff was discharged from PRANG and transferred to the Standby Reserve after PRANG conducted an unsuccessful search for a nondeployable position compatible with plaintiffs civil technician job. We review the findings for clear error, Fed.R.Civ.P. 52(a), paying heed to the district court’s superior position to gauge the credibility of witnesses. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir.1992). In this ease, we find no error in the determination that a PRANG personnel officer, Major Urutia, had conducted an adequate— but ultimately fruitless—search from July or August of 1990 into 1991 for a vacant, nonde-ployable position for plaintiff. Urutia testified that the search for a vacant position extended beyond plaintiffs own unit into other units and took into consideration plaintiffs tactical," }, { "docid": "18873741", "title": "", "text": "110. States that fail to comply with federal regulations risk forfeiture of federal funds allocated to organize, equip, and arm state Guards. Id. §§ 101, 107, 108, 501; Knutson, 995 F.2d at 767. Every member of the state Air National Guard is also enlisted in a federal organization known as the Air National Guard of the United States (ANGUS), a component of the Ready Reserves of the Armed Forces, which is activated when the Guard is called into federal service. 10 U.S.C. §§ 261, 269, 8079, 8261; 32 U.S.C. §§ 101, 301; Perpich v. Department of Defense, 496 U.S. 334, 345-46, 110 S.Ct. 2418, 2425, 110 L.Ed.2d 312 (1990). Many Guard members, so-called “weekenders,” serve only part-time, by participating in drills and maneuvers on weekends and in the summer. National Guard technicians participate in those activities, but also hold full-time civilian jobs with their units. Guard technicians are federal civil servants, hired and supervised by the state Adjutant General. 32 U.S.C. § 709. Technicians must maintain membership in the state Guard to remain qualified for federal employment. Id. Plaintiff’s Separation from. Service Plaintiff enlisted in PRANG in 1967 and was hired as a Guard technician two years later. From 1969 until he was discharged, he drew two salaries: one from PRANG, and the other from the federal government for his services as an aircraft , maintenance technician. In June 1990, he tested positive for HIV in a routine screening of military personnel. That result was confirmed by a second test in June or early July 1990. Plaintiff received an order on September 21, 1990, stating that he had been honorably discharged from PRANG on September 17, 1990, and transferred from the Ready Reserve to the Standby Reserve. That order was based on Air National Guard Regulation (ANGR) 39-10, which states that members of the Guard testing positive for HIV shall be transferred to the Standby Reserve unless a “nondeployable position” is available. ANGR 39-10 ¶8-25. “Deployability,” according to the record, refers to the ability to be sent anywhere in the world for duty. The district court heard testimony that most" }, { "docid": "3744413", "title": "", "text": "31, 1992. Plaintiffs’ action focuses on their primary contention — that ANGR 39-10 on its face and as interpreted and applied by defendants violates the Fifth and Fourteenth Amendments to the United States Constitution. Peripheral violations include allegations of noncompliance with 10 U.S.C. §§ 1201-1221, as well as procedural and substantive due process claims related to property rights, liberty rights and interests. We now address them in turn. ANGR 39-10 ANGR 39-10 Section F Acquired Immune Deficiency Syndrome at paragraph 8-25 states as follows: a. Members on active duty entitled to military medical health care and who have serologic evidence of HIV infection (antibody positive) shall be medically evaluated to determine fitness for continued service. Those individuals who show no evidence of clinical illness or other impairment related to HIV shall not be separated on the basis of serologic evidence of HIV infection. Evaluation, once completed, must be forwarded to NGB/SG for evaluation and determination as a continued ANG service, b. Members not entitled to military medical health care who display serologic evidence will be transferred to the Standby Reserves if they cannot be used in a non-deployable position. (Emphasis ours.) It is undisputed that John Doe was not on active military duty at the time of his discharge and transfer to the Standby Reserves, and that his medical care was privately provided through medical plan benefits to which he was entitled due to his technician employment. That is, Doe’s case was processed under paragraph 8-25(b). A major theme throughout plaintiffs’ pleadings, which provides the theory for the case, is that this section directly contravenes the August 4, 1988 Policy Statement of the Secretary of Defense, which states at Paragraph B7: Due to the high priority assigned to the continued medical evaluation of military personnel with serologic evidence of HIV infection, such individuals shall be assigned within the United States. Additionally, the Secretaries of the Military may restrict individuals with serologic evidence of HIV infection to non-deployable units or positions for purposes of force readiness. Further ... the Secretaries of the Military Departments may, on a case by case basis," }, { "docid": "18873752", "title": "", "text": "restricting reservists with HIV to nondeployable positions. A Defense Department policy provided the Secretary with the authority to make such a restriction “for purposes of force readiness.” According to plaintiff, the restriction is groundless because persons with HIV can lead normal lives. Our standard of review of decisions committed to an agency’s discretion is invariably deferential. See New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 169 (1st Cir.1989). And in the context of a decision such as the Secretary’s, in which “force readiness” is at issue, courts must be especially circumspect. The Supreme Court has stated that “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973); see also Chilcott, 747 F.2d at 32 (“Interference by the judiciary with the administration of the military would undermine this nation’s ability to maintain a disciplined and ready fighting force.”). The record provides ample support for our finding that the Secretary did not abuse his discretion in adopting the policy underlying ANGR 39-10. The Air Force Ready Reserve (including the National Guard) makes demands of its members that civilians might not normally face, and these demands bear on “force readiness.” The National Guard’s “whole reason for being is to be ready to be deployed, generally outside of the United States.” Doe, 800 F.Supp. at 1045. There is ample support for the finding that persons with HIV who are asymptomatic are not deployable because of their restricted capacity to be immunized, their inability to donate blood, and the unpredictability of the onset of symptoms. Id. It follows that force readiness is affected when nondeployable persons staff deployable positions. No further criticism of the Secretary’s decision is warranted under the circumstances. Equal Protection Plaintiffs next argument is that ANGR 39-10 on its face and as applied violated his right to equal protection. Plaintiff argues in his brief that policies of the Department of Defense and Air Force draw an invalid distinction between reservists and active duty personnel by permitting" }, { "docid": "3744412", "title": "", "text": "Manuel A. Guzmán, citing Air National Guard Regulation (ANGR) 39-10 Chapter 8 as his authority, informed him that effective September 17, 1990 he had been relieved of his duties, honorably discharged and transferred to the Standby Reserves. On October 16, 1990, he received a written communication from defendant Colonel Gilberto Colón, Personnel Officer of PRANG, informing him that he was no longer eligible to continue in his technician employment due to his discharge from military service. Various requests for revision of these decisions brought no replies. Plaintiffs filed this action. Following an evidentiary hearing held on August 1, 1991, the preliminary issue of whether the Court had jurisdiction to entertain these matters, or whether Doe was required to exhaust administrative remedies was resolved in his favor in an Opinion and Order entered on November 7, 1991 (docket entry 32). A consolidated hearing on the merits for preliminary and permanent injunction was held on December 16 through 18, 1991, and on February 13, 14, 18 and 19, 1992. The parties submitted their post-trial briefs on March 31, 1992. Plaintiffs’ action focuses on their primary contention — that ANGR 39-10 on its face and as interpreted and applied by defendants violates the Fifth and Fourteenth Amendments to the United States Constitution. Peripheral violations include allegations of noncompliance with 10 U.S.C. §§ 1201-1221, as well as procedural and substantive due process claims related to property rights, liberty rights and interests. We now address them in turn. ANGR 39-10 ANGR 39-10 Section F Acquired Immune Deficiency Syndrome at paragraph 8-25 states as follows: a. Members on active duty entitled to military medical health care and who have serologic evidence of HIV infection (antibody positive) shall be medically evaluated to determine fitness for continued service. Those individuals who show no evidence of clinical illness or other impairment related to HIV shall not be separated on the basis of serologic evidence of HIV infection. Evaluation, once completed, must be forwarded to NGB/SG for evaluation and determination as a continued ANG service, b. Members not entitled to military medical health care who display serologic evidence will be" }, { "docid": "3744430", "title": "", "text": "actual August 10, 1990 notification, which forms part of defendant’s Exhibit A, states as follows in pertinent part: SUBJECT: Update on Regulation Corrections; ANGR 39-10 dated 15 Sep 1987. 1. The information in ANGR 39-10, Administrative Separation of Airman, Paragraph 8-26, is no longer applicable and will be changed in the revision of ANGR 39-10. . Doe testified that he believes it was during the August 1990 weekend exercise that he was told by Dr. Agapito Miranda, the base doctor, that he had tested positive for HIV and the information would be passed on to the base commander to take appropriate action. He also advised Doe to see a private doctor, recommending Dr. Valiente. During the weekend exercise of September 1990 he was told that he would be severed from the National Guard. He was told that on a Sunday, and that he had thirty days from Monday to take sick leave and then he would be discontinued from the technician program. . Captain Robinson testified that the necessity of compatibility means that the military position must coincide with the civilian job because the reservists must still be proficient in the civilian position. . Plaintiffs’ only evidence on this matter was a vague hearsay statement by Márquez-Ramos that he had been told there were vacant nondeployable positions. He had no information as to whether they were compatible to Doe’s civilian position. Major Nilda Urrutia, the Military Personnel Management Officer testified that she examined the Managing Unit Documents as early as late July or early August 1990, to search for an available non-deployable position for Doe, and that her efforts to locate such a position continued through 1991. She also .testified that she looked for positions in other units as well. There was some confusion with the documents which were brought to court for the hearing inasmuch as she brought 1991 documents instead of the ones which she would have actually used. She explained that there is very little change in the documents, and emphasized that she had searched for a non-deployable position at the time she stated. We give complete" }, { "docid": "3744420", "title": "", "text": "event. He also testified that the deployment determination is a military matter and that disciplinary action can be taken against an individual who refuses deployment. It is argued that the National Guard is primarily a state militia which is only federalized for mobilization purposes. Likewise, plaintiffs also contend that the possibility of John Doe’s being mobilized for active duty overseas is minimal, as well as the general applicability of the Bill of Rights to all citizens, discrimination as a major obstacle in combating the spread of AIDS, the United States Public Health policy against discrimination on the basis of HIV Status or AIDS, all necessitate that the Court rule against this allegedly discriminatory action by the National Guard. Their arguments, however, fail to take into consideration the unique role of the military establishment. “A heavy reliance on readiness needs has guided the evolution of DOD and Air Force HIV policy.” Colonel John A. Anderson, United States Air Force, et al AIDS Issues in the Military, 32 Air Force L.Rev. 353, 362 (1990). Decisions regarding the dual function of the National Guard, that it has set as a goal force readiness for mobilization, and the deployability of reservists who must meet strict physical standards, are matters which can best be entrusted to the military itself. See Peñagarícano v. Llenza, 747 F.2d 55 (1st Cir.1984); Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). That the Air Force has deelded that reservists who cannot be deployed overseas cannot remain in deployable positions must be left to military discretion and expertise. Plaintiffs also argue that defendants did not follow their own policy by failing to give John Doe a hearing and notice, pursuant to ANGR 39-10, paragraph 8-26 prior to his transfer to the Standby Reserves. Paragraph 8-26 contains the procedure for discharge, incorporating the notice procedure of Chapter 1, Section D, as well as the Administrative Discharge Board of paragraph 1-23. While ANGR 39-10 paragraph 1-23 requires that the reservists be offered the opportunity of a hearing before the administrative discharge board, the applicability of Paragraph 8-26 to HIV seropositive reservists was derogated" }, { "docid": "18873746", "title": "", "text": "environmental, and electrical systems expertise. Urutia testified that she was unable to find a vacant nondeployable military position compatible with plaintiffs qualifications. A unit manning document compiled in August 1990, as well as the testimony of Julio Godreau Marrero, an officer in plaintiffs squadron, corroborated Urutia’s testimony. The record contains two statements regarding vacant nondeployable positions: one witness stated that he had heard—but was unable to verify—that a cook’s position was available, and another witness testified that he had heard that a switchboard operator position was vacant in late December 1991. Even if we were to assume that these hearsay statements were reliable, but cf. Doe, 800 F.Supp. at 1047 n. 7 (describing one of the statements as “vague hearsay”), there is nothing in the record indicating that either job was compatible with plaintiffs position as an aircraft maintenance technician. Plaintiff has not challenged the district court’s finding that the Air Force considers compatibility between a Guard member’s military and civilian technician positions necessary. Id. at 1047 & n. 6. We find ample support in the record for the district court’s finding that no suitable, nondeployable positions were available. Consequently, we conclude that plaintiffs discharge from PRANG and transfer to the Standby Reserve did not violate ANGR 39-10 ¶ 8-25. Plaintiff next attacks the absence of a hearing accompanying his discharge as viola-tive of ANGR 39-10. According to plaintiff, paragraph 1-23 of ANGR 39-10 guaranteed him a hearing. That paragraph provided: Unless otherwise indicated, airman [sic] recommended for discharge under [ANGR 39-10] will be offered an opportunity for administrative discharge board [procedures] .... ANGR 39-10 ¶ 1-23. Prior to plaintiffs discharge, however, ANGR 39-10 was amended as follows: Effective immediately [August 10, 1990,] members processed [in accordance ivith] ANGR 39-10, para 8-25 will not be notified nor offered an opportunity for administrative discharge board procedures. The upcoming revision of ANGR 39-10 will indicate these cases will be administered through appropriate medical channels. (Emphasis added.) Citing Nicholson v. Brown, 599 F.2d 639, 648 (5th Cir.1979), for the proposition that an agency’s “application to a case of new principles announced in the" }, { "docid": "18873742", "title": "", "text": "federal employment. Id. Plaintiff’s Separation from. Service Plaintiff enlisted in PRANG in 1967 and was hired as a Guard technician two years later. From 1969 until he was discharged, he drew two salaries: one from PRANG, and the other from the federal government for his services as an aircraft , maintenance technician. In June 1990, he tested positive for HIV in a routine screening of military personnel. That result was confirmed by a second test in June or early July 1990. Plaintiff received an order on September 21, 1990, stating that he had been honorably discharged from PRANG on September 17, 1990, and transferred from the Ready Reserve to the Standby Reserve. That order was based on Air National Guard Regulation (ANGR) 39-10, which states that members of the Guard testing positive for HIV shall be transferred to the Standby Reserve unless a “nondeployable position” is available. ANGR 39-10 ¶8-25. “Deployability,” according to the record, refers to the ability to be sent anywhere in the world for duty. The district court heard testimony that most Guard positions are classified as deployable. On October 16, 1990, plaintiff was notified that his eligibility for employment as a technician ended when he was discharged from the Guard. Plaintiff was advised that he would be separated from federal employment after November 19, 1990. Plaintiffs requests for revocation of these orders were unavailing. In addition, his application for disability benefits was denied because he was not physically disabled. Thereafter, plaintiff filed suit in the United States District Court for the District of Puer-to Rico, alleging that ANGR 39-10 was invalid, and that his discharge from PRANG and from his technician job violated National Guard regulations, Defense Department policy, and the principles of due process and equal protection. Plaintiff sought reinstatement and back pay for his military and civilian jobs, as well as a declaratory judgment that ANGR 39-10 was invalid. After prevailing in several pretrial skirmishes, plaintiff was ultimately unsuccessful when the court decided his case on the merits. Plaintiff remained asymptomatic at the time of trial. Issues The issues on appeal arise from the" }, { "docid": "18873750", "title": "", "text": "approved the amendment and that it became effective on August 10, 1990. The uncontra-dieted evidence thus indicates that the amendment was a duly-approved, general policy change, designed to effect the nonpun-itive purpose of eliminating unnecessary, costly procedures. See Alberico, 783 F.2d at 1028 (rejecting argument that generally-applicable amendment of regulation affecting plaintiffs service record constituted bill of attainder, even though amendment was “certainly inspired by his case”). HIV Policy Plaintiffs next argument is that his discharge violated Defense Department policy. There are two prongs to plaintiffs argument. First, plaintiff quotes the following policy statement from the Defense Department and the Air Force, regarding active duty personnel infected with HIV, in an effort to prove that ANGR 39-10 conflicted with Department policy: Individuals with serologic evidence of HIV infection and who show no evidence of clinical illness or other indication of immunologic or neurologic impairment related to HIV infection, shall not be separated solely on the basis of serologic evidence of HIV infection. (Emphasis added.) Plaintiffs attempt to use that policy statement to undermine ANGR 39-10 is unavailing, however, because he was a reservist, not on active duty. There is a provision regarding reservists with HIV in each of the memoranda containing that policy statement. The Defense Department policy states that “the Secretaries of the Military Departments may restrict individuals [in the Reserves] with serologic evidence of HIV infection to nondeployable units or positions for purposes of force readiness.” Air Force policy, in turn, states that reservists “shall be transferred to the Standby Reserve, only if they cannot be utilized in the Selected [i.e., Ready] Reserve,” and that the decision regarding fitness for the Selected Reserve must take into account that “military personnel [with HIV] shall only be assigned to nondeployable units and positions.” In this case, plaintiff was not separated solely because of his HIV condition. He was transferred to the Standby Reserve and discharged from PRANG because he tested positive for HIV and there were no compatible, nondeployable positions available. The second prong of plaintiffs argument is that the Secretary of the Air Force allegedly abused his discretion in" }, { "docid": "18873743", "title": "", "text": "Guard positions are classified as deployable. On October 16, 1990, plaintiff was notified that his eligibility for employment as a technician ended when he was discharged from the Guard. Plaintiff was advised that he would be separated from federal employment after November 19, 1990. Plaintiffs requests for revocation of these orders were unavailing. In addition, his application for disability benefits was denied because he was not physically disabled. Thereafter, plaintiff filed suit in the United States District Court for the District of Puer-to Rico, alleging that ANGR 39-10 was invalid, and that his discharge from PRANG and from his technician job violated National Guard regulations, Defense Department policy, and the principles of due process and equal protection. Plaintiff sought reinstatement and back pay for his military and civilian jobs, as well as a declaratory judgment that ANGR 39-10 was invalid. After prevailing in several pretrial skirmishes, plaintiff was ultimately unsuccessful when the court decided his case on the merits. Plaintiff remained asymptomatic at the time of trial. Issues The issues on appeal arise from the trial court’s decision that ANGR 39-10 was valid, and that plaintiffs separation from PRANG and from his federal position did not violate due process and equal protection principles. In addition to assailing several of the court’s factual findings, plaintiff raises the following legal issues: [1] whether the lack of a hearing upon his discharge violated ANGR 39-10 and his right to procedural due process; [2] whether ANGR 39-10 conflicted with Defense Department policy; [3] whether ANGR 39-10 violated his right to equal protection; and [4] whether he was entitled to a hearing before a medical board. II. MERITS Regulations Plaintiff argues that PRANG failed to follow ANGR 39-10 in discharging him. At the time of the discharge, that regulation provided in pertinent part: Members [of the Air National Guard] not entitled to military medical health care who display serologic evidence [of HIV infection] will be transferred to the Standby Reserves if they cannot be used in a non-deployable position. These members will be referred to their private physicians for medical care and counseling. ANGR 39-10" }, { "docid": "3744429", "title": "", "text": "deployable, yet they are allowed to continue in the service. Except for some possible accommodation, the regular Armed forces are none the worse for keeping on these individuals.” Repeated at page 33, Post-Trial Brief. We note, however, that plaintiffs did not raise as an issue in their complaint or present evidence at trial an equal protection claim related to disparate treatment of reservists vis a vis active duty regular military personnel. We, therefore, do not address this matter as it has not been properly raised before. . Plaintiffs emphasize, at page 40 of their Memorandum in Support of Preliminary and Permanent Injunction that the July 2, 1989 memorandum clarifies that memo 89-62 represented \"the current Air Force policy and supersedes all previous documents on this issue and most importantly that this policy applies to the Air National Guard as well____ (Emphasis in original.) Plaintiff cites this with approval. . Paragraph 8-26 states as follows: Procedure: The notification procedure (Chapter 1, Section D) is required for separations. Comply with paragraph 1-23 for involuntary discharges. . The actual August 10, 1990 notification, which forms part of defendant’s Exhibit A, states as follows in pertinent part: SUBJECT: Update on Regulation Corrections; ANGR 39-10 dated 15 Sep 1987. 1. The information in ANGR 39-10, Administrative Separation of Airman, Paragraph 8-26, is no longer applicable and will be changed in the revision of ANGR 39-10. . Doe testified that he believes it was during the August 1990 weekend exercise that he was told by Dr. Agapito Miranda, the base doctor, that he had tested positive for HIV and the information would be passed on to the base commander to take appropriate action. He also advised Doe to see a private doctor, recommending Dr. Valiente. During the weekend exercise of September 1990 he was told that he would be severed from the National Guard. He was told that on a Sunday, and that he had thirty days from Monday to take sick leave and then he would be discontinued from the technician program. . Captain Robinson testified that the necessity of compatibility means that the military" }, { "docid": "3744423", "title": "", "text": "to evaluate plaintiffs’ particular fitness to fill a non-existent job. Moreover, considering that reservists such as Doe who are not on extended active duty do not receive their medical care through the military establishment, the National Guard does not put the reservist to the expense of medical testing for the futile purpose of evaluation by a medical board that would have no position for which to evaluate his fitness. We, therefore, find that the procedure described by Captain Robinson falls within the parameters of the further case-by-case consideration to determine the specific suitability of an individual HIV positive reservist for an available position. Plaintiffs’ allegation that ANGR 39-10, as applied, violates the Department of Defense and Air Force policies prohibiting the use of results obtained from laboratory tests for HIV as the sole basis for the service member’s separation are equally meritless. It is clear from the evidence that John Doe’s separation was based upon the fact that he tested seropositive and a non-deployable position compatible to his could not be found. Moreover, both policies allow for separation as specifically authorized in the corresponding memorandum. In this case, the policy specifically states that reservists not on extended active duty can be involuntarily transferred to the Standby Reserve, if they cannot be utilized in the Selected Reserve. Property Interest in Technician Employment John Doe’s allegation of infringement of his due process rights by PRANG’s failure to give him any hearing or notify him of his right to appeal prior to his dismissal is belied by his lack of a property interest in the technician position he occupied at the time of his separation, pursuant to the basic statutory provision which created the same. Section 2(1) of the National Guard Technicians Act, 32 U.S.C. § 709 at (b) states that: Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, while so employed, be a member of the National Guard and hold the military grade specified by the Secretary concerned for that position. (Emphasis ours.) 32 U.S.C. § 709(e) further states that: Notwithstanding any other provision of law" } ]

[ { "docid": "23154195", "title": "", "text": "that we lack jurisdiction to consider the cross-appeal. The argument is based on the assumption that a cross-appeal is no more than a separate appeal undertaken by one of the' parties below. The syllogism continues that, since the time limit for filing appeals is 60 days after the entry of the decision of the Customs-Court, and Bruckmann filed notice of cross-appeal 68 days after said entry, the separate appeal was untimely and this court lacks jurisdiction over the appeal. We do not agree. The statute gives-us jurisdiction to review “any judgment or order of the Customs Court” once a proper application for such review is filed in the office of the clerk. Of course, only those parties to a proceeding in the Customs Court who' appeal are able to improve their legal position. While our rules do- not, of course, provide for appeals or cross-appeals, they do contemplate cross-appeals; consequently, Rule 1.4(a), making the Federal Rules of Appellate Procedure applicable in this court in certain situations is pertinent here. Rule 4(a) of the Federal Rules of Appellate Procedure states, in part, that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed.” The cross-appeal was timely filed. Consequently, the cross-appeal is properly before us. il: Nonetheless, Bruckmann’s argument in the cross-appeal that the stems of the lamps should be classified under item 652.93 is not persuasive. This classification falls under the dominant heading (652.92 TSUS) “Columns, pillars, posts, beams, girders and similar structural units.” These articles must be parts of structures. A complete definition of “structural” or “structure” is not to be found. An adequate point of departure is found in Simon, Buhler & Baumann (Inc.) v. United States, 8 Ct. Cust. Appls. 273, 276, T.D. 37537 (1918), as follows: Ordinarily speaking, “structure” carries with it the idea’ of size, weight, and strength, and it has come to mean anything composed of parts capable of resisting heavy weights or strains and artificially joined together for" } ]

[ { "docid": "8682555", "title": "", "text": "for in former Rule 73(a). See note 8, supra, and accompanying text. In related contexts, the Supreme Court has consistently rejected these or similar arguments. See Torres, 487 U.S. at 313-14, 108 S.Ct. at 2407-08; Budinich, 486 U.S. at 201, 108 S.Ct. at 1722; Griggs, 459 U.S. at 60, 103 S.Ct. at 403. The final and most frequently invoked justification for the “rule of practice” approach to cross-appeals is that the initial appellant’s notice of appeal gives the court of appeals jurisdiction over the whole case, so notice of appeal by any other party is not a necessary precondition to exercise appellate power or jurisdiction to modify the judgment in a manner adverse to the appellant. However, as pointed out above, this approach ignores the reason for the 1966 addition of the extra fourteen days for cross-appeal by clause (3) of former Rule 73(a) and is likewise inconsistent with the treatment in former Rule 73(a), and now in Fed. R.App. P. 4(a), of the “cross appeal” time limits in the very same way as the initial appeal time limits, except for the extra fourteen days allowed for the “cross-appeal.” Nor does this approach account for the provision in the second paragraph of former Rule 73(a), now in Fed. R.App. P. 3(a), that “failure of an appellant to take any steps other than the timely filing of a notice of appeal does not affect the validity of the appeal” (emphasis added). This provision was plainly as applicable to appeals under clause (3) of the first sentence of former Rule 73(a) as to appeals under the other provisions of that sentence, just as it is now as applicable to Fed. R.App. P. 4(a)(3) as to Fed. R.App. P. 4(a)(1). Further, the rule of practice approach cannot reasonably account for the provisions of Fed. R.App. P. 26(b)— formerly contained in Fed.R.Civ.P. 6(b)— prohibiting enlargement of the fourteen-day period specified in Fed. R.App. P. 4(a)(3) (and previously in former Rule 73(a)) or the fact that the flexibility authorized to the courts of appeal by Fed. R.App. P. 2 is expressly made subject to this" }, { "docid": "3633307", "title": "", "text": "ON MOTION FOR RECONSIDERATION PER CURIAM: This case raises the question whether the “unique circumstances” doctrine may be invoked to excuse a party’s failure to file a timely, notice of appeal, where the party missed the applicable deadline by relying on erroneous information received from clerk’s office staff. Because we conclude that the unique circumstances exception applies only where a party who could have filed a timely notice of appeal is lulled into missing the deadline by a formal court order or ruling, containing specific assurances that • action which extends or postpones the deadline has properly been taken, we are obliged to dismiss this appeal for lack of jurisdiction. I. Howard Moore, proceeding pro se, filed suit in the district court against his employer, a Greenwood, South Carolina packing plant, and several South Carolina governmental agencies. The district court dismissed the complaint for lack of subject matter jurisdiction. Thirty-nine days after the order dismissing Moore’s complaint had been entered on the district court’s docket, Moore filed a notice of appeal. Because no federal agency or officer had been a party to the action, the notice of appeal should have been filed within thirty days after entry of the district court’s order. See Fed. R.App. P. 4(a)(1). Unaware that his notice of appeal was untimely, Moore did not move the district court for an extension of the notice deadline, as is permitted by Fed. R.App. P. 4(a)(5). Shortly after the time for seeking an extension of the notice period had passed, this court ordered Moore to show cause why his appeal should not be dismissed for lack of jurisdiction. Moore claims in response that he failed to file his notice of appeal within thirty days after entry of the district court’s order, because a staff person in the district court clerk’s office told him he had sixty days within which to file his notice, based on the fact that a government agency was among the parties to the suit. Taking Moore’s allegations as true, they nonetheless are insufficient to permit this appeal to proceed. II. In general, the time limit" }, { "docid": "8682549", "title": "", "text": "3 and Rule 4; rather it treats the requirements of the two Rules as a single jurisdictional threshold.” Torres 487 U.S. at 314, 108 S.Ct. at 2408. Clause (3) of the first sentence of former Rule 73(a) merely extends the otherwise applicable and jurisdictional thirty-day period provided in the initial clause of the sentence by up to fourteen days, just as clause (1) employs a sixty-day period for cases in which the United States is a party. There is simply nothing in the wording or structure of the first sentence of former Rule 73(a) to suggest that the time limit of its clause (3) was any less mandatory and jurisdictional than any of the other time limits specified in that sentence. Indeed, the history of the adoption of clause (3) of former Rule 73(a) clearly reflects that it was intended to allow the fourteen additional days following timely appeal by another party in order to avoid the jurisdictional dismissal which otherwise ensued when an appellee waited to see if another party would appeal, but the other party did not do so until the last day, so the appellee was only able to file his notice of cross-appeal after the thirty days had expired. It might be argued that the “cross-appeal” provision — clause (3) of the first sentence of former Rule 73(a) and its successor, Fed. R.App. P. 4(a)(3) — merely affords a “safe harbor,” so that a party who complies therewith, after another party has timely appealed, has the right to seek a modification in his favor of the judgment below without being subject to any “rule of practice” limitation on that right. Such an argument, however, illogically treats this “cross-appeal” time limit differently from the other notice of appeal time limits specified in the same rule. Moreover, it ignores the provisions of the second paragraph of former Rule 73(a) — now carried forward as the third sentence of Fed. R.App. P. 3(a) — that “failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of" }, { "docid": "3763675", "title": "", "text": "lost his case on summary judgment. He filed a notice of appeal fifty-one days later. Appellee argues that we must dismiss the appeal for lack of jurisdiction, because it was filed late. The issue of whether in a qui tam ease a notice of appeal is controlled by the usual thirty day rule, or by the sixty day rule for eases in which the United States is a party, is of first impression. The answer depends on whether the United States should be considered a “party” for purposes of Rule 4(a)(1). The United States filed a notice before us stating that “the United States is not a party to the appeal and will not be appearing for oral argument,” and attached a copy of its notice to the district court declining to intervene. The controlling rule makes the choice of time period depend on whether the United States “is a party”: ... the notice of appeal required by Rule 3 must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry. Fed. R.App. P. 4(a)(1). Reasonable people could go either way on whether the United States is a party, and have. We have a choice between an intercir-cuit conflict, and some tension with our own established circuit law. The 10th Circuit has held, over a dissent, that once the government elects not to take over the case, the thirty day appeal period applies. United States ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F.2d 1327 (10th Cir.1978). We have held that in a Miller Act case, the sixty day period applies because the action must be brought “in the name of the United States.” 40 U.S.C. § 270a. United States ex rel. Custom Fabricators, Inc. v. Dick Olson Constructors, Inc., 823 F.2d 370, 371 (9th Cir.1987). It does not matter much whether the unsuccessful" }, { "docid": "6052678", "title": "", "text": "Landers, 14 M.J. 150 (C.M.A.1982) (misunderstanding that may have been caused by the change of the statutory filing period from thirty to sixty days); United, States v. Mills, 12 M.J. 225, 227 (C.M.A.1982) (“misunderstanding directly or indirectly engendered by those responsible for serving upon him the decision of the Court of Military Review”). As those cases indicate, the court viewed the statutory filing period as nonjurisdictional even after Article 67, UCMJ, was amended in 1981 to extend the filing period to sixty days and to provide for constructive service of Court of Criminal Appeals’ decisions. See Military Justice Amendments of 1981, Pub.L. No. 97-81, § 5, 95 Stat. 1085, 1088-89 (1981) (Article 67(c)). Most recently, in Tamez the court reiterated that “the time limits in Article 67, UCMJ, are not jurisdictional” and that the court could exercise its discretion to accept untimely petitions for grant of review “for good cause shown.” 63 M.J. at 202. However, in 2007 the United States Supreme Court changed the analytical landscape in terms of evaluating the jurisdictional significance of filing deadlines in appellate practice. In Bowles the Supreme Court considered Fed. R.App. P. 4(a)(1)(A), based upon 28 U.S.C. § 2107(a), and Fed. R.App. P. 4(a)(6), based upon 28 U.S.C. § 2107(e). 127 S.Ct. at 2362-63. Respectively, those rules provide that a civil litigant has thirty days to file a notice of appeal after entry of final judgment by a Federal District Court and that a District Court could extend the filing period for fourteen days. Nonetheless, the District Court in Bowles extended the filing period for seventeen days rather than the fourteen days permitted by Fed. R.App. P. 4(a)(6). Id. at 2362. When Bowles filed his notice of appeal, he did so outside the rule’s fourteen day period but within the seventeen days encompassed by the District Court’s order. Id. The Supreme Court concluded that Bowles’ untimely notice of appeal “deprived the Court of Appeals of jurisdiction.” Id. at 2366. The Supreme Court held that where a limitation is derived from a statute “the taking of an appeal within the prescribed time is ‘mandatory" }, { "docid": "19010778", "title": "", "text": "proceeding is the sole proceeding before the district court, an order of civil contempt finding a party in contempt- of a prior final judgment and imposing sanctions is a final decision under section 1291.” Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). The order is final for purposes of section 1291 “[ejven though the size of the sanction imposed by the order depends upon the duration of contumacious behavior occurring after entry of the contempt order, .... ” Id. Thus, the contempt order in this case is appealable. -However, the filing of a timely notice of appeal is “mandatory and jurisdictional....” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960). MTI alleges that the shareholders did not file a timely notice of appeal. Federal Rule of Appellate Procedure 4(a) states that notice of appeal “shall be filed with the clerk of the district court within 30 days after ... entry of the ... order appealed from.....” Fed.R.App.P. 4(a)(1). The order appealed from was entered December 31, 1984, and MTI argues that since notice of appeal was not filed until February 8, 1985, well past the thirty day limit, it was untimely. Generally, an notice of appeal must be filed within thirty days. However, under the circumstances of this case, the shareholders had fourteen days after Crystal Palace filed its appeal to file their notice of appeal. Federal Rule of Appellate Procedure 4(a)(3) states: [1]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. The clear language of this rule indicates that this fourteen day period applies to “any other party” to a lawsuit. It does not distinguish between appellants and ap-pellees. This was the viewpoint of those who drafted the rule. The 1966' committee note to this subsection states: [t]he added time which may be made available by the operation of the" }, { "docid": "21379972", "title": "", "text": "provides that Molitor take nothing by his complaint; that the complaint be dismissed with prejudice; that the United States take nothing by way of its counterclaim and that the counterclaim be dismissed with prejudice. Judgment further provided that Molitor is not and shall not be obligated to the Government of the United States for the balance of the penalty assessment made against Molitor by the Government, and that any liens based thereon be and are declared to be null and void. On May 14, 1963, the United States filed its notice of appeal from the judgment entered on the 15th day of March, 1963, and on May 21, 1963, Molitor filed his cross-appeal from said final judgment. Because Molitor’s cross-appeal was filed more than sixty days after entry of judgment, we will first consider the contention of the United States that this court is without jurisdiction over the cross-appeal because the same was untimely filed. Rule 8(1), rules of this Court, provides that the Federal Rules of Civil Procedure, whenever applicable, are hereby adopted as part of the rules of this Court. Rule 73(a), Rule of Civil Procedure, in relevant part provides that when an appeal is permitted by law from a District Court to the Court of Appeals, the time within which the appeal may be taken shall be thirty days from the entry of the judgment appealed from, unless a shorter time is provided by law, except that in any action in which the United States is a party, the time as to all parties shall be sixty days from such entry. Sixty days from the entry of judgment in the instant case expired on May 14, 1963, and seven days before Molitor filed his cross-appeal. The rea sons set forth by Molitor in his brief for failure to file his cross-appeal within the sixty day period are: “In the Molitor case, the Government filed its notice of appeal on the sixtieth day. No notice of appeal had been filed by Molitor. The reason for this was, that, although Molitor was not in full accord with the decision" }, { "docid": "23154207", "title": "", "text": "his concurring opinion are persuasive'. Bruckmann’s cross-appeal should be dismissed as untimely under 28 USC 2601. Rule 4(a) of the Federal Rules of Appellate Procedure does not apply to appeals from the Customs Court, but specifically ¡applies to appeals “from a district court,” thus: (a) Appeals in Civil Cases. In a civil case ... in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal.required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a' party, the notice of appeal may be filed by any party within 60 days of such entry. If a timely notice of appeal is filed by a party* any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires. Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time bas expired, it shall be made by motion with such notice as the court shall deem appropriate. [Emphasis added.] Therefore, the matter quoted by the majority opinion relating to the-14-day period following the filing of the first notice of appeal is not -applicable to an appeal from the Customs Court. Even though, as the majority opinion- states, the CCPA rules-“contemplate cross-appeals,” a CCPA rule cannot enlarge the statutory period provided by 28 USC 2601. Fed. R. App. P. 26(b); Seneca Grape Juice Corp. v. United States, 61 CCPA 118, 492 F. 2d 1235 (1974)." }, { "docid": "23082185", "title": "", "text": "its brief, if the cross-appellees’ arguments were to become established procedure, “there would be a race by the parties in each case from the courtroom to the clerk’s office to see who, by filing [a notice of appeal] first, could deprive the other of the right to ... request reconsideration.” For this reason we do not follow the Eleventh Circuit’s holding in United States v. Rogers, 788 F.2d 1472 (11th Cir.1986), upon which cross-appellees rely with respect to this issue. In Rogers, the criminal defendant filed a timely notice of appeal. Thereafter, within the thirty day period during which a cross-appeal could be filed under Federal Rule of Appellate Procedure 4(b), the Government instead filed a motion for reconsideration in the district court. The Eleventh Circuit refused to hold that the filing of the motion stopped Rule 4(b)’s thirty-day clock from running until the district court denied the motion for rehearing. Because the Government had given notice of its cross-appeal more than thirty days after the defendant’s notice of appeal, the Eleventh Circuit held that the cross-appeal was untimely and that the appellate court had no jurisdiction. See id. at 1475. We note that the Rogers court, in reaching its decision that “[t]he filing of the notice of appeal ... divest[ed] the district court of jurisdiction” to rule on the motion for reconsideration, id., never cited Healy or any of its progeny. Contrary to Rogers, we hold that the Rule 4(b) of the Federal Rules of Appellate Procedure was not activated with respect to the Government’s right to cross-appeal until the district court denied the Government’s motion to reconsider. The Government thus filed its notice of cross-appeal within the thirty-day period required by Rule 4(b). ii. Rule 35(a) and the authority of a trial court to correct sentencing errors prior to remand after appeal Even though we hold that cross-appel-lees’ notices of appeal did not divest the district court of jurisdiction, we still must determine whether the district court possessed any authority to correct cross-appel-lees’ sentences, assuming that they were illegally imposed as the Government claims. The cross-appellees contend that" }, { "docid": "22567536", "title": "", "text": "W was sufficient notice to Sentinel. The court determined that no such notice was made until the court determined that Sentinel and B & W were members of a controlled group. In its cross-appeal, No. 85-5417, Sentinel argues that the district court erred by not granting summary judgment in its favor and by concluding that Sentinel and B & W were members of a controlled group under 29 U.S.C. § 1301(b). Because both parties contend that they were entitled to summary judgment on these issues as a matter of law, review is plenary. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 574 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). B & W also filed a cross-appeal, No. 85-5429, challenging the district court’s judgment against it for the full amount of withdrawal liability. However, because we find that appeal untimely, we will not address the merits. III. We first address B & W’s cross-appeal at No. 85-5429. The district court entered its order granting judgment against B & W on May 20,1985. The Fund filed its appeal on June 7, 1985. Two cross-appeals followed. Sentinel filed its cross-appeal thirteen days later. B & W, however, did not file its appeal until June 25, 1985, 35 days after the original order was entered, and 18 days after the Fund filed its notice of appeal. Rule 4(a)(1), F.R.A.P., allows a thirty day period for filing appeals after “the entry of the judgment or order appealed from.” Once any party files a timely appeal, “any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a) [30 days], whichever period last expires.” Rule 4(a)(3), F.R.A.P. (emphasis supplied). Because the Fund filed its notice, the first notice of appeal, on June 7, 1985, the original thirty day period for appeals expired on June 19, 1985. Yet the fourteen day period allowed for filing cross-appeals expired two days later, on June 21, 1985. B &" }, { "docid": "7624625", "title": "", "text": "OPINION PER CURIAM: After an appeal had been timely filed by the non-government defendants from a case in which the United States was a codefendant, a cross appeal was filed by the plaintiffs. The United States did not appeal. The plaintiffs’ cross appeal was filed more than thirty days, but within sixty days, after judgment was entered. Because the United States has not appealed, the defendants-appellants move to dismiss the cross appeal on the ground that the plaintiffs did not timely file their appeal. The motion is predicated on the thesis that the single suit below involved two class actions, the United States was a party to only one of these, and the cross appeal was, therefore, untimely because it concerns only the cause of action in which the United States has no interest. The logic of this argument is at best strained. Rule 4 of the Federal Rules of Appellate Procedure is clear: it fixes the time for filing an appeal by any party to an action to which the United States is also a party. We see no reason to further complicate the already difficult task of attempting to determine the timeliness of appeals by requiring that timeliness be determined separately on the basis of which party is concerned with each issue. Therefore, the motion to dismiss is denied. Rule 4(a)(1) of the Federal Rules of Appellate Procedure provides in part: “In a civil case ... if the United States ... is a party, the notice of appeal may be filed by any party within 60 days after [the date of entry of the judgment or order appealed from].” Defendants-appellants base their motion to dismiss the plaintiffs’ cross appeal on Virginia Land Company v. Miami Shipbuilding Corporation in which we held that the thirty-day period within which private parties must appeal from a judgment applied to an appeal from an interlocutory order “with which the United States [though a party to the action] had no concern.” We reasoned that simply because “the United States was a party to the proceeding below” did not make the sixty-day limit applicable." }, { "docid": "19010779", "title": "", "text": "1984, and MTI argues that since notice of appeal was not filed until February 8, 1985, well past the thirty day limit, it was untimely. Generally, an notice of appeal must be filed within thirty days. However, under the circumstances of this case, the shareholders had fourteen days after Crystal Palace filed its appeal to file their notice of appeal. Federal Rule of Appellate Procedure 4(a)(3) states: [1]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. The clear language of this rule indicates that this fourteen day period applies to “any other party” to a lawsuit. It does not distinguish between appellants and ap-pellees. This was the viewpoint of those who drafted the rule. The 1966' committee note to this subsection states: [t]he added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords. Leading commentators have stated that this rule “permits any party to the action ... such added time as the sentence affords.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 204.11[1] (2d ed. 1986) (emphasis added); see also id. at ¶ 203.25[3]. The appeal by the shareholders was filed within eight days of the initial appeal by Crystal Palace. Thus, even though thirty days had passed since the final judgment, the shareholders’ appeal was timely, pursuant to Fed.R.App.P. 4(a)(3). Thus, we have jurisdiction over the shareholders’ appeal. Ill STANDARD OF REVIEW “A court has wide latitude in determining whether there has been contemptuous defiance of its order,” and we review a lower court’s decision to impose sanctions for contempt" }, { "docid": "17858944", "title": "", "text": "statutory penalty of $1,000 to be divided between them, costs of $20.16, and attorney’s fees of $1,930.00. This appeal and cross-appeal followed. II On our own motion, we raised the question of the timeliness of the cross-appeal. The summary judgment order was filed in the clerk’s office on November 18,1980. It was entered on the court’s civil docket on November 28. Defendant’s notice of appeal was filed on December 4 and plaintiffs’ notice of cross-appeal was filed on December 19. The rules concerning notices of appeal in civil cases are provided by Rules 3 and 4(a) of the Federal Rules of Appellate Procedure. Rule 3 provides that an appeal is perfected by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. Rule 4(a)(1) requires that a notice of appeal be filed within 30 days of entry of the judgment or order appealed from. However, Rule 4(a)(3) provides alternative time periods for filing cross-appeals. If a timely notice of appeal is filed, any other party may file a notice of appeal within 14 days after filing of the first notice of appeal, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. Rule 4(a)(3), F.R.A.P. The timeliness of plaintiffs’ notice of cross-appeal turns on whether the time began to run from the date of filing of the summary judgment order, or from the entry of the order on the civil docket. If the former date controls, the notice of cross-appeal was untimely. However, we are persuaded that the time period is computed from the order’s entry on the civil docket, and not the date of its filing so that the notice of the cross-appeal was timely. With respect to the interpretation of Rule 4, F.R.A.P., 9 Moore’s Federal Practice ¶ 204.03 states that the “time for appeal commences to run from the date on which the judgment that has thus been set forth in a separate document is entered on the civil docket.” See also Rules 58 and 79(a), F.R.Civ.P. This date of entry of the order" }, { "docid": "8682538", "title": "", "text": "development of the relevant Federal Rules is helpful. Morley was handed down in early 1937. In December 1937, the Supreme Court adopted what are now the Federal Rules of Civil Procedure. Rule 73 governed the mechanics of taking an appeal, including the form of notice of-appeal, but did not initially provide any time limits for appealing, which were covered by statute. In 1946, Rule 73(a) was amended by, inter alia, prescribing a thirty-day period (sixty days if the United States were a party) in which an appeal could be taken (this operated to shorten the time allowed, which had generally been three months). 9 Moore’s Federal Practice (2d ed.), ¶¶ 203.22, 203.24[1], [2], 203.25[1]. In, 1966, Rule 73(a) was again amended to provide, for the first time, an additional period for an appeal taken after an appeal by another party. Id. ¶ 203.24[2]. As amended in 1966, and as in effect when replaced by the new Rules of Appellate Procedure in 1968, the first sentence of Rule 73(a) provided: “(a) How and When TaKEN. An appeal permitted by law from a district court to a court of appeals shall be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from, except that: (1) in any action in which the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days from such entry; (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; (3) if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise herein prescribed, whichever period last expires; (4) an appeal, by permission of a court of appeals obtained under Title 28, U.S.C. § 1292(b) shall be" }, { "docid": "10898328", "title": "", "text": "PER CURIAM. This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of these appeals. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The causes are therefore ordered submitted without oral argument. These cases are cross-appeals taken following the appeal filed by plaintiff, Leon H. Savage, our No. 83-1950. The court directed the defendant cross-appellants (Nos. 83-1982 and 83-2019) to advise us why the cross-appeals should not be dismissed for lack of jurisdiction based on untimely filed notices of cross-appeal. Plaintiff filed a timely appeal from the final judgment underlying this case with the clerk of the district court on July 20, 1983. Although it is unclear whether the plaintiff in fact served copies of the notice of appeal on the defendants, both defendants state that the clerk sent copies of the notice of appeal, as required under Fed.R.App.P. 3(d). Each defendant further states that plaintiffs notice of appeal was received on July 22. Defendant Cache Valley Dairy Association filed its notice of appeal on August 4, 1983. Utah Dairy Commission filed its notice of appeal on August 8, beyond both the fourteen-day period for filing cross-appeals and the thirty-day period after the final judgment was entered. Fed.R.App.P. 4(a). Although the appeal in No. 83-1982 was filed beyond the fourteen-day time limit for filing cross-appeals, the notice was filed within thirty days of the judgment. Thus the appeal was filed “within the time otherwise prescribed by this Rule 4(a), whichever period last expires,” Fed.R. App.P. 4(a)(3), and is timely for that reason only. Defendant Cache Valley argues that it is entitled under Fed.R.App.P. 26(c) to an additional three days because the notice of appeal was mailed. This contention is plainly without merit. Fed.R.App.P. 26(c) only applies when the time period to do an act runs from the time of service of notice. However, under Fed.R.App.P. 4(a)(3), a cross-appeal must be filed within fourteen days from the date on which the first notice of appeal is filed, not from the date on which the notice is served. Thus Rule 26(c) does not apply to" }, { "docid": "7624626", "title": "", "text": "a party. We see no reason to further complicate the already difficult task of attempting to determine the timeliness of appeals by requiring that timeliness be determined separately on the basis of which party is concerned with each issue. Therefore, the motion to dismiss is denied. Rule 4(a)(1) of the Federal Rules of Appellate Procedure provides in part: “In a civil case ... if the United States ... is a party, the notice of appeal may be filed by any party within 60 days after [the date of entry of the judgment or order appealed from].” Defendants-appellants base their motion to dismiss the plaintiffs’ cross appeal on Virginia Land Company v. Miami Shipbuilding Corporation in which we held that the thirty-day period within which private parties must appeal from a judgment applied to an appeal from an interlocutory order “with which the United States [though a party to the action] had no concern.” We reasoned that simply because “the United States was a party to the proceeding below” did not make the sixty-day limit applicable. The Virginia Land Company decision, however, addressed only an appeal from an interlocutory order that did not affect the United States. In this case there was but one final judgment. That judgment fired the starting gun for all appeals. Even he who runs may read that Rule 4(a)(1) extends sixty days to all parties for an appeal from such a final judgment, because, as the Advisory Committee Notes state, “it would be unjust to allow the United States ... extra time and yet deny it to other parties in the case.” The rule therefore “gives all parties sixty days.” “It is immaterial,” Moore’s Treatise states, “that the government is not a party or is not interested in the appeal that is actually taken.” Determining whether the thirty or sixty-day time period should apply based on whether the government is interested in the particular issue involved in the appeal, Moore’s Treatise continues, “introduces an element of uncertainty on the very critical, because regarded as jurisdictional, area of the time for appeal, and it ought not find" }, { "docid": "8682542", "title": "", "text": "by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry.... (2) [premature notice of appeal] ... (3) If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. (4) If any party files a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.... (5) The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).... No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later. (6) [allowing 14-day reopening of appeal period where party does not receive notice within 21 days after entry of judgment, provided motion made within 180 days of entry or 7 days of notice, whichever first] (7) [entry of judgment defined] ...” As can be seen, current Rule 4(a)(3) is virtually identical to clause (3) of former Rule 73(a) as amended in 1966. The Committee Note respecting the 1966 amendment adding clause (3) to Rule 73(a) explains: “The exception number (3) in the first sentence affords additional time for appeal to all parties other than an initial appellant whenever the first appeal taken from a judgment is taken within the 14 days preceding expiration of the time for" }, { "docid": "22567537", "title": "", "text": "& W on May 20,1985. The Fund filed its appeal on June 7, 1985. Two cross-appeals followed. Sentinel filed its cross-appeal thirteen days later. B & W, however, did not file its appeal until June 25, 1985, 35 days after the original order was entered, and 18 days after the Fund filed its notice of appeal. Rule 4(a)(1), F.R.A.P., allows a thirty day period for filing appeals after “the entry of the judgment or order appealed from.” Once any party files a timely appeal, “any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a) [30 days], whichever period last expires.” Rule 4(a)(3), F.R.A.P. (emphasis supplied). Because the Fund filed its notice, the first notice of appeal, on June 7, 1985, the original thirty day period for appeals expired on June 19, 1985. Yet the fourteen day period allowed for filing cross-appeals expired two days later, on June 21, 1985. B & W’s notice of appeal, filed June 26,1985, was therefore five days late and will be dismissed as untimely. IV. Both B & W and Sentinel appeal from the district court’s final order of May 20, 1985, which: (1) confirmed its earlier order finding Sentinel and B & W to be brother-sister controlled corporations; (2) denied the Fund’s motion for summary judgment against Sentinel; and (3) granted Sentinel’s motion to compel arbitration. Because the district court compelled arbitration, its order is reviewable as a final judgment under 28 U.S.C. § 1291. See United Steelworkers v. American Smelting and Refining Co., 648 F.2d 863, 866 (3d Cir.1981) (citing Goodall-Sanford, Inc. v. United Textile Workers, Local 1802, 353 U.S. 550, 551-52, 77 S.Ct. 920, 921, 1 L.Ed.2d 1031 (1957)). A. ERISA incorporates the Internal Revenue Code’s “controlled group” standards for determining whether two related corporations are within a controlled group and therefore deemed to be a single employer. 29 U.S.C. § 1301(b). The district court found that B & W and Sentinel were brother-sister controlled groups under 26" }, { "docid": "9733081", "title": "", "text": "to perform an act when the act is to take place “within a prescribed period after service of a paper upon him . ... ” (emphasis added). Rule 4(a)(3), however, does not require that a party file a cross-appeal within 14 days after service on him of notice of filing of the original notice of appeal. Instead, Rule 4(a)(3) requires the cross-appellant to file his notice “within 14 days after the date on which the first notice of appeal was filed....” (emphasis added). ■ This Court has held that Fed.R.App.P. 26(c) and Fed.R.Civ.P. 6(e) do not extend a party’s time to file a notice of appeal when that party has received notice of the entry of the district court’s judgment in the mail. Reynolds v. Hunt Oil Co., 643 F.2d 1042, 1043 (5th Cir.1981); Lashley v. Ford Motor Co., 518 F.2d 749 (5th Cir.1975). See also Clements v. Florida East Coast Railway Company, 473 F.2d 668 (5th Cir.1973) (holding that although party received order in the mail, Fed.R.Civ.P. 6(e) did not extend party’s time to comply with order which required party to pay costs “within ninety days from the date hereof.... ”). The Court in those cases determined that the language of Fed.R.App.P. 26(c) and Fed.R. Civ.P. 6(e) does not apply because the period within which an appealing party must file runs from “the entry of the judgment” and not from the service of the notice of the entry. The rationale is equally applicable to a party who is filing a cross-appeal, since the Rules state that the fourteen day period in which the cross-appeal must be filed runs from “the date on which the first notice of appeal was filed” rather than from the service of the notice. Accordingly, we hold that Fed.R.App.P. 26(c) did not extend the time in which Welsh had to file his notice of appeal. His cross-appeal was correctly dismissed as untimely. Accordingly, Welsh’s petition for rehearing is DENIED. . Elevating Boats, Inc. has not filed a petition for rehearing. . Specifically, Rule 3(d) states: “The clerk of the district court shall serve notice of" }, { "docid": "21722570", "title": "", "text": "Indeed, if we had jurisdiction, I could agree with it entirely. I respectfully dissent, however, from the holding that we have appellate jurisdiction over Danon’s appeal under an equitable exception to rule 4(a)(5), Fed.R.App.P. I would find no appellate jurisdiction over the appeal from the first order for lack of timeliness, but I would affirm Judge Marshall’s order on the rule 60(b), Fed.R.Civ.P., motion for reconsideration. I Rule 4(a)(1), Fed.R.App.P., provides that appeals may be taken by nongovernmental parties in civil actions only if a notice of appeal is filed with the district court clerk within 30 days after entry of the order or judgment from which the appeal is taken. The rule also provides for an extension period. Rule 4(a)(5) states in part: The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).... No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion [to extend], whichever occurs later. (emphasis added). The district court entered the order dismissing Danon’s action with prejudice on May 31, 1983. Both the combined motion for extension and reconsideration and the district judge’s order granting the motion were filed on June 29, within the initial 30-day filing period prescribed by rule 4(a)(1). However, instead of granting the 30 days allowed by rule 4(a)(5), the judge granted a 60-day extension. On August 29, the district court denied the motion for reconsideration and granted Danon an additional 10 days within which to file his appeal from the dismissal, pursuant to what the district court referred to as “the stipulation.” The stipulation clearly refers to the June 29 order, on which the typed 30-day period was crossed out in ink and replaced by a handwritten “60,” with the notation “by stipulation of parties,” and initialed by the parties and the judge. Thus, Judge Marshall effectively granted a 70-day extension within which Danon" } ]

[ { "docid": "3194497", "title": "", "text": "indeed be necessary. We also note that Virginia’s sister state, South Carolina, has enacted an Uninsured Motorists Act, modeled after the Virginia Act, which contains provisions, including a John Doe procedure, identical to the Virginia Act in all respects material to the present case. Although the courts of that state have not passed upon the identical question involved here, there is no doubt that they view a judgment against the motorist as necessary to a suit against the insurer on the contract. For example, in Laird v. Nationwide Ins. Co., the Supreme Court of South Carolina stated: “Recovery under the uninsured endorsement is subject to the condition that the insured establish legal liability on the part of the uninsured motorist. Such an action is one ex delicto and the only issues to be determined therein are the liability and the amount of damage. After judgment is entered against the uninsured motorist, a direct action ex contractu can be brought to recover from the insurance company on its endorsement, and policy defenses may be properly raised by the insurance company. Doe v. Brown, 203 Va. 508,125 S.E.2d 159; Rodgers v. Danko, 204 Va. 140, 129 S.E.2d 828.” And in Vernon v. Harleysville Mut. Cas. Co., the obligation of the insurance company under the statute was characterized as follows: “[T]he endorsement guarantees payment, within specified limits, of a judgment recovered against an uninsured motorist on his tort liability.” Language reflecting this same conception of the operation of the act can be found in many other opinions. Absent any definitive pronouncement of the Virginia courts settling the issue posed herein, we are constrained to think that they would hold that recovery under the Virginia Act and thus under the endorsement requires that the insured first obtain judgment against the uninsured motorist. Hence the judgment of the United States District Court for the Eastern District of Pennsylvania dismissing the appellant’s action on the pleadings will be affirmed. . Va.Code Ann. § 38.1-381, as amended (Supp. 1965). . 251 F.Supp. 318 (E.D.Pa.1966). . Va.Code Ann. § 38.1-381 (b). . The assumption that such a suit" } ]

[ { "docid": "12325580", "title": "", "text": "J. SPENCER BELL, Circuit Judge: This case involves the interpretation of the Virginia Uninsured Motorist statute, Va.Code Ann. § 38.1-381(b-h) (Supp. 1964), and an insurance policy issued thereunder. Plaintiff was covered by an uninsured motorist endorsement as required by subsection (b). The car in which she was riding was negligently struck by a nonresident motorist carrying insurance providing for $10,000 coverage for one person. By the terms of the statute a vehicle is uninsured if it is covered by less than $15,000 insurance for a single person. Va.Code Ann. §§ 88.1-381 (c) and 46.1-1(8). Plaintiff secured a judgment against the uninsured motorist for $22,000. She then instituted suits against Allstate Insurance Company, the insurer of the negligent driver, and Nationwide Mutual Insurance Company, her own insurer. These suits were removed to the federal court and consolidated. Allstate paid into the court $10,000, the limit of its liability policy, which was paid to the plaintiff. The Nationwide policy provided for an exposure of $15,000 for one person. The district court ordered Nationwide to pay $12,000, the remaining amount unpaid of Mrs. White’s judgment. Of this Nationwide has tendered $5,000, claiming that its exposure is reduced by the amount of payment already received. The question here is whether payments made by or on behalf of an uninsured motorist should be applied first to reduce the liability of the insurance carrier or should be applied first to reduce the loss of the injured party. We hold that they should first reduce the loss of the injured party. Jurisdiction in this case is grounded upon diversity of citizenship. We are, therefore, bound by the decisions of the Supreme Court of Appeals of Virginia. We find the interpretation of the intent of the uninsured motorist statute contained in Bryant v. State Farm Mut. Auto. Ins. Co., 205 Va. 897, 140 S.E.2d 817 (1965), to be controlling. Contrary to decisions in other states interpreting similar statutes, see e. g., Maryland Casualty Co. v. Howe, 106 N.H. 422, 213 A.2d 420 (1965), and Burchram v. Farmers Ins. Exc., 255 Iowa 69, 121 N.W.2d 500 (1963), that the" }, { "docid": "5853076", "title": "", "text": "549 P.2d 1354 (1976). Other courts have also interpreted the phrase “legally entitled to recover” to indicate merely that the plaintiff has the burden of proof in the direct action. See State Farm Mutual Auto. Ins. Co., Inc. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973); Transnational Ins. Co. v. Simmons, 19 Ariz.App. 354, 507 P.2d 693 (1973); Lane v. State Farm Mutual Auto. Ins. Co., 209 Neb. 396, 308 N.W.2d 503 (1981); Guess v. Gulf Ins. Co., 96 N.M. 27, 627 P.2d 869 (1981). Other courts, while not discussing this particular phrase, have held that direct actions are generally available against the uninsured motorist liability carrier. See Cline v. Aetna Ins. Co., 317 F.Supp. 1229 (S.D.Ala.1970) (applying Alabama law); Cobb v. State Security Ins. Co., 576 S.W.2d 726 (Mo.1979) (plaintiff merely carries the burden of proof in the direct action); Puckett v. Liberty Mutual Ins. Co., 477 S.W.2d 811 (Ky.1972) (in that the value of the claim against the uninsured driver is usually worthless, the insured party’s right to sue will be placed above the dubious value of the insurer’s right of subrogation); Traveler’s Indemnity Co. v. Mongiovi, 135 N.J.Super. 452, 343 A.2d 750 (1975) (plaintiff must only demand payment and discover that other driver is uninsured in order to sue directly); Associated Indemnity Corp. v. Cannon, 536 P.2d 920 (Okl.1975) (citing Winner v. Ratzlaff, supra ); and Wood v. Millers National Ins. Co., 96 N.M. 525, 632 P.2d 1163 (1981). But see Logan v. Aetna Casualty & Surety Co., 309 F.Supp. 402 (S.D.Miss.1970); Smith v. Phillips, 172 Ga.App. 459, 323 S.E.2d 669 (1984); Levy v. American Automobile Ins. Co., 31 Ill.App.2d 157, 175 N.E.2d 607 (1961); Wheeler v. Hartford Accident & Indemnity Co., 560 S.W.2d 816 (Ky.1978); Willard v. Aetna Casualty & Surety Co., 213 Va. 481, 193 S.E.2d 776 (1973). Several recent pronouncements from the Nevada Supreme Court indicate that it would follow the Winner case if it were to decide this question. In Ippolita v. Liberty Mutual Ins. Co., 101 Nev. 376, 705 P.2d 134 (1985), for example, the insured parties appealed a lower court’s" }, { "docid": "16486348", "title": "", "text": "v. Magee, 573 So.2d at 653; see also Wickline, 530 So.2d at 714; Dunnam, 366 So.2d at 672. Our case law is in accord with this view. See Johnston v. Safeco Ins. Co. of Am., 727 F.2d 548, 550 (5th Cir.1984) (per curiam) (rejecting plaintiff's argument because it rested on state uninsured motorist statutes “that are grossly different from Mississippi’s”). . See Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 663-65 (Miss.1994) (declaring invalid offset provision which operated to deny insured the maximum excess coverage the insured paid for); Employers Mut. Cas. Co. v. Tompkins, 490 So.2d 897, 904-05 (Miss.1986) (declaring void policy provision which stated that nonlisted vehicles would not be covered, but failed to inform insured that insured would not receive minimum statutoiy coverage); Nester, 459 So.2d at 793 (holding that policy exclusion for uninsured motorist claims involving permissive users violated Mississippi public policy as expressed in the UM Act); State Farm Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670, 673 (Miss.1976) (\"An insurance company cannot by the provisions in one uninsured motorist endorsement limit its liability and endorsement in a separate policy and defeat the mandatory provisions of the statute.\"); Talbot, 291 So.2d at 703 (declaring invalid clause which reduced uninsured motorist coverage by amounts paid under medical coverage provisions of policy); Lowery, 285 So.2d at 771-77 (declaring invalid restriction in policy that required \"insured\" to own the automobile described in the policy until uninsured motorist coverage applied); Harthcock, 248 So.2d at 459-60, 461-62 (holding that conditioning uninsured motorist coverage on insured's agreement to not settle with other tortfeasors contravenes the UM Act; also declaring void \"other insurance” provision of policy which operated to relieve insurer of payment if insured secured statutory minimum from other source); see also Youngblood, 515 F.2d at 1256-58 (declaring invalid provision in policy which reduced uninsured motorist coverage based on amounts paid under bodily injury liability provision); Poole, 411 F.Supp. at 439 (declaring invalid policy provision which excluded occupants of vehicle from uninsured motorist coverage). . See, e.g., Talbot, 291 So.2d at 701 (declaring valid a limitation of liability provision," }, { "docid": "19530216", "title": "", "text": "and not piecemeal.\"). If an insurance policy is ambiguous, however, it is ordinarily construed against the insurance company. St. Paul Fire & Marine Ins. Co. v. S.L. Nusbaum & Co. , 227 Va. 407, 316 S.E.2d 734, 736 (1984) (\"The courts, accordingly, have been consistent in construing the language of such policies, where there is doubt as to their meaning, in favor of that interpretation which grants coverage, rather than that which withholds it. Where two constructions are equally possible, that most favorable to the insured will be adopted. Language in a policy purporting to exclude certain events from coverage will be construed most strongly against the insurer.\"). The insurer has the burden of proving lack of coverage. Ward , 736 S.E.2d at 325. In this case, the plain language of the Policy resolves the issue. In construing similar insurance policy provisions, the Supreme Court of Virginia has been clear that the designating language of the declarations page determines the applicability of UIM coverage. Bayer v. Travelers Indem. Co. , 221 Va. 5, 267 S.E.2d 91, 91 (1980) (per curiam) (answering in the negative \"the question [of] whether a claimant, injured while a passenger in his own uninsured automobile during a collision with another uninsured vehicle, may recover under the uninsured motorist endorsement of a liability policy written on other vehicles owned by the driver of the claimant's automobile\"); see Nationwide Mut. Ins. Co. v. Hill , 247 Va. 78, 439 S.E.2d 335, 337 (1994) (explaining that, in Bayer , \"[t]he declarations page of [the] policy contained a specific section addressing vehicles included for the purpose of the UM coverage,\" which the Bayer court relied on for its holding); see also Akers , 340 F.2d at 154 (holding that a Virginia UIM endorsement \"must be construed with other provisions of the policy in which the uninsured motorist endorsement is incorporated\" and therefore concluding that UIM \"coverage is restricted to those automobiles described in the declarations\"). The Supreme Court of Virginia's decisions in Bayer and Hill control our decision here. In Bayer , the plaintiff, Bayer, was riding as a passenger" }, { "docid": "15682478", "title": "", "text": "“underinsured motor vehicle” to mean a vehicle whose liability limits are less than the UIM limits on the policy in question, and “whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy,” id. § 143a-2(4) (emphasis added), which shows that reference to the policy is necessary. The Grinnell policy complies with the requirements of section 143a-2, but sections B.l.a and B.l.b of the UIM endorsement do not embody those requirements. In short, the UIM Endorsement contains its own definition of who is insured, and for individuals, that includes the named insured and family members, with no requirement that they occupy a covered auto. Our decision is consistent with decisions in three states that have interpreted the same policy language. See Reisig v. Allstate Ins. Co., 264 Neb. 74, 645 N.W.2d 544 (2002); Stoddard v. Citizens Ins. Co. of Am., 249 Mich.App. 457, 643 N.W.2d 265 (2002); Bushey v. N. Assurance Co. of Am., 362 Md. 626, 766 A.2d 598 (2001). One state supreme court, however, over a dissent, construed the same policy language to mean that a family member must be in a “covered auto” to receive UIM coverage. Lisowski v. Hastings Mut. Ins. Co., 315 Wis.2d 388, 759 N.W.2d 754 (2009). We note that the Lisowski plaintiff argued that the words “For a covered auto” at the top of the UIM Endorsement were not part of the policy and were instead merely introductory language that should not be given effect, and that Nicole has not made the same argument here. We agree that the language should be given effect, but we think the proper effect is that it is part of a sentence specifying the types of coverage that the UIM Endorsement modifies. Our decision is also consistent with common understanding of underinsured motorist insurance. Uninsured and underinsured motorist policy forms often specify three classes of insureds, as the form does here. See 3 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 33.1 (3rd ed. 2005). Policy terms commonly specify that class 1 insureds" }, { "docid": "15682479", "title": "", "text": "over a dissent, construed the same policy language to mean that a family member must be in a “covered auto” to receive UIM coverage. Lisowski v. Hastings Mut. Ins. Co., 315 Wis.2d 388, 759 N.W.2d 754 (2009). We note that the Lisowski plaintiff argued that the words “For a covered auto” at the top of the UIM Endorsement were not part of the policy and were instead merely introductory language that should not be given effect, and that Nicole has not made the same argument here. We agree that the language should be given effect, but we think the proper effect is that it is part of a sentence specifying the types of coverage that the UIM Endorsement modifies. Our decision is also consistent with common understanding of underinsured motorist insurance. Uninsured and underinsured motorist policy forms often specify three classes of insureds, as the form does here. See 3 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 33.1 (3rd ed. 2005). Policy terms commonly specify that class 1 insureds include “both the persons identified as ‘named insureds’ on the declaration sheet and family members (including a named insured’s spouse) who are residents of a named insured’s household.” Id. § 33.2. (As here, the second class consists of any other person while occupying a “covered” or “insured” vehicle, and the third for damages he is entitled to recover because of bodily injury sustained by a person in class 1 or 2. Id.) As one treatise explains, “Most significantly, clause/class (1) insureds do not have to be an occupant of an insured vehicle when an injury occurs in order to be covered.” Id. § 33.2. This is the common understanding. See also id. § 33.5; 16 Williston on Contracts § 49:35 (4th ed. 2009) (“Uninsured and underinsured insurance provide ‘first-party' coverage that is personal and portable, following the insured, rather than the vehicle.”); cf. Stearns v. Millers Mut. Ins. Ass’n of Ill., 278 Ill.App.3d 893, 215 Ill.Dec. 506, 663 N.E.2d 517, 521 (1996), overruled on other grounds by McKinney v. Allstate Ins. Co., 188 Ill.2d 493," }, { "docid": "5230805", "title": "", "text": "703 (Mo.1974) (en banc). Both Texas and Tennessee had real interests in this case. The Browns resided at the time of the accident and continue to reside in Tennessee. The trailer is registered in that state, and the tractor and trailer were principally garaged there. In addition, policy 115 includes a Tennessee uninsured motorist coverage endorsement form among its references to several states’ uninsured motorist laws, and the Browns received Home’s letters denying coverage at their Tennessee address. Texas, on the other hand, is where the tractor was registered, and policy 116 makes several references to Texas and includes several standard forms labeled “Texas Standard Automobile Endorsement.” Texas has an interest in the construction of insurance policy provisions required under Texas law and in regulating the insurance provided for a truck registered in its state. Tennessee has an interest in insurance contracts providing coverage for its residents, in regulating the amount of insurance required for trucks principally garaged in its state, and in the regulation of a trailer principally garaged and registered in its state. The law of the two states is in conflict on the enforceability of uninsured motorist provisions which reduce coverage when workers compensation benefits are available or when coverage would benefit a workers’ compensation insurer. Texas law invalidates clauses limiting uninsured motorist coverage based on the applicability of other insurance. American Liberty Insurance Company v. Ranzau, 481 S.W.2d 793 (Tex.1972). Clauses providing that coverage shall not apply directly or indirectly to benefit a workers’ compensation insurer are also invalidated in Texas. Employers Cas. Co. v. Dyess, 957 S.W.2d 884, 890-91 (Tex.App.1997). Under Tennessee law clauses reducing damages payable under uninsured motorist coverage by the amount paid or payable under any workers’ compensation law are clearly valid unless they operate to deny payments to an insured of less than the minimum set by statute. Terry v. Aetna Cas. & Surety Co., 510 S.W.2d 509 (Tenn.1974). This is so regardless of whether the workers’ compensation benefits were actually received by the injured party. Dwight v. Tennessee Farmers Mut. Ins. Co., 701 S.W.2d 621, 622 (Tenn.Ct.App.1985). The fact that" }, { "docid": "16486347", "title": "", "text": "291 So.2d 699, 701 (Miss.1974) (looking to authority of other states regarding whether insureds, under uninsured motorist policies, can aggregate coverage provided in a single insurance policy which insures more than one vehicle), overruled on other grounds, Government Employees Ins. Co. v. Brown, 446 So.2d 1002 (Miss.1984); Lowery, 285 So.2d at 771-77 (reviewing cases interpreting other states’ uninsured motorist statutes and concluding that \"the great weight of authority supports the (plaintiff's] contention that the exclusionary clause violates the public policy of this state”); Rampy, 278 So.2d at 432-34 (looking for guidance to interpretations of \"similar, if not identical” uninsured motorist statutes); McMinn, 276 So.2d at 685 (treating as \"persuasive and enlightening” other uninsured motorist statutes which do not contain the exact phraseology of the UM Act); Harthcock, 248 So.2d at 461-62 (looking to other jurisdictions’ interpretation of \"other insurance” clause); Travelers Indem. Co. v. Chappell, 246 So.2d 498, 501-04 (Miss.1971) (adopting view among states that if two escape clauses within insurance policy operate to negate coverage, those escape clauses are null and void). . Harris v. Magee, 573 So.2d at 653; see also Wickline, 530 So.2d at 714; Dunnam, 366 So.2d at 672. Our case law is in accord with this view. See Johnston v. Safeco Ins. Co. of Am., 727 F.2d 548, 550 (5th Cir.1984) (per curiam) (rejecting plaintiff's argument because it rested on state uninsured motorist statutes “that are grossly different from Mississippi’s”). . See Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 663-65 (Miss.1994) (declaring invalid offset provision which operated to deny insured the maximum excess coverage the insured paid for); Employers Mut. Cas. Co. v. Tompkins, 490 So.2d 897, 904-05 (Miss.1986) (declaring void policy provision which stated that nonlisted vehicles would not be covered, but failed to inform insured that insured would not receive minimum statutoiy coverage); Nester, 459 So.2d at 793 (holding that policy exclusion for uninsured motorist claims involving permissive users violated Mississippi public policy as expressed in the UM Act); State Farm Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670, 673 (Miss.1976) (\"An insurance company cannot by the provisions in one" }, { "docid": "15907217", "title": "", "text": "allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this subsection shall prevent such owner or operator from employing counsel of his own choice; provided further, that the evidence of service of process upon the insurance carrier shall not be made part of the record. T.C.A. § 56-7-1206. Tennessee courts construing this statute have held: The whole intent and purpose of the uninsured motorist act, is, in essence to provide protection by making the insurance carrier stand as the insurer of the uninsured motorist, with two necessary consequences. (1) The suit has to be brought against the uninsured motorist, with the fact of insurance excluded as a possible prejudicing factor, as in any other such case; and (2) the insurance company is bound by the judgment rendered in that suit, to the extent of its limits, where it is afforded the statutory opportunity to defend the uninsured motorist. Glover v. Tennessee Farmers Mutual Ins. Co., 225 Tenn. 306, 313, 468 S.W.2d 727, 730 (1971) (emphasis added). See also Thearp v. Travelers Indemnity Company, 504 S.W.2d 763, 766 (Tenn.App.1972). Furthermore, Tennessee’s uninsured motorist statute does not allow direct actions to be brought against the uninsured motorist carrier for another party’s negligence. “Under normal circumstances, suit may not be brought directly against the uninsured motorist insurance company.” Webster v. Harris, 727 S.W.2d 248, 251 (Tenn.App.1987). Apparently, Tennessee contemplates that the uninsured motorist carrier will stand in the same position as the defendant’s own insurance company would stand if the defendant had one (or in the same position as the defendant’s insurance company, which has insufficient policy limits, actually stands). This conclusion requires us to reject the opinion of Hillis v. Garner, 685 F.Supp. 1038 (E.D.Tenn.1988) on which the district court in this case heavily relied. In Hillis, the district court reasoned that because the Tennessee uninsured motorist statute gives an uninsured motorist carrier the legal right to defend itself in the tort action and “because the Tennessee courts consider the uninsured motorist carrier legally a" }, { "docid": "6366482", "title": "", "text": "statute, Me.Rev.Stat.Ann. tit. 24-A, § 2902 (1990 & Supp.1991), by impermissibly constricting the scope of mandated uninsured motorist coverage. First, VanHaaren waived this claim by failing to raise it before the district court. Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir.1990). Second, courts quite generally have found that reasonable \"proof of loss” obligations serve a legitimate purpose, affording the insurer a more objective accounting of the insured’s injuries or damages. See McKimm v. Bell, 790 S.W.2d 526, 528 (Tenn.1 990) (and cases cited therein); cf. Huntt v. State Farm Mut. Auto. Ins. Co., 72 Md.App. 189, 527 A.2d 1333, 1335 (1987) (noting that no-fault personal injury protection (\"PIP\") coverage was never \"intended to provide a PIP claimant with a blank check”). Third, the IME clause is readily distinguishable from other types of uninsured motorist policy restrictions invalidated by the Maine Law Court. See, e.g., Lanzo v. State Farm Mut. Auto. Ins. Co., 524 A.2d 47, 50 (Me.1987) (statutory term \"hit- and-run\" does not allow insurer to restrict uninsured motorist coverage to accidents involving physical contact). Given the relative ease of compliance with a \"reasonable” IME request, an IME clause does not unduly circumscribe uninsured motorist coverage or remove it beyond the insured's control. Fourth, the Law Court has suggested, quite clearly, that insurers are entitled to the protection of an IME at \"critical stages\" in the uninsured motorist claim process. See Home Ins. Co. v. Horace Mann Ins. Co., 603 A.2d 860, 861 (Me.1992). Finally, the principal case upon which VanHaaren relies is inappo-site., Benson v. Nationwide Mut. Ins. Co., 269 S.C. 563, 238 S.E.2d 683 (1977), turns on the peculiar language of the South Carolina uninsured motorist insurance statute (\"[T]he uninsured motorist provision shall not require anything not otherwise herein provided for_”), which disallows all proscriptive policy provisions not specifically authorized by statute. Id. 238 S.E.2d at 684. . The district court opinion could not have been more clear: The plaintiff, however, does not argue that the court must find prejudice resulting from his failure to submit to an IME upon request in order to relieve the" }, { "docid": "5230814", "title": "", "text": "270 (Mo.1983) (en banc); Douthet v. State Farm Mut. Auto. Ins., 546 S.W.2d 156, 159 (Mo.1977) (en banc.). More recently, however, such a provision has been found enforceable in Missouri when it is valid under the law of decision, even though Missouri law would void it. Markway, 799 S.W.2d at 150. B. The Browns also challenge the district court’s analysis of the merits of Home’s motion for summary judgment under Tennessee law. The court held that the provisions in both policies stating that uninsured motorist coverage does “not apply directly or indirectly to benefit ... an insurer ... under any workers’ compensation ... law” precluded coverage since Alton Brown had already received such benefits in an amount higher than the maximum payout under either policy. Policy 115 provides uninsured motorist coverage “as per state statutory laws.” It explicitly rejects uninsured motorist coverage where a rejection is allowed and selects the lowest permissible limit for this type of coverage in other states. The policy includes a Tennessee uninsured motorist coverage endorsement which establishes a limit of $60,000 in bodily injury coverage per accident. Both the Tennessee endorsement and the generally applicable uninsured motorist coverage endorsement contain unambiguous language indicating that the coverage will not apply to “the direct or indirect benefit of any insurer or self-insurer under any workers’ compensation disability benefits or similar law” and that “any amount payable under this insurance shall be reduced by: all sums paid or payable under any workers’ compensation disability benefits of similar law....” Under Tennessee law, setoff provisions requiring a reduction of uninsured motorist- benefits by sums received as workers’ compensation are valid and enforceable. Hutchison v. Tennessee Farmers Mut. Ins. Co., 652 S.W.2d 904, 906 (Tenn.Ct.App.1983) (citing Tenn.Code Ann. § 56-7-1205). Under such provisions, insurers are entitled to set off the full amount of worker’s compensation benefits payable to the plaintiff from any amount due under a policy, provided the injured party is guaranteed a recovery at least equal to the minimum liability limits required by Tennessee law. Id.; Soren v. Bzelle, 737 F.Supp. 49, 50 (M.D.Tenn.1990). The Browns also claim Home" }, { "docid": "5853077", "title": "", "text": "above the dubious value of the insurer’s right of subrogation); Traveler’s Indemnity Co. v. Mongiovi, 135 N.J.Super. 452, 343 A.2d 750 (1975) (plaintiff must only demand payment and discover that other driver is uninsured in order to sue directly); Associated Indemnity Corp. v. Cannon, 536 P.2d 920 (Okl.1975) (citing Winner v. Ratzlaff, supra ); and Wood v. Millers National Ins. Co., 96 N.M. 525, 632 P.2d 1163 (1981). But see Logan v. Aetna Casualty & Surety Co., 309 F.Supp. 402 (S.D.Miss.1970); Smith v. Phillips, 172 Ga.App. 459, 323 S.E.2d 669 (1984); Levy v. American Automobile Ins. Co., 31 Ill.App.2d 157, 175 N.E.2d 607 (1961); Wheeler v. Hartford Accident & Indemnity Co., 560 S.W.2d 816 (Ky.1978); Willard v. Aetna Casualty & Surety Co., 213 Va. 481, 193 S.E.2d 776 (1973). Several recent pronouncements from the Nevada Supreme Court indicate that it would follow the Winner case if it were to decide this question. In Ippolita v. Liberty Mutual Ins. Co., 101 Nev. 376, 705 P.2d 134 (1985), for example, the insured parties appealed a lower court’s dismissal of a declaratory judgment action. When the Oppolito’s had purchased their uninsured motorist policy, the protection which it accorded was $15,000 per person, $30,000 per accident. Thereafter, NRS § 687B.145(2) became effective, which required insurance carriers to offer uninsured motorist coverage equal to the insured’s normal bodily injury limits. After the enactment of this provision, the Ippolito’s son was killed in a one-car accident, but the policy’s $15,000 limit could not cover the actual wrongful death damages of $100,000. Because the policy predated the enactment of the new NES section, the lower court apparently held that the higher limit requirements could not be applied. Id. The Supreme Court of Nevada reversed the lower court. Initially, it noted that the provisions of the uninsured motorist statute were to be strictly construed in favor of recovery by the insured. 705 P.2d 1376, citing State Farm Mutual Auto. Ins. Co. v. Hinkel, 87 Nev. 478, 484, 488 P.2d 1151, 1153-54 (1971); Allstate Ins. Co. v. Maglish, 94 Nev. 699, 702, 586 P.2d 313, 314 (1978). Further, the" }, { "docid": "5230813", "title": "", "text": "the jurisdiction where the covered auto is being used. We conclude that the inclusion of forms required by Texas law in policy 116 does not tip the balance such that the Texas contacts to the litigation regarding claims under this policy outweigh those of Tennessee. The court did not err in applying Tennessee law to issues under this policy as well. Finally, the Browns argue that even if Tennessee law applies to the interpretation of the contracts under choice of law rules, that law should not be applied to enforce the uninsured motorist exclusions because Missouri has a public policy against permitting such exclusions. Langston v. Hayden, 886 S.W.2d 82, 86 (Mo.Ct.App.1994) (“If the law of a foreign state violates our public policy, as a general rule, it will not be enforced by our state courts.”). Under Missouri law insurance provisions which allow workers’ compensation benefits to be offset from recovery under uninsured motorist provisions have been found to violate Mo.Rev.Stat. § 379.203 (requiring uninsured motorist coverage). Cano v. Travelers Ins. Co., 656 S.W.2d 266, 270 (Mo.1983) (en banc); Douthet v. State Farm Mut. Auto. Ins., 546 S.W.2d 156, 159 (Mo.1977) (en banc.). More recently, however, such a provision has been found enforceable in Missouri when it is valid under the law of decision, even though Missouri law would void it. Markway, 799 S.W.2d at 150. B. The Browns also challenge the district court’s analysis of the merits of Home’s motion for summary judgment under Tennessee law. The court held that the provisions in both policies stating that uninsured motorist coverage does “not apply directly or indirectly to benefit ... an insurer ... under any workers’ compensation ... law” precluded coverage since Alton Brown had already received such benefits in an amount higher than the maximum payout under either policy. Policy 115 provides uninsured motorist coverage “as per state statutory laws.” It explicitly rejects uninsured motorist coverage where a rejection is allowed and selects the lowest permissible limit for this type of coverage in other states. The policy includes a Tennessee uninsured motorist coverage endorsement which establishes a limit of" }, { "docid": "16486349", "title": "", "text": "uninsured motorist endorsement limit its liability and endorsement in a separate policy and defeat the mandatory provisions of the statute.\"); Talbot, 291 So.2d at 703 (declaring invalid clause which reduced uninsured motorist coverage by amounts paid under medical coverage provisions of policy); Lowery, 285 So.2d at 771-77 (declaring invalid restriction in policy that required \"insured\" to own the automobile described in the policy until uninsured motorist coverage applied); Harthcock, 248 So.2d at 459-60, 461-62 (holding that conditioning uninsured motorist coverage on insured's agreement to not settle with other tortfeasors contravenes the UM Act; also declaring void \"other insurance” provision of policy which operated to relieve insurer of payment if insured secured statutory minimum from other source); see also Youngblood, 515 F.2d at 1256-58 (declaring invalid provision in policy which reduced uninsured motorist coverage based on amounts paid under bodily injury liability provision); Poole, 411 F.Supp. at 439 (declaring invalid policy provision which excluded occupants of vehicle from uninsured motorist coverage). . See, e.g., Talbot, 291 So.2d at 701 (declaring valid a limitation of liability provision, which permitted parties to contract to statutory minimum). . See Spradlin v. State Farm Mut. Auto. Ins. Co., 650 So.2d 1383, 1387 (Miss.1995); Payne, 603 So.2d at 345, 346, 348—49; Lawler v. Government Employees Ins. Co., 569 So.2d 1151, 1154 (Miss.1990); Aitken v. State Farm Mut. Auto. Ins. Co., 404 So.2d 1040, 1043 (Miss.1981), overruled on other grounds, State Farm Mut. Auto. Ins. Co. v. Nester, 459 So.2d 787 (Miss.1984); Lowery v. State Farm Mut. Auto. Ins. Co., 285 So.2d 767, 770 (Miss.1973); Rampy, 278 So.2d at 432; McMinn v. New Hampshire Ins. Co., 276 So.2d 682, 684 (Miss.1973). . Relying on a decision from the Montana Supreme Court, the Boatners argue that uninsured motorist coverage under the UM Act is \"portable.” (Citing Jacobson v. Implement Dealers Mut. Ins. Co., 196 Mont. 542, 640 P.2d 908, 912 (1982)). This argument, however, is question-begging because the issue is whether Mississippi’s UM Act provides for worldwide portability (as opposed to portability within the United States and Canada)." }, { "docid": "16486345", "title": "", "text": "1052 (Miss.1985); Nester, 459 So.2d at 790, 792; Dunnam v. State Farm Mut. Auto. Ins. Co., 366 So.2d 668, 671 (Miss.1979); Stevens v. United States Fidelity & Guar. Co., 345 So.2d 1041, 1043 (Miss.1977); Lowery, 285 So.2d at 770; Rampy v. State Farm Mut. Auto. Ins. Co., 278 So.2d at 432; see also Preferred Risk Ins. Co. v. Insurance Co. of N. Am., 824 F.Supp. 614, 619 (S.D.Miss.1993); Curry v. Travelers Indem. Co., 728 F.Supp. 1299, 1300 (S.D.Miss.1989); Preferred Risk Mut. Ins. Co. v. Poole, 411 F.Supp. 429, 437 (N.D.Miss.), aff'd per curiam, 539 F.2d 574 (5th Cir.1976). . See Payne, 603 So.2d at 346; Nester, 459 So.2d at 790, 792-93; Dunnam, 366 So.2d at 671; Southern Farm Bureau Cas. Ins. Co. v. Roberts, 323 So.2d 536, 538 (Miss.1975) (quoting Van Tassel v. Horace Mann Mut. Ins. Co., 296 Minn. 181, 207 N.W.2d 348, 351-52 (1973)); Parker v. Cotton Belt Ins. Co., 314 So.2d 342, 344 (Miss.1975); Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So.2d 456, 458 (Miss.1971); Hodges v. Canal Ins. Co., 223 So.2d 630, 634 (Miss.1969); see also Poole, 411 F.Supp. at 439. . See Dunnam, 366 So.2d at 670; State Farm Mut. Auto. Ins. Co. v. Moore, 289 So.2d 909, 911 (Miss.1974) (interpreting the Safety Responsibility Act); United States Fidelity & Guar. Co. v. Stafford, 253 So.2d 388, 391 (Miss.1971); see also Universal Underwriters Ins. Co. v. American Motorists Ins. Co., 541 F.Supp. 755, 760 (N.D.Miss.1982) (interpreting the Safety Responsibility Act); Poole, 411 F.Supp. at 436. . See McCoy v. South Cen. Bell Tel. Co., 688 So.2d 214, 215-16 (Miss.1996) (looking to other jurisdictions' view of whether self-insured companies are required to provide uninsured motorist coverage to their employees or lessees); Cossitt, 541 So.2d at 441-42 (relying on interpretations of “analogous\" uninsured motorist statutes); State Farm Mut. Auto. Ins. Co. v. Kuehling, 475 So.2d 1159, 1162-63 (Miss.1985) (looking for guidance to \"similar” uninsured motorist statutes which provide for underin-sured motorist coverage); Daughdrill, 474 So.2d at 1053-54 (declining to follow interpretations of other states' dissimilar uninsured motorist statutes); Talbot v. State Farm Mut. Auto. Ins. Co.," }, { "docid": "16486346", "title": "", "text": "223 So.2d 630, 634 (Miss.1969); see also Poole, 411 F.Supp. at 439. . See Dunnam, 366 So.2d at 670; State Farm Mut. Auto. Ins. Co. v. Moore, 289 So.2d 909, 911 (Miss.1974) (interpreting the Safety Responsibility Act); United States Fidelity & Guar. Co. v. Stafford, 253 So.2d 388, 391 (Miss.1971); see also Universal Underwriters Ins. Co. v. American Motorists Ins. Co., 541 F.Supp. 755, 760 (N.D.Miss.1982) (interpreting the Safety Responsibility Act); Poole, 411 F.Supp. at 436. . See McCoy v. South Cen. Bell Tel. Co., 688 So.2d 214, 215-16 (Miss.1996) (looking to other jurisdictions' view of whether self-insured companies are required to provide uninsured motorist coverage to their employees or lessees); Cossitt, 541 So.2d at 441-42 (relying on interpretations of “analogous\" uninsured motorist statutes); State Farm Mut. Auto. Ins. Co. v. Kuehling, 475 So.2d 1159, 1162-63 (Miss.1985) (looking for guidance to \"similar” uninsured motorist statutes which provide for underin-sured motorist coverage); Daughdrill, 474 So.2d at 1053-54 (declining to follow interpretations of other states' dissimilar uninsured motorist statutes); Talbot v. State Farm Mut. Auto. Ins. Co., 291 So.2d 699, 701 (Miss.1974) (looking to authority of other states regarding whether insureds, under uninsured motorist policies, can aggregate coverage provided in a single insurance policy which insures more than one vehicle), overruled on other grounds, Government Employees Ins. Co. v. Brown, 446 So.2d 1002 (Miss.1984); Lowery, 285 So.2d at 771-77 (reviewing cases interpreting other states’ uninsured motorist statutes and concluding that \"the great weight of authority supports the (plaintiff's] contention that the exclusionary clause violates the public policy of this state”); Rampy, 278 So.2d at 432-34 (looking for guidance to interpretations of \"similar, if not identical” uninsured motorist statutes); McMinn, 276 So.2d at 685 (treating as \"persuasive and enlightening” other uninsured motorist statutes which do not contain the exact phraseology of the UM Act); Harthcock, 248 So.2d at 461-62 (looking to other jurisdictions’ interpretation of \"other insurance” clause); Travelers Indem. Co. v. Chappell, 246 So.2d 498, 501-04 (Miss.1971) (adopting view among states that if two escape clauses within insurance policy operate to negate coverage, those escape clauses are null and void). . Harris" }, { "docid": "5230806", "title": "", "text": "The law of the two states is in conflict on the enforceability of uninsured motorist provisions which reduce coverage when workers compensation benefits are available or when coverage would benefit a workers’ compensation insurer. Texas law invalidates clauses limiting uninsured motorist coverage based on the applicability of other insurance. American Liberty Insurance Company v. Ranzau, 481 S.W.2d 793 (Tex.1972). Clauses providing that coverage shall not apply directly or indirectly to benefit a workers’ compensation insurer are also invalidated in Texas. Employers Cas. Co. v. Dyess, 957 S.W.2d 884, 890-91 (Tex.App.1997). Under Tennessee law clauses reducing damages payable under uninsured motorist coverage by the amount paid or payable under any workers’ compensation law are clearly valid unless they operate to deny payments to an insured of less than the minimum set by statute. Terry v. Aetna Cas. & Surety Co., 510 S.W.2d 509 (Tenn.1974). This is so regardless of whether the workers’ compensation benefits were actually received by the injured party. Dwight v. Tennessee Farmers Mut. Ins. Co., 701 S.W.2d 621, 622 (Tenn.Ct.App.1985). The fact that in Tennessee a subrogation lien will not attach when workers’ compensation benefits have been offset from insurance coverage, Hudson v. Hudson Mun. Contractors, Inc., 898 S.W.2d 187, 189-90 (Tenn.1995), may also suggest that clauses reducing coverage directly or indirectly benefitting a workers’ compensation insurer are valid there. Missouri has adopted sections 188 and 193 of the Restatement (Second) Conflict of Laws to use in resolving true conflicts of law regarding insurance contracts, See, e.g., Atlas Intermodal Trucking Serv. Inc. v. United Fire & Cas. Co., 973 S.W.2d 174, 177 (Mo.Ct.App.1998). Section 193 provides that: The validity of a contract [and the] casualty insurance and rights created thereby are determined by the local law of the state where the parties understood was to be the principal location of the insured risk during the term of the policy unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6. Restatement (Second) Conflict of Lazos § 193 (1971) [hereinafter Restatement ]. This means that the single most" }, { "docid": "2475509", "title": "", "text": "Rosato v. Harleysville Mut. Ins. Co., 328 Pa.Super. 278, 282, 476 A.2d 1328, 1330 (1984). These general expressions of statutory purpose suggest that questions about coverage should be decided in favor of increased protection for accident victims, the people whose injuries this type of legislation seeks to remedy. See Blumling, 429 Pa. at 395, 241 A.2d at 115 (Uninsured Motorist Act to be liberally construed); 1 Pa.Cons.Stat.Ann. § 1928(c) (Purdon Supp. 1990) (remedial statutes “shall be liberally construed”). Moreover, the Pennsylvania courts have uniformly approved of stacking for class one insureds. The germinal case, Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968), allowed a named insured to stack his own uninsured motorist coverage with that of his employer, whose vehicle he had driven at the time of the accident. The Pennsylvania Supreme Court has since allowed an insured to stack his uninsured motorist coverage with that of his wife. State Farm Mut. Auto. Ins. Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). The Pennsylvania Superior Court has followed suit. See, e.g., Tallman, 372 Pa.Super. at 602, 539 A.2d at 1359 (permits intra-policy stacking of underinsured motorist coverage); Estate of Rosato, 328 Pa.Super. at 288-89, 476 A.2d at 1333-34 (permits inter-policy and intra-policy stacking of uninsured motorist coverage); Blocker v. Aetna Cas. and Sur. Co., 232 Pa.Super. 111, 117-18, 332 A.2d 476, 479-80 (1975) (en banc) (allows inter-policy stacking of uninsured motorist coverage). This view is held in most jurisdictions. See generally 1 A. Widiss, Uninsured and Underinsured Motorist Insurance § 13.12 (2d ed. 1990) (espousing view and collecting cases). Thus, the dominant line of Pennsylvania cases allows stacking for class one insureds; to remain consistent with the trend of state law, this court would have to find in favor of the plaintiff. In addition, the legislature is presumed to be familiar with the case law against which it legislates. See, e.g., Wallaesa v. Wallaesa, 174 Pa.Super. 192, 196, 100 A.2d 149, 153 (1953). Because Pennsylvania law uniformly allowed stacking when the MVFRL was passed, it is reasonable to presume that its provisions were" }, { "docid": "15682465", "title": "", "text": "Ins. Co., 614 F.3d at 324 (citing Nicor, Inc. v. Associated Elec. & Gas, 223 Ill.2d 407, 307 Ull.Dec. 626, 860 N.E.2d 280, 286 (2006)). Where a policy provision is ambiguous, Illinois courts liberally construe it in favor of coverage. Founders Ins. Co. v. Munoz, 237 Ill.2d 424, 341 Ill.Dec. 485, 930 N.E.2d 999, 1004 (2010). Grinnell maintains that Nicole Haight is not entitled to UIM coverage under the policy because the car in which she was riding when injured was not a “covered auto.” Nicole, on the other hand, maintains that she is an “insured” under the UIM policy as Shawn Haight’s family member. We note at the outset that this is not a case about a claim on a liability insurance policy. Illinois imposes a mandatory liability insurance requirement on all motor vehicles operating on its highways, and the liability policy must cover any person using the vehicle. See 625 ILCS 5/7-601 (a); 625 ILCS 5/7-317(b)(2); Schultz v. Ill. Farmers Ins. Co., 237 Ill.2d 391, 341 Ill.Dec. 429, 930 N.E.2d 943, 950 (2010). In contrast to liability insurance’s focus on the vehicle, uninsured and under-insured motorist coverage can protect the named insured and family members “when they are operating or are passengers in a motor vehicle, as well as when they are engaged in any other activity such as walking, riding a bicycle, driving a hay wagon, or even sitting on a front porch.” See 3 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 4.2 (3rd ed. 2005); see also id. § 33.2; Doyle v. State Farm Mut. Auto. Ins. Co., 333 Ill.App.3d 81, 266 Ill. Dec. 618, 775 N.E.2d 180, 181-82 (2002) (detailing policy that provided for uninsured motorist coverage if insured sustained bodily injury while walking and was struck by motor vehicle). With that background in mind, we turn to the policy at issue here. The policy consists of a Business Auto Coverage Form and several endorsements, with the “Illinois Underinsured Motorists Coverage” endorsement the one in question. This document begins by stating in all capital letters: “THIS ENDORSEMENT CHANGES THE" }, { "docid": "2475508", "title": "", "text": "construing uninsured and underinsured motorist legislation, the appellate courts of Pennsylvania have held that the “purpose of the uninsured motorist law has been frequently and consistently interpreted by our courts as providing protection to innocent victims of uninsured drivers,” Boyle v. State Farm Mut. Auto. Ins. Co., 310 Pa.Super. 10, 21, 456 A.2d 156, 162 (1983), and that the statutes have been “ ‘ “designed to give monetary protection to that ... large group of persons who ... suffer grave injuries through negligent use of those highways by others,” ’ ” Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 395, 241 A.2d 112, 115 (1968) (quoting Katz v. American Motorists Ins. Co., 244 Cal.App.2d 886, 891, 53 Cal.Rptr. 669, 672 (1966) (quoting Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d 423, 434, 296 P.2d 801, 808 (1956))). Accord, e.g., Tallman v. Aetna Cas. and Sur. Co., 372 Pa.Super. 593, 602, 539 A.2d 1354, 1359 (1988); Drusak v. Insurance Co. of N. Am., 340 Pa.Super. 205, 208, 489 A.2d 914, 916 (1985); Estate of Rosato v. Harleysville Mut. Ins. Co., 328 Pa.Super. 278, 282, 476 A.2d 1328, 1330 (1984). These general expressions of statutory purpose suggest that questions about coverage should be decided in favor of increased protection for accident victims, the people whose injuries this type of legislation seeks to remedy. See Blumling, 429 Pa. at 395, 241 A.2d at 115 (Uninsured Motorist Act to be liberally construed); 1 Pa.Cons.Stat.Ann. § 1928(c) (Purdon Supp. 1990) (remedial statutes “shall be liberally construed”). Moreover, the Pennsylvania courts have uniformly approved of stacking for class one insureds. The germinal case, Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968), allowed a named insured to stack his own uninsured motorist coverage with that of his employer, whose vehicle he had driven at the time of the accident. The Pennsylvania Supreme Court has since allowed an insured to stack his uninsured motorist coverage with that of his wife. State Farm Mut. Auto. Ins. Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). The Pennsylvania Superior Court has followed" } ]

[ { "docid": "9933024", "title": "", "text": "were also employed. Plaintiff, however, did not state that defendant or Ms. Erb engaged in the same type of alleged interstate activity. Plaintiff then states that the company periodically hired other full time employees who engaged in the same activity as plaintiff. Plaintiff, however, failed to provide the frequency with which defendant employed others to engage in the same type of office work that plaintiff alleges she preformed. Moreover, plaintiff failed to allege what percentage of that employee’s time was spent preforming the alleged interstate activity. Individual Coverage In support of a possible claim for individual coverage, plaintiff averred that about 70% of defendant’s patients are not Florida residents, that she regularly used the telephone, internet and facsimile machine to contact out of state insurance companies, and that she processed patients’ credit card payments. In regards to the fact that some of defendant’s patients were not full time Florida residents, this Court finds the ultimate-consumer doctrine instructive. That doctrine states that goods are no longer in the stream of commerce once obtained by the ultimate consumer thereof. 29 U.S.C. § 203(i); Thorne, at 1267. This Court holds that although some patients may have been residents of other states, defendant was not engaged in interstate commerce if his contact with those patients was primarily local. Defendant averred that he only works within Florida. Defendant is licensed in Florida and other states but his license is “inactive” everywhere except Florida. There is no evidence to suggest that defendant solicited business from patients while they were out of state or that any contact with out of state patients was regular or recurrent. This Court also holds that plaintiffs use of the telephone or facsimile machines to make long distance phone calls or use of the internet and credit cards is insufficient to establish jurisdiction. To be considered “engaged in interstate commerce” a business must use a credit card specifically to transact business in interstate commerce. Here, defendant has submitted sufficient evidence to show that his practice is a local enterprise “and the items used in the business proliferated this goal of local service.”" } ]

[ { "docid": "3572241", "title": "", "text": "were denied benefits because their first rather than last separations were used in determining their periods of eligibility.” Brief of Intervenors Maxine Taggart and Joan Norris, at 3-4. The proposed intervenors are represented by the same counsel as Plaintiff Tyler and adopt Tyler’s briefs as their own. Id. at n. 4. The Court finds, therefore, that their interests are adequately represented by Plaintiff Tyler. Although proposed intervenor Tag-gart’s complaint plainly shares a common issue with that of Plaintiff, the Court will exercise its discretion and also deny her motion for permissive intervention. Ms. Taggart was injured because the State Defendants used the first separation policy in determining her eligibility for TRA benefits. However, as Defendants have pointed out, Ms. Taggart stands in a different position from Plaintiff Tyler because her case squarely raises the issue of what the correct interpretation of the last separation policy is. Ms. Taggart would not benefit from either interpretation of “last separation” as Plaintiff Tyler would. Unlike Cathy Tyler, Ms. Taggart would not have intervened in the original suit by the State against the federal Defendants solely as a Plaintiff, for in order for her to receive TRA benefits she would have to have applied to her an interpretation of the last separation policy that the State apparently did not use. See note 13, supra. She, thus, would have had to challenge the State’s interpretation directly, in a way Cathy Tyler did not and has not. Because the Court had stated in its order on Defendant’s motion to dismiss that it would not address issues of res judicata or administrative finality, the federal Defendants have not briefed the issue concerning the differences between the last separation policy as the Department of Labor had envisioned it before 1981 and as it was actually applied, at least for a time, by the State. See note 13. Given the fact that the State, in seeking indemnity from the federal government, has professed throughout this litigation that it only follows the dictates of the federal Defendants in administering the TRA program, the Court cannot be certain how the State" }, { "docid": "10287436", "title": "", "text": "Taggart v. Wadleigh-Maurice, supra (3d Cir. September 21, 1973) presents an interesting illustration of the problem here involved. Plaintiff in that case had been an employee of a company which had contracted to provide portable latrines to the now famous Woodstock music festival. Plaintiff’s job had been to empty the latrines. In the course of shooting film for their documentary “Woodstock”, defendant movie makers: (a) shot pictures of plaintiff going about his task; and (b) engaged him in conversation, producing comic effects which defendants included in their final product, to great critical acclaim. Plaintiff sued under § 51. In reversing a grant of summary judgment for defendant, the Third Circuit Court of Appeals found that an issue of fact was presented by the question whether plaintiff had been “drawn out as a performer” rather than merely “photographed as a participant in a newsworthy event”. Although the Court articulated the question in slightly different language, the message of Taggart appears to be that the First Amendment does not absolve movie companies — or publishers — from the obligation of paying their help. They are entitled to photograph newsworthy events, but they are not entitled to convert unsuspecting citizens into unpaid professional actors. So here, defendant is entitled to report (either with or without pictures) almost any activity in which Mr. Grant might engage. It is not entitled to appropriate his services as a professional model. Taggart seems to echo a sentiment expressed some years ago when the Supreme Court upheld the Wagner Act as applied to the Associated Press (Associated Press v. Labor Board [1937] 301 U.S. 103, 132-133, 57 S.Ct. 650, 656, 81 L.Ed. 953) : “The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others,” For the foregoing reasons, the pending motions are disposed of as follows: Plaintiff’s motion for summary judgment is denied. The defendants’ motion is granted insofar as it" }, { "docid": "22627460", "title": "", "text": "plans; with respect to each of these, ERISA conferred subject matter jurisdiction on the district court. IV. The former Fifth Circuit in Taggart Corp. v. Life & Health Benefits Administration, 617 F.2d 1208 (5th Cir. 1980), cert. denied sub nom. Taggart Corp. v. Efros, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), held that the MET, which was providing group insurance to employers too small to qualify for group rates on their own, was not itself an employee welfare benefit plan and that Taggart Corporation’s subscription to the MET to furnish insurance coverage to Taggart Corporation’s sole employee did not constitute a “plan, fund, or program” within the meaning of ERISA § 3(1), 29 U.S.C. § 1002(1). We agree with the holding and reasoning of the former Fifth that the MET itself was not an employee welfare benefit plan, see Taggart, 617 F.2d at 1210. We also agree that there was no employee welfare benefit plan in Taggart. Plaintiffs Kansas and Taggart Corporation alleged that the MET was the welfare plan. Neither party argued that Taggart Corporation had a plan, fund, or program. Taggart, 617 F.2d at 1211. Moreover, the Taggart district court appeared to agree with the parties that Taggart Corporation did not have a welfare plan when it found that the MET insured some employees directly and the “circumstances surrounding the submission of the subscription agreement by Stanley M. Kansas .. . simply involve[d] the purchase of insurance by plaintiff, Stanley M. Kansas, for himself and his family.” Taggert [sic] Corporation v. Efros, 475 F.Supp. 124 (S.D.Tex.1979), aff’d. sub nom. Taggart Corp. v. Life & Health Benefits Administration, 617 F.2d 1208 (5th Cir. 1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981). The district court’s findings of fact were not clearly erroneous, and under those facts the district court was entitled to conclude that Taggart Corporation’s involvement in the transaction was not such that it established or maintained a plan, fund, or program. See also Hamberlin v. VIP Insurance Trust, 434 F.Supp. 1196 (D. Ariz. 1977); 29 C.F.R. § 2510.3-1(j); note 13" }, { "docid": "7232059", "title": "", "text": "on a daily basis and also worked in close proximity with approximately 16 plant employees. (See Exime Dep., pp. 19-22; Hagenstad Deck, ¶ 10; Hagenstad Dep., pp. 25, 41.) These employees regularly used various cleaning equipment, or shared Ms. Exime’s daily duties on the Japanese shirt pressing machines. (See Hagenstad Dep, pp. 19, 22-23, 27, 34, 36; Hagenstad Decl., ¶¶ 5, 10; Exime Dep, pp. 22-26.) In addition, there is record evidence of employees routinely driving delivery vans and regularly purchasing business supplies with a company credit card. (See Hagenstad Dep, pp. 36-38.) Finally, as noted above, Plaintiff may be able to present additional evidence that the majority of these business materials previously moved through interstate commerce. (See Manufacturers’ Website Printouts, DE-31, Exhibits B-H.) Accordingly, the record demonstrates that Defendants’ employees “regularly and recurrently” used business materials in performing their essential job functions, in satisfaction of 29 C.F.R. § 779.238. Defendants’ case law is not persuasive on this issue. See Scott, 256 Fed.Appx. at 248; Sandoval v. Florida Paradise Lawn Maintenance, Inc., 2008 WL 1777392, * at 6-7 (S.D.Fla.2008). For example, Scott involved a single purchase of interstate lumber, which the Eleventh Circuit deemed insufficient under the “regular and recurrent” standard. See Scott, 256 FedAppx. at 248 (“[t]he purchase of lumber from Louisiana constitutes just such an isolated incident”). Likewise, in Sandoval, the plaintiff failed to present any evidence of employees handling interstate material. Sandoval, 2008 WL 1777392, * at 7 (“ [p ] laintiffs, however, have not offered any evidence in support of this prong of enterprise coverage”). Here, on the other hand, Defendants purchased essential cleaning, pressing, and delivery equipment manufactured outside Florida state, which Defendants’ employees used, on a daily basis, to operate the dry cleaning business. (Hagenstad Dep., pp. 19, 22-23, 27, 34, 36; Hagenstad Deck, ¶¶ 5, 10; Exime Dep., pp. 22-26.) Given the factual differences, Defendants’ case law is not controlling. Accordingly, summary judgment must be denied as to this issue. B. Gross Sales Requirement Under the second test for FLSA enterprise jurisdiction, Plaintiff must prove that Defendants’ annual gross sales exceeded $500,000. See" }, { "docid": "15075524", "title": "", "text": "render advice without seeing the documents and other information which had been provided to Deputy Commissioner Clymer. Id. at 99. 59. Ms. Taggart was thereafter provided with copies of the two November 25, 1994 letters, Captain Martin’s December 5, 1994 report, Deputy Superintendent Kneiss’ December 6, 1994 memorandum, and the December 7, 1994 Request for Consideration of Transfer Recommendation memorandum from Superintendent Stepanik to Deputy Commissioner Clymer. Id. During a second conversation with Deputy Commissioner Clymer, Ms. Taggart advised him that if the transfer was based on security concerns, and not on plaintiffs participation in Austin, a transfer would be permissible. Id. at 100. Ms. Taggart did not offer any testimony that she had discussed with Deputy Commissioner Clymer, or any other defendant, possible legal issues regarding plaintiffs transfer other than plaintiffs involvement in the Austin litigation. 60. Deputy Commissioner Clymer also submitted the documents available to him to the appropriate D.O.C. Central Office staff for evaluation, including William Harrison, the Director of Inmate Services, the division of the D.O.C. responsible for acting on transfer requests. Stipulation, ¶ 23. In addition, Deputy Commissioner Clymer discussed the possible transfer of plaintiff with the Commissioner of Corrections and the Executive Deputy Commissioner. Those individuals directed Deputy Commissioner Clymer to make the decision as to whether plaintiff should be transferred. Tr. of July 10, 1996, at 22. 61. On December 16, 1994, Deputy Superintendent Kneiss sent Deputy Commissioner Clymer a copy of the Times Leader newspaper article by facsimile transmission. Tr. of July 10, 1996, at 4. Deputy Commissioner Clymer and Superintendent Stepanik discussed the content of the article before the transfer of plaintiff was approved on December 23,1994, Id. at 5. 62. On December 23, 1994, Deputy Commissioner Clymer approved the transfer request and directed Mr. Harrison to take the appropriate action to accomplish the transfer. Exhibit P-20; Stipulation, ¶ 24. 63. Deputy Commissioner Clymer did not make an independent investigation into the situation at SCI-Dallas before making a final decision as to whether plaintiff should be transferred; he relied on Superintendent Stepanik’s investigation and recommendation. Tr. of July 10,1994, at 6," }, { "docid": "19064822", "title": "", "text": "the plan for the purpose of providing disability benefits to its employees. As indicated by defendant’s answers to plaintiffs interrogatories, State National and Sun Life entered into an agreement pursuant to which State National agreed to pay defendant monthly premiums in exchange for the disability benefits provided under the group policy. The evidence reveals that State National did forward monthly premium payments to defendant until the policy was canceled effective September 1994. Furthermore, Ms. Janet Mills, an employee of State National, was appointed by State National to serve as plan administrator. Thus, it is clear that State National, as employer, both established and maintained the plan for the purpose of providing benefits to its employees. Plaintiff, in her memorandum opposing this motion for partial summary judgment, asserts that the disability policy is not an ERISA plan and is thus not subject to ERISA. Plaintiff relies on Taggart Corp. v. Life and Health Benefits Administration, Inc., 617 F.2d 1208 (5th Cir.1980) and Clark v. Golden Rule Insurance Co., 737 F.Supp. 376 (W.D.La.1989) to support her position. These eases, however, are distinguishable from the instant matter as both involved so-called “multiple employer trusts.” A multiple employer trust is an arrangement whereby employers with too few employees to qualify for group rates on their own may subscribe to a trust, which “pools” the employers’ premiums and issues a policy covering the participating employers and their employees. The Fifth Circuit in Taggart Corp. held that ERISA does not regulate such “bare purchases of health insurance where.. .the purchasing employer neither directly nor indirectly owns, controls, administers or assumes responsibility for the policy or its benefits.” Furthermore, the Eleventh Circuit has noted that the courts, congressional committees, and the Secretary of Labor have uniformly held such arrangements to be outside the scope of ERISA. The policy at issue here is clearly not a multiple employer trust because State National contracted directly with the defendant. Furthermore, State National, as noted in defendant’s answers to interrogatories, served as administrator of the plan. Thus, the Taggart Corp. and Clark eases are distinguishable and this Court is not bound" }, { "docid": "15075570", "title": "", "text": "his interview with Mr. Colarossi-defendants violated well established tenets of procedural due process by giving plaintiff insufficient notice that his activities could result in his transfer. “Reliance on the advice of counsel is a factor to be weighed in assessing whether a public official is entitled to qualified immunity.” Kincade v. City of Blue Springs, Missouri, 64 F.3d 389, 399 (8th Cir.1995), cert. denied, 517 U.S. 1166, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996) quoted in Coover v. Saucon Valley School Dist., 955 F.Supp. 392, 408 (E.D.Pa.1997). In this case, Deputy Commissioner Clymer asked Deputy Attorney General Pia Taggart whether the Austin litigation prevented him from transferring plaintiff. Ms. Taggart testified that she advised Mr. Clymer that he could transfer plaintiff for security reasons, but not in response to his participation in Austin. Facts at ¶¶ 58-59. As discussed, supra, the Court has found that plaintiffs participation in the Austin litigation was not a basis for his transfer. There was no testimony that Mr. Clymer discussed with Ms. Taggart the First Amendment or procedural due process issues implicated by plaintiffs transfer. Thus, Deputy Commissioner Clymer’s conversations with Ms. Taggart do not shield defendants from liability in this action. Defendants transferred plaintiff in violation of well established substantive and procedural constitutional rights. Defendants’ actions could not reasonably be construed as consistent with plaintiffs constitutional rights. Accordingly, defendants are not entitled to qualified immunity. IV. RELIEF A. Relief Requested By Plaintiff Plaintiff initially requested that the Court grant him injunctive relief requiring that he be returned to SCI-Dallas, single-cell status, his job as a para-law library clerk, and his position as president of the SCI-Dallas Lifers. Complaint, at 8. He also requested compensatory and punitive damages against the defendants in their individual capacities, reasonable attorney’s fees, costs, and any other relief to which he was entitled. Id. However, on July 26, 1996, plaintiff altered his request, explaining that he “recognize[s] the strong feelings and adverse reactions that this litigation has caused among the officials at Dallas. Further, ... plaintiff has been compelled to adjust to a new institution — an 18 month" }, { "docid": "10767324", "title": "", "text": "MEMORANDUM OF DECISION ORMA R. SMITH, District Judge. This declaratory action was instituted by Frito-Lay, Inc. (Frito-Lay) and M. T. Taggart (Taggart) on October 18, 1973 against Henry Dent, Jr. (Dent), Jackie Harris (Harris), and Mrs. Rose-land Bostwick (Bostwick). The complaint states that plaintiff Frito-Lay, Inc. is a corporate nonresident of Mississippi; that plaintiff Taggart is a resident of Lowndes County, Mississippi; that defendant Dent is a resident of Alabama, but is available for personal service of process within the territorial jurisdiction of the court; that defendant Harris is a nonresident of Mississippi and is available for personal service of process in Little Rock, Arkansas; and that defendant Bostwick is a nonresident of Mississippi and is available for personal service of process in Jacksonville, Florida. The complaint states that the action is filed for the purpose of determining a question of actual controversy between the parties. The controversy is said to arise from a collision or collisions of motor vehicles which occurred on Highway 373 in Lowndes County, Mississippi on January 18, 1971. It is alleged that on the date last mentioned a truck belonging to Frito-Lay, Inc. and operated in its behalf by its servant and agent, Taggart, became disabled while moving along said highway, as a result of which Taggart stopped the truck on the side of the highway and as far upon the shoulder thereof as could be safely accomplished in order to determine the source of the trouble; that Bostwick drove her vehicle along said highway at an unlawful and excessive rate of speed and collided with said truck; that an automobile being driven by one Dwight C. Laughlin came upon the scene thus created and negligently drove his vehicle into an automobile approaching the scene from the opposite direction and as a result of such collision Dent and Harris, passengers in Laughlin’s vehicle, were injured. The complaint further states that following the accident suits were filed in this court by various parties, seeking to recover damages from Frito-Lay and Taggart because or on account of the alleged negligence of Frito-Lay and Taggart in the operation" }, { "docid": "23127051", "title": "", "text": "curiam), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989) (citing Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th Cir.1982) (en banc)). An employer has not established an ERISA plan if he merely advertises a group insurance plan that has none of the attributes described in 29 C.F.R. § 2510.3-1(j). Kanne, 867 F.2d at 492. In this case, the Department of Labor regulations do not exclude plaintiffs from ERISA’s coverage. Fugarino has done far more than purchase a group health insurance policy and advise his employees of its availability. Fugarino pays the premiums for his employees and permits them to reimburse him. Moreover, the record shows that Fugarino pays the health insurance premium for at least one of his employees. E. Relying on the case of Taggart Corp. v. Life and Health Benefits Admin., Inc., 617 F.2d 1208 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), plaintiffs argue that the group health insurance policy in this case does not constitute an ERISA plan. Taggart, however, dealt with a multiple employers trust (“MET”) which provided group insurance to employers too small to qualify for group rates on their own. The MET in Taggart pooled the premiums for a group of small employers and purchased a group policy for the group. The Fifth Circuit in Tag-gart concluded that the MET was not a statutory employer of an employee organization and, thus, was not within the scope of ERISA coverage. Id. at 1210. The court also held that ERISA did not apply to the purchased health insurance where the purchasing employer neither directly nor indirectly owns, controls, administers, or assumes responsibility for the policy or its benefits. Id. at 1211. Subsequent to the Fifth Circuit’s decision in Taggart, the Eleventh Circuit decided Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982), in which it rejected the Fifth Circuit’s reasoning in Taggart. In Donovan the Eleventh Circuit found that there were five prerequisites to an ERISA employee welfare plan: (1) a “plan, fund, or program” (2) established or maintained (3) by an employer or by an" }, { "docid": "5591417", "title": "", "text": "Earthgrains Company Bakery, Anheu-ser-Busch Companies, Inc., and Campbell Taggart Company were all defendants in the First Lawsuit. Campbell Taggart was at one time a wholly-owned subsidiary of Anheuser- Busch. In 1996, Anheuser-Busch spun-off Campbell Taggart to its shareholders, and the newly independent company changed its name to Earthgrains Company Bakery. We refer to the appellees collectively as Ear-thgrains. . The motion to intervene named 199 individual plaintiffs as necessary parties to the First Lawsuit, presumably a precaution in the event class certification was not granted. Earthgrains does not appear to have responded to this motion, nor did the district court rule upon.it, though the court mentioned the motion in its sanctions order. . By its April 22, 1998 Order, the court also denied the plaintiffs’ Motion to Amend Complaint. It concluded that plaintiffs had failed to comply with the pretrial order and that the proposed amendment was futile. . In the Show Cause Order, the court stated that it appeared the plaintiffs’ attorneys had not made a sufficient prefiling inquiry before initiating suit. Further, the court noted that the plaintiffs had filed four motions, see supra at 148, which appeared to violate Rule 11. . Neither of Ms. Hunter's co-counsel in the First Lawsuit have appealed. As such, we generally refer in this opinion to Ms. Hunter only. . Rule 11 of the Federal Rules of Civil Procedure was first promulgated in 1937, and it was substantially amended in 1983 to increase its effectiveness and clarify the circumstances in which it applied. Rule 11 was further revamped in 1993, primarily to curb the collateral litigation resulting from the 1983 amendments and to introduce the notion of a \"safe harbor” from Rule 11 sanctions. Rule 11(b), which contains most of the provisions relevant to this appeal, currently provides in relevant part as follows: (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of [her] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances— (1)" }, { "docid": "2802936", "title": "", "text": "clause in the contract which allegedly put the plaintiffs on notice that they could not rely on oral representations outside the contract. To the contrary, there was sufficient evidence for the jury to find not only that Taggart had actual authority to make these representations, but. that the representations were fraudulent, thus vitiating-the contract and its integration clause. Taggart, who negotiated lease agreements with the plaintiffs, testified that at the training school for BP sales rep resentatives, he and other dealers were told by one Jackson that dealers would probably object to short-term leases. To meet these objections, Jackson said, sales representatives should tell prospective dealers that if they conformed to the conditions of their leases, they could stay on “forever” at their stations. Taggart also stated that he told his District Manager, Mark Baltes, of these representations. Jerry Southern, another sales representative who dealt with some of the plaintiffs, stated that Taggart and the other sales representatives were told that they had a free hand in negotiations with dealers. There was therefore sufficient evidence that the BP representatives were given authority to make such representations. There was also evidence that the plaintiffs could and did rely on the assurances, although some of the plaintiffs had other reasons for becoming BP dealers. Nevertheless, a fraudulent representation may be one of several reasons for action, and need not be the sole cause as long as there is some reliance on the misrepresentation. Savings Bank Retirement Sys. v. Clarke, 258 Md. 501, 507, 265 A.2d 921, 924 (1970). Since fraud renders a contract void, proof of actionable fraud as defined by the case law, see, e. g., Appel v. Hupfield, 198 Md. 374, 84 A.2d 94 (1951), would render the contract, and therefore the integration clause, irrelevant. BP’s course of dealing over the years, the lack of education on the part of some of the plaintiffs, the language barrier in some cases, the perfunctory manner in which the contracts were handled, and the difference in bargaining power between the plaintiffs and the defendants all support the inference that the assertions made by" }, { "docid": "22440229", "title": "", "text": "we read Taggart and Donovan as proclaiming some principle to the effect that “the use by shareholders of their corporation as a conduit to obtain insurance cover age for tax reasons is not the establishment of an employee benefit plan.” Defendants’ Brief at 16. At most the cases suggest that, when the sole employee of a corporation, for that employee's own benefit or for that of his or her family, subscribes to a trust, the necessary intent on the part of the corporation to provide benefits for its employees may be lacking. Thus, although Donovan and Taggart are not controlling here, they do support the defendants’ broader contention that we should examine the corporation’s intent. In the case before us the corporation has, via a written agreement,, established its intent potentially to provide benefits to all salaried employees. This is not a case, like Taggart, in which a corporation arguably failed to express the necessary intent. Thus, we do not believe that Taggart and Donovan require dismissal of the complaint. We express no opinion whether a plan established merely as a “tax scheme” may be protected under ERISA. But even if we were to assume the “tax scheme” was outside ERISA as suggested by defendants, it is certainly unclear at this point that the Miniat Plan was merely a tax scheme for the benefit of shareholders and not a plan for the benefit of employees. The Plan provided post-retirement benefits for salaried employees with fifteen or more years of service. Although defendants argue that only the two shareholders were eligible under these criteria — an assertion that is not clearly supported by the record — presumably other employees would receive benefits once they had accumulated enough years of service. The possibility of other employees receiving benefits in the future certainly is relevant to determining whether a plan is merely a tax scheme. For the reasons stated above, we reverse the dismissal of the amended complaint and remand for further proceedings not inconsistent with this opinion. Circuit Rule 18 shall apply. . See infra note 12. . Miniat executed an Adoption" }, { "docid": "15477889", "title": "", "text": "to a subsequent action on the merits of the underlying obligation. Distinguishing City of Havre, the court stated that where “neither the pleadings ..., nor the stipulations and accompanying dismissal with prejudice, made reference to or ‘reasonably raised’ any issue regarding the merits [of the subsequent litigation,]” res judicata concepts were not applicable. Id., 659 P.2d at 274. Defendant Rutledge’s state court action against the Taggarts was, in essence, an action to enforce the contract between them. The stipulation for dismissal of that action was “tantamount to a judgment on the merits.” City of Havre, 609 P.2d at 278. See also Bloomer Shippers Assn. v. Illinois Central Gulf Railroad Co., 655 F.2d 772 (7th Cir.1981). Accordingly, the Taggarts cannot now be heard on issues reasonably raised or which could have been raised during that proceeding. The crux of the inquiry, then, is whether any or all of Taggarts’ pendent state claims should have been raised in the prior action. Under the Montana Rules of Civil Procedure, a defendant in a civil action is required to set forth as a counterclaim any existing claim against the plaintiff “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim____” Rule 13(a), Mont.R. Civ.P. The purpose of Rule 13(a) is “to bring all logically related claims into a single litigation, thereby avoiding a multiplicity of suits.” Julian v. Mattson, — Mont. —, 710 P.2d 707, 709 (1985), (citing 20 Am.Jur.2d Counterclaim, Recoupment, Etc. § 15). The Supreme Court of Montana has given strict interpretation to Rule 13(a), applying it to bar claims which should have been raised as compulsory counterclaims in a prior action. For example, in O’Neal, Booth & Wilkes, P.A. v. Andrews, supra, the plaintiff had sued the defendant in Florida state court seeking payment of attorneys’ fees. Judgment was entered in plaintiff’s favor for the sum of $3,229.63. Subsequently, plaintiff initiated suit in Montana to recover the balance due from defendant. The defendant then asserted a counterclaim, alleging claims of breach of fiduciary duty, fraud, coercion and others. Affirming summary judgment in" }, { "docid": "15477932", "title": "", "text": "no evidence to show that the supply agreement has any effect on competition between suppliers for the business of Bozeman retailers, or on competition between the retailers themselves. Defendants, on the other hand, have presented deposition testimony indicating that the market is very competitive and that prices vary accordingly. Plaintiffs challenge these statements but offer no evidence to refute them. Absent proof of retail price maintenance or actual restraint of competition, plaintiffs’ price-fixing claims must fail as a matter of law. E. Requirements Contract Plaintiffs allege that the supply agreement constitutes an exclusive dealing arrangement which unreasonably restrains trade in violation of section 1 of the Sherman Act and of section 3 of the Clayton Act, 15 U.S.C. § 14. The Clayton Act comes into play when the alleged “practical effect” of contract provisions is to prevent the use of goods of a competitor, thereby foreclosing competition in a substantial share of the line of commerce affected. L. Sullivan, Handbook of the Law of Antitrust § 151 at 433 (1977) (hereinafter cited as “Sullivan”) (quoting Standard Oil Co. v. United States, 337 U.S. 293, 314, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371 (1949)). Purchasing restrictions imposed upon buyers by sellers which may give rise to antitrust violations usually take one of three forms: 1. Exclusive dealing arrangements, in which the seller agrees to sell on condition that the buyer agrees not to deal in competitive products; 2. Requirements contracts, which are essentially exclusive dealing agreements with the added provision that the buyer agrees to purchase all or a substantial part of his needs of a particular product or service from the seller; and 3. Tying arrangements. 16A J. Von Kalinowski, Business Organizations § 6G.01[1] (hereinafter “Von Kalinowski”). The agreement between Rutledge and Taggarts represents a classic requirements contract, by which the Taggarts agree to purchase all of their needs of gasoline products from Rutledge unless Rutledge is unable to meet their demand. Generally, where a buyer is expressly or impliedly required to deal only with the seller for a specific product or service, an exclusive dealing agreement will be inferred," }, { "docid": "23618516", "title": "", "text": "and he did so, on or about February 13, 2006. Tepperwien complained about a number of matters. He complained about the gas mask fact-finder, explaining that he could not have possibly discovered and reported the missing mask upon assuming his post. He complained about the counseling session and counseling letter. He asserted that morale in the security department was “extremely low.” He complained about his meeting with Barry, and how Barry told him his name had been pulled from a hat. He expressed concern about retaliation from management. Although he did not include the matter in his memorandum, Tepperwien told Taggart when he met with her of Messina’s sexual behavior. On March 6, 2006, Taggart responded to Tepperwien. As for the sexual harassment, Taggart noted that the matter had been investigated and corrective actions taken, including moving the other officer (Messina) off Tepperwien’s shift. As for the actions relating to the missing gas mask, Taggart noted that the counseling session provided to Tepperwien was appropriate at the time based on the known information, as management understood that Tepperwien had not checked his equipment. Based on additional information, however, Taggart noted that management had revisited the issue and was rescinding the counseling letter. As for the meeting with Barry, Taggart acknowledged that the notification for the meeting “was not handled as well as it could have been,” and that action had been taken to address the issue and prevent recurrence. Tepperwien thereafter completed an ECP “Customer Satisfaction Survey,” and he noted that overall he was “satisfied” with his interactions with ECP and he was “satisfied” with the response to his concerns. In March 2006, there was an “outage” at Indian Point, during which the reactors were shut down for repair. During outages, additional security is required and consequently shifts are combined. Tepperwien was scheduled to work with Messina the first two days. He complained both days and was switched to another assignment both days. On the third day, Tepperwien spoke to his union representative, who suggested that Tepperwien switch to the night shift. Tepperwien discussed it with his wife. He agreed," }, { "docid": "22627461", "title": "", "text": "argued that Taggart Corporation had a plan, fund, or program. Taggart, 617 F.2d at 1211. Moreover, the Taggart district court appeared to agree with the parties that Taggart Corporation did not have a welfare plan when it found that the MET insured some employees directly and the “circumstances surrounding the submission of the subscription agreement by Stanley M. Kansas .. . simply involve[d] the purchase of insurance by plaintiff, Stanley M. Kansas, for himself and his family.” Taggert [sic] Corporation v. Efros, 475 F.Supp. 124 (S.D.Tex.1979), aff’d. sub nom. Taggart Corp. v. Life & Health Benefits Administration, 617 F.2d 1208 (5th Cir. 1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981). The district court’s findings of fact were not clearly erroneous, and under those facts the district court was entitled to conclude that Taggart Corporation’s involvement in the transaction was not such that it established or maintained a plan, fund, or program. See also Hamberlin v. VIP Insurance Trust, 434 F.Supp. 1196 (D. Ariz. 1977); 29 C.F.R. § 2510.3-1(j); note 13 supra. Although we agree with the holding in Taggart, we find the reasoning of the opinion that Taggart Corporation did not have a “plan, fund or program” encourages too broad an interpretation. If Taggart is interpreted to mean ERISA does not regulate purchases of health insurance when there is no welfare plan, we agree. The purchase of insurance is only a method of implementing a plan, fund, or program and is evidence of the existence of a plan but is not itself a plan. If Taggart implies that an employer or employee organization that only purchases a group health insurance policy or subscribes to a MET to provide health insurance to its employees or members cannot be said to have established or maintained an employee welfare benefit plan, we disagree. To that extent Taggart shall no longer be binding in the Eleventh Circuit. V. We hold only that the district court had subject matter jurisdiction over this case. We have not determined how many subscribers established or maintained plans or if any defendant is a" }, { "docid": "7232058", "title": "", "text": "in addition to the Fuji Star shirt pressing machines manufactured in Japan, Defendants’ boiler, leg-ger, puffer, dryer, pressing machines, and cleaning machines, were also manufactured outside Florida, and therefore previously moved across interstate lines. {See Manufacturers’ Website Printouts, DE-31, Exhibits B-H.) Thus, Defendants’ employees appear to have handled interstate “materials” in performing their daily job functions, in satisfaction of 29 U.S.C. § 203(s)(l)(A)(i). 2. “Regular and Recurrent” Use of Interstate Material In addition to the interstate nexus requirement, Plaintiff must also demonstrate that Defendants’ employees handled interstate material on a “regular and recurrent” basis. See 29 C.F.R. § 779.238. Thus, § 779.238 limits the broad jurisdictional scope of § 203(s)(l)(A)(i), to those employers regularly using interstate material in the normal course of business. See Galdames, 2008 WL 4372889, * at 3 (isolated use of interstate material not sufficient to confer enterprise jurisdiction); see also Scott, 256 Fed.Appx. at 248 (single purchase of lumber in Louisiana deemed “isolated and sporadic,” and therefore insufficient for purposes of enterprise jurisdiction). Here, Ms. Exime operated a shirt pressing machine on a daily basis and also worked in close proximity with approximately 16 plant employees. (See Exime Dep., pp. 19-22; Hagenstad Deck, ¶ 10; Hagenstad Dep., pp. 25, 41.) These employees regularly used various cleaning equipment, or shared Ms. Exime’s daily duties on the Japanese shirt pressing machines. (See Hagenstad Dep, pp. 19, 22-23, 27, 34, 36; Hagenstad Decl., ¶¶ 5, 10; Exime Dep, pp. 22-26.) In addition, there is record evidence of employees routinely driving delivery vans and regularly purchasing business supplies with a company credit card. (See Hagenstad Dep, pp. 36-38.) Finally, as noted above, Plaintiff may be able to present additional evidence that the majority of these business materials previously moved through interstate commerce. (See Manufacturers’ Website Printouts, DE-31, Exhibits B-H.) Accordingly, the record demonstrates that Defendants’ employees “regularly and recurrently” used business materials in performing their essential job functions, in satisfaction of 29 C.F.R. § 779.238. Defendants’ case law is not persuasive on this issue. See Scott, 256 Fed.Appx. at 248; Sandoval v. Florida Paradise Lawn Maintenance, Inc., 2008 WL 1777392," }, { "docid": "2802935", "title": "", "text": "for denying a directed verdict motion, in turn, is, viewing the evidence in the light most favorable to the party against whom the motion is made, and giving that party the benefit of all reasonable. inferences which arise from the evidence, where there is evidence upon which a jury could reasonably find a verdict for that party. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957). Reviewing the evidence and the inferences drawn therefrom in the light most favorable to the plaintiffs, it is clear that there was enough evidence in the plaintiffs’ favor to submit the case to the jury and to prevent a directed verdict in the defendants’ favor. Defendants have moved for a judgment notwithstanding the jury’s verdict on Count IV on two grounds. Defendants claim first that there was insufficient evidence on which the jury could have found that the plaintiffs had a right reasonably to rely on Taggart, BP’s sale’s representative, in light of the integration clause in the contract which allegedly put the plaintiffs on notice that they could not rely on oral representations outside the contract. To the contrary, there was sufficient evidence for the jury to find not only that Taggart had actual authority to make these representations, but. that the representations were fraudulent, thus vitiating-the contract and its integration clause. Taggart, who negotiated lease agreements with the plaintiffs, testified that at the training school for BP sales rep resentatives, he and other dealers were told by one Jackson that dealers would probably object to short-term leases. To meet these objections, Jackson said, sales representatives should tell prospective dealers that if they conformed to the conditions of their leases, they could stay on “forever” at their stations. Taggart also stated that he told his District Manager, Mark Baltes, of these representations. Jerry Southern, another sales representative who dealt with some of the plaintiffs, stated that Taggart and the other sales representatives were told that they had a free hand in negotiations with dealers. There was therefore sufficient evidence" }, { "docid": "15075523", "title": "", "text": "July 10, 1994, at 4. The Vote Sheet, signed by Superintendent Stepanik and Deputy Superintendent Kneiss, recommended plaintiffs transfer because of plaintiffs: increasingly troublesome activities with direct effect to the running of the institution. It is imperative to sever Mr. Castle’s power base at this facility and avert a potential disturbance which may cause harm to staff and inmates. The staff at SCI-Dallas highly recommends a transfer be initiated to insure the peace and stability at the institution. Exhibit P-10. Deputy Commissioner Clymer received all of those documents, Tr. of July 10,1996, at 4. In his memorandum to Deputy Commissioner Clymer requesting plaintiffs transfer, Superintendent Stepanik also wrote that: “[s]ince the Austin litigation is in the final stages, the order not to transfer inmates involved should be moot or shortly so.” 58. In December 1994, Deputy Commissioner Clymer had two discussions with Deputy Attorney General Pia D. Taggart about the legality of transferring plaintiff. Tr. of July 10, 1996, at 97-98. During the first conversation, Ms. Taggart told Deputy Commissioner Clymer that she could not render advice without seeing the documents and other information which had been provided to Deputy Commissioner Clymer. Id. at 99. 59. Ms. Taggart was thereafter provided with copies of the two November 25, 1994 letters, Captain Martin’s December 5, 1994 report, Deputy Superintendent Kneiss’ December 6, 1994 memorandum, and the December 7, 1994 Request for Consideration of Transfer Recommendation memorandum from Superintendent Stepanik to Deputy Commissioner Clymer. Id. During a second conversation with Deputy Commissioner Clymer, Ms. Taggart advised him that if the transfer was based on security concerns, and not on plaintiffs participation in Austin, a transfer would be permissible. Id. at 100. Ms. Taggart did not offer any testimony that she had discussed with Deputy Commissioner Clymer, or any other defendant, possible legal issues regarding plaintiffs transfer other than plaintiffs involvement in the Austin litigation. 60. Deputy Commissioner Clymer also submitted the documents available to him to the appropriate D.O.C. Central Office staff for evaluation, including William Harrison, the Director of Inmate Services, the division of the D.O.C. responsible for acting on transfer" }, { "docid": "1434918", "title": "", "text": "to London and one to a distillery in Glasgow, . We affirm that the sample of defendant’s product, received in evidence as Defendant’s Exhibit No. 14, remains unopened. . We note, however, that Mr. Harris testified that the plaintiff sells directly to two or three dozen restaurants in New York City which undoubtedly have bars or cocktail lounges. Whether the defendant’s scotch appears in those places, and whether the plaintiff’s cigars or other products appear in restaurants in other cities is not clear from the testimony. . Any inter partes proceeding (cancellation, opposition, interference, etc.) before the Patent Office in the trademark area is governed by the Trademark Rules of Practice which follows the Federal Rules of Civil Procedure, except as otherwise provided. The major difference between litigation in the Patent Office and that in the courts is that the Patent Office does not conduct live examinations of witnesses ; however, the parties may introduce testimony via transcripts of depositions or written questions and answers. Otherwise the trademark rules provide for notice, discovery, briefs and oral arguments in addition to the rights under the Federal Rules. The trademark Rules are found in Part 2 of Title 37 of the Code of Federal Regulations. . We also find that the plaintiff’s intention of resolving the matter in the Patent Office is supported by correspondence between Mr. Taggart and Mr. Harris. On October 18, 1963, Mr. Taggart informed Mr. Harris that the defendant had filed an application in the Patent Office to register Dunhill for its scotch on August 19, 1963, claiming use since April 18, 1963, but that it was not yet ripe for opposition since the application had not been published. On January 24, 1964, Mr. Taggart informed Mr. Harris that Martinoni had made application to register Dunhill and that he had been unable to find any evidence that Kasser’s application had been published. Mr. Taggart further stated, “It is entirely possible that the Patent Office, on its own motion, will declare an interference between these two.” On April 26, 1965, Mr. Taggart informed Mr. Harris of another application by" } ]

[ { "docid": "22697056", "title": "", "text": "by statute to remove black persons from the prospective jury. Citing our decision in Batson v. Kentucky, 476 U. S. 79 (1986), Edmonson, who is himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for striking the two jurors. The District Court denied the request on the ground that Batson does not apply in civil proceedings. As empaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000. It also attributed 80% of the fault to Edmonson’s contributory negligence, however, and awarded him the sum of $18,000. Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that our opinion in Batson applies to a private attorney representing a private litigant and that peremptory challenges may not be used in a civil trial for the purpose of excluding jurors on the basis of race. 860 F. 2d 1308 (1989). The Court of Appeals panel held that private parties become state actors when they exercise peremptory challenges and that to limit Batson to criminal cases “would betray Batson’s fundamental principle [that] the state’s use, toleration, and approval of peremptory challenges based on race violates the equal protection clause.” Id., at 1314. The panel remanded to the trial court to consider whether Edmonson had established a prima facie case of racial discrimination under Batson. The full court then ordered rehearing en banc. A divided en banc panel affirmed the judgment of the District Court, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications. 895 F. 2d 218 (1990). The court concluded that the use of peremptories by private litigants does not constitute state action and, as a result, does not implicate constitutional guarantees. The dissent reiterated the arguments of the vacated panel opinion. The Courts of Appeals have divided on the issue. See Dunham v. Frank’s Nursery & Crafts, Inc., 919 F. 2d 1281 (CA7 1990) (private litigant may not use peremptory challenges to exclude venirepersons on" } ]

[ { "docid": "21218804", "title": "", "text": "used all six of his peremptory challenges to exclude only white panelists from the jury. In determining whether a party’s use of peremptory challenges has violated the Constitution, the Court first examines whether the challenging party has made out a prima facie case of discrimination, then whether the challenged party has offered a race-neutral reason for its use of its peremptory challenges, and then whether the challenged party’s race-neutral reason is pretextual and whether the challenging party has shown purposeful discrimination. See Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 360, 111 5.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Defendants state that the fact that Plaintiffs used all six of their peremptory challenges to exclude white panelists provides their prima facie case of discrimination. Defendants also argue that it is clear that Plaintiffs’ non-discriminatory reasons are pre-textual, when the non-stricken black panelists’ qualifications and information are examined. The Court already rejected Defendants’ initial Batson challenge and found that Plaintiffs’ challenges were not race-based, finding the selections were more related to economics and education. See Trial Tr. vol. 2 at 87, May 4, 2005 Morning. Revisiting the transcript and the juror information does not incline this Court to reverse its prior decision. Defendants have not shown purposeful discrimination and the Court does not believe Plaintiffs’ non-discriminatory reasons were pretextual. Plaintiffs’ use of peremptory strikes does not support Defendants’ motion for a new trial. Defendants also argue that Plaintiffs’ counsel improperly argued facts not in evidence in a manner highly prejudicial to Defendants. Defendants argue that Plaintiffs’ counsel’s statements at trial, especially during closing statements, were so prejudicial that no instruction from the Court could have cured them. Specifically, Defendants point to comments from Plaintiffs’ counsel including comments that allegedly implied collusion among Defendants when there was no evidence to support such statements, comments implying Mylan purged its records despite documents being excluded for use at trial by the Court, and that Defendants would engage in the same behavior as was at" }, { "docid": "22312659", "title": "", "text": "Batson sets forth a three-part test for determining whether a prosecutor has used peremptory strikes in a way that violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.” Hernan dez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (per curiam) (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712). In this case, the first step of the Batson analysis is moot. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of ... a prima facie showing becomes moot.” Id. at 359, 111 S.Ct. 1859. Here, some of the race-neutral explanations for striking the juror were stronger than others. Her employment in a casino, if widely adopted, would exclude from jury service a large part of the Clark County population. However, the juror’s claim that she never read a book, her statement that Judge Judy was her favorite TV show, and her apparent trouble communicating were permissible grounds for the prosecutor’s peremptory challenge. “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at 360, 111 S.Ct. 1859. Here, the various reasons offered by the prosecution did not inherently suggest a discriminatory intent, and indeed, were race-neutral. “The second step of this process does not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Although Murillo claims that difficulty communicating implies an inherent discriminatory intent, this court has held that “[s]o long as the prosecutor ... can convince the" }, { "docid": "6479235", "title": "", "text": "duties was substantially impaired was justified and that the court’s decision to exclude Bell was not clearly erroneous or an abuse of discretion. III. Barnette also claims error in the district court’s decision to allow the government to use a peremptory challenge to exclude a black juror, Stephany Jones, claiming the government excluded Miss Jones because of her race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson forbids a prosecutor from challenging jurors solely on account of their race. 476 U.S. at 89,106 S.Ct. 1712. A Batson challenge consists' of three steps: (1) the defendant must make out a prima facie case that the peremptory challenge was based on purposeful discrimination, (2) the burden shifts to the government to produce a race neutral explanation for the peremptory challenge that is particular to the parties’ case at hand, and (3) the trial court then has the duty of deciding whether the defendant has carried his burden and proved purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). To satisfy the second step, the prosecution is not required to offer a persuasive or even plausible explanation for the challenge. Purkett, 514 U.S. at 768, 115 S.Ct. 1769. The explanation need only be facially valid. Purkett, 514 U.S. at 768, 115 S.Ct. 1769. We allow great deference to the trial judge in making the determination as to whether the proffered reason for the challenge is race neutral. See, e.g., United States v. Blotcher, 142 F.3d 728, 731 (4th Cir.1998) (noting that court will give the district court’s decision great deference because based on determinations of credibility) (citing Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712). Assuming that Barnette made a prima facie case of exclusion on the basis of race, the prosecution offered a race-neutral explanation for the exclusion — that Miss Jones did not favor the death penalty. We will not disturb the trial court’s acceptance of that justification in this case because the record supports the conclusion that it was not pretextual. The" }, { "docid": "21124942", "title": "", "text": "persuades me that plaintiff proved that the asserted reason for the peremptory strike against the only African-American juror was pretextual. In my view, the district court clearly erred when it ruled that the peremptory strike was not racially motivated. The “Constitution prohibits all forms of purposeful racial discrimination in selection of jurors.” Batson v. Kentucky, 476 U.S. 79, 88, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69 (1986); see also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 2080, 114 L.Ed.2d 660 (1991) (applying Bat-son in a civil context). Our commitment to equal justice under law, carved into stone outside the courthouse, would be mocked by allowing discriminatory peremptory challenges inside. The practice not only causes the silent sting of discrimination, it “mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality.” Edmonson, 500 U.S. at 628, 111 S.Ct. at 2087. In this case, plaintiff established a prima facie case of racial discrimination by showing that defendant’s attorney excluded the only African American on the twenty-six person venire, a church pastor named Mr. Cunningham. See United States v. Joe, 8 F.3d 1488, 1499 (10th Cir.1993) (peremptory challenge of only Native-American juror on venire establishes prima facie case of purposeful discrimination). Defendant’s attorney justified the strike on grounds that Mr. Cunningham “was previously involved in a jury service where the jury found, in a civil case, for an employee in a railroad benefits matter.” Appellant’s App. at 79. This must be deemed a race-neutral explanation under Purkett v. Elem, 514 U.S. 765, -, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (“Unless a discriminatory intent is inherent in the ... explanation, the reason offered will be deemed race neutral.”) (citation and quotation omitted). See also Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality opinion) (“In evaluating the race neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.”). Although" }, { "docid": "6223460", "title": "", "text": "BEAM, Circuit Judge. A jury convicted Emmanuel Jones, an African American, of various firearms possession offenses and the district court sentenced him to 192 months’ imprisonment. During jury selection, the government used peremptory strikes to dismiss two of four African American venire-members. Jones argues that, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court clearly erred in its determination that the government’s proffered reasons for one of the strikes were race neutral and not merely pretextual. Because the record supports the court’s findings, we affirm. Upon his challenge to the prosecution’s peremptory strike, the court found Jones had made a prima facie showing that the strike was based on race. In response, the government offered various justifications for the strike, including the venire-member’s attire, profession, and familiarity with the vicinity in which the incident occurred. The prosecutor also indicated that the veniremember appeared tired. The court found these explanations to be race neutral. Jones only addressed the clothing and fatigue justifications, and asked that all the veniremembers be photographed to preserve their manner of dress for the record. Indicating that cameras were prohibited in that courthouse, the court refused this request, but added that counsel could photograph the jurors as they exited. The court agreed with the prosecutor that the veniremember appeared “somewhat restless and tired,” and rejected the contention that the government had treated the veniremember differently than others similarly situated. It concluded Jones had failed to prove purposeful discrimination and denied his challenge. A Batson challenge requires a three-step, burden-shifting analysis. United States v. Elliott, 89 F.3d 1360, 1365 (8th Cir.1996). First, the opponent of a peremptory strike must make a prima facie case of racial discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The burden of production then shifts to the proponent of the strike, who must tender a race-neutral explanation. Id. Finally, if a race-neutral explanation is presented, the trial court must determine whether the opponent of the strike has proven purposeful racial discrimination. Id. We review for clear error the" }, { "docid": "3774630", "title": "", "text": "to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. We must presume that the state court’s factual findings are correct unless Reed meets his burden of rebutting that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). III. DISCUSSION Reed argues that the State violated his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it used its peremptory challenges to strike all five eligible African-American members of the venire. There are three steps to our Bat-son analysis. First, a defendant must present a prima facie case that the prosecution exercised its peremptory challenges on the basis of race. See id. at 96-97, 106 S.Ct. 1712. Second, if the defendant meets this initial burden, the burden shifts to the prosecutor to present a race-neutral explanation for striking the jurors in question. See id. at 97-98, 106 S.Ct. 1712. Finally, the court must determine whether the defendant has carried his burden of proving purposeful discrimination. See id. at 98, 106 S.Ct. 1712. At the third step, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). There is no dispute here that Reed presented a prima facie case of discrimination or that the State offered race-neutral explanations for the peremptory strikes. Therefore, our inquiry solely involves Batson’s third step. Reed argues that the State’s proffered reasons are not persuasive justifications because they are mere pretexts for discrimination. We must consider whether the TCCA’s conclusion that the prosecution did not discriminate on the basis of race in using its peremptory strikes was an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). A. Batson Hearing During the jury selection for Reed’s second trial in 1983, Reed objected to the State’s use of peremptory challenges to exclude all five of the eligible African-American potential jurors. The trial judge rejected Reed’s request to have the State explain its reason for striking these jurors. In 1986, the Supreme Court ruled" }, { "docid": "21218802", "title": "", "text": "for Judgment as a matter of law because the evidence in the record was not so one-sided such that a reasonable jury could find only for Defendants. III. DEFENDANTS’ MOTION FOR A NEW TRIAL UNDER RULE 59(A) In this motion, Defendants argue they are entitled to a new trial under Rule 59(a) for two main reasons: Plaintiffs’ counsel’s conduct during trial and improper instruction of the jury. Under Rule 59(a) of the Federal Rules of Civil Procedure, a new trial may be granted in a case that had a jury trial for “any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” The decision to grant or deny such a motion lies within the sound discretion of the court. See e.g., Grogan v. General Maint. Co., 763 F.2d 444, 448 (D.C.Cir.1985); Machesney v. Larry Bruni, M.D., P.C., 905 F.Supp. 1122, 1130 (D.D.C.1995). To preserve the function of the jury, new trials should not be granted unless “a solid basis for doing so” exists. Warren v. Thompson, 224 F.R.D. 236, 239 (D.D.C.2004) (internal citations and quotations omitted). Further, such a motion should be granted only when the court is convinced that the jury verdict was a “seriously erroneous result” and where denial of the motion will result in a “clear miscarriage of justice.” Id. (internal citations and quotations omitted). Generally, a new trial may only be granted when a manifest error of law or fact is presented. Further, the standard for granting a new trial is not whether minor evidentiary errors were made. See, e.g., Nyman v. Chairman, Fed. Deposit Ins. Corp., 1997 WL 243222, *3 (D.D.C.1997). A. Plaintiffs’ Counsel’s Alleged Conduct Defendants first argue that Plaintiffs’ counsel improperly used his peremptory challenges to exclude jurors on racial grounds. Clearly, such use of peremptory challenges is prohibited by the Fourteenth Amendment. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628-29, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Batson v. Kentucky, 476 U.S. 79, 86-87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendants argue Plaintiffs’ counsel improperly" }, { "docid": "9756728", "title": "", "text": "laws when he is tried before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court extended this principle to the use of peremptory strikes from the petit jury and articulated a process to challenge the allegedly discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing of discriminatory use of peremptory challenges. A defendant establishes a prima facie case of purposeful discrimination by showing: That he is a member of a cognizable racial group ... that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race ... [and] that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire men from the petit jury on account of their race. United States v. Hill, 146 F.3d 337, 340 (quoting Batson, 476 U.S. at 96, 106 S.Ct. at 1723). Once the defendant has made a prima facie showing, the government must offer a race-neutral explanation for challenging the jurors. This is an extremely light burden, as the Supreme Court held in Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), that the government’s proffered reason need not be particularly persuasive, or even plausible, so long as it is neutral. Finally, the district court must determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. Because this determination turns largely on the evaluation of credibility, reviewing courts give the findings of the district court great deference. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724. The record in the instant case reveals that there was one African-American on the jury which convicted Harris. This juror was Number 25 on the venire panel and was the first African-American available on the venire panel. As it turns out, this venireman was the final panel member seated on the petit jury" }, { "docid": "12767092", "title": "", "text": "evidence to the contrary. See 28 U.S.C. § 2254(e)(1) (granting presumption of correctness to state-court fact finding). The OCCA therefore held that the trial court did not err in removing the two jurors without further questioning. (Defense counsel had asked for an opportunity to rehabilitate Williams, but not Skiles.) This holding was not an unreasonable interpretation of Supreme Court law. Indeed, Defendant cites no authority for the proposition that he had the right to question further a juror who said that she could not vote for the death penalty. We deny relief on this claim. IV. BATSON CLAIM The Constitution forbids a prosecutor from exercising a peremptory challenge to a prospective juror on account of the juror’s race. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When defense counsel believes that the prosecutor has violated Batson, a three-step review process is in order. “[0]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). “At [the] second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at 768, 115 S.Ct. 1769 (brackets and internal quotation marks omitted). But if, at step three, the court finds the proffered ground to be pretextual, it may determine that the strike was purposeful discrimination. See id. Defendant claims that the prosecution violated Batson when it struck one of only two African-Americans among the 400 to 500 members of the jury venire. Defense counsel raised at trial a Batson objection to the strike. When the trial court asked the prosecutor why he had struck the" }, { "docid": "22796889", "title": "", "text": "admission of prior uncharged crimes and “bad acts” into evidence; (5) preclusion of testimonial and demonstrative evidence, including a murder victim’s prison records; (6) admission of co-conspirator statements; (7) sufficiency of the evidence; (8) jury instructions; (9) denial of severance motions; (10) denial of motion for a new trial; (11) denial of motion to suppress wiretap evidence; (12) denial of motion for Judge Nevas to recuse himself; (13) effectiveness of trial counsel; (14) voluntariness of a guilty plea; (15) denial of defense witness immunity; and (16) the district court’s sentencing calculations. For the reasons that follow, we conclude that none of the defendants-appellants’ challenges merit relief. I. Contentions with Respect to the Jury A. Batson Challenge Zapata argues he is entitled to a new trial because the government exercised three of its twelve peremptory strikes in a racially discriminatory manner. Specifically, he alleges that the district court erred in (1) considering only statistical evidence and not the totality of the circumstances in determining whether a prima facie case of discrimination existed under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) finding that the government’s explanations for the peremptory strikes were not pretextual. We disagree. Batson established a three-step approach for determining whether a peremptory strike has been exercised in a racially discriminatory manner. When a Batson challenge is raised, the trial court must decide (1) whether the defendant has made a prima facie showing that the prosecution has exercised its peremptory strike on the basis of race, id. at 96,106 S.Ct. 1712, (2) if so, whether the government has satisfied its burden of coming forward with a race-neutral explanation for striking the juror in question, id. at 97, 106 S.Ct. 1712, and (3) if so, whether the defendant has carried his burden of persuasion of proving purposeful discrimination, id. at 98, 106 S.Ct. 1712; see Burkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). To establish a prima facie case, a defendant must show that the circumstances raise an inference of racial discrimination. See Batson, 476" }, { "docid": "11628", "title": "", "text": "intent, thus it passed Rule 404(b)’s relevancy test. Based upon the Supreme Court’s decision in Old Chief, this evidence also satisfied Rule 403’s balancing test. We therefore affirm the district court’s admission of this evidence. B. Exclusion of African-American Juror Hill next argues that the Government improperly used peremptory challenges to strike an African-American juror based on her race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under Batson, a party alleging the prosecution’s racially discriminatory use of peremptory challenges must first make a prima facie case of discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). This can be done by showing circumstances that give rise to a reasonable inference of racial discrimination. See United States v. Battle, 836 F.2d 1084, 1085 (8th Cir.1987). The burden then shifts to the Government to articulate a race-neutral reason for the use of the challenge. Purkett, 514 U.S at 765, 115 S.Ct. 1769. If the Government tenders such an explanation, the court must then determine whether purposeful racial discrimination has been proven or whether the prosecutor’s explanation was mere pretext. Id. The district court’s findings regarding pretext are findings of fact, which we review for clear error. Devoil-El v. Groose, 160 F.3d 1184, 1186 (8th Cir.1998). The Government used its peremptory challenges to remove two African-Americans from the jury pool. Hill did not challenge the removal of the first, since she had two brothers who were in prison. Hill did challenge the second removal. The prosecutor’s reason for dismissing the juror was the juror’s participation in church activities during her leisure time. The Government explained that the prosecutor believed that this juror might be overly sympathetic toward criminal defendants. The court concluded that the Government’s actions were not discriminatory. Defendants did not argue to the district court that similarly situated white jurors were not challenged. The district court was in the best position to evaluate the truthfulness of the asserted explanation of the prosecutor, and Hill has not shown that the court clearly erred in rejecting his challenge." }, { "docid": "21218803", "title": "", "text": "exists. Warren v. Thompson, 224 F.R.D. 236, 239 (D.D.C.2004) (internal citations and quotations omitted). Further, such a motion should be granted only when the court is convinced that the jury verdict was a “seriously erroneous result” and where denial of the motion will result in a “clear miscarriage of justice.” Id. (internal citations and quotations omitted). Generally, a new trial may only be granted when a manifest error of law or fact is presented. Further, the standard for granting a new trial is not whether minor evidentiary errors were made. See, e.g., Nyman v. Chairman, Fed. Deposit Ins. Corp., 1997 WL 243222, *3 (D.D.C.1997). A. Plaintiffs’ Counsel’s Alleged Conduct Defendants first argue that Plaintiffs’ counsel improperly used his peremptory challenges to exclude jurors on racial grounds. Clearly, such use of peremptory challenges is prohibited by the Fourteenth Amendment. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628-29, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Batson v. Kentucky, 476 U.S. 79, 86-87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendants argue Plaintiffs’ counsel improperly used all six of his peremptory challenges to exclude only white panelists from the jury. In determining whether a party’s use of peremptory challenges has violated the Constitution, the Court first examines whether the challenging party has made out a prima facie case of discrimination, then whether the challenged party has offered a race-neutral reason for its use of its peremptory challenges, and then whether the challenged party’s race-neutral reason is pretextual and whether the challenging party has shown purposeful discrimination. See Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 360, 111 5.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Defendants state that the fact that Plaintiffs used all six of their peremptory challenges to exclude white panelists provides their prima facie case of discrimination. Defendants also argue that it is clear that Plaintiffs’ non-discriminatory reasons are pre-textual, when the non-stricken black panelists’ qualifications and information are examined. The Court already rejected Defendants’ initial Batson challenge" }, { "docid": "23546701", "title": "", "text": "Such a disparity in remedies would seriously impair the full use of peremptory challenges, because it would encourage a district court to deny peremptory challenges in close cases. CONCLUSION For the reasons discussed above, we hold that the denial of a peremptory challenge was erroneous, and the error requires reversal of the conviction. REVERSED and REMANDED. . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Batson and its progeny require a three-step process for challenging a peremptory strike: (1) The party opposing the peremptory strike must make a prima facie showing that the proposed peremptory strike is racially discriminatory, taking account of \"all the relevant circumstances!?]\" (2) The burden then shifts to the proponent of the strike to come forward with a race-neutral explanation for the strike. (3) Finally, if a race-neutral explanation is tendered, the trial court must decide whether the party opposing the strike has proved purposeful racial discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24; See also Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991) (explaining the three-step Batson analysis); Purkett v. Elem, - U.S. -, - - -, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995) (same). . We review for clear error a district court's findings of fact as to the racially discriminatory use of peremptory challenges. United States v. De Gross, 960 F.2d 1433, 1442 (9th Cir.1992) (en banc). . Although we decide this case in the context of the rights of a defendant, the peremptory challenge is an equally important tool to insure that the government receives a fair trial. Purkett v. Elem, - U.S. -, -, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (upholding prosecutor's use of peremptory strike). . Although the right of peremptory challenge does not derive from the Constitution, it nonetheless is a “venerable” tradition dating back centuries. Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 807, 107 L.Ed.2d 905 (1990). As described in Lewis, “[t]he right of challenge comes from the common law with the trial by jury itself," }, { "docid": "9944076", "title": "", "text": "prohibiting surrebuttal opinion testimony as to Dr. Morall’s character and reputation for truthfulness. 1. Batson Claim The Supreme Court in Batson held that the Fourteenth Amendment’s Equal Protection Clause prohibits the prosecution’s use of peremptory challenges to exclude potential jurors on the basis of their race. Batson, 476 U.S. at 86, 106 S.Ct. 1712. The Court extended that same prohibition to peremptory challenges used to exclude potential jurors because of their gender. J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419. The Court articulated a three-part procedure to evaluate claims that the prosecution impermissibly used its peremptory jury challenges: First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Batson, 476 U.S. at 96-100, 106 S.Ct. 1712); see also Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). The party objecting to the use of peremptory strikes, Saiz in this case, “carries the ultimate burden of persuasion.” United States v. Castorena-Jaime, 285 F.3d 916, 928 (10th Cir.2002); see also Purkett, 514 U.S. at 768, 115 S.Ct. 1769. In this case, Saiz alleges that the prosecution used eight out of nine peremptory challenges to remove the following potential Hispanic and female jurors: Dale Hall, á female; Pamela Wagner, a female; Jay Alire, a Hispanic male; Loretta Jaramillo, a Hispanic female; Denise Baca, a Hispanic female; Linnea Eckhardt, a female; Eleanor Ellison, a female; and Marco Au-bril, a Hispanic male. During voir dire, the prosecution first tried to remove Ms. Hall for cause, arguing that “[s]he basically indicated ... that she could not follow the law if it differed from what ... in her heart she thought should be done in the case.” Tr. of Jury Trial, R. Vol. 21 at" }, { "docid": "16768973", "title": "", "text": "animosity — or motivation. We will note your objection, though. Hill and Gunn proceeded to trial with an all-white jury. Both defendants properly preserved for appeal the issues they now raise before this court. II. A. The Batson Challenge The government cannot use its peremptory challenges in a criminal case to exclude members of the venire from the jury solely on the basis of their race. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that a defendant opposing the government’s use of a peremptory strike on the basis of race makes out a prima facie ease of purposeful discrimination by showing: that he is a member of a cognizable racial group ... that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race .... [and] that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Id. at 96, 106 S.Ct. 1712. The Court has subsequently modified the requirements of a prima facie Batson case to allow defendants to challenge the prosecution's allegedly race-based strikes of potential jurors even where the defendant and the stricken juror are of different races. Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). If the defendant successfully makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for its challenges. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Finally, the trial court must decide “whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). “[T]he trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). We may reverse that finding of fact only where we find clear error. Id. at" }, { "docid": "6043202", "title": "", "text": "court denied defendant’s challenge. In Batson, the Supreme Court held that a prosecutor is prohibited from exercising peremptory challenges based upon the race of a potential juror. 476 U.S. at 89, 106 S.Ct. 1712. In order to prevail, the party challenging a peremptory challenge must first make a prima facie showing of racial discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). “This can be done by showing circumstances that give rise to a reasonable inference of racial discrimination.” United States v. Hill, 249 F.3d 707, 714 (8th Cir.2001). Once this is done, the burden shifts to the striking party to offer a race-neutral explanation. Purkett, 514 U.S. at 767, 115 S.Ct. 1769; United States v. Jones, 245 F.3d 990, 992 (8th Cir.2001). If such a race-neutral explanation is proffered, the trial court must determine whether the prosecutor’s explanation is mere pretext. Purkett, 514 U.S. at 767, 115 S.Ct. 1769; Hill 249 F.3d at 714. We review for clear error the district court’s ruling. Jones, 245 F.3d at 992. While it is possible, and in fact quite likely, that Smith’s statements were meant to demonstrate to the district court his impartiality given his previous employment in the criminal justice system, the prosecutor’s reasons are race-neutral and reasonable. Furthermore, the prosecutor exercised a peremptory challenge to Mr. Groebner, a similarly situated white venire member. As we have previously observed, the district court is in the best position to evaluate the truthfulness of the prosecutor’s asserted explanations, and Campbell has not shown the district court clearly erred in rejecting his challenge to the Government’s peremptory strike. See Hill, 249 F.3d at 712-14 (juror’s participation in church activities during leisure time was sufficient race-neutral explanation when defendant did not argue that similarly situated white jurors were not challenged); United States v. Wilson, 867 F.2d 486, 487 (8th Cir.1989) (peremptory strike of juvenile court social worker with significant experience within criminal justice system was race neutral). B. Sentencing Following a jury verdict of guilty, the Government filed a Notice to Seek Enhanced Sentence, indicating that it sought a" }, { "docid": "13798380", "title": "", "text": "with on the merits and found non-prejudicial (see discussion on claims 17 and 33). These claims include: (c) Gruesome photos (d) Prosecution listed all mitigating factors, including those not raised or argued by Montgomery Under these circumstances, the court denies the claim. C. Racial Bias by the State In claims 11, 12, 13, and 18, Montgomery argues that various acts by the state denied him of a racially impartial trial. None of his claims have merit. ll. Petitioner’s conviction and sentence violate the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution in that the state was not required to provide a race-neutral explanation for its use of peremptory challenges. In this claim, Montgomery argues that the prosecution violated his right to a jury of his peers by failing to articulate a race-neutral explanation for peremptorily challenging an African-American from his jury. The exercise of racially discriminatory peremptory challenges by the state offends the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Supreme Court enumerated a three-step analysis to determine whether a Batson violation had occurred. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The party disputing the propriety of a peremptory challenge must first demonstrate a prima facie case of discrimination. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). A prima facie case is established by showing: 1) the defendant is'a member of a cognizable group; 2) the opposing side has exercised peremptory challenges against members of the defendant’s race or gender; and 3) the relevant circumstances raise an inference of purposeful discrimination. United States v. Harris, 192 F.3d 580, 586 (6th Cir.1999). The presence of one or more members of the defendant’s race or gender on the jury does not necessarily preclude a Batson claim. Id. at 587. Nor does the moving party need to establish a systematic pattern of discrimination in the exercise of the peremptory challenges. United States v. Mahan, 190 F.3d 416, 424 (6th Cir.1999). After the party raising the" }, { "docid": "5575186", "title": "", "text": "unredacted version was made available to the Defendants, but nothing from the unauthorized time period was ever utilized in the prosecution. Further, the district court, after an evidentiary hearing, concluded that the Government had not acted in bad faith. We find no error here. The Yangs next claim that the Government exercised its peremptory challenges in a discriminatory manner in violation of the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, the Yangs contend that because in exercising three peremptory challenges the Government excluded three women, two of whom were black, the Government was excluding jurors on the basis of race and gender. We review for clear error the factual findings upon which the district court based its ruling. United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir.1996). To establish a violation under Batson, the defendant must make a prima facie ease by showing that the Government removed jurors for a discriminatory reason. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson, 476 U.S. at 96, 106 S.Ct. 1712. The burden of production then shifts to the Government to offer a race(or gender-) neutral justification for its challenges. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). At this stage, the Government’s explanation need not be “persuasive, or even plausible,” id. at 768, 115 S.Ct. 1769; the explanation must simply be one in which discriminatory intent is not inherent. Id. The final step is for the trial court to determine whether the party challenging the peremptory strikes has proven purposeful discrimination. Here, the district court may decide to disbelieve an implausible or silly reason, but the burden is on the party challenging the strike to prove that it was motivated by discriminatory animus. Id. The final makeup of the jury is relevant to a finding of discrimination. United States v. Sangineto-Miranda, 859 F.2d 1501, 1520-21 (6th Cir.1990). In response to the Defendants’ Batson challenge, the Government claimed that it struck one juror because of an" }, { "docid": "23442045", "title": "", "text": "the prosecutor’s proffered race-neutral explanations for the exercise of the peremptory challenges used to dismiss the two Hispanic potential jurors. The exercise of peremptory challenges on the basis of potential jurors’ race violates the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “Racial discrimination in [the] selection of jurors harms not only the accused whose life or liberty they are summoned to try[, but also] ... extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.” Id. at 87, 106 S.Ct. 1712. Batson provides a three-step inquiry to determine if a peremptory challenge was based on race: First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Under the first prong, a defendant may rely upon “all relevant circumstances” when making a prima facie showing that a prosecutor’s challenge was exercised based on race. Miller-El, 545 U.S. at 240, 125 S.Ct. 2317. If the defendant satisfies this initial burden, then the burden shifts to the prosecutor. Batson’s second prong requires the prosecutor to “give a clear and reasonably specific explanation of [the prosecutor’s] legitimate reasons for exercising the challenge[ ].” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712 (internal quotation marks omitted). That explanation need not be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (internal quotation marks omitted). Rather, under the second prong, “the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, [we will deem] the reason offered [to] be ... race neutral.” Id. Only Batson’s final step requires the" }, { "docid": "11755188", "title": "", "text": "his counsel’s failure to raise this issue on direct appeal. No reasonable jurist would debate this point. We may not, therefore, issue a COA as to this claim. Jf. Failure to properly appeal the state’s use of peremptory jury strikes “Since [Petitioner’s] claim rests on a Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)] violation, resolution of his COA application requires a preliminary, though not definitive, consideration of the three-step framework mandated by Batson and reaffirmed in our later precedents.” Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. “Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). “In the context of the threshold examination in this Batson claim the issuance of a COA can be supported by any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. It goes without saying that this includes the facts and circumstances that were adduced in support of the prima facie case.” Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. On direct appeal, Petitioner claimed that the state violated Batson by striking two particular jurors. On federal habeas, this claim has been broadened to allege that the state’s use of its peremptory strikes as a whole was discriminatory. As evidence that the prosecution purposefully discriminated against minority jury pool members, Petitioner notes that the state used six of its thirteen peremptory strikes to excuse African-American pool members. As evidence of the state’s alleged discrimination based on sex, Petitioner notes that the state used eight of its thirteen peremptory strikes to exclude males from the jury. This is the only evidence Petitioner has ever offered" } ]

[ { "docid": "3561616", "title": "", "text": "assumptions. 1. Proceedings Under Section 2254 The plain language of subsection 848(q)(4)(B) provides that a death-sentenced inmate is entitled to the assistance of a federally appointed attorney and a federally appointed psychiatrist “[i]n any post conviction proceeding under 2254....” In turn, section 2254 provides, in part: (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant 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 prisoner. 28 U.S.C.A. § 2254(b) (West 1985). The question presented by Lindsey’s argument is whether, in the meaning of subsection 848(q)(4)(B), one may be said to be “proceeding under section 2254” with respect to a claim for which he has not exhausted all available state remedies. We think not. The words “proceeding under section 2254” must be read to comprehend all of section 2254 — especially the exhaustion requirement of subsection 2254(b). Although the exhaustion requirement is not jurisdictional, Strickland v. Washington, 466 U.S. 668, 104 S.Ct.2052, 80 L.Ed.2d 674 (1984), and can be waived by the State, Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the Supreme Court has held that the requirement is so important that even a mixed petition, one containing both exhausted and unexhausted claims, must be dismissed — leaving the petitioner with the choice between returning to state court to exhaust all his claims and amending the petition to delete the unexhausted claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Thus, the district court was barred from granting Lindsey’s petition, absent a waiver of exhaustion by the state. Lindsey v. Thigpen, 875 F.2d 1518 (11th Cir.1989). We conclude, therefore, that Lindsey has not yet initiated a “proceeding under section 2254” as that term is used in subsection 848(q)(4)(B) and that, consequently, his rights to the assistance" } ]

[ { "docid": "8107958", "title": "", "text": "appoint counsel during the pendency of his state collateral review proceedings. None of these complications, however, should be serious enough to dissuade a federal court from appointing counsel to prisoners. The Majority, for example, is concerned that federally-appointed counsel will use federal funds to litigate a prisoner’s habeas claims in state court. I have no quarrel with that concern. In fact, I generally agree with the Majority “that a state prisoner is not entitled, as a matter of statutory right, to have federally paid counsel assist him in the ... exhaustion of his state postconviction remedies.” Maj. Op. at 1213. On the other hand, district courts plainly have discretion to authorize federally-appointed counsel to exhaust claims on a “case-by-case” basis. Harbison v. Bell, 556 U.S. 180, 190 n. 7, 129 S.Ct. 1481, 1489 n. 7, 173 L.Ed.2d 347 (2009) (“Pursuant to § 3599(e)’s provision that counsel may represent her client in ‘other appropriate motions and procedures,’ a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation.” (emphasis added)). The Judicial Conference Committee on Defender Services has issued a memorandum to provide guidance to courts when they are asked to appropriate federal funds for CJA attorneys or federal defender organizations who wish to exhaust state court claims. See Memorandum from Judge Claire V. Eagan, Chair, Judicial Conference Comm, on Defender Servs., to Judges, U.S. Dist. Courts, et. al. 1 (Dec. 9, 2010) (addressing “Use of Defender Services Appropriated Funds by Federal Appointed Counsel for State Court Appearances in Capital Habeas Cases). When a district court is presented with such a request, the Committee recommends that the presiding judge make a case-by-case determination, considering an extensive laundry list of things, including the following: • the availability of the petitioner’s original state postconviction counsel or other qualified state counsel; • the availability of state funds for investigative and expert services; • the willingness of the state court to appoint and compensate the petitioner’s federal counsel; • the number and nature of the claims to be" }, { "docid": "17443436", "title": "", "text": "scope of Gary’s lawyers’ § 3599(a)(2) appointment, the lawyers could not obtain funds pursuant to § 3599(f) for Dr. Hampikian’s services. Gary appeals the District Court’s decision, arguing that the denial of funds for the expert denies him the effective assistance of counsel in obtaining the DNA testing in the Superior Court of Muscogee County, a post-conviction proceeding he claims is within the intendment of § 3599. We have jurisdiction to entertain his appeal. We review the District Court’s in terpretation of § 3599 de novo. See United States v. Dodge, 597 F.3d 1347, 1350 (11th Cir.2010) (en banc). A. As in all cases involving the interpretation of a statute, we begin with the language employed by Congress. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. -, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). Here, the language of the statute is indeed broad. Section 3599 authorizes the appointment of counsel for an indigent prisoner who seeks a writ of habeas corpus setting aside a death sentence, see 18 U.S.C. § 3599(a)(2), and requires that counsel continue to represent the prisoner “throughout every subsequent stage of available judicial proceedings,” including “all available post-conviction process,” id. § 3599(e) (emphasis added). The Supreme Court had occasion to interpret this statute in Harbison v. Bell. In Harbison, the Court said that § 3599 provides indigent defendants with “federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.” 556 U.S. at 194, 129 S.Ct. at 1491. Significantly, however, the Court read the language of § 3599 to limit the right to federally-funded representation in several important ways. The Court found that the language of § 3599(e) listed responsibilities of appointed counsel sequentially, concluding that an indigent prisoner is entitled to counsel’s representation only for those judicial proceedings that ordinarily occur subsequent to counsel’s appointment. Id. at 188, 129 S.Ct. at 1488. The Court reasoned when [counsel] is appointed pursuant to (a)(2), [counsel’s] representation begins with the § 2254 or § 2255 “post-conviction process.” Thus, counsel’s representation includes only those judicial proceedings transpiring “subsequent”" }, { "docid": "19493603", "title": "", "text": "He supplied a list of \"remaining tasks,\" including a full clemency investigation and petition, as well as the filing of petitions under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). He informed the court that he \"has never done a clemency proceeding and needs the expertise of an agency accustomed to such a process.\" He identified FPD-AZ as such an agency and noted that FPD-AZ had already appeared as clemency counsel in ten cases, including three outside of Arizona and two as \"co-counsel with [court-appointed] counsel.\" Niemy also wrote that neither he nor FPD-AZ was seeking separate federal funding as part of the motion. The district court denied Samayoa's motion, concluding that because California provides for state-appointed clemency counsel, \"Petitioner does not appear to qualify for the appointment of federal counsel under § 3599(a)(2).\" The court reasoned that \"it seems appropriate to direct [the] application [for additional counsel] to the court that previously appointed counsel for [clemency] proceedings, in this case the California Supreme Court.\" Samayoa filed a motion for reconsideration, which the district court also denied. Samayoa timely appealed. II. Legal Background The statute at issue, 18 U.S.C. § 3599, provides for federal appointment and compensation of counsel for indigent defendants in capital cases. Section 3599(a)(1), which provides for federal appointment of trial and sentencing counsel, applies only to federal defendants. See Harbison v. Bell , 556 U.S. 180, 186, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). Section 3599(a)(2) provides for federal appointment of counsel for death-row petitioners seeking federal habeas relief, whether the petitioner was convicted in state or federal court: In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with" }, { "docid": "8107930", "title": "", "text": "deadline. Georgia currently has 85 death-row inmates, so that is roughly 1%. We also agree with the concurring opinion that indigent state capital inmates are entitled to the appointment of federally funded counsel to assist them in the preparation and filing of a § 2254 federal habeas petition, perhaps even before they have sought state collateral relief. See 18 U.S.C. § 3599(a)(2); McFarland v. Scott, 512 U.S. 849, 855-56, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994) (holding that the right to appointed counsel in federal habeas proceedings “adheres prior to the filing of a formal, legally sufficient habeas corpus petition” because it “includes a right to legal assistance in the preparation of a habeas corpus application”). We emphasize, however, that a state prisoner is not entitled, as a matter of statutory right, to have federally paid counsel assist him in the pursuit and exhaustion of his' state postconviction remedies, including the filings of motions for state collateral relief that would toll the one-year federal filing period. See Harbison v. Bell, 556 U.S. 180, 189, 129 S.Ct. 1481, 1488, 173 L.Ed.2d 347 (2009) (emphasizing that § 3599 does not “require federally funded counsel to represent her client in any state habeas proceeding occurring after her appointment”); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1274 (11th Cir.2012) (“[A]n indigent prisoner ... may receive § 3599 funding only for those proceedings that ordinarily occur subsequent to [the filing of a § 2254 petition].”); King v. Moore, 312 F.3d 1365, 1368 (11th Cir.2002) (holding, post-McFarland, that a state prisoner is not entitled to federally paid counsel for the purpose of pursuing state postconviction remedies); In re Lindsey, 875 F.2d 1502, 1506 (11th Cir.1989) (holding, pre-McFarland, that the right to federally appointed counsel does not encompass “any proceedings convened under the authority of a State”). And while a district court is not wholly bereft of discretion in this area, we believe that it would be an abuse of that discretion for a district court to appoint federal habeas counsel to assist a state prisoner in exhausting his state postconviction remedies before a" }, { "docid": "17443497", "title": "", "text": "decision require that appointed counsel represent Gary in the proceedings at issue. A Federal law entitles a federal habeas petitioner to appointment of counsel when he is financially unable to obtain adequate representation. 18 U.S.C. § 3599(a)(2). An appointed attorney’s duties are governed by subsection (e): [Ejach attorney ... shall represent the [petitioner] throughout every subsequent stage of available judicial proceedings, including ... all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the [petitioner] in such competency proceedings and proceedings for executive or other clemency as may be available to the [petitioner]. 18 U.S.C. § 3599(e) (emphases added). Harbison clarified that under the plain language of the statute, federally appointed counsel’s duties extend to state clemency proceedings. 556 U.S. at 185-86, 129 S.Ct. at 1486. Specifically, “[b]ecause state clemency proceedings are ‘available’ to state petitioners who obtain representation pursuant to subsection (a)(2), the statutory language indicates that appointed counsel’s authorized representation includes such proceedings.” Id. Georgia law permits each convicted individual to file one extraordinary motion for a new trial after thirty days have elapsed from entry of judgment in his criminal proceeding. O.C.G.A § 5-5-41(a), (b). Just as state clemency proceedings are “available” to state petitioners with § 3599 counsel, so too is a state motion for new trial an “available judicial proceeding[ ]” and, thus, encompassed by the plain language of the statute permitting representation in “other appropriate motions and procedures.” 18 U.S.C. § 3599(e); see Harbison, 556 U.S. at 188, 129 S.Ct. at 1487 (explaining that the word “available” “indicates the breadth of the representation contemplated” by the statute); see also Felker v. Turpin, 83 F.3d 1303, 1312 & n. 6 (11th Cir.1996) (describing an extraordinary motion for new trial as a “state avenue open to process the claim” made by petitioner (alteration and quotation marks omitted)). The reach of § 3599 is not unbounded. Harbison informs us that the statutory term “subsequent” is the operative word to narrow the scope of § 3599(e) rather than any “strict division between federal and state proceedings.” 556" }, { "docid": "20214898", "title": "", "text": "light of the applicable statute-of-limitations bar and the general prohibition against filing successive § 2254 petitions. “Even if post-conviction counsel had been ineffective for failing to bring certain ineffective assistance of trial counsel claims ... in state court,” the district court remarked, none of those claims could be heard on the merits because they “would be subject to dismissal for lack of jurisdiction” and “because the statute of limitations for Petitioner’s federal habeas had already expired.” See Arthur, 739 F.3d at 630 (holding that the Martinez decision has no application to the operation or tolling of the § 2244(d) statute of limitations). On February 3, 2014, which was more than two weeks after the order denying his motion for counsel and only nine days before his scheduled execution, Chavez appealed that order. Three days later, Nor-gard filed in connection with the appeal a motion for a stay of execution pending disposition of the appeal and a motion for this Court to appoint him as Chavez’s appellate counsel. II. An indigent state inmate seeking to challenge his death sentence in federal court is statutorily entitled to the appointment of counsel “in any post conviction proceeding under section 2254.” 18 U.S.C. § 3599(a)(2). The Supreme Court has held that the right to the appointment of counsel “includes a right to legal assistance in the preparation of a habeas corpus application” and thus “adheres prior to the filing of a formal, legally sufficient habeas corpus petition.” McFarland v. Scott, 512 U.S. 849, 855-56, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994). Once federal habeas counsel has been appointed to represent a state prisoner in a § 2254 proceeding, counsel is required to represent the prisoner “throughout every subsequent stage of available judicial proceedings,” including “all available post-conviction process” in state and federal court (such as state clemency proceedings), until he has been “replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant.” 18 U.S.C. § 3599(e); see also Harbison v. Bell, 556 U.S. 180, 185-88, 129 S.Ct. 1481, 1486-88, 173 L.Ed.2d 347 (2009). The Supreme Court has" }, { "docid": "19493604", "title": "", "text": "counsel for [clemency] proceedings, in this case the California Supreme Court.\" Samayoa filed a motion for reconsideration, which the district court also denied. Samayoa timely appealed. II. Legal Background The statute at issue, 18 U.S.C. § 3599, provides for federal appointment and compensation of counsel for indigent defendants in capital cases. Section 3599(a)(1), which provides for federal appointment of trial and sentencing counsel, applies only to federal defendants. See Harbison v. Bell , 556 U.S. 180, 186, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). Section 3599(a)(2) provides for federal appointment of counsel for death-row petitioners seeking federal habeas relief, whether the petitioner was convicted in state or federal court: In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with sections (b) through (f). Section 3599(e) extends the appointment of such attorneys to further proceedings: Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings,... and shall also represent the defendant in such competency proceedings and for executive or other clemency as may be available to the defendant . (Emphasis added.) Section 3599(f) provides that once federal habeas counsel has been appointed, he or she can seek \"investigative, expert, or other services ... reasonably necessary for the representation of the defendant.\" In Harbison v. Bell , 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), the Supreme Court held that an attorney's representation under § 3599(e) includes state clemency proceedings. In that case, a petitioner's federal habeas counsel sought to expand the scope of her representation after \"the Tennessee Supreme Court held that state law does not authorize the appointment of state public defenders as clemency counsel.\" Id. at 182, 129" }, { "docid": "17443468", "title": "", "text": "Gary's motion, which is a final decision. See Harbison v. Bell, 556 U.S. 180, 183, 129 S.Ct. 1481, 1485, 173 L.Ed.2d 347 (2009) (holding that a district court's denial of representation for an indigent prisoner contending that he has a statutory right to representation is a final appealable order under § 1291). . Two limitations that are not relevant here are: (1) if his conviction or death sentence is set aside, the prisoner is not entitled to the appointment of counsel under § 3599 for retrial in state court, despite the fact that the retrial would occur subsequent to the conclusion of the prisoner’s federal habeas case, Harbison v. Bell, 556 U.S. at 189, 129 S.Ct. at 1488 (\"We do not read [§ 3599](e) to apply to state-court proceedings that follow the issuance of a federal writ of habeas corpus.”); and (2) if the State provides counsel for any proceeding otherwise covered by § 3599, federal funding is not available, id. (\"[S]ubsection (a)(2) provides for counsel only when a state petitioner is unable to obtain adequate representation.”). . An execution could not go forward until the federal courts have considered and disposed of the prisoner's petition for a writ of habeas corpus. See Lonchar v. Thomas, 517 U.S. 314, 320, 116 S.Ct. 1293, 1297, 134 L.Ed.2d 440 (1996) (\"If the district court cannot dismiss the [habeas] petition on the merits before the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot.”). A clemency proceeding in Georgia, at a minimum, cannot be held until after the prisoner has been denied habeas relief. . The dissent claims that a motion for a new trial is like a clemency hearing in that each presents “a final chance to rectify any fundamental miscarriage of justice.” Post at 1287. The dissent continues, noting that extraordinary motions for a new trial can be filed \"at any time after the expiration of the thirty-day statutory period,” id. at 1288 (emphasis omitted), and are \"typically” filed after the prisoner has been denied federal habeas relief, id." }, { "docid": "8107931", "title": "", "text": "129 S.Ct. 1481, 1488, 173 L.Ed.2d 347 (2009) (emphasizing that § 3599 does not “require federally funded counsel to represent her client in any state habeas proceeding occurring after her appointment”); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1274 (11th Cir.2012) (“[A]n indigent prisoner ... may receive § 3599 funding only for those proceedings that ordinarily occur subsequent to [the filing of a § 2254 petition].”); King v. Moore, 312 F.3d 1365, 1368 (11th Cir.2002) (holding, post-McFarland, that a state prisoner is not entitled to federally paid counsel for the purpose of pursuing state postconviction remedies); In re Lindsey, 875 F.2d 1502, 1506 (11th Cir.1989) (holding, pre-McFarland, that the right to federally appointed counsel does not encompass “any proceedings convened under the authority of a State”). And while a district court is not wholly bereft of discretion in this area, we believe that it would be an abuse of that discretion for a district court to appoint federal habeas counsel to assist a state prisoner in exhausting his state postconviction remedies before a formal § 2254 petition has been filed and, even then, only where the petitioner is unable to obtain adequate legal representation in state court. See Harbison, 556 U.S. at 189-90 & n. 7, 129 S.Ct. at 1488-89 & n. 7 (explaining that “a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation,” yet emphasizing that § 3599 “provides for counsel only when a state petitioner is unable to obtain adequate representation,” meaning that the provision of “state-furnished representation renders him ineligible for § 3599 counsel until the commencement of [] § 2254 proceedings”) (emphasis added); Gore v. Crews, 720 F.3d 811, 814 n. 1 (11th Cir.2013) (stating in dicta that if a petitioner’s “state court counsel is not providing representation adequate to exhaust his state court remedies, ... a district court could determine, in its discretion, that it is necessary for court-appointed counsel to exhaust a claim in state court in the course of her federal habeas" }, { "docid": "19493608", "title": "", "text": "Id. In conclusion, the Court held \"that § 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.\" Id. at 194, 129 S.Ct. 1481. III. Discussion The California Attorney General's Office (hereinafter \"State\") argues that the district court can appoint additional counsel under § 3599 only if Samayoa can show \"he is unable to obtain adequate representation from the state to pursue executive clemency.\" We disagree. A district court's interpretation of a statute is a question of law which we review de novo. Carson Harbor Vill., Ltd. v. Unocal Corp. , 270 F.3d 863, 870 (9th Cir. 2001) (en banc). A. Niemy's Federal Appointment To start, it is uncontested that Niemy remains Samayoa's federally appointed counsel and represents Samayoa in his state clemency proceedings pursuant to that appointment. Niemy's status as clemency counsel frames the question before us-whether additional clemency counsel may be appointed pursuant to § 3599. The availability of state appointment of clemency counsel is irrelevant to federally appointed counsel's ongoing representation of a death-row client in state clemency proceedings. Harbison instructs that the \"straightforward\" reading of § 3599(e) controls. 556 U.S. at 185, 129 S.Ct. 1481. That section says that, unless replaced, federally appointed habeas counsel \"shall represent the defendant ... in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.\" 18 U.S.C. § 3599(e) (emphasis added). This language does not invite a blanket exception if the state also provides for clemency counsel. We disagree with the Sixth Circuit's holding to the contrary in Irick v. Bell , 636 F.3d 289 (6th Cir. 2011). In Irick , the Sixth Circuit held that a Tennessee death-row inmate's federal habeas counsel could not receive federal funding to represent his client in several state court proceedings identified in § 3599(e) because state law provided for appointment of counsel in those proceedings. Id. at 290. The Sixth Circuit wrote, \"In Harbison , the Supreme Court arrived at its holding only after noting that state law did not authorize the appointment of state" }, { "docid": "20214899", "title": "", "text": "his death sentence in federal court is statutorily entitled to the appointment of counsel “in any post conviction proceeding under section 2254.” 18 U.S.C. § 3599(a)(2). The Supreme Court has held that the right to the appointment of counsel “includes a right to legal assistance in the preparation of a habeas corpus application” and thus “adheres prior to the filing of a formal, legally sufficient habeas corpus petition.” McFarland v. Scott, 512 U.S. 849, 855-56, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994). Once federal habeas counsel has been appointed to represent a state prisoner in a § 2254 proceeding, counsel is required to represent the prisoner “throughout every subsequent stage of available judicial proceedings,” including “all available post-conviction process” in state and federal court (such as state clemency proceedings), until he has been “replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant.” 18 U.S.C. § 3599(e); see also Harbison v. Bell, 556 U.S. 180, 185-88, 129 S.Ct. 1481, 1486-88, 173 L.Ed.2d 347 (2009). The Supreme Court has also held, however, that substitution of federally appointed counsel is warranted only when it would serve “the interests of justice.” Martel v. Clair, — U.S. -, 132 S.Ct. 1276, 1284, 182 L.Ed.2d 135 (2012) (quoting 18 U.S.C. § 3006A). Among other things, that means a district court is not “required to appoint a new lawyer just so [a state prisoner can] file a futile motion.” Id. at 1289. Although Chavez characterized his motion as a request for the appointment of federal counsel, and the district court treated it that way, Chavez was effectively seeking the substitution of counsel. That’s because Norgard had been appointed to represent Chavez in his federal habeas proceedings and, by statute, was required to continue representing Chavez in all later stages of available post-conviction proceedings until his replacement by another attorney. See 18 U.S.C. § 3599(e). Unless and until an order is entered removing Norgard or substituting another counsel for him, he remains counsel for Chavez in this and any future federal habeas proceedings. When Chavez’s request is properly viewed as" }, { "docid": "17443435", "title": "", "text": "the Superior Court ordered limited DNA testing of samples taken from three victims. On May 24, 2010, Gary asked the District Court to provide funds pursuant to § 3599(f) for a DNA expert, Dr. Greg Hampikian, to assist counsel in moving the Superior Court to order additional DNA testing. On June 4, 2010, the District Court entered an order providing funds not to exceed $7,500 to pay Dr. Hampikian. On August 19, 2011, Gary asked the District Court to provide an additional $3,500 for Dr. Hampikian in anticipation of the Superior Court’s authorization of another round of DNA testing. The District Court denied this request. The court concluded that, in light of the Supreme Court’s decision in Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), the DNA testing ordered by the Superior Court pursuant to O.C.G.A. § 5-5-41(c) was not a post-conviction process covered by § 3599(e), even though Gary filed the motion subsequent to the initiation of his § 2254 case. Thus, since the DNA Motion was outside the scope of Gary’s lawyers’ § 3599(a)(2) appointment, the lawyers could not obtain funds pursuant to § 3599(f) for Dr. Hampikian’s services. Gary appeals the District Court’s decision, arguing that the denial of funds for the expert denies him the effective assistance of counsel in obtaining the DNA testing in the Superior Court of Muscogee County, a post-conviction proceeding he claims is within the intendment of § 3599. We have jurisdiction to entertain his appeal. We review the District Court’s in terpretation of § 3599 de novo. See United States v. Dodge, 597 F.3d 1347, 1350 (11th Cir.2010) (en banc). A. As in all cases involving the interpretation of a statute, we begin with the language employed by Congress. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. -, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). Here, the language of the statute is indeed broad. Section 3599 authorizes the appointment of counsel for an indigent prisoner who seeks a writ of habeas corpus setting aside a death sentence, see 18 U.S.C. § 3599(a)(2), and" }, { "docid": "17443489", "title": "", "text": "petitioner in state clemency proceedings. Compare Harbison v. Bell, No. 97-52, 2007 WL 128954, at *6-7 (E.D.Tenn.2007) (framing the issue as “whether [§ 3599] provides for federally-appointed counsel during state clemency proceedings”), with Gary, 2011 WL 205772, at *1 (“The issue presented ... is whether Petitioner is entitled to federally funded counsel to pursue his extraordinary motion for new trial.”). The Sixth Circuit recognized the appeal as challenging “a final order denying counsel in a clemency proceeding” and concluded that controlling precedent foreclosed the appeal on the merits. Harbison v. Bell, 503 F.3d 566, 570 (6th Cir.2007). In reviewing that decision, the Supreme Court made short shrift of any jurisdictional challenge, noting that “the District Court’s denial of Harbison’s motion to authorize his federal counsel to represent him in state clemency proceedings was clearly an appealable order under 28 U.S.C. § 1291.” Harbison v. Bell, 556 U.S. at 183, 129 S.Ct. at 1485. There is substantively no difference in the jurisdictional inquiry when considering the district court’s failure to extend § 3599 to state clemency proceedings on the one hand and a state motion for new trial on the other. What is more, we have previously exercised jurisdiction to consider the scope of representation beyond clemency. In In re Lindsey, a panel of this court considered a petition for mandamus to require appointment of counsel for state proceedings concerning a death-sentenced inmate. 875 F.2d 1502 (11th Cir.1989) (Tjoflat, Vance, and Kravitch, JJ.) (reviewing the petition under the predecessor statute of § 3599). The petition in Lindsey “contested] only the district court’s refusal to appoint a psychiatrist and a lawyer ... to assist Lindsey in his pursuit of state-court remedies” for his competency-to-be-executed claim. Id. at 1505. In denying that petition on the merits, we construed the terms of the predecessor to § 3599 to not encompass “any proceedings convened under the authority of a State.” Id. at 1506. In doing so, we conclusively resolved a question of construction about the scope of representation under the federal statute, which the district court ruled was limited in scope to certain proceedings. See" }, { "docid": "8107933", "title": "", "text": "representation....”) (quotation marks omitted); see also Irick v. Bell, 636 F.3d 289, 292 (6th Cir.2011) (“[E]ven if § 3599 would otherwise apply to Irick’s state post-conviction proceedings, he would not be eligible for federal funding because state law affords him ‘adequate representation.’ ”) (quoting Harbison, 556 U.S. at 189, 129 S.Ct. at 1488). This all makes good sense. To mandate the provision of federally funded counsel to assist a state prisoner in his pursuit of state postconviction remedies not only “would increase the cost of implementing [§ 3599] enormously,” Sterling v. Scott, 57 F.3d 451, 457 (5th Cir.1995), but also “would have the practical effect of supplanting state-court systems for the appointment of counsel in collateral review cases,” In re Lindsey, 875 F.2d at 1506. It is unlikely that Congress intended either of these results when it authorized the appointment of federal counsel to aid state capital prisoners in seeking federal habeas relief in federal court. See King, 312 F.3d at 1368 (noting that it is “unlikely” that Congress intended “to provide counsel, at federal expense, to state prisoners engaged in state proceedings”). We are also skeptical that filings of anticipatory, shell, or placeholder § 2254 petitions while state prisoners exhaust their state collateral remedies will significantly mitigate the problem of missed AEDPA deadlines among Florida inmates. District courts are not required to accept such filings and stay the federal habeas proceedings, possibly for years, while a state prisoner completes his state collateral proceedings. To the contrary, the Supreme Court has held that, except in limited circumstances, district courts must dismiss § 2254 petitions without prejudice until the petitioner has fully exhausted his state postconviction remedies with respect to each of his asserted claims for relief. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) (holding that district courts ordinarily must dismiss a § 2254 petition without prejudice if the petitioner has not exhausted his state postconviction remedies); Rhines v. Weber, 544 U.S. 269, 275-79, 125 S.Ct. 1528, 1534-36, 161 L.Ed.2d 440 (2005) (holding that district courts may employ a “stay-and-abeyance” procedure in" }, { "docid": "17443467", "title": "", "text": "County. Gary properly asserted his right in a motion before the District Court. Cf. supra note 21. Gary also implicitly argued to the District Court that, in addition to the provision of funds to pay for the services of an expert under § 3599(f), the District Court should also expand his lawyers' § 3599(a)(2) appointment in the federal habeas case to include the state proceedings. The District Court disagreed on both fronts. Thus, in appealing the District Court's denial of § 3599(f) funds to hire Dr. Hampikian, Gary also effectively appealed the District Court's refusal to expand the scope of the § 3599(a)(2) appointment that would have allowed his lawyers to represent him before the Superior Court. In sum, we conclude that the District Court had retained jurisdiction to determine the scope of duties encompassed under the § 3599(a)(2) appointment and the availability of expert funds under § 3599(f), and whether the DNA motion fell within that ambit of representation. We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s determination on Gary's motion, which is a final decision. See Harbison v. Bell, 556 U.S. 180, 183, 129 S.Ct. 1481, 1485, 173 L.Ed.2d 347 (2009) (holding that a district court's denial of representation for an indigent prisoner contending that he has a statutory right to representation is a final appealable order under § 1291). . Two limitations that are not relevant here are: (1) if his conviction or death sentence is set aside, the prisoner is not entitled to the appointment of counsel under § 3599 for retrial in state court, despite the fact that the retrial would occur subsequent to the conclusion of the prisoner’s federal habeas case, Harbison v. Bell, 556 U.S. at 189, 129 S.Ct. at 1488 (\"We do not read [§ 3599](e) to apply to state-court proceedings that follow the issuance of a federal writ of habeas corpus.”); and (2) if the State provides counsel for any proceeding otherwise covered by § 3599, federal funding is not available, id. (\"[S]ubsection (a)(2) provides for counsel only when a state petitioner is unable to obtain" }, { "docid": "8107932", "title": "", "text": "formal § 2254 petition has been filed and, even then, only where the petitioner is unable to obtain adequate legal representation in state court. See Harbison, 556 U.S. at 189-90 & n. 7, 129 S.Ct. at 1488-89 & n. 7 (explaining that “a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation,” yet emphasizing that § 3599 “provides for counsel only when a state petitioner is unable to obtain adequate representation,” meaning that the provision of “state-furnished representation renders him ineligible for § 3599 counsel until the commencement of [] § 2254 proceedings”) (emphasis added); Gore v. Crews, 720 F.3d 811, 814 n. 1 (11th Cir.2013) (stating in dicta that if a petitioner’s “state court counsel is not providing representation adequate to exhaust his state court remedies, ... a district court could determine, in its discretion, that it is necessary for court-appointed counsel to exhaust a claim in state court in the course of her federal habeas representation....”) (quotation marks omitted); see also Irick v. Bell, 636 F.3d 289, 292 (6th Cir.2011) (“[E]ven if § 3599 would otherwise apply to Irick’s state post-conviction proceedings, he would not be eligible for federal funding because state law affords him ‘adequate representation.’ ”) (quoting Harbison, 556 U.S. at 189, 129 S.Ct. at 1488). This all makes good sense. To mandate the provision of federally funded counsel to assist a state prisoner in his pursuit of state postconviction remedies not only “would increase the cost of implementing [§ 3599] enormously,” Sterling v. Scott, 57 F.3d 451, 457 (5th Cir.1995), but also “would have the practical effect of supplanting state-court systems for the appointment of counsel in collateral review cases,” In re Lindsey, 875 F.2d at 1506. It is unlikely that Congress intended either of these results when it authorized the appointment of federal counsel to aid state capital prisoners in seeking federal habeas relief in federal court. See King, 312 F.3d at 1368 (noting that it is “unlikely” that Congress intended “to provide counsel, at federal" }, { "docid": "19493609", "title": "", "text": "of a death-row client in state clemency proceedings. Harbison instructs that the \"straightforward\" reading of § 3599(e) controls. 556 U.S. at 185, 129 S.Ct. 1481. That section says that, unless replaced, federally appointed habeas counsel \"shall represent the defendant ... in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.\" 18 U.S.C. § 3599(e) (emphasis added). This language does not invite a blanket exception if the state also provides for clemency counsel. We disagree with the Sixth Circuit's holding to the contrary in Irick v. Bell , 636 F.3d 289 (6th Cir. 2011). In Irick , the Sixth Circuit held that a Tennessee death-row inmate's federal habeas counsel could not receive federal funding to represent his client in several state court proceedings identified in § 3599(e) because state law provided for appointment of counsel in those proceedings. Id. at 290. The Sixth Circuit wrote, \"In Harbison , the Supreme Court arrived at its holding only after noting that state law did not authorize the appointment of state public defenders for the purpose of pursuing state clemency proceedings.\" Id. at 291. We find this reasoning unpersuasive. The Court in Harbison did note at the outset that Tennessee did not provide for clemency counsel. Harbison , 556 U.S. at 182, 129 S.Ct. 1481. But that fact was provided as part of the Court's opening narrative to explain how the case arose. See id. Nowhere in the Court's statement of the question on certiorari or in its discussion of the case did it condition the scope of § 3599(e) on the state's failure to provide clemency counsel. Harbison 's discussion of why Congress intended § 3599(e) to include state clemency proceedings supports the plain reading of the text. One of Harbison 's primary rationales was that habeas counsel is uniquely positioned to advocate for clients in subsequent proceedings. Harbison emphasized \"continuity of counsel,\" noting that \"the work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application.\" Id. at 193, 129 S.Ct. 1481. Harbison was thus concerned with not" }, { "docid": "7428588", "title": "", "text": "attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant. Irick’s arguments with respect to § 3599 focus heavily on the Supreme Court’s decision in Harbison v. Bell, — U.S. —, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). In Harbison, the Supreme Court held that “§ 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.” Id. at 1491. Irick argues that the rationale of Harbison applies with equal force to the proceedings for which he seeks federally funded representation. The district court rejected Irick’s arguments on the basis that § 3599 applies only when adequate representation is unavailable. Because state law affords Irick adequate representation, the district court denied his motion. We adopt the district court’s holding in this case. The district court correctly analyzed Irick’s claims. In Harbison, the Supreme Court arrived at its holding only after noting that state law did not authorize the appointment of state public defenders for the purpose of pursuing state clemency proceedings. Id. at 1484. The Court further emphasized that “[§ 3599](a)(2) provides for counsel only when a state petitioner is unable to obtain adequate representation.” Id. at 1488; see also Rosales v. Quarterman, 565 F.3d 308, 312 (5th Cir.2009) (denying defendant’s § 3599 request for counsel where the defendant already had adequate representation for the proceeding at issue); Hill v. Mitchell, 2009 WL 2898812, at *4-6 (S.D.Ohio Sept.4, 2009) (denying defendant’s § 3599(e) request for federally appointed counsel for his Atkins proceeding because state law entitled him to appointed counsel). Absent clear direction from the United States Supreme Court or Congress, we decline to obligate the federal government to pay" }, { "docid": "8107957", "title": "", "text": "counted toward any period of limitation” under the AEDPA (28 U.S.C. § 2244(d)(2)), all or any portion of the federal statute of limitations could expire before the state post-conviction petition is filed. State post-conviction counsel often expend nearly all of the federal limitations period before filing a state postconviction pleading. This is especially true in states that have longer filing deadlines than those provided by the AEDPA. Timely Appointment Strategy, U.S. Jud. Conf. Defender Servs. Comm., Goal 1 (Timeliness), Strategy 12 (Capital Habeas Corpus) & Goal 2 (Quality of Representation), Strategy 18 (Capital Habeas Corpus) cmt. (emphasis added). Thus, state court prisoners on death row can and should take advantage of their statutory right to counsel in federal habeas proceedings at the time their case becomes final on direct review. Doing so will protect a prisoner’s right to federal habeas review, regardless of how long it takes for state postconviction counsel to file a state habeas petition. See n. 5, infra. III. Of course, complications can arise when a prisoner petitions a federal court to appoint counsel during the pendency of his state collateral review proceedings. None of these complications, however, should be serious enough to dissuade a federal court from appointing counsel to prisoners. The Majority, for example, is concerned that federally-appointed counsel will use federal funds to litigate a prisoner’s habeas claims in state court. I have no quarrel with that concern. In fact, I generally agree with the Majority “that a state prisoner is not entitled, as a matter of statutory right, to have federally paid counsel assist him in the ... exhaustion of his state postconviction remedies.” Maj. Op. at 1213. On the other hand, district courts plainly have discretion to authorize federally-appointed counsel to exhaust claims on a “case-by-case” basis. Harbison v. Bell, 556 U.S. 180, 190 n. 7, 129 S.Ct. 1481, 1489 n. 7, 173 L.Ed.2d 347 (2009) (“Pursuant to § 3599(e)’s provision that counsel may represent her client in ‘other appropriate motions and procedures,’ a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a" }, { "docid": "17443488", "title": "", "text": "Inc. v. Ill. Union Ins. Co., 894 F.2d 1300, 1305 (11th Cir.1990), which concerned the scope of federally funded representation authorized by § 3599. There was nothing ambiguous or tentative about the district court’s determination that would indicate that its ruling would be subject to a third, independent consideration at some future date. Cf. Thomas, 594 F.3d at 830 (holding that an order was not final where the district court did not conclusively rule either way on the post-judgment issue). I therefore conclude that the order denying reconsideration was final in the context of the postjudgment proceedings. But I do not even have to independently arrive at this conclusion, as controlling precedent also confounds the majority’s jurisdiction-based dismissal. In Harbison, the Supreme Court resolved a question about the scope of representation under § 3599 as related to state clemency. The district court in that case issued an order practically indistinguishable from the one the district court issued here, finding conclusively that the scope of § 3599 did not contemplate federally funded counsel’s representation of a petitioner in state clemency proceedings. Compare Harbison v. Bell, No. 97-52, 2007 WL 128954, at *6-7 (E.D.Tenn.2007) (framing the issue as “whether [§ 3599] provides for federally-appointed counsel during state clemency proceedings”), with Gary, 2011 WL 205772, at *1 (“The issue presented ... is whether Petitioner is entitled to federally funded counsel to pursue his extraordinary motion for new trial.”). The Sixth Circuit recognized the appeal as challenging “a final order denying counsel in a clemency proceeding” and concluded that controlling precedent foreclosed the appeal on the merits. Harbison v. Bell, 503 F.3d 566, 570 (6th Cir.2007). In reviewing that decision, the Supreme Court made short shrift of any jurisdictional challenge, noting that “the District Court’s denial of Harbison’s motion to authorize his federal counsel to represent him in state clemency proceedings was clearly an appealable order under 28 U.S.C. § 1291.” Harbison v. Bell, 556 U.S. at 183, 129 S.Ct. at 1485. There is substantively no difference in the jurisdictional inquiry when considering the district court’s failure to extend § 3599 to state clemency" } ]

[ { "docid": "23512027", "title": "", "text": "his initial § 2255 motion. Rather, it was first raised in his supplemental objections to the magistrate judge's final Report and Recommendation. The magistrate thus never had the opportunity to consider this issue. Courts have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent compelling reasons, it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate. See United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir.1996) (\"issues raised for the first time in objections to magistrate judge's report and recommendation are deemed waived”)); see also Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994); PatersonLeitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Anna Ready Mix, Inc. v. N.E. Pierson Constr. Co., Inc., 747 F.Supp. 1299, 1302-03 (S.D.Ill.1990). Hence, Petitioner's failure to raise this claim before the magistrate constitutes waiver. Nonetheless, Petitioner's claim fails on the merits. . Following oral argument, the Court allowed Petitioner to file a supplemental brief only on the CCE issue. The government was permitted to respond. On October 22, 1999, Petitioner filed a Supplemental Brief and Addendum, in which Petitioner argued that the district court's order denying the § 2255 motion should be reversed because the district court did not consider that the government allegedly knew all facts forming the basis for the subsequent prosecution in Kentucky before the final judgment was entered on the Tennessee charges. Petitioner did not argue or provide any information regarding the CCE issue. Hence, Petitioner’s supplemental brief and addendum was not submitted in compliance with this Court’s order and we will not consider the arguments raised by Petitioner in his Supplemental Brief. See, e.g., United States v. Universal Management Servs., Inc. Corp., 191 F.3d 750, 759 (6th Cir.1999) (citing Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986) (refusing to consider argument raised for the first time" } ]

[ { "docid": "22867844", "title": "", "text": "The Commissioner argues that, before Heston’s challenges to the findings at the fourth and fifth steps can be considered, she must have also challenged the finding of no severe impairment at step two. Because she has not done so, the Commissioner argues, she is foreclosed from review on the merits by this court of her challenge to the findings at steps four and five. We hold that the Commissioner cannot rely on any waiver by Heston to foreclose consideration of her claims on the merits, because the Commissioner failed to bring Heston’s waiver to the attention of the Magistrate Judge or the District Judge. As a result, neither the Magistrate Judge nor the District Judge had the opportunity to consider the Commissioner’s argument that Heston’s failure to challenge the step two determination foreclosed her challenge to the ALJ’s findings at steps four and five. The Commissioner’s claim of waiver violates the fundamental principle that the trial court must be presented with an opportunity to review, an argument before it may be raised on appeal. E.g., Murr v. United States, 200 F.3d 895, 902 (6th Cir.2000) (parties may not raise new arguments or issues at the district court stage that were not presented to the Magistrate Judge); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.1994) (respondent waived review of issue of petitioner’s procedural default by not objecting to petitioner’s original claim before the Magistrate Judge); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (party “has a duty to put its best foot forward” before the Magistrate Judge in order to present the issue at a subsequent appeal). As a result of its own waiver, the Commissioner is precluded from arguing that Heston’s challenges to the ALJ’s findings at steps four and five cannot be considered due to her failure to assert a challenge to the predicate finding at step two. We consider, accordingly, Heston’s claims on their merits. B. The ALJ Did Not Commit Reversible Error By Not Explicitly Considering Dr. Haun’s Report Heston argues that the ALJ committed reversible error by failing" }, { "docid": "18623629", "title": "", "text": "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As the magistrate and the district courts found, so do we: our de novo review of the record reveals, as we have addressed above, that there was ample evidence upon which the jury could have reasonably found Cupit guilty beyond a reasonable doubt of James Allen Halley’s second degree murder—even without the assumed, improperly admitted hearsay evidence. III. CONCLUSION For the reasons stated above, the judgment of the district court is hereby VACATED; and the case is hereby REMANDED with directions to dismiss the petitioner’s writ. So Ordered. . Federal District Court Record, at 82. . Id., at 85-86. . Id., at 140-144. . See, e.g., Long v. McCotter, 792 F.2d 1338, 1345 (5th Cir.1986) (\"we ordinarily do not consider issues that have not been presented to the court of first instance\") (citations omitted). See also e.g., Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-991 (1st Cir.1988) (explaining that a party \"has a duty to put its best foot forward” before the Magistrate Judge — i.e., \"to spell out its arguments squarely and distinctly\" — and, accordingly, that a party’s entitlement to de novo review before the district court upon filing objections to the Report and Recommendation of the Magistrate Judge does not entitle it to raise issues at that stage that were not adequately presented to the Magistrate Judge); Anna Ready Mix, Inc. v. N.E. Pierson Construction Co., 747 F.Supp. 1299, 1302-1303 (S.D.Ill.1990) (thoroughly analyzing the federal Magistrate Judge Act, 28 U.S.C. § 631, et seq., and discerning therefrom that when a matter is assigned to a Magistrate Judge, Congress intended that the Magistrate Judge hear all arguments of the parties and take all evidence; and, accordingly, holding that while the Act provides for de novo review by the dis trict court if timely objections are filed, it does not allow the parties to raise at the district court stage new evidence, argument, and issues that were not presented to the Magistrate Judge— “absent compelling reasons”). ." }, { "docid": "23182467", "title": "", "text": "(10th Cir.1996); accord Cupit v. Whitley, 28 F.3d 532, 535 & n. 5 (5th Cir.1994) (deciding that legal arguments, such as challenges based on exhaustion or procedural default, raised for the first time in objections to a magistrate’s report and recommendation may be waived). The Ninth Circuit noted that “allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.” Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc). In accord with this precedent, in United States v. Howell, the Ninth Circuit relied heavily on the district court’s discretion, and, like the First, Fifth, and Tenth Circuits, stated that a district court “is not required to[ ] consider evidence presented for the first time in a party’s objection to the magistrate judge’s recommendation.” 231 F.3d 615, 621 (9th Cir.2000). In addition to finding that both the Magistrates Act and Supreme Court precedent provide discretion to the district court in this instance, the court noted that “[t]o require a district court to consider evidence not previously presented to the magistrate judge would effectively nullify the magistrate judge’s consideration of the matter and would not help to relieve the workload of the district court.” Id. at 622. “Systemic efficiencies would be frustrated and the magistrate judge’s role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round.” Id. (quoting Paterson-Leitch Co., 840 F.2d at 991). In this case, the district court acknowledged that it had discretion to consider Williams’s timeliness argument but declined to do so because Williams failed to respond to the magistrate’s order directing him to file a reply on the precise issue of timeliness. The district court retained the final adjudicative authority and properly exercised its discretion in deciding whether to consider any new" }, { "docid": "15875587", "title": "", "text": "a Glomar response, to be “appropriate where an acknowledgment that records exist would provide the requester with the very information the exemption is designed to protect.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 n. 8 (D.C.Cir.1995); see Phillippi v. CIA, 546 F.2d 1009, 1015 (D.C.Cir.1976) (remanding for further proceedings case in which the CIA refused to confirm or deny the existence of materials relating to a vessel called the Glomar Explorer). On appeal, SAGE raises no issues regarding the government's assertion of a Glo-mar response. . The court stated: Plaintiffs neither requested during the hearing, nor in the three intervening months between the hearing and the Report and Recommendation, that the Court or the Magistrate Judge direct defendants to provide affidavits containing the declarations made on the record regarding the adequacy of the search and the responsiveness of the information released and withheld. Id. at 2-3. In support of its conclusion that this failure waived the objection, the district court cited Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) (\"Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”), and Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (\"[A]n unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.”). . The district court ruled that SAGE had waived this waiver argument by failing to raise it before the magistrate. Dist. Ct. Op. at 3. However, because the government concedes that “plaintiffs’ counsel did appear to raise this argument” at the magistrate hearing, we consider it here. Govt. Br. at 57 n.7. . See Swan, 96 F.3d at 500 (“Agencies, and hence courts, must evaluate the risk of disclosing records to some particular FOIA requester not simply in terms of what the requester might do with the information, but also in terms of what anyone else might do with it.”); see also Military Audit Project, 656 F.2d at 730 n. 11 (noting that the identity of the FOIA' requester is immaterial" }, { "docid": "23171979", "title": "", "text": "at 508 (finding no habeas jurisdiction in transitional case where § 1252(g) applied); but see Turkhan v. Perryman, 188 F.3d 814, 823 (7th Cir.1999) (following LaGuerre as barring habeas jurisdiction under AEDPA § 440(a), without specifying which IIRIRA amendments, including § 1252(g), apply; but allowing habeas jurisdiction under the circumstances). .Requena does not argue that AEDPA § 440(d) should not apply to deportation proceedings that were pending on the date it became effective. Although he contests the Attorney General’s ruling in Soriano — which applied § 440(d) to § 212(c) petitions that were pending when AEDPA became effective — his argument is clearly limited to the contention that \" § 440(d) of AEDPA may not be applied retroactively to conduct or events, in this case [Requena's] negotiated plea agreement and the resulting conviction, that pre-dated the date of enactment of AEDPA.” .Our decision to consider Requena’s arguments does not detract from a district court's power to decide that legal arguments not raised before a magistrate judge are waived. See Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (a \"party is not entitled as of right to de novo review by the [district] judge of an argument never seasonably raised before the magistrate” (emphasis added)), cited in Cupit v. Whitley, 28 F.3d 532, 534 n. 5 (5th Cir.1994). . See Shah, 184 F.3d at 723; Mayers, 175 F.3d at 1301-1304; Sandoval, 166 F.3d at 239-42; Henderson, 157 F.3d at 128-30 & n. 28; and Goncalves, 144 F.3d at 126. . See DeSousa v. Reno, 190 F.3d 175, 185-87 (3d Cir.1999); Jurado-Gutierrezv. Greene, 190 F.3d at 1152, (10th Cir.1999); Turkhan v. Perryman, 188 F.3d 814, 828 (7th Cir.1999). . Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). . Moosa v. INS, 171 F.3d 994, 1009 (5th Cir.1999) (quoting Ignacio v. INS, 955 F.2d 295, 298 (5th Cir.1992)). . See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.1996); Samaniego-Meraz v. INS, 53 F.3d 254, 257-58 (9th Cir.1995); De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993); Barreiro" }, { "docid": "2877613", "title": "", "text": "for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national average of 5.7 months). . (Dkt. No. 39, Part 45, at 21-23 [Defs.’ Memo, of Law].) . See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994) (\"In objecting to a magistrate’s report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.’’) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int’l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff \"offered no justification for not offering the testimony at the hearing before the magistrate”); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at * 18 n. 8 (S.D.N.Y. Sept. 30, 1993) (declining to consider affidavit of expert witness that was not before magistrate) [citation omitted]; see also Murr v. U.S., 200 F.3d 895, 902, n. 1 (6th Cir.2000) (“Petitioner's failure to raise this claim before the magistrate constitutes waiver.”); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) (\"Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.”) [citations omitted]; Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.1994) (\"By waiting until after the magistrate court had issued its findings and recommendations [to raise its procedural default argument] ... Respondent has waived [his] procedural default ... objection[].”) [citations omitted]; Paterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (”[A]n unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.”) [citation omitted]. . (See Dkt. No. 40 [Order filed Jan. 22, 2008, granting Plaintiff an extension until Jan. 31, 2008, to respond to Defendants' motion]; Dkt. No. 41 [Plf.'s Response, filed Feb. 14, 2008]; Dkt. No. 42 [Plf.’s Supplemental Response, filed Feb. 19, 2008]; Dkt. No. 44 [Plf.’s Second Supplemental Response, filed March 19, 2008].)" }, { "docid": "12998749", "title": "", "text": "court refused to consider an argument that had not been presented to the magistrate judge. See Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir.1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc); Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988). Tolbert and Duarte counter that the Fourth Circuit has held that a district court must consider an argument in support of a dispositive motion even though that argument had not been presented to the magistrate judge. See United States v. George, 971 F.2d 1113, 1118 (4th Cir.1992). In addition, the Fifth and Tenth Circuits have refused to consider an argument that was not first presented to the magistrate judge. See Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir.1996); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.1994). All of these decisions are inappo-site, however. We need not decide whether a district court must consider an argument that had not been presented to the magistrate judge or whether we must consider such an argument. The issue before us is narrower: whether a district court abuses its discretion when it accepts an argument that had not been presented to the magistrate judge. Our resolution of this issue depends on an analysis of the statutory and constitutional relationship between the district court and the magistrate judge. The district court acted within its broad discretion when it considered and accepted an argument that had not been presented to the magistrate judge. Contrary to Stephens’s argument, a referral of a dispositive motion to a magistrate judge is necessarily limited, but the review by the district court is not. When a district court refers a dispositive motion to a magistrate judge for a report and recommendation, the district court retains, as a statutory and a constitutional matter, broad discretion over the report and recommendation. Under the Federal Magistrates Act, “the magistrate [judge] has no authority to make a final and binding” ruling on a dispositive motion. Raddatz, 447 U.S. at 673, 100 S.Ct." }, { "docid": "22766843", "title": "", "text": "for the first time in a party’s objection to the magistrate judge’s recommendation. See Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir.1998); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988). “We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.” Paterson-Leitch Co., 840 F.2d at 990. The Fourth Circuit, in contrast, maintains that a district court must consider any argument or evidence presented on a timely objection to a magistrate judge’s recommendation, so long as it could have been raised before the magistrate judge. United States v. George, 971 F.2d 1113, 1118 (4th Cir.1992). “The district court cannot artificially limit the scope of its review by resort to ordinary prudential rules, such as waiver, provided that proper objection to the magistrate judge’s proposed finding or conclusion has been made and the appellant’s right to de novo review by the district court thereby established.” Id. Like the First and Fifth Circuits, we conclude that a district court has discretion, but is not required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation. We emphasize, howev er, that in making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion. The language of the Magistrate Act, its legislative history, Supreme Court precedent, and practical considerations support our conclusion. Most importantly, the language of the statute grants discretion to a district court. As Howell points out, if a party files timely written objections to a magistrate judge’s recommendation, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C) (emphasis added). In making its de novo determination, “[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations by the magistrate judge. The judge" }, { "docid": "4206378", "title": "", "text": "not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate’s recommendation, as well as magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[objection to a magistrate’s report preserves only those objections that are specified”.); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencias-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). After conducting a de novo review of the record, the Court has found that the RR thoroughly and correctly addressed the issues presented by the plaintiff in her motion. See Gioiosa v. United States, 684 F.2d 176 (1st Cir.1982) (district court was required to make a de novo determination of those portions of magistrate’s report objected to, which recommended that a habeas corpus petition be denied); but see Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985, 990-91 (1st Cir.1988) (“At most, the party aggrieved is entitled to a review of the bidding rather than to a fresh deal. The rule does not permit a litigant to present new initiatives to the district judge. We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.”). In sum, the objections raised by plaintiff in her opposition to the RR fail to state any new facts or case law in support of her averments. Thus, following the words of wisdom of the First Circuit Court of Appeals that “when a lower court produces a comprehensive, well-reasoned decision, an appellate court should refrain from writing" }, { "docid": "12998748", "title": "", "text": "S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). We review a grant of summary judgment de novo, McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1242-43 (11th Cir.2003), but review “the application of judicial estoppel for abuse of discretion,” Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir.2005). III.DISCUSSION To resolve this appeal, we must address two matters: (1) whether the district court abused its discretion by accepting an argument that had not been presented to the magistrate judge; and (2) whether the district court abused its discretion by declining to invoke the doctrine of judicial estop-pel against Tolbert and Duarte. On each issue, we conclude that the district court did not abuse its discretion. A. The District Court Did Not Abuse Its Discretion by Accepting an Argument That Had Not Been Presented to the Magistrate Judge. Stephens contends that the district court was barred from considering an argument not previously presented to the magistrate judge and relies on decisions of two of our sister circuits in which the district court refused to consider an argument that had not been presented to the magistrate judge. See Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir.1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc); Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988). Tolbert and Duarte counter that the Fourth Circuit has held that a district court must consider an argument in support of a dispositive motion even though that argument had not been presented to the magistrate judge. See United States v. George, 971 F.2d 1113, 1118 (4th Cir.1992). In addition, the Fifth and Tenth Circuits have refused to consider an argument that was not first presented to the magistrate judge. See Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir.1996); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.1994). All of these decisions are inappo-site, however. We need not decide whether a district court must consider an argument that had not been presented to" }, { "docid": "23182465", "title": "", "text": "S.Ct. at 2413. It is clear, however, that the Article III judge must retain final decision-making authority. See Raddatz, 447 U.S. at 681-82, 100 S.Ct. at 2415. The district court must retain “total control and jurisdiction” of the entire process if it refers dispositive motions to a magistrate judge for recommendation. Thomas v. Arn, 474 U.S. 140, 153, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985) (quoting Raddatz, 447 U.S. at 681, 100 S.Ct. at 2415). Circuit courts differ on the meaning of de novo review by the district court as stated in the Magistrates Act and Federal Rule of Civil Procedure 72(b). For example, in United States v. George, the Fourth Circuit held that as part of its obligation to determine de novo any issue considered by the magistrate judge to which a proper objection is made, a district court must consider all arguments, regardless of whether they were raised before the magistrate judge. 971 F.2d 1113, 1118 (4th Cir.1992). The First, Fifth, Ninth, and Tenth Circuits, however, have rejected this idea, finding that requiring the district court to consider new arguments raised in the objections effectively would eliminate efficiencies gained through the Magistrates Act and would unfairly benefit litigants who could change their tactics after issuance of the magistrate judge’s report and recommendation. In Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., the First Circuit held “categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.” 840 F.2d 985, 990-91 (1st Cir.1988). Because the magistrate judge system was created to help alleviate the workload of the district judges, “it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and — having received an unfavorable recommendation — shift gears before the district judge.” Id. at 991. Similarly, the Tenth Circuit stated that “[ijssues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426" }, { "docid": "23029616", "title": "", "text": "to this court. We granted a Certificate of Appealability (COA) limited to the issue of “whether the district court erred by failing to address appellant’s equitable tolling issues.” On December 11, 2000, after granting the COA, we appointed counsel for Brown. II Brown argues that the district court erred in failing to consider his equitable tolling claim as part of its de novo review of the magistrate’s findings and recommendation. The state argues, in opposition, that the district court was not required to consider the claim because Brown made it for the first time as an objection to the magistrate judge’s findings and recommendation. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.2000). We review the district judge’s decision for abuse of discretion. See id. Section 636(b)(1)(C) of the Federal Magistrates Act provides: A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. 28 U.S.C. § 636(b)(1)(C) (emphasis added). In Howell, we rejected the argument that a district judge must always consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation. We instead adopted the rule followed by the First and Fifth Circuits, holding that “a district court has discretion, but is not required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation.” Howell, 231 F.3d at 621, citing Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir.1998) and Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988). We emphasized, however, “that in making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion.” Id. at 621-22. In Howell, the defendant had moved before" }, { "docid": "23029617", "title": "", "text": "or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. 28 U.S.C. § 636(b)(1)(C) (emphasis added). In Howell, we rejected the argument that a district judge must always consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation. We instead adopted the rule followed by the First and Fifth Circuits, holding that “a district court has discretion, but is not required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation.” Howell, 231 F.3d at 621, citing Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir.1998) and Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988). We emphasized, however, “that in making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion.” Id. at 621-22. In Howell, the defendant had moved before trial to suppress his confession and had sought an evidentiary hearing. Howell’s motion, comprised of “boilerplate language,” was submitted to a magistrate judge. The magistrate declined to hold an evidentiary hearing and “recommended that the district court deny Howell’s motion to suppress because ‘Howell ha[d] failed to make any allegations, which if taken as true, would persuade a court to suppress the confession.’ ” Id. at 620. Then, in his objection to the magistrate judge’s report, Howell offered for the first time specific factual allegations and again sought an evidentiary hearing. We affirmed the district court’s decision not to consider the counseled defendant’s supplemental factual allegations. The district court in Howell had explained, “ ‘The defendant had the opportunity to put in more specifics regarding the Miranda issue, did not do so, and therefore I upheld the magistrate judge’s determination because it was based on the state of the record at that time. I did not exercise my discretion to allow the record to be supplemented.’ ” Id. at 623. We concluded, “Because Howell neglected" }, { "docid": "6629921", "title": "", "text": "(citations omitted). The fit between Rule 59(e) motions and de novo review of objections to magistrate judge recommendations is not perfect because somewhat different considerations attach to a court’s review of its own work and its review of the work of its adjunct. But the general nature of the inquiry is the same, and this court’s review of the exercise of that discretion, when it is exercised, must be generous. Because the district court here mistakenly concluded that he had no discretion to consider additional evidence, we must reverse and remand for his reconsideration in light of this opinion. We note that although Hildebrand’s supplemental affidavit paints a detailed picture of alleged violations of San Antonio police department investigative policies, willful ignorance of contrary FBI conclusions, and ' an investigation arguably slanted to incriminate Ms. Freeman, the underlying facts contained in the affidavit were not unknown to Saidler and Jennings. It seems unlikely they could claim prejudice from Freeman’s attempt to resurrect this expert testimony after it had been declared too conclusory. The supplemental affidavit also appears crucial to Freeman’s ease against the officers. On the other hand, Freeman stated no reason why the first Hildebrand affidavit lacked supporting details. All of this said, we do not prognosticate the district court’s ultimate decision. For the foregoing reasons, the judgment of the district court is REVERSED and the case REMANDED for further proceedings. .Compare Paterson-Leitch v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) (objector to magistrate judge's report is not \"entitled as of right to de novo review by the judge of an argument [third-party beneficiary] never seasonably raised before the magistrate”) with United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (\"the party entitled to de novo review must be permitted to raise before the [district] court any argument as to that issue that it could have raised before the magistrate”). . See George, 971 F.2d at 1118. . See Cupit, 28 F.3d at 535 n. 5 (citing Long v. McCotter, 792 F.2d 1338 (5th Cir.1986)). . See id. (citing Paterson-Leitch, 840 F.2d" }, { "docid": "23182466", "title": "", "text": "requiring the district court to consider new arguments raised in the objections effectively would eliminate efficiencies gained through the Magistrates Act and would unfairly benefit litigants who could change their tactics after issuance of the magistrate judge’s report and recommendation. In Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., the First Circuit held “categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.” 840 F.2d 985, 990-91 (1st Cir.1988). Because the magistrate judge system was created to help alleviate the workload of the district judges, “it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and — having received an unfavorable recommendation — shift gears before the district judge.” Id. at 991. Similarly, the Tenth Circuit stated that “[ijssues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996); accord Cupit v. Whitley, 28 F.3d 532, 535 & n. 5 (5th Cir.1994) (deciding that legal arguments, such as challenges based on exhaustion or procedural default, raised for the first time in objections to a magistrate’s report and recommendation may be waived). The Ninth Circuit noted that “allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.” Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc). In accord with this precedent, in United States v. Howell, the Ninth Circuit relied heavily on the district court’s discretion, and, like the First, Fifth, and Tenth Circuits, stated that a district court “is not required to[ ] consider evidence presented for the first time in a party’s objection to the magistrate judge’s recommendation.” 231 F.3d 615, 621 (9th Cir.2000). In" }, { "docid": "22867845", "title": "", "text": "Murr v. United States, 200 F.3d 895, 902 (6th Cir.2000) (parties may not raise new arguments or issues at the district court stage that were not presented to the Magistrate Judge); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir.1994) (respondent waived review of issue of petitioner’s procedural default by not objecting to petitioner’s original claim before the Magistrate Judge); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (party “has a duty to put its best foot forward” before the Magistrate Judge in order to present the issue at a subsequent appeal). As a result of its own waiver, the Commissioner is precluded from arguing that Heston’s challenges to the ALJ’s findings at steps four and five cannot be considered due to her failure to assert a challenge to the predicate finding at step two. We consider, accordingly, Heston’s claims on their merits. B. The ALJ Did Not Commit Reversible Error By Not Explicitly Considering Dr. Haun’s Report Heston argues that the ALJ committed reversible error by failing to discuss Dr. Haun’s three-page summary of Heston’s medical history in the decision. Heston argues that, because the ALJ failed to provide an explanation of the weight given to Dr. Haun’s opinion, the ALJ’s decision must be vacated. Although the Commissioner must provide a statement discussing the evidence and reasons on which the decision is based, 42 U.S.C. § 405(b)(1), we find that the ALJ’s omission of any discussion of Dr. Haun’s report was harmless error. Judicial review of the Secretary’s findings must be based on the record as a whole. Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council. Waiter v. Secretary of Health & Human Servs., 884 F.2d 241, 245 (6th Cir.1989), questioned on other grounds by Cutlip v. Secretary of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994). The court may review Dr. Haun’s report, in its consideration of the record as a whole, to determine if the ALJ’s decision was" }, { "docid": "1665882", "title": "", "text": "the prejudice they would allegedly suffer as a result of Plaintiff being granted a jury trial. Numerous district courts have held: “Review of a Magistrate’s ruling before the District Court does not permit consid eration of issues not raised before the Magistrate” because the “magistrate’s decision should not be disturbed on the basis of arguments not presented to him.” Jesselson v. Outlet Assoc. of Williamsburg, Ltd. P’Ship, 784 F.Supp. 1223, 1228 (E.D.Va.1991); see also Patersoro-Leitch Co., Inc., v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988) (holding “categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate” and stating that “[systematic efficiencies would be frustrated and the magistrate’s role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round”); Marshall v. Chater, 75 F.3d 1421, 1427-28 (10th Cir.1996) (“Issues raised for the first time in objections to the magistrate judge’s recommendations are deemed waived.”); Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir.1988) (“[Allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrate Act .... ”); Anna Ready Mix, Inc. v. N.E. Pierson Const. Co., 747 F.Supp. 1299, 1303 (S.D.Ill.1990) (holding that absent compelling reasons, argument raised for the first time in objections to a magistrate’s order ought to be disregarded); Singh v. Superintending School Committee, 593 F.Supp. 1315, 1318 (D.Me.1984) (“The [Federal Magistrate’s] Act necessarily contemplates that on referral of a pretrial motion to the Magistrate for his hearing and determination thereon, all parties are required to take before him, not only their ‘best shot’ but all of their shots.”). Moreover, even considering the prejudice alleged by Defendants, the Court would still find that the Magistrate Judge’s ruling was not clearly erroneous or contrary to law. There is no dispute that Plaintiffs" }, { "docid": "22937646", "title": "", "text": "contacted claimant’s employer does not mean that the information was not new. Further, the reopening occurred within the four-year limit imposed by § 404.988(b). Although SSA documents did not use the word “reopen” until September 8, 1992, the March 3, 1988 determination was reopened de facto in October 1991, when the SSA concluded that claimant had, in fact, engaged in SGA since 1984. See Taylor ex rel. Peck v. Heckler, 738 F.2d 1112, 1115 (10th Cir.1984) (finding that a prior determination was de facto reopened when evidence relating to the prior claim was received and considered, and a formal decision on the merits was rendered). We do not address claimant’s argument that he was deprived of due process by the AL J’s lack of notice that he would consider claimant’s “fraud or similar fault” as a basis for reopening the 1988 determination. Claimant did not raise this issue either to the Appeals Council, see R. II at 919-924, or to the magistrate judge, see R. I, docs. 1,15,16, 30. The first time that claimant mentioned such lack of notice was in his objections to the magistrate judge’s decision, id., doc. 46 at 3-4, and even then, he did not claim that the procedure denied him due process, see id. Issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived. See, e.g., Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) (holding that “an unsuccessful party is not entitled as of right to de novo review ... of an argument never seasonably raised before the magistrate”); Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.1987) (holding that issues raised for the first time in objections to magistrate’s recommendation were waived); see also Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir.1988) (“[Allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.”), overruled on other grounds by" }, { "docid": "22766842", "title": "", "text": "to submit to a judge of the court proposed findings of fact and recommendations for the disposition. ...” 28 U.S.C. § 636(b)(1)(B). If a party makes written objections to any portion of the magistrate judge’s report and recommendation within ten days, “[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). Howell contends that because a district court “shall make a de novo determination” of the magistrate judge’s recommendation, the district court here was required to consider his supplemental factual allegations even though he did not present them to the magistrate judge. He is mistaken. We have never directly addressed the issue of whether a district court must consider supplemental evidence introduced for the first time in a party’s objection to a magistrate judge’s recommendation. Other circuits disagree on the answer to the question. The First and Fifth Circuits say that a district court may, but is not required to, consider evidence presented for the first time in a party’s objection to the magistrate judge’s recommendation. See Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir.1998); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988). “We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.” Paterson-Leitch Co., 840 F.2d at 990. The Fourth Circuit, in contrast, maintains that a district court must consider any argument or evidence presented on a timely objection to a magistrate judge’s recommendation, so long as it could have been raised before the magistrate judge. United States v. George, 971 F.2d 1113, 1118 (4th Cir.1992). “The district court cannot artificially limit the scope of its review by resort to ordinary prudential rules, such as waiver, provided that proper objection to the magistrate judge’s proposed finding or conclusion has been made and the appellant’s right to de novo review by the district court thereby established.” Id. Like the" }, { "docid": "6629922", "title": "", "text": "also appears crucial to Freeman’s ease against the officers. On the other hand, Freeman stated no reason why the first Hildebrand affidavit lacked supporting details. All of this said, we do not prognosticate the district court’s ultimate decision. For the foregoing reasons, the judgment of the district court is REVERSED and the case REMANDED for further proceedings. .Compare Paterson-Leitch v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) (objector to magistrate judge's report is not \"entitled as of right to de novo review by the judge of an argument [third-party beneficiary] never seasonably raised before the magistrate”) with United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (\"the party entitled to de novo review must be permitted to raise before the [district] court any argument as to that issue that it could have raised before the magistrate”). . See George, 971 F.2d at 1118. . See Cupit, 28 F.3d at 535 n. 5 (citing Long v. McCotter, 792 F.2d 1338 (5th Cir.1986)). . See id. (citing Paterson-Leitch, 840 F.2d at 990-91). . Id. (citing Anna Ready Mix, Inc. v. N.E. Pierson Constr. Co., Inc., 747 F.Supp. 1299, 1302-03 (S.D.Ill.1990)). . See, e.g., Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 355-56 (5th Cir.1980); United States v. Marshall, 609 F.2d 152, 155 (5th Cir.1980). . Lavespere articulated different standards, founded on Fed. R. Civ. P. 60(b), if the \"motion to reconsider\" is served more than 10 days after the order complained of. Rule 59(e) furnishes a better model here, given the court’s broad authority with respect to magistrate judge decisions. (As an irrelevant aside, we note that after Lavespere was issued, rule 59(e) was amended to measure the 10-day filing period according to the motion’s filing date rather its date of service.)" } ]

[ { "docid": "14912650", "title": "", "text": "admits that he did not object at trial to the second jury instruction challenged, making the standard of review as to that allegation one of plain error. Ill The first allegation of error concerns the appellant’s conviction on Count 1 of the indictment. This charge involved Busacca’s procuring $2,465 from the local as a contribution to the Welfare Fund in the name of Jethro Robinson in violation of 29 U.S.C. § 501(c). The appellant contends that the trial judge erred in instructing the jury that they could find the defendant guilty of violating 29 U.S.C. § 501(c) if they believed the defendant was guilty under either of two theories of liability. These two theories were explained in United States v. Bane, 583 F.2d 832, 835 (6th Cir.1978), cert. den., 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Under one theory, the union authorizes expenditures or use of property by the defendant, but the funds are not used for the benefit of the union. Under the other theory, the expenditures are wholly unauthorized. A union official or employee can be convicted of violating § 501(c) under an unauthorized expenditure theory if it can be shown that the expenditure was not authorized and the defendant acted with fraudulent intent to obtain the expenditure. United States v. Gibson, 675 F.2d 825, 828-29 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). A § 501(c) conviction can be obtained under an authorized expenditure theory if the government proves that, first, the defendant had a fraudulent intent to deprive the union of its funds, and, second, that the defendant lacked a good faith belief that the expenditure was for the legitimate benefit of the union. Bane, 583 F.2d at 835-36. The trial judge in the case sub judice instructed the jury on these two theories. He first instructed them on the basic elements of the crime, telling them that they must find that there was a union, that the defendant was a union official or employee, that the defendant embezzled union property, and that the defendant had a" } ]

[ { "docid": "8837206", "title": "", "text": "some prosecutions under section 501(c) the defense has claimed that union ratification or authorization cured an alleged misappropriation. Alternatively, or conjunctively, the defense has claimed that if the union benefited from an expense, no crime has been committed. Reported opinions reach different conclusions respecting the elements of a section 501(c) violation in these instances. Cases from the First and Second Circuits can be interpreted as allowing a defense to a 501(c) prosecution if funds are spent without authority, but nevertheless with some benefit to the union. United States v. Ottley, 509 F.2d 667, 671 & n.6 (2d Cir. 1975); Colella v. United States, 360 F.2d 792, 804 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). The Fifth Circuit has said that union benefit is a defense only if funds are spent with authorization (e. g., with union approval but nevertheless in contravention of a statute); where lack of authorization is shown the Government is not required to make a further showing that the union derived no benefit from the transaction. United States v. Dixon, 609 F.2d 827 (5th Cir. 1980); United States v. Nell, 526 F.2d 1223 (5th Cir. 1976). The Eighth Circuit agrees that benefit is irrelevant if authorization is lacking, and has left open the question whether absence of benefit to the union is an element of the offense, to be proven by the Government, where the misappropriation has been authorized by the union. United States v. Goad, 490 F.2d 1158 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). We interpret the Sixth Circuit as holding that regardless of the findings as to union authorization (or no) or union receipt of benefits (or no), there may nevertheless be a statutory violation; accordingly, these two factors are not invariably elements of the Section 501(c) offense which must be established by the Government. United States v. Bane, 583 F.2d 832 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Nevertheless, facts pertaining to authorization or union benefit are relevant to the question" }, { "docid": "1851467", "title": "", "text": "jury to consider only some of the elements of the crime. There are two types of offenses under § 501(c): those involving the authorized use of funds and those involving the unauthorized use of funds. The elements of each differ. In unauthorized use cases the government need only prove lack of proper authorization and fraudulent intent. U. S. v. Nell, 526 F.2d 1223, 1231-32 (5th Cir. 1976); 17. S. v. Goad, 490 F.2d 1158,1161-62 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). In cases involving authorized use, however, the government must also prove that the defendant “lacked a good faith belief that the expenditure was for the legitimate benefit of the union.” U. S. v. Bane, 583 F.2d 832, 835-36 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979); see also U. S. v. Santiago, 528 F.2d 1130, 1133-34 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976). The use of funds is only “unauthorized” if the defendant had actual knowledge that the expenditures were not properly authorized. U. S. v. Rubin, 591 F.2d 278, 282 (5th Cir. 1979). Thus, a good faith belief in union benefit constitutes a defense unless the government can show that the defendant knew that the funds were unauthorized. As the jury instructions did not reflect this standard, the judgment must be reversed. REVERSED. . The initial instructions charged: The law does not require that the Government bears the burden of proving lack of benefit to the Union by the actions of the officers or actual harm derived therefrom, but what the Government must establish is fraudulent intent and lack of proper authorization. Supplemental instructions charged: Under the circumstances of this case, ‘good faith’ cannot include, as a matter of law, spending Union funds thinking it proper since the Union would benefit from the expenditure. The fiduciary responsibility requires Union officials to follow the proper procedures to authorize the expenditure of funds and the utilization of such authorization. A Union official cannot be acting in ‘good faith’ when" }, { "docid": "2603176", "title": "", "text": "law theft offenses except those necessary to show federal jurisdiction and subject matter: that the accused is (1) an official or employee (2) of a labor organization (3) involved in interstate commerce, and that (4) the funds belong to the labor organization. United States v. Bane, 583 F.2d 832, 836 n.9 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979) (identifying the jurisdictional elements of § 501(c)); Silverman, 430 F.2d at 111 (same). Instead, as stated in Morissette, supra, Congress intended to simplify some of the technical requirements of the common law crimes. We therefore see no reason to add lack of authorization or lack of good faith belief in union benefit to the list of essential elements of § 501(c). Neither of the two has a counterpart in the elements of the common law theft crimes or of the other federal theft statutes. “Congress subjected union officers or employees to the same test of criminal liability as government employees, bank officers and the like—not to a lower one.” Silverman, 430 F.2d at 127. The two elements which the government must allege and prove, in addition to jurisdictional elements, in making out a § 501(c) violation, are the same as those announced by the Supreme Court for § 641: fraudulent intent and conversion to the defendant’s own use or the use of another. Morissette, 342 U.S. at 271-72, 72 S.Ct. at 254. See also United States v. Durnin, 632 F.2d 1297, 1300 (5th Cir. 1980). We do think that lack of authorization, lack of union benefit, and the defendant’s failure to believe that there is authorization or union benefit, all are likely to bear on the essential element of fraudulent intent. See Andreen, 628 F.2d at 1242-43; Marolda, 615 F.2d at 873 (Larson, J., concurring). In a particular case, these factors may be crucial in determining the defendant’s intent. In such a case, a jury instruction concerning them is likely to be appropriate. For example, in this case, appellants are free to argue that they had no criminal intent because they believed that blowing" }, { "docid": "9716619", "title": "", "text": "is not the situation here; Simmons’ grand jury testimony, while important, was not indispensable to the government’s case. Accordingly, we affirm Stockton’s conviction for embezzlement of union assets in violation of 29 U.S.C. § 501(c). AFFIRMED. . 29 U.S.C. § 501(c) provides: (c) Embezzlement of assets; penalty Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both. . The Fifth and the Eighth Circuits appear to hold that a violation of § 501(c) is made out if the defendant appropriated or expended union funds without union authorization and lacked a good-faith belief that his action was authorized. United States v. Dixon, 609 F.2d 827, 828 (5th Cir.1980); United States v. Nell, 526 F.2d 1223, 1231-32 (5th Cir.1976); United States v. Goad, 490 F.2d 1158, 1161-65 (8th Cir.1974), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). The Second Circuit has held that the government must prove, in addition, that the defendant lacked a good-faith belief that the expenditure of funds would benefit the union. If the defendant possessed such a belief, no violation is made out, even though the defendant knew the expenditure was unauthorized. United States v. Santiago, 528 F.2d 1130, 1133-34 (2d Cir.1976), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976); United States v. Ottley, 509 F.2d 667, 671 (2d Cir.1975). At one time, the First Circuit appeared to agree with the Second Circuit, see Colella v. United States, 360 F.2d 792, 804 (1st Cir.1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966), but in a more recent decision it seems to have come around to the view of the Fifth and Eighth Circuits. United States v. Sullivan, 498 F.2d 146, 152 (1st Cir.1974), cert. denied, 419 U.S. 993, 95" }, { "docid": "2603203", "title": "", "text": "72 S.Ct. at 251-253 n.28, and conversion is an established element of embezzlement. See, e. g., United States v. Powell, supra, 294 F.Supp. at 1355. It is thus clear from Morissette that any violation of § 641 must involve a conversion. . We recognize that there appears to be considerable support in other circuits for the de fendant’s position that there are additional essential elements to § 501(c) — although we note that those circuits fail to agree on what the additional elements are. The Sixth Circuit has adopted the view that § 501(c) does not require a showing of lack of authorization or lack of union benefit, but does require a showing of fraudulent intent and a lack of good faith belief in authorization and union benefit. United States v. Bane, 583 F.2d 832 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). The Fifth Circuit has held that the elements of § 501(c) include fraudulent intent and either actual lack of authorization or lack of a good faith belief in union benefit. United States v. Dixon, 609 F.2d 827 (5th Cir. 1980); see also United States v. Nell, 526 F.2d 1223 (5th Cir. 1976) (fraudulent intent and lack of authorization sufficient). But see United States v. Durnin, 632 F.2d 1297, 1300 & n.5 (5th Cir. 1980) (suggesting that authorization is irrelevant if fraudulent intent is “thoroughly established”). The Eighth Circuit agrees that fraudulent intent and lack of authorization are sufficient, but has reserved the issue as to what elements in addition to fraudulent intent are required if the expenditure is authorized. United States v. Goad, 490 F.2d 1158 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). Finally, the Second Circuit has held that the elements of § 501(c) are fraudulent intent and either lack of authorization (or ratification) or lack of good faith belief in union benefit. United States v. Santiago, 528 F.2d 1130, 1133-34 (2nd Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976). But see United States v. Silverman, 430" }, { "docid": "2541195", "title": "", "text": "court erred in rejecting the jury’s finding that defendants acted with fraudulent intent. II. Discussion. A. Fraudulent Intent as an Essential Element Under Section 501(c). Section 501(c) does not hold union officials strictly liable for misuse of union funds. See United States v. Durnin, 632 F.2d 1297, 1300 (5th Cir.1980); United States v. Bryant, 430 F.2d 237, 239 (8th Cir.1970). By its very terms, the statute holds union officials criminally liable only when they embezzle, steal, or unlawfully and willfully abstract or convert to their own use or the use of others the funds of the union. 29 U.S.C. § 501(c); see United States v. Gibson, 675 F.2d 825, 828 (6th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). To prove “will-fullness” under section 501(c), the government must show that the union officials possessed fraudulent or criminal intent to deprive the union of its funds. See, e.g., United States v. Goad, 490 F.2d 1158, 1166 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974); United States v. Thordarson, 646 F.2d 1323, 1335 (9th Cir.), cert. denied, 454 U.S. 1055, 102 S.Ct. 601, 70 L.Ed.2d 591 (1981); United States v. Durnin, supra, 632 F.2d at 1300. See also United States v. Belt, 574 F.2d 1234, 1238 (5th Cir.1978) (“willfullness” under section 501(c) is proved by showing that defendant “was sufficiently aware of the facts to know that he was acting wrongfully and in contravention of the trust placed in him by the union and its members”). The difficult issue posed here is whether section 501(c) holds union officials liable for conduct that is authorized by the union. Although we held in United States v. Goad, supra, that union officials violated section 501(c) when they 1) possessed fraudulent intent, and 2) acted without union authorization, we expressly reserved the question whether a section 501(c) crime exists “when there has been a fraudulent intent and proper authorization, but a lack of benefit to the union.” 490 F.2d at 1166 (emphasis added). In considering the possibility of a section 501(c) prosecution for authorized conduct," }, { "docid": "8837207", "title": "", "text": "transaction. United States v. Dixon, 609 F.2d 827 (5th Cir. 1980); United States v. Nell, 526 F.2d 1223 (5th Cir. 1976). The Eighth Circuit agrees that benefit is irrelevant if authorization is lacking, and has left open the question whether absence of benefit to the union is an element of the offense, to be proven by the Government, where the misappropriation has been authorized by the union. United States v. Goad, 490 F.2d 1158 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). We interpret the Sixth Circuit as holding that regardless of the findings as to union authorization (or no) or union receipt of benefits (or no), there may nevertheless be a statutory violation; accordingly, these two factors are not invariably elements of the Section 501(c) offense which must be established by the Government. United States v. Bane, 583 F.2d 832 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Nevertheless, facts pertaining to authorization or union benefit are relevant to the question of intent. Id. We noted these authorities and others in our recent decision in United States v. Marolda, 615 F.2d 867 (9th Cir. 1980), a case also arising under section 501(c). While we think there is merit to the views we ascribe to the Sixth Circuit, a position similar to the one taken in the concurrence of Judge Larson in Marolda, the question of what constitute the elements of the offense when the misappropriation is authorized is not before us here. This is a case in which, as we demonstrate below, the Government has established that funds were taken or converted without union authorization. We now hold that where union authorization is absent, the lack of benefit to the union is not an element of the offense required to be shown as part of the prosecution’s case. See, e. g., United States v. Dixon, supra. Conversely, the conferring of any benefit in such a case is not a defense, except insofar as it may bear upon the defendant’s state of mind in committing the acts" }, { "docid": "15469735", "title": "", "text": "union funds, with “funds” being used to include “moneys, funds, securities, property, or other assets.” . Cf. United States v. Boyle, 157 U.S.App.D.C. 166, 175, 482 F.2d 755, 764, cert. den. 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973), in which the court upheld a § 501(c) conviction because the ultimate use of the union funds was illegal irrespective of any issue concerning authorization. See generally Annot., 15 A.L.R.3d 939, § 10. . United States v. Harmon, 339 F.2d 354 (6th Cir. 1964), and United States v. Decker, 304 F.2d 702 (6th Cir. 1962), both involved unauthorized expenditures of union funds but neither case required the court to spell out the § 501(c) elements in that context. Instead, the court only answered the defendants’ contentions that the evidence was insufficient to support the convictions. . We agree with the government that the district court could have properly instructed the jury that a guilty verdict was warranted if the funds were not being expended as authorized, even though an expenditure was authorized. The failure to so instruct, however, worked in appellant’s favor since it removed from the jury’s consideration one possible theory supporting guilt. The simple fact that authorization was not an issue in this case demonstrates the flaw in appellant’s argument that authorization constitutes a complete defense to a § 501(c) charge. As given to the jury, authorization or lack thereof was totally irrelevant since authorization was taken as assumed. . The same rules would apparently apply if the defendant had a good faith belief that the expenditure was authorized, Goad, supra, 490 F.2d at 1166, or that the union would authorize it, United States v. Santiago, 528 F.2d 1130, 1133-34 (2d Cir.), cert. den. 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976), and United States v. Ottley, 509 F.2d 667, 671 (2d Cir. 1975). . The government must, of course, prove in every § 501(c) case that it involves “[1] the moneys, funds, securities, property, or other assets [2] of a labor organization [3] of which [the defendant] is an officer, or by which he" }, { "docid": "9716621", "title": "", "text": "S.Ct. 303, 42 L.Ed.2d 265 (1974). Where the appropriation or expenditure was purportedly authorized by a superior union official, the First, Fifth, and Sixth Circuits have held that a violation is made out if the prosecution shows that the defendant lacked a good-faith belief that the expenditure would benefit the union. United States v. Gibson, 675 F.2d 825, 828 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982); United States v. Dixon, 609 F.2d 827, 828 (5th Cir. 1980); United States v. Bane, 583 F.2d 832, 835-36 (6th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979); Colella v. United States, 360 F.2d 792, 804 (1st Cir.1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). More recently, the Eighth and Ninth Circuits appear to have abandoned the distinction between \"authorized” and “unauthorized” expenditures and hold that an expenditure or appropriation violates § 501(c) if the defendant acted with \"fraudulent intent,” United States v. Welch, 728 F.2d 1113, 1116-18 (8th Cir.1984); United States v. Thordarson, 646 F.2d 1323, 1334-37 (9th Cir.1981), cert. denied, 454 U.S. 1055, 102 S.Ct. 601, 70 L.Ed.2d 591 (1981). . We accordingly do not deem it appropriate here to pursue the question of whether a theft, a willful abstraction, or a willful conversion amounting to a violation of the statute has occurred. . Embezzlement is a statutory crime which did not exist at common law. Common-law larceny offenses extended only to conversions of property involving a wrongful taking and asportation of the property, as well as wrongful control or detention. A defendant who obtained possession of property lawfully, in a fiduciary capacity, before converting it could not be convicted at common law. Embezzlement statutes were enacted to remedy the common law’s deficiency. W. LaFave & A. Scott, Criminal Law 644-45 (1972). . Such interference amounts to a conversion regardless of the manner in which the defendant obtains possession of the property. Thus, a conversion can occur through a violent taking, but it can also occur following the lawful entrustment of the property to the" }, { "docid": "9716610", "title": "", "text": "Cir.1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). A defendant who exercises dominion over property in the good-faith belief that the property is his own, or that the appropriation is otherwise authorized, is not guilty of embezzlement. E.g., Lewis v. People, 99 Colo. 102, 60 P.2d 1089 (1936); People v. LaPique, 120 Cal. 25, 52 P. 40 (1889); W. LaFave & A. Scott, Criminal Law 652. (1972). To sum up, then, the traditional concept of embezzlement comprises (1) a conversion —or, in other words, an unauthorized appropriation — of property belonging to another, where (2) the property is lawfully in the defendant’s possession (though for a limited purpose) at the time of the appropriation, and (3) the defendant acts with knowledge that his appropriation of the property is unauthorized, or at least without a good-faith belief that it has been authorized. The traditional concept of embezzlement is readily applicable in the context of misconduct by union officials. One point, however, seems to have given the courts trouble, namely, the notion of authorization. Some courts have concluded that if what was clearly a misuse of union funds was expressly approved by a superior union official, the appropriation or expenditure must be considered to have been “authorized” by the union. Courts which have done so, however, have then proceeded to construct other theories to serve as the basis for upholding convictions. See, e.g., United States v. Gibson, 675 F.2d 825, 828 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982); United States v. Dixon, 609 F.2d 827, 827-28 (5th Cir.1980); United States v. Ottley, 509 F.2d 667, 671 (2d Cir.1975); Colella v. United States, 360 F.2d 792, 804 (1st Cir. 1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). We do not see the need to construct a pitfall and then ingeniously to escape it. We are not prepared to attribute so great an effect to approval from a superior who, himself, in the first place was not authorized to give it. It bears repeating that the conversion" }, { "docid": "9716611", "title": "", "text": "of authorization. Some courts have concluded that if what was clearly a misuse of union funds was expressly approved by a superior union official, the appropriation or expenditure must be considered to have been “authorized” by the union. Courts which have done so, however, have then proceeded to construct other theories to serve as the basis for upholding convictions. See, e.g., United States v. Gibson, 675 F.2d 825, 828 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982); United States v. Dixon, 609 F.2d 827, 827-28 (5th Cir.1980); United States v. Ottley, 509 F.2d 667, 671 (2d Cir.1975); Colella v. United States, 360 F.2d 792, 804 (1st Cir. 1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). We do not see the need to construct a pitfall and then ingeniously to escape it. We are not prepared to attribute so great an effect to approval from a superior who, himself, in the first place was not authorized to give it. It bears repeating that the conversion of property that lies at the core of embezzlement must be without the permission of the owner, and contrary to the wishes of the owner. In the context of § 501(c), the owner of the property is the union itself— its collective membership — not individual union officials who are not vested with power to dissipate union funds in the manner currently before the court. An appropriation or expenditure of union funds is therefore unauthorized if it is done without the permission of the union, even if it is approved by a superior union official. The permission of the union is lacking if the appropriation or expenditure is outside the scope of the fiduciary trust placed in the defendant by the union as a whole and outside the scope of the powers of any superior union official on whose permission the defendant has sought to rely. The jury instructions given here adequately conveyed the central elements of embezzlement under § 501(c). The district court’s charge defined “embezzle” to mean “willfully to take or convert the" }, { "docid": "15469732", "title": "", "text": "jury that the payments to William Hoffa were authorized by both the international and local union. We thus assume that the expenditures were authorized and analyze the case on that basis. In a § 501(c) case in which the expenditure of union funds was authorized the government must prove two distinct but interrelated elements. First, it must prove that the defendant had a fraudulent intent to deprive the union of its funds and, second, that the defendant lacked a good faith belief that the expenditure was for the legitimate benefit of the union. United States v. Santiago, supra, 528 F.2d at 1133-34; United States v. Ottley, supra, 509 F.2d at 671—72; United States v. Dibrizzi, 393 F.2d 642, 644-45 (2d Cir. 1968); Colella v. United States, 360 F.2d 792, 798 (1st Cir.), cert. den. 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); Dolye v. United States, 318 F.2d 419, 422 (8th Cir. 1963). Whether or not the expenditure did, in fact, legitimately benefit the union is relevant both to the defendant’s good faith belief therein and his fraudulent intent. Ottley, supra, 509 F.2d at 671. An actual union benefit would tend to make good faith belief therein more likely and fraudulent intent less likely, and vice versa. But, contrary to appellant’s argument, it is not necessary for the government to prove that the expenditure did not actually benefit the union. To require such proof could absolve a defendant of liability when an otherwise fraudulent appropriation of funds fortuitously had some beneficial effect upon the union. Such a requirement would also be inconsistent with the strict fiduciary duty imposed upon union officials by § 501. We have examined the district court’s jury instructions in light of the above legal standards. We believe that the instructions properly focused the jury’s attention on the need for the government to prove that appellant did not have a good faith belief that the subsidy payments to William Hoffa were for the legitimate benefit of the union. The instructions, taken as a whole, also gave the jury adequate opportunity to consider actual benefit to" }, { "docid": "15469736", "title": "", "text": "to so instruct, however, worked in appellant’s favor since it removed from the jury’s consideration one possible theory supporting guilt. The simple fact that authorization was not an issue in this case demonstrates the flaw in appellant’s argument that authorization constitutes a complete defense to a § 501(c) charge. As given to the jury, authorization or lack thereof was totally irrelevant since authorization was taken as assumed. . The same rules would apparently apply if the defendant had a good faith belief that the expenditure was authorized, Goad, supra, 490 F.2d at 1166, or that the union would authorize it, United States v. Santiago, 528 F.2d 1130, 1133-34 (2d Cir.), cert. den. 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976), and United States v. Ottley, 509 F.2d 667, 671 (2d Cir. 1975). . The government must, of course, prove in every § 501(c) case that it involves “[1] the moneys, funds, securities, property, or other assets [2] of a labor organization [3] of which [the defendant] is an officer, or by which he is employed.” These elements were stipulated in this case. . United States v. Vitale, supra, 489 F.2d at 1369, did not hold that the government must prove an actual absence of benefit to the union in a § 501(c) case involving an authorized expenditure. While the court did note language which could be so read, that passage was a quotation from the portion of Judge Moore’s opinion in Silverman, supra, 430 F.2d at 113-17, which was a dissenting opinion; the second circuit’s views have been more precisely set forth in Santiago and Ottley. The holding in Vitale was simply that there was sufficient evidence to support the guilty verdict. There was no conceivable benefit to the union from the misappropriation of funds involved there and the court had no need to address the issue of benefit to the union or good faith belief therein. It should be noted that both appellant’s brief and reply brief filed in this court pretermit any mention of Vitale and the only other opinions of this court interpreting § 501(c)," }, { "docid": "2541200", "title": "", "text": "requirement under section 501(c). Id. at 126. Judge Friendly, writing for the majority, noted that a section 501(c) offense, like violations of numerous federal “larceny-type” statutes, occurs when someone “has taken another person’s property or caused it to be taken, knowing that the other person would not have wanted that to be done.” Id. at 126-27. Stressing the requirement of fraudulent intent under section 501(c), the court observed in dictum that it was “doubtful whether a payment made in a bona fide belief that it was for a union’s benefit and that it had been authorized or would be ratified can ever be swept under * * * section 501(c).” Id. at 127. The Sixth Circuit considered whether union-authorized conduct is within the reach of section 501(c) in United States v. Bane, 583 F.2d 832 (6th Cir.), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1978). In that case the president of a Teamsters local was convicted under section 501(c) for making authorized expenditures of union funds to pay the salary of a “no show” union organizer. Id. at 834. In sustaining the conviction, the court adopted a two-part test for cases involving the authorized expenditure of union funds. Under this test, the Government must prove first that “the defendant had a fraudulent intent to deprive the union of its funds and, second, that the defendant lacked a good faith belief that the expenditure was for the legitimate benefit of the union.” Id. at 835-36. Although Bane requires proof under the two-part test of both “fraudulent intent” and “lack of union benefit,” other courts focus solely on the defendant’s fraudulent intent, and consider “lack of union benefit” only as evidence bearing on “fraudulent intent.” See United States v. Thordarson, supra, 646 F.2d at 1335; United States v. Marolda, 615 F.2d 867, 873 (9th Cir.1980) (Larson, J., concurring); United States v. Durnin, supra, 632 F.2d at 1300. Nevertheless, under any test, union officials violate section 501(c) only when they possess fraudulent intent to deprive the union of its funds. B. Sufficiency of the Evidence. Having concluded that fraudulent" }, { "docid": "23419713", "title": "", "text": "to warrant submission to the jury. To establish a violation of section 501(c) the government must prove that a defendant embezzled, stole, or unlawfully or wilfully abstracted or converted to his own or another’s use, the funds or property of a labor union. United States v. Dibrizzi, 393 F.2d 642 (2d Cir. 1968); United States v. Harmon, 339 F.2d 354 (6th Cir. 1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963 (1965). The language of section 501(c) imposes the “broadest possible fiduciary duty upon union officers.” United States v. Bane, 583 F.2d 832 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). In enacting the statute, Congress created a new criminal penalty to prevent the following evil: [Ojfficers and other union representatives may not act adversely to their organization or to the members as a group or acquire a personal interest which is contrary to the interests of the organization. Being trustees the officers must subvert their own personal interests to the lawful mandates and orders of the organization. United States v. Goad, 490 F.2d 1158, 1162 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974), quoting Johnson v. Nelson, 325 F.2d 646, 650 (8th Cir. 1963). Section 501(c) cases can be brought on either of two theories: one theory involves unauthorized expenditures or use of property, and the other involves authorized expenditures or use of property for a wrongful purpose. Gibson was prosecuted under the latter theory. The essential elements of an authorized use case are: (1) proof that the defendant had a fraudulent intent to deprive the Union of its funds; and (2) proof that the defendant lacked a good faith belief that the expenditure or use was for the legitimate benefit of the Union. United States v. Bane, 583 F.2d at 836. See also United States v. Santiago, 528 F.2d 1130 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976); United States v. Boyle, 482 F.2d 755 (D.C.Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d" }, { "docid": "18373797", "title": "", "text": "committee. The specific subject matter under congressional inquiry is central to any prosecution under § 192. Therefore, the lack of factual information rendered the indictment defective. . The indictment describes the alleged embezzlements, thefts, conversions, and/or abstractions as having been accomplished through unauthorized salary increases, unauthorized expense payments, abstraction of checks from Local’s bank accounts, and a political contribution. . The Seventh Circuit upheld an analogous indictment stating it “not only charges him in the language of the statute with being an officer of and employed by a labor organization and embezzling its funds, but it also particularizes by alleging the specific office ...” United States v. Ford, 462 F.2d 199 (7th Cir. 1972). The instant indictment alleges that both defendants were officers of the union as well as being employed by the union. . However, Counts One and Two charge the defendants with taking an “unauthorized salary increase,” and Counts Seven and Eight charge defendant Duff with taking “unauthorized expense payments.” Accordingly, the Court’s discussion of this issue is limited to Counts Three through Six. . See United States v. Thordarsen, 646 F.2d 1323, 1337 (9th Cir. 1981); Colella v. United States, 360 F.2d 792, 798-799 (1st Cir. 1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65; United States v. Durnin, 632 F.2d 1297, 1300 (5th Cir. 1980); United States v. Ottley, 509 F.2d 667, 671 (2d Cir. 1975); United States v. Bane, 583 F.2d 832, 835-36 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88. . This is an adequate allegation of jurisdiction. See footnote 6, supra. . A nine-count indictment (No. 81 CR 475) was returned by the grand jury on September 2, 1981. On October 16, 1981, a one-count information (No. 81 CR 589) was filed by the government, charging Hansen with a violation of 29 U.S.C. 439(c). The information has been consolidated with the indictment for trial. The indictment and information charge that at the time of the alleged offenses Duff was Vice-President of the Distillery, Wine and Allied Workers International Union, Secretary-Treasurer of the Chicago Local" }, { "docid": "23419714", "title": "", "text": "of the organization. United States v. Goad, 490 F.2d 1158, 1162 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974), quoting Johnson v. Nelson, 325 F.2d 646, 650 (8th Cir. 1963). Section 501(c) cases can be brought on either of two theories: one theory involves unauthorized expenditures or use of property, and the other involves authorized expenditures or use of property for a wrongful purpose. Gibson was prosecuted under the latter theory. The essential elements of an authorized use case are: (1) proof that the defendant had a fraudulent intent to deprive the Union of its funds; and (2) proof that the defendant lacked a good faith belief that the expenditure or use was for the legitimate benefit of the Union. United States v. Bane, 583 F.2d at 836. See also United States v. Santiago, 528 F.2d 1130 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976); United States v. Boyle, 482 F.2d 755 (D.C.Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973). See generally United States v. Marolda, 615 F.2d 867 (9th Cir. 1980), later app., 648 F.2d 623 (1981). The instructions given by the District Court have not been challenged on appeal. The Court correctly defined the essential elements of the offense for the jury as follows: To constitute a violation of 29 United States Code Section 501(e) where the expenditure of union funds is not authorized, there are four essential elements which must be proved beyond a reasonable doubt: One, the embezzlement, theft or unlawful and willful abstraction or conversion to his own use or the use of another of; two, the moneys, funds or other assets of; three, a labor organization of which; four, the defendant is an officer or employee. Where the expenditure of union funds was authorized, the United States must in addition prove beyond a reasonable doubt: First, a fraudulent intent by the defendant to deprive the union of its funds; and second, a lack of good faith belief by the defendant that the expenditure was for the legitimate" }, { "docid": "2603204", "title": "", "text": "faith belief in union benefit. United States v. Dixon, 609 F.2d 827 (5th Cir. 1980); see also United States v. Nell, 526 F.2d 1223 (5th Cir. 1976) (fraudulent intent and lack of authorization sufficient). But see United States v. Durnin, 632 F.2d 1297, 1300 & n.5 (5th Cir. 1980) (suggesting that authorization is irrelevant if fraudulent intent is “thoroughly established”). The Eighth Circuit agrees that fraudulent intent and lack of authorization are sufficient, but has reserved the issue as to what elements in addition to fraudulent intent are required if the expenditure is authorized. United States v. Goad, 490 F.2d 1158 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). Finally, the Second Circuit has held that the elements of § 501(c) are fraudulent intent and either lack of authorization (or ratification) or lack of good faith belief in union benefit. United States v. Santiago, 528 F.2d 1130, 1133-34 (2nd Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976). But see United States v. Silverman, 430 F.2d 106, 117-18, 126-27 (2nd Cir.), modified on other grounds, 439 F.2d 1198 (1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971) (Judge Moore suggests lack of actual union benefit, and not a lack of belief in union benefit, is required if authorization is present; Judges Friendly and Hays agree arguendo ). Like Judge Larson, we are “not certain why courts began to add new elements to § 501(c) crimes,” Marolda, 615 F.2d at 873, but we suspect that the procedural posture of each case has had an effect. Ours appears to be the first case involving a government appeal from the dismissal of the indictment for failure to allege essential elements of the offense. Preceding § 501(c) cases have involved post-conviction appeals when issues relating to lack of authorization or lack of union benefit turned on the circumstances of the particular case, such as the jury instruction, or the evidence actually adduced at trial. See, e. g., United States v. Dixon, 609 F.2d 827 (5th Cir. 1980); United States v." }, { "docid": "1851466", "title": "", "text": "GODBOLD, Circuit Judge: Appellant George W. Dixon is president of International Longshoremen’s Association (AFL-CIO), Local 1410-1. He is also a member of the Executive Board of the South Atlantic and Gulf Coast District of the union and a vice-president of the International union. On four occasions Dixon, as the Local’s elected delegate to the annual District convention, accepted reimbursement for travel expenses from the Local, and subsequently accepted reimbursement or compensation for the same conventions from either the District or the International or both. He was convicted on three counts (of a four-count indictment) of violating § 501(c) of the Labor-Management Reporting and Disclosure Act (29 U.S.C. § 501(c)) for willful embezzlement of Local funds. We reverse. The district court charged the jury, over appellant’s objection, that appellant’s good faith belief that the Local would benefit from the expenditures did not constitute a defense. The instructions charged that the government need establish only “fraudulent intent and lack of proper authorization.” Appellant argues that these instructions deprived him of a valid defense and improperly permitted the jury to consider only some of the elements of the crime. There are two types of offenses under § 501(c): those involving the authorized use of funds and those involving the unauthorized use of funds. The elements of each differ. In unauthorized use cases the government need only prove lack of proper authorization and fraudulent intent. U. S. v. Nell, 526 F.2d 1223, 1231-32 (5th Cir. 1976); 17. S. v. Goad, 490 F.2d 1158,1161-62 (8th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). In cases involving authorized use, however, the government must also prove that the defendant “lacked a good faith belief that the expenditure was for the legitimate benefit of the union.” U. S. v. Bane, 583 F.2d 832, 835-36 (6th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979); see also U. S. v. Santiago, 528 F.2d 1130, 1133-34 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976). The use of funds is only “unauthorized” if the defendant" }, { "docid": "9716620", "title": "", "text": "States v. Goad, 490 F.2d 1158, 1161-65 (8th Cir.1974), cert. denied, 417 U.S. 945, 94 S.Ct. 3068, 41 L.Ed.2d 665 (1974). The Second Circuit has held that the government must prove, in addition, that the defendant lacked a good-faith belief that the expenditure of funds would benefit the union. If the defendant possessed such a belief, no violation is made out, even though the defendant knew the expenditure was unauthorized. United States v. Santiago, 528 F.2d 1130, 1133-34 (2d Cir.1976), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976); United States v. Ottley, 509 F.2d 667, 671 (2d Cir.1975). At one time, the First Circuit appeared to agree with the Second Circuit, see Colella v. United States, 360 F.2d 792, 804 (1st Cir.1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966), but in a more recent decision it seems to have come around to the view of the Fifth and Eighth Circuits. United States v. Sullivan, 498 F.2d 146, 152 (1st Cir.1974), cert. denied, 419 U.S. 993, 95 S.Ct. 303, 42 L.Ed.2d 265 (1974). Where the appropriation or expenditure was purportedly authorized by a superior union official, the First, Fifth, and Sixth Circuits have held that a violation is made out if the prosecution shows that the defendant lacked a good-faith belief that the expenditure would benefit the union. United States v. Gibson, 675 F.2d 825, 828 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982); United States v. Dixon, 609 F.2d 827, 828 (5th Cir. 1980); United States v. Bane, 583 F.2d 832, 835-36 (6th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979); Colella v. United States, 360 F.2d 792, 804 (1st Cir.1966), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966). More recently, the Eighth and Ninth Circuits appear to have abandoned the distinction between \"authorized” and “unauthorized” expenditures and hold that an expenditure or appropriation violates § 501(c) if the defendant acted with \"fraudulent intent,” United States v. Welch, 728 F.2d 1113, 1116-18 (8th Cir.1984); United States" } ]

[ { "docid": "7241611", "title": "", "text": "the previous robberies because they occurred relatively close in time, were similar in kind, and occurred in the same geographic area, making them admissible under Rule 404(b). The district court has broad discretion in admitting other crimes evidence. United States v. Mays, 822 F.2d 793, 797 (8th Cir.1987). We review its Rule 404(b) decision for abuse of discretion and “reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.1998). Evidence of a prior crime, although inad-missable to show that a person acted in conformity with the prior act, may be admissible for other purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Such evidence is admissible if it is (1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value. United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005); United States v. Carroll 207 F.3d 465, 469 n. 2 (8th Cir.2002). Oman presented alibi defenses at trial so the main issue facing the jury was one of identity, whether or not Oman was the individual who robbed the bank on January 20 and was the driver for the January 21 robbery. The trial court’s instruction indicated that it admitted the 404(b) evidence for this purpose. When the conduct involved in a prior act and in the charged offense is characterized by a unique set of “signature facts,” then evidence of the prior act is admissible to show that the same person committed both crimes. Carroll, 207 F.3d at 468-69. To admit evidence on a signature facts or modus operandi theory, the trial court must make a threshold determination that a reasonable juror could find from a comparison of the facts that the same person committed both crimes. Id. In making this determination, the court should" } ]

[ { "docid": "20391719", "title": "", "text": "the character of a person in order to show action in conformity therewith,” Federal Rule of Evidence 404(b) allows such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” It is well-settled in this circuit that the rule is one of inclusion, “such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” United States v. Johnson, 439 F.3d 947, 952 (8th Cir.2006). Evidence of other crimes is admissible under Rule 404(b) if it is “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value.” Thomas, 398 F.3d at 1062. Thomas argues that the evidence of the 2008 crack cocaine trafficking fails three of the four requirements. He argues that the evidence is not relevant to a material issue raised at trial, is not similar in kind and close in time to the crime charged, and that the probative value of the evidence is substantially outweighed by its prejudicial value. Thomas pled not guilty and generally denied participation in the charged crimes, requiring the Government to shoulder the burden of introducing proof beyond a rea sonable doubt of every element of each offense charged. United States v. Johnson, 934 F.2d 936, 939-40 (8th Cir.1991). Nonetheless, Thomas relies on United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir.1993), and he argues that evidence of the 2008 investigation is not relevant because “intent is not an issue when the defense at trial is a complete denial that the defendant participated in the drug transactions charged.” (Appellant’s Br. at 11.) We have previously rejected the (effectively identical) argument that, while intent may be an issue in a given case, intent is not in issue when a defendant completely denies participation in the crime. See Johnson, 439 F.3d at 952 (noting “the Supreme Court’s decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d" }, { "docid": "5924982", "title": "", "text": "prior bad acts as character evidence, but permits such evidence to prove other factors such as the defendant’s motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. It is a rule of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination. United States v. Hill, 410 F.3d 468, 471 (8th Cir.2005). To be admissible, Rule 404(b) evidence “must (1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and (4) not have a prejudicial value that substantially outweighs its probative value.” United States v. Kern, 12 F.3d 122, 124-25 (8th Cir.1993) (citations omitted). We review the admission of such evidence for an abuse of discretion and reverse “only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity” to engage in criminal misconduct. United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.1998). We conclude the district court did not abuse its discretion by admitting Nelson’s testimony regarding Johnson’s prior drug dealing. First, Nelson’s testimony was relevant to the material issue whether Johnson had the requisite intent to enter into a conspiracy with Davis to distribute drugs. Johnson claims intent, while it may be an issue in conspiracy cases, was not in issue in his case because he completely denied participation in any conspiracy during one of the pretrial conferences, citing United States v. Jenkins, 7 F.3d 803, 807 (8th Cir.1993) (“When a defendant unequivocally relies on ... a defense [of denying participation in the alleged crime], evidence of other acts is not admissible for the purpose of proving intent.” (quoting United States v. Ortiz, 857 F.2d 900, 904 (2d Cir.1988))). Unfortunately for Johnson, the Supreme Court’s decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), effectively overruled Jenkins. United States v. Hill, 249 F.3d 707, 712 (8th Cir.2001) (“Old Chief" }, { "docid": "20469777", "title": "", "text": "of judicial proceedings.” United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). As with the wiretap recordings, the note was probative of Donnell’s involvement in the conspiracy and his knowledge of its illegal purpose. The note directly supports the Government’s argument that Donnell acted as an enforcer for the conspiracy. In addition to its description of Donnell’s role, the note describes the roles of several other co-conspirators in significant detail. The note thus refutes Donnell’s argument that he was merely an innocent acquaintance of the active members of the conspiracy. Given the probative value of the note, the district court did not plainly err in finding that any danger of unfair prejudice was insufficient to substantially outweigh the note’s probative value. The Government also introduced evidence of Donnell’s 2002 conviction for possession of marijuana. Under Federal Rule of Evidence 404(b), “[ejvidenee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” “Evidence is admissible under Rule 404(b) if: ‘(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.’ ” United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002) (quoting United States v. Hardy, 224 F.3d 752, 757 (8th Cir .2000)). Donnell argues that his marijuana possession conviction is inadmissible under the test set out in Frazier. His argument focuses on our decision in United States v. Cook, 454 F.3d 938 (8th Cir.2006), where we upheld the exclusion of a marijuana possession conviction because it “was six years remote and it was functionally dissimilar to the charged distribution offense,” id. at 941 (emphasis omitted). We need not decide whether the district" }, { "docid": "12135871", "title": "", "text": "evidence is inadmissible under Mil.R.Evid. 404(b), Manual for Courts Martial, United States, 1969 (Revised edition), which provides: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In response, the Court below held: The list of reasons contained in the rule for the admission of uncharged misconduct is not exhaustive. United States v. Johnson, 634 F.2d 735 (4th Cir.1980). Evidence of uncharged misconduct may be introduced to rebut an issue raised by the defense. United States v. Janis, 1 M.J. 395 (C.M.A.1976); United States v. Johnson, supra; United States v. Fortes, 619 F.2d 108 (1st Cir.1980). Further, such evidence must be plain, clear and conclusive and connected with the charged offense in point of time, place and circumstances. United States v. Janis, supra; United States v. Butcher, 1 M.J. 554 (A.F.C.M.R.1975); United States v. Kelly, 7 U.S.C.M.A. 584, 23 C.M.R. 48 (1957). Trial judges must determine whether evidence of uncharged misconduct is offered for a proper purpose, whether it is relevant and whether its probative value outweighs the danger of unfair prejudice to the accused. Mil. R.Evid. 403; S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual 184 (1981). When viewed against that background we find the evidence was properly before the court and correctly limited in its application by the instructions given to the members by the military judge. United States v. Dicupe, supra at 917. This testimony was offered as rebuttal to the testimony that the accused performed his duties as night manager “[ojutstandingly well.” Since one of his duties was to check and secure the safes at closing, this incident related by Mrs. K. would indicate that on at least one occasion, he failed to act in accordance with his assigned tasks. In addition, the nature of the testimony permits varying inferences to be drawn. One, of" }, { "docid": "6282911", "title": "", "text": "v. Green, 275 F.3d 694, 701 (8th Cir.2001). The district court has broad discretion in admitting such evidence and will be reversed only if “such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005) (internal quotation omitted). Rule 404(b) provides that evidence of prior crimes or acts, while inadmissible to prove that a person acted in conformity with the prior act, may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This evidence is admissible if it is: “1) relevant to a material issue; 2) similar in kind and close in time to.the crime charged; 3) proven by a preponderance of the evidence; and 4) if the potential prejudice does not substantially outweigh its probative value.” Thomas, 398 F.3d at 1062. A necessary element of the charged conspiracy was Voegtlin’s knowledge of the purpose of the conspiracy. Voegtlin’s pri- or involvement in the use of listed chemicals to manufacture methamphetamine was relevant to prove this element of knowledge, and such evidence may be admissible even if the defendant has not raised a defense based on lack of knowledge. United States v. Davidson, 195 F.3d 402, 408 (8th Cir.1999). Skiles’s testimony that Voegtlin previously had agreed to provide ingredients for Skiles to cook into methamphetamine, and that, in 2002, Voegtlin was selling methamphetamine that Skiles had cooked, is relevant to prove that Voegtlin knowingly joined the charged conspiracy. The prior acts were similar in kind and close in time to the charged conspiracy: the prior agreement was virtually identical to the charged conduct, and the acts occurred the year before the beginning of the charged conspiracy. Voegtlin did not offer any evidence to rebut Skiles’s testimony, and the trial court issued a limiting instruction to guard against potential unfair prejudice. Thus, the district court did not abuse its discretion in admitting Skiles’s testimony. III. Voegtlin next argues that the evidence was insufficient to establish that he" }, { "docid": "5318217", "title": "", "text": "prior act of a similar nature was introduced for the limited purpose of showing state of mind or intent, or absence of mistake or accident. On cross-examination of Bettelyoun, Johnson’s attorney attempted to elicit that Johnson was intoxicated at the time of the earlier incident, and that it was done in jest. On appeal, Johnson contends that the court erred in admitting. Bettelyoun’s testimony about the prior act. Johnson argues that the evidence improperly put his character in issue; that the evidence was not admitted for any proper purpose; that the incident was irrelevant because it was dissimilar to the act for which he was convicted; and that any probative value of the evidence was substantially outweighed by its potential prejudice. The government argues that Johnson’s claim of self-defense, raised by his attorney during opening argument, put his state of mind or intent at issue. The government also argues that the probativeness of the evidence outweighs any prejudice, and that any error in admission was harmless in light of the overwhelming evidence of guilt. Evidence of other crimes, acts or wrongs is admissible if it is probative of a material issue other than the character of the defendant. Fed.R.Evid. 404(b); Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). If offered for a proper purpose under Rule 404(b), evidence does not fall within Rule 404(a)’s prohibition of character evidence. Fed.R.Evid. 404 advisory committee notes. The admission of prior acts requires that the evidence be relevant to a material issue, similar in kind and close in time to the crime charged, and substantially more probative than prejudicial. See, e.g., United States v. Mothershed, 859 F.2d 585, 588 (8th Cir.1988). We review alleged error in the admissibility of prior wrongful acts under an abuse of discretion standard. United States v. Bowman, 798 F.2d 333, 337 (8th Cir.), cert. denied, 479 U.S. 1043, 107 S.Ct. 906, 93 L.Ed.2d 856 (1986). Reversal is warranted only where the disputed evidence clearly has no bearing upon any material issue. United States v. Kandiel, 865 F.2d 967, 972 (8th Cir.1989). The" }, { "docid": "22238450", "title": "", "text": "admitted that the purpose of the cross-examination was not to test the reliability of the witnesses, but instead to present a defense of selective prosecution. As stated earlier, selective prosecution is not an issue for the jury, so the district court correctly granted the motion in limine. D. WHETHER THE DISTRICT COURT ERRED IN ITS TREATMENT OF 404(b) EVIDENCE THAT DEFENDANTS PAID EMPLOYEES “UNDER THE TABLE” 1. Standard of Review This Court reviews the district court’s legal determination that the evidence was admissible for a legitimate purpose de novo. United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir.1996) (citing United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir.1994)). The Court reviews the district court’s determination that the probative value was not substantially outweighed by the unfairly prejudicial effect for abuse of discretion. Id. 2. Analysis The district court did not err when it admitted evidence that Defendants paid employees under the table. a. Legal Framework Federal Rule of Evidence 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Moreover, even if the “other acts” evidence is relevant, if the probative value is substantially outweighed by its unfair prejudice, the district court may exclude the evidence. Fed.R.Evid. 403. This Court has outlined a four-step process 'for the admission of Rule 404(b) evidence. First, the proponent of the evidence must identify the specific purpose of the “other acts” evidence. Merriweather, 78 F.3d at 1076. Second, the district court must decide whether the identified purpose is at issue in the case. Icl. at 1076-77. Third, if the purpose is at" }, { "docid": "14367338", "title": "", "text": "demonstrate DeAngelo’s capability of using the type of force and intimidation he was charged with in the armed robbery count. The government also argues that Weir can be distinguished because it is based on entirely different facts from those involved in this case. Rule 404(b) provides, in relevant part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.... Rule 404(b) applies to evidence of subsequent as well as prior crimes, wrongs, or acts. See United States v. Johnson, 934 F.2d 936, 939-40 (8th Cir.1991). In order for the trial court to admit evidence under Rule 404(b), the evidence must satisfy the following conditions: 1. The evidence of the bad act or other crime is relevant to a material issue raised at trial; 2. The bad act or crime is similar in kind and reasonably close in time to the crime charged; 3. There is sufficient evidence to support a finding by the jury that the defendant committed the other act or crime; and 4. The potential prejudice of the evidence does not substantially outweigh its probative value. Id. at 939. “The district court has broad discretion to admit such evidence and its discretion will not be overturned unless it is clear that the evidence had no bearing upon any of the issues involved.” Id. (quotations omitted). Three of the reasons the government asserts for offering the evidence at trial support the trial judge’s decision to admit the recorded conversation without ever implicating Rule 404(b). We have held that the jury in a criminal case is entitled to know about the context of a crime and any events that help explain the context. United States v. Rankin, 902 F.2d 1344, 1346 (8th Cir.1990). We have ruled a number of times post-Weir that evidence of death threats against witnesses or other parties cooperating with the government is generally admissible against a" }, { "docid": "17690004", "title": "", "text": "mandatory term of life in prison. II. Roundtree argues that the district court erred in admitting evidence of a prior conviction under Rule 404(b). A district court’s admission of evidence under Rule 404(b) is normally reviewed for an abuse of discretion. See United States v. Foster, 344 F.3d 799, 801 (8thCir.2003). Roundtree, however, did not present the argument he makes on appeal to the district court. Therefore, review is for plain error. See United States v. Bruno Makes Room For Them, 496 F.2d 507, 509 (8th Cir.1974) (if objection below failed to specify grounds claimed on appeal, review is for plain error). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” United States v. Vaughn, 519 F.3d 802, 804 (8th Cir.2008), citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Further, the error will not be corrected unless it seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Rule 404(b) “excludes evidence of specific bad acts used to circumstantially prove a person has a propensity to commit acts of that sort.” United States v. Johnson, 439 F.3d 884, 887 (8th Cir.2006). Evidence of prior bad acts is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). Rule 404(b) evidence is admissible if it is (1) relevant to a material issue, (2) close in time and similar in kind to the crime charged, (3) sufficient to support a jury finding that the defendant committed the other act, and (4) its probative value is not substantially outweighed by its prejudice. See United States v. Kern, 12 F.3d 122, 124-25 (8th Cir.1993). The district court admitted evidence of a 2002 Illinois conviction for distribution of cocaine. It found that the conviction was (1) relevant to motive, knowledge, and intent to commit the crime, (2) close in time (about two years apart) and similar to the charged crime (both" }, { "docid": "5924981", "title": "", "text": "150 grams but less than 500 grams;' (2) Johnson’s role was that of an organizer, leader, manager, or supervisor; and (3) Johnson willfully attempted to obstruct justice during the investigation or prosecution. The district court sentenced Johnson to thirty years’ imprisonment on the conspiracy count, twenty years’ imprisonment on the distribution count, and twenty years’ imprisonment on the possession count, to be served concurrently, as well as a concurrent term of supervised release of five years on the first count and three years on each of the remaining counts. Johnson appeals his convictions, arguing the district court abused its discretion in permitting Nelson to testify to Johnson’s prior bad acts, and the evidence was insufficient to convict on any of the three counts. II. DISCUSSION A. Rule 404(b) Evidence Johnson argues the district court erred in permitting Nelson to testify about his past dealings with Johnson, and the government improperly encouraged the jury to ignore the district court’s limiting instruction regarding Nelson’s testimony. We disagree. Federal Rule of Evidence 404(b) bars use of a defendant’s prior bad acts as character evidence, but permits such evidence to prove other factors such as the defendant’s motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. It is a rule of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination. United States v. Hill, 410 F.3d 468, 471 (8th Cir.2005). To be admissible, Rule 404(b) evidence “must (1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and (4) not have a prejudicial value that substantially outweighs its probative value.” United States v. Kern, 12 F.3d 122, 124-25 (8th Cir.1993) (citations omitted). We review the admission of such evidence for an abuse of discretion and reverse “only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity” to engage in criminal misconduct. United" }, { "docid": "23346083", "title": "", "text": "determination that the evidence was admissible for a legitimate purpose. Finally, we review for abuse of discretion the district court’s determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect. United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir.1994) (citing United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc)), cert. denied, — U.S. -, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995). B. Rule 404(b) provides in relevant part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident____ Fed.R.Evid. 404(b). We discussed the application of Rule 404(b) in circumstances similar to the present case in Johnson, 27 F.3d 1186. In Johnson, the defendant was charged with possession of cocaine base with the intent to distribute. Before trial, the government notified the district co.urt that it intended to introduce evidence showing that the defendant had made two prior drug sales within a month of the charged possession. The government asserted that the evidence was admissible under Rule 404(b) to show “preparation, plan, motive, intent, all those in this case.” Id. at 1189. In the course of the trial, the court instructed the jurors three times concerning the purpose for which the uncharged prior drug sales might be considered. In the first instruction, the court told the jurors that the evidence “may be admissible for some purpose, perhaps to show motive or some other relevant activity.” Id. at 1190 (emphasis omitted). In the second instruction, the court told the jurors they might consider the prior sales as “proof as to method of operations.” Id. (emphasis omitted). Finally, at trial’s end, the court instructed: “[Y]ou can only consider [the prior acts] for deciding whether the defendant had the necessary intent to commit the crime charged or as evidence of preparation, plan and knowledge in the commission of the crime charged.”" }, { "docid": "5419041", "title": "", "text": "a school board member, a public school teacher, a mortician, and a minister-who testified to her truthfulness, honesty, and compassion, and to the busy nature of her practice. In attempted rebuttal of this portrait of Johnson as an altruistic healer of the sick, whose concerns lay elsewhere than attending to her financial interests and resulting legal responsibilities, the government called Robert Pemberton, an auditor for the U.S. Department of Health, Education & Welfare. Pemberton testified at length about his investigation of Johnson’s billings for Medicaid services for 1976-78. His study showed that Johnson reported four times as many services per patient as other Virginia doctors. Johnson did not object to the general course of Pemberton’s testimony. In fact, the following day Johnson again took the stand in order to testify that she had not signed the Medicaid billings upon which Pemberton had based his investigation. During cross-examination, government counsel asked Johnson, “Who would have received the benefit of all the fraudulent forms for Medicaid that were filed?” Johnson’s counsel objected and moved for a mistrial because use of the term, “fraudulent,” unduly prejudiced the jury. The trial judge overruled the motion, directed government counsel to rephrase the question, and gave the jury a cautionary instruction. II We hold that Pemberton’s testimony was admissible under Fed.R.Evid. 404(b), which provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The first sentence of Rule 404(b) brings forward the traditional rule that extrinsic acts evidence is inadmissible solely to prove that defendant is a bad character and, therefore, likely to have committed the crime charged. See, e.g., Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Woods, 484 F.2d 127 (4th Cir. 1973); Lovely v. United States, 169 F.2d 386 (4th Cir. 1948); Advisory Committee Notes to Fed.R.Evid. 404(b); McCormick, Evidence §" }, { "docid": "3709392", "title": "", "text": "Stan Matha, and the government sought to introduce evidence of Johnson’s participation in the transactions on September 16 and 20. The defendant made a motion in limine to exclude this evidence and the district court reserved ruling on its admissibility. Prior to the government’s opening, the government renewed its motion to present evidence of the subsequent acts. The district court then permitted the introduction of this evi dence to prove Johnson’s knowledge and intent. Johnson contends that the trial court abused its discretion by admitting this evidence because it violated Federal Rules of Evidence 403 and 404(b), constructively amended the indictment and premised guilt upon a pattern of later contact. Johnson further contends that the trial court erred in overruling his objection to the admission of testimony regarding the drug operations of Frank Noel. 1.Admission of Evidence Concerning Subsequent Acts Under Rule 404(b) Johnson argues that the trial court abused its discretion by admitting evidence regarding the uncharged drug transactions on September 16 and 20, 1988. Under Federal Rule of Evidence 404(b), the trial court may admit evidence of other crimes to demonstrate motive, opportunity, intent, preparation, common plan, knowledge, identity, or absence of mistake or accident. Evidence admitted under Rule 404(b) must meet the following conditions: 1. The evidence of the bad act or other crime is relevant to a material issue raised at trial; 2. The bad act or crime is similar in kind and reasonably close in time to the crime charged; 3. There is sufficient evidence to support a finding by the jury that the defendant committed the other act or crime; and 4. The potential prejudice of the evidence does not substantially outweigh its probative value. United States v. Anderson, 879 F.2d 369, 378 (8th Cir.1989) (citing United States v. Mothershed, 859 F.2d 585, 588 (8th Cir. 1988)). The district court has broad discretion to admit such evidence “and its decision will not be overturned unless it is clear that the evidence had no bearing upon any of the issues involved.” United States v. O’Connell, 841 F.2d 1408, 1422 (8th Cir. 1988) (citations omitted). In" }, { "docid": "20391718", "title": "", "text": "Thomas. Thomas moved for a judgment of acquittal at the close of the Government’s case and also at the close of all evidence. The district court denied both motions and submitted the two count indictment to the jury. The jury returned a verdict of guilty on both counts. Thomas appeals, arguing (1) evidence of the 2008 investigation and arrest was introduced in violation of Federal Rule of Evidence 404(b); and (2) there was insufficient evidence to support the jury’s verdict. II. The district court enjoys broad discretion to admit evidence of other crimes. United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005). We review a district court’s decision to admit evidence under Federal Rule of Evidence 404(b) for abuse of discretion and “ ‘reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.’ ” Id. (quoting United States v. Howard, 235 F.3d 366, 372 (8th Cir.2000)). While outlawing admission of evidence of other crimes that is proffered “to prove the character of a person in order to show action in conformity therewith,” Federal Rule of Evidence 404(b) allows such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” It is well-settled in this circuit that the rule is one of inclusion, “such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” United States v. Johnson, 439 F.3d 947, 952 (8th Cir.2006). Evidence of other crimes is admissible under Rule 404(b) if it is “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value.” Thomas, 398 F.3d at 1062. Thomas argues that the evidence of the 2008 crack cocaine trafficking fails three of the four requirements. He argues that the evidence is not relevant to a material issue raised at trial, is not similar in kind and close in time" }, { "docid": "3709393", "title": "", "text": "may admit evidence of other crimes to demonstrate motive, opportunity, intent, preparation, common plan, knowledge, identity, or absence of mistake or accident. Evidence admitted under Rule 404(b) must meet the following conditions: 1. The evidence of the bad act or other crime is relevant to a material issue raised at trial; 2. The bad act or crime is similar in kind and reasonably close in time to the crime charged; 3. There is sufficient evidence to support a finding by the jury that the defendant committed the other act or crime; and 4. The potential prejudice of the evidence does not substantially outweigh its probative value. United States v. Anderson, 879 F.2d 369, 378 (8th Cir.1989) (citing United States v. Mothershed, 859 F.2d 585, 588 (8th Cir. 1988)). The district court has broad discretion to admit such evidence “and its decision will not be overturned unless it is clear that the evidence had no bearing upon any of the issues involved.” United States v. O’Connell, 841 F.2d 1408, 1422 (8th Cir. 1988) (citations omitted). In the present case, the district court admitted evidence of the two subsequent drug transactions to prove Johnson’s knowledge or intent, finding that the evidence met the conditions for admission under Rule 404(b) as stated in United States v. Lewis, 759 F.2d 1316, 1349 (8th Cir. 1985). The indictment alleged that Johnson aided and abetted Matha’s distribution by setting up a heroin transaction on August 31, 1988. On that date, Johnson obtained the source and supply of heroin for the undercover agent and informant. He remained with the undercover agent during the heroin transaction, discussed the quality of heroin and requested money for setting up the transaction. On September 16 and 20, 1988, all of the witnesses testified that Johnson again met them at the same corner. On both occasions, he led the agents to a source of heroin. Testimony also indicated that at one time Johnson handled the heroin. Jones further testified that on both September 16 and 20, Johnson asked for money for setting up the transactions and he actually received money on September" }, { "docid": "19656418", "title": "", "text": "preparation, plan, knowledge, identity, or absence of mistake or accident!.] We review for an abuse of discretion a district court’s decision to admit evidence of other crimes, wrongs, or acts under Fed.R.Evid. 404(b), “reversing] only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005) (citations and internal quotation marks omitted). Evidence of other crimes, wrongs, or acts “is admissible if it is (1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value.” Id. (citations omitted). We conclude the district court did not abuse its discretion in admitting the contested evidence to show Lucas’s knowledge and intent. First, Lucas’s knowledge and intent were relevant to material issues in the case because the government was required to prove Lucas voluntarily and intentionally attempted to manufacture methamphetamine and knowingly possessed a firearm on December 2, 2003. “Evidence of similar drug activity is admissible in a drug prosecution case because a defendant’s complicity in other similar transactions serves to establish intent or motive to commit the crime charged.” United States v. Johnson, 934 F.2d 936, 940 (8th Cir.1991) (citation and internal quotation marks omitted). Evidence that Lucas possessed a firearm on a previous occasion is also relevant to show knowledge and intent. See United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (citation omitted). The evidence of Lucas’s other criminal conduct was similar in kind and sufficiently close in time to the crimes charged. “When admitted to show intent, the prior acts need not be duplicates, but must be ' sufficiently similar to support an inference of criminal intent.” Id. at 1275 (citation and internal quotation marks omitted). “To determine if a crime is too remote in time to be admissible under Rule 404(b), we apply a reasonableness standard, evaluating the facts and circumstances of éach case.” Id. (citation" }, { "docid": "23231045", "title": "", "text": "Johnson now appeals, alleging that the evidence of the two prior drug sales was inadmissible under Rule 404(b), and even if admissible for one of the purposes named in Rule 404(b), or some other purpose, should nonetheless have been excluded under Fed. R.Evid. 403 as more substantially prejudicial than probative. II. We review the district court’s admission of Rule 404(b) prior acts evidence under the three step analysis we announced in United States v. Gesso, 971 F.2d 1257, 1261-62 (6th Cir.1992)(wi banc). First, we review for clear error the district court’s factual determination that a prior act occurred. Second, we review de novo whether the district court made “the correct legal determination” that the evidence was admissible for a legitimate purpose. Id. at 1262. And third, we review for' abuse of discretion the district court’s determination that the “other acts” evidence is more probative than prejudicial. Id. Rule 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.... In ruling on the admissibility of evidence submitted under Rule 404(b), the district court must determine whether one of the factors justifying the admission of “other acts” evidence is material, that is, “in issue,” in the case, and if so, whether the “other acts” evidence is probative of such factors. The court must also determine whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect. Fed.R.Evid. 403; United States v. Acosta-Cazares, 878 F.2d 945, 948-49 (6th Cir.)(per curiam), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989). A. The government argues that Johnson’s past drug sales were relevant to show his intent to distribute cocaine on February 21, 1992. The Supreme Court held in Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988), that “[t]he threshold inquiry a court must make before admitting similar" }, { "docid": "13254884", "title": "", "text": "Mr. Garcia at the time of the fire. Hector Carbonell, a relative of Mrs. Garcia, was charged with arson of the house and later pleaded nolo contendere to the charges. Under these suspicious circumstances, Aetna denied coverage and appellants filed this suit. Approximately one year before the fire, a building leased by the Garcias for their crate business was also destroyed by fire. During cross-examination of Mrs. Garcia, Aetna’s attorney elicited this fact over her attorney’s objection. Appellants claim that the district court erred in admitting this evidence. Although this is a diversity of citizenship case where Florida law provides the substantive law, “the Federal Rules of Evidence govern the admissibility of evidence in the federal courts.” Johnson v. William C. Ellis & Sons Iron Works, Inc., 609 F.2d 820, 821 (5th Cir. 1980). The purpose for which the evidence was admitted is unclear from the trial court’s ruling. Aetna asserts two grounds to support the admissibility of the evidence. First, that the evidence was admissible to support Aetna’s defense that the Garcias intentionally burned their home. More specifically, Aetna contends that the evidence was admissible to establish intent, motive, or absence of mistake or accident. Second, Aetna argues that the evidence was admissible to show that the Garcias were familiar with insurance and insurance recovery in general. With respect to Aetna’s argument that the previous fire evidence was admissible to show intent or motive, the evidence must be tested by the standard for admission of prior similar conduct. Fed.R.Evid. 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of prior similar acts is subject to Fed.R.Evid. 403’s limitation: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of" }, { "docid": "2426054", "title": "", "text": "district court did not err in refusing to dismiss the three-strikes notice and the superseding indictment. B. Evidence of the Mason City Robberies Knutson argues that the district court abused its discretion by allowing the government to introduce evidence of the Mason City robberies. He contends that there was insufficient evidence connecting him to those other crimes and that the evidence was therefore of little value in establishing his identity. Knutson also argues that he was unfairly prejudiced by the admission of the evidence because of the dramatic nature of the testimony and bank surveillance footage. Evidence of other criminal acts, though not admissible to demonstrate a defendant’s propensity to commit a crime, may be admitted for other purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R.Evid. 404(b). “Such evidence is admissible if it is (1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substantially outweigh its probative value.” United States v. Oman, 427 F.3d 1070, 1075 (8th Cir. 2005). The district court has broad discretion in admitting evidence under Rule 404(b), and we will reverse its decision only when the evidence clearly has no bearing on any legitimate issues and is introduced solely to establish the defendant’s propensity to commit a crime. Id. at 1074-75. Knutson’s argument at trial was that some other person was involved in the robberies; thus, the central issue was one of identity. Evidence of other crimes may be relevant to establishing identity if a reasonable juror could conclude that the same person committed both crimes. See United States v. Carroll, 207 F.3d 465, 469 (8th Cir.2000). The crimes, however, must be “sufficiently idiosyncratic to make them clearly distinctive from the thousands of other bank robberies committed each year.” Id. at 468 (internal quotation omitted). Factors pertinent to this question include the extent of the similarity between the crimes and their temporal and geographic proximity to one another. Id." }, { "docid": "3531770", "title": "", "text": "the jury. The district court has broad discretion in admitting other crimes evidence. United States v. Mays, 822 F.2d 793, 797 (8th Cir.1987). We review its Rule 404(b) decision- for abuse of discretion and “reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Howard, 235 F.3d 366, 372 (8th Cir.2000) (quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.1998)). Under Rule 404(b), evidence of a prior crime, though inadmissible to show that a person acted in conformity with the prior act, may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Such evidence is admissible if it is (1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not' substantially outweigh its probative value. United States v. Carroll, 207 F.3d 465, 469 n. 2 (8th Cir.2000); United States v. Jackson, 278 F.3d 769, 771 (8th Cir.2002). Thomas argues that the district court erred in admitting the prior acts evidence because it was used by the jury as propensity\" evidence, and he contends that the jury’s note to the court shows that it was confused about the proper use of the evidence. He claims that his prior convictions for distributing crack were very different from the crime charged here because they involved small amounts of crack, less than three grams combined, and that they were- too remote in time to be relevant. He also claims that the prior acts evidence was not necessary to prove intent because the government’s expert witness testified that the amount he was charged with is consistent with distribution rather than personal use. He argues that even if the evidence were relevant, its prejudicial impact outweighed its probative value. The government argues that the Rule 404(b) evidence was properly admitted because it was relevant on the issue of" } ]

[ { "docid": "22919358", "title": "", "text": "not it involved intent to harm or actual harm to individuals. See United States v. Reynolds, 116 F.3d 328, 330 (8th Cir.1997); see also United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir.2002) (stating that “burglary of a commercial building is a crime of violence within the meaning of § 4B1.2(a)”). The California crime of carjacking also qualifies as a crime of violence, as defined in the sentencing guidelines, as a matter of law, based on its statutory elements. California law defines carjacking, punishable by imprisonment for three, five or nine years, as: the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, ... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. CaLPenal Code § 215(a) (emphasis added). We have expressly stated that the federal offense of carjacking, involving the taking of a vehicle “from the person or presence of another by force and violence or by intimidation,” 18 U.S.C. § 2119, “is a crime of violence” within the meaning of the term in 18 U.S.C. § 924. United States v. Jones, 34 F.3d 596, 601-02 (8th Cir.1994). The California carjacking offense similarly meets the definition of a crime of violence under the sentencing guidelines because it qualifies independently under both definitions in U.S.S.G. § 4B1.2(a)(l) and (2). It includes as an element of the offense “the use, attempted use, or threatened use of physical force against the person of another” and also “involves conduct that presents a serious potential risk of physical injury to another.” Id. The sentence is affirmed. . The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska. . Prior to the arrest, the confidential informant advised the officers that he had observed a small knife in Mathijssen’s coat sleeve during an earlier interaction. . If we were to reach the question of unreasonableness, however, we would nevertheless affirm Mathijssen's sentence as not unreasonable." } ]

[ { "docid": "10140250", "title": "", "text": "18 U.S.C, §' 2113(a) under the first paragraph of the provision if he, “by force and violence, or by intimidation, takes ... from the person or presence of another, or obtains ... by extortion any property or money or any other thing of value belonging to ... any bank.” Section 2113(a) contains a second paragraph that proscribes “entering] or at tempting] to enter any bank ... with intent to commit in such bank ... any felony affecting such bank ... and in violation of any statute of the United States, or any larceny.” Harper does not dispute that his three convictions were under the first paragraph. His challenge to the career-offender designation focuses on the first paragraph of § 2113(a) only, and he implicitly concedes that each paragraph of § 2113(a) defines at least one separate crime. See United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016). Harper’s contention is that “the most innocent conduct penalized under § 2113(a) is ‘intimidation,’ ” and that a violation of § 2113(a) by intimidation does not have, as an element, the use, attempted use, or threatened use of physical force against the person of another. In United States v. Wright, 957 F.2d 520 (8th Cir. 1992), however, this court held that robbery by intimidation under § 2113(a) categorically involves the threatened use of force: “Intimidation means the threat of force.” Id. at 521 (quotation omitted). Wright thus controls here unless it has been superseded by an intervening decision of the Supreme Court. Harper suggests that Wright was abrogated by Elonis v. United States, _ U.S. _, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), but we see no inconsistency between the two decisions. Elonis held that the crime of transmitting a communication containing a threat under 18 U.S.C. § 875(c) requires proof that the defendant made the communication with the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat, or, possibly, with reckless disregard for the likelihood that the communication would be so viewed. Id. at 2012-13. Harper reasons that because “intimidation” in §" }, { "docid": "1948698", "title": "", "text": "to a crime of violence, § 924(c)(1). Our review of this statutory interpretation question is de novo. See United States v. King, 979 F.2d 801, 802 (10th Cir.1992). A crime of violence is an offense that is a felony and— (A) 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). Of course, Mr. Brown was charged with conspiracy to commit carjacking. The substantive offense of carjacking is always a crime of violence because § 2119 requires taking or attempting to take a vehicle by force and violence or by intimidation, and the crime of carjacking carries with it a substantial risk of the use of physical force. See United States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1995); United States v. Mohammed, 27 F.3d 815, 819 (2d Cir.1994); United States v. Singleton, 16 F.3d 1419, 1423 (5th Cir. 1994) (“Carjacking is always and without exception a ‘crime of violence’ as that term is defined in 18 U.S.C. § 924(c)(3).”). Both the government and Mr. Brown acknowledge that several courts have held that a conspiracy to commit a federal crime of violence is a crime of violence for purposes of § 924(c). See, e.g., United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996) (Hobbs Act conspiracy to commit robbery); United States v. Harper, 33 F.3d 1143, 1149 n. 5 (9th Cir.1994) (conspiracy to commit bank robbery); United States v. Patino, 962 F.2d 263, 267 (2d Cir.1992) (conspiracy to kidnap); United States v. Johnson, 962 F.2d 1308, 1311-12 (8th Cir.1992) (conspiracy to commit bank robbery). Relying upon United States v. King, Mr. Brown argues that this approach is foreclosed in this circuit. In King, the court held that a state conviction for conspiracy to commit armed robbery was not a conviction of a violent felony under 18 U.S.C. § 924(e). 979 F.2d at" }, { "docid": "22941406", "title": "", "text": "v. Selfa, 918 F.2d 749, 751 (9th Cir.1990); United States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989). Our sister circuits have uniformly ruled that other federal crimes involving takings “by force and violence, or by intimidation,” have as an element the use', attempted usé, or threatened use of physical force. Earlier this year, for example, the Eighth Circuit concluded that robbery in the special maritime and territorial jurisdiction of the United States ünder 18 U.S.C. § 2111 satisfied the similarly worded force clause in the Armed Career Criminal Act (“ACCA”), because it required a taking “by force and violence, or by intimidation.” See United States v. Boman, 810 F.3d 534, 542-43 (8th Cir.2016). The Second and Eleventh Circuits reached the same conclusion with respect to the carjacking statute, 18 U.S.C. § 2119. See United States v. Moore, 43 F.3d 568, 572-73 (11th Cir.1994); United States v. Mohammed, 27 F.3d 815, 819 (2d Cir.1994). The logic of those decisions is straightforward. A taking “by force and violence” entails the use of physical force. Likewise, a taking “by intimidation” involves the threat to use such force. See, e.g., Jones, 932 F.2d at 625 (“Intimidation means the threat of force.”); Selfa, 918 F.2d at 751 (explaining that the intimidation element of § 2113(a) meets “the [Guidelines] section 4B1.2(1) requirement of a -threatened use of physical force’”). As the Seventh Circuit explained in its Jones decision, “[t]here is no ‘space’ between ‘bank robbery and ‘crime of violence’” because “violence in the broad sense that includes a merely threatened use of force is. an element of every bank robbery.” See 932 F.2d at 625. ■In United States v. Presley, in 1995, we recognized the equivalence between “intimidation” and the “threatened use of physical force,” holding that a Virginia robbery offense satisfied the ACCA force clause. See 52 F.3d 64, 69 (4th Cir.1995). As we explained, Virginia had'defined robbery as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Id. Reasoning that “[violence is the use of force,”" }, { "docid": "23375131", "title": "", "text": "one take or attempt to take by force and violence or by intimidation, which is what the federal carjacking statute does, satisfies the force clause of § 924(c), which requires the use, attempted use, or threatened use of physical force.” Id (footnote omitted); see United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (reasoning that carjacking by “intimidation” under § 2119 necessarily includes a threat of force and is a crime of violence under § 924(c)(3)(A)). Furthermore, attempted or threatened force against either “the person or property of another” satisfies that elements requirement in § 924(c)(3)(A). Of course, attempted carjacking by “force and violence” (as proscribed in § 2119(1)) is readily recognized as a crime of violence under § 924(c)(3)(A). Yet, our inquiry under the categorical approach must also be whether attempted taking of a car by “intimidation” qualifies, too. The term “intimidation” in the carjacking statute, however, cannot be read-in isolation, but must be considered with the requisite intent under § 2119(1), which is intimidation conduct “with the intent to cause death or serious bodily injury.” Proscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is 'unmistakably a crime of violence also. See United States v. McGuire, 706 F.3d 1333, 1336-38 (11th Cir. 2013) (involving an attempt to disable an aircraft and explaining that an “ ‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the passengers” is “unmistakably violent” and “[i]t makes little difference that the physical act, in isolation from the crime, can be done with a minimum of force”); United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (analyzing “intimidation” in the similarly worded bank robbery statute in 18 U.S.C. § 2113(a) and concluding that “intimidation occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”); see also In re Sams, 830 F.3d 1234, 1238-39 (11th Cir. 2016) (concluding that a §" }, { "docid": "22941404", "title": "", "text": "we agree with the government. 1. The crimes of violence underlying McNeal’s and Stoddard’s brandishing convictions were the armed bank robberies charged in Counts Two, Four, and Six of the indictment. Armed bank robbery under § 2113(d) has four elements: (1) the defendant took, or attempted to take, money belonging to, or in the custody; care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken “by force and violence, or by intimidation”; (3) the deposits of the institution were federally insured; and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person, by the use of a dangerous weapon or device. See United States v. Davis, 437 F.3d 989, 993 (10th Cir.2006). The first three elements of armed bank robbery are drawn from § 2113(a) and define the lesser-included offense of bank robbery. The fourth element is drawn from § 2113(d). We focus on the second element: that the money was taken from the bank “by force and violence, or by intimidation.” See § 2113(a). ■ In assessing whether bank robbery qualifies as a crime of violence under the § 924(c)(3) force clause, we do not write on a blank slate. Twenty-five years ago in Adkins, our esteemed former colleague Judge Hall explained that “armed bank robbery is unquestionably a crime of violence, - because it ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.’ ” See 937 F.2d at 950 n. 2 (quoting 18 U.S.C. § 924(c)(3)(A)). We also ruled decades ago that a § 2113(a) bank robbery is a crime of violence under the force clause of Guidelines section 4B1.2, which is nearly identical to, the § 924(c)(3) force , clause. See United States v. Davis, 915 F.2d 132, 133 (4th Cir.1990); accord Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir.2015); United States v. Wright, 957 F.2d 520, 521 (8th Cir.1992); United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991); United States" }, { "docid": "14611486", "title": "", "text": "Fourth and Fifth Circuits construed “intimidation” in the federal carjacking statute to mean the same thing as its counterpart in the federal bank robbery statute. We agree with the analysis of our sister circuits. We, too, have held that “intimidation” as used in the federal bank robbery statute requires that a person take property “in such a way that would put an ordinary, reasonable person in fear of bodily harm,” which necessarily entails the “threatened use of physical force.” United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (citation omitted). As a result, in our court, too, federal bank robbery constitutes a crime of violence. Id. We have not addressed in a published decision whether Selfa’& holding remains sound after Johnson, but we think it does. A defendant cannot put a reasonable person in fear of bodily harm without threatening to use “force capable of causing physical pain or injury.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265; see United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 1417, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring) (bodily injury necessarily involves the use of violent force). Bank robbery by intimidation thus requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard. We see no reason to interpret the term “intimidation” in the federal carjacking statute any differently. To be guilty of carjacking “by intimidation,” the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force. It is particularly clear that “intimidation” in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119; see Holloway v. United States, 526 U.S. 1, 12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (“The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the" }, { "docid": "23375132", "title": "", "text": "or serious bodily injury.” Proscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is 'unmistakably a crime of violence also. See United States v. McGuire, 706 F.3d 1333, 1336-38 (11th Cir. 2013) (involving an attempt to disable an aircraft and explaining that an “ ‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the passengers” is “unmistakably violent” and “[i]t makes little difference that the physical act, in isolation from the crime, can be done with a minimum of force”); United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (analyzing “intimidation” in the similarly worded bank robbery statute in 18 U.S.C. § 2113(a) and concluding that “intimidation occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”); see also In re Sams, 830 F.3d 1234, 1238-39 (11th Cir. 2016) (concluding that a § 2113(a) offense is a crime of violence under § 924(c)(3)(A)). We can conceive of no plausible means by which a defendant could commit the crime of attempted carjacking absent an attempted or threatened use of force against either a person or property. Applying the categorical approach, we consider “the plausible applications” of the carjack-. ing statute, not mere “theoretical” possibilities of how the carjacking may occur under § 2219(1). See McGuire, 706 F.3d at 1337 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (requiring “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the standard)). For all these reasons, we hold that attempted carjacking under § 2119(1) categorically qualifies as a crime of violence under § 924(c)(3)(A). Accordingly, the district court did not err in denying Ovalles’s § 2255 motion. AFFIRMED. . The parties dispute whether Ovalles’s appeal of the denial of her § 2255 motion is barred by the limited appeal waiver in her plea agreement." }, { "docid": "7053660", "title": "", "text": "takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A). Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence under United States Sentencing Guidelines § 4B1.2, which defines “crime of violence” in exactly the same manner as § 924(c)(3)(A)). To hold otherwise would create a circuit split with at least two of our sister circuits. See In re Smith, 829 F.3d 1276, 1280-81 (11th Cir. 2016) (holding that the elements of carjacking under § 2119 “meet the requirements that the force clause in § 924(c)(3)(A) sets out for a qualifying underlying offense”); United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (holding that the elements of carjacking under § 2119 satisfy § 924(c)(3)(A) and noting that the court is “not aware of any ease in which a court' has interpreted the term ‘intimidation’ in the carjacking statute as meaning anything other than a threat of violent force”). In light of our precedent addressing an analogous statute, we see no reason to create such a circuit split by holding differently from how our sister circuits have held. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 399, 407 (5th Cir." }, { "docid": "10631361", "title": "", "text": "low threshold of violent force is necessarily satisfied in attempted bank robbery by intimidation. A bank employee can reasonably believe that a robber’s demands for money to which he is not entitled will be met with violent force of the type satisfying Curtis Johnson because bank robbery under § 2113(a) inherently contains a threat of violent physical force. Armour also argues that his conviction should be vacated because robbery under § 2113(d) could be accomplished by “assault.” The jury was instructed here that “assault” means “an intentional attempt to inflict, or threat to inflict, bodily injury upon another person with the apparent and present ability to cause such injury that creates in the victim a reasonable fear or apprehension of bodily harm. An assault may be committed without actually touching, striking, or injuring the other person.” Under § 2113(d), the “assault” putting the victim in fear must be “by the use of a dangerous weapon or device,” so we need not worry about such hypothetical minor injuries as paper cuts or hits from painful snowballs. Cf. Flores v. Ashcroft, 350 F.3d 666, 670, 672 (7th Cir. 2003) (misdemeanor battery with bodily injury not a crime of domestic violence under immigration statute because such minor injuries could satisfy criminal statute). Thus, for the same reasons that robbery by intimidation under § 2113(a) qualifies as a crime of violence under § 924(c), so does robbery by assault by a dangerous weapon or device under § 2113(d). The victim’s fear of bodily harm is necessarily fear of violent physical force that is inherent in armed bank robbery. For these reasons, robbery by intimidation under § 2113(a) and robbery by assault by a dangerous weapon or device under § 2113(d) have as an element the use, attempted use, or threatened use of physical force against the person or property of another and thus qualify as crimes of violence under § 924(c). Accord, In re Sams, 830 F.3d 1234, 1238 (11th Cir. 2016); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). We" }, { "docid": "14611484", "title": "", "text": "meets that standard. Under the categorical approach used to make that determination, the more specific question is whether the least serious form of the offense meets the Johnson standard. See Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). If it does, carjacking qualifies categorically as a crime of violence. Section 2119 defines carjacking as follows: Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle ... from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall [be punished according to law]. 18 U.S.C. § 2119. If the carjacking is committed “by force and violence,” it obviously qualifies as a crime of violence under the Johnson standard. But the offense can also be committed “by intimidation,” and Gutierrez argues that intimidation does not require the use, attempted use, or threatened use of violent physical force. We have not yet decided whether carjacking constitutes a crime of violence. But each of the other circuits to confront the question after Johnson has concluded that carjacking qualifies as a crime of violence. See United States v. Evans, 848 F.3d 242, 247-48 (4th Cir. 2017); United States v. Jones, 854 F.3d 737, 740-41 (5th Cir. 2017); Ovalles v. United States, 861 F.3d 1257, 1267-69 (11th Cir. 2017). In so holding, the Fourth and Fifth Circuits relied on their prior decisions construing the federal bank robbery statute, which, like the carjacking statute, proscribes robbery “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a); see Evans, 848 F.3d at 246-47; Jones, 854 F.3d at 740. Those two circuits (and others) have held that “intimidation” as used in the federal bank robbery statute requires the threatened use of violent physical force and thus satisfies the Johnson standard. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016); United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017); see also United States v. Ellison, 866 F.3d 32, 39-40 (1st Cir. 2017); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016). The" }, { "docid": "7168418", "title": "", "text": "a felony offense that: (A) 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)(B). The statute, then, contains an elements clause (subsection A) and a residual clause (subsection B). Mr. Smith received a § 924(c) sentence enhancement based on a companion conviction for carjacking, in violation of 18 U.S.C. § 2119. A person commits the federal offense of carjacking when he, “with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation,” or if he attempts to do so. Id. In challenging his § 924(c) sentence based on Johnson, Mr. Smith’s application asserts that the statute qualifies as a crime of violence in whole or part under the residual clause. Put differently, he is arguing that, in light of Johnson, his carjacking offense no longer categorically qualifies as a crime of violence. We may only deny Mr. Smith’s application if, as relevant here, it is clear under “on-point binding precedent [that] a particular crime categorically qualifies” as a crime of violence notwithstanding Johnson. In re Rogers, No. 16-12626, 825 F.3d 1335, 1339, 2016 WL 3362057, *2 (11th Cir. June 17, 2016). The majority, without citation to case law, concludes that carjacking “clearly meets the requirements for an underlying felony offense, as set out in § 924(c)(3)(A)’s use-of-force [elements] clause.” Maj. Ord. at 5.1 disagree. Although the carjacking statute may categorically have “as an element the use, attempted use, or threatened use of physical force” such that it necessarily qualifies as a crime of violence even after Johnson, we have not so held. 18 U.S.C. § 924(c)(3)(A). In fact, it appears that we previously have relied at least in part on the residual clause in concluding" }, { "docid": "14611487", "title": "", "text": "(2014) (Scalia, J., concurring) (bodily injury necessarily involves the use of violent force). Bank robbery by intimidation thus requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard. We see no reason to interpret the term “intimidation” in the federal carjacking statute any differently. To be guilty of carjacking “by intimidation,” the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force. It is particularly clear that “intimidation” in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119; see Holloway v. United States, 526 U.S. 1, 12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (“The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car.”). As a result, the federal offense of carjacking is categorically a crime of violence under § 924(c). AFFIRMED." }, { "docid": "22941405", "title": "", "text": "bank “by force and violence, or by intimidation.” See § 2113(a). ■ In assessing whether bank robbery qualifies as a crime of violence under the § 924(c)(3) force clause, we do not write on a blank slate. Twenty-five years ago in Adkins, our esteemed former colleague Judge Hall explained that “armed bank robbery is unquestionably a crime of violence, - because it ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.’ ” See 937 F.2d at 950 n. 2 (quoting 18 U.S.C. § 924(c)(3)(A)). We also ruled decades ago that a § 2113(a) bank robbery is a crime of violence under the force clause of Guidelines section 4B1.2, which is nearly identical to, the § 924(c)(3) force , clause. See United States v. Davis, 915 F.2d 132, 133 (4th Cir.1990); accord Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir.2015); United States v. Wright, 957 F.2d 520, 521 (8th Cir.1992); United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991); United States v. Selfa, 918 F.2d 749, 751 (9th Cir.1990); United States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989). Our sister circuits have uniformly ruled that other federal crimes involving takings “by force and violence, or by intimidation,” have as an element the use', attempted usé, or threatened use of physical force. Earlier this year, for example, the Eighth Circuit concluded that robbery in the special maritime and territorial jurisdiction of the United States ünder 18 U.S.C. § 2111 satisfied the similarly worded force clause in the Armed Career Criminal Act (“ACCA”), because it required a taking “by force and violence, or by intimidation.” See United States v. Boman, 810 F.3d 534, 542-43 (8th Cir.2016). The Second and Eleventh Circuits reached the same conclusion with respect to the carjacking statute, 18 U.S.C. § 2119. See United States v. Moore, 43 F.3d 568, 572-73 (11th Cir.1994); United States v. Mohammed, 27 F.3d 815, 819 (2d Cir.1994). The logic of those decisions is straightforward. A taking “by force and violence” entails the use of physical force. Likewise, a" }, { "docid": "22941418", "title": "", "text": "commits that offense with poison. Indeed, McNeal and Stoddard have not identified a single bank robbery prosecution where the victim feared bodily harm from something other than violent physical force. We therefore decline to read Woodrwp to mean that a bank robbery victim is “intimidat[ed]” within the meaning of § 2113(a) when she reasonably fears bodily harm from something other than violent physical force. Because intimidation entails a threat to use violent physical force, and not merely a threat to cause bodily injury, Torres-Miguel does not alter our conclusion that § 2113(a) bank robbery is a crime of violence under the § 924(c)(3) force clause. B. In sum, we are satisfied that bank robbery under 18 U.S.C. § 2113(a) is a “crime of violence” within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it “has as an element the use, attempted use, or threatened use of physical force” — specifically, the taking or attempted taking of property “by force and violence, or by intimidation.” Because bank robbery is a lesser-included offense of § 2113(d) armed bank robbery, armed bank robbery is also a crime of violence under the force clause. McNeal and Stod-dard’s challenge to their brandishing convictions therefore fails at the first step of plain error review, in that the trial court did not err in concluding that armed bank robbery qualifies as a crime of violence. V. Pursuant to the foregoing, we reject each of the contentions of error and affirm the judgments. AFFIRMED . Citations herein to “J.A. _” refer to the contents of the Joint Appendix filed by the parties in this appeal. . Prior to trial, Link entered into a plea agreement with the government, pursuant to which he pleaded guilty to Counts Five and Seven in exchange for his cooperation against McNeal and Stoddard. Link thereafter refused, however, to testify against his coconspirators. ' The trial court found Link in breach of the plea agreement and sentenced him to thirty-five years in prison. Link appealed the judgment, and we affirmed. See United States v. Link, 606 Fed.Appx. 80 (4th Cir.2015)." }, { "docid": "7053659", "title": "", "text": "qualify as a “crime of violence” because it does not fit under § 924(c)(3)(A). Jones’s argument that § 924(c)(3)(B) is unconstitutionally vague under Johnson is foreclosed by our en banc decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016). In Gonzalez-Longoria, we held that the definition of “crime of violence” found in 18 U.S.C. § 16(b) remains constitutional in the aftermath of Johnson. Gonzalez-Longoria, 831 F.3d at 675-77. The definition of “crime of violence” found in § 16(b) is identical to the definition found in § 924(c)(3)(B); therefore, the definition of “crime of violence” under § 924(c)(3)(B) is not unconstitutionally vague. See United States v. Chapman, 851 F.3d 363, 374-75 (5th Cir. 2017). Further, contrary to Jones’s assertion, carjacking fits under the definition set forth in § 924(c)(3)(A) — it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Section 2119 provides that a person commits an offense when, “with the intent to cause death or serious bodily harm,” he takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A). Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence" }, { "docid": "10140252", "title": "", "text": "2113(a) does not require proof that the robber intentionally intimidated a victim, see United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003), robbery by intimidation does not have as an element the threatened use of force. In other words, he seems to contend, “threatened use of force” after Elonis requires a specific intent to issue a threat. Elonis did not announce a universal definition of “threat” that always requires the same mens rea. To the contrary, the Court observed that “threat,” as commonly defined, “speak[s] to what the statement conveys — not to the mental state of the author.” 135 S.Ct. at 2008. Elonis held only that a certain criminal statute required proof of a particular mens rea. The Court did not redefine the phrase “threatened use of force” as it appears in the sentencing guidelines. Harper also mentions fleetingly the possibility that a person could be intimidated without a robber threatening to use violent force — that is, force “capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); see United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012). This argument fails because bank robbery by intimidation requires proof that the victim “reasonably could infer a threat of bodily harm” from the robber’s acts. Yockel, 320 F.3d at 824 (quotation omitted). A threat of bodily harm requires a threat to use violent force because “it is impossible to cause bodily injury without using force ‘capable of producing that result.” United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017) (quoting United States v. Castleman, _ U.S. _, 134 S.Ct. 1405, 1416-17, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring)). The holding of Wright therefore controls: bank robbery by intimidation under § 2113(a) is a crime of violence under the force clause, because it involves a threat ened use of force. See also Allen v. United States, 836 F.3d 894, 894-95 (8th Cir. 2016) (per curiam) (holding that bank robbery in violation of § 2113(a) and (e) is a “crime of" }, { "docid": "22941417", "title": "", "text": "to use physical force. McNeal and Stoddard suggest that a person can commit bank robbery by means other than the use or threatened use of violent physical force, such as “by threatening to poison or expose the teller to a hazardous gas.” See Supp. Reply Br. of Appellants 9. We decline to read Woodrwp as conclusively interpreting “intimidation” to encompass threats to cause bodily injury other than by violent physical force. Plainly, the threat that the teller reasonably perceived from Woodrup’s actions¡ was a threat of bodily harm caused by violent physical force — not by something like poisoning. See Torres-Miguel, 701 F.3d at 168-69. The distinction we drew in Torres-Miguel between using force and causing injury was thus irrelevant .to our decision in Woodrwp. Furthermore, the Woodrup panel had no reason to dwell on whether to define “intimidation” in terms of fear of injury or in terms of a\" threatened use of force. That distinction is irrelevant in the vast majority of bank robbery cases, as it will be the rare bank robbér who commits that offense with poison. Indeed, McNeal and Stoddard have not identified a single bank robbery prosecution where the victim feared bodily harm from something other than violent physical force. We therefore decline to read Woodrwp to mean that a bank robbery victim is “intimidat[ed]” within the meaning of § 2113(a) when she reasonably fears bodily harm from something other than violent physical force. Because intimidation entails a threat to use violent physical force, and not merely a threat to cause bodily injury, Torres-Miguel does not alter our conclusion that § 2113(a) bank robbery is a crime of violence under the § 924(c)(3) force clause. B. In sum, we are satisfied that bank robbery under 18 U.S.C. § 2113(a) is a “crime of violence” within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it “has as an element the use, attempted use, or threatened use of physical force” — specifically, the taking or attempted taking of property “by force and violence, or by intimidation.” Because bank robbery is a lesser-included offense" }, { "docid": "22941411", "title": "", "text": "physical force.” See 131 F.3d 685, 688 (7th Cir.1997), Moreover, to qualify as intimidation, the degree of “force” threatened must be violent force — that is, force capable of causing physical pain or injury. See United States v. Wagstaff, 865 F.2d 626, 627 (4th Cir.1989) (emphasizing that intimidation occurs “when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”). . b. Although Johnson addressed the definition of “physical force” under the ACCA force clause, the Supreme Court’s Leocal decision, six years earlier, explained what it means to “use” physical force. In Leo-cal, the Court ruled that a Florida offense of driving under the influence and causing serious injury was not a crime of violence under the force clause of 18 U.S.C. § 16. See 543 U.S. at 9-10, 125 S.Ct. 377. The Court explained that the “key phrase in § 16(a) — ‘the use ... of physical force against the person or property of another’ — most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Id. at 9, 125 S.Ct. 377 (alteration in original). Because the Florida Supreme Court had interpreted the DUI statute as lacking a mens rea requirement, the DUI offense could not qualify as a crime of violence under the force clause. Id. at 7-8, 10, 125 S.Ct. 377. Although Leocal reserved the question of whether a reckless application of force could qualify as a “use” of force, we answered that question two years later by ruling that recklessness was not enough. See Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir.2006). McNeal.and Stoddard insist that bank robbery by “intimidation” is not a crime of violence under the force clause of § 924(c)(3) because, in their view, bank robbery can be committed by recklessly engaging in intimidation. To support that interpretation,-they point to our 1996 decision in United States v. Woodrup, 86 F.3d 359 (4th Cir.1996). Woodrup was convicted of § 2113(a) bank robbery on evidence that he “entered the bank, looked directly at [a] teller ..., walked very quickly across the" }, { "docid": "12201962", "title": "", "text": "was based on his companion conviction for bank robbery, in violation of § 2113(a), which requires that the defendant take the property of a bank “by force and violence, or by intimidation.” See 18 U.S.C. § 2113(a). We have concluded that an armed bank robbery conviction pursuant to § 2113(a) and (d) qualifies as a crime of violence because it requires as an element, “the use, attempted use, or threatened use of physical force against the person or property of another,” as set out in § 924(c)(3)(A). Hines, 2016 WL 3189822, at *3, 824 F.3d at 1337. Additionally, as to the “by intimidation” language contained in § 2113(a), this Court has held that similar language still satisfies the § 924(c)(3)(A) use-of-force clause. See United States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1994) (concluding, in the context of the federal carjacking statute, 18 U.S.C. § 2119, that “[tjaking or attempting to take by force and violence or by intimidation ... encompasses the use, attempted use, or threatened use of physical force.” (emphasis added) (quotation marks and alterations omitted)). While we have not directly held that a bank robbery conviction under only § 2113(a), rather than an armed bank robbery conviction under § 2113(a) and (d), qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause, the statutory language in § 2113(a) and our holdings in Hines and Moore make clear that such a conviction falls within the scope of the § 924(c)(3)(A) use-of-force clause. Indeed, other circuits have concluded that a bank robbery conviction under § 2113(a) qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (concluding that a bank robbery conviction under § 2113(a) qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause because (1) bank robbery “by force and violence” requires the use of physical force, (2) bank robbery “by intimidation” requires the threatened use of physical force, and (3) “[e]ither of those alternatives includes an element that is the use, attempted use, or threatened use of" }, { "docid": "23375130", "title": "", "text": "person or presence of another; (5) by force and violence or intimidation. United States v. Diaz, 248 F.3d 1065, 1096 (11th Cir. 2001). To prove an “attempt,” the government must show the defendant (1) had the intent to commit the underlying offense, and (2) took a substantial step toward the commission of the offense. United States v. Jockisch, 857 F.3d 1122, 1129 (11th Cir. 2017). The intent element of the federal carjacking offense is satisfied if the defendant acted with the intent to kill or caúse serious bodily injury to the victim if necessary to take the motor vehicle from the victim. Holloway v. United States, 526 U.S. 1, 6-8, 119 S.Ct. 966, 970, 143 L.Ed.2d 1 (1999). In the context of a successive § 2255 application, this Court already has held that a carjacking offense under § 2119 “meet[s] the requirements that the force clause in § 924(c)(3)(A) sets out for a qualifying underlying offense.” In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016). As this Court explained briefly, “an element requiring that one take or attempt to take by force and violence or by intimidation, which is what the federal carjacking statute does, satisfies the force clause of § 924(c), which requires the use, attempted use, or threatened use of physical force.” Id (footnote omitted); see United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (reasoning that carjacking by “intimidation” under § 2119 necessarily includes a threat of force and is a crime of violence under § 924(c)(3)(A)). Furthermore, attempted or threatened force against either “the person or property of another” satisfies that elements requirement in § 924(c)(3)(A). Of course, attempted carjacking by “force and violence” (as proscribed in § 2119(1)) is readily recognized as a crime of violence under § 924(c)(3)(A). Yet, our inquiry under the categorical approach must also be whether attempted taking of a car by “intimidation” qualifies, too. The term “intimidation” in the carjacking statute, however, cannot be read-in isolation, but must be considered with the requisite intent under § 2119(1), which is intimidation conduct “with the intent to cause death" } ]

[ { "docid": "931893", "title": "", "text": "that he would be eliminated from the AECP program. It appears that appellant’s release from the program was based on physical examinations conducted in January and April 1970. On both of these occasions, his blood pressure was beyond the acceptable limits for entry into the Air Force under the regulations. His blood pressure may or may not have been within the limits for retention in the service if already commissioned. This question was not considered in the district court. On July 7, 1970, appellant’s orders to officers training school were cancelled and he was reduced to his original rank of E-3 and reassigned to mechanical duty. The upshot is that he must serve two years over and above his original enlistment. The district court gave considerable if not controlling weight on the questions of waiver and misrepresentations to ¶ 54 of appellant’s reenlistment contract where he signed the following statement: “I have had this contract fully explained to me, I understand it, and certify that no promise of any kind has been made to me concerning assignment to duty, geographical area, schooling, special programs, assignment of Government quarters, or transportation of dependents except as indicated. — .” The district court concluded that appellant had no right to rely on any representation made to him by anyone in the Air Force as to waiving blood pressure requirements and that the paragraph indicated that he did not so rely. We find this paragraph to be ambiguous insofar as the question of appellant’s physical qualification for a commission is concerned. The facts are that he was qualified for a commission upon taking the physical examination for entry into the AECP program. He was apparently qualified for retention in the Air Force at the time he was dismissed from the program but was not qualified for entry into the service as an enlisted man or as an officer. It would be entirely consistent with the text of If 54 to conclude that the question presented here is not covered by the terms of f[ 54. In any event, whether a contract is ambiguous is" } ]

[ { "docid": "1608386", "title": "", "text": "of the recruiting contract. In Pence v. Brown, 627 F.2d 872 (8th Cir. 1980), the Eighth Circuit Court of Appeals, in response to the government’s argument that the Air Force was not bound by its agents’ representations, stated: This case is quite different from a suit against the government for misrepresentations in contracting in which the complaint seeks money damages or specific performance. The propositions that the government cannot be held responsible for the misstatements of its agents does not extend to representations which induce a contract when the remedy sought is rescission. Id. at 874. Similarly, in Santos v. Franklin, 493 F.Supp. 847 (E.D.Pa.1980), the Court held that the Navy must discharge from active duty a reservist who had failed to meet reserve requirements in reliance upon erroneous advice of Navy officials. On the facts before me it would be unconscionable to permit the Navy to disavow the act of its agent on the ground that the agent had erred. Id. at 855. Respondents’ reliance on Jackson is misplaced. Pence and Santos represent the current state of the law in these type of cases and are consistent with this Court’s interpretation of the law. Accordingly, this Court holds that the Navy is bound by the oral promises, misstatements, and representations of its recruiter. SUFFICIENCY OF MISREPRESENTATIONS Military enlistment contracts are subject to traditional principles of contract law. Heavy v. Warner, 493 F.2d 748 (5th Cir. 1974). A recruit is entitled to rescind an enlistment contract if the military is unable to perform its obligation. Novak v. Rumsfeld, 423 F.Supp. 971 (N.D.Cal.1976); if the terms of the contract are so ambiguous as to be misleading, Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972); or if the recruit was induced to enter into the contract by fraud or false representations. Chalfant v. Laird, 420 F.2d 945 (9th Cir. 1969). Even if the misrepresentations were innocently or nonnegligently made, if they were material and induced the prospective recruit to enlist, the contract may be rescinded. Pence v. Brown, supra at 874. It is not necessary, however, that the false representations deprive" }, { "docid": "23694598", "title": "", "text": "the contents of the enlistment documents he signed. The facts show that no promise, representation, commitment, agreement or contract was made between the Army and the plaintiff in the enlistment documents in connection with his enlistment that provided that he would not be assigned to any dangerous-combative-type military maneuvers or functions during his service in the Army. It is clear that the documents, supra, executed by plaintiff upon entering active duty service in the Army, imposed no obligation on the United States to refrain from having plaintiff participate in a field training exercise, nor was there any prohibition from utilizing plaintiff in field training exercises. Notwithstanding plaintiff’s positive statement in the enlistment documents that no promises or representations were made to him other than those in the written documents, he now claims that he was promised orally by the recruiting officer that he would not be assigned to dangerous or combat-type military duties. Such oral promises and representations, if they were made by the recruiting officer, are not binding on the government. In Goldstein v. Clifford, 290 F. Supp. 275 (D.N.J. 1968), it was held: The enlistment instrument and the statutory law in effect when it was signed constitute the enlistment contract. Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 435, 54 S.Ct. 231, 78 L.Ed.413 (1934); Brotherhood of Railway and Steamship Clerks, etc. v. Railway Express Agency, Incorporated, 238 F.2d 181, 184 (6 Cir. 1956); Morse v. Boswell, supra. [289 F.Supp.812 (D.Md.1968)] (290 F.Supp.279). See also Pfile v. Corcoran, 287 F. Supp. 554 (D.Colo.1968) where the court held that the executed enlistment documents of an enlistee constituted his enlistment contract. The court said: Commencing with the sentence \"In connection with my enlistment as a Reserve of the Army for service in the Army Reserve, THIS DATE, I hereby agree to and understand that — ,” the Statement of Acknowledgment delineates the basic terms of petitioner’s enlistment, laying out the duties and obligations of the enlisting reservist. The general physical appearance of the document would also reasonably lead one to conclude that it constituted the enlistment agreement. The" }, { "docid": "10687237", "title": "", "text": "agree to accept the applicants as members of the military community. The theory underlying those decisions is that there was a contract voidable by the ■service because a false representation had been made, but accused could not take advantage of his fraud to escape its terms. However, had the representations been true, the service involved would have been bound to accept the individual involved and he would have been obligated to serve for a specified period of time. One of the cardinal principles of contract law is that to change a status there must be a mutual understanding of the parties, and here there were no actual terms and conditions contemplated or agreed upon by \"them which remotely suggested a •change in relationship. Accordingly, there is no framework from which to ¡start the construction of a contract bringing about that result. Obviously, there are instances where courts have held that the acts of the parties created a constructive enlistment. Usually that doctrine is applied where the parties have mutually agreed to change the applicant’s status and subsequently he seeks to escape his obligations by asserting that the original agreement to change his status should be rejected because of his own fraud. It is in that sort of situation where constructive contracts find their roots for, in law, constructive means a condition assumed from other acts or conditions which are considered as amounting to or involving the act or condition assumed. Therefore, to find a constructive enlistment in this case, we would be required to assume that the accused became a soldier and that he was accepted by the Army as such merely because he posed as a serviceman and defrauded the Government. Here, the thrust of the Government’s argument is that the status was changed solely by accused’s fraud in illegally obtaining money, foodstuffs, and other benefits; but such is not the law. Constructive contracts are imposed or created by law without regard to the party bound on the ground that they are dictated by reason and justice. They rest solely on a legal fiction and are not contract obligations" }, { "docid": "16035577", "title": "", "text": "that the Army makes, plaintiffs submitted Army recruiting materials from the Army National Guard’s website. The webpage states that Try One “allows a veteran to serve for only one year on a trial basis before committing to a full enlistment.” (Pis’ Mot. for TRO, Exhibit 2.) As this Court stated in discussing Qualls’ fraud claim earlier, “the contract, with its statement of United States laws, does indeed put Qualls on notice that the Army might involuntarily extend his term of service.” Qualls v. Rumsfeld, 357 F.Supp.2d 274, 285 (D.D.C.2005). Moreover, “the parties to the contract understood and intended that many laws and regulations not set forth in the contract would govern,” including “pre-existing” laws such as 10 U.S.C. § 12305 (the “stop loss” policy). Santiago v. Rumsfeld, 425 F.3d 549, 560 (9th Cir.2005). So too, was Perez on notice when he first enlisted in 1999 that the Army may extend his service involuntarily. Further, he had over four-years of active duty military experience to become familiar with conditions in which service may be involuntarily extended. Here, even assuming, Perez meets the first three requirements of a prima facie claim of fraudulent misrepresentation, he has not produced any evidence that he justifiably interpreted his service in the “Try One” program to be exempt from “stop loss.” In light of Perez’s prior service, his enlistment contracts and exposure to military enlistment policies, the Court cannot assume justifiable reliance in the absence of any evidence. Furthermore, the Court can find no fraudulent misrepresentation in the recruiter’s explanation of the “Try One” program. There is nothing in the record that showed the recruiter misled Perez, or indeed, told him anything that was inconsistent with his enlistment contract. Perez interpreted his rights and duties after talking with his recruiter differently from the terms in his enlistment contract. But like most recruiters in the military, Perez’s recruiter did not discuss the rare occurrences of the military’s “stop loss” policy nor did Perez ask about that policy. As unfortunate as this may be, there was no affirmative misrepresentation made by his recruiter. After all, the recruiter was" }, { "docid": "16035575", "title": "", "text": "would have been released on approximately July 31, 2005. It is ironic that Qualls is trying to maintain an action seeking his release from the military when he himself precluded that very outcome. Finally, the Court finds that Qualls did not lack “free will” when he chose to re-enlist. Financial considerations are a part of anyone’s decision-making process when choosing among potential careers. Though financial issues may have been paramount in Qualls’ thought process, he was not forced to sign his name on the dotted line and raise his right hand when sworn in. To allow individuals to accept bonuses and then at a later date claim economic duress would both open the floodgates of litigation on such claims and fundamentally undermine the military recruitment process. The Court refuses to go down that path. D. Fraudulent Inducement and Material Misrepresentation Rescission of an enlistment contract is proper if the recruit was induced to enter into the contract by fraud or false representations. Brown v. Dunleavy, 722 F.Supp. 1343, 1350 (E.D.Va.1989); Withum v. O’Connor, 506 F.Supp. 1374, 1378 (D.P.R.1981) (citing Chalfant v. Laird, 420 F.2d 945, 945 (9th Cir.1969)). This is so even if the misrepresentations were innocently or non-negligently made. Withum, 506 F.Supp. at 1378. The recipient of the alleged misrepresentation must demonstrate that the maker made an assertion that was: (1) not in accordance with the facts, (2) that was material, and that (3) was relied upon (4) justifiably by the recipient in manifesting his assent to the agreement. Barrer v. Women’s Nat’l Bank, 761 F.2d 752, 758 (D.C.Cir.1985) Plaintiff Perez alleges that he was falsely assured by a recruiter that he could try out the National Guard for one year through the “Try One” program, and that after the one year he would have no further commitment unless he voluntarily chose to make one. (Amend.Compl.8.) Defendants contend that neither his recruiter’s actions, nor the Government’s actions in later applying “stop loss” to extend Perez’s enlistment, rise to the level of material misrepresentation. (Defs.’ Mot. 2.) The Court is compelled to agree with defendants. As evidence of the representations" }, { "docid": "23389286", "title": "", "text": "significant because it displays a concern with military status, rather than with completion of a particular enlistment. The reference to termination of “active service” —rather than to receipt of a discharge — is also important since the person who is discharged before the expiration of his term of enlistment for purposes of immediate reenlistment has experienced no termination of — and no hiatus in — his “active service.” He has remained continuously in “active service” at all times, despite his receipt of a discharge from the prior enlistment. Indeed, during oral argument, we were informed that under current Army practice, a soldier discharged early to reenlist immediately will not receive the same discharge certificate that he would be issued if discharged upon the expiration of an enlistment. Basically, the 1979 amendment to Article 2 of the Code reflects a Congressional intent to focus on military status as the touchstone for court-martial jurisdiction and to eliminate objections to such jurisdiction because of recruiter misconduct which helped induce the enlistment contract. It would be inconsistent with that intent for our Court to leave in effect an erroneous decision which — apparently on the grounds that a discharge constitutes a waiver of military jurisdiction — now precludes trial by court-martial for offenses in a prior enlistment, even though no interruption in military status has occurred. While we now overrule Ginyard, we do not question that under Hirshberg military jurisdiction is terminated by a discharge at the end of an enlistment or period of obligated term of service even though the servicemember immediately reenters the service. This break in “status,” irrespective of the length of time between discharge and reenlistment, is sufficient to terminate jurisdiction. Ill Since we are overruling an earlier decision of our Court, we must consider whether that overruling should only be prospective in nature. Ever since 1951, Article 3(a) of the Code has given notice that a discharge may not terminate amenability to trial — at least, when the former servicemember resumes his military status. Therefore, we perceive little likelihood that servicemembers have accepted early discharges for the purpose of" }, { "docid": "20184346", "title": "", "text": "modification. The very essence of military procedure is uniformity. There is a federal interest in assuring that enlistees, through the various entry programs, enter on the same footing and with the same rights and duties as other enlistees who signed the same form. It would cut to the heart of military order if Private Jones from Maine could demand special treatment under his enlistment contract while Private Smith from New Jersey could not. We therefore find that a uniform federal rule based on general contract concepts should govern military enlistment contracts. To analyze plaintiffs contract claim, we need to break it down into two parts, the 1978 original student ROTC contract and the 1981 Oath of Office. As to the first contract, plaintiff claims that there was fraud in the inducement in that he was led to believe that he either would never have to take a commission, or that if he did take a commission, he would never be called to active service. A contract which is entered into as a result of fraud in the inducement is voidable by the party against whom the fraud was committed. Unlike a void contract (such as a contract for an illegal purpose), a voidable contract is a valid contract, which can be enforced by either side unless the defrauded party seeks to exercise his or her option and rescind the contract. In this case, we fail to find as a factual matter that any factually misleading statements were made. The contract was not entered into as a result of fraudulent inducement. In the most generous reading of the facts, plaintiff was mistaken in his impression of what accepting ROTC money meant. If a mistake is unilateral, that is, if only one side is mistaken and the other side had no reason to know of the confusion of the mistaken party, the mistaken party is still bound by the contract, even if, subjectively, the contract signed was not the contract which the mistaken party thought they were signing. A contract is not voidable nor void due to a unilateral mistake. However, even" }, { "docid": "16035576", "title": "", "text": "1374, 1378 (D.P.R.1981) (citing Chalfant v. Laird, 420 F.2d 945, 945 (9th Cir.1969)). This is so even if the misrepresentations were innocently or non-negligently made. Withum, 506 F.Supp. at 1378. The recipient of the alleged misrepresentation must demonstrate that the maker made an assertion that was: (1) not in accordance with the facts, (2) that was material, and that (3) was relied upon (4) justifiably by the recipient in manifesting his assent to the agreement. Barrer v. Women’s Nat’l Bank, 761 F.2d 752, 758 (D.C.Cir.1985) Plaintiff Perez alleges that he was falsely assured by a recruiter that he could try out the National Guard for one year through the “Try One” program, and that after the one year he would have no further commitment unless he voluntarily chose to make one. (Amend.Compl.8.) Defendants contend that neither his recruiter’s actions, nor the Government’s actions in later applying “stop loss” to extend Perez’s enlistment, rise to the level of material misrepresentation. (Defs.’ Mot. 2.) The Court is compelled to agree with defendants. As evidence of the representations that the Army makes, plaintiffs submitted Army recruiting materials from the Army National Guard’s website. The webpage states that Try One “allows a veteran to serve for only one year on a trial basis before committing to a full enlistment.” (Pis’ Mot. for TRO, Exhibit 2.) As this Court stated in discussing Qualls’ fraud claim earlier, “the contract, with its statement of United States laws, does indeed put Qualls on notice that the Army might involuntarily extend his term of service.” Qualls v. Rumsfeld, 357 F.Supp.2d 274, 285 (D.D.C.2005). Moreover, “the parties to the contract understood and intended that many laws and regulations not set forth in the contract would govern,” including “pre-existing” laws such as 10 U.S.C. § 12305 (the “stop loss” policy). Santiago v. Rumsfeld, 425 F.3d 549, 560 (9th Cir.2005). So too, was Perez on notice when he first enlisted in 1999 that the Army may extend his service involuntarily. Further, he had over four-years of active duty military experience to become familiar with conditions in which service may be involuntarily extended." }, { "docid": "5892144", "title": "", "text": "is written below in my own handwriting or is hereby waived (if none, write \"none.”) In the indicated space plaintiff wrote the word \"None.” On December 5, 1979 plaintiff enlisted in the Regular Army and in so doing signed another statement similar to the one above. Upon completion of basic training and advanced individual training, plaintiff was awarded the military occupational specialty of a \"Medical Specialist, MOS 91B10.” She was thereafter assigned to perform clerical duties. On October 3, 1980, having become pregnant, plaintiff voluntarily exercised her option pursuant to applicable regulations and was honorably discharged. Plaintiff filed suit on August 18, 1980, alleging that by fraud and deceit the recruiting representatives of the Army, with apparent authority, induced her to enlist under the false and negligent representation that she would be provided with 18 weeks of training as an operating room specialist but that, instead, she was given 6 weeks of training with the award of the MOS aforesaid. Defendant’s motion for summary judgment challenges this court’s jurisdiction to entertain the claim. In effect, defendant argues that an enlistment agreement is not a contract but rather a written consent to military service that renders the statutory scheme operative and that, therefore, it cannot be subject to application of general principles of contract law, citing In re Grimley, 137 U.S. 147 (1890), and other cases involving issues not before us now. The decisions cited by defendant involve such things as claims for military pay, or defenses to court martial proceedings, or to reenlistment bonuses. The plaintiff here is not claiming any right to payment for military services rendered which would be governed by statute or regulation, but for \"actual, compensatory, special and punitive damage,” for breach of contract because \"due to said actions and inactions, the Plaintiff has been shocked, mortified, humiliated and has been subjected to great inconvenience, delay” and \"now suffers both physically and mentally and Plaintiff will continue to suffer in the future.” The issues we must decide in the present case are not new to us. Somewhat similar facts and issues arose in Jackson v. United" }, { "docid": "1303369", "title": "", "text": "that the accused deserted from the armed forces. II A While Woodrick was an AFROTC cadet he was not subject to military jurisdiction. However, upon being ordered to active duty as an enlisted member, pursuant to the enlistment contract which he executed in 1981 when he joined the AF-ROTC detachment at Memphis State University, he became subject to military jurisdiction as of the date on which he was ordered to report. See Art. 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). Of course, if the order to report was illegal and had no effect, as petitioner claims, it did not create an obligation to perform active duty in the Air Force, and he would not be subject to prosecution for desertion, unauthorized absence, .or any other purely military offenses. Cf. United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952). The legality of the order depends, in turn, upon the effect of the documents which Woodrick executed when he joined the AF-ROTC program at Memphis State University in 1981. Woodrick insists that his enlistment contract was a nullity because it was induced by material misrepresentations of agents of the Air Force. At one time this Court took the position that misrepresentations by a recruiter precluded exercise of any type of court-martial jurisdiction. See United States v. Russo, 1 M.J. 134 (C.M.A.1975). However, this view, which was criticized in many quarters, did not find favor with Congress, and it was legislatively overruled in 1979 by enactment of Public Law 96-107, § 801, 93 Stat. 810. See United States v. McDonagh, 14 M.J. 415 (C.M.A.1983). Consequently, Article 2(b) of the Uniform Code now provides: The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) of this section and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment. While Congress may not have had in mind the situation of someone who enlisted in the Air Force Reserve incident to joining" }, { "docid": "3619443", "title": "", "text": "e.g., Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th Cir.1981) (claims that enlistment contracts are invalid or have been breached are decided according to principles of traditional contract law); Cinciarelli v. Carter, 662 F.2d 73, 78-79 (D.C.Cir.1981) (civilian courts are to apply traditional contract principles not only to enlistment contracts, but also to military active duty agreements); Pence v. Brown, 627 F.2d 872, 874 (8th Cir.1980) (when Air Force recruiters made innocent misrepresentation, recruit was entitled to rescission under general contract principles). However, the military enlistment cases do not arise under a detailed -statutory scheme like the one governing NHSC scholarships. The terms of the contractual relationship between the military enlistee and the Government is not regulated by statute, while the terms of the relationship between the NHSC scholar and the Government have been set forth in detail by Congress. The statutory scheme at issue here is more analogous to grant-in-aid programs, under which the federal government provides money for specific purposes and places conditions on the recipient. For example, the Hill-Burton Act, formally known as Title VI of the Public Health Service Act, 42 U.S.C. § 291, was passed to address the adequacy and distribution of health service facilities with post-Depression and post-war programs. American Hosp. Assoc. v. Schweiker, 721 F.2d 170, 172 (7th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2169, 80 L.Ed.2d 553 (1984). Under the Act, the federal government gave money to the states to develop and to improve hospital physical facilities and research. In return, the facilities were required to provide no-cost health service to the poor. This requirement was challenged by health care providers because they claimed the requirements restricted freedom of contract. The Schweiker court disagreed, finding that: Rather than a voluntary agreement negotiated between two parties, a grant-in-aid program like that under the Hill-Burton Act is an exercise by the federal government of its authority under the spending power to bring about certain public policy goals_ Determination of statutory intent, therefore, is of more relevance to the interpretation of these conditions than is an inquiry into the intent of" }, { "docid": "1608388", "title": "", "text": "the recruit of every benefit of the contract. Pence v. Brown, supra. The focus of the conversation between petitioner and Recruiter Esposito was on the higher education benefits available to petitioner through enlistment in the Navy. The recruiter’s statements and representations as to the ready access of enlisted Navy personnel to “A” schools and college programs were tailored to appeal to petitioner’s special interest. Esposito represented that the Navy would supply the educational goals she had set for herself and these misrepresentations went to the heart of her stated reasons for investigating and enlisting in the Navy. These mis representations went beyond puffery, sales talk, or speculation as to the future effect of a contract. The Navy has an obligation to “be straightforward in its contractual dealings” and to “accurately inform prospective enlistees of both the available education-training opportunities and the stringent qualifying criteria for these attractive programs.” Novak v. Rumsfeld, supra at 972. Petitioner was assured that on the basis of the contract she signed she would be able to obtain “A” school training and attend any college she chose that would accept her while the Navy paid a substantial portion of her tuition. She is now assigned to menial tasks inconsistent with her goals and with no opportunity to acquire the promised training. Thus, the misrepresentations made to petitioner were material; they relate to the purpose of her contract, distort its meaning, and compel rescission. This Court, however, does not wish to interfere with the administration of any military personnel program or decision any more than is absolutely necessary to protect the legal rights of individuals involved. See, Frentheway v. Bodenhamer, 444 F.Supp. 275 (D.Wyo.1977). Therefore, this Court grants Seaman Apprentice Mary Withum’s petition for a writ of habeas corpus and it is hereby ordered that petitioner be released from the United States Navy, unless the Navy within 20 days of the issuance of this order agrees to perform the contract consistent with the findings of this Court. Cf., Pence v. Brown, 627 F.2d 872 (8th Cir. 1980). This opinion constitutes the Court’s findings of fact and conclusions" }, { "docid": "1608387", "title": "", "text": "current state of the law in these type of cases and are consistent with this Court’s interpretation of the law. Accordingly, this Court holds that the Navy is bound by the oral promises, misstatements, and representations of its recruiter. SUFFICIENCY OF MISREPRESENTATIONS Military enlistment contracts are subject to traditional principles of contract law. Heavy v. Warner, 493 F.2d 748 (5th Cir. 1974). A recruit is entitled to rescind an enlistment contract if the military is unable to perform its obligation. Novak v. Rumsfeld, 423 F.Supp. 971 (N.D.Cal.1976); if the terms of the contract are so ambiguous as to be misleading, Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972); or if the recruit was induced to enter into the contract by fraud or false representations. Chalfant v. Laird, 420 F.2d 945 (9th Cir. 1969). Even if the misrepresentations were innocently or nonnegligently made, if they were material and induced the prospective recruit to enlist, the contract may be rescinded. Pence v. Brown, supra at 874. It is not necessary, however, that the false representations deprive the recruit of every benefit of the contract. Pence v. Brown, supra. The focus of the conversation between petitioner and Recruiter Esposito was on the higher education benefits available to petitioner through enlistment in the Navy. The recruiter’s statements and representations as to the ready access of enlisted Navy personnel to “A” schools and college programs were tailored to appeal to petitioner’s special interest. Esposito represented that the Navy would supply the educational goals she had set for herself and these misrepresentations went to the heart of her stated reasons for investigating and enlisting in the Navy. These mis representations went beyond puffery, sales talk, or speculation as to the future effect of a contract. The Navy has an obligation to “be straightforward in its contractual dealings” and to “accurately inform prospective enlistees of both the available education-training opportunities and the stringent qualifying criteria for these attractive programs.” Novak v. Rumsfeld, supra at 972. Petitioner was assured that on the basis of the contract she signed she would be able to obtain “A” school training" }, { "docid": "3619442", "title": "", "text": "“contract principles do not apply in this case ... [and so] Melendez’s contract claims do not identify a fact issue on which the jury was entitled to deliberate.” Id. at 219. The Melendez court held that there was no issue for the jury because the Government proved the contract, proved the funding of the student, and proved that the student did not perform the obligation as approved or contracted. Similarly, in this case the Government has proved the contract with Dr. Vanhorn, proved that it funded her education, and proved that Dr. Vanhorn did not perform the obligation as approved or contracted. Therefore, there was no issue on which the jury could deliberate. Dr. Vanhorn, however, argues that courts which hold that ordinary contract principles do not apply in these cases employ faulty reasoning. Without citing a single direct authority regarding NHSC obligations, Dr. Vanhorn argues that ordinary principles of federal contract law do apply to government contracts, pointing to a line of cases enforcing military enlistment contracts which she says supports her view. See, e.g., Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th Cir.1981) (claims that enlistment contracts are invalid or have been breached are decided according to principles of traditional contract law); Cinciarelli v. Carter, 662 F.2d 73, 78-79 (D.C.Cir.1981) (civilian courts are to apply traditional contract principles not only to enlistment contracts, but also to military active duty agreements); Pence v. Brown, 627 F.2d 872, 874 (8th Cir.1980) (when Air Force recruiters made innocent misrepresentation, recruit was entitled to rescission under general contract principles). However, the military enlistment cases do not arise under a detailed -statutory scheme like the one governing NHSC scholarships. The terms of the contractual relationship between the military enlistee and the Government is not regulated by statute, while the terms of the relationship between the NHSC scholar and the Government have been set forth in detail by Congress. The statutory scheme at issue here is more analogous to grant-in-aid programs, under which the federal government provides money for specific purposes and places conditions on the recipient. For example, the Hill-Burton Act," }, { "docid": "10687235", "title": "", "text": "was prevailed upon to enter into any oral or written agreement by which accused changed his status. There was no offer by him and no acceptance by the Army. The most that can be said in that regard is that the accused induced certain units to make entries in their morning reports showing him to be a member of the responsible commands. Absent evidence to the contrary, these entries might be sufficient to establish membership in the Army, but here the facts indubitably rebut that possibility. Without going into all the preliminary details of an enlistment contract, we point out that not one single step required by that form of entry into a service was taken. Neither party intended to be bound by a contract. The accused did not solicit enlistment, he was not interviewed, he furnished no false information to a recruiting official, no papers were prepared, no term of service was contemplated, no conditions were agreed upon, no physical examination was given, no oath was given, and, unless the subsequent obtaining of benefits by the accused could change his status from civilian to soldier, there is nothing in this record to suggest any essentials of an enlistment contract. That brings us to the question of a constructive contract of enlistment and, to support that theory, the Government cites a great many Headnote 5 authorities. They are appropriate for the principle they announce, but they are inapposite to the present facts. In every cited case and others which we have considered, there was either a completed eontraet which could be vitiated by the ¡service because of fraud on the part of the applicant or ratified by the service, regardless of the fraud; or, the preliminary arrangements had proceeded far enough that there was a metting of the minds on the essentials of a contract, and both parties were bound by its express or implied terms. In most ■instances, the individual enlisted in fact and thereby sought to obtain the benefits flowing to a serviceman. In addition, the misrepresentations to the persons authorized to recruit enlistees •caused the Government to" }, { "docid": "8175051", "title": "", "text": "MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS CABRANES, District Judge: In this action, Petty Officer Gary L. McCracken of the United States Navy seeks a writ of habeas corpus, ordering his release from the Navy. McCracken argues that he signed the agreement extending his term of enlistment in reliance upon oral representations of a recruiter concerning the training he would receive in the service. He further alleges that the Navy failed to give him the two years of training which he was promised in return for the two-year extension of his term of enlistment. As a remedy for what he contends is the Navy’s breach of a contractual obligation to him, McCracken claims that he is entitled to recission of that contract and his freedom from the military service with an honorable discharge. After a hearing on McCracken s petition, held on September 22, 1980, and consideration of the parties’ proposed findings of fact and briefs, the court concludes that: any misrepresentations concerning training which the recruiter made to McCracken created no contract between the petitioner and the Navy; the written agreement for the extension of the term of McCracken’s enlistment is the only contract governing the Navy’s obligations to McCracken; and the Navy has fulfilled its obligations to the petitioner under that contract. Accordingly, the petition is denied. Judgment shall enter for the respondents, dismissing McCracken’s petition and complaint for other relief. I. FACTS A. McCracken’s Enlistment and Extension Agreement In September 1975, McCracken went to a Navy recruiting office in San Antonio, Texas. There he spoke with Petty Officer Guadalupe Lopez, a Navy recruiter. McCracken took several tests to determine the programs and jobs for which he might qualify, and was told, after his tests had been scored, that he could undertake any training program other than the nuclear program. He then discussed a number of courses of training with Lopez. McCracken was interested in the Advanced Technical Field (“ATF”) program; Lopez talked about this program with McCracken, and showed him several pamphlets and the portion of the Navy recruiting manual which described it. The" }, { "docid": "16035574", "title": "", "text": "re-enlistment on February 1, 2005, for a new six-year term, was involuntary because he was under economic duress when he decided to re-enlist. Qualls claims that in order to stave off bankruptcy, salvage his business, and provide for his family, he had no other choice but to accept the $15,000 re-enlistment bonus. (Pi’s. Opp’n 6-7.) The Court is not persuaded by Qualls’ argument, which amounts to nothing more than a thinly veiled attempt to escape the consequences of his actions. In general, to prove economic duress a plaintiff must establish: (1) a wrongful act or improper threat; (2) the absence of a reasonable alternative to entering the agreement; and (3) the lack of free will. Applied Genetics Int’l, Inc. v. First Affil. Securities, Inc., 912 F.2d 1238, 1242 (10th Cir.1990). Qualls fails to establish any of these elements. There is no evidence in the record of any government wrongdoing associated with Qualls’ voluntary re-enlistment. Qualls also had a viable alternative to reenlistment — namely, not re-enlisting. In fact, if he chose not to re-enlist, Qualls would have been released on approximately July 31, 2005. It is ironic that Qualls is trying to maintain an action seeking his release from the military when he himself precluded that very outcome. Finally, the Court finds that Qualls did not lack “free will” when he chose to re-enlist. Financial considerations are a part of anyone’s decision-making process when choosing among potential careers. Though financial issues may have been paramount in Qualls’ thought process, he was not forced to sign his name on the dotted line and raise his right hand when sworn in. To allow individuals to accept bonuses and then at a later date claim economic duress would both open the floodgates of litigation on such claims and fundamentally undermine the military recruitment process. The Court refuses to go down that path. D. Fraudulent Inducement and Material Misrepresentation Rescission of an enlistment contract is proper if the recruit was induced to enter into the contract by fraud or false representations. Brown v. Dunleavy, 722 F.Supp. 1343, 1350 (E.D.Va.1989); Withum v. O’Connor, 506 F.Supp." }, { "docid": "10687236", "title": "", "text": "by the accused could change his status from civilian to soldier, there is nothing in this record to suggest any essentials of an enlistment contract. That brings us to the question of a constructive contract of enlistment and, to support that theory, the Government cites a great many Headnote 5 authorities. They are appropriate for the principle they announce, but they are inapposite to the present facts. In every cited case and others which we have considered, there was either a completed eontraet which could be vitiated by the ¡service because of fraud on the part of the applicant or ratified by the service, regardless of the fraud; or, the preliminary arrangements had proceeded far enough that there was a metting of the minds on the essentials of a contract, and both parties were bound by its express or implied terms. In most ■instances, the individual enlisted in fact and thereby sought to obtain the benefits flowing to a serviceman. In addition, the misrepresentations to the persons authorized to recruit enlistees •caused the Government to agree to accept the applicants as members of the military community. The theory underlying those decisions is that there was a contract voidable by the ■service because a false representation had been made, but accused could not take advantage of his fraud to escape its terms. However, had the representations been true, the service involved would have been bound to accept the individual involved and he would have been obligated to serve for a specified period of time. One of the cardinal principles of contract law is that to change a status there must be a mutual understanding of the parties, and here there were no actual terms and conditions contemplated or agreed upon by \"them which remotely suggested a •change in relationship. Accordingly, there is no framework from which to ¡start the construction of a contract bringing about that result. Obviously, there are instances where courts have held that the acts of the parties created a constructive enlistment. Usually that doctrine is applied where the parties have mutually agreed to change the applicant’s status" }, { "docid": "1609742", "title": "", "text": "United States Navy. Plaintiff is attacking the validity of that contract, claiming that the written agreement he signed was void ab initio because of misrepresentations made to him by Navy recruiters. Contractual obligations are created by state law. See Gully, 299 U.S. at 114-115, 57 S.Ct. at 98-99. In deciding a case under its habeas corpus jurisdiction, the Fifth Circuit Court of Appeals stated: “[CJlaims that enlistment contracts are invalid or have been breached are decided under traditional notions of contract law.” Peavy v. Warner, 493 F.2d 748, 750 (5th Cir. 1974). Other courts, in considering the validity of enlistment contracts where misrepresentation by military recruiters is alleged, have applied contract principles. E. g., Quinn v. Brown, 561 F.2d 795 (9th Cir. 1977); Reamer v. United States, 532 F.2d 349 (4th Cir. 1976); Talbot v. Schlesinger, 527 F.2d 607 (4th Cir. 1975); Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972); Gausmann v. Laird, 422 F.2d 394 (9th Cir. 1969); Chaifant v. Laird, 420 F.2d 945 (9th Cir. 1969); Dubeau v. Commanding Officer, Naval Reserve, 440 F.Supp. 747 (D.Mass.1977); Novak v. Rumsfeld, 423 F.Supp. 971 (N.D.Cal. 1976); Bemis v. Whalen, 341 F.Supp. 1289 (S.D.Cal.1972). These military enlistment contracts were also made under the authority of federal statutes and regulations, but did not require the construction of such statutes or regulations or the application of federal legal principles. The Court finds that this complaint states a cause of action in contract and that it does not present a substantial federal question. The Court further finds that plaintiff’s claim of subjection to involuntary servitude in violation of his rights under the Thirteenth Amendment is without merit. Likewise, plaintiff does not elaborate on how his constitutional rights under the Fifth Amendment have been violated. The Court finds that plaintiff has not established the existence of a substantial federal question to allow this Court to exercise jurisdiction over this action pursuant to 28 U.S.C. § 1331. 28 U.S.C. § 1343 28 U.S.C. § 1343 creates jurisdiction in the district courts to hear certain cases. However, it creates no separate rights, but instead confers a" }, { "docid": "10687234", "title": "", "text": "he intended to procure some of the benefits which are secured to enlisted men. However, as Colonel Winthrop pointed out in his treatise, supra, fraudulent enlistment requires two separate and distinct acts and the receipt of pay and allowances is usually subsequent to the execution of a contract. Moreover, monies- and benefits can be obtained when any civilian successfully poses as a serviceman and moves about with a particular service. In the case at bar, the accused fraudulently concealed that he had been separated from the Army by means of an undesirable discharge and the orders he presented were fictitious. While the fraudulent conceal-ments aided his scheme to be shipped overseas, they did not procure an enlistment contract. At this point, it might be helpful to point out that there is a difference between procuring an enlistment contract by false representation and accepting its benefits after it has been executed. Procure means-to induce or prevail upon another to perform a desired act, and the record is barren of any evidence suggesting remotely that the Army was prevailed upon to enter into any oral or written agreement by which accused changed his status. There was no offer by him and no acceptance by the Army. The most that can be said in that regard is that the accused induced certain units to make entries in their morning reports showing him to be a member of the responsible commands. Absent evidence to the contrary, these entries might be sufficient to establish membership in the Army, but here the facts indubitably rebut that possibility. Without going into all the preliminary details of an enlistment contract, we point out that not one single step required by that form of entry into a service was taken. Neither party intended to be bound by a contract. The accused did not solicit enlistment, he was not interviewed, he furnished no false information to a recruiting official, no papers were prepared, no term of service was contemplated, no conditions were agreed upon, no physical examination was given, no oath was given, and, unless the subsequent obtaining of benefits" } ]

[ { "docid": "15731292", "title": "", "text": "pleading, the allocation of the burden of proof, and the scope and elements' of defenses available in a false arrest action. For this reason, and to aid later analysis, we now sketch the salient features of both the common law and constitutional action. A plaintiff suing at common law must show that he has suffered an imprisr onment and that the imprisonment was unlawful. The former issue is one of fact, potentially for the jury. Under the law of the District of Columbia, the unlawfulness of a detention is presumed once “an allegation [is made] that a plaintiff was arrested and imprisoned without process.” Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.App.1973). The burden then shifts to the defendant to justify the arrest. Id.; accord, e.g., Pierson v. Ray, 386 U.S. 547, 556-557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Director General of Railroads v. Kastenbaum, 263 U.S. 25, 27, 44 S.Ct. 52, 68 L.Ed. 146 (1923); see, e.g., Restatement (Second) of Torts §§ 10 (especially comment c), 121 (1965). Justification can be established by showing that there was probable cause for arrest of the plaintiff on the grounds charged. E.g., Shaw v. May Department Stores Co., 268 A.2d 607, 609 (D.C. App.1970). A lesser showing can also be made, namely that the arresting officer had reasonable grounds to believe a crime had been committed and that plaintiff’s arrest was made for the purpose of securing the administration of the law (i.e., that the officer acted in good faith). See Wade v. District of Columbia, 310 A.2d 857, 862-863 (D.C.App.1973) (en banc), citing Pierson v. Ray, supra; Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1347-1348 (2d Cir. 1972); Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973). See also Restatement, supra, §§ 121, 127. The mechanics of pleading - and proof in a Bivens action for false arrest are in our judgment identical to those sketched above. Although we know of no case delineating the parameters of a prima facie case under a Bivens false arrest theory, Pierson v." } ]

[ { "docid": "5183042", "title": "", "text": "vicariously liable for an act which its employee is required by statute and regulation to perform as a Metropolitan Police officer. WCSA’s Mem. in Supp. of Mot. to Dismiss at 6. The problem with WCSA’s reasoning, however, is that it assumes that Officer Singh had probable cause to arrest plaintiff. To establish a claim for false arrest under District of Columbia law, a plaintiff must demonstrate that he was detained unlawfully. See Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.2010) (“The gravamen of a complaint for false arrest or false imprisonment is an unlawful detention.”). The detention of a plaintiff by a defendant police officer is lawful if the officer effected the detention constitutionally. See Barnhardt v. District of Columbia, 723 F.Supp.2d at 214-15 (noting that an officer needs probable cause to make an arrest). Alternatively, regardless of whether the detention passes constitutional muster, “a police officer may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable.” Weishapl v. Sowers, 771 A.2d 1014, 1020-21 (D.C.2001) (internal quotation marks and citation omitted). Here, plaintiff alleges that Officer Singh attacked and viciously beat him without provocation and then falsely arrested him in order “to cover up the wrongdoing of Defendant and to avoid civil and criminal liability for Defendant’s acts.” Am. Compl. ¶40. WCSA points to no facts in the complaint that would demonstrate that Officer Singh had probable cause to arrest plaintiff or, if he lacked probable cause, that would demonstrate that Officer Singh had an objectively reasonable, good faith belief that his conduct was lawful. Although the factual record may ultimately clarify the circumstances surrounding plaintiffs encounter with Officer Singh, to survive a motion to dismiss a complaint need only “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. 662, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Applying .that minimal standard of review here, the Court concludes that the plaintiff" }, { "docid": "4221818", "title": "", "text": "L.Ed.2d 538 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than “a scintilla of evidence to support [her] claims.” Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007). III. CLAIMS AGAINST DEFENDANT HA A. False Arrest Although Ms. Chen alleges in her complaint that the defendants are liable for “false arrest and imprisonment,” 252 Compl. ¶31, the Court treats that claim as one simply for false arrest, since “[t]here is ‘no real difference as a practical matter between false arrest and false imprisonment.’ ” Barnhardt v. District of Columbia, 723 F.Supp.2d 197, 214 (D.D.C.2010) (quoting Shaw v. May Dep’t Stores Co., 268 A.2d 607, 609 n. 2 (D.C.1970)). To prevail on a claim for false arrest, a plaintiff must demonstrate that she was detained unlawfully. See Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.2010) (“The gravamen of a complaint for false arrest or false imprisonment is an unlawful detention.”). The detention of a plaintiff by a defendant police officer is lawful if the officer effected the detention constitutionally — that is, with probable cause if the detention was an arrest, or upon reasonable suspicion if the detention amounted only to a Terry stop. See Barnhardt v. District of Columbia, 723 F.Supp.2d at 214-15 (probable cause); Rice v. District of Columbia, 774 F.Supp.2d 18, 21-22 (D.D.C.2011) (reasonable suspicion). Alternatively, regardless of whether the detention passes constitutional muster, “a police officer may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable.” Weishapl v. Sowers, 771 A.2d 1014, 1020-21 (D.C.2001) (internal quotation marks and citation omitted). Officer Ha contends that even if Officer Monk lacked the level of suspicion necessary to make his detention of Ms. Chen constitutional, Officer Ha cannot be held liable for false arrest because she reasonably believed in good faith that she was acting lawfully when she helped" }, { "docid": "19147288", "title": "", "text": "Douglas, the United States Merit Systems Protection Board announced twelve factors relevant to determination of an appropriate penalty for a government employee's job-related misconduct, including: the nature and seriousness of the offense; the employee’s job level, past work record, and past disciplinary record; likely effect of the offense on the employee's ability to perform at a satisfactory level; consistency of proposed penalty with those imposed for similar offenses and with an applicable agency table of penalties; notoriety of the offense; impact on agency reputation; clarily of the rules violated; potential for employee rehabilitation; mitigating circumstances; and adequacy of alternative sanctions. See also Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C.1985) (noting that an agency must \"conscientiously consider the relevant \\Douglas ] factors and ... strike a responsible balance within tolerable limits of reasonableness”). .DOC is a non sui juris subordinate government agency, D.C.Code § 24-211.01; Simmons v. District of Columbia Armory Bd., 656 A.2d 1155, 1156 (D.C.1995), and has since been dismissed from this suit. . Holding that Amobi had no other viable claim against any of the defendants, the district court summarily dismissed Amobi’s aiding and abetting and loss of consortium claims. Amobi v. District of Columbia Gov't, 882 F.Supp.2d 78, 84 (D.D.C.2012). Perhaps employing a similar rationale, the district court did not address Amobi's conspiracy claims. See id. at 82 n. 6. Because we conclude genuine issues of material fact exist as to the false arrest, malicious prosecution, and IIED claims, on remand the district court must reckon with these previously unanalyzed counts. . Section 23-581(a)(1) provides that an officer may only make a warrantless arrest for a misdemeanor committed outside his presence if there is probable cause and reason to believe that unless immediately arrested, the individual “may not be apprehended, may cause injury to others, or may tamper with, dispose of, or destroy evidence.” See also Enders v. District of Columbia, 4 A.3d 457, 466 (D.C.2010). . The individually named defendants include Devon Brown, Robert Clay, Stanley Waldren, Elbert White, Joan Murphy, and Denise \"Toni” Shell. See P.A. 25-26, 32. . The district court" }, { "docid": "6434330", "title": "", "text": "Columbia law, the torts of false arrest and false imprisonment are “indistinguishable as a practical matter,” Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.2010), so the Court will treat Olaniyi’s claim simply as one for false arrest. To prevail on a false arrest claim, a plaintiff must show that he was unlawfully detained. Id. “The detention of a plaintiff by a defendant police officer is lawful if the officer effected the detention constitutionally — that is, with probable cause if the detention was an arrest, or upon reasonable suspicion if the detention amounted only to a Terry stop.” Zhi Chen v. District of Columbia, 808 F.Supp.2d 252, 257 (D.D.C.2011). Alternatively, regardless of whether the detention was constitutional, “ ‘a police officer may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable.’ ” Weishapl v. Sowers, 771 A.2d 1014, 1020-21 (D.C.2001) (citation omitted); accord Minch v. District of Columbia, 952 A.2d 929, 937 (D.C.2008). The issues of probable cause and reasonable suspicion “ ‘ordinarily [present] mixed question[s] of law and fact; however, where the facts are not in dispute, ... the issue becomes a purely legal one which the Court can answer on its own.’ ” Minch, 952 A.2d at 937 (citation omitted). Noting that Olaniyi was not arrested during the January 2004 traffic stop, the United States defends the detention as a permissible Terry stop supported by a finding of reasonable suspicion. See United States’s Mem. at 8. “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by law enforcement officials, and this protection extends to a brief investigatory stop of persons or vehicles, whether or not an arrest follows.” United States v. Bailey, 622 F.3d 1, 5 (D.C.Cir.2010) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). However, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “‘an officer may briefly detain a citizen if he has- a reasonable, articulable suspicion that ‘criminal activity may be afoot.’" }, { "docid": "10614220", "title": "", "text": "tort of ‘false imprisonment,’ ” since the “gravamen of a complaint for false arrest or false imprisonment is an unlawful detention.” Bradshaw, 43 A.3d at 322 n.7 (quoting Enders, 4 A.3d at 461); see also Rice v. District of Columbia, 774 F.Supp.2d 18, 21 (D.D.C.2011) (noting that “practically identical” analysis used for false arrest and false imprisonment). The “central issue” in evaluating claims for both false arrest and false imprisonment “ ‘is whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting office is privileged and the action fails.’” Bradshaw, 43 A.3d at 323 (quoting Scott v. District of Columbia, 493 A.2d 319, 321 (D.C.1985)). The Court has already found that the defendant officers, objectively, had reasonable suspicion to support the initial investigative stop of the plaintiff and, further, that during the struggle to handcuff the plaintiff, who was not following police commands, the defendant officers developed probable cause for arrest. See supra Part III.A.1. Therefore, the plaintiffs claims for false arrest and false imprisonment fail as a matter of law. See Scales, 973 A.2d at 729 (rejecting plaintiffs argument that officer “had ‘no probable cause to arrest him,’ ” and finding, instead, that probable cause was present and “suit for false arrest was barred as a matter of law”). Since the defendant officers are not hable, neither can their employer, the District of Columbia, be held liable for false imprisonment and false arrest under the doctrine of respondeat superior. Id. at 728. Accordingly, the Court grants summary judgment to all defendants on Count VI for false arrest and false imprisonment. 5. Conspiracy Claim in Count VII The plaintiffs last claim, in Count VII, is that the defendant officers engaged in a conspiracy to commit the underlying torts of false arrest and imprisonment, battery and IIED, Am. Comp. ¶¶ 95-97, and that the District is also liable under the doctrine of respondeat superior, Pl. Mem. at 28. The defendants argue that because “Plaintiff is not entitled to judgment on his tort claims, he is also not entitled to judgment on" }, { "docid": "127110", "title": "", "text": "55, under 38 C.F.R. § 1.218(b)(ll), probable cause may exist “to arrest for any offense, even if it differs from the offense for which the arrest was actually made.” Enders v. District of Columbia, 4 A.3d 457, 469 (D.C.2010). The undisputed evidence in this case revealed the probability of several offenses: failing to leave the premises after being so ordered, distracting a VA employee (Sheets), and inhibiting medical treatment (group therapy). See United States v. Prandy-Binett, 995 F.2d 1069, 1073-74 (D.C.Cir.1993). The evidence may have been insufficient to convict Harris, but the only question before us is whether the police had probable cause to arrest him, which the undisputed facts show that they did. Accordingly, we affirm the grant of summary judgment as to this claim. 2. Assault and Battery An assault is an intentional attempt or threat to do physical harm to another. A battery is an intentional act that causes harmful or offensive bodily contact. See Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C.2007). The police have a qualified privilege to commit both torts when using “reasonable force to effect an arrest, provided that the means employed are not in excess of those which the actor reasonably believes to be necessary.” Arrington, 473 F.3d at 335 (quoting Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C.1993)). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014). Accordingly, “a defendant’s motion for summary judgment is to be denied only when ... a reasonable jury could conclude that the excessiveness of the force is so apparent that no reasonable officer could have believed in the lawfulness of his actions.” Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C.Cir.1993). The district court concluded that “there is no basis for a trier of fact to conclude that the officers used excessive" }, { "docid": "16355272", "title": "", "text": "III.A. Because the negligent infliction of emotional distress claims turn on the same alleged duty of reasonable care to attempt to prevent Manganelli’s suicide, the Court must grant Gallaudet’s motion to dismiss the plaintiffs’ third cause of action. C. The Plaintiffs’ False Arrest Claims Against Both Defendants (the Sixth and Seventh Causes of Action) Under District of Columbia law, to establish a claim for false arrest, a plaintiff must show: “(1) a detention or restraint against one’s will within boundaries fixed by the defendant, and (2) the unlawfulness of such restraint.” Harris v. U.S. Dep’t of Veterans Affairs, 776 F.3d 907, 911-12 (D.C.Cir.2015). However, probable cause for an arrest defeats a claim for false arrest. Id. at 912 (citing Gabrou v. May Dep’t Stores Co., 462 A.2d 1102, 1104 (D.C.1983) (per curiam)). The key issue for the Court to decide is therefore whether Manganelli’s March 28, 2014 arrest was lawful. Dent v. May Dep’t Stores Co., 459 A.2d 1042, 1044 (D.C.1982) (“The gist of any complaint for false arrest or false imprisonment [] is an unlawful detention[.]” (quoting Clark v. District of Columbia, 311 A.2d 508, 511 (D.C.1973))). “When the plaintiff in a false arrest case shows that he was arrested without a warrant, a rebuttable presumption arises that the arrest was unlawful, and the burden shifts to the [defendant]....” Karriem v. District of Columbia, 717 A.2d 317, 320 (D.C.1998). Once the burden shifts to the defendant, the central issue becomes “whether the arresting officer was justified in ordering the arrest of the plaintiff ....” Scott v. District of Columbia, 493 A.2d 319, 321 (D.C.1985) (quoting Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977)). “The assessment of probable cause [for an arrest] is an objective one.” Wesby v. District of Columbia, 765 F.3d 13, 19 (D.C.Cir.2014). “An arrest is supported by probable cause if, ‘at the moment the arrest was made, the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing' that the suspect has committed or is committing a crime.” Id. (alteration in" }, { "docid": "20625042", "title": "", "text": "Opp’n 5; Def.’s Reply 2. Further, the Court makes the preliminary observations that the Police Report provides the District with sufficient information as to the “time,” “place,” and “factual cause” of Mr. Patrick’s injuries. See Police Report (explaining that Mr. Patrick’s injuries resulted from the Officers’ attempt to tackle him during the incident on April 10, 2013 in the lot behind Mr. Patrick’s residence). The dispositive question here, however, is whether the Police Report satisfies the “cause” requirement for adequate notice by providing details that set forth a “reasonable basis for anticipating legal action as a consequence” of the April 2013 altercation. Washington, 429 A.2d at 1366. Applying the above principles, the Court holds that the Police Report does not satisfy this requirement. Instead, the Police Report’s version of events suggests that the Officers’ actions were legally justified because the Officers had a reasonable suspicion that Mr. Patrick had weapons on his person. See Police Report (explaining that Mr. Patrick “had a reputation for weapon possession” and “turned several times toward the interior of the vehicle”). Because police officers may conduct pat-downs when they have reasonable grounds to believe suspects are armed and dangerous, the Police Report’s description of the pat-down does not suggest that it was illegal. See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Further, the Police Report describes Mr. Patrick’s arrest in a manner as to render it legally justified because even without a warrant, a police officer may arrest an individual if the officer has probable cause to believe that the individual is committing a felony. See Enders v. District of Columbia, 4 A.3d 457, 467 (D.C.2010). The Police Report’s description of the Officers’ tackling of Mr. Patrick, too, suggests that the tackling was legally permissible, because “[a] police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not in excess of those which the actor reasonably believes to be necessary.” See Holder v. District of Columbia, 700 A.2d 738, 741 (D.C.1997) (citation omitted). Accordingly, although the Police Report" }, { "docid": "6434329", "title": "", "text": "or enhanced supervision was necessary to prevent the specific constitutional violation at issue. Because such evidence is “ ‘ordinarily necessary’ ” for a municipality to be held liable under § 1983 for failing to train or supervise its employees, Connick, — U.S. at -, 131 S.Ct. at 1360 (citation omitted), and because Olaniyi has presented no other basis for imposing municipal liability, the District is entitled to summary judgment on Olaniyi’s § 1983 claim. B. Olaniyi’s Claim Against the United States Based on the January 2004 Traffic Stop Olaniyi asserts a common law tort claim against the United States for false arrest and imprisonment arising from the January 2004 traffic stop conducted by the Capitol Police. See United States Compl. ¶¶ 46-49. The FTCA makes the United States liable for torts committed by its agents “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, “in accordance with the law of the place where the act or omission occurred,” id. § 1346(b)(1). Under District of Columbia law, the torts of false arrest and false imprisonment are “indistinguishable as a practical matter,” Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.2010), so the Court will treat Olaniyi’s claim simply as one for false arrest. To prevail on a false arrest claim, a plaintiff must show that he was unlawfully detained. Id. “The detention of a plaintiff by a defendant police officer is lawful if the officer effected the detention constitutionally — that is, with probable cause if the detention was an arrest, or upon reasonable suspicion if the detention amounted only to a Terry stop.” Zhi Chen v. District of Columbia, 808 F.Supp.2d 252, 257 (D.D.C.2011). Alternatively, regardless of whether the detention was constitutional, “ ‘a police officer may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable.’ ” Weishapl v. Sowers, 771 A.2d 1014, 1020-21 (D.C.2001) (citation omitted); accord Minch v. District of Columbia, 952 A.2d 929, 937 (D.C.2008). The issues" }, { "docid": "19147289", "title": "", "text": "claim against any of the defendants, the district court summarily dismissed Amobi’s aiding and abetting and loss of consortium claims. Amobi v. District of Columbia Gov't, 882 F.Supp.2d 78, 84 (D.D.C.2012). Perhaps employing a similar rationale, the district court did not address Amobi's conspiracy claims. See id. at 82 n. 6. Because we conclude genuine issues of material fact exist as to the false arrest, malicious prosecution, and IIED claims, on remand the district court must reckon with these previously unanalyzed counts. . Section 23-581(a)(1) provides that an officer may only make a warrantless arrest for a misdemeanor committed outside his presence if there is probable cause and reason to believe that unless immediately arrested, the individual “may not be apprehended, may cause injury to others, or may tamper with, dispose of, or destroy evidence.” See also Enders v. District of Columbia, 4 A.3d 457, 466 (D.C.2010). . The individually named defendants include Devon Brown, Robert Clay, Stanley Waldren, Elbert White, Joan Murphy, and Denise \"Toni” Shell. See P.A. 25-26, 32. . The district court concluded Amobi did not allege any defendant acted with malice. Amobi, 882 F.Supp.2d at 82 n. 4. This is demonstrably false. Amobi's complaint alleged each defendant acted with malice. See P.A. 32, 34, 36-37, 39. . Toni Shell was not named as a defendant in the common law malicious prosecution claim. . The district court suggested Director Brown was justified in remanding Nguyen’s decision because the \"initial written recommendation was quite conclusory in nature.” Amobi, 882 F.Supp.2d at 82. We are not convinced. Each recommendation was of equal length, compare S.A. 201-02, with S.A. 208-09, and Nguyen was not given any new evidence to consider in her second recommendation, see S.A. 47. Yet, despite the seemingly cursory analysis of both recommendations, Director Brown took issue only with the first. . Amobi also was afforded adequate pre-ter-mination due process. The Supreme Court has suggested that the way to ensure pre-termination due process rights are preserved is to suspend an employee accused of detrimental conduct with pay. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532," }, { "docid": "5183041", "title": "", "text": "is the collateral purpose that distinguishes these facts from those in Scott v. District of Columbia, 101 F.3d 748 (D.C.Cir.1996). Accordingly, plaintiff may proceed on a theory that WCSA is vicariously liable for Officer Singh’s actions because he has pled “sufficient factual matter” to state a claim for abuse of process “ ‘that is plausible on its face.’ ” Iqbal, 556 U.S. 662, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The Court will deny WCSA’s motion to dismiss Count V of the amended complaint. D. Plaintiffs False Arrest and Imprisonment Claim Plaintiff alleges that “Defendants caused [him] to be arrested and imprisoned” “without just cause or reasonable belief that he committed a crime.” Am. Compl. ¶ 52. He further alleges that such acts constitute the torts of false arrest and false imprisonment and that WCSA is “responsible under the doctrine of respondeat superior as Defendant Officer Singh was working within his scope of employment. ...” Id. ¶53. WCSA asserts that, as a matter of law, it cannot be held vicariously liable for an act which its employee is required by statute and regulation to perform as a Metropolitan Police officer. WCSA’s Mem. in Supp. of Mot. to Dismiss at 6. The problem with WCSA’s reasoning, however, is that it assumes that Officer Singh had probable cause to arrest plaintiff. To establish a claim for false arrest under District of Columbia law, a plaintiff must demonstrate that he was detained unlawfully. See Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.2010) (“The gravamen of a complaint for false arrest or false imprisonment is an unlawful detention.”). The detention of a plaintiff by a defendant police officer is lawful if the officer effected the detention constitutionally. See Barnhardt v. District of Columbia, 723 F.Supp.2d at 214-15 (noting that an officer needs probable cause to make an arrest). Alternatively, regardless of whether the detention passes constitutional muster, “a police officer may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief" }, { "docid": "6323132", "title": "", "text": "jury returned verdicts in Ms. Halcomb’s favor on her common law claim of false arrest and her constitutional claim of unreasonable arrest in violation of the Fourth Amendment. See Verdict Form at 1-2. Under District of Columbia common law, “the focal point of [an] action [for common law false arrest] is the question whether the arresting officer was justified in ordering the arrest of the plaintiff.” Scott v. District of Columbia, 101 F.3d 748, 754 (D.C.Cir.1996). The jury was instructed that a person commits a false arrest at common law “when he intentionally detains or retains another, for any length of time, whether by actual force or threat of force, without legal justification.” Jury Instructions at 47 (emphasis added). Thus, a false arrest claim cannot succeed if “the arresting officer had probable cause to believe that the arrestee committed a crime.” Scott v. District of Columbia, 101 F.3d at 754. “Generally, probable cause exists where the facts and circumstances within the arresting officer’s knowledge ... are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed.” In re T.H., 898 A.2d 908, 913 (D.C.2006). Similarly, under the Constitution, “[a]n arrest based on probable cause cannot constitute an unreasonable ... seizure within the meaning of the Fourth Amendment.” Carr v. District of Columbia, 565 F.Supp.2d 94, 99 (D.D.C.2008) (citing Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)), rev’d on other grounds by 587 F.3d 401 (D.C.Cir.2009). “Probable cause exists when ‘facts and circumstances within the officer’s knowledge ... are sufficient to warrant a prudent person in believing that the suspect has committed, is committing, or is about to commit an offense.’ ” Marcus v. District of Columbia, 646 F.Supp.2d 58, 61 (D.D.C.2009) (quoting United States v. Wesley, 293 F.3d 541, 545 (D.C.Cir. 2002)). Mr. Woods argues that no reasonable factfinder could have found him liable for either false or unconstitutional arrest because he “had probable cause, even in the constitutional sense, to arrest the [plaintiff.” Mot. at 5. The defendant asserts that Mr. Woods “observed Ms. Halcomb" }, { "docid": "20625043", "title": "", "text": "vehicle”). Because police officers may conduct pat-downs when they have reasonable grounds to believe suspects are armed and dangerous, the Police Report’s description of the pat-down does not suggest that it was illegal. See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Further, the Police Report describes Mr. Patrick’s arrest in a manner as to render it legally justified because even without a warrant, a police officer may arrest an individual if the officer has probable cause to believe that the individual is committing a felony. See Enders v. District of Columbia, 4 A.3d 457, 467 (D.C.2010). The Police Report’s description of the Officers’ tackling of Mr. Patrick, too, suggests that the tackling was legally permissible, because “[a] police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not in excess of those which the actor reasonably believes to be necessary.” See Holder v. District of Columbia, 700 A.2d 738, 741 (D.C.1997) (citation omitted). Accordingly, although the Police Report does indicate that the Officers injured Mr. Patrick in the altercation, the details within the Police Report do not suggest “in and of themselves” that this incident “more than any other” would generate legal action. Allen, 533 A.2d at 1263; see also Washington, 429 A.2d at 1366 (explaining the two-pronged test for a written notice or police report to satisfy the “cause” requirement of section 12-309). In other words, while a basis for potential legal action exists “in many law enforcement operations,” there is nothing in the Police Report itself to suggest that this specific incident would lead to legal action against the District. Allen, 533 A.2d at 1263; see also Doe by Fein, 697 A.2d at 27, 29 (explaining that the Court’s inquiry necessarily focuses on the “District’s role” in the plaintiffs injuries and holding that “any inference of potential liability” evident from the police report at issue was “too remote to suggest the need for a ‘focused investigation’ by the District”). Although one could argue that any time a police report indicates that" }, { "docid": "19147268", "title": "", "text": "misdemeanor arrest rule. Nevertheless, whether Officer Henley could have had probable cause to execute Amobi’s arrest — even without the crime occurring in his presence — is still a relevant inquiry. “Generally, probable cause exists where the facts and circumstances within the arresting officer’s knowledge, of which he had reasonably trustworthy information, are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed.” Rucker v. United States, 455 A.2d 889, 891 (D.C.1983). “The issue of probable cause in a false arrest case is a mixed question of law and fact that the trial court should ordinarily leave to the jury.” Bradshaw v. District of Columbia, 43 A.3d 318, 324 (D.C.2012). Only where the facts are undisputed or clearly established does probable cause become a question of law for the court. Id. The district court held Amobi’s claim for false arrest failed because the Jail officials “merely reported what they observed, and their observations constituted probable cause” for Amobi’s arrest and prosecution. Amobi 882 F.Supp.2d at 83. Amobi counters with two arguments he claims demonstrate want of probable cause. First, Amobi contends his claim of innocence created a genuine issue of material fact that should have been sent to the jury. See Appellants’ Reply Br. at 6-7 (citing Wolter v. Safeway Stores, 153 F.2d 641, 642 (D.C.Cir.1946)). This argument fails. “Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.1997); Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir.2006) (“[A]n officer’s failure to investigate an arrestee’s protestations of innocence generally does not vitiate probable cause.”). Here, Officer Henley testified that he based his probable cause finding on statements from five witnesses. Although Amobi contends the five witnesses provided inaccurate information, the officer had no reason to discredit the eyewitness testimony. See Enders, 4 A.3d at 470-71 (“[T]he relevant inquiry in a false arrest defense is not what the actual facts may" }, { "docid": "19147267", "title": "", "text": "1090, 1096 (D.C.Cir.1998)). Yet, because Amobi did not name Officer Henley as a defendant in his complaint, see P.A. 25-26, he must show either that the “custom or policy of the [District] caused the violation,” Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C.Cir.2008), or that one of the individually named defendants is to blame, see Jones v. Horne, 634 F.3d 588, 600 (D.C.Cir.2011). As to the District, Amobi seems to argue that it violated his Fourth Amendment rights based on its alleged custom and policy of failing to comply with its statutory prohibition on warrantless arrests for misdemeanors committed outside of an officer’s presence. Amobi is mistaken. Whether the assault occurred in Officer Henley’s presence is not the sine qua non of a Fourth Amendment violation. The Supreme Court has made clear that the “Constitution’s protections concerning search and seizure” do not vary with state arrest law, see Virginia v. Moore, 553 U.S. 164, 172-73, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), and Amobi makes no argument that the Constitution requires the District’s misdemeanor arrest rule. Nevertheless, whether Officer Henley could have had probable cause to execute Amobi’s arrest — even without the crime occurring in his presence — is still a relevant inquiry. “Generally, probable cause exists where the facts and circumstances within the arresting officer’s knowledge, of which he had reasonably trustworthy information, are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed.” Rucker v. United States, 455 A.2d 889, 891 (D.C.1983). “The issue of probable cause in a false arrest case is a mixed question of law and fact that the trial court should ordinarily leave to the jury.” Bradshaw v. District of Columbia, 43 A.3d 318, 324 (D.C.2012). Only where the facts are undisputed or clearly established does probable cause become a question of law for the court. Id. The district court held Amobi’s claim for false arrest failed because the Jail officials “merely reported what they observed, and their observations constituted probable cause” for Amobi’s arrest and prosecution. Amobi 882 F.Supp.2d at 83. Amobi counters" }, { "docid": "4909222", "title": "", "text": "all of the issues related to § 1983, the Court may now examine the common-law claims asserted against the officers. 2. False Arrest and False Imprisonment Since “[t]here is ‘no real difference as a practical matter between false arrest and false imprisonment,’ ” Barnhardt v. Dist. of Columbia, 723 F.Supp.2d 197, 214 (D.D.C.2010) (quoting Shaw v. May Dep’t Stores Co., 268 A.2d 607, 609 n. 2 (D.C.1970)); see also Gabrou v. May Dep’t Stores Co., 462 A.2d 1102, 1104 (D.C.1983) (“In this jurisdiction, the gravamen of a suit for false arrest or false imprisonment is an unlawful detention.”), Count II for false arrest and Count III for false imprisonment may be considered together. For either claim, “[t]he focal point of the action is the question whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails.” Scott, 101 F.3d at 754 (quoting Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977)); see also Enders v. Dist. of Columbia, 4 A.3d 457, 466-67 (D.C.2010) (explaining that where a warrantless arrest requires probable cause and exigent circumstances, an officer will have a defense for false arrest or false imprisonment only where he can establish that the arrest was legally justified). In Section III.A.l.b, supra, the Court discussed the legality of the arrests of each Plaintiff and found that the only one that was justified was that of Jessica Pineda outside of the home. Accordingly, the Court will grant the officers’ Motion with respect to her claims under Counts II and III. Because the arrest of neither Garay was appropriate, however, their claims of false arrest and false imprisonment may proceed. See Section III.A.1.b, supra; see also Scott, 101 F.3d at 753 (“The elements of a constitutional claim for false arrest are substantially identical to the elements of a common-law false arrest claim.”). The Court notes, nonetheless, that to the extent the harm alleged under these counts is identical to that alleged in the § 1983 violation, Plaintiffs are not entitled to separate damages. See Schiller v. Strangis," }, { "docid": "10614219", "title": "", "text": "(D.C.1993)); see also Dukore, 970 F.Supp.2d at 33 (recognizing that officers’ actions are privileged as justified by “showing that there was probable for arrest of the plaintiff on the grounds charged,” or “[a] lesser showing ... that the officer acted in good faith”); Pointer v. District of Columbia, 736 F.Supp.2d 2, 9 (D.D.C.2010) (noting that, under District law, police officers’ actions are privileged even if they lacked probable cause, as long as “the defendant officers had merely a reasonable, good faith belief that probable cause existed”) (quoting Liser v. Smith, 254 F.Supp.2d 89, 98 (D.D.C.2003)). The District “must affirmatively rely on” the partially subjective test for this defense to apply, Scales, 973 A.2d at 729, and where, as here, the District has not done so, “the objective ‘probable cause’ test applies,” id. (citing Karriem v. District of Columbia, 717 A.2d 317, 320 n. 8 (D.C.1998)). The D.C. Court of Appeals has made clear that the tort of false arrest and its defenses at common law are “indistinguishable as a practical matter from the common law tort of ‘false imprisonment,’ ” since the “gravamen of a complaint for false arrest or false imprisonment is an unlawful detention.” Bradshaw, 43 A.3d at 322 n.7 (quoting Enders, 4 A.3d at 461); see also Rice v. District of Columbia, 774 F.Supp.2d 18, 21 (D.D.C.2011) (noting that “practically identical” analysis used for false arrest and false imprisonment). The “central issue” in evaluating claims for both false arrest and false imprisonment “ ‘is whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting office is privileged and the action fails.’” Bradshaw, 43 A.3d at 323 (quoting Scott v. District of Columbia, 493 A.2d 319, 321 (D.C.1985)). The Court has already found that the defendant officers, objectively, had reasonable suspicion to support the initial investigative stop of the plaintiff and, further, that during the struggle to handcuff the plaintiff, who was not following police commands, the defendant officers developed probable cause for arrest. See supra Part III.A.1. Therefore, the plaintiffs claims for false arrest and false imprisonment" }, { "docid": "10614218", "title": "", "text": "False Arrest and False Imprisonment in Count VI The plaintiff alleges, in Count VI, that the defendant officers falsely arrested and imprisoned the plaintiff, resulting in his incarceration for almost eight months since his arrest triggered a violation of his parole conditions stemming from a prior conviction, Am. Compl. ¶¶ 85-92, and that the District of Columbia is liable for this claim based on the doctrine of respondeat superior, Pl.’s Mem. at 23. Under District of Columbia law, police officers are entitled to immunity from false arrest and false imprisonment claims by establishing either of “two affirmative defenses (which are distinct from ‘qualified privilege’),” Scales, 973 A.2d at 729: (1) that the officers had probable cause for the arrest “based entirely on the objective facts and in this context,” id.; and (2) a “‘usually easier-to-meet,”’ so-called “partially subjective test” that the officer “believed, in good faith, that his [or her] conduct was lawful, and [ ] this belief was reasonable,” id. (first alteration in original) (quoting District of Columbia v. Murphy, 635 A.2d 929, 932 (D.C.1993)); see also Dukore, 970 F.Supp.2d at 33 (recognizing that officers’ actions are privileged as justified by “showing that there was probable for arrest of the plaintiff on the grounds charged,” or “[a] lesser showing ... that the officer acted in good faith”); Pointer v. District of Columbia, 736 F.Supp.2d 2, 9 (D.D.C.2010) (noting that, under District law, police officers’ actions are privileged even if they lacked probable cause, as long as “the defendant officers had merely a reasonable, good faith belief that probable cause existed”) (quoting Liser v. Smith, 254 F.Supp.2d 89, 98 (D.D.C.2003)). The District “must affirmatively rely on” the partially subjective test for this defense to apply, Scales, 973 A.2d at 729, and where, as here, the District has not done so, “the objective ‘probable cause’ test applies,” id. (citing Karriem v. District of Columbia, 717 A.2d 317, 320 n. 8 (D.C.1998)). The D.C. Court of Appeals has made clear that the tort of false arrest and its defenses at common law are “indistinguishable as a practical matter from the common law" }, { "docid": "16355273", "title": "", "text": "unlawful detention[.]” (quoting Clark v. District of Columbia, 311 A.2d 508, 511 (D.C.1973))). “When the plaintiff in a false arrest case shows that he was arrested without a warrant, a rebuttable presumption arises that the arrest was unlawful, and the burden shifts to the [defendant]....” Karriem v. District of Columbia, 717 A.2d 317, 320 (D.C.1998). Once the burden shifts to the defendant, the central issue becomes “whether the arresting officer was justified in ordering the arrest of the plaintiff ....” Scott v. District of Columbia, 493 A.2d 319, 321 (D.C.1985) (quoting Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977)). “The assessment of probable cause [for an arrest] is an objective one.” Wesby v. District of Columbia, 765 F.3d 13, 19 (D.C.Cir.2014). “An arrest is supported by probable cause if, ‘at the moment the arrest was made, the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing' that the suspect has committed or is committing a crime.” Id. (alteration in original) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)); see also Barnhardt v. District of Columbia, 723 F.Supp.2d 197, 214 (D.D.C.2010) (probable cause “denotes ‘facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’” (citing Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979))). The plaintiffs contend that the Complaint sufficiently alleges that the defendants lacked probable cause to arrest Manganelli, because when Gallaudet Police arrived on the scene, Manganelli, who 'was alone in his room, allegedly only “stared blankly” at the officers, and that Gallaudet Police and the MPD knew that Manganelli “had mental health issues.” See Compl. ¶¶ 128-29, 132. Gallaudet asserts that Manganelli’s “refusal to cooperate or even respond to the [Gallaudet Police] officers’" }, { "docid": "1004989", "title": "", "text": "22-405(b). See Defs.’ Mem. at 20-23; Defs.’ Reply at 14-15. The plaintiff disagrees, contending that probable cause was lacking for each of these offenses. See PL’s Mem. at 13-27. The defendants have the better of the argument. An arrest is supported by probable cause if, at the time of the arrest, “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck, 379 U.S. at 91, 85 S.Ct. 223. Such a belief need not be “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Moreover, probable cause does not “require the same type of specific evidence of each element of the offense as would be needed to support a conviction,” Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), although “the police cannot establish probable cause without at least some evidence supporting the elements of a particular offense, including the requisite mental state,” Wesby v. District of Columbia, 765 F.3d 13, 20 (D.C. Cir. 2014) (emphasis in original). “To determine whether [an officer] had probable cause to believe that [a plaintiff was] violating District of Columbia law, we look to District law to identify the elements of each of those offenses.” Id, at 19. While the plaintiff in this case was arrested for the offense of disorderly conduct under D.C. Code § 22-1321(b), that “need not be the criminal offense as to which the known facts provide probable cause” because “an arresting officer’s state of mind ... is irrelevant to the existence of probable cause.” Devenpeck v, Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Accordingly, if probable cause existed as to any crime, the plaintiff cannot establish his Fourth Amendment false arrest claim. The parties dispute the point in time at which an arrest took place, and, thus, they disagree as to the universe of facts relevant to the analysis of whether probable" } ]

[ { "docid": "1228095", "title": "", "text": "State’ for bringing ‘in an appropriate court of that State’ a private TCPA action.” Id. Third, it pointed to explicit recognition in congressional findings that “telemarketers can evade state prohibitions through interstate operations without recognizing a federal forum for obtaining private relief in such circumstances....” Id. (citation omitted). Fourth, it pointed to the TCPA’s “exclusive grant of federal jurisdiction accorded parens patriae cases brought by a state [under § 227(f)(2)].” Id. Moreover, the court noted, Congress could have clarified the TCPA in its 2003 amendments to explicitly confer diversity jurisdiction, rectifying the holdings of the federal question cases which suggested that TCPA claims could be brought only in state court. Id. These facts, said the court, “lead to the conclusion that federal diversity jurisdiction was not extended to private claims by such legislation.” Id. The district court decided Fairon on July 28, 2005. Since that time, two circuit courts have addressed whether federal courts have jurisdiction over TCPA claims based on diversity. See Gottlieb v. Carnival Corp., 436 F.3d 335 (2d Cir.2006); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir.2005). Prior to Gottlieb and Brill, the six circuit cases relied upon by the Fairon court all involved TCPA claims based on federal question jurisdiction. See Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000); Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., 156 F.3d 432 (2d Cir.1998); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir.1998); Int’l Science & Tech. Inst. Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146 (4th Cir. 1997); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir.1997). Gottlieb and Brill rejected extension of the reasoning from the TCPA federal question cases to TCPA diversity cases. Both Gottlieb and Brill held that plaintiffs can prosecute TCPA claims in federal court based on diversity, despite the unanimous circuit decisions holding that no such suit may be maintained based on federal question jurisdiction. See Gottlieb, 436 F.3d at 339 (“Congress’s failure to provide explicitly for concurrent jurisdiction in § 227(b)(3)" } ]

[ { "docid": "13218895", "title": "", "text": "claim and the facts supporting that cause of action are identical to those supporting the TCPA claim. If the Court dismissed the TCPA claim for lack of jurisdiction, Plaintiff would refile in state court, thus creating parallel actions based on the same facts in two different fora. This would promote a needless waste of resources through duplicative discovery and motion practice, and would create the possibility of conflicting factual findings and legal holdings. See Klein v. Vision Lab Telecommunications, Inc., 399 F.Supp.2d 528, 534 (S.D.N.Y.2005) (“Such an interpretation would also undermine the purposes of supplemental jurisdiction by requiring parties who bring TCPA claims along with other federal claims to maintain separate parallel actions in state and federal court.”); see also Turner v. Crawford Apartments III, L.P., 449 F.3d 542, 551 (3d Cir.2006); This Court’s decision is in accord with the views of the Second Circuit Court of Appeals in Gottlieb v. Carnival Corp., 436 F.3d 335, 343 (2d Cir.2006). After specifically considering whether a federal court could exercise supplemental jurisdiction over a TCPA claim, the Second Circuit concluded that the TCPA did not confer the authority, nor did the court have the inclination, to deny supplemental jurisdiction for TCPA claims. Id. Federal courts prior to Gottlieb have reached the same conclusion. See Klein, 399 F.Supp.2d at 534; Kinder v. Citibank, 2000 WL 1409762, at * 3 (S.D.Cal. Sept. 14, 2000) (“Nothing in the Ninth Circuit’s analysis suggests that TCPA precludes district courts from hearing private TCPA claims where some other independent basis for jurisdiction exists, such as diversity of citizenship or supplemental jurisdiction.”). Like supplemental jurisdiction, diversity jurisdiction is not addressed in the language of the TCPA or in the Third Circuit’s Erienet opinion. See Erienet, 156 F.3d 513. And as was the case with supplemental jurisdiction, the majority of courts considering the issue have determined that the TCPA does not foreclose a federal district court’s exercise of diversity jurisdiction over private claims. See Gottlieb, 436 F.3d at 340; Klein 399 F.Supp.2d at 534; Kinder, 2000 WL 1409762, at *3; Adler v. Vision Lab Telecommunications, Inc., 393 F.Supp.2d 35, 37" }, { "docid": "12891143", "title": "", "text": "Power Telecomm., Inc., 221 F.Supp.2d 652, 654-56 (D.S.C.2002); Compoli v. AVT Corp., 116 F.Supp.2d 926, 928 (N.D.Ohio 2000). But see Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912, 913-15 (S.D.Ind.1995) (holding that federal question jurisdiction under 28 U.S.C. § 1331 existed over TCPA claims and that state and federal courts have concurrent jurisdiction over those claims), motion for reconsideration denied by 962 F.Supp. 1162 (S.D.Ind.1997). In addition, New York courts have held that jurisdiction over TCPA claims rests exclusively with state courts. See Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 178, 710 N.Y.S.2d 368 (2d Dep’t 2000); Ganci v. Cape Canaveral Tour & Travel, Inc., 2004 WL 1469372, at *1 (N.Y.Sup. April 15, 2004). . According to this provision, states may refuse to exercise jurisdiction over TCPA claims. See Foxhall, 156 F.3d at 438. See also Int'l Science, 106 F.3d at 1157 (\"we believe Congress acted rationally in both closing federal courts and allowing states to close .theirs to the millions of private actions that could be filed”). Courts interpret this provision as indicating Congress's effort to avoid any conflict with the Tenth Amendment which might be created had it coerced state courts to hear TCPA claims. See id. at 1158; see also Murphey, 204 F.3d at 914 (statutory language allowing state courts not to enforce federal right under TCPA avoids violation of the Tenth Amendment). . \"The TCPA presents an unusual constellation of statutory features, viz., the express creation of a private right of action, an express jurisdictional grant to state courts to entertain them, and silence as to federal court jurisdiction of private actions.” Chair King, 131 F.3d at 512; see also Murphey, 204 F.3d at 914 (\"the express reference to state court jurisdiction does not mean that federal jurisdiction also exists; instead, the failure to provide for federal jurisdiction indicates that there is none”). . While the procedural posture of Kopff is distinguishable — there, defendants sought to have the action adjudicated in federal court, while here, defendant seeks dismissal of this case from federal court — the court's discussion of diversity of citizenship as" }, { "docid": "12891141", "title": "", "text": "join the weight of authority holding that state laws such as § 396-aa apply only to intrastate communications in view of Congress’s intent that the TCPA extend the reach of state laws by regulating interstate communications. Accordingly, because plaintiff has not alleged that defendant — a Panama corporation with its principal place of business in Florida- — sent him any intrastate faxes, plaintiff fails to state a claim upon which relief can be granted under N.Y. Gen. Bus. Law § 396-aa. CONCLUSION For the foregoing reasons, the Court grants defendant’s motion to dismiss with respect to plaintiffs TCPA claims (counts One, Two and Three) and grants defendant’s motion to dismiss with respect to plaintiffs cause of action under N.Y. Gen. Bus. Law § 396-aa (Count Four). The Court dismisses plaintiffs claims without prejudice to their renewal in state court. The Clerk of Court is respectfully directed to close this case. SO ORDERED. . Plaintiff does not dispute that this Court lacks federal question subject matter jurisdiction over his TCPA claims. See PL Opp. at 2-8. Indeed, plaintiff appears to concede that state courts have exclusive jurisdiction over TCPA claims. See id. at 4, 5 n. 3. . The other courts of appeal that have considered the issue — the Third, Fourth, Fifth, Ninth and Eleventh circuits — have reached the same conclusion. See Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir.1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir.1997). Additionally, the Sixth Circuit recognized the \"overwhelming authority” holding that state courts have exclusive jurisdiction over TCPA claims. See Dun-Rite Constr., Inc. v. Amazing Tickets, Inc., 2004 WL 3239533, at *2 (6th Cir. Dec.16, 2004) (affirming remand to state court of complaint alleging violations of the TCPA and analogous Ohio state law because there was no basis for removal to federal court which lacked subject matter jurisdiction). Federal district courts also hold that state courts have exclusive jurisdiction over TCPA claims. See Biggerstaff v. Voice" }, { "docid": "11994609", "title": "", "text": "telemarketing, “these had limited effect because States do not have jurisdiction over interstate calls.” See id. at 3, U.S.Code Cong. & Admin.News 1991, at 1970. The legislative history of the TCPA “indicates that Congress intended the TCPA to provide interstitial law preventing evasion of state law by calling across state lines.” Gottlieb v. Carnival Corp., 436 F.3d 335, 342 (2d Cir.2006) (internal quotation marks omitted). The private right of action created by the TCPA allows a person or entity to, “if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State,” an action for a violation of the TCPA. See 47 U.S.C. § 227(b)(3). In Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998), we interpreted section 227(b)(3) to mean that “Congress intended to confer exclusive state court jurisdiction over private rights of action under the TCPA.” See also Gottlieb, 436 F.3d at 340 (holding that the TCPA created “a private right of action over which federal courts lack federal question jurisdiction”). “Congress thus sought to put the TCPA on the same footing as state law, essentially supplementing state law where there were perceived jurisdictional gaps.” Gottlieb, 436 F.3d at 342. Congress’s innovation in creating a federal claim which behaved like state law by allowing individuals to sue in state courts under the TCPA “if otherwise permitted by the laws or rules of court of a State,” required this Court to decide a novel procedural question: whether a claim generated by a federal law, but required to be brought in state court under the “laws or rules of court of a State,” is governed by 28 U.S.C. § 1332(a), which gives federal courts original jurisdiction over civil actions where there is diversity of citizenship and the amount-in-controversy requirement is satisfied. In other words, should a claim created by section 227(b)(3) be treated like a state cause of action when the jurisdiction of the federal court is grounded in diversity under section 1332(a)? In Gottlieb, we answered that question in the affirmative, concluding that" }, { "docid": "15688840", "title": "", "text": "federal court under the TCPA); Dun-Rite Construction, Inc.,- No. 04-3216, 2004 WL 3239533, at *2, 2004 U.S.App. LEXIS 28047, at *5 (6th Cir. Dec. 16, 2004) (noting that the lack of federal question jurisdiction over TCPA claims is “well-settled”). Thus, consumers can collect either actual or statutory damages for violation of the TCPA according to the statute’s common law developed in their state. 47 U.S.C. § 227(c)(5). As this case arises under diversity jurisdiction, so too must this Court look to controlling state law for guidance in adjudicating these claims. Gottlieb v. Carnival Corp., 436 F.3d 335, 341 (2d Cir.2006) (holding that federal courts can maintain diversity jurisdiction of TCPA claims); US Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112, 1117 (10th Cir.2007). The TCPA does not pre-empt states from imposing and enforcing intrastate requirements for telephone solicitations, 47 U.S.C. § 227(e)(1)(d), and therefore, the Ohio Consumer Sales Practices Act, O.R.C. § 1345.02(A) also provides protection from telemarketing. Neither party disputes that plaintiffs can collect for violations of both the TCPA and CSPA. Couto v. Gibson, Inc., No. 1475, 1992 WL 37800, 1992 Ohio App. LEXIS 756 (Ohio Ct.App. Feb. 26, 1992) (noting that under O.R.C. § 1345.13, remedies provided by the CPRA “are explicitly in addition to remedies otherwise available for the same conduct under state or federal law.”). Charvat alleges that GVN violated the TCPA, CSPA, and their respective regulations 187 times during the ten calls GVN made to Charvat’s residence. He requests the maximum amount of statutory damages for each individual violation. In moving for Partial Summary Judgment, GVN does not dispute the existence of such violations, but instead asserts two arguments: (1) that Charvat cannot recover damages pursuant to the First Call, and (2) that Charvat can only recover statutory damages once per-call, rather than for every separate violation. The Court finds GVN’s arguments persuasive and, therefore, GRANTS Defendant’s Motion. 1. First Call Violations Charvat is not entitled to damages based on violations arising out of the First Call. TCPA § 227(c)(5) only provides a private right of action for a person who has" }, { "docid": "3596931", "title": "", "text": "legislation, that any person who has received more than one telephone call within any twelve-month period by or on behalf of the same entity, in violation of the prescribed regulations, was permitted to bring in an appropriate “court of that State ” an action which could result in $500 in damages, or if the violation was willful, an amount not more than $1500. Both the fax and the telephone provisions have amounts recoverable as damages in state court only. These statutory damages are far less than any diversity amount established by Congress for a Federal court’s diversity jurisdiction. D. State Claims (47 U.S.C. § 227(f)(2)) as Distinct from Private Claims (47 U.S.C. § 227(b)(3)) 47 U.S.C. § 227(f)(2) provides that when a State, as distinct from a private claimant, brings an action under the TCPA, it must be brought in the Federal courts. It is significant that when Sen. Hollings’ amendment turned to the authority of a State to pursue violators, that section of the amendment to the TCPA directed that jurisdiction was exclusive in the Federal courts. See 47 U.S.C. § 227(f)(2). It is evident that the Senate was keenly aware of both state and Federal jurisdictions, and had both in mind when it sorted them out for defined purposes: A consumer’s private right of action had to be brought in state court; a State’s cause of action had to be brought in Federal court. What could be plainer or more unambiguous? E. Sister Courts of Appeals I acknowledge that other courts have held that diversity jurisdiction may exist notwithstanding the absence of federal-question jurisdiction. See Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318, 325 n. 6 (5th Cir.2008); US Fax Law Ctr., Inc. v. Hlire, Inc., 476 F.3d 1112, 1117-18 (10th Cir.2007); Gottlieb, 436 F.3d at 340-41; see also Charvat v. EchoStar Satellite, LLC. 630 F.3d 459, 464 (6th Cir.2010) (holding, contra ErieNet and case law in five other circuits, that federal-question jurisdiction exists over TCPA claims); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir.2005) (holding that TCPA suits could be brought" }, { "docid": "11382007", "title": "", "text": "on a violation of this subsection ... to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. 47 U.S.C. § 227(b)(3). Furthermore, a court may award treble damages in the amount of $1,500 per fax if it finds that the defendant “willfully or knowingly” violated the statute. Id. B. Jurisdiction Under the TCPA In Foxholl Realty Law Offices, Inc. v. Telecommns. Premium Servs., Ltd., 156 F.3d 432, 436 (2d Cir.1998), the Second Circuit held that federal courts lack federal question jurisdiction over claims brought under the TCPA. More recently, the Second Circuit clarified in Gottlieb v. Carnival Corp., 436 F.3d 335, 340-41 (2d Cir.2006) that, although federal question jurisdiction does not exist under the TCPA, federal courts sitting in diversity may hear private causes of action under the TCPA. In order to meet the amount in controversy requirement of 28 U.S.C. § 1832(a), however, individuals attempting to pursue a private right of action in federal court are often forced to do so as a class pursuant to Federal Rule of Civil Procedure 23 because one individual is unable to satisfy the amount in controversy requirement. See, e.g., Gottlieb, 436 F.3d at 343 n. 10 (explaining that “[i]n order to meet the amount-in-controversy requirement, a single plaintiff would have to receive either 150 faxes from a single defendant, assuming $500 in statutory damages per fax, or 50 faxes from that defendant, assuming treble damages”). There is a disagreement among federal courts as to whether a class of plaintiffs pursuing TCPA claims can satisfy the requirements of Rule 23. Compare Kenro, Inc. v. Fax Daily, 962 F.Supp. 1162, 1169 (D.Ind.1997) (denying class certification for TCPA claimants because proposed class definition would require court to examine whether each potential class member had invited or given permission for transmission of the fax at issue); and Forman v. Data Transfer, Inc., 164 F.R.D. 400, 403-04 (E.D.Pa.1995) (same) with Kavu, Inc. v. Omnipak Corp., — F.R.D.-, 2007 WL 201093 (D.Wash.2007) (granting" }, { "docid": "16897634", "title": "", "text": "limitations applied to Giovanniello’s claim. Id. Under Connecticut’s statute, we determined, Giovanniello’s claim was clearly time barred. Id. at 597. We must address now whether the Supreme Court’s decision in Mims requires us to reach a different outcome as to the applicable statute of limitations. In Mims, the Supreme Court resolved a circuit split as to “whether Congress’ provision for private actions [in section 227(b)(3) ] to enforce the TCPA renders state courts the exclusive arbiters of such actions.” 132 S.Ct. at 744. As with other circuits, we had previously determined, given the state-law centered language of section 227(b)(3), that district courts lack federal-question jurisdiction over private TCPA claims, see Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir.1998), yet we permitted district courts to consider TCPA claims when sitting in diversity, see Gottlieb v. Carnival Corp., 436 F.3d 335 (2d Cir.2006). The Court in Mims abrogated our holding in Foxhall, concluding unanimously that despite section 227(b)(3)’s state-oriented language, federal and state courts have concurrent jurisdiction over private TCPA claims. 132 S.Ct. at 745. The Court explained that “[b]eyond doubt, the TCPA is a federal law that both creates the claim [the plaintiff] has brought and supplies the substantive rules that will govern the case.” Id. at 744-45. The Court further explained that “when federal law creates a private right of action and furnishes the substantive rules of decision, the claim arises under federal law, and district courts possess federal-question jurisdiction under § 1331.... unless Con gress divests federal courts of their § 1331 adjudicative authority.” Id. 748^49. After examining section 227(b)(3), the Court held that there was “no convincing reason to read into the TCPA’s permissive grant of jurisdiction to state courts any barrier to the U.S. district courts’ exercise of the general federal-question jurisdiction they have possessed since 1875.” Id. at 745. Thus, the Court held that federal courts have federal-question jurisdiction over TCPA claims. Id. Although the Court did not directly address the statute of limitations question we face here, Mims fundamentally shifts the way that we view section 227(b)(3)’s “if" }, { "docid": "13218896", "title": "", "text": "Second Circuit concluded that the TCPA did not confer the authority, nor did the court have the inclination, to deny supplemental jurisdiction for TCPA claims. Id. Federal courts prior to Gottlieb have reached the same conclusion. See Klein, 399 F.Supp.2d at 534; Kinder v. Citibank, 2000 WL 1409762, at * 3 (S.D.Cal. Sept. 14, 2000) (“Nothing in the Ninth Circuit’s analysis suggests that TCPA precludes district courts from hearing private TCPA claims where some other independent basis for jurisdiction exists, such as diversity of citizenship or supplemental jurisdiction.”). Like supplemental jurisdiction, diversity jurisdiction is not addressed in the language of the TCPA or in the Third Circuit’s Erienet opinion. See Erienet, 156 F.3d 513. And as was the case with supplemental jurisdiction, the majority of courts considering the issue have determined that the TCPA does not foreclose a federal district court’s exercise of diversity jurisdiction over private claims. See Gottlieb, 436 F.3d at 340; Klein 399 F.Supp.2d at 534; Kinder, 2000 WL 1409762, at *3; Adler v. Vision Lab Telecommunications, Inc., 393 F.Supp.2d 35, 37 (D.D.C.2005); Kopff v. World Research Group, LLC, 298 F.Supp.2d 50, 55 (D.D.C.2003); see also Clean Air Council v. Dragon Intern. Group, 2006 WL 2136246, at *4 (M.D.Pa. July 28, 2006) (citing Gottlieb and finding that the Class Action Fairness Act, 28 U.S.C. 1332(d)(2), provides an independent basis for TCPA jurisdiction). This Court is convinced that diversity of citizenship remains a viable -means to establish subject matter jurisdiction over a TCPA claim. To conclude otherwise would create the anomaly in which a plaintiff asserting state law claims for abusive phone practices could bring those claims in federal court based on diversity, while plaintiffs parallel TCPA claim could only be filed in state court. See Gottlieb, 436 F.3d at 342. As stated above, such a bifurcation of related cases should be avoided. See Klein, 399 F.Supp.2d at 534. Furthermore, diversity jurisdiction was established, at least in part, to ensure a fair trial by protecting non-citizens from local prejudices potentially encountered in state court. See id. at 340; Baltimore Bank for Cooperatives v. Farmers Cheese Co-op., 583 F.2d" }, { "docid": "11994621", "title": "", "text": "although federal courts may not entertain suits under the TCPA based on federal question jurisdiction, Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998), federal court jurisdiction exists where there are other bases for jurisdiction. See Gottlieb v. Carnival Corp., 436 F.3d 335, 342-43 (2d Cir.2006). But see Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450 (7th Cir.2005) (criticizing our decision in Foxhall and contending that “if state jurisdiction really is ‘exclusive,’ then it knocks out [28 U.S.C.] § 1332 as well as [28 U.S.C.] § 1331”). Like diversity jurisdiction, which we addressed in Gottlieb, other forms of party-identity-based federal court jurisdiction ought also to give rise to federal court jurisdiction over TCPA claims. Thus, suits involving as parties, inter alia, the United States (28 U.S.C. §§ 1345, 1346 (suits, respectively, by and against the United States)), diplomats (28 U.S.C. § 1351 (suits against consuls, vice consuls, and members of diplomatic missions)), or corporations organized under federal law (28 U.S.C. § 1349 (suits by and against such corporations)), should be governed by Gottlieb, not Foxhall. Here, Appellant Bonime brings suit under diversity jurisdiction. But his is not a traditional diversity action. Rather, Bon-ime relies on CAFA’s diversity-jurisdiction provision, see 28 U.S.C. § 1332(d)(2)(A), and attempts to bring a class action suit under CAFA that, under New York law, he cannot bring in New York state court. See C.P.L.R. 901(b). The question before this Court, then, is whether a party may bring a TCPA claim in federal court where the same claim would be barred in state court. The TCPA’s right of action is created by federal law, and so federal substantive law must apply. See Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 541 n. 1 (2d Cir.1956) (“[Djespite repeated statements implying the contrary, it is the source of the right sued upon, and not the ground on which federal jurisdiction over the case is founded, which determines the governing law.”); accord Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 n. 4 (2d Cir.2006). As" }, { "docid": "7071064", "title": "", "text": "SOTOMAYOR, Circuit Judge. This case presents the question of whether federal courts have diversity jurisdiction over private causes of action brought under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Plaintiff-appellant Sherman Gottlieb (“Gottlieb”) appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.), entered on May 3, 2005, dismissing his claims under the TCPA for lack of subject matter jurisdiction and dismissing his parallel state law claims for lack of supplemental jurisdiction. Relying primarily on this Court’s decision in Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432 (2d Cir.1998), where we held that Congress intended to divest the federal courts of federal question jurisdiction over private TCPA claims, the district court concluded that “jurisdiction over TCPA claims resides in the state courts exclusively” and that federal courts lack diversity jurisdiction over such claims. Gottlieb v. Carnival Corp., 367 F.Supp.2d 301, 307 (E.D.N.Y.2005). The district court reasoned that “it must be assumed that [the Second Circuit] used its words carefully and advisedly” when we stated in Foxhall that state courts have “exclusive jurisdiction” over TCPA-claims. Id. at 309. Our ruling in Foxhall, however, related only to the exis-fence of federal question jurisdiction over private TCPA claims; we did not consider in that case whether federal courts have diversity jurisdiction over such claims. We hold here that Congress did not divest the federal courts of diversity jurisdiction over private actions under the TCPA. We thus vacate the judgment of the district court and remand the case for further proceedings. BACKGROUND The following facts are taken from Gott-lieb’s complaint. Gottlieb is a travel agent who works from his home in Staten Island, New York. In connection with his work, he has a fax machine associated with two telephone numbers. Between early 2001 and 2004, Gottlieb received, via his fax machine, over 1000 unsolicited advertisements from Carnival Corporation (“Carnival”), a company organized under the laws of Panama and having its principal place of business in Florida. Gottlieb continued receiving faxes from Carnival even though he sent Carnival" }, { "docid": "15688839", "title": "", "text": "Sales Act, R.C. § 4719, et. seq. (“TSSA”). Id. at 872-73. Among these FCC regulations are specific protocols and procedures that telemarketers must follow. For example, the FCC requires telephone solicitors to establish “procedures for maintaining a list of persons who do not wish to receive telephone solicitations” by that entity, 47 C.F.R. § 64.1200(e)(2), and requires that a person or entity making a telephone solicitation “provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is made, and a telephone number or address at which the person or entity may be contacted.” Id. Interestingly, the TCPA created a private right of action in state court to redress violations of the TCPA, rather than granting federal courts federal question jurisdiction. 47 U.S.C. § 227(b)(3); Compoli v. AVT Corp., 116 F.Supp.2d 926, 928 (N.D.Ohio 2000) (declining to extend federal question jurisdiction over TCPA claims and noting that at least six Federal Circuits have held that there is no private cause of action in federal court under the TCPA); Dun-Rite Construction, Inc.,- No. 04-3216, 2004 WL 3239533, at *2, 2004 U.S.App. LEXIS 28047, at *5 (6th Cir. Dec. 16, 2004) (noting that the lack of federal question jurisdiction over TCPA claims is “well-settled”). Thus, consumers can collect either actual or statutory damages for violation of the TCPA according to the statute’s common law developed in their state. 47 U.S.C. § 227(c)(5). As this case arises under diversity jurisdiction, so too must this Court look to controlling state law for guidance in adjudicating these claims. Gottlieb v. Carnival Corp., 436 F.3d 335, 341 (2d Cir.2006) (holding that federal courts can maintain diversity jurisdiction of TCPA claims); US Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112, 1117 (10th Cir.2007). The TCPA does not pre-empt states from imposing and enforcing intrastate requirements for telephone solicitations, 47 U.S.C. § 227(e)(1)(d), and therefore, the Ohio Consumer Sales Practices Act, O.R.C. § 1345.02(A) also provides protection from telemarketing. Neither party disputes that plaintiffs can collect for violations of both the TCPA and CSPA." }, { "docid": "3596933", "title": "", "text": "in Federal court under either § 1331 or § 1332, but noting that “if state jurisdiction really is ‘exclusive,’ then it knocks out § 1332 as well as § 1331”). However, I simply do not find the reasoning of these cases persuasive. For example, in Gottlieb, the case on which Judge Rendell seeks to support her diversity theory, the Second Circuit acknowledged its own precedent, which, like ErieNet, concluded that Federal courts do not have § 1331 jurisdiction over TCPA claims. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir.1998). The Second Circuit said, “Our discussion of ‘exclusive jurisdiction’ in Foxhall must be read in context. Foxhall dealt only with federal question jurisdiction; diversity jurisdiction was not raised in Foxhall.” Gottlieb, 436 F.3d at 337. In an accompanying footnote, the court said: “Our use of the word ‘exclusive’ in Foxhall meant only that state courts have exclusive substance-based jurisdiction over private TCPA claims. Fox-hall did not speak to the existence of citizenship-based, or diversity, jurisdiction.” Id. at 337 n. 3. With Foxhall thus distinguished, the court in Gottlieb went on to consider whether § 1332 provided a basis for jurisdiction, and concluded that it did, because “there is no clear statement of congressional intent to divest the federal courts of diversity jurisdiction over TCPA claims.” Id. at 340-41. I am not convinced, and I do not agree. Each of the considerations that led us in ErieNet (and the Second Circuit in Fox-hall) to conclude that § 1331 jurisdiction is absent — the statutory text’s reference to state courts, the statement, motivation, and reasoning of the bill’s legislative sponsor, etc. — applies equally to the question of whether diversity jurisdiction exists. It simply does not make sense to say that Congress has made state-court jurisdiction “exclusive” with respect to one jurisdiction-conferring statute (§ 1331), but not the other (§ 1332). Our holding in ErieNet that Federal courts lacked federal-question § 1331 jurisdiction flowed from our analysis that Congress intended to confine private TCPA claimants to state court. Every rationale we relied upon to support" }, { "docid": "12891142", "title": "", "text": "Indeed, plaintiff appears to concede that state courts have exclusive jurisdiction over TCPA claims. See id. at 4, 5 n. 3. . The other courts of appeal that have considered the issue — the Third, Fourth, Fifth, Ninth and Eleventh circuits — have reached the same conclusion. See Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir.1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir.1997). Additionally, the Sixth Circuit recognized the \"overwhelming authority” holding that state courts have exclusive jurisdiction over TCPA claims. See Dun-Rite Constr., Inc. v. Amazing Tickets, Inc., 2004 WL 3239533, at *2 (6th Cir. Dec.16, 2004) (affirming remand to state court of complaint alleging violations of the TCPA and analogous Ohio state law because there was no basis for removal to federal court which lacked subject matter jurisdiction). Federal district courts also hold that state courts have exclusive jurisdiction over TCPA claims. See Biggerstaff v. Voice Power Telecomm., Inc., 221 F.Supp.2d 652, 654-56 (D.S.C.2002); Compoli v. AVT Corp., 116 F.Supp.2d 926, 928 (N.D.Ohio 2000). But see Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912, 913-15 (S.D.Ind.1995) (holding that federal question jurisdiction under 28 U.S.C. § 1331 existed over TCPA claims and that state and federal courts have concurrent jurisdiction over those claims), motion for reconsideration denied by 962 F.Supp. 1162 (S.D.Ind.1997). In addition, New York courts have held that jurisdiction over TCPA claims rests exclusively with state courts. See Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 178, 710 N.Y.S.2d 368 (2d Dep’t 2000); Ganci v. Cape Canaveral Tour & Travel, Inc., 2004 WL 1469372, at *1 (N.Y.Sup. April 15, 2004). . According to this provision, states may refuse to exercise jurisdiction over TCPA claims. See Foxhall, 156 F.3d at 438. See also Int'l Science, 106 F.3d at 1157 (\"we believe Congress acted rationally in both closing federal courts and allowing states to close .theirs to the millions of private actions that could be filed”). Courts interpret this provision as" }, { "docid": "3596829", "title": "", "text": "See id. (“[T]here is no presumption of jurisdiction in the federal courts.”). It was significant, we said, that the statute’s permissive authorization referred only to state courts of general jurisdiction; “ ‘that authorization cannot confer jurisdiction on a federal court because federal courts are competent to hear only those cases specifically authorized.’ ” Id. (quoting Int’l Sci. & Tech. Inst., Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146, 1151 (4th Cir.1997)). We noted that subject matter jurisdiction must be conferred by statute and that the TCPA did not expressly do that. Id. The majority of courts of appeals to consider the question have similarly concluded that federal courts lack federal question jurisdiction over private TCPA claims. Citing § 227(b)(3)’s explicit authorization of jurisdiction over private actions in state courts and the absence of any reference to federal court, these courts have concluded that Congress did not intend to grant the federal courts federal question jurisdiction over private TCPA claims. See Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir.2000); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir.1997); Int’l Sci. & Tech. Inst., Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146, 1156 (4th Cir.1997). Only two courts of appeals have held otherwise. See Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir.2010) (finding federal question jurisdiction under the TCPA based on § 227(f)(2)’s explicit provision for exclusive federal jurisdiction, 28 U.S.C. § 1441(a)’s authorization of removal to federal court unless expressly provided by Congress, and on its reading of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir.2005) (similarly finding federal question jurisdiction under the TCPA based on § 227(f)(2) and Grable). Though we addressed federal question jurisdiction extensively in ErieNet, we had no occasion to consider whether there can be" }, { "docid": "11382012", "title": "", "text": "substantive or procedural. “[However,] where the matter in question is one covered by the Federal Rules of Civil Procedure, ‘it is settled that ... the Federal Rule applies regardless of contrary state law.’ ” Com/Tech Commn. Tech., Inc. v. Wireless Data Sys., Inc., 163 F.3d 149, 150-51 (2d Cir.1998) (quoting Gasperini, 518 U.S. at 427, 116 S.Ct. 2211). 2. The Second Circuit’s Opinion in Gottlieb As stated supra, because the TCPA does not give rise to federal question jurisdiction, jurisdiction over this action is, and must be, alleged pursuant to diversity jurisdiction under 28 U.S.C. § 1332. However, the TCPA is a federally enacted statute. This presents an abstruse situation whereby the Court must harmonize the necessary application of Erie with the existence of a Congressionally enacted statute that creates a cause of action, but provides no federal question jurisdiction access to federal courts for that cause of action. Plaintiff attempts to resolve this thorny issue by arguing that this diversity case is governed not only by federal procedural law, but also exclusively by federal substantive law. Plaintiff finds support for this proposition in a footnote from the Second Circuit’s decision in Gottlieb. There, the Second Circuit noted, [i]t is odd, of course, that a federal court sitting in diversity and considering a TCPA claim would apply federal substantive and procedural law. This fact, however, only emphasizes the sui gener-is nature of the statute. It is the rare federal statute that creates a cause of action that gives rise to jurisdiction under § 1332, but not under § 1331. Gottlieb, 436 F.3d at 343 n. 8. However, the Second Circuit also stated, [i]nsofar as Congress sought, via the TCPA, to enact the functional equivalent of a state law that was beyond the jurisdiction of a state to enact, it would be odd to conclude that Congress intended that statute to be treated differently, for purposes of diversity jurisdiction, from any other state statute. Gottlieb, 436 F.3d at 342. If this Court were to hold that state substantive law does not apply to a private cause of action brought under the" }, { "docid": "3596831", "title": "", "text": "diversity jurisdiction over TCPA claims. 156 F.3d at 520. The issue presently before us is whether diversity jurisdiction exists in the federal courts, notwithstanding our conclusion in ErieNet that Congress intended for private litigants to seek recourse in state courts for TCPA violations. In ErieNet we asked whether Congress conferred subject-matter jurisdiction in the TCPA; here we ask whether Congress intended state courts to have exclusive jurisdiction over TCPA claims and, thus, stripped away diversity jurisdiction. For the reasons set forth below, we hold that Congress did not divest the federal courts of diversity jurisdiction over private causes of action under the TCPA. Finding that we have diversity jurisdiction over TCPA claims does not disturb the concepts we set down in ErieNet; the TCPA has neither divested federal courts of diversity jurisdiction over private causes of action nor conferred on them federal question jurisdiction. D. Here, the specific provision granting subject matter jurisdiction to the federal courts is 28 U.S.C. § 1332(d), an amendment added to § 1332 pursuant to the Class Action Fairness Act (“CAFA”) of 2005. Under CAFA, federal courts have original jurisdiction over class actions where there is minimal diversity and the aggregate amount in controversy exceeds $5 million, exclusive of interests and costs. § 1332(d)(2), (6). In each of these cases, minimal diversity is present and, given defendants’ alleged transmission of over 10,000 unsolicited faxes and the possibility of treble damages under the TCPA, the aggregate amount in controversy exceeds $5 million CAFA requires. Thus, in light of our ruling that federal courts can exercise diversity jurisdiction over TCPA claims when the requirements of diversity are otherwise fulfilled, the New Jersey District Courts here had subject-matter jurisdiction under § 1332(d). In holding that there is diversity jurisdiction under the TCPA, we rely heavily on then-Judge (now Justice) Sotomayor’s opinion in Gottlieb v. Carnival Corp., where the Second Circuit persuasively applied two canons of statutory interpretation to the TCPA — the “whole act rule,” which instructs that parts of a statute should be placed in the context of the entire statutory scheme and the principle that reliance" }, { "docid": "3596830", "title": "", "text": "Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir.1997); Int’l Sci. & Tech. Inst., Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146, 1156 (4th Cir.1997). Only two courts of appeals have held otherwise. See Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir.2010) (finding federal question jurisdiction under the TCPA based on § 227(f)(2)’s explicit provision for exclusive federal jurisdiction, 28 U.S.C. § 1441(a)’s authorization of removal to federal court unless expressly provided by Congress, and on its reading of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir.2005) (similarly finding federal question jurisdiction under the TCPA based on § 227(f)(2) and Grable). Though we addressed federal question jurisdiction extensively in ErieNet, we had no occasion to consider whether there can be diversity jurisdiction over TCPA claims. 156 F.3d at 520. The issue presently before us is whether diversity jurisdiction exists in the federal courts, notwithstanding our conclusion in ErieNet that Congress intended for private litigants to seek recourse in state courts for TCPA violations. In ErieNet we asked whether Congress conferred subject-matter jurisdiction in the TCPA; here we ask whether Congress intended state courts to have exclusive jurisdiction over TCPA claims and, thus, stripped away diversity jurisdiction. For the reasons set forth below, we hold that Congress did not divest the federal courts of diversity jurisdiction over private causes of action under the TCPA. Finding that we have diversity jurisdiction over TCPA claims does not disturb the concepts we set down in ErieNet; the TCPA has neither divested federal courts of diversity jurisdiction over private causes of action nor conferred on them federal question jurisdiction. D. Here, the specific provision granting subject matter jurisdiction to the federal courts is 28 U.S.C. § 1332(d), an amendment added to § 1332 pursuant to the Class Action Fairness Act" }, { "docid": "1228096", "title": "", "text": "Home Loans, Inc., 427 F.3d 446 (7th Cir.2005). Prior to Gottlieb and Brill, the six circuit cases relied upon by the Fairon court all involved TCPA claims based on federal question jurisdiction. See Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000); Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., 156 F.3d 432 (2d Cir.1998); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir.1998); Int’l Science & Tech. Inst. Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146 (4th Cir. 1997); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir.1997). Gottlieb and Brill rejected extension of the reasoning from the TCPA federal question cases to TCPA diversity cases. Both Gottlieb and Brill held that plaintiffs can prosecute TCPA claims in federal court based on diversity, despite the unanimous circuit decisions holding that no such suit may be maintained based on federal question jurisdiction. See Gottlieb, 436 F.3d at 339 (“Congress’s failure to provide explicitly for concurrent jurisdiction in § 227(b)(3) has no bearing on its intent with respect to diversity jurisdiction.”); Brill, 427 F.3d at 450-52 (rejecting the reasoning of the six circuits and holding that TCPA suits can be brought under either federal question jurisdiction or un der the minimal diversity requirements of the Class Action Fairness Act). A number of district court cases also conclude that TCPA claims may be brought under diversity jurisdiction. See Klein v. Vision Lab Telecomm. Inc., 399 F.Supp.2d 528, 533 (S.D.N.Y.2005) (collecting and analyzing TCPA diversity cases). Diversity jurisdiction is based on a grant of jurisdictional authority from Congress. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167, 60 S.Ct. 153, 84 L.Ed. 167 (1939). Furthermore, it constitutes an independent basis for jurisdiction, regardless of whether the underlying claim is federal in nature. See 28 U.S.C. § 1332(a)(1) (conferring jurisdiction based only on complete diversity of the parties and a minimum amount in controversy). Thus, where some other basis for federal jurisdiction is proscribed, diversity jurisdiction may still exist. See Horton v. Liberty Mut. Ins. Co., 367" }, { "docid": "3596932", "title": "", "text": "the Federal courts. See 47 U.S.C. § 227(f)(2). It is evident that the Senate was keenly aware of both state and Federal jurisdictions, and had both in mind when it sorted them out for defined purposes: A consumer’s private right of action had to be brought in state court; a State’s cause of action had to be brought in Federal court. What could be plainer or more unambiguous? E. Sister Courts of Appeals I acknowledge that other courts have held that diversity jurisdiction may exist notwithstanding the absence of federal-question jurisdiction. See Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318, 325 n. 6 (5th Cir.2008); US Fax Law Ctr., Inc. v. Hlire, Inc., 476 F.3d 1112, 1117-18 (10th Cir.2007); Gottlieb, 436 F.3d at 340-41; see also Charvat v. EchoStar Satellite, LLC. 630 F.3d 459, 464 (6th Cir.2010) (holding, contra ErieNet and case law in five other circuits, that federal-question jurisdiction exists over TCPA claims); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir.2005) (holding that TCPA suits could be brought in Federal court under either § 1331 or § 1332, but noting that “if state jurisdiction really is ‘exclusive,’ then it knocks out § 1332 as well as § 1331”). However, I simply do not find the reasoning of these cases persuasive. For example, in Gottlieb, the case on which Judge Rendell seeks to support her diversity theory, the Second Circuit acknowledged its own precedent, which, like ErieNet, concluded that Federal courts do not have § 1331 jurisdiction over TCPA claims. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir.1998). The Second Circuit said, “Our discussion of ‘exclusive jurisdiction’ in Foxhall must be read in context. Foxhall dealt only with federal question jurisdiction; diversity jurisdiction was not raised in Foxhall.” Gottlieb, 436 F.3d at 337. In an accompanying footnote, the court said: “Our use of the word ‘exclusive’ in Foxhall meant only that state courts have exclusive substance-based jurisdiction over private TCPA claims. Fox-hall did not speak to the existence of citizenship-based, or diversity, jurisdiction.” Id. at 337" } ]

[ { "docid": "13248956", "title": "", "text": "Plaintiffs argue that Defendants controlled the actions of CCE. As the District Court correctly noted, however, the Amended Complaint does not contain sufficient factual allegations to give rise to an inference of control. A corporate parent’s ownership interest in a subsidiary, standing alone, is insufficient to demonstrate the existence of an agency relationship. See Fletcher v. Atex, Inc., 68 F.3d 1451, 1455, 1461-62 (2d Cir.1995) (finding no agency relationship between a parent and its wholly-owned subsidiary). Plaintiffs’ assertions that Defendants invested in CCE, did (and continue to do) business with CCE, and advised CCE in some unspecified manner on the subject of profitability simply do not suggest that Defendants had the power to control CCE’s conduct. Indeed, these allegations amount to nothing more than the usual concomitants of the relationship between a parent and a partially-owned subsidiary. We have declined to find an agency relationship in the presence of considerably more indicia of parental control. See id. at 1459-62 (finding no agency relationship even though parent and subsidiary utilized a centralized cash management system and parent’s approval was required for subsidiary’s “real estate leases, major capital expenditures, [and] negotiations for a sale of minority stock ownership,” id. at 1459). Accordingly, Plaintiffs fail to state a claim for agency liability under either New York, Georgia, or Egyptian law. c. Civil conspiracy To state a claim for civil conspiracy under New York law, a plaintiff, in addition to alleging an underlying tort, must plead facts sufficient to support an inference of the following elements: “(1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 905 N.Y.S.2d 585, 588 (2010) (internal citation omitted) (internal quotation marks omitted). Under Georgia law, “[t]he essential element of [civil] conspiracy is proof of a common design establishing that two or more persons in any manner, either positively or tacitly, arrive at a mutual understanding as to how they will accomplish an unlawful" } ]

[ { "docid": "3685834", "title": "", "text": "Kaplan, Duane, CDS, and DenTek In Count XII of the Amended Complaint, Medtech asserts a claim of civil conspiracy against all Defendants. Amended Complaint at ¶¶ 269-273. Specifically, Medtech alleges that Defendants conspired to use Medtech’s trade secrets to bring DenTek’s infringing nightguard to the market. Id. at ¶¶ 269-273. As Defendants point out, New York does not recognize an independent tort of civil conspiracy. Baker v. R.T. Vanderbilt Co., 260 A.D.2d 750, 688 N.Y.S.2d 726, 729 (3d Dept.1999). Rather, a plaintiff may only make a claim of civil conspiracy if he or she adequately states a claim for an underlying tort. Id. Additionally, a plaintiff making a claim of civil conspiracy must also allege: “(1) an agreement between two or more parties, (2) an overt act in furtherance of the agreement, (3) the parties’ intentional participation in the furtherance of the plan or purpose, and (4) resulting damage or injury.” World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142 F.Supp.2d 514, 532 (S.D.N.Y.2001). “ ‘[T]o survive a motion to dismiss, a complaint must contain more than general allegations in support of the conspiracy. Rather, it must allege the specific times, facts, and circumstances of the alleged conspiracy.’ ” Brownstone Invest. Group, LLC v. Levey, 468 F.Supp.2d 654, 661 (S.D.N.Y.2007) (quoting Fitzgerald v. Field, No. 99-3406(RWS), 1999 WL 1021568, *4 (S.D.N.Y. Nov. 9, 1999)). “Bare conclusory allegation^] of conspiracy do[ ] not state a cause of action.” Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir.1981) (citing Goldstein v. Siegel, 19 A.D.2d 489, 244 N.Y.S.2d 378 (1963)). Here, although I have concluded supra that the Amended Complaint states a claim against each of the Defendants for the underlying tort of trade secret misappropriation, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff has not sufficiently alleged an agreement among the Defendants to engage in such tortious conduct to survive Defendants’ motion to dismiss the civil conspiracy claim. In support of its argument that the Amended Complaint adequately states an agreement among the Defendants to misappropriate Medtech’s trade secrets, Medtech only points to allegations in the Amended" }, { "docid": "11337854", "title": "", "text": "See Andre Emmerich Gallery, Inc. v. Segre, No. 96 Civ. 889, 1997 WL 672009, at *6 (S.D.N.Y. Oct. 29, 1997); Allstate Life Ins. Co. v. Linter Group Ltd., 782 F.Supp. 215, 223 (S.D.N.Y.1992); Travelers Indem. Co. v. Inoue, 111 A.D.2d 686, 490 N.Y.S.2d 506, 507 (1st Dep’t 1985). Before jurisdiction based on a conspiracy can be upheld under New York law, however, the plaintiff must allege both a prima facie case of conspiracy and “allege specific facts warranting the inference that the defendants were members of the conspiracy and set forth evidentiary facts to connect the defendants with transactions occurring in the United States.” Allstate Life Ins., 782 F.Supp. at 222; see also Chrysler Capital Corp. v. Century Power Corp., 778 F.Supp. 1260, 1268-69 (S.D.N.Y.1991); Singer v. Bell, 585 F.Supp. 300, 303 (S.D.N.Y.1984). In other words, “the bland assertion of conspiracy ... is insufficient to establish personal jurisdiction.” Lehigh, 527 F.2d at 93-4. Under New York law, conspiracy itself is not a tort, but “ ‘merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act’ ” committed by a co-conspirator. Grove Press, 649 F.2d at 123 (quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.1956)). To establish a prima facie case for conspiracy under New York law, a plaintiff must allege the primary tort and the following four elements: (1) a corrupt agreement between two or more persons, (2) an overt act in furtherance of the agreement, (3) the parties’ intentional participation in the furtherance of a plan or purpose, and (4) the resulting damage or injury. See Chrysler Capital Corp., 778 F.Supp. at 1267 (citing Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir.1986)). Furthermore, though § 302(a)(2) does not require a formal agency relationship before long-arm jurisdiction can be exercised over an out-of-state eo-conspirator, plaintiffs must show a relationship between the defendant and the conspiracy by showing: (1) that the out-of-state co-conspirator had an awareness of the effects of the activity in New York, (2) that the New York co-conspirators’ activity was" }, { "docid": "19200609", "title": "", "text": "Rios v. Marshall, 100 F.R.D. 395, 404 (S.D.N.Y.1983) (“Where a complaint properly alleges a conspiracy by several defendants, a plaintiff injured by one of the defendants as a result of the conspiracy has standing to sue the co-conspirator defendants even though the plaintiff had no direct dealings with the co-conspirators.”). The Plaintiffs respond to the standing challenge by asserting that all the Defendants participated in a conspiracy to defraud the Plaintiffs and the other members of the Class, so the harm does not need to be directly attributable to HVB; as long as HVB is found to be a member of the larger conspiracy, the unlawful acts of the other members of the conspiracy are imputed to HVB and HVB is responsible for the Class losses. To plead a valid cause of action for conspiracy, a plaintiff in New York must allege an underlying tort of fraud and four elements: “(1) a corrupt agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” Best Cellars, 90 F.Supp.2d at 446. Claims premised upon “conclusory, vague, or general allegations of conspiracy” cannot survive a motion to dismiss. Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997); see also Goldstein v. Siegel, 19 A.D.2d 489, 244 N.Y.S.2d 378, 382 (1st Dept.1963) (a plaintiff must “allege at least some of the facts of agreement or separable acts, if any, of the alleged co-conspirators in order to support the responsibility of each for the acts of all the others. Otherwise, the allegation remains the barest of legal conclusions”). As previously discussed, Plaintiffs have properly alleged HVB’s involvement in a conspiracy to defraud the Plaintiffs. (See supra Discussion Section IV(B).) Even if HVB did not have any direct involvement with the Plaintiffs’ decision to invest in the tax shelters, the Plaintiffs have standing to sue HVB as a conspirator to the actions of HVB’s co-defendants. Presidential Life Ins. Co. v. Milken, 946 F.Supp. 267, 280 (S.D.N.Y.1996) (“A class representative who alleges a" }, { "docid": "21993574", "title": "", "text": "dismiss. 6. Civil Conspiracy There is no independent cause of action for conspiracy under New York law. See Briarpatch Ltd., L.P. v. Pate, 81 F.Supp.2d 509, 516 (S.D.N.Y.2000). “[H]owever, a conspiracy may be alleged, for the purpose of showing that a wrong was committed jointly by the conspirators and that, because of their common purpose and interest, the acts of one may be imputed to the others.” Aetna Cas. & Surety Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 591 (2d Cir.2005) (internal quotation omitted). Nonetheless, this doctrine “does not allow a plaintiff to reallege a tort asserted elsewhere in the complaint in the guise of a separate conspiracy claim.” Id. Thus, while plaintiffs may allege facts to demonstrate that a conspiracy existed in support of their various substantive claims, they may not allege “conspiracy” as a separate basis for liability. Therefore, plaintiffs’ cause of action for “civil conspiracy” must be dismissed. 7. Colorado Securities Act Plaintiffs also assert a claim against each of the Cunningham Defendants (ex cept SPDG Technologies) for violations of the Colorado Securities Act (“CSA”). See Colo.Rev.Stat. §§ 11-15-501, 11-15-604. The Cunningham Defendants argue that: 1) the New York choice of law provision in the Bride Loan Agreements precludes plaintiffs from asserting any claims under the CSA; and 2) plaintiffs have failed to adequately allege that the Cunningham defendants made any material misrepresentations with the requisite scienter. The Cunningham Defendants rely on the Bridge Loan Agreements’ choice of law provision, which states: “[t]his Agreement shall be construed and enforced in accordance with and governed by the laws of the State of New York ...” (Comp., Ex. A § 11.1). However, “[fjraud claims ‘are outside the scope of contractual choice-of-law provisions that specify what law governs ...’” JHW Greentree Capital, L.P. v. Whittier Trust Co., No. 05 Civ. 2985, 2006 WL 1080395, *6 (S.D.N.Y. April 24, 2006) (“Greentree II”) (quoting Finance One Public Co. Ltd. v. Lehman Brothers Spec. Fin., Inc., 414 F.3d 325, 335 (2d Cir.2005)). Thus, in this instance the choice of law clause does not bar plaintiffs’ CSA claims. By its terms, the" }, { "docid": "13693165", "title": "", "text": "Knoedler’s first point, the court has not dismissed the fraud claim against them. As to the second point, the Court finds that the fraud conspiracy claim against them is in fact duplicative of the fraud claim against them, and accordingly must be dismissed. The Second Circuit has made clear that [a] plaintiff may not “reallege a tort asserted elsewhere in the complaint in the guise of a separate conspiracy claim.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 591 (2d Cir.2005); accord Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623, 2007 WL 1040809, 2007 U.S. Dist. LEXIS 27001 (S.D.N.Y. Apr. 2, 2007) (“[W]here the acts underlying a claim of conspiracy are the same as those underlying other claims alleged in the complaint, the conspiracy claim is dismissed as duplicative.”); see also Durante Bros. 6 Sons, Inc. v. Flushing Nat’l Bank, 755 F.2d 239, 251 (2d Cir.1985) (“Count 7 added no new allegations to those of counts 1-6 except to reiterate that [defendants] had conspired to commit the acts heretofore described ... [and therefore] Count 7 was properly dismissed ... as duplicative.... ”). 380544 Canada, Inc. v. Aspen Tech., Inc., 633 F.Supp.2d 15, 36 (S.D.N.Y.2009). Because the De Soles’ fraud conspiracy claim against Freedman and Knoedler offers no new allegations beyond those alleged in support of their common law fraud claim against Freedman and Knoedler, the fraud conspiracy claim against Freedman and Knoedler will be dismissed as duplicative. With respect to Andrade and Rosales, the Court concludes — for the reasons discussed in connection with Plaintiffs’ RICO claims — that the De Sole Plaintiffs have pleaded sufficient facts to demonstrate that both Andrade and Rosales had entered into a corrupt agreement with Freedman to sell forged paintings, including the forged painting sold to the De Soles, and that the De Sole Plaintiffs suffered damages as a result of the fraud conspiracy. Accordingly, Andrade and Rosales’ motions to dismiss the fraud conspiracy claim will be denied. 2. Howard Howard pleads a conspiracy to commit fraud claim against Freedman, Knoedler, and Hammer. That claim will" }, { "docid": "11235972", "title": "", "text": "& Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102 (1986). Therefore, Plaintiffs may charge D’Agostino “with the tortious activity alleged in the Amended Complaint, insofar as he is alleged to be part of a civil conspiracy to commit those acts.” (Dkt. No. 43 at p. 4.) Plaintiffs’ success in pleading claims III through VII is dependent on whether Plaintiffs have sufficiently pleaded a civil conspiracy among the three defendants. At the outset, Plaintiffs’ seventh claim is civil conspiracy. But New York does not recognize civil conspiracy as an independent cause of action. See Powell v. Kopman, 511 F.Supp. 700, 704 (S.D.N.Y.1981) (“in New York there is no substantive tort of civil conspiracy”); see also Legion Lighting Co., Inc. v. Switzer Grp., Inc., 171 A.D.2d 472, 567 N.Y.S.2d 52 (1991); Plymouth Drug Wholesalers, Inc. v. Kirschner, 239 A.D.2d 479, 658 N.Y.S.2d 64 (1997); Lau v. Berman, 6 Misc.3d 934, 792 N.Y.S.2d 292, 294 (Civ.Ct.2004) (“New York law does not recognize a cause of action for civil conspiracy”). Rather, “the damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.1956). In other words, “the charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts.” Id.; see also Brownstone Inv. Grp., LLC. v. Levey, 468 F.Supp.2d 654, 661 (S.D.N.Y.2007); Powell, 511 F.Supp. at 704; Alexander & Alexander of New York, Inc., 68 N.Y.2d at 969, 510 N.Y.S.2d 546, 503 N.E.2d 102. Therefore, the claim for civil conspiracy will be dismissed, but Plaintiffs may plead the existence of a civil conspiracy to attach responsibility to D’Agostino for the other state law causes of action. To establish a civil conspiracy, Plaintiffs “must demonstrate the underlying tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance" }, { "docid": "20715872", "title": "", "text": "to establish a claim of civil conspiracy, the plaintiff must demonstrate the primary tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or inju.ry.” Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 905 N.Y.S.2d 585, 588 (2010) (internal quotation marks omitted). Here, Plaintiff has failed to prove any underlying tort. Therefore, there can be no civil conspiracy. Thus, Plaintiff has failed to meet its burden and the Court finds in favor of Defendants as to Count XII. Damages Plaintiff requests (1) “out-of-pocket” damages, (2) lost future profits, (3) forfeiture of money paid to the Individual Defendants under the Stock Purchase Agreement, (4) the return of misappropriated materials and confidential information, (5) punitive damages, (6) pre- and post-judgment interest, and (7) attorney’s fees. (D.I. 183 at 39-48). The Court will address these requests in turn. Out-of-Pocket Damages Plaintiff requests out-of-pocket damages, which arise under five different theories. (D.I. 183 at 39 — 42). They are: (1) $508,812.55, which is the amount ELS AG paid to Inoxxis SA or Adipogen for products that were misappropriated from Apo-tech; (2) $35,841, which represents lost revenue from the sale of Flagellin, a product consigned to Apotech which found its way to Adipogen, reducing the profits to ELS AG; (3) $413,781, which represents increased costs to ELS AG of purchases from Adipogen over the prices agreed to in Appendix B; (4) $150,000, which is the payment ELS AG made to Adipogen in connection with Appendix B; and (5) $682,400, which represents the research and development costs that ELS spent to “redevelop misappropriated products.” (Id.). Given the Court’s liability findings, most of the theories for recovering the claimed out-of-pocket costs are not viable. In addition, amounts ELS AG overpaid due to the misfeasance of any Defendants are not recoverable by Plaintiff. Plaintiff can only recover damages it has proved it suffered. The first four theories of out-of-pocket damages all suffer from this same deficiency. That" }, { "docid": "18991849", "title": "", "text": "a transaction he [was] about to enter into” (internal quotation marks and citations omitted)). In addition, failure to fulfill a promise to perform a future act does not give rise to a cause of action for fraud “unless there existed an intent not to perform at the time the promise was made.” Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (Kearse, J.) (citations omitted); Deerfield Commc’ns Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956, 510 N.Y.S.2d 88, 502 N.E.2d 1003 (N.Y.1986). b. Civil Conspiracy to Commit Fraud Under New York law, a claim for civil conspiracy may stand only if it is connected to a separate underlying tort. See Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102, 102 (N.Y. 1986); Snyder v. Puente De Brooklyn Realty Corp., 297 A.D.2d 432, 435, 746 N.Y.S.2d 517, 521 (N.Y.App.Div.2002) (“[C]onspiracy to commit a tort such as fraud is not an independent cause of action in [New York] State but, rather, ‘[a] negations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort.’ ” (quoted reference omitted)). “[P]laintiff may plead the existence of a conspiracy ... to demonstrate that each defendant’s conduct was part of a common scheme.” World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142 F.Supp.2d 514, 532-33 (S.D.N.Y.2001) (citations omitted). To establish a claim of civil conspiracy, plaintiff must demonstrate the underlying tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and, (4) resulting damage or injury. Id. While plaintiff need not allege and prove that each defendant committed every element of the underlying tort, see Snyder, 297 A.D.2d at 435, 746 N.Y.S.2d at 521, as noted above, he is required to demonstrate four elements in addition to the underlying tort, including the existence of an agreement between the conspirators and that they committed an overt act in furtherance of the agreement. Indeed, “[although tort liability" }, { "docid": "21993573", "title": "", "text": "Schwartz Padob Advertising, Inc. v. Solaris Marketing Group, Inc., 635 N.Y.S.2d 587, 588 (1st Dep’t 1995)); But see Seiden Assocs., Inc. v. ANC Holdings, Inc., 754 F.Supp. 37, 41 (S.D.N.Y.1991) (“the mere existence of a written contract governing the same subject matter does not preclude such recovery from non parties so long as the other requirements for quasi contracts are met”). The Bridge Loan Agreements and promissory notes governed plaintiffs’ investment in BCI. However, those agreements do not set forth plaintiffs’ rights and obligations with respect to the Cunningham Defendants. If in fact the Cunningham Defendants wrongfully obtained assets plaintiffs intended for BCI, thereby depriving plaintiffs of the value of their investment, plaintiffs’ binding agreement with BCI should not preclude plaintiffs from proceeding in equity against the Cunningham entities. To hold otherwise would subvert the “logic of [this] equitable doctrine ... which is designed to prevent unjust enrichment where the absence of an enforceable contract otherwise prevents recovery from [the culpable] parties.” Seiden, 754 F.Supp. at 41. Thus, this claim too survives the motion to dismiss. 6. Civil Conspiracy There is no independent cause of action for conspiracy under New York law. See Briarpatch Ltd., L.P. v. Pate, 81 F.Supp.2d 509, 516 (S.D.N.Y.2000). “[H]owever, a conspiracy may be alleged, for the purpose of showing that a wrong was committed jointly by the conspirators and that, because of their common purpose and interest, the acts of one may be imputed to the others.” Aetna Cas. & Surety Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 591 (2d Cir.2005) (internal quotation omitted). Nonetheless, this doctrine “does not allow a plaintiff to reallege a tort asserted elsewhere in the complaint in the guise of a separate conspiracy claim.” Id. Thus, while plaintiffs may allege facts to demonstrate that a conspiracy existed in support of their various substantive claims, they may not allege “conspiracy” as a separate basis for liability. Therefore, plaintiffs’ cause of action for “civil conspiracy” must be dismissed. 7. Colorado Securities Act Plaintiffs also assert a claim against each of the Cunningham Defendants (ex cept SPDG Technologies) for violations of" }, { "docid": "18991850", "title": "", "text": "only to connect the actions of separate defendants with an otherwise actionable tort.’ ” (quoted reference omitted)). “[P]laintiff may plead the existence of a conspiracy ... to demonstrate that each defendant’s conduct was part of a common scheme.” World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142 F.Supp.2d 514, 532-33 (S.D.N.Y.2001) (citations omitted). To establish a claim of civil conspiracy, plaintiff must demonstrate the underlying tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and, (4) resulting damage or injury. Id. While plaintiff need not allege and prove that each defendant committed every element of the underlying tort, see Snyder, 297 A.D.2d at 435, 746 N.Y.S.2d at 521, as noted above, he is required to demonstrate four elements in addition to the underlying tort, including the existence of an agreement between the conspirators and that they committed an overt act in furtherance of the agreement. Indeed, “[although tort liability may be imposed based on allegations of conspiracy which ‘connect nonactors, who might otherwise escape liability, with the [tortious] acts of their coconspirators,’ ... more than a conclusory allegation of conspiracy or common purpose is required to state a cause of action against such nonactor.” Schwartz v. Soc’y of the N.Y. Hosp., 199 A.D.2d 129, 130, 605 N.Y.S.2d 72, 73 (N.Y.App.Div. 1993) (internal citations omitted) (dismissing conspiracy to defame claims against non-actors because plaintiff failed to allege any “independent culpable behavior” on their part to link them to the allegedly defamatory statements); see also Donini Int’l, S.p.A. v. Satec (U.S.A.) LLC, No. 03 Civ. 9471, 2004 WL 1574645, at *3, 2004 U.S. Dist. LEXIS 13148, at *9 (S.D.N.Y. July 12, 2004) (“Conclusory claims of conspiracy that are not pleaded with sufficient factual grounding should be dismissed.” (citations omitted)). 2. Application First, the Court turns to whether plaintiffs allegations of fraud are pled with sufficient particularity. Plaintiffs complaint attributes numerous false representations and omissions to “defendants.” Plaintiff does not allege that Fanny or Ariel made any" }, { "docid": "13693164", "title": "", "text": "allege the primary tort[— here, fraud — ]and four elements: (a) a corrupt agreement between two or more persons, (b) an overt act in furtherance of the agreement, (c) the parties’ intentional participation in the furtherance of a plan or purpose, and (d) the resulting damage or injury.” Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir.1986). B. Analysis 1. De Sole Defendants Freedman and Knoedler argue that the De Soles’ conspiracy to commit fraud claim must be dismissed against them because (1) the underlying fraud claim fails; and (2) the conspiracy claim is duplicative of the underlying fraud claim against them. (De Sole Dkt. No. 25 at 34) Defendant Andrade argues that this claim should be dismissed because the De Sole Plaintiffs have failed to adequately allege his involvement in a conspiracy. (De Sole Dkt. No. 64 at 9) Rosales argues that this claim should be dismissed because she “repeatedly refused to cooperate with Freedman,” and thus there was no “corrupt agreement.” (De Sole Dkt. No. 84 at 31) With respect to Freedman and Knoedler’s first point, the court has not dismissed the fraud claim against them. As to the second point, the Court finds that the fraud conspiracy claim against them is in fact duplicative of the fraud claim against them, and accordingly must be dismissed. The Second Circuit has made clear that [a] plaintiff may not “reallege a tort asserted elsewhere in the complaint in the guise of a separate conspiracy claim.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 591 (2d Cir.2005); accord Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623, 2007 WL 1040809, 2007 U.S. Dist. LEXIS 27001 (S.D.N.Y. Apr. 2, 2007) (“[W]here the acts underlying a claim of conspiracy are the same as those underlying other claims alleged in the complaint, the conspiracy claim is dismissed as duplicative.”); see also Durante Bros. 6 Sons, Inc. v. Flushing Nat’l Bank, 755 F.2d 239, 251 (2d Cir.1985) (“Count 7 added no new allegations to those of counts 1-6 except to reiterate that [defendants] had conspired to commit the" }, { "docid": "1162990", "title": "", "text": "a common law conspiracy to defraud. (Am.Compl. at ¶¶ 32-34.) This is a civil conspiracy claim defined in New York as: an agreement or confederation between two or more persons intentionally participating in the furtherance of a preconceived common plan or purpose to defraud. To constitute an actionable conspiracy, plaintiffs must establish not only the corrupt agreement between two or more persons, but their intentional participation in the furtherance of the plan or purpose, and resulting damage. Kashi v. Gratsos, 790 F.2d 1050,1055 (2d Cir.1986) (quoting Von [Vbra] Lehn v. Astor Art Galleries, Ltd. [86 Misc.2d 1], 426 [380] N.Y.S.2d 208, 210 [532, 538] (Sup.Ct.1980 [1976])); See also Arlilnghaus v. Ritenour, 622 F.2d 629, 639 (2d Cir.1980), cert. denied, 449 U.S. 1013, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980). To prove a civil conspiracy, a plaintiff must demonstrate: (1) a corrupt agreement, (2) an overt act in furtherance, and (3) resulting damage. Kashi, 790 F.2d at 1055. “Proof of a civil conspiracy under New York Law ‘connects] a defendant with the transaction and ... charge[s] him with the acts and declarations of his co-conspirators’.” Kashi, 790 F.2d at 1054 (quoting Green v. Davies, 182 N.Y. 499 75 N.E. 536 (1905)). The Plaintiff’s claim, however, probably will fail because civil conspiracy is not an independent tort in New York State. Valdan Sportswear v. Montgomery Ward & Co., 591 F.Supp. 1188, 1191 (Bankr.S.D.N.Y.1984). Thus, liability for a civil conspiracy rests on whether the “overt acts alleged” create an action under traditional tort law. United States v. Rivieccio, 846 F.Supp. 1079, 1083-84 (Bankr.E.D.N.Y.). We have already concluded that the Plaintiffs fraud claim is weak. Since fraud is the tort that forms the basis for the Plaintiffs conspiracy claim, the probability of its prevailing on the conspiracy claim is even less likely than the probability of its prevailing on the underlying tort claim. Moreover, the Plaintiff offered nothing from which the Court could conclude that a “corrupt agreement” existed among the Defendants. 2. ESTIMATE OF THE CONSPIRACY CLAIM While this Court concludes that the Plaintiff has a very small chance of prevailing on the" }, { "docid": "11235973", "title": "", "text": "Rather, “the damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.1956). In other words, “the charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts.” Id.; see also Brownstone Inv. Grp., LLC. v. Levey, 468 F.Supp.2d 654, 661 (S.D.N.Y.2007); Powell, 511 F.Supp. at 704; Alexander & Alexander of New York, Inc., 68 N.Y.2d at 969, 510 N.Y.S.2d 546, 503 N.E.2d 102. Therefore, the claim for civil conspiracy will be dismissed, but Plaintiffs may plead the existence of a civil conspiracy to attach responsibility to D’Agostino for the other state law causes of action. To establish a civil conspiracy, Plaintiffs “must demonstrate the underlying tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and, (4) resulting damage or injury.” Treppel v. Biovail Corp., 03 Civ. 3002(PKL), 2005 WL 2086339 (S.D.N.Y. Aug. 30, 2005); see also Meisel v. Grunberg, 651 F.Supp.2d 98, 119 (S.D.N.Y.2009); Am. Bldg. Maint. Co. of New York v. Acme Prop. Servs., Inc., 515 F.Supp.2d 298, 318 (N.D.N.Y.2007). In this case, the civil conspiracy allegation turns on whether Plaintiffs have pleaded with particularity that D’Agostino actually agreed to a conspiracy to defame. a. Conclusory Allegations D’Agostino first contends that Plaintiffs’ allegations are too conclusory to plausibly allege that he was involved in a conspiracy with the other defendants. He compares this case to Schwartz v. Soc’y of New York Hosp., in which the First Department explained: [M]ore than a conclusory allegation of conspiracy or common purpose is required to state a cause of action against [a] nonactor. In this case, the bare allegation that these two defendants were acting in concert with defendant Savarese without any allegation of independent culpable" }, { "docid": "19663592", "title": "", "text": "would establish a duty of care. In fact, Payday argues only that Advertising should be jointly and severally hable for torts committed by Findwhat because the two companies were “joint venture partners.” Because the negligence claim cannot stand against Findwhat, there is no basis for liability against Advertising. The negligence claim is therefore dismissed. 3. Payday also asserts a civil com spiracy claim against both defendants. New York, however, does not recognize a substantive tort of civil conspiracy. E.g., Antonios A. Alevizopoulos & Assocs. v. Comcast Int’l Holdings, Inc., 100 F.Supp.2d 178, 187 (S.D.N.Y.2000). In order to state a claim for civil conspiracy, therefore, there must be allegations of an independent intentional tort. Agron v. Douglas W. Dunham, Esq. & Assocs., 02 Civ. 10071, 2004 WL 691682, at *6 (S.D.N.Y. Mar.31, 2004); Alevizopoulos & Assocs., 100 F.Supp.2d at 187-88. In its opposition brief, Payday argues that despite its label in the Complaint, the civil conspiracy count alleges the intentional tort of fraudulent concealment. Under New York law, the elements of fraudulent concealment include “a relationship between the contracting parties that creates a duty to disclose, knowledge of the material facts by the party bound to disclose, scienter, reliance, and damage.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 582 (2d Cir.2005). A duty to disclose arises “where the parties are in a fiduciary relationship; under the ‘special facts doctrine,’ where one party possesses superior knowledge, not readily available to the other, and knows that the other is acting on the basis of mistaken knowledge; or where a party has made a partial or ambiguous statement, whose full meaning will only be made clear after complete disclosure.” Id. (internal quotation marks and citations omitted). When pleading a fraudulent concealment claim, a plaintiff must comply with the particularity requirements of Federal Rule of Civil Procedure 9(b). Id.; Allied Irish Banks, P.L.C. v. Bank of America, N.A., 03 Civ. 3748, 2006 WL 278138, at *6 (S.D.N.Y. Feb.2, 2006). In support of its civil conspiracy claim, Payday alleges that the defendants conspired to conceal that Findwhat was overcharging customers such" }, { "docid": "20304584", "title": "", "text": "WL 911015, at *1 n. 1, 2009 U.S. Dist. LEXIS 27503, at *3 n. 1 (S.D.N.Y. Mar. 30, 2009) (“[U]nder New York law, there is no independent action for civil conspiracy. Instead, civil conspiracy is a theory of vicarious liability pursuant to which defendants can be held liable for the fraudulent actions of their co-conspirators.”) (citing Crigger v. Fahnestock & Co., 443 F.3d 230, 237 (2d Cir.2006)); Beck v. Prupis, 529 U.S. 494, 503, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000); Canada, Inc. v. Aspen Technology, Inc., 544 F.Supp.2d 199, 231-32 (S.D.N.Y.2008); Hamilton Partners, L.P. v. Englard, 11 A.3d 1180, 1211 (Del.Ch. 2010) (“Like Delaware, New York does not recognize civil conspiracy to commit a tort as an independent cause of action ... just as in Delaware, the claim stands or falls with the underlying tort.”) (citing Pappas v. Passias, 271 A.D.2d 420, 707 N.Y.S.2d 178, 180 (N.Y.App.Div.2000); Salvatore v. Kumar, 45 A.D.3d 560, 845 N.Y.S.2d 384, 388 (N.Y.App.Div.2007); Empire Fin. Servs., Inc. v. Bank of New York (Del.), 900 A.2d 92, 98-99 (Del.Supr.2006)). Thus, in order to adequately plead a claim for civil conspiracy, a plaintiff must establish first the underlying tort that the parties have conspired to commit. Once the underlying tort is established and deemed sufficiently supported by factual allegations, a plaintiff must establish: “(1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” Meisel v. Grunberg, 651 F.Supp.2d 98, 119 (S.D.N.Y.2009) (citing World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142 F.Supp.2d 514, 532-33 (S.D.N.Y.2001)); see also Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1036 (Del.Ch.2006) (in Delaware, “a plaintiff must plead facts supporting (1) the existence of a confederation or combination of two or more persons; (2) that an unlawful act was done in furtherance of the conspiracy; and (3) that the conspirators caused actual damage to the plaintiff’ (citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149-50 (Del.1987))). Claims of civil conspiracy which do not allege," }, { "docid": "5944079", "title": "", "text": "statements. Compl. ¶ 159. The Complaint also alleges that the “individual Defendants had direct and supervisory involvement in the day-to-day operations of the Company and, therefore, are presumed to have had the power to control or influence the particular transactions giving rise to the” alleged securities fraud. Id. ¶ 160. Almost identical allegations have been held to be sufficient to satisfy Rule 8’s liberal pleading standard and adequately allege control. See Catton v. Defense Tech. Sys., Inc., 457 F.Supp.2d 374, 385 (S.D.N.Y.2006) (allegations of control were sufficient to give defendants fair notice of the claim that they acted as control persons where the plaintiffs alleged, inter alia, that “[b]y virtue of their high level and controlling positions within the Company, participation in and/or awareness of the Company’s actual performance, these defendants had the requisite power to directly or indirectly control or influence specific corporate policy”). Thus, the Complaint adequately pleads a “controlling person” claim against McQuil-lin. (V) Count V: Conspiracy!Aiding & Abetting Common Law Fraud To allege conspiracy to commit fraud, a plaintiff must allege an unlawful agreement to commit fraud, defendant’s intentional participation in furtherance of the plan or purpose, and resulting damages. Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir.1986). However, a plaintiff may not “reallege a tort asserted elsewhere in the complaint in the guise of a separate conspiracy claim.” Aetna Casualty & Surety Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 591 (2d Cir.2005). “[W]here the acts underlying a claim of conspiracy are the same as those underlying other claims alleged in the complaint, the conspiracy claim is dismissed as dupli-cative.” Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623(RWS), 2007 U.S. Dist. LEXIS 27001, at *77, 2007 WL 1040809, at *26 (S.D.N.Y. April 2, 2007). Plaintiffs have not adequately alleged that either Zappala or Evans intentionally participated to further the alleged fraudulent scheme, and thus Count V must be dismissed with respect to them. With respect to McQuillin, the Complaint does not sufficiently allege that McQuillin participated with others to commit the accounting fraud. Rather, as discussed, the Complaint alleges facts" }, { "docid": "15155152", "title": "", "text": "that Defendants “unjustly used the funds Plaintiffs paid under the agreements to reduce the debt Enron owed them.... Taking advantage of their superior knowledge concerning Enron’s actual, dire financial condition, they seized the opportunity to flood Enron [with Plaintiffs cash] in order to have their debt paid off.” (Pis.’ Mem. at 45.) As Plaintiffs acknowledge, the payments in question were made pursuant to the credit agreements. As to the allegation that Defendants took advantage of their “superior knowledge” of Enron’s financial condition, the Court has already detailed how the credit agreements expressly provided that Defendant banks and their affiliates had no duty to account to Plaintiffs for their dealings with Enron, and the banks had no duty to provide Plaintiffs with any information in connection with payments under the agreements. Because the credit agreements govern the subject matter of Plaintiffs’ unjust enrichment claim, Count VII fails to state a claim upon which relief can be granted. Accordingly, Count VII is dismissed. Plaintiffs’ Civil Conspiracy Claim The elements of a civil conspiracy are (1) an agreement between two or more persons, (2) an overt act, (3) an intentional participation in the furtherance of a plan or purpose and (4) resulting damage. Official Committee of Unsecured Creditors v. Donaldson, Lufkin & Jenrette Sec. Corp., No. 00 Civ. 8688, 2002 WL 362794, at *13 (S.D.N.Y. Mar. 6, 2002). New York law does not recognize the substantive tort of civil conspiracy; the claim is available “only if there is evidence of an underlying actionable tort.” Missigman v. USI Northeast, Inc., 131 F.Supp.2d 495, 517 (S.D.N.Y.2001). Conspiracy allegations “are permitted only to connect the actions of separate defendants with an otherwise actionable tort.” Alexander & Alexander, 68 N.Y.2d 968, 510 N.Y.S.2d 546, 547, 503 N.E.2d 102 (1986). As the Court explained in its discussion of Plaintiffs’ aiding and abetting claim, Plaintiff has adequately plead fraud by Enron, and has alleged that Defendants knowingly participated in Enron’s fraudulent accounting scheme. Accordingly, Plaintiffs’ allegations of conspiracy serve to connect Defendants’ conduct “with an otherwise actionable tort.” and Count V states a claim for which relief can be" }, { "docid": "5944080", "title": "", "text": "an unlawful agreement to commit fraud, defendant’s intentional participation in furtherance of the plan or purpose, and resulting damages. Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir.1986). However, a plaintiff may not “reallege a tort asserted elsewhere in the complaint in the guise of a separate conspiracy claim.” Aetna Casualty & Surety Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 591 (2d Cir.2005). “[W]here the acts underlying a claim of conspiracy are the same as those underlying other claims alleged in the complaint, the conspiracy claim is dismissed as dupli-cative.” Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623(RWS), 2007 U.S. Dist. LEXIS 27001, at *77, 2007 WL 1040809, at *26 (S.D.N.Y. April 2, 2007). Plaintiffs have not adequately alleged that either Zappala or Evans intentionally participated to further the alleged fraudulent scheme, and thus Count V must be dismissed with respect to them. With respect to McQuillin, the Complaint does not sufficiently allege that McQuillin participated with others to commit the accounting fraud. Rather, as discussed, the Complaint alleges facts to show that McQuillin was aware of the accounting improprieties in three transactions and was actively involved in negotiating an illicit side deal in one of those transactions (the Yukos transaction). There are no allegations, however, that McQuillin conspired with others to commit the fraud. Further, the conclusory claim for conspiracy simply states that “Defendants, in combination with others at Aspen, substantially assisted in carrying out a plan ... to falsify Aspen’s financial outlook to artificially inflate Aspen’s share price” by making “false statements of material fact” and engaging “in acts and practices which operated as a fraud upon the Plaintiffs in this action ... to maintain artificially high market prices for Aspen common stock .... ” Compl. ¶ 174. Plaintiffs do not allege that McQuillin committed any overt acts in support of the conspiracy that are distinct from the acts he committed to perpetrate the alleged underlying fraud. Thus, because Plaintiffs’ conspiracy claim against McQuillin is “factually duplicative of the other allegations in the complaint,” JHW Greentree Capital, L.P. v. Whittier Trust, No. 05" }, { "docid": "20304585", "title": "", "text": "in order to adequately plead a claim for civil conspiracy, a plaintiff must establish first the underlying tort that the parties have conspired to commit. Once the underlying tort is established and deemed sufficiently supported by factual allegations, a plaintiff must establish: “(1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” Meisel v. Grunberg, 651 F.Supp.2d 98, 119 (S.D.N.Y.2009) (citing World Wrestling Fed’n Entm’t, Inc. v. Bozell, 142 F.Supp.2d 514, 532-33 (S.D.N.Y.2001)); see also Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1036 (Del.Ch.2006) (in Delaware, “a plaintiff must plead facts supporting (1) the existence of a confederation or combination of two or more persons; (2) that an unlawful act was done in furtherance of the conspiracy; and (3) that the conspirators caused actual damage to the plaintiff’ (citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149-50 (Del.1987))). Claims of civil conspiracy which do not allege, or which insufficiently allege, an underlying tort must be dismissed for failure to state a claim under Rule 12(b)(6). See Meisel, 651 F.Supp.2d at 119 (“Under New York law, a claim for civil conspiracy may stand only if it is connected to a separate underlying tort.” (citations omitted)); Corbett v. eHome Credit Corp., No. 10 Civ. 26, 2010 WL 1063702, at *3 n. 5, 2010 U.S. Dist. LEXIS 27287, at *8 n. 5 (E.D.N.Y. Mar. 22, 2010) (“A claim for civil conspiracy is only actionable if the complaint states a claim for the underlying tort.” (citations omitted)); accord Kuroda, 971 A.2d at 892 (same). The SAC does not specify the tort underlying Plaintiffs’ civil conspiracy claim, but alleges a “conspiracy whereby [defendants] agreed to transfer GPIM to GPIM Holdings at an unfair price.” (SAC ¶ 55.) If it assumed that Belnovo’s alleged breach of fiduciary duty is meant to be the underlying tort, for the reasons stated above, the breach of fiduciary duty claim is dismissed. Because these claims must stand or fall together, the" }, { "docid": "20715871", "title": "", "text": "by any Defendants. Additionally, while Appendix B included a provision that would require the transfer of the ELISA kit technology- under certain circumstances, Plaintiff failed to prove that the conditions detailed in Appendix B for the technology to be transferred were ever fulfilled. Thus, Plaintiff has not proven by a preponderance of the evidence that the ELISA kit technology was misappropriated. Therefore, Plaintiff has failed to meet its burden and the Court finds in favor of Defendants as to Count XI. Count XII: Civil Conspiracy against All Defendants Choice of Law The same four factors that the Court considered for Count VI, misappropriation of trade secrets, apply to the determination of which law .the Court should apply to Count XII. For the reasons discussed above for Count VI, the Court finds that Count XII should also be governed by New York law. Analysis New York does not recognize an independent cause of action for conspiracy to commit a civil tort. Romano v. Romano, 2 A.D.3d 430, 767 N.Y.S.2d 841 (2003). “Therefore, under New York Law, to establish a claim of civil conspiracy, the plaintiff must demonstrate the primary tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or inju.ry.” Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 905 N.Y.S.2d 585, 588 (2010) (internal quotation marks omitted). Here, Plaintiff has failed to prove any underlying tort. Therefore, there can be no civil conspiracy. Thus, Plaintiff has failed to meet its burden and the Court finds in favor of Defendants as to Count XII. Damages Plaintiff requests (1) “out-of-pocket” damages, (2) lost future profits, (3) forfeiture of money paid to the Individual Defendants under the Stock Purchase Agreement, (4) the return of misappropriated materials and confidential information, (5) punitive damages, (6) pre- and post-judgment interest, and (7) attorney’s fees. (D.I. 183 at 39-48). The Court will address these requests in turn. Out-of-Pocket Damages Plaintiff requests out-of-pocket damages, which arise under" } ]

[ { "docid": "11131645", "title": "", "text": "presented to the Inspector General presumably also would be admissible at trial. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Hence, summary judgment was inappropriately granted on Burke’s claim that the Board acted in unlawful retaliation in relieving him of his supervisory responsibilities. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.Cir.1998). As to Burke’s claims that the Board acted out of retaliation in lowering his performance ratings, the district court ruled that Burke had failed to show that they were adverse employment actions under Brown, 199 F.3d 446. Although we have no doubt that the removal of Burke’s supervisory responsibilities constituted an adverse employment action, the issue is not always so clear with regard to performance evaluations. See id. at 458. As this court observed in Passer v. American Chemical Society, 935 F.2d 322 (D.C.Cir.1991), “the [Title VII] statute does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer, or demotion.” Id. at 330 (citations omitted). The district court correctly ruled that Burke failed to make the necessary showing of adversity as to his 1996 performance evaluation. See Brown, 199 F.3d at 458. But Burke’s Rule 56(c) materials raise a genuine issue whether his 1997 performance evaluation was the result of unlawful retaliation, essentially for the same reasons discussed in regard to the Board’s action in relieving him of his supervisory responsibilities and because in his declaration Burke claimed that as a result of his 1997 evaluation he was denied bonus and cash awards that he received nearly every year previously. See Russell v. Principi, 257 F.3d 815 (D.C.Cir.2001). We hold first, that summary judgment on Burke’s retaliation claims was appropriate with respect to Burke’s 1996 performance evaluation because it was conducted prior to the time he lodged his complaints with the Inspector General and the EEO, and second, that the Board was not entitled to summary judgment on Burke’s 1997 performance evaluation because that review was conducted after Burke engaged in protected activity" } ]

[ { "docid": "19344336", "title": "", "text": "— U.S. —, 126 S.Ct. 2405, 2409, 165 L.Ed.2d 345 (2006). The Board contends there is no evidence relevant to Weber’s contention that the lowered performance ratings in her performance evaluations for 1997-98 and 1998-99 caused her to lose a performance award for either period, and points out that such awards are “optional” with the agency: As provided in a 1994 Administrative Policy Circular, “Employees with ratings of record of ‘Outstanding’, ‘Commendable’ or ‘Fully successful’ may receive performance awards,” but the failure to receive an “optional performance award may not be appealed.” Finally, the Board argues there is no evidence Weber’s performance rating was “unusual for Weber over the course of her time at the NLRB” or less favorable than the rating of any comparably situated employee. Unlike the Board, we see in the record evidence sufficient for a reasonable jury to conclude that the Board gave performance awards upon the basis of each the employee’s rating of record in his or her annual performance evaluation. The self-same Administrative Policy Circular upon which the Board relies flatly states, “The results of performance appraisal serve as the basis for performance award decisions,” and “Performance Awards are based on an employee’s rating of record.” Moreover, Weber’s previous ratings of record and correlative performance awards are consistent with this causal relationship. For example, she was rated “outstanding” and received a quality step increase, apparently as a performance award, for the 1994-95 rating period. (For the 1995-96 rating period, Weber received another quality step increase, but the record does not indicate her rating of record for that period.) For the 1996-97 rating period, she was rated “Outstanding” and received a performance award of $2,335. In Burke v. Gould, 286 F.3d 513, 522 (D.C.Cir.2002) we held the Board “was not entitled to summary judgment on [the plaintiffs] 1997 performance evaluation because that review was conducted after [the plaintiff] engaged in protected activity ... and he sufficiently alleged loss of ‘a tangible, quantifiable award,’ ” in the form of a performance or cash award, which he had received “nearly every year” before he filed a complaint" }, { "docid": "14249100", "title": "", "text": "Qualified List. (See Def.'s Mot. Summ. J., Ex. 6, Document Listing Rankings at 1.) . Plaintiff states that this claim was filed on May 10, 2001. (Roberson Aff. at 4.) However, the TIGTA’s report indicates that the claim was filed on April 18, 2001. (Id.) . To the extent defendant argues that plaintiff has failed to properly and timely exhaust his administrative remedies under the grievance procedure, that contention is without merit. Under the plaintiff’s union agreement, employees who wish to raise a claim of discrimination have the right to do so \"under the statutory procedure or the negotiated grievance procedure ... but not both.” (Def.'s Mot. Summ. J., Ex. 7, 2002 Nat'l Agreement: IRS and NTEU at 113.) Here, plaintiff originally elected to raise his claims through the negotiated grievance procedure with the NTEU. (Compl. at 4.) Each of plaintiff's claims of discrimination and retaliation proceeded through the NTEU!s grievance process and was exhausted by the January 23, 2003, final agency decision letter. (PL’s Mem. Opp'n, Ex. 16, Final Agency Decision.) Plaintiff properly appealed these claims to the EEOC on March 5, 2003. (Pl.’s Mem. Opp'n, Ex. 17, EEOC Appeal.) Because the EEOC failed to return a final decision on plaintiff's appeal within 180 days, plaintiff elected to file his claims in federal court, as he was entitled to do. 29 C.F.R. § 1614.407. . Defendant argues that plaintiff cannot show that he suffered an adverse employment action because the letter reprimanding plaintiff for using the e-mail system would not constitute an adverse action. (Def.’s Mem. Supp. at 21.) That argument is a straw man, because the adverse action here is the plaintiff's non-selection for the GS-14 level promotion. See Brown v. Brody, 199 F.3d 446, 456-57 (D.C.Cir.1999) (stating that when a plaintiff has suffered objectively tangible harm, such as \"hiring, firing, failing to promote, [etc.]” the plaintiff has suffered an adverse action by his employer.) . If plaintiff were to have received a perfect sub-score for his performance evaluation, his total score would be calculated as follows: Performance Evaluation (30) + KSAs (11.12) + Awards (0) = 41.12." }, { "docid": "21202999", "title": "", "text": "that her grade or salary was affected by her 2003 performance evaluation. Thus, plaintiffs “successful” performance evaluation does not constitute an adverse action under Title VII. Plaintiff simply argues that DOE “cannot present any rational justification for giving Plaintiff a lower rating than Caucasian employees who performed less work and had lower levels of responsibility.” PL’s Opp. at 41. Plaintiff refers to one Caucasian female and one African-American male, arguing that they had “less work and lower levels of work but received higher evaluations.” Id. at 41. In response, DOE points out the flawed nature of plaintiffs argument. Def.’s Reply at 21. Performance appraisals are not based entirely upon the level and amount of work an employee performs. Otherwise, an employee working at a higher grade with more responsibility would necessarily have to receive a higher performance appraisal than someone working at a lower grade with less responsibility — regardless of the quality of each employee’s work. Such a system would make performance appraisals obsolete. Instead, performance appraisals are designed to recognize an employee’s performance and accomplishments based upon the expectations for her particular level of employment. Even assuming plaintiffs “successful” evaluation is an adverse action, DOE has provided a thorough and legitimate explanation supporting the evaluation, and plaintiff points to no evidence of pretext. Def.’s Mot. at 10-11. In evaluating each employee, Fiegel relied on the employee’s self-prepared list of accomplishments, information received from Brockhouse, and his own observations of each employee’s work. Def.’s Ex. 5, Fie-gel Dep. 49:6-13. Fiegel rated plaintiff “successful” on four components of her evaluation, “highly successful” on seven components of her evaluation, and “outstanding” on two components of her evaluation. Def.’s Ex. 12, Kilby-Robb Performance Evaluation at 1-2. When the average was calculated based upon the numerical score of each component, plaintiff received a score at the highest end of the “successful” category. Although plaintiff takes issue with the fact that another African-American employee also received a “successful” rating — a rating plaintiff thought too high — that individual’s rating was at the lower end of the “successful” scale, and he received criticism of" }, { "docid": "10802932", "title": "", "text": "on which Bridgeforth chiefly relies. In Weber, we held that lowering an employee’s performance evaluation could be materially adverse action if the lowered score resulted in the employee not receiving a cash award. The employee in Weber demonstrated that she had received the “optional” cash award in each of the preceding three years. Id. at 185. The link between performance evaluation and award was so direct that the alleged harm was not speculative, and her claim survived summary judgment. As we stated, “though performance awards are indeed optional with the employer, the record shows [her employer] had opted to give Weber an award in each of the three years preceding 1998, the year in which she complained of discrimination and received no such award.” Id. Weber had demonstrated that she had received similar positive performance evaluations, and similar cash awards, with a predictable regularity that ceased after she complained of discrimination. Because she could produce evidence of a pattern of receiving such awards that ceased when she engaged in protected activity, the harm she alleged was not speculative. But this case is more like Douglas, because the harm Bridgeforth has alleged is too speculative to constitute materially adverse action. The path from Bridgeforth’s alleged acts of bravery to a time-off award is, as in Douglas, a labyrinth, with many ways to fail but only one way to succeed. We begin with the highly subjective standards for a time-off award. According to the Department of the Interior Memorandum regarding “awards and Recognition Programas],” the following are “examples of ... criteria” for the award: Making a high quality contribution involving a difficult or important project or assignment; [displaying special initiative ...; [e]nsuring the mission ... is accomplished during a difficult period ...; [u]sing initiative and creativity in making improvements in a product, activity program, or service; [providing exceptional service ...; [developing new procedures or guidelines that improve the quality of services provided ...; [o]ther comparable employee achievements. J.A. 121-22. What’s more, these vague measures must be passed upon by a supervisor, reviewed by a captain, and, depending on the amount of time-off" }, { "docid": "20542933", "title": "", "text": "promotion was either a pretext for discrimination or retaliation. Id. at 157. C. Next, Nurriddin claims NASA discriminated and retaliated against him when it awarded him a “mere.$800 performance award in 1998.” Apparently Nurriddin first claimed that he was denied-a performance award in 1998 for the 1997-1998 period, after which NASA responded that he in fact received an $800 award. Nurriddin IV, 40 F.Supp.3d at 124. In his opposition to NASA’s motion for summary judgment, he then conceded that he received $800, but that “only an $800 performance award” was nonetheless discrimination and retaliation. Id. In support of this argument, Nurriddin presents what he believes to be two pieces of direct evidence of animus: 1) Nurriddin’s statement that a co-worker told him thát Phelps said Nur-riddin’s performance evaluation would be lowered because of his work as a minority advocate; and 2) Nurriddin’s statement that Phelps said Nurriddin’s EEO complaints were a “crock of s-h-i-t.” Even though denial of a discretionary bonus is an actionable adverse employment action, see Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009), Nurriddin does not succeed in rebutting the agency’s explanation. NASA’s proffered legitimate reason for the award is that Nurriddin’s performance did not merit a higher one. Indeed, Nurriddin received $800' despite the fact that his review for the same time period noted “a pattern of missed deadlines and unresponsiveness to his management.” When it comes to retaliation, Nurriddin offers no evidence supporting a causal connection between any protected activity and the $800 award. Nurriddin’s contention that a co-worker told him that Phelps said he was going to' lower Nurriddin’s evaluation is inadmissible double hearsay. See Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C.Cir.2000) (“[T]he evidence still must be capable of being converted into admissible evidence.”).' Furthermore, Nurriddin offered absolutely no evidence to the district court about when Phelps’ alleged “crock of s-h-it” comments occurred. See Nurriddin IV, 40 F.Supp.3d at 124 (“[Njeifher in his deposition nor in his brief does Nurriddin provide a date when this alleged statement was made.”). Even assuming this confrontation happened on October 1, 1998, as" }, { "docid": "19344338", "title": "", "text": "of discrimination with the Board’s OEEO. See also Russell v. Principi, 257 F.3d 815, 818-19 (D.C.Cir.2001) (holding bonus diminished as result of performance evaluation is adverse action with respect to Title VII plaintiff alleging lesser performing colleague received better evaluation and, therefore, larger bonus). So, too, here; though performance awards are indeed optional with the employer, the record shows the Board had opted to give Weber an award in each of the three years preceding 1998, the year in which she complained of discrimination and received no such award. In 1998, Weber did receive a “special act award” of time off but that does not diminish the significance of her allegation that she was discriminatorily denied a performance award for the 1997-98 rating period. But for possible retaliation by the Board, Weber might have received both a performance award and a special act award, as she did in 1995. Moreover, the two performance evaluations that Weber challenged, though they may not, as the district court said, be “adverse in an absolute sense,” do qualify as adverse actions inso far as they resulted in her losing a financial award or an award of leave, because a reasonable jury could conclude that such a loss “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington, 126 S.Ct. at 2409. We therefore remand this aspect of the case for the district to determine whether Weber proved her allegation of retaliation with respect to her nonreceipt of performance awards in 1998 and 1999. C. Pretext In order to prove the Board’s explanations for alleged acts of discrimination or retaliation are pretextual, Weber must show “both that the reason was false, and that discrimination [or retaliation] was the real reason.” See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1998). The district court held that Weber failed to show the Board’s explanations for numerous alleged acts of discrimination or retaliation were false or that the real reason was discriminatory or retaliatory. 1. Direct Assignments to Support Staff The Board “withdrew [Weber’s] ability" }, { "docid": "5669250", "title": "", "text": "rebutting the negative comments in his performance evaluation, such as his “pattern of missed deadlines” and “unresponsiveness to management.” Pl.’s 1997-1998 Performance Evaluation. Ultimately, Nurriddin fails to present a prima facie case and fails to offer evidence rebutting NASA’s nonretaliatory explanation that he did not receive a grade increase because he was not qualified for one. Hence, Nurriddin fails to “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but a pretext.” Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007) (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097); see also Talavera v. Shah, 638 F.3d 303, 313 (D.C.Cir.2011) (employee must “present evidence from which a reasonable jury could find that [the alleged adverse action] was the result of unlawful retaliation”). 2. Diminished Performance Award in 1998 Nurriddin initially argued that he was denied a performance award in 1998 because his “performance evaluation was lowered.” 2d Am. Compl. ¶ 85. NASA responded that Nurriddin received an $800 performance award for 1998, and that his performance evaluation was not “lowered”—the performance appraisal system changed to a pass/fail system in 1997-1998, and Nurriddin passed. Def.’s MSJ at 19-20. Nurriddin now concedes both that he was awarded an $800 performance award in 1998 and that “each member of [his] department received the same ‘pass’ rating as [Nurriddin].”' Pl.’s Opp’n at 11. Undeterred, he now argues that he suffered discrimination and retaliation when he was awarded “only an $800 performance award.” Id. For an action to be adverse, it must .“affect [the employee’s] position, grade level, salary, or promotion opportunities.” Baloch, 550 F.3d at 1199. Here, the parties do not present arguments about whether a “diminished” performance award is an adverse action. Because Nurriddin’s receipt of an $800 award, rather than a larger amount, would have affected his compensation, the Court will assume it represents an adverse action. See, e.g., Russell v. Principi, 257 F.3d 815, 819 (D.C.Cir.2001) (holding that, because a lower performance evaluation resulted in a lower bonus amount, which is analogous to one’s salary or to a benefit of one’s" }, { "docid": "14249058", "title": "", "text": "the IRS, which publishes data with respect to the operation of tax laws. (Id. at 8; Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Mem. Opp’n”) at 1; Def.’s Mot. Summ. J., Ex. 1, Dep. of Daniel Skelly (“Skelly Dep.”) at 8.) Daniel Skelly was the SOI director until early 2001, at which time Thomas Petska replaced him. (Pl.’s Mem. Opp’n at 3; Compl. at 3-4.) On June 5, 2000, the SOI announced vacancies for computer specialist positions at the GS-14 level. (Compl. at 3; Def.’s Mot. Summ. J., Ex. 2, SOI Div. Vacancy Announcement.) The “vacant” positions were actually promotions, whereby the selected persons would continue in their same jobs, but at the GS-14 level rather than the GS-13 level. (Def.’s Mot. Summ. J., Ex. 3, Dep. of Denise Herbert (“Herbert Dep.”) at 68:9-21.) On June 16, 2000, plaintiff submitted his application for the promotion. (Compl. at 3.) Over thirty people applied for up to twenty available positions. (Def.’s Mem. of Law in Supp. of Mot. for Summ. J. (“Def.’s Mem. Supp.”) at 3-4; Def.’s Mot. Summ. J., Ex. 4, Promotion Certificate.) SOI director Skelly selected a three-member ranking panel to review the submitted applications and rank the applicants. (Skelly Dep. at 78; Def.’s Mem. Supp. at 3.) The panel members were chosen on the basis of their knowledge about computers and status as management officials. (Skelly Dep. at 78-79; Def.’s Mem. Supp. at 3.) After selecting the ranking committee, Skelly did not meet with the panel members, give them any instructions on how to rank candidates, participate in the panel’s deliberations, tell them which applicants he wanted to be ranked highest, or indirectly suggest to the panel his preferences. (Skelly Dep. at 82.) The panel members were to apply a mathematical formula used by the personnel office when ranking applicants. (Herbert Dep. at 41-42.) The mathematical formula used by the panel scored the applicants based on three factors: (1) the applicant’s performance evaluation completed during the previous year by the applicant’s supervisor; (2) a review of the applicant’s knowledge, skills, and abilities (“KSAs”); and (3) awards received" }, { "docid": "19344335", "title": "", "text": "(D.C.Cir.2000); Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1415 n. 13 (D.C.Cir.1985) (noting § 2000e-16, which is silent on the subject, nonetheless prohibits retaliation against a federal employee who has invoked Title VII). The Board defends the district court’s holding that neither performance evaluation was a materially adverse employment action. Toner rated Weber’s performance for 1997-98 from “fully successful” to “outstanding” with respect to the four critical elements of her job, but did not give her an overall rating. For 1998-99, he rated her from “commendable” to “outstanding” on the same four critical elements and gave her an overall rating of “commendable.” Weber contends that giving her lower ratings on critical elements in 1998 and a lower overall performance rating in 1999 than in past years were adverse actions; they caused her to lose a performance award, and are therefore “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Bur lington N. & Santa Fe Ry. Co. v. White, — U.S. —, 126 S.Ct. 2405, 2409, 165 L.Ed.2d 345 (2006). The Board contends there is no evidence relevant to Weber’s contention that the lowered performance ratings in her performance evaluations for 1997-98 and 1998-99 caused her to lose a performance award for either period, and points out that such awards are “optional” with the agency: As provided in a 1994 Administrative Policy Circular, “Employees with ratings of record of ‘Outstanding’, ‘Commendable’ or ‘Fully successful’ may receive performance awards,” but the failure to receive an “optional performance award may not be appealed.” Finally, the Board argues there is no evidence Weber’s performance rating was “unusual for Weber over the course of her time at the NLRB” or less favorable than the rating of any comparably situated employee. Unlike the Board, we see in the record evidence sufficient for a reasonable jury to conclude that the Board gave performance awards upon the basis of each the employee’s rating of record in his or her annual performance evaluation. The self-same Administrative Policy Circular upon which the Board" }, { "docid": "5101308", "title": "", "text": "in late 2008 provide support for plaintiffs theory that the true reason the position was cancelled to avoid giving it to her. (Pl.’s SMF ¶ 85; Evans Aff. ¶ 57.) Moreover, defendant provided no contemporaneous reason for cancelling the position; the reason first appeared in this litigation. Finally, it is not apparent whose decision it ultimately was not to fill the position, but, to the extent it was Kari-mi’s, there is evidence of discriminatory and/or retaliatory animus on his part. (Pl.’s SMF ¶¶ 66, 67.) Considering the evidence “in light of all the circumstances,” the Court is persuaded that plaintiff has produced sufficient evidence to raise jury issues as to the question of whether defendant cancelled the grade 13 environmental specialist position for either discriminatory or retaliatory reasons. V. PERFORMANCE EVALUATION Plaintiff’s final claim is that defendant’s May 2008 performance evaluation was unlawful retaliation. Defendant seeks summary judgment on the ground that performance evaluations are not actionable retaliation unless they have affected the employee’s grade or salary. (Def.’s Mem. at 23 (citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003)).) Although Taylor applied the “adverse employment action” test to the retaliation claim before it, not the “broader” “materially adverse action” standard adopted by the Supreme Court a few years later in Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405, defendant is correct that plaintiffs May 2008 performance evaluation cannot support a retaliation claim. In Taylor v. Solis, the Court of Appeals held that for a performance evaluation to be “materially adverse, it must affect the employee’s ‘position, grade level, salary, or promotion opportunities.’ ” 571 F.3d 1313, 1321 (D.C.Cir.2009) (quoting Baloch, 550 F.3d at 1199). Thus, an employee who simply receives a lower performance evaluation than she believes is deserved has no claim for retaliation. See id. (rejecting retaliation claim based on fact that employee’s evaluation had been lowered from “outstanding” to “excellent” and then to “fully effective,” absent any evidence that she had been denied promotion or bonus opportunities as a result); Porter v. Shah, 606 F.3d 809, 818 (D.C.Cir.2010) (no retaliation claim based on interim, oral assessment" }, { "docid": "14249059", "title": "", "text": "3-4; Def.’s Mot. Summ. J., Ex. 4, Promotion Certificate.) SOI director Skelly selected a three-member ranking panel to review the submitted applications and rank the applicants. (Skelly Dep. at 78; Def.’s Mem. Supp. at 3.) The panel members were chosen on the basis of their knowledge about computers and status as management officials. (Skelly Dep. at 78-79; Def.’s Mem. Supp. at 3.) After selecting the ranking committee, Skelly did not meet with the panel members, give them any instructions on how to rank candidates, participate in the panel’s deliberations, tell them which applicants he wanted to be ranked highest, or indirectly suggest to the panel his preferences. (Skelly Dep. at 82.) The panel members were to apply a mathematical formula used by the personnel office when ranking applicants. (Herbert Dep. at 41-42.) The mathematical formula used by the panel scored the applicants based on three factors: (1) the applicant’s performance evaluation completed during the previous year by the applicant’s supervisor; (2) a review of the applicant’s knowledge, skills, and abilities (“KSAs”); and (3) awards received by the applicant in the last three years. (Pl.’s Stmt. Gen. Iss. at 12.) The maximum score possible for any applicant was fifty-three points — thirty points for the performance evaluation, twenty points for the KSAs review, and three points for awards. (Id.) The score for the first factor — the prior year’s performance evaluation — was computed by calculating the candidate’s average performance score on multiple categories of the prior year’s performance evaluation and multiplying that value by six. (Herbert Dep. at 46-49.) Panel members assessed the applicant’s knowledge, skills, and abilities- — the second factor — based upon both the prior year’s performance evaluation and the content of the employee’s application for the promotion. (Id. at 51-56.) The final factor — awards—was scored by looking at the performance awards or quality step increases given to the candidate in the last three years, information called for on each application. (Id. at 56.) The panel members did not interview the applicants. (Id. at 51-52.) After calculating the total scores for each applicant, the panel provided" }, { "docid": "5669210", "title": "", "text": "February-1995 and April 1997 that were addressed in Nurriddin I. See 382 F.Supp.2d at 87-88. He filed his third EEO complaint in June 1997, naming Owens and McGee as “responsible management officials,” and alleging continued disparate treatment based upon his race, sex, and religion, and in reprisal for his prior EEO activity. 2d Am. Compl. ¶ 56; Ex. 2 to Def.’s Mot. for Summ. J. [ECF No. 190] (“Def.’s MSJ”), Nurriddin’s List of His Complaints [ECF No. 187-2] (“Pl.’s List”) ¶ 7C. Nurriddin then filed another formal complaint in December 1997, naming Owens, McGee, and Phelps. 2d Am. Compl. ¶ 24; Pl.’s List ¶ 7D. This and the June 1997 complaint were followed by seven additional EEO complaints in the years to come. PL’s List ¶¶ 7E-8. In November 1997, Nurriddin received a long-sought noncompetitive promotion to GS13. 2d Am. Compl. ¶¶ 8, 49; Def.’s Stmt. ¶ 2. In April 1998, he filed another formal complaint, naming Owens, McGee, Phelps, and others. PL’s List ¶ 7E. Thereafter, he began to take significant sick leave. Def.’s Stmt. ¶¶ 11, 13; Ex. 13 to Def.’s MSJ, Sept. 16, 1998 Official Reprimand (“9/16/98 Official Reprimand”). For the 1997-1998 annual performance evaluation, which covered the period of July 1, 1997, to June 30, 1998, NASA switched from a five-level scale to a pass-fail system. Def.’s Stmt. ¶ 8. Nurriddin received a “pass” on his performance evaluation, but Phelps noted in the text of his review a “ ‘pattern of missed deadlines and unresponsiveness to his management that must be addressed and improved during the next year for [Nurriddin’s] work to continue to be judged satisfactory.’ ” Id. ¶9 (quoting Ex. 7 to Def.’s MSJ, Nurrid-din’s 1997-1998 Performance Evaluation (“PL’s 1997-1998 Performance Evaluation”)). Nurriddin received an $800 performance award for the 1997-1998 period on August 17,1998. Id. ¶10. Two other events occurred in August 1998: Nurriddin received an official reprimand for failing to follow procedures regarding conference attendance and for failing to follow directions, 2d Am. Compl. ¶ 79; Ex. 2 to Def.’s Mot. to Dismiss [ECF No. 9-3], Aug. 26, 1998 Official Reprimand (“8/26/98" }, { "docid": "14249060", "title": "", "text": "by the applicant in the last three years. (Pl.’s Stmt. Gen. Iss. at 12.) The maximum score possible for any applicant was fifty-three points — thirty points for the performance evaluation, twenty points for the KSAs review, and three points for awards. (Id.) The score for the first factor — the prior year’s performance evaluation — was computed by calculating the candidate’s average performance score on multiple categories of the prior year’s performance evaluation and multiplying that value by six. (Herbert Dep. at 46-49.) Panel members assessed the applicant’s knowledge, skills, and abilities- — the second factor — based upon both the prior year’s performance evaluation and the content of the employee’s application for the promotion. (Id. at 51-56.) The final factor — awards—was scored by looking at the performance awards or quality step increases given to the candidate in the last three years, information called for on each application. (Id. at 56.) The panel members did not interview the applicants. (Id. at 51-52.) After calculating the total scores for each applicant, the panel provided the scoring information to the personnel office in New Carrollton, Maryland. (Herbert Dep. at 43.) Subsequently, both the panel and the personnel office reviewed the package to determine a “Best Qualified” cut-off point. (Id. at 43-46.) The cut-off point was calculated by looking at the number of available positions. (Id. at 69-71, 73-74.) For the first available position, four applicants appeared on the Best Qualified List. (Id. at 69.) For each additional available position after the first, the applicant with the next highest score was placed on the list. Tie scores placed more than one applicant’s name on the list. (Id. at 73.) Twenty positions were potentially available and resulted in a total of thirty applicants appearing on the Best Qualified List. (Def.’s Mot. Summ. J., Ex. 6, Evaluation Criteria Scores (“Listed Rankings”).) The cut-off point established for the SOI promotions was a score of 44.7. (Def.’s Mot. Summ. J., Ex. 6, Listed Rankings); (Def.’s Stmt. Mat. Facts at 4.) The panel calculated plaintiffs overall score to be 35.12, and therefore, plaintiff did not appear" }, { "docid": "17255736", "title": "", "text": "without authorization. Def.’s First Mot. for Summ. J., Ex. 11, at 3. The reprimand further directed the plaintiff not to air his grievances about Loman with work colleagues, after he sent courtesy copies of an e-mail to Larry Scrivner and Daniel Picard stating: “You [Loman] have just proven exactly what I have been saying I do not have any involvement in the budget process.... I am no longer involved ... [and] your actions speak louder than words.” Id. The plaintiff does not address these elements of the reprimand in his amended complaint or opposition. See Am. Compl. and PL’s Opp’n. On October 30, 2003, Loman issued an unsatisfactory performance appraisal of Baloch, finding him failing in the critical performance of his duties. PL’s First Opp’n, Ex. NN. In the appraisal, Loman complains that the plaintiff fails to respect Loman’s authority, referencing, inter alia, his abuse of travel privileges, failure to return messages and calls, and persistent disregard of sick leave restrictions. Id. The plaintiff states that all of his prior appraisals rated his performance as outstanding or, on a pass/fail system, passing. PL’s Opp’n at 13. He argues that Loman’s evaluation constituted “the first step in removing Mr. Baloch from federal service.” Am. Compl. ¶ 151. Moreover, he declares that Loman acted improperly in ignoring his commendations received during this rating cycle, Pl.’s Opp’n at 13-14, and in issuing the unsatisfactory evaluation without first obtaining the approval of his supervisor, Am. Compl. ¶¶ 151-53. The defendant counters that the performance evaluation had no effect on the plaintiffs pay or grade since he was already at the top of his pay scale, i.e., GS 14, step 10. Def.’s Mot. for Summ. J. at 12. Additionally, no evidence suggests that Loman was aware of the letters of commendation, since they were not addressed to him. Def.’s First Mot. for Summ. J., Ex. 00. Finally, the defendant argues that the deposition that the plaintiff cites regarding supervisor approval only indicates that a supervisor’s signature is required eventually, not that the signature must precede the forwarding of the evaluation to the employee. Def.’s Reply" }, { "docid": "14249077", "title": "", "text": "legitimate, nondiscriminatory reason.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089. The defendant must set forth the reasons for the plaintiffs rejection, and this explanation must be legally sufficient to sustain a judgment for the defendant. See id. at 255, 101 S.Ct. 1089. “If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” Id. Here, to rebut the presumption of discrimination, defendant asserts that its selection process was race-neutral and objective. (Def.’s Mem. Supp. at 2-5.) The two-tieréd process of selecting employees for promotion began with a three-member panel that mathematically calculated scores based on the employee’s prior performance evaluation, the content of the employee’s application for the promotion, and the number of awards received by the employee in the previous three years. (Id. at 3.) The panel did not interview the candidates, and it did not directly choose which employees would receive interviews by Skelly, the selecting official. (Herbert Dep. at 45, 51-52.) Instead, the panel scored each applicant, and later, with the assistance of the personnel office, determined a cut-off point based on the number of available positions to determine which employees were selected to interview with Skelly. (Herbert Dep. at 44, 49, 66.) Defendant asserts that the minimum score to be placed on the Best Qualified List and receive an interview was 44.7. (Herbert Dep. at 74.) Plaintiffs score of 35.12 placed him at the bottom of the applicant list. (Def.’s Mot. Summ. J., Ex. 6, Listed Rankings.) Defendant explains that plaintiffs application was “brief and lacked specific details.” (Def.’s Mot. Summ. J., Ex. 13, First Step Response at 3.) Defendant has produced sufficient evidence to indicate a legitimate, non-discriminatory reason for plaintiffs non-promotion by showing that the other applicants achieved higher scores when their applications were graded. (See Def.’s Mot. Summ. J., Ex. 6, Listed Rankings.) Consequently, defendant has met his burden to rebut the presumption of discrimination. C. Plaintiff’s evidence of pretext If the defendant proffers a legitimate and nondiscriminatory reason for its employment decision, the" }, { "docid": "19344337", "title": "", "text": "relies flatly states, “The results of performance appraisal serve as the basis for performance award decisions,” and “Performance Awards are based on an employee’s rating of record.” Moreover, Weber’s previous ratings of record and correlative performance awards are consistent with this causal relationship. For example, she was rated “outstanding” and received a quality step increase, apparently as a performance award, for the 1994-95 rating period. (For the 1995-96 rating period, Weber received another quality step increase, but the record does not indicate her rating of record for that period.) For the 1996-97 rating period, she was rated “Outstanding” and received a performance award of $2,335. In Burke v. Gould, 286 F.3d 513, 522 (D.C.Cir.2002) we held the Board “was not entitled to summary judgment on [the plaintiffs] 1997 performance evaluation because that review was conducted after [the plaintiff] engaged in protected activity ... and he sufficiently alleged loss of ‘a tangible, quantifiable award,’ ” in the form of a performance or cash award, which he had received “nearly every year” before he filed a complaint of discrimination with the Board’s OEEO. See also Russell v. Principi, 257 F.3d 815, 818-19 (D.C.Cir.2001) (holding bonus diminished as result of performance evaluation is adverse action with respect to Title VII plaintiff alleging lesser performing colleague received better evaluation and, therefore, larger bonus). So, too, here; though performance awards are indeed optional with the employer, the record shows the Board had opted to give Weber an award in each of the three years preceding 1998, the year in which she complained of discrimination and received no such award. In 1998, Weber did receive a “special act award” of time off but that does not diminish the significance of her allegation that she was discriminatorily denied a performance award for the 1997-98 rating period. But for possible retaliation by the Board, Weber might have received both a performance award and a special act award, as she did in 1995. Moreover, the two performance evaluations that Weber challenged, though they may not, as the district court said, be “adverse in an absolute sense,” do qualify as" }, { "docid": "5669251", "title": "", "text": "performance evaluation was not “lowered”—the performance appraisal system changed to a pass/fail system in 1997-1998, and Nurriddin passed. Def.’s MSJ at 19-20. Nurriddin now concedes both that he was awarded an $800 performance award in 1998 and that “each member of [his] department received the same ‘pass’ rating as [Nurriddin].”' Pl.’s Opp’n at 11. Undeterred, he now argues that he suffered discrimination and retaliation when he was awarded “only an $800 performance award.” Id. For an action to be adverse, it must .“affect [the employee’s] position, grade level, salary, or promotion opportunities.” Baloch, 550 F.3d at 1199. Here, the parties do not present arguments about whether a “diminished” performance award is an adverse action. Because Nurriddin’s receipt of an $800 award, rather than a larger amount, would have affected his compensation, the Court will assume it represents an adverse action. See, e.g., Russell v. Principi, 257 F.3d 815, 819 (D.C.Cir.2001) (holding that, because a lower performance evaluation resulted in a lower bonus amount, which is analogous to one’s salary or to a benefit of one’s employment, it was adverse). Nevertheless, Nurriddin fails to provide any evidence to support an inference of discrimination behind his “diminished” award. Nurriddin’s basis for believing that he received a “diminished” performance award in 1998 is that others in the Office of Education at NASA received higher performance awards than he did. PL’s Opp’n at 11. He argues that he “received the lowest award in his department,” even though “each member of the department received the same ‘pass’ rating.” Id. Although a plaintiff can make out a case for discrimination where employees of a different race, sex, or religion are treated differently, he must show that the other employees were similarly situated. See, e.g., Brady, 520 F.3d at 495; McGill v. Munoz, 203 F.3d 843, 848 (D.C.Cir.2000). NASA produced a list of the performance awards given to individuals in the Office of Education in 1998. See Ex. A to Def.’s Reply to PL’s Opp’n (“Def.’s Reply”) (Declaration of Fred A. Johnson and Chart of 1998 Performance Award Information). The list provides each individual’s name, performance award" }, { "docid": "21203000", "title": "", "text": "and accomplishments based upon the expectations for her particular level of employment. Even assuming plaintiffs “successful” evaluation is an adverse action, DOE has provided a thorough and legitimate explanation supporting the evaluation, and plaintiff points to no evidence of pretext. Def.’s Mot. at 10-11. In evaluating each employee, Fiegel relied on the employee’s self-prepared list of accomplishments, information received from Brockhouse, and his own observations of each employee’s work. Def.’s Ex. 5, Fie-gel Dep. 49:6-13. Fiegel rated plaintiff “successful” on four components of her evaluation, “highly successful” on seven components of her evaluation, and “outstanding” on two components of her evaluation. Def.’s Ex. 12, Kilby-Robb Performance Evaluation at 1-2. When the average was calculated based upon the numerical score of each component, plaintiff received a score at the highest end of the “successful” category. Although plaintiff takes issue with the fact that another African-American employee also received a “successful” rating — a rating plaintiff thought too high — that individual’s rating was at the lower end of the “successful” scale, and he received criticism of the work he performed. Def.’s Ex. 5, Fiegel Dep. 53:13-19. Hence, while both employees fell into the “successful” range of the performance appraisal system, they were not given identical evaluations. In the end, then, although plaintiffs evaluation may have been lower than she hoped, her argument does not support a conclusion that her evaluation was the product of racial or gender discrimination. II. Hostile Work Environment To establish a prima facie case of hostile work environment, plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was subject to unwelcome harassment; (3) the harassment occurred because of her race or disability; (4) the harassment affected a term, condition or privilege of employment; and (5) the employer knew or should have known of the harassment, but failed to take any action to prevent it. See Jones v. Billington, 12 F.Supp.2d 1, 11 (D.D.C.1997), aff'd, 1998 WL 389101 (D.C.Cir. June 30, 1998). The workplace environment becomes “hostile” for purposes of Title VII and legal relief only when the offensive conduct “permeate[s] [the" }, { "docid": "17255737", "title": "", "text": "outstanding or, on a pass/fail system, passing. PL’s Opp’n at 13. He argues that Loman’s evaluation constituted “the first step in removing Mr. Baloch from federal service.” Am. Compl. ¶ 151. Moreover, he declares that Loman acted improperly in ignoring his commendations received during this rating cycle, Pl.’s Opp’n at 13-14, and in issuing the unsatisfactory evaluation without first obtaining the approval of his supervisor, Am. Compl. ¶¶ 151-53. The defendant counters that the performance evaluation had no effect on the plaintiffs pay or grade since he was already at the top of his pay scale, i.e., GS 14, step 10. Def.’s Mot. for Summ. J. at 12. Additionally, no evidence suggests that Loman was aware of the letters of commendation, since they were not addressed to him. Def.’s First Mot. for Summ. J., Ex. 00. Finally, the defendant argues that the deposition that the plaintiff cites regarding supervisor approval only indicates that a supervisor’s signature is required eventually, not that the signature must precede the forwarding of the evaluation to the employee. Def.’s Reply at 23; PL’s First Opp’n, Ex. 24 (“Steele Dep.”) at 14-16. None of these measures rises to an adverse action that might reasonably deter an employee from protecting his rights. As in the preceding issues regarding leave and proposed suspension, the plaintiff was aware of the official charges against him. The plaintiff faced no ultimate consequences from these actions. See Crawford v. Carroll, 2007 WL 757666, at *8 (N.D.Ga. Mar.8, 2007) (holding that a negative performance evaluation that deferred the plaintiffs raise for ten months and was ultimately retroactively granted but did not jeopardize her job or affect her base salary did not constitute adverse action); Brown v. Brody, 199 F.3d 446, 458 (D.C.Cir.1999) (holding that letters of admonishment are not an adverse employment action). The plaintiff continued making EEOC complaints between August and November 2003, clearly undeterred by Lo-man’s measures taken in March, April and October that same year. If these disciplinary measures were intended by Loman as deterrents, they failed spectacularly. d. The Yelling The plaintiff cites four instances in which Loman yelled" }, { "docid": "10802931", "title": "", "text": "adverse, however, they must not be “unduly speculative.” Douglas v. Donovan, 559 F.3d 549, 553 (D.C.Cir.2009). We have addressed this fact pattern before, in Douglas v. Donovan. Id. In Douglas, we held that an employer’s failure to nominate an employee for a Presidential Rank Award did not constitute materially adverse action because the award process was fraught with “inherent uncertainty.” Id. We noted that the plaintiff could not show a “direct tie between a nomination and an award.” Id. Douglas could not demonstrate that if he had been nominated for the award, he would have received it. The criteria for receipt of an award were exacting, and its grant was discretionary and involved many levels of approval. “The Presidential Rank Award process is labyrinthine, with numerous ways to fail, but only one to succeed.” Id. at 551. Even if Douglas had been nominated, we found that there were too many intervening factors in the selection process to render his receipt of the award likely. This distinguished Douglas from Weber v. Battista, 494 F.3d 179 (D.C.Cir.2007), on which Bridgeforth chiefly relies. In Weber, we held that lowering an employee’s performance evaluation could be materially adverse action if the lowered score resulted in the employee not receiving a cash award. The employee in Weber demonstrated that she had received the “optional” cash award in each of the preceding three years. Id. at 185. The link between performance evaluation and award was so direct that the alleged harm was not speculative, and her claim survived summary judgment. As we stated, “though performance awards are indeed optional with the employer, the record shows [her employer] had opted to give Weber an award in each of the three years preceding 1998, the year in which she complained of discrimination and received no such award.” Id. Weber had demonstrated that she had received similar positive performance evaluations, and similar cash awards, with a predictable regularity that ceased after she complained of discrimination. Because she could produce evidence of a pattern of receiving such awards that ceased when she engaged in protected activity, the harm she alleged" } ]

[ { "docid": "23226881", "title": "", "text": "Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.1987). The employer bears the burden of proving the availability of the executive exemption. Atlanta Professional Firefighters Union v. City of Atlanta, 920 F.2d 800, 804 (11th Cir.1991) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974)). We construe overtime exemptions narrowly, against the employer. ' See id. (citing Brennan v. Sugar Cane Growers Co-Op, 486 F.2d 1006 (5th Cir.1973)). II. DISCUSSION As a general rule, the FLSA provides that employees are entitled to receive overtime pay at one and one-half times their regular rate for all hours worked in excess of forty per week. 29 U.S.C.A. § 207(a)(1) (1965 & Supp.1994). There are exceptions, and most of this case involves some of those exceptions. A. THE LIEUTENANTS’ STATUS AS EXEMPT EXECUTIVES The FLSA exempts from overtime “any employee employed in a bona fide executive, administrative, or professional capacity,” 29 U.S.C.A. § 213(a)(1) (1965 & Supp.1994), and the City treats all of the lieutenants as exempt employees under that provision. The regulations provide, however, that in order to be classified as exempt under this provision, an employee must be paid on a salary basis, 29 C.F.R. § 541.1(f) (1993). The lieutenants contend that they are not, and therefore, that they should not be treated as exempt. Congress expressly authorized the Secretary of Labor to define the scope of the executive, administrative, and professional employee exemptions. 29 U.S.C.A. § 213(a)(1) (1965 & Supp.1994). “Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). According to the FLSA regulations: An employee will be considered to be paid “on a salary basis” within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations" } ]

[ { "docid": "2887328", "title": "", "text": "to be withheld except as to persons ‘plainly and unmistakably within their terms and spirit.’ ” Auer, 519 U.S. at 462, 117 S.Ct. 905 (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960)); see also Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983) (construing overtime exemption for “any employee employed as a seaman”). An employer who claims an exemption from the FLSA bears the burden of demonstrating that the exemption applies. See id. THE FAIR LABOR STANDARDS ACT I. Statutory and Regulatory Background Under the FLSA, employers generally must pay their employees at least one and one-half times their regular rate of pay for hours worked in excess of 40 in a week. See 29 U.S.C. § 207(a)(1). Employees who are employed in executive, administrative, or professional capacities are exempt from that overtime requirement. See 29 U.S.C. § 213(a)(1). The Secretary of Labor is authorized to define by rule the scope of those exemptions. See id. Under the Secretary’s rules, three tests must be satisfied for an employee to be considered an exempt executive, professional, or administrative employee: The “duties” test, see 29 C.F.R. § 541.1; the “salary level” test, see 29 C.F.R. § 541.1(f); and the “salary basis” test, see 29 C.F.R. § 541.118. Only the “salary basis” test is at issue in this case. An employee is considered to be paid on a salaried basis if “he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). In order to qualify for exempt status, “the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked,” but “need not be paid for any workweek in which he performs no work.” Id. The rule makes an exception for “[pjenalties imposed in good faith for infractions of safety rules of major" }, { "docid": "11786651", "title": "", "text": "exemptions are “narrowly construed.” Havey v. Home-bound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.2008) (citation omitted). The District contends that Ford-Haynes, Neill, and Weeks are exempt under the terms of § 13(a)(1) of the FLSA because they are employed in a “bona fide executive, administrative, or professional capacity,” as those terms are defined by Department of Labor (DOL) regulations. 29 U.S.C. § 213(a)(1). One such regulation requires that employees exempted under § 13(a)(1) be “compensated on a salary basis at a rate of not less than $455 per week ..., exclusive of board, lodging or other facilities.” 29 C.F.R. § 541.600(a); see also Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 847-51 (6th Cir.2012) (describing the “salary basis test”); Hilbert v. District of Columbia, 23 F.3d 429, 431 (D.C.Cir.1994) (same). To be “compensated on a salary basis,” an employee must “regularly receive[ ] each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602(a). The crux of the dispute is whether Ford-Haynes, Neill, and Weeks receive less than $455 per week in compensation; if so, the District fails the salary basis test and they are covered by the FLSA’s minimum wage and overtime requirements. Both parties agree that the amount each of these plaintiffs receives in their paychecks has fallen below $455 per week since Janu ary 2012. There is likewise no disagreement that if these plaintiffs’ annuities are counted as compensation, they are paid well above $455 per week, and the District is entitled to summary judgment. We hold that the District may not count these plaintiffs’ annuities as compensation for purposes of the salary basis test. Under no reasonable reading of the term can the pension payments be considered “compensation” for these plaintiffs’ current work. Rather, the money they receive from their pensions is a retirement benefit, earned over the course of their past employment with the MPD, not their present work for" }, { "docid": "22674527", "title": "", "text": "Justice Scalia delivered the opinion of the Court. The Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §§201 et seq., exempts “bona fide executive, administrative, or professional” employees from overtime pay requirements. This case presents the question whether the Secretary of Labor’s “salary-basis” test for determining an employee’s exempt status reflects a permissible reading of the statute as it applies to public-sector employees. We also consider whether the Secretary has reasonably interpreted the salary-basis test to deny an employee salaried status (and thus grant him overtime pay) when his compensation may “as a practical matter” be adjusted in ways inconsistent with the test. I Petitioners are sergeants and a lieutenant employed by the St. Louis Police Department. They brought suit in 1988 against respondents, members of the St. Louis Board of Police Commissioners, seeking payment of overtime pay that they claimed was owed under § 7(a)(1) of the FLSA, 29 U. S. C. § 207(a)(1). Respondents argued that petitioners were not entitled to such pay because they came within the exemption provided by § 213(a)(1) for “bona fide executive, administrative, or professional” employees. Under regulations promulgated by the Secretary, one requirement for exempt status under § 213(a)(1) is that the employee earn a specified minimum amount on a “salary basis.” 29 CFR §§ 541.1(f), 541.2(e), 541.3(e) (1996). According to the regulations, “[a]n employee will be considered to be paid 'on a salary basis’... if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” § 541.118(a). Petitioners contended that the salary-basis test was not met in their case because, under the terms of the St. Louis Metropolitan Police Department Manual, their compensation could be reduced for a variety of disciplinary infractions related to the “quality or quantity” of work performed. Petitioners also claimed that they did not meet the other requirement for exempt status under §" }, { "docid": "7854444", "title": "", "text": "Appellants concede that they perform the duties of an “ ‘employee employed in a bona fide executive ... capacity.’ ” Id. § 541.1(a)-(e) (quoting 29 U.S.C. § 213(a)(1)). Therefore, if appellants are compensated on a salary basis, as defined by 29 C.F.R. § 541.118, they are not entitled to overtime compensation under the FLSA. Appellants commenced a civil rights action in the district court pursuant to the FLSA, 29 U.S.C. § 201 et seq., alleging that they are entitled to overtime compensation. Plaintiffs moved for partial summary judgment on the issues of liability, statute of limitations, and liquidated damages pursuant to Fed.R.Civ.P. 56. The defendant moved for summary judgment dismissing plaintiffs’ complaint in its entirety. On December 8, 1997, the district court issued a written Memorandum and Order granting defendant’s motion for summary judgment and dismissing appellants’ complaint in its entirety. Judgment dismissing the complaint in its entirety was entered on December 9, 1997. This appeal ensued. BACKGROUND According to the Department of Labor’s regulations, [a]n employee will be considered to be paid “on a salary basis” ... if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of work performed. 29 C.F.R. § 541.118(a); see also Ahern v. County of Nassau, 118 F.3d 118, 119 (2d Cir.1997). Employers may not make deductions for violations of minor rules, but “[p]en- alties imposed ... for infractions of safety-rules of major significance will not affect the employee’s salaried status.” 29 C.F.R. § 541.118(a)(5). Additionally, “[deductions may not be made for absences of an employee caused by jury duty, attendance as a witness, or temporary military leave.” Id. § 541.118(a)(4). Plaintiffs-appellants are assigned to the Detective Division of the Mount Vernon Police Department (“the Police Department” or “the Department”). All Sergeants and Lieutenants in the Detective Division receive their compensation in equal, bi-weekly installments. Thus, the requirements of the salary basis test are satisfied as long as the plaintiffs’ salaries" }, { "docid": "12375866", "title": "", "text": "CALABRESI, Circuit Judge. I. Background The plaintiffs are high-ranking police officers who brought this class action against their employer, the County of Nassau Police Department (“Department”), alleging a violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. The FLSA generally requires employers to provide overtime compensation for hours worked in excess of a prescribed work week. 29 U.S.C. § 207. On appeal, it is not disputed that the defendants failed to pay the plaintiffs overtime for at least two years. The defendants will thus be liable to the plaintiffs unless the plaintiffs fall within an exception to the coverage of the FLSA. Since the only exemption the defendants claim with respect to the plaintiff officers is the “bona fide executive” exemption, the sole issue before us is whether the Department was freed from the overtime requirements of the FLSA by that provision. “Bona fide executives,” who are not subject to the FLSA overtime requirements, 29 U.S.C. § 213(a)(1), are defined in pertinent part as employees who are remunerated, inter alia, on a salary basis, 29 C.F.R. § 541.1(f). To be compensated on a salary basis, an employee must regularly be paid a predetermined amount that “is not subject to reduction because of variations in the quality or quantity of the work performed,” 29 C.F.R. § 541.118(a), with the exception that the employee may be fined “for infractions of safety rules of major significance,” 29 C.F.R. § 541.118(a)(5). At trial, the plaintiffs maintained that they did not fall within the “bona fide executive” exemption because they were not paid on a salary basis. In support of this claim, they adduced Article 9, Rule 6.3.e of the Nassau County Police Department Rules and Regulations, which the parties agreed were gener ally binding on the plaintiffs. Rule 6.3.e provides that: [for] any violation of the Rules and Regulations of the Police Department, County of Nassau ... the Commissioner of Police has the power to discipline a member of the Force or Department by: 1) Reprimand. 2) Fine. 3) Suspension with or without pay. 4) Dismissal or removal from" }, { "docid": "9483629", "title": "", "text": "946, 88 S.Ct. 1031, 19 L.Ed.2d 1134 (1968). ANALYSIS The FLSA requires employers to pay overtime compensation to employees who work more than 40 hours per regular workweek. 29 U.S.C. § 207 (1995). Under the FLSA’s enforcement provisions, employers violating the Act may be required to pay uncompensated overtime, together with civil penalties and liquidated damages. 29 U.S.C. § 216 (1995). The FLSA exempts from its overtime requirements, however, any salaried employee who works in a bona fide executive, administrative, or professional capacity. 29 U.S.C. § 213(a)(1). The district court found that Cowart and Durbano are exempt employees pursuant to 29 U.S.C. § 213(a)(1) because they were paid a salary and qualified as administrative employees. We agree. A. Salary Test To be exempt, an employee must primarily have managerial or supervisory duties. 29 C.F.R. § 541.103-541.117. The employee must earn wages of at least $250 per week, and must be paid on a “salary” basis. 29 C.F.R. § 541.117-541.118. Under the regulations, an employee is a salaried and not an hourly employee if that person “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed....” 29 C.F.R. § 541.118(a). If employees are covered by a policy which allows deductions in pay for disciplinary reasons, or other deductions in pay as a practical matter, that person cannot be considered an exempt employee. Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997). This standard is met “if there is either an actual practice of making such deductions or an employment policy that creates a ‘significant likelihood’ of such deductions.” Auer, 117 S.Ct. at 911. An employer may, however, make deductions from a salaried employee’s wages for absences of a full day or more for personal reasons or sickness. 29 C.F.R. § 541.118(a)(2) Although Cowart and Durbano received their full weekly salary every week, they nonetheless contend that Ingalls’s method of compensating them did not meet the" }, { "docid": "2175681", "title": "", "text": "the interest of brevity, the pertinent facts will be set forth as part of the analysis of the issues to which they relate. DISCUSSION In Count One, Haines alleges that Southern Retailers willfully failed to pay her the overtime compensation to which she was entitled under § 7(a) of the FLSA, 29 U.S.C. § 207(a)(1). According to Haines, during her three years of employment with Southern Retailers, she worked many overtime hours in excess of a forty hour week. Section 7(a) of the FLSA guarantees to employees compensation at a rate of not less than one and one-half times the regular rate of compensation for all hours they worked in excess of a forty-hour week. 29 U.S.C. § 207(a)(1). However, under § 213(a)(1), any bona fide executive employee is exempt from the entitlement created by § 207. 29 U.S.C. § 213(a)(1). The issue in this action depends upon whether Ms. Haines was an “executive employee” within the purview of the exception to the FLSA overtime compensation requirements. Haines claims that, notwithstanding her job title of “store manager,” she was not an “executive employee” and thus is entitled to unpaid overtime compensation pursuant to § 207(a)(1) of the FLSA. Southern Retailers claims that Haines was an “executive employee” under § 213 of the Act, and thus is exempt from overtime compensation requirements. A. Legal Standard for Overtime Pay Under the FLSA.. Whether an employee is a bone fide executive employee is determined by the regulations promulgated by the United States Department of Labor in 29 C.F.R. § 541.1. In § 541.1, there is a “long test” for determining whether an employee qualifies for the executive exemption from FLSA for overtime compensation. The long test lists six factors all of which must apply before an employee is qualified as an “executive.” However, § 541.1(f) provides that, where an employee is paid more than $250 per week, the “short test” for determining executive status, found in 29 C.F.R. § 541.119, applies in lieu of the “long test.” It is undisputed that, throughout her employment with Southern Retailers, Haines was paid a minimum of" }, { "docid": "15306315", "title": "", "text": "with reason and rationality). Therefore, the Court hereby dismisses Thomas’ claim of an alleged failure to participate in an interactive process. 2. The Fair Labor Standards Act claim In his FLSA claim, Thomas claims that he was subjected to deductions from his accrued sick and vacation leave time when he took partial-day absences; that McAl-lister treated him as an exempt employee under the FLSA; and that he was not paid for the overtime' hours that he worked. He further claims that because of these deductions from his leave time, McAllister lost the benefit of treating him as an exempt employee and he is therefore entitled to have his overtime hours compensated accordingly. McAllister does not deny that it deducted from Thomas’ sick and vacation leave for partial-day absences, but it does argue that these deductions did not remove Thomas from the ranks of exempt employees. The FLSA establishes that, as a general rule, an employee must be compensated at a rate of at least one and one-half times his regular rate for all overtime hours. 29 U.S.C.A. § 207(a)(1) (West 1998); Reich v. John Alden Life Ins., 126 F.3d 1, 7 (1st Cir.1997). There is an exception to this rule for employees working “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C.A. § 213(a)(1); Reich, 126 F.3d at 7. This exception is defined in the regulations. See 29 C.F.R. §§ 541.1— 541.3 (1998). One of the requirements for an employee to be included in this exception is that he be paid on a salary basis. Id. §§ 541.1(f), 541.2(e)(1), 541.3(e). Thomas argues that because of these deductions, he was not paid in this manner. An employee is considered to be paid on a salary basis if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any' week" }, { "docid": "8402542", "title": "", "text": "The Lambert Airport operates twenty-four hours a day, seven days a week, with a work force of 625 City employees and 21,600 airline employees. AOSs staff the Airport’s Operations and Communications Center, a unit created to be the eyes and ears of senior management at all times. During the period in question, an AOS who worked more than forty hours in a particular week had the choice of being paid for this overtime at his or her regular rate, or “banking” an hour of paid vacation time for each hour of overtime worked. In 1994, plaintiffs commenced this FLSA damage action for unpaid overtime, see 29 U.S.C. § 216(b), claiming they should have been paid for overtime at time-and-one-half rates. The City claims AOSs are “bona fide executive, administrative, or professional” employees exempt from FLSA’s overtime requirements under § 213(a)(1). This exemption is an affirmative defense on which an employer has the burden of proof. See Murray v. Stuckey’s, Inc., 50 F.3d 564, 566 (8th Cir.), cert. denied, 516 U.S. 863, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995). The FLSA grants the Secretary of Labor broad authority to define the terms “executive, administrative, and professional” employees. See 29 U.S.C. § 213(a)(1); Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 909, 137 L.Ed.2d 79 (1997). The Secretary has promulgated extensive regulations delimiting the types of employees who fall within this exemption. See 29 C.F.R. Part 541. The regulations treat the three exemption categories separately. Salary Basis. A criterion common to all three exemption categories is that the employee must be compensated on a salary basis. See 29 C.F.R. §§ 541.1(f), 541.2(e), 541.3(e). An employee is paid “on a salary basis” if he or she receives a predetermined amount of compensation each pay period that is not subject to being reduced because of the quality or quantity of the work. See 29 C.F.R. § 541.118(a). It is undisputed that the AOSs received a predetermined amount of pay each period which was not subject to reduction. The district court nonetheless concluded they were not paid on a salary basis for purposes of" }, { "docid": "20669347", "title": "", "text": "of Talladega, 24 F.3d 1337, 1340 (11th Cir.1994). An employee is considered paid “on a salary basis” if he or she “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his [or her] compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a) (1995). Thus, to claim exemption from the FLSA’s overtime pay requirements pursuant to section 213(a)(1), an employer must prove that the relevant employees meet two tests: the job duties test and the salary basis test. Appellants alleged in their complaint that they did not fall within this exemption because, among other things, (1) “their pay [was] subject to reductions for absences of part of a day”; and (2) the City “reduce[d] their accrued leave in hourly increments for partial day absences.” Upon appellants’ motion, the district court bifurcated this lawsuit, deciding to consider first the salary basis test issues. On May 2, 1995, in addressing appellants’ motion for summary judgment and the City’s partial motions for summary judgment on the salary basis test, the district court made the following findings of fact: The plaintiffs concede that they have no evidence of actual pay docking for absences of less than a day since April 1986, the date when the mandate of Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) became applicable to the public sector. The plaintiffs also concede that they are unaware of any disciplinary suspensions discovered during the course of the litigation which have not been reimbursed by the City’s exercise of the so-called window of correction. 29 C.F.R. § 541.118(a)(6). Plaintiffs could produce no other evidence relating to the actual docking of salaries of the City’s management employees from 1986 through the present. There are a total of six disciplinary suspensions from 1986 through the present. Two of these suspensions were for periods of one and two weeks, respectively. The other four suspensions were for periods of less than one week." }, { "docid": "8463178", "title": "", "text": "other submissions show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The FLSA requires payment at overtime rates for hours worked in excess of the prescribed work week of forty hours. 29 U.S.C. § 207(a)(1). Employees who qualify as “bona fide executives,” however, are exempt from the overtime requirements. 29 U.S.C. § 213(a)(1). Congress did not define “bona fide executive” in the FLSA, choosing instead to delegate that responsibility to the Secretary of Labor. 29 U.S.C. § 213(a)(1). The regulations define “bona fide executive” as an employee with supervisory duties who is paid on a salaried basis. 29 C.F.R. § 541.-1(f); 29 C.F.R. § 541.117(a). The employer bears the burden of showing that the exemption applies to the employees, Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974), and exemptions are to be narrowly construed in order to further Congress’s goal of providing broad federal employment protection. Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 211, 79 S.Ct. 260, 264, 3 L.Ed.2d 243 (1959). The plaintiffs concede the supervisory nature of their duties, but claim that they are not “bona fide executives” because they are not paid on a salaried basis. The test for whether an employee is paid “on a salary basis” is set out in 29 C.F.R. § 541.-118(a): An employee will be considered to be paid “on a salary basis” within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of varia tions in the quality or quantity of the work performed. Pursuant to specified exceptions, salaried status is not affected when deductions are made for absences of a day or more that occur either for personal reasons, or due to sickness if the deduction follows a disability plan. 29 C.F.R. § 541.118(a)(2) & (3). The" }, { "docid": "13688183", "title": "", "text": "(2d Cir.1983). B. Fair Labor Standards Act For employees covered under its provisions, the FLSA generally requires overtime compensation of one and one-half times the regular rate of pay for time worked in excess of forty hours per workweek. See 29 U.S.C. § 207(a)(1). Under, the FLSA’s enforcement provisions, employers violating the Act may be required to pay uncompensated overtime, together with civil penalties and liquidated damages. See 29 U.S.C. § 216. However, the FLSA exempts from its overtime requirements any salaried employee who works in a “bona fide executive, administrative or professional” capacity. 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.1-.3; Davis v. City of Hollywood, 120 F.3d 1178, 1179 (11th Cir.1997), reh. and pet. for reh. en banc denied sub nom, Davis v. Rowe, 131 F.3d 157 (1997), cert. filed, No. 97-1320 (Feb 11, 1998). In this case, defendant asserts that plaintiff, as an engineer, falls under the professional exemption. Because the FLSA is a remedial act, the Court must construe its exemptions narrowly. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991), cert. denied, Malcolm Pirnie, Inc. v. Martin, 506 U.S. 905, 113 S.Ct. 298, 121 L.Ed.2d 222 (1992). Defendant, as the employer, bears the burden of proving that an employee falls within an exempted category. Id. The FLSA does not define what type of employee constitutes a “bona fide” professional for whom the FLSA does not require overtime pay. However, the Department of Labor has enacted regulations that establish a two-pronged analysis for determining whether an employee is an exempt professional, consisting of what is referred to as a “duties” test and a “salary” test. See 29 C.F.R. §§ 541.3, 541.103, 541.118, 541.312. In order to qualify under an exempt category, an employee’s position must meet both the duties test and the salary test. Cooke v. General Dynamics Corp., 993 F.Supp. 56, 57 (D.Conn.1997). 1. Duties Test The duties test for the professional exemption concerns whether the nature of the employee’s duties are appropriately considered professional. See Meringolo v. City of New York, 908 F.Supp. 160, 164 (S.D.N.Y.1995) (analyzing analogous test for “executive” exemption)." }, { "docid": "16710650", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. The City of Omaha, Nebraska, appeals from summary judgment entered against it on claims filed by William C. McDonnell, Robert J. Warsocki, Michael Dineen, Don E. Brunken, and Verne Beers, all' assistant fire chiefs of the Omaha Fire Division. The chiefs sought a declaratory judgment that they were entitled to overtime wage benefits specified in sections 1-19 of the Fair Labor Standards Act. 29 U.S.C. §§ 201-219 (1988 and Supp. Ill 1991). The City contended that the chiefs were not entitled to these overtime benefits because the chiefs were employed in an executive or administrative capacity, and therefore, exempt from- the Act’s overtime provisions under 29 U.S.C. § 213(a)(1). The district court rejected this argument, applying regulations which establish a duties and salary test to determine whether an employee is a bona fide executive. See 29 C.F.R. § 541.1(a)-(f) (1991). The district court concluded that the City failed to meet the salary test because the chiefs’ pay was subject to reduction for absences of less than a day for personal reasons, sickness, or disability. On appeal, the City argues that the district court incorrectly applied the salary test, and that the mere possibility of salary reduction is insufficient to prevent an employee from being a salaried executive. We reverse and remand for entry of judgment in favor of the City. In general, the FLSA requires employers to pay overtime compensation for hours worked in excess of a 40-hour work week. See 29 U.S.C. § 207. The FLSA, however, exempts from overtime pay provisions “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). An employee may qualify for the executive exemption if the employee meets both the “duties” and “salary” requirements set forth in 29 C.F.R. § 541.1(a)-(f). The regulations define a “bona fide executive” as an employee with supervisory duties who is paid on a salaried basis. Id. The test for whether an employee is paid on “a salary basis” is set out at 29 C.F.R. § 541.118(a) (1991): An employee will be considered to be paid ‘on" }, { "docid": "20669346", "title": "", "text": "HATCHETT, Chief Judge: In this action based on the Fair Labor Standards Act, we affirm the district court’s ruling that the appellee avoided liability through the exercise of the “window of correction.” BACKGROUND On October 1, 1992, appellants, nineteen present and former management employees of appellee City of Hollywood (the City), filed this lawsuit pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., in the Southern District of Florida. Appellants alleged that the City willfully failed to pay them overtime as required under section 207(a)(1), which provides that covered employers must compensate their employees at a rate of at least time and one-half for all hours worked in excess of forty per week. 29 U.S.C. § 207(a)(1) (1994). Appellants sought unpaid overtime compensation, liquidated damages, attorneys’ fees and costs. The FLSA exempts from section 207(a)(1) any employee employed in a bona fide executive, administrative or professional capacity who receives payment on a salary basis. See 29 U.S.C. § 213(a)(1) (1994); 29 C.F.R. §§ 541.1-.3 (1995); see also Avery v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir.1994). An employee is considered paid “on a salary basis” if he or she “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his [or her] compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a) (1995). Thus, to claim exemption from the FLSA’s overtime pay requirements pursuant to section 213(a)(1), an employer must prove that the relevant employees meet two tests: the job duties test and the salary basis test. Appellants alleged in their complaint that they did not fall within this exemption because, among other things, (1) “their pay [was] subject to reductions for absences of part of a day”; and (2) the City “reduce[d] their accrued leave in hourly increments for partial day absences.” Upon appellants’ motion, the district court bifurcated this lawsuit, deciding to consider first the salary basis test issues. On May 2, 1995, in addressing appellants’ motion" }, { "docid": "16710651", "title": "", "text": "reasons, sickness, or disability. On appeal, the City argues that the district court incorrectly applied the salary test, and that the mere possibility of salary reduction is insufficient to prevent an employee from being a salaried executive. We reverse and remand for entry of judgment in favor of the City. In general, the FLSA requires employers to pay overtime compensation for hours worked in excess of a 40-hour work week. See 29 U.S.C. § 207. The FLSA, however, exempts from overtime pay provisions “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). An employee may qualify for the executive exemption if the employee meets both the “duties” and “salary” requirements set forth in 29 C.F.R. § 541.1(a)-(f). The regulations define a “bona fide executive” as an employee with supervisory duties who is paid on a salaried basis. Id. The test for whether an employee is paid on “a salary basis” is set out at 29 C.F.R. § 541.118(a) (1991): An employee will be considered to be paid ‘on a salary basis’ within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he per forms any work without regard to the number of days or hours worked. The primary function of assistant fire chief is to serve as the administrative and supervisory head of the fire division. The chiefs supervise between 10 and 200 individuals and participate in hiring, firing, and promotional decisions. The chiefs admit the supervisory nature of their duties. The chiefs claim that they do not qualify as bona fide executives because they are not paid on a salaried basis. The city pays the chiefs (on a bi-weekly basis) an annual salary of $56,114 or more. The City has determined" }, { "docid": "22884544", "title": "", "text": "REINHARDT, Circuit Judge: At issue in the instant appeal is whether employees whose pay is subject to deduction for absences of less than a day are paid “on a salary basis” according to the regulations implementing the Fair Labor Standards Act. We conclude that they are not, and that therefore such employees are not “bona fide executives” exempt from the protections of the Act. Appellants, Battalion Chiefs in the Kern County Fire Department (“Department”), brought a class action against Kern County (“County”) seeking back overtime pay plus interest allegedly due them under the overtime provisions of the Fair Labor Standards Act (“FLSA” or “Act”), 29 U.S.C. § 201, et. seq. (1982), as amended, Pub.L. 99-150 (1985). The FLSA requires employers to provide overtime compensation for hours worked in excess of a prescribed work week. 29 U.S.C. § 207. Under the Act, however, “bona fide executives” are exempt from the FLSA’s overtime provisions. 29 U.S.C. § 213(a)(1). After a bench trial, the district court ruled that the Battalion Chiefs are “bona fide executives” and are therefore not entitled to relief. The Battalion Chiefs appeal. We reverse. The administrative regulations promulgated pursuant to the FLSA establish a “duties test” and a “salary test” for determining whether an employee is a “bona fide executive.” See 29 C.F.R. § 541.1(a-e) (1988); 29 C.F.R. § 541.1(f) (1988). Generally, in order to claim an exemption, an employer must prove that the employee meets both tests. Here, the district court concluded that the Battalion Chiefs met both. In the alternative, the court ruled that the salary test does not apply to the Battalion Chiefs. It based this conclusion on a Department of Labor letter ruling which held that the salary test is inapplicable to persons covered by a state or local law that precludes payment of regular compensation to absent public employees. Because we find that the court erred both in concluding that the appellants met the salary test and in determining in the alternative that the salary test is inapplicable, we need not decide whether appellants satisfy the criteria set out in the duties test. The" }, { "docid": "6101232", "title": "", "text": "OPINION BRUGGINK, Judge. This overtime pay dispute is before the court on the parties’ cross-motions for summary judgment. The motions have been fully briefed and argued, and are ready for disposition. For the reasons set forth below, both motions are denied. BACKGROUND Plaintiffs are or were approximately 300 “Supervisory Border Patrol Agents” and “Supervisory Aircraft Pilots” employed by the U.S. Border Patrol at grades ranging from GS-11 to GS-14. They worked an unknown amount of overtime but were not paid for it because defendant considers “Supervisory Border Patrol Agents” and “Supervisory Aircraft Pilots” to be exempt from the Fair Labor Standard Act’s overtime pay requirements because they are “executives.” The Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. §§ 201-219 (West Supp.1997), requires an employer, including the federal government, to compensate an employee for overtime work at a rate of at least one-and-one-half times the employee’s regular rate of pay. Id. § 207(a). However, “bona fide executive, administrative, or professional” employees are exempt from the FLSA’s overtime provisions. Id. § 213(a). The Department of Labor (“DoL”) is primarily responsible for administering FLSA. See id. § 204. But in the case of most federal employees, including plaintiffs, the statute is administered by the Office of Personnel Management (“OPM”). See id. §§ 204(f), 213(a). Plaintiffs maintain that if DoL regulations were applied to them instead of OPM regulations, they would be considered exempt from FLSA’s overtime pay requirements. In order for a position to be exempt under DoL regulations defining executives, an employee must, among other things, be paid on a salary basis. See 29 C.F.R. pt. 541 (1997). This means the employee must receive “on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). The salary-basis test is further refined to permit certain penalty deductions from pay as consistent with salaried employment, but disallow others. Consistent with salaried status, employees may be suspended without pay for “infractions of safety rules of major" }, { "docid": "14696050", "title": "", "text": "of Columbia or any Territory or possession of the United States). The FLSA provides that covered employees shall receive overtime compensation for a workweek longer than forty hours “at a rate not less than one and one half times the regular rate at which he is employed.” Id. § 207(a)(1). There are, however, a series of exemptions from the coverage of the Act’s overtime provisions, including one for “any employee employed in a bona fide executive, administrative, or professional capacity ... (as such terms are defined and delimited from time to time by the regulations of the Secretary____)” Id. § 213(a)(1). In the regulations issued by the Secretary of Labor under the Act, the definition of a bona fide executive, administrative, or professional employee includes a requirement that the employee be compensated “on a salary basis.” The regulations provide the following definition of a “salary basis”: An employee will be considered to be paid “on a salary basis” within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid in any workweek in which he performs no work. 29 C.F.R. § 541.118(a) (1987). Among the exceptions to this general policy, deductions are permitted for absences from work for more than a day for personal reasons or in cases of sickness or disability if the deductions are made in accordance with a “bona fide plan policy or practice of providing compensation for loss of salary occasioned by both sickness and health.” III Plaintiffs apparently concede that the majority of the District’s leave policy does not violate these provisions. Specifically, the plaintiffs agree" }, { "docid": "7854443", "title": "", "text": "POLLACK, Senior District Judge: PRELIMINARY This case arises under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA” or “the Act”). The Act requires public law enforcement agencies to provide overtime compensation to their employees for hours worked in excess of a prescribed work week. 29 U.S.C. § 207(a)(1), (k). Plaintiffs-appellants, a Detective Lieutenant, two Detective Sergeants, and a Sergeant, are employees of a public law enforcement agency. Unless exempted under the FLSA, they are entitled to receive overtime pay for the hours that they have worked in excess of their prescribed work period. The Act exempts from the FLSA’s overtime compensation provisions “any employee in a bona fide executive, administrative, or professional capacity ... as such terms are defined and delimited ... by regulations of the Secretary [of Labor].” 29 U.S.C. § 213(a)(1). The Secretary of Labor’s regulations provide that an employee qualifies for the “bona fide executive” exemption if the employee satisfies a “duties” test and is paid on a “salary basis.” 29 C.F.R. § 541.1. Appellants concede that they perform the duties of an “ ‘employee employed in a bona fide executive ... capacity.’ ” Id. § 541.1(a)-(e) (quoting 29 U.S.C. § 213(a)(1)). Therefore, if appellants are compensated on a salary basis, as defined by 29 C.F.R. § 541.118, they are not entitled to overtime compensation under the FLSA. Appellants commenced a civil rights action in the district court pursuant to the FLSA, 29 U.S.C. § 201 et seq., alleging that they are entitled to overtime compensation. Plaintiffs moved for partial summary judgment on the issues of liability, statute of limitations, and liquidated damages pursuant to Fed.R.Civ.P. 56. The defendant moved for summary judgment dismissing plaintiffs’ complaint in its entirety. On December 8, 1997, the district court issued a written Memorandum and Order granting defendant’s motion for summary judgment and dismissing appellants’ complaint in its entirety. Judgment dismissing the complaint in its entirety was entered on December 9, 1997. This appeal ensued. BACKGROUND According to the Department of Labor’s regulations, [a]n employee will be considered to be paid “on a" }, { "docid": "7972647", "title": "", "text": "FLSA was enacted to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). To further that goal, the FLSA requires employers to pay employees overtime pay for working more than forty hours in a workweek. § 207(a)(1). However, an employee is exempt from the overtime requirements if she is employed in an administrative capacity, as defined by the Secretary of Labor. § 213(a)(1). Transameriea has the burden to prove McAlister is exempt from overtime compensation. Fife v. Harmon, 171 F.3d 1173, 1174 (8th Cir.1999). In its implementing regulations, the DOL created a long test and a short test to determine whether an employee is em ployed in an administrative capacity. See 29 C.F.R. § 541.2. As the district court properly recognized, McAllister’s position must be analyzed under the short test. See §§ 541.2(e)(2), 541.214(a). Under the short test, Transamerica must prove the following: (1) McAllister was paid on a salary basis of at least $250 per week; (2) McAllister’s primary duty consisted of the performance of office work “directly related to management policies or general business operations of the employer or the employer’s customers”; and (3) McAllis-ter’s performance of such primary duty included “work requiring the exercise of discretion and independent judgment.” § 541.214(a). 1.Salary Basis Transamerica must first prove it paid McAllister on a salary basis of at least $250 per week. §§ 541.2(e)(2), 541.214(a). McAllister was paid on a salary basis if she regularly received a predetermined amount of pay, which constituted all or part of her compensation, and was not subject to reduction based on the quality or quantity of the work she performed. §§ 541.118(a), 541.212. In 1999, McAllister’s annual salary exceeded $40,000, which was paid in semimonthly payments of $1873.18 and was all or part of her compensation. On appeal, McAllister argues she was not paid on a salary basis because she was required to work “overtime.” But Trans-america never disciplined her or docked her pay for missing work, or even threatened her with a dock in pay" } ]

[ { "docid": "2574427", "title": "", "text": "Union Oil. In Kiefer-Stewart a refusal to sell at a fixed price was met by a concerted refusal to deal. In Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), the retailer was confronted with minimum or maximum prices and harassed by his supplier and others if he stepped out of line. Taken together, these cases suggest that a case of illegal resale price maintenance is made out when a price is announced and some course of action is undertaken or threatened contingent on the willingness or unwillingness of the retailer to adopt the price. The action need not necessarily fit under the rubric “coercion”, but it must involve making a meaningful event depend on compliance or non-compliance with the “suggested” or stated price. The dealers in Parke, Davis and Albrecht were told that the harassment directed against them would end as soon as they acceded to the manufacturer’s price desires. The cancellation of the lease in Simpson was a direct consequence of the refusal to charge the manufacturer’s desired price. The other cases adhere to the same pattern. Cf. Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir.), cert. denied 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972); Bowen v. New York News, Inc., 366 F.Supp. 651 (S.D.N.Y.1973). The dealings between Butera and Sun do not fit within the foregoing pattern. Sun has done nothing, and has threatened nothing, contingent on Butera’s adherence to the suggested resale price. MRCA is applied regardless of Butera’s own pricing policies. There is no semblance between this case and one such as Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), in which competitive allowances were granted to beer wholesalers upon the implicit (and sometimes explicit) promise that the discounts would be “passed on” to retailers and in turn to consumers. Nor is there any to Lehrman, in which “adherence to a suggested price schedule was the quid pro quo for Lehrman’s receiving Gulf’s” competitive allowances." } ]

[ { "docid": "8633349", "title": "", "text": "California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), termination or threats of termination, Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164 (3d Cir.1979); Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.) cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964), or the agreements were horizontal. Arizona v. Maricopa County Medical Society, supra, 457 U.S. at 348, 102 S.Ct. at 2475, 73 L.Ed.2d 48. In the instant case, Mack simply determines the maximum amount, based on the information supplied to Mack by the dealer, by which Mack is willing to reduce its wholesale price (and thereby its profit) in order to assist the dealer in selling a Mack truck. In granting such a discount, Mack may require the dealer to reduce its own profit as well. Mack has a right to ensure that the discount it affords its dealers is passed on to the customer. We cannot accept Lewis’ argument that Mack must lower its wholesale price to a figure Lewis deems attractive without requiring a commensurate reduction on Lewis’ part. Finally, we note that the record shows that Lewis made a substantial amount of its sales to large volume fleet customers, who purchased several trucks at once. When sales of a large volume are involved, wholesalers and dealers must often be willing to lower their profit margins in order to meet competitive offers from other companies. We fail to see how a trier of fact could find such a program to be coercive price fixing. In support of our holding, we note that the Tenth Circuit has recently rejected the argument that a per se rule should have been applied to a vertical price discount system similar to the one involved here. In AAA Liquors, Inc. v. Joseph E. Seagram and Sons, Inc., 705 F.2d 1203, 1204 (10th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983), a group of small liquor retailers contended that Seagram’s program, by which it gave price supports to a Denver wholesaler who in" }, { "docid": "11001707", "title": "", "text": "this case did not settle, it would drag on for years as the parties conducted discovery throughout the country. Attorneys’ fees would escalate exponentially and could potentially reduce the amounts that the defendants would pay in settlement. The trial would be lengthy and complex because of the nationwide scope of the alleged activities. While the plaintiffs assert they have a strong case, the defendants deny that the facts and the law would permit recovery. In particular, the defendants contend that there was no coercion in this case and that, in any event, the pricing policies at issue did not have an effect on prices. The defendants rely on the permissible scope of conduct under cases such as United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), and Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). “Under Colgate, the manufacturer can announce its resale prices in advance and refuse to deal with those who fail to comply. And a distributor is free to acquiesce in the manufacturer’s demand in order to avoid termination.” Monsanto, 465 U.S. at 761, 104 S.Ct. at 1469. The fact that the retailer conformed to the manufacturer’s suggested price is not proof that the manufacturer unlawfully “agreed” with a retailer on the prices the retailer would charge. See id. at 764 n. 9, 104 S.Ct. at 1471 n. 9 (“The concept of a ‘meeting of the minds’ or ‘a common scheme’ in a distributor-termination case includes more than a showing that the distributor conformed to the suggested price.”); The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1154 (9th Cir.1988); Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1164 (7th Cir.1987), cert. denied, 486 U.S. 1005, 108 S.Ct. 1728, 100 L.Ed.2d 193 (1988). As Judge Posner has explained: [T]he mere fact of adherence to suggested retail prices does not establish agreement to adhere to them. If adherence alone could prove an agreement to adhere, the Colgate privilege — which allows a supplier to “coerce” the dealers’ adherence by threatening to cut" }, { "docid": "11001708", "title": "", "text": "free to acquiesce in the manufacturer’s demand in order to avoid termination.” Monsanto, 465 U.S. at 761, 104 S.Ct. at 1469. The fact that the retailer conformed to the manufacturer’s suggested price is not proof that the manufacturer unlawfully “agreed” with a retailer on the prices the retailer would charge. See id. at 764 n. 9, 104 S.Ct. at 1471 n. 9 (“The concept of a ‘meeting of the minds’ or ‘a common scheme’ in a distributor-termination case includes more than a showing that the distributor conformed to the suggested price.”); The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1154 (9th Cir.1988); Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1164 (7th Cir.1987), cert. denied, 486 U.S. 1005, 108 S.Ct. 1728, 100 L.Ed.2d 193 (1988). As Judge Posner has explained: [T]he mere fact of adherence to suggested retail prices does not establish agreement to adhere to them. If adherence alone could prove an agreement to adhere, the Colgate privilege — which allows a supplier to “coerce” the dealers’ adherence by threatening to cut him off if he doesn’t adhere, and which was strongly reaffirmed in Monsanto ... would be nugatory_ If a manufacturer distributes a price list, together with an announcement that he will cut off dealers who sell below the list prices, and dealers adhere to those prices because they don’t want to be cut off, there is a realistic sense in which the threat of termination has induced the dealers to agree not to cut prices — to agree, in other words, to fix prices. That is the argument against Colgate. Monsanto rejects it. Isaksen, 825 F.2d at 1164. The States’ case, therefore, would necessarily be risky, and, in any event, would require lengthy and expensive discovery and trial. As Judge Haight explained in approving the settlement in the Keds case, in words which are equally applicable here: In the case at bar, [the defendant] has contended from its inception that its suggested retail pricing policy, with only the most limited exceptions, constituted unilateral and consequently lawful conduct under Colgate and its progeny. Plaintiffs would have" }, { "docid": "8633350", "title": "", "text": "figure Lewis deems attractive without requiring a commensurate reduction on Lewis’ part. Finally, we note that the record shows that Lewis made a substantial amount of its sales to large volume fleet customers, who purchased several trucks at once. When sales of a large volume are involved, wholesalers and dealers must often be willing to lower their profit margins in order to meet competitive offers from other companies. We fail to see how a trier of fact could find such a program to be coercive price fixing. In support of our holding, we note that the Tenth Circuit has recently rejected the argument that a per se rule should have been applied to a vertical price discount system similar to the one involved here. In AAA Liquors, Inc. v. Joseph E. Seagram and Sons, Inc., 705 F.2d 1203, 1204 (10th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983), a group of small liquor retailers contended that Seagram’s program, by which it gave price supports to a Denver wholesaler who in turn offered discounts to large volume Denver liquor stores in order to increase Seagram’s share of the market, constituted per se illegal price fixing under section one. Noting that “all vertical arrangements affecting price do not constitute resale price maintenance agreements,” the court held that Seagram’s system was neither per se unlawful nor violative of the rule of reason. Id. at 1205, 1207-08. The court found that even though Seagram guaranteed a gross profit margin to its wholesaler, as well as conditioning its discounts on the requirement that they be passed on to the customer, Seagram did not “fix” the retail prices. Seagram neither “coerced [the retailers] into offering a particular price [nor] punished [them] if they did not.” Id. at 1207. The court also stated: A supplier who grants discounts to a retailer to permit the retailer to charge competitive prices has a legitimate interest in making sure the retailer receiving the discount “is not pocketing the price support instead of passing it on to its customers.” [Id. at 1206 (citations omitted) ]. This" }, { "docid": "19698658", "title": "", "text": "desired by Crown. The provisions in question, added to Crown’s standard lease after these suits were filed and after careful discussion with counsel, represent a studied effort to find a means whereby Crown might continue, without offending the anti-trust laws, its basic policy of pressuring dealers to fix the retail prices which it deems appropriate. This new approach, like the old, must fail. Innovative devices employed by inventive businessmen to circumvent the Sherman Act must be subjected to close scrutiny. Pearl Brewing Co. v. Anheuser-Busch, Inc., supra at 952; Lehrman v. Gulf Oil Corp., 464 F.2d 26, 37 (5th Cir. 1972). The overall effect here of these provisions of the new Lease is as repressive as other coercive measures employed by Crown. Any rise in the retail price automatically increases a dealer’s wholesale price, thus restricting the dealer’s margin of profit. Furthermore, any such increase in the retail price might be expected to have the short-term effect of decreasing weekly gallonage figures, subjecting the dealer to the risk of immediate notice of cancellation. Dealers who sign the new Lease are hardly free to sell in accordance with their own un fettered judgment. See Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, supra 340 U.S. at 213, 71 S.Ct. 259. By the use of the provisions in question, Crown is employing “other means which effect adherence” to its policy of setting retail prices for its dealers. United States v. Parke Davis & Co., supra 362 U.S. at 44, 80 S.Ct. 503. That Crown has been firmly committed to a policy of fixing the prices of its dealers is shown by events which occurred even after these suits were filed. The evidence indicates that as late as August 1973, District Manager Gillespie pressured dealers Horner and O’Hara to conform to Crown’s “suggested” retail prices. Such persistent conduct further indicates Crown’s continuing desire, even after such right was challenged in this Court, to control its dealers’ retail prices because of the basic importance of such prices to its financial planning and other business decisions. The evidence also shows that Crown fixed the retail" }, { "docid": "14432298", "title": "", "text": "distributor “ ‘is not pocketing the price support instead of passing it on.’ ” AAA Liquors, 705 F.2d at 1206 (quoting Lehrman v. Gulf Oil Corp., 464 F.2d 26, 40 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972)). Other courts, as well as the court below, have concluded that a manufacturer should be allowed to implement reasonable procedures to ensure that the discount is, in fact, passed along to the retailer. See Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 708 (7th Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984). Provided it is established that Canada Dry’s distributors voluntarily elect to take part in promotions, we would agree with the district court that requiring them to (1) sell Canada Dry promotional products at a price equal to the suggested wholesale price less the discount, and (2) obtain retailers’ signatures on invoices to document their receipt of the discount may be found to be reasonable and permissible ways for Canada Dry— which is paying for the discounts — to ensure that its distributors pass these along to the retailers. The district court determined that Canada Dry’s policy of requiring its distributors to obtain retailers’ signatures on pre-printed invoices that disclose Canada Dry’s suggested wholesale prices on non-promotional soft drink items does not constitute the coercion necessary to trigger a § 1 violation. The court noted that it is well established that the “antitrust laws do not prohibit the undoubtedly persuasive conduct of a manufacturer suggesting a price ... for which the product should be available.” Martindell v. News Group Publications, Inc., 621 F.Supp. 672, 678 (E.D.N.Y.1985) (citing Jack Walters & Sons Corp., 737 F.2d at 707 (“[I]t is perfectly lawful for a manufacturer to advertise his product to the ultimate consumer, whether or not he sells directly to the consumer, and to mention in that advertising the retail price of the product-the only price the consumer is interested in.”)); Belfiore, 654 F.Supp. at 852 (“Advertising of discount prices does not constitute coercion by a supplier even" }, { "docid": "9437894", "title": "", "text": "agreement is the relinquishment by a trader ... of the freedom to set prices in accordance with his own judgment.” Chisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1142 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974). Although a supplier may suggest a resale price, see, e.g., United States v. Parke, Davis & Co., 362 U.S. 29, 43-46, 80 S.Ct. 503, 511-512, 4 L.Ed.2d 505 (1960), the supplier may not coerce the seller’s adherence to that suggested price, see, e.g., Simpson v. Union Oil Co., 377 U.S. 13, 17, 84 S.Ct. 1051, 1054, 12 L.Ed.2d 98 (1964); Yentsch v. Texaco, Inc., 630 F.2d 46, 52-55 (2d Cir.1980); Santa Clara Valley Distributing Co. v. Pabst Brewing Co., 556 F.2d 942, 945 (9th Cir.1977); cf. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 605, 73 S.Ct. 872, 878, 97 L.Ed. 1277 (1953) (tying arrangements condemned because they “coerce[ ] ... abdication of buyers’ independent judgment”). Here, no coercion was present. The small retailers do not contest the trial court’s finding that Midwest initiated the discount program and voluntarily sought Seagram’s financial support. They attack the court’s finding, that Midwest retained independent pricing judgment by pointing out that Seagram required the discounts given to Midwest to be passed through to the retailers. The small retailers rely upon Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), a ease quite similar to that before us, which held that conditioning a price reduction on an agreement by the recipient to reduce its price imposes restrictions on the recipient’s freedom of decision, and thus constitutes unlawful price fixing. In Pearl Brewing, the court declared that the testimony of the individual wholesalers supported a conclusion that the brewer predetermined the wholesaler’s exact price to the retailer and the retailer’s exact price to the public, 339 F.Supp. at 957-58, a conclusion the trial judge did not make in the case before us. Furthermore, we do not agree with the conclusion in Pearl Brewing. A supplier who grants discounts to a retailer to permit the retailer to" }, { "docid": "23186765", "title": "", "text": "true indicate that Morton went beyond simply announcing its policy and terminating noncompliers, and used persuasion and policing to obtain that compliance, as in Yentsch v. Texaco, Inc., 630 F.2d 46, 49-55 (2d Cir.1980). See also Monsanto Co. v. Spray-Rite Service Corp., — U.S, -, 104 S.Ct. 1464, 1471-73, 79 L.Ed.2d 775 (1984). But there is a more fundamental ground, alluded to by the special master, which requires that we uphold the dismissal of this part of the complaint. Walters concedes as it must that it is perfectly lawful for a manufacturer to advertise his product to the ultimate consumer, whether or not he sells directly to the consumer, and to mention in that advertising the retail price of the product — the only price the consumer is interested in. The law of products liability has come to recognize what economists and businessmen have long known — that manufacturers are in a direct economic relationship with the ultimate consumers of their products even if they are not in privity with them. See, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 412-16, 161 A.2d 69, 99-101 (1960). This insight cannot be limited to tort law. The demand for a manufacturer’s product depends significantly on the retail price; the lower that price is (other things being equal), the more his product will be demanded by consumers and therefore by the dealers who are his immediate purchasers. Hence the manufacturer has a vital interest in the retail price. Maybe that interest is not great enough to allow him to place a cap on the retail price but Walters concedes that it is great enough to allow the manufacturer to advertise a retail price. This concession is very damaging to Walters. If it is lawful to advertise a retail price, it should be lawful to take at least the minimum steps necessary to make that advertising beneficial. It would be pretty embarrassing for a manufacturer who had advertised a special retail price to be bombarded by complaints from consumers that dealers were refusing to sell to them at that price. Such refusals would" }, { "docid": "22333782", "title": "", "text": "787 F. 2d 1197, 1201-1203 (1986); Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F. 2d 698, 708-709, cert. denied, 469 U. S. 1018 (1984). We assume, arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule. Albrecht is the only case in which the Court has confronted an unadulterated vertical, maximum-price-fixing arrangement. In Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211, 213 (1951), we also suggested that such an arrangement was illegal because it restricted vigorous competition among dealers. The restraint in Kiefer-Stewart had an additional horizontal component, however, see Arizona v. Maricopa County Medical Society, 457 U. S. 332, 348, n. 18 (1982), since the agreement was between two suppliers that had agreed to sell liquor only to wholesalers adhering to “maximum prices above which the wholesalers could not resell.” Kiefer-Stewart, supra, at 212. The Court of Appeals implied that the antitrust injury requirement could be satisfied by a showing that the “long-term” effect of the maximum-price agreements could be to eliminate retailers and ultimately to reduce competition. 859 F. 2d, at 694, 696. We disagree. Rivals cannot be excluded in the long run by a nonpredatory maximum-price scheme unless they are relatively inefficient. Even if that were false, however, a firm cannot claim antitrust injury from nonpredatory price competition on the asserted ground that it is “ruinous.” Cf. United States v. Topco Associates, Inc., 405 U. S. 596, 610-612 (1972); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 220-221 (1940). “[T]he statutory policy precludes inquiry into the question whether competition is good or bad.” National Society of Professional Engineers v. United States, 435 U. S. 679, 695 (1978). The Court of Appeals erred by reasoning that respondent satisfied the antitrust injury requirement by alleging that “[t]he removal of some elements of price competition distorts the markets, and harms all the participants.” 859 F. 2d, at 694. Every antitrust violation can be assumed to “disrupt” or “distort” competition. “[Ojtherwise, there would be no violation.” P. Areeda & H. Hovenkamp, Antitrust Law ¶" }, { "docid": "22366280", "title": "", "text": "violation of § 1 of the Sherman Act. See Monsanto Co. v. Spray-Rite Service Corp., — U.S. —, —, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); Albrecht v. Herald Co., 390 U.S. 145, 151-53, 88 S.Ct. 869, 872-73, 19 L.Ed.2d 998 (1968); United States v. Parke, Davis & Co., 362 U.S. 29, 47, 80 S.Ct. 503, 513, 4 L.Ed.2d 505 (1960); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 213, 71 S.Ct. 259, 260, 95 L.Ed. 219 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). See also ABA Antitrust Section, Antitrust Law Developments 2d, 64 (1984). The practice is unlawful because it restricts the freedom of traders who are at lower levels of the product or service distribution system to set their own prices. See Kiefer-Stewart, 340 U.S. at 213, 71 S.Ct. at 260; AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1205 (10th Cir.1982). Establishing a per se violation of the Sherman Act in a private action brought under a vertical price fixing theory requires proof of four elements. First, the defendant must have intended to fix prices charged by traders at lower levels in the distribution system. See Monsanto Co., 104 S.Ct. at 1471; Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), aff'g 478 F.Supp. 243, 259 (E.D.Pa.1979); Mowery v. Standard Oil Company of Ohio, 463 F.Supp. 762, 767 (N.D.Ohio 1976), aff'd., 590 F.2d 335 (6th Cir.1978). Second, the defendant must have coerced the plaintiff into charging higher or lower prices. See AAA Liquors, 705 F.2d at 1206; Carlson Machine Tools, Inc. v. American Tool, Inc., 678 F.2d 1253, 1261 (5th Cir.1982); Yentsch v. Texaco, Inc., 630 F.2d 46, 52-54 (2d Cir.1980); Santa Clara Valley Distributing Co., Inc., v. Pabst Brewing Co., 556 F.2d 942, 945 (9th Cir.1977); Hanson v. Shell Oil Co., 541 F.2d 1352, 1356 (9th Cir.1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977); Antitrust Law Developments, at 60. Third," }, { "docid": "7619891", "title": "", "text": "Revlon, Inc., 483 F.2d 953, 954 (2d Cir.1973) (per curiam). So it becomes important.to inquire whether Vogel has a good chance, not just some chance, of winning this suit. In considering his chances, we need not assess the boycott allegations separately. A boycott is illegal per se under the antitrust laws only if used to enforce a rule or policy or practice that is itself illegal per se. See Wilk v. American Medical Ass’n, 719 F.2d 207, 221 (7th Cir.1983); Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 859-60 (1st Cir.1982); United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1367-69 (5th Cir.1980). In the Supreme Court’s first case holding that a boycott was illegal per se, Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490 (1914), an association of lumber retailers had blacklisted wholesalers who had the temerity to compete with the members of the association by selling directly to consumers (that is, to the retailers’ customers). The boycott was a method of enforcing a patently anticompetitive horizontal conspiracy and therefore was itself illegal per se. But if a rule of a private association is not illegal per se, neither is the enforcement of the rule, see Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Ass’n, Inc., 672 F.2d 1280, 1285-89 (7th Cir.1982), as by expelling a noncomplying member — the normal method by which a private association enforces its rules. If the bylaw forbidding members of the American Society of Appraisers to charge for appraisal on a fixed-percentage basis is a form of price fixing, it is illegal per se and Vogel, as a victim of illegal price fixing and an illegal boycott, would be entitled to reinstatement. It is not hard to find judicial statements to the effect that any interference with price brought about by an agreement between competitors is illegal price fixing. The best-known example is United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221, 60 S.Ct. 811, 843, 84 L.Ed. 1129 (1940): “Any combination which tampers with price structures is engaged" }, { "docid": "14432295", "title": "", "text": "in reaching this conclusion. To be sure, in Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), the Supreme Court held “that a vertical, maximum-price-fixing scheme was unlawful per se under § 1 of the Sherman Act because it threatened to inhibit vigorous competition by the dealers bound by it and because it threatened to become a minimum-price-fixing scheme.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 335, 110 S.Ct. 1884, 1889, 109 L.Ed.2d 333 (1990) (assuming, “arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule”). Nevertheless, not all vertical arrangements affecting price constitute resale price maintenance agreements that violate § 1 of the Sherman Act. See AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1205 (10th Cir.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). “The combination required under Section 1 must be demonstrated by proof of: (1) an express or implied agreement, or (2) the securing of actual adherence to prices by means beyond mere refusal to deal.” Belfiore v. New York Times Co., 654 F.Supp. 842, 851 (D.Conn.1986), aff'd, 826 F.2d 177, 181 (2d Cir.1987) (“ ‘[A] supplier may not use coercion on its retail outlets to achieve resale price maintenance.”’ (quoting Simpson v. Union Oil Co., 377 U.S. 13, 17, 84 S.Ct. 1051, 1054, 12 L.Ed.2d 98 (1964))), cert. denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988); accord Yentsch v. Texaco, Inc., 630 F.2d 46, 52 (2d Cir.1980) (“[Coercion that achieves actual price-fixing is illegal.”). Evidence of pricing suggestions, persuasion, conversations, arguments, exposition, or pressure is not sufficient to establish the coercion necessary to transgress § 1 of the Sherman Act. Yentsch, 630 F.2d at 53; Belfiore, 654 F.Supp. at 851. Rather, evidence of threats of termination or other explicitly coercive conduct that secure adherence to fixed prices is what supports “a finding of an illegal combination.” Yentsch, 630 F.2d at 53; see Belf-iore, 654 F.Supp. at 851. There is evidence in the record to indicate that Canada Dry" }, { "docid": "23186759", "title": "", "text": "the consuming public and mentioned special prices at which consumers could buy the buildings from dealers such as Walters, listing them by name. Morton gave dealers a discount from the wholesale price to make it easier for the dealers to offer consumers the special retail price that Morton had advertised. It was important to Morton that dealers not charge a higher price than the advertised price, because if they did Morton’s advertising would lack credibility — indeed, would be deceptive and create ill will. So, according to Walters’ affidavits, Morton took various steps to see that its dealers sold its buildings at no more than the advertised price. These steps included threatening the dealers with termination if they went above that price, offering if they did to sell directly to the public at the advertised price, and checking up on the dealers to see whether they were charging more. Walters also charges that Morton made it hard for the dealers to comply with its desire that they sell at the advertised price by giving them a smaller discount from the wholesale price than the difference between the regular retail price and the advertised price. The usual form of resale price maintenance, the form that invited condemnation from the Supreme Court in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911), involves setting a minimum price below which dealers may not sell rather than a maximum price above which they may not sell. It is minimum price fixing that creates the analogy to a dealers’ cartel upon which the per se rule against resale price maintenance rests. Although Al-brecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), extended the rule of Dr. Miles to a scheme of maximum resale price maintenance, the continued vitality of Albrecht is in doubt after Continental T.V., Inc. v. GTE Sylvania Inc., supra, held that assigning dealers exclusive territories is not unlawful per se. The newspaper dealers in Albrecht had exclusive territories, and putting a ceiling on their prices" }, { "docid": "23186764", "title": "", "text": "is price fixing. The special master thought that Morton’s efforts to compel its dealers to comply with the advertised price, and the dealers’ responses, did not create an agreement to adhere to that price; and without agreement there can be no violation of section 1 of the Sherman Act. The picture painted by Walters’ affidavits is one not of agreement but of Morton’s unsuccessful efforts to force Walters to agree. However, Supreme Court pronouncements which appear still to be authoritative despite the considerable changes in the Court’s interpretation of the antitrust laws in recent years indicate that when a seller goes beyond announcing a policy of refusing to deal with price cutters (or in this case price gougers) and of cutting off those dealers who do not comply with the announced policy, it has, for section 1 purposes, conspired with any dealer who complies with the policy. See, e.g., United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). Here some dealers did comply; and Walters’ affidavits if true indicate that Morton went beyond simply announcing its policy and terminating noncompliers, and used persuasion and policing to obtain that compliance, as in Yentsch v. Texaco, Inc., 630 F.2d 46, 49-55 (2d Cir.1980). See also Monsanto Co. v. Spray-Rite Service Corp., — U.S, -, 104 S.Ct. 1464, 1471-73, 79 L.Ed.2d 775 (1984). But there is a more fundamental ground, alluded to by the special master, which requires that we uphold the dismissal of this part of the complaint. Walters concedes as it must that it is perfectly lawful for a manufacturer to advertise his product to the ultimate consumer, whether or not he sells directly to the consumer, and to mention in that advertising the retail price of the product — the only price the consumer is interested in. The law of products liability has come to recognize what economists and businessmen have long known — that manufacturers are in a direct economic relationship with the ultimate consumers of their products even if they are not in privity with them. See, e.g., Henningsen v." }, { "docid": "9437895", "title": "", "text": "the trial court’s finding that Midwest initiated the discount program and voluntarily sought Seagram’s financial support. They attack the court’s finding, that Midwest retained independent pricing judgment by pointing out that Seagram required the discounts given to Midwest to be passed through to the retailers. The small retailers rely upon Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), a ease quite similar to that before us, which held that conditioning a price reduction on an agreement by the recipient to reduce its price imposes restrictions on the recipient’s freedom of decision, and thus constitutes unlawful price fixing. In Pearl Brewing, the court declared that the testimony of the individual wholesalers supported a conclusion that the brewer predetermined the wholesaler’s exact price to the retailer and the retailer’s exact price to the public, 339 F.Supp. at 957-58, a conclusion the trial judge did not make in the case before us. Furthermore, we do not agree with the conclusion in Pearl Brewing. A supplier who grants discounts to a retailer to permit the retailer to charge competitive prices has a legitimate interest in making sure the retailer receiving the discount “is not pocketing the price support instead of passing it on to consumers.” Lehrman v. Gulf Oil Corp., 464 F.2d 26, 40 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972); cf. Sun Oil Co. v. FTC, 294 F.2d 465, 483-84 (5th Cir.1961) (suggesting that supplier may be in violation of price discrimination proscriptions if it grants price support to a retailer who does not lower its prices correspondingly), rev'd on other grounds, 371 U.S. 505, 83 S.Ct. 358, 9 L.Ed.2d 466 (1963). We see no meaningful distinction between the instant situation and one in which during a gasoline price war a wholesaler seeks support from its supplier, who gives such support conditioned upon the wholesaler passing it on to the retailer who is seeking to meet competition. Cf. Butera v. Sun Oil Co., 496 F.2d 434 (1st Cir.1974) (holding that discounts suppliers give retail outlets to permit them to meet local competition are not" }, { "docid": "23186766", "title": "", "text": "Bloomfield Motors, Inc., 32 N.J. 358, 412-16, 161 A.2d 69, 99-101 (1960). This insight cannot be limited to tort law. The demand for a manufacturer’s product depends significantly on the retail price; the lower that price is (other things being equal), the more his product will be demanded by consumers and therefore by the dealers who are his immediate purchasers. Hence the manufacturer has a vital interest in the retail price. Maybe that interest is not great enough to allow him to place a cap on the retail price but Walters concedes that it is great enough to allow the manufacturer to advertise a retail price. This concession is very damaging to Walters. If it is lawful to advertise a retail price, it should be lawful to take at least the minimum steps necessary to make that advertising beneficial. It would be pretty embarrassing for a manufacturer who had advertised a special retail price to be bombarded by complaints from consumers that dealers were refusing to sell to them at that price. Such refusals would make the advertising misleading and might even expose the manufacturer to legal sanctions under the Federal Trade Commission Act or counterpart state regulations. So if retail price advertising by manufacturers is to be feasible the manufacturer must be allowed to take reasonable measures to make sure the advertised price is not exceeded. These measures include trying to persuade dealers to adhere to the advertised price and checking around to make sure they are adhering. These are the respects in which Morton is alleged to have gone beyond the simple announcement of policy and refusal to deal with noncompli-ers that would be permissible even if it were trying to get its dealers to adhere to its suggested retail prices across the board. See Monsanto Co. v. Spray-Rite Service Corp., supra, 104 S.Ct. at 1469. They are the minimum steps that Morton had to take if its advertised price was to have any value at all, and they are therefore lawful. Cf. Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 859-60 (1st Cir.1982). It is true" }, { "docid": "23186768", "title": "", "text": "that dicta in Butera v. Sun Oil Co., 496 F.2d 434, 437 (1st Cir.1974), based on Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), suggest that for a supplier to condition a cut in the wholesale price to his dealers on their agreeing to pass it on to the consumer by lowering their prices, which is a little like what is alleged here, is a form of price fixing. But the more recent decisions hold to the contrary. See Lewis Service Center, Inc. v. Mack Trucks, Inc., 714 F.2d 842, 846 (8th Cir.1983); AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1206 (10th Cir.1982). And in none of these cases did the manufacturer have the additional argument that Morton has here: Morton had to pressure its dealers to lower price in order to maintain the credibility of its price advertising — a form, by the way, of constitutionally protected speech. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) . All this is not to say that simply by advertising retail prices a manufacturer gets the right to fix retail prices. If Morton had tried to fix its dealers’ prices at times when it was not advertising special deals at specific prices, its efforts would not be privileged just because at other times it did advertise retail prices. Nor could Morton require its dealers to comply with minimum prices. And therefore it could not forbid them to sell at less than the advertised prices. See Lehrman v. Gulf Oil Corp., 464 F.2d 26, 39-40 (5th Cir.1972). But it did not do any of these things. Even if what Morton did was price fixing, Walters could not challenge it. A private plaintiff can complain only of an antitrust injury. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) . It is not enough that the plaintiff would not have been injured but for the defendant’s alleged violation of the antitrust laws; the injury" }, { "docid": "22333781", "title": "", "text": "of summary judgment, “ ‘inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion. ’ ” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U. S. 654, 655 (1962)). The District Court granted petitioner’s motion to dismiss the §2 claim as originally pleaded. 577 F. Supp. 1296, 1304 (1983). Respondent subsequently amended its §2 claim, but shortly after petitioner filed for summary judgment, respondent voluntarily dismissed that claim with prejudice. See App. 76-78. The Court of Appeals framed the issue as “whether a competitor’s injuries resulting from vertical, non-predatory, maximum price fixing fall within the category of ‘antitrust injury.’ ” 859 F. 2d 687, 689 (CA9 1988) (emphasis added). For purposes of this case we likewise assume that petitioner’s pricing was not predatory in nature. See Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F. 2d 1409, 1418-1420 (1989); Local Beauty Supply, Inc. v. Lamaur, Inc., 787 F. 2d 1197, 1201-1203 (1986); Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F. 2d 698, 708-709, cert. denied, 469 U. S. 1018 (1984). We assume, arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule. Albrecht is the only case in which the Court has confronted an unadulterated vertical, maximum-price-fixing arrangement. In Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211, 213 (1951), we also suggested that such an arrangement was illegal because it restricted vigorous competition among dealers. The restraint in Kiefer-Stewart had an additional horizontal component, however, see Arizona v. Maricopa County Medical Society, 457 U. S. 332, 348, n. 18 (1982), since the agreement was between two suppliers that had agreed to sell liquor only to wholesalers adhering to “maximum prices above which the wholesalers could not resell.” Kiefer-Stewart, supra, at 212. The Court of Appeals implied that the antitrust injury requirement could be satisfied by a showing that the “long-term” effect of the maximum-price agreements could" }, { "docid": "23186767", "title": "", "text": "make the advertising misleading and might even expose the manufacturer to legal sanctions under the Federal Trade Commission Act or counterpart state regulations. So if retail price advertising by manufacturers is to be feasible the manufacturer must be allowed to take reasonable measures to make sure the advertised price is not exceeded. These measures include trying to persuade dealers to adhere to the advertised price and checking around to make sure they are adhering. These are the respects in which Morton is alleged to have gone beyond the simple announcement of policy and refusal to deal with noncompli-ers that would be permissible even if it were trying to get its dealers to adhere to its suggested retail prices across the board. See Monsanto Co. v. Spray-Rite Service Corp., supra, 104 S.Ct. at 1469. They are the minimum steps that Morton had to take if its advertised price was to have any value at all, and they are therefore lawful. Cf. Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 859-60 (1st Cir.1982). It is true that dicta in Butera v. Sun Oil Co., 496 F.2d 434, 437 (1st Cir.1974), based on Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), suggest that for a supplier to condition a cut in the wholesale price to his dealers on their agreeing to pass it on to the consumer by lowering their prices, which is a little like what is alleged here, is a form of price fixing. But the more recent decisions hold to the contrary. See Lewis Service Center, Inc. v. Mack Trucks, Inc., 714 F.2d 842, 846 (8th Cir.1983); AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1206 (10th Cir.1982). And in none of these cases did the manufacturer have the additional argument that Morton has here: Morton had to pressure its dealers to lower price in order to maintain the credibility of its price advertising — a form, by the way, of constitutionally protected speech. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48" }, { "docid": "14432294", "title": "", "text": "be no dispute, that when distributors participate in the promotions they are expected to sell promotional items at a price equal to Canada Dry’s suggested wholesale price less the promotional discount. Plaintiffs maintain that Canada Dry’s promotional program also makes it impossible for them to sell non-promotional soft drink products at market prices because the distributors must necessarily reveal Canada Dry’s suggested wholesale prices on those items when they obtain retailers’ signatures on the pre-printed invoices. Thus, Plaintiffs contend that Canada Dry’s promotional program constitutes a vertical, maximum-price-fixing scheme that violates per se § 1 of the Sherman Act. The district court did not agree with Plaintiffs. It concluded that the described promotional program passed muster under antitrust laws except to the extent that the withholding of product and impounding of trucks provided Canada Dry with too ready an “opportunity to enforce resale price maintenance in the guise of enforcing compliance with its promotional program.” We do not think the court below applied an incorrect legal standard or relied on clearly erroneous findings of fact in reaching this conclusion. To be sure, in Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), the Supreme Court held “that a vertical, maximum-price-fixing scheme was unlawful per se under § 1 of the Sherman Act because it threatened to inhibit vigorous competition by the dealers bound by it and because it threatened to become a minimum-price-fixing scheme.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 335, 110 S.Ct. 1884, 1889, 109 L.Ed.2d 333 (1990) (assuming, “arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule”). Nevertheless, not all vertical arrangements affecting price constitute resale price maintenance agreements that violate § 1 of the Sherman Act. See AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1205 (10th Cir.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). “The combination required under Section 1 must be demonstrated by proof of: (1) an express or implied agreement, or (2) the securing of actual adherence" } ]

[ { "docid": "22094083", "title": "", "text": "after hearing from the Administrator his outstanding interpretation of the coverage of certain preparatory activities closely related to the principal activity and indispensable to its performance. On the whole it is clear, we think, that while Congress intended to outlaw claims prior to 1947 for wages based on all employee activities unless provided for by contract or custom of the industry, including, of course, activities performed before or after regular hours of work, it did not intend to .deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities. Had Congress intended the result urged by petitioner, the very different provisions of Sections 2 and 4 would have been unnecessary; Section 2 could have been given prospective as well as retroactive effect. We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4 (a)(1). We find no difficulty in fitting the facts of this case to that conclusion because it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees. The judgment is Affirmed. APPENDIX TO OPINION OF THE COURT. Colloquy Between Senator Cooper and Other Senators. “Mr. COOPER. . . . Before the enactment of the Fair Labor Standards Act an employee might have worked upon a lathe under a contract, and his contract may have provided that his pay should commence at a scheduled hour, say at 7 o’clock when the lathe began to run, and he began to apply his energy to a casting or to a block upon the lathe. After the enactment of the Fair Labor Standards Act, by interpretations of the Wage and Hour Administrator, it was held" } ]

[ { "docid": "7842260", "title": "", "text": "such as supplying sewers with their sewing products, tracking supplies, and making sure that work was completed on schedule. See IBP, Inc. v. Alvarez, 546 U.S. 21, 33, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (activities which are “integral and indispensable” to “principal activities” are themselves “principal activities”). Work activities that Kellar performed afterward would be covered by the “continuous workday rule,” which provides that the Portal-to-Portal Act does not apply “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday.” 29 C.F.R. § 790.6(a); IBP, 546 U.S. at 29,126 S.Ct. 514. The district court reached a different conclusion because it credited Mamie Spice’s affidavit to the effect that Spice and Kellar spent their pre-shift time socializing instead of working. The court acknowledged that Kellar’s deposition testimony directly contradicted Spice’s affidavit, but it did not accept Kellar’s version of the events in question because Kellar “offer[ed] no evidence other than her own testimony to support her argument.” This was error. Absent a finding, not made here, that the usual requirements for evidence at the summary judgment stage were not met, evidence presented in a “self-serving” affidavit or deposition is enough to thwart a summary judgment motion. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003). Kellar’s deposition testimony created a factual dispute, and the court was not free to resolve it in Summit’s favor. See McAllister v. Price, 615 F.3d 877, 884 n. 1 (7th Cir.2010) (“Given the evidence on both sides, [there] are factual disputes [that are] not amenable to resolution on summary judgment.”). On appeal, Summit argues that the district court properly disregarded Kellar’s testimony because it was inconsistent and conclusory. But Kellar discussed her preshift activities in a fair amount of detail. And any inconsistencies in her testimony were minor. For example, Summit faults Kellar for first testifying that she regularly arrived between 30 and 45 minutes before her shift, but then acknowledging that she also sometimes arrived 15 minutes early and sometimes arrived late. There is no serious inconsistency in this" }, { "docid": "22886478", "title": "", "text": "workday must be included in the computation of hours worked to the same extent as would be required if the Portal Act had not been enacted.’ ” Singh v. City of New York, 524 F.3d 361, 372 n. 8 (2d Cir.2008) (Sotomayor, J.) (quoting 29 C.F.R. § 790.6(a)); see 29 C.F.R. § 790.6(a) (“[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [29 U.S.C. § 254(a) ] have no application.”). In IBP, the Supreme Court held that the time spent by slaughterhouse employees before and after their shifts walking between their locker rooms — where they engaged in the principal activities of donning and doffing their protective gear — and the slaughterhouse floor was part of the continuous workday and therefore compensable under the FLSA. 546 U.S. at 37, 126 S.Ct. 514 (“[D]uring a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is ... covered by the FLSA.”). B. Kuebel’s At-Home Activities Did Not Extend His Workday Under the Continuous Workday Rule We need not and do not decide whether the district court correctly determined as a matter of law that the administrative tasks Kuebel performed at home were not integral and indispensable to his principal job activities. For, even if those tasks do qualify as integral and indispensable (and, thus, principal), they do not affect the compensability of Kuebel’s driving time. The parties’ arguments about the Portal-to-Portal Act, and the regulations and cases interpreting it, are largely beside the point. Section 254(a) does not impose any liability on employers; it only exempts them from liability for certain activities that the Supreme Court had briefly imposed before the Portal-to-Portal Act overruled it. See IBP, 546 U.S. at 24-27, 126 S.Ct. 514. Other than this exemption, “the Portal-to-Portal Act does not purport to change” earlier definitions of compensable work." }, { "docid": "4211728", "title": "", "text": "the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28, 126 S.Ct. 514. “[Activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by [29 U.S.C. § 254(a)(1) ].” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). And, “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a) ].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514. The Department of Labor has a “continuous workday rule,” generally defining an employee’s “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez, 546 U.S. at 29, 37, 126 S.Ct. 514 (describing and applying the continuous workday rule). During the continuous workday, the compensabili ty of all activities that otherwise satisfy the requirements of the FLSA is not affected by the Portal-to-Portal Act’s exceptions. In Alvarez, the Supreme Court held that “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of [the Portal-to-Portal Act], and as a result is covered by the FLSA.” Alvarez, 546 U.S. at 37, 126 S.Ct. 514. II. The employees argue that the district court should have granted them judgment as a matter of law that the donning and doffing of non-unique items was: (1) compensable as part of the continuous workday, (2) “work” under the FLSA, and (3) “integral and indispensable” under the Portal-to-Portal Act. This court is unable to address these arguments because the employees did not preserve them for appeal. The employees do not identify where in" }, { "docid": "7842252", "title": "", "text": "WILLIAMS, Circuit Judge. Susan Kellar contends that she is entitled to overtime under the Fair Labor Standards Act for work performed prior to the official start of her work shift. The district court granted summary judgment in favor of her employer, Summit Seating, because it found that Kellar’s pre-shift activities were “preliminary,” that any work Kellar performed before her shift was “de minimis,” and that Summit did not know that Kellar was engaging in pre-shift work. While we disagree with the district court’s conclusions regarding the “preliminary” and “de minimis ” nature of Kellar’s preshift work, we affirm because we conclude that Summit did not know or have reason to know that Kellar was working before her shift. I. BACKGROUND Summit Seating (“Summit”) is a small company that manufactures seating for buses, trucks, and vans. In 2001, Susan Kellar began working for Summit as a cutter’s helper, and in 2004 she was promoted to sewing manager. In that capacity, she was responsible for supplying sewers with their sewing products, tracking supplies, ensuring that work was completed on schedule, and training junior employees. Kellar managed between seven and eight employees, and was paid on an hourly basis. In her deposition, Kellar claimed that she regularly arrived at Summit’s factory between 15 and 45 minutes before the start of her 5:00 a.m. shift. When she arrived before or at the same time as her sister and co-worker, Mamie Spice, Kellar spent about 5 minutes unlocking doors, turning on lights, turning on the compressor, and punching in on the time clock. Then she prepared coffee for the rest of Summit’s employees, which took her about 5 minutes. Depending on her workload, she spent 5 to 10 minutes (or longer) reviewing schedules and gathering and distributing fabric and materials to her subordinates’ workstations, “so that they could go straight to work, rather than waiting for [her] to bring [fabric] to them.” For another 5 minutes, she drank coffee and smoked a cigarette. The remaining time was spent performing “prototype work” (preparing models for production), cleaning the work area, or checking patterns. According to Kellar," }, { "docid": "4500495", "title": "", "text": "decided, the Supreme Court held in Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956), that because sharpening knives was integral and indispensable to the task of butchering animals, the employees of a packing plant must be paid for the time spent before and after their principal butchering duties during which they sharpened the knives they used. Id. at 262, 76 S.Ct. 337. In the more recent case of IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), the Supreme Court observed that, although the Portal-to-Portal Act expressly excludes commuting and preliminary and postliminary activities from coverage under the FLSA, it does not purport to change the previously articulated definition of “work” and therefore does not effect how work hours were computed “within” the workday. Id. at 28,126 S.Ct. 514. (relying in part on Department of Labor regulation 29 C.F.R. § 790.6(a) (“the Portal Act does not affect the computation of hours worked within the “workday’ proper, roughly described as the period ‘from whistle to whistle,’ and its provisions have nothing to do with the com-pensability under the Fair Labor Standards Act of any activities engaged in by an employee during that period”)). The Supreme Court also observed that the Department of Labor had adopted its “continuous workday” rule which held that the workday was defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Id. at 29, 126 S.Ct. 514 (quoting § 790.6(b)). The first issue in IBP was whether the time that the plaintiff employees spent walking between the employee changing area and the production line was compensable under the FLSA. Id. at 24, 126 S.Ct. 514. The plaintiffs argued that they were due compensation for the time they spent putting on protective gear after arriving at defendant IBP’s factory and the time they spent walking from the room in which they donned their protective gear to their positions on the factory floor. IBP had been compensating them for the hours they spent cutting and bagging" }, { "docid": "7842257", "title": "", "text": "Activity Was Non-Preliminary Work The district court found that Kellar’s pre-shift activities were non-compensable “preliminary” activities under the Portal-to-Portal Act of 1947. The Portal-to-Portal Act, in relevant part, amended the FLSA to eliminate employer liability “on account of ... activities which are preliminary to or postliminary to [principal activities,] which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal [activities].” 29 U.S.C. § 254(a). As a threshold matter, Kellar contends that it was improper for the district court to have considered whether her activities were “preliminary” because Summit did not make that argument in its motion for summary judgment. A district court may enter summary judgment sua sponte on an issue not explicitly argued if the losing party is on notice that she has to come forward with all of her evidence. See Acequia, Inc. v. Prudential Ins. Co. of Am., 226 F.3d 798, 807 (7th Cir.2000). We agree with Kellar that she was not “on notice” that the district court would consider whether her activities were “preliminary.” In its motion for summary judgment, Summit only argued that it did not know that Kellar was working overtime and that Kellar’s preshift work was de minimis. Summit cited the Portal-to-Portal Act, but it did not contend that Kellar’s activities were “preliminary.” And the court did not apprise Kellar, before it issued its order, that it was considering whether Kellar’s activities were preliminary. Kellar, however, does not argue that she would have come forward with additional evidence had the court given her notice. Instead, she seems to be arguing that she was not given the opportunity to present argument to the court. While we agree with Kellar that the court should have given her notice and an opportunity to brief the issue, “reversal is not required in every instance of procedural shortfall. Instead, a litigant ... must show that notice and an opportunity to respond would have mattered.” See Alioto v. Marshall Field’s & Co., 77 F.3d 934, 936 (7th Cir.1996)." }, { "docid": "22886475", "title": "", "text": "DISCUSSION We review a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir.2010). Summary judgment is appropriate only if “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). I. Commute Time Claims Kuebel’s commute time claims rest on a “continuous workday” theory. He argues that he is entitled to compensation for all of his commute time because the administrative tasks he performed at home were integral and indispensable to his principal job activities, and that his workday there fore began and ended at home and encompassed his morning and evening drives between home and Home Depot store. We disagree. Even if Kuebel’s at-home activities were integral and indispensable to his principal activities, they do not render the entirety of his commute time compensable under the FLSA. A. FLSA Framework: “Principal” Job Activities and the “Continuous Workday” Rule The FLSA “guaranteed compensation for all work or employment engaged in by employees covered by the Act.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). However, the statute does not define what constitutes compensable “work.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). After early Supreme Court cases defined the term “broadly,” id., Congress passed the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq., which narrowed the FLSA’s coverage by providing that compensable work does not include: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he" }, { "docid": "7842256", "title": "", "text": "district court granted summary judgment in favor of Summit, finding that Kellar was not entitled to overtime wages. This appeal followed. II. ANALYSIS The FLSA requires employers to pay overtime to certain employees who work more than 40 hours in a work week. 29 U.S.C. § 207(a). The employee bears the burden of proving that she performed overtime work for which she was not properly compensated. Anderson v. Mt. Clemens, 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded on other grounds by statute, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262. The employer bears the burden to establish that an exemption from the FLSA applies. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 370 (7th Cir.2005). We review the district court’s entry of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-moving party. Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir.2005). A. Kellar’s Pre-Shift Activity Was Non-Preliminary Work The district court found that Kellar’s pre-shift activities were non-compensable “preliminary” activities under the Portal-to-Portal Act of 1947. The Portal-to-Portal Act, in relevant part, amended the FLSA to eliminate employer liability “on account of ... activities which are preliminary to or postliminary to [principal activities,] which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal [activities].” 29 U.S.C. § 254(a). As a threshold matter, Kellar contends that it was improper for the district court to have considered whether her activities were “preliminary” because Summit did not make that argument in its motion for summary judgment. A district court may enter summary judgment sua sponte on an issue not explicitly argued if the losing party is on notice that she has to come forward with all of her evidence. See Acequia, Inc. v. Prudential Ins. Co. of Am., 226 F.3d 798, 807 (7th Cir.2000). We agree with Kellar that she was" }, { "docid": "4500494", "title": "", "text": "principal activity. The ease at bar is another in that long line. One of the first authorities in that line was Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In that case, the Supreme Court considered whether changing clothes and showering were among the principal work activities for workers at a battery plant who, because of the exposure to toxic chemicals inherent in their jobs, were compelled to don protective clothing prior to their work and to remove their clothes and shower following their work. The Supreme Court held that, under normal circumstances, changing clothes and showering would not be compensable, but because the employees would not have been able to work in the battery plant without changing clothes and showering, those activities were compensable “under the portal-to-portal provisions of the Fair Labor Standards Act [because] those activities [were] an integral and indispensable part of the principle activities for which the covered workmen are employed.” Id. at 256, 76 S.Ct. 330 (emphasis added). On the same day that Steiner was decided, the Supreme Court held in Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956), that because sharpening knives was integral and indispensable to the task of butchering animals, the employees of a packing plant must be paid for the time spent before and after their principal butchering duties during which they sharpened the knives they used. Id. at 262, 76 S.Ct. 337. In the more recent case of IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), the Supreme Court observed that, although the Portal-to-Portal Act expressly excludes commuting and preliminary and postliminary activities from coverage under the FLSA, it does not purport to change the previously articulated definition of “work” and therefore does not effect how work hours were computed “within” the workday. Id. at 28,126 S.Ct. 514. (relying in part on Department of Labor regulation 29 C.F.R. § 790.6(a) (“the Portal Act does not affect the computation of hours worked within the “workday’ proper, roughly described as the period ‘from" }, { "docid": "11468178", "title": "", "text": "principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities” are not compensable. 29 U.S.C. § 254(a)(2). The Supreme Court has since noted, however, that, other than excluding walking and preliminary and post-liminary activities from FLSA coverage, the statute “does not purport to change [the Supreme Court’s] earlier descriptions of the terms ‘work’ and ‘workweek,’ or to define the term ‘workday.’ ” IBP, Inc. v. Alvarez, 546 U.S. 21, 28, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Shortly after the Portal-to-Portal Act was enacted, the Department of Labor issued interpretations defining a workday as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities” and providing that “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday,” those activities are not excluded from FLSA coverage by the Portal-to-Portal Act. 29 C.F.R. § 790.6(a-b). Thus, walking and preliminary and postliminary activities are com-pensable under FLSA, in spite of the Portal-to-Portal Act, so long as they occur after the workday has begun and before it has ended. This is known as the “continuous workday rule,” which has remained in effect since 1947, Alvarez, 546 U.S. at 28-29, 126 S.Ct. 514, and the application of which the defendants do not dispute (Docket No. 244 at 5). Although the Portal-to-Portal Act limits FLSA coverage of preliminary and postliminary activities, the Supreme Court has held that such activities nevertheless are compensable “if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956); see also 29 C.F.R. § 790.8(b-c) (noting that the term “principal activity” includes activities that are an integral part of a principal activity and are" }, { "docid": "23388011", "title": "", "text": "(1944). The issue is whether the “time is spent predominantly for the employer’s benefit or for the employee’s [which] is a question dependent upon all the circumstances of the case.” Id.; see also Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 64-65 (2d Cir.1997). Because the activity at issue here occurs outside the scheduled workday, the Portal-to-Portal Act, which amended the FLSA, adds a further obstacle to the plaintiffs’ potential recovery. The Portal-to-Portal Act exempts employers from compensating employees under the FLSA “for or on account of’ time spent “traveling to and from the actual place of performance of the principal activity or activities” of employment and any activities which are “preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. § 254(a). The Supreme Court has interpreted this provision to mean that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity.’ ” IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Accordingly, while employees need not be compensated “for or on account of’ commuting to and from work, they must be compensated for any work performed during a commute that is “integral and indispensable” to a principal activity of their employment. See Reich v. N.Y. City Transit Auth., 45 F.3d 646, 651 (2d Cir.1995); Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1287 (10th Cir.2006); Aiken v. City of Memphis, 190 F.3d 753, 758 (6th Cir.1999); see also 29 C.F.R. § 785.41 (“Any work which an employee is required to perform while traveling must, of course, be counted as hours worked.”). In short, in order for the plaintiffs to prevail under the FLSA, as amended by the Portal-to-Portal Act, they must demonstrate that carrying inspection documents during a commute: (1) constitutes work under the FLSA and (2) is an integral and indispensable part of their inspecting duties. For the reasons explained below, we conclude that the mere carrying of a briefcase without any other active employment-related responsibilities does not transform the plaintiffs’ entire commute into work. As noted earlier, whether an" }, { "docid": "7842258", "title": "", "text": "not “on notice” that the district court would consider whether her activities were “preliminary.” In its motion for summary judgment, Summit only argued that it did not know that Kellar was working overtime and that Kellar’s preshift work was de minimis. Summit cited the Portal-to-Portal Act, but it did not contend that Kellar’s activities were “preliminary.” And the court did not apprise Kellar, before it issued its order, that it was considering whether Kellar’s activities were preliminary. Kellar, however, does not argue that she would have come forward with additional evidence had the court given her notice. Instead, she seems to be arguing that she was not given the opportunity to present argument to the court. While we agree with Kellar that the court should have given her notice and an opportunity to brief the issue, “reversal is not required in every instance of procedural shortfall. Instead, a litigant ... must show that notice and an opportunity to respond would have mattered.” See Alioto v. Marshall Field’s & Co., 77 F.3d 934, 936 (7th Cir.1996). Because at this juncture the parties have presented all of their evidence, and Kellar has now had the opportunity to argue her case to us, we shall consider whether the court erred in finding that the Portal-to-Portal Act bars recovery in this case. The Portal-to-Portal Act provides that activities that are “preliminary” to principal activities are not compensable. The Act does not purport to define “preliminary” activities further. But the Supreme Court has held that activities that are “an integral and indispensable part of [an employee’s] principal activities,” are not “preliminary,” but are also “principal activities,” and are compensable even if they occur before the beginning of an employee’s shift. See Steiner v. Mitchell, 350 U.S. 247, 253, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Kellar testified that she began her day (after unlocking doors and making coffee for employees) reviewing work schedules and gathering and distributing fabric and materials to her subordinates’ workstations. Such activities are surely “integral and indispensable” to the work that Kellar performed in her capacity as a sewing manager," }, { "docid": "19641375", "title": "", "text": "permitted to stand, ... the payment of such liabilities would bring about financial ruin of many employers\" and \"employees would receive windfall payments ... for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay.\" §§ 251(a)-(b). Congress met this emergency with the Portal-to-Portal Act. The Portal-to-Portal Act exempted employers from liability for future claims based on two categories of work-related activities as follows: \"(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, ... on account of the failure of such employer ... to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act- \"(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and \"(2) activities which are preliminary to or postliminary to said principal activity or activities, \"which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.\" § 4, 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)). At issue here is the exemption for \"activities which are preliminary to or postliminary to said principal activity or activities.\" B This Court has consistently interpreted \"the term 'principal activity or activities' [to] embrac[e] all activities which are an 'integral and indispensable part of the principal activities.' \" IBP, Inc. v. Alvarez,546 U.S. 21, 29-30, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005)(quoting Steiner v. Mitchell,350 U.S. 247, 252-253, 76 S.Ct. 330, 100 L.Ed. 267 (1956)). Our prior opinions used those words in their ordinary sense. The word \"integral\" means \"[b]elonging to or making up an integral whole; constituent, component; spec[ifically] necessary to the completeness or integrity of the whole; forming an intrinsic portion or element," }, { "docid": "22886476", "title": "", "text": "Activities and the “Continuous Workday” Rule The FLSA “guaranteed compensation for all work or employment engaged in by employees covered by the Act.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). However, the statute does not define what constitutes compensable “work.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). After early Supreme Court cases defined the term “broadly,” id., Congress passed the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq., which narrowed the FLSA’s coverage by providing that compensable work does not include: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a). The Supreme Court has since established that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under § [254(a) ],” and thus compensable under the FLSA even if performed before or after the regular shift. IBP, 546 U.S. at 37, 126 S.Ct. 514; see Steiner v. Mitchell, 350 U.S. 247, 252-53, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Whether an activity is “integral and indispensable” to an employee’s principal activities is a fact-dependent inquiry. See Reich v. N.Y.C. Transit Auth., 45 F.3d 646, 650 (2d Cir.1995). Pursuant to the DOL’s “continuous workday rule, ... the ‘workday’ is generally defined as ‘the period between the commencement and completion on the same workday of an employee’s principal activity or activities.’ ” IBP, 546 U.S. at 29, 126 S.Ct. 514 (quoting 29 C.F.R. § 790.6(b)). The rule “provides that ‘[p]eriods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any" }, { "docid": "7842259", "title": "", "text": "Because at this juncture the parties have presented all of their evidence, and Kellar has now had the opportunity to argue her case to us, we shall consider whether the court erred in finding that the Portal-to-Portal Act bars recovery in this case. The Portal-to-Portal Act provides that activities that are “preliminary” to principal activities are not compensable. The Act does not purport to define “preliminary” activities further. But the Supreme Court has held that activities that are “an integral and indispensable part of [an employee’s] principal activities,” are not “preliminary,” but are also “principal activities,” and are compensable even if they occur before the beginning of an employee’s shift. See Steiner v. Mitchell, 350 U.S. 247, 253, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Kellar testified that she began her day (after unlocking doors and making coffee for employees) reviewing work schedules and gathering and distributing fabric and materials to her subordinates’ workstations. Such activities are surely “integral and indispensable” to the work that Kellar performed in her capacity as a sewing manager, such as supplying sewers with their sewing products, tracking supplies, and making sure that work was completed on schedule. See IBP, Inc. v. Alvarez, 546 U.S. 21, 33, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (activities which are “integral and indispensable” to “principal activities” are themselves “principal activities”). Work activities that Kellar performed afterward would be covered by the “continuous workday rule,” which provides that the Portal-to-Portal Act does not apply “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday.” 29 C.F.R. § 790.6(a); IBP, 546 U.S. at 29,126 S.Ct. 514. The district court reached a different conclusion because it credited Mamie Spice’s affidavit to the effect that Spice and Kellar spent their pre-shift time socializing instead of working. The court acknowledged that Kellar’s deposition testimony directly contradicted Spice’s affidavit, but it did not accept Kellar’s version of the events in question because Kellar “offer[ed] no evidence other than her own testimony to support her argument.” This was error." }, { "docid": "2858214", "title": "", "text": "to the time on any particular workday at which he ceases, such principal activity or activities .... 29 U.S.C. § 254(a). Under the plain meaning of section 254(a), this case pivots on whether appellants are engaging in any work-related activity before arriving at their work sites inside the airport tarmac. If appellants were merely traveling to their “actual place of performance of the principal activities]” before beginning any work activity, then section 254(a)(1) exempts such traveling from compensation under the FLSA. But, if appellants, by boarding those buses, going through security, or carrying their personal safety equipment, are engaging in work-related activity that is “integral and indispensable” to their work, then any travel afterwards is compensable. IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 525, 163 L.Ed.2d 288 (2005) (“[A]ny activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a)] of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity is excluded from the scope of the provision, and as a result is covered by the FLSA.”). a) Travel Claim The district court found that it is “undisputed that the actual place of performance of the principal activity or activities which [appellee] employed [appellants] to perform was the Project jobsite at MIA’s North Terminal,” and that it “is also undisputed that [appellants] did not perform any work either when waiting for the buses or while they were riding the buses.” We find nothing in the record to contradict this conclusion. As stated above, the parties disagree as to whether appellants were required to carry their personal safety gear on the buses. But we do not find this dispute to be material to the issue at hand because our analysis of the Portal-to-Portal Act would be the same regardless. See Danskine v. Miami Dade Fire Dep’t, 253 F.3d 1288, 1292-93 (11th Cir.2001) (“A factual dispute is genuine only if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party.”)" }, { "docid": "4211727", "title": "", "text": "pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944), superseded by statute on other grounds, Portal-to-Portal Act of 1947, Pub.L. No. 80-49, 61 Stat. 84. The Court then “clarified that ‘exertion’ was not in fact necessary for an activity to constitute ‘work’ under the FLSA.” Alvarez, 546 U.S. at 25, 126 S.Ct. 514, citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). Whether an employee’s activity is “work” does not end the compensability analysis. In the Portal-to-Portal Act, Congress excluded some activities that might otherwise constitute work from the FLSA. The Act excepts two categories: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28, 126 S.Ct. 514. “[Activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by [29 U.S.C. § 254(a)(1) ].” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). And, “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a) ].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514. The Department of Labor has a “continuous workday rule,” generally defining an employee’s “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez," }, { "docid": "23388010", "title": "", "text": "are entitled to compensation for any addi tional commuting time resulting from the City’s policy. A. All Commuting Time The FLSA “guarantee^] compensation for all work or employment engaged in by employees covered by the Act.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Though Congress has never explicitly defined what constitutes work under the FLSA, the Supreme Court has generally described work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id. at 598, 64 S.Ct. 698; see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir.2008). However, exertion is not necessarily required for an activity to be compensable because “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The issue is whether the “time is spent predominantly for the employer’s benefit or for the employee’s [which] is a question dependent upon all the circumstances of the case.” Id.; see also Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 64-65 (2d Cir.1997). Because the activity at issue here occurs outside the scheduled workday, the Portal-to-Portal Act, which amended the FLSA, adds a further obstacle to the plaintiffs’ potential recovery. The Portal-to-Portal Act exempts employers from compensating employees under the FLSA “for or on account of’ time spent “traveling to and from the actual place of performance of the principal activity or activities” of employment and any activities which are “preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. § 254(a). The Supreme Court has interpreted this provision to mean that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity.’ ” IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Accordingly, while employees need not be" }, { "docid": "2858213", "title": "", "text": "appellee ever discussed with appellants whether they would be paid for the time waiting for or riding the authorized buses, nor were there any requests by appellants to be paid for this time. II. DISCUSSION We review the district court’s grant of summary judgment de novo. Gibson v. RTC, 51 F.3d 1016, 1020 (11th Cir.1995). This appeal presents a question of statutory interpretation. Section 4(a) of the Portal-to-Portal Act, 29 U.S.C. § 254(a), exempts certain activities from compensation under the FLSA, 29 U.S.C. §§ 201 et seq. The question before us is whether appellants’ time spent riding the buses or going through airport security constitutes such an exception. The Act exempts the following activities from compensation: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities .... 29 U.S.C. § 254(a). Under the plain meaning of section 254(a), this case pivots on whether appellants are engaging in any work-related activity before arriving at their work sites inside the airport tarmac. If appellants were merely traveling to their “actual place of performance of the principal activities]” before beginning any work activity, then section 254(a)(1) exempts such traveling from compensation under the FLSA. But, if appellants, by boarding those buses, going through security, or carrying their personal safety equipment, are engaging in work-related activity that is “integral and indispensable” to their work, then any travel afterwards is compensable. IBP, Inc. v. Alvarez, 546 U.S. 21, 37, 126 S.Ct. 514, 525, 163 L.Ed.2d 288 (2005) (“[A]ny activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a)] of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal" }, { "docid": "820836", "title": "", "text": "910 (9th Cir.2004). Under the FLSA, it is axiomatic that employers pay employees for all hours worked. See Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005); 29 U.S.C. §§ 206, 207. Work is the “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). This definition includes “non-exertional acts.” Alvarez, 339 F.3d at 902; Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The Portal-to-Portal Act of 1947, however, relieves employers from compensating employees for “activities which are preliminary or postliminary to [the] principal activity or activities.” 29 U.S.C. § 254(a). After passage of the Portal-to-Portal Act of 1947, the Supreme Court held that “activities performed either before or after the regular work shift” are compensable “if those activities are an integral and indispensable part of the principal activities for which [the] workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In Steiner, production employees at a battery plant were required to don protective work clothes before commencing work and to shower and change back at the end of the work day. The Court held that employees should be compensated for the time spent donning and doffing their protective work clothes because the process was “integral and indispensable” to allay the dangers inherent in the principal activity of battery production. Id. The Ninth Circuit has held that donning and doffing of both unique and non-unique protective gear are integral and indispensable to the employee’s principal activities if they were: 1) necessary to the principal work performed; and 2) done for the benefit of the employer. Alvarez, 339 F.3d at 902-03. In Alvarez, a meat products producer required its production employees to wear protective gear, including liquid-repelling sleeves, aprons and leggings, after they got to" } ]

[ { "docid": "22748359", "title": "", "text": "support the debtor for any one week.” The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage- earning family to the wall. Where the taking of one’s property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works, 237 U. S. 413, 423) this prejudgment garnishment procedure violates the fundamental principles of due process. Reversed. Wis. Stat. § 267.18 (2) (a) provides: “When wages or salary are the subject of garnishment action, the garnishee shall pay over to the principal defendant on the date when such wages or salary would normally be payable a subsistence allowance, out of the wages or salary then owing, in the sum of $25 in the case of an individual without dependents or $40 in the case of an individual with dependents; but in no event in excess of 50 per cent of the wages or salary owing. Said subsistence allowance shall be applied to the first wages or salary earned in the period subject to said garnishment action.” Wis. Stat. §267.07 (1). Wis. Stat. §267.04 (1). 82 Stat. 146, Act of May 29, 1968. 114 Cong. Rec. 1832. Comment, Wage Garnishment in Washington — An Empirical Study, 43 Wash. L. Rev. 743, 753 (1968). And see Comment, Wage Garnishment as a Collection Device, 1967 Wis. L. Rev. 759. See n. 1, supra. Comment, Wage Garnishment as a Collection Device, 1967 Wis. L. Rev. 759, 767. “For a poor man — and whoever heard of the wage of the affluent being attached? — to lose part of his salary often means his family will go without the essentials. No man sits by while his family goes hungry or without heat. He either files for consumer bankruptcy and tries to begin again, or just quits his job and goes on relief. Where is the equity, the common sense, in such a process?” Congressman Gonzales, 114 Cong. Eec. 1833. For the impact of garnishment on personal bankruptcies see H. R. Rep. No. 1040, 90th Cong.," } ]

[ { "docid": "15684781", "title": "", "text": "was receiving cash aid from the Department of Social Services of San Francisco on an emergency basis at the time the action was filed. His weekly rental was $10. The action arose when, despite Klim’s protestations that no rent was due and owing, he was locked out of his room with his personal belongings still inside. While Judge Levin indicated that the primary impact of the innkeepers lien law appeared to be upon those who were of limited means, he also observed as follows: “Although recent court opinions have left in doubt whether Sniadach was based strictly on due process grounds or whether it was more concerned with the particular type of property discussed there, this court regards Sniadach as standing inescapably on constitutional principles.” . For the fact is that the innkeepers lien law affects rich as well as poor. Judge Levin also pointed out that while wage garnishment, as in Sniadach, applies only to wages and only to a portion thereof, leaving the debtor’s other property unencumbered, under the innkeeper’s lien law all of the boarder’s possessions may be denied him if he keeps them in his lodgings. A more trenchant statement of this view is found in Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969). In this case, the Wisconsin Supreme Court, which had been reversed in Sniadach, was called upon to consider the applicability of the Sniadach decision invalidating the Wisconsin pre-judgmentgarnishment statute to a case involving a dispute between parties to a substantial commercial transaction. The sums garnished totalled over $31,000. The respondents sought to avoid dismissal of their garnishment actions by arguing that the Sniadach decision was limited in scope, and should be applied only to garnishment of wages. Speaking through Mr. Justice Hanley, a unanimous Wisconsin Supreme Court held: “Although the majority opinion in Sniadach makes considerable reference to the hardship of the unconstitutional procedure upon the wage earner, we think that no valid distinction can be made between garnishment of wages and that of other property. Clearly, a due process violation should not depend upon the type of property being" }, { "docid": "10663661", "title": "", "text": "former wife and children. Likewise, by the terms of the alimony decree in question, it was fully adjudicated that Mr. Halpern is liable to make alimony payments in installments. By the nature of the judgment he was notified that the installments may be collected by garnishment unless he takes the initiative of showing that new conditions have arisen justifying a change in terms. This merely reflects the state policy requiring the husband to affirmatively show that a duty created by a valid decree has ended. Any other result, requiring additional notice and hearing before garnishment, will result in shifting the burden to the wife which the original divorce decree places upon the husband. Notwithstanding the state’s interest in the collection of alimony judgments, plaintiff urges that under the rationale of Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), this procedure is unconstitutional. In Sniadaeh, pursuant to a Wisconsin statute, the clerk of the court issued a summons at the request of a creditor, who, by serving the garnishee employer, froze the debtor’s wages. The creditor was then allowed ten days after garnishment in which to serve a summons and complaint upon the debtor. The frozen wages would be released to the debtor if trial on the main suit were held and the debtor won on the merits. On these facts the question was whether the interim freezing, without the prior opportunity to be heard, was a taking of property without due process of law. The Supreme Court held that it was such a taking. In reaching its decision, the Court, while noting instances where vital creditor or state interests justify summary procedures without a hearing, emphasized the tremendous hardship pre-judgment garnishment visits upon a wage earner as well as the undue leverage held by creditors. As stated by Justice Douglas in the majority opinion: A procedural rule that may satisfy due process for attachments in general does not necessarily satisfy procedural due process in every case. We deal here in wages — a specialized type of property presenting distinct problems" }, { "docid": "15684770", "title": "", "text": "judgment against the defendant to proceed diligently against the garnishee; (3) the failure of the plaintiff, after the garnishee has answered interrogatories, to proceed diligently against the garnishee; or (4) the failure of the plaintiff generally to prosecute the action with due diligence. Rule 1273 provides that: “The court on the petition of any person or party, may, at any time after notice and hearing (1) review the action of the prothonotary in approving or rejecting the bond or security offered; (2) increase or decrease the amount of any bond or security; (3) strike off a bond improperly filed; or. (4) permit the substitution of a bond or security and enter exoneration of a prior bond.” We set these provisions forth in haec verba because they represent the first time in the procedure where the defendant may appear and be heard. Until then, everything is done on a purely ministerial basis by the prothonotary and sheriff without notice or hearing. And the scope of the hearing in this instance is limited principally to a determination of the propriety of the amount of security. We have described the foreign attachment history and procedure. We come now to a construction of Sniadach. IV. SNIADACH — GAN ITS DUE PROCESS IMPORT BE LIMITED TO WAGE GARNISHMENT-TYPE CASES? The Wisconsin statute struck down by Sniadach permitted a creditor to institute legal action by garnishing wages. Under the statute, the clerk of court issues the summons at the request of the creditor’s lawyer; the garnishment prior to any hearing follows. In holding that the pre-judgment garnishment procedure violated the fundamental procedures of due process of law, and that no situation requiring special protection to a state or creditor interest was presented by the facts (Mrs. Sniadach was readily amenable to in personam jurisdiction), the Supreme Court came down heavily on the fact that: “We deal here with wages — a specialized type of property presenting dis tinct problems in our economic system.” The Court, speaking through Mr. Justice Douglas, discussed at length the hardship which the Wisconsin-type statute imposes on wage earners with families to" }, { "docid": "10663658", "title": "", "text": "14, 1974, seeking to attach additional wages then due plaintiff. On February 26, 1974, plaintiff filed a complaint in this court attacking Ga. Code § 30-204 and §§ 46-101, 46-102 as being unconstitutional in that these provisions provide for the deprivation of property without due process of law. Plaintiff also sought a temporary restraining order against defendant Austin, Clerk of the Civil Court of Fulton County, and defendant Price, Clerk of the Superior Court of Fulton County, to restrain enforcement of the garnishment. This motion was denied, and the present three-judge court was convened. The basis of plaintiff’s claim is that the judgment for alimony used as a predicate for a garnishment action is entirely different from the ordinary judgment upon which execution may lie. Unlike the ordinary judgment, the 1967 divorce decree does not entitle Mrs. Halpern to an unconditional sum certain. Rather, both parties have rights and duties under the decree which may result in the termination of alimony payments. Under the garnishment procedure provided for in Ga.Code § 30-204 and § 46-101 et seq., plaintiff does not have the opportunity to assert any defense to an arrearage in alimony payments except through the posting of a bond and then only after his wages are garnisheed. Such a procedure, it is argued, is analogous to a pre-judgment garnishment, which has been determined to be unconstitutional under Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). The question presented with respect to plaintiff’s constitutional claim is whether procedural due process, in the context of the facts presented, requires an opportunity for a hearing before the state authorized garnishment of wages based upon a prior judgment establishing the applicant’s entitlement to alimony. We have concluded that this question must be answered adversely to the plaintiff. Ga.Code § 46-102 outlines the procedure which a judgment creditor follows in order to have garnishment process issue. The requisite procedure includes the filing of a bond and sworn affidavit as to the amount due under the judgment. After service upon the garnishee, a dissolution bond" }, { "docid": "15684782", "title": "", "text": "of the boarder’s possessions may be denied him if he keeps them in his lodgings. A more trenchant statement of this view is found in Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969). In this case, the Wisconsin Supreme Court, which had been reversed in Sniadach, was called upon to consider the applicability of the Sniadach decision invalidating the Wisconsin pre-judgmentgarnishment statute to a case involving a dispute between parties to a substantial commercial transaction. The sums garnished totalled over $31,000. The respondents sought to avoid dismissal of their garnishment actions by arguing that the Sniadach decision was limited in scope, and should be applied only to garnishment of wages. Speaking through Mr. Justice Hanley, a unanimous Wisconsin Supreme Court held: “Although the majority opinion in Sniadach makes considerable reference to the hardship of the unconstitutional procedure upon the wage earner, we think that no valid distinction can be made between garnishment of wages and that of other property. Clearly, a due process violation should not depend upon the type of property being subjected to the procedure. Jones Press Inc. v. Motor Travel Services, Inc. is a unanimous decision of the Minnesota Supreme Court invalidating a general garnishment statute where the case at bar involved garnishment of accounts receivable. The court stated: “We have great difficulty in distinguishing between the impounding of wages without notice and an opportunity to be heard and garnishing accounts receivable under similar conditions. The hardship and injustice stressed in the majority opinion in Sniadach are equally applicable to the laborer, artisan, or merchant, whose livelihood depends on selling customers his services or his goods. It seems to us that the fortuity of a debtor’s being self-employed should not insulate a creditor from according the debtor procedural due process. * * * No rational distinction can be drawn between a livelihood dependent on wages and one derived from the sale of services and goods if the rationale of the Sniadach case is based on the policy of protecting a breadwinner from the harassment of creditors. If, as we have indicated, that decision is premised" }, { "docid": "15684758", "title": "", "text": "OPINION AND ORDER EDWARD R. BECKER, District Judge. I. STATEMENT OF CASE We are here confronted with a challenge to the validity of the Pennsylvania foreign attachment procedure on postSniadach due process grounds. Sniadach v. Family Finance Corp. is the landmark case holding that, absent notice and a pri- or hearing, the Wisconsin pre-judgment garnishment procedure in which a summons was issued at the request of a creditor’s lawyer, and the lawyer, by serving a garnishee, set in motion machinery whereby wages were frozen in the interim before trial of the main suit without any opportunity on the part of a wage-earner to be heard or to tender any defense he might have, violated fundamental principles of due process. Sniadach’s seed has been scattered by the winds. It has spawned the downfall of: 1. the California and Arizona wage garnishment statutes, in addition to Wisconsin’s; 2. the New York replevin statute; 3. the California innkeeper’s lien law; 4. the Pennsylvania statutes relating to distress for rent and confession of judgment; 5. the Minnesota general garnishment statute; and 6. the California statute relating to landlords’ writs of immediate possession. In the wake of these precedents, a constitutional attack upon Pennsylvania foreign attachment, a similar prejudgment garnishment proceeding not limited to wages, was to be expected. It comes before us on a motion of defendant Forbes Leasing and Finance Corporation (“Forbes”) to quash the foreign attachments perfected by plaintiff Marvin Lebowitz (“Lebowitz”) in the Court of Common Pleas of Philadelphia County prior to removal of the case to this Court on the grounds of diversity of citizenship. We refuse to quash the foreign attachments. However, because the ease has been a difficult one for us, and because it is on the frontier of a rapidly developing field of law, we have set forth not only our reasons for denying the motion, but also our views as to countervailing considerations which we consider to be of substance, in considerable detail. II. THE FACTUAL SETTING On January 27, 1971, Lebowitz commenced an action in equity against Forbes and the other defendants in the Court" }, { "docid": "23008714", "title": "", "text": "produced not only varying results, but differing analytical approaches to due process problems. The earliest case in this line of decisions is Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), which held Wisconsin prejudgment garnishment procedures unconstitutional. That decision appeared to evince a particular concern for “wages —a specialized type of property”, 395 U.S. at 340, 89 S.Ct. 1820, and mandated that the affected individual receive notice and a hearing before garnishment. Sniadach spawned two divergent lines of cases — one limiting Sniadach’s pre-deprivation notice and hearing rule to wages or property of similar importance to the individual, the other invalidating prejudgment procedures generally. The Supreme Court put its imprimatur on the latter line in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The Court there held unconstitutional Florida and Pennsylvania prejudgment replevin procedures utilized to recover household goods purchased under conditional sales contracts and on which payments were allegedly overdue. The Court stated that even a temporary, non-final deprivation of property in which an individual had less than full title was sufficient to invoke due process protection. 407 U.S. at 84-87, 92 S.Ct. 1983. Furthermore, procedural guarantees were not limited to items of “necessity.” 407 U.S. at 88-90, 92 S.Ct. 1983. The constitutional rule enunciated was that except in “extraordinary situations,” notice and hearing must precede any deprivation of property. Two years later the Court seemingly interred Fuentes when it approved Louisiana sequestration procedures. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The Court appeared to abandon the strict pre-sei-zure hearing rule of Fuentes and instead substitute a balancing of interests analysis. The Court identified two policies behind the Louisiana procedures — (1) protecting from concealment, or waste, property in which the creditor, as well as the debtor, had a proprietary interest, 416 U.S. at 604-5, 94 S.Ct. 1895, and (2) averting self-help measures by the creditor, which could engender violence. 416 U.S. at 605, 94 S.Ct. 1895. In light of these policies, the debtor’s concern with protecting his" }, { "docid": "13045045", "title": "", "text": "unconstitutional for want of certain fundamentals of procedural due process. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Shortly after this decision was rendered, the Wisconsin legislature attempted to cure the defects the Supreme Court had noted by amending § 267.02 at subsection (2). The revised statute, effective August 9, 1969, restricted the ability of a civil plaintiff to commence a garnishment action affecting the earnings of a principal defendant. These legislative efforts appear to have been futile, however, for on November 25, 1969, the Wisconsin Supreme Court ruled that the principles of procedural due process articulated in Sniadach required that § 267.02(1) (a)' be held unconstitutional as applied not only to pre judgment wage garnishment, but also as to prejudgment garnishment of “other property” as well. Larson v. Featherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969); rehearing denied, February 3, 1970. Subsequent to the Larson decision, the United States Supreme Court confirmed the principles of due process that the Wisconsin Supreme Court had established. See: North Georgia Furnishing, Inc. v. Di-Chem, Inc., 419 U.S. 681, 95 S.Ct. 719, 42 L.Ed.2d 1751 (1975). Despite the fact that both the Wisconsin Supreme Court and the United States Supreme Court have, in effect, found § 267.02(1) (a) Wis.Stats. to have fatal constitutional deficiencies in excess of those to which the amendment of subsection (2) was directed, no further corrective action has been undertaken by the Wisconsin legislature. This particular provision of the Wisconsin Statutes has remained as amended, effective August 9, 1969, and was successfully invoked against this plaintiff by the defendants named above in a garnishment proceeding begun in July of 1974. Nothwithstanding what appears to have been repeated efforts by this plaintiff’s counsel to have that garnishment dissolved, such a result was not accomplished until this Court entered an order to that effect on May 1, 1975. This action seeks compensation for losses allegedly sustained as a result of that garnishment proceeding. II. No party can or does dispute the fact that, as a matter of settled federal law, any case arising under" }, { "docid": "13045046", "title": "", "text": "Furnishing, Inc. v. Di-Chem, Inc., 419 U.S. 681, 95 S.Ct. 719, 42 L.Ed.2d 1751 (1975). Despite the fact that both the Wisconsin Supreme Court and the United States Supreme Court have, in effect, found § 267.02(1) (a) Wis.Stats. to have fatal constitutional deficiencies in excess of those to which the amendment of subsection (2) was directed, no further corrective action has been undertaken by the Wisconsin legislature. This particular provision of the Wisconsin Statutes has remained as amended, effective August 9, 1969, and was successfully invoked against this plaintiff by the defendants named above in a garnishment proceeding begun in July of 1974. Nothwithstanding what appears to have been repeated efforts by this plaintiff’s counsel to have that garnishment dissolved, such a result was not accomplished until this Court entered an order to that effect on May 1, 1975. This action seeks compensation for losses allegedly sustained as a result of that garnishment proceeding. II. No party can or does dispute the fact that, as a matter of settled federal law, any case arising under the provisions of 42 U.S.C. § 1983 must demonstrate both a deprivation of a right, privilege or immunity secured by the Constitution or laws of the United States, and causation of such deprivation by a person or entity acting under color of state law within the meaning of the fourteenth amendment. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Bright v. Isenbarger, 314 F.Supp. 1382, 1388 (N.D.Ind., 1970). The question raised by counsel for defendant Gansen is whether under the charges set out in this complaint, an attorney for a private individual may be found to be acting under color of state law by virtue of his institution of, prosecution of, and failure to withdraw a patently unconstitutional garnishment proceeding. The Court would answer this question in the affirmative. As a general rule, it is apparent that state court .litigants are not amenable to suit under the provisions of the Civil Rights Act. This is true because, as mere participants in the state forum, their activities cannot" }, { "docid": "15248097", "title": "", "text": "Forbes contends that the attachment of its accounts violates procedural due process of law and the Fourth .Amendment to the Constitution. We see no merit in the Fourth Amendment claim. Therefore, we turn immediately to the due process contention. Pennsylvania foreign attachment procedures authorize the issuance of a writ by the prothonotary without notice to the defendant, without any hearing, without an affidavit of meritorious action, without the posting of a bond, and without intervention by a judicial officer. Indeed, the attachment may precede the filing of the complaint by as much as five days. Once the attachment becomes effective, it is not dissolved by the general appearance of the defendant. Rather, dissolution occurs only if, inter alia, the defendant posts an adequate bond or other acceptable security or the plaintiff fails to prosecute his case with due diligence. Also, provision is made that if the defendant can demonstrate that the amount of property attached is excessive when compared to the amount in controversy he may obtain a reduction. Specifically, Forbes contends that the Supreme Court’s recent expression concerning due process expounded in Snia-dach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.1820, 23 L.Ed.2d 349 (1969) renders the Pennsylvania foreign attachment procedures unconstitutional. In Sniadach the Court held that Wisconsin’s prejudgment wage garnishment law contravened the due process clause of the Constitution to the extent that it permitted prejudgment garnishment of a small debtor’s wages without notice or a hearing. Noting the difference in factual settings between Sniadach and this appeal the preliminary inquiry therefore, is whether the due process principles expounded in Sniadach and its ap parent progeny render the Pennsylvania’s foreign attachment procedures unconstitutional. In Boddie v. Connecticut, 401 U. S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), Justice Harlan noted that due process principles are the guarantors of an efficient system for resolving disputes. We believe that the issue here should be examined in light of this observation. In this case both parties are private persons. Thus, our principal concern is whether the attachment procedures being challenged critically impair the resolution of disputes without serving" }, { "docid": "13045051", "title": "", "text": "immunity is grounded upon critical social considerations, for, if an attorney must work in constant fear of civil liability, it is the rights of the public that will suffer. Any such threat of liability visits an obvious chilling effect upon the attorney’s enthusiasm to vigorously defend his client’s position. Tunheim v. Bowman, supra. The remedies guaranteed by the Civil Rights Act are not to be invoked so as to create a conflict between the attorney’s duties to protect himself and to zealously represent his client. Ehn v. Price, 372 F.Supp. 151 (N.D.Ill.1974). As a matter of public policy, the attorney must not be placed in a position where he is compelled to gamble on the outcome of a case, with his own personal liability hanging in the balance. Having articulated the general theory whereby private individuals are thought to be engaged in state action when suits are brought in their behalf pursuant to particular state statutes, and having investigated the nature and purpose of the attorney’s immunity in this regard there remains the task of applying these principles to the claims presented in this complaint. The Court would inquire whether the application of either or both of these theories, in the context of this case, would implement the goals they seek to achieve. III. Liberally construed, the complaint at issue here appears to charge that defendant Gansen acted willfully and wantonly in bringing, prosecuting and refusing to dismiss a patently unconstitutional garnishment action against this plaintiff in a Wisconsin county court. Said complaint, the briefs submitted both in support of and in opposition to the motion to dismiss the complaint, and the oral argument that has been heard, demonstrate that the garnishment action begun in July of 1974 was apparently foreclosed by decision of the Wisconsin Supreme Court entered in November of 1969 as well as by subsequent decision of the United States Supreme Court, entered in January of 1975. Despite the fact that such was brought to the attention of the attorney prosecuting the garnishment action on several occasions, it is clear that no remedial steps were undertaker to" }, { "docid": "13045043", "title": "", "text": "Federal Rules of Civil Procedure, charging that the complaint fails to state a claim against him. It is this motion for dismissal to which this memorandum opinion is addressed. The sole issue concerns the question of whether, in the context of this case, this attorney can be said to have acted under color of state law within the meaning of 42 U.S.C. § 1983. The Court notes that, for purposes of resolution of a motion based upon Rule 12(b)(6), the allegations set forth in the pleading are to be construed in the light most favorable to the pleader and accepted as true. The Court is not permitted to delve into extraneous evidence, but must confine the scope of its analysis to matters presented by the pleadings, memorandums, briefs and oral arguments. See, 5 Wright & Miller, Federal Practice and Procedure: Civil §§ 1363, 1366 at pp. 656, 682 respectively (1969 ed.). It is thought that an action, especially one brought pursuant to the Civil Rights Act, is not to be dismissed at the pleading stage unless it appears to a certainty that no relief can be granted to the plaintiff under any state of facts which might be proved in support of his claims. See, e. g., Flores v. Yeska, 372 F.Supp. 35, 39 (E.D. Wis. 1974). After due consideration of those materials to which the Court may properly direct its attention, as viewed from the perspective required by the liberal standards outlined above, the Court finds that this complaint has in fact stated a legitimate claim against defendant Gansen; his motion for dismissal is thus to be denied, in accordance with the terms of the following memorandum opinion. I. In order to achieve a thorough understanding of the contentions presented by these parties, it is necessary to briefly review the rather tortured history of § 267.02 Wis.Stats., the Wisconsin garnishment statute upon which the events leading to this action were based. On June 9, 1969 the United States Supreme Court ruled that, as applied to the pre judgment garnishment of an individual’s wages, § 267.02(1) (a) Wis. Stats, was" }, { "docid": "13726238", "title": "", "text": "the United States District Court and, by leave, plaintiffs were permitted to file an amended complaint on October 16, 1973. Jurisdiction was premised under 28 U.S.C. §§ 1331(a), 1343(3), 1343(4), 2201, 2202, and 42 U.S.C. § 1983. Plaintiffs sought a judgment declaring (a) that N.D.C.C. Chap. 32 — 08 was unconstitutional on its face and (b) that the seizure of plaintiffs’ residence and automobile did not comport with the requirements of due process as guaranteed by the fourteenth amendment. Additionally, plaintiffs sought actual and punitive damages, but did not seek injunctive relief. The state court proceedings have been stayed pending the determination of this case. Clearly, we must focus upon three recent Supreme Court decisions, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), particularly the Mitchell case. The rights of prejudgment creditors were first significantly eroded in Sniadach v. Family Finance Corp., supra, where the Court overturned a Wisconsin statute which allowed a debtor’s wages to be garnished by a court summons issued by the court clerk on the request of a creditor. The debtor was not accorded a hearing before the seizure and was unable to quash the garnishment suit. Mr. Justice Douglas held that there were no extraordinary circumstances justifying such a summary procedure, and that therefore the Wisconsin statute denied the debtor due process. He also emphasized the drastic consequences a wage garnishment may have upon the debtor, consequences which could “drive a wage-earning family to the wall.” 395 U.S. at 341-342, 89 S.Ct. at 1823. In Fuentes v. Shevin, supra, the Supreme Court extended the Sniadach reasoning to summary prejudgment remedies other than garnishment, overturning Florida and Pennsylvania replevin statutes. The Court in Fuentes pointed out that the Florida statute did not require the applicant to make a convincing showing before seizure that the goods were, in fact, “wrongfully detained.” 407 U.S. at 73-74, 92 S.Ct. 1983. Rather, the" }, { "docid": "9767537", "title": "", "text": "attacked do not pass constitutional muster. In Sniadach v. Family Finance Corporation, 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, the Supreme Court held that a Wisconsin statute allowing _a creditor, with no special need, to garnish the wages of his alleged debtor prior to a hearing violated the dictates ofdue process. The opinion of the Court noted that garnishment visits special hardship on the poor and asserted that wages are a special form of property, even a temporary loss of which could “drive a wage-earning family to the wall.” 395 U.S. at 341-342, 89 S.Ct. at 1823 (footnote omitted). The Sniadach case is thus directly on point here insofar as the trustee process section of Massachusetts law authorizes the garnishment of wages, which it does, Mass.G.L. c. 246, § 24. In Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, the Court recentlyexpanded the Sniadach rule, statingthát the principles of nroce- ' dural~due\" process cannot be applied on the basis of distinctions betweenUifferent kinds ljrUfópirfty;,:407nj.,S~.~ aU88T 92 S.Ct. 1983. The Court explained: “It is not the business of a court adjudicating due process rights to make its own critical evaluation of [marketplace] choices and protect only the ones that, by its own lights, are ‘necessary.’ ” Id. The Court thereby implicitly dismissed the idea that Sniadach was predicated solely on the importance of wages to the poor and suggested that Sniadach was applicable to all property whose use is restricted to any degree. The Court in Fuentes cautioned that its narrow holding — that prejudgment replevin provisions violate due process “insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor,” —was not absolute. For example, no hearing would be required where attachment was necessary to secure quasi in rem jurisdiction, to guard against a bank failure, or to protect the public against dangerous products. Absent some such justification, reflecting an “important governmental or general public interest,” however, a defendant’s property could not be subject to attachment unless he had an opportunity to contest" }, { "docid": "20555696", "title": "", "text": "to give innkeepers a lien on the goods of their guests cannot be held unconstitutional when such statute does not extend beyond the rule established by the common law nor beyond the requirements of public policy.” National Malted Food Corp. v. Crawford, 254 Ill. App. 415, 428 (1929). The rule established by the common law, as stated above, gave the innkeeper a lien coextensive with his liability and since the innkeeper’s liability has been abrogated, the reasoning in National Malted Food Corp. is no longer sound. Furthermore, the fact that the statute does not transgress the bounds of the common law will not sustain it against an attack as unconstitutional, since “[t]he fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms.” Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed. 2d 349 (1969). In Sniadach, the Supreme Court held that Wisconsin’s prejudgment wage garnishment procedure which authorized the taking of property without notice and prior hearing violated the Due Process Clause of the Fourteenth Amendment. The Court stressed that wages were a specialized type of property, the “taking [of] which may impose tremendous hardship on wage earners with families to support.” Sniadach, supra, 395 U.S. 340, 89 S.Ct. 1822. The Court also noted that the prejudgment garnishment of wages procedure gave the creditor enormous leverage to collect even fraudulent debts. Although the Court noted that such summary procedure might meet due process requirements in extraordinary situations, citing Ownbey v. Morgan, 256 U.S. 94, 110-112, 41 S.Ct. 433, 65 L.Ed. 837 (1921), Coffin Bros. v. Bennett, 277 U.S. 29, 31, 488 S.Ct. 422, 72 L.Ed. 768 (1928), Fahey v. Mallonee, 332 U.S. 245, 253-254, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947), and Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950), it found: (1) that the facts presented no situation requiring special protection to the state or to the creditor; and (2) that the Wisconsin statute was not narrowly drawn to meet" }, { "docid": "13045052", "title": "", "text": "applying these principles to the claims presented in this complaint. The Court would inquire whether the application of either or both of these theories, in the context of this case, would implement the goals they seek to achieve. III. Liberally construed, the complaint at issue here appears to charge that defendant Gansen acted willfully and wantonly in bringing, prosecuting and refusing to dismiss a patently unconstitutional garnishment action against this plaintiff in a Wisconsin county court. Said complaint, the briefs submitted both in support of and in opposition to the motion to dismiss the complaint, and the oral argument that has been heard, demonstrate that the garnishment action begun in July of 1974 was apparently foreclosed by decision of the Wisconsin Supreme Court entered in November of 1969 as well as by subsequent decision of the United States Supreme Court, entered in January of 1975. Despite the fact that such was brought to the attention of the attorney prosecuting the garnishment action on several occasions, it is clear that no remedial steps were undertaker to relieve this plaintiff of the burden of the garnishment procedure until such was compelled by order of this Court. In addition, these pleadings charge that Attorney Gansen was at all times relevant here to acting without specific direction from his client, the named garnishor, and that the whole of the garnishment action was under his complete control. The Court finds that, if substantiated at trial by competent evidence, the allegation that this defendant willfully and maliciously commenced a frivolous garnishment action without substantial hope of success or other legitimate purpose constitutes a claim upon which relief may be granted under the provisions of 42 U.S.C.A. § 1983. As noted above, it is clear that the logic whereby the named plaintiff is thought to be engaged in state action by instituting a garnishment proceeding applies with equal force to that plaintiff’s attorney. The Court finds that where malicious or bad faith use of garnishment procedures is proven, the immunity otherwise available to the attorney is not to be applied for the reason that it would not" }, { "docid": "22442632", "title": "", "text": "the landlady here. And here the state action requirement is also met. B. Substance Of The Cause Of Action In addition to their challenge to the existence of the requisite state action, defendants argue that the other element of a cause of action under § 1983 — the deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States — was not alleged here. The plaintiff’s claim is, however, that investing the landlord with power to take unilateral action Art. 5238a deprives her, and the class she represents, of the protection of the due process clause of the Fourteenth Amendment. This claim springs from Snia-dach v. Family Finance Corp., 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 in which the Supreme Court held a Wisconsin garnishment statute unconstitutional. The defect in the statute was its failure to provide the debtor with any procedural protection against the loss of wages — “the interim freezing of wages without a chance to be heard violated procedural due process.” 395 U.S. at 340, 89 S.Ct. at 1822, 23 L.Ed.2d at 353. See Note, Attachment and Garnishment —Constitutional Law-Due Process of Law — Garnishment of Wages Prior to Judgment is a Denial of Due Process: The Sniadach Case and Its Implications for Related Areas of the Law, 68 Mich. L.Rev. 986 (1970). See also Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. Before determining whether Sniadach requires a conclusion that plaintiffs have stated a claim, we must sound a caveat. In determining whether a claim for which relief can be granted has been stated we do not pass on the merits of that claim. That is for the trial Court to determine. See Public Affairs Associates, Inc. v. Rickover, 1962, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604. In making that determination we do, however, indicate some of the considerations and factors that may be important. Among these is the fact that 5238a has the same characteristic that the Supreme Court found objectionable in the Wisconsin statute: Property may be seized by" }, { "docid": "13045044", "title": "", "text": "unless it appears to a certainty that no relief can be granted to the plaintiff under any state of facts which might be proved in support of his claims. See, e. g., Flores v. Yeska, 372 F.Supp. 35, 39 (E.D. Wis. 1974). After due consideration of those materials to which the Court may properly direct its attention, as viewed from the perspective required by the liberal standards outlined above, the Court finds that this complaint has in fact stated a legitimate claim against defendant Gansen; his motion for dismissal is thus to be denied, in accordance with the terms of the following memorandum opinion. I. In order to achieve a thorough understanding of the contentions presented by these parties, it is necessary to briefly review the rather tortured history of § 267.02 Wis.Stats., the Wisconsin garnishment statute upon which the events leading to this action were based. On June 9, 1969 the United States Supreme Court ruled that, as applied to the pre judgment garnishment of an individual’s wages, § 267.02(1) (a) Wis. Stats, was unconstitutional for want of certain fundamentals of procedural due process. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Shortly after this decision was rendered, the Wisconsin legislature attempted to cure the defects the Supreme Court had noted by amending § 267.02 at subsection (2). The revised statute, effective August 9, 1969, restricted the ability of a civil plaintiff to commence a garnishment action affecting the earnings of a principal defendant. These legislative efforts appear to have been futile, however, for on November 25, 1969, the Wisconsin Supreme Court ruled that the principles of procedural due process articulated in Sniadach required that § 267.02(1) (a)' be held unconstitutional as applied not only to pre judgment wage garnishment, but also as to prejudgment garnishment of “other property” as well. Larson v. Featherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969); rehearing denied, February 3, 1970. Subsequent to the Larson decision, the United States Supreme Court confirmed the principles of due process that the Wisconsin Supreme Court had established. See: North Georgia" }, { "docid": "23008713", "title": "", "text": "dissolved the attachment and permitted Dollar to substitute security in the form of U.S. Treasury notes totaling $50,000. In its motion to dissolve the attachment, its answer, and subsequent motion filed October 11, 1974, Dollar challenged the constitutionality of the instant procedures. Judge Teitelbaum, in a carefully considered opinion, held the foreign attachment procedures unconstitutional and granted Dollar’s motion to dismiss the action. This appeal followed. II. The basic issue before us is whether Pennsylvania summary procedures for jurisdictional attachment of property of a Corporation not registered and having no regular place of business in the Commonwealth in a suit by a resident plaintiff comports with fundamental fairness, in the absence of notice to the defendant prior to attachment, an opportunity for prompt hearing to challenge the attachment, and other procedural safeguards against wrongful seizure. Procedural due process issues have been the subject of much recent Supreme Court litigation. None of these cases have specifically considered the issue before us, but several have analyzed prejudgment attachment procedures for debtor-creditor suits. The Supreme Court opinions have produced not only varying results, but differing analytical approaches to due process problems. The earliest case in this line of decisions is Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), which held Wisconsin prejudgment garnishment procedures unconstitutional. That decision appeared to evince a particular concern for “wages —a specialized type of property”, 395 U.S. at 340, 89 S.Ct. 1820, and mandated that the affected individual receive notice and a hearing before garnishment. Sniadach spawned two divergent lines of cases — one limiting Sniadach’s pre-deprivation notice and hearing rule to wages or property of similar importance to the individual, the other invalidating prejudgment procedures generally. The Supreme Court put its imprimatur on the latter line in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The Court there held unconstitutional Florida and Pennsylvania prejudgment replevin procedures utilized to recover household goods purchased under conditional sales contracts and on which payments were allegedly overdue. The Court stated that even a temporary, non-final deprivation of property in" }, { "docid": "15248098", "title": "", "text": "Court’s recent expression concerning due process expounded in Snia-dach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.1820, 23 L.Ed.2d 349 (1969) renders the Pennsylvania foreign attachment procedures unconstitutional. In Sniadach the Court held that Wisconsin’s prejudgment wage garnishment law contravened the due process clause of the Constitution to the extent that it permitted prejudgment garnishment of a small debtor’s wages without notice or a hearing. Noting the difference in factual settings between Sniadach and this appeal the preliminary inquiry therefore, is whether the due process principles expounded in Sniadach and its ap parent progeny render the Pennsylvania’s foreign attachment procedures unconstitutional. In Boddie v. Connecticut, 401 U. S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), Justice Harlan noted that due process principles are the guarantors of an efficient system for resolving disputes. We believe that the issue here should be examined in light of this observation. In this case both parties are private persons. Thus, our principal concern is whether the attachment procedures being challenged critically impair the resolution of disputes without serving to preserve any compensating governmental interest. The Court in Sniadach faced such a situation. There the seizure of Mrs. Sniadach’s wages prior to any hearing on the merits of the plaintiff’s claim tended to reverse the usual litigating postures of the parties. Ordinarily the plaintiff bears the burden of bringing suit and proving his claim. But Sniadach involved a situation where the defendant, as a result of the wage seizure, found herself deprived of her only means of support and, in effect, unable to avoid settlement and await the opportunity to present her defense in an adversary proceeding. Plaintiff’s first contention is that Pennsylvania’s foreign attachment procedures violate due process because they permit deprivation of property without notice, a hearing or an affidavit of meritorious action, and without requiring the posting of a bond or the intervention of any judicial officer. In view of plaintiff’s particular circumstances, the question before us, therefore, is whether the due process clause precludes a Pennsylvania plaintiff from invoking that state’s foreign attachment procedures against a foreign corporate defendant not" } ]

[ { "docid": "6231469", "title": "", "text": "for that time period. Under Federal Prison Bureau Policy, “ordinarily, if a sentence results from the state charges, there will be a presumption that the prisoner did receive credit for presentence time, however, this may be rebutted if the prisoner can demonstrate that the state did not credit the time.” Bureau of Prison Policy Statement 5880.24 (Sept. 5, 1979), § 5(c)(2)(a); Emig v. Bell, 456 F.Supp. 24, 28 (D.Conn.1978). Ali has not carried that burden, and would have to exhaust state remedies on this point before raising it in federal court, where the proper avenue, should Ali pursue it, would be under 28 U.S.C. § 2241. Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973). Ali’s related claim, that he is entitled to federal credit for time spent serving his state sentences, was at most tangentially presented to the district court so that the merits of this contention are not properly before us. Moreover, this claim, like the previous one, is a challenge to the sentence as executed by the prison and parole authorities and should be made on a petition for a writ of habeas corpus, 28 U.S.C. § 2241, not under 28 U.S.C. § 2255 whose terms cover challenges to sentences as imposed. See Gomori v. Arnold, 533 F.2d 871 (3d Cir. 1976); Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973). In any event, this Court’s recent holding in United States v. Campisi, 622 F.2d 697 (3d Cir. 1980), forecloses Ali’s claim in this regard. Campisi, like Ali, asserted that the federal sentence should be deemed to commence immediately after its imposition, at the time the sentenced defendant is returned to the state prison. This Court held that such an interpretation of 18 U.S.C. § 3568 would effec tively prevent a district court from imposing a term of punishment to be served consecutively to an existing sentence, and would overrule prior decisions by this Court which held that a federal district court “has no power to direct that a federal sentence shall run concurrently with a state sentence.” Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.)," } ]

[ { "docid": "282235", "title": "", "text": "Randall argues that he was clearly confined by judicial order to Second Genesis under restrictive conditions and was placed in the custody of the Pretrial Services Agency. He claims he is therefore entitled to credit toward his sentence under the plain language of the statute. Despite Randall’s protestations, we do not believe that “custody” as used in § 3568 has the meaning he would ascribe to it. The district court properly viewed our recent decision in United States v. Insley, 927 F.2d 185 (4th Cir.1991) as directing dismissal of this claim. In Insley, the defendant had been released on appeal bond subject to certain conditions following her conviction on drug charges. In holding that she had not been “officially detained” under 18 U.S.C. § 3585(b), we stated plainly that “[e]onditions of release are not custody.” Id. at 186. We rejected Insley’s efforts to establish a broad definition of “official detention” and declared that we did “not adopt the approach of those courts which have granted credit for time spent out of jail.” Id. at 187. Here, Randall had not been incarcerated in jail but instead had been released on conditional bond into a residential treatment center. Our decision in Insley thus speaks directly to Randall’s attempts to broaden the reach of § 3568. See also United States v. Woods, 888 F.2d 653, 655 (10th Cir.1989) (no credit against sentence for time spent in halfway house); United States v. Smith, 869 F.2d 835, 837 (5th Cir.1989) (same). Randall attempts to avoid Insley by arguing that the decision did not actually establish a bright line rule but rather turned on the relative lack of severity of the restrictions imposed on Insley. He asks this court to consider the regulations and physical constraints prescribed at Second Genesis as well as the conditions of the court’s order and to conclude that they were sufficiently restrictive to justify an award of credit toward his sentence. To bolster his assertions, Randall points to a Program Statement promulgated by the Bureau of Prisons (BOP), which he claims identifies the degree of restraint as the critical factor in" }, { "docid": "5338871", "title": "", "text": "usual conditions of release. On May 30, 1989, defendant entered a plea of guilty to one count of the indictment. Defendant was sentenced to forty-one months in jail. On July 25, 1990, defendant filed a motion in the District Court for sentence credit of 147 days spent in his mother’s house under the conditions of his release. The District Court granted this motion. The United States filed a motion asking the court to reconsider sentence credit. On September 21, 1990, the District Court vacated its earlier order and denied sentence credit for the time defendant spent under house arrest. The District Court held that because defendant was not physically detained, he was not eligible to receive sentence credit. II. Title 18 U.S.C. § 3585(b) provides in pertinent part: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which a sentence was imposed. Section 3585 became effective for crimes committed on or after November 1, 1987. Prior to the enactment of section 3585, credit for presentence custodial time was governed by former 18 U.S.C. § 3568. Section 3568 mandated sentence credit for any days spent “in custody.” The language “in custody” was replaced by “official detention” in section 3585. This Court interpreted “in custody” to require physical incarceration. Marrera v. Edwards, 812 F.2d 1517 (6th Cir.1987). We have yet to interpret the term “official detention.” Other circuits have held that “official detention” requires “imprisonment in a place of confinement, not stipulations or conditions imposed upon a person not subject to full physical incarceration.” United States v. Woods, 888 F.2d 653, 655 (10th Cir.1989), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990). The Tenth Circuit held that time spent in a halfway house, although required by the sentencing court as a condition of release, was not a restriction of liberty equivalent to incarceration in a jail facility, and denied sentence credit under section 3585. Id. at 656. See United" }, { "docid": "22913455", "title": "", "text": "sentencing credit for the time he spent in state prison. It reasoned, “[t]he determination by federal authorities that Bloomgren’s federal sentence would run consecutively to his state sentence is a federal matter which cannot be overridden by a state court provision for concurrent sentencing on a subsequently-obtained state conviction.” Although Leal’s state conviction was not subsequently obtained, the state court order for concurrent sentencing post-dated the federal conviction and sentence in this case. He is contending, in contravention of the decisional authority of several other circuits, that the U.S. Marshals Service was required to comply with the state trial court’s order that Leal be taken to a federal prison to serve out his concurrent state sentence. He has cited no binding legal authority mandating such a result. Because the nine months he spent in state custody between November 1998 and August 1999 were “credited against another sentence,” the BOP was not required to credit that time toward his federal sentence. Accordingly, the judgment of the district court is AFFIRMED. Leal’s motion for appointment of counsel, deferred by the district court, is DENIED. . See United States v. Wilson, 503 U.S. 329, 331-32, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); 18 U.S.C. § 3585(b). . 18 U.S.C. § 3585(a). . § 3585(b). . 980 F.2d 1269, 1270 (9th Cir.1992). . Id. .Id. . Id. . Id. . Id. . Id. at 1270-71. . Id. at 1270. . Id. . Id. at 1271. In the recent Taylor v. Sawyer, the Ninth Circuit rejected a claim similar to Del Guzzi’s and quoted language from the concurrence in Del Guzzi, which stated: Federal prison officials are under no obligation to, and may well refuse to, follow the recommendation of state sentencing judges that a prisoner be transported to a federal facility. Moreover, concurrent sentences imposed by state judges are nothing more than recommendations to federal officials. Those officials remain free to turn those concurrent sentences into consecutive sentences by refusing to accept the state prisoner until the completion of the state sentence and refusing to credit the time the prisoner spent in state" }, { "docid": "14381103", "title": "", "text": "868 (2009) (stating that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face”) (internal quotation marks and citation omitted). Pro se complaints are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) and therefore should be construed liberally. Cf. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (holding under the Prison Litigation Reform Act that the district court cannot dismiss a pro se prisoner’s pleading merely “because the court finds the plaintiffs allegations unlikely”). Alexander asserted in his petition that he is entitled to credit for time served on a federal detainer between May 2, 2006, the day he was granted parole by the state, and November 26, 2002, when his federal sentence commenced, November 26, 2002. If the factual allegations in Alexander’s petition are correct, he would be entitled to credit for the time served on the federal detainer after being paroled by the state pursuant to § 3585(b). Under 18 U.S.C. § 3585(b), a federal defendant “shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences” if it is “(1) as a result of the offense for which the sentence was imposed”; or “(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed[,]” if that time has not been credited against the state sentence. 18 U.S.C. § 3585(b). See generally United States v. Wilson, 503 U.S. 329, 334-37, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir.1993) (per curiam). A federal sentence “commences on the date the defendant is received in custody awaiting transportation to ... the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). A defendant" }, { "docid": "22364664", "title": "", "text": "prisoner for credit purposes. In this regard, we point out that it is ironical that the longer the federal pretrial detention lasted, the better off the prisoner would be from a crediting standpoint, because a short detention might not result in the prisoner’s being regarded as being in federal custody at all, in which case he would not be entitled to credit for that period against the federal sentence ultimately imposed. Thus, we agree with those courts which have determined that the general rule prohibiting double credit articulated in section 3585(b) applies equally to situations where, as here, the prisoner was in federal control pursuant to a writ of habeas corpus ad prosequendum during the time period for which a pre-sentence credit is sought. See Chambers, 920 F.Supp. at 622-23 (finding that petitioner could not receive credit on federal sentence for time period commencing March 9, 1992, to October 16, 1992, the date the federal sentence was imposed; court noted that petitioner was serving state sentence as of March 9, 1992, and was subject to primary jurisdiction of state during relevant time period); see also Mil ler v. Crabtree, No. 98-989, 1999 WL 607191, at *2 (D.Or. Aug.4,1999) (rejecting petitioner’s request for credit for pre-sen-tence incarceration where petitioner received credit for time served on sentence for state parole violation); United States v. Mahmood, 19 F.Supp.2d 38, 35 (E.D.N.Y. 1998) (denying petitioner credit under section 3585(b) not awarded by BOP for entire pre-sentence time period and noting that BOP “erred on the side of generosity” in awarding some credit toward federal sentence for time spent in detention pursuant to a federal writ of habeas corpus as prosequendum; court noted that time spent in custody pursuant to writ already had been credited against state sentence); Smith, 812 F.Supp. at 374 (recognizing that section 3585(b) prohibits “double credit”); cf. Sinito v. Kindt, 954 F.2d 467, 470 (7th Cir.1992) (and cases cited therein) (rejecting petitioner’s request for credit on second federal sentence for pre-sentence incarceration pursuant to section 3568; court stated that petitioner’s request was “absurd,” as it was clear that petitioner was serving" }, { "docid": "11184283", "title": "", "text": "for the time spent at the Center prior to sentencing. The government appeals the grant of the petition for writ of habeas corpus. We affirm. II. Until 1987, credit for time served prior to sentencing was governed by 18 U.S.C. § 3568, which required' that a convict receive “credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” In Brown v. Rison, 895 F.2d 533 (9th Cir.1990), we were called upon to decide whether time spent in a community treatment center was time “in custody” for purposes of section 3568. In the absence of an express statutory definition of “in custody,” we interpreted the phrase in light of its “ordinary and obvious meaning.” Id. at 536. We concluded that, to a normal English speaker, the “plain meaning and the obvious intent” of the term “in custody” would encompass circumstances where restraints on liberty “approach[] those of incarceration.” Id. Section 3568, however, was repealed effective November 1, 1987, and replaced with 18 U.S.C. § 3585, which provides that: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences .... 18 U.S.C. § 3585(b). The government argued before the district court that “official detention,” unlike the phrase “in custody,” was a term defined by Congress to exclude time spent while residing at a community treatment center as a condition of release. In addition, the government urged deference to the BOP’s interpretation of section 3585(b), which would also preclude the crediting of time served while at a community treatment center. The district court held that “custody” and “official detention” are essentially synonymous, and that therefore appellee was entitled to receive credit for time served at the Center. HI. We review de novo the district court’s interpretation of federal statutes. United States v. Schiffbauer, 956 F.2d 201, 202 (9th Cir.1992). The grant of a habeas petition is also reviewed de novo. Camacho v. White, 918 F.2d 74, 77 (9th Cir.1990)." }, { "docid": "22277283", "title": "", "text": "the crimes enumerated in U.S.S.G. § 4B1.2. We hold that for purposes of U.S.S.G. § 2K2.1(a)(4)(A), a court should factor a prior conviction under Fla. Stat. § 790.15(2) as a crime of violence. B. Credit for Time Served in State Custody Alexander also argues that the district court erred by declining to award credit against his sentence for time served in state custody. 18 U.S.C. § 3585(b) provides, “[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences.... ” Authority to calculate credit for time served under section 3585(b) is vested in the Attorney General, not the sentencing court. United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 1354, 117 L.Ed.2d 593 (1992). And, prisoners may seek judicial review of the cal culation only after exhausting administrative remedies. United States v. Lucas, 898 F.2d 1554, 1555 (11th Cir.1990). At the sentencing hearing, Alexander requested that the court modify his sentence to take into account the fact that the Bureau of Prisons would not give him credit for the time he served in state custody. (R.2-40 at 15.) On appeal, he re-characterizes this as a request for credit against his sentence pursuant to 18 U.S.C. § 3585(b). We need not be detained by concerns as to whether this issue was preserved for review, however, because Alexander has not exhausted his administrative remedies, and thus the district court lacked authority to award credit for time served. V Conclusion For the reasons stated above, we AFFIRM Alexander’s sentence of forty three-months imprisonment to be followed by three years supervised release for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). AFFIRMED. . \"[T]he categorical approach changes slightly when a court analyzes a state crime under the residual clause, as is the case here, as opposed to a state crime enumerated” in 18 U.S.C. § 924(e)(2)(B)(ii) or U.S.S.G. § 4B1.2(a)(2). Hamson, 558 F.3d at 1285. When considering an enumerated crime, courts define the crime in its" }, { "docid": "14381104", "title": "", "text": "time served on the federal detainer after being paroled by the state pursuant to § 3585(b). Under 18 U.S.C. § 3585(b), a federal defendant “shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences” if it is “(1) as a result of the offense for which the sentence was imposed”; or “(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed[,]” if that time has not been credited against the state sentence. 18 U.S.C. § 3585(b). See generally United States v. Wilson, 503 U.S. 329, 334-37, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir.1993) (per curiam). A federal sentence “commences on the date the defendant is received in custody awaiting transportation to ... the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). A defendant may not receive a “double credit” for detention time. Wilson, 503 U.S. at 337, 112 S.Ct. 1351. Thus, whether the district court properly dismissed Alexander’s petition pursuant to § 2243 depends on the factual allegations in the petition. Liberally construing the petition, Alexander has provided sufficient factual allegations to support his claim. The district court erred in characterizing Alexander’s claim as “conclusory,” and in requiring him at this stage to provide evidence that his state parole ended in May 2006. At the motion to dismiss stage, all factual allegations are deemed true, see Urbina, 270 F.3d at 295, and Alexander was not required to present any evidence supporting his claim. Instead, the district court should have ordered the BOP to show cause for why the writ should not be granted. In other words, at this stage in the process, it is incumbent on the BOP to controvert the petitioner’s allegation that he was paroled earlier than November 26, 2006, and to give the petitioner the opportunity to demonstrate that he was paroled before that date." }, { "docid": "23037924", "title": "", "text": "PER CURIAM: The Defendant-Appellant, who pleaded guilty to unlawful use of a communication facility, argues that the time he was free on bond pending trial should be credited towards the sentence that he eventually received. We have recently rejected an almost identical argument. Pinedo v. United States, 955 F.2d 12 (5th Cir.1992). We therefore affirm the judgment of the district court. After being indicted, Weathersby was arraigned on December 29, 1989, and released on a personal recognizance bond. On September 25, 1990, Weathersby was arrested because of bond violations, and he was remanded to custody on October 4, 1990. He was eventually sentenced to twenty-seven months in jail, three years of supervised release, and a special assessment of $50. Proceeding pro se, Weathersby invoked 28 U.S.C. § 2255, moving to receive credit for the time he was free on bond. Section 2255 is not the appropriate vehicle for such a motion; he should have invoked 28 U.S.C. § 2241. Because he is proceeding pro se, we construe his pleading liberally and consider it a proper motion under § 2241. See United States v. Gabor, 905 F.2d 76, 77-78 (5th Cir.1990). We are able to construe the purported § 2255 motion, which must be filed in the district where the prisoner was convicted, as a § 2241 petition, which must be filed in the district where the prisoner is incarcerated, because in this case the prisoner’s district of incarceration is the same as the district of conviction. See id. at 78. On the merits, however, Weathers-by cannot prevail. He bases his argument on 18 U.S.C. § 3585, which provides: “A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence com-mences_” 18 U.S.C. § 3585(b) (emphasis added). This statute replaced § 3568, which stated: “The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” 18 U.S.C. § 3568 (emphasis added); Pinedo," }, { "docid": "22923852", "title": "", "text": "downward departure nonetheless may be upheld on the basis of the other factors cited. When a sentencing court relies on a combination of permissible and impermissible factors to justify a departure, the sentence will be affirmed if an appellate court determines the district court would have imposed the same sentence absent reliance on the impermissible factors. See Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). We therefore must review the remaining factors to determine whether they alone support the departure. 2. The Third Factor We turn to the third factor—Pay-ton’s possible ineligibility for credit for his pretrial detention. Defendant remained in custody from his January 2, 1995 arrest until the return of his guilty verdict on August 8, 1996, for a total of 19 months—nine months in state and ten months in federal custody. Pursuant to statute Payton is guaranteed the right to receive credit for his ten months in federal detention preceding his August 8, 1996 federal conviction. The governing statute provides, in pertinent part, as follows: Credit for prior custody.—A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences ... as a result of the offense for which the sentence was imposed.... 18 U.S.C. § 3585(b). Moreover, Payton may receive credit for his nine months in state custody. The United States Attorney General has the authority to determine the appropriate credit for time spent in “official detention” under § 3585(b) once a defendant has begun to serve his or her sentence. See United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); see also 18 U.S.C. § 4001(b)(1) (vesting control and management of federal prisons in the Attorney General). Specifically, § 3585(b) permits the Attorney General to award credit for time spent in state detention pending trial on subsequently dismissed state charges that arose out of the same incident for which the prisoner was convicted in federal court. See United States v. Moore, 978 F.2d 1029," }, { "docid": "21605781", "title": "", "text": "while in state prison as a result of the federal detainer, and therefore entitled to credit by virtue of the requirement in the second sentence of section 3568 that the Attorney General credit a federal prisoner for “days spent in custody in connection with the offense or acts for which [his] sentence was imposed.” A detainer neither effects a transfer of a prisoner from state to federal custody nor transforms state custody into federal custody by operation of law. “Unlike a writ of habeas corpus ad prosequendum issued by a federal district court.... a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison.” United States v. Mauro, 436 U.S. 340, 358, 98 S.Ct. 1834, 1845, 56 L.Ed.2d 329 (1978) (footnote omitted); accord United States v. Bamman, 737 F.2d 413, 415 (4th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); see also H.R.Rep. No. 1018, S.Rep. No. 1356, 91st Cong., 2d Sess. 3 (1970) (“A detainer is a notification filed with the institution . in which a prisoner is serving a sentence advising that he is wanted to face pending criminal charges in another jurisdiction.”), reprinted in 1970 U.S.Code Cong. & Admin.News 4864, 4865. Thomas instead rests his argument that he is entitled to credit for time served in state prison exclusively on the decision in United States v. Croft, 450 F.2d 1094 (6th Cir.1971). In Croft, the Sixth Circuit held that where a federal court orders a prisoner’s immediate commitment to federal prison, the prisoner’s federal sentence commences for purposes of section 3568 upon issuance of that order, even if the prisoner is not then delivered to federal prison. The sequence of events in Croft was indeed similar to the sequence of events in this case. There, the prisoner was arrested by federal authorities for a federal offense and freed on bond. While out on bond, he was arrested on an unrelated state charge and taken into state custody. The prisoner appeared in" }, { "docid": "22364665", "title": "", "text": "primary jurisdiction of state during relevant time period); see also Mil ler v. Crabtree, No. 98-989, 1999 WL 607191, at *2 (D.Or. Aug.4,1999) (rejecting petitioner’s request for credit for pre-sen-tence incarceration where petitioner received credit for time served on sentence for state parole violation); United States v. Mahmood, 19 F.Supp.2d 38, 35 (E.D.N.Y. 1998) (denying petitioner credit under section 3585(b) not awarded by BOP for entire pre-sentence time period and noting that BOP “erred on the side of generosity” in awarding some credit toward federal sentence for time spent in detention pursuant to a federal writ of habeas corpus as prosequendum; court noted that time spent in custody pursuant to writ already had been credited against state sentence); Smith, 812 F.Supp. at 374 (recognizing that section 3585(b) prohibits “double credit”); cf. Sinito v. Kindt, 954 F.2d 467, 470 (7th Cir.1992) (and cases cited therein) (rejecting petitioner’s request for credit on second federal sentence for pre-sentence incarceration pursuant to section 3568; court stated that petitioner’s request was “absurd,” as it was clear that petitioner was serving a prior federal sentence during the detention period); Arashi, 1995 WL 453308, at *4-9 (reaching same conclusion under similar facts). The principal rationale for disallowing double credit in this circumstance is that the prisoner is not in custody solely because of the pending federal charges, but instead is serving the prior state sentence. See Sinito, 954 F.2d at 469; Miller, 1999 WL 607191, at *2; see also Chambers, 920 F.Supp. at 622-23. Thus, in harmony with the principles of primary custodial jurisdiction and comity, the prisoner remains in service of the first sentence imposed during the time period, and the writ merely “loans” the prisoner to federal authorities. See id. at 622 (stating that producing a state prisoner under a writ of habeas corpus ad prosequendum to answer to federal charges does not relinquish state custody); Smith, 812 F.Supp. at 371, 374 (same) (citing cases). Applying these principles to the circumstances of Rios’s detention on the federal writ, it is clear that he remained throughout the 22-month time period in the primary custodial jurisdiction of" }, { "docid": "22923853", "title": "", "text": "Credit for prior custody.—A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences ... as a result of the offense for which the sentence was imposed.... 18 U.S.C. § 3585(b). Moreover, Payton may receive credit for his nine months in state custody. The United States Attorney General has the authority to determine the appropriate credit for time spent in “official detention” under § 3585(b) once a defendant has begun to serve his or her sentence. See United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); see also 18 U.S.C. § 4001(b)(1) (vesting control and management of federal prisons in the Attorney General). Specifically, § 3585(b) permits the Attorney General to award credit for time spent in state detention pending trial on subsequently dismissed state charges that arose out of the same incident for which the prisoner was convicted in federal court. See United States v. Moore, 978 F.2d 1029, 1031 (8th Cir.1992) (reversing district court’s rejection of Bureau of Prisons’ award). The Attorney General delegated this authority to the Bureau of Prisons (BOP). See 28 C.F.R. § 0.96 (1997) (“The Director of the Bureau of Prisons is authorized to exercise or perform any of the authority, functions, or duties conferred or imposed upon the Attorney General by any law relating to the commitment, control, or treatment of persons ... charged with or convicted of offenses against the United States_”). Therefore, the BOP could conclude Payton should receive credit for time served in state custody because the initial state charges arose out of the same incident as his federal conviction. The district court at sentencing wrongly assumed Payton would be ineligible for credit. Judge Nevas’ concern on this score turns out to have been misplaced, as we have learned subsequent to the date of sentencing. We are advised by a letter from the U.S. Department of Justice dated November 18, 1997 that appellant will receive full credit towards his federal sentence for the 19 months" }, { "docid": "22364680", "title": "", "text": "cases, but rejected it. Thus, nothing in this opinion should be construed as suggesting that in other cases, the BOP’s award of Willis and/or Kayfez credits is improper. The BOP's position with respect to the grant of Willis and Kayfez credits simply has no application to the facts of this case, and does not affect our conclusion that the award of double credit in Rios's case is prohibited by section 3585(b). . Our research reveals that the majority of the courts addressing the meaning of section 3568 interpreted that statute to prohibit the award of \"double credit” despite the fact that ihe language of the statute did not explicitly limit its application in that manner. See, e.g. Sinito v. Kindt, 954 F.2d 467, 470 (7th Cir. 1992) (noting that several cases held under section 3568 that a prisoner in state custody subject to a writ of habeas corpus ad prose-quendum based on a federal charge is not entitled to pretrial credit against his subsequent federal sentence because the time spent in pretrial custody was credited toward his existing state sentence) (citing cases); Siegel v. United States, 436 F.2d 92, 95 (2d Cir. 1970) (finding that defendant was not entitled to double credit for time spent in federal control prior to the imposition of the federal sentence where it was undisputed that he was serving a state sentence during the relevant time period and the time was credited to his state sentence). . Section 3568, which was repealed in 1984, provided in relevant part (emphasis added): The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. . A Program Statement is an internal agency guideline, which is akin to an interpretive rule. See Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 2027," }, { "docid": "282234", "title": "", "text": "a confederate’s upcoming trial. As ordered, Randall returned to Second Genesis and then reported to prison on October 1, 1986. A few years later, he sought credit towards service of his sentence pursuant to 18 U.S.C. § 3568 for the 257 days he resided at Second Genesis. The Bureau of Prisons (BOP) denied his requests, citing its policy that time spent in a residential community center is not credited towards a term of imprisonment. Randall then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The district court dismissed the petition on the basis of this court’s recent decision in United States v. Insley, 927 F.2d 185 (4th Cir.1991). Randall now appeals. II. At issue here is the interpretation of 18 U.S.C. § 3568. That section provides that the “Attorney General shall give any [person convicted of an offense] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” Randall argues that he was clearly confined by judicial order to Second Genesis under restrictive conditions and was placed in the custody of the Pretrial Services Agency. He claims he is therefore entitled to credit toward his sentence under the plain language of the statute. Despite Randall’s protestations, we do not believe that “custody” as used in § 3568 has the meaning he would ascribe to it. The district court properly viewed our recent decision in United States v. Insley, 927 F.2d 185 (4th Cir.1991) as directing dismissal of this claim. In Insley, the defendant had been released on appeal bond subject to certain conditions following her conviction on drug charges. In holding that she had not been “officially detained” under 18 U.S.C. § 3585(b), we stated plainly that “[e]onditions of release are not custody.” Id. at 186. We rejected Insley’s efforts to establish a broad definition of “official detention” and declared that we did “not adopt the approach of those courts which have granted credit for time spent out of jail.” Id. at 187." }, { "docid": "11184282", "title": "", "text": "POOLE, Circuit Judge: I. From March 22, 1989 to November 6, 1989, appellee Thomas F. Mills resided at the Independence House, a community treatment center (Center) in Denver, Colorado, following his arrest in Colorado on drug charges. Mills was placed in the custody of the Center as a condition of release pending trial and sentencing. On October 6, 1989, Mills was sentenced in the district of Colorado to a term of imprisonment of 30 months and a three-year term of supervised release. Mills began service of his sentence at the Federal Prison Camp in Boron, California on November 6, 1989. On July 16, 1990, he filed his first petition for writ of habeas corpus, seeking credit against his sentence for the time spent at the Center. This petition was dismissed without prejudice, however, to allow Mills to exhaust his administrative remedies with the Bureau of Prisons (BOP). The BOP denied the re quest for credit. On January 15, 1991, Mills’ second petition was granted, and the appellant was ordered to award Mills jail time credit for the time spent at the Center prior to sentencing. The government appeals the grant of the petition for writ of habeas corpus. We affirm. II. Until 1987, credit for time served prior to sentencing was governed by 18 U.S.C. § 3568, which required' that a convict receive “credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” In Brown v. Rison, 895 F.2d 533 (9th Cir.1990), we were called upon to decide whether time spent in a community treatment center was time “in custody” for purposes of section 3568. In the absence of an express statutory definition of “in custody,” we interpreted the phrase in light of its “ordinary and obvious meaning.” Id. at 536. We concluded that, to a normal English speaker, the “plain meaning and the obvious intent” of the term “in custody” would encompass circumstances where restraints on liberty “approach[] those of incarceration.” Id. Section 3568, however, was repealed effective November 1, 1987, and replaced with 18" }, { "docid": "8517008", "title": "", "text": "F.2d 764, 766 (5th Cir.1967). In part to correct this misunderstanding, Congress again amended § 3568 in 1966 to provide that “any person convicted of an offense” shall receive “credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed[,]” regardless of whether the sentence involved a statutory minimum. Bail Reform Act of 1966, Pub.L. No. 894165, § 4, 80 Stat. 214, 217. We observed shortly thereafter that, “[a]s amended, Section 3568 ... require[s] that the Attorney General give credit in all cases of presentence custody.” Williams v. United States, 440 F.2d 684, 685 (9th Cir.1971) (emphasis added). The final relevant change came eighteen years later when Congress passed the Sentencing Reform Act of 1984. The statute repealed § 3568, see Pub.L. No. 98-473, § 212, 98 Stat.1987, 1987 (1984), and replaced it with 18 U.S.C. § 3585. See id. ch. 227, 98 Stat.2001 (codified at 18 U.S.C. § 3585); see also United States v. Wilson, 503 U.S. 329, 334-37, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (discussing replacement of § 3568 with § 3585). Section 3585 provides, in relevant part: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed.... 18 U.S.C. § 3585(b). Section 3585 substitutes “official detention” for “custody,” and it enlarges the class of persons who receive pre-sentence credit, but is otherwise quite similar to § 3568. See, e.g., Wilson, 503 U.S. at 334, 112 S.Ct. 1351 (holding that “the Attorney General must continue to compute the credit under § 3585(b) as he did under the former § 3568”). The second statute governs the treatment of juveniles. The Federal Juvenile Delinquency Act (“FJDA”) was first passed in 1938 to remedy “the unsatisfactory existing" }, { "docid": "1586014", "title": "", "text": "a defendant at the time of sentence. In support of its contention that Edwards is required to exhaust his administrative remedies, the government relies primarily upon case law decided under the now-repealed Title 18 U.S.C. § 3568 (1982). Section 3568 read in pertinent part: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. 18 U.S.C. § 3568 (1982). Section 3568 explicitly delegated the authority for computing sentences and granting credit for time served to the Attorney General, who, in turn, delegated such authority to the BOP. See United States v. Pelaez, 930 F.2d 520, 524 (6th Cir.1991). Thus, a defendant seeking credit for time previously served was required under § 3568 to exhaust the available administrative remedies prior to seeking relief under Title 28 U.S.C. § 2241. Gonzalez v. Perrill, 919 F.2d 1, 1-2 (2d Cir.1990) (per cu-riam). Also, a defendant released on bail pending trial was not entitled to credit toward his sentence for the period he was on bail, because § 3568 required that the defendant be “in custody,” that is, physically confined. Mieles v. United States, 895 F.2d 887, 888 (2d Cir.1990). However, § 3568 was repealed by the enactment of the Sentencing Reform Act of 1984, which included § 3585(b) as part of the federal sentencing provisions. See Pinaud v. James, 851 F.2d 27, 30-31 (2d Cir.1988). Section 3585(b), which took effect for crimes committed on or after November 1, 1987, contains no reference to the Attorney General and provides: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; ... that has not been" }, { "docid": "1586015", "title": "", "text": "prior to seeking relief under Title 28 U.S.C. § 2241. Gonzalez v. Perrill, 919 F.2d 1, 1-2 (2d Cir.1990) (per cu-riam). Also, a defendant released on bail pending trial was not entitled to credit toward his sentence for the period he was on bail, because § 3568 required that the defendant be “in custody,” that is, physically confined. Mieles v. United States, 895 F.2d 887, 888 (2d Cir.1990). However, § 3568 was repealed by the enactment of the Sentencing Reform Act of 1984, which included § 3585(b) as part of the federal sentencing provisions. See Pinaud v. James, 851 F.2d 27, 30-31 (2d Cir.1988). Section 3585(b), which took effect for crimes committed on or after November 1, 1987, contains no reference to the Attorney General and provides: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; ... that has not been credited against another sentence. 18 U.S.C. § 3585(b) (1988). Section 3585 is part of the Sentencing Reform Act of 1984. The interpretation of a federal statute is a question of law which we review de novo. United States v. Wilson, 916 F.2d 1115, 1117 (6th Cir.1990), cert. granted, — U.S. -, 112 S.Ct. 48, 116 L.Ed.2d 26 (1991). The legislative history of § 3585(b) does not provide clear guidance on the changes in phraseology between the repealed § 3568 and its successor § 3585; it does not contain a statement of congressional intent to either alter or retain the administrative procedures under which the BOP previously computed sentences. See Comprehensive Crime Control Act of 1984, S.Rep. No. 225, 98th Cong., 2d Sess. 128-29 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3311-12. Apparently, because of the change in the statutory language and the lack of any clear indication in the legislative history concerning the effect of that change, the courts have adopted various approaches as to whether, under § 3585(b), a prisoner has to exhaust administrative remedies" }, { "docid": "22364657", "title": "", "text": "sentence.”), aff'd, 100 F.3d 946 (3d Cir.1996) (table); see also United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir.1998) (noting that a defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence); United States v. Kramer, 12 F.3d 130, 132 (8th Cir.1993) (holding that the BOP “properly decided not to award [the petitioner] credit for the time served, as it would have contravened the proscription in 18 U.S.C. § 3585(b) against double crediting”; court explained that “[t]he record shows that [the petitioner] received credit toward his state sentence for that same time period”); United States v. Dennis, 926 F.2d 768, 769 (8th Cir.1991) (reaching same conclusion); Arashi v. United States, No. 94-7603, 1995 WL 453308, at *10 n. 3 (S.D.N.Y. July 31, 1995) (noting that section 3585(b), the successor statute to section 3568, states explicitly that an individual can receive jail time credit only for time spent in custody “that has not been credited against another sentence”); cf. Wilson, 503 U.S. at 337, 112 S.Ct. at 1355-56 (explaining that with the enactment of section 3585(b) in place of section 3568, “Congress made it clear that a defendant could not receive a double credit for his detention time.”). We agree with this body of case law interpreting the plain language of section 3585(b), and find that in the circumstances presented here, the section does not authorize the award of credit for the 22 months that Rios spent in federal control under the second writ. It is undisputed that the 22-month time period was credited against his state sentence, as Rios already had been sentenced on the state offense and thus was serving that sentence during the relevant time period. We therefore conclude that the district court applied section 3585(b) incorrectly. Specifically, in its memorandum and order denying the BOP’s motion for reconsideration, the district court held that a departure from the general rule prohibiting double credit was warranted because of the length of time that Rios was held in federal detention pursuant to the second writ. In reaching its" } ]

[ { "docid": "4468985", "title": "", "text": "a pay raise despite an above satisfactory evaluation by her supervisor. Id. at 587. Gupta claimed that the denial of the pay raise was an adverse employment action, as was the denial of an extension on her tenure clock. Id. at 590. We agreed. “The denial of a pay raise clearly affects Gupta’s compensation, and tenure-related decisions affect an important term of employment for a university professor. They are adverse employment actions.” Id. Similarly, in McCabe v. Sharrett, 12 F.3d 1558 (11th Cir.1994), we considered the case of a police chiefs secretary who sued the city of Plantation, Florida after she was transferred to a less desirable job. The employee produced evidence that, although her salary had not decreased, “her eligibility for salary increases is less in her new position than in her former job” and the new position involved less responsibility and more menial tasks. Id. at 1564. We readily concluded, and the defendant readily conceded, that the transfer was an adverse employment action. Id. In the case at bar, there was evidence that Gillis’s evaluation and Gillis’s compensation were inextricably intertwined. The evidence in the record demonstrates that had Gillis’s supervisors decided that she exceeded expectations, as opposed to just meeting expectations, she would have received an additional $912.36 per year in compensation. We recognize that Title VII is “neither a ‘general civility code’ nor a statute making actionable the ‘ordinary tribulations of the workplace.’ ” Gupta, 212 F.3d at 587. But Title VII explicitly condemns discrimination in compensation. The defendants, and the court below, relied on Davis to conclude that Gillis had not suffered an adverse employment action. Our decision in Davis, however, suggests the opposite result in this ease. In Davis, a police officer alleged that he suffered an adverse employment action as a result of two corrective job performance memos placed in his personnel file and two instances where he was temporarily removed as the officer in charge. Id. at 1234. We noted that Davis did not suffer any loss in pay or benefits as a result of these actions, and therefore we concluded that" } ]

[ { "docid": "16363665", "title": "", "text": "Amendment retaliation case, the complained-of action must involve an important condition of employment.” Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 1850, 161 L.Ed.2d 727 (2005). A public employee states a case for retaliation when the alleged employment action would likely chill the exercise of constitutionally protected speech. See id. at 618. We have decided that, as a matter of law, important conditions of employment include discharges, demotions, refusals to hire or promote, and reprimands. Id. (citing Goffer v. Marbury, 956 F.2d 1045, 1049 n. 1 (11th Cir.1992)). In addition, any other conduct that “alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee” qualifies as an adverse employment action. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (quotation and citation omitted). Thus, if an employer’s conduct negatively affects an employee’s salary, title, position, or job duties, that conduct constitutes an adverse employment action. See Stavropoulos, 361 F.3d at 620. Constructive dis charge negatively affects an employee’s job status, and therefore constitutes an adverse employment action. See Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir.1994). In other words, where working conditions are so intolerable that a reasonable person would have felt compelled to resign, the employer’s conduct is an adverse employment action. See Durley v. APAC, Inc., 236 F.3d 651, 658 (11th Cir.2000) (defining constructive discharge). Similarly, a transfer to a less desirable position in terms of pay or eligibility for pay increases is an adverse employment action because it is equivalent to a demotion. See McCabe, 12 F.3d at 1564. Importantly, “we have never held that the list cannot be expanded, so long as the action impacts an important condition of employment.” Stavropoulos, 361 F.3d at 620. Therefore, we are not prevented from recognizing additional adverse employment actions, such as a “constructive transfer,” where work conditions become so intolerable that an employee asks to be transferred to a less desirable position with a lower salary, loss of" }, { "docid": "16363668", "title": "", "text": "employment actions alleged by Plaintiffs, only constructive discharge or constructive transfer can be said to have negatively affected them. Plaintiffs have not alleged that the reprimands or the threats of suspension and job loss affected the terms and conditions of their employment or their status as employees. Nor have they made any claim that the exclusion from meetings or removal of job duties adversely affected the terms and conditions of their employment. Furthermore, although a negative work evaluation can constitute an adverse employment action under some circumstances, see Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888 (11th Cir.2005), there is no evidence in the record that Akins’s compensation was or would be adversely affected by the evaluation. Even when considered in the aggregate, these actions are not adverse. Cf. Wide- man v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir.1998). In Wideman, we held that improperly listing an employee as a no-show when she was not scheduled for work, written reprimands resulting in a one-day suspension, soliciting negative comments but no positive comments about the employee from other employees, failing to schedule the employee for work, and delaying authorization of medical treatment, considered collectively, was an adverse employment action. Id. at 1455-56. As compared with the actions at issue here, the suspension and the delay in authorization for medical treatment did affect Wideman’s status as an employee and her benefits, respectively. Furthermore, failing to schedule her for work or marking her as a no-show would affect her compensation and status as an employee. Finally, although soliciting negative comments from coworkers is not in itself an adverse employment action, the employer ultimately could use the comments in combination with the employee’s no-show to justify discharge. In this case, by contrast, we do not think that the actions (exclusive of constructive discharge) rise to that level of substantiality required by our caselaw. Thus, whether considered individually or collectively, these employment actions cannot be considered “adverse” because they did not harm Plaintiffs. See Gupta, 212 F.3d at 589. Nonetheless, we will consider these actions because they are relevant to Plaintiffs’" }, { "docid": "3225821", "title": "", "text": "(emphasis in original). “Moreover, the employee’s subjective view of the significance and adversity of the employer’s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.” Id. The only alleged discrimination about which Howard complained was Krzastek’s message threatening that Howard’s job was in jeopardy. An allegation such as this falls well short of an adverse action. Nowhere in the record is there any indication that the message resulted in a “serious and material change in the terms, conditions, or privileges of employment.” Id. at 1239. In fact, nothing suggests, nor does Howard argue, that at the time Krzastek left his message, he had taken any action — including termination, demotion, or even a reprimand — that could have seriously affected Howard’s employment. Howard’s belief thus was not objectively reasonable. Cf. Akins v. Fulton County, 420 F.3d 1293, 1301-02 (11th Cir. 2005) (holding in First Amendment retaliation case that unwarranted reprimands, a negative work evaluation, threat of job loss through dissolution of the plaintiffs’ division, threat of suspension without pay, removal of job duties, and exclusion from meetings did not constitute adverse employment action, either singly or when considered in the aggregate). Consequently, his retaliation claim fails as a matter of law. IV. CONCLUSION For the foregoing reasons, we REVERSE magistrate judge’s order and remand for entry of judgment in favor of Walgreens. . Because this appeal is from an order denying a motion for judgment as a matter of law, we view all the evidence and draw all reasonable inferences in a light most favorable to the nonmoving party, Howard. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212 n. 1 (11th Cir.2008); Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1177 (11th Cir. 2005), aff’d, 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). . Walgreens defended on the theory that Howard quit his employment during the De cember 13 telephone call with Krzastek. Krzastek testified that during the conversation, Howard said that he was giving his two-week notice, to which Krzastek responded that" }, { "docid": "22439907", "title": "", "text": "protected activity by filing the EEOC charge of discrimination on February 9, 1995, but contends that she failed to show she suffered any adverse employment actions or a causal connection between the protected activity and any adverse employment actions. We disagree. As evidence of adverse employment actions, Wideman points to the following actions which occurred (viewing the evidence in the light most favorable to her) after she filed her EEOC charge. First, on February 11,1995, the day after she informed management that she had filed an EEOC charge, she was improperly listed as a no-show on a day she was'seheduled to have off. Wideman discovered the error when she went into the Wal-Mart to shop. When she brought the error to the attention of her manager, Mark Telfer, he required her to work anyway without a lunch break. Second, on February 13 and 22, 1995, Telfer gave Wideman written reprimands. After the second reprimand, she received a one-day suspension. In her previous eleven months of employment at Wal-Mart she had not received any reprimands. Third, around February 13,1995, Telfer began soliciting employees at WalMart for negative statements concerning Wideman. According to Wideman, Telfer did not seek statements from employees who would have given positive comments about her. Fourth, on April 3, 1995, Wideman reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, Assistant Manager Rene Willemain threatened to shoot- her in the head. Fifth, on May 3, 1995, while she was working at Wal-Mart, Wideman suffered an allergic reaction which required medical treatment. Although Wal-Mart Assistant Manager Audrey Nichols was aware that Wideman needed treatment, she needlessly delayed authorizing that medical treatment. Wal-Mart contends that none of those acts are sufficient to constitute an adverse employment action for purposes of a retaliation claim. Relying principally on the Fifth Cir cuit’s holding in Mattem v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.1997), Wal-Mart argues that unless the alleged act of retaliation was an “ultimate employment action” such as discharge or failure to hire, it" }, { "docid": "14786595", "title": "", "text": "18, 1996, when the Board voted to involuntarily transfer Plaintiff to another school, where she would not be able to coach. (Resp. at 7, 24.) The Board asserts that Plaintiff did not suffer an adverse employment action because the Board ultimately rescinded its vote to transfer Plaintiff on June 25, 1996. (Br. at 31-33.) Plaintiff, on the other hand, argues that the Board’s initial vote to transfer her to a less desirable position was an adverse employment action, even though the Board’s vote was ultimately rescinded and never culminated in a change in her employment status. (Resp. at 24.) In support of this argument, Plaintiff relies on Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir.1998). In Wideman, the plaintiff brought a Title VII retaliation case against her employer. The district court granted summary judgment in favor of the employer. Id. at 1454. On appeal, the Eleventh Circuit addressed whether the plaintiff had demonstrated an “adverse employment action.” The Eleventh Circuit noted that the following five “actions” occurred after the plaintiff had filed a discrimination charge with the EEOC. First, ... the day after [the plaintiff] informed management that she had filed an EEOC charge, she was improperly listed as a no-show on a day she was scheduled to have off. [The plaintiff] discovered the error when she went into the Wal-Mart to shop. When she brought the error to the attention of her manager, Mark Telfer, he required her to work anyway without a lunch break. Second, ... [Telfer] gave [her] written reprimands. After the second reprimand, she received a one-day suspension. In her previous eleven months of employment at Wal-Mart she had not received any reprimands. Third, ... [Telfer] began soliciting employees at Wal-Mart for negative statements concerning [the plaintiff]. According to [the plaintiff], Telfer did not seek statements from employees who would have given positive comments about her. Fourth, ... [the plaintiff] reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, [an] Assistant Manager [ ] threatened to shoot her" }, { "docid": "22319397", "title": "", "text": "273, 274 (9th Cir.1981), where we held that a transfer to another job of the same pay and status may constitute an adverse employment action. Similarly, in Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir.1997), we found that the dissemination of an unfavorable job reference was an adverse employment action “because it was a ‘personnel action’ motivated by retaliatory animus.” We so found even though the defendant proved that the poor job reference did not affect the prospective employer’s decision not to hire the plaintiff: “That this unlawful personnel action turned out to be inconsequential goes to the issue of damages, not liability.” Id. In Strother, we examined the case of an employee who, after complaining of discrimination, was excluded from meetings, seminars and positions that would have made her eligible for salary increases, was denied secretarial support, and was given a more burdensome work schedule. 79 F.3d at 869. Wé determined that she had suffered from adverse employment actions. Id. These cases place the Ninth Circuit in accord with the First, Seventh, Tenth, Eleventh and D.C. Circuits. These Circuits all take an expansive view of the type of actions that can be considered adverse employment actions. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994) (adverse employment actions include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees”); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996) (employer can be liable for retaliation if it permits “actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services ... or cutting off challenging assignments”); Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir.1996) (employee demonstrated adverse employment action under the ADEA by showing that her employer “required her to go through several hoops in order to obtain her severance benefits”); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir.1996) (malicious prosecution by former employer can be adverse employment action); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998)" }, { "docid": "23290464", "title": "", "text": "the district court. Hallum v. Provident Life & Acc. Ins. Co., 326 F.3d 1374, 1375-76 n. 1 (11th Cir.2003). V. DISCUSSION Both of Stavropoulos’s issues on appeal involve the substantiality of actions taken against her: whether these actions were substantial enough to be considered adverse employment actions under Title VII and the First Amendment. A. Stavropoulos’s Title VII Retaliation Claim against the Board The district court granted summary judgment on Stavropoulos’s Title VII retaliation claim, because it concluded that Stavropoulos failed to make out a prima facie case. To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1117 (11th Cir.2001). The court held that Stavropoulos failed to show an adverse employment action. To be considered an adverse employment action for purposes of Title VII’s anti-retaliation provision, the action must either be an ultimate employment decision or else must “meet some threshold level of substantiality.” Id. at 1118 (internal quotations omitted). Ultimate employment decisions include decisions such as termination, failure to hire, or demotion. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998). The conduct Stavropoulos complains of was not an ultimate employment action, because .she did not lose her job or suffer a lessening of pay, position, or benefits. Thus, we must ask whether it rises to the level of substan-tiality. In Wideman, 141 F.3d at 1455-56, we concluded that the plaintiff had crossed the threshold of substantiality where she established that her employer had improperly listed her as a no-show on a day she was scheduled to have off, gave her written reprimands which resulted in a one-day suspension, solicited comments on her performance from only those employees with negative things to say about her, failed to schedule her for work, threatened to shoot her in the head, and delayed authorizing medical treatment for an allergic reaction she was having. Id. at" }, { "docid": "23290465", "title": "", "text": "be an ultimate employment decision or else must “meet some threshold level of substantiality.” Id. at 1118 (internal quotations omitted). Ultimate employment decisions include decisions such as termination, failure to hire, or demotion. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998). The conduct Stavropoulos complains of was not an ultimate employment action, because .she did not lose her job or suffer a lessening of pay, position, or benefits. Thus, we must ask whether it rises to the level of substan-tiality. In Wideman, 141 F.3d at 1455-56, we concluded that the plaintiff had crossed the threshold of substantiality where she established that her employer had improperly listed her as a no-show on a day she was scheduled to have off, gave her written reprimands which resulted in a one-day suspension, solicited comments on her performance from only those employees with negative things to say about her, failed to schedule her for work, threatened to shoot her in the head, and delayed authorizing medical treatment for an allergic reaction she was having. Id. at 1455-56 (holding that the totality of these acts meet the threshold of substantiality, but declining to decide whether anything less than the totality would meet the threshold). In Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir.2000), we characterized the threshold as requiring the employment action to be “ ‘objectively serious and tangible enough’ to alter [the employee’s] ‘compensation, terms, conditions, or privileges of employment ...,’” and held that scheduling the employee to teach on three different campuses in one term did not meet the threshold because she never actually had to follow this schedule, denying her the opportunity to teach a particular class did not suffice because she chose not to teach at all that term, and delaying the return of the employee’s visa application was not serious enough because the university returned it to her in time for her to file it with the Immigration and Naturalization Service. Id. at 588 (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir.1997)). Our reason for rejecting these three acts as" }, { "docid": "22439908", "title": "", "text": "around February 13,1995, Telfer began soliciting employees at WalMart for negative statements concerning Wideman. According to Wideman, Telfer did not seek statements from employees who would have given positive comments about her. Fourth, on April 3, 1995, Wideman reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, Assistant Manager Rene Willemain threatened to shoot- her in the head. Fifth, on May 3, 1995, while she was working at Wal-Mart, Wideman suffered an allergic reaction which required medical treatment. Although Wal-Mart Assistant Manager Audrey Nichols was aware that Wideman needed treatment, she needlessly delayed authorizing that medical treatment. Wal-Mart contends that none of those acts are sufficient to constitute an adverse employment action for purposes of a retaliation claim. Relying principally on the Fifth Cir cuit’s holding in Mattem v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.1997), Wal-Mart argues that unless the alleged act of retaliation was an “ultimate employment action” such as discharge or failure to hire, it does not qualify as an adverse employment action for purposes of an unlawful retaliation claim. There is a circuit split on this issue. While the Eighth Circuit has sided with the Fifth Circuit, see Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997) (only adverse employment actions that “rise to the level of an ultimate employment decision [are] intended to be actionable under Title VIL”), the First, Ninth, and Tenth Circuits have all held that Title VII’s protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions. See Wyatt y. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994) (stat ing that actions other than discharge are covered by Title VU’s anti-retaliation provision and listing as examples, “employer actions such as demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees.”) (internal citation omitted); Yartzojf v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987) (holding that such non-ultimate employment decisions as “[transfers of job duties and undeserved performance ratings, if proven, would" }, { "docid": "22319399", "title": "", "text": "(adverse employment actions include an employer requiring plaintiff to work without lunch break, giving her a one-day suspension, soliciting other employees for negative statements about her, changing her schedule without notification, making negative comments about her, and needlessly delaying authorization for medical treatment); Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C.Cir.1991) (employer’s cancellation of a public event honoring an employee can constitute adverse employment action under the ADEA, which has an anti-retaliation provision parallel to that in Title VII). The Second and Third circuits hold an intermediate position within the circuit split. They have held that an adverse action is something that materially affects the terms and conditions of employment. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997) (“retaliatory conduct must be serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment ... to constitute [an] ‘adverse employment action’ ”); Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir.1997) (to show an adverse employment action employee must demonstrate “a materially adverse change in the terms and conditions of employment”) (quoting McKenney v. New York City Off-Track Betting Corp., 903 F.Supp. 619, 623 (S.D.N.Y.1995)). The Fifth and Eighth Circuits, adopting the most restrictive test, hold that only “ultimate employment actions” such as hiring, firing, promoting and demoting constitute actionable adverse employment actions. See Mattem v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997) (only “ultimate employment decisions” can be adverse employment decisions); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997) (transfer involving only minor changes in working conditions and no reduction in pay or benefits is not an adverse employment action). The government urges us to turn from our precedent, and to adopt the Fifth and Eighth Circuit rule that only “ultimate employment actions” such as hiring, firing, promoting and demoting constitute actionable adverse employment actions. But we cannot square such a rule with our prior decisions. Actions that we consider adverse employment actions, such as the lateral transfers in Yartzoff and St. John, the unfavorable reference that had no affect on a prospective employer’s hiring decisions in" }, { "docid": "23565964", "title": "", "text": "For that matter, a suspension without pay — such as the three-day suspension that Whittaker was scheduled to serve between May 31 and June 2, 1999 — -would constitute an adverse employment action. See id. However, because she voluntarily left her job in mid-May — taking a leave of absence from which she would never return — she never actually served this suspension. And because she never served the suspension, she never realized any economic effect from the slated employment action. Simply put, a suspension without pay that is never served does not constitute an adverse employment action. See Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir.2004) (“[A]n action which, it turns out, had no effect on an employee is not an ‘adverse action.’ ”). Of course, “adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996) (quoting Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir.1987)). “[T]he adverse action must materially alter the terms and conditions of employment.” Stutler v. Ill. Dept. of Corr., 263 F.3d 698, 703 (7th Cir.2001). The terms and conditions of Whittaker’s employment, however, were never so altered. While Whittaker’s negative evaluation, written warnings, and placement on “proof status” are putatively disciplinary measures, none “resulted] in tangible job consequences and therefore are not adverse employment actions actionable under Title VII.” Longstreet v. Ill.Dep’t of Corrections, 276 F.3d 379, 384 (7th Cir.2002) (holding that plaintiffs “negative performance evaluations and being required to substantiate that her absences from work were illness-related ... did not result in tangible job consequences and therefore are not adverse employment actions actionable under Title VII”); Oest v. Ill. Dep’t of Corrections, 240 F.3d 605, 613 (7th Cir.2001) (holding that neither “unfavorable performance evaluations” nor “oral or written reprimands” constitute adverse employment actions under our case law). Certainly, we can conceive of reprimands that carry with them immediate, albeit non-economic, consequences that in and of themselves go so far as to materially alter the" }, { "docid": "22319398", "title": "", "text": "Eleventh and D.C. Circuits. These Circuits all take an expansive view of the type of actions that can be considered adverse employment actions. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994) (adverse employment actions include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees”); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996) (employer can be liable for retaliation if it permits “actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services ... or cutting off challenging assignments”); Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir.1996) (employee demonstrated adverse employment action under the ADEA by showing that her employer “required her to go through several hoops in order to obtain her severance benefits”); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir.1996) (malicious prosecution by former employer can be adverse employment action); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998) (adverse employment actions include an employer requiring plaintiff to work without lunch break, giving her a one-day suspension, soliciting other employees for negative statements about her, changing her schedule without notification, making negative comments about her, and needlessly delaying authorization for medical treatment); Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C.Cir.1991) (employer’s cancellation of a public event honoring an employee can constitute adverse employment action under the ADEA, which has an anti-retaliation provision parallel to that in Title VII). The Second and Third circuits hold an intermediate position within the circuit split. They have held that an adverse action is something that materially affects the terms and conditions of employment. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997) (“retaliatory conduct must be serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment ... to constitute [an] ‘adverse employment action’ ”); Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir.1997) (to show an adverse employment action employee must demonstrate “a materially adverse change in the" }, { "docid": "22045633", "title": "", "text": "to conclude, as we do, that the actions about which Wideman complains considered collectively are sufficient to constitute prohibited discrimination. We need not and do not decide whether anything less than the totality of the alleged reprisals would be sufficient.” 141 F.3d at 1456. The facts of Wideman are altogether different than those present here. In Wideman, the employee not only received two formal written reprimands, she also was suspended, threatened, and her health was put in jeopardy. Id. at 1455. Although Wideman did not purport to answer the question, at least one of these sanctions (the suspension) presumably would be actionable standing alone under our precedent. In this case, by contrast, Davis was not suspended, was not given a formal reprimand, and suffered little if any of the verbal harassment apparently suffered by the plaintiff in Wideman. Viewed individually or collectively, the adverse action alleged by Davis is highly insubstantial in comparison to the misconduct alleged in Wideman. In the end, no reasonable jury could view the relatively minor incidents suffered by Davis as the kind of adverse employment action that Title VII was in tended to redress. The fact that the jury-awarded Davis only nominal damages is a telling indication that the Town’s alleged misconduct did not impact Davis in any material way. We do not diminish the seriousness of Davis’s allegations of race-motivated conduct (allegations which the jury apparently credited in a verdict that the Town, notably, does not contest on that basis). But while Congress certainly could have extended the protection of Title VII to all aspects of the employment relationship, it plainly did not so, and instead contemplated relief under the statute’s anti-discrimination clause only to employees injured in the “terms, conditions, or privileges” of their employment. The injuries alleged by Davis — loss of prestige and potential future opportunities associated with two negative job performance memo-randa and the denial on two brief occasions of a favorable work assignment — do not meet the threshold set by Congress. Because adverse employment action is an indispensable element of a Title yil plaintiffs case, Davis’s failure to" }, { "docid": "1924142", "title": "", "text": "Special Projects Manager, the two Assistant Plant Managers took over the morning meetings as they were then responsible for the scheduling and operation of the plant. Greene dep., vol. I, at 116. Greene testified that his presence at the meetings was no longer required. Greene dep., vol. I, at 116. . Although Greene was not happy with the transfer because he believed supervision was his forte, he does not allege that the loss of supervisory responsibility is the basis for his adverse employment argument. . In Wideman, the plaintiff alleged the following adverse employment actions: after improperly listing the plaintiff as a no-show on her scheduled day off, her supervisor required her to work without a lunch break when she came in to check on the mistake; her supervisor gave her two written reprimands, even though he had never before done so in the plaintiffs eleven months of employment; her supervisor imposed a suspension after the second reprimand; her supervisor began soliciting employees for negative comments about plaintiff; the manager threatened to shoot plaintiff in the head after plaintiff said she would call headquarters about not being scheduled to work; and an assistant manager deliberately delayed authorizing medical treatment after plaintiff suffered an allergic reaction. The court found that the \"totality of the alleged reprisals” was sufficient to satisfy the adverse employment action requirement for a prima facie case of retaliation. . The \"Proposal for Position” provides as follows: Time Frame: January 1, 1998 to December 31, 1998 Salary: Base salary of $40,000 paid weekly through December 31, 1998 Bonus: Potential of additional $30,000 per annum paid in quarterly increments by the end of the month following the calendar quarter for years 1998 and 1999. ¶ Cost saving proposals to save materials, production time, labor or other methods of cost control. ¶ Any testing necessary to verify cost savings or investment of equipment or tooling will be taken from savings calculation. ¶ Savings must be in place and generating revenue for Lowenstein. ¶ The VP of Operations and Controller will audit savings for accuracy and measura-bility at the end of" }, { "docid": "14786596", "title": "", "text": "discrimination charge with the EEOC. First, ... the day after [the plaintiff] informed management that she had filed an EEOC charge, she was improperly listed as a no-show on a day she was scheduled to have off. [The plaintiff] discovered the error when she went into the Wal-Mart to shop. When she brought the error to the attention of her manager, Mark Telfer, he required her to work anyway without a lunch break. Second, ... [Telfer] gave [her] written reprimands. After the second reprimand, she received a one-day suspension. In her previous eleven months of employment at Wal-Mart she had not received any reprimands. Third, ... [Telfer] began soliciting employees at Wal-Mart for negative statements concerning [the plaintiff]. According to [the plaintiff], Telfer did not seek statements from employees who would have given positive comments about her. Fourth, ... [the plaintiff] reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, [an] Assistant Manager [ ] threatened to shoot her in the head. Fifth, ... while she was working at Wal-Mart, [the plaintiff] suffered an allergic reaction which required medical treatment. Although [another] Assistant Manager [] was aware that [the plaintiff] needed treatment, she needlessly delayed authorizing that medical treatment. Id. at 1455. After examining the split in the circuits, the Eleventh Circuit “join[ed] the majority” and held that “Title VII’s protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions.” Id. at 1456. The Eleventh Circuit reasoned that “permitting employers to discriminate against an employee who files a charge of discrimination so long as the retaliatory discrimination does not constitute an ultimate employment action, could stifle employees’ willingness to file charges of discrimination.” Id. While the Eleventh Circuit noted that “some threshold level of substantiality” must be satisfied in order for alleged adverse acts to constitute an actionable retaliation claim, it did not decide where that threshold should be placed. Id. The Eleventh Circuit then held that “[i]t is enough to conclude ... that the actions about which [the" }, { "docid": "453291", "title": "", "text": "below the “meets expectations” range. The court finds that this performance evaluation does not constitute a negative performance evaluation. See Merriweather, 17 F.Supp.2d at 1275 (finding that plaintiffs evaluation did not constitute adverse employment action where scores were not negative since the lowest score fell within the high end of the “meets expectations” range). Additionally, the court finds that Bar-baree’s initial refusal to participate in Plaintiffs evaluation coupled with Dis-mukes’ comment to Plaintiff blaming her for staffing problems are insufficient to constitute an adverse employment action. These incidents are qualitatively different from those suffered by the plaintiff in Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998). In Wide-man, the following incidents occurred: First, ... the day after [Wideman] informed management that she had filed an EEOC charge, she was improperly listed as a no-show on a day she was scheduled to have off. Wideman discovered the error when she went into the Wal-Mart to shop. When she brought the error to the attention of her manager, Mark Telfer, he required her to work anyway without a lunch break. Second, ... Telfer gave Wideman written reprimands. After the second reprimand, she received a one-day suspension.' In her previous eleven months of employment at Wal-Mart she had not received any reprimands. Third, ... Telfer began soliciting employees at Wal-Mart for negative statements concerning Wideman. According to Wideman, Tel-fer did not seek statements from employees who would have given positive comments about her. Fourth, ... Wideman reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, Assistant Manager Rene Willemain threatened to shoot her in the head. Fifth, ... while she was working at Wal-Mart, Wideman suffered an allergic reaction which required medical treatment. Although Wal-Mart Assistant Manager Audrey Nichols was aware that Wideman needed treatment, she needlessly delayed authorizing that medical treatment. 141 F.3d at 1455. The court finds the harassing acts in Wideman to be significantly more severe than the performance evaluation incidents and the blaming incident. Accordingly, the court finds that Plaintiff" }, { "docid": "453292", "title": "", "text": "work anyway without a lunch break. Second, ... Telfer gave Wideman written reprimands. After the second reprimand, she received a one-day suspension.' In her previous eleven months of employment at Wal-Mart she had not received any reprimands. Third, ... Telfer began soliciting employees at Wal-Mart for negative statements concerning Wideman. According to Wideman, Tel-fer did not seek statements from employees who would have given positive comments about her. Fourth, ... Wideman reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, Assistant Manager Rene Willemain threatened to shoot her in the head. Fifth, ... while she was working at Wal-Mart, Wideman suffered an allergic reaction which required medical treatment. Although Wal-Mart Assistant Manager Audrey Nichols was aware that Wideman needed treatment, she needlessly delayed authorizing that medical treatment. 141 F.3d at 1455. The court finds the harassing acts in Wideman to be significantly more severe than the performance evaluation incidents and the blaming incident. Accordingly, the court finds that Plaintiff has failed to satisfy her prima facie burdens, and that summary judgment on this claim is due to be granted. IV. DISCRIMINATORY PAY CLAIMS Plaintiff claims that Defendant discriminated against her “based on her race‘in compensation and other terms, conditions, and privileges of employment,” thereby violating Title VII and § 1981. (ComplA 26.) As explained below, the court finds that summary judgment is due to be granted as to Plaintiffs Title VII claim and denied as to the § 1981 claim. A. Title VII Defendant first claims that Plaintiffs disparate wage claim pursuant to Title VII is due to be dismissed because Plaintiff failed to exhaust the requisite administrative remedies. (Def.’s Br. at 46.) Specifically, Plaintiff failed to file an EEOC charge claiming disparate pay based on race. (Id.) Plaintiff fails to rebut this argument. The court finds that Plaintiff has not satisfied her burden pursuant to Federal Rule of Civil Procedure 56 to overcome summary judgment and, therefore, that this claim is due to be dismissed. B. Section 1981 Defendant claims that any disparate" }, { "docid": "16363669", "title": "", "text": "comments about the employee from other employees, failing to schedule the employee for work, and delaying authorization of medical treatment, considered collectively, was an adverse employment action. Id. at 1455-56. As compared with the actions at issue here, the suspension and the delay in authorization for medical treatment did affect Wideman’s status as an employee and her benefits, respectively. Furthermore, failing to schedule her for work or marking her as a no-show would affect her compensation and status as an employee. Finally, although soliciting negative comments from coworkers is not in itself an adverse employment action, the employer ultimately could use the comments in combination with the employee’s no-show to justify discharge. In this case, by contrast, we do not think that the actions (exclusive of constructive discharge) rise to that level of substantiality required by our caselaw. Thus, whether considered individually or collectively, these employment actions cannot be considered “adverse” because they did not harm Plaintiffs. See Gupta, 212 F.3d at 589. Nonetheless, we will consider these actions because they are relevant to Plaintiffs’ constructive discharge claim, to which we now turn. To prove constructive discharge, Plaintiffs must demonstrate that working conditions were so intolerable that reasonable persons in their position would have felt compelled to resign. See Durley, 236 F.3d at 658. Furthermore, for a constructive discharge claim to present a jury issue and thereby survive summary judgment, the plaintiff must produce substantial evidence that conditions were intolerable. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir.2002). In Poole v. Country Club of Columbus, Inc., we found that the plaintiff had presented enough evidence that a reasonable person in her position could have found it intolerable when she was “[stripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers.” 129 F.3d 551, 553 (11th Cir.1997). Therefore, we held that Poole’s constructive discharge claim survived summary judgment. Id. With regard to the facts before us, only Akins and Blount resigned, and therefore only these two Plaintiffs can state a claim for constructive discharge. To support their claim," }, { "docid": "16363667", "title": "", "text": "benefits, or with fewer opportunities for salary increases. We have not previously recognized the concept of “constructive transfer.” If we were to recognize such a claim as actionable, a plaintiff presumably could state a claim based on that action so long as work conditions are sufficiently intolerable, and the transfer sufficiently adverse. In deciding whether employment actions are adverse, we consider the employer’s acts both individually and collectively. Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002) (“While the other actions of which [the plaintiff] complains might not have individually risen to the level of adverse employment action ..., when those actions are considered collectively, the total weight of them [can] constitute an adverse employment action.” (internal quotation and citation omitted)). Plaintiffs allege that they suffered the following adverse employment actions: unwarranted reprimands, a negative work evaluation, threat of job loss through dissolution of the contracting division, threat of suspension without pay, exclusion from meetings, removal of job duties (followed by reprimands for not completing that work), and constructive discharge. Of the adverse employment actions alleged by Plaintiffs, only constructive discharge or constructive transfer can be said to have negatively affected them. Plaintiffs have not alleged that the reprimands or the threats of suspension and job loss affected the terms and conditions of their employment or their status as employees. Nor have they made any claim that the exclusion from meetings or removal of job duties adversely affected the terms and conditions of their employment. Furthermore, although a negative work evaluation can constitute an adverse employment action under some circumstances, see Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888 (11th Cir.2005), there is no evidence in the record that Akins’s compensation was or would be adversely affected by the evaluation. Even when considered in the aggregate, these actions are not adverse. Cf. Wide- man v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir.1998). In Wideman, we held that improperly listing an employee as a no-show when she was not scheduled for work, written reprimands resulting in a one-day suspension, soliciting negative comments but no positive" }, { "docid": "16363666", "title": "", "text": "361 F.3d at 620. Constructive dis charge negatively affects an employee’s job status, and therefore constitutes an adverse employment action. See Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir.1994). In other words, where working conditions are so intolerable that a reasonable person would have felt compelled to resign, the employer’s conduct is an adverse employment action. See Durley v. APAC, Inc., 236 F.3d 651, 658 (11th Cir.2000) (defining constructive discharge). Similarly, a transfer to a less desirable position in terms of pay or eligibility for pay increases is an adverse employment action because it is equivalent to a demotion. See McCabe, 12 F.3d at 1564. Importantly, “we have never held that the list cannot be expanded, so long as the action impacts an important condition of employment.” Stavropoulos, 361 F.3d at 620. Therefore, we are not prevented from recognizing additional adverse employment actions, such as a “constructive transfer,” where work conditions become so intolerable that an employee asks to be transferred to a less desirable position with a lower salary, loss of benefits, or with fewer opportunities for salary increases. We have not previously recognized the concept of “constructive transfer.” If we were to recognize such a claim as actionable, a plaintiff presumably could state a claim based on that action so long as work conditions are sufficiently intolerable, and the transfer sufficiently adverse. In deciding whether employment actions are adverse, we consider the employer’s acts both individually and collectively. Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002) (“While the other actions of which [the plaintiff] complains might not have individually risen to the level of adverse employment action ..., when those actions are considered collectively, the total weight of them [can] constitute an adverse employment action.” (internal quotation and citation omitted)). Plaintiffs allege that they suffered the following adverse employment actions: unwarranted reprimands, a negative work evaluation, threat of job loss through dissolution of the contracting division, threat of suspension without pay, exclusion from meetings, removal of job duties (followed by reprimands for not completing that work), and constructive discharge. Of the adverse" } ]

[ { "docid": "23164382", "title": "", "text": "exist are distinctly exceptional, being so many derogations from a positive general rule: * * * [T]he sacrifice may be of his [the witness’s] privacy, of the knowledge which he would preferably keep to himself because of the disagreeable consequences of disclosure. This inconvenience which he may suffer, in consequence of his testimony, by way of enmity or disgrace or ridicule or other disfavoring action of fellow-members of the community, is also a contribution which he makes of executing justice * * 8 Wigmore, Evidence, section 2192, 3d Ed., at pp. 64-66. See United States v. Bryan, 1950, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 quoting Wigmore’s view with approval. The Court concludes that in civil litigation — where criminal penalties, censorship or abridgement of speech are not involved — there is no testimonial privilege of silence based on the First Amendment. Waiver If it be assumed arguendo that there is a testimonial privilege based on the First Amendment, the Court would nevertheless be compelled to find a waiver of that privilege under the circumstances of this case. It would be uneven justice to permit plaintiffs to invoke the powers of this court for the purpose of seeking redress and, at the same time, to permit plaintiffs to fend off questions, the answers to which may constitute a valid defense or materially aid the defense. Plain justice dictates the view that, regardless of plaintiffs’ intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action. Moore, Federal Rules and Official Forms, 164 (1956). Professor Moore has pointedly observed: “Now, what about privileges in private litigation? Some, such as the attorney-client privilege, could not normally be held to be waived by bringing or defending a suit, for in the attorney-client situation the privilege is designed to promote confidential relations that may well deal with the very suit in question. But assume that plaintiff seeks to replevy some bonds and his title is the basic issue; and to a properly framed and relevant question concerning ownership he refuses to answer on the ground that his" } ]

[ { "docid": "14938261", "title": "", "text": "Fair Labor Standards Act. The Secretary had refused to obey orders to produce statements taken by the Secretary’s investigators from four of defendant’s employees. “We agree with the trial court that after the Government had voluntarily disclosed the names of the informers no further reason for applying the informer’s privilege remained.” Id. at 517. . Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Supreme Court reversed a drug conviction based on the trial court’s refusal to disclose the identity of an undercover informer who was material to bringing about the conviction. “The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” Id. at 60, 77 S.Ct. at 627. Westinghouse Electric Corp. v. City of Burlington, Vermont, 122 U.S.App.D.C. 65, 351 F.2d 762 (D.C.Cir. 1965). Appellants, defendants below, sought discovery of documents relevant to the trial of antitrust litigation which the Government had begun against several manufacturers of electrical equipment. The Government claims that the informer’s privilege supports the trial judge’s decision to quash the subpoena. The court remanded to have the judge inspect the documents to determine whether any or all are privileged under the standards set out in Roviaro: “(1) Only the identity of the informer is privileged. The content of the communication is not privileged unless it would tend to reveal the identity of the informer.” Id. 122 U.S.App.D.C. at 71, 351 F.2d at 768. . 50 U.S.C.App. § 2406(c) provides in part: “[N]o department, agency, or official exercising any functions under this Act shall publish or disclose information obtained hereunder which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless the head of such department or agency determines that the withholding thereof is contrary to the national interest.” . Under 13 U.S.C. § 301(a) the Bureau of Census has the responsibility to “. collect information from all persons exporting from or" }, { "docid": "1104458", "title": "", "text": "breadth until 1957 when the Supreme Court ruled in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Id. at 62, 77 S.Ct. at 628. In a subsequent case the United States Court of Appeals for the District of Columbia construed Roviaro as introducing a fairness concept, making more flexible what was once a mechanical rule. Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762 (1965), on remand, 246 F. Supp. 839 (D.D.C.1965). Westinghouse also held the Roviaro restructuring of the informer’s privilege to be applicable in civil cases. Id. at 72-73, 351 F.2d at 769-770. This formulation of the informer’s privilege, however, has not been applied without difficulty. The testimonial privileges and in-competencies of the common law have seen a continuing shrinkage. Not that the courts are callous to the protection of informers. * * * However, the informer’s shadow over litigation often forces courts to make hard judgments in reconciling basic and conflicting social values. Mannerfrid v. Teegarden, 23 F.R.D. 173, 177 (S.D.N.Y.1959). A majority of the cases considering the disclosure problem since Roviaro have involved criminal defendants. See, e.g., McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Toohey v. United States, 404 F.2d 907 (9th Cir. 1968); Hurst v. United States, 344 F.2d 327 (9th Cir. 1965). The informer’s often crucial role in the facts at issue in criminal cases and the serious question of defendant’s guilt or innocence operate strongly to prompt disclosure of the informer. But even in this area, where defendant’s argument for disclosure is strongest, the courts have been reluctant to create broad disclosure rules. In McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), defendant sought to create a constitutional right to discovery of" }, { "docid": "11786182", "title": "", "text": "not classified information this might give us pause, since matters of discovery are ordinarily within the discretion of the District Court, and our review of such matters would normally focus only on an abuse of that discretion. See, e.g., United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984). However, in this case determination of relevance does not close the inquiry. As the District Court correctly noted, a further inquiry is in order before discovery of classified information should be ordered. See J.A. at 275. Where the government asserts a privilege, a trial court abuses its discretion if it orders disclosure “absent a showing of materiality.” United States v. Grisham, 748 F.2d 460, 463 (8th Cir.1984) (per curiam). See also United States v. Skeens, 449 F.2d 1066, 1070 (D.C.Cir.1971). This second step of the inquiry is firmly established in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and cases following it. In Roviaro, the Supreme Court dealt with the so-called informant’s privilege, which permits the government to withhold disclosure of an informant's identity or the contents of a communication which would endanger the secrecy of that information. This privilege exists to further “the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. at 59, 77 S.Ct. at 627. Roviaro held that this privilege must give way when disclosure of the information “is relevant and helpful to the defense of an accused.” Id. at 60-61, 77 S.Ct. at 628 (emphasis added). Similarly sensitive considerations underlie the classified information privilege asserted here. The Supreme Court has long recognized that a legitimate government privilege protects national security con cerns. In C. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948), the Court wrote: “[The executive branch] has available intelligence services whose reports are not and ought not to be published to the world,” (emphasis added). The Supreme Court recently reaffirmed the validity of this passage in United States" }, { "docid": "1761774", "title": "", "text": "note 43, 353 U.S. at 59, 77 S.Ct. at 627. . Id. “The privilege recognizes the obligation of citizens to communicate their knowledge of commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. See also Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); McCray v. Illinois, 386 U.S. 300, 309-311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 71, 351 F.2d 762, 768 (1965). . Roviaro v. United States, supra note 43, 353 U.S. at 60, 77 S.Ct. at 627. . Id. . Supra note 43. . Roviaro v. United States, supra note 43, 353 U.S. at 61, 77 S.Ct. at 628. . Id. at 61-62, 77 S.Ct. at 628. See also McCray v. Illinois, supra note 45, 380 U.S. at 311, 87 S.Ct. 1056. Decisions prior to Roviaro had considered the informant privilege absolute in character. E. g., Vogel v. Gruaz, 110 U.S. 311, 315-316, 4 S.Ct. 12, 28 L.Ed. 158 (1884); Arnstein v. United States, 54 App.D.C. 199, 203-204, 296 F. 946, 950-951, cert. denied, 264 U.S. 595, 44 S.Ct. 454, 68 L.Ed. 867 (1924). We have long since realized that Roviaro abandoned that concept and struck “a new balance between the need of litigants for information possessed by the Government and the need of the Government to foster the flow of information provided to it.” Westinghouse Elec. Corp. v. City of Burlington, supra note 45, 122 U.S.App.D.C. at 70-71, 72, 351 F.2d at 767-768, 769. . Roviaro v. United States, supra note 43, 353 U.S. at 62, 77 S.Ct. at 628. See also Westinghouse Elec. Corp. v. City of Burlington, supra note 45, 122 U.S.App.D.C. at 71, 351 F.2d at 768. . Roviaro v. United States, supra note 43, 353 U.S. at 62, 77 S.Ct. at 629. See also McCray v. Illinois, supra note 45, 386 U.S. at 310-311, 87 S.Ct. 1056. . Roviaro v. United States, supra note 43, 353 U.S. at 62, 77 S.Ct. at 629. See also McCray v. Illinois," }, { "docid": "12691012", "title": "", "text": "criminal charges and refused to find an automatic waiver of the privilege to not incriminate oneself in a civil proceeding. Campbell limited the holding in Lyons to the situation where it was unlikely that “the Fifth Amendment could properly be pled to all the questions [posed in interrogatories by the civil defendant], some of which were merely for background information.” Id. at 1057. The automatic waiver rule was implicitly rejected in Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash.1975), where that court required a showing of necessity before the attorney-client privilege could be pierced. Under the Hearn test, a court should order disclosure only where 1) the privileged party puts his confidences at issue through an affirmative act, such as the filing of a complaint or the raising of an affirmative defense, 2) the assertion of the privilege results in manifest injustice to the opposing party and 3) the information sought is “vital” or “necessary” to the defense. See id. at 581. The third prong of the Hearn approach constitutes a significant departure from Loew’s and Lyons for it places the burden on the party seeking discovery to show that the information is relevant and material to his claims or defenses. See id. at 582; see also 4 Moore’s Federal Practice ¶ 26.60[6] at 26-218, 219 (1986). The Circuit Court for the District of Columbia placed an even greater burden on the defense when its scope of discovery may violate the plaintiffs’ first amendment associational privilege. Black Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir.1981), judgment vacated without opinion sub nom. Moore v. Black Panther Party, 458 U.S. 1118, 102 S.Ct. 3505, 73 L.Ed.2d 1381 (1982). While adopting a balancing approach, see id. at 1266, that court held that disclosure of information vital to defendants’ case should be compelled “only after the litigant has shown that he has exhausted every reasonable source of information.” Id. at 1268. Furthermore, the defendants “must describe the information they hope to obtain and its importance to their case with a reasonable degree of specificity.” Id. The court indicated that the burden on the defendant" }, { "docid": "1761773", "title": "", "text": "S.Ct. 623, 1 L.Ed.2d 639 (1957), where, in such a situation, the Government did not see fit to defend an application of the privilege. On the other hand, it is not unusual for informants to cooperate physically as well as informationally in criminal investigations, see cases cited infra, and the reason underlying the privilege of nondisclosure hardly distinguishes the two kinds of activities. See text supra at note 45. Nor have the courts made any such distinction. See cases cited infra. Moreover, in the case at bar, an affidavit on behalf of the Government avowed that the informant maintained a valuable informing role in ongoing drug investigations which disclosure of his identity would destroy. See text infra following note 82. That, we believe, all the more brought the privilege into play. . “What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, supra note 43, 353 U.S. at 59, 77 S.Ct. at 627. . Id. “The privilege recognizes the obligation of citizens to communicate their knowledge of commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Id. See also Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); McCray v. Illinois, 386 U.S. 300, 309-311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 71, 351 F.2d 762, 768 (1965). . Roviaro v. United States, supra note 43, 353 U.S. at 60, 77 S.Ct. at 627. . Id. . Supra note 43. . Roviaro v. United States, supra note 43, 353 U.S. at 61, 77 S.Ct. at 628. . Id. at 61-62, 77 S.Ct. at 628. See also McCray v. Illinois, supra note 45, 380 U.S. at 311, 87 S.Ct. 1056. Decisions prior to Roviaro had considered the informant privilege absolute in character. E. g., Vogel v. Gruaz, 110 U.S. 311, 315-316, 4 S.Ct. 12, 28 L.Ed." }, { "docid": "21902773", "title": "", "text": "parties’,” id.) (citations omitted); Lyons v. Johnson, 415 F.2d 540, 541-42 (9th Cir. 1969), cert. denied, 397 U.S. 1027, 90 S.Ct. 1273, 25 L.Ed.2d 538 (1970). Finally, it is interesting to note that in United States v. Auhagen, 39 F.Supp. 590, 591-92 (D.D.C.1941), one of the first cases brought after FARA’s enactment, the District Court for the District of Columbia ruled, in a criminal action no less, that defendant’s interest in “every reasonable opportunity to make his defense” could not outweigh the fact that the “difficulties involved in taking the deposition [he requested] are very great if not insurmountable.” . P. 951 supra. . Note that we are not asserting that dismissal is never proper in a civil context, nor that the hardship undergone by civil parties sued by the Government is necessarily less than that undergone by criminal defendants. However, we do assert that in civil cases especially the proper approach to be taken by courts is one which balances the legitimate interests of both parties, and that the hardship to defendant will generally be less than in criminal cases (here, this is certainly true). Cf. Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762, 769 (D.C.Cir.1965) (“There is no logical reason to set up two different privileges, one for civil and one for criminal cases. The defendant in a criminal case may have a greater stake than a party in a civil case, but that would not always be so .... The ... balance should be struck in each case, civil and criminal, in deciding whether disclosure ‘is essential to a fair determination of a cause ....’) (citing Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957)”). See also 4 J. Moore, Federal Practice n 26.61 [6.-4] at 26-317 (2d ed. 1981). . No. 76-1518, mem. op. at 4 (D.D.C. 13 July 1979), J.A. at 50. . Attorney Gen. v. INAC, 346 F.Supp. at 1389. See also Loral Corp. v. McDonnell Douglas Corp., 558 F.2d 1130, 1133 (2d Cir. 1977) (“Courts of equity have the power and duty to adapt" }, { "docid": "15410074", "title": "", "text": "8 Cir., 1958, 252 F.2d 513; Durkin v. Pet Milk Co., D.C.W.D.Ark.1953, 14 F.R.D. 385; Fleming v. Bernardi, D.C.N.D.Ohio 1941, 4 F.R.D. 270, it must be noted that the Government in bringing actions of this type is acting in its sovereign capacity and cannot be considered as a private suitor. 4 Moore’s Federal Practice, Par. 26.25(6). It must also be noted that while the Government cannot assert in every instance an absolute privilege, there are circumstances under which certain materials in its files are privileged and should not be disclosed, e. g., military secrets, security information. See United States v. Reynolds, 1953, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727. Therefore, the Government’s claim of privilege is entitled to respectful consideration. 4 Moore’s Federal Practice, Par. 26.25 (6). However, the ultimate determination of what is or is not privileged must be made by the Court and not by the Government or the head of any agency of the Government. Tobin v. Gibe, D.C. Del.1952, 13 F.R.D. 16. Government investigators can not, unless permitted by the law, give blanket guarantees of nondisclosure to the people they interview. A recent ease of the Supreme Court of the United States, Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, deals with the question of privilege. This was a ease in which the court held that it was reversible error for the trial court to fail to require the disclosure of the identity of an informer in a case involving possession and transportation of narcotic drugs. While this was a criminal case, the court discussed generally the question of privilege and in 353 U.S. at pages 60-62, 77 S.Ct. at pages 627-628 held that where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way; that in such a situation the trial court may require disclosure and, if the Government withholds the information, dismiss the action. It is obvious that" }, { "docid": "22124435", "title": "", "text": "the identity of a person which otherwise would be required to be disclosed during the course of litigation) is not absolute. In Roviaro the Court said, “Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61, 77 S.Ct. at 628. The Court went on to explain the test to be applied to determine when disclosure is required: We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. The Roviaro test has been applied in the context of civil litigation in a variety of cases, see e. g., Socialist Workers Party v. Attorney General, 565 F.2d 19 (2d Cir. 1977) cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978); Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762 (1965), and we see no reason to depart from this well-established rule. The language employed by the Court in Roviaro encompasses civil litigation as well as criminal litigation, and the competing interests underlying the privilege and its exceptions are essentially the same in both contexts. See Westinghouse, supra, 122 U.S.App.D.C. at 72, 351 F.2d at 769. As the Westinghouse court concluded, “The Roviaro balance should be struck in each case, civil and criminal, in deciding whether disclosure ‘is essential to a fair determination of a cause.’ 353 U.S. at 61, 77 S.Ct. at 628.” Id. And in striking this balance, the court should examine the “relevance” of the informer’s information to “possible defenses,” the “possible significance” of the information, and “the seriousness of the litigation.” Id. 122 U.S.App.D.C. at 74, 351 F.2d at 771. The trial judge" }, { "docid": "18409543", "title": "", "text": "States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991). The waiver may be found even if the privilege holder does not attempt to make use of a privileged communication; he may waive the privilege if he makes factual assertions the truth of which can only be assessed by examination of the privileged communication. See, e.g., id. (criminal defendant’s general assertion of good-faith defense waives attorney-client privilege to permit' assessment whether his attorney had told him that his acts were illegal); Leucadia, Inc. v. Reliance Ins. Co., 101 F.R.D. 674, 679-80 (S.D.N.Y.1983); Hearn v. Rhay, 68 F.R.D. 574, 580-81 (E.D.Wash.1975). The governing principle was summarized in Hearn v. Rhay, in a passage cited with approval by the Second Circuit: All of these established exceptions to the rules of privilege have a common denominator; in each instance, the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party. The factors common to each exception may be summarized as follows: (1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Thus, where these three conditions exist, a court should find that the party asserting a privilege has impliedly waived it through his own affirmative conduct. 68 F.R.D. at 581. See Bilzerian, 926 F.2d at 1292 (citing Hearn); Bowne, 150 F.R.D. at 488-89. This has plainly occurred in connection with the Lynch report. Indeed, Kidder has made the invocation of that report and its conclusions a leitmotif of its approach both in judicial fora and in other “judicial”-type contexts. The earliest documented use of the report following its preparation involved Kidder’s transmittal" }, { "docid": "2087569", "title": "", "text": "in awarding the sales which underlie these actions—the “Happy Thin,” “Jack Heli” and “Too Wild” sales. The Federal Circuit has recognized the implicit waiver of the attorney-client privilege when privileged information is “at issue.” This concept was first articulated in Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975) and adopted by the Federal Circuit in Zenith Radio Corp. v. United States, 764 F.2d 1577, 1579 (Fed.Cir.1985). Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1204-05 (Fed.Cir.1987); accord United States v. Doe (In re Grand Jury Proceedings), 219 F.3d 175, 182-83 (2d Cir.2000); Granite Partners, L.P. v. Bear, Stearns & Co., 184 F.R.D. 49, 54 (S.D.N.Y.1999). Under Hearn, an implied waiver of the attorney-client privilege occurs when: (1) assertion of the privilege was a result of some affirmative act, such as filing suit by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Hearn at 581. The at-issue implied waiver applies where the privilege holder makes assertions, the truth of which can only be assessed by examination of privileged communications. United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991). See generally Developments in the Law-Privileged Communications, 98 Harv.L.Rev. 1629, 1637 (1985) (“It has become a well accepted component of waiver doctrine that a party waives his privilege if he affirmatively pleads a claim or defense that places at issue the subject matter of privileged material over which he has control.”). The Hearn rationale for excepting communications from the attorney-client privilege has been applied to work product. Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506, 509-11 (S.D.N.Y.2002); Mitzner v. Sobol, 136 F.R.D. 359, 362 (S.D.N.Y.1991); see also Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.1992) (“We agree with the several courts and commentators that have concluded that opinion work product may be discovered and admitted when" }, { "docid": "22124436", "title": "", "text": "g., Socialist Workers Party v. Attorney General, 565 F.2d 19 (2d Cir. 1977) cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978); Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762 (1965), and we see no reason to depart from this well-established rule. The language employed by the Court in Roviaro encompasses civil litigation as well as criminal litigation, and the competing interests underlying the privilege and its exceptions are essentially the same in both contexts. See Westinghouse, supra, 122 U.S.App.D.C. at 72, 351 F.2d at 769. As the Westinghouse court concluded, “The Roviaro balance should be struck in each case, civil and criminal, in deciding whether disclosure ‘is essential to a fair determination of a cause.’ 353 U.S. at 61, 77 S.Ct. at 628.” Id. And in striking this balance, the court should examine the “relevance” of the informer’s information to “possible defenses,” the “possible significance” of the information, and “the seriousness of the litigation.” Id. 122 U.S.App.D.C. at 74, 351 F.2d at 771. The trial judge never attempted to apply the Roviaro balancing test or to determine whether disclosure was essential to a fair determination of plaintiffs’ cause of action. The judge, in fact, resisted plaintiffs’ efforts to develop a record on these issues. Ordinarily, we would remand the disclosure issue to the trial court for adjudication under the appropriate legal standards. In this case, however, enough evidence relevant to the validity of Groth’s assertion of informer’s privilege has been amassed throughout the trial to make such a remand unnecessary. A considerable amount of evidence was introduced leading to the conclusion that either Groth did not have an informant and merely repeated information he had received from Jalovec in the affidavit for the warrant or that O’Neal was Groth’s informant as well as the ultimate source for Jalovec’s information. First, Groth had no record of payments to his informant since, according to Groth, the informant’s information was provided for advancement in other areas. Groth never elaborated what these incentives were. Further, the similarity of the content and the timing of the" }, { "docid": "23582183", "title": "", "text": "States, 764 F.2d 1577, 1579, 3 Fed.Cir. (T) 169 (1985), there are three schools of thought in treating privileges asserted by plaintiffs. The first approach considers that the party automatically waives his privilege by pursuing judicial relief. Id. (citing Independent Productions Corp. v. Loew’s, Inc., 22 F.R.D. 266 (S.D.N.Y.1958)). The second approach balances the need for discovery against the need for secrecy. Id. (citing Black Panther). The third theory denies a plaintiff the privilege if he places the matter subject to the privilege in issue and the information is vital to the defendant’s case. Id. (citing Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash.1975)). The board adopted the “automatic waiver” theory. We believe that this approach is too rigid and choose instead the balancing approach suggested in Hearn and elsewhere. This is particularly appropriate where the civil case is not in court but in a tribunal provided by defendant itself for dispute resolution. We conclude that there may be greater reasons to postpone civil proceedings when even an appellant requests it where there is a parallel criminal suit. In Kordel the Court noted the strong policy interest in allowing both the civil and criminal cases brought by the government to go forward: It would stultify enforcement of federal law to require a governmental agency such as the FDA invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial. Kordel, 397 U.S. at 11, 90 S.Ct. at 769 (citation omitted). This important government interest is absent when the civil case is not initiated by the government. Although there are other interests of possible harm to the civil defendant, which we will address infra, the harm discussed in Kordel is not at issue at present. Essentially, the board concludes that one may not bring a suit, “wave the sword” of the fifth amendment, and then maintain the suit. We agree that a party may not claim a fifth amendment privilege and proceed with his suit. Accord Lyons v. Johnson, 415 F.2d 540 (9th Cir.1969)," }, { "docid": "1104457", "title": "", "text": "535-536, 15 S.Ct. 959, 39 L.Ed. 1080 (1894). Applying the above to the facts of this case, it is my view that the person or persons who assisted the government in the eavesdropping of plaintiff’s suite were informers within the accepted legal meaning of that word. Having established that they were informers, it is incumbent upon the Court to determine whether their identity should remain undisclosed. There can be no disputing the fact that the aid and assistance of citizens and corporations are necessary for the effective administration of justice. It is the primary purpose of the informer’s privilege to facilitate this private cooperation in law enforcement by encouraging informers to provide pertinent information to the government without fear of public disclosure, retaliation or social disfavor. Originally, the informer’s privilege was a broadly conceived evidentiary rule insulating persons who assisted the authorities from disclosure. See In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1894); Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158 (1884). It assumed a quasi-absolute breadth until 1957 when the Supreme Court ruled in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Id. at 62, 77 S.Ct. at 628. In a subsequent case the United States Court of Appeals for the District of Columbia construed Roviaro as introducing a fairness concept, making more flexible what was once a mechanical rule. Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762 (1965), on remand, 246 F. Supp. 839 (D.D.C.1965). Westinghouse also held the Roviaro restructuring of the informer’s privilege to be applicable in civil cases. Id. at 72-73, 351 F.2d at 769-770. This formulation of the informer’s privilege, however, has not been applied without difficulty. The testimonial privileges and in-competencies of the common law have seen a continuing shrinkage. Not that the courts are callous to" }, { "docid": "973178", "title": "", "text": "officer Hyman and the other federal and local officers involved in the arrest was sufficient “to warrant . . . prudent [men] in believing that the [appellant] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), citing Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The search of defendant’s car and the resulting seizure of the heroin was proper under the automobile exception to the warrant requirement of the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); see also, United States v. Upthegrove, 504 F.2d 682 (6th Cir. 1974). The district court’s refusal to require the government to divulge the identity of the informer is also challenged by appellant. The government’s privilege to withhold the identity of an informant is qualified by “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-629, 1 L.Ed.2d 639 (1957). Of course, an “[informer’s] identity cannot be concealed from the defendant when it is critical to his case,” Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 2665, 33 L.Ed.2d 626 (1972); United States v. Eddings, 478 F.2d 67, 70 (6th Cir. 1973), and “[w]hen the evidence suggests . . . that it is reasonably probable that the informer can give relevant testimony, the burden should be on the Government to overcome this inference with evidence that the informer cannot supply information material to the defense.” 478 F.2d at 71. In this case, the district court required the government to come forward with proof, in an in camera proceeding, that the informer’s testimony would not be helpful to the defense. After reviewing the evidence, the trial court so found. Moreover, this was not a situation in which the informer was a direct participant in the drug transaction. “The evidence upon which the appellant was convicted was secured by government agents personally and was in no" }, { "docid": "14938259", "title": "", "text": "the county, plaintiffs sought discovery of police files, which defendant police claimed were entitled to executive privilege. “Under federal law there is no privilege for police investigative files other than to files relating to ongoing investigations.” Id. at 178. Agreeing with Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970), the court explained that case was concerned only with discovery of the files of an ongoing police homicide investigation and added that “[mjaterials relating to ongoing investigations are indeed privileged although they cease to be privileged once the investigation ceases. . . Thus investigatory, files relating to investigations currently in progress may properly be withheld.” 64 F.R.D. at 178. . Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Petitioner was convicted of knowingly possessing and transporting heroin imported unlawfully. The Supreme Court held that the trial court’s refusal to disclose the identity of an undercover informer material in bringing about the petitioner’s possession of the drugs and who was present with defendant at the occurrence of the alleged crime was, in the circumstances of this case, reversible error since it was essential to a fair trial. “Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.” Id. at 60, 77 S.Ct. at 627. Westinghouse Electric Corp. v. City of Burlington, Vermont, 122 U.S.App.D.C. 65, 351 F.2d 762 (D.C.Cir. 1965). In an appeal from an antitrust case brought by privately owned utilities, holding that defendants, manufacturers of electrical equipment, had violated the law, the trial judge’s decision to quash an entire subpoena for documents relevant to Government antitrust litigation on the basis of informer’s privilege was overturned. The court ordered the judge to determine the applicability of the privilege under the standards set out in Roviaro. “And once the identity is revealed, the privilege terminates.” Id., 122 U.S.App.D.C. at 71, 351 F.2d at 768. Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958). An appeal from dismissal of action by the Secretary of Labor to enjoin defendants from violating" }, { "docid": "22895055", "title": "", "text": "state secrets, and it held that a plaintiff could be denied evidence if “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Id. at 10, 73 S.Ct. 528. The second case that has influenced our sister circuits’ examination of the Government’s classified information privilege is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), a criminal case involving the privilege to withhold a confidential informant’s name. In that case, the Court recognized the Government’s right to withhold the identity of an informer who provides police officers with information about violations of law, id. at 59, 77 S.Ct. 623, but it also held that “the privilege must give way” when the information “is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.” Id. at 60-61, 77 S.Ct. 623. In Aref, the Second Circuit applied Reynolds and Roviaro in the context of the Government’s withholding of discovery of classified information in a CIPA case. See Aref, 533 F.3d at 79-80. The court believed that the classified information privilege contemplated by CIPA is analogous to the common law state-secrets privilege recognized in Reynolds. It also adopted the test from Roviaro as to when the privilege may yield to a defendant’s need for the information. The court held that a governmental privilege claim in a CIPA case, like the state-secrets privilege, may prevent disclosure of otherwise discoverable information when (1) there is a reasonable danger that disclosure would expose matters that otherwise should not be disclosed in the interest of national security, and (2) the privilege claim has been lodged by an appropriate governmental agency head. Id. at 80. The court also held that the privilege nevertheless may yield when the information is helpful or material to the defense. Id. Similarly, in Yunis, the District of Columbia Circuit also assessed discovery orders in a CIPA case. The court there recognized the similarity between the “sensitive considerations underlying] the classified information privilege” and the" }, { "docid": "14938260", "title": "", "text": "was, in the circumstances of this case, reversible error since it was essential to a fair trial. “Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.” Id. at 60, 77 S.Ct. at 627. Westinghouse Electric Corp. v. City of Burlington, Vermont, 122 U.S.App.D.C. 65, 351 F.2d 762 (D.C.Cir. 1965). In an appeal from an antitrust case brought by privately owned utilities, holding that defendants, manufacturers of electrical equipment, had violated the law, the trial judge’s decision to quash an entire subpoena for documents relevant to Government antitrust litigation on the basis of informer’s privilege was overturned. The court ordered the judge to determine the applicability of the privilege under the standards set out in Roviaro. “And once the identity is revealed, the privilege terminates.” Id., 122 U.S.App.D.C. at 71, 351 F.2d at 768. Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958). An appeal from dismissal of action by the Secretary of Labor to enjoin defendants from violating Fair Labor Standards Act. The Secretary had refused to obey orders to produce statements taken by the Secretary’s investigators from four of defendant’s employees. “We agree with the trial court that after the Government had voluntarily disclosed the names of the informers no further reason for applying the informer’s privilege remained.” Id. at 517. . Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Supreme Court reversed a drug conviction based on the trial court’s refusal to disclose the identity of an undercover informer who was material to bringing about the conviction. “The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” Id. at 60, 77 S.Ct. at 627. Westinghouse Electric Corp. v. City of Burlington, Vermont, 122 U.S.App.D.C. 65, 351 F.2d 762 (D.C.Cir. 1965). Appellants, defendants below, sought discovery of documents relevant to the trial of antitrust litigation which the Government had" }, { "docid": "1104461", "title": "", "text": "Association Project on Minimum Standards for Criminal Justice relating to Discovery and Procedure Before Trial recognizes the role of informers in effective law enforcement with the result that “only the most compelling circumstances should require pretrial disclosure of the informer’s identity by the prosecution, such as constitutional requirements or the fact that the identity is going to be disclosed anyway when he becomes a witness at a trial or hearing * * In the criminal area, the Roviaro doctrine, while broadening the discovery of informers, has been applied with great caution. The Supreme Court’s decision in Roviaro, although directed toward procedures in a criminal prosecution, has been cited as authority in civil cases. In Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762 (1965), the United States Court of Appeals for the District of Columbia unequivocally affirmed its applicability in civil cases. The Court held that “[t]here is no logical reason to set up two different privileges, one for civil and one for criminal cases.” Id. at 72, 351 F.2d at 769. “The Roviaro balance should be struck in each case, civil and criminal, in deciding whether disclosure ‘is essential to a fair determination of a cause’.” Id., quoting 353 U.S. at 61, 77 S.Ct. 623, 628. See, Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958); Mannerfrid v. Teegarden, 23 F.R.D. 173 (S.D.N.Y.1959). Although Roviaro has been said to be generally applicable to civil suits, disclosure has been ordered in two types of cases: (1) in punitive civil suits; (2) in cases where the informer or the government has waived the privilege. Punitive civil actions are suits brought by private citizens or by the government under authority of a statute to punish noncompliance or to compensate those who suffered injury because of defendant’s failure to abide by the statute’s terms. Two of the more common civil punitive actions are those brought under the anti-trust laws, 15 U.S.C. § 15 (1964), or the Fair Labor Standards Act, 29 U.S.C. § 216 (1964). The statutes authorizing these punitive actions make the private plaintiffs, prosecutors or private attorneys" }, { "docid": "15268358", "title": "", "text": "pretrial proceedings which cannot impair the accused’s defense on the merits. See 420 U.S. at 122-23, 95 S.Ct. at 8671-868. . The Supreme Court in McCray explicitly distinguished its treatment of the informer’s privilege in the suppression hearing context from its earlier ruling in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro the Court held that at trial the informer’s privilege is limited by “the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” 353 U.S. at 60-61, 77 S.Ct. at 627-628 (footnote omitted). The Court in Roviaro prescribed a balancing test for the treatment of the privilege in criminal trials. 353 U.S. at 62, 77 S.Ct. at 628-629. In further comment on this subject, the Supreme Court recently observed in United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980), that: This Court on other occasions has noted that the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial. United States v. Matlock, 415 U.S. 164, 172-74 [94 S.Ct. 988, 993-994, 39 L.Ed.2d 242] (1974); Brinegar v. United States, 338 U.S. 160, 172-74 [69 S.Ct. 1302, 1309-1310, 93 L.Ed. 1879] (1949); Fed. Rules Evid. 104(a), 1101(d)(1). Furthermore, although the Due Process Clause has been held to require the Government to disclose the identity of an informant at trial, provided the identity is shown to be relevant and helpful to the defense, Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639 (1957), it has never been held to require the disclosure of an informant’s identity at a suppression hearing. McCray v. Illinois, 386 U.S. 300 [87 S.Ct. 1056, 18 L.Ed.2d 62] (1967). We" } ]

[ { "docid": "13725932", "title": "", "text": "its own offense. See id. at 16, 115 S.Ct. 382 (citing Regina v. Bass, (1705) 88 Eng. Rep. 881, 882 (K.B.)); Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). This is so because such agreements are dangerous in and of themselves. A collective criminal agreement “increases the likelihood that the criminal object will be successfully attained,” “decreases the probability that the individuals involved will depart from their path of criminality,” and “makes possible the attainment of ends more complex than those which one criminal could accomplish.” Callanan, 364 U.S. at 593, 81 S.Ct. 321. Moreover, conspiracies often breed other crimes to further the ultimate criminal objective, like acquiring firearms or stealing getaway cars, and can even spawn “the commission of crimes unrelated to the original purpose for which the group was formed,” id. at 594, 81 S.Ct. 321. So in this case, the government must prove just that Marcus and Alvarez agreed to rob the stash house and sell the drugs, and that they “knowingly and intentionally join[ed] the agreement.” United States v. Rollins, 544 F.3d 820, 835 (7th Cir.2008). Alone, idle chitchat or mere boasting about one’s criminal past is insufficient to establish a conspiracy. Specifically, proof of a drug conspiracy under 21 U.S.C. § 846 requires “substantial evidence that the defendant knew of the illegal objective of the conspiracy and agreed to participate.” United States v. Long street, 567 F.3d 911, 918-19 (7th Cir.2009) (quotation omitted). Yet, “[t]he agreement need not be formal, and the government may establish that agreement, as it may other elements of the charge, through circumstantial evidence.” United States v. Gilmer, 534 F.3d 696, 701 (7th Cir.2008) (quotation omitted); see also United States v. Turner, 93 F.3d 276, 282 (7th Cir.1996). For instance, “[a] conspiracy may be shown by evidence which shows that the co-conspirators embraced the criminal objective of the conspiracy, that the conspiracy continued towards its common goal, and that there were co-operative relationships.” Gilmer, 534 F.3d at 703. Moreover, an agreement must exist among coconspirators, that is, those who actually intend to carry out" } ]

[ { "docid": "23704976", "title": "", "text": "permitted, with the proper safeguards: Although we have acknowledged that there is a greater danger of undue prejudice to the defendants when a witness testifies as both an expert and a fact witness, we have also indicated that a police officer may permissibly testify in both capacities. The potential for prejudice in this circumstance can be addressed by means of appropriate cautionary instructions and by examination of the witness that is structured in such a way as to make clear when the witness is testifying to facts and when he is offering his opinion as an expert. Id. at 654 (internal citations omitted). As we have already noted, both of those measures were taken in this case, and thus neither Rule 702 nor Rule 403 bars Agent Becka’s testimony. We turn then to Arturo’s claim that there was insufficient evidence to convict him of either the conspiracy offense or the possession with intent to distribute offense. The task of challenging the sufficiency of the evidence “is a daunting one, as the standard of review that this court applies is necessarily rigorous. Our threshold inquiry is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’.” United States v. Curtis, 324 F.3d 501, 505 (7th Cir.2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We begin with Arturo’s conspiracy conviction. “A conspiracy conviction requires a showing that a conspiracy existed (two or more persons joined together for the purpose of committing a criminal act) and that the charged party knew of and intended to join the agreement.” United States v. Adkins, 274 F.3d 444, 450 (7th Cir.2001) (internal quotation marks omitted). “The government may establish these elements through circumstantial evidence and the reasonable inferences therein concerning the parties’ relationships, their overt acts, and their overall conduct.” United States v. Navarrete, 125 F.3d 559, 562 (7th Cir.1997). Because Arturo apparently concedes that a conspiracy existed, we need determine only whether he knowingly and intentionally" }, { "docid": "6857414", "title": "", "text": "of guilty beyond a reasonable doubt” is all that is required. See Powell, 469 U.S. at 67, 105 S.Ct. 471. In reviewing the sufficiency of the evidence, the “evidence and all reasonable inferences that can be drawn from it must be viewed in the light most favorable to the government.” United States v. Gardner, 238 F.3d 878, 879 (7th Cir.2001) (quoting United States v. Frazier, 213 F.3d 409 (7th Cir.2000)). “The test is whether, after viewing the evidence, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Jackson, 300 F.3d 740, 747 (7th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “A conspiracy under 21 U.S.C. § 846 requires that (1) two or more people agreed to commit an unlawful act and (2) the defendant knowingly and intentionally joined in the agreement. No overt act is required.” United States v. Gardner, 238 F.3d at 879. To demonstrate an agreement, the government may rely on inferences. United States v. Moya-Gomez, 860 F.2d 706, 758 (7th Cir.1988). “Direct evi dence of intent is rarely available. Thus, circumstantial evidence ‘as a practical matter ... is often all that exists.’ ” Id. (quoting United States v. Page, 580 F.2d 916, 920 (7th Cir.1978)). Although Patterson concedes that the evidence demonstrated that he participated in an attempt to possess narcotics, he argues that the evidence was insufficient to prove that he had a knowing co-conspirator. We disagree. The evidence includes the following: Patterson told Veal that Smith was the only person whom he trusted to be his aid; Patterson told Veal that he and Smith had ripped off narcotics in hiding places in public housing projects; Patterson told Veal that Smith said that the rip-off “looks like retirement”; Patterson and Smith entered the place to be searched with a key and without a warrant; Smith wore a mask during the encounter; Smith carefully turned over a lamp and emptied a kitchen cabinet after Patterson signaled to him that the search for" }, { "docid": "4261196", "title": "", "text": "evidence established the existence of a cocaine conspiracy. Second, the government maintains that Theodosopoulos was a knowing member of that conspiracy who participated in and intended to advance the ends of that conspiracy. In examining a sufficiency of the evidence claim, we review the record in the light most favorable to the government, and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Billops, 43 F.3d 281 (7th Cir.1994); United States v. Howell, 37 F.3d 1197, 1201 (7th Cir.1994); United States v. Byerley, 999 F.2d 231, 234 (7th Cir.1993). When reviewing the conviction, we may accept any adequate evidence, including circumstantial evidence, as support for a' conviction. United States v. BaskinBey, 45 F.3d 200 (7th Cir.1995); United States v. Durrive, 902 F.2d 1221, 1229 (7th Cir.1990). A jury conviction should be taken away “only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” United States v. Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir.1994). To prove Theodosopoulos guilty of a drug conspiracy, the government must prove beyond a reasonable doubt: (1) a conspiracy existed; (2) Theodosopoulos knew of the conspiratorial agreement; and (3) Theodosopou- los intended to join it. United States v. James, 40 F.3d 850, 864 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 948, 130 L.Ed.2d 891 (1995); United States v. Crowder, 36 F.3d 691, 695 (7th Cir.1994) (“To sustain a conspiracy charge, the government need only prove the existence of the conspiracy and a participatory link with the defendant.”) (quoting United States v. Bias; 947 F.2d 1320, 1325 (7th Cir.1991), cert. denied, 502 U.S. 1118, 112 S.Ct. 1234, 117 L.Ed.2d 468 (1992)), cert. denied, — U.S. -, 115 S.Ct. 1160, 130 L.Ed.2d 1116 (1995); United States v. Campbell, 985 F.2d 341, 344-45 (7th Cir.1993). Without question, there .is adequate evidence in the record that a cocaine conspiracy existed. Indeed, the district" }, { "docid": "22090951", "title": "", "text": "of the evidence supporting all counts, he has not mentioned or presented any argument as to the insufficiency of evidence supporting Count 2, charging him with aiding and abetting possession with intent to distribute cocaine, and Count 7, charging him with distribution and possession with intent to distribute crack. Moreover, although in his brief Defendant mentioned Count 5, charging him with an attempt to possess with intent to distribute powder cocaine, he makes no legal argument defending against the conviction, claiming instead that he did not participate in a crack conspiracy. (Appellant’s Br. at 26.) Since “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived,” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997), we conclude Defendant has waived his right to appellate review of his challenge to the sufficiency of the evidence supporting these counts. We therefore address his challenges to the sufficiency of evidence on all counts with the exception of Counts 2, 5, and 7. When reviewing challenges to the sufficiency of the evidence supporting criminal convictions, we must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We must also resolve all reasonable inferences in favor of the government. See United States v. Palomino, 100 F.3d 446, 451 (6th Cir.1996). 1. Drug Conspiracy Convictions To establish a drug conspiracy, the government must prove (1) an agreement to violate drug laws; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy. See United States v. Welch, 97 F.3d 142, 148-49 (6th Cir.1996). In a § 846 conspiracy, the government must show the willful formation of a conspiracy and the willful membership of the defendant in the conspiracy, but need not prove that defendant committed an overt act in furtherance of the conspiracy. See United States v. Spearman," }, { "docid": "6857413", "title": "", "text": "U.S. at 67, 105 S.Ct. 471. “Suffieiency-ofthe-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt ... we do not believe that further safeguards against jury irrationality are necessary.” Id. Nevertheless, Patterson submits that the inconsistency of the verdicts requires this court to impose a heightened eviden-tiary standard when reviewing the sufficiency of the evidence of his conviction for conspiracy. Patterson wrongly construes a comment in Mancari as imposing such a standard. In Mancari, this court stated that “if there is overwhelming evidence of conspiracy, the jury will be assumed not to have convicted lawlessly the conspirator it convicted but instead to have acquitted the other(s) lawlessly.” Mancari, 875 F.2d at 104. Mancari merely explains that overwhelming evidence is sufficient to demonstrate the lawfulness of the conviction; it does not require overwhelming evidence for the conviction to stand. As stated above, review for sufficiency of the evidence, which asks whether “the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt” is all that is required. See Powell, 469 U.S. at 67, 105 S.Ct. 471. In reviewing the sufficiency of the evidence, the “evidence and all reasonable inferences that can be drawn from it must be viewed in the light most favorable to the government.” United States v. Gardner, 238 F.3d 878, 879 (7th Cir.2001) (quoting United States v. Frazier, 213 F.3d 409 (7th Cir.2000)). “The test is whether, after viewing the evidence, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Jackson, 300 F.3d 740, 747 (7th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “A conspiracy under 21 U.S.C. § 846 requires that (1) two or more people agreed to commit an unlawful act and (2) the defendant knowingly and intentionally joined in the agreement. No overt act is required.” United States v. Gardner, 238 F.3d at 879. To demonstrate an agreement, the government" }, { "docid": "1778520", "title": "", "text": "to present evidence that supports his conviction on the specific conspiracies set forth in Counts one and two. In reviewing Hall’s sufficiency of the evidence claim, we are cognizant of the fact that Hall “faces a nearly insurmountable hurdle,” United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.1997), because [w]hen reviewing a conviction for sufficiency of the evidence, we neither reweigh the evidence nor do we substitute our judgment of the facts for that of the factfinder. See United States v. Hatchett, 31 F.3d 1411, 1416 (7th Cir.1994). We consider the evidence in the light most favorable to the prosecution, making all reasonable inferences in its favor, and affirm the conviction so long as any rational trier of fact could have found the defendant to have committed the essential elements of the crime. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Reversal is warranted “ ‘only when the record is devoid of any evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt.’ ” United States v. Garcia, 35 F.3d 1125, 1128 (7th Cir.1994) (quoting United States v. Gutierrez, 978 F.2d 1463, 1468-69 (7th Cir.1992)). United States v. Masten, 170 F.3d 790, 794 (7th Cir.1999). We conclude that there was more than sufficient evidence presented at trial to support Hall’s conviction of conspiring to distribute methamphetamine and marijuana, as well as conspiring to distribute LSD because a number of witnesses (at least six) testified that Hall was involved with Walker and his drug associates in the conspiracies to purchase and distribute drugs. Further, at least five of Hall’s former drug co-conspirators, including Conway and McRoy, later became cooperating witnesses against the defendants and testified that on numerous occasions during 1994 and 1995, Hall traveled by himself and at times with other co-conspirators to Arizona to purchase marijuana, methamphetamine and LSD. Hall also contends that the testimony of the government informant who testified against him at trial was perjurious. He does not take issue with the heart of the informant’s testimony, describing Hall as a" }, { "docid": "21560029", "title": "", "text": "on appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); see also United States v. Luttrell, 889 F.2d 806, 809 (9th Cir.1989). “The essential elements of a conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime.” United States v. Meyers, 847 F.2d 1408, 1412-13 (9th Cir.1988). “ ‘The prosecution need not show the agreement to have been explicit. An implicit agreement may be inferred from the facts and circumstances of the case.’ ” United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.) (quoting United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977)), cert. denied, — U.S. -, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). “Once the existence of the conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy.” Meyers, 847 F.2d at 1413. To prove that a defendant has manufactured methamphetamine, the government must show that a defendant manufactured the drug and did so knowingly or intentionally. See 21 U.S.C. § 841(a)(1). “The elements necessary to convict an individual under an aiding and abetting theory are (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.” United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988). We conclude that sufficient evidence supports Litteral’s convictions for (1) conspiracy to manufacture" }, { "docid": "7703571", "title": "", "text": "house robbery. Love did not present witnesses in his defense. The jury convicted. Love appeals, arguing that (1) the evidence was insufficient to support his conviction; (2) the trial court improperly declined to give a “buyer-seller” jury instruction; (3) the trial court improperly admitted a hearsay statement; and (4) his sentence was improperly calculated. We address each challenge in turn. II. Analysis A. Sufficiency of the Evidence Love first argues that there was not enough evidence to support his conspiracy conviction. Love “bears a heavy burden” when walking this road. United States v. Griffin, 684 F.3d 691, 694 (7th Cir.2012) (internal quotation marks omitted). To convict Love of conspiracy, the government had to prove that (1) two or more people agreed to commit an unlawful act; and (2) Love knowingly and intentionally joined in the agreement. See United States v. Avila, 557 F.3d 809, 814 (7th Cir.2009). The jury found that the government did so here, and we afford “great deference” to that finding. Id. at 815. Thus, we review the evidence in the light most favorable to the government and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Walker, 673 F.3d 649, 654 (7th Cir.2012). Love argues that the government’s evidence of conspiracy was not detailed enough — it proved at most “an agreement between Love, Acklin and Deloney to beat up and/or rob Cowart” and not an agreement to distribute crack. (Appellant’s Br. at 19.) We respectfully disagree. Cowart arranged the September 9 drug deal with Love, but Deloney actually carried out the deal, and before he did so, he sought confirmation that Cowart was “with Black” (i.e., Love). Furthermore, Acklin testified that he and Love had been “dealing drugs together” for several years. (Trial Tr. at 312.) This evidence easily supports a reasonable inference that Love dealt drugs with help from Acklin and Deloney. And the September 14 beating provided further evidence. Acklin testified that Love called him" }, { "docid": "7703572", "title": "", "text": "most favorable to the government and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Walker, 673 F.3d 649, 654 (7th Cir.2012). Love argues that the government’s evidence of conspiracy was not detailed enough — it proved at most “an agreement between Love, Acklin and Deloney to beat up and/or rob Cowart” and not an agreement to distribute crack. (Appellant’s Br. at 19.) We respectfully disagree. Cowart arranged the September 9 drug deal with Love, but Deloney actually carried out the deal, and before he did so, he sought confirmation that Cowart was “with Black” (i.e., Love). Furthermore, Acklin testified that he and Love had been “dealing drugs together” for several years. (Trial Tr. at 312.) This evidence easily supports a reasonable inference that Love dealt drugs with help from Acklin and Deloney. And the September 14 beating provided further evidence. Acklin testified that Love called him and said that “the guy who robbed his crack house had some money, and he wanted to go out there and get it.” (Id. at 313.) Cowart similarly testified that Love interrogated him about the crack house robberies during the beating. Based on this testimony, a rational jury could find that Love, Acklin, and Deloney all intentionally conspired together to defend Love’s drug business. Cf. United States v. Johnson, 592 F.3d 749, 756 (7th Cir.2010) (“an agreement to warn of future threats to each other’s business stemming from competitors or law-enforcement authorities” is evidence of conspiracy); United States v. Stephenson, 53 F.3d 836, 844 (7th Cir.1995) (attempt to rob a competitor gave rise “to a strong inference that the attack was perpetrated as a part of King’s overall drug conspiracy”); United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992) (defendant’s offer to kill a rival was admissible as evidence of conspiracy because it showed defendant’s “concern for the Organization’s retail operations and the lengths to which [defendant] would go to defend them”). Accordingly," }, { "docid": "12826335", "title": "", "text": "Rubacal-do, in a drug offense. Second, he argues that his conviction of count three is invalid because the indictment failed to allege a material fact, that Lombardi was over 18. Third, he argues that his conviction is invalid because the government did not prove that Lombardi knew Rubacaldo was a juvenile. Because we find that the government did not prove that Lombardi knowingly and intentionally used Rubacaldo, we do not address the last two issues. Sufficiency of the Evidence When a defendant challenges the sufficiency of the evidence supporting his conviction, we review the challenge to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). In reviewing the record, we are to view the evidence in the light most favorable to the prosecution and then decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Moreover, we do not consider individual facts and incidents separately; rather, we examine the evidence, taken as a whole because such evidence “may ... especially when corroborated by moral coincidences, be sufficient to consti- tute conclusive proof.” United States v. Rodriguez, 15 F.3d 408, 412 (5th Cir.1994) (internal citation omitted). “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.1995) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1989) (en banc) aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). Lombardi argues that there was insufficient evidence to show that he knowingly and intentionally used Rubacaldo in a drug transaction. Further, because the government did not indict him for conspiracy or aiding and abetting in connection with Count Three, it must show that Lombardi himself knowingly and intentionally used Rubacaldo. The government responds, correctly, “that aiding and abetting is not a separate offense, but is an alternative charge in every indictment, whether" }, { "docid": "23704977", "title": "", "text": "this court applies is necessarily rigorous. Our threshold inquiry is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’.” United States v. Curtis, 324 F.3d 501, 505 (7th Cir.2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We begin with Arturo’s conspiracy conviction. “A conspiracy conviction requires a showing that a conspiracy existed (two or more persons joined together for the purpose of committing a criminal act) and that the charged party knew of and intended to join the agreement.” United States v. Adkins, 274 F.3d 444, 450 (7th Cir.2001) (internal quotation marks omitted). “The government may establish these elements through circumstantial evidence and the reasonable inferences therein concerning the parties’ relationships, their overt acts, and their overall conduct.” United States v. Navarrete, 125 F.3d 559, 562 (7th Cir.1997). Because Arturo apparently concedes that a conspiracy existed, we need determine only whether he knowingly and intentionally joined that conspiracy. Arturo contends that there is insufficient evidence to establish his involvement, citing the absence of drugs or drug paraphernalia in his bedroom at 1503 Porter Avenue, the lack of any cellular phone records or drug ledgers linking him to the conspiracy, and his nonparticipation in the undercover transactions prior to July 10. The government counters by detailing Arturo’s role in retrieving the kilogram of cocaine from Chicago on July 10 and Agent Becka’s testimony that Arturo’s conduct at the scene of the July 10 transaction was consistent with drug trafficking counter-surveillance. In addition, the government points to Varela’s testimony that Arturo explained that he was present at the July 10 transaction because his brother thought Varela was going to steal the money. “Although mere presence is insufficient to show that the defendant was acting in furtherance of a conspiracy, the government can prove that a defendant joined a conspiracy if his presence, along with other evidence indicating that the presence or act was intended to advance the ends of the conspiracy is" }, { "docid": "22090952", "title": "", "text": "supporting criminal convictions, we must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We must also resolve all reasonable inferences in favor of the government. See United States v. Palomino, 100 F.3d 446, 451 (6th Cir.1996). 1. Drug Conspiracy Convictions To establish a drug conspiracy, the government must prove (1) an agreement to violate drug laws; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy. See United States v. Welch, 97 F.3d 142, 148-49 (6th Cir.1996). In a § 846 conspiracy, the government must show the willful formation of a conspiracy and the willful membership of the defendant in the conspiracy, but need not prove that defendant committed an overt act in furtherance of the conspiracy. See United States v. Spearman, 186 F.3d 743, 745-47 (6th Cir.1999) (citing United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986)). While the government must show the defendant “agreed to participate in what he knew to be a joint venture to achieve a common goal,” the government need not prove an actual agreement. Id. Rather, a factfinder may infer the existence of a drug conspiracy from the interdependence of the enterprise, or may “assume that participants understand that they are participating in a joint enterprise because success is dependent on the success of those from whom they buy and to whom they sell.” Id. The government may meet its burden of proof through circumstantial evidence. See id. Defendant argues that the government failed to bring forth sufficient evidence of his participation in the drug conspiracies alleged in Counts 1, 4, and 6, and that thus the evidence presented shows merely that he is a drug user who regularly purchased cocaine. While we disagree as to Counts 1 and 4, we agree with Defendant that the government failed to produce" }, { "docid": "7208341", "title": "", "text": "the light most favorable to the government, and we affirm the conviction if any rational fact finder could have found the essential elements of the crime were established beyond a reasonable doubt. United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999). Proving a conspiracy under 21 U.S.C. § 846 requires that (1) two or more people agreed to commit an unlawful act and (2) the defendant knowingly and intentionally joined in that agreement. No overt act is required. United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994); United States v. Hickok, 77 F.3d 992, 1004 n. 11 (7th Cir.1996). The government must present substantial evidence that the defendant knew of the illegal objective of the conspiracy and agreed to participate. United States v. Theodosopoulos, 48 F.3d 1438, 1450 (7th Cir.1995). However, juries may view discrete transactions in their broader context. Menting, 166 F.3d at 928. “Evidence of frequent and repeated transactions, especially when credit arrangements are made, can support a conspiracy conviction. An ongoing relationship in which drugs are sold on credit suggests a level of cooperation and trust that is absent from the isolated and discrete transaction.” United States v. Fagan, 35 F.3d 1203, 1206 (7th Cir.1994) (citations omitted). An established method of payment, a standardized transaction, and a demonstrated level of mutual trust also are indicia of a conspiracy. Id. Prior to each of Jackson’s six sales of crack to an undercover officer, James T. Jones, Jackson told the officer that he had to contact “his people” to obtain the crack. In each case Jackson delivered the crack with weight tags that were unique to this drug organization. In each case Jackson received the crack before he paid for it (and before he obtained payment from the officer). In the final transaction, captured on videotape, Jackson received the crack from Harris, one of the head honchos in the drug organization, and then sold it to Jones. Afterward, Jackson told the officer he could provide much larger quantities of crack or cocaine powder. All of these factors point toward a level of" }, { "docid": "6861251", "title": "", "text": "asking the district court to declare the sentencing scheme for methamphetamine unconstitutional. The district court overruled each of these objections. The court also imposed, over Mr. Turner’s objection, a two-level enhancement under U.S.S.G. § 2Dl.l(b)(l) for possessing a dangerous weapon. Mr. Turner was sentenced to 92 months in prison and a five-year term of supervised release. In this appeal, he seeks review of the various rulings of the district court. II DISCUSSION 1. Mr. Turner asserts that the evidence adduced at trial is insufficient to support his conviction on the conspiracy charge alleged in Count I of the indictment. In reviewing a defendant’s challenge to the sufficiency of evidence on appeal, we consider the evidence presented at trial in the light most favorable to the government. United States v. Monroe, 73 F.3d 129, 131 (7th Cir.1995).' If any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, the conviction will be upheld. United States v. South, 28 F.3d 619, 626 (7th Cir. 1994) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We shall reverse a conviction “only when the record is devoid of any evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt.” United States v. Gutierrez, 978 F.2d 1463, 1468-69 (7th Cir.1992). Under 21 U.S.C. § 846, a conspiracy is a confederation of two or more individuals formed for the purpose of committing, by their joint efforts, a criminal act prohibited by the Controlled Substances Act. United States v. Larkins, 83 F.3d 162, 165 (7th Cir.1996); United States v. Montoya, 891 F.2d 1273, 1286 (7th Cir.1989). In order to prove a conspiracy conviction, the government must provide substantial evidence that a conspiracy existed and that the defendant knowingly agreed to join that conspiracy. Larkins, 83 F.3d at 166. The government may establish each element of a conspiracy through circumstantial evidence. Id. With respect to the first element, an agreement, the government need not establish a formal agreement to conspire. United States" }, { "docid": "3135072", "title": "", "text": "only if, after viewing the evidence in a light most favorable to the government, it is determined that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Hooks, 848 F.2d 785, 792 (7th Cir.1988). In order to prove a defendant guilty of a drug conspiracy, the government must establish beyond a reasonable doubt that a defendant both , knew of the conspiracy and was a party to this agreement because he intended to associate himself with the criminal scheme. United States v. Salazar, 983 F.2d 778 (7th Cir.1993); United States v. Byerley, 999 F.2d 231, 234 (7th Cir.1993). The Defendants argue that since these men came together on one occasion for one purpose — to buy drugs — that they could not have committed a conspiracy. The Defendants contend that the evidence revealed only the mere purchase or sale of drugs on one occasion without revealing any further involvement by Defendants in an ongoing organization. See United States v. Townsend, 924 F.2d 1385 (7th Cir.1991); United States v. Lechuga, 994 F.2d 346 (7th Cir.) cert. denied, — U.S. —, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993). However, those cases address a single sale by one defendant to another defendant and hold that the single sale between Defendants is an insufficient basis for a finding of a conspiracy. In Le-chuga, the court found that as long as the defendants were individually on opposite sides of the sale — one was buying alone and one was selling alone — they could not have conspired together to distribute cocaine. Le-chuga stands for the proposition that mere evidence of one sale of narcotics, without more, is inadequate to support a conviction of the buyer and seller for conspiracy to distribute narcotics. United States v. Baskin-Bey, 45 F.3d 200, 205 (7th Cir.1995). In the present case, all of the Defendants are on one side of the cocaine deal — the buying side. The argument that this single purchase by the conspiring Defendants is insufficient to satisfy the conspiracy requirement is without merit. As in Baskin-Bey, the" }, { "docid": "6246467", "title": "", "text": "to the government and uphold ... a jury’s decision if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Burke, 425 F.3d 400, 415 (7th Cir.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We will indulge all reasonable inferences that benefit the government. United States v. Sanchez, 251 F.3d 598, 601 (7th Cir.2001). Because great deference is given to the jury, a verdict will be overturned only if we find that “the record contains no evidence, no matter how the evidence is weighed, from which the jury could have found guilt beyond a reasonable doubt.” Burke, 425 F.3d at 415. 1. Conspiracy Under 21 U.S.C. § 846, a conspiracy exists where: “(1) two or more people agreed to commit an unlawful act[;] and (2) the defendant knowingly and intentionally joined in the agreement.” United States v. Gardner, 238 F.3d 878, 879 (7th Cir.2001). In order to support a conspiracy conviction, the government must establish beyond a reasonable doubt that there was a “combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act.” United States v. Sullivan, 903 F.2d 1093, 1098 (7th Cir.1990). The government must establish that the defendant’s relationship with the other conspirators was “more than a mere association.” Id. at 1098-99. An explicit agreement, however, is not required; a jury can infer an agreement from the parties’ course of dealing. Sanchez, 251 F.3d at 602. Johnson argues that the evidence of conspiracy was insufficient because it proved only an ordinary buyer-seller relationship between him and Mohammed, not a joint conspiracy to sell heroin to Adebayo. Evidence that the defendant was in a mere buyer-seller relationship with the alleged coconspirator is insufficient to establish a conspiracy. See United States v. Rock, 370 F.3d 712, 714 (7th Cir.2004). That remains true “even when the buyer intends to resell the purchased narcotics.” United States v. Mims, 92 F.3d 461, 465 (7th Cir.1996). There is sufficient evidence to establish a" }, { "docid": "2903796", "title": "", "text": "court committed plain error when it sentenced him by incorrectly calculating his criminal history score. We discuss each argument in turn. 1. Sufficiency of the Evidence At the close of evidence, Medina’s counsel moved under Rule 29 for a judgment of acquittal and requested the district court to incorporate his final arguments as the basis for the motion. On appeal, Medina argues that the government failed to present sufficient evidence of his involvement in the conspiracy. Medina’s theory is that he merely had a buyer-seller relationship with Rea. When conducting a review of the sufficiency of the evidence, we view the evidence presented at trial and draw all reasonable inferences from that evidence in the light most favorable to the government. United States v. Gorman, 613 F.3d 711, 715 (7th Cir.2010). We will uphold the jury’s verdict so long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted). Because we owe great deference to the jury, United States v. Melendez, 401 F.3d 851, 854 (7th Cir.2005), Medina’s burden is “nearly insurmountable,” United States v. Warren, 593 F.3d 540, 546 (7th Cir.2010). To prove a conspiracy to distribute methamphetamine under 21 U.S.C. § 846, the government was required to prove beyond a reasonable doubt that Medina knowingly and intentionally joined an agreement with at least one other person to commit an unlawful act — here, the distribution of methamphetamine. United States v. Dean, 574 F.3d 836, 842 (7th Cir.2009). There is a distinction, however, between a mere buyer-seller relationship and a defendant’s participation in a conspiracy. See United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.1993) (en banc) (explaining the rationale for the “own-consumption” exception). In a buyer-seller relationship, “the sale of drugs, without more, does not constitute a conspiracy because the sale itself is a substantive crime.” Avila, 557 F.3d at 815. But “[a]ll that is necessary to establish a drug distribution conspiracy is an understanding related to the subsequent distribution of narcotics.” Id. at 816. In order to carry its burden, “[t]he government" }, { "docid": "8423460", "title": "", "text": "and possession with intent to distribute, all running concurrently. He also received two life sentences plus sixty years (again running consecutively) for the King and Hamilton murders and for carrying a semi-automatic weapon during the drug trafficking offense. II A. Sufficiency of the Evidence Both Curtis and Rouson challenge the sufficiency of the evidence in a number of respects. Curtis argues that the evidence was insufficient to support either the conspiracy charge or the charge relating to the Hamilton murder. Both Curtis and Rouson also claim that the evidence does not support their convictions for King’s murder. Their task is a daunting one, as the standard of review that this court applies is necessarily rigorous. Our threshold inquiry is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). We will overturn a conviction based on insufficient evidence only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt. United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999). To convict Curtis of participation in the crack distribution conspiracy, the government first had to establish the existence of the conspiracy. United States v. Pagan, 196 F.3d 884, 889 (7th Cir.1999). Proving the existence of a conspiracy under 21 U.S.C. § 846 requires proof of an agreement “to commit a crime other than the crime that consists of the sale itself.” United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc). This is not as difficult as it might sound, as the government need not prove an explicit agreement or an overt act. It must merely prove an understanding- — explicit or im-plict — among co-conspirators to work together to commit the offense. United States v. Sanchez, 251 F.3d 598, 602 (7th Cir.2001); see also United States v. Shaba-ni, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (21 U.S.C." }, { "docid": "6246466", "title": "", "text": "instruction to the jury to consider the evidence “with caution and care,” stating that “[t]he government asks that you do that.” The government’s reference in closing argument to a witness’s truthfulness is proper so long as the remarks are “tied to the evidence presented at trial or reasonable inferences from that evidence,” rather than personal opinion. United States v. Robbins, 197 F.3d 829, 843 (7th Cir.1999). Our review of the record reveals that the theory of the defense was to attack Mohammed’s credibility. The defense argued in closing that Mohammed “wasn’t telling the truth” and “had every incentive to lie,” thus inviting a response from the prosecutor. See id. As a result, the prosecutor’s comments in rebuttal were meant to “right the scale” and were not improper. See id. B. Sufficiency of the Evidence Johnson next asserts that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that he was guilty of the conspiracy and possession counts. We review a jury’s sufficiency of the evidence determination “in the light most favorable to the government and uphold ... a jury’s decision if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Burke, 425 F.3d 400, 415 (7th Cir.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We will indulge all reasonable inferences that benefit the government. United States v. Sanchez, 251 F.3d 598, 601 (7th Cir.2001). Because great deference is given to the jury, a verdict will be overturned only if we find that “the record contains no evidence, no matter how the evidence is weighed, from which the jury could have found guilt beyond a reasonable doubt.” Burke, 425 F.3d at 415. 1. Conspiracy Under 21 U.S.C. § 846, a conspiracy exists where: “(1) two or more people agreed to commit an unlawful act[;] and (2) the defendant knowingly and intentionally joined in the agreement.” United States v. Gardner, 238 F.3d 878, 879 (7th Cir.2001). In order to support a conspiracy conviction, the government must establish" }, { "docid": "13659768", "title": "", "text": "favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir. 1985): ‘[T]his court is not the trier of fact and we are required to uphold the jury’s verdict where “any rational trier of fact” could have found the defendant guilty of the crime. ’... ‘Only when the record contains no evidence, regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.’ Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988) which quoted, in turn, United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)) (emphasis added).” United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988). “This [evidentiary standard] includes, in conspiracy cases, circumstantial as well as direct evidence.” United States v. Williams, 858 F.2d 1218, 1221 (7th Cir.1988). “A conspiracy is a ‘combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act.’ ” United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985) (quoting United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983)). “Thus, the ‘essential elements of a conspiracy under § 846 [of the Controlled Substance Act] are the existence of an agreement between two or more individuals, with the intent to commit an offense in violation of the Controlled Substance Act.’ ” Nesbitt, 852 F.2d at 1510 (quoting United States v. Sweeney, 688 F.2d 1131, 1140 (7th Cir.1982)). “Under a combination §§ 841(a)(1), 846 prosecution, the government must prove that defendant knew of the conspiracy to [possess with intent to distribute and to distribute] drugs and that [she] intended to join and associate [herself] with its criminal design and purpose.”" } ]

[ { "docid": "17236668", "title": "", "text": "“The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ...” 42 U.S.C. § 405(g) (1976). See also, Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401, 91 S.Ct. at 1427, citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). While the claimant always has the ultimate burden of persuasion on the issue of disability, Myers v. Richardson, 471 F.2d 1265 (6th Cir.1972), several circuits have held that there is a presumption that the disability still exists in a case involving termination of benefits. See e.g., Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983); Iida v. Heckler, 705 F.2d 363 (9th Cir.1983); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973). Cf. Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). Accordingly, these circuits have concluded that the Secretary has the burden in termination cases of coming forward with evidence to show that the claimant’s condition has improved since the initial disability determination. Cf. Hayes v. Secretary, 656 F.2d 204, 206 (6th Cir.1981). In Iida v. Heckler, supra, 705 F.2d 363, the Ninth Circuit explained the respective burdens of the parties in cases involving the termination of disability benefits: A claimant seeking a ruling of disability bears the burden of proving that he is disabled. That burden continues even after an initial determination of disability. After the initial determination of disability is made, however, the claimant is entitled to a presumption that his or her disability still exists. Therefore, to terminate disability benefits, the Secretary has the burden of coming forward with evidence that the claimant’s condition has improved since the initial disability determination. In the absence of proof to the contrary, it is presumed that the condition remains unchanged. 705 F.2d at 365 (citations omitted). While this Court has not specifically addressed the issue of the allocation" } ]

[ { "docid": "5739627", "title": "", "text": "words, the then-Secretary’s position in determining that a disability had ceased became akin to an initial finding of no disability. Kuzmin v. Schweiker, 714 F.2d 1233, 1236 & n. 1 (3rd Cir.1983). This policy came to be known as the “current disability standard,” and was the policy being applied at the time defendant Secretary promulgated the ruling at issue here. A number of courts have held that the “current disability standard” is an improper standard for determining when a disability ceases. See, for example, DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir.1984) (Secretary’s “not currently disabled” standard not authorized by Act or regulations; “medical improvement” standard of finding that recipient’s condition has improved to point that he is no longer disabled or that initial finding of disability was erroneous is proper); Kuzmin v. Schweiker, supra (in termination proceeding, once claimant has introduced evidence that her condition remains essentially the same as it was at the time of earlier determination, claimant has benefit of presumption that her condition remains disabling; Secretary then has burden of going forward with evidence of medical improvement to rebut presumption); Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983) (initial determination of disability by Secretary gives rise to presumption at time of second hearing that claimant still disabled and Secretary required to come forth with evidence to rebut such presumption). While these cases contain subtle distinctions, all are variations on a theme, i.e. that to terminate disability benefits, the Secretary had to compare the claimant’s condition at the time of review with the condition that existed at the time benefits were awarded and could not merely consider “current medical evidence” concerning the claimant. Congress took note of the conflict between the courts and the Secretary and both the House of Representatives and the Senate have passed bills which incorporate the “medical improvement” standard. The House passed the Social Security Disability Benefits Reform Act of 1984, H.R. 3755 on March 27, 1984. The Senate passed the Social Security Disability Amendments of 1984, S. 476, on May 14, 1984. The two bills have been" }, { "docid": "12172016", "title": "", "text": "issue shifts between the parties from time to time. For example, once a claimant has presented a prima facie case of total and permanent disability for his usual job the burden shifts to the Secretary to go forward with evidence that the claimant has the residual capacity for substantial gainful activity. Richardson v. Secretary of H.H.S., 735 F.2d 962, 964 (6th Cir.1984). This circuit, however, recently held that the Secretary has the burden of coming forward with evidence that a claimant’s condition improved after an initial determination of disability in cases involving the termination of disability benefits. Haynes v. Secretary of H.H.S., 734 F.2d 284, 288 (6th Cir.1984). In so holding we recognized that a presumption of continuing disability arises from the initial determination of disability, and that, in the absence of evidence that the claimant’s condition had improved, the claimant would be deemed to be still disabled. Id. at 288; accord Dotson v. Schweiker, 719 F.2d 80, 82 (4th Cir.1983); Kuzmin v. Schweiker, 714 F.2d 1233, 1237 (3d Cir.1983); Iida v. Heckler, 705 F.2d 363, 365 (9th Cir.1983); Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982) (quoting Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973)). We do not have before us a situation in which there has been a prior determination of disability. Such a prior determination, however, is not the sine qua non of the presumption of continuing disability. In Hall v. Celebrezze, 314 F.2d 686, 688 (6th Cir.1963), we held that “[ojnce a condition has been shown to exist, there is a pre sumption, in the absence of proof to the contrary, that it has continued.” In Hall, a case in which we reviewed a denial of disability benefits rather than a termination, there was no prior finding of disability. The Fifth Circuit followed Hall in Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973), when it held that “[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Id. at 258 (citations omitted)." }, { "docid": "733643", "title": "", "text": "prohibit, however, a presumption that an individual once disabled remains disabled absent proof that his condition has changed. See Patti v. Schweiker, supra. In Patti, the Ninth Circuit explained the reasoning for such a presumption in these cases: [A] prior ruling of disability can give rise to a presumption that the disability still exists. “Once evidence has been presented which supports a finding that a given condition exists, it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973). A presumption ... impose[s] “on the party against whom it is directed the burden of going forward with the evidence to rebut or meet the presumption.” Fed.R.Evid. 301. The Secretary’s own regulations provide that the decision of an ALJ on a disability question becomes binding “on all parties to the hearing” if none of the specific avenues of review are exercised by the claimant or the Secretary. 20 C.F.R. § 416.1455 (1981). 669 F.2d at 586. The Secretary’s own regulations require that a final decision on the issue of disability is binding on both parties. The resulting presumption of continuing disability only requires the Secretary to come forward with evidence that the individual’s condition has improved, and does not shift the ultimate burden of proof to the Secretary. The difference between the medical improvement and current disabilities standards is of great importance to individual claimants. In Lopez v. Heckler, supra, the Ninth Circuit directed the Secretary to apply the medical improvement standard on a class-wide basis. Subsequently, the agency began a review of the cases of those individuals whose benefits had been terminated under the Secretary’s improper current disability standard. Of these individuals, 73% were found to be disabled under this new and proper standard. In addition, the termination rate in Oregon, covered by the Lopez decision, has been reduced to only 12.3% compared to the national average of 45.2%. Affidavit of Elena H. Ackel, attorney in the Lopez case. The Secretary argues that the medical improvement standard is too broad, and will allow individuals to" }, { "docid": "14150914", "title": "", "text": "Other circuits have held that in a termination case, since there is a previous finding of disability, there is a presumption the disability continues to exist unless there is evidence to show the disability has improved. See Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983). Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973). The Third Circuit has outlined a slightly different standard. In a termination case, once a claimant produces evidence that her or his medical condition is unchanged, there is a presumption the medical condition which was previously found to be disabling continues to be disabling. Once the claimant has met this initial burden of production the burden is on the Secretary to produce evidence showing the claimant’s condition has improved or that the condition is not as serious as was originally supposed. Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983). The Sixth Circuit has not clearly ruled on this issue. Myers v. Richardson, 471 F.2d 1265 (6th Cir.1972), a case cited by the Secretary, is not controlling since it was not a termination case. See Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir.1982); Dotson v. Schweiker, supra at 81 n. 1. In Myers the Secretary found that an initial application for benefits warranted a closed period of benefits. Plaintiff argued there was no medical evidence showing his disability had ended. In holding that plaintiff had “the burden of establishing continuing disability”, Myers, supra, at 1267, the court merely restated the general rule that a claimant has the burden of proving disability for the entire period for which benefits are sought. In a more recent unpublished order, Burnett v. Secretary of Health and Human Services, No. 81-1276 slip op. at 2 (6th Cir. filed September 2, 1982) the Court found that in a termination case “the Secretary bears the burden of proving either: (1) that the claimant’s condition has improved since the initial award of benefits; or (2) that the claimant’s condition is not as serious as was first supposed.” I am" }, { "docid": "22434347", "title": "", "text": "per sons receiving disability benefits. As a result, the number of people who have had their benefits terminated annually has doubled — from 98,000 removed from the disability rolls in fiscal year 1981 to 195,474 terminated in fiscal year 1982. Plaintiffs contend that the procedures used by the Secretary of Health and Human Services in terminating the benefits of disabled persons are in direct violation of two decisions of this court. In Patti v. Schweiker, 669 F.2d 582, 587 (9th Cir.1982), and Finnegan v. Matthews, 641 F.2d 1340, 1345 (9th Cir.1981), we held that before Social Security disability benefits can be terminated on the ground that the recipient is no longer disabled, the Secretary must introduce evidence that the recipient’s medical condition has improved. The principal rationale underlying these decisions is that the Social Security Administration’s initial determination of disability creates a presumption that the person remains disabled. To terminate benefits, then, the Secretary is “required to ‘meet or rebut’ ” the presumption “with evidence that [the recipient’s] condition has improved in the interim.” Patti, 669 F.2d at 587. See also Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973) (“Once evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged.”). The Secretary of Health and Human Services subsequently announced that she “does not acquiesce” in and therefore would not follow this court’s holdings in Patti and Finnegan. See Social Security Rulings 82-10c and 82-49c. Instead, the Secretary has ordered that Social Security disability benefits be terminated on the ground of lack of disability regardless of whether the recipient’s medical condition has improved since the time of the initial disability determination. See Social Security Ruling 81-6. This policy was challenged by plaintiffs in district court. Plaintiffs’ suit is framed in large part as a constitutional challenge to the policy of nonacquiescence. Plaintiffs argue that the policy violates the principles of separation of powers and stare decisis as well as their rights to due process and equal protection. On June 16," }, { "docid": "10935393", "title": "", "text": "“reasonable”). In Finnegan v. Matthews, 641 F.2d 1340 (9th Cir.1981), the court reversed the Secretary’s decision to terminate benefits and announced that: ... [Ajbsent a finding of subsequent material medical improvement a recipient must logically still be disabled ... The Secretary may not terminate benefits ab sent a showing of previous clear and specific error or medical improvement which is sufficient to establish that an applicant is no longer “continuously disabled as so defined.” * # # sis * * ... Since there has clearly been no material improvement in Finnegan’s medical condition or clear and specific error in the prior state proceedings awarding benefits to Finnegan, it was improper for the district court to allow a termination of Finnegan’s benefits. Id. at 1345, 1347. Other circuits have placed the same burden on the Secretary by adopting a “presumption of continuing disability”. This standard, articulated tersely in older cases such as Hall v. Celebrezze, was first spelled out in Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973). Citing Hall, the court announced that “[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Id. at 258. Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), did not alter this presumption by imposing on the disability claimant “a continuing burden of showing ... that he has a physical or mental impairment ...” As pointed out in Patti v. Schweiker, 669 F.2d 582, 587 (9th Cir.1982), the presumption created by the prior finding of disability “does not affect the [claimant’s] ultimate burden of proof. It does, however, impose ‘on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.’ Fed.R.Evid. 301.” That is, the presumption of continuing disability “impose[s] on the Secretary a burden to come forward with evidence that [the claimant’s] condition has changed.” Id. The presumption of continuing disability as articulated in cases such as Rivas and Patti has been widely adopted. Dotson" }, { "docid": "12172017", "title": "", "text": "363, 365 (9th Cir.1983); Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982) (quoting Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973)). We do not have before us a situation in which there has been a prior determination of disability. Such a prior determination, however, is not the sine qua non of the presumption of continuing disability. In Hall v. Celebrezze, 314 F.2d 686, 688 (6th Cir.1963), we held that “[ojnce a condition has been shown to exist, there is a pre sumption, in the absence of proof to the contrary, that it has continued.” In Hall, a case in which we reviewed a denial of disability benefits rather than a termination, there was no prior finding of disability. The Fifth Circuit followed Hall in Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973), when it held that “[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Id. at 258 (citations omitted). Turning to the case before us, it is not open to dispute that the medical evidence available in 1953 supported a finding that Richardson’s mental condition was disabling. This evidence triggered the presumption of continuing disability and placed the burden on the Secretary to produce evidence that Richardson’s condition has improved. Rivas, 475 F.2d at 258; Hall, 314 F.2d at 688. The record does not disclose evidence of an improvement in his condition. Although Richardson is no longer a skid row alcoholic, the evidence of his mental condition remains essentially unchanged. If anything, Dr. Harvey’s testimony indicates that his condition has become progressively worse. Thus, the Secretary has not overcome the presumption of continuing disability. Accordingly, the judgment of the district court is REVERSED and this case is REMANDED to the district court with directions to remand to the Secretary for the award of benefits. . CNS refers to the central nervous system. T. Stedman, Medical Dictionary 291 (5th ed. 1982). Lues is defined as \"[a] plague, or pestilence; specifically, syphilis.\" Id. at 811. ." }, { "docid": "23211261", "title": "", "text": "1 (5th Cir.1985); Rivers v. Schweiker, 684 F.2d 1144, 1146 n. 2 (5th Cir.1982); Strickland v. Harris, 615 F.2d 1103, 1105-06 (5th Cir.1980). . See, e.g., DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir.1984) (The Secretary’s \"not currently disabled” standard is not authorized by the Act or regulations; the “medical improvement” standard of finding that the recipient’s condition has improved to where he is no longer disabled or that the initial finding of disability was erroneous is the proper standard.); Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983) (In a termination proceeding, once the claimant has introduced evidence that her condition remains essentially the same, the claimant has the presumption that her condition remains disabling and then the Secretary has the burden on going forward with evidence' of medical improvement to rebut the presumption.); Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983) (An initial determination of disability gives rise to a presumption at the second hearing that the claimant is still disabled and the Secretary is then required to come forth with evidence to rebut such presumption.). . The Secretary’s decision was on October 24, 1986 while Harrell's birthday was October 21, 1986. . It is conceivable that the introduction of material evidence that the age classifications are inaccurate or misleading as applied to the plaintiff would prevent the Secretary from applying Appendix 2 to direct his decision. Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.1984). We have not decided this issue but intimated that had we adopted Reeves, we would continue to view the primary issue as the reasonableness of the Secretary’s use of his discretion. See Underwood v. Bowen, 828 F.2d 1081, 1083 (5th Cir.1987) (the Secretary’s use of the age classifications on a forty-nine year old claimant was upheld despite a medical report suggesting that the claimant had prematurely aged). . This standard is to be applied by the Secretary and by the courts in all disability determinations made prior to January 1, 1987, which involve allegations of pain. See § 3(a)(3) of the Social Security Disability Benefits Reform Act. ." }, { "docid": "22915827", "title": "", "text": "the claimant does suffer pain. He appeared at the hearing to be uncomfortable and depressed. His overall demeanor showed no lack of motivation and substantial citizens in the community attest to his credibility. Thus, the Administrative Law Judge concludes that, while the medical evidence does not point directly to the cause of the pain, that it is such as to support an allegation of pain and does not reflect on claimant’s credibility as a witness. Thus, it-is the opinion of the Administrative Law Judge, after careful review of the total record, that the claimant suffers from an impairment or combination of impairments including pain of such a level of severity as to preclude him from engaging in substantial gainful activity. Record on Appeal, vol. 2, at 334-5. Appellant maintains that his disability benefits have been terminated on the basis of evidence essentially identical to that which formed the basis for thé initial award of those benefits. It is clear that the Secretary may terminate disability benefits whenever he obtains evidence that a claimant’s disability has ceased. 42 U.S.C. § 425; 20 C.F.R. §§ 404.1590(a) and 404.1594(a). However, it is also certain, as the Fifth Circuit declared in Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973), that “[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in absence of proof to the contrary that the condition has remained unchanged.” 475 F.2d at 258. We are mindful of the limited review which this Court conducts in administrative appeals. We do not have the latitude to freely decide the case as we see fit; we determine only whether the Secretary’s finding is supported by substantial evidence. In reviewing the appeal of an initial disability benefits case, we consider whether the Secretary’s finding of no disability is supported by substantial evidence. However, in light of principles of administrative res judicata, this is not the proper inquiry in a benefits continuation case. We must ascertain whether the Secretary’s finding of improvement to the point of no disability is supported by substantial' evidence. In each case, the" }, { "docid": "23488092", "title": "", "text": "“Once evidence has been presented which supports a finding that a given condition exists, it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973). A presumption, of course, does not affect the ultimate burden of proof. It does, however, impose “on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.” Fed.R.Evid. 301. ‡ tjc sjt :js Hí # All the presumption does is impose on the Secretary a burden to come forward with evidence that [the claimant’s] condition has changed. 669 F.2d at 586-87. Accord, Dotson v. Schweiker, supra, 719 F.2d at 82. (“[T]he Secretary’s initial determination gave rise to a presumption at the time of [the claimant’s] second hearing that he was still disabled and ... the Secretary was required to rebut this presumption.”); see also Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir.1982). Chief Judge Miles W. Lord recently adopted this reasoning when he preliminarily enjoined the Secretary to use the medical-improvement standard in termination caes. Polaski v. Heckler, 585 F.Supp. 1004 at 1011-1013, 1016, 1018-1019 (D.Minn.1984), appeal pendinq, No. 84-5085 (8th Cir.). The Third Circuit has taken a slightly different approach: [O]nce the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling. The presumption of a continuing disability does not affect the ultimate burden of proof. It imposes on the Secretary only the burden of going forward with evidence to rebut or meet the presumption. * * * sfc * * Once the burden to come forward has shifted to the Secretary, the Secretary must present evidence that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity. Kuzmin v. Schweiker, 714 F.2d 1233, 1237 (3d Cir.1983). We agree with these courts that, because the Secretary may not terminate benefits merely" }, { "docid": "23381169", "title": "", "text": "(9th Cir.1982) (quoting Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973)); Musgrove v. Schweiker, 552 F.Supp. 104, 106 (E.D.Pa.1982). We make a distinction between the issue of the existence of a medical condition and the issue of the existence of statutory disability. There is no policy reason to presume the continuation of a medical condition. Since such conditions may and do change, no consideration of administrative consistency is implicated. On the other hand, the Secretary’s prior determination that a particular medical condition has resulted in a statutory disability does implicate administrative consistency. Furthermore, a presumption of a continuing condition, as referred to in the earlier cited cases, is precluded by our holding in Torres where we rejected the appellant’s claim that the earlier determination made out a prima facie ease of her continuing disability. 682 F.2d at 111. The requirement that the applicant introduce some evidence to show his or her condition remains unchanged or has worsened should not impose any undue hardship. Disability recipients are likely to remain under some medical treatment or supervision. Also, in appropriate cases, the recipient may rely on medical evidence previously introduced, see Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 n. (1st Cir.1975), supplemented by the recipient’s own testimony of the continuing condition to make out the prima facie case. Once the burden to come forward has shifted to the Secretary, the Secretary must present evidence that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity. A similar inquiry was made in Torres. There the ALJ found marked improvement in Torres’ condition. We concluded that although the medical evidence primarily relied upon came up with the “same diagnosis that originally provided the basis for a finding of disability,” there was substantial evidence to sup port the conclusion that the claimant’s condition “was less severe than it had previously been.” 682 F.2d at 112-18. In Miranda v. Secretary of Health, Education and Welfare, 514 F.2d at 998, the court enunciated the medical improvement standard in disability termination cases. Other courts have" }, { "docid": "23588245", "title": "", "text": "reject the Secretary’s contention as patently unfair. In Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982), the Secretary determined that the claimant’s disability had ceased and terminated her supplemental security disability benefits. The Ninth Circuit reversed and held that the Secretary’s determination that the claimant’s disability had ceased was not supported by substantial evidence of any change in the claimant’s condition. Id. at 586. The Ninth Circuit explained the controlling principle of law as follows: [A] prior ruling of disability can give rise to a presumption that the disability still exists. “Once evidence has been presented which supports a finding that a given condition exists, it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973). A presumption ... impose[s] “on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.” Fed.R.Evid. 301. The Secretary’s own regulations provide that the decision of an ALJ on a disability question becomes binding “on all parties to the hearing” if none of the specified avenues of review are exercised by the claimant or the Secretary. 20 C.F.R. § 416.1455 (1981). In the present case, neither the Secretary nor the claimant saw fit to disturb the 1978 determination by an ALJ that the claimant was disabled at that time. The question before us now, therefore, is whether that determination gave rise to a presumption at the time of the 1979 hearing that the claimant was still disabled — a presumption which the Secretary was required to “meet or rebut” with evidence that her condition had improved in the interim. We answer that question in the affirmative. We are unable to discern any reason why the familiar principle that a condition, once proved to exist, is presumed to continue to exist, should not be applied when disability benefits are at stake. The Fifth Circuit has expressly approved such application. Rivas v. Weinberger, supra. Accord, Prevette v. Richardson, 316 F.Supp. 144, 146 (D.S.C.1970). Id. at 586-87. Accord, Simpson v. Schweiker, 691" }, { "docid": "5739626", "title": "", "text": "District Courts seeking restora tion of benefits, and plaintiffs complain on equal protection grounds. For the reasons stated below, the court will grant the preliminary injunction and will certify a nationwide class. I The Secretary is required by Section 221(i) of the Act to review every three years the continuing entitlement to disability benefits under Title II and to supplemental social security income benefits under Title XVI of the Act of all beneficiaries, except those determined to have a permanent impairment. These periodic reviews have been controversial, principally because of the standard of review that has been employed by the Secretary. From 1954 until 1976, the Secretaries of Health, Education and Welfare would not find that disability had stopped unless medical evidence showed that a benefits recipient’s condition had improved since it was last determined that he or she had a disability. In 1976, the then-Secretary adopted a policy of finding that disability had stopped if it were found, based on new evidence, that the person was not disabled, as defined in law. In other words, the then-Secretary’s position in determining that a disability had ceased became akin to an initial finding of no disability. Kuzmin v. Schweiker, 714 F.2d 1233, 1236 & n. 1 (3rd Cir.1983). This policy came to be known as the “current disability standard,” and was the policy being applied at the time defendant Secretary promulgated the ruling at issue here. A number of courts have held that the “current disability standard” is an improper standard for determining when a disability ceases. See, for example, DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir.1984) (Secretary’s “not currently disabled” standard not authorized by Act or regulations; “medical improvement” standard of finding that recipient’s condition has improved to point that he is no longer disabled or that initial finding of disability was erroneous is proper); Kuzmin v. Schweiker, supra (in termination proceeding, once claimant has introduced evidence that her condition remains essentially the same as it was at the time of earlier determination, claimant has benefit of presumption that her condition remains disabling; Secretary" }, { "docid": "23211260", "title": "", "text": "fully discussed infra, we are concerned only with those after January 19, 1983. . The AU refused to reopen Harrell’s previous cessation decision which was ceased on January 19, 1983, and affirmed by the district court on July 30, 1984, without appeal. . The scope of judicial review of a decision under the Supplemental Security Income Program is identical to that of a decision under the Social Security Disability Program. Davis v. Heckler, 759 F.2d 432, 435 (5th Cir.1985). . 42 U.S.C. § 405(g) (1983) provides that \"[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” . Title XVI of the Social Security Act, 42 U.S.C. § 1381, provides for supplemental security income for the disabled. Title II of the Act provides for federal disability insurance benefits. The relevant law and regulations governing the determination of disability under a claim for disability insurance benefits are identical to those governing the determination under a claim for supplemental security income. See Davis v. Heckler, 759 F.2d 432, 435 n. 1 (5th Cir.1985); Rivers v. Schweiker, 684 F.2d 1144, 1146 n. 2 (5th Cir.1982); Strickland v. Harris, 615 F.2d 1103, 1105-06 (5th Cir.1980). . See, e.g., DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir.1984) (The Secretary’s \"not currently disabled” standard is not authorized by the Act or regulations; the “medical improvement” standard of finding that the recipient’s condition has improved to where he is no longer disabled or that the initial finding of disability was erroneous is the proper standard.); Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983) (In a termination proceeding, once the claimant has introduced evidence that her condition remains essentially the same, the claimant has the presumption that her condition remains disabling and then the Secretary has the burden on going forward with evidence' of medical improvement to rebut the presumption.); Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983) (An initial determination of disability gives rise to a presumption at the second hearing that the claimant is still disabled and the Secretary is then required to come" }, { "docid": "733642", "title": "", "text": "presently adheres to a “current disability” standard, which allows the Secretary to merely look at the present evidence of disability and make a new determination of whether or not an individual’s disability has ceased. The Secretary’s “current disability” standard has been overwhelmingly rejected by the courts. See, e.g., Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982); Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983); Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Graham v. Heckler, 573 F.Supp. 1573 (W.Va.1983); Hyatt v. Heckler, 579 F.Supp. 985 (N.C.1984); Doe v. Heckler, 576 F.Supp. 463 (Md.1983). There is no doubt that under the Social Security Act, the claimant “bears a continuing burden of showing ... that he has a physical or mental impairment,” and that “[i]n order to remain eligible for benefits [he] must demonstrate that he is [disabled].” Mathews v. Eldridge, 424 U.S. 319, 336 and 343, 96 S.Ct. 893, 903 and 907, 47 L.Ed.2d 18 (1976). This rule does not prohibit, however, a presumption that an individual once disabled remains disabled absent proof that his condition has changed. See Patti v. Schweiker, supra. In Patti, the Ninth Circuit explained the reasoning for such a presumption in these cases: [A] prior ruling of disability can give rise to a presumption that the disability still exists. “Once evidence has been presented which supports a finding that a given condition exists, it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973). A presumption ... impose[s] “on the party against whom it is directed the burden of going forward with the evidence to rebut or meet the presumption.” Fed.R.Evid. 301. The Secretary’s own regulations provide that the decision of an ALJ on a disability question becomes binding “on all parties to the hearing” if none of the specific avenues of review are exercised by the claimant or the Secretary. 20 C.F.R. § 416.1455 (1981). 669 F.2d at 586. The Secretary’s own regulations require" }, { "docid": "14150913", "title": "", "text": "previously established, there is a presumption the disability is a continuing one in the absence of any evidence showing an improvement in a claimant’s condition. While not discussing the evidence in the record in the light of that standard, the magistrate found the record lacked substantial evidence to support the Secretary’s decision. The Secretary objects to the recommendation arguing the magistrate applied an erroneous legal standard in requiring evidence that plaintiff’s condition had improved before benefits may be terminated. II. Almost all of the circuits have enunciated a special standard to govern termination cases. Some circuits have held that once the Secretary finds a claimant disabled, she cannot generally terminate benefits without current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful employment or that the claimant’s condition is not as serious as was first assumed. See Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996 (1st Cir.1975). Other circuits have held that in a termination case, since there is a previous finding of disability, there is a presumption the disability continues to exist unless there is evidence to show the disability has improved. See Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983). Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973). The Third Circuit has outlined a slightly different standard. In a termination case, once a claimant produces evidence that her or his medical condition is unchanged, there is a presumption the medical condition which was previously found to be disabling continues to be disabling. Once the claimant has met this initial burden of production the burden is on the Secretary to produce evidence showing the claimant’s condition has improved or that the condition is not as serious as was originally supposed. Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983). The Sixth Circuit has not clearly ruled on this issue. Myers v. Richardson, 471 F.2d 1265 (6th" }, { "docid": "22260233", "title": "", "text": "the statute does not specifically propound a standard for terminating benefits, its reference to a disability “ceas[ing]” suggests that the Congress intended the Secretary to compare an applicant’s condition at the time of review with his or her condition at the time benefits were initially granted. Likewise, the regulations promulgated under the statute speak of whether a claimant’s disability “continues” or “has ended.” 20 C.F.R. §§ 404.1590(a) and 404.1594(a) (1983). The clear implication of both the statute and the regulations, then, is that a comparative standard should be employed in deciding whether to terminate an individual’s benefits. If the claimant’s condition improves to the point where he or she is able to engage in substantial activity, benefits are no longer justified, and may be terminated by the Secretary. The view that the Secretary may simply disregard a prior finding that a particular medical condition is disabling is inconsistent with the case law in other circuits. Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981); Hayes v. Secretary of Health, Education and Welfare, 656 F.2d 204 (6th Cir.1981); Finnegan v. Matthews, 641 F.2d 1340 (9th Cir.1981); Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996 (1st Cir.1975); Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973). These cases stand for the proposition that, having once established that a particular condition is disabling, a claimant is entitled to a presumption that as long as there is no change in the condition itself, or in the governing statutes or regulations, neither will the statutory classification of disability be changed. As the Third Circuit explained: Basic principles of fairness as well as the need to provide both the appearance and fact of consistency in the administrative process lead us to conclude that in a termination proceeding, once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a" }, { "docid": "22915828", "title": "", "text": "ceased. 42 U.S.C. § 425; 20 C.F.R. §§ 404.1590(a) and 404.1594(a). However, it is also certain, as the Fifth Circuit declared in Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973), that “[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in absence of proof to the contrary that the condition has remained unchanged.” 475 F.2d at 258. We are mindful of the limited review which this Court conducts in administrative appeals. We do not have the latitude to freely decide the case as we see fit; we determine only whether the Secretary’s finding is supported by substantial evidence. In reviewing the appeal of an initial disability benefits case, we consider whether the Secretary’s finding of no disability is supported by substantial evidence. However, in light of principles of administrative res judicata, this is not the proper inquiry in a benefits continuation case. We must ascertain whether the Secretary’s finding of improvement to the point of no disability is supported by substantial' evidence. In each case, the burden remains with the claimant to prove the existence of a disability. Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir. 1981). If, however, the evidence in a continuation case is substantially the same as the evidence had been in the initial disability benefits request case, benefits must be continued. Otherwise, termination of benefits will often depend not on a finding of changed condition, but simply on the whim of a changed ALJ. With this in mind, we turn to an examination of the evidence presented at each hearing. At the initial benefits request hearing, Simpson alleged two medical conditions as causes of his pain. First, he claimed that polycystic kidney disease was the source of his debilitating pain. He also maintained that osteoarthritis contributed to his disability. The medical testimony on these conditions revealed that Simpson was asymptomatic with regard to the kidney disease and that his objective back impairment was minor. None of the doctors doubted the claimant’s sincerity about the pain he was experiencing. This pain was reiterated by Simpson himself, as" }, { "docid": "10768404", "title": "", "text": "PER CURIAM: After a four-year period of receiving Social Security disability benefits, Mr. Crosby was notified that improvement in his condition rendered him no longer disabled and that these benefits would be and were terminated. The court below found that the Secretary’s decision was supported by substantial evidence. Agreeing, we affirm. We note in passing Mr. Crosby’s argument that, to employ counsel’s phraseology, “the so-called burden of proof” should be upon the Secretary in termination cases such as this. We find no warrant for the view that the factual findings of the Secretary are to be tested by different standards in termination cases than in others. The command of the pertinent judicial review provision is general, draws no such distinctions: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive .. .. ” 42 U.S.C. § 405(g). The phrase quoted by counsel from our decision in Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir. 1973), does not conflict in any manner pertinent here with that general rule. There we observed that “[o]nce evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged.” Id. (emphasis added). Here there was substantial evidence supporting the Secretary’s finding that Mr. Crosby’s condition had sufficiently improved that he was no longer disabled. Insofar as traditional concepts of burden of proof, or of proceeding or of persuasion, figure in review of such appeals as this, governed by the substantial evidence rule, we agree with the view of the Sixth Circuit, expressed in Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972): In a case in which benefits have been terminated, as in a case in which benefits have been denied, the burden of proving disability is on the claimant, not on the Secretary. Watson v. Gardner, 246 F.Supp. 837, 838-839 (N.D.Ga.1965); Maynard v. Celebrezze, 209 F.Supp. 523, 524 (S.D.W.Va.1962). Thus the claimant has the burden of proving that his disability did in fact, continue. AFFIRMED. . Quoting" }, { "docid": "11750519", "title": "", "text": "for termination applies only to those situations involving newly discovered evidence or a clearly erroneous interpretation of evidence in the initial granting of benefits. After a final determination of disability, if a termination of benefits is effected without a showing of either improvement or newly-discovered evidence, such a termination must necessarily be based on whim, caprice or an impermissible relitigation of facts and determinations already finally decided. Elsewhere in this circuit, Judge Ziegler of the Western District of Pennsylvania held in accord with the First Circuit when he determined that, before benefits may be terminated, there must be substantial evidence amounting to a showing of improvement. Timblin v. Harris, 498 F.Supp. 1107, 1108 (W.D.Pa.1980). Early this year, the Court of Appeals for the Ninth Circuit addressed the issue of the appropriate legal standard in “cessation” or “termination” cases. See Patti v. Schweiker, 669 F.2d 582, 58&-87 (9th Cir.1982). The Ninth Circuit held that, once the Secretary has determined that a claimant’s disability has ceased, the burden of proof to establish otherwise lies with the claimant, since the claimant’s burden is a continuing one which does not shift after an initial ruling of disability. However, “[i]n an appropriate case ... a prior ruling of disability can give rise to a presumption that the disability still exists. ‘Once evidence has been presented which supports a finding that a given condition exists, it is presumed in the absence of proof to the contrary that the condition has remained unchanged.’ ” Id. at 586-87, quoting Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973). Thus, the burden of proof does not shift from the claimant, but the existence of the presumption following an initial determination of disability serves to “impose ‘on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.’ ” Patti, supra at 587, quoting Fed.R. Evid. 301. See also Rivas, supra, and Prevette v. Richardson, 316 F.Supp. 144, 146 (D.S.C.1970) (Once claimant meets initial burden of proving disability, in the absence of proof to contrary, there is presumption that the condition" } ]

[ { "docid": "19650518", "title": "", "text": "types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that \"[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,\" Art. I, § 1, \"[t]he executive Power shall be vested in a President of the United States,\" Art. II, § 1, cl. 1, and \"[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,\" Art. III, § 1. These grants are exclusive. See Whitman v. American Trucking Assns., Inc.,531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)(legislative power); Free Enterprise Fund v. Public Company Accounting Oversight Bd.,561 U.S. 477, 496-497, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010)(executive power); Stern v. Marshall,564 U.S. ----, ---- - ----, 131 S.Ct. 2594, 2608-2609, 180 L.Ed.2d 475 (2011)(judicial power). When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it. In addition to allocating power among the different branches, the Constitution identifies certain restrictions on the mannerin which those powers are to be exercised. Article I requires, among other things, that \"[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it....\" Art. I, § 7, cl. 2. And although the Constitution is less specific about how the President shall exercise power, it is clear that he may carry out his duty to take care that the laws be faithfully executed with the aid of subordinates. Myers v. United States,272 U.S. 52, 117, 47 S.Ct. 21, 71 L.Ed. 160 (1926), overruled in part on unrelated grounds in Humphrey's Executor v. United States,295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). When the Court speaks of Congress improperly delegating power, what it means is Congress' authorizing an" } ]

[ { "docid": "22560497", "title": "", "text": "F. 2d 975, 992-993 (CA2 1991) (collecting academic authorities for same proposition). In seeking to establish that “judicial power” in some constitutionally significant sense — in a sense different from the adjudicative exercise of executive power — can be exercised by someone other than an Article III judge, the Court relies heavily upon the existence of territorial courts. Ante, at 889-891. Those courts have nothing to do with the issue before us. I agree that they do not exercise the national executive power — but neither do they exercise any national judicial power. They are neither Article III courts nor Article I courts, but Article IV courts — just as territorial governors are not Article I executives but Article IV executives. “These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. ... In legislating for them, Congress exercises the combined powers of the general, and of a state government.” American Ins. Co. v. Canter, 1 Pet., at 546 (Marshall, C. J.) (emphasis added). Or as the Court later described it: “[Territories] are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control.” Benner v. Porter, 9 How. 235, 242 (1850). Thus, Congress may endow territorial governments with a plural executive; it may allow the executive to legislate; it may dispense with the legislature or judiciary altogether. It should be obvious that the powers exercised by territorial courts tell us nothing about the nature of an entity, like the Tax Court, which administers the general laws of the Nation. See Northern Pipeline, supra, at 75-76 (opinion of Brennan, J.). The Court claims that there" }, { "docid": "13553891", "title": "", "text": "complex federal statute which had nationwide sweep and impact the judicial Commission’s mandate is independent decision-making restricted entirely to local matters. Moreover, Buckley is probably also distinguishable since four of the six Federal Election Commissioners were appointed directly by Congress (two each by the Speaker and the President pro tempore of the Senate), whereas here no Commissioner is appointed by the Congress or even by anyone over whom Congress has control. An apt comparison is the practice with respect to the territories of the United States. Territorial cases provide ample examples of the permissibility of congressional establishment of schemes of local government which, were they adopted for the federal government or in the administration of uniform nationwide regulation, would likely have been invalidated. See, e. g. Snow v. United States, 85 U.S. (18 Wall.) 317, 21 L.Ed. 784 (1873). There the territorial legislature established by Congress, appointed the District Attorney of the Territory. A criminal defendant challenged his prosecution by the legislatively appointed District Attorney on separation of powers grounds. The Supreme Court held that the prosecution, and the authority and the process of selecting the District Attorney, were valid. See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), where the Court upheld a divorce granted by the territorial legislature of Oregon, as a proper exercise of the legislative power of the Territory “extendpng] to all rightful subjects of legislation,” and not inconsistent with the Constitution and laws of the United States. Id. at 204, 8 S.Ct. at 726. The Court stated: What were “rightful subjects of legislation” when these acts organizing the Territories were passed, is not to be settled by reference to the distinctions usually made between legislative acts and such as are judicial or administrative in their character, but by an examination of the subjects upon which legislatures had been in the practice of acting with the consent and approval of the people they represented. Id. at 204, 8 S.Ct. at 726. The territorial cases stand for the proposition that a scheme of government for an entity under Congress’ exclusive legislative" }, { "docid": "7096539", "title": "", "text": "the myriad of legal issues arising in a territory. The key to that difference is found in the source of power from which Congress legislates for the territories. That power arises out of the authority of Congress to act in the capacity of a local legislative body apart from the usual confines of the Constitution. The seminal cases on the issue make the point clear. Chief Justice Marshall in the Canter case identified the source of power from which the Congress could create the territorial courts and vest them with judicial power. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the constitution, but is conferred by congress, in the execution of those general powers which that body possesses over the territories of the United States.... In legislating for them, congress exercises the combined powers of the general, and of a state government. 26 U.S. at 321 (emphasis added). In Benner v. Porter, 50 U.S. (9 How.) 235, 242, 13 L.Ed. 119 (1850), the Supreme Court made it even clearer that the territories and their courts were not subject even to the Constitution and its mandates absent a Congressional statement to the contrary. The distinction between the Federal and State jurisdictions, under the Constitution of the United States, has no foundation in these Territorial governments; and consequently, no such distinction exists, either in respect to the jurisdiction of their courts or the subjects submitted to their cognizance. They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and government of- the Territories, combining the powers of both the Federal and State authorities. There is but one system of government, or of laws operating within their limits, as neither is subject to the constitutional provisions in respect to State and Federal jurisdiction. They are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision" }, { "docid": "22122052", "title": "", "text": "the United States, in view of the territory already possessed and the possibility of acquiring more, inserted in that instrument, in article IV, section 3, a grant of express power to Congress \"to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” - As early as, the February term, 1810, of this court, in the case of Seré and Laralde v. Pitot and others, 6 Cranch, 332, Chief Justice Marshall, delivering the opinion of the court, said: \"The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the Constitution of the United States declares that ' Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.’ Accordingly we find Congress possessing and exercising the absolute and undisputed power of governing and legislating for the Territory of Orleans. Congress, has given them a legislative, an executive and a judiciary, with such powers as it has been their will to assign to those departments respectively.” And later, the same eminent judge, delivering the opinion of the court in the leading case upon the subject, American Insurance Co. v. Canter, 1 Pet. 511, 542, says: “The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty. The usage of the word is, if. a nation be not entirely subdued, to consider the holding of conquered territory as a' mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On' such transfer of territory it has never been held" }, { "docid": "5450185", "title": "", "text": "general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in pursuance of the 3d article of the Constitution; the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government. 26 U.S. (1 Pet.) at 546. By the late 1800’s, Justice Marshall’s 356 Sales (Canter) came to be interpreted to mean that Congress can exercise its Article IV authority to invest the courts of a territory with the identical judicial power that is enumerated in Article III. See, e.g., The City of Panama, 101 U.S. 453, 460, 25 L.Ed. 1061 (1879) (jurisdiction equivalent to that defined by Article III may be conferred on a district court of a territory by Congress in the execution of the general power to make all needful rules and regulations respecting the territories). The modern interpretation of the meaning of Justice Marshall’s dicta can be found in Glidden. In confirming the declaration of Congress that the Court of Claims and the Court of Customs and Patent Appeals are Article III courts, the Court thereby also provides authority for the proposition that Congress can establish the United States District Court for the District of the Virgin Islands under Article III of the Constitution. Mr. Justice Harlan, writing the plurality opinion, explained the current view of what John Marshall meant in 1828. All the Chief Justice meant, and what the case has ever after been taken to establish, is that in the territories eases and controversies falling within the enumeration of Article III may be" }, { "docid": "7096543", "title": "", "text": "the “complete government” for those areas. Although its initial grant of authority to deal with the territories and the District of Columbia comes from the Constitution, the Constitution does not thereafter bind Congress when it puts on the hat of a local legislative body and parcels out various functions to branches of the local government it creates. The courts created for the territories and the District of Columbia, then, lie entirely outside the states of the federal union, unlike the bankruptcy courts. See Marathon, 102 S.Ct. at 2871 (“The courts created by the Bankruptcy Act of 1978 do not lie exclusively outside the States of the Federal Union, like those in the District of Columbia and the territories”). It might even be said that the power conferred upon the territorial and the District of Columbia municipal courts is the “judicial power of the territory” rather than the “judicial power of the United States.” The contempt power exercised by these courts is clearly an attribute of the territorial judicial power that Congress has the exclusive right to vest, in whatever form it chooses, because that judicial power does not arise from Article III, but from the power of Congress to act as a local legislature to establish a complete system of government for these areas. Congress has no such broad power with respect to the bankruptcy courts. They are a federal subject matter and a very narrow and specialized one at that. To vest them with the contempt power requires the constitutional authority of Article III, which those courts do not have as their foundation for existence. The trustee points out that Congress has authorized the Tax Court, an Article I court, to fine or imprison for contempt under the exact circumstances as the district and appellate courts may. See 26 U.S.C. § 7456(d). The constitutionality of that provision is not before this Court. Nevertheless, this Court notes that prior to the enactment of that provision in 1969, it was held that the Tax Court did not have any inherent power of contempt. MacRae v. Riddle, 350 F.2d 291, 292 (9th" }, { "docid": "19581372", "title": "", "text": "1573. It is thus universally considered \"among the significant structural safeguards of the constitutional scheme.\" Id. It is true that another restriction that is arguably a structural limitation on Congress's exercise of its powers -- the nondelegation doctrine -- does bend to the peculiar demands of providing for governance within the territories. In normal application, the doctrine requires that \"when Congress confers decisionmaking authority upon agencies,\" it must \"lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.\" Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928) ). Otherwise, Congress has violated Article I, Section 1 of the Constitution, which vests \"[a]ll legislative Powers herein granted ... in a Congress of the United States.\" Id.; see also U.S. Const. art. I, § 1. In connection with the territories, though, Congress can delegate to territorial governments the power to enact rules and regulations governing territorial affairs. See John R. Thompson Co., 346 U.S. at 106, 73 S.Ct. 1007 (\"The power of Congress to delegate legislative power to a territory is well settled.\"); Cincinnati Soap Co. v. United States, 301 U.S. 308, 321-23, 57 S.Ct. 764, 81 L.Ed. 1122 (1937) ; see also Simms, 175 U.S. at 168, 20 S.Ct. 58 (\"In the territories of the United States, Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a state might legislate within the state; and may, at its discretion, intrust that power to the legislative assembly of a territory.\"). The Supreme Court has analogized the powers of Congress over the District of Columbia and the territories to that of states over their municipalities. See John R. Thompson Co., 346 U.S. at 109, 73 S.Ct. 1007. In the state-municipality context, \"[a] municipal corporation ... is but a department of the State. The legislature may give it all the" }, { "docid": "9615062", "title": "", "text": "Mr. Justice Black and Mr. Justice Burton, states [69 S.Ct. 1182]: “We conclude that where Congress in the exercise of its powers under Art. I finds it necessary to provide those on whom its power is exerted with access to some kind of court or tribunal for determination of controversies, that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship. The basis of the holdings we have discussed is that when Congress deems that for such purposes it owes a forum to claimants and trustees, it may execute its power in this manner. The Congress, with equal justification, apparently considers that it also-owes such a forum to the residents of the District of Columbia in execution of its power and duty under the same Article. We do not see how the one could be sustained and the other denied. “We therefore hold that Congress may exert its power to govern the District of Columbia by imposing the judicial function of adjudicating justiciable controversies on the regular federal courts which under the Constitution it has the power to ordain and establish and which it may invest with jurisdiction and from which it may withhold jurisdiction ‘in the exact degrees and character which to Congress may seem proper for the public good.’ Lockerty v. Phillips, 319 U.S. 182; 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339.” The power of Congress to legislate for the territories, while not as expressly stated as the power over the District of Columbia, Const. Art. I, § 8, has nevertheless been held to be plenary. It was early said that “The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this proposition be contested, the Constitution of the United States declares that ‘Congress-shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.’ ” Const. Art, IV, § 3. Sere v. Pitot, 6 Cranch 332," }, { "docid": "19581373", "title": "", "text": "to enact rules and regulations governing territorial affairs. See John R. Thompson Co., 346 U.S. at 106, 73 S.Ct. 1007 (\"The power of Congress to delegate legislative power to a territory is well settled.\"); Cincinnati Soap Co. v. United States, 301 U.S. 308, 321-23, 57 S.Ct. 764, 81 L.Ed. 1122 (1937) ; see also Simms, 175 U.S. at 168, 20 S.Ct. 58 (\"In the territories of the United States, Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a state might legislate within the state; and may, at its discretion, intrust that power to the legislative assembly of a territory.\"). The Supreme Court has analogized the powers of Congress over the District of Columbia and the territories to that of states over their municipalities. See John R. Thompson Co., 346 U.S. at 109, 73 S.Ct. 1007. In the state-municipality context, \"[a] municipal corporation ... is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality.\" Barnes v. D.C., 91 U.S. 540, 544, 23 L.Ed. 440 (1875) ; see also John R. Thompson Co., 346 U.S. at 109, 73 S.Ct. 1007 (\"It would seem then that on the analogy of the delegation of powers of self-government and home rule both to municipalities and to territories there is no constitutional barrier to the delegation by Congress to the District of Columbia of full legislative power subject of course to constitutional limitations to which all lawmaking is subservient and subject also to the power of Congress at any time to revise, alter, or revoke the authority granted.\"). The Supreme Court has also made clear that, in delegating power to the territories, Congress can only act insofar as \"other provisions of the Constitution are not infringed.\" Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). The territorial variations on the traditional restrictions of the nondelegation doctrine pose no challenge" }, { "docid": "19581371", "title": "", "text": "have allowed Congress to enact PROMESA without presentment, or to have overridden a veto without the requisite super-majority vote in both houses. Nor does anyone seriously argue that Congress could have relied on its plenary powers under Article IV to alter the constitutional roles of its two respective houses in enacting PROMESA. Like the Presentment Clause, the Appointments Clause constitutionally regulates how Congress brings its power to bear, whatever the reach of that power might be. The Appointments Clause serves as one of the Constitution's important structural pillars, one that was intended to prevent the \"manipulation of official appointments\" -- an \"insidious ... weapon of eighteenth century despotism.\" Freytag v. Comm'r, 501 U.S. 868, 883, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (citations omitted); see also Edmond v. United States, 520 U.S. 651, 659, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). The Appointments Clause was designed \"to prevent[ ] congressional encroachment\" on the President's appointment power, while \"curb[ing] Executive abuses\" by requiring Senate confirmation of all principal officers. Edmond, 520 U.S. at 659, 117 S.Ct. 1573. It is thus universally considered \"among the significant structural safeguards of the constitutional scheme.\" Id. It is true that another restriction that is arguably a structural limitation on Congress's exercise of its powers -- the nondelegation doctrine -- does bend to the peculiar demands of providing for governance within the territories. In normal application, the doctrine requires that \"when Congress confers decisionmaking authority upon agencies,\" it must \"lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.\" Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928) ). Otherwise, Congress has violated Article I, Section 1 of the Constitution, which vests \"[a]ll legislative Powers herein granted ... in a Congress of the United States.\" Id.; see also U.S. Const. art. I, § 1. In connection with the territories, though, Congress can delegate to territorial governments the power" }, { "docid": "5450184", "title": "", "text": "judges were not appointed for life. American Insurance Co. v. 356 Bales of Cotton (Canter), 26 U.S. (1 Pet.) 511, 7 L.Ed. 242 (1828). The confusion has been sorted out more recently in a Supreme Court decision confirming that the Court of Claims and Court of Customs and Patent Appeals are Article III courts. The Glidden Company v. Zdanok, 370 U.S. 530, 545, 82 S.Ct. 1459, 1470, 8 L.Ed.2d 671 (1962). Mr. Justice Marshall’s construction of the organic act for the Florida Territory, although not necessary to the decision in the case and therefore obiter dicta, has been quoted over and over as the basis for refusing to treat the congressionally created courts of the territories as real courts of the United States: The Judges of the Superior Courts of Florida hold their offices for four years. These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are capable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in pursuance of the 3d article of the Constitution; the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government. 26 U.S. (1 Pet.) at 546. By the late 1800’s, Justice Marshall’s 356 Sales (Canter) came to be interpreted to mean that Congress can exercise its Article IV authority to invest the courts of a territory with the identical judicial power that is" }, { "docid": "7096538", "title": "", "text": "the contempt power in these territorial courts. What has been addressed, however, is the broader question of constitutional authority. Yet the cases from Canter to Palmore have done everything but present a clean constitutional rationale for the congressional power to create non-Article III courts. Furthermore, with respect to the territorial courts, serious doubts have been raised whether the concept of a “legislative court” remains viable today considering that the need for an independent Article III judiciary for the territories is certainly as great as it is for the states. As one commentator put it, the territorial judge should have some feeling of security to try cases impartially without being dependent on the Department of Justice for continued tenure. See C. Wright, The Law of Federal Courts, 37 (3d ed. 1976). Nevertheless, a review of the cases does point up a fundamental difference between the power of Congress to establish bankruptcy courts as adjuncts to the district courts for a very limited, specialized subject matter, and the power to establish courts of broad jurisdiction to resolve the myriad of legal issues arising in a territory. The key to that difference is found in the source of power from which Congress legislates for the territories. That power arises out of the authority of Congress to act in the capacity of a local legislative body apart from the usual confines of the Constitution. The seminal cases on the issue make the point clear. Chief Justice Marshall in the Canter case identified the source of power from which the Congress could create the territorial courts and vest them with judicial power. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the constitution, but is conferred by congress, in the execution of those general powers which that body possesses over the territories of the United States.... In legislating for them, congress exercises the combined powers of the general, and of a state government. 26 U.S. at 321 (emphasis added). In Benner v. Porter, 50 U.S. (9 How.) 235, 242, 13 L.Ed." }, { "docid": "19581377", "title": "", "text": "and then thereafter expressly ratified by Congress. In sustaining those tariffs, the Court stated that Congress could have delegated the power to impose the tariffs to the President beforehand, citing Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904), a case that simply held that Congress could provide for criminal tribunals in the territories without also providing for trial by jury. Id. at 149, 24 S.Ct. 808. Heinszen cannot be explained as an instance of Congress enabling home rule in a territory. Rather, it seems to allow Congress to delegate legislative power to the President, citing the territorial context as a justification. Heinszen, though, has no progeny that might shed light on how reliable it might serve as an apt analogy in the case before us. Moreover, Heinszen concerned a grant of power by Congress, not a grab for power at the expense of the executive. For the foregoing reasons, we find in the nondelegation doctrine no apt example to justify an exception to the application of the Appointments Clause within the territories. An exception from the Appointments Clause would alter the balance of power within the federal government itself and would serve no necessary purpose in the transitioning of territories to states. Further, the Board points us to Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). That case arose out of Congress's exercise of its plenary powers over the District of Columbia under Article I, Section 8, Clause 17, powers which are fairly analogous to those under Article IV. See John R. Thompson Co., 346 U.S. at 105-09, 73 S.Ct. 1007. The Court held that Congress could create local courts -- like state courts -- that did not satisfy the requirements of Article III. Palmore, 411 U.S. at 410, 93 S.Ct. 1670. The Board would have us read Palmore as an instance of Congress's plenary powers over a territory trumping the requirements of another structural pillar of the Constitution. We disagree. The Court explained at length how Article III itself did not require that all courts created by" }, { "docid": "22560498", "title": "", "text": "enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. ... In legislating for them, Congress exercises the combined powers of the general, and of a state government.” American Ins. Co. v. Canter, 1 Pet., at 546 (Marshall, C. J.) (emphasis added). Or as the Court later described it: “[Territories] are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control.” Benner v. Porter, 9 How. 235, 242 (1850). Thus, Congress may endow territorial governments with a plural executive; it may allow the executive to legislate; it may dispense with the legislature or judiciary altogether. It should be obvious that the powers exercised by territorial courts tell us nothing about the nature of an entity, like the Tax Court, which administers the general laws of the Nation. See Northern Pipeline, supra, at 75-76 (opinion of Brennan, J.). The Court claims that there is a “longstanding practice” of permitting Article I courts to appoint inferior officers. Ante, at 890. I am unaware of such a practice. Perhaps the Court means to refer not to Article I courts but to the territorial courts just discussed, in which case the practice would be irrelevant. As I shall discuss below, an Article I court (such as the Tax Court) that is not within any other department would be able to have its inferior officers appointed by its chief judge — not under the “Courts of Law” provision of Article II, § 2, but under the “Heads of Departments” provision; perhaps it is that sort of practice the Court has in mind. It is certain, in any case, that no decision of ours has ever approved the appointment of an inferior officer by an Article I court. Ex parte Hennen, 13 Pet. 230 (1839), which the Court cites, involved appointment by an Article III tribunal. I — I I — I Since the Tax Court is not a court of law, unless" }, { "docid": "22051950", "title": "", "text": "United States.” Dooley v. United States, supra, 183 U. S. at 157; Dorr v. United States, 195 U. S. 138, 149; Balzac v. Porto Rico, supra, 305; Cincinnati Soap Co. v. United States, 301 U. S. 308, 323. In exercising this power, Congress is not subject to the same constitutional limitations, as when it is legislating for the United States. See Downes v. Bidwell, supra; Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United, States, supra; Dowdell v. United States, 221 U. S. 325, 332; Ocampo v. United States, 234 U. S. 91, 98; Public Utility Commissioners v. Ynchausti & Co., supra, 406-407; Balzac v. Porto Rico, supra. And in general the guaranties of the Constitution, save as they are limitations upon the exercise of executive and legislative power when exerted for or over our insular possessions, extend to them only as Congress, in the exercise of its legislative power over territory belonging to the United States, has made those guaranties applicable. See Balzac v. Porto Rico, supra. The constitutional restrictions on the power of Congress to deal with articles brought into or sent out of the United States, do not apply to articles brought into or sent out of the Philippines. Despite the restrictions of §§ 8 and 9 of Article I of the Constitution, such articles may be taxed by Congress and without apportionment. Downes v. Bidwell, supra. It follows that articles brought from the Philippines into the United States are imports in the sense that they are brought from territory, which is not a part of the United States, into the territory of the United States, organized by and under the Constitution, where alone the import clause of the Constitution is applicable. The status of the Philippines as territory belonging to the United States, but not constitutionally united with it, has been maintained consistently in all the governmental relations between the .Philippines and the United States. Following the conquest of the Philippines, they were governed for a period under the war power. After annexation by the Treaty of Paris of December 10, 1898, military government was" }, { "docid": "22051949", "title": "", "text": "our war with Spain, are territories belonging to, but not a part of, the Union of states under the Constitution, was long since established by a series of decisions in this Court beginning with The Insular Tax Cases in 1901; De Lima v. Bidwell, supra; Dooley v. United States, supra, 182 U. S. 222; Downes v. Bidwell, 182 U. S. 244; Dooley v. United States, 183 U. S. 151; and see also Public Utility Commissioners v. Ynchausti & Co., 251 U. S. 401, 406-407; Balzac v. Porto Rico, supra. This status has ever since been maintained in the practical construction of the Constitution by all the agencies of our government in dealing with our insular possessions. It is no longer doubted that the United- States may acquire territory by conquest or by treaty, and may govern it through the exercise of the power of Congress conferred by § 3 of Article IV of the Constitution- “to dispose of and make all needful Rules and Regu lations respecting the Territory or other Property belonging to the United States.” Dooley v. United States, supra, 183 U. S. at 157; Dorr v. United States, 195 U. S. 138, 149; Balzac v. Porto Rico, supra, 305; Cincinnati Soap Co. v. United States, 301 U. S. 308, 323. In exercising this power, Congress is not subject to the same constitutional limitations, as when it is legislating for the United States. See Downes v. Bidwell, supra; Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United, States, supra; Dowdell v. United States, 221 U. S. 325, 332; Ocampo v. United States, 234 U. S. 91, 98; Public Utility Commissioners v. Ynchausti & Co., supra, 406-407; Balzac v. Porto Rico, supra. And in general the guaranties of the Constitution, save as they are limitations upon the exercise of executive and legislative power when exerted for or over our insular possessions, extend to them only as Congress, in the exercise of its legislative power over territory belonging to the United States, has made those guaranties applicable. See Balzac v. Porto Rico, supra. The constitutional restrictions on the power" }, { "docid": "22233204", "title": "", "text": "and deciding these controversies, exercises judicial power, but the question still remains — and is the vital question — whether it is the judicial power defined by Art. Ill of the Constitution. That judicial power apart from that article may be conferred by Congress upon legislative courts, as well as upon constitutional courts, is plainly apparent from the opinion of- Chief Justice Marshall in American Insurance Co. v. Canter, 1 Pet. 511, 546, dealing with the territorial courts. “The jurisdiction,” he said, “with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States.” That is to say (1) that the courts of the territories (and, of course, other legislative courts) are invested with judicial power, but (2) that this power is not conferred by the third article of the Constitution, but by Congress in the execution of other provisions, of that instrument. The validity of this view is borne out by the fact that the appellate jurisdiction of this court over judgments and decrees of the legislative courts has been upheld and freely exercised under acts of Congress from a very early period, a practice which can be sustained, as already suggested, only upon the theory that the legislative courts possess and exercise judicial power — as distinguished from legislative, executive, or administrative power — although not conferred ini virtue of the third article of the Constitution. - The authority to naturalize aliens has been vested in the courts from the beginning of the government; and it cannot .be doubted that in discharging this function the courts exercise judicial power. But the courts of the states, with the acquiescence of all the departments of the federal government, have also exercised the same jurisdiction during this long period of time, and their authority to do so must be regarded as conclusively established. Levin v. United States, 128 Fed. 826, 828-831. In, that case, Judge Sanborn, in" }, { "docid": "10758619", "title": "", "text": "S.Ct. at 2616, quoting Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). . See, e.g., S. Todd Brown, Constitutional Gaps in Bankruptcy, 20 Am. Bankr.Inst. L Rev. 203-09 (2012). . The congressional designation of Article III judges to appoint bankruptcy judges is explicitly provided for in the Constitution. Article II, Section 2 provides that “Congress may by law vest the appointment of such inferior officers, as they think proper ... in the Courts of Law.” U.S. Const, art. II, § 2. . The plurality in Northern Pipeline distinguished territorial courts and courts-martial from bankruptcy courts. A court-martial is clearly a different court entirely. Territorial courts exist in areas of governance where the Executive and Legislative branches have extraordinary control over the subject matter at issue. In particular, Article IV of the Constitution gives Congress broad powers of governance over the territories, including the power to create courts independent of Article III limitations. See American Ins. Co. v. Canter, 26 U.S. 511, 546, 1 Pet. 511, 7 L.Ed. 242 (1828) (affirming the use of judicial power and entry of a final judgment by a federal judge appointed to a four-year term in the then-territory of Florida because \"[a]lthough admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in the pursuance of the 3d article of the Constitution; the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government.\"). Because I sit in a federal bankruptcy court located within the Commonwealth of Massachusetts, which is a state and not a territory, Article III limits what Congress may authorize me to decide. . See Stern, 131 S.Ct. at 2601 (proceeding to determine creditor’s liability to debtor for tor-tious interference with a gift); Granfinanciera v. Nordberg, 492 U.S. 33, 56, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (holding that a fraudulent conveyance action was a private right, and therefore, the defendant was entitled to a trial by jury); Northern Pipeline, 458 U.S. at 56, 102 S.Ct." }, { "docid": "9502936", "title": "", "text": "United States and yet not have Article III, Section 1 protections against undue influence by the legislative or executive branches. Marathon, 458 U.S. 50, 73, 102 S.Ct. 2858, 2872. Despite the clarity and simplicity of Article III, Section 1 and the significance of the threat to the independence of the federal judiciary perceived by the Court, the Court has often concluded that Congress may vest the judicial power of the United States in federal courts that do not have the protections of Article III, Section 1. Marathon, 458 U.S. 50, 70, 102 S.Ct. 2858, 2871. See, Resnik, “The Mythic Meaning of Article III Courts,” 56 Co.L.Rev. 581, 586-588 (1985). In Section III of Marathon, the Court identified the three situations in which Article III, Section 1 does not bar the creation of courts whose judges do not have the protections of Article III, Section 1: a. Territorial Courts —Article IV gives Congress exclusive authority over territories of the United States of America. Thus Congress is free to grant judicial power to courts and territories without extending the protections of Article III, Section 1 to those courts’ judges. Marathon, 458 U.S. 50, 64-65, 102 S.Ct. 2858, 2867-68. b. Military Courts — Article I, Section 8 and Article II, Section 2 give Congress and the president extraordinary control over the armed forces. With little or no explanation, the Court quoted its opinion in Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857) as support for its conclusion that there is no connection between Article III and the ability of the executive and legislative branches to establish courts for the armed forces. Marathon, 458 U.S. 50, 66, 102 S.Ct. 2858, 2869. c. Public Rights Tribunals — The Court stated that it was appropriate for Congress to assign adjudication of disputes which are similar to causes of action that would be heard in courts of law and equity to a non-judicial tribunal if the dispute involved the United States of America or, if the government was not a party, the dispute was integral to a public regulatory scheme in which there is a" }, { "docid": "9502935", "title": "", "text": "not. My analysis of these issues is set forth below. 2. Does Article III, Section 1 Prevent Congress from Assigning Adjudication of Issues Arising under Section 329 to Bankruptcy Judges under the 1984 Amendments? The mandate of Article III, Section 1 is clear and simple — the judicial power of the United States shall be exercised by judges who hold their offices for life, unless impeached for improper conduct, and whose compensation cannot be reduced while they hold office. The purpose of Article III, Section 1 is to protect the federal judiciary from attempts by the Congress or the President of the United States of America to exert improper influence over members of the federal judiciary by terminating their employment or reducing their compensation. Northern Pipe-Line Construction Co. v. Marathon Pipe Line Co. et al, (“Marathon”) 458 U.S. 50, 57-60, 102 S.Ct. 2858, 2864-66, 73 L.Ed.2d 598 (1982). An example of the threat perceived by the Court is that Congress may create a parallel federal judicial system that would exercise the judicial power of the United States and yet not have Article III, Section 1 protections against undue influence by the legislative or executive branches. Marathon, 458 U.S. 50, 73, 102 S.Ct. 2858, 2872. Despite the clarity and simplicity of Article III, Section 1 and the significance of the threat to the independence of the federal judiciary perceived by the Court, the Court has often concluded that Congress may vest the judicial power of the United States in federal courts that do not have the protections of Article III, Section 1. Marathon, 458 U.S. 50, 70, 102 S.Ct. 2858, 2871. See, Resnik, “The Mythic Meaning of Article III Courts,” 56 Co.L.Rev. 581, 586-588 (1985). In Section III of Marathon, the Court identified the three situations in which Article III, Section 1 does not bar the creation of courts whose judges do not have the protections of Article III, Section 1: a. Territorial Courts —Article IV gives Congress exclusive authority over territories of the United States of America. Thus Congress is free to grant judicial power to courts and territories without" } ]

[ { "docid": "22291415", "title": "", "text": "25, 2002, the district court conducted a hearing on this motion. The court concluded that Freixas’s plea had been knowing and voluntary and that there was no justification for the withdrawal of that plea. Accordingly, it denied appellant’s motion. At sentencing, the district court denied Freixas’s motion for an offense level reduction based on her minor or minimal role in the conspiracy. However, it imposed a 2 level enhancement for obstruction of justice based on the inconsistencies between her sworn testimony during her original plea colloquy and her statements at the hearing on her motion to withdraw her guilty plea. The court ultimately sentenced appellant to 37 months imprisonment. As we explained in Najjar: Pursuant to Fed.R.Crim.P. 32(e), a district court may permit a defendant to withdraw his plea before the district court imposes sentence for “any fair and just reason.” In determining whether a defendant has shown a fair and just reason, the district court evaluates the totality of the circumstances, including “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” 283 F.3d at 1309 (quoting United States v. Buckles, 843 F.2d 469, 472 (11th Cir.1988)); see also United States v. Weaver, 275 F.3d 1320, 1327-28 (11th Cir.2001), cert. denied, 536 U.S. 961, 122 S.Ct. 2666, 153 L.Ed.2d 840 (2002). Moreover, “[w]hen a district court accepts a guilty plea, it must ensure that the three core concerns of Rule 11 of the Federal Rules of Criminal Procedure have been met: ‘(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.’ ” United States v. Lejarde-Rada, 319 F.3d 1288, 1289 (11th Cir.2003) (quoting United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir.1999)). In reviewing a court’s refusal to permit the withdrawal of a guilty plea, we defer to its application of these criteria, and we" } ]

[ { "docid": "8819308", "title": "", "text": "to the counts contained in the January 21, 1997, indictment. Defendant accepted the government’s offer. After a hearing, the district court determined that Defendant freely and voluntarily entered the plea agreement, and that he fully understood the nature of the charges against him and the consequences of his plea. See Fed.R.Crim.P. 11. Accordingly, the Court accepted Defendant’s plea of guilty and entered judgment against him. Ten days after the Rule 11 hearing, Defendant filed a motion to withdraw his plea alleging that his counsel was ineffective and, as a result, his plea was involuntary. The district court denied the motion. Subsequently, a probation officer prepared a presentenee investigation report crediting Defendant with ten criminal history points and a resulting offense level of thirty-seven. At the sentencing hearing, Defendant’s counsel objected to the presentence investigation report. The district court, without making specific findings, overruled the objections and sentenced Defendant to 324-months imprisonment. II. A. Under Fed.R.Crim.P. 32(e), the district court may allow a defendant to withdraw a plea of guilty before sentence is imposed if the defendant provides the court with a fair and just reason for doing so. We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Carr, 80 F.3d 413, 419 (10th Cir.1996). Although it is within the sound discretion of the district court to determine what circumstances justify granting a motion to withdraw a guilty plea, such motions should be “freely allowed, viewed with favor, treated with liberality, and given a great deal of latitude.” Id. We will not reverse the district court unless Defendant can demonstrate that the district court abused its discretion by acting unjustly or unfairly. Id. In determining whether a defendant has carried this burden, we consider the following factors: (1) whether the defendant has asserted his innocence; (2) prejudice to the government; (3) delay in filing defendant’s motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) waste of judicial resources. United States v. Gordon, 4 F.3d 1567, 1572" }, { "docid": "22779292", "title": "", "text": "to withdraw her guilty plea without giving reasons and in not holding an evidentiary hearing. A district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Lampazianie, 251 F.3d 519, 523 (5th Cir.2001) (citation omitted); see also United States v. Mann, 161 F.3d 840, 860 (5th Cir.1998) (“[A] district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.”). A defendant does not have an absolute right to withdraw her guilty plea. United States v. Brewster, 137 F.3d 853, 857 (5th Cir.1998). However, a district court may, in its discretion, permit withdrawal before sentencing if the defendant can show a “fair and just reason.” Id. (citing former Fed.R.Crim.P. 32(e), now located at Rule 11(d)(2)). The defendant bears the burden of establishing a fair and just reason for withdrawing his plea. Id. at 858. This Circuit considers seven factors when deciding whether the defendant has met this standard: whether (1) the defendant asserted his innocence, (2) withdrawal would cause the government to suffer prejudice, (3) the defendant delayed in filing the motion, (4) withdrawal would substantially inconvenience the court, (5) close assistance of counsel was available, (6) the original plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984). The district court’s decision to permit or deny the motion is based on the totality of the circumstances. Brewster, 137 F.3d at 858 (citation omitted). And the district court is not required to make findings as to each of the Carr factors. Id. (citing United States v. Badger, 925 F.2d 101, 104 (5th Cir.1991)). Although defendants are not entitled to an evidentiary hearing, a hearing is required “when the defendant alleges sufficient facts which, if proven, would justify relief.” United States v. Mergist, 738 F.2d 645, 648 (5th Cir.1984) (citation omitted). However, a district court’s decision not to hold an evidentiary hearing is reviewed for abuse of discretion. See United States v. Harrelson, 705 F.2d 733, 737 (5th" }, { "docid": "22375429", "title": "", "text": "Therefore, without deciding whether the failure to seek an evidentia-ry hearing was objectively unreasonable, we conclude that because present counsel sought an evidentiary hearing, Defendant was not prejudiced by original counsel’s failure to do so. II. Defendant claims that the district court abused its discretion by denying Defendant’s Fed.R.Crim.P. 32(d) motion to withdraw his guilty plea. Prior to sentencing, Defendant sought to withdraw his plea based upon the alleged ineffective assistance of original counsel, outlined supra part I, and based upon the discovery of new evidence. The alleged new evidence is the discovery of the whereabouts of a witness whom Defendant claims could “establish [Defendant’s] innocence in several counts against him and lower the level of his involvement in others, which would directly affect the sentence of [Defendant] under the [ ] Sentencing Guidelines.” Fed.R.Crim.P. 32(d) provides in pertinent part: “[i]f a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” Defendant has the burden of establishing that there is a fair and just reason for allowing withdrawal of his guilty plea, and in determining whether Defendant has met this burden, we consider the following factors: (1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources. United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991). “It is within the sound discretion of the [district] court to determine what circumstances justify granting such a motion.” United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) (citation omitted). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion, and we will not reverse unless the defendant can show that the court acted unjustly or unfairly. Id. Defendant’s first contention — ie., that original counsel’s ineffective assistance is a fair and just reason" }, { "docid": "5856784", "title": "", "text": "basis supporting a finding of guilty on the § 924(c) charge. The district court denied Killingsworth’s motion, reasoning that there was sufficient evidence that Killingsworth had used his gun in connection with his drug offenses, both by displaying it while transactions took place and by employing it to intimidate people into paying their debts for drugs purchased from him. Killingsworth was then sentenced to sixty months confinement on Count One and to sixty months confinement on Count 19, to run consecutively. Killingsworth now appeals both the denial of his motion to withdraw his guilty plea and the denial of his motion to suppress. DISCUSSION A. Motion to Withdraw the Plea Fed.R.Crim.P. 32(e) provides that “[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” The defendant bears the burden of showing that a denial of a motion to withdraw a plea was not “fair and just,” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), cert. denied, 510 U.S. 1184, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994), and we review the denial of such a motion for an abuse of discretion. United States v. Guthrie, 64 F.3d 1510, 1513 (10th Cir.1995). In Gordon, we outlined seven factors that courts should consider in determining whether the defendant has shown a fair and just reason for allowing withdrawal of a guilty plea: (1) whether the defendant has asserted innocence; (2) prejudice to the government if the motion is granted; (3) whether the defendant has delayed filing the motion to withdraw his plea; (4) inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel during the plea; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Gordon, 4 F.3d at 1572. Killingsworth’s argument that there is no longer a factual basis for his conviction under § 924(c) goes to the first factor we consider under Gordon, that is, whether the defendant claims" }, { "docid": "22803354", "title": "", "text": "the light most favorable to the prevailing party, (2) accepting the district court’s factual findings unless clearly erroneous, and (3) considering all questions of law de novo. A claim of ineffective assistance of counsel generally cannot be reviewed on direct appeal unless it has been presented to the district court; rather, we “resolve claims of inadequate representation on direct appeal only in rare cases where the record allow[s] us to evaluate fairly the merits of the claim.” B. Withdrawal of the Guilty Plea Francesco contends that the district court abused its discretion when it refused to permit him to withdraw his guilty plea. We note at the outset that there is no absolute right for a defendant to withdraw a plea. Instead, Rule 32(e) of the Federal Rules of Criminal Procedure provides that the district court may grant a motion to withdraw a guilty plea before a defendant is sentenced if the defendant shows “any fair and just reason.” The district court’s decision is discretionary and will not be disturbed absent an abuse of discretion. In reviewing the denial of a motion to withdraw a guilty plea, we consider the seven factors set forth in United States v. Carr: whether (1) the defendant asserted his innocence, (2) withdrawal would prejudice the government, (3) the defendant delayed in filing the withdrawal motion, (4) withdrawal would inconvenience the court, (5) adequate assistance of counsel was available, (6) the plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. The district court is not required to make findings as to each of the Carr factors. Neither is any single factor dispositive; instead, the determination is based on a totality of circumstances. The burden of establishing a “fair and just reason” for withdrawing a guilty plea rests at all times with the defendant. Francesco asserted in his motion to the district court that his plea should be withdrawn because it was entered as a result of coercion and therefore was not voluntary. We have scoured the record and can find no shred of evidence to support Francesco’s contention that he was somehow" }, { "docid": "5181963", "title": "", "text": "and that Berkeley’s Guidelines level was at most 32. Berkeley argued for an additional 3-level reduction for acceptance of responsibility, but the district court rejected that argument. It found that “[t]he motion to withdraw a guilty plea in and of itself is a statement that Mr. Berkeley did not wish to let the guilty plea stand, and therefore, he didn’t wish to accept responsibility for this offense,” and that the reduction was also unwarranted because of Berkeley’s false statements at the evidentiary hearing. Sentencing Hr’g Tr. 13-14 (Feb. 12, 2008). The court therefore calculated the offense level to be 32 and the applicable Guidelines range to be 151-188 months. Id. at 14. The court imposed a sentence of 169 months’ imprisonment, followed by five years of supervised release. Id. at 18. Berkeley filed a notice of appeal on February 19, 2008. Initially, Berkeley’s briefs, prepared by counsel, addressed only the district court’s denial of his motion to withdraw his plea. We subsequently granted Berkeley leave to file a pro se supplemental brief, in which he challenged the district court’s calculation of his Guidelines range. United States v. Berkeley, No. 08-3017, Order (D.C.Cir. Sept. 26, 2008). We address both issues below. II A defendant may withdraw a guilty plea prior to sentencing if he “can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). Although “[withdrawal of a guilty plea prior to sentencing is to be liberally granted,” United States v. Taylor, 139 F.3d 924, 929 (D.C.Cir.1998), we review a district court’s refusal to permit withdrawal only for abuse of discretion, United States v. Hanson, 339 F.3d 983, 988 (D.C.Cir.2003). “In reviewing such a refusal, we consider three factors: ‘(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government’s ability to prosecute the case; and (3) whether the guilty plea was somehow tainted.’ ” United States v. Curry, 494 F.3d 1124, 1128 (D.C.Cir.2007) (quoting Hanson, 339 F.3d at 988). In this appeal, Berkeley does not assert that he has" }, { "docid": "23114624", "title": "", "text": "of the consequences of entering a plea of guilty. Sentencing for both convictions took place on January 29, 1990. II. Request to Withdraw Plea On the day of sentencing, Badger asked the district court for permission under Fed. R.Crim.P. 32(d) to withdraw his guilty pleas to both the conspiracy count and the failure to appear count. The district judge denied these requests. We now affirm those decisions. Fed.R.Crim.P. 32(d) allows a district judge to permit a defendant to withdraw a guilty plea prior to sentencing upon the showing of “any fair and just reason.” We will reverse a lower court’s denial of a motion to withdraw a guilty plea only for abuse of discretion. United States v. Clark, 917 F.2d 177, 180 (5th Cir.1990); United States v. Daniel, 866 F.2d 749, 752 (5th Cir.1989). Although Rule 32(d) should be construed and applied liberally, there is no absolute right to withdraw a guilty plea. United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). In United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985), we set out seven factors for the district courts to consider when ruling on a Rule 32(d) motion: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether adequate assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. No single factor or combination of factors mandates a particular result. Instead, the district court should make its determination based on the totality of the circumstances. Id. at 344. Although Badger points out that the district judge did not make specific findings on each of the Carr factors, that circumstance does not establish that the district judge abused his discretion by denying Badger’s motions. By enumerating those" }, { "docid": "8818977", "title": "", "text": "traders such as Kramer. See, e.g., Corrow, 119 F.3d at 804-05 (affirming conviction under § 1170 of individual Native American artifacts trader). In short, because the legal arguments Kramer contends his counsel should have raised are meritless, Torres’ failure to pursue them was neither deficient nor prejudicial under Strickland. We therefore reject Kramer’s claim that his guilty plea was involuntary due to his counsel’s ineffective assistance. B. Trial Comt’s Denial of Kramer’s Motion to Withdraw Plea Fed.R.Crim.P. 32(e) provides that if a defendant moves to withdraw his guilty plea prior to sentencing, “the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” The burden of demonstrating a “fair and just reason” rests with the defendant. See Gordon, 4 F.3d at 1572. In Gordon, we set out the relevant considerations for determining whether a defendant has shown a fair and just reason for permitting withdrawal of the defendant’s guilty plea: (1) whether the defendant has asserted his innocence; (2) prejudice to the government if the motion is granted; (3) defendant’s delay in filing the withdrawal motion; (4) inconvenience to the court if the motion is granted; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Id ; see also United States v. Killingsworth, 117 F.3d 1159, 1161-62 (10th Cir.), cert. denied, - U.S. --, 118 S.Ct. 393, 139 L.Ed.2d 307 (1997). We review the district court’s denial of Kramer’s motion to withdraw his guilty plea for abuse of discretion. See Carr, 80 F.3d at 419. Although a defendant’s motion to withdraw a plea before sentencing should be “freely allowed” and “given a great deal of latitude,” id., we will not reverse absent a showing that the trial court acted “unjustly or unfairly.” Id. Applying the seven factors under Gordon, we believe that Kramer failed to demonstrate a fair and just reason for withdrawal of his plea. Although Kramer did assert his innocence, his quarrels with the statute, as we have discussed, are unavailing. Moreover, he does not dispute that he offered the" }, { "docid": "23470913", "title": "", "text": "by 18 U.S.C. § 924(D)(ii). Haygood now appeals his conviction, arguing that the district court erred in refusing his request to withdraw his guilty plea. He also asks that his sentence be vacated because he was not given the opportunity at the time of sentencing to exercise his right of allocution. II. ANALYSIS A. Motion to withdraw guilty plea 1. Standard of review We review the denial of a motion to withdraw a guilty plea under the abuse-of-discretion standard. United States v. Mader, 251 F.3d 1099, 1105 (6th Cir.2001). A district court abuses its discretion where “it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States v. Spikes, 158 F.3d 913, 927 (6th Cir.1998) (internal quotation marks omitted). 2. Haygood’s argument for withdrawal of his plea Rule 11 of the Federal Rules of Criminal Procedure describes the appropriate course of action when a defendant enters a guilty plea. According to Rule 11(d)(2)(B), a voluntarily entered guilty plea that has been accepted by the district court may be withdrawn before a sentence is imposed if “the defendant can show a fair and just reason for requesting the withdrawal.” See generally United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) (analyzing Rule 32(e), which was transferred without change to Rule 11(d)(2)(B) as part of the 2002 Amendments to the Rules). In the Sixth Circuit, as in other circuits, a multi-factor balancing test has been developed to guide district courts in deciding whether to grant a motion to withdraw a guilty plea. The factors in this circuit are the following: (1) the amount of time that elapsed between the plea and the motion to withdraw it; (2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant’s nature and background; (6) the degree to which the defendant has had prior experience with the" }, { "docid": "22924916", "title": "", "text": "Mr. Hamilton’s ineffective-assistance claim is “fully developed in the record,” it falls within the narrow exception to our general rule that such claims will be dismissed when brought on direct appeal. See Galloway, 56 F.3d at 1242 (“Some rare claims which are fully developed in the record may be brought either on direct appeal or in collateral proceedings.”); see also United States v. Carr, 80 F.3d 413, 416 n. 3 (10th Cir.1996) (considering ineffective-assistance allegation on direct appeal because a factual record had been fully developed in the district court). We will therefore review the District Court’s denial of Mr. Hamilton’s motion. 2. Whether Mr. Hamilton Established a “Fair and Just Reason” for Withdrawal Our review of a district court’s denial of a motion to withdraw a guilty plea is for abuse of discretion. United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999). Although a motion to withdraw a plea prior to sentencing should be “freely allowed,” we will not reverse a district court’s decision unless the defen dant can show that the court acted “unjustly or unfairly.” Id. (quotations omitted). Under Fed.R.Crim.P. 11(d)(2)(B), a defendant may withdraw a guilty plea before the court imposes a sentence if “the defendant can show a fair and just reason for requesting the withdrawal.” The defendant bears the burden of establishing a “fair and just reason.” United States v. Black, 201 F.3d 1296, 1299 (10th Cir.2000). In determining whether a defendant has met this burden, we consider seven factors: “(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (citing United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991)). Because Mr. Hamilton’s argument for withdrawal focuses on his assertion of innocence and ineffective assistance of counsel, we address these factors first. a. Assertion of Innocence Mr. Hamilton contends that he asserted his innocence on both counts in his" }, { "docid": "4647994", "title": "", "text": "his sentencing hearing so that he could remain near his terminally ill grandfather. Following these delays, Garcia moved to withdraw his plea, “indicating] that he ha[d] recently located a witness who will testify on his behalf at trial that she was the one who placed the gun in the car under the passenger seat and that this was done without the defendant’s knowledge.” The district court denied the motion from the bench at an October 2008 sentencing hearing. It then sentenced Garcia to 188 months’ imprisonment, the bottom of the applicable United States Sentencing Guidelines range. A written order followed, explaining in greater detail the court’s conclusion that Garcia had not presented a fair and just reason to withdraw his plea. This appeal followed. II Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may withdraw a guilty plea before sentencing if he “can show a fair and just reason for requesting the withdrawal.” To determine whether a defendant has met this burden, seven factors are considered: “ ‘(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.’ ” United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir.2007) (quoting United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993)). We review the denial of a Rule 11(d)(2)(B) motion for abuse of discretion. Id. at 1213. “Although a motion to withdraw a plea prior to sentencing should be freely allowed, we will not reverse a district court’s decision unless the defendant can show that the court acted unjustly or unfairly.” Id. at 1213-14 (quotations omitted). Garcia based his plea withdrawal motion on a single element of the crime: “that he was not in physical or constructive possession of the firearm.” He does not contest his status as a felon, his burglary, or that police discovered the gun and ammunition in his getaway car. Rather, he asserts that although the gun was in the car, he was not" }, { "docid": "17436826", "title": "", "text": "of discretion. See United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000). The district court’s ruling on the alleged due process defects in the underlying immigration proceeding is a mixed question of law and fact subject to de novo review. See United States v. Rangel de Aguilar, 308 F.3d 1134, 1137 (10th Cir.2002). III. A. Although a defendant does not have an absolute right to withdraw a guilty plea, see, e.g., Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978), the court should view a motion to withdraw with favor, granting the defendant “a great deal of latitude.” United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990) (quoting United States v. Hickok, 907 F.2d 983, 986 (10th Cir.1990)). The ultimate decision lies within the trial court’s discretion, however, and we will not reverse unless the trial court acted “unjustly or unfairly.” Siedlik, 231 F.3d at 748 (quoting United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999)). After the court accepts a plea, but before it imposes a sentence, the defendant may withdraw a plea of guilty if he shows a “fair and just reason for the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). This Court determines whether the defendant has shown a fair and just reason for withdrawal with reference to the following factors: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. Rhodes, 913 F.2d at 845 (quoting Hickok, 907 F.2d at 985 n. 2). Mr. Sandoval maintains that his collateral attack on the prior removal proceeding constitutes a fair and just reason for withdrawal of his guilty plea. The Government maintains that Mr. Sandoval fails to present a fair and just reason for withdrawal of his plea regardless of his right to collaterally attack the removal proceeding. The Government" }, { "docid": "22831727", "title": "", "text": "This case is now before this Court on the question of whether the district court abused its discretion in denying the motion to withdraw. Discussion This case presents a novel question in a familiar setting. The courts have frequently considered appropriate circumstances which permit withdrawal of a plea under Fed.R.Crim.P. 32(d). When a defendant moves to withdraw a guilty plea prior to imposition of a sentence, Rule 32(d) provides that “the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” In determining whether the defendant has demonstrated a fair and just reason, the court may consider the totality of the circumstances. United States v. Morrow, 537 F.2d 120, 146 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). This circuit has chosen to rely on the permissive language of Rule 32(d) and affirm the trial judge “unless the denial of appellant’s motion amounts to an abuse of discretion....” United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986). In Stitzer, the court states that based on the previous Fifth Circuit decision in United States v. Pressley, 602 F.2d 709, 711 (5th Cir.1979), assessment of the providence of the trial court’s refusal to permit withdrawal may be determined by “(1) whether close assistance of counsel was available; (2) whether the original plea was knowing and voluntary; and (3) whether judicial resources would be conserved.” We therefore evaluate the district court’s refusal to permit withdrawal based on the Pressley factors. In proceedings before this court, the appellant was individually represented by court-appointed counsel. The appellant conferred directly with his counsel for 8.8 hours. The appellant’s counsel spent over 30 additional hours, exclusive of travel time, in preparation and appearances in this case. R.Vol. 1, Item 85, pp. 1-5. Under these circumstances and in the absence of any suggestion that the appellant was less than aptly represented, we are left to con-elude that the appellant received close assistance of counsel. Under the particular facts of this" }, { "docid": "23397434", "title": "", "text": "there is no strong assertion of innocence” and that it is “quite possible that if this court were to allow withdrawal of the guilty plea ... Rhodes may yet enter into a plea disposition.” Appellant’s Reply Brief at 7. On the basis of Strickland and the lower court record, which we have independently reviewed, we cannot say that Rhodes was deprived of the effective assistance of counsel. IV. Motion to Withdraw Guilty Plea A district court’s denial of a motion to withdraw a plea of guilty is reviewed for abuse of discretion. United States v. Hickok, 907 F.2d 983, 984 (10th Cir.1990). Rule 32(d) of the Federal Rules of Criminal Procedure authorizes the district court to permit withdrawal of a plea prior to sentencing “upon a showing by the defendant of any fair and just reason.” Fed.R.Crim.P. 32(d). The motion for withdrawal “should be viewed with favor” and “[t]he defendant should be given a great deal of latitude.” Id. at 986. In Hickok we noted seven factors established by the Fifth Circuit which are considered when applying the “fair and just reason” standard. These factors are as follows: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; (7) whether the withdrawal would waste judicial resources. Id. at 985 n. 2 (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985)). Rhodes adopts the same argument for withdrawal of his guilty plea that he advanced in challenging the voluntariness of his plea and in claiming ineffective assistance of counsel — namely, the unanticipated severity of the sentence he received. Applying the seven factors outlined above, Rhodes failed to demonstrate a fair and just reason for withdrawal of his plea. First, Rhodes did not assert his innocence of the" }, { "docid": "22452088", "title": "", "text": "not to hold an evidentiary hearing for abuse of discretion. We also review the denial of Daniels’ motion to withdraw his guilty plea for abuse of discretion. “A defendant does not have an absolute right to withdraw [his] guilty plea.” When requesting withdrawal before sentencing, the defendant must show “a fair and just reason” for the request. When determining whether a fair and just reason has been shown, a court considers the factors set forth in United States v. Carr. The factors include whether (1) the defendant has asserted his innocence, (2) the government would be prejudiced, (3) the defendant delayed in requesting the withdrawal, (4) the court would be substantially inconvenienced, (5) the close assistance of counsel was available, (6) the plea was knowing and voluntary, (7) the withdrawal would waste judicial resources, and “as applicable, the reason why defenses advanced later were not proffered at the time of the original pleading, or the reasons why a defendant delayed in making his withdrawal motion.” If, applying these factors, a defendant has alleged facts that would justify relief, a court must hold an evidentiary hearing on the matter. In this case, the district court did not abuse its discretion when, without holding a hearing, it denied Daniels’ motion to withdraw his guilty plea. The only justification for Daniels’ motion was that “after due consideration of the Government’s allegations and relevant evidence; and, additional time to confer with his Counsel, [the defendant] sincerely believes that it was an error in his judgment to plead guilty.” The motion gave no further justification and failed to cite any of the Carr factors. “ ‘[A] mere change of mind is insufficient to permit the withdrawal of a guilty plea before sentencing .... ’ ” Withdrawal is permitted for pleas unknowingly made; “[t]he purpose is not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty.” In this case, Daniels’ plea was knowing and voluntary. Daniels did not assert his innocence, delayed" }, { "docid": "22903117", "title": "", "text": "and “willfully” meant, (2) that there was no evidence of misrepresentation by the government as to any witnesses, (3) that any “inconsistency” in the Agreement was adequately addressed during the Rule 11 colloquy, and (4) that Weaver’s, assertion of innocence alone did not entitle Weaver to withdraw her plea. Although during closing arguments Weaver’s counsel had argued that conversion of the loan proceeds for Weaver’s own use or benefit of another was also a required element of a § 1097(a) violation, the district court did not expressly address that issue. The district court ultimately sentenced Weaver to four months’ imprisonment and four months’ home detention. Weaver timely appealed both the denial of her motion to withdraw and her sentence. II. DISCUSSION A. Rule 32(e): Motion to Withdraw Weaver filed her motion to withdraw her plea pursuant to Federal Rule of Criminal Procedure 32(e), which provides that “[i]f a motion to withdraw a plea of guilty ... is made before sentence is imposed, ... the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Fed.R.Crim.P. 32(e). The factors to be considered in evaluating whether a guilty plea may be withdrawn include the following: “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988) (internal citation omitted). Weaver contends, inter alia, that her plea was not knowing or voluntary because (1) conversion is an essential element of her § 1097(a) violation, and (2) she was not advised about the conversion element before entering her plea. Section 1097(a) provides that “[a]ny person who knowingly and willfully embezzles, misapplies, steals, obtains by fraud, false statement, or forgery, or fails to refund” financial aid funds provided or insured by the federal government is subject to criminal liability. 20 U.S.C. § 1097(a) (emphasis added). A 1992 amendment added “or fails to refund” to § 1097(a). This Court previously" }, { "docid": "1636112", "title": "", "text": "claims that his plea was involuntary and that he received ineffective assistance of counsel. We agree, and we have previously allowed appeals despite similar waivers of appeal where defendants have asserted claims of coercion and ineffective assistance of counsel. Therefore, Harrison may raise his challenge to the district court’s refusal to hold an evidentiary hearing on his motion to withdraw. III. A criminal defendant does not have an absolute right to withdraw a guilty plea. Rather, a defendant may withdraw a guilty plea after the court has accepted it, but prior to sentencing, only if he “can show a fair and just reason for requesting the withdrawal.” In determining whether a defendant has shown a fair and just reason, the Fifth Circuit applies the seven-factor test set forth in United States v. Carr. A district court must consider whether: (1) the, defendant asserted his innocence; (2) withdrawal would cause the government to suffer prejudice; (3) the defendant delayed in filing the motion; (4) withdrawal would substantially inconvenience the court; (5) close assistance of counsel was available; (6) the original plea was knowing and voluntary; and (7) withdrawal would waste judicial resources. A district court need not make findings as to each factor, but should make its decision based on' “the totality, of the circumstances.” The court should also consider, where applicable, the reasons why defenses advanced later were not proffered at the time of the original pleading and the reasons why a defendant delayed in making his withdrawal motion. Finally, the burden of establishing a fair and just reason for requesting withdrawal under Carr “rests with the defendant.” Neither is a criminal defendant automatically entitled to an evidentiaryhearing on a motion to withdraw his guilty plea. “A hearing is required,” however, “when the defendant alleges sufficient facts which, if proven, would justify relief [under Carr].” We review a district court’s decision not to hold an evidentiary hearing for abuse of discretion. “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” IV. Although Harrison made several" }, { "docid": "22270216", "title": "", "text": "However, he adds, the district court granted his second motion for dental care at the conclusion of the hearing at which he entered his guilty plea. He suggests that the granting of the motion supports his contention that the prosecutor improperly offered him dental care as an inducement for the guilty plea. Under Fed.R.Crim.P. 32(e), “[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” It is the defendant’s burden to establish a “fair and just reason” for the withdrawal of the plea. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993). In Gordon, we set forth seven factors that courts should consider in deciding whether to allow a defendant to withdraw a guilty plea: (1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; (7) whether the granting of the motion would cause a waste of judicial resources. See Gordon, 4 F.3d at 1572. Although we engage in de novo review of the question of whether the plea was knowing and voluntary, see United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994), we review the district court’s denial of the motion to withdraw the guilty plea for an abuse of discretion, considering the seven factors outlined in Gordon. See United States v. Carr, 80 F.3d 413, 419 (10th Cir.1996). We agree with the district court that Mr. Black’s guilty plea was knowing and voluntary. Although there appears to be no dispute that Mr. Black had a toothache when he pleaded guilty, Mr. Black has presented no evidence (other than his own assertions in his motion to withdraw his plea) that the toothache was so severe that it interfered with his ability to consent" }, { "docid": "22066806", "title": "", "text": "denial is “arbitrary or unreasonable.” United States v. Weaver, 275 F.3d 1320, 1328 n. 8 (11th Cir.2001). A district court’s refusal to hold an evidentiary hearing is also reviewed for abuse of discretion. See United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.1986). It does not amount to abuse of discretion when a court has conducted extensive Rule 11 inquiries prior to accepting the guilty plea. Id. The Federal Rules of Criminal Procedure require a district court, before it accepts a plea of guilty, to inform the defendant of his rights relevant to his guilty plea and determine that he understands them. Fed.R.Crim.P. 11(b)(1). After the district court has accepted a plea and before sentencing, a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). In determining whether the defendant has met his burden to show a “fair and just reason,” a district court “may consider the totality of the circumstances surrounding the plea.” United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir.1988). In the course of this inquiry, we consider “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” Id. at 472 (citations omitted). “The good faith, credibility and weight of a defendant’s assertions in support of a motion [to withdraw a guilty plea] are issues for the trial court to decide.” Id. Additionally, “[t]he longer the delay between the entry of the plea and the motion to withdraw it, the more substantial the reasons must be as to why the defendant seeks withdrawal.” Id. at 473. Here, the district court found that: (1) Brehm was represented by counsel; (2) Brehm’s guilty plea was voluntary, he was competent to understand the indictment, and he acknowledged waiving his rights to a jury trial; (3) sufficient judicial resources had been expended in Brehm’s case in that he had been granted three continuances of his sentencing;" }, { "docid": "4742516", "title": "", "text": "this record we are convinced the court accepted Byrum’s guilty plea. B. Byrum Failed to Establish a “Fair and Just Reason” to Withdraw His Plea Having found the court accepted the guilty plea, the remaining question is whether Byrum presented a “fair and just reason” to withdraw his plea as required by Rule 11. Byrum contends that even if we determine the district court accepted his guilty plea, the court abused its discretion in refusing to permit him to withdraw his plea. In particular, he claims that although he pleaded guilty and allocuted under oath to the facts of his crimes, the district court erred in failing to recognize his later protestations of innocence. He further alleges that his guilty plea resulted from misrepresentations by his court-appointed counsel. Finally, he contends he should have been permitted to obtain new counsel and that the district court should have held a full hearing on the issue. We review the district court’s denial of motion to withdraw a guilty plea for an abuse of discretion. Sandoval, 390 F.3d at 1297. When a defendant moves to withdraw a guilty plea — after its acceptance by the district court but prior to sentencing — the court must assess whether there is a “fair and just reason for withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). The court should consider the following factors: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir.2005). (8) Here, the district court determined that Byrum’s motion, filed after it had performed a thorough Rule 11 colloquy, after Byrum had admitted the facts underlying his offense, and after both parties had negotiated and entered into a plea agreement, would be “pointless.” R., Vol. Ill at 4. Essentially, the" } ]

[ { "docid": "22545791", "title": "", "text": "the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948). The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives — including deterrence of crime, rehabilitation of prisoners, and institutional security. Pell v. Procunier, supra, at 822-823; Procunier v. Martinez, 416 U. S. 396, 412 (1974). In considering the appropriate balance of these factors, we have often said that evaluation of penological objectives is committed to the considered judgment of prison administrators, “who are actually charged with and trained in the running of the particular institution under examination.” Bell v. Wolfish, supra, at 562. See Turner v. Safley, ante, at 86-87. To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a “reasonableness” test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights. See, e. g., Jones v. North Carolina Prisoners’ Labor Union, Inc., supra, at 128. We recently restated the proper standard: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safiey, ante, at 89. This approach ensures the ability of corrections officials “to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration,” ibid., and avoids unnecessary intrusion of the judiciary into problems particu larly ill suited to “resolution by decree.” Procunier v. Martinez, supra, at 405. See also Turner v. Safley, ante, at 89; Bell v. Wolfish, supra, at 548. We think the Court of Appeals decision in this case was wrong when it established a separate burden on prison officials to prove “that no reasonable method exists by which [prisoners’] religious rights can be accommodated without creating bona fide security problems.” 782 F. 2d, at 420. See also id., at 419 (Prison officials should be required “to produce convincing evidence that they are unable to satisfy their institutional goals" } ]

[ { "docid": "23509646", "title": "", "text": "U.S. at 525, 104 S.Ct. at 3199. While courts must refrain from substituting their judgment for that of prison administrators, Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986), deference \"does not mean abdication,\" Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990). \"[Turner’s] reasonableness standard is not toothless,\" Thornburgh v. Abbott, 490 U.S. at 414, 109 S.Ct. at 1882. \"[W]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.\" Turner, 482 U.S. at 84, 107 S.Ct. at 2259 (internal quotation omitted; citation omitted). IV. A. If the cross-gender clothed body searches authorized by Superintendent Vail are to pass constitutional muster under Turner, there must, first, be a “valid, rational connection between [the cross-gender searches] and the legitimate governmental interest put forward to justify [them].” Turner, 482 U.S. at 89, 107 S.Ct. at 2262 (internal quotation omitted; citation omitted). Prison administrators claim that the security needs of the prison and the employment rights of the guards justify cross-gender searches. As I discuss below, the connection between any legitimate penological interest and cross-gender searches is tenuous. Turner next requires a court to determine whether alternative means of exercising the constitutional right remain open to the inmates. Id., 482 U.S. at 90, 107 S.Ct. at 2262. The prison’s authorization of suspicionless cross-gender searches leaves the inmates no means of protecting their bodies against unreasonable searches. An inmate can do nothing to escape a search. Even an inmate who stays in her cell and behaves impeccably can be forced to submit to a male guard’s search of her body in an offensive, invasive, and intimate way. The third factor to be addressed under the Turner analysis is “the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison.” Thornburgh v. Abbott, 490 U.S. at 418, 109 S.Ct. at 1884. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of" }, { "docid": "6562086", "title": "", "text": "violations. i. Prisoners do not lose all constitutional rights once they pass beyond prison walls, but they retain only those First Amendment rights which are not inconsistent with their status as prisoners or with the legitimate penological objectives of the prison system. See Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see also Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Because courts are “ ‘ill equipped’ to deal with the difficult and delicate problems of prison management, [the Supreme Court] has afforded considerable deference to the determinations of prison administrators.” Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1988). “[P]rison administrators ..., and not the courts, [are] to make the difficult judgments con cerning institutional operations.” Id. at 409, 109 S.Ct. 1874 (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254). Furthermore, “prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison.” Id. at 407, 109 S.Ct. 1874. Based on these considerations, the Supreme Court has rejected a “heightened” scrutiny standard for regulations that are “centrally concerned with the maintenance of order and security within prisons” and instead applies a reasonableness standard. Id. at 409-10, 109 S.Ct. 1874. A prison regulation that “impinges on inmates’ constitutional rights ... is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 88, 107 S.Ct. 2254. The Turner Court set out four factors to consider in determining the reasonableness of the regulation at issue: (1) whether there is a rational relationship between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether the inmate has an available alternative means of exercising the rights; (3) the impact of accommodation on other inmates, guards, and allocation of prison resources; and (4) the presence or absence of easy and obvious alternative means to accommodate the right. Turner, 482 U.S. at 89-91, 107 S.Ct. 2254; see also Prison Legal News v. Livingston, 683 F.3d" }, { "docid": "23509764", "title": "", "text": "guards to conduct the body searches—to the extent that such need exists—outweighs the constitutional injury resulting from the invasiveness of the intrusion”); id. at 1537 (“requiring] a slight adjustment to guards’ work schedules ... is a small price to pay for the preservation of the inmates’ fundamental constitutional rights”); id. (“minor adjustments ... that the use of female guards would require are relatively insignificant, both in themselves and when weighed against the constitutional interests at stake”); id. at 1539 (“While the prison’s penological interest supporting the regulation is minor, the impact of cross-gender searches on the inmates’ constitutional rights is substantial”); id. at 1540 (“the interests that the superintendent has advanced are insubstantial. They are significantly outweighed by the harm the policy inflicts on the inmates and the injury it does to their constitutional rights”). Turner does not authorize such balancing. None of the four factors justifies a court in evaluating the constitutionality of a prison policy by weighing its effects on prisoners against the institutional interests it serves. Judge Reinhardt’s balancing test is a departure from the deferential analysis prescribed by Turner. In support of his balancing test approach, Judge Reinhardt relies on Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979) (Bell), which explicitly mandated a balancing test in prison search cases. He justifies this step by declaring: \"We derive guidance as to how the Turner factors are to be applied in `unreasonable search’ cases from Bell v. Wolfish.\" Reinhardt Concurrence at 1540. It is true that Turner cites Bell. However, Turner relies only on that portion of Bell that addressed inmates’ First Amendment claims. Turner does not in any way rely on Bell’s Fourth Amendment balancing approach. See Turner, 482 U.S. at 87-90, 107 S.Ct. at 2260-62, citing Bell, 441 U.S. at 550-51, 99 S.Ct. at 1880 (upholding prison restrictions on receipt of hardback books by inmates as \"a rational response by prison officials to an obvious security problem\"), but not citing Bell, 441 U.S. at 558-60, 99 S.Ct. at 1884-85 (using balancing test to evaluate Fourth Amendment claims). Washington v." }, { "docid": "2369740", "title": "", "text": "Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution[,]” Hudson> 468 U.S. at 523, 104 S.Ct. 3194, it has also emphasized that the judiciary has a “very limited role” in the administration of detention facilities, Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Indeed, detention facilities have been described as “unique placets] fraught with serious security dangers,” Bell, 441 U.S. at 559, 99 S.Ct. 1861, the management of which “courts are ill equipped to deal with,” id. at 548 n. 30, 99 S.Ct. 1861. Therefore, authorities are entitled to considerable latitude in designing and implementing prison management policies. Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). As the Supreme Court cautioned in Bell: “[pjrison 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.” 441 U.S. at 547, 99 S.Ct. 1861. In addition to prison administrators’ “professional expertise,” separation of powers and federalism concerns support “wide-ranging deference” to the decisions of prison authorities. Id. at 548, 99 S.Ct. 1861 (“[J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive branches of our Government, not the Judicial.”); Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[S]eparation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities.”). A. Having explained the general standards that govern our inquiry, we turn to the Supreme Court’s pathmarking decision in Bell v. Wolfish. Although there are factual differences between Bell and the instant case, they are sufficiently similar to warrant a detailed review of Bell. In Bell, pretrial detainees and" }, { "docid": "22154243", "title": "", "text": "but was stymied by the error. Had Nunez or someone in his position been provided with the correct program statement upon his initial request, he may have been satisfied and dropped his complaint, thus reducing the quantity of suits. Alternatively, armed with the correct program statement, Nunez or someone in his position may have still believed that his Fourth Amendment rights were violated, but the quality of his suit would have been enhanced. We therefore hold, under the circumstances of this case, that the Warden’s mistake rendered Nunez’s administrative remedies effectively unavailable, and that his failure to exhaust them is excused. 2. Merits Nunez contends that a material question of fact exists regarding whether his Fourth Amendment rights were violated by the strip search. We disagree and affirm the district court’s grant of summary judgment to defendants. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), provides the standard for reviewing alleged infringements of prisoners’ constitutional rights. See Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (stating that Turner applies whenever “the needs of prison administration implicate constitutional rights”); Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir.1988) (applying the Turner standard to prisoners’ allegations of Fourth Amendment violations). Turner provides that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254. Searches of prisoners must be reasonable to be constitutional. See Michenfelder, 860 F.2d at 332. The reasonableness of a particular search of a prisoner is determined by applying the balancing test the Supreme Court announced in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See Michenfelder, 860 F.2d at 332. In Bell, the Court wrote: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the" }, { "docid": "23337209", "title": "", "text": "the test, that Crider ordered the test of the Custody Building workers to harass him, and that the prison had no regulations governing the administration and processing of the tests, subjecting him to the risk of a false-positive test. Urine tests are searches for Fourth Amendment purposes, and prison inmates retain protected privacy rights in their bodies, although these rights do not extend to their surroundings. See e.g., Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (no privacy interest in prison cell); Spence v. Farrier, 807 F.2d 753, 755 (8th Cir.1986) (urinalysis is search for Fourth Amendment purposes). Moreover, for Fourth Amendment purposes, urinalysis is analogous to body cavity searches and blood tests. Tucker v. Dickey, 613 F.Supp. 1124 (D.C.Wis.1985) (urine sample analogous to blood test for Fourth Amendment purposes); Storms v. Coughlin, 600 F.Supp. 1214, 1220 (S.D.N.Y.1984). In Bell v. Wolfish, the Supreme Court examined the constitutionality of post-visitation body cavity searches. 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1970), and explained that the basic test for the constitutionality of a search that invades the integrity of an inmate’s body is reasonableness. In each case [the Fourth Amendment] requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884 (citations omitted). The Court stressed that prison administrators are 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.” Id. at 547, 99 S.Ct. at 1878. Further, subsequent cases have noted that “[t]he unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country.” Spence v. Farrier, 807 F.2d 753, 755 (8th Cir.1986) (citing Block v. Rutherford, 468 U.S. 576, 588-89, 104 S.Ct. 3227, 3233-34, 82 L.Ed.2d 438 (1984)). Urinalysis" }, { "docid": "4398874", "title": "", "text": "are 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.” Id. at 379 (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979)). This wide-ranging deference to the determinations of prison administrators is not boundless. “It is equally certain that ‘[pjrison walls do not form a barrier separating prison inmates from the protections of the Constitution.’ ” Abbott, 490 U.S. at 407, 109 S.Ct. at 1878 (quoting Turner, 482 U.S. at 84, 107 S.Ct. at 2259). In discharging their duties, federal courts must protect the constitutional rights of prison inmates in the face of a prison regulation or practice which offends a fundamental constitutional guarantee. Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969); Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Turner, 482 U.S. at 84, 107 S.Ct. at 2259. With these general principles in mind, the court will now address the appropriate standard to be applied to Nichols’ facial and as applied First Amendment challenges. 2. The Appropriate Standard of Review — The “Reasonable Relationship” Test This court’s analysis of Nichols’ First Amendment claims is governed by the Supreme Court’s decisions in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). A prison rule or regulation which impinges upon an inmate’s constitutional rights is valid “if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. In adopting the “reasonable relationship” test, Justice O’Connor observed “[o]ur task ... is to formulate a standard of review of prisoners’ constitutional claims that is responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.’ ” Id. at 85, 107 S.Ct. at" }, { "docid": "23509765", "title": "", "text": "departure from the deferential analysis prescribed by Turner. In support of his balancing test approach, Judge Reinhardt relies on Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979) (Bell), which explicitly mandated a balancing test in prison search cases. He justifies this step by declaring: \"We derive guidance as to how the Turner factors are to be applied in `unreasonable search’ cases from Bell v. Wolfish.\" Reinhardt Concurrence at 1540. It is true that Turner cites Bell. However, Turner relies only on that portion of Bell that addressed inmates’ First Amendment claims. Turner does not in any way rely on Bell’s Fourth Amendment balancing approach. See Turner, 482 U.S. at 87-90, 107 S.Ct. at 2260-62, citing Bell, 441 U.S. at 550-51, 99 S.Ct. at 1880 (upholding prison restrictions on receipt of hardback books by inmates as \"a rational response by prison officials to an obvious security problem\"), but not citing Bell, 441 U.S. at 558-60, 99 S.Ct. at 1884-85 (using balancing test to evaluate Fourth Amendment claims). Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 1037, 108 L.Ed.2d 178 (1990), instructed that Turner’s four factor analysis is to be applied whenever “the needs of prison administration implicate constitutional rights.” None of the Turner factors authorizes courts to balance prison officials’ institutional needs against the “subjective intrusion” on prisoners entailed by prison policies. It is clear that Bell’s Fourth Amendment balancing test does not survive Turner and Harper. Although Turner does not authorize a balancing test, neither does it require us to ignore either the sufficiency of the reason for a prison policy or the effect of that policy on inmates. The first and fourth Turner factors, in particular, require consideration of both the justification for and the effects of a challenged search policy. See Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-62. A highly invasive search policy that is no more effective than a less invasive one may well not pass muster under Turner. What Turner does not require or permit is for a judge to look at the injury to" }, { "docid": "6012785", "title": "", "text": "stated that while “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979), they do not enjoy all protections either. A prisoner retains only those rights that are not inconsistent with his status as a prisoner or with the legitimate penological goals of the corrections system. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537-38, 53 L.Ed.2d 629 (1977). This is as true of the right to free speech as it is of any other constitutional right. Id. The Court has recognized that the management of a prison is no small task and, accordingly, has repeatedly emphasized that great deference is due the determinations of prison administrators. Courts must be sensitive to their expert judgment and mindful that the judiciary is “ ‘ill equipped’ to deal with the difficult and delicate problems of prison management.” Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989). At the same time, our deference “must be schooled, not absolute.” Campbell v. Miller, 787 F.2d 217, 227 n. 17 (7th Cir.), cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986). The fact that initial responsibility for the prison is vested in prison administrators “does not mean that constitutional rights are not to be scrupulously observed.” Bell, 441 U.S. at 562, 99 S.Ct. at 1886. In analyzing a First Amendment challenge to a prison regulation we use the standard described by the Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Court held that so long as a restriction on a prisoner’s constitutional right is “reasonably related” to a “legitimate penological interest,” there is no constitutional violation. Id. at 89, 107 S.Ct. at 2261-62. The Court set forth four factors that are relevant in determining whether this standard has been met. While the framework of analysis is deferential to the government, the Court has emphasized that it is not “toothless.” Thornburgh," }, { "docid": "22154244", "title": "", "text": "(1990) (stating that Turner applies whenever “the needs of prison administration implicate constitutional rights”); Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir.1988) (applying the Turner standard to prisoners’ allegations of Fourth Amendment violations). Turner provides that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254. Searches of prisoners must be reasonable to be constitutional. See Michenfelder, 860 F.2d at 332. The reasonableness of a particular search of a prisoner is determined by applying the balancing test the Supreme Court announced in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See Michenfelder, 860 F.2d at 332. In Bell, the Court wrote: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. 441 U.S. at 559, 99 S.Ct. 1861 (emphasis added). The BOP has a policy authorizing periodic strip searches of inmates returning from outside work details. This policy is stated in 28 C.F.R. § 552.11 and BOP Program Statement 5521.05. Section 552.11(c)(1) allows prison staff to conduct a visual search where there is reasonable belief that contraband may be concealed on the person, or a good opportunity for concealment has occurred. For example, placement in a special housing unit (see 28 CFR part 541, subpart B), leaving the institution, or re-entry into an institution after contact with the public (after a community trip, court transfer, or after a “contact” visit in a visiting room) is sufficient to justify a visual search. The visual search shall be made in a manner designed to assure as much privacy to the inmate as practicable. A “visual search” is defined as “a visual inspection of all body surfaces" }, { "docid": "6349409", "title": "", "text": "is fundamental that prison administrators are 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.” Id. at 379 (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979)). This wide-ranging deference to the determinations of prison administrators is not boundless. “It is equally certain that ‘[pjrison walls do not form a barrier separating prison inmates from the protections of the Constitution.’ ” Abbott, 490 U.S. at 407, 109 S.Ct. at 1878 (quoting Turner, 482 U.S. at 84, 107 S.Ct. at 2259). In discharging their duties, federal courts must protect the constitutional rights of prison inmates in the face of a prison regulation or practice which offends a fundamental constitutional guarantee. Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969); Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Turner, 482 U.S. at 84, 107 S.Ct. at 2259. With these general principles in mind, the court will now address the appropriate standard to be applied to Sisneros’ assertion that the English-only rule violates his First Amendment rights. 2. The reasonable relationship test This court’s analysis of Sisneros’ First Amendment claims is governed by the Supreme Court’s decisions in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). A prison rule or regulation which impinges upon an inmate’s constitutional rights is valid “if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. In adopting the “reasonable relationship” test, Justice O’Connor observed “[o]ur task ... is to formulate a standard of review of prisoners’ constitutional claims that is responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.’” Id. at 85, 107 S.Ct." }, { "docid": "23509644", "title": "", "text": "alternative to the challenged practice exists that will fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. Id., 482 U.S. at 89-91, 107 S.Ct. at 2262. The four factors must be evaluated in light of the Court’s overarching task: to determine whether a prison’s policy is reasonably related to prison administrators’ valid concerns or is an exaggerated response to those concerns. Under Turner, a prison’s response to its penological concerns must be appropriate: it must be reasonable; it cannot stand if it constitutes an overreaction. The Turner factors must be applied in light of the type of constitutional violation involved and the circumstances of the particular case. Some weigh more heavily in some circumstances; others more heavily in others. We derive guidance as to how the Turner factors are to be applied in “unreasonable search” cases from Bell v. Wolfish, supra. Bell tells us that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884. Instead, Bell mandates a balancing test. It states, “In each case [the test of reasonableness] requires a balancing of the need of the particular search against the invasion of personal rights that the search entails.” Id. (emphasis added). Thus, after applying the four Turner factors and evaluating all the circumstances, we must ask whether the prison’s need to use male guards to conduct the body searches—to the extent that such heed exists—outweighs the constitutional injury resulting from the invasiveness of the intrusion. In evaluating a claim under Turner, a court must accord \"appropriate deference to prison officials,\" O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987), because \"the judiciary is ill-equipped to deal with the difficult and delicate problems of prison management,\" Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989). This admonition applies especially strongly to concerns over prison security, which, the Court has stated, is the most important of all legitimate correctional goals. Hudson v. Palmer, 468" }, { "docid": "7769791", "title": "", "text": "of privacy.’ ”) (quoting 3 Privacy Law and Practice ¶25.02[1] (George B. Trubow ed., (1991)). Nevertheless, prisoners’ constitutional rights must be exercised with due regard for the requirements of prison administration. Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 2259-60, 96 L.Ed.2d 64 (1987). Courts must give great deference to the decisions of prison officials concerning the management of correctional facilities. Id. at 85-86, 107 S.Ct. at 2259-60. In Turner, the Supreme Court established a rational relationship test for assessing the constitutionality of prison regulations and practices. The Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. at 2261. In applying this test, courts should consider the following factors: (1) whether there is a valid, rational connection between the prison regulation or practice and a legitimate governmental interest; (2) whether the regulation or practice allows inmates an alternative means of exercising the subject constitutional right; (3) the impact of accommodation of the asserted right on guards, other inmates, and the allocation of resources generally; and (4) the absence of ready alternatives to the regu lation or practice. Id. at 89-91, 107 S.Ct. at 2261-63. The Court has also discussed the factors that must be considered in assessing the reasonableness of prisoner searches: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). We have applied these principles to prisoner searches in a number of cases. See, e.g., Dunn v. White, 880 F.2d 1188, 1190-97 (10th Cir.1989) (holding that noneonsensual blood test does not violate the Fourth Amendment), cert. denied, 493 U.S. 1059," }, { "docid": "23509645", "title": "", "text": "at 1884. Instead, Bell mandates a balancing test. It states, “In each case [the test of reasonableness] requires a balancing of the need of the particular search against the invasion of personal rights that the search entails.” Id. (emphasis added). Thus, after applying the four Turner factors and evaluating all the circumstances, we must ask whether the prison’s need to use male guards to conduct the body searches—to the extent that such heed exists—outweighs the constitutional injury resulting from the invasiveness of the intrusion. In evaluating a claim under Turner, a court must accord \"appropriate deference to prison officials,\" O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987), because \"the judiciary is ill-equipped to deal with the difficult and delicate problems of prison management,\" Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989). This admonition applies especially strongly to concerns over prison security, which, the Court has stated, is the most important of all legitimate correctional goals. Hudson v. Palmer, 468 U.S. at 525, 104 S.Ct. at 3199. While courts must refrain from substituting their judgment for that of prison administrators, Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986), deference \"does not mean abdication,\" Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990). \"[Turner’s] reasonableness standard is not toothless,\" Thornburgh v. Abbott, 490 U.S. at 414, 109 S.Ct. at 1882. \"[W]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.\" Turner, 482 U.S. at 84, 107 S.Ct. at 2259 (internal quotation omitted; citation omitted). IV. A. If the cross-gender clothed body searches authorized by Superintendent Vail are to pass constitutional muster under Turner, there must, first, be a “valid, rational connection between [the cross-gender searches] and the legitimate governmental interest put forward to justify [them].” Turner, 482 U.S. at 89, 107 S.Ct. at 2262 (internal quotation omitted; citation omitted). Prison administrators claim that the security needs of the prison and the employment rights of the guards justify cross-gender" }, { "docid": "4364112", "title": "", "text": "have failed to prove that the prison policy is not “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. B. The inmates argue that the cross-gender searches are unreasonable and violate the fourth amendment. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) {Bell), the Supreme Court upheld the practice of routine body cavity searches of pretrial detainees. In doing so, the Court established a balancing test for evaluating searches in the prison context: [t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559, 99 S.Ct. at 1884. Following Bell, we have rejected a number of fourth amendment challenges to searches within a prison. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1445-46 (9th Cir.1989) (upholding body cavity search of arrestee); Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir.1988) (Michenfelder) (visual strip searches of male inmates are not unconstitutional, even when viewed by female guards); Rickman v. Avaniti, 854 F.2d 327 (9th Cir.1988) {Rickman) (routine visual strip searches do not violate fourth or fourteenth amendment); Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) {Grummett) (no constitutional violation when female guards perform routine pat searches of male inmates). In Grummett, we rejected a constitutional challenge to a prison policy that permitted female guards to perform pat searches on clothed male inmates and occasionally view naked inmates. We pointed out that although the searches included the groin area, “[they] are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies.” Id. at 496. We also observed that prohibiting the searches would “necessitate a tremendous rearrangement of work schedules, and possibly produce a risk to" }, { "docid": "23028584", "title": "", "text": "83 L.Ed.2d 720 (1985), is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a “standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396. A. Strip Body Searches Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches of corrections officers based on mere suspicion. Defendants also argue that plaintiffs have no reasonable expectations of privacy within the institutions in light of their signing consent forms. Correctional institutions are unique places “fraught with serious security dangers.” Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884. Within the walls of the correctional institution, “a central objective of prison administrators is to safeguard institutional security.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). To achieve this goal prison administrators have the responsibility “to intercept and exclude by all reasonable means all contraband smuggled into the facility.” Id. In analyzing the intrusion on the individual’s fourth amendment interests, there must be a legitimate expectation of privacy. To determine if an individual’s expectation of privacy is legitimate, there must be both an actual subjective expectation and, even more importantly, Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984), that expectation must be one which society will accept as reasonable. Katz v. United States," }, { "docid": "4398873", "title": "", "text": "way approaches that of the professional administrators charged with the awesome task of running our prisons. Id. at 1099. The deference that courts properly accord to prison officials is not subject to being minimized in the case at bar simply because Nichols’ claim involves access to religious literature from the “outside” world. See Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989) (acknowledging the delicate balance between prison security and those on the “outside” seeking to enter the prison environment in person or through written correspondence). Many claims “to prison access undoubtedly are legitimate; yet prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison.” Id. The deference owed to determinations of prison officials in the interest of security was recently reinforced by the United States Court of Appeals for the Eight Circuit in Falls v. Nesbitt, 966 F.2d 375 (8th Cir.1992). In Nesbitt, the court stated “[i]t is fundamental that prison administrators are 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.” Id. at 379 (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979)). This wide-ranging deference to the determinations of prison administrators is not boundless. “It is equally certain that ‘[pjrison walls do not form a barrier separating prison inmates from the protections of the Constitution.’ ” Abbott, 490 U.S. at 407, 109 S.Ct. at 1878 (quoting Turner, 482 U.S. at 84, 107 S.Ct. at 2259). In discharging their duties, federal courts must protect the constitutional rights of prison inmates in the face of a prison regulation or practice which offends a fundamental constitutional guarantee. Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969); Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104" }, { "docid": "23482606", "title": "", "text": "to Procedure 300.10 violate his fourth and fourteenth amendment rights to be free from unreasonable searches. It is fundamental that persons are protected from unreasonable searches and seizures by the fourth amendment and that this right is enforceable against the states through the fourteenth amendment. See Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963). It has been established that “[pjrison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner, 482 U.S. at 84, 107 S.Ct. at 2259. Thus, while inmates may lose many of their freedoms at the prison gate, they retain “those rights [that are] not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984). To assess whether Covino’s fourth and fourteenth amendment claims presented a likelihood of success on the merits or sufficiently serious questions going to the merits with a balance of hardships tipping decidedly in Covino’s favor, it is necessary to determine whether the search in question was reasonable under the fourth amendment. As we stated in Security & Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984), when we considered whether warrantless strip and visual body-cavity searches of correction officers were reasonable under the fourth and fourteenth amendments, “[a] court must balance the intrusiveness of the search on the individual’s fourth amendment interests against its promotion of legitimate governmental interests.” Id. at 201 (citations omitted). The Supreme Court has observed: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). Our method of inquiry is first to" }, { "docid": "2369739", "title": "", "text": "definition or mechanical application,” Bell, 441 U.S. at 559, 99 S.Ct. 1861. “In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id. Detention in a correctional facility “carries with it the circumscription or loss of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). “The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security.” Id. (internal quotation marks and citations omitted). Because privacy is greatly curtailed by the nature of the prison environment, a detainee’s Fourth Amendment rights are likewise diminished. See id. at 526, 104 S.Ct. 3194 (holding that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell”); -Bell, 441 U.S. at 537, 99 S.Ct. 1861 (“Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility.”). While the Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution[,]” Hudson> 468 U.S. at 523, 104 S.Ct. 3194, it has also emphasized that the judiciary has a “very limited role” in the administration of detention facilities, Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Indeed, detention facilities have been described as “unique placets] fraught with serious security dangers,” Bell, 441 U.S. at 559, 99 S.Ct. 1861, the management of which “courts are ill equipped to deal with,” id. at 548 n. 30, 99 S.Ct. 1861. Therefore, authorities are entitled to considerable latitude in designing and implementing prison management policies. Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). As the Supreme Court cautioned in Bell: “[pjrison 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.” 441 U.S. at 547, 99 S.Ct. 1861. In addition to" }, { "docid": "5017263", "title": "", "text": "the case does not justify a finding that plaintiff lacked any legitimate expectation of privacy in the instant case. First, the relationship between institutional security and a study to determine the extent and nature of drug use in prisons is considerably less direct and immediate than the relationship between security and the search of an inmate’s cell for contraband. Second, while there is an “inherent diminution” in the privacy of a person’s surroundings when incarcerated, the “body undergoes no such fundamental change when incarcerated. The surroundings become less private; the body remains the same.” Storms v. Coughlin, 600 F.Supp. at 1224. The Supreme Court has asserted repeatedly that “prisons are not beyond the reach of the Constitution.” Hudson v. Palmer, 104 S.Ct. at 3198; see also Bell v. Wolfish, 441 U.S. 520 at 545, 99 S.Ct. 1861 at 1877, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). That being so, prisoners must retain at least some limited protection against highly intrusive searches. It is more difficult to define the extent of the privacy rights retained by prisoners, given the important interest in institutional security and the deference courts must afford to prison officials. See Bell v. Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878. In Wolfish, the Court held that the basic test is one of “reasonableness.\" Id. at 559, 99 S.Ct. at 1884. The reasonableness test requires in each case a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. This reasonableness inquiry must be conducted in a spirit of “wide-ranging deference” to prison officials “in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and to maintain institutional security.”" } ]

[ { "docid": "4165271", "title": "", "text": "courts have reasoned that since the anti-discrimination objectives of Title VIII are parallel to the goals of Title VII, the Griggs rationale must be applied in Fair Housing Act cases. Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (Arlington Heights II). See also Residents Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (Black Jack II). We agree with that analysis, and with the four critical factors utilized by the Seventh Circuit in Arlington II to determine whether a violation has occurred, namely, “(1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.” Id. at 1290. An application of the first three factors to the events in Clarkton convincingly demonstrates the discriminatory effect of Clarkton’s actions upon the plaintiff and other black residents of Bladen County. The undisputed statistical picture leaves no doubt that the black population of Bladen County was adversely affected by the termination of the housing project, as it is that population most in need of new construction to replace substandard housing, and it is the one with the highest percentage of presumptively eligible applicants. Secondly, the evidence adduced at trial discloses beyond peradventure that the actions of the defendants terminating the project resulted directly from the community’s deeply-felt, intentional, invidious racial animus, and the defendants’ alleged interests in pursuing the tainted action were almost wholly pretextual. Finally, the plaintiff, in his complaint, sought only to restore the status quo regarding the consideration" } ]

[ { "docid": "7769946", "title": "", "text": "that community-wide conditions and impacts do not suffice, in the context of an action against a private developer or landlord, to allow plaintiff to carry his burden of proof. . E.g., Hispanics. . In Arlington II, the Seventh Circuit adopted a four-part test, as follows: (1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis, [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ] (3) what is the defendant's interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. 558 F.2d at 1290; see Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir.1982). The third factor is being considered herein (see infra ), and the fourth appears to apply primarily to governmental action. . In this day and age, when racial discrimination is no longer as fashionable as it was a generation or two ago, racists are more cautious than they used to be, and for that reason it is now much more difficult to provide direct or conclusive proof of discriminatory intent. The law would be as blind as the mythical figure of justice if it did not take account of that reality, rejecting the use of circumstantial evidence of intent. . The grant of the motion to dismiss would have that effect directly; the denial of a preliminary injunction would be likely to moot the controversy, and it would thus foreclose plaintiffs indirectly from having any opportunity to prove discrimination. . For example, Title II of the Civil Rights Act of 1964 prohibits discrimination with respect to the enjoyment of goods and services of places of \"public accommodation.” 42 U.S.C. § 2000a. Thus, the property rights of proprietors of most motels, inns, theaters, and restaurants are limited to the extent that they may not operate their establishments in a discriminatory" }, { "docid": "22290456", "title": "", "text": "discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Huntington, 668 F.Supp. at 781 (quoting Arlington Heights II, 558 F.2d at 1290). On the first prong, the court found that the showing of discriminatory effect was “not particularly strong.” Huntington, 668 F.Supp. at 786. Although the judge held that a shortage of rental housing existed, that a disproportionately large percentage of the households using subsidized rental units are minority, and, accordingly, that a “significant percentage” of Matinecock Court tenants would be minority, 668 F.Supp. at 785, he compared the larger absolute number of white poor (22,160) with minority poor (3,671) and concluded that the beneficiaries “might not come disproportionately from minority groups.” Huntington, 668 F.Supp. at 786. On the second factor, Judge Glasser found no proof of segregative intent, deeming this a plus in the Town’s favor. In so holding, he determined that appellants had failed to prove that the Town was motivated by segregative intent when it confined subsidized housing to the urban renewal area. The third prong of Arlington Heights II, he concluded, was satisfied by “legitimate, nondiscriminatory reasons for [the Town’s] conduct.” Huntington, 668 F.Supp. at 786. He deemed the fourth factor to cut in favor of appellants because they were not asking the Town to provide housing. Nevertheless, because the first three factors weighed in favor of appellees, he held that the appellants had failed to demonstrate a prima facie case. In its third rationale, the court applied the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as a final determination on the merits for Title VII disparate treatment cases. According to this formula, if plaintiffs establish a prima" }, { "docid": "18788620", "title": "", "text": "1042, 95 S.Ct. 2656, 45 L.Ed.2d 694, reh’g denied, 423 U.S. 884, 96 S.Ct. 158, 46 L.Ed.2d 115 (1975). Plaintiffs-appellants contend that the District Court’s finding that the referendums did not have a discriminatory impact is clearly erroneous. Although the Arlington II court “refuse^] to conclude that every action which produces discriminatory effects is illegal,” 558 F.2d at 1290, the Seventh Circuit did enumerate four factors for determining whether conduct which produces a discriminatory effect but which did not have a discriminatory intent violates the Fair Housing Act: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. We adopt three of the four factors pronounced in Arlington II. Under the second factor, the Seventh Circuit inquired whether plaintiffs introduced some evidence of discriminatory intent. The court, however, concluded that this factor was “the least important of the four factors.” Id. at 1292. We agree and additionally decide not to consider this factor in our analysis. Since plaintiffs-appellants did not present sufficient evidence to allow the conclusion that the electorate racially discriminated in the referendums, plaintiffs-appellants should not receive “half-credit” for discriminatory intent under their Fair Housing Act claim. Accordingly, we adopt only the first, third, and fourth factors that the Seventh Circuit established in Arlington II. Applying those factors to the present case, we conclude the electorate did not violate the Fair Housing Act. Initially, we reiterate that plaintiffs-appellants have challenged the results in two referendum votes. Under the third factor of the Arlington II test, a court considers the defendant’s interest in taking the challenged action. Given the strong policy considerations underlying referendums, we fear that recognizing a cause of action in such instances goes far beyond the" }, { "docid": "5067114", "title": "", "text": "promote “open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat,” Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2d Cir. 1973), not every action which produces discriminatory effects is illegal, Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d at 1290. “Rather, the courts must use their discretion in deciding whether, given the particular circumstances of each case, relief should be granted under the statute.” Id. The Seventh Circuit Court of Appeals went on to identify four “critical factors” in determining under what circumstances conduct that produces a discriminatory impact but which was taken without discriminatory intent will violate section 3604(a): “(1) how strong is the. plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.” 558 F.2d at 1290. Certain undisputed facts counsel the exercise of this court’s discretion. First, in relocating tenants with unexpired leases from the 590 building, Rana Management gave some 16 tenants, 15 of whom were black, first priority for relocation in the 600 building; five other tenants with expired leases, including four black tenants, were given apartments in the 600 building because suitable apartments were then available. Second, Rana Management has no voice in the rental decisions made by Hofstra University, and approximately 25% of the 590 building’s student tenants are from minority groups resulting from Hofstra’s non-discriminatory rental policies. Finally, United States census figures for the population of. the Town of Hempstead reveal that the minority population of the town is 5.87%. Thus, the 590 building’s minority population, although composed solely of university students, is greater" }, { "docid": "14260177", "title": "", "text": "they were rehabilitated. Plaintiffs’ claim that the City’s conduct delayed their entry into HAP contracts with the KCHA is different from the practices that we have deemed illegal under the Fair Housing Act. Assuming, arguendo, that Section 8 rehabilitation applications of black property owners were processed more slowly than other applications, or that non-black applicants were allowed to enter into HAP contracts more quickly than black applicants, the evidence shows that it was due to other factors such as the use of an unqualified inspector on 15 black projects and a staff not experienced in processing Section 8 applications. In any event, plaintiffs claims are not cognizable under the Fair Housing Act since defendants’ conduct did not directly affect the availability of housing to minorities. Finally, plaintiffs argue that Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (“Arlington Heights II”) stands for the proposition that proof of discriminatory effect alone constitutes a “per se” violation of the Fair Housing Act. In Arlington Heights II, we declined to extend the reach of the Fair Housing Act this far. To reiterate, “although a showing of discriminatory intent is not required under Section 3604(a), we refuse to conclude that every action which produces discriminatory effects is illegal. Such a per se rule would go beyond the intent of Congress and would lead courts into untenable results in specific cases.” In Arlington Heights II, we identified four critical factors to determine under what circumstances conduct that has a discriminatory impact but which was taken without discriminatory intent will violate Section 3604(a). The facts we considered are: (1) the degree of discriminatory effect proved by plaintiffs; (2) whether there was some evidence of discriminatory intent; (3) the defendant’s interest and justification in taking the action complained of; and (4) whether the plaintiff sought to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wished to provide housing. 558 F.2d at 1290." }, { "docid": "17661779", "title": "", "text": "housing for members of a [protected class] or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. (footnote added). The Fourth Circuit adopted the Seventh Circuit’s analysis in Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir.1982). In City of Toledo, Ohio, 782 F.2d at 575, the court adopted three of the four factors enunciated by the Seventh Circuit. The court declined to adopt the second factor relating to evidence of discriminatory intent inasmuch as the Seventh Circuit recognized that it was the least important factor. Id. We adopt the Sixth Circuit’s analysis of disparate impact. We also decline to adopt the second factor of discriminatory intent from the Seventh Circuit’s analysis. Discriminatory intent is the basis of a disparate treatment claim. However, disparate impact claims are premised on policies or practices which are adopted without a discriminatory motive but which are functionally equivalent to intentional discrimination. See Watson, 487 U.S. at 987, 108 S.Ct. at 2785. The three factors we will consider in determining whether a plaintiffs prima facie case of disparate impact makes out a violation of Title VIII are: (1) the strength of the plaintiffs showing of discriminatory effect; (2) the defendant’s interest in taking the action complained of; and (3) whether the plaintiff seeks to compel the defendant affirmatively to provide housing for members of a protected class or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. In applying these factors, we are mindful of the Seventh Circuit admonition that “we must decide close eases in favor of integrated housing.” Arlington Heights II, 558 F.2d at 1294 (“close” case although only two of four factors present). 1.Strength of Plaintiffs Showing of Discriminatory Effect The Secretary relied on national statistics that “at least 71.2% of all U.S. households with four or more persons contain one or more children under the age of 18 years; that at least 50.5% of U.S. families with minor children have four or more individuals; and that at most 11.7% of households" }, { "docid": "17661778", "title": "", "text": "defendants justify the discriminatory effect which has resulted from their challenged actions. Rizzo, 564 F.2d at 146 (unrebutted proof of discriminatory effect alone may justify a federal equitable response). V. The Merits The record reveals that Mountain Side presented evidence relative to legitimate, non-pretextual reasons for its occupancy limitations: (1) sewer systems limitations, and (2) concern over the quality of park life. In Metropolitan Housing Development Corp. v. Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied. 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978), the court set forth four critical factors to be evaluated in determining under what circumstances conduct which produces discriminatory impact but which was taken without discriminatory intent is violative of § 3604(a): (1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standards of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of a [protected class] or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. (footnote added). The Fourth Circuit adopted the Seventh Circuit’s analysis in Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir.1982). In City of Toledo, Ohio, 782 F.2d at 575, the court adopted three of the four factors enunciated by the Seventh Circuit. The court declined to adopt the second factor relating to evidence of discriminatory intent inasmuch as the Seventh Circuit recognized that it was the least important factor. Id. We adopt the Sixth Circuit’s analysis of disparate impact. We also decline to adopt the second factor of discriminatory intent from the Seventh Circuit’s analysis. Discriminatory intent is the basis of a disparate treatment claim. However, disparate impact claims are premised on policies or practices which are adopted without a discriminatory motive but which are functionally equivalent to intentional discrimination. See Watson, 487 U.S. at 987, 108 S.Ct. at 2785. The three factors we will consider" }, { "docid": "5040843", "title": "", "text": "dismissing the complaint as against it. Accordingly, the motion of MLS for summary judgment is granted. SO ORDERED. . This approach has since been adopted by at least one other district court. See Fair Housing Council of Eastern Bergen County v. Eastern Bergen County Multiple Listing Service, 422 F.Supp. 1071 (D.N.J.1976). See also Wagner v. O’Bannon, 274 Cal.App.2d 121, 79 Cal.Rptr. 44 (2d Dist. 1969). . Compare Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7 Cir. 1977), where the Seventh Circuit concluded that although a showing of discriminatory intent is not required to establish a violation of § 3604(a), mere proof of discriminatory effect may not be sufficient. The court identified four factors material to determining whether § 3604(a) has been violated, once a showing of discriminatory impact has been made, and these factors appear equally applicable to § 3604(b): “(1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis, [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.” 558 F.2d at 1290. . The court finds equally unmeritorious plaintiffs’ contention that § 3604(c) “prohibits the printing or publishing of any statement, advertisement or notice which facilitates a discrimi natory sale ...” Plaintiffs’ Memorandum in Opposition (9/30/77), at 20 (emphasis supplied). Although defendant’s listings undoubtedly fall within the statute’s coverage, it is clear that they do not indicate “any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation, or discrimination.” Thus, while § 3604(c) may indeed impose a duty upon MLS to refrain from publishing prohibited notices, see Mayers v. Ridley, 151 U.S.App.D.C. 45, 465 F.2d 630 (1972), there is no authority" }, { "docid": "23395193", "title": "", "text": "discrimination ... was racially motivated.” Black Jack, 508 F.2d at 1184-85. Some additional background is helpful in understanding this issue. This circuit has not decided whether discriminatory effect alone is sufficient to establish a prima facie case. See Halet v. Wend Investment Co., 672 F.2d 1305 (9th Cir.1982). The circuits that have addressed the issue have reached different conclusions. The Third and Eighth Circuits hold that proof of discriminatory effect alone is always sufficient to establish a violation of the Fair Housing Act. Resident Advisory Board, 564 F.2d at 146-48 (“[w]e conclude that, in Title VIII cases, by analogy to Title VII cases, unre-butted proof of discriminatory effect alone may justify a federal equitable response”); Black Jack, 508 F.2d at 1184-85 (“[ejffect, and not motivation, is the touchstone, in part because clever men may easily conceal their motivations, but more importantly, because ... ‘we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme’ ”) (quoting Hobson v. Hansen, 269 F.Supp. 401, 497 (D.D.C.1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969) (en banc)). The Fourth and Seventh Circuits require consideration of four factors: (1) the strength of the plaintiffs showing of discriminatory effect, (2) whether there was some evidence of discriminatory intent, (3) what the defendant’s interest was in taking the action complained of, and (4) whether the plaintiff sought to compel the defendant affirmatively to provide housing for minorities or merely to restrain the defendant from interfering with individual property owners who wished to provide such housing. Smith, 682 F.2d at 1065; Arlington Heights II, 558 F.2d at 1290. It is not necessary under the Fourth and Seventh Circuits’ analysis to demonstrate strong showings as to all four factors. When presented with only two of the four factors pointing toward granting relief, the Seventh Circuit concluded the case was “close” and granted relief, declaring that “we must decide close cases in favor of integrated housing.” Arlington Heights II, 558 F.2d at 1294. Because this circuit to date" }, { "docid": "7769945", "title": "", "text": "applicable to such certifications. . Several other Circuits have adopted a similarly flexible approach to determinations on motions for preliminary injunctions. See, e.g., Benda v. Grand Lodge of International Ass’n, 584 F.2d 308, 314-15 (9th Cir.1978); Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 193-96 (4th Cir.1977): Charlie's Girls v. Revlon, Inc., 483 F.2d 953, 954 (2d Cir.1973) (per curiam). . The court went on to note that it would consider “the extent to which it produces a disparate effect on different racial groups.\" Id. . In fact, none of the parties has cited the Court to any District Court decision in this district. . There is still a question whether HUD will remain a defendant herein. Moreover, discovery could conceivably implicate other governmental entities. . That does not mean that the availability or non-availability in the community of alternative housing opportunities for the affected minorities is not a factor to be taken into account, together with other effects or impacts when suit is brought against private developers or landlords. It means only that community-wide conditions and impacts do not suffice, in the context of an action against a private developer or landlord, to allow plaintiff to carry his burden of proof. . E.g., Hispanics. . In Arlington II, the Seventh Circuit adopted a four-part test, as follows: (1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis, [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ] (3) what is the defendant's interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. 558 F.2d at 1290; see Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir.1982). The third factor is being considered herein (see infra ), and the fourth appears to apply primarily to governmental action. . In this day" }, { "docid": "18651204", "title": "", "text": "is not necessary to show that [the defendant] intended to deprive .... [the plaintiffs] of rights granted by the Act.”). 16. After Arlington Heights I the Fifth Circuit has continued to focus on “racially discouraging effects” and “discriminatory effects”. United States v. Mitchell, 580 F.2d at 791. However, in so focusing, the Fifth Circuit has cited Arlington Heights II and adopted the tort-type test — known as the effects test — articulated by the Seventh Circuit in that case. Instances where the effects test has been applied by the Fifth Circuit have been few. Only the Mitchell case applies the effects test. And it does so in a conclusory manner. In Arlington Heights II the Seventh Circuit held that “ ‘[c]onduct that has the necessary and foreseeable consequences of perpetuating segregation can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment [to fair housing].’ ” Id. (quoting Arlington Heights II, 558 F.2d 1283, 1289). Thus, it reasoned “that at least under some circumstances a violation of section 3604(a) can be established by a showing of discriminatory effect without a showing of discriminatory intent.” Arlington Heights II, 558 F.2d at 1290. 17. In Arlington Heights II, the Seventh Circuit went on to reason that not “every action which produces discriminatory effects is illegal.” 558 F.2d at 1290. The court rejected the per se rule. The Seventh Circuit articulated four factors which can be used to test whether conduct that produces a discriminatory impact, but taken without discriminatory intent, violates the Act. [The factors] are: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. a. Showing of Discriminatory Effect 18. In Arlington Heights II the court noted two" }, { "docid": "5631605", "title": "", "text": "in Village of Arlington Heights v. Metropolitan Housing Development Corp. (Arlington Heights), 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). See Rizzo, 564 F.2d at 146; Mahoney, supra n. 3 at 431-132 (discussing implications of unique procedural posture in Arlington Heights). In Arlington Heights, a non-profit housing developer and several of its potential low— and moderate-income tenants brought suit alleging that the city’s failure to re-zone a 15-acre parcel from single-family to multiple-family classification constituted illegal housing discrimination under the Fourteenth Amendment and the Fair Housing Act. After dismissing plaintiffs’ equal protection claims based on the lower courts’ conclusion that the zoning board had not acted with a discriminatory purpose, Arlington Heights, 429 U.S. at 270-271, 97 S.Ct. 555, the Court remanded the case to the Seventh Circuit for consideration of plaintiffs’ disparate impact claims under Title VIII, id. at 271, 97 S.Ct. 555. On remand, the Seventh Circuit identified four factors to be evaluated in assessing whether conduct which produces a discriminatory impact will violate § 3604(a) of the FHA: (1) the strength of plaintiffs showing of discriminatory effect, (2) whether there is some evidence of discriminatory intent even if insufficient to satisfy the constitutional standards of Washington v. Davis, (3) the defendant’s interest in taking the challenged action, and (4) whether the plaintiff seeks to compel the defendant to affirmatively provide housing for members of a protected class or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Metropolitan Housing Development Corp. v. Arlington Heights (Arlington Heights II), 558 F.2d 1283, 1290 (7th Cir.1977). The Third Circuit took a different route. Relying on the Supreme Court’s decision in Arlington Heights, the court held that proof of discriminatory effect alone would satisfy the prima facie burden for disparate impact claims under the FHA. Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3rd Cir.1977). The Rizzo court then adapted the Griggs elements to the housing context. The court concluded that defendant’s rebuttal case is established if the practice is shown to “serve, in theory and practice, a legitimate, bona" }, { "docid": "18788619", "title": "", "text": "motivations in an equal protection clause context. Furthermore, in this case, the City introduced evidence that concerns regarding the costs of the projects, flooding and sanitary sewer surcharges, and the general advisability of the projects influenced the electorate’s decision. Accordingly, we hold that the District Court did not err in concluding that plaintiffs-appellants had not presented sufficient evidence to justify a finding that the referendum electorate intended to racially discriminate. IV. Plaintiffs-appellants also sought relief under the Fair Housing Act of 1968. In Arlington II, supra at 1290, the Seventh Circuit held that “at least under some circumstances a violation of [the Fair Housing Act] can be established by a showing of discriminatory effect without a showing of discriminatory intent.” See also Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036-37 (2d Cir.1979); Resident Advisory Board v. Rizzo, 564 F.2d 126, 146-48 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); United States v. City of Black Jack, Missouri, 508 F.2d 1179, 1184-85 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694, reh’g denied, 423 U.S. 884, 96 S.Ct. 158, 46 L.Ed.2d 115 (1975). Plaintiffs-appellants contend that the District Court’s finding that the referendums did not have a discriminatory impact is clearly erroneous. Although the Arlington II court “refuse^] to conclude that every action which produces discriminatory effects is illegal,” 558 F.2d at 1290, the Seventh Circuit did enumerate four factors for determining whether conduct which produces a discriminatory effect but which did not have a discriminatory intent violates the Fair Housing Act: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. We adopt three of the four factors" }, { "docid": "23395194", "title": "", "text": "Hobson v. Hansen, 269 F.Supp. 401, 497 (D.D.C.1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969) (en banc)). The Fourth and Seventh Circuits require consideration of four factors: (1) the strength of the plaintiffs showing of discriminatory effect, (2) whether there was some evidence of discriminatory intent, (3) what the defendant’s interest was in taking the action complained of, and (4) whether the plaintiff sought to compel the defendant affirmatively to provide housing for minorities or merely to restrain the defendant from interfering with individual property owners who wished to provide such housing. Smith, 682 F.2d at 1065; Arlington Heights II, 558 F.2d at 1290. It is not necessary under the Fourth and Seventh Circuits’ analysis to demonstrate strong showings as to all four factors. When presented with only two of the four factors pointing toward granting relief, the Seventh Circuit concluded the case was “close” and granted relief, declaring that “we must decide close cases in favor of integrated housing.” Arlington Heights II, 558 F.2d at 1294. Because this circuit to date has not established the standard necessary for a pri-ma facie case, the district court in this case evaluated the evidence under both the Third/Eighth Circuit test and the Fourth/Seventh Circuit test. The court found Hawthorne liable under either test. 618 F.Supp. at 1148-57. The district court found that Hawthorne’s actions clearly had a discriminatory effect, therefore meeting the test used by the Third and Eighth Circuits. The court examined the 1980 census data, the Johnson survey (Exhibit 44), the plaintiffs’ and state intervenors’ summary of the Cal-trans files (Exhibit 46), and the supplemental defendants’ summary of the Caltrans files (Exhibit 214), and concluded that [wjith 1,104 Hawthorne families facing displacement, and at most only 128 units of replenishment housing in the process of construction in Hawthorne, the failure promptly to start construction of the two developments at issue seriously jeopardizes the ability of a large number of minority residents to continue residing in Hawthorne. Thus, the “ultimate effect” of Hawthorne’s actions, like the immediate effect, is racially discriminatory. 618 F.Supp. at 1151. The court also" }, { "docid": "16478218", "title": "", "text": "respect to his “intent” case to entitle him to injunctive relief. In addition, Baxter is likely to succeed on the alternative showing of a § 3604 violation. In Arlington Heights, the Seventh Circuit set out a four-pronged test for review of § 3604 causes of action in which the conduct produced a discriminatory effect, but was taken without discriminatory intent. This is known as an “impact” analysis. Although the Arlington Heights court was faced with racial discrimination under the FHA, the analysis therein is equally applicable to the 1988 handicap amendments to the FHA, and will be applied by this Court in its review of Baxter’s claims. The court held: Four critical factors are discernible from previous cases. They are: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. 558 F.2d at 1290. The court divided the first prong into two kinds of discriminatory effects which can be produced in a facially neutral housing decision. “The first occurs when that decision has a greater adverse impact on one [FHA protected] group than on another. The second is the effect which the decision has on the community involved....” Id. In this action only the first kind of discriminatory effect is applicable. It is evident that the actions of the City adversely impacted handicapped individuals, persons who are HIV-positive, more than non-handicapped individuals. The intent of Baxter was to open a residence for homeless HIV-positive persons. This group of persons has been adversely impacted each day the residence remains unopened. This form of discrimination is strong because all of the persons adversely affected, with the exception of Baxter, himself, are members" }, { "docid": "22290455", "title": "", "text": "mentioned that HHI should be pursuing a different application process. Both parties thus clearly understood that an application for a zoning change had been made. As this court determined in Huntington I, no further petitions, formal or informal, were necessary. Huntington I, 689 F.2d at 393 n. 3. Moreover, the Town’s refusal to amend the zoning code rendered meaningless a request to change the zoning on the Elwood-Pulaski property, as R-3M classifications were re served for property within the urban renewal area, and there were no other multifamily housing designations. In its second holding, the court adopted the four-prong disparate impact test set out in Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287-90 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (Arlington Heights II), and concluded that, even if appellants applied for a rezoning change, they had failed to make out a prima facie case. The court considered: (1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Huntington, 668 F.Supp. at 781 (quoting Arlington Heights II, 558 F.2d at 1290). On the first prong, the court found that the showing of discriminatory effect was “not particularly strong.” Huntington, 668 F.Supp. at 786. Although the judge held that a shortage of rental housing existed, that a disproportionately large percentage of the households using subsidized rental units are minority, and, accordingly, that a “significant percentage” of Matinecock Court tenants would be minority, 668 F.Supp. at 785, he compared the larger absolute number of white poor (22,160) with minority poor (3,671) and concluded that the beneficiaries “might not come disproportionately" }, { "docid": "7769947", "title": "", "text": "and age, when racial discrimination is no longer as fashionable as it was a generation or two ago, racists are more cautious than they used to be, and for that reason it is now much more difficult to provide direct or conclusive proof of discriminatory intent. The law would be as blind as the mythical figure of justice if it did not take account of that reality, rejecting the use of circumstantial evidence of intent. . The grant of the motion to dismiss would have that effect directly; the denial of a preliminary injunction would be likely to moot the controversy, and it would thus foreclose plaintiffs indirectly from having any opportunity to prove discrimination. . For example, Title II of the Civil Rights Act of 1964 prohibits discrimination with respect to the enjoyment of goods and services of places of \"public accommodation.” 42 U.S.C. § 2000a. Thus, the property rights of proprietors of most motels, inns, theaters, and restaurants are limited to the extent that they may not operate their establishments in a discriminatory fashion. . The Court intends to require the parties to expedite discovery in order that the trial will not be unduly delayed." }, { "docid": "18651205", "title": "", "text": "a showing of discriminatory effect without a showing of discriminatory intent.” Arlington Heights II, 558 F.2d at 1290. 17. In Arlington Heights II, the Seventh Circuit went on to reason that not “every action which produces discriminatory effects is illegal.” 558 F.2d at 1290. The court rejected the per se rule. The Seventh Circuit articulated four factors which can be used to test whether conduct that produces a discriminatory impact, but taken without discriminatory intent, violates the Act. [The factors] are: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. a. Showing of Discriminatory Effect 18. In Arlington Heights II the court noted two kinds of racially discriminatory effects which a facially neutral decision about housing can produce.- The first discriminatory effect “occurs when- that decision has a greater adverse impact on one racial group than on another.” Id. The second discriminatory effect recognized by the court is the impact of the housing decision upon the community: if the housing decision perpetuates segregation and thereby prevents interracial association it is invidious under the Fair Housing Act independent of the extent to which it produces a disparate effect on different racial groups. Id. 19. Application of this factor in the instant case weighs in favor of the plaintiff. The decision by the Chickasaw Housing Authority to apply the residency requirement to applicants seeking housing certainly had a greater adverse impact on Negroes as against Caucasians. Chickasaw is populated almost exclusively by Caucasians. Any requirement that a person seeking public housing in Chickasaw already be a resident of Chickasaw will necessarily work to exclude all non-Caucasian people. Moreover, the decision by the Chickasaw Housing Authority to adopt and enforce the residency" }, { "docid": "5631606", "title": "", "text": "strength of plaintiffs showing of discriminatory effect, (2) whether there is some evidence of discriminatory intent even if insufficient to satisfy the constitutional standards of Washington v. Davis, (3) the defendant’s interest in taking the challenged action, and (4) whether the plaintiff seeks to compel the defendant to affirmatively provide housing for members of a protected class or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Metropolitan Housing Development Corp. v. Arlington Heights (Arlington Heights II), 558 F.2d 1283, 1290 (7th Cir.1977). The Third Circuit took a different route. Relying on the Supreme Court’s decision in Arlington Heights, the court held that proof of discriminatory effect alone would satisfy the prima facie burden for disparate impact claims under the FHA. Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3rd Cir.1977). The Rizzo court then adapted the Griggs elements to the housing context. The court concluded that defendant’s rebuttal case is established if the practice is shown to “serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and ... that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Id. at 149. If the defendant introduces evidence that no such alternative course of action could be adopted, the Third Circuit specified that the burden would once again shift to the plaintiff to demonstrate that other such practices are available. Building upon Arlington Heights IIs “four-factor” approach or Rizzo’s “effect-only” standard and borrowing from the growing body of Title VII case law, other circuit courts began to formulate distinct tests for disparate impact claims under the FHA. See Ahrend, supra n. 1, (discussing the unresolved conflict among the circuit courts). Most circuits rejected the Arlington Heights II formulation to the extent that it examined the defendant’s intent as a component of the prima facie case. If effect alone was sufficient under Griggs, it was also sufficient for claims under the FHA. See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 986 (4th Cir.1984) (holding that" }, { "docid": "16478217", "title": "", "text": "409 U.S. 205, 93 S.Ct. 364; Arlington Heights, 558 F.2d 1283. There are two methods of showing a violation of § 3604. The first method is commonly referred to as an “intent” case. That is, plaintiff need only show that the handicap of the potential residents at Our Place, a protected group under the FHA, was in some part the basis for the City’s action. See, e.g., Smith v. Adler Realty Co., 436 F.2d 344, 349-50 (7th Cir.1971) (holding that racial motivation need not be the only reason for the decision if it is an element of that decision); Williamson v. Hampton Management Co., 339 F.Supp. 1146 (N.D.Ill.1972). The evidence adduced at the hearing supports plaintiff's claim that irrational fear of AIDS was at least a motivating factor in the City’s refusal to grant Baxter’s special use permit. Furthermore, due to that fear, the City’s actions were both intentional and specifically designed to prevent persons with HIV from residing at Our Place. Therefore, plaintiff has established a sufficient likelihood of success on the merits with respect to his “intent” case to entitle him to injunctive relief. In addition, Baxter is likely to succeed on the alternative showing of a § 3604 violation. In Arlington Heights, the Seventh Circuit set out a four-pronged test for review of § 3604 causes of action in which the conduct produced a discriminatory effect, but was taken without discriminatory intent. This is known as an “impact” analysis. Although the Arlington Heights court was faced with racial discrimination under the FHA, the analysis therein is equally applicable to the 1988 handicap amendments to the FHA, and will be applied by this Court in its review of Baxter’s claims. The court held: Four critical factors are discernible from previous cases. They are: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ]; (3) what is the defendant’s interest in taking the action complained of; and (4)" } ]

[ { "docid": "7042169", "title": "", "text": "trial court may revoke its order granting probation whenever facts are discovered, which were unknown to the court at the time probation was granted, which affect the defendant’s suitability for community supervision rather than imprisonment. In Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968), the same issue was presented to this court. We held that a trial court has the discretion to revoke probation where facts are later discovered which, if known by the trial judge, would have led him to deny probation in the first instance. To hold otherwise would lead to an absurd result. “. . . [T]he judge would be forced into the position of saying that while he is quite convinced that the best interests of both the public and the defendant would be served were the defendant not on probation, he is irrevocably bound by his initial, albeit erroneous, grant of probation” (Trueblood Longknife v. United States, 381 F.2d at 17 at pg. 20). Appellant has argued that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) have “thoroughly undermined” the holding in Trueblood Longknife. These cases stand for the principle that a defendant is entitled to procedural due process of law in probation or parole revocation proceedings. No question has been raised in the matter before us that the defendant was denied due process in the conduct of the revocation proceedings. It is true, as appellant argues, that in the Morrissey and Gagnon cases the United States Supreme Court has rejected the right-privilege distinction in parole and probation revocation proceedings. Had the court revoked probation in the instant matter without affording defendant notice of the allegations against him, the right to counsel, a hearing, the right to confrontation or the right to present evidence in his behalf, we would have been required to determine if Morrissey or Gagnon were applicable under such circumstances. (See United States v. Dane, 570 F.2d 840," } ]

[ { "docid": "886959", "title": "", "text": "1064, 30 L.Ed. 220 (1886); United States v. Sacco, 428 F.2d 264 (9th Cir. 1970). We find no violation of this standard here. Appellant’s second contention is likewise without merit. Probation of a convicted defendant is a matter of grace and not a matter of right. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Kaplan v. United States, 234 F.2d 345 (8th Cir. 1956); Kirsch v. United States, 173 F.2d 652 (8th Cir. 1949). The granting of probation, and the conditions upon which it is granted as well as its revocation are matters purely within the discretion of the trial court and are reviewable only upon abuse of discretion. See e. g., Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967); United States v. D’Amato, 429 F.2d 1284 (3rd Cir. 1970); United States v. Clanton, 419 F.2d 1304 (5th Cir. 1969). We find no abuse of discretion. The conditions were clearly imposed upon Appellant. Furthermore, there is no dispute that he violated the first two. The heart of his argument appears to be that, since he could not be subsequently prosecuted if he failed to register, the condition was improper. While we agree that defendant could not subsequently be prosecuted if he failed to register, Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); United States v. Crocker, 435 F.2d 601 (8th Cir. 1971); we do not view the imposition of such a condition being improper or constituting an abuse of discretion under the facts in this case. Because under normal circumstances a defendant could not be prosecuted for failure to perform an act does not make that act an illegal condition of probation. Cf. Whaley v. United States, 324 F.2d 356 (9th Cir. 1963); Barnhill v. United States, 279 F.2d 105 (5th Cir. 1960); Kaplan v. United States, supra. Affirmed. . 50 U.S.C.App. § 462 provides insofar as relevant: . For an excellent discussion of prosecuto-rial discretion see Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967). . In addition to tlie usual conditions" }, { "docid": "4328268", "title": "", "text": "States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932). It would have been within the court’s discretion to deny probation at the outset on the basis of either or both the prior record or the misrepresentation. Thus, given the warning, it was also within the court’s discretion to revoke the probation on the same basis. The order revoking probation is affirmed. . Specifically, defendant alleges violations of rule 11(c)(1), (3), (4), 11(d), 11(f), and 11(g). . See Rule 1101(d)(3) of the Federal Rules of Evidence. . In the instant case, defendant did not even challenge his underlying conviction at the probation revocation hearing, but has raised it for the first time on this appeal. It is settled that we will not consider issues not raised in the trial court absent extraordinary circumstances. . Defendant points out that the two special conditions were typed on to the printed form in English while the rest of the form was in Spanish. Because it is apparently conceded that defendant could read Spanish, defendant must have known from reading the form that by signing it at the bottom he was agreeing to all the conditions contained therein. Therefore, he must have found a way to inform himself as to what those condition's were. At any rate, defendant never stated at the revocation hearing that he was unable to understand what was written in Form 7. Defendant also refers to the petition for revocation of probation submitted to the court after defendant’s prior record was discovered, wherein the condition at issue was described as “no prior arrest record” (emphasis added). We fail to see how that misstatement prejudiced defendant, and defendant has not so informed us. . Defendant does not refer to section 3653, 18 U.S.C. § 3653, as did the defendant in United States v. Ross, supra. If he had, we would have referred him to Judge Wisdom’s well-chosen words in that opinion at 942 — 43." }, { "docid": "1991040", "title": "", "text": "knowledge that he would continue to engage in illegal activities. However, the cases themselves suggest a narrower basis for finding “fraud on the court” than the wording in Dick would suggest. In United States v. Torrez-Flores, 624 F.2d 776 (7th Cir.1980), the defendant had represented that he had no criminal record. The sentencing judge warned the defendant that if his representation was false, his probation would be revoked. In Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir.1967), cert. denied, sub nom. Longknife v. United States, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968) the court found that the defendant knowingly concealed a prior bankruptcy from his probation officer. Rather than lying about his past history, Yancey made a subjective representation about himself. To truly examine the verity of the statement we would need to know just how much trouble he used to get into — or whether he only defined trouble as getting into the hands of the police. This is not to excuse such behavior. A sentenc ing judge is entitled to, and often must, rely on the statements of the defendant. We note only that it is difficult to characterize such statements as a “fraud on the court.” The government urges that we find that the second order was not required and that the district court properly revoked probation in its first order. Although Dick represented a valiant effort to divine congressional intent from the unclear and sometimes conflicting probation statutes, we are persuaded that a broader reading is necessary to give meaning to the policies behind the Act. In addition, we find that subsequent congressional action in revising the statutes, clarified existing law. We therefore conclude that the Probation Act did not limit judicial authority to revoke probation to acts committed within the probation period. Federal judicial power to revoke probation derives solely from Congress. Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 173, 100 L.Ed. 62 (1955). Thus, to determine whether a court may revoke probation for an offense which occurred prior to the commencement of the period of" }, { "docid": "15156454", "title": "", "text": "243 So.2d 189 (Fla.App.), cert. denied, 247 So.2d 63 (Fla.1971). Similarly, had appellant engaged in criminal activity prior to February 8, 1973, which of course could not technically constitute a violation of a condition of probation (appellant not yet being placed on probation), and had the state court granted probation on February 8, 1973, unaware of the prior criminal activity, the subsequent revocation of probation for criminal misconduct predating probation would clearly have been constitutional. See United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir.1971). In sustaining the revocation against constitutional challenge, we do not imply that probation may be constitutionally revoked for violating any condition of probation regardless of whether the probationer has had notice of his probationary status and of the conditions thereof. Where an act or omission, otherwise lawful, is reprehensible only because it violates a condition of probation, such as failing to report “arrests” (Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 [1973]), failing to report personally and to report changes of address to government officials (United States v. Foster, 500 F.2d 1241 [9th Cir.1974]), or attending horse races (United States v. Queen, 529 F.2d 518 [4th Cir.1976]), then notice of the probationary status and the conditions thereof would be constitutionally required to underlie probation revocation based on violating those conditions. Cf. Bouie v. City of Columbia, 378 U.S. 347, 362, 84 S.Ct. 1697, 1707, 12 L.Ed.2d 894, 905 (1964); Whitehead, supra, 155 F.2d at 462. Affirmed. . Originally, the state court was to have ruled on the motion on January 11, 1973, but because appellant was then absent delayed its ruling until February 8, 1973. Appellant’s attorney was present in court on both January 11 and February 8. . The state court earlier (on June 22, 1973) had sustained the motion to revoke, but four days later vacated that order because appellant had not been afforded procedural due process prior to revocation. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). There is no claim that the revocation hearing underlying the revocation order" }, { "docid": "1937161", "title": "", "text": "altering sentence, we can easily conceive of circumstances in which a court might attempt to increase the defendant’s punishment after months or years of probation had been served. A formal rule against any increase in penalty after service of probation has commenced will prevent any such occurrences and insure the defendant the requisite degree of finality in the disposition of his case. Of course there are recognized exceptions to these restrictions on a court’s power to alter sentence once the defendant has commenced to serve his period of probation. A court may always correct an illegal sentence, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1946); Fed.R.Crim.P. 35; United States v. Becker, 536 F.2d 471 (1st Cir. 1976). A court may also exercise the discretion granted it by statute to revoke probation and impose sentence, 18 U.S.C. § 3651 and § 3653, although that discretion may not be exercised in an arbitrary manner. In re Whitney, 421 F.2d 337, 338 n. 3 (1st Cir. 1970). In the present case the district court never mentioned revocation of probation at the February 15 hearing and appeared to take the position that the decision to correct its mistake was within its inherent power if accomplished before sentence was imposed and judgment entered. The government argued on appeal, however, that the court’s action can be sustained on the theory that appellant “fraudulently misrepresented certain relevant facts” at the disposition hearing. See, e. g., Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967); United States v. Ross, 503 F.2d 940, 943 (5th Cir. 1974). Neither the record in this case nor the government’s brief suggests that defendant committed any violations of the conditions of probation. We need not decide whether we agree with those courts which have held fraudulent misrepresentation to be a sufficient basis for revoking probation even in the absence of any post-probation violation. But see ABA Standards for Criminal Justice, Standards Relating to Probation § 5.1 (Approved draft 1970) (“Violation of a condition is both a necessary and a sufficient ground for the revocation of" }, { "docid": "16581508", "title": "", "text": "public as well as the defendant will be served thereby * * * upon such terms and conditions as the court deems best.” Judicial discretion is the fabric from which probation is cut and tailored. See e. g. Berra v. United States, 8 Cir., 1955, 221 F.2d 590 affirmed 1956, 351 U.S. 131, 76 S.Ct. 685. We think defendant’s argument erected on the restitution clause of § 3651 lacks persuasive force. United States v. Stoehr, 3 Cir., 1952, 196 F.2d 276, strongly pressed on us by defendant, contains a dissimilar condition of probation requiring payment of taxes within ninety days after probation commenced upon the defendant’s release from prison — he having been sentenced to imprisonment on other counts. Determination of tax liability and efforts to pay taxes are distinguishable. But effort to pay is what was required of Steiner. After reading the record made during the probation revocation hearings we are satisfied that the district judge’s discretion was again unabused. Burns v. United States, 1932, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266, instead of providing the comfort which defendant seems to find in it, lends strength to our approval of the proceeding held below. See also: Kirsch v. United States, 8 Cir., 1949, 173 F.2d 652. Other points urged by defendant display a robust abandon of the record revealing ample, timely and explicit notice of, and alleged grounds for, revocation, as well as Steiner’s unqualified declaration that he was going to act as his own attorney. Indeed he questioned some of the five witnesses who testified in support of the petition to revoke probation. By sorting out this printed record it reveals that the first stage of the revocation proceeding began April 24, 1956 and was resumed May 31, 1956. The first extensive hearing adequately demonstrates Steiner’s acute and astute grasp of the situation and, the continuance given him for the express purpose of reflection. The order appealed revoking probation is affirmed. Affirmed. . It was also ordered that the $5000 deposited by defendant as bail “be applied as part payment of fine, and that execution of" }, { "docid": "1991044", "title": "", "text": "court to issue an arrest warrant and the procedures after arrest. Although a literal reading of the two statutes would limit judicial power to revoke probation to the probation period, many courts have allowed revocation for acts occurring prior to the commencement of probation. See United States v. Dozier, 707 F.2d 862 (5th Cir.1983) (probation could be revoked for jury tampering); United States v. Cartwright, 696 F.2d 344 (5th Cir.1983) (probation could be revoked for suspicious activities while free on appeal bond, but only with sufficient notice); United States v. Torrez-Flores, 624 F.2d 776 (7th Cir.1980) (probation could be revoked for lying at sentencing about existence of criminal record); United States v. Tucker, 524 F.2d 77 (5th Cir.1975), cert denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976) (probation could be revoked for act committed during pendency of appeal); United States v. Ross, 503 F.2d 940 (5th Cir.1974) (probation could be revoked for act committed hours after sentencing); Trueblood Longknife, 381 F.2d 17 (probation could be revoked for withholding pertinent facts from court and probation officer). But see United States v. Wright, 744 F.2d 1127 (5th Cir.1984) (probation could not be revoked for an offense committed while on parole). In Dick, we determined that section 3653 was the sole source of revocation authority. We read section 3651 literally to limit any authority provided therein to revocation of the conditions of probation. We determined that this was necessary to give “full meaning and effect” to all provisions in both sections of the Probation Act; if the authority to revoke probation derived from section 3651, the second provision of Section 3653, authorizing revocation of probation, would be meaningless. Dick thus adopted a literal and narrow reading of the probation revocation authority. The Third Circuit has rejected our approach in Dick. United States v. Veatch, 792 F.2d 48 (3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). There, the court concluded that the authority to revoke probation is not limited to the probation period. Rather than a literal reading of the statutes involved, the Veatch court" }, { "docid": "7042170", "title": "", "text": "has argued that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) have “thoroughly undermined” the holding in Trueblood Longknife. These cases stand for the principle that a defendant is entitled to procedural due process of law in probation or parole revocation proceedings. No question has been raised in the matter before us that the defendant was denied due process in the conduct of the revocation proceedings. It is true, as appellant argues, that in the Morrissey and Gagnon cases the United States Supreme Court has rejected the right-privilege distinction in parole and probation revocation proceedings. Had the court revoked probation in the instant matter without affording defendant notice of the allegations against him, the right to counsel, a hearing, the right to confrontation or the right to present evidence in his behalf, we would have been required to determine if Morrissey or Gagnon were applicable under such circumstances. (See United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1978).) Appellant also claims that the order of the court — that the defendant serve the remainder of the five-year sentence — was “an increase in punishment forbidden by the Fifth Amendment.” Again, we disagree. The original order of the court was that appellant be imprisoned for five years. The trial judge suspended all but the first six months of this sentence. He did so because under the facts then known to him, he was satisfied the ends of justice and the best interest of the public would be served by placing appellant on probation. However, when the trial judge learned that he had been misled into determining that appellant was a suitable candidate for probation by a fraudulent concealment of his continuing criminal conduct, including the betrayal of the employer who spoke up for him at the sentencing hearing, the original and not an increased sentence was ordered into effect. AFFIRMED. . The trial court has broad discretion in determining whether to grant probation, and may consider anything concerning the defendant’s" }, { "docid": "23384478", "title": "", "text": "was clearly no abuse of discretion here. As long ago as 1940, this Court observed, in dictum, that a district court had acted properly in revoking the probation of a prisoner who was discovered to be in possession of narcotics while awaiting transportation to prison. Cline v. United States, 5 Cir. 1940, 116 F.2d 275, 276 (per curiam) (dictum). At least two other Courts of Appeals have also recorded their rejections of the appellant’s position: United States ex rel. Sole v. Rundle, 3 Cir. 1971, 435 F.2d 721; Longknife v. United States, 9 Cir. 1967, 381 F.2d 17. Although Run-dle involved a state prosecution and Longknife was a federal matter, both appear to sanction revocation of probation before the time the probation actually begins. In both cases probation was granted as the result of a misrepresentation by the defendant to the sentencing court. Revocation was held to be proper, since probation would not have been granted if the court had had accurate information at the time of sentencing. See Rundle, 435 F.2d at 724-725; Longknife, 381 F.2d at 20. Since the defendant here was arrested on state charges the day of sentencing, the court can hardly be thought to have abused its discretion in revoking probation once Ross had pleaded guilty to those charges. Only a narrow and proscriptive reading of Sections 3651 and 3653 could yield the contrary result urged by the appellant. We do not so read these provisions. Sound policy requires that courts should be able to revoke probation for a defendant’s offense committed before the sentence commences; an immediate return to criminal activity is more reprehensible than one which occurs at a later date. III. To conclude that it was not improper per se for the district court to revoke the appellant’s probation is not to hold that the hearing at which revocation was ordered was properly conducted. The appellant asserts, first, that Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, establishes a right to the assistance of counsel at every critical stage of a criminal proceeding, including a hearing on" }, { "docid": "16788432", "title": "", "text": "aff’d, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974): It would appear to us that it. would take about the same amount of time for the District Judge to listen to the recording as it would require for him to preside at the evidentiary hearing. . The vital consideration is that the same person who is doing the sentencing conduct the hearing. See Morgan v. United States, 298 U.S. 468, 480-81, 56 S.Ct. 906, 80 L.Ed. 1288 (1936). In Morrissey v. Brewer, supra, 408 U.S. at 487-88, 92 S.Ct. 2593, the Court assumed that the same body which determined whether a parolee violated his parole would also determine whether the violation warranted revocation of parole. See Gagnon v. Scarpelli, supra, 411 U.S. at 784, 93 S.Ct. 1756 (endorsing Morrissey for probation revocation purposes and noting the difficult factual judgment which must be made in determining whether a probation or parole violation warrants revocation). In both Morrissey and Gagnon there were only two factual judgments to be made 1) whether a probationer or parolee violated the terms of his parole; 2) whether parole or probation should be revoked. In a federal probation revocation setting, the judge has the additional authority to re-sentence the violator to serve less prison time than originally given. The need for a fully informed judgment is obvious. See United States v. Segal, 549 F.2d 1293, 1298 (9th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977). We are aware that a number of courts have upheld sentencing by a different judge than the one who tried the case in the first place. See F.R.Crim.Pro. 25; United States v. McCallie, 554 F.2d 770, 773-74 (6th Cir. 1977) and cases cited; United States v. Bowser, 497 F.2d 1017, 1019 (4th Cir.), cert. denied 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974); United States v. Bakewell, 430 F.2d 721, 722 (5th Cir.), cert. denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384 (1970). However, these courts have noted that it is “the better practice” for the judge who presided at trial" }, { "docid": "2082530", "title": "", "text": "the family with his paychecks. Appellant, however, failed to make the required reports to the probation officer, and he was finally arrested in San Francisco on April 28, 1972. At the conclusion of the hearing, the District Court found that Lara had violated the conditions of his probation “[b]y failing to keep the probation officer who had supervision in his case advised of his place of residence and by failing to make the required monthly reports required of him.” The sole issue on appeal is whether the District Court abused its discretion in vacating and setting aside its original grant of probation and committing appellant to the custody of the Attorney General. We affirm. The District Court has broad discretion in granting or revoking probation. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932) ; Longknife v. United States, 381 F.2d 17 (9th Cir. 1967). We are unable to conclude that the District Judge abused his broad discretion in revoking probation. Appellant’s counsel does not take issue with any of the above cases, but suggests that under the American Bar Association’s Standards Relating to Probation, appellant should receive favorable consideration. We commend those standards to the attention of the District Judge. Their applicability in the instant case is a matter for him to determine. Judgment affirmed. . Approved Draft, 1970. PART V. REVOCATION OF PROBATION AND OTHER SANCTIONS 5.1 Grounds for and alternatives to probation revocation. (a) Violation of a condition is both a necessary and a sufficient ground for the revocation of probation. Revocation followed by imprisonment should not be the disposition, however, unless the court finds on the basis of the original offense and the intervening conduct of the offender that: (i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked. (b) It would be appropriate for standards to be formulated as" }, { "docid": "23024959", "title": "", "text": "was made on legal rather than factual grounds, thus eliminating any problems with regard to “staleness” that could result in prejudice. See Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). It must be emphasized that the trial judge is given a great deal of latitude in revocation proceedings. In order to justify a revocation order “[a] 11 that is required is enough evidence, within a sound judicial discretion, to satisfy the district judge that the conduct of the probationer has not met the conditions of the probation.” United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973). See also United States v. D’Amato, 429 F.2d 1284, 1286 (3d Cir. 1970); United States v. Nagelberg, 413 F.2d 708, 709-710 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct 569, 24 L.Ed.2d 502 (1970). Absent an abuse of discretion, the finding of a trial court in a revocation hearing cannot be disturbed. Burns v. United States, 287 U. S. 216, 222-223, 53 S.Ct. 154, 77 L.Ed. 266 (1932); United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971). See also United States v. Shapiro, 491 F.2d 335, 336 (6th Cir. 1974); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973). No such abuse is apparent here with regard to the state statutes of limitation. We believe that the facts of this case support the trial court’s actions and conclusions. Appellant’s final allegations of error concern the trial court’s admission of the sales/use tax returns into evidence and the overall sufficiency of the evidence. We find these contentions to be lacking in merit and do not require discussion. Our careful examination of the issues raised on this appeal convinces us that the trial court did not err in revoking appellant’s probation. Affirmed. . In relevant part 18 U.S.C. § 3653 (1970) states: “At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being sujiervised * * * may issue a warrant" }, { "docid": "886958", "title": "", "text": "difference between the crime of draft evasion and counseling draft evasion; and that it would be difficult to convict those merely advocating draft evasion for political or personal reasons. It does appear that there is a basic difference in the various crimes set forth in § 462. This, however, would not excuse non-enforcement of the provisions of that section by prosecuting officials ; but the failure to enforce all criminal laws is certainly ho justification for a judicial sanction of enforcing none. In any event discrimination resulting from the practice complained about by the appellant has not prejudiced him and constitutes no invidious discrimination. As to Appellant's first contention, the law is clear that a prosecutor may exercise discretion in deciding who should be prosecuted as long as he does not deliberately discriminate be- tween persons in similar circumstances based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Oyler v. Boles, Warden, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1961); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); United States v. Sacco, 428 F.2d 264 (9th Cir. 1970). We find no violation of this standard here. Appellant’s second contention is likewise without merit. Probation of a convicted defendant is a matter of grace and not a matter of right. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Kaplan v. United States, 234 F.2d 345 (8th Cir. 1956); Kirsch v. United States, 173 F.2d 652 (8th Cir. 1949). The granting of probation, and the conditions upon which it is granted as well as its revocation are matters purely within the discretion of the trial court and are reviewable only upon abuse of discretion. See e. g., Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967); United States v. D’Amato, 429 F.2d 1284 (3rd Cir. 1970); United States v. Clanton, 419 F.2d 1304 (5th Cir. 1969). We find no abuse of discretion. The conditions were clearly imposed upon Appellant. Furthermore, there is no dispute that he violated the first two. The heart" }, { "docid": "4328266", "title": "", "text": "is “to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.” Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266 (1932) (citation omitted). The Supreme Court has emphasized that in the administration of the probation statute the trial judge has “an exceptional degree of flexibility” in determining whether to grant or revoke probation and on what terms. Id. This court has noted that the statute empowering the court to grant probation “upon such terms and conditions as the court deems best,” 18 U.S.C. § 3651, permits “a broad discretion in imposing conditions of probation.” United States v. Weber, 437 F.2d 1218, 1220 (7th Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971). In the case at bar, the trial judge decided that it would be in the best interest of the public and the defendant to grant the probation, if defendant was truthfully representing that he had no prior record. That action was perfectly consistent with both the purpose of the probation statute and the statutory prerequisite. We have seen no authority that supports defendant’s contention that revocation for conduct occurring prior to the probationary period is forbidden. In fact, the cases that we have seen are to the contrary. United States v. Dane, 570 F.2d 840 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978); United States v. Ross, 503 F.2d 940 (5th Cir. 1974); United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir. 1971); Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968). The language of section 3651, 18 U.S.C. § 3651, in no way suggests that only future conduct is to be considered. The Supreme Court has stated that the scope of discretion conferred for the purpose of granting probation is not narrowed in providing for revocation. Burns v. United" }, { "docid": "4328267", "title": "", "text": "was truthfully representing that he had no prior record. That action was perfectly consistent with both the purpose of the probation statute and the statutory prerequisite. We have seen no authority that supports defendant’s contention that revocation for conduct occurring prior to the probationary period is forbidden. In fact, the cases that we have seen are to the contrary. United States v. Dane, 570 F.2d 840 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978); United States v. Ross, 503 F.2d 940 (5th Cir. 1974); United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir. 1971); Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968). The language of section 3651, 18 U.S.C. § 3651, in no way suggests that only future conduct is to be considered. The Supreme Court has stated that the scope of discretion conferred for the purpose of granting probation is not narrowed in providing for revocation. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932). It would have been within the court’s discretion to deny probation at the outset on the basis of either or both the prior record or the misrepresentation. Thus, given the warning, it was also within the court’s discretion to revoke the probation on the same basis. The order revoking probation is affirmed. . Specifically, defendant alleges violations of rule 11(c)(1), (3), (4), 11(d), 11(f), and 11(g). . See Rule 1101(d)(3) of the Federal Rules of Evidence. . In the instant case, defendant did not even challenge his underlying conviction at the probation revocation hearing, but has raised it for the first time on this appeal. It is settled that we will not consider issues not raised in the trial court absent extraordinary circumstances. . Defendant points out that the two special conditions were typed on to the printed form in English while the rest of the form was in Spanish. Because it is apparently conceded that defendant could read Spanish, defendant must have known" }, { "docid": "1991039", "title": "", "text": "“As I have been getting older, I have been staying out of trouble.” The judge did not hold a hearing on remand, but found that he had been misled by Yancey’s statement at sentencing, and reimposed his order revoking probation based on the “fraud on the court” exception approved in Dick. Yancey now appeals from this order. II. Yancey argues that the district court was required to hold a hearing on remand to determine whether he had committed fraud at sentencing sufficient to allow the court to revoke probation for a preprobation offense. The issue on remand was whether Yancey had committed “fraud at sentencing” to permit revocation even in light of Dick. While finding that revocation for a preprobation offense was generally impermissible, Dick characterized other cases allowing such revocation as creating an exception to the rule. Those cases established the limited exception that a court could revoke probation for a preprobation offense when the court had imposed sentence without full knowledge of the facts. Clearly, the district court here sentenced Yancey without the knowledge that he would continue to engage in illegal activities. However, the cases themselves suggest a narrower basis for finding “fraud on the court” than the wording in Dick would suggest. In United States v. Torrez-Flores, 624 F.2d 776 (7th Cir.1980), the defendant had represented that he had no criminal record. The sentencing judge warned the defendant that if his representation was false, his probation would be revoked. In Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir.1967), cert. denied, sub nom. Longknife v. United States, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968) the court found that the defendant knowingly concealed a prior bankruptcy from his probation officer. Rather than lying about his past history, Yancey made a subjective representation about himself. To truly examine the verity of the statement we would need to know just how much trouble he used to get into — or whether he only defined trouble as getting into the hands of the police. This is not to excuse such behavior. A sentenc ing judge is" }, { "docid": "12563592", "title": "", "text": "restore Higdon’s - self-esteem, integrate him into a working environment, and inculcate in him a sense of social responsibility without driving him into penury and deceit. IV. THE EFFECT OF VIOLATIONS OF IMPERMISSIBLE CONDITIONS The district court judge has broad discretion to revoke probation for violation of its conditions. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); United States v. Dane, 570 F.2d 840 (9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978). Our inquiry, then, is limited to whether there was an abuse of discretion in Higdon’s case amounting to a fundamental defect remediable by a section 2255 motion. The government argues that Higdon’s probation may be revoked for failure to meet his full charitable work requirement even if that requirement was part of an impermissible set of conditions. The contention is that Higdon’s proper response to impermissible probation conditions was to seek modification of them under rule 35 of the Federal Rules of Criminal Procedure (the judge may correct an illegal sentence at any time) or the fourth paragraph of 18 U.S.C. § 3651 (1976) (the judge may modify any condition of probation). Until Higdon sought to modify the conditions, the government contends, he was bound by them. The government’s argument proves too much. It is true that self-help, and particularly deceitful self-help, is not the proper response to unreasonable probation terms. But the reasonableness of revocation on the unusual facts of this case is related to the reasonableness of the probation terms. On these facts, we hold that the terms were unreasonable, and that revocation must be re-examined in that light. The government next argues that Higdon’s probation was revoked not only for failing to work the requisite number of hours, but also for filing late monthly time sheets and falsifying probation records. It contends that these reporting violations were adequate independent grounds for revocation. We agree that a judge may revoke probation for noncompliance with reporting requirements. United States v. Lara, 472 F.2d 128 (9th Cir. 1972). However, the trial judge’s decision to revoke" }, { "docid": "10351591", "title": "", "text": "435 F.2d 721 (3rd Cir.1971) and Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir.1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968). Finally, in Tucker, 524 F.2d at 78, we upheld a revocation of future probation where the probationer was only alleged to have been involved in illegal activities during the pendency of his appeal. Cartwright contends that the district court was not empowered to revoke his probation because the basis upon which it was actually revoked — travel to the Grand Cayman Islands — is “non-criminal” activity. As a result he maintains that 18 U.S.C. § 3653 is required to be exclusively read in that the violation must have occurred during the actual probation period. The gist of this argument is that because travel to the Grand Cayman Islands is not of itself unlawful, he committed no crime in going there and therefore Ross’ rationale does not apply to his situation. While this is certainly an interesting argument it has no basis in fact because Cartwright’s violation here was a crime. As a consequence, Ross forecloses this argument. It is misleading and just plain wrong for Cartwright to paint his unauthorized and unreported excursion to the Grand Cayman Islands as non-criminal. The fact is that it is not. The district court viewed Cartwright’s travel to the Grand Cayman Islands as a violation of the “conditions of his probation with supervision” and an act in “contravention of [its] travel order of July 17, 1979.” Violation of a court’s travel order or the condition of an appeal bond is a serious offense. Indeed, we have previously recognized that “the willful breach of a court order imposing a condition of release pending appeal constitutes a contempt of court. United States v. Williams, 622 F.2d 830, 836 (5th Cir.1980) (en banc). Contempt is a crime. Id. at 837, n. 13 (collecting cases). “[I]t is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522, 528 (1968)." }, { "docid": "10351590", "title": "", "text": "that 18 U.S.C. § 3653 “is not by its terms exclusive.” Id. In “well-chosen words,” see, United States v. Torrez-Flores, 624 F.2d 776, 784, n. 5 (7th Cir.1980) (observing that probation may be revoked before the period commences), he reasoned that “[s]ound policy requires that courts should be able to revoke probation for a defendant’s offense committed before the sentence commences; an immediate return to criminal activity is more reprehensible than one which occurs at a later date.” 503 F.2d at 943. But Cf., United States v. O’Quinn, 689 F.2d 1359 (11th Cir.1982). The holding in Ross was based upon our decision in Cline v. United States, 116 F.2d 275, 276 (5th Cir.1940) that a district court had acted properly in revoking the probation of a prisoner who was discovered to be in possession of narcotics while awaiting transportation to prison. We also pointed out in Ross that two other appellate courts had rejected a similar contention that probation could not be revoked before it began. See e.g. United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir.1971) and Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir.1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968). Finally, in Tucker, 524 F.2d at 78, we upheld a revocation of future probation where the probationer was only alleged to have been involved in illegal activities during the pendency of his appeal. Cartwright contends that the district court was not empowered to revoke his probation because the basis upon which it was actually revoked — travel to the Grand Cayman Islands — is “non-criminal” activity. As a result he maintains that 18 U.S.C. § 3653 is required to be exclusively read in that the violation must have occurred during the actual probation period. The gist of this argument is that because travel to the Grand Cayman Islands is not of itself unlawful, he committed no crime in going there and therefore Ross’ rationale does not apply to his situation. While this is certainly an interesting argument it has no basis in fact because Cartwright’s violation here" }, { "docid": "1991043", "title": "", "text": "probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. * * * As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. Any authority conferred by section 3653 is necessarily limited by the initial phrase, “At any time within the probation period” (emphasis added). However, section 3653 appears directed to the more specific power of the court to issue an arrest warrant and the procedures after arrest. Although a literal reading of the two statutes would limit judicial power to revoke probation to the probation period, many courts have allowed revocation for acts occurring prior to the commencement of probation. See United States v. Dozier, 707 F.2d 862 (5th Cir.1983) (probation could be revoked for jury tampering); United States v. Cartwright, 696 F.2d 344 (5th Cir.1983) (probation could be revoked for suspicious activities while free on appeal bond, but only with sufficient notice); United States v. Torrez-Flores, 624 F.2d 776 (7th Cir.1980) (probation could be revoked for lying at sentencing about existence of criminal record); United States v. Tucker, 524 F.2d 77 (5th Cir.1975), cert denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976) (probation could be revoked for act committed during pendency of appeal); United States v. Ross, 503 F.2d 940 (5th Cir.1974) (probation could be revoked for act committed hours after sentencing); Trueblood Longknife, 381 F.2d 17 (probation could be revoked for withholding pertinent facts from court" } ]

[ { "docid": "18736060", "title": "", "text": "necessary that such fees should be borne equally. Resolution of what portion of the fees should be borne by each creditor involves addressing the issue of bad faith. The term, “bad faith”, is not defined in the Bankruptcy Code. There are at least two views as to what constitutes bad faith. One line of authority uses “bad faith” in the sense of malice, or ill will. See, Camelot, Inc. v. Hayden, supra; In re Camelot, Inc., supra. These cases adopt the Black’s Law Dictionary definition of bad faith, citing examples such as “where the petition is ill advised or motivated by spite, malice, or a desire to embarrass the debtor. 2 Collier on Bankruptcy, ¶ 303.12 (15th ed. 1979).” Camelot, Inc. v. Hayden, supra, at page 411. There is a second line of authority which looks to whether the creditor’s actions were an improper use of the Bankruptcy Code as a substitute for customary collection procedures. In re Allen Rogers and Co., supra; In re SBA Factors of Miami, Inc., supra. The court in In re Grecian Heights Owners Association, 27 B.R. 172 (Bankr.Ore.1982), tried to adopt an “objective test” of bad faith by making a determination measured by what a reasonable person would have believed or would have done. However, it appears to me that a determination based upon such a factor is, itself, subjective. In the final analysis, whether a party acted in bad faith or not is essentially a question of fact to be determined by the court. The evidence here reflects the Involuntary Petition was filed because these three petitioners were upset over non-payment of wages, and this was their effort to collect those wages. The owners of Advance Press were making every effort to keep the business afloat, pay their bills, and put the business in a posture where these wages could be paid. I found on the record at the conclusion of trial that one petitioning creditor, Douglas T. Smith, was not in bad faith in participating in the Involuntary Petition. The reason for this is that while he was still working at Advance" } ]

[ { "docid": "1276476", "title": "", "text": "advantage in an alternative forum.” Better Care, 97 B.R. at 411 (creditors filed involuntary petition in bad faith and, thus were liable for damages where evidence indicated that creditors intended to shut down debtor’s business because of personal antipathy for debtor); see also In re F.R.P. Industries, Inc., 73 B.R. 309, 313 (Bankr.N.D.Fla.1987) (true motive was to use the Bankruptcy Code as a means of effectuating a takeover of business that it has become profitable); In re Wavelength, Inc., 61 B.R. 614, 620 (9th Cir.B.A.P.1986) (petition filed as a part of jockeying for position of corporate control). 36. Other courts combine both approaches and use a two-part test. Fox Island, 106 B.R. at 967 [adopting the In re Turner, 80 B.R. 618 (Bankr.D.Mass.1987) objective and subjective standards required under Bankruptcy Rule 9011) ]; Better Care, 97 B.R. at 411); United States Fidelity, 58 B.R. at 1011-12. In Turner, the court observed: Rule 9011 appears to be all-encompassing in the indicia of bad faith which it sets forth, including a significant objective requirement bearing on the legal justification of a claim or defense: a reasonable inquiry into the facts and the law. It is therefore logical to adopt its standards in a § 303(i)(2) case in order to avoid conflicting standards.... Use of the Rule 9011 standards as the measure of bad faith under § 303(i)(2) would, furthermore, be consistent with the standards of bad faith developed by the courts for the dismissal of a voluntary petition under 11 U.S.C. § 1112, where courts have created a bad faith ground for conversion or dismissal even though it is not one of the grounds listed in the statute.... Turner, 80 B.R. at 623. 37. Rule 9011 proscribes conduct undertaken “for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation.” “Rule 9011, of course, also encompasses the taking of inadequately supportable positions.” Better Care, 97 B.R. at 411. In determining the legal sufficiency of a position under Rule 9011 a party must investigate the facts and law prior to the signing and submission of a" }, { "docid": "23605376", "title": "", "text": "corporate control and to reduce guaranty obligation); In re F.R.P. Industries, Inc., 73 B.R. 309, 313 (Bankr.N.D.Fla.1987) (attempt to take over business); In re Wavelength, 61 B.R. at 622 (attempt to control corporation). It has also been applied to find bad faith when the particular misuse involved is employing the Bankruptcy Code as a collection tool. See, e.g., In re Nordbrock, 772 F.2d at 399 (collecting cases); Basin Electric Power Cooperative v. Midwest Processing Co., 769 F.2d 483, 487 (8th Cir.1985), cert. den., 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986); In re SBA Factors of Miami, Inc., 13 B.R. 99, 100 (Bankr.S.D.Fla.1981). . The \"improper purpose” test focuses on the petitioner’s motivation for filing an involuntary petition, and finds bad faith when those motives are inappropriate. See, e.g., In re Salmon, 128 B.R. 313, 315 (Bankr.M.D.Fla.1991) (referring to motive to “ruin and destroy\" debtor); In re Better Care, Ltd., 97 B.R. at 411 (malicious attempt to shut down business). . The \"objective test” attempts to gauge good or bad faith by asking the question whether a reasonable person would have initiated an involuntary bankruptcy action under the existing circumstances. See e.g., In re Midwest Processing Co., 41 B.R. 90, 102 (Bankr.D.N.D.1984); In re Grecian Heights Owners’ Ass'n, 27 B.R. 172, 173 (Bankr.D.Or.1982). . The “subjective test” is a close kin, if not a clone, of the \"improper purpose” test, supra, n. 15. It, too, looks to the petitioning creditor’s subjective motivation for filing and considers the appropriateness of that motivation for initiating bankruptcy proceedings. See In re Fox Island Square Partnership, 106 B.R. at 967 (discussing subjective test). . The \"combined” or “two part” test considers both motivation for and objective reasonableness of the petitioner’s actions. Some cases combine the objective and subjective tests, most often utilizing F.R.Bankr.P. 9011 as an analytical model. See e.g., In re Petralex Stainless, Ltd., 78 B.R. 738, 743 (Bankr.E.D.Pa.1987); In re McDonald Trucking Co., Inc., 76 B.R. 513, 517 (Bankr.W.D.Pa.1987). Others do the same while employing the \"improper use” and \"improper purpose” terminology. See e.g., In re Better Care, Ltd., 97" }, { "docid": "6572366", "title": "", "text": "that the Petitioners as well as their attorneys were well aware that the Oak Park debt was highly disputed. Had counsel listed the debt as disputed, the Petition on its face would have lacked merit. Accordingly, the Court finds that Frey is entitled to reasonable costs and attorney fees under Section 303(i)(l). The precise amount of the reasonable fees and costs will be discussed later in this decision. Next, in order for the Court to assess punitive damages pursuant to Section 303(i)(2), the Court must find that the Petitioners filed the Involuntary Petition in bad faith. Whether a creditor acted in bad faith is a question of fact. Advance Litho, 46 B.R. at 704. The courts, however, have applied different tests to determine whether the Involuntary Petition was filed in bad faith. Some courts use an objective test which asks whether a reasonable person would have filed. In re Wavelength, 61 B.R. 614, 620, (Bankr.9th Cir.1986), citing, Grecian Heights, 27 B.R. at 173; In re Midwest Processing Co., 41 B.R. 90, 102 (Bankr.D.N.D.1984). Other courts look at the creditor’s motives and conduct, thus, applying a subjective standard. See Basin Electric Power Cooperative v. Midwest Processing Co., 47 B.R. 903, 909 (N.D.1984), aff'd, 769 F.2d 483 (8th Cir.1985), cert. den., 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). Still other courts combine both approaches and use a two-part test. See e.g., United States Fidelity & Guar. Co. v. DJF Realty & Supplies, 58 B.R. 1008, 1101 (Bankr.N.D.N.Y.1986); In re Molen Drilling Co., Inc., 68 B.R. 840, 844 (Bankr.D.Mont.1987); In re McDonald Trucking Co., Inc., 76 B.R. 513 (Bankr.W.D.Pa.1987); In re Turner, 80 B.R. 618 (Bankr.D.Mass.1987); In re Petralex Stainless, Ltd., 78 B.R. 738 (Bankr.E.D.Pa.1987). Accordingly, the Court must first decide which standard to apply. In In re Turner, the bankruptcy court held: Rule 9011 appears to be all-encompassing in the indicia of bad faith which it sets forth, including a significant objective requirement bearing on the legal justification of a claim or defense: a reasonable inquiry into the facts and the law. It is therefore logical to adopt its" }, { "docid": "23340114", "title": "", "text": "“ill advised or motivated by spite, malice or a desire to embarrass the debtor.” Camelot, Inc. v. Hayden, 30 B.R. 409, 411 (E.D.Tenn. 1983), citing 2 Collier on Bankruptcy ¶ 303.-12 (15th ed. 1979). A second line of authority looks to whether the creditor’s actions were an improper use of the Bankruptcy Code as “a substitute for customary collection procedures.” See In re Advance Press & Litho, Inc., 46 B.R. 700, 703 (D.Colo.1984). Whether a party acted in bad faith is essentially a question of fact. In re Advance Press & Litho, Inc., supra, at 704. Bad faith should be measured by an “objective test” that asks “what a reasonable person would have believed.” In re Grecian Heights Owners’ Ass’n, 27 B.R. 172, 173 (Bankr.D.Or.1982). The record contains ample evidence to support the bankruptcy judge’s finding, that Jaffe and Edwards filed, or caused the Chapter 11 petition to be filed, in bad faith. First, Jaffe and Edwards stipulated to entry of an order finding that at the time the Chapter 11 was filed, Jaffe had no authority to act as a director of Wavelength by virtue of the state court temporary restraining order, and that Kronfeld did not participate in or waive notice of the Board of Directors’ meeting at which Jaffe and Edwards allegedly elected to file a Chapter 11 petition. Second, despite the fact that he had been removed as a director, Jaffe signed other documents filed in the bankruptcy court approximately one week later as the purported “authorized representative” for Wavelength. Those documents also failed to inform the bankruptcy court that Kronfeld was a 50 percent shareholder, with Edwards, in Wavelength, which further indicates bad faith, causing the court below to comment that this is an “outrageous case.” Third, Jaffe’s silence in the state court proceeding about the imminence of a Chapter 11 bankruptcy petition indicates bad faith. All of appellants’ arguments on the issue of bad faith must be rejected. The statutory language is that the petitioner must have “filed the petition in bad faith.” 11 U.S.C. § 303(i). There is no statutory requirement that the" }, { "docid": "23298985", "title": "", "text": "to judgment under this subsection, the court may grant judgment — (1) against the petitioners and in favor of the debtor for— (A) costs; or (B) a reasonable attorney’s fee; or (2) against any petitioner that filed the petition in bad faith for— (A) any damage proximately caused by such filing; or (B) punitive damages.” Bankruptcy Code Section 303(i) (11 U.S.C. Section 303(i)). The legislative history under this section makes clear that the use of the term “or” is not exclusive in this paragraph. The court may grant any and all of the damages provided for under this provision. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 324 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 34 (1978), U.S.Code Cong. & Admin.News, 1978, pp. 5787, 5820, 6280. See also In re Johnston Hawks Ltd., 72 B.R. 361, 366 (Bankr.D.Hawaii 1987); In re Camelot, Inc., 25 B.R. 861, 868 (Bankr.E. D.Tenn.1982); In re Ramsden, 17 B.R. 59, 61 (Bankr.N.D.Ga.1981). Thus, this Court, having found bad faith, is empowered to award the entire panoply of damages listed in Section 303(i). However, at the same time, the award of such costs, fees and damages is not automatic, but is committed to the sound discretion of the court. In re Johnston Hawks Ltd., supra, 72 B.R. at 366; In re Advance Press & Litho., Inc., 46 B.R. 700, 701 (D.Colo.1984). Clearly, a finding of bad faith is necessary for the award of any damages under Section 303(i)(2). Camelot, Inc. v. Hayden, 30 B.R. 409, 410-11, (E.D. Tenn.1983). In defining bad faith, courts have taken varying approaches. One line of authority finds bad faith to exist where the filing of the petition was motivated by ill will, malice or for the purpose of embarrassing or harassing the debtor. This might be considered the “improper purpose” test. See In re Laclede Cab Co., supra, 76 B.R. at 693; In re Johnston Hawks, Ltd., supra, 72 B.R. at 366; In re WaveLength, Inc., 61 B.R. 614, 620 (9th Cir. BAP 1986); In re Advance Press and Litho, Inc., supra, 46 B.R. at 703. An example of such bad" }, { "docid": "23605377", "title": "", "text": "the question whether a reasonable person would have initiated an involuntary bankruptcy action under the existing circumstances. See e.g., In re Midwest Processing Co., 41 B.R. 90, 102 (Bankr.D.N.D.1984); In re Grecian Heights Owners’ Ass'n, 27 B.R. 172, 173 (Bankr.D.Or.1982). . The “subjective test” is a close kin, if not a clone, of the \"improper purpose” test, supra, n. 15. It, too, looks to the petitioning creditor’s subjective motivation for filing and considers the appropriateness of that motivation for initiating bankruptcy proceedings. See In re Fox Island Square Partnership, 106 B.R. at 967 (discussing subjective test). . The \"combined” or “two part” test considers both motivation for and objective reasonableness of the petitioner’s actions. Some cases combine the objective and subjective tests, most often utilizing F.R.Bankr.P. 9011 as an analytical model. See e.g., In re Petralex Stainless, Ltd., 78 B.R. 738, 743 (Bankr.E.D.Pa.1987); In re McDonald Trucking Co., Inc., 76 B.R. 513, 517 (Bankr.W.D.Pa.1987). Others do the same while employing the \"improper use” and \"improper purpose” terminology. See e.g., In re Better Care, Ltd., 97 B.R. at 411-12. . See In re Better Care, Ltd., 97 B.R. at 409, in which Judge Katz is quoted as stating: \"If it smells like bad faith, it’s got to be bad faith. I think the petitioning creditors in this case failed all the tests, whichever one you apply.” . See In re Turner, 80 B.R. at 623. Cf. Ponoroff & Knippenberg, Legal Theory: The Implied Good Faith Filing Requirement: Sentinel of an Evolving Bankruptcy Court, 85 Nw.U.L.Rev. 919, 925 (1991) (noting role of Rule 9011 in analysis of bad faith filing issues). . F.R.Bankr.P. 9011 provides, in pertinent part: The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney's or party’s knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not interposed for any improper purpose, such as" }, { "docid": "23340113", "title": "", "text": "bankruptcy court’s findings of fact concerning bad faith are clearly erroneous for three reasons: (1) Neither Jaffe nor Edwards manifested bad faith toward Wavelength (in contrast to Kronfeld); (2) Edwards (in contrast to Jaffe) did not act in bad faith; and (3) both Edwards and Jaffe acted upon advice of counsel. Findings of fact shall not be set aside unless clearly erroneous. BR 8013. A finding is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); accord Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The Bankruptcy Code does not define “bad faith” for purposes of awarding punitive damages under § 303(i). Courts wrestling with this term have used somewhat vague definitions. One line of cases holds that bad faith exists when a petition is “ill advised or motivated by spite, malice or a desire to embarrass the debtor.” Camelot, Inc. v. Hayden, 30 B.R. 409, 411 (E.D.Tenn. 1983), citing 2 Collier on Bankruptcy ¶ 303.-12 (15th ed. 1979). A second line of authority looks to whether the creditor’s actions were an improper use of the Bankruptcy Code as “a substitute for customary collection procedures.” See In re Advance Press & Litho, Inc., 46 B.R. 700, 703 (D.Colo.1984). Whether a party acted in bad faith is essentially a question of fact. In re Advance Press & Litho, Inc., supra, at 704. Bad faith should be measured by an “objective test” that asks “what a reasonable person would have believed.” In re Grecian Heights Owners’ Ass’n, 27 B.R. 172, 173 (Bankr.D.Or.1982). The record contains ample evidence to support the bankruptcy judge’s finding, that Jaffe and Edwards filed, or caused the Chapter 11 petition to be filed, in bad faith. First, Jaffe and Edwards stipulated to entry of an order finding that at the time the Chapter 11 was filed, Jaffe had" }, { "docid": "13775203", "title": "", "text": "condition precedent to the award of same. In re Advance Press & Litho, Inc., 46 B.R. 700 (D.C.Colo.1984); In re Allen Rogers & Company, 34 B.R. 631 (Bankr.S.D.N.Y.1983); In re Camelot, Inc., 25 B.R. 861 (Bankr.E.D.Tenn.1982). The test for determining whether an involuntary petition has been filed in good faith is in many ways analogous to the obligations imposed under Bankruptcy Rule 9011 and Federal Rule 11, wherein the party is required to investigate both the facts and the law prior to the signing and submission of a pleading in the Court. Therefore, in order to find that an involuntary petition was filed in bad faith, the Court must look to the level of prefiling inquiry conducted by the creditor, and the purpose of creditor’s filing. In re Alta Title Company, 55 B.R. 133 (Bankr.D.Utah 1985). This “bad faith” is measured by an objective standard. Matter of Elsub Corporation, 66 B.R. 189 (Bankr.D.N.J.1986); In re Wavelength, Inc., 61 B.R. 614 (B.A.P. 9th Cir.1986); In re Godroy Wholesale Company, Inc., 37 B.R. 496 (Bankr.D.Mass.1984); In re Grecian Heights Owners’ Association, 27 B.R. 172 (Bankr.D.Ore.1982). It should be noted that no evidence was offered to indicate that the petitioning creditor considered any of the less radical and more traditional methods of debt collection, such as the filing of actions in state court. Section 303(b) of the Bankruptcy Code states that the commencement of an involuntary case by a single creditor is appropriate only if the alleged debtor has fewer than twelve (12) creditors. Basin Electric Power Cooperative v. Midwest Processing Company, 47 B.R. 903 (D.C.N.D.1984), aff'd 769 F.2d 483 (8th Cir.1985). The evidence indicates that as early as September 12, 1986, ten (10) days prior to the filing of the involuntary petition, counsel to Reserve was aware of Movants’ assertion that each corporation possessed more than twelve creditors. In its September 12 letter, Reserve’s counsel requested that the Debtor supply the names and addresses of other unsecured creditors. This Court has been directed to no case or Code section stating that an individual being threatened with an involuntary bankruptcy is under any" }, { "docid": "5883535", "title": "", "text": "Skiba Trust, whose actions were directed by Skiba. Should punitive damages be assessed against Skiba? In determining whether to allow such damages, and the correct amount, federal courts apply federal standards. See, e.g., In re Laclede Cab Co., 76 B.R. 687, 694 (Bankr.E.D.Mo.1987). In defining whether bad faith exists under § 303(i)(2) so as to justify punitive damages, courts have taken numerous different approaches. One line of authority applies a subjective standard and finds bad faith to exist when the filing of the petition was motivated by ill will, malice, or for the purpose of harassing or embarrassing the debtor (also known as the “improper purpose test”). In re Better Care, 97 B.R. 405, 410 (Bankr.N.D.Ill.1989) (citations omitted); Basin Electric Power Cooperative v. Midwest Processing Co., 47 B.R. 903, 909 (D.N.D.1989) (citations omitted). Some courts have developed a two-prong test, looking at both subjective and objective factors. See, e.g., United States Fidelity & Guar. Co. v. DJF Realty & Supplies, 58 B.R. 1008, 1101 (Bankr.N.D.N.Y.1986). Another line of cases finds that a petition is filed in bad faith when the creditor’s actions amount to an improper use of the Bankruptcy Code as a substitute for customary collection procedures. Id. Still other courts have analyzed whether a plan has been filed in bad faith by referring to Bankruptcy Rule 9011, based on Fed. R.Civ.P. 11. See, e.g., Id.; In re Fox Island Square Partnership, 106' B.R. 962, 968 (Bankr.N.D.Ill.1989); In re Turner, 80 B.R. 618, 623-24 (Bankr.D.Mass.1987); In re Laclede Cab Co., 76 B.R. 687, 691 (Bankr.E.D.Mo.1987). Turner held that: Rule 9011 appears to be all-encompassing in the indicia of bad faith which it sets forth, including a significant objective requirement bearing on the legal justification of a claim of defense; a reasonable inquiry into the facts and the law. It is therefore logical to adopt its standards in a § 303(i)(2) case in order to avoid conflicting standards. 80 B.R. at 623. Since Rule 9011 punishes sins of careless omission that do not amount to bad faith, the Court cannot follow those cases looking to that Rule for the test" }, { "docid": "4625382", "title": "", "text": "F.2d 483 (8th Cir.1985), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986) (bankruptcy court erred by failing to consider subjective motivation as well as actual conduct of petitioning creditors in reaching a determination on the bad faith issue). This bad faith standard essentially asks whether a reasonable person in the situation of the petitioning creditor would have filed. See In re Grecian Heights Owners’ Asso., 27 B.R. 172 (Bankr.D.Or.1982) (petitioner acted unreasonably and thus in bad faith where he filed the petition despite advice by counsel to the contrary). Recently, courts have evaluated bad faith by the subjective and objective standards contained in Rule 9011 of the Federal Rules of Bankruptcy Procedure. See, e.g., In re Secured Equipment Trust of Eastern Airlines, Inc., 1992 WL 295943 (S.D.N.Y.1992); In re KP Enterprise, 135 B.R. 174 (Bankr.D.Me.1992); Turner, 80 B.R. at 622-23; West Side, 112 B.R. at 258; Better Care, 97 B.R. at 411; In re Petralex Stainless Ltd., 78 B.R. 738, 743 (Bankr.E.D.Pa.1987). Rule 9011 tracks Rule 11 of the Federal Rules of Civil Procedure, which was promulgated to deter abuses in federal civil litigation. Byrne, Sanctions for Wrongful Bankruptcy Litigation, 62 Am.Bankr.L.J. 109 (1988). Rule 9011 provides in part: The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation. Rule 9011 is composed of two prongs. The first prong prohibits attorneys and parties from filing suits without sufficient justification. This aspect of the rule is evaluated by a reasonableness standard. Turner, 80 B.R. at 623. The second prong of Rule 9011 proscribes actions undertaken for improper purposes. It appears that bad faith may be found if either improper motivation" }, { "docid": "379431", "title": "", "text": "No. 91 Civ. 5049(MBM), 1992 WL 295943, at *6 (S.D.N.Y. Oct.8, 1992). \"Because `bad faith' is not defined in the bankruptcy code, and because there is no legislative history addressing the intended meaning of this language, courts have used different approaches to determine whether a petition was filed in bad faith [for purposes of § 303(i)(2) 1.\" General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1501 (11th Cir.1997), cert. denied, 523 U.S. 1055, 118 S.Ct. 1380, 140 L.Ed.2d 526 (1998). Some courts have used an \"improper use\" test, which \"finds bad faith when a petitioning creditor uses involuntary bankruptcy procedures in an attempt to obtain a `disproportionate advantage' for itself, rather than to protect against other creditors obtaining disproportionate advantages, particularly when the petitioner could have advanced its own interests in a different forum.\" In re K.P. Enter., 135 B.R. 174, 179 n. 14 (Bankr.D.Me.1992); see also In re Better Care, Ltd., 97 B.R. 405, 410-11 (Bankr.N.D.Ill.1989). Other courts have applied an \"improper purpose\" test, where bad faith exists if the filing of the petition was motivated by ill will, malice, or a desire to embarrass or harass the alleged debtor. See, e.g., In re Camelot, Inc., 25 B.R. 861, 864 (Bankr.E.D.Tenn.1982). A third line of cases employs an objective test for bad faith based on \"what a reasonable person would have believed.\" Jaffe v. Wavel- ength, Inc. (In re Wavelength, Inc.), 61 B.R. 614, 620 (9th Cir.BAP 1986) (internal quotation marks omitted). Finally, as the Eleventh Circuit has observed, a number of courts have sought to model the bad faith inquiry on the standards set forth in Bankruptcy Rule 9011. See General Trading Inc., 119 F.3d at 1501-02; In re Fox Island Square Partnership, 106 B.R. 962, 967-68 (Bankr.N.D.Ill.1989). According to the Eleventh Circuit: An analysis under Rule 9011 inquires into “a significant objective requirement bearing on the legal justification of a claim or defense: a reasonable inquiry into the facts and the law.” In addition to requiring an objective inquiry, Rule 9011 requires a subjective inquiry as well: the bankruptcy proceeding cannot have been interposed" }, { "docid": "3271066", "title": "", "text": "of $3,020.19 under §§ 303(i)(l)(A) and (B). All damages are awarded jointly and severally against all petitioning creditors. . In In re Howard was decided under Rule 115(e) of the Bankruptcy Act, in which the opinion specifically noted that \"Rule 115(e) contemplates a routine award of costs and counsel fees to the prevailing party upon dismissal ... of an involuntary petition. No bad faith need be shown_ This is the Rule of the New Bankruptcy Code, 11 U.S.C. § 303(i).” 2 B.R. at 454 (emphasis in the original). Rule 1013 of the Bankruptcy Code is the correlative rule to Rule 115(e) of Bankruptcy Act. The Advisory Committee Notes to Rule 1013 state that \"(subdivision (e) of former Bankruptcy Rule 115 has not been carried over because its provisions are covered by § 303(i) of the Code.” See Rule 1013. . One court developed an \"objective test” to measure bad faith. The test was \"what a reasonable person would have believed.” In re Grecian Heights Owners’ Association, 27 B.R. 172, 173 (Bankr.D.Or.1982). The court applied this test to find a petitioner acted unreasonably in filing an involuntary petition after consulting numerous attorneys who advised him not to file, but then followed the advice of a non-lawyer to file. The court found that the petitioner acted in bad faith and awarded punitive damages. However, the objective test is actually a subjective one, and \"[i]n the final analysis, whether a party has acted in bad faith or not is essentially a question of fact to be determined by the court.” In re Advance Press, 46 B.R. at 704 (emphasis added)." }, { "docid": "6572367", "title": "", "text": "look at the creditor’s motives and conduct, thus, applying a subjective standard. See Basin Electric Power Cooperative v. Midwest Processing Co., 47 B.R. 903, 909 (N.D.1984), aff'd, 769 F.2d 483 (8th Cir.1985), cert. den., 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). Still other courts combine both approaches and use a two-part test. See e.g., United States Fidelity & Guar. Co. v. DJF Realty & Supplies, 58 B.R. 1008, 1101 (Bankr.N.D.N.Y.1986); In re Molen Drilling Co., Inc., 68 B.R. 840, 844 (Bankr.D.Mont.1987); In re McDonald Trucking Co., Inc., 76 B.R. 513 (Bankr.W.D.Pa.1987); In re Turner, 80 B.R. 618 (Bankr.D.Mass.1987); In re Petralex Stainless, Ltd., 78 B.R. 738 (Bankr.E.D.Pa.1987). Accordingly, the Court must first decide which standard to apply. In In re Turner, the bankruptcy court held: Rule 9011 appears to be all-encompassing in the indicia of bad faith which it sets forth, including a significant objective requirement bearing on the legal justification of a claim or defense: a reasonable inquiry into the facts and the law. It is therefore logical to adopt its standards in a § 303(i)(2) case in order to avoid conflicting standards Use of the Rule 9011 standards as the measure of bad faith under § 303(i)(2) would, furthermore, be consistent with the standards of bad faith developed by the courts for the dismissal of a voluntary petition under 11 U.S.C. § 1112, where courts have created a bad faith ground for conversion or dismissal even though it is not one of the grounds listed in the statute. See In re Bible Speaks, 65 B.R. 415 (Bankr.D. Mass.1986). The adoption of such objective and subjective standards of good faith under § 303(i)(2) is also consistent with the concept of the good faith required of a merchant under Article 2 of the Uniform Commercial Code ... 80 B.R. at 623. In light of the Turner decision and its progeny, the Court finds that bad faith, pursuant to Section 303(i)(2) should be measured by the objective and subjective standards required under Bankruptcy Rule 9011. As to the purpose of punitive damages, the court held in Advance IAtho:" }, { "docid": "23605355", "title": "", "text": "B.R. at 966-67; In re Leach, 102 B.R. at 808; In re Anderson, 95 B.R. at 704-05; In re Exchange Network Corp., 85 B.R. 128, 131-32 (Bankr.D.Colo.1988); In re Johnston Hawks, Ltd., 72 B.R. 361, 365 (Bankr.D.Haw.1987), aff'd, 885 F.2d 875 (9th Cir.1989); In re Godroy Wholesale Co., Inc., 37 B.R. at 499. Thus, the “costs” to be awarded to KP are limited to the costs associated with defending the involuntary petition, including the $1,392.85 already itemized and such additional expenses as may be tallied and considered as part of the attorney’s fees application process. 3. Bad Faith and Damages. a. The Bad Faith Standard. Before considering whether I should exercise my discretion to award damages and, possibly, punitive damages, I must determine whether Belisle crossed § 303(i)(2)’s bad faith threshold. The factors considered in determining bad faith under § 303(i)(2) have yet to be annunciated in this district. As others have observed, neither the Code nor its legislative history provides guidance regarding the content of the bad faith standard. The notion was left for development in the courts. In re Turner, 80 B.R. 618, 622 (Bankr.D.Mass.1987) (drafters gave the courts an “empty chalice” to be filled by case law development). See also In re Fox Island Square Partnership, 106 B.R. at 967-68 (collecting cases); In re Wavelength, Inc., 61 B.R. 614, 619 (9th Cir. BAP 1986). Tests applied to resolve the factual question of bad faith have been categorized variously as the “improper use” test ; the “improper purpose” test ; the “objective” test ; the “subjective” test ; and the “combined” or “Rule 9011” test. One court, considering the pertinent tests, has described the essence of the exercise as applying “the nose test.” Nosing about for bad faith, the fact-finder should attempt to ensure first, that it sniffs all the right places and, second, that it doesn’t put its nose where it doesn’t belong. In selecting a model appropriate to detect bad faith’s scent, I agree with the analysis of In re Turner, 80 B.R. at 622-23. The various tests overlap, exploring different facets of the same concept." }, { "docid": "12892507", "title": "", "text": "To dismiss the petition, the debtor must show by a preponderance of the evidence that the creditors acted in bad faith. In re Petralex Stainless Ltd., 78 B.R. 738, 743 (Bankr.E.D.Pa.1987). At the outset, we must decide on the standard for evaluating bad faith, which is not defined in the Code. On this issue, courts have applied a dizzying array of standards, mostly with regard to post-dismissal motions for damages under § 303(i)(2). See In re Bayshore, 209 F.3d at 105-06 (reviewing different standards); Gen. Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1501-02 (11th Cir.1997) (same). Some courts, for in•stance, apply an “improper use” test, which asks whether a “petitioning creditor uses involuntary bankruptcy procedures in an attempt to obtain a disproportionate advantage for itself, rather than to protect against other creditors obtaining disproportionate advantages, particularly when the petitioner could have advanced its own interest in a different forum.” In re K.P. Enter., 135 B.R. 174, 179 n. 14 (Bankr.D.Me.1992) (internal quotation marks omitted). Other courts apply an “improper purpose” test, which looks to whether the filing “was motivated by ill will, malice, or a desire to embarrass or harass the alleged debtor.” In re Bayshore, 209 F.3d at 105. Still others apply an “objective test,” which assesses what a reasonable person would have believed and what a reasonable person would have done in the creditor’s position. In re Wavelength, Inc., 61 B.R. 614, 620 (9th Cir.BAP 1986). And yet other courts have applied a broad “totality of the circumstances” standard, which effectively combines all the tests and looks to both subjective and objective evidence of bad faith. In re John Richards, 439 F.3d at 255 n. 2. We adopt the “totality of the circumstances” standard for determining bad faith under § 303. This standard is most suitable for evaluating the myriad ways in which creditors filing an involuntary petition could act in bad faith. It also is the same standard we apply when reviewing allegations that a debtor filed a voluntary petition in bad faith. See In re Myers, 491 F.3d at 125; In re Lilley," }, { "docid": "4625381", "title": "", "text": "will ... exist any time a creditor uses an involuntary bankruptcy to obtain a disproportionate advantage to that particular creditor’s position, rather than to protect against other creditors obtaining a disproportionate advantage. This is especially true where the petitioning creditor could have obtained that advantage in an alternate forum. Better Care, 97 B.R. at 411. Whether termed improper use or improper purpose, these types of inquiries are primarily concerned with the petitioners’ underlying reasons for filing the petitions. At least one court has noted that these two standards are not necessarily inconsistent and “seem to be different facets of the same concept.” Turner, 80 B.R. at 623. In contrast to courts that focus on the creditor’s purposes for initiating an involuntary bankruptcy, some courts evaluate the manner in which the petition was filed. United States Fidelity, 58 B.R. at 1011 (the better practice is for bankruptcy courts to inquire into both the creditor’s conduct and motives for filing the petition); Basin Electric Power Cooperative v. Midwest Processing Co., 47 B.R. 903, 909 (D.N.D.1984), aff'd, 769 F.2d 483 (8th Cir.1985), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986) (bankruptcy court erred by failing to consider subjective motivation as well as actual conduct of petitioning creditors in reaching a determination on the bad faith issue). This bad faith standard essentially asks whether a reasonable person in the situation of the petitioning creditor would have filed. See In re Grecian Heights Owners’ Asso., 27 B.R. 172 (Bankr.D.Or.1982) (petitioner acted unreasonably and thus in bad faith where he filed the petition despite advice by counsel to the contrary). Recently, courts have evaluated bad faith by the subjective and objective standards contained in Rule 9011 of the Federal Rules of Bankruptcy Procedure. See, e.g., In re Secured Equipment Trust of Eastern Airlines, Inc., 1992 WL 295943 (S.D.N.Y.1992); In re KP Enterprise, 135 B.R. 174 (Bankr.D.Me.1992); Turner, 80 B.R. at 622-23; West Side, 112 B.R. at 258; Better Care, 97 B.R. at 411; In re Petralex Stainless Ltd., 78 B.R. 738, 743 (Bankr.E.D.Pa.1987). Rule 9011 tracks Rule 11 of the Federal Rules" }, { "docid": "6572368", "title": "", "text": "standards in a § 303(i)(2) case in order to avoid conflicting standards Use of the Rule 9011 standards as the measure of bad faith under § 303(i)(2) would, furthermore, be consistent with the standards of bad faith developed by the courts for the dismissal of a voluntary petition under 11 U.S.C. § 1112, where courts have created a bad faith ground for conversion or dismissal even though it is not one of the grounds listed in the statute. See In re Bible Speaks, 65 B.R. 415 (Bankr.D. Mass.1986). The adoption of such objective and subjective standards of good faith under § 303(i)(2) is also consistent with the concept of the good faith required of a merchant under Article 2 of the Uniform Commercial Code ... 80 B.R. at 623. In light of the Turner decision and its progeny, the Court finds that bad faith, pursuant to Section 303(i)(2) should be measured by the objective and subjective standards required under Bankruptcy Rule 9011. As to the purpose of punitive damages, the court held in Advance IAtho: In Grecian Heights, the court discussed the purpose of punitive damages — to deter similar acts in the future. This deterrent should be directed not merely to the petitioning creditor in the case at bar, but also should serve as an example for similar circumstances in future cases. Punitive damages are also assessed as punishment to the defendant-creditor for wrongdoing in filing the Involuntary Petition in bad faith.... The imposition of these damages must be considered in connection with the award of other damages and fees if the purpose of punitive damages is to be effective and yet not unduly harsh. 46 B.R. at 706. The Court has reviewed and considered the facts surrounding the filing of the Involuntary Petition and finds that it was filed in bad faith. In July of 1987, Oak Park filed two suits against the Partnership in state court. After a motion for summary judgment was denied, discovery went forward and closed on May 6, 1988, approximately 10 months after the case was filed. Shortly thereafter, the Petitioners filed a" }, { "docid": "23605356", "title": "", "text": "development in the courts. In re Turner, 80 B.R. 618, 622 (Bankr.D.Mass.1987) (drafters gave the courts an “empty chalice” to be filled by case law development). See also In re Fox Island Square Partnership, 106 B.R. at 967-68 (collecting cases); In re Wavelength, Inc., 61 B.R. 614, 619 (9th Cir. BAP 1986). Tests applied to resolve the factual question of bad faith have been categorized variously as the “improper use” test ; the “improper purpose” test ; the “objective” test ; the “subjective” test ; and the “combined” or “Rule 9011” test. One court, considering the pertinent tests, has described the essence of the exercise as applying “the nose test.” Nosing about for bad faith, the fact-finder should attempt to ensure first, that it sniffs all the right places and, second, that it doesn’t put its nose where it doesn’t belong. In selecting a model appropriate to detect bad faith’s scent, I agree with the analysis of In re Turner, 80 B.R. at 622-23. The various tests overlap, exploring different facets of the same concept. Objective and subjective factors should be considered in the § 303(i)(2) context. To apply § 303(i)(2) in a fashion consistent with other instances in which the question of bad faith is considered in bankruptcy and commercial contexts, and to ensure that all pertinent indicia of bad faith are explored, Rule 9011’s model provides the comprehensive olfactory guide. See, e.g., In re West Side Community Hospital, Inc., 112 B.R. at 258; In re Fox Island Square Partnership, 106 B.R. at 967-68; In re Better Care, Ltd., 97 B.R. at 411; In re McDonald Trucking Co., Inc., 76 B.R. at 516. Cf. In re Laclede Cab Co., 76 B.R. 687, 693 (Bankr.E.D.Mo.1987) (considering award against petitioners under § 303(i) and sanctions against counsel under Rule 9011). Evaluating the evidence and determining bad faith through Rule 9011’s lens must be understood for what it is. The rule itself may be utilized when § 303(i)(2) does not apply, such as where there has been a voluntary dismissal with universal consent or where sanctions against counsel are sought. Applying §" }, { "docid": "4625379", "title": "", "text": "a preponderance of the evidence. Id.; United States Fidelity & Guaranty Co. v. DJF Realty & Suppliers, Inc., 58 B.R. 1008, 1013 (N.D.N.Y.1986). An alleged debtor must prove separately bad faith by each petitioning creditor against whom it seeks an award of damages under § 303(i)(2). 2 L. King, Collier on Bankruptcy, If 303.39, 303-139 (15th ed. 1992). Because neither the Bankruptcy Code nor its legislative history provides a definition of bad faith, the courts were faced with “an empty chalice in the bad faith standard of § 303(i)(2) ...” In re Turner, 80 B.R. 618, 622 (Bankr.D.Mass.1987). Thus, the emerging standards have been judicial creations. Not surprisingly, the courts have been less than uniform with respect to the bad faith standards applied. Some courts have based their bad faith evaluations on whether the petitioning creditors were motivated by spite, ill will or malice or for the purpose of harassing the debtor. See In re Camelot, Inc., 25 B.R. 861 (Bankr.E.D.Tenn.1982), aff'd sub nom. Camelot, Inc. v. Hayden, 30 B.R. 409 (E.D.Tenn.1983) (court determined petitioners acted in bad faith where their purpose in bringing the petition was to forestall state dissolution proceeding); In re Lac-lede Cab Co., 76 B.R. 687 (Bankr.E.D.Mo.1987) (petitioning creditors acted in bad faith in filing the petition in order to force alleged debtor into labor negotiations). Other courts have focused on whether the bankruptcy process was initiated for purposes otherwise legitimate, but inappropriate in light of the intended use of the Bankruptcy Code. See In re SBA Factors of Miami Inc., 13 B.R. 99 (Bankr.S.D.Fla.1981) (bad faith of petitioning creditors based on their use of the bankruptcy proceeding as a substitute for customary debt collection); In re Allen Rogers & Co., 34 B.R. 631 (Bankr.S.D.N.Y.1983). Several courts have referred to these two approaches respectively as the “improper purpose” test and the “improper use” tests. See In re Better Care, Ltd., 97 B.R. 405, 410 (Bankr.N.D.Ill.1989); In re West Side Community Hosp. Inc., 112 B.R. 243 (Bankr.N.D.Ill.1990). The court in Better Care stated that [a]n improper use of the Bankruptcy Code justifying a finding of bad faith" }, { "docid": "3271065", "title": "", "text": "received an oral representation that PacDiv would negotiate with AIA/Associates for the project, which would have provided income of $25,087.30 to McGarrity. This business loss is one that was considered by the Bankruptcy Code. Under § 303(i)(2)(A), the court may award any damages proximately caused by the bad faith filing. The legislative history states that “[tjhese damages may include such items as loss of business during and after the pendency of the case, and so on.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 324 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 34 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5820, 6280. Because the Involuntary Petition was filed in bad faith for misuse of the bankruptcy court as a substitute for customary collection procedures and misuse of the Bankruptcy Code, this Court awards damages of $25,287.50 proximately caused by the filing under § 303(i)(2)(A) to McGarrity and Johnston Hawks. This Court also awards punitive damages of $10,000 under § 303(i)(2)(B). These awards are in addition to the award of attorney’s fees of $29,087.30 and costs of $3,020.19 under §§ 303(i)(l)(A) and (B). All damages are awarded jointly and severally against all petitioning creditors. . In In re Howard was decided under Rule 115(e) of the Bankruptcy Act, in which the opinion specifically noted that \"Rule 115(e) contemplates a routine award of costs and counsel fees to the prevailing party upon dismissal ... of an involuntary petition. No bad faith need be shown_ This is the Rule of the New Bankruptcy Code, 11 U.S.C. § 303(i).” 2 B.R. at 454 (emphasis in the original). Rule 1013 of the Bankruptcy Code is the correlative rule to Rule 115(e) of Bankruptcy Act. The Advisory Committee Notes to Rule 1013 state that \"(subdivision (e) of former Bankruptcy Rule 115 has not been carried over because its provisions are covered by § 303(i) of the Code.” See Rule 1013. . One court developed an \"objective test” to measure bad faith. The test was \"what a reasonable person would have believed.” In re Grecian Heights Owners’ Association, 27 B.R. 172, 173 (Bankr.D.Or.1982). The court applied this" } ]

[ { "docid": "10010744", "title": "", "text": "for judicial services — once in their taxes (which pay the judges’ salaries), and the second time in fees paid directly to the judge. When, in addition, the judge conceals what he is doing, he commits fraud; for what he is- concealing is clearly material information to his employer, the state. United States v. Rabbitt, 583 F.2d 1014, 1024-26 (8th Cir.1978), does not require a different conclusion. A state legislator received a secret commission from an architectural firm to help it get state contracts. Not only was there no evidence that his efforts on the firm’s behalf caused any actual loss to the state, but the court was also not convinced that his conduct had deprived the state of its right to honesty and fairness in the performance of the defendant’s official duties, because the contracts were awarded on a merit basis by officials over whom the defendant had no power. We very much doubt the soundness of this reasoning. The fact that the defendant did not control the award of contracts should not be decisive if his position as a state legislator gives his recommendations a weight independent of their intrinsic merit. But the case in any event is different from this one. Holzer received money from persons appearing before him in his official capacity rather than from persons having business before other judges or before the executive or legislative branches of state government. The Eighth Circuit upheld Rabbitt’s conviction of mail fraud for peddling his influence to obtain legislation favorable to a trade association that had bribed him. Holzer argues that he could not be deemed to have acted fraudulently when there was no clear-cut ethical rule prohibiting him from receiving loans from lawyers with business before him. This thrust is wide of the mark, since even if the receipt of the loans were not prohibited, the failure to disclose their receipt, at the very least to counsel opposing the lenders, would be fraudulent in the circumstances. But this point to one side, we do not agree that the absence of an explicit rule should make a difference." } ]

[ { "docid": "23224557", "title": "", "text": "McNeive, 536 F.2d 1245 (8th Cir. 1976), in which the chief plumbing inspector for the City of St. Louis accepted unsolicited gratuities from plumbing contractors. While McNeive benefited from his office in a reprehensible way, his conduct neither injured the Government nor affected the performance of his duties and therefore did not violate federal law. We held that McNeive did not commit fraud by defrauding citizens of a right to “honest and faithful service.” Finally, Rabbitt was under no affirmative duty to disclose his interest. The Government refers to no standard of conduct applicable to legislators which clearly required disclosure of Rabbitt’s interest in the Berger-Field contracts. The candidate disclosure act applied to Rabbitt as a candidate for Lieutenant Governor, not to his services as a legislator. Thus, he did not deprive the citizens of any right to disclosure. To affirm the convictions on the Berger-Field mail fraud counts would mean expansion of the statute beyond its application in prior political corruption cases. This we refuse to do. We hold that Rabbitt’s motion for judgment of acquittal on mail fraud counts I through X should have been granted. Accordingly, we reverse his convictions on those counts. B. Hobbs Act — Sufficiency of the Evidence. The statutory definition of extortion is “the obtaining of property from another, with his consent, induced by wrongful use of * * * fear, or under color of official right.” 18 U.S.C. § 1951. The evidence must establish the payment was made under some form of compulsion. See United States v. Adcock, 558 F.2d 397, 403 (6th Cir. 1977). However, bribery and extortion need not be mutually exclusive. See United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). The existence of compulsion is determined by the mental state of the extorted party. United States v. Adcock, supra, 558 F.2d at 403. Rabbitt argues the Government failed to prove he compelled the victims to part with money either out of fear or “under color of official right.” 1. Fear. The Government alleges extortion by" }, { "docid": "23224561", "title": "", "text": "In the present case, the Government does not contend that Rabbitt possessed actual power to award contracts for architectural services within his legislative powers or that Rabbitt so intimated. The Government argues that Rabbitt possessed the apparent power to award contracts and that Berger-Field believed in Rabbitt’s power to secure contracts for the firm. The evidence, however, does not support that argument. All the principals of Berger-Field knew Rabbitt did not award contracts in his official capacity. Each architect knew the most Rabbitt could do was recommend them to state contractors as qualified architects and thereby gain them a friendly ear. Moreover, while Rabbitt’s influence obviously helped these architects obtain state jobs, no testimony established that any state contracting officer awarded any contract to Berger-Field because of Rabbitt’s influence or that Berger-Field believed Rabbitt’s introduction was enough to secure the work. The Government failed to prove Berger-Field entertained a reasonable belief Rabbitt possessed effective control over the award of architectural contracts necessary to establish extortion “under color of official right” in violation of the Hobbs Act. The evidence received on this count is distinguishable from that on the S.B. 110-Hobbs Act counts. Control over legislation such as S.B. 110 was at the heart of Rab-bitt’s responsibility in his position as a legislator and House Speaker. We hold Rab-, bitt’s motion for judgment of acquittal on Hobbs Act count XI should have been granted. Accordingly, we reverse his conviction on this count. V. Fair Trial A. Evidence of Similar Acts. The Government questioned Rabbitt and two other witnesses about money paid to Rabbitt’s law firm to gain his support of other legislation. Some of these payments were disguised as retainers, with no law work performed — similar to the Berger-Field “legal retainers.” Rabbitt contends the admission of this testimony into evidence denied him a fair trial. We do not agree. ki Federal Rule of Evidence 404(b) permits evidence of other acts, similar to the conduct charged in the indictment, to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See 10 Moore’s Federal Practice U 404.21[2]." }, { "docid": "23224541", "title": "", "text": "At the time Burruss did not accord any particular significance to the conversation. In mid-January 1974, during the legislative session, Burruss approached Rabbitt outside his office in the Capitol Building and asked why H.B. 1336 had not been assigned to a committee. Burruss testified that Rabbitt responded:' “Because I haven’t gotten any law business yet.” Rabbitt ultimately assigned this bill to an unfriendly committee in which the proposed legislation was buried. Based on this series of events, Rabbitt was charged with attempted extortion under the Hobbs Act, count XV. C. Berger-Field Architects. In 1965, Paul Hurley, a partner in the St. Louis-based architectural firm of Berger-Field-Torno-Hurley, Architects and Planners, Inc. (Berger-Field), and a long-standing personal friend of Rabbitt, approached Rabbitt on behalf of the firm and sought his help in securing architectural contracts for state construction work. Rabbitt offered, for a fee of ten percent from any resulting work, to introduce the firm to people who might be able to secure architectural contracts for it. The evidence indicates that Rabbitt recommended the Berger-Field firm as competent architects to persons authorized to employ architects for state projects. During the course of the agreement, the firm credited Rabbitt for some state work it secured. Berger-Field specifically attributed two state projects and one large project from the University of Missouri it received to Rabbitt’s influence. Rabbitt also instructed the firm on the procedure to obtain an additional appropriation needed to cover one of its state projects. The firm paid Rabbitt’s ten percent fee in cash and later in the form of a $500 monthly retainer to Rabbitt’s law partner, Joseph Dickerson, who would mail a monthly statement to the architects on either personal or firm stationery. When payment arrived, Dickerson would deposit the retainer in his personal account and write a check for a like amount to the law firm of Rabbitt, Rabbitt, and Dickerson. Dickerson did little work for the retainer. The evidence revealed that the architects paid Rabbitt ten percent ($22,538) of the gross fees from both city and state contracts attributable to his influence. This money was paid either directly" }, { "docid": "16790944", "title": "", "text": "devise and participate in a scheme to defraud (a) the Village of Fox Lake, and its citizens of their right to the legal, faithful and honest services of Richard Hamm in the performance of acts related to his public employment: (b) the Village of Fox Lake and its citizens, its public officials and its public employees of the right to have the business of the Village of Fox Lake conducted honestly, fairly and impartially, free from collusion, partiality, dishonesty, conflicts of interest, and fraud; (c) the Village of Fox Lake and its citizens, its public officials and its public employees of the right to make a cable television franchise award with full disclosure of ownership interests; and to obtain the Village of Fox Lake cable television franchise contract by means of false and fraudulent representation and promises, knowing them to be false when made____\" The instructions to the jury provided in part: A scheme means some plan or course of action intended to deceive another and to deprive another of something of value by means of false pretenses, representations, or promises. A scheme to defraud under the Mail Fraud Statute may include a plan to deprive citizens of the honest and impartial functioning of a public official and this is \"something of value” within the meaning of the mail fraud statute. . The Eighth Circuit in Rabbitt uses language that clearly reduces the effect of defendant’s argument on this issue: “Whether a showing of dishonesty on the part of a state official, outside his official duties, with no financial loss to the state constitutes a fraud upon the public and thereby statutory mail fraud is, in our judgment, highly questionable.” 583 F.2d at 1024 (emphasis added). . In Rabbitt, the evidence indicated that Rabbitt recommended an architectural firm as competent architects to the persons authorized to hire architects for Missouri state projects. Rabbitt was paid by the architectural firm ten percent of the gross fees attributable to his influence. . At least one board member (Jean Berdnick) testified she would have consulted with attorneys for advice had she been aware" }, { "docid": "16790920", "title": "", "text": "duties and responsibilities as the mayor of Fox Lake, Illinois, thus Fox Lake suffered no loss of any rights — tangible or intangible. The defendant relies on United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). Rabbit, who was an elected member of the Missouri State House of Representatives, was indicted for defrauding the citizens of Missouri by (1) accepting a ten percent commission on architectural contracts awarded to a firm he recommended to persons authorized to employ architects for state-related projects, and (2) concealing or failing to make public his interest in those contracts. The court in Rabbitt found that there was no tangible or intangible loss suffered by the citizens of Missouri because the contracts were awarded on merit by the state officials. Id. at 1025-26. The Eighth Circuit held that the defendant’s acceptance of commissions on state architectural contracts awarded to an architectural firm he recommended to the state officials responsible for awarding such contracts did not establish of itself a violation of the Federal mail fraud statute. The present case is distinguishable from Rabbitt. In Rabbitt, the Eighth Circuit stated that: “Rabbitt did not, in his official capacity, control the awarding of state contracts to architects.” 583 F.2d at 1026. Whereas in the instant case, the mayor, in his official capacity, had the authority and capacity to break a tie vote of the board if called upon to do so. According to testimony, the mayor was approached by the defendant, in his official capacity, regarding the cable franchise. Lovett offered and the mayor accepted a 5% local ownership in the subsidiary of U.S. Cable “to grease the skids.” The mayor in turn enlisted Gerretsen, a board member who in effect was able to control three of the six votes on the board, and thus fulfill the objective of the payoff scheme. The mayor’s local ownership interest in U.S. Cable’s subsidiary remained secret and was not disclosed to the board before they voted on the Fox Lake cable franchise. It does not take too active" }, { "docid": "23224558", "title": "", "text": "of acquittal on mail fraud counts I through X should have been granted. Accordingly, we reverse his convictions on those counts. B. Hobbs Act — Sufficiency of the Evidence. The statutory definition of extortion is “the obtaining of property from another, with his consent, induced by wrongful use of * * * fear, or under color of official right.” 18 U.S.C. § 1951. The evidence must establish the payment was made under some form of compulsion. See United States v. Adcock, 558 F.2d 397, 403 (6th Cir. 1977). However, bribery and extortion need not be mutually exclusive. See United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). The existence of compulsion is determined by the mental state of the extorted party. United States v. Adcock, supra, 558 F.2d at 403. Rabbitt argues the Government failed to prove he compelled the victims to part with money either out of fear or “under color of official right.” 1. Fear. The Government alleges extortion by fear of economic injury. Fear of economic loss is sufficient to constitute extortion, see Callanan v. United States, 223 F.2d 171, 175-76 (8th Cir.), cert. denied, 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764 (1955); Bianchi v. United States, 219 F.2d 182 (8th Cir.), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249 (1955), even if the interest threatened is only an anticipated one. See United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). The record lacks any substantial evidence of “fear” as a basis for the Berger-Field payments to Rabbitt. Neither did the firm believe that state contracts could not be acquired without Rabbitt’s introduction. Indeed, evidence indicated Berger-Field had secured state contracts prior to its agreement with Rabbitt and acquired other state contracts during the years here in question without Rabbitt’s assistance. The evidence further indicates Berger-Field was a willing collaborator who sought and paid for Rabbitt’s good words to influential people, thus giving Berger-Field access on" }, { "docid": "23224540", "title": "", "text": "assigned to Con-naghan. The record discloses that following the $5,000 down payment, S.B. 110 survived a committee hearing and passed the House. The Governor subsequently voided the legislation as unconstitutional. As we have previously noted, the incidents relating to S.B. 110 resulted in one count of mail fraud under the mail fraud statute, count XIV, and two counts of extortion under the Hobbs Act, counts XII and XIII. B. House Bill 1336 — Overweight Trucks. On December 7, 1973, prior to the 1974 Missouri legislative session, George Burruss, a lobbyist for the Missouri Bus and Truck Association, visited defendant Rabbitt at the latter’s law office. They discussed House Bill 1336 (H.B. 1336), a bill increasing the permissible weight of trucks on Missouri highways. Rabbitt was noncommittal about whether he would support H.B. 1336. Describing the meeting, Bur-russ testified: [W]e visited awhile, and at some point Mr. Rabbitt indicated that he had added some persons to the law firm and needed some more law business from maybe the truckers or trucking industry, words to that effect. At the time Burruss did not accord any particular significance to the conversation. In mid-January 1974, during the legislative session, Burruss approached Rabbitt outside his office in the Capitol Building and asked why H.B. 1336 had not been assigned to a committee. Burruss testified that Rabbitt responded:' “Because I haven’t gotten any law business yet.” Rabbitt ultimately assigned this bill to an unfriendly committee in which the proposed legislation was buried. Based on this series of events, Rabbitt was charged with attempted extortion under the Hobbs Act, count XV. C. Berger-Field Architects. In 1965, Paul Hurley, a partner in the St. Louis-based architectural firm of Berger-Field-Torno-Hurley, Architects and Planners, Inc. (Berger-Field), and a long-standing personal friend of Rabbitt, approached Rabbitt on behalf of the firm and sought his help in securing architectural contracts for state construction work. Rabbitt offered, for a fee of ten percent from any resulting work, to introduce the firm to people who might be able to secure architectural contracts for it. The evidence indicates that Rabbitt recommended the Berger-Field firm as" }, { "docid": "18977031", "title": "", "text": "arrange for the payment of Gillock’s commission on the Shelby County deal, is supported by the evidence and so must be affirmed. Gillock also contends that his conviction for violation of the Hobbs Act, 18 U.S.C. § 1951, for accepting the $130,365.51 commission should be reversed. The Hobbs Act makes it illegal to “affect commerce ... by extortion,” extortion being defined as, among other things, “the obtaining of property from another, with his consent, ____under color of official right.” Gillock argues that his receipt of the $130,000 was not “under color of official right” because he lacked either actual or apparent authority to authorize computer purchases by either the State of Tennessee or Shelby County. He relies heavily on the Eighth Circuit case of United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), to support his position. In Babbitt, the court held that it was not a violation of the Hobbs Act for a Missouri state representative to use his influence and connections to help an architectural firm win contracts from the State of Missouri in exchange for ten percent commission on the contracts so awarded. The state representative had no direct control over the award of such contracts. This Court has held that a state official’s acceptance of money violates the Hobbs Act “so long as the motivation for the payment focuses on the recipient’s office.” United States v. Harding, 563 F.2d 299, 307 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978) (quoting United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975)). What matters is not whether the official has “actual de jure power to secure” the desired item, but whether the person paying him “held, and defendant exploited, a reasonable belief that the state system so operated that the power in fact of defendant’s office included the authority to determine recipients of the [contracts] here involved.” United States v. Mazzei, 521 F.2d 639, 643 (3d Cir.)" }, { "docid": "23224555", "title": "", "text": "the mail fraud statute. In the instant case, we hold the evidence does not establish mail fraud within the federal statute, The indictment charges, in essence, that Rabbitt defrauded the citizens of Missouri by accepting a ten percent commission on architectural contracts awarded to the Berger-Field firm and concealing or failing to disclose his interest in those contracts. The evidence clearly shows that Rabbitt acted unethically and violated his canons as a lawyer, a candidate disclosure statute requiring disclosure of fees received during the preceding twelve months, and possibly a Missouri law rendering “partiality” or abuse in public office unlawful. But such violations, although bearing on intent to defraud, do not in and of themselves establish the substantive crime of mail fraud under 18 U.S.C. § 1341. In support of its argument that Rabbitt’s conduct constituted mail fraud, the Government relies on several cases in which the courts employed various combinations of factors to establish a scheme to defraud cognizable under the mail fraud statute. In each of these cases, the conduct deemed fraudulent deprived the public either of some potential tangible gain such as favorable contracts, or of its right to honest and fair dealing in the conduct of the officer in question, or of its right to disclosure of the officer’s interest in the transaction at issue. We find none of these factors present in this case. The state officials who awarded architectural contracts did so on merit. There is no evidence that Rabbitt’s use of his friendship, position, and influence to aid Berger-Field in obtaining contracts resulted in inferior work, greater expense, or any other tangible loss to the citizens or state. We also find no evidence that Rabbitt’s conduct deprived the citizens of their right to honesty and fairness in the conduct of his official duties. Rabbitt did not, in his official capacity, control the awarding of state contracts to architects. There is no evidence that Rabbitt failed to carry out the duties and responsibilities of his legislative office or leadership positions for the sake of Berger-Field. In this respect, the case resembles United States v." }, { "docid": "11929366", "title": "", "text": "can easily be drawn both to public and private conduct and there is no indication that Celona invoked any purported oversight authority or threatened to use official powers in support of his advocacy. The government says the mayors can be affected by state legislation, but it did not show by context or threat that Celona sought deliberately to exploit this leverage. Certainly his title and (possibly improper) use of senate letterhead assured him access and attention, cf. Sawyer I, 85 F.3d at 731 n. 15; but his position guaranteed that in any event and its invisible force would have existed even if he emphasized that he was present solely as a paid advocate. Indeed, even the legitimate work that Celona performed on behalf of the Village traded in part on the reputation, network and influence that comes with political office. That much is an unavoidable result of Rhode Island’s decision to retain a system of government in which legislators hold outside employment without very stringent restrictions. There is not very much direct precedent but in United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), the Eighth Circuit rejected a mail fraud count based on kickbacks paid to a state house speaker for merely recommending to other state officials, over whom the speaker had no authority, an architectural firm for work on state projects. Rabbitt was perhaps a close case, but the explicit kickback scheme there involved was markedly more abusive than urging local mayors or fire chiefs to comply with state law. In all events, whether or not Rabbitt is correct, we think the rescue run lobbying of mayors was not a crime even if the facts are taken most favorably to the government. By contrast, Celona’s conduct vis a vis the insurers was closely related to his official functions including legislation. In March 2000, Celona told Driscoll that a proposed bill requiring payment of insurance reimbursements was being held up to see if a private resolution could be managed. When the dispute between RWMC and Blue Cross" }, { "docid": "11929367", "title": "", "text": "United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), the Eighth Circuit rejected a mail fraud count based on kickbacks paid to a state house speaker for merely recommending to other state officials, over whom the speaker had no authority, an architectural firm for work on state projects. Rabbitt was perhaps a close case, but the explicit kickback scheme there involved was markedly more abusive than urging local mayors or fire chiefs to comply with state law. In all events, whether or not Rabbitt is correct, we think the rescue run lobbying of mayors was not a crime even if the facts are taken most favorably to the government. By contrast, Celona’s conduct vis a vis the insurers was closely related to his official functions including legislation. In March 2000, Celona told Driscoll that a proposed bill requiring payment of insurance reimbursements was being held up to see if a private resolution could be managed. When the dispute between RWMC and Blue Cross over bill payments developed in 2001 and 2002, Celona had become chair of a senate committee with considerable power over health care legislation, and both Blue Cross and United were regularly concerned with matters affected by the committee. Here, there is evidence that Urciuoli and Celona sought to exploit this connection to the legislative process. At Urciuoli’s behest, Celona became involved with negotiations between RWMC and the insurers, and he did so confessedly to bring pressure on the latter to settle on terms favorable to RWMC. As already recounted, the government offered evidence that Celona in a 2001 meeting with Urciuo-li and a Blue Cross lobbyist delivered a barely veiled warning of potential legislative trouble to Blue Cross if it did not settle. When Celona later told Urciuoli that he had put considerable pressure on the lobbyist, Urciuoli replied approvingly that he deserved to be “cranked around.” In addition, Celona held two negotiating sessions in his state house office, one in 2002 and the other in 2003, which included Urciuoli and the Blue Cross CEO." }, { "docid": "8525284", "title": "", "text": "money for secret enrichment of fiduciary’s friend). Thus, undisclosed, biased decision making for personal gain, whether or not tangible loss to the public is shown, constitutes a deprivation of honest services. See e.g., Grandmaison, 77 F.3d at 567 (city board member took secret action to influence award of public contract to official’s private construction- business interest); United States v. Waymer, 55 F.3d 564 (11th Cir.1995) (board of education member received secret commissions from companies contracting with school system), cert. denied, — U.S. -, 116 S.Ct. 1350, 134 L.Ed.2d 519 (1996). The broad scope of the mail fraud statute, however, does not encompass every instance of official misconduct that results in the official’s personal gain. For example, in United States v. McNeive, 536 F.2d 1245, 1246 (8th Cir.1976), a city plumbing inspector repeatedly accepted unsolicited gratuities in connection with his non-diseretionary, administrative duty to issue plumbing permits. Although McNeive may have violated a city ordinance banning the acceptance of gratuities by city officials, the court found his conduct beyond the reach of the mail fraud statute because there was no evidence that the gratuities disadvantaged the city in any respect or that they deterred McNeive from otherwise conscientiously performing his duties. Id. at 1251. In short, the “scheme” was shown to neither involve nor contemplate the deprivation of McNeive’s honest services to the city or public. Likewise, in United States v. Rabbitt, 583 F.2d 1014, 1026 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), the Eighth Circuit reversed the mail fraud convictions of Rabbitt, a state representative. Rabbitt had offered to introduce a friend’s architectural firm to certain public officials responsible for awarding state architectural contracts, in return for a ten percent commission on any work awarded. Id. at 1020. The government charged that his receipt of the resulting, undisclosed commissions defrauded the citizens of Rabbitt’s honest services. Id. at 1025. The evidence showed, however, that the officials who awarded the architectural contracts did so on merit alone and Rabbitt played no role in the selection of the firm. Id. at 1026. Because Rabbitt did" }, { "docid": "8525285", "title": "", "text": "because there was no evidence that the gratuities disadvantaged the city in any respect or that they deterred McNeive from otherwise conscientiously performing his duties. Id. at 1251. In short, the “scheme” was shown to neither involve nor contemplate the deprivation of McNeive’s honest services to the city or public. Likewise, in United States v. Rabbitt, 583 F.2d 1014, 1026 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), the Eighth Circuit reversed the mail fraud convictions of Rabbitt, a state representative. Rabbitt had offered to introduce a friend’s architectural firm to certain public officials responsible for awarding state architectural contracts, in return for a ten percent commission on any work awarded. Id. at 1020. The government charged that his receipt of the resulting, undisclosed commissions defrauded the citizens of Rabbitt’s honest services. Id. at 1025. The evidence showed, however, that the officials who awarded the architectural contracts did so on merit alone and Rabbitt played no role in the selection of the firm. Id. at 1026. Because Rabbitt did not control the awarding of the contracts, or otherwise fail to fulfill his official duties, his conduct did not deprive the citizens of his honest services. Id. (noting case’s resemblance to McNeive, 536 F.2d at 1251-52). The court also observed that the government failed to cite any applicable standard requiring Rabbit to disclose his interest in the contracts, and thus, the citizens were not deprived of any right to such disclosure. Id. at 1026. The McNeive and Rabbitt cases illustrate that although a public official might engage in reprehensible misconduct related to an official position, the conviction of that official for honest-services fraud cannot stand where the conduct does not actually deprive the public of its right to her honest services, and it is not shown to intend that result. Similarly, if a non-public-official is prosecuted for scheming to defraud the public of an official’s honest services, the government must prove that the target of the scheme is the deprivation of the official’s honest services. If the “scheme” does not, as its necessary outcome, deprive" }, { "docid": "16558049", "title": "", "text": "Viewing the evidence in the light most favorable to the government, we conclude a rational jury could have found Foster’s conduct had an actual, and certainly a potential, effect on interstate commerce. 2. Color of Official Right Relying on United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), abrogated on other grounds by McNally v. United States, 483 U.S. 350, 356, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), superseded by statute, 18 U.S.C. § 1346, Foster argues there was insufficient evidence he was acting under color of official right, because there was no issue pending before the Council at the time he accepted the money. Foster’s reliance on Rabbitt is misplaced. First, there is no requirement under the Hobbs Act that the official must be acting in response to a pending issue; rather, an official’s conduct controls an undertaking for purposes of the Hobbs Act when the property is accepted. See, e.g., Evans v. United States, 504 U.S. 255, 265-68, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (concluding the “under color of official right” element does not require an affirmative act of inducement by the official, and “the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts”); United States v. Loftus, 992 F.2d 793, 796 (8th Cir.1993) (“When a public official accepts money and ‘asserts that his official conduct will be controlled by the terms of the promise or undertaking,’ that official has received money ‘under color of official right within the meaning of the Hobbs Act.’ ” (quoting McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991))). Second, Rabbitt is distinguishable from the present case. In Rabbitt, we reversed one count of a Hobbs Act conviction against a councilman for accepting a fee for introducing an architectural firm to a potential state contractor. Rabbitt, 583 F.2d at 1019, 1028. We concluded the government had not shown the councilman was acting in his official capacity when he introduced the parties, because the councilman did not have the authority to award" }, { "docid": "23224559", "title": "", "text": "fear of economic injury. Fear of economic loss is sufficient to constitute extortion, see Callanan v. United States, 223 F.2d 171, 175-76 (8th Cir.), cert. denied, 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764 (1955); Bianchi v. United States, 219 F.2d 182 (8th Cir.), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249 (1955), even if the interest threatened is only an anticipated one. See United States v. Addonizio, 451 F.2d 49 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972). The record lacks any substantial evidence of “fear” as a basis for the Berger-Field payments to Rabbitt. Neither did the firm believe that state contracts could not be acquired without Rabbitt’s introduction. Indeed, evidence indicated Berger-Field had secured state contracts prior to its agreement with Rabbitt and acquired other state contracts during the years here in question without Rabbitt’s assistance. The evidence further indicates Berger-Field was a willing collaborator who sought and paid for Rabbitt’s good words to influential people, thus giving Berger-Field access on a friendly basis to state officials who awarded architectural contracts on merit. The principals of Berger-Field all expressed anger, not fear, at hearing of Rabbitt’s ten percent demand. One associate described the demand as “poor thanks” after their consistent political contributions and support. Nevertheless, they decided to pay. 2. Under Color of Official Right. Extortion “under color of official right” incorporates common law extortion, the taking of money by a public official not due him or his office for the performance or nonperformance of an official function. The term includes the misuse of one’s office to induce payments not due the person or his office. United States v. Hathaway, supra, 534 F.2d at 394. The official need not control the function in question if the extorted party possesses a reasonable belief in the official’s powers. See United States v. Hathaway, supra, 534 F.2d 386; United States v. Mazzei, supra, 521 F.2d 639; United States v. Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 1562, 43 L.Ed.2d 775 (1975)." }, { "docid": "16790945", "title": "", "text": "of false pretenses, representations, or promises. A scheme to defraud under the Mail Fraud Statute may include a plan to deprive citizens of the honest and impartial functioning of a public official and this is \"something of value” within the meaning of the mail fraud statute. . The Eighth Circuit in Rabbitt uses language that clearly reduces the effect of defendant’s argument on this issue: “Whether a showing of dishonesty on the part of a state official, outside his official duties, with no financial loss to the state constitutes a fraud upon the public and thereby statutory mail fraud is, in our judgment, highly questionable.” 583 F.2d at 1024 (emphasis added). . In Rabbitt, the evidence indicated that Rabbitt recommended an architectural firm as competent architects to the persons authorized to hire architects for Missouri state projects. Rabbitt was paid by the architectural firm ten percent of the gross fees attributable to his influence. . At least one board member (Jean Berdnick) testified she would have consulted with attorneys for advice had she been aware of the mayor’s hidden interest in the contract. . The relevant testimony provided: MR. RAPHAELSON: (Counsel for the Prosecution) And if in addition to his [Gerretsen's] own vote he controlled just two votes * * * and there was a three/three tie amongst the Village Board members, was there a tie-breaking procedure? MAYOR HAMM: Yes, sir. I vote when ties occur. . The following exchange took place in open court on August 5, 1985, prior to closing arguments: MR. RAPHAELSON: (Counsel for the Prosecution) With the exception of the knowingly instruction, which you have two versions of. One was the head-in-the-sand — what's called the head-in-the-sand sentence at the end, the other without, which is instructions 20-A and 20-B. Our position is this, Judge: Mr. Lovett testified on, I don’t recall if it was direct or cross right now, but he testified that — he used the words, \"I closed my eyes to whatever evil lay in anybody else's mind when I was having all of these discussions.’’ I think that at least in rebuttal," }, { "docid": "23224556", "title": "", "text": "the public either of some potential tangible gain such as favorable contracts, or of its right to honest and fair dealing in the conduct of the officer in question, or of its right to disclosure of the officer’s interest in the transaction at issue. We find none of these factors present in this case. The state officials who awarded architectural contracts did so on merit. There is no evidence that Rabbitt’s use of his friendship, position, and influence to aid Berger-Field in obtaining contracts resulted in inferior work, greater expense, or any other tangible loss to the citizens or state. We also find no evidence that Rabbitt’s conduct deprived the citizens of their right to honesty and fairness in the conduct of his official duties. Rabbitt did not, in his official capacity, control the awarding of state contracts to architects. There is no evidence that Rabbitt failed to carry out the duties and responsibilities of his legislative office or leadership positions for the sake of Berger-Field. In this respect, the case resembles United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976), in which the chief plumbing inspector for the City of St. Louis accepted unsolicited gratuities from plumbing contractors. While McNeive benefited from his office in a reprehensible way, his conduct neither injured the Government nor affected the performance of his duties and therefore did not violate federal law. We held that McNeive did not commit fraud by defrauding citizens of a right to “honest and faithful service.” Finally, Rabbitt was under no affirmative duty to disclose his interest. The Government refers to no standard of conduct applicable to legislators which clearly required disclosure of Rabbitt’s interest in the Berger-Field contracts. The candidate disclosure act applied to Rabbitt as a candidate for Lieutenant Governor, not to his services as a legislator. Thus, he did not deprive the citizens of any right to disclosure. To affirm the convictions on the Berger-Field mail fraud counts would mean expansion of the statute beyond its application in prior political corruption cases. This we refuse to do. We hold that Rabbitt’s motion for judgment" }, { "docid": "16558050", "title": "", "text": "does not require an affirmative act of inducement by the official, and “the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts”); United States v. Loftus, 992 F.2d 793, 796 (8th Cir.1993) (“When a public official accepts money and ‘asserts that his official conduct will be controlled by the terms of the promise or undertaking,’ that official has received money ‘under color of official right within the meaning of the Hobbs Act.’ ” (quoting McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991))). Second, Rabbitt is distinguishable from the present case. In Rabbitt, we reversed one count of a Hobbs Act conviction against a councilman for accepting a fee for introducing an architectural firm to a potential state contractor. Rabbitt, 583 F.2d at 1019, 1028. We concluded the government had not shown the councilman was acting in his official capacity when he introduced the parties, because the councilman did not have the authority to award contracts, nor did the architectural firm reasonably believe he had such authority. Id. at 1028. The evidence supports the opposite conclusion in the present case. Foster testified that in his capacity as alderman, he voted on issues brought before the Council. Foster also testified he knew McDougal needed a favorable vote from the Council to proceed with the Project. McDougal testified he believed Foster could influence the Council’s vote. Foster guaranteed McDougal four votes in exchange for money to help Freeman. The jury heard audio and videotape recordings of Foster telling McDougal that as long as his boy Billy Freeman was happy, he was happy. Another videotape showed Foster taking money from an undercover FBI agent posing as an investor from Dallas, as they discussed the Council’s votes. The same videotape showed Foster handing the undercover agent his business card which displayed Foster’s position as alderman on the Council, and Foster telling the FBI agent he (Foster) and Freeman “were going to do what they needed to do.” During a post-indictment FBI interview, Foster admitted" }, { "docid": "16790919", "title": "", "text": "the citizens of Fox Lake of their rights to good government and to the honest and loyal services of public officials, specifically Mayor Hamm. This court previously addressed this issue in United States v. Alexander, 741 F.2d 962 (7th Cir.1984): “A scheme to defraud the citizenry and government of an intangible right, such as honest service, can be contrasted with a scheme to obtain tangible property through fraud. A scheme to obtain tangible property is cognizable under the mail fraud statute regardless of the relationship between' the defendant and his victim. In contrast, an intangible rights scheme is only cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity. * * * There can be no doubt that a nonfiduciary who schemes with a fiduciary to deprive the victim of intangible rights is subject to prosecution under the mail fraud statute.” 741 F.2d at 964. The defendant argues that no evidence was presented to the jury establishing that Mayor Hamm had actually failed to carry out his duties and responsibilities as the mayor of Fox Lake, Illinois, thus Fox Lake suffered no loss of any rights — tangible or intangible. The defendant relies on United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). Rabbit, who was an elected member of the Missouri State House of Representatives, was indicted for defrauding the citizens of Missouri by (1) accepting a ten percent commission on architectural contracts awarded to a firm he recommended to persons authorized to employ architects for state-related projects, and (2) concealing or failing to make public his interest in those contracts. The court in Rabbitt found that there was no tangible or intangible loss suffered by the citizens of Missouri because the contracts were awarded on merit by the state officials. Id. at 1025-26. The Eighth Circuit held that the defendant’s acceptance of commissions on state architectural contracts awarded to an architectural firm he recommended to the state officials responsible for awarding such contracts did not establish of itself" }, { "docid": "23224560", "title": "", "text": "a friendly basis to state officials who awarded architectural contracts on merit. The principals of Berger-Field all expressed anger, not fear, at hearing of Rabbitt’s ten percent demand. One associate described the demand as “poor thanks” after their consistent political contributions and support. Nevertheless, they decided to pay. 2. Under Color of Official Right. Extortion “under color of official right” incorporates common law extortion, the taking of money by a public official not due him or his office for the performance or nonperformance of an official function. The term includes the misuse of one’s office to induce payments not due the person or his office. United States v. Hathaway, supra, 534 F.2d at 394. The official need not control the function in question if the extorted party possesses a reasonable belief in the official’s powers. See United States v. Hathaway, supra, 534 F.2d 386; United States v. Mazzei, supra, 521 F.2d 639; United States v. Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 1562, 43 L.Ed.2d 775 (1975). In the present case, the Government does not contend that Rabbitt possessed actual power to award contracts for architectural services within his legislative powers or that Rabbitt so intimated. The Government argues that Rabbitt possessed the apparent power to award contracts and that Berger-Field believed in Rabbitt’s power to secure contracts for the firm. The evidence, however, does not support that argument. All the principals of Berger-Field knew Rabbitt did not award contracts in his official capacity. Each architect knew the most Rabbitt could do was recommend them to state contractors as qualified architects and thereby gain them a friendly ear. Moreover, while Rabbitt’s influence obviously helped these architects obtain state jobs, no testimony established that any state contracting officer awarded any contract to Berger-Field because of Rabbitt’s influence or that Berger-Field believed Rabbitt’s introduction was enough to secure the work. The Government failed to prove Berger-Field entertained a reasonable belief Rabbitt possessed effective control over the award of architectural contracts necessary to establish extortion “under color of official right” in violation of the Hobbs" } ]

[ { "docid": "15889267", "title": "", "text": "relative accessibility of [the] place of trial; (9) docket condition of each district ... involved; and (10) any other special elements which might affect the transfer. Id. at 243-44, 84 S.Ct. 769 (quotation omitted). Although Platt involved a corporate defendant, the ten Platt factors are used in cases involving individual defendants as well. A balance should be struck among the most important factors in the particular case to determine whether transfer is appropriate. See, e.g., United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990). As to the burdens of proof, this court has stated in 28 U.S.C. § 1404(a) cases that “[t]he burden is on the moving party to establish that a balancing of proper interests weigh in favor of the transfer.” Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995); Elbeco Inc. v. Estrella de Plato, Corp., 989 F.Supp. 669, 679 (E.D.Pa.1997); 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3848, at 383 (2d ed.1986). While the burden is on the defendant, the defendant is not required to show “truly compelling circumstances for ... change .... [of venue, but rather that] all relevant things considered, the case would be better off transferred to another district.” Balsimo, 68 F.3d at 187. It is not surprising given the similarity between the language of § 1404(a) providing the standard governing transfer of civil cases (“[f|or the convenience of parties and witnesses, in the interest of justice”) and that of Rule 21(b) governing transfer of criminal cases (“[f]or the convenience of parties and witnesses, and in the interest of justice”), that the courts have held that the criminal defendant has the burden of making the case for transfer. See, e.g., United States v. Spy Factory, Inc., 951 F.Supp. 450, 464 (S.D.N.Y.1997) (“ ‘[T]he burden is on the moving defendant to justify a transfer under Rule 21(b).’ ”) (quoting United States v. Aronoff, 463 F.Supp. 454, 461 (S.D.N.Y.1978)); United States v. Washington, 813 F.Supp. 269, 275 (D.Vt.1993); United States" } ]

[ { "docid": "7424425", "title": "", "text": "alleges trafficking in counterfeit goods, in violation of 18 U.S.C. §§ 2320 and 2, claiming that Antenna Nine was really an obsolete antenna that was made to appear to be a newer model. Since the Indictment was returned on July 8, 1999, both the Government and defense counsel have always agreed that these cases involve unusually complex facts and voluminous documents. Thus, both sides agreed in 1999 and again in early 2000 to long continuances in order to afford adequate preparation time, including the retention and preparation of experts. Indeed, late last month the parties submitted a third “unopposed joint motion” for a continuance, which the Government again does not oppose. Before reaching the continuance motion, however, we must first dispose of the Coffees’ motions to transfer. Legal Standards Fed.R.Crim.P. 21(b) states: For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district. Motions under Rule 21(b) are addressed to the court’s discretion. Although some courts maintain that there is a general rule that criminal prosecutions should remain in the district in which they were initiated, see, e.g., United States v. Hays, No. 96-51, 1997 WL 35666 at *3 (E.D.Pa. Jan. 29, 1997), Professors Wright and Miller believe, and we agree, that such a general rule serves to thwart the intention of Rule 21(b), see 2 Charles Alan Wright, Federal Practice & Procedure § 344 at 266 (2d ed. 1982 & Supp.2000). While the burden is on the defendant to show that transfer would serve the purpose specified in the Rule, see 2 Federal Practice & Procedure § 344 at 266-67, “[njothing in Rule 21(b) or in the cases interpreting it place on the defendant seeking a change of venue the burden of establishing truly compelling circumstances for such a change. It is enough if, all relevant things considered, the case would be better off transferred to another district.” Matter of Balsimo, 68 F.3d 185, 187 (7th Cir.1995) (Posner, C.J.) (quoted" }, { "docid": "17394788", "title": "", "text": "that his family and business were in Florida and potential witnesses as well as other defendants and their attorneys resided in Florida, or were more accessible in Florida, and that he lacked resources sufficient to bring his witnesses to Illinois for trial. The government responded that venue was proper in the Southern District of Illinois because there were 11 defendants charged in the indictment and only Zylstra and Ligia Viana out of the 11 defendants requested a change of venue which would have resulted in great inconvenience and expense for nu merous witnesses, as well as separate trials, had the motions been granted. The government also argued that Richard Thorp (who directed the operations of the “Company”) resided in the Southern District of Illinois and further that the imported marijuana was transported into the Southern District of Illinois prior to distribution in the Chicago area and further that 38 of the 40 offenses charged in the indictment occurred in the Southern District of Illinois. Additionally, the vast majority of the witnesses the government intended to call and the documentary evidence upon which it relied were located in the district of proper venue, the Southern District of Illinois. We recognize that the question of transfer of venue under Rule 21(b), “ ‘(f)or the convenience of parties and witnesses and in the interest of justice,’ is one involving [a] realistic approach, fair consideration and judgment of sound discretion on the part of the district court.” United States v. Phillips, 433 F.2d 1364, 1368 (8th Cir.1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). “Change of venue in a criminal case is discretionary, and a trial judge’s decision on the matter is entitled to deference.” United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982). It is clear that the trial court properly exercised its discretion and considered all of the facts and circumstances, including the alleged inconveniences to the defendant and the government, in denying the defendant’s change of venue motion. See United States v. Calabrese, 645 F.2d 1379, 1384 (10th Cir.), cert. denied, 451 U.S. 1018, 101" }, { "docid": "22350845", "title": "", "text": "the eve of the court’s setting a date for trial. The court pointed out that all of the defendants were currently represented by counsel of their own choosing from outside of Puerto Rico, most of them having put in some nine months of work on the case; it concluded that transfer to Puerto Rico, resulting in the need for local counsel to familiarize themselves with the case, would inevitably delay the trial. Six months later, defendants renewed their Rule 21(b) motion. In a Ruling on the Defendants’ Motion To Change Venue, Federal Rules of Criminal Procedure 21(a)-(b), dated January 27, 1987 (“Second Venue Ruling”), the court denied the renewed motion. Though noting that the circumstances had changed somewhat, in that seven of the defendants had recently been released from pretrial detention, the court found that most of the factors favoring retention of the case in the District of Connecticut remained. Disposition of a Rule 21(b) motion is vested in the sound discretion of the district court. See, e.g., United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990); United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir.1979). In deciding such a motion, the court should consider such factors as (a) location of the defendants; (b) location of the possible witnesses; (c) location of the events likely to be at issue; (d) location of relevant documents and records; (e) potential for disruption of the defendants’ businesses if transfer is denied; (f) expenses to be incurred by the parties if transfer is denied; (g) location of defense counsel; (h) relative accessibility of the place of trial; (i) docket conditions of each potential district; and (j) any other special circumstance that might bear on the desirability of transfer, id.; see Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. at 243-44, 84 S.Ct. at 771-72. No one of these considerations is dispositive, and “[i]t remains for the court to try to strike a balance and determine which factors are of greatest importance.” United States v. Stephenson, 895 F.2d at 875. In the present case, the district court gave thorough consideration to all" }, { "docid": "7424427", "title": "", "text": "in 2 Federal Practice & Procedure § 344 at Supp. 88). The factors to be considered in deciding a motion to transfer under Rule 21(b) were established in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). In Platt, the Court addressed a motion for transfer of venue that a corporate defendant filed in a criminal antitrust case. The Supreme Court endorsed a ten-factor test for transfer that the district court had applied. These ten factors are: (1) the location of the defendant, (2) the location of possible witnesses, (3) the location of events likely to be in issue, (4) the location of documents and records likely to be involved, (5) disruption of defendants’ business unless the case is transferred, (6) expense to the parties, (7) location of counsel, (8) relative accessibility of the place of trial, (9) docket condition of each district or division involved, and (10) any other special elements which might affect the transfer, see Platt, 376 U.S. at 243-44, 84 S.Ct. at 771. Although this test was not expressly formulated to deal with natural person defendants in a criminal case, and Platt itself did not discuss or analyze the elements at any length, courts faced with motions under Fed.R.Crim.P. 21(b) typically apply the Platt ten-part test, see, e.g., United States v. Hays, 1997 WL 35666 at *3 (E.D.Pa. Jan. 29,1997), United States v. Milikowsky, No. 93-340, 1993 WL 367115 at *2 (E.D.Pa. Aug.31, 1993), and United States v. Kennedy, No. 86-159, 1986 WL 6227 at *1 (E.D.Pa. May 28, 1986). Charles A. Wright & Arthur R. Miller also endorse the Platt factors as the proper test, although they note that the Supreme Court’s endorsement of the test was implicit, see 2 Federal Practice & Procedure § 344 at 274. With respect to the weight to be given the various factors, Wright and Miller also state that, “It is unlikely that any one of these factors will be present by itself in a particular case. Ordinarily the various factors appear in combination, with some pointing in favor of transfer" }, { "docid": "3296166", "title": "", "text": "on July 16, 2004. By Order dated August 11, 2004 [D.E. # 86], I denied all of the substantive motions. I also granted in part and denied in part the motion for limited Bill of Particulars, and granted the motion for timely production of exculpatory material and disclosure of impeachment information. I stated that, by separate order, I would set forth my reasons in writing for denying the substantive motions. I hereby enter this Order to accomplish that purpose. ' II. DEFENDANTS’ JOINT MOTION TO TRANSFER [D.E. # 28] The Defendants, Rick Dean Stickle and Michael D. Reeve, move, pursuant to Fed.R.Crim.P. 21(b), for an order transferring this case to the Northern District of Iowa. A motion for change of venue to another district made pursuant to Fed. R.Crim.P. 21(b) is based on an evaluation of “convenience of the parties and the wit nesses and in the interests of justice.” In Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), the United States Supreme Court summarized factors that are properly considered by a district court in evaluating a transfer motion, including: the location of the defendants; the location of possible witnesses; the location of events likely to be at issue; the location of documents; potential disruption of a defendant’s business; expenses to the parties; location of counsel; relative accessibility of the place of trial; the docket condition of each district involved, and any other special factors which might affect transfer. The relative significance of these factors varies widely from case to case and “[t]he decision of whether to grant [a] motion to transfer under Rule 21 [lies] within the trial court’s discretionary authority .... ” United States v. Kopituk, 690 F.2d 1289, 1322-23 (11th Cir.1982) (citations omitted). The burden falls on the defendant to demonstrate a substantial imbalance of inconvenience to himself if he is to succeed in nullifying the prosecutor’s choice of venue. United States v. Sklaroff, 323 F.Supp. 296, 323-24 (S.D.Fla.1971). Applying these factors, I deny the motion because Defendants Stickle and Reeve have failed to sufficiently demonstrate a substantial" }, { "docid": "792238", "title": "", "text": "if the defendants’ argument that the Government must demonstrate probable cause that the defendants had such knowledge were accepted, the Court believes that the order to show cause, when read in conjunction with the Bainton Affidavits of March 30th and April 29th, and documents submitted therewith, does present substantial evidence that the defendants were aware of the Consent Order and Injunction issued in July 1982. It is also suggested that the Government should be required to allege facts sufficient to establish probable cause to believe that the acts of contempt alleged actually occurred. While a Court may in its discretion require such a showing in a contempt proceeding, In re United Corporation, 166 F.Supp. 343 (D.Del.1958), this is not mandatory and the pleadings in support of the issuance of the show cause order may rest solely upon information and belief. United States v. United Mineworkers, supra, 330 U.S. at 296, 67 S.Ct. at 697; Wright & Miller, Federal Practice and Procedure (Criminal) § 710. Motions for a Separate Trial Defendants Rochman, Young and Pariseault move, pursuant to Rule 14 of the Rules of Criminal Procedure, for a trial severance. In addition, Rochman moves under Rule 21(b) for a change of venue. Rule 21(b) provides that: “for the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him ... to another district.” A motion for a change of venue is addressed to the sound discretion of the trial judge, United States v. Garber, 413 F.2d 284 (2d Cir.1969), and in determining the propriety of a transfer request, he is to be guided, in general, by the criteria set forth in Platt v. Minnesota Mining & Mfg. Co,, 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). The factors to be considered in addressing Rochman’s motion are: location of the defendant, counsel, potential witnesses, and documents and records likely to be in issue; disruption of the defendant’s business; expense to the parties; relative accessibility of the place of trial; and the docket condition of each district" }, { "docid": "7243510", "title": "", "text": "340 (1961); In re Palister, 136 U.S. 257 (1890); United States v. Floyd, 228 F.2d 913 (7th Cir.), cert. denied, 351 U.S. 938, 76 S.Ct. 835, 100 L.Ed. 1466 (1956); United States v. Elliot, 446 F.Supp. 209 (W.D.Va.1978). Obviously, venue in this District on these last two counts is also consistent with the principles supporting Candella, supra. The Flaxman decision is clearly distinguishable. Not only was that decision rendered well before Candella, but there venue in this District was based upon an improper submission to a governmental office here. The application in Flaxman should have been submitted to and processed by a Brooklyn office. In fact submission' to the Manhattan office actually violated the agency’s regulations. There is no such claim of improper submission made in this case. Defendant’s motion to transfer venue to the Eastern District of New York is equally meritless. The motion, which is addressed to the Court’s discretion, is based on Rule’ 21(b), Fed.R.Crim.P., which provides in pertinent part that: “For the convenience of parties and witnesses, and in the interests of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.” The complete set of factors most often recognized as those applicable to the decision on a motion to transfer venue are: “(1) location of . defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.” Platt v. Minnesota Mining Co., 376 U.S. 240, 243-4, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964). We are advised that the Government’s witnesses and documents will be present in this District. Defendant has failed to suggest any witness he contemplates calling who would be so greatly inconvenienced by the trial" }, { "docid": "7012703", "title": "", "text": "L.Ed.2d 674 (1964), the Supreme Court held that a defendant has no right to be tried in his home district. Rather, the constitutional venue consideration is the determination of where the crime was committed. Platt, 376 U.S. at 245, 84 S.Ct. at 772. In a case such as the one at bar, where the alleged crimes took place in multiple districts, 18 U.S.C. § 3237(a) becomes relevant. That section provides: “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). Congressman McDade does not dispute that venue is proper in the Eastern District of Pennsylvania, since the government has alleged at least one act which occurred in the Eastern District in each count of the indictment. Rather, Mr. McDade argues that the court should exercise its broad discretion under Federal Rule of Criminal Procedure 21(b) to transfer the case for the convenience of the parties and witnesses. Rule 21(b) provides: “For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district.” Fed.R.Crim.P. 21(b). In Platt, the Supreme Court listed ten factors for district courts to consider when deciding whether to transfer a case under Rule 21(b). They are: (1) location of the defendant, (2) location of possible witnesses, (3) location of events likely to be in issue, (4) location of documents and records likely to be involved, (5) disruption of defendant’s business if the case is not transferred, (6) expense to the parties, (7) location of counsel, (8) relative accessibility of place of trial, (9) docket condition of each district involved, and (10) any other special elements. Platt, 376 U.S. at 243-44, 84 S.Ct. at 771-72. I analyze the Platt factors seriatim. As for the first factor, location of the defendant, Mr. McDade apparently splits his time between" }, { "docid": "15889266", "title": "", "text": "lengthy statement — such as the eight-page opinion in United States v. Coffee, 113 F.Supp.2d 751 (E.D.Pa.2000), describing the court’s reasons for transferring a case — as long as there is a sufficient explanation of the factors considered, the weight accorded them, and the balancing performed. Most important is that the district court’s explanation for the transfer demonstrate that the court recognized the nature of the showing that must be made to support a transfer and the parties’ respective burdens. In Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), a criminal antitrust case, the Supreme Court enumerated ten factors that should be considered by a court in deciding whether to transfer a case. They are: (1) location of [the] ... defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defen dant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of [the] place of trial; (9) docket condition of each district ... involved; and (10) any other special elements which might affect the transfer. Id. at 243-44, 84 S.Ct. 769 (quotation omitted). Although Platt involved a corporate defendant, the ten Platt factors are used in cases involving individual defendants as well. A balance should be struck among the most important factors in the particular case to determine whether transfer is appropriate. See, e.g., United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990). As to the burdens of proof, this court has stated in 28 U.S.C. § 1404(a) cases that “[t]he burden is on the moving party to establish that a balancing of proper interests weigh in favor of the transfer.” Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995); Elbeco Inc. v. Estrella de Plato, Corp., 989 F.Supp. 669, 679 (E.D.Pa.1997); 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure" }, { "docid": "17075348", "title": "", "text": "located here. Cf. Saavedra, 223 F.3d at 93 (finding district suitable for factfinding where it “has been the site of concerted law enforcement efforts to disable the Latin Kings’ racketeering activities,” even though action in question occurred elsewhere). Under the facts as described in the government’s proffer, venue in this district is proper. Accordingly, the motion to dismiss Counts One, Five, Six, and Seven is denied. (2) Defendant’s Motion for Transfer Carey next contends that the court should transfer this case to the District of Columbia pursuant to Rule 21(b), F.R.Crim. P. Generally, “a criminal prosecution should be retained in the original district,” unless the interests of justice require a transfer. United States v. Guastella, 90 F.Supp.2d 335, 338 (S.D.N.Y.2000) (Kram, J.). The defendant bears the burden of establishing the need for transfer. See id. In ruling on a Rule 21(b) motion, a court should consider a variety of factors, including: (a) location of the defendant; (b) location of possible witnesses; (c) location of events at issue; (d) location of relevant documents and records; (e) potential disruption of defendant’s business; (f) expense to the parties; (g) location of defense counsel; (h) relative accessibility of the place of trial; (i) docket conditions of each potential district; and (j) any other special circumstance that might bear on the desirability of transfer (“Platt factors”). See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). No one of these considerations is dispositive, and “[i]t remains for the court to try to strike a balance and determine which factors are of greatest importance.” United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990). The decision to grant a Rule 21(b) motion rests with the discretion of the trial court. See id. The crux of Carey’s argument rests on the fact that four of the seven counts of the Indictment concern allegedly false statements made in Washington, D.C., and that the underlying conduct that was the subject of these statements — unlawful enrichment of the Carey campaign — occurred chiefly in Washington, D.C. Carey contends that" }, { "docid": "15623283", "title": "", "text": "States, with each count addressing a separate export transaction. Id. at 17-20. ANALYSIS I. Motion for Transfer of Venue under Rule 21(b) Defendants have filed a motion to transfer this case to the Eastern District of Kentucky, pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure, “for the convenience of the parties and witnesses and in the interest of justice.” In Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), the Supreme Court provided federal courts with guidance on how to balance the conflicting interests of parties with regard to transfer-of-venue motions in criminal cases. The parties here agree that Platt states the relevant considerations. The ten so-called “Platt factors” are: (1) location of the defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer. See id. at 243-^4, 84 S.Ct. 769. The defendant, as the only possible moving party under Rule 21(b), bears the burden of proving that “all things considered, the case would be better off transferred to another district.” See In re Balsimo, 68 F.3d 185, 187 (7th Cir.1995). The fact-intensive and discretionary nature of the Platt inquiry makes it difficult to generalize about how courts decide which of two districts is more appropriate when, as here, either venue would be proper. “No one of [the Platt ] considerations is disposi-tive, and ‘[i]t remains for the court to try to strike a balance and determine which factors are of greatest importance.’ ” United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir.1990) (quoting United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990)). Nevertheless, some patterns are discernable. For instance, several judges have interpreted Rule 21(b) as favoring the government’s choice of forum, so long as" }, { "docid": "23513475", "title": "", "text": "three counts of importing marijuana. As necessary, we will discuss below the details of the smuggling operations and the defendants’ participation therein. Defendants raise a host of challenges to their convictions and sentences. We address the bulk of them in our discussion; the remainder are palpably without merit. I. ANDRINI-VARGA A. Andrini-Varga raises a number of claims relating to the venue of his trial. Though the majority of the group’s activities took place in Puerto Rico, the defendants were tried in Milwaukee. This prompted Andrini-Varga to file a motion pursuant to Federal Rule of Criminal Procedure 21(b) requesting that his trial be transferred to Puerto Rico. The district court denied the motion and Andrini-Varga contests that decision on appeal. Rule 21(b) states that a district court may effect transfer of venue (as to particular defendants or as to particular counts of an indictment) “[f]or the convenience of the parties and witnesses, and in the interest of justice.” We defer to the district court’s resolution of Rule 21(b) motions, and will reverse its decision only if it amounts to an abuse of discretion. United States v. Zylstra, 713 F.2d 1332, 1336 (7th Cir.1983). “The facts must compel and not merely support venue transfer before an abuse of discretion will be found by an appellate court.” United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982). Andrini-Varga asserts that the balance of relevant factors, which were set out in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964), militate in favor of his request for a change of venue; he makes his home in Puerto Rico, all of his witnesses resided in Puerto Rico, and his participation in the drug ring’s import operations occurred solely in Puerto Rico. Weighed against these factors, however, was the fact that Andrini-Varga was charged with conspiring to violate the drug laws and tried with five co-defendants. Because of the number of defendants involved, to have transferred Andrini-Varga’s trial—essentially granting him a severance—would have given rise to a “multiplication of litigation” resulting in great inconvenience to the" }, { "docid": "4906794", "title": "", "text": "its original jurisdiction, see Lewis, supra; Westover, supra; and if the new district has no original jurisdiction over the offense by virtue of the redistricting, see Mizell v. Vickrey, supra; then the defendant who wishes to transfer his case from the original district to the new district is in the same position as any defendant wishing to transfer a case to another district for convenience factors under Rule 21(b), and should not be placed in a better position than any other defendant by the fortuitous transfer of the territory where the crime was allegedly committed from one federal district to another, see Westover, supra at 166. For the foregoing reasons, defendant in this case is not entitled to an automatic transfer under 18 U.S.C. § 3240. B. Rule 21(b) motion [3-5] The Court will, however, grant defendant’s motion to transfer under Rule 21(b), providing for transfers for the convenience of parties and witnesses and in the interests of justice. In Platt v. Minnesota Mining & Mfcting. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), the Supreme Court noted 9 factors to be considered in making a determination under Rule 21(b): (1) location of the defendant; (2) location of witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; and (9) docket conditions in each district. Platt at 243-44, 84 S.Ct. at 771-772; see also United States v. Keuylian, 602 F.2d 1033, at 1037-1038 (2d Cir., 1979). In addition, a court may consider “any other special elements which might affect the transfer.” Platt, supra, 376 U.S. at 244, 84 S.Ct. at 771; Keuylian, supra, at 1037. Under the Rule as amended in 1966, a court does not need to consider whether the transferee court would have original jurisdiction over the case. United States v. Williams, 437 F.Supp. 1047, 1051 (W.D.N.Y. 1977). The decision to transfer is at the discretion of the trial judge. Platt, supra; Keuylian, supra; Williams, supra. In" }, { "docid": "15623282", "title": "", "text": "See Indict, at 6-8. The indictment alleges that Sharbaf and an unidentified co-conspirator would send requests to Quinn and Holland for price quotations on CMHC parts, sometimes using Mahmood as an intermediary. Id. at 7-8. Quinn and Holland, the indictment states, would provide the quotes and, if Sharbaf and his employer approved of the prices, Quinn and Holland would arrange to ship the parts to Mahmood in Dubai, knowing that Mahmood was simply a middleman and that the parts were destined.for Iran. Id. at 8. All of this, the indictment asserts, was done without obtaining (or seeking) OFAC approval of the transactions. Id. Count One of the indictment alleges the crime of “Conspiracy to Violate the United States Iranian Trade Embargo,” and is based on a series of alleged overt acts in furtherance of that conspiracy, including a number of e-mail communications among the alleged conspirators. Id. at 6-16. Counts Two through Six allege “Violation of the United States Iranian Embargo,” as well as the crime of “aiding and abetting” an offense against the United States, with each count addressing a separate export transaction. Id. at 17-20. ANALYSIS I. Motion for Transfer of Venue under Rule 21(b) Defendants have filed a motion to transfer this case to the Eastern District of Kentucky, pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure, “for the convenience of the parties and witnesses and in the interest of justice.” In Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), the Supreme Court provided federal courts with guidance on how to balance the conflicting interests of parties with regard to transfer-of-venue motions in criminal cases. The parties here agree that Platt states the relevant considerations. The ten so-called “Platt factors” are: (1) location of the defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of" }, { "docid": "15623284", "title": "", "text": "trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer. See id. at 243-^4, 84 S.Ct. 769. The defendant, as the only possible moving party under Rule 21(b), bears the burden of proving that “all things considered, the case would be better off transferred to another district.” See In re Balsimo, 68 F.3d 185, 187 (7th Cir.1995). The fact-intensive and discretionary nature of the Platt inquiry makes it difficult to generalize about how courts decide which of two districts is more appropriate when, as here, either venue would be proper. “No one of [the Platt ] considerations is disposi-tive, and ‘[i]t remains for the court to try to strike a balance and determine which factors are of greatest importance.’ ” United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir.1990) (quoting United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990)). Nevertheless, some patterns are discernable. For instance, several judges have interpreted Rule 21(b) as favoring the government’s choice of forum, so long as venue is proper. See, e.g., United States v. The Spy Factory, Inc., 951 F.Supp. 450, 464 (S.D.N.Y.1997) (recognizing a “general presumption that ‘a criminal prosecution should be retained in the original district’ ”) (citation omitted); In re United States of America, 46 Fed. Appx. 133, 136 (3d Cir.2002) (Barry, J., dissenting from denial of mandamus petition) (“all things being equal, a case should stay put”). In other words, if consideration of the Platt factors leaves the Court in equipoise, the Court should err on the side of denying the motion to transfer. Such a view of Rule 21(b) is consistent with the trend in recent years away from granting transfers to mitigate the financial, emotional, or practical burdens of trial in a distant locale. A leading treatise on federal criminal procedure collects “illustrative” cases in which courts have either granted or denied transfer for reasons of trial convenience, and — with the exception of an unusual 1990 case in which the considerations supporting transfer to the Western District of Washington included the possibility of a" }, { "docid": "17394789", "title": "", "text": "call and the documentary evidence upon which it relied were located in the district of proper venue, the Southern District of Illinois. We recognize that the question of transfer of venue under Rule 21(b), “ ‘(f)or the convenience of parties and witnesses and in the interest of justice,’ is one involving [a] realistic approach, fair consideration and judgment of sound discretion on the part of the district court.” United States v. Phillips, 433 F.2d 1364, 1368 (8th Cir.1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). “Change of venue in a criminal case is discretionary, and a trial judge’s decision on the matter is entitled to deference.” United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982). It is clear that the trial court properly exercised its discretion and considered all of the facts and circumstances, including the alleged inconveniences to the defendant and the government, in denying the defendant’s change of venue motion. See United States v. Calabrese, 645 F.2d 1379, 1384 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390, 454 U.S. 831, 102 S.Ct. 127, 70 L.Ed.2d 108 (1981). If the court had granted the defendant’s initial motion for change of venue it would in all probability have resulted in the severance of several trials into multiple trials in various districts throughout the country involving the other codefendants. Such a multiplication of litigation would have resulted in great inconvenience to all the witnesses (repeated appearances in various and sundry judicial districts) as well as greater expense. Courts must be mindful of these difficulties as well as the actual expense and waste of court time in our severely burdened and overtaxed federal judicial system. “Criminal defendants have no constitutional right to have a trial in their home districts, nor does the location of the defendant's home have 'independent significance in determining whether transfer to that district would be in the interest of justice.’” United States v. McManus, 535 F.2d 460, 463 (8th Cir.1976), cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977) (quoting Platt v. Minnesota Mining" }, { "docid": "23513476", "title": "", "text": "it amounts to an abuse of discretion. United States v. Zylstra, 713 F.2d 1332, 1336 (7th Cir.1983). “The facts must compel and not merely support venue transfer before an abuse of discretion will be found by an appellate court.” United States v. Hunter, 672 F.2d 815, 816 (10th Cir.1982). Andrini-Varga asserts that the balance of relevant factors, which were set out in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964), militate in favor of his request for a change of venue; he makes his home in Puerto Rico, all of his witnesses resided in Puerto Rico, and his participation in the drug ring’s import operations occurred solely in Puerto Rico. Weighed against these factors, however, was the fact that Andrini-Varga was charged with conspiring to violate the drug laws and tried with five co-defendants. Because of the number of defendants involved, to have transferred Andrini-Varga’s trial—essentially granting him a severance—would have given rise to a “multiplication of litigation” resulting in great inconvenience to the witnesses involved as well as considerable expense to the government. Zylstra, 713 F.2d at 1336. We recognize that the proper venue for criminal actions is normally “in [the] district in which the offense was committed,” see Fed.R.Crim.P. 18, and that the majority of the conspiracy’s activities took place in Puerto Rico. Nevertheless, given the countervailing considerations we have discussed above, and the fact that the drug ring did indeed distribute some of the drugs it imported in Milwaukee, we cannot say that the facts “compelled” the transfer of Andrini-Varga’s trial. The district court did not abuse its discretion in denying his Rule 21(b) motion. B. Andrini-Varga also argues that the district court erred in denying his motion requesting that his Wisconsin attorney be allowed to travel to Puerto Rico at government expense to interview potential witnesses, take their depositions, and investigate the scene of the drug ring’s alleged operations. Under Rule 15 of the Federal Rules of Criminal Procedure, an indigent defendant may petition the court for the payment of the cost of deposing witnesses" }, { "docid": "22350846", "title": "", "text": "875 (2d Cir.1990); United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir.1979). In deciding such a motion, the court should consider such factors as (a) location of the defendants; (b) location of the possible witnesses; (c) location of the events likely to be at issue; (d) location of relevant documents and records; (e) potential for disruption of the defendants’ businesses if transfer is denied; (f) expenses to be incurred by the parties if transfer is denied; (g) location of defense counsel; (h) relative accessibility of the place of trial; (i) docket conditions of each potential district; and (j) any other special circumstance that might bear on the desirability of transfer, id.; see Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. at 243-44, 84 S.Ct. at 771-72. No one of these considerations is dispositive, and “[i]t remains for the court to try to strike a balance and determine which factors are of greatest importance.” United States v. Stephenson, 895 F.2d at 875. In the present case, the district court gave thorough consideration to all of the appropriate factors. We see no abuse of discretion, and we affirm the denial of the motions substantially for the reasons stated in the court’s venue rulings. 2. The Motion To Change the Place of Trial Because of Pretrial Publicity Appellants also moved unsuccessfully for a change of venue pursuant to Rule 21(a), which provides, in pertinent part, that [t]he court upon motion of the defendant shall transfer the proceeding as to that defendant to another district ... if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district. Fed.R.Crim.P. 21(a). They contended that the adverse pretrial publicity in Connecticut was so prevalent as to prevent their receiving a fair trial. On these appeals, they pursue the argument that “official public statements coupled with the seditious language of the initial indictment, set the stage for an avalanche of prejudicial publicity" }, { "docid": "7424426", "title": "", "text": "21(b) are addressed to the court’s discretion. Although some courts maintain that there is a general rule that criminal prosecutions should remain in the district in which they were initiated, see, e.g., United States v. Hays, No. 96-51, 1997 WL 35666 at *3 (E.D.Pa. Jan. 29, 1997), Professors Wright and Miller believe, and we agree, that such a general rule serves to thwart the intention of Rule 21(b), see 2 Charles Alan Wright, Federal Practice & Procedure § 344 at 266 (2d ed. 1982 & Supp.2000). While the burden is on the defendant to show that transfer would serve the purpose specified in the Rule, see 2 Federal Practice & Procedure § 344 at 266-67, “[njothing in Rule 21(b) or in the cases interpreting it place on the defendant seeking a change of venue the burden of establishing truly compelling circumstances for such a change. It is enough if, all relevant things considered, the case would be better off transferred to another district.” Matter of Balsimo, 68 F.3d 185, 187 (7th Cir.1995) (Posner, C.J.) (quoted in 2 Federal Practice & Procedure § 344 at Supp. 88). The factors to be considered in deciding a motion to transfer under Rule 21(b) were established in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). In Platt, the Court addressed a motion for transfer of venue that a corporate defendant filed in a criminal antitrust case. The Supreme Court endorsed a ten-factor test for transfer that the district court had applied. These ten factors are: (1) the location of the defendant, (2) the location of possible witnesses, (3) the location of events likely to be in issue, (4) the location of documents and records likely to be involved, (5) disruption of defendants’ business unless the case is transferred, (6) expense to the parties, (7) location of counsel, (8) relative accessibility of the place of trial, (9) docket condition of each district or division involved, and (10) any other special elements which might affect the transfer, see Platt, 376 U.S. at 243-44, 84 S.Ct. at 771." }, { "docid": "792239", "title": "", "text": "pursuant to Rule 14 of the Rules of Criminal Procedure, for a trial severance. In addition, Rochman moves under Rule 21(b) for a change of venue. Rule 21(b) provides that: “for the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him ... to another district.” A motion for a change of venue is addressed to the sound discretion of the trial judge, United States v. Garber, 413 F.2d 284 (2d Cir.1969), and in determining the propriety of a transfer request, he is to be guided, in general, by the criteria set forth in Platt v. Minnesota Mining & Mfg. Co,, 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). The factors to be considered in addressing Rochman’s motion are: location of the defendant, counsel, potential witnesses, and documents and records likely to be in issue; disruption of the defendant’s business; expense to the parties; relative accessibility of the place of trial; and the docket condition of each district involved. Id. In support of his motion to transfer his case to Arizona, Rochman alleges that he resides in Arizona, that his witnesses all reside in or near Phoenix, Arizona, or Los Angeles, California, that the events in his case occurred in the far West, that New York is not easily accessible for him, his witnesses, and his attorney, who also resides in Arizona. In conjunction with his argument that his witnesses will be severely inconvenienced by a trial in this District, Rochman focuses in particular on the large expense he will incur if forced to transport them to New York. While it is undoubtedly true that he would find it more convenient to be tried in Arizona and several factors favor such a transfer, the Court finds that defendant has failed to meet his burden of establishing either that a substantial balance of inconveniences is in his favor, or that the interests of justice require a transfer. United States v. Wheaton, 463 F.Supp. 1073, 1079 (S.D.N.Y.1979); United States v. Williams, 437 F.Supp. 1047, 1051" } ]

[ { "docid": "22079218", "title": "", "text": "should- apply this framework flexibly, to adapt it to the varying factual situations before them. Id. n. 13. The Court has stated that [t]he importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act. International Brotherhood of Teamsters v. United States, 431 U.S. at 358, 97 S.Ct. at 1866. The court below erred by applying the McDonnell Douglas framework too literally when it rejected the balance of plaintiffs’ claims because they had never formally applied for meat-cutter positions. Because an employer may create an atmosphere in which employees understand that their applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances qualify for relief under Title VII. “A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.” Id. at 365, 97 S.Ct. at 1869. The Court’s explicit reference to “the manner in which [the employer] publicizes vacancies,” id., as one of the ways in which such implicit messages are communicated, is particularly telling. In the instant situation Jewel evidently filled its meat-cutter positions through the Union’s hiring hall. No notices of vacancies were ever posted, nor had the Union ever recommended any of its women members for these positions. Consequently the plaintiffs were never informed of the vacancies for which they could apply. Therefore, the district court’s reliance on the plaintiffs’ admissions that they had never applied for meat-cutter positions was misguided. Equally misguided was the district judge’s dismissal of the plaintiffs’ statistical evidence. The Supreme Court has explicitly adopted the use of statistics to establish a prima facie case. Id. at 339, 97 S.Ct. at 1856. See also Campbell, Regression Analysis in Title VII Cases: Minimum Standards, Comparable Worth and Other Issues When Law and Statistics Meet, 36 Stan.L.Rev." } ]

[ { "docid": "12064328", "title": "", "text": "applied for the available position or can establish that the employer was otherwise obligated to consider him; and (4)that the position went to a younger individual outside the protected class or that other reasonable evidence exists for inferring that he was denied a position because of his age. See generally Wilkins, 790 F.2d at 520 (quoting Ackerman, 670 F.2d at 69); Blackwell, 696 F.2d at 1180-81; Owens v. Freeman United Coal Mining, 649 F.Supp. 1565, 1568 (S.D.Ill.1986). In granting Gray’s motion for summary judgment, the district court concluded that Wanger had not established a prima facie case of discrimination because he did not establish that he applied for the position in question. Wanger contends that the district court’s holding was in error because it was not necessary for him to formally apply for the position. In certain situations a formal application is not necessary in order to establish a prima facie case of discrimination. In Babrocky v. Jewel Food Co. and Retail Meatcutters Union, Local 320, 773 F.2d 857 (7th Cir.1985), female meat wrappers brought a Title YII action alleging that they had been denied meat-cutter positions solely because of their sex. The Seventh Circuit concluded that their failure to formally apply for the positions in question was not fatal. “Because an employer may create an atmosphere in which employees understand that their applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances qualify for relief....” Id. at 867. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 367-68, 97 S.Ct. 1843, 1870-71, 52 L.Ed.2d 396 (1977) (“Victims of gross and pervasive discrimination” are not required to formally apply for a position if they can establish that but for the employer’s discriminatory practices they would have applied for a job.); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761 (9th Cir.1980). In the present case, however, Wanger makes no effort to establish that such a situation existed at Gray. The mere fact that Gray thought about Wanger and generally concluded that he was probably not qualified does not amount to creating an atmosphere of futility. In" }, { "docid": "1240050", "title": "", "text": "prima facie failure-to-hire case. As explained above, to establish a prima facie ease, Fischer must provide sufficient evidence establishing that (1) he applied and was qualified for a job for which For-estwood was seeking applicants; (2) despite being qualified, Forestwood rejected him; and (3) some additional evidence to support the inference that Fischer was not hired because of a discriminatory motive based upon Fischer’s failure to follow the religious beliefs of Forestwood’s management. Fischer satisfied the first element because he sought reinstatement directly from Erwin, the president of the company. Fischer is not barred from pursuing his claim merely because he did not submit a formal application. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.”). In fact, it is unclear from the record whether Forestwood even accepts formal job applications from non-FLDS members. Fischer also produced sufficient evidence demonstrating he was qualified for a position, based on his prior successful performance with the company. Finally, Fischer demonstrated that a position was available at the company, based on Erwin’s repeated statements that the company would be happy to have Fischer return. It is also undisputed that Fischer satisfied the second element of a prima facie case because the company did not rehire him. Finally, he established the third element of a prima facie case. Fischer testified Erwin was aware that he was not a member of the FLDS church. Furthermore, since at least 1999, the company has failed to hire or interview anyone who was not a member of the FLDS church. The district court therefore erroneously concluded that Fischer failed to establish a prima facie case at the summary judgment stage. Because the district court concluded Fischer did not establish a prima facie case, it did not evaluate whether Forestwood satisfied its burden of" }, { "docid": "2266736", "title": "", "text": "claims. As indicated, a plaintiffs failure to apply for a position does not automatically defeat a claim of age discrimination. If a plaintiff proves that she “would have applied for [a] job had it not been for [the employer’s discriminatory] practices ... [then] the nonapplicant is in a position analogous to that of an applicant.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 368, 97 S.Ct. 1843, 1871, 52 L.Ed.2d 396 (1977). Moreover, if an employer creates an atmosphere in which employees understand that applying would be futile, a plaintiff may still establish a prima-facie case of discrimination. See, e.g., id. at 366, 97 S.Ct. at 1870 (“When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting and application.”); see also Wanger v. G.A. Gray Co., 872 F.2d 142, 147 (6th Cir.1989). In this case, Bonham cannot claim that she did not apply for the Bodiford position because her employer created an atmosphere in which she thought that applying would be futile. She does not even claim to have been aware of the job opening, and she has not provided any evidence that had she known about the position, she would not have applied. Bonham, admittedly, does assert that she did not apply for the position because her superior, Luther, did not bring the position to her attention. She has presented evidence that it was Regions’s policy for supervisors to develop subordinates for advancement within the company. She has also provided evidence that Luther, acting in a supervisory capacity, encouraged subordinates to apply for supervisory positions. However, Bonham has presented no evidence that Luther encouraged others to apply for the Bodiford position but did not encourage her, and, in particular, she has provided no evidence that he encouraged persons to apply for this and other positions in an overall manner or pattern that reflect age bias. Absent any such evidence, Bonham cannot maintain that she" }, { "docid": "1343657", "title": "", "text": "the employer is under an obligation to consider the individual if he is otherwise qualified.” Wanger v. G.A. Gray Co., 872 F.2d at 146. In the ease sub judice, as in Wanger, the Plaintiff did not formally apply for the available position. Merely asserting that the Defendants were aware of the Plaintiffs desire to obtain the position is also insufficient to establish a prima facie case under the ADEA. See id. at 146-47 (citing Williams v. Hevi-Duty Elec. Co., 819 F.2d 620, 630 (6th Cir.) cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987)). In Wanger, the Sixth Circuit held that because the plaintiff failed to establish that he applied for the position which he sought, he could not state a prima face case of discrimination. See id. at 147. Accordingly, because the Plaintiff in the case sub judice failed to apply for the superintendent position, and despite the Defendants’ alleged awareness of his desire to obtain a position at the Warren facility, he cannot establish a pri-ma facie case of age discrimination for failure to rehire or recall. Additionally, the Plaintiff cannot establish the fourth element of a prima facie case of failure to hire or recall. The Defendants ultimately transferred another employee into the superintendent position at the Warren facility. The individual was a member of the Plaintiffs protected class (he was 58 years old), and was not substantially younger than the Plaintiff. Moreover, the Plaintiff has not asserted any other evidence that leads this Court to conclude that age motivated the Defendants not to rehire or recall the Plaintiff for the position at the Warren facility. Even assuming that for each available position the Plaintiff can make out a prima facie case, the Defendants have asserted the Plaintiffs failure to apply for both positions as a legitimate non-discriminatory reason for not transferring him. For the reasons set forth above, if the Plaintiff did not apply for the available positions, despite his expressions of interest, the Defendants had no affirmative obligation to consider him for them. See Wanger, 872 F.2d at 146-47; Williams, 819 F.2d" }, { "docid": "4906023", "title": "", "text": "apply for the 1973 position. As defendant concedes, however, this does not necessarily doom plaintiff’s claim. The Supreme Court has established an alternative prima facie case for non-applicants. Where a plaintiff has failed to apply, the Court requires him to satisfy an initial burden of demonstrating that his application would have been futile. International Brotherhood of Teamsters v. United States, 431 U.S. at 367-68, 97 S.Ct. at 1870-71. Specifically, the plaintiff must bring forth evidence to show that he would have applied but for discrimination, and that he would have been discriminatorily rejected had he applied. International Brotherhood of Teamsters, 431 U.S. at 368 n. 52, 97 S.Ct. at 1871 n. 52. Defendant argues that this plaintiff has produced no evidence of his desire to apply for foreman or his qualifications for the position, and that therefore plaintiff fails to carry his initial burden of proof. The argument is without merit. An analysis of the circumstances reveals that the case at bar presents an entirely distinguishable situation from Teamsters for which the federal courts would and do permit a different prima facie case to be made. The crucial factor in the Teamsters formulation was that the plaintiff in that case alleged that he had been deterred from applying for the position in question because discrimination would have rendered it futile for him to do so. In refusing to enact an automatic bar from Title VII relief for all plaintiffs who had not applied, the Court reasoned: The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act’s coverage the victims of the most entrenched forms of discrimination. Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful as totally to deter job applications from members of minority groups. International Brotherhood of Teamsters v. United States, 431 U.S. at 367, 97 S.Ct. at 1871. Although the Court thus opened the courthouse door to the nonapplicant, it nevertheless required him to make a preliminary showing of discrimination. Having alleged his" }, { "docid": "12064329", "title": "", "text": "a Title YII action alleging that they had been denied meat-cutter positions solely because of their sex. The Seventh Circuit concluded that their failure to formally apply for the positions in question was not fatal. “Because an employer may create an atmosphere in which employees understand that their applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances qualify for relief....” Id. at 867. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 367-68, 97 S.Ct. 1843, 1870-71, 52 L.Ed.2d 396 (1977) (“Victims of gross and pervasive discrimination” are not required to formally apply for a position if they can establish that but for the employer’s discriminatory practices they would have applied for a job.); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761 (9th Cir.1980). In the present case, however, Wanger makes no effort to establish that such a situation existed at Gray. The mere fact that Gray thought about Wanger and generally concluded that he was probably not qualified does not amount to creating an atmosphere of futility. In Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986), an employee brought a Title VII action alleging that she was denied a promotion because of her sex. With regard to her failure to formally apply for promotion, the Seventh Circuit held that if her employer “had a formal system of posting job openings and allowing employees to apply for them, [her] failure to apply for [a promotion] would prevent her from establishing a prima facie case.” Id. at 1376. However, the Seventh Circuit held that if the employer promotes employees into the positions in question without asking for applications or posting the opening so that employees could apply for the positions, then “the application requirement of the prima facie case is loosened somewhat. In this situation, the plaintiff can establish the application element of a prima facie case by showing that, had she known of an .... opening, she would have applied.” Id. at 1377 (citation omitted). See Chavez v." }, { "docid": "4906024", "title": "", "text": "and do permit a different prima facie case to be made. The crucial factor in the Teamsters formulation was that the plaintiff in that case alleged that he had been deterred from applying for the position in question because discrimination would have rendered it futile for him to do so. In refusing to enact an automatic bar from Title VII relief for all plaintiffs who had not applied, the Court reasoned: The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act’s coverage the victims of the most entrenched forms of discrimination. Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful as totally to deter job applications from members of minority groups. International Brotherhood of Teamsters v. United States, 431 U.S. at 367, 97 S.Ct. at 1871. Although the Court thus opened the courthouse door to the nonapplicant, it nevertheless required him to make a preliminary showing of discrimination. Having alleged his deterrence from applying on the basis of the employer’s discriminatory practices, it was then necessary in effect for such a plaintiff to substantiate this allegation. The plaintiff needed to show prima facie that he would have applied for the relevant position had it not been for those practices. International Brotherhood of Teamsters v. United States, 431 U.S. at 368, 97 S.Ct. at 1871. In meeting this burden, he essentially bridges the gap between applicant and non-applicant, and attains the presumption accorded the former upon fulfillment of the McDonnell Douglas prima facie case. Id. The present controversy is completely different. Here, in contrast to Teamsters, the plaintiff alleges no awareness of a job opportunity which existed but which was illegally deterred. On the contrary, according to Mr. Rodgers, the discriminatory practice prevented even the awareness of the opportunity. The Company allegedly did not inform its own employees of the vacancy. Deposition 30; Affidavit, 1. It is uncontested that the Company then went outside the organization to hire a white man for the foreman position. Application of" }, { "docid": "23085768", "title": "", "text": "In the district court, A & P argued in its reply memorandum that Box could not “cite any facts to support the claim” of sex discrimination; A & P cited a section of its initial memorandum that included the statement “when the undisputed facts which emerge from a plaintiffs deposition show that she cannot show a prima facie case ..., summary judgment is appropriate.” This argument, although not made as elaborately as the two arguments relied on by the district court in granting the motion for summary judgment, gave Box a fair opportunity to submit evidence showing that she could establish a prima facie case. See SEC v. Southwest Coal & Energy Co., 624 F.2d 1312, 1317 (5th Cir.1980); Rich v. United States Lines, Inc., 596 F.2d 541, 551 (3d Cir.1979). Since A & P’s arguments that Box never applied for an assistant manager position and never identified which position she thinks she was discrimi-natorily denied are merely more particularized arguments why A & P believes Box cannot establish a prima facie case, we will consider the merits of these arguments. Box’s deposition testimony establishes that she never formally applied for a specific assistant manager position. If A & P had a formal system of posting job openings and allowing employees to apply for them, Box’s failure to apply for an assistant manager position would prevent her from establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); but see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 367, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977) (no need to apply if the discriminatory practices “had been so successful as totally to deter job applications from members of minority groups”). But A & P had no system to ensure that all interested employees could apply for a job. The plaintiff submitted evidence, which A & P apparently does not dispute, that A & P store managers pro moted employees to assistant manager without asking for applications or posting the opening. When an employer uses a" }, { "docid": "12064330", "title": "", "text": "Box v. A & P Tea Co., 772 F.2d 1372 (7th Cir.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986), an employee brought a Title VII action alleging that she was denied a promotion because of her sex. With regard to her failure to formally apply for promotion, the Seventh Circuit held that if her employer “had a formal system of posting job openings and allowing employees to apply for them, [her] failure to apply for [a promotion] would prevent her from establishing a prima facie case.” Id. at 1376. However, the Seventh Circuit held that if the employer promotes employees into the positions in question without asking for applications or posting the opening so that employees could apply for the positions, then “the application requirement of the prima facie case is loosened somewhat. In this situation, the plaintiff can establish the application element of a prima facie case by showing that, had she known of an .... opening, she would have applied.” Id. at 1377 (citation omitted). See Chavez v. Tempe Union High School Dist. No. 213, 565 F.2d 1087, 1091-92 (9th Cir.1977); Rodgers v. Peninsular Steel Co., 542 F.Supp. 1215, 1220 (N.D.Ohio 1982). In order for the employee to establish that he or she would have applied for the position if they had been aware of it, however, the employee must establish that she had shown more than a mere general interest in the position. Box, 772 F.2d at 1377. In the present case, the record shows that Gray publicized the position, received numerous applications, and interviewed several people for the position. Therefore, it is clear that Gray did not have a policy of hiring without publicizing the position and accepting applications. In any event, the job opportunity advertisement published in the newspaper must be construed as constructive notice to Wanger of the job, necessitating that he apply before alleging discrimination. Wanger argues that because the company indicated that there was a possibility that his phone might ring in the future, he was not terminated but was laid off, subject to recall. However, Wanger’s" }, { "docid": "4061064", "title": "", "text": "2108. In “appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Id. Thus, “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Id. at 148, 120 S.Ct. at 2109; see Aka, 156 F.3d at 1290 (holding that “a plaintiffs discrediting of an employer’s stated reason for its employment decision is entitled to considerable weight”). In the following sections, we apply this framework to Lathram’s three claims. A Count II of Lathram’s amended complaint alleged that Customs discriminated against her on the basis of her sex when, in November 1996, it promoted fellow employee Patrick Jones from a GS-13 position to the position of Public Affairs Specialist at the GS-14 grade level, and thereafter paid him a higher salary. The district court granted summary judgment for the defendant, holding that Lathram had failed to timely exhaust her administrative remedies, and that her claim failed to establish a prima facie case of discriminatory non-promotion. Because we affirm on the second ground, we need not reach the first. Lathram’s allegation that Customs violated Title VII by not promoting her to the GS-14 position is defeated by her failure to apply for that position. Lathram conceded that Customs had advertised the opening, that she had known about it, and that she neither applied nor expressed an interest in applying for it. Lathram Dep., J.A. at 304. As this court said in Stella v. Mineta, an element of a prima facie case of discriminatory non-promotion is that the plaintiff “applied for and was denied an available position for which he/she was qualified.” 284 F.3d 135, 139 (D.C.Cir.2002) (emphasis added); see Cones, 199 F.3d at 516. Although there is an exception to this requirement when such an application would have been futile, see International Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 1869-70, 52 L.Ed.2d 396 (1977), Lathram offered no evidence to" }, { "docid": "2266735", "title": "", "text": "for which she was turned down. The company argues that if she failed to apply for the other supervisory positions, Bonham cannot have been subjected to discrimination because she was not promoted to them. As a matter of law, the court need not reach this issue with respect to the Smart and Stallings positions that were available in the fall of 1998 because Bonham has presented evidence that she was considered, that is, interviewed, for both positions in November 1998. If her employer considered Bonham for both supervisory positions in the fall of 1998, and by applying for one position both Bonham and her employer understood that she was applying, and would be considered, for both positions, then whether she actually filled out duplicate sets of paperwork does not affect her claim. A finder of fact could reasonably conclude that she had applied for, and was considered for, both positions. With regard to the supervisory positions filled by Bodiford in 1999 and Hall in 2000, however, Regions’s argument that Bonham did not apply defeats her claims. As indicated, a plaintiffs failure to apply for a position does not automatically defeat a claim of age discrimination. If a plaintiff proves that she “would have applied for [a] job had it not been for [the employer’s discriminatory] practices ... [then] the nonapplicant is in a position analogous to that of an applicant.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 368, 97 S.Ct. 1843, 1871, 52 L.Ed.2d 396 (1977). Moreover, if an employer creates an atmosphere in which employees understand that applying would be futile, a plaintiff may still establish a prima-facie case of discrimination. See, e.g., id. at 366, 97 S.Ct. at 1870 (“When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting and application.”); see also Wanger v. G.A. Gray Co., 872 F.2d 142, 147 (6th Cir.1989). In this case, Bonham cannot claim that she" }, { "docid": "17665922", "title": "", "text": "affects women. To establish a prima facie case of discrimination, Reed “need only show actions by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act’.” White v. City of San Diego, 605 F.2d 455, 458 (9th Cir. 1979), quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). We stated in White that: a proper prima facie case identifies sex as the likely reason for the denial of a job opportunity. 605 F.2d at 458. Unlike the plaintiff in White, Reed has alleged that other employees of her ability and experience were considered while she was not. Her alleged situation at Lockheed was apparently much more unfavorable than was the plaintiff’s position in White for, under the Lockheed system, she had no notice of an opening. Further, her respons es on deposition indicated that women at Lockheed had the legitimate belief that because of a pervasive discriminatory policy, an application would be futile. As Justice Stewart stated in his opinion for the Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365, 366, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977): A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. . When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application. Under these circumstances, it is no defense for Lockheed to argue that Reed was never actually rejected. Her sex may be the likely reason for Reed’s failure to advance at Lockheed. Viewing the evidence in the light most favorable to Reed, we conclude that it was error to say that under no circumstances could she prove that her sex" }, { "docid": "22586439", "title": "", "text": "ADA. Here, plaintiffs’ positions as police officers could not be modified to accommodate their disabilities and consideration of reassignment was therefore appropriate. The district court correctly instructed the jury that reassignment may be required, subject to various limitations. 3. Futility Instruction Denver next contends the district court incorrectly instructed the jury that plaintiffs need not have requested reassignment if they knew the employer had a policy forbidding it. Denver argues that this instruction erroneously relieved plaintiffs of their obligation to initiate the interactive process envisioned by the ADA. Plaintiffs do not dispute the importance of the interactive process in accommodating employees but assert that when the employer has an established policy against reassignment, the ADA does not require employees to engage in the “futile gesture,” International Bhd. of Teamsters v. United States, 431 U.S. 324, 366, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), of requesting reassignment. In Teamsters, the Supreme Court recognized that “[a] consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.” Id. at 365, 97 S.Ct. 1843. For example, “[i]f an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.” Id. Therefore, “[w]hen a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.” Id. at 365-66, 97 S.Ct. 1843. In order for a nonapplicant plaintiff to merit relief, he has “the not always easy burden of proving that he would have applied for the job had it not been for [the employer’s discriminatory] practices.” Id. at 368, 97 S.Ct. 1843. Significantly, the legislative history of the ADA specifically indicates that the futile gesture doctrine enunciated in Teamsters applies to employment actions. See H. Rep. No. 101-485(II)" }, { "docid": "14225573", "title": "", "text": "that he comes within the rule that excuses a failure to make an application when an employer consistently enforces a policy of discrimination, thereby making it apparent that applying for the position would be futile. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In Teamsters, the Court stated that “[vjictims of gross and pervasive discrimination” are not required to apply formally for a position if they can establish that but for the employer’s discriminatory practices they would have applied for a job. See id. at 367-68, 97 S.Ct. 1843. According to Mr. Lockridge, Dr. Jones failed to promote him on prior occasions and thereby created an atmosphere at PCCUA in which it was futile for him to apply for the position of dean. He also describes incidents in which he asserts that other individuals at PCCUA were subjected to racial discrimination. As the original panel in this case noted, Teamsters was a class action, and the analysis used there is usually applied in other class actions, rather than to actions brought by individual plaintiffs. See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355-56 (5th Cir.2001); Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 469-70 (8th Cir.1984). But even if that fact is of no particular legal significance, there is no claim here that there was a consistently enforced practice of refusing to hire black individuals for the position of dean, such that a black applicant would face “certain rejection,” see Teamsters, 431 U.S. at 365, 97 S.Ct. 1843. Having reviewed all of the evidence, we believe that no reasonable person could conclude from the present record that “gross and pervasive discrimination” made it futile for Mr. Lockridge to apply for the promotion. Mr. Lockridge draws our attention to the fact that he had applied for promotions a number of times before and had been rejected. In three of those instances, he asserts, twice in 1988 and once in 1992, a less qualified white person was appointed to the position. It might well be that Mr. Lockridge" }, { "docid": "1343656", "title": "", "text": "(3) that he applied for the available position or can establish that the employe? was otherwise obligated to consider him; and (4) that the position went to a younger individual outside the protected class or that other reasonable evidence exists for inferring that he was denied a position because of his age. Wanger, 872 F.2d 142, 145 (6th Cir.1989) (citing cases). As stated above, the burden shifting analysis applies in this context as well, and the ultimate burden of proof remains with the Plaintiff. The Plaintiff can arguably only establish the first two elements of a prima facie case of failure to rehire or recall based on age. With respect to the third element, there is no dispute that the Plaintiff failed to apply for the position at the Warren facility after he was discharged from Weirton. Regardless, the Plaintiff claims that the Defendants were aware of his desire to apply for any available position at the Warren facility, and should have hired him as superintendent. “Generally, if one formally applies for [a] position, then the employer is under an obligation to consider the individual if he is otherwise qualified.” Wanger v. G.A. Gray Co., 872 F.2d at 146. In the ease sub judice, as in Wanger, the Plaintiff did not formally apply for the available position. Merely asserting that the Defendants were aware of the Plaintiffs desire to obtain the position is also insufficient to establish a prima facie case under the ADEA. See id. at 146-47 (citing Williams v. Hevi-Duty Elec. Co., 819 F.2d 620, 630 (6th Cir.) cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987)). In Wanger, the Sixth Circuit held that because the plaintiff failed to establish that he applied for the position which he sought, he could not state a prima face case of discrimination. See id. at 147. Accordingly, because the Plaintiff in the case sub judice failed to apply for the superintendent position, and despite the Defendants’ alleged awareness of his desire to obtain a position at the Warren facility, he cannot establish a pri-ma facie case of age" }, { "docid": "12064327", "title": "", "text": "production to the defendant.’ ” Id. at 55 (quoting Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 291 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983)). Stated another way, “the plaintiff carries the ultimate burden of persuasion to establish by a preponderance of the evidence that, as an individual protected by the statute, he was dismissed, demoted, or not hired because of his age.” Wilkins v. Eaton Corp., 790 F.2d 515, 520 (6th Cir.1986). In this case, Wanger concedes that he is only contesting Gray’s failure to rehire him when a position became available in 1984 and that he is not contesting his discharge in 1983. In order to make out a prima facie case of age discrimination in a failure-to-rehire situation, a plaintiff must meet a modified McDonnell Douglas test. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. He must establish: (1) that he is a member of the protected age group; (2) that he is qualified for the rehire or recall position; (3) that he applied for the available position or can establish that the employer was otherwise obligated to consider him; and (4)that the position went to a younger individual outside the protected class or that other reasonable evidence exists for inferring that he was denied a position because of his age. See generally Wilkins, 790 F.2d at 520 (quoting Ackerman, 670 F.2d at 69); Blackwell, 696 F.2d at 1180-81; Owens v. Freeman United Coal Mining, 649 F.Supp. 1565, 1568 (S.D.Ill.1986). In granting Gray’s motion for summary judgment, the district court concluded that Wanger had not established a prima facie case of discrimination because he did not establish that he applied for the position in question. Wanger contends that the district court’s holding was in error because it was not necessary for him to formally apply for the position. In certain situations a formal application is not necessary in order to establish a prima facie case of discrimination. In Babrocky v. Jewel Food Co. and Retail Meatcutters Union, Local 320, 773 F.2d 857 (7th Cir.1985), female meat wrappers brought" }, { "docid": "12064326", "title": "", "text": "v. Reynolds Chem., 636 F.2d 1116, 1118 n. 3 (6th Cir.1980) (per curiam)), cert. denied, 479 U.S. 990, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986); Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir.1982). In stead of a mechanistic application of the McDonnell Douglas guidelines, a trial judge is to consider “direct evidence of discrimination, and circumstantial evidence other than that which is used in the McDonnell Douglas criteria.” Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180 (6th Cir.1983). Generally, in an age discrimination case a discharged employee presents a prima facie case “by introducing evidence that he was adversely affected by the defendant’s employment decisions ‘under circumstances which give rise to an inference of unlawful discrimination.’ ” Ridenour v. Lawson Co., 791 F.2d 52, 55 (6th Cir.1986) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). “The term ‘prima facie case’, as applied in ADEA cases ‘means only that the plaintiff has produced enough evidence to shift the burden of production to the defendant.’ ” Id. at 55 (quoting Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 291 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983)). Stated another way, “the plaintiff carries the ultimate burden of persuasion to establish by a preponderance of the evidence that, as an individual protected by the statute, he was dismissed, demoted, or not hired because of his age.” Wilkins v. Eaton Corp., 790 F.2d 515, 520 (6th Cir.1986). In this case, Wanger concedes that he is only contesting Gray’s failure to rehire him when a position became available in 1984 and that he is not contesting his discharge in 1983. In order to make out a prima facie case of age discrimination in a failure-to-rehire situation, a plaintiff must meet a modified McDonnell Douglas test. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. He must establish: (1) that he is a member of the protected age group; (2) that he is qualified for the rehire or recall position; (3) that he" }, { "docid": "14944619", "title": "", "text": "insufficient. Consequently, Taylor would appear unable to show that Canteen’s reasons for not recalling or transferring him are pretextual. However, under Taylor’s version of the October 22, 1984 meeting, which we must accept for purposes of reviewing the district court’s grant of summary judgment, he was not given any options other than retirement, i.e., he was never told what positions might be available or that Canteen would consider him for those positions. Given these circumstances, ornease law supports the view that Taylor should not be penalized for failing to apply for a specific job as long as the record suggests, as a reasonable inference, that he would have applied for specific positions had he known of their availability. See Loyd v. Phillips Bros., 25 F.3d 518, 523 (7th Cir.1994); Box, 772 F.2d at 1376-77 (noting that defendant had no system to ensure that all interested employees applied for jobs and stating that, in such situations, an employee can establish a prima facie case “by showing that, had she known of an ... opening, she would have applied”); cf. International Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977) (“When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.”). Nevertheless, we cannot accept Taylor’s contention that Canteen’s reasons for discharging him are pretextual. The record supports Canteen’s submission that, at the time of Mr. Taylor’s termination, there were no jobs available for which he was qualified. Taylor identifies three positions for which he claims he was qualified and into which younger employees transferred following the RIF. In March 1985, Canteen had openings for two food services management positions and one clerical position. Barbara Collins, a food services supervisor who had been laid off during the RIF, was recalled to occupy one of the food services management positions and James Deck was transferred from his clerical position to" }, { "docid": "14225572", "title": "", "text": "that factual questions were raised as to PCCUA’s promotion procedures generally, and Mr. Lockridge testified that PCCUA had always chosen deans from within the college community, we do not believe that this circumstance is sufficient to establish a prima facie case of racial discrimination. Here, Mr. Lockridge acknowledged that two of the six deans at PCCUA were black, and that at least two other black individuals had previously held the position of dean. Based on Mr. Lockridge’s testimony, these individuals became deans without consideration being given to outside applicants. More importantly, vacancies in many positions at universities (and most other places) are necessarily filled in different ways, depending on the nature of a position and its responsibilities, internal circumstances, and the exigencies of the moment. We do not believe that a reasonable fact-finder could infer intentional race discrimination from the decision to consider outside applicants when seeking a qualified individual for the position involved in this case, particularly where each member of the college community was individually notified of the opening. Mr. Lockridge also argues that he comes within the rule that excuses a failure to make an application when an employer consistently enforces a policy of discrimination, thereby making it apparent that applying for the position would be futile. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In Teamsters, the Court stated that “[vjictims of gross and pervasive discrimination” are not required to apply formally for a position if they can establish that but for the employer’s discriminatory practices they would have applied for a job. See id. at 367-68, 97 S.Ct. 1843. According to Mr. Lockridge, Dr. Jones failed to promote him on prior occasions and thereby created an atmosphere at PCCUA in which it was futile for him to apply for the position of dean. He also describes incidents in which he asserts that other individuals at PCCUA were subjected to racial discrimination. As the original panel in this case noted, Teamsters was a class action, and the analysis used there is usually applied in other" }, { "docid": "22160592", "title": "", "text": "qualified for a job for which the employer was seeking applicants, (3) the plaintiff, despite being qualified, was rejected, and (4) after the plaintiff’s rejection, the position remained open and the employer continued to seek applications from persons of comparable qualifications. Satisfaction of these criteria is sufficient to establish a prima facie case. Williams, 792 F.2d at 1485; Lowe, 775 F.2d at 1005. But failure to allege “specific facts” sufficient to establish the existence of a prima facie case renders a grant of summary judgment appropriate. Palmer v. United States, 794 F.2d 534, 536-39 (9th Cir.1986); see Celotex Corp. v. Catrett, — U.S.-, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(e). Each of Yartzoff’s five allegations of national origin discrimination fails because there is insufficient evidence to establish a prima facie case. The parties agree that Yartzoff falls within a class protected by Title VII. The claim based on his supervisor’s refusal to perform a desk audit in March 1979, however, overlooks the fact that the EPA was then carrying out a reduction-in-force program. The program, announced in July 1978, imposed a freeze on promotions between February and July 1979. The second element of a prima facie case is absent because the EPA neither sought applicants nor was able to give promotions. See Palmer, 794 F.2d at 537-38. The two claims concerning the EPA’s failure to hire Yartzoff for one of the six openings in April 1979 and its refusal to promote him in April 1980 both fail for the same reason. Whether or not we agree with the district court’s assessment that Yartzoff had not produced sufficient evidence on which a factfinder could infer that he was qualified for the positions he sought, Yartzoff admits that he failed to complete applications and otherwise comply with proper hiring and reclassification procedures. In unusual circumstances, failure to apply for a position may not vitiate a Title VII action. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 367-68, 97 S.Ct. 1843, 1870-71, 52 L.Ed.2d 396 (1977) (holding that a nonapplicant may pursue a Title VII action on" } ]

[ { "docid": "8731297", "title": "", "text": "impose sanctions that are reasonable and to specify the reasons for the sanctions and manner of computation. See Brown, 830 F.2d at 1437. Upon reviewing the record, we find that the fees were reasonably incurred and assessed with one exception. The district judge added a $1,000 sanction to the fees requested by Masco’s counsel “as punishment for their [the Brainerds’] outrageous conduct throughout this lawsuit and in order to deter such conduct in the future.” We find that the district judge unreasonably assessed the Brainerds by tacking on an arbitrary sum to the attorneys’ fees requested. A district judge, once the grounds for sanctions have been established, may impose various costs and expenses upon the attorney. The district judge is free to fine an attorney for the court’s time, but that fine must be based on court costs and paid to the clerk’s office. See, e.g., Nixon v. Rose, 631 F.Supp. 794, 797 (N.D.Ind.1985); Robinson v. Moses, 644 F.Supp. 975, 982 (N.D.Ind.1986). Similarly, a district judge may impose sanctions equivalent to the attorneys’ fees reasonably incurred by opposing counsel. The district judge here, however, abused his discretion when he simply added an extra $1,000 to the fees requested by opposing counsel in order to penalize the Brainerds. The district judge read Brown v. Federation of State Medical Bds., 830 F.2d 1429, as support for his decision to impose an extra $1,000 penalty. While Brown does indicate that one of the purposes of Rule 11 is to deter attorneys from taking frivolous or improper positions, the decision read in its entirety does not permit a district judge to impose an arbitrary sum on the sanctioned attorney merely to emphasize a point. In fact, the court in Brown remanded the suit to the district court in order for that court to specify the manner in which the sanctions were computed. See id. at 1438. Furthermore, the Brown court commented on the deterrence rationale for Rule 11 sanctions as a way of explaining why a district court might impose a lesser amount of sanctions than the attorneys’ fees requested. 830 F.2d at 1439." } ]

[ { "docid": "23174594", "title": "", "text": "a “flagrant violation” for the district court’s decision to compute attorneys’ fees at a rate higher than that ordinarily paid in the community. Nor do we find justification for adding 20% to the actual charges for paralegal and secretarial work. In most cases, including the present one, a “lodestar” calculation of attorney’s fees and actual charges for related expenses will provide a sufficient de terrent. Therefore, it was an abuse of discretion to compute fees and expenses based on hourly charges in excess of the prevailing market rate in the absence of a finding that prevailing rates and actual expenses will not provide an adequate deterrent. On remand the district court will recompute the attorneys’ fees and expenses of O’Hara and Trusty, the firm representing former partner Osborne, using prevailing fees for attorneys and actual charges for paralegals and secretaries. In reaching this decision, we recognize that imposing monetary sanctions pursuant to Rule 11 above a defendant’s actual litigation costs may be construed as a fine imposed for criminal contempt. A few scholars have concluded that greater due process safeguards might apply to a fine imposed as criminal punishment. Schwar-zer, 104 F.R.D. at 202-03; Nelken, Sanctions Under Amended Federal Rule-11— Some “Chilling” Problems in the Struggle Between Compensation and Punishment, 74 Geo.L.J. 1313, (1986). However, one court of appeals, en banc, concluded that “[n]othing in the text of Rule 11 or in the Advisory Committee Note indicates that due process requires a court to follow the procedures called for by Fed.R.Crim.P. 42(b) for criminal contempt proceedings before it can impose a monetary sanction pursuant to Rule 11” when the court vacated a panel decision reversing a district court’s imposition of a $500 fine payable to the court clerk. Donaldson v. Clark, 819 F.2d 1551, 1558 (11th Cir.1987). We do not reach the issue whether the district court’s $100 hourly rate or 20% addition constituted a criminal fine imposed with inadequate due process safeguards. Because we conclude that the prevailing market rate and actual paralegal and secretarial charges provide adequate deterrence this award of sanctions cannot be construed as a fine" }, { "docid": "6422749", "title": "", "text": "opposing party. S.D.Fla.Local R. 10.B.1. . This court has stated that \"[ajlthough the sanctions most commonly imposed are costs and attorney’s fees, the selection of the type of sanction to be imposed lies within the district court’s sound exercise of discretion. The imposition of a monetary sanction is a particularly reasonable use of a court’s discretion under Rule 11.\" Donaldson, 819 F.2d at 1557 (citations omitted). . The complete text of the local rule used by the district court to deny Howes a hearing on his Rule 11 motion provides: Whenever a party has appeared by attorney, he cannot thereafter appear or act in his own behalf in the action or proceeding, or take any step therein, unless an order of substitution shall first have been made by the Court, after notice to the attorney of such party, and to the opposite party; provided, that the Court may in its discretion hear a party in open court, notwithstanding the fact that he has appeared or is represented by attorney. S.D.Fla.Local R. 16.D.4. (emphasis added). . While notice, \"from the party seeking sanctions, or from the court, or from both,” and an opportunity to respond to a motion for Rule 11 sanctions comports under Donaldson with the due process requirements of Rule 11, we consider it prudent for a district judge to hold a hearing before imposing sanctions. Donaldson, 819 F.2d at 1560; see, e.g., Threaf Properties, Ltd. v. Title Ins. Co., 875 F.2d 831, 834 (11th Cir.1989) (Although reversed by this court on appeal, the district court imposed Rule 11 sanctions following an evidentiary hearing because it found and documented in an order that the breach of contract claim was not supported by a good faith argument, and that the negligence claims were not well grounded in fact.); United States v. Milam, 855 F.2d 739, 741 (11th Cir.1988) (The district court held an evidentiary hearing before imposing Rule 11 sanctions on defendant-appellant and his attorney for pursuing a frivolous statute of limitations defense.) In an appeal from Rule 11 sanctions, we have held that the district court did not abuse" }, { "docid": "1056477", "title": "", "text": "the record in this case. See Harlan, 982 F.2d at 1259. Thus, the only issue is whether the amount of the sanction, $50,000, is appropriate. Moll contends a $50,000 sanction is excessive compared to the $5,000 sanction imposed in Harlan, 982 F.2d at 1257, and the $10,795.85 award of attorney’s fees in Greiner v. City of Champlin, 152 F.3d 787 (8th Cir.1998). Bayer argues the $50,000 sanction is not excessive, citing In re Kujawa, a case in which our court affirmed a reduced award of attorney’s fees for $66,656.33 assessed by the bankruptcy court, but reversed as excessive the imposition of an additional punitive monetary sanction of $100,000. 270 F.3d 578, 583-84 (8th Cir.2001). In Kujawa, the $66,000 award of attorney’s fees was remedial — it was paid to the opposing party as compensation for the attorney’s fees incurred as a direct result of the unethical behavior. See id. at 582-83. We held the imposition of an additional $100,000 punitive sanction was an abuse of discretion because the amount was “not related concretely to redressing the harm” of the attorney’s misconduct and was “not supported by the facts as being necessary to deter” the attorney in the future. Id. at 584. We noted “[t]he cornerstone of imposing a monetary sanction ... should be the selection of an amount no greater than sufficient to deter future misconduct by the party.” Id. at 583. In this case, the $50,000 sanction does not compensate Bayer for fees incurred as a direct result of Moll’s conduct because the district court’s order directs Moll to pay $50,000 to the clerk of the court. Additionally, the record does not show the $50,000 sanction relates concretely to costs the court directly incurred because of Moll’s actions. See, e.g., Lasar v. Ford Motor Co., 399 F.3d 1101, 1111-12 (9th Cir.2005) (affirming monetary sanction payable to the court for violation of pretrial orders which was “carefully limited” “to an amount ‘necessary to reimburse ... the Court’ for the costs related to empaneling the jury”); United States v. Dowell, 257 F.3d 694, 699-700 (7th Cir.2001) (affirming contempt fine where district" }, { "docid": "22249048", "title": "", "text": "suits, the conduct of the parties and economic considerations.” United States Steel Corp., 519 F.2d at 363. Such equitable considerations should govern the court’s exercise of its discretion in administering Rule 11, both in the initial decision to impose a monetary sanction and determination of the type and amount of the sanction. III. For the foregoing reasons, we will affirm the district court’s decision to impose sanctions for Appellant’s violation of Rule 11. We will also affirm its calculation of the lodestar amount of defendants’ attorney’s fees. We will, however, vacate the final amount of monetary sanctions imposed, and remand the case for proceedings consistent with this opinion. . Doering was ordered to pay $1,454.35 in costs to defendants’ lawyers. Appellant’s Appendix at 11. . Vincenti’s notice of appeal was taken not from the May 4, 1987 order entering summary judgment in favor of defendants and granting the motion for sanctions, but from the court’s September 28, 1987 order and opinion fixing the amount of sanctions. We have appellate jurisdiction over this appeal. See Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1089 (3d Cir.1988). Doering does not appeal the part of the order that imposes costs upon her. . Recently, the Second Circuit stated that \"it lies well within the district court’s discretion to temper the amount to be awarded against an offending attorney by a balancing consideration of his ability to pay.\" Oliveri, 803 F.2d at 1281. This decision was soon followed by Johnson v. New York City Transit Authority, 823 F.2d 31 (2d Cir.1987), which held that \"a district judge need not award a lodestar amount calculated on the basis of hours and time charges but may appropriately take into account various mitigating factors bearing on the degree of sanction that is warranted ... [including] ability to pay_\" Id. at 32-33. Oliveri has been followed in various district court opinions within the Second Circuit, see, e.g., Becker v. Dunkin’ Donuts of America, Inc., 665 F.Supp. 211, 218 (S.D.N.Y.1987); Eastway Construction Corp., 637 F.Supp. 558, 573 (E.D.N.Y.1986); see also Tedeschi v. Smith Barney, Harris Upham" }, { "docid": "772119", "title": "", "text": "this suit as a Rule 11 sanction for filing this suit. The defendants shall have ten days from the date of this order to submit their detailed request for fees and costs. Moreover, Robinson must be held accountable for the waste of judicial resources this suit has caused. In Dominguez, this court noted that a single hour spent by a federal judge on a case costs the government Six Hundred Dollars ($600.00). Dominguez, 626 F.Supp. at 374 (citing Levin and Colliers Containing the Cost of Litigation, 37 Rutgers L.Rev. 219, 227 (1985)). The court also gave notice to future litigants that fines would be imposed on the basis of this formula. A conservative estimate of the time spent on this case is six (6) hours, which includes research and writing of this order. Thus, Robinson has cost the taxpayers at least $3,600.00 for filing this factually baseless suit. The court therefore finds that Robinson should pay a fine of $3,600.00 as a further Rule 11 sanction for filing this frivolous claim, said fine to be payable within thirty (30) days of this order. This court stands ready and willing to hear all meritorious cases, whether they are filed by jail inmates or citizens. But the crowded dockets of the federal courts cannot tolerate the burden posed by factually baseless suits that drain judicial resources. This court will sanction those cases, like this one, that are so meritless they can only waste the court’s resources. Conclusion Defendants, through affidavits and other material that is properly considered in a summary judgment proceeding, have established that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Therefore, the court hereby enters summary judgment for the defendants and against the plaintiff. In addition, the plaintiff is hereby ORDERED to pay the reasonable attorneys fees and costs incurred by the defendants in defending this cause as a Rule 11 sanction for filing this lawsuit. The amount of these fees and costs will be determined by the court. The defendants are hereby GRANTED ten (10) days" }, { "docid": "772118", "title": "", "text": "only are some of Robinson's claims factually inconsistent with each other (i.e., three days spent in the City-County lockup and immediate transfer to the Allen County Jail), they are inconsistent with the affidavits, medical records, and police reports, which must be taken as true for purposes of this motion. See Aguilera, 760 F.2d at 848. Robinson filed this complaint seeking $50,-000 from each defendant knowing that his claim was not well grounded in fact. Robinson’s bad faith places an unfair and unreasonable burden on the defendants and the court. These defendants were required to compile dozens of police interviews as well as numerous affidavits and medical reports. The costs incurred and fees paid should never have been expended. Similarly, the court was required to carefully sort through a myriad of documents only to discover that plaintiff’s allegations had no basis in fact or law. The waste of judicial resources caused by this case is inexcusable. The court therefore finds that Robinson should pay the reasonable attorneys fees and costs incurred by the defendants in defending this suit as a Rule 11 sanction for filing this suit. The defendants shall have ten days from the date of this order to submit their detailed request for fees and costs. Moreover, Robinson must be held accountable for the waste of judicial resources this suit has caused. In Dominguez, this court noted that a single hour spent by a federal judge on a case costs the government Six Hundred Dollars ($600.00). Dominguez, 626 F.Supp. at 374 (citing Levin and Colliers Containing the Cost of Litigation, 37 Rutgers L.Rev. 219, 227 (1985)). The court also gave notice to future litigants that fines would be imposed on the basis of this formula. A conservative estimate of the time spent on this case is six (6) hours, which includes research and writing of this order. Thus, Robinson has cost the taxpayers at least $3,600.00 for filing this factually baseless suit. The court therefore finds that Robinson should pay a fine of $3,600.00 as a further Rule 11 sanction for filing this frivolous claim, said fine to be" }, { "docid": "16770587", "title": "", "text": "future compliance, and no opportunity to purge was provided. The sanction was payable to the court, rather than to the injured party, further confirming its punitive nature. And the size of the required payment was substantial. We recognize that there are significant differences between the imposition of sanctions and the punishment of criminal contempt. “The court’s power to impose appropriate sanctions on attorneys practicing before it ‘springs from a different source than does the power to punish for criminal contempt.’ ” Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir.1985) [“internal citation omitted”]. Although the power of a court to punish for contempt may be “inherent,” see Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873), the power of a United States court today' to impose criminal penalties for contempt of court is provided by criminal statutes. See 18 U.S.C. §§ 401, 402. The power to impose sanctions on attorneys is either rooted in the courts’ “inherent power to protect the orderly administration of justice and to preserve the dignity of the tribunal,” Kleiner, 751 F.2d at 1209, or provided by statutes and rules designated to implement the power. See e.g., Fed.R.Civ.P. 11 (sanctions in connection with papers presented to the court); Eisenberg v. University of New Mexico, 936 F.2d 1131, 1136-37 (10th Cir.1991) (finding Fed.R.Crim.P. 42 inapplicable to Rule 11 monetary sanctions); Donaldson v. Clark, 819 F.2d 1551, 1558-59 (11th Cir.1987) (en banc) (same); Warshay v. Guinness PLC, 750 F.Supp. 628, 640 (S.D.N.Y.1990) (same), aff'd, 935 F.2d 1278 (2d Cir.1991) (table); Fed.R.Civ.P. 37 (sanctions in connection with discovery); 28 U.S.C. § 1927 (attorneys’ liability for expenses of vexatious litigation). Moreover, the consequences of an adjudication of criminal contempt are different from those flowing from the imposition of sanctions. The person found guilty of criminal contempt, unlike a person on whom sanctions have been imposed, now carries a criminal conviction on his record. Furthermore, possible punishments for contempt, unlike sanctions, include imprisonment. Nevertheless, sanctions and con-tempts raise certain similar concerns. Whether or not a finding of contempt is involved, unfairness and abuse" }, { "docid": "9556606", "title": "", "text": "Co. v. Index-Werke K.G., 739 F.2d 622 (Fed.Cir.1984). Accordingly, appellants and their attorney are hereby ordered to pay the reasonable attorneys fees and costs incurred by the appellee in defending this frivolous appeal. Appellants and their attorney, Mr. Gar-iepy, must also be held accountable for the waste of judicial resources this appeal has caused. As the court noted in Martin Jaska, “one of the important purposes of sanctions is to encourage attorneys to be reflective about the issues they present for review. ‘Counsel must realize that the decision to appeal should be a considered one ... not a knee-jerk reaction to every unfavorable ruling.’ ” Martin Jaska, 752 F.2d at 1406. In Robinson v. Moses, 644 F.Supp. 975 (N.D.Ind.1986), this court noted that a single hour spent by a federal judge on a case costs the government ($600.00). See Levin and Colliers, Containing the Cost of Litigation, 37 Rutgers L.Rev. 219, 227 (1985). The court also gave notice to future litigants that fines would be imposed on the basis of this formula. A conservative estimate of the time spent on this case is 6 hours, which includes research and writing of this order. Thus, appellants have cost the taxpayers at least $3,600.00 for filing this frivolous appeal. The court therefore finds that the appellants and their attorney are also jointly and severally liable for a fine of $3,600.00, as a further sanction for filing this frivolous appeal, said fine payable within thirty (30) days of this order. The amount of reasonable attorneys fees and costs will be determined by the court. The appellee is hereby GRANTED ten (10) days from the date of this order to file a detailed request for fees and costs. The appellants and their attorney are also hereby ORDERED to pay $3,600.00 to the clerk of this court as a further sanction within thirty (30) days from the date of this order. . The parties actually briefed three issues (excluding the sanctions issue). In this brief, the debtor argued that a number of the bankruptcy court’s factual findings were clearly erroneous. The debtor, however, failed to" }, { "docid": "8834896", "title": "", "text": "“appropriate.” An appropriate sanction is one that is reasonable in scope and in amount, one that will deter future sanctionable conduct but will not act to chill “an attorney’s enthusiasm or creativity in pursuing factual or legal theories.” Matter of Yagman, 796 F.2d 1165, 1182-1184 (9th Cir.1986). The court possesses discretion in determining the proper measure of an appropriate sanction. Often it will award reasonable attorneys’ fees to an opposing party. See, e.g., Toombs v. Leone, 111 F.2d 465, 471-472 (9th Cir.1985) In other cases, a different sanction may be more appropriate. See, e.g., Miranda v. Southern Pacific Transp. Co., 710 F.2d 516, 521 (9th Cir.1983) (district court may impose monetary sanction without a finding of contempt). See also Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962) (dismissal of action under court’s inherent power); Stelly v. C.I.R., 804 F.2d 868, 871 (5th Cir.1986) (prohibiting Clerk of Court from accepting any new filings until previous sanctions and judgments paid in full); Advo System, Inc. v. Walters, 110 F.R.D. 426, 433 (E.D.Mich.1986) (sanction for waste of judicial resources). The court's discretion as to the amount and timing of an appropriate sanction is much more limited, however. Yagman, 796 F.2d at 1182-1184. A sanction is reasonable in amount if it is “quantifiable with some precision and properly itemized in terms of the perceived misconduct and the sanctioning authority.” Id. at 1184. Sanctions must also be noticed or imposed in a reasonably timely manner. For example, abuses may not be allowed to “pass unchecked and, thus, undeterred” leading the court to impose “years’ worth of sanctions in one post-trial lump.” Id. at 1183. But where, as here, the record discloses that Lapin was warned time and again that his conduct was potentially sanctionable, the court may properly reserve final judgment on the amount of sanctions until the conclusion of proceedings before it. Id. at 1184. That is precisely the situation the court has before it today. Bad Faith. In addition to imposing sanctions under Fed.R.Civ.P. 11, a court may impose sanctions under its inherent power" }, { "docid": "22769418", "title": "", "text": "or frivolous litigation forbidden by Rule 11, or as a form of punishment imposed on those who violate the rule, the imposition of sanctions pursuant to Rule 11 is meant to deter attorneys from violating the rule. See Advisory Committee Note. “The word ‘sanctions’ in the caption, for example, stresses a deterrent orientation in dealing with improper pleadings, motions, or other papers.” Id. A. The permissibility of imposing financial penalties under Rule 11 Rule 11 itself gives courts the discretion to fashion sanctions to fit specific cases: If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. Fed.R.Civ.P. 11 (emphasis added). Therefore, while Rule 11 neither expressly permits nor expressly forbids the imposition of a financial penalty, it does explicitly give courts the authority to impose an \"appropriate sanction.\" The discretion vested in the court is reinforced by the Advisory Committee Note which states that \"{t]he court ... retains the necessary flexibility to deal appropriately with violations of the rule. It has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted.\" Although the sanctions most commonly imposed are costs and attorneys' fees, the selection of the type of sanction to be imposed lies within the district court's sound exercise of discretion. See Westmoreland, 770 F.2d at 1178-79; Davis, 765 F.2d at 500-01. The imposition of a monetary sanction is a particularly reasonable use of a court's discretion under Rule 11. The everyday meaning of \"appropriate sanction\" encompasses a monetary sanction. Imposing a financial penalty often will be the most effective and fair means of enforcing Rule 11 and deterring baseless suits. When imposed upon a lawyer, a finkncial penalty forces the lawyer rather than the client" }, { "docid": "22769419", "title": "", "text": "forbids the imposition of a financial penalty, it does explicitly give courts the authority to impose an \"appropriate sanction.\" The discretion vested in the court is reinforced by the Advisory Committee Note which states that \"{t]he court ... retains the necessary flexibility to deal appropriately with violations of the rule. It has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted.\" Although the sanctions most commonly imposed are costs and attorneys' fees, the selection of the type of sanction to be imposed lies within the district court's sound exercise of discretion. See Westmoreland, 770 F.2d at 1178-79; Davis, 765 F.2d at 500-01. The imposition of a monetary sanction is a particularly reasonable use of a court's discretion under Rule 11. The everyday meaning of \"appropriate sanction\" encompasses a monetary sanction. Imposing a financial penalty often will be the most effective and fair means of enforcing Rule 11 and deterring baseless suits. When imposed upon a lawyer, a finkncial penalty forces the lawyer rather than the client to bear the costs of violations of the rule. Monetary sanctions may be the most effective way to deter a powerful and wealthy party from bringing friv-olóus or vexatious litigation. The legitimacy of i~nposing monetary sanctions under Rule 11 has already been recognized. See In re CURL, 803 F.2d at 1007, Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986) (fine cannot be total bar to plaintiff's access to courts; fine vacated becai~he~ pf improper procedure); Glick v. Gutbrod, 782 F.2d 754, 757 n. 3 (7th Cir.1986); Hugeford v. Peoples Bank, 776 F.2d 176 (7th Cir.1985), cert. denied, - U.S. -, 106 S.Ct. 1644, 90 L.Ed.2d 188 (1986); Snyder v. IRS, 596 F.Supp. 240, 252 (N.D.Ind.1984); Young v. IRS, 596 F.Supp. 141, 152 (N.D.Ind.1984); Dore v. Schultz, 582 F.Supp. 154 (S.D.N.Y.1984). We hold that monetary sanctions serve the purposes of Rule 11 and ~iay be imposed as sanctions for Rule 11 violations in appropriate cases so long as they are imposed in accordance with due prócess. B. Procedural protections comporting with due process Attorneys and" }, { "docid": "14839034", "title": "", "text": "the types of sanctions that may be ‘appropriate.’ ” Anderson, 900 F.2d at 394 n. 6. Rule 11 “ ‘is not a fee-shifting statute in the sense that the loser pays. It is a law imposing sanctions if counsel files with improper motives or inadequate investigation.’ ” Triad Assocs., 892 F.2d at 596 (quoting Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932 (7th Cir.1989)); see also Cooter & Gell, 110 S.Ct. at 2462. In certain circumstances, it may be appropriate for a district court to impose a sanction in the form of a fine. See Donaldson, 819 F.2d at 1557. “The district judge is free to fine an attorney for the court’s time, but that fine must be based on court costs and paid to the clerk’s office.” Magnus Elecs., Inc. v. Masco Corp., 871 F.2d 626, 634 (7th Cir.), cert. denied, — U.S. —, 110 S.Ct. 237, 107 L.Ed.2d 188 (1989). In the case before us, the district court added a footnote to its memorandum order stating that Rule 42(b) did not apply because the intent of the “fine” was to compensate the court for its time and was not in the nature of a criminal punishment. Rule 11 does not permit a court to impose, an arbitrary sum on the sanctioned attorney or party “merely to emphasize a point.” Magnus Elecs., 871 F.2d at 634. The court’s use of the word “fine” in describing the sanction imposed on Ms. Torres is unfortunate. We agree with the Ninth Circuit that the term “monetary sanction” is more descriptive and appropriate in differentiating a penalty of this kind from the common association of the word “fine” with a criminal penalty. See Miranda, 710 F.2d at 521. However, the standards employed by the district court for fixing the amount of monetary sanction in relating it to excess court time expended in deciding the issue, were appropriate. See White, 908 F.2d at 683-84. In her argument, Ms. Torres relies heavily on our decision in Cotner v. Hopkins, 795 F.2d 900 (10th Cir.1986), in which we identified an abuse of discretion" }, { "docid": "13077244", "title": "", "text": "that Medline be awarded excess costs based on 4 hours of attorney time and that Rovell be assessed $450 payable to the court for wasting its time and resources. District Judge Conlon adopted the recommendations. Rovell now appeals. We review a district court’s imposition of attorney sanctions for an abuse of discretion. U.S. Bank Nat’l Ass’n, N.D. v. Sullivan-Moore, 406 F.3d 465, 469 (7th Cir.2005). We have explained that a court has discretion to impose § 1927 sanctions when an attorney has acted in an “objectively unreasonable manner” by engaging in “serious and studied disregard for the orderly process of justice,” Pacific Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 119 (7th Cir.1994); pursued a claim that is “without a plausible legal or factual basis and lacking in justification,” id.; or “pursue[d] a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound,” Kapco Mfg. Co. v. C & O Enters., Inc., 886 F.2d 1485, 1491 (7th Cir.1989). We have also interpreted § 1927 “to impose a continuing duty upon attorneys to dismiss claims that are no longer viable.” Dahnke v. Teamsters Local 695, 906 F.2d 1192, 1201 n. 6 (7th Cir.1990). Rovell protests that he should not have been punished for filing the May 14, 2004, motions because Medline’s sanctions motion had preceded those filings and had sought sanctions on a different basis. Of course, a district court acting under § 1927 is not bound by the parties’ motions and may, in its sound discretion, impose sanctions sua sponte as long as it provides the attorney with notice regarding the sanctionable conduct and an opportunity to be heard. Johnson v. Cherry, 422 F.3d 540, 551-52 (7th Cir.2005). This means that the court could properly take into account all of Rovell’s conduct in this case and calibrate sanctions accordingly. As Judge Conlon noted, the potentially sanctionable nature of Rovell’s filings was raised during oral argument on his motion to vacate and, of course, during proceedings before the magistrate judge. Thus, we must reject Rovell’s argument that the § 1927 sanctions are procedurally improper. Rovell also" }, { "docid": "9556605", "title": "", "text": "This frivolous appeal should never have been brought. Appellants and their counsel have violated Bankruptcy Rule 9011, Rule 11 of the Federal Rules of Civil Procedure, and Rule 38 of the Federal Rules of Appellate Procedure (which applies by analogy), by bringing this frivolous appeal, by making arguments that are not well grounded in fact, and by ignoring law which is directly on point. Nothing in the record indicates whether counsel or the appellants are more blameworthy for bringing this appeal and making these arguments. At oral argument on January 30, 1987, attorney Gariepy suggested that the Graves had insisted on an appeal. Attorney Gariepy however, made inconsistent arguments, and failed to designate a proper record for appeal. The blame cannot entirely be laid on the Graves. Under these circumstances, joint and several liability is appropriate for the costs and attorneys fees incurred by the appellee and for the court’s time in disposing of this frivolous appeal. International Union of Bricklayers, etc. v. Martin Jaska, Inc., 752 F.2d 1401, 1407 (9th Cir.1985); Colt Industries Operating Co. v. Index-Werke K.G., 739 F.2d 622 (Fed.Cir.1984). Accordingly, appellants and their attorney are hereby ordered to pay the reasonable attorneys fees and costs incurred by the appellee in defending this frivolous appeal. Appellants and their attorney, Mr. Gar-iepy, must also be held accountable for the waste of judicial resources this appeal has caused. As the court noted in Martin Jaska, “one of the important purposes of sanctions is to encourage attorneys to be reflective about the issues they present for review. ‘Counsel must realize that the decision to appeal should be a considered one ... not a knee-jerk reaction to every unfavorable ruling.’ ” Martin Jaska, 752 F.2d at 1406. In Robinson v. Moses, 644 F.Supp. 975 (N.D.Ind.1986), this court noted that a single hour spent by a federal judge on a case costs the government ($600.00). See Levin and Colliers, Containing the Cost of Litigation, 37 Rutgers L.Rev. 219, 227 (1985). The court also gave notice to future litigants that fines would be imposed on the basis of this formula. A conservative estimate" }, { "docid": "950084", "title": "", "text": "court, therefore, properly found that the appellants’ claims lacked any factual basis, then it had no obligation to afford the appellants the procedural safeguards of notice and an opportunity to be heard.” Davis v. Carl, 906 F.2d 533, 535-36 (11th Cir.1990). Because there is no dispute that the allegations against Ric Hogan in the complaint lacked any factual basis, we find no plain error. C. Amount of Rule 11 Sanctions This Court noted in Donaldson that “[although the sanctions most commonly imposed are costs and attorney’s fees, the selection of the type of sanction to be imposed lies within the district court’s sound exercise of discretion.... The imposition of a monetary sanction is a particularly reasonable use of a court’s discretion. Donaldson, 819 F.2d at 1557, 1557 n. 6 (citations omitted). Furthermore, Rule 11 clearly provides for sanctions against attorneys. Fed.R.Civ.P. 11 (“shall impose upon the person who signed it ... an appropriate sanction”). The district court’s imposition of attorney’s fees and expenses on Hooper was well within its discretion because it was Hooper, not his client, who breached the duty of reasonable inquiry. Hooper argues, however, that the sanctions awarded to Ric Hogan were excessive because they included the cost of pursuing the Rule 11 motion. This Court has clearly held that a party can collect the expense of pursuing a Rule 11 claim. Pelletier, 921 F.2d at 1522. At the hearing, Ric Hogan’s counsel produced documentation that Ric Hogan had incurred an obligation to pay $4,780.69 for attorney’s fees and expenses in the defense of the suit against him by Mike Ousley Productions, in pursuing the Yost counterclaim, and in pursuing the Rule 11 sanctions. Ric Hogan’s attorney billed his time at the hourly rate of $65.00. We find that the district court acted well within its discretion when it found that the bill represented only Ric Hogan’s justifiable costs of defense and of the prosecution of the Rule 11 motion. See Cooter & Gell, 110 S.Ct. at 2461. Therefore, we hold that the district court did not err in setting the amount of the sanctions. III. CONCLUSION" }, { "docid": "2328020", "title": "", "text": "because I don’t think I am but I can take a case like the Nixon case and it never would have gone to court because it was foolish ... Thiel Dep. at 11. Thus, despite his pro se status, Thiel, as the spokesperson for plaintiffs, at least has demonstrated his ability to find a case and appreciate its significance. Unfortunately for all those involved in the instant suit, plaintiffs refused to take the final step and abandon a cause of action that obviously has abused the judicial system at least as much as the cases brought to their attention in which Rule 11 sanctions were imposed. Consequently, the court finds appropriate the imposition of sanctions pursuant to Rule 11 on the plaintiffs, jointly and severally, for the time and effort put into this case by both the court and the defendants. A formula for setting a value on the court’s time that has been used by this court in past cases is set forth in Levin and Colliers, Containing the Cost of Litigation, 37 Rutgers L.Rev. 219, 226-27 (1985) (each hour spent on case by federal judge costs government $600). See Robinson v. Moses, 644 F.Supp. 975, 982 (N.D.Ind.1986); Dominguez v. Figel, 626 F.Supp. 368, 374 (N.D.Ind.1986). A conservative estimate of the court’s time devoted to this matter, including three hearings, a review of all pleadings, and the drafting of this order, is six hours. Using the formula set forth above, the court finds that Rule 11 sanctions in the amount of $3,600 for the court’s time are appropriate, said fine to be payable within thirty (30) days of this order. In addition, plaintiffs are ordered to pay the reasonable attorneys fees and costs incurred by the defendants in defending this cause as a further Rule 11 sanction. This amount will be determined by the court. Y. Conclusion Therefore, for all of the foregoing reasons, defendants’ motion for summary judgment is GRANTED. In addition, plaintiffs, jointly and severally, are ORDERED to pay as a sanction pursuant to Rule 11 the amount of Three Thousand Six Hundred Dollars ($3,600.00), said amount" }, { "docid": "14624886", "title": "", "text": "of the pleading, motion, or other paper, including a reasonable attorney’s fee. I interpret this provision to mean that, in the event of a Rule 11 violation, the Court must impose “an appropriate sanction,” which may (but need not) include an order to pay “a reasonable attorney’s fee.” If that interpretation is correct, it follows a fortiori that the district court has the discretion to fashion a sanction for purposes of deterrence which awards part, but not all, of the opposing party’s attorney’s fees. That is to say: adequate deterrence may permissibly fall short of full compensation. In such a case, the payment required by the sanction would be regarded as a payment on account of the other party’s costs. The deterrent, as opposed to compensatory, function of the Rule 11 sanction is stressed by District Judge Schwartzer (N.D.Cal.) in his thoughtful essay “Sanctions Under the New Federal Rule 11—A Closer Look,” 104 F.R.D. 181, 185: The rule provides for sanctions, not fee shifting. It is aimed at deterring and, if necessary, punishing improper conduct rather than merely compensating the prevailing party. The key to invoking Rule 11, therefore, is the nature of the conduct of counsel and the parties, not the outcome. In 1985, The Federal Judicial Center published a study of Rule 11 sanctions. Kas-sin, An Empirical Study of Rule 11 Sanctions (Federal Judicial Center 1985). On the basis of questionnaires sent to federal district judges and case descriptions, the study gave rise to two principal findings: (1) the majority of judges selected deterrence as the primary function, and (2) those who favored a compensatory rationale were the most likely to impose sanctions. P. 33. The analysis continued: ... the courts do not appear to apply a consistent rationale in computing awards. Some are imposed as a “fine” on the offending attorney, whereas others are based -strictly on the goal of compensating the injured party for unnecessarily incurred expenses. P. 32 (footnotes omitted). On my analysis of Rule 11, the trial judge has a broad discretion in fashioning a Rule 11 sanction. It is therefore perhaps not surprising" }, { "docid": "22249043", "title": "", "text": "“abuse of discretion” standard for reviewing the initial decision to impose sanctions as well as the specifics of fee awards. See, e.g., Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d at 1091; Gaiardo, 835 F.2d 479, 485; Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir.1985). Before it imposed the sanctions, the district court here made the requisite finding that the complaint filed by Vincenti was frivolous, in other words, that he violated the Rule by failing competently to research the law before filing the instant complaint. Doering, No. 86-1238, slip op. at 2-3, reprinted in Appellant’s Appendix at 4-5. Our review of the record, under the “abuse of discretion” standard, leads us to affirm this finding. Rule 11 provides that the court may assess fees to cover “reasonable expenses [including attorney’s fees] incurred because of the filing of the [frivolous] pleading, motion, or other paper....” The starting point for a determination of attorney’s fees, the lodestar calculation, is the product of the number of hours reasonably expended in responding to the frivolous paper times an hourly fee based on the prevailing market rate. Here, the district court fairly assessed the reasonableness of the hourly fee structure submitted by the defendants’ counsel and painstakingly analyzed the propriety of the number of hours for the purposes asserted by counsel and necessitated by Doering’s groundless action. We do not disturb the court’s lodestar calculation. We do, however, for the first time here, direct the district courts to consider various mitigating factors in their calculation of the total monetary compensation owed by lawyers who have been found to have violated Rule 11. A particularly relevant equitable factor is the sanctioned party’s ability to pay. Obviously, the deter rent effect of an award of attorney’s fees depends on the extent of the sanctioned party’s resources. But while a monetary sanction, such as attorney’s fees, is clearly an acceptable choice of deterrent, courts must be careful not to impose monetary sanctions so great that they are punitive— or that might even drive the sanctioned party out of practice. See, e.g.," }, { "docid": "2328021", "title": "", "text": "L.Rev. 219, 226-27 (1985) (each hour spent on case by federal judge costs government $600). See Robinson v. Moses, 644 F.Supp. 975, 982 (N.D.Ind.1986); Dominguez v. Figel, 626 F.Supp. 368, 374 (N.D.Ind.1986). A conservative estimate of the court’s time devoted to this matter, including three hearings, a review of all pleadings, and the drafting of this order, is six hours. Using the formula set forth above, the court finds that Rule 11 sanctions in the amount of $3,600 for the court’s time are appropriate, said fine to be payable within thirty (30) days of this order. In addition, plaintiffs are ordered to pay the reasonable attorneys fees and costs incurred by the defendants in defending this cause as a further Rule 11 sanction. This amount will be determined by the court. Y. Conclusion Therefore, for all of the foregoing reasons, defendants’ motion for summary judgment is GRANTED. In addition, plaintiffs, jointly and severally, are ORDERED to pay as a sanction pursuant to Rule 11 the amount of Three Thousand Six Hundred Dollars ($3,600.00), said amount to be payable to the clerk of the court within thirty (30) days from the date of this order. Plaintiffs, jointly and severally, are FURTHER ORDERED to pay Rule 11 sanctions, for the reasonable attorneys fees and costs incurred by the defendants herein in an amount to be determined by the court. In this regard, defendants are hereby GRANTED ten (10) days from the date of this order to file their detailed request for fees and costs." }, { "docid": "8994394", "title": "", "text": "that a reasonable person would not have brought this claim after a moderate level of inquiry and reflection. The court, therefore, in the exercise of its discretion in matters brought by pro se litigants, grants monetary sanctions only as to plaintiffs frivolous conspiracy claim. Such is warranted notwithstanding plaintiffs pro se status. See, e.g., O’Malley v. New York City Transit Auth., 896 F.2d 704, 709 (2d Cir. 1990); Sassower v. Field, 138 F.R.D. 369 (S.D.N.Y.), modified, 973 F.2d 75 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 1879, 123 L.Ed.2d 497 (1993); Auen v. Sweeney, 109 F.R.D. 678, 680 (N.D.N.Y.1986). Said sanctions are imposed in order to deter plaintiff from future abuse of the judicial process and to compensate defendants for their attorneys’ fees and expenses. Notwithstanding the foregoing, the court is aware that one factor to be considered in the imposition of a Rule 11 sanction is “the financial circumstances of the plaintiff.” Sassower, supra, 973 F.2d at 81 (citing Johnson v. New York City Transit Auth., 823 F.2d 31, 33 (2d Cir.1987)). Therefore, the award of attorneys’ fees shall be subject to reduction by this court if plaintiffs financial circumstances so warrant. Monetary sanctions will be imposed based on the number of hours reasonably expended by each defendant’s counsel in responding to the complaint multiplied by a reasonable attorneys’ fee. As the motion for sanctions is imposed only with respect to that cause of action deemed frivolous, the award shall be pro rated in the discretion of the court. Counsel for defendants who have moved for sanctions are directed to file with the Office of the Clerk an affidavit setting’forth the appropriate figures, together with contemporaneous time and expense records specifying, for each attorney involved in the matter, the date, hours expended, and the nature of the work done, together with a proposed order for imposition of sanctions, within thirty (30) days after entry of this order. Durant v. Traditional Inv., Ltd., 1992 WL 51557 *14, 1992 U.S.Dist. LEXIS 2910, *49 (S.D.N.Y. 1992) (citing New York State Assoc. for Retarded Children, Inc. v. Carey, 711 F.2d 1136," } ]

[ { "docid": "22390880", "title": "", "text": "the Federal Magistrates Act, 39 J: Kan. Bar Assn. 25 (1970). Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128. The hearings and committee reports indicate that in § 636 (b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is “not inconsistent with the Constitution and laws of the United States . . . Second, Congress limited the magistrate’s role in cases referred to him under § 636 (b). The Act’s sponsors made it quite clear that the magistrate acts “under the supervision of the district judges” when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12. “[A] district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction.” House Hearings 73 (testimony of Sen. Tydings). See also id., at 127 (testimony of Asst. Deputy Atty. Gen. Finley). (3) We need not define the full reach of a magistrate’s authority under the Act, or reach the broad provisions of General Order No. 10A-D, in order to decide this case. Under the part of the order at issue the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record— closed because under § 206 (g) of the Social Security Act, 42 U. S. C. § 405 (g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary’s decision? The magistrate may do no" } ]

[ { "docid": "23595730", "title": "", "text": "for the magistrate’s entry of a postjudgment discovery order. See, Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1018 (5th Cir.1981). Roughton challenges Section 636(b)(3) as a basis for the magistrate’s jurisdiction, claiming that the grant of authority in (b)(3) cannot exceed specific jurisdictional grants in other provisions of 28 U.S.C. § 636. Because no other provision of § 636 expressly authorizes a federal magistrate to issue post-judgment discovery orders or to conduct a hearing and issue a report and recommendation on a contempt motion in a discovery dispute, Roughton contends that the magistrate acted without authority. He relies upon Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), Stockler v. Garratt, 974 F.2d 730 (6th Cir.1992) and Olympia Hotels Corp. v. Johnson Wax, 908 F.2d 1363 (7th Cir.1990). These cases examine a magistrate’s authorization to conduct voir dire. Given the critical nature of voir dire and its potentiality for affecting the outcome of a trial, these cases should have little relevance to determining the applicability of 28 U.S.C. § 636(b)(3) in this ease, where the issue is whether the magistrate can conduct a nondispositive postjudgment discovery motion in a collection proceeding, as FDIC correctly points out. The legislative history of § 636 also illustrates that Congress placed the “additional duties” clause in a separate subsection of § 636 to emphasize that it was not tightly restricted by other statutory grants of authority. H.R.Rep. No. 94-1609, 94th Cong., 2d Sess. 12 (1976), U.S.Code Cong. & Admin.News 1976, 6162. Gomez, supra, provided only that these additional duties reasonably relate to the existing statutory scheme. Given the fact that the discovery motions in this ease are the types of nondispositive discovery motions specifically authorized for pretrial determination by a magistrate under § 636(b)(1)(A), jurisdiction to decide these types of motions postjudgment bears a reasonable relationship to the existing statutory scheme and should be found under § 636(b)(3). Roughton argues that the Magistrate was not authorized to enter a final decision without the consent of the parties, citing Jaliwala v. United States, 945 F.2d 221 (7th Cir.1991)" }, { "docid": "7895264", "title": "", "text": "instruction, that this instruction was an “essential” part of the trial, and that consequently the Magistrate exceeded her authority under Section 636(c). Under Section 636(b)(3), a magistrate may be assigned “additional duties” as long as they are not inconsistent with the Constitution or laws of the United States. The legislative history of this subsection states that a magistrate would be permitted to “accept returns of jury verdicts where the trial judge is unavailable. ...” H.R. No. 94-1609, 94th Cong.2d Sess., re-printed in 1978 U.S.Code Cong. & Admin.News 6162, 6172. Additionally, Rule 16(E)(6) of the Local Rules for the United States District Court for the District of Minnesota provides that a magistrate may “[ajccept petit jury verdicts in civil cases in the absence of a judge.” Defendant does not dispute the power of the Magistrate to accept the jury’s verdict. Defendant asserts that the Magistrate exceeded her authority under Section 636(b)(3) by sending the jury back to complete the special verdict form. Defendant argues that this was a jury instruction and an integral part of a trial that may not be delegated to a magistrate absent consent of the parties. Although the case law is sparse, the Court holds that jury instructions are an integral part of a trial. A court may not delegate the duty of instructing a jury to a magistrate under the “additional duties” provision of § 636(b)(3). United States v. Rivera-Sola, 713 F.2d 866, 874 (1st Cir.1983); People v. Torres, 72 N.Y.2d 1007, 534 N.Y.S.2d 914, 531 N.E.2d 635 (1988). The issue, then, is whether the Magistrate issued a “jury instruction” in this case. The Court concludes that she did not. Defendant strenuously argues that by sending the jury out of the courtroom to fill in the empty blanks on the special verdict form, the Magistrate issued a formal “jury instruction.” Defendant speculates that the jury did not fill in all of the blanks on the special verdict form because it was deadlocked on those questions. Defendant concludes that the Magistrate “instructed” a jury which had indicated it was deadlocked to continue deliberating, and “oversaw” those deliberations." }, { "docid": "18178195", "title": "", "text": "own case of United States v. Rivera-Sola, 713 F.2d 866 (1st Cir.1983), we find three reported cases of magistrate empanelment under the present statute. United States v. DeFiore, 720 F.2d 757 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986); United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). See, also, a case even prior thereto, Haith v. United States, 342 F.2d 158 (3d Cir.1965). In none did the defendant succeed. In some instances, the defendant failed outright; in others, on the ground that he had not objected below. In Rivera-Sola we held that where defendant had failed to object below magistrate empanelment was not plain error to be considered on appeal. Fed.R.Crim.P. 52(b). At the same time, in an extended discussion, we voiced unreserved approval of the practice. Saying that it “requires comment,” we quoted Congressional history favoring delegating powers to magistrates; noted the Court’s general approval of delegation in Mathews v. Weber, 423 U.S. at 267-68, 96 S.Ct. at 552-53; and cited specific approvals of this practice by others. We concluded, “Presiding at the selection of a jury is a recognized ‘additional duty’ of a magistrate.” Our final remark was, “We end with a general observation. We think that a magistrate can effectively conduct the voir dire and preside at the selection of juries in civil and criminal eases.” Rivera-Sola, 713 F.2d at 872-74. Though dictum, this endorsement was especially significant in that not only was it unnecessarily volunteered, but we had recently been advised not to limit ourselves to plain error rulings in cases of improper district court practices of broad consequence, but to exercise our supervisory powers, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 L.Ed.2d 616 (1981), and we especially noted that the Puerto Rico magistrate empaneling was “a regular practice.” In sum, this was a clear endorsement, and" }, { "docid": "23424016", "title": "", "text": "discussion we deal with each of these issues. I Allocution by Magistrate Judge A. Under the Statute We turn first to whether the district court’s referral of Williams’ guilty plea allocution to the magistrate judge violated the Magistrates Act. In the 1976 amendments to the Magistrates Act, Pub.L. No. 94-577, 90 Stat. 2729, Congress authorized district court judges to assign additional duties to a magistrate. See 28 U.S.C. § 636(b)(3). As the legislative history of the 1976 amendments demonstrates, Congress was troubled by a series of court decisions that construed the Magistrates Act narrowly, stifling the greater use of these judicial officers by the district courts. See H.R.Rep. No. 1609, 94th Cong, 2d Sess. 5-6 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6164-66. The amendments accordingly reorganized the Magistrates Act in an attempt ‘“to clarify and further define the additional duties which may be assigned to a United States Magistrate.’” Gomez v. United States, 490 U.S. 858, 867, 109 S.Ct. 2237, 2243, 104 L.Ed.2d 923 (1989) (quoting H.R.Rep. No. 1609, at 2). The revised § 636(b)(3) reads as follows: “A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The scope of § 636(b)(3) has been illuminated by two recent Supreme Court decisions. In Gomez, the Court held that a magistrate’s conducting of a jury voir dire without the defendant’s consent is not one of the “additional duties” a district court has authority to assign to a magistrate. 490 U.S. at 875-76, 109 S.Ct. at 2247-48. Later, Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), explicitly ruled a district court’s delegation to a magistrate of a jury voir dire with the defendant’s consent did not violate the Magistrates Act or Article III: “The considerations that led to our holding in Gomez do not lead to the conclusion that a magistrate’s ‘additional duties’ may not include supervision of jury selection when the defendant has consented.” Id. at-, 111 S.Ct. at 2667 (emphasis added). The Court further noted that its holding in Gomez was “narrow” and" }, { "docid": "2194908", "title": "", "text": "has held that § 636(b)(3) allows a judge to delegate to a magistrate, as an “additional duty” within the meaning of this section, the quasi-judicial duty of presiding over voir dire. In United States v. Rivera-Sola, the First Circuit held that, by failing to object to a magistrate’s conduct of voir dire, the defendant had waived his right to do so. But because this appeared to be a regular practice in the District Court of Puerto Rico, the court reviewed the procedure and, in a lengthy comment, approved. In United States v. DeFiore, the Second Circuit reached the same result, relying on the defendant’s failure to object to the use of the magistrate. In United States v. Peacock and United States v. Bezold, the Ninth Circuit considered cases in which the defendant had timely objected, and found that § 636(b)(3) does authorize the conduct of voir dire by a magistrate. That court relied on the legislative history of the Act and the listing of voir dire as an “additional duty” in the Legal Manual for United States Magistrates. Circuit courts have also approved the delegation to magistrates of other duties not expressly enumerated in § 636. In Mathews v. Weber, the Supreme Court upheld, the referral to magistrates of all actions to review administrative determinations regarding entitlement to Social Security benefits. And this circuit, in United States v. Boswell, permitted a magistrate to preside over four hours of closing argument when the trial judge became ill. There is no reason to read the statute as forbidding a similar delegation of the conduct of voir dire to magistrates, provided, as the legislative history indicates, that the delegation does not offend the Constitution. In United States v. Raddatz, moreover, the Supreme Court was unanimous in finding that § 636 grants to judges the authority to delegate the holding of suppression hearings in criminal cases to magistrates. The Court in Raddatz was divided only on the issue of the constitutionality of this delegation absent a de novo hearing by the trial judge. III. The real issue before us, then, is whether the delegation" }, { "docid": "21717732", "title": "", "text": "referring matters to magistrates under subsection 636(b)(3), H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Ad.News 6162, 6172, and some courts have approved the delegation to magistrates of duties not expressly enumerated in section 636. See e.g., Mathews v. Weber, 423 U.S. 261, 267-68, 96 S.Ct. 549, 552-53, 46 L.Ed.2d 483 (1976) (referral to magistrate of all actions to review administrative determinations regarding entitlement to Social Security benefits); Rivera-Sola, 713 F.2d 866, 872-74 (1st Cir.1983) (referral of voir dire to magistrate); United States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.) (permitting magistrate to preside over portion of closing argument on account of judge’s illness), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). The referral of voir dire under this subseciton is particularly appropriate because the Legal Manual for United States Magistrates lists “[c]onduct of voir dire and selection of juries for district judges” as an “additional duty” for magistrates. Administrative Office of the United States Courts, Legal Manual for United States Magistrates § 3.10(3). Having concluded that the procedure utilized in this case is authorized by statute, our only remaining inquiry is whether it comports with the requirements of Article III of the Constitution. We conclude that it does. Although section 636(b)(3) contains no explicit statement regarding the availability of review by an Article III judge, we have determined that the referral of matters to a magistrate pursuant to this ection does not offend the Constitution so long as de novo review is available in the district court. See Raddatz, 447 U.S. at 673-76, 100 S.Ct. at 2411-13; Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537, 546 (9th Cir.) (en banc) (alluding to de novo review of all referrals under section 636(b)), cert. denied, — U.S. -, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). In Raddatz the Court upheld, over constitutional objection, the referral of a suppression motion to a magistrate under 28 U.S.C § 636(b)(1). In so doing, the Court relied upon the statutory scheme under which the ultimate decision-making authority was vested in an Article" }, { "docid": "13474728", "title": "", "text": "four powers. A judge may allow a magistrate to hear and determine, with a few specific exceptions, any pretrial matter under a clearly erroneous standard of review. 28 U.S.C. § 636(b)(1)(A). Secondly, a district judge may allow a magistrate to conduct hearings and make findings for disposition of any matter excepted to in the first part and make findings for disposition of applications for certain types of posttrial relief with de novo determination by the district judge. 28 U.S.C. § 636(b)(1)(B). The specific exceptions include only motions for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information, to suppress evidence in a criminal case, to dismiss or maintain a class action, to dismiss for failure to state a claim, and to involuntarily dismiss an action. 28 U.S. C. § 636(b)(1)(A). Thirdly, a “magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3) (emphasis added). The final power, which does not apply in this case, deals with aspects of a magistrate serving as a special master, either by statute or by consent of the parties in civil cases. 28 U.S.C. § 636(b)(1). Nothing in section 636(b) explicitly deals with voir dire conducted by magistrates. Four circuits have faced the issue of voir dire conducted by magistrates. The First Circuit faced the issue in U.S. v. Rivera-Sola, 713 F.2d 866 (1st Cir.1983). In that case, the First Circuit reviewed only for plain error under Fed.R.Crim.P. 52(b), and since Rivera demonstrated no prejudice, the Court found no error. Id. at 874. In U.S. v. DeFiore, 720 F.2d 757 (1983), the Second Circuit also did not decide whether magistrates were authorized to conduct voir dire because the defendant had failed to make a contemporaneous objection and because it would be anomalous to hold that such an error could not be waived, since a defendant may waive his or her right to be present at voir dire. Id. at 765 (citing for the no contemporaneous objection explanation, U.S. v. Lieberman, 608 F.2d" }, { "docid": "17692682", "title": "", "text": "judges themselves.” [S.Rep. No. 371, 90th Cong., 1st Sess., 8, 12 (1967).] In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by “increasing the scope of the responsibilities that can be discharged by that office, ... to establish a system capable of increasing the overall efficiency of the Federal judiciary....” Id. at 11. Mathews v. Weber, 423 U.S. at 267-68, 96 S.Ct. at 552-53 (citation omitted); see also United States v. Saunders, 641 F.2d 659, 663 (9th Cir.1980) (Supreme Court has allowed magistrates to perform even “inherently judicial” tasks when under supervision of an Article III judge), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); In re Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F.2d 1335, 1340-41 (7th Cir.) (footnote omitted) (“The only limitations on section 636(b)(3) are that the duties be consistent with the Constitution and federal laws and that they not be specifically excluded by section 636(b)(1).”), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); United States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.) (because of judge’s illness, magistrate presided during four hours of closing argument; reversal of conviction not warranted), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). Presiding at the selection of a jury is a recognized “additional duty” of a magistrate. The Legal Manual for United States Magistrates lists as an “additional duty” the “[c]onduct of voir dire and selection of juries for district judges.” Administrative Office of the United States Courts, Legal Manual for United States Magistrates, § 3.10(3). Further, the United States District Court for the District of Puerto Rico has a local court rule which provides: “The magistrates are also authorized to: ... [c]onduct voir dire and select petit juries in civil and criminal cases for the Court.” D.P.R.R. 13.6N. This use of magistrates has also met with judicial approval. See Haith v. United States, 231 F.Supp. 495, 497-99 (E.D.Pa.1964) (neither Fed.R. Crim.P. 24(a) nor due process require presence of trial judge during jury selection; only lawyers present), aff’d per curiam," }, { "docid": "2194928", "title": "", "text": "coercion is review by an Article III court IV. The Magistrates Act expressly authorizes district courts to delegate to magistrates any duty not inconsistent with the Constitution or laws of the United States. These express words are buttressed by a clear declaration of Congressional intent that the office of magistrate be used in an innovative and imaginative way. Every other circuit that has considered the issues before us has interpreted the Act to permit the delegation of voir dire to a magistrate, and the only circuits that have have considered the constitutionality of such a delegation have upheld it. We should not deprive district judges of the power to use the assistance given them by Congress to make their judicial function more efficient by posing a constitutional spectre in order to reach a statutory interpretation that denies the statutory words their plain meaning. I therefore respectfully dissent. . 28 U.S.C. § 636(b)(3) (1982). . 3 L. Orfield, Criminal Procedure Under the Federal Rules § 24.65, at 180 (1966). . H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Ad.News 6162, 6172 (emphasis added). . Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess. 81 (1968) (emphasis added). . 589 F.2d 1335, 1340-41 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979). .713 F.2d 866 (1st Cir.1983). . Id. at 872-73. . 720 F.2d 757, 764-65 (2d Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984). . 761 F.2d 1313, 1317-19 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). . 760 F.2d 999, 1001-03 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986). . Administrative Office of the United States Courts, Legal Manual for United States Magistrates § 3.10(3). . 423 U.S. 261, 266-72, 96 S.Ct. 549, 552-55, 46 L.Ed.2d 483 (1976). . 565 F.2d 1338, 1341-42 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). . 447 U.S." }, { "docid": "21717729", "title": "", "text": "there. The search of the Cave Rock residence disclosed chemical bottles and filter papers containing traces of amphetamine in Harold’s room. He accompanied his father to return the U-Haul. Finally, his pickup truck smelled of chemicals used to manufacture amphetamine. Based on the evidence, a rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. For the same reasons that there is sufficient evidence to support the convictions on the substantive counts, it was not error for the trial court to deny Harold Peacock’s Rule 29 motion for judgment of acquittal. Appellants cite as reversible error the order by the district court that a magistrate preside over selection and voir dire of the jury. As we understand the record, the magistrate did conduct voir dire and did preside over the selection of twelve jurors. The district judge reviewed the voir dire questions asked by the magistrate and asked further voir dire questions at the request of counsel. The jurors were sworn and impaneled by the district judge. As there was a specific objection to delegation of the initial jury selection duties to the magistrate, this case is unlike the appeal to the Second Circuit in United States v. DeFiore, 720 F.2d 757, 764-65 (2d Cir. 1983), cert. denied, — U.S. -, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984), where the court did not reach the merits of the argument because there had been no contemporaneous objection. We reach the substantive issue of the propriety of the delegation to the magistrate, and we find no error. The referral of matters to a magistrate is governed by the United States Magistrates Act, 28 U.S.C. §§ 631-639 (1982), which sets forth the matters properly referrable. 28 U.S.C. § 636. Subject to certain exceptions not relevant here, a district judge may designate a magistrate to hear and determine pretrial matters pending before the court. 28 U.S.C. § 636(b)(1)(A). Matters so delegated may be reconsidered by the district court when the magistrate’s order is clearly erroneous or contrary to law. Id.; United States v. Raddatz, 447 U.S." }, { "docid": "17692683", "title": "", "text": "v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.) (because of judge’s illness, magistrate presided during four hours of closing argument; reversal of conviction not warranted), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). Presiding at the selection of a jury is a recognized “additional duty” of a magistrate. The Legal Manual for United States Magistrates lists as an “additional duty” the “[c]onduct of voir dire and selection of juries for district judges.” Administrative Office of the United States Courts, Legal Manual for United States Magistrates, § 3.10(3). Further, the United States District Court for the District of Puerto Rico has a local court rule which provides: “The magistrates are also authorized to: ... [c]onduct voir dire and select petit juries in civil and criminal cases for the Court.” D.P.R.R. 13.6N. This use of magistrates has also met with judicial approval. See Haith v. United States, 231 F.Supp. 495, 497-99 (E.D.Pa.1964) (neither Fed.R. Crim.P. 24(a) nor due process require presence of trial judge during jury selection; only lawyers present), aff’d per curiam, 342 F.2d 159 (3d Cir.1965). There is no explicit congressional authorization for the use of a magistrate to give preliminary instructions to the jury. Nor do the local court rules for the District of Puerto Rico list this as a specific magistrate duty. Because Rivera did not object to the role of the magistrate, we review only for plain error. Fed.R.Crim.P. 52(b). Rivera has demonstrated no prejudice from the procedure followed, see United States v. Boswell, 565 F.2d at 1341-42, and we find no error. We end with a general observation. We think that a magistrate can effectively conduct the voir dire and preside at the selection of juries in civil and criminal cases, thus saving valuable time for our busy district court judges. The trial of criminal cases is, however, entrusted to district judges. Preliminary as well as final jury instructions play an important part in the trial of any case. The jury should not be given the impression that the instructions given it are merely a routine matter of form. V. Alleged Juror" }, { "docid": "12081949", "title": "", "text": "only juror so challenged had been excused by consent, appellants declined the offer. There is no claim of prejudice from the delegation of the voir dire to the magistrate. Rather, appellants argue that allowing a magistrate to preside at the jury selection in a felony case without a defend ant’s consent contravenes either the Federal Magistrates Act or Article III of the United States Constitution. A. Statutory Provisions In 1968 Congress established the office of United States magistrate, which replaced the office of United States commissioner. Federal Magistrates Act, Pub.L. No. 90-578, 82 Stat. 1107, reprinted in 1968 U.S. Code Cong. & Admin. News 1280 (codified as amended at 28 U.S.C. §§ 631-639 (1982 & Supp. III 1985)). Controversy soon developed regarding the scope of a magistrate's duties. See, e.g., Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974) (magistrates not authorized under the Act to conduct habeas corpus evidentiary hearings). As a result, Congress amended the Federal Magistrates Act in 1976 “to clarify and further define the additional duties which may be assigned to a United States Magistrate in the discretion of a judge of the district court.” H.R.Rep. No. 1609, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6162 [hereinafter 1976 House Report]. As amended, 28 U.S.C. § 636(b)(1)(A) provides that a magistrate may hear and determine pretrial matters — with certain enumerated exceptions — subject to reconsideration by a district judge when it is argued that the magistrate’s order is clearly erroneous or contrary to law. Under § 636(b)(1)(B), a magistrate may conduct hearings on specified motions and file proposed findings and recommendations with a district judge. These findings and recommendations are subject to de novo determination by a district judge. Finally, § 636(b)(3) provides that “[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Because no contemporaneous objection had been made to the process in United States v. DeFiore, 720 F.2d 757, 765 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1684," }, { "docid": "21717730", "title": "", "text": "As there was a specific objection to delegation of the initial jury selection duties to the magistrate, this case is unlike the appeal to the Second Circuit in United States v. DeFiore, 720 F.2d 757, 764-65 (2d Cir. 1983), cert. denied, — U.S. -, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984), where the court did not reach the merits of the argument because there had been no contemporaneous objection. We reach the substantive issue of the propriety of the delegation to the magistrate, and we find no error. The referral of matters to a magistrate is governed by the United States Magistrates Act, 28 U.S.C. §§ 631-639 (1982), which sets forth the matters properly referrable. 28 U.S.C. § 636. Subject to certain exceptions not relevant here, a district judge may designate a magistrate to hear and determine pretrial matters pending before the court. 28 U.S.C. § 636(b)(1)(A). Matters so delegated may be reconsidered by the district court when the magistrate’s order is clearly erroneous or contrary to law. Id.; United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). A district judge may also designate a magistrate to conduct hearings and to submit to the court proposed findings of fact and recommendations for disposition of the matter. 28 U.S.C. § 636(b)(1)(B). This procedure does not offend Article III of the Constitution so long as there is de novo review by the district court. Id.; Raddatz, 447 U.S. at 673-76, 100 S.Ct. at 2411-13. Finally, a magistrate may be assigned “such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). Although the statutory subsection relied upon by the district court in ordering the referral is unclear from the record, we conclude the delegation was permissible under 28 U.S.C. § 636(b)(3). In so holding, we align ourselves with the First Circuit, which has upheld the referral of jury selection proceedings to a magistrate under this subsection. United States v. Rivera-Sola, 713 F.2d 866, 872-74 (1st Cir.1983). Congress intended to confer wide latitude upon the courts in" }, { "docid": "8575518", "title": "", "text": "U.S. 1074,. 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980) (“Absent some indication that the antagonism between co-defendants misled or confused the jury, the mere fact that co-defendants blame each other does not compel severance”). Since Pack has demonstrated no actual prejudice, his severance argument must fail. Pack argues that the district court erred in permitting a magistrate to accept the verdict in contravention of Federal Rule of Criminal Procedure 25. Federal Rule 25 provides: If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial. In the present case, the district judge presided over the trial from voir dire to the commencement of the jury deliberations whereupon he delegated the magistrate to receive the verdict because of other pending matters. The magistrate performed no duties beyond the mechanics of receiving and reading the jury’s verdict form upon the conclusion of its deliberations. In accepting that verdict, the magistrate performed a function contemplated by Congress in enacting § 101 of the Federal Magistrates Act, 28 U.S.C. § 636. The Magistrates Act provides: A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. 28 U.S.C. § 636(b)(3). The House report on the 1976 amendments to the Act specifically stated that 28 U.S.C. § 636(b)(3) “would permit, for example, a magistrate to ... accept returns of jury verdicts where the trial judge is unavailable.” H.R. No. 94-1609, 94th Cong.2d Sess., reprinted in [1976] 5 U.S.Code Cong. & Ad.News 6162, 6172. In light of this clear legislative command, this court cannot conclude that the district court erred in permitting the magistrate to accept the verdict in this case. Pack’s assignment of error asserting that the district court abused its discretion by denying his motion for the appointment of a Certified Public Accountant to assist him in the preparation" }, { "docid": "12081951", "title": "", "text": "80 L.Ed.2d 158 (1984), we left open the question of whether 28 U.S.C. § 636 permits a district judge to delegate to a magistrate the power to preside over jury selection in felony cases. Haith v. United States, 342 F.2d 158, 159 (3d Cir. 1965) (per curiam) (failure to object to or claim prejudice from delegation waives right to contest delegation), aff'g 231 F.Supp. 495 (E.D.Pa.1964). Here, contemporaneous objections were made and thus the issue is squarely before us. Our sister circuits are divided on the proper scope of § 636. The Ninth Circuit has held that a magistrate may—consistent with both § 636 and the Constitution—preside over jury selection despite the defendant’s objection so long as de novo review is available in the district court. See United States v. Peacock, 761 F.2d 1313, 1318 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999, 1002 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986); see also United States v. Rivera-Sola, 713 F.2d 866, 874 (1st Cir.1983) (approving of delegation in dictum). Recently, the Fifth Circuit sitting en banc determined that it was not Congress’ purpose to permit such a delegation under § 636 and that therefore a magistrate may not preside in jury selection over defendant’s protests. See United States v. Ford, 824 F.2d 1430, 1438 (5th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988). The first issue to be resolved is what was the aim of Congress when it enacted § 636. Discussing the “additional duties” provision of § 636(b)(3), Congress stated that [t]his subsection enables the district courts to continue innovative experimen-tations in the use of [magistrates]. At the same time, placing this authorization in an entirely separate subsection emphasizes that it is not restricted in any way by any other specific grant of authority to magistrates. Under this subsection, the district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of" }, { "docid": "12081950", "title": "", "text": "may be assigned to a United States Magistrate in the discretion of a judge of the district court.” H.R.Rep. No. 1609, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6162 [hereinafter 1976 House Report]. As amended, 28 U.S.C. § 636(b)(1)(A) provides that a magistrate may hear and determine pretrial matters — with certain enumerated exceptions — subject to reconsideration by a district judge when it is argued that the magistrate’s order is clearly erroneous or contrary to law. Under § 636(b)(1)(B), a magistrate may conduct hearings on specified motions and file proposed findings and recommendations with a district judge. These findings and recommendations are subject to de novo determination by a district judge. Finally, § 636(b)(3) provides that “[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Because no contemporaneous objection had been made to the process in United States v. DeFiore, 720 F.2d 757, 765 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984), we left open the question of whether 28 U.S.C. § 636 permits a district judge to delegate to a magistrate the power to preside over jury selection in felony cases. Haith v. United States, 342 F.2d 158, 159 (3d Cir. 1965) (per curiam) (failure to object to or claim prejudice from delegation waives right to contest delegation), aff'g 231 F.Supp. 495 (E.D.Pa.1964). Here, contemporaneous objections were made and thus the issue is squarely before us. Our sister circuits are divided on the proper scope of § 636. The Ninth Circuit has held that a magistrate may—consistent with both § 636 and the Constitution—preside over jury selection despite the defendant’s objection so long as de novo review is available in the district court. See United States v. Peacock, 761 F.2d 1313, 1318 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999, 1002 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986); see also United States" }, { "docid": "12081952", "title": "", "text": "v. Rivera-Sola, 713 F.2d 866, 874 (1st Cir.1983) (approving of delegation in dictum). Recently, the Fifth Circuit sitting en banc determined that it was not Congress’ purpose to permit such a delegation under § 636 and that therefore a magistrate may not preside in jury selection over defendant’s protests. See United States v. Ford, 824 F.2d 1430, 1438 (5th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988). The first issue to be resolved is what was the aim of Congress when it enacted § 636. Discussing the “additional duties” provision of § 636(b)(3), Congress stated that [t]his subsection enables the district courts to continue innovative experimen-tations in the use of [magistrates]. At the same time, placing this authorization in an entirely separate subsection emphasizes that it is not restricted in any way by any other specific grant of authority to magistrates. Under this subsection, the district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of “pretrial matters”. 1976 House Report, supra, at 12, reprinted in 1976 U.S. Code Cong. & Admin. News at 6172 (emphasis added); see also S.Rep. No. 625, 94th Cong., 2d Sess. 10 (1976) (same statement). Appellants contend that delegation of jury selection to a magistrate is precluded by a close textual analysis of § 636. They first argue that Congress’ purpose was to permit only pretrial matters to fall within § 636(b) and that jury selection, as an integral part of a trial, is not a pretrial matter. In support of their argument, appellants note the reference to “pretrial matters” in the House Report quoted above. But the language of that Report plainly states that the subsection grants to district courts the freedom to experiment beyond duties traditionally categorized as “pretrial.” Hence, even assuming arguendo that jury selection falls on the “trial” side of the line between “trial” and “pretrial” — a line that is, at best, often blurred — the legislative history of § 636(b) does not preclude delegation of that task to a magistrate." }, { "docid": "13474738", "title": "", "text": "for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. 28 U.S.C. § 636(b)(1)(B). Congress intended this provision to authorize the delegation of a specific but limited list of powers. Voir dire is not included in that list. C. SECTION 636(b)(3): ADDITIONAL DUTIES Section 636(b)(3) provides: “A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” On its face, section 636(b)(3) appears to be all-inclusive, but the section is limited by accompanying provisions and the entire structure of section 636(b). The structure of section 636(b) implies both a timeline and a diversity of character belonging to the different authorizations granted to magistrates under the Act. As we have seen, subparagraph (A) governs all pretrial matters, but a broad reading of the additional duties provision renders sub-paragraph (A) superfluous, suggesting that the “additional duties” provision is intended for matters after the trial begins. In terms of the character of voir dire being fact determining rather than fact gathering, see United States v. Ford, 824 F.2d at 1436, voir dire belongs among the motions authorized by subparagraph (B). But voir dire was not included under subparagraph (B). Neither the timing nor the character of voir dire suggest its inclusion under the “additional duties” provision. Looking at the legislative history to determine those duties intended to be within the scope of “additional duties” is not an exact science. Congress was clear that it did not intend to limit the “additional duties” provision to specific powers that had been delegated to magistrates in the past. Congress wanted to leave district judges “free to experiment.” H.R.Rep. No. 1609, 94th Cong.2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6172. Unfortunately, the pronouncement of “free to experiment” offers no real guide as to the line before such power extends beyond congressional authorization and raises serious constitutional questions. The legislative history does, however, announce the purpose of the “additional duties” provision. If district judges are willing to experiment with the assignment to magistrates of other functions" }, { "docid": "13474739", "title": "", "text": "gathering, see United States v. Ford, 824 F.2d at 1436, voir dire belongs among the motions authorized by subparagraph (B). But voir dire was not included under subparagraph (B). Neither the timing nor the character of voir dire suggest its inclusion under the “additional duties” provision. Looking at the legislative history to determine those duties intended to be within the scope of “additional duties” is not an exact science. Congress was clear that it did not intend to limit the “additional duties” provision to specific powers that had been delegated to magistrates in the past. Congress wanted to leave district judges “free to experiment.” H.R.Rep. No. 1609, 94th Cong.2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6172. Unfortunately, the pronouncement of “free to experiment” offers no real guide as to the line before such power extends beyond congressional authorization and raises serious constitutional questions. The legislative history does, however, announce the purpose of the “additional duties” provision. If district judges are willing to experiment with the assignment to magistrates of other functions in aid of the business of the courts, there will be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties, and a consequent benefit to both efficiency and the quality of justice in the Federal courts. Id., reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6172 (emphasis added). As we have seen from the history of the rise of juries, the conducting of voir dire is a “traditional adjudicatory duty” of a trial judge. While one could possibly conclude that voir dire is within the overly broad language of section 636(b)(3), we feel that that conclusion defeats the purpose of the additional duties provision. After concluding — as we have — that Congress did not intend to grant magistrates the power to conduct voir dire, the Fifth Circuit then rejected the defendant’s appeal on the ground that the defendant waived this error by failing to seasonably object and that this error was harmless. Unlike Ford, we find, however, that the defendants objected to this error at" }, { "docid": "21717731", "title": "", "text": "667, 673, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). A district judge may also designate a magistrate to conduct hearings and to submit to the court proposed findings of fact and recommendations for disposition of the matter. 28 U.S.C. § 636(b)(1)(B). This procedure does not offend Article III of the Constitution so long as there is de novo review by the district court. Id.; Raddatz, 447 U.S. at 673-76, 100 S.Ct. at 2411-13. Finally, a magistrate may be assigned “such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). Although the statutory subsection relied upon by the district court in ordering the referral is unclear from the record, we conclude the delegation was permissible under 28 U.S.C. § 636(b)(3). In so holding, we align ourselves with the First Circuit, which has upheld the referral of jury selection proceedings to a magistrate under this subsection. United States v. Rivera-Sola, 713 F.2d 866, 872-74 (1st Cir.1983). Congress intended to confer wide latitude upon the courts in referring matters to magistrates under subsection 636(b)(3), H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Ad.News 6162, 6172, and some courts have approved the delegation to magistrates of duties not expressly enumerated in section 636. See e.g., Mathews v. Weber, 423 U.S. 261, 267-68, 96 S.Ct. 549, 552-53, 46 L.Ed.2d 483 (1976) (referral to magistrate of all actions to review administrative determinations regarding entitlement to Social Security benefits); Rivera-Sola, 713 F.2d 866, 872-74 (1st Cir.1983) (referral of voir dire to magistrate); United States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.) (permitting magistrate to preside over portion of closing argument on account of judge’s illness), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). The referral of voir dire under this subseciton is particularly appropriate because the Legal Manual for United States Magistrates lists “[c]onduct of voir dire and selection of juries for district judges” as an “additional duty” for magistrates. Administrative Office of the United States Courts, Legal Manual for United States Magistrates § 3.10(3)." } ]

[ { "docid": "16967326", "title": "", "text": "SYKES, Circuit Judge. The bankruptcy rules authorize claims trading, a practice in which a creditor sells its claim against a bankrupt debtor to a third party in exchange for cash or something else of value. See Fed. R. BaneeP. 3001(e). Claims trading allows creditors to opt out of the bankruptcy system, trading an uncertain future payment for an immediate one, so long as they can find a purchaser. The purchaser essentially becomes an investor in the bankruptcy estate, betting that the future payout will eventually be more than the claim’s purchase price. This case involves claims trading with a twist: two bankrupt individuals in Chapter 7 proceedings under joint administration in the bankruptcy court formed a corporation to purchase a secured claim against their own estates. Claims trading by debtors in their own estates is unusual; debtors in bankruptcy presumably lack assets outside their estates that might be used to purchase a claim. The bankruptcy court viewed the debtors’ actions as misconduct and invoked the doctrine of equitable subordination. The result was that their corporation’s claim was given last priority, meaning it could be paid only after the claims of every unsecured creditor. Not surprisingly, there wasn’t enough money to pay all the unsecured claims, so the corporation ended up with nothing. An appeal was taken to the district court, which affirmed, and the corporation appealed to this court. We reverse. Equitable subordination is generally appropriate only if a creditor is guilty of misconduct that causes injury to the interests of other creditors. The debtors’ formation of a corporation to purchase a secured claim against their own estates may have amounted to misconduct, but it did not harm the other creditors, who were in the same position whether the original creditor or the debtors’ corporation owned the secured claim. I. Background Real-estate developers Barry Kreisler and Marsha Erenberg each owned an interest in two properties located on Western Avenue in Chicago, both of which were fully encumbered by several mortgages, including a junior mortgage held by the Community Bank of Ravenswood. In 2002 Kreisler and Erenberg filed for bankruptcy, and" } ]

[ { "docid": "18492808", "title": "", "text": "Debtor apparently seeks to subordinate the Seminole interest in the Wrap Mortgage to the equity interests of the 58 debtor shareholders. Section 510(c) of the code provides: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. “It is well established that a bankruptcy court has the authority to subordinate claims on equitable grounds.” See Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939); (Matter of Multiponics, Inc., 622 F.2d 709, 713 (5th Cir.1980); Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977). The proper test in a subordination case, as set forth in Mobile and Multiponics, is as follows: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In the Matter of Mobile Steel Co., 563 F.2d at 700 (citations omitted). In connection with (i), as in this case, the inequitable conduct which must be shown need not necessarily be related to the acquisition or assertion of the claim. Id. (See also Westgate-Califomia Corp. v. First National, 650 F.2d 1040 [9th Cir.1981]). The basis for these rules of equitable subordination is that the bankruptcy court has the equitable power and the duty “to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. at 303, 60 S.Ct. at 243. Under the first element, inequitable conduct, three categories of inequitable conduct have been recognized, namely 1) fraud," }, { "docid": "21743341", "title": "", "text": "petition for cert. filed, 85 U.S.L.W. 3095 (U.S. Sept. 12, 2016) (No. 16-317); KHI, 480 B.R. at 895, The post-petition transfer claims are claims under section 549(a) of the Code. They, too, arise under title 11. See Redmond v. Gulf City Body & Trailer Works, Inc. (In re Sunbridge Capital, Inc.), 454 B.R. 166, 169 (Bankr. D. Kan. 2011). • The subordination claim against BTM also arises under title 11. The claim is brought under section 510(c) of the Code. That section “ereat[es] the basis for the action” and an action premised on it is “within the scope of the ‘arising under’... jurisdiction.” Boyer v. Simon (In re Fort Wayne Telsat, Inc.), 403 B.R. 590, 593 (Bankr. N.D. Ind. 2009). Gierum’s accounting claim does not arise “under” title 11, but it does arise “in” a case under that title. Claims “arising in” a case under title 11 are “administrative matters that arise only in bankruptcy cases.” Nelson, 601 F.3d at 719 (emphasis in original) (internal quotation omitted); Wood, 825 F.2d at 97. The goal of Gierum’s claim is to have Glick account for post-petition payments that his alleged alter egos, JZ Enterprises LP and JZ Illinois Ventures LP, made. (PI. Resp. at 56-58). An accounting claim of that kind is meant to ensure the trustee obtains “control over all that is rightfully considered part of the bankruptcy estate.” Bakst v. Smokemist, Inc. (In re Gladstone), 513 B.R. 149, 157 (Bankr. S.D. Fla. 2014). Because that accounting would be “an integral part” of the trustee’s duty to identify estáte property, the claim is one “arising in” the bankruptcy case. Id. The remaining claims—the damage claims for aiding and abetting the fraudulent transfers—are all “related to” Glick’s bankruptcy case. Claims are related to a case under title 11 if they “affeet[] the amount of property for distribution [i.e., the debtor’s estate] or the allocation of property among creditors.’.’ In re FedPak Sys., Inc., 80 F.3d 207, 213-14 (7th Cir. 1996). If successful, Gierum’s aiding and abetting claims would result in damage awards in the estate’s favor, increasing its size and affecting the" }, { "docid": "21743411", "title": "", "text": "another section of the IUFTA has displaced them. Section 8 specifies the remedies a creditor “may obtain” in “an action for relief against a transfer or obligation under this Act.” 740 ILCS 160/8 (2014): An award of damages against an aider-and- abettor is not one of them. Because Gierum has not stated fraudulent transfer claims, and because there is no such thing as a claim for aiding and abetting a fraudulent transfer, the motions of the defendants to dismiss the aiding and abetting claims in Counts XI-XVI will be granted. Counts XI-XVI will be dismissed. 8. Equitable Subordination Claim (Count XXIII) Count XXIII, finally, will also be dismissed. In Count XXIII, Gierum attempts to allege a claim under section 510(e)(1) for equitable subordination of BTM’s claim secured by a lien on accounts receivable of Play Makers. For two reasons, though, Gierum has stated no equitable subordination claim. First, Play Makers is not the debtor here. Its assets are therefore not estate assets from which Gie-rum will make distributions to creditors. And second, BTM has filed no proof of claim in Glick’s case. There is consequently no claim to subordinate. Section 510(c) provides that a court “may (1) under principles of equitable subordination, subordinate for. purposes of distribution all or part of an allowed claim to all or part of another allowed claim ... or (2) order that any lien securing such a subordinated claim be transferred to the estate.” 11 U.S.C. § 510(c). Equitable subordination is a discretionary doctrine under which the court “sift[s] the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 308, 60 S.Ct. 238, 84 L.Ed. 281 (1939). Gierum’s equitable subordination claim runs up against the same barrier that so many of his claims do. Play Makers is not the debtor in this bankruptcy case. Glick is the debtor. And although Gierum argues otherwise (PI. Resp. at 54), he has no piercing theory that will permit Play Makers to be deemed Glick’s alter ego and its property declared property of" }, { "docid": "2657894", "title": "", "text": "Oral Agreement and the voluntary or involuntary nature of the leave of absence are moot. EQUITABLE SUBORDINATION The Plan Administrator argues that equitable subordination is appropriate under two theories: (1) that White engaged in inequitable conduct that harmed Mid-American or its creditors and (2) that the equities of this case support equitable subordination even in the absence of inequitable conduct. I find that White engaged in inequitable conduct. Therefore I need not address the Plan Administrator’s argument that under Third Circuit law courts need not find inequitable conduct in all cases in order to invoke equitable subordination under § 510(c). Legal Standard For purposes of distribution, Section 510(c) permits a bankruptcy court to subordinate an allowed claim, on equitable grounds, to the claims of other creditors of a debtor’s estate. “In the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Burden, 917 F.2d 115, 117 (3d Cir.1990) (quoting Pepper v. Litton, 308 U.S. 295, 307-08, 60 S.Ct. 238, 245-46, 84 L.Ed. 281 (1939)). The essential purpose of equitable subordination is to undo any inequality in the claim position of a creditor that will produce injustice or unfairness to other creditors in terms of distribution of the estate. See id. at 117 (citing Trone v. Smith (In re Westgate-California Corp.), 642 F.2d 1174, 1177 (9th Cir.1981)); Westgate, 642 F.2d at 1177 (“Bankruptcy courts are empowered to subordinate claims where subordination will promote a just and equitable distribution of the bankrupt estate.”); Diazo Serv. Co., Inc. v. Redmond (In re Diazo Serv. Co., Inc.), 144 B.R. 771, 776 (Bankr. M.D.Tenn.1992). Although § 510(c) deals with allowed claims, a determination as to whether a claim is subject to equitable subordination under § 510(c) may be made before the determination as to the allowance of the claim. United States Abatement Corp. v. Mobile Exploration & Producing U.S., Inc. (In the Matter of United States Abatement Corp.), 39 F.3d 556, 560 (5th Cir. 1994) (finding no requirement that a bankruptcy" }, { "docid": "11715615", "title": "", "text": "to the instant case because the appellees were not the secured creditors during the period the administrative rent was not paid. Accordingly, the Bankruptcy Court’s finding that the appel-lees were not responsible for violation of sections 365(d)(3) and (4) or any injuries flowing therefrom that rise to the level of inequitable conduct to justify piercing the corporate veil was correct. C. Equitable Subordination The Supreme Court has recognized that “[i]n the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice and unfairness is not done in the administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 307-08, 60 S.Ct. 238, 246, 84 L.Ed. 281 (1939); see also Burden v. U.S., 917 F.2d 115, 117 (3d Cir.1990). Section 510(e) of the Bankruptcy Code essentially codified the doctrine of equitable subordination enunciated in Pepper and the numerous case which subsequently reiterated and refined the doctrine. See In re CTS Truss, Inc., 868 F.2d 146, 148 (6th Cir. 1989) (finding that intent of 11 U.S.C. § 510(c) “was to incorporate the doctrines that had been well-developed in the courts for several decades preceding the enactment of the Bankruptcy Code”); In re M. Paolella & Sons, Inc., 161 B.R. 107, 117 (E.D.Pa.1993) (same). Nevertheless, “equitable subordination is an unusual remedy which should only be applied in limited circumstances.” In re Fabricators, Inc., 926 F.2d 1458, 1464 (5th Cir.1991); see also Paolella & Sons, 161 B.R. at 117 (“[E]quitable Subordination is an extraordinary departure from the ‘usual principle of equality of distribution and preference for secured creditors.’ ”) (citations omitted). Section 510(c) states in relevant part: Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principle of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferee to the estate. 11 U.S.C." }, { "docid": "13148345", "title": "", "text": "empowering the bankruptcy courts to subordinate any valid claim against the bankruptcy estate “when principles of equity would be offended by the allowance of such claims on a parity with those of other creditors.” 3 Collier on Bankruptcy 11510.01 at 510-3. This ability to classify or rank claims reflects the essence of the court’s broad equitable powers by which the overall result of a bankruptcy proceeding is assured of being inherently fair to all the interested parties. A debtor corporation’s officers, directors and controlling shareholders are “insiders” of the debtor as defined in 11 U.S.C. § 101(28). Any transactions between a debtor and an insider of the debtor are subject to heavy scrutiny. 2 Collier on Bankruptcy H 101.28 at 101-42.14. If the trustee (or another interested party) can give evidence of an insider’s domination and control of the debtor corporation and can show that the corporation is a “mere instrumentality” of the insider and that other creditors have been prejudiced by the insider’s conduct, the court will pierce the corporate veil. See 3 Collier on Bankruptcy 11 510.05 at 510-12. If the court finds that such dealings are inherently unfair, it is within its equitable powers to subordinate or disallow the insider’s claims pursuant to section 510(c). The Supreme Court’s landmark bankruptcy decision Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), is the classic presentation of the doctrine of equitable subordination and the clearest expression of a bankruptcy court’s broad equitable powers. In it the Court reversed the appellate ruling and upheld the district court’s determinations that a debtor corporation and its owner were “in reality the same,” id. at 301, 60 S.Ct. at 242, and that the owner’s claim was properly disallowed or subordinated. Id. at 311, 60 S.Ct. at 247. In the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate. And its duty so to do is especially clear when the claim seeking allowance accrues to the" }, { "docid": "21743413", "title": "", "text": "Glick’s bankruptcy estate. Equitable subordination is a remedy under the Code designed to alter the priority in which creditors receive payment from the debtor’s estate. Pepper, 308 U.S. at 310, 60 S.Ct. 238; In re Kreisler, 546 F.3d 863, 866 (7th Cir. 2008). BTM’s secured claim against Play Makers, a non-debtor, cannot be equitably subordinated. But equitable subordination would be unavailable even if piercing were possible. The remedy is available only as to an “allowed claim.” 11 U.S.C. § 510(c)(1); see Max Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1257 n.16 (1st Cir. 1991) (noting that “[o]nly an ‘allowed claim’ ... may be subjected to equitable subordination under Bankruptcy Code § 510(c)”). An allowed claim is one “proof of which is filed under section 501.” 11 U.S.C. § 502(a). According to the claims register maintained for the Glick bankruptcy case, see Fed. R. Bankr. P. 5003(b), BTM has not filed a proof of claim. With no claim in the case, BTM will receive no distributions from the estate. There is consequently no priority of payment to alter and nothing to subordinate. Because Gierum has failed to state a claim for equitable subordination of BTM’s claim, the motion of Chapman, BTM, and Optimum to dismiss Count XXIII will be granted. Count XXIII will be dismissed. III. Leave to Amend Most of Gierum’s claims, then, will be dismissed. The only remaining question is whether he should be given leave to amend. The answer is no. Because the “spirit of the Federal Rules” is to ensure “decisions on the merits,” Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Rules reflect “a liberal attitude towards the amendment of pleadings,” Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 (7th Cir. 2002). Rule 15(a)(2) instructs that “[t]he court should freely give leave when justice so requires,” Fed. R. Civ. P. 15(a)(2), and the Rule’s mandate, the Supreme Court has said, “is to be heeded.” Foman, 371 U.S. at 182, 83 S.Ct. 227. In light of that mandate, a plaintiff whose original complaint" }, { "docid": "1996617", "title": "", "text": "by a bankruptcy court to balance the equities among claims of conflicting creditors to see that injustice or unfairness is not done in the administration of a bankruptcy estate. Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939). The right of the bankruptcy court to order equitable subordination of claims has been codified in 11 U.S.C. Section 510(c) which provides that: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. The use of the term “principles of equitable subordination” in Section 510(c) as a standard was intended to mean that the Courts were to follow existing case law and continue to develop the principles of the doctrine of equitable subordination on a case by case basis. 124 Cong.Rec. H 11095 (Sept. 28, 1978); S 17412 (Oct. 6, 1978). The Trustee must prove three separate elements in order to prevail in an equitable subordination case: (1) That the claimant engaged in some type of inequitable conduct; (2) That the inequitable conduct of the claimant resulted in injury to the creditors of the Debtor or conferred an unfair advantage on the claimant; and (3) The equitable subordination of the claimant’s claim is not inconsistent with the provisions of the Bankruptcy Code. In re Mobile Steel Company, 563 F.2d 692 (5th Cir.1977); In re Multiponics, Inc., 622 F.2d 709 (5th Cir.1980). A determination of whether the claimant was an insider at the time of the alleged inequitable conduct is a first step in examining the inequity of the claimant’s conduct, because the conduct of a fiduciary is subject to special scrutiny by the Court and a" }, { "docid": "21743331", "title": "", "text": "(noting that assets of a corporation the debtor owns are neither his assets nor assets of his bankruptcy estate). Gierum apparently recognized the problem. Rather than contest the motions, he asked for and received leave to amend. 2. Amended Complaint In his amended complaint, Gierum seeks to get around the deficiency of its predecessor with several corporate veil-piercing theories. Gierum alleges that the many Glick entities (the LLCs, partnerships, and trusts) are simply Glick’s alter egos. According to Gierum, the activities of these entities are also so saturated with fraud that their separate existences should be ignored to prevent injustice to Glick’s creditors. Gierum employs his veil-piercing theories in two ways. First, he invokes the theory to set up turnover claims. Because the Glick entities are all really Glick,. Gie-rum asserts, their assets are all really assets of Glick’s estate and must be turned over. Second, Gierum invokes the theories to set up avoidance claims. Because the Glick entities are really Glick, Gierum says, transfers they made should be treated as Glick’s transfers. Transfers made pre-petition should be avoided as fraudulent; transfers made post-petition should be undone because neither the Code nor the court authorized them. But Gierum does not stop there. He wants damages from Larry, Nancy, HMB, the three HMB partners, Bari, Chapman, Optimum, and BTM for aiding and abetting the alleged fraudulent transfers. He wants Glick to provide an accounting of transfers involving two entities that the JCG 1999 Trust owned, both allegedly Glick’s alter egos. And he wants BTM’s secured claim subordinated to the claims against Glick on the ground that BTM’s claim stems from a loan crucial to what Gierum believes was Glick’s fraudulent scheme. Named as defendants are the same fifteen defendants in the original complaint. The number of counts, however, has ballooned from seventeen to twenty-three. Twenty-one of the twenty-three counts fall into four major groups. • Counts I-VI are the “alter ego/piercing the corporate veil” claims. • Counts VII-X are the fraudulent transfer claims: Counts VII and VIII allege actual and constructive fraud under section 548 of the Code, and Counts IX" }, { "docid": "13148346", "title": "", "text": "on Bankruptcy 11 510.05 at 510-12. If the court finds that such dealings are inherently unfair, it is within its equitable powers to subordinate or disallow the insider’s claims pursuant to section 510(c). The Supreme Court’s landmark bankruptcy decision Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), is the classic presentation of the doctrine of equitable subordination and the clearest expression of a bankruptcy court’s broad equitable powers. In it the Court reversed the appellate ruling and upheld the district court’s determinations that a debtor corporation and its owner were “in reality the same,” id. at 301, 60 S.Ct. at 242, and that the owner’s claim was properly disallowed or subordinated. Id. at 311, 60 S.Ct. at 247. In the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate. And its duty so to do is especially clear when the claim seeking allowance accrues to the benefit of an officer, director, or stockholder. Id. at 307-08, 60 S.Ct. at 246. The Pepper court emphasized that the fiduciary role of directors or stockholders is based upon their “powers in trust.” If their dealings with the corporation are challenged, they have the burden of proving the good faith and inherent fairness of the transaction. “The essence of the test is whether or not under all the circumstances the transaction carries the earmarks of an arm’s length bargain. If it does not, equity will set it aside.” Id. at 306-07, 60 S.Ct. at 245. The broad factors suggested by the court for subordination of a fiduciary’s claim are quite similar to the basic alter ego requirements; and in both cases “liability is imposed to reach an equitable result.” Brunswick Corp. v. Waxman, 599 F.2d at 36. The court acknowledged with approval the use of equitable subordination when the facts showed that the debtor has been used merely as a corporate pocket of the dominant stockholder, id. at 309, 60 S.Ct. at 246, and specified" }, { "docid": "1085759", "title": "", "text": "any of the standards for marshalling. First, as argued by debtors’ counsel, this is not a situation of a junior lienor asserting marshalling as against a senior lienor. At most, the debtor-in-possession, ESA, could assert a claim against its parent, Elsinore, on behalf of the unsecured creditor class. Secondly, there are not two funds owned by the debtor. Elsinore’s guaranty is not property of ESA or any of the other debtor entities. The only fund of the debtor, ESA, is the casino property which secures the mortgage. Thirdly, this court finds that to compel the secured bondholders to marshall an unsecured guarantee of Elsinore, and forego proceeding against the mortgage on the debtor’s property would be so prejudicial as to result in the inapplicability of this equitable doctrine. The Funds also argue that Elsinore Corporation should be subordinated to the claims of the unsecured creditors of ESA under the principal of equitable subordination found in § 510(c)(1) of the Bankruptcy Code. 11 U.S.C. § 510(c) provides: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. The Supreme Court in the case of Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939) recognized that equitable power and duty of the bankruptcy court when passing upon allowance of claims against an estate to see that injustice or unfairness is not done in the administration of the debtor’s estate. In that case the court stated: That equitable power also exists in passing on claims presented by an officer, director, or stockholder in the bankruptcy proceedings of his corporation. The mere fact that an officer, director, or stockholder has a claim against his bankrupt corporation or that he has reduced that claim to judgment" }, { "docid": "18888660", "title": "", "text": "circumstances when the creditor charged has engaged in some type of inequitable conduct that has secured for it an unfair advantage or that has resulted in injury to either creditors or the debtor. See generally, Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939). Equitable subordination existed before the Bankruptcy Code, Sampsell, supra, Pepper, supra. It is a judicial doctrine that developed within the context of claim review in bankruptcy cases. It was normally raised as an equitable defense to the allowance of a claim. See, Pepper, supra, 308 U.S. at 312, 60 S.Ct. at 247. The 1978 Code provided statutory recognition to the doctrine when § 510(c) was enacted, but left its delineation and development to the Courts. 124 Cong.Rec. H 11095 (daily ed. Sept. 28, 1978); S 17412 (daily ed. Oct. 6, 1978); remarks of Rep. Edwards and Sen. DeConcini, reproduced in Norton Bank ruptcy Law and Practice (1988-89 edition). The wisdom of leaving the contours of equitable subordination to the Courts will be seen in the results of this adversary proceeding. Section 510(c) provides: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. From existing case law we can extract these conditions that must be fulfilled before we may exercise our power to equitably subordinate: (i) The claimant in question must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to a creditor of the bankrupt or conferred an unfair advantage to the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. Matter of Mobile Steel Co., supra, 563 F.2d at 700-01 (citations omitted). Criteria one is the most difficult to" }, { "docid": "18792412", "title": "", "text": "of distribution.” Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293 (1941). Commencing with the court’s power to issue automatic stays pursuant to 11 U.S.C. § 362, as it did in the present case, and progressing through its power to disallow, see § 502, subordinate, see § 510(c), and discharge claims, see § 523, the bankruptcy court’s control over the bankrupt’s estate is plenary. It has a variety of tools with which it can freely exercise its equitable powers to affect the particularities of an individual debtor-creditor relationship or the relationship among creditors. Under the doctrine of equitable subordination, for instance, a bankruptcy court may subordinate a particular claim if it finds that the creditor’s claim, while not lacking a lawful basis nonetheless results from inequitable behavior on the part of that creditor. See 11 U.S.C. § 510(c). See also In re W.T. Grant Co., 699 F.2d 599 (2d Cir.1983) (Friendly, J.); Herzog & Zweibel, The Equitable Subordination of Claims in Bankruptcy, 15 Vand.L.Rev. 83 (1961). 2. Equity Power to Disallow Claims is Broad The case law provides strong support for a broad view of the bankruptcy court’s authority to determine whether to allow or disallow a particular claim that has been reduced to judgment in state court. “It has long been a basic function of the bankruptcy court, both by reason of its equitable powers and the bankruptcy statute, to pass upon the validity of creditors’ claims.” In re Farrell, 27 B.R. 241, 245 (Bankr.E.D.N.Y.1982). The bankruptcy court “in passing on allowance of claims sits as a court of equity_ In the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 307-08, 60 S.Ct. 238, 245-46, 84 L.Ed. 281 (1939). This sifting includes “full power to inquire into the validity of any claim asserted against the estate and to disallow it if it is ascertained to be without lawful existence." }, { "docid": "14830859", "title": "", "text": "claim or claims of one creditor to those of another is found at 11 U.S.C. § 510(c) which provides: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. It was intended with the enactment of this provision that the concept of equitable subordination be left to case law interpretation. See, e.g., (124 Cong.Rec. H 11095 [daily ed. Sept. 28,1978]; S 17412 [daily ed. Oct. 6, 1978]). The cases have formed a tripartite test. The three elements of a subordination case are: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii)Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. In re Multiponics, 622 F.2d 709 (5th Cir.1980). See also In re N & D Properties, Inc., 54 B.R. 590 (D.C.Ga.1985); In re Americana Apparel, Inc., 55 B.R. 160 (Bkrtcy.E.D.Pa.1985). Where the claimant is a fiduciary of the debtor, the courts have generally required a showing of fraud, overreaching, inequitable conduct or, in some instances, the violation of the rules of fair play and good conscience by the claimant, in order to warrant subordination of a particular claim, In re Americana Apparel, Inc., supra. The Supreme Court explained in Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939): A director is a fiduciary. So is a dominant or controlling stockholder or group of stockholders. Their powers are powers in trust. Their dealings with the corporation are subjected to rigorous scrutiny and where any of their contracts or engagements with the corporation is challenged the burden is on the director" }, { "docid": "11715614", "title": "", "text": "responsible for an unintentional violation of § 365(d)(4), such violation was de minimis and did not rise to the level of inequitable conduct which would justify piercing the corporate veil. It is an unfortunate incident of the bankruptcy process that certain claims may not be paid when an estate’s creditors are un-dersecured. See In re Orient River Investments, Inc., 112 B.R. 126, 134 (Bankr.E.D.Pa.1990) (“[A] Landlord will not be allowed immediate payment of rentals due under a lease in effect during the period between the bankruptcy filing and assumption or rejection unless it establishes that there is a likelihood that the debtor will pay all administrative claims.”). In the event that the estate is undersecured, it is not the secured creditor’s responsibility to pay administrative rent claims. In re Sports Information Data Base, Inc., 64 B.R. 824, 828 (Bankr.S.D.N.Y.1986) (“In the unfortunate event that the estate lacks unencumbered funds to pay the landlord’s administrative rent claim, it does not follow that the secured creditor bears the expense.”). The finding of Sports Information applies a fortiori to the instant case because the appellees were not the secured creditors during the period the administrative rent was not paid. Accordingly, the Bankruptcy Court’s finding that the appel-lees were not responsible for violation of sections 365(d)(3) and (4) or any injuries flowing therefrom that rise to the level of inequitable conduct to justify piercing the corporate veil was correct. C. Equitable Subordination The Supreme Court has recognized that “[i]n the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice and unfairness is not done in the administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 307-08, 60 S.Ct. 238, 246, 84 L.Ed. 281 (1939); see also Burden v. U.S., 917 F.2d 115, 117 (3d Cir.1990). Section 510(e) of the Bankruptcy Code essentially codified the doctrine of equitable subordination enunciated in Pepper and the numerous case which subsequently reiterated and refined the doctrine. See In re CTS Truss, Inc., 868 F.2d 146, 148 (6th Cir. 1989) (finding that intent of" }, { "docid": "16880979", "title": "", "text": "fraudulent nor in anticipation of bankruptcy. WPG was solvent at the time and remained solvent at least until 1980 and payments were regularly made. The purchased stock was carried in WPG’s treasury, not retired, and the security interest was recorded. WPG defaulted on Reiner’s note in 1980 and was insolvent in April, 1981. The Bankruptcy Court acted pursuant to section 510(c) of the Bankruptcy Reform Act of 1978, 11 U.S.C. § 510(c), which provides: [A]fter notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest. . .. Section 510 incorporates into the statute the doctrine of equitable subordination as it has been developed, and continues to be developed, by the' courts. S.Rep. No. 989, 95th Cong., 2d. Sess. 74 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. That doctrine permits the bankruptcy court “to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 308, 60 S.Ct. 238, 246, 84 L.Ed. 281 (1939). The exercise of equitable subordination power is appropriate when there is a showing of fraud, inequity, or unfairness. Pepper, supra at 305-07, 60 S.Ct. at 244-45; In re Multiponics, Inc., 622 F.2d 709, 714-20 (5th Cir.1980). The bankruptcy court subordinated appellant Reiner’s claim after determining that the bankrupt corporation’s promise to pay for Reiner’s stock must be viewed as conditioned upon the continued ability of the corporation to pay without impairing capital or creditors’ interests. That decision is wholly supported by decisions in other Circuits. In re Fechheimer Fishel Co., 212 F. 357 (2d Cir.1914); In re Trimble Co., 339 F.2d 838 (3d Cir.1964); Mountain State Steel Foundries, Inc. v. C.I.R., 284 F.2d 737 (4th Cir.1960); Robinson v. Wangemann, 75 F.2d 756 (5th Cir.1935); McConnell v. Estate of Butler, 402 F.2d 362 (9th Cir.1968). As the Court of Appeals for the" }, { "docid": "21743412", "title": "", "text": "no proof of claim in Glick’s case. There is consequently no claim to subordinate. Section 510(c) provides that a court “may (1) under principles of equitable subordination, subordinate for. purposes of distribution all or part of an allowed claim to all or part of another allowed claim ... or (2) order that any lien securing such a subordinated claim be transferred to the estate.” 11 U.S.C. § 510(c). Equitable subordination is a discretionary doctrine under which the court “sift[s] the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 308, 60 S.Ct. 238, 84 L.Ed. 281 (1939). Gierum’s equitable subordination claim runs up against the same barrier that so many of his claims do. Play Makers is not the debtor in this bankruptcy case. Glick is the debtor. And although Gierum argues otherwise (PI. Resp. at 54), he has no piercing theory that will permit Play Makers to be deemed Glick’s alter ego and its property declared property of Glick’s bankruptcy estate. Equitable subordination is a remedy under the Code designed to alter the priority in which creditors receive payment from the debtor’s estate. Pepper, 308 U.S. at 310, 60 S.Ct. 238; In re Kreisler, 546 F.3d 863, 866 (7th Cir. 2008). BTM’s secured claim against Play Makers, a non-debtor, cannot be equitably subordinated. But equitable subordination would be unavailable even if piercing were possible. The remedy is available only as to an “allowed claim.” 11 U.S.C. § 510(c)(1); see Max Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1257 n.16 (1st Cir. 1991) (noting that “[o]nly an ‘allowed claim’ ... may be subjected to equitable subordination under Bankruptcy Code § 510(c)”). An allowed claim is one “proof of which is filed under section 501.” 11 U.S.C. § 502(a). According to the claims register maintained for the Glick bankruptcy case, see Fed. R. Bankr. P. 5003(b), BTM has not filed a proof of claim. With no claim in the case, BTM will receive no distributions from the estate. There is consequently no" }, { "docid": "16003144", "title": "", "text": "been used in the context of applying the equitable subordination doctrine under the Bankruptcy Code. The Court finds that the Mobile Steel test is the applicable standard under the Bank ruptcy Code and has applied this test in determining equitable subordination. See Official Comm. of Unsecured Creditors v. Morgan Stanley Co., Inc., et al. (In re Sunbeam Corp.), 284 B.R. 355, 363 (Bankr. S.D.N.Y.2002). Under the test, equitable subordination applies to the extent necessary to remedy the otherwise uncompensated harm or unfair advantage. Id. In addition, “bankruptcy courts are empowered [by the common law concept of the equitable doctrine] to subordinate claims where the subordination will promote a just and equitable distribution of the bankruptcy estate.” Trone v. Smith (In re Westgate-California Corp.), 642 F.2d 1174, 1177 (9th Cir.1981) (citation omitted). The language of section 510(c) of the Bankruptcy Code affords a court discretion when it considers subordination of claims based on the common law concept of the equitable doctrine. The Supreme Court has held that a bankruptcy court, pursuant to its equitable power, always has the authority to subordinate an allowed claim in order to assure “that fraud will not prevail, that substance will not give way to form, that technical consideration will not prevent substantial justice from being done.” Pepper v. Litton, 308 U.S. 295, 305, 60 S.Ct. 238, 84 L.Ed. 281 (1939). In Pepper v. Litton, the Supreme Court noted that the basis for the rule of equitable subordination is that “the bankruptcy court has the [equitable] power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Id. at 308, 60 S.Ct. 238 (citations omitted). The purpose of section 510(c) of the Bankruptcy Code is to correct inequitable conduct and ensure no creditor gain an unfair advantage in the distribution of the estate. Based on these principles set forth by the Supreme Court, it is within the court’s discretion to determine whether claims can be subject to equitable subordination. The Fifth Circuit held that “a bankruptcy court is entitled ... to determine how and" }, { "docid": "18771990", "title": "", "text": "counsel Richard Levy sent a letter to Pan Am’s counsel demanding Pan Am’s cooperation in the Creditors Committee’s legal efforts against Delta, and threatening to name Messrs. Ray and Andresen as co-defendants in the Creditors Committee’s lawsuit unless those Pan Am executives assisted in its litigation. Def.Ex. PF. VI. BANKRUPTCY CAUSES OF ACTION: COUNTS I, II AND III A. General Background It is well settled that bankruptcy courts possess a broad range of equitable powers, including the authority to disallow or subordinate the claims of any creditor who attempts to take unfair advantage of the debtor or other creditors. See Pepper v. Litton, 308 U.S. 295, 307-08, 60 S.Ct. 238, 245^46, 84 L.Ed. 281 (1939); see also 11 U.S.C. §§ 510(c), 502(b)(1). “[I]n the exercise of [this] equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper, 308 U.S. at 307-08, 60 S.Ct. at 246. The court’s equitable powers may be “invoked to the end that ... substance will not give way to form [and] technical considerations ... not prevent substantial justice from being done.” Id. at 305, 60 S.Ct. at 244; see also Liona Corp. v. PCH Assocs. (In re PCH Assocs.), 949 F.2d 585, 597 (2d Cir. 1991) (“It is well established that a bankruptcy court, as a court of equity, may look through form to substance when determining the true nature of a transaction as it relates to the rights of parties against a bankrupt’s estate.”). Based on the findings of fact and for the reasons stated below, the Court concludes that equitable subordination and/or disallowance of Delta’s claim for $115 million (plus interest) under the October DIP is not warranted. For the same reasons, Delta’s counterclaim under the October DIP for payment of those funds with interest is granted. In the first count of the complaint the Plaintiffs object to all claims of Delta (including the Delta claim based on its DIP financing of $115 million), in the second count Plaintiffs move for the avoidance" }, { "docid": "10219110", "title": "", "text": "against the debtor. Notwithstanding the legal validity of a claim, the Court proceeds to the next inquiry — whether the allowance of the claim is equitable. Section 510(c) of the Bankruptcy Code copies the long-recognized power of bankruptcy courts to subordinate a creditor’s claim on equitable grounds under the proper circumstances, and provides in pertinent part: ... after notice and a hearing the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all of part of an allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. 11 U.S.C. § 510(e) (1979). The Bankruptcy Code does not specify the standards for applying the doctrine of equitable subordination, intending to “leave to the courts development of this principle”. 124 Cong. Rec. 11 11,095 (Sept. 1978). Congress recognized the need for flexibility in applying the doctrine to enable the courts to appropriately deal with inequitable or fraudulent conduct which may be technically legal and not otherwise voidable. DeNatale & Abram, supra, 40 The Business Lawyer at 422. A party objecting to a claim has the initial burden of presenting a substantial factual basis to overcome the prima facie validity of a proof of claim. In re Multiponics, Inc., 622 F.2d 709, 714 (5th Cir.1980). Once the objecting party has met this initial burden the claimant must then demonstrate the fairness and good faith of the conduct. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939). Where a claimant is an insider or an affiliate of the debtor, or where the creditor exercises control over or domination of the debtor, his dealings with the debtor are subject to strict scrutiny. Pep per v. Litton, 308 U.S. 295, 306-07, 60 S.Ct. 238, 245-46, 84 L.Ed. 281 (1939); In re T.E. Mercer, 16 B.R. 176 (Bankr.N.D.Tex.1981). The burden is on an insider claimant to show the inherent fairness and good faith of the" } ]

[ { "docid": "10428863", "title": "", "text": "D.C., 57 F. Supp. 143; Lorenzetti v. American Trust Co., D.C., 45 F.Supp. 128, 139. And we do not think that the company can be held a retail or service establishment within the meaning of the act. The labor of its employees was performed almost altogether in rendering service to commercial and industrial concerns, where the cost of the service would not be absorbed by the one to whom they were rendered but would be passed on as a part of the price of the product. The whole policy of the act is to bring employees rendering this sort of service under its provisions. Thus in sec. 3(i), 29 U.S.C.A. § 203(i), goods, whose production for commerce subjects employees to the provisions of the-act, are defined in the broadest terms and are then said not to include “goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.” (Italics supplied.) This throws light upon the sense in which the words “retail and service establishment” are used and indicates very clearly that they have application to establishments furnishing goods or services to the ultimate consumer, who does not expect to pass the cost on to others as a producer, manufacturer or processor. As we said in Guess v. Montague, 4 Cir., 140 F.2d 500, 503: “In Bracey v. Luray, 4 Cir., 138 F.2d 8, this day decided, we hold that a retail establishment within the meaning of the exemption is one which sells in small quantities to the ultimate consumer. On the principle noscitur a sociis, the ‘service’ establishment contemplated by the exemption must be of the same sort as the ‘retail’ establishment therein referred to, i. e. it must be one ‘selling services to consumers’, and this is the clear intimation of the Supreme Court. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 526, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638. As suggested by the Circuit Court of Appeals of the Second Circuit in Fleming v. Arsenal Building Corporation, 2 Cir., 125 F.2d 278, 280, we think that" } ]

[ { "docid": "19120634", "title": "", "text": "The criterion is-necessarily one of degree. Kirschbaum v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Walton v. Southern Package Corp., 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L. Ed. 118; Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L. R. 1258; Roland Elec. Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 665; Rucker v. First National Bank of Miami, 10 Cir., 138 F.2d 699, certiorari denied 321 U.S. 769, 64 S.Ct. 524, 88 L.Ed. 1065; Walling v. Amidon, 10 Cir., 153 F.2d 159. Here, certain agricultural commodities are produced on land irrigated with water furnished by the irrigation company. The agricultural commodities are processed and the finished products move in the channels of interstate commerce. Irrigation of the land is necessary in order to produce the agricultural commodities. The employees in question perform physical work which is indispensable to the irrigation of the land. Without their work, the land cannot be irrigated, the agricultural commodities cannot be produced, and therefore no finished products can move in interstate commerce. The relationship of the employees to the production of the finished products which move in interstate commerce is not objectionably remote or tenuous. Instead, their work is vital and essential to the integrated effort which brings about the movement of the finished products in commerce. ' It is manifestly clear that the employees are engaged in a process or occupation necessary to the production of goods for commerce, within the meaning of the Act. Reynolds v. Salt River Valley Water Users Ass’n., 9 Cir., 143 F.2d 863, certiorari denied 323 U.S. 764, 65 S.Ct. 117, 89 L.Ed. 611; Walling v. Friend, 8 Cir., 156 F.2d 429; Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698; McComb v. Super-A Fertilizer Works, 1 Cir., 165 F.2d 824. We" }, { "docid": "20937832", "title": "", "text": "held to have been engaged “in commerce” within the scope of the Fair Labor Standards Act. It is further the view of the Court that a much lower percentage than the amount stated above would be sufficient to sustain a holding that the defendant was so engaged. In the case of United States v. Darby, 1941, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, a Fair Labor Standards Act case, the United States Supreme Court on page 123 of the United States citation on page 461 of 61 S.Ct., states: “Congress * * * has made no distinction as to the volume or amount of shipments in the commerce * * * by any particular shipper or producer.” In the case of New Mexico Public Service Co. v. Engel, 10 Cir., 1944, 145 F.2d 636, 640, in a Fair Labor Standards Act case in which only 4% of the employer’s activities were of an interstate character the Court stated: “It is true, of course, that the percentage of electricity used in interstate commerce is small, but it is not the volume or percentage of an employee’s contribution to the movement of commerce which is the test of whether he is ‘engaged in commerce’ within the meaning of the Act.” See also, Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 1943, 138 F.2d 13. It being clear that the defendant was engaged “in commerce” as to the unloading of interstate shipments at its bulk plants, the next question is whether the plaintiff as its employee was so engaged during any part of the period in question. In the case of Overstreet v. North Shore Corporation, 1943, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, commencing on page 128 of the United States citation, on page 497 of 63 S.Ct., the United States Supreme Court states: “A practical test of what ‘engaged in interstate commerce’ means has been evolved in cases arising under the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq.) which, before the 1939" }, { "docid": "994857", "title": "", "text": "Block, 9 Cir., 139 F.2d 268, Cf. Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, 63 S.Ct. 332, 87 L.Ed. 460; Walling v. American Stores Co., 3 Cir., 133 F.2d 840; Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567. The courts have held uniformly that the exemption applies only to establishments of a retail character engaged in selling goods or services or both, such as grocery stores, filling stations, barber shops, and beauty parlors; and that the exemption is inapplicable to water and electric companies such as appellee. Walling v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567; Bracey v. Luray, 4 Cir., 138 F.2d 8; Guess v. Montague, 4 Cir., 140 F.2d 500; Collins v. Kidd Dairy & Ice Co., 5 Cir., 132 F.2d 79; Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445; Schmidt v. Peoples Telephone Union of Marysville, 8 Cir., 138 F.2d 13; Walling v. Peoples Packing Co., 10 Cir., 132 F. 2d 236; Wood v. Central Sand & Gravel Co., D.C.Tenn., 33 F.Supp. 40, 47. Appellee with its 1400 miles of canals and laterals, 5 storage dams, 2 diversion dams, 8 hydroelectric plants, steam plant, Diesel plant, hundreds of miles of power lines, 200 deep well pumps, and other plants and equipment is not a “service establishment.” B. Appellee’s employees engaged in pumping and directing the flow of water for the irrigation of its stockholders’ lands are “engaged in the production of goods” for interstate commerce, since such supplying of water is a “process” and an “occupation necessary to the production” of such goods as defined in section 3(j) of the Act, 29 U.S.C.A. § 203 (j). More particularly, appellee’s maintenance employees are engaged in maintaining, cleaning, and repairing the canals, laterals, and ditches through which the water flows to irrigate the farms. These employees mow and burn noxious grasses and weeds which, if permitted to grow without restraint, would clog the canals, laterals and ditches and stop the vital flow of water. In their work they operate draglines, bull dozers, dredges, shovels, mowers, burners and other necessary machines." }, { "docid": "11034398", "title": "", "text": "Corp. v. Barnett, 5 Cir., 143 F.2d 172; Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445, 448; Schmidt v. Peoples Tele. Union, 8 Cir., 138 F.2d 13; Bracey v. Luray, 4 Cir., 138 F.2d 8, 11; Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52; Strand v. Garden Valley Tele. Co., D.C., 51 F.Supp. 898; McKeown v. Southern Calif. Freight Forwarders, D.C., 52 F.Supp. 331, 333. Cf. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 605, 59 S.Ct. 668, 83 L.Ed. 1014; Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The generation of electricity for use in the movement of interstate commerce was a part of the work-a-day duties of the employee, and his contribution in that respect was both consistent and continuous. Having established his employment in commerce, the employee is entitled to the benefits of the Fair Labor Standards Act unless it is clearly shown that his employment falls within one of the exemptions carved from the general rule of coverage. Joseph v. Ray, 10 Cir., 139 F.2d 409. Section 13(a) (2), 29 U.S.C.A. § 213(a) (2), specifically exempts employees engaged in any retail or service establishment, the greater part of whose selling or servicing is in intrastate commerce. To come within the exemption the employees must not only render services, the greater part of which is in intrastate commerce, but they must also be engaged in a “service establishment,” and that term has been construed in the light of its Congressional history as applying to establishments which sell service instead of goods, typical of which are barber shops, beauty parlors, shoe shining parlors, clothes pressing shops, laundries, and automobile repair shops. Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567, affirmed Arsenal Bldg. Corp. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Schmidt v. Peoples Tele. Union, 8 Cir., 138 F.2d 13; Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445. The specifically enumerated classes" }, { "docid": "994856", "title": "", "text": "water to its shareholders. Appellee’s water and electric system constitutes a single coordinated enterprise based primarily upon the ttse of the water of the Salt and Verde Rivers. To augment this supply, however, appellee pumps underground water into its canals and laterals, and distributes it to the shareholders for irrigation. Appellee’s pumps are operated by electricity, a portion of which it receives from out of the state, and the remainder of which it generates. . Appellee claims and the district court held that in the performance of the above functions appellee is a “service establishment” within section 13(a) (2) of the Act exempting from the minimum wage and hours provisions (sections 6 and 7) of the Act “(2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.” This court has considered the legislative history of this exemption. Its purpose is to exempt neighborhood merchants serving the consuming public who might otherwise be covered due to their location near a state line. Walling v. Block, 9 Cir., 139 F.2d 268, Cf. Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, 63 S.Ct. 332, 87 L.Ed. 460; Walling v. American Stores Co., 3 Cir., 133 F.2d 840; Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567. The courts have held uniformly that the exemption applies only to establishments of a retail character engaged in selling goods or services or both, such as grocery stores, filling stations, barber shops, and beauty parlors; and that the exemption is inapplicable to water and electric companies such as appellee. Walling v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567; Bracey v. Luray, 4 Cir., 138 F.2d 8; Guess v. Montague, 4 Cir., 140 F.2d 500; Collins v. Kidd Dairy & Ice Co., 5 Cir., 132 F.2d 79; Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445; Schmidt v. Peoples Telephone Union of Marysville, 8 Cir., 138 F.2d 13; Walling v. Peoples Packing Co., 10 Cir., 132 F. 2d 236; Wood v. Central Sand & Gravel Co., D.C.Tenn., 33 F.Supp. 40," }, { "docid": "11034399", "title": "", "text": "employment falls within one of the exemptions carved from the general rule of coverage. Joseph v. Ray, 10 Cir., 139 F.2d 409. Section 13(a) (2), 29 U.S.C.A. § 213(a) (2), specifically exempts employees engaged in any retail or service establishment, the greater part of whose selling or servicing is in intrastate commerce. To come within the exemption the employees must not only render services, the greater part of which is in intrastate commerce, but they must also be engaged in a “service establishment,” and that term has been construed in the light of its Congressional history as applying to establishments which sell service instead of goods, typical of which are barber shops, beauty parlors, shoe shining parlors, clothes pressing shops, laundries, and automobile repair shops. Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567, affirmed Arsenal Bldg. Corp. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Schmidt v. Peoples Tele. Union, 8 Cir., 138 F.2d 13; Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445. The specifically enumerated classes of exemptions from the Act negative any Congressional purpose to use the term “retail or service establishment” in a broad and loose sense. See Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460. Cf. Addison v. Holly Hill Fruit Products, 322 U.S. 607, 64 S.Ct. 1215. The term was not intended to include public utilities such as railroads, gas, electric, telephone and telegraph companies. Schmidt v. Peoples Tele. Union, supra; Sun Publishing Co. v. Walling, supra; Reynolds v. Salt River Valley Water Users Ass’n, 9 Cir., 143 F.2d 863. See Annot. 150 A.L.R. 100. We conclude that a company engaged in the generation of electricity for sale to consumers who use it in the operation of their businesses such as these facts demonstrate, does not come within the exemption of the Act as a retail or service establishment. The judgment is affirmed." }, { "docid": "11345942", "title": "", "text": "and one-half times the regular rate at which he is employed. !¡; ^ » 29 U.S.C.A. § 207(a). . “As used in the Act — ■ * :¡c ij« sjí “(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof. “(i) ‘Goods’ means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. “(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.” 29 U.S.C.A. § 203(b, i, j). . 46 U.S.C.A. §§ 221, 251. . 46 U.S.C.A. § 761 et seq. . 15 U.S.C.A. § 1 et seq. . Lewis v. Florida Power & Light Co., 5 Cir., 1946, 154 F.2d 751, Phillips v. Meeker Cooperative Light and Power Association, 8 Cir., 1946, 158 F.2d 698. . West Kentucky Coal Co. v. Walling, 6 Cir., 153 F.2d 582. . Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672, rehearing denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513. Reynolds v. Salt River Valley Water Users Association, 9 Cir., 1944, 143 F.2d 863, certiorari denied 323 U.S. 764, 65 S.Ct. 117, 89 L.Ed. 611." }, { "docid": "23346330", "title": "", "text": "from one job (o another, certain of them working in turn on the steam shovel, the conveyor, the elevator, unloading from freight cars, acting as watchmen, performing services on the tug, maintaining the unloading and screening equipment and making truck deliveries. Substantial quantities of coal are sold to boat;: and barges operating in commerce on the Mississippi, and truck deliveries to concern?: engaged in the production of goods for coinmerce constituted more than 50% of t;he total of truck deliveries for the period from January 1, 1943, to June 30, 1943. The District Court’s' findings of fact are based upon substantial evidence and support its conclusions. Employees who unload extrastate goods ;are engaged in commerce [Allesandro v. Smith, 6 Cir., 136 F.2d 75, 149 A.L.R. 382; Walling v. Consumers Co., 7 Cir., 149 F.2d 626], as are also employees participating through clerical work or otherwise in the receipt of coal from other states and in the handling and transporting of coal on exl'rastate orders. Walling v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, 398, affirmed and modified, 317 U.S. 564, 63 S.Ct. 332. 87 L.Ed. 460; Walling v. Mutual Wholesale Food 6 Supply Co., 8 Cir., 141 F.2d 331, 338; 339. Employees engaged in screening, processing and preparing- goods for interstate distribution are engaged in the production of goods for commerce, for the term “produced” in the statute relates “to all steps, whether manufacturing or not, which lead to readiness for putting goods into the stream of commerce.” Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 65 S.Ct. 335, 342. Moreover, more than 50% of appellant’s coal is used in the manufacture of goods for commerce. It follows that appellant’s employees who furnish coal for such use or engage in a process or occupation necessary for the use of coal in such production are covered by the Act. Walling v. Roland Electrical Co., 4 Cir., 146 F.2d 745; Reynolds v. Salt River Valley Water Users Ass’n, 9 Cir., 143 F.2d 863. The District Court correctly concluded that appellant’s employees are engaged in commerce or in a process or" }, { "docid": "22928715", "title": "", "text": "which ushered § 3 (j) into the law in its present form said: “The work of employees of employers who produce or supply goods or facilities for customers engaged within the same State in the production of other goods for interstate commerce may also be covered as closely related and directly essential to such production. This would be true, for example, of employees engaged in the following activities: “2. Producing and supplying fuel, power, water, or other goods for customers using such goods in the production of different goods for interstate commerce. Reynolds v. Salt River Valley Water Users Asso. (143 F. (2d) 863 (C. A. 9)); Phillips v. Meeker Coop. Light and Power Asso. (158 F. (2d) 698 (C. A. 8)); Lewis v. Florida Light and Power Co. (154 F. (2d) 751 (C. A. 5)); West Kentucky Coal Co. v. Walling (153 F. (2d) 152 (C. A. 6)).” The dam here under construction was to furnish the City of Corpus Christi with a water supply — a city water system that services railroads, truck companies, airlines, other instrumentalities of interstate commerce and various producers of goods for commerce. It is conceded that the major industries in this area produce goods for commerce and use a substantial amount of water in that connection. Indeed, 40% to 50% of all water furnished by the city is used industrially. Reynolds v. Salt River Valley Water Users Assn., 143 F. 2d 863 (C. A. 9th Cir.), held that repair and maintenance employees of canals and dams of an irrigation company supplying water for growers of crops intended for shipment in interstate commerce were engaged in an occupation necessary for the production of goods for commerce. West Kentucky Coal Co. v. Walling, 153 F. 2d 582 (C. A. 6th Cir.), held that men producing coal sold to factories producing goods for commerce were covered by the Act. Meeker Cooperative Light & Power Assn. v. Phillips, 158 F. 2d 698 (C. A. 8th Cir.), held that employees of a power cooperative distributing electricity to companies that produced goods for commerce were covered by the Act." }, { "docid": "19120632", "title": "", "text": "canned at factories in Colorado; and substantial quantities of the processed products are shipped in interstate commerce. Taking up the question whether the employees are engaged in the production of goods for commerce, section 3(j) of the Fair Labor Standards Act defines “produced” to mean “produced, manufactured, mined, handled, or in any other manner worked on in any State”, and it provides that “an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.” The purpose of the Act was to eradicate from interstate commerce the evils attendant upon low wages and long hours of service. Being remedial, and having a humanitarian purpose in view, the Act is broad and comprehensive and is to be liberally construed in respect of coverage. Joseph v. Ray, 10 Cir., 139 F.2d 409; E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, certiorari denied 328 U.S. 858, 66 S.Ct. 1351, 90 L.Ed. 1629; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52; Lofther v. First National Bank of Chicago, 7 Cir., 138 F.2d 299; Fox v. Summit King Mines, 9 Cir., 143 F. 2d 926; Walling v. Consumers Co., 7 Cir., 149 F.2d 626. No fixed and unyielding rule has been blueprinted for determining in every case whether an employee is engaged in the production of goods for commerce, within the meaning of the Act. Each case must depend upon its own facts. But there are certain general guides. It is not necessary that the employee come in actual physical contact with the goods produced. It is enough if his work constitutes an essential or useful part of an integrated effort by which goods are produced for commerce. It meets the requirements of the Act if the work of the employee has such “close and immediate tie with the process of production for commerce” that it is in effect a part of it." }, { "docid": "19120635", "title": "", "text": "to produce the agricultural commodities. The employees in question perform physical work which is indispensable to the irrigation of the land. Without their work, the land cannot be irrigated, the agricultural commodities cannot be produced, and therefore no finished products can move in interstate commerce. The relationship of the employees to the production of the finished products which move in interstate commerce is not objectionably remote or tenuous. Instead, their work is vital and essential to the integrated effort which brings about the movement of the finished products in commerce. ' It is manifestly clear that the employees are engaged in a process or occupation necessary to the production of goods for commerce, within the meaning of the Act. Reynolds v. Salt River Valley Water Users Ass’n., 9 Cir., 143 F.2d 863, certiorari denied 323 U.S. 764, 65 S.Ct. 117, 89 L.Ed. 611; Walling v. Friend, 8 Cir., 156 F.2d 429; Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698; McComb v. Super-A Fertilizer Works, 1 Cir., 165 F.2d 824. We come now to the question whether the employees, though engaged in a process or occupation necessary to the production of goods, for commerce, are exempt from the wage and hour provisions of the Act. Section 3(f) defines “agriculture” to include “farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities * * *, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices * * * performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” And section 13(a) (6) expressly exempts from the wage and hour provisions of the Act all employees employed in agriculture. The definitive provision is broad and should not be restrictively interpreted. Jones v. Gaylord Guernsey Farms, 10 Cir., 128 F.2d 1008. But the exemption provision is to be narrowly construed, due" }, { "docid": "22928716", "title": "", "text": "companies, airlines, other instrumentalities of interstate commerce and various producers of goods for commerce. It is conceded that the major industries in this area produce goods for commerce and use a substantial amount of water in that connection. Indeed, 40% to 50% of all water furnished by the city is used industrially. Reynolds v. Salt River Valley Water Users Assn., 143 F. 2d 863 (C. A. 9th Cir.), held that repair and maintenance employees of canals and dams of an irrigation company supplying water for growers of crops intended for shipment in interstate commerce were engaged in an occupation necessary for the production of goods for commerce. West Kentucky Coal Co. v. Walling, 153 F. 2d 582 (C. A. 6th Cir.), held that men producing coal sold to factories producing goods for commerce were covered by the Act. Meeker Cooperative Light & Power Assn. v. Phillips, 158 F. 2d 698 (C. A. 8th Cir.), held that employees of a power cooperative distributing electricity to companies that produced goods for commerce were covered by the Act. These three decisions, as noted, were approved by the Senate report defining the scope of § 3 (j). Certainly then, employees maintaining this new dam would be covered by the Act, as our own decision in Farmers Irrigation Co. v. McComb, 337 U. S. 755, indicates. How then, if these precedents are to be followed, can employees who built the dam be out of reach of the Act? We. held in Mitchell v. Vollmer & Co., supra, that construction of a lock to be used in commerce was work “in commerce.” “The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity.” P. 429. There is no more remoteness here than there. It is difficult to understand why a stringent test of remoteness is used in determining whether construction work is related to “production of goods for commerce” when a liberal test was applied in the Vollmer case" }, { "docid": "7993980", "title": "", "text": "the production of ships to operate in interstate and foreign commerce is a production for commerce, within the meaning of the statute.’ [Bracey v. Luray, 4 Cir., 138 F.2d 8, 11.] Nor can there be a valid distinction between building new ships and repairing old ships so far as the Act is concerned, since § 203 (j) [29 U.S.C.A.] provides that ‘produced’ includes ‘handled or in any manner worked on in any State.’ ” As corollaries of these propositions, any employee of the owner or operator of direct instrumentalities or necessary facilities of interstate transportation whose task is immediately connected with maintaining or keeping them in condition for and during such use must similarly be regarded as being engaged in commerce (Overstreet v. North Shore Corporation, 318 U.S. 125, 130, 63 S.Ct. 494, 497, 87 L.Ed. 656), and, further, any employee of an owner of automobile trucks or passenger cars, which are leased to others for interstate use, whose work has “a close and immediate tie” (Kirschbaum Co. v. Walling, 316 U.S. 517, 525, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638) with the process of keeping such vehicles generally in condition or in readiness for such use, is engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act. The test of whether an employee is engaged in commerce “is obviously more exacting than the test of whether his occupation is necessary to production for commerce.” Armour & Co. v. Wantock, 323 U.S. 126, 131, 65 S.Ct. 165, 168. “However, the test of the Federal Employers’ Liability Act [45 U.S.C.A. § 51 et seq.] that activities so closely related to interstate transportation as to be in practice and legal relation a part thereof are to be considered in that commerce, is applicable to employments ‘in commerce’ under the Fair Labor Standards Act.” McLeod v. Threlkeld, 319 U.S. 491, 495, 63 S.Ct. 1248, 1250, 87 L.Ed. 1538. But the term “production of goods for commerce,” as used in the Fair Labor Standards Act, includes “all steps, whether manufacture or not, which lead to readiness for" }, { "docid": "23660558", "title": "", "text": "143 F.2d at page 296. The question is not open for our. consideration. What has been said disposes of all the assignments of error on Mid-Continent’s appeal except its contention that the court erred in holding that Keen devoted a sub stantial part of his time in commerce in two weeks in which he was employed at bulk plants for only one-half hour. The problem presented by this assignment has been considered by the courts in many cases involving widely varying fact situations. Southern California Freight Lines v. McKeown, 9 Cir., 148 F.2d 890; New Mexico Public Service Company v. Engel, 10 Cir., 145 F.2d 636; Brown v. Minngas Co., D. C., 51 F.Supp. 363; North Shore Corporation v. Barnett, 5 Cir., 143 F.2d 172; Schwarz v. Witwer Grocery, 8 Cir., 141 F.2d 341; Richardson v. James Gibbons Co., 4 Cir., 132 F.2d 627; West Kentucky Coal Co. v. Walling, 6 Cir., 153 F. 2d 582; Hanson v. Lagerstrom, 8 Cir., 133 F.2d 120; Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 138 F.2d 13. These and other like cases show the impossibility of fixing by rule applicable to all cases the line of demarcation between what is and is not a substantial amount of work in commerce. The District Court did not hold nor do we that one-half hour spent in commerce in any work week is in all circumstances such a substantial part of the employee’s time as to entitle the employee to overtime compensation for the entire week. The District Court’s holding is based upon the particular circumstances revealed by the evidence in this case. Mid-Continent is engaged in the production and transportation of goods in commerce. Keen was employed for work in commerce, and his activities in commerce were as regular and continuous as the needs of his employment demanded. A part of Keen’s time in each work week was spent in making out written reports of his activities for each day during the week, in maintaining the truck used by him in traveling to and from his work, and in keeping the truck" }, { "docid": "11034397", "title": "", "text": "non curat lex on the theory that the total amount of electricity actually used in interstate commerce, when compared to the total amount generated and sold by the employer, is trivial and inconsequential and should not he considered by the court in the determination of the question whether the services performed by the employee brought him within the coverage of the Act as one “engaged in commerce.” It is true, of course, that the percentage of electricity used in interstate commerce is small, but it is not the volume or percentage of an employee’s contribution to the movement of commerce which is the test of whether he is “engaged in commerce” within the meaning of the Act. If the services he performs are essential to the movement of commerce and not merely sporadic and isolated, he is engaged in commerce within the meaning of the Act. United States v. Darby, 312 U.S. 100, 123, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; Walling v. Peoples Packing Co., 10 Cir., 132 F.2d 236; North Shore Corp. v. Barnett, 5 Cir., 143 F.2d 172; Sun Publishing Co. v. Walling, 6 Cir., 140 F.2d 445, 448; Schmidt v. Peoples Tele. Union, 8 Cir., 138 F.2d 13; Bracey v. Luray, 4 Cir., 138 F.2d 8, 11; Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52; Strand v. Garden Valley Tele. Co., D.C., 51 F.Supp. 898; McKeown v. Southern Calif. Freight Forwarders, D.C., 52 F.Supp. 331, 333. Cf. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 605, 59 S.Ct. 668, 83 L.Ed. 1014; Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The generation of electricity for use in the movement of interstate commerce was a part of the work-a-day duties of the employee, and his contribution in that respect was both consistent and continuous. Having established his employment in commerce, the employee is entitled to the benefits of the Fair Labor Standards Act unless it is clearly shown that his" }, { "docid": "23346331", "title": "", "text": "affirmed and modified, 317 U.S. 564, 63 S.Ct. 332. 87 L.Ed. 460; Walling v. Mutual Wholesale Food 6 Supply Co., 8 Cir., 141 F.2d 331, 338; 339. Employees engaged in screening, processing and preparing- goods for interstate distribution are engaged in the production of goods for commerce, for the term “produced” in the statute relates “to all steps, whether manufacturing or not, which lead to readiness for putting goods into the stream of commerce.” Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 65 S.Ct. 335, 342. Moreover, more than 50% of appellant’s coal is used in the manufacture of goods for commerce. It follows that appellant’s employees who furnish coal for such use or engage in a process or occupation necessary for the use of coal in such production are covered by the Act. Walling v. Roland Electrical Co., 4 Cir., 146 F.2d 745; Reynolds v. Salt River Valley Water Users Ass’n, 9 Cir., 143 F.2d 863. The District Court correctly concluded that appellant’s employees are engaged in commerce or in a process or occupation necessary to the production of goods for commerce and are covered by the Act unless exempted by its terms. The most important question in the case is whether the appellant’s employees are exempt from the operation of the Fair Labor Standards Act within the meaning of § 13(a) (2), Title 29, § 213(a) (2), 29 U.S. C.A. § 213(a) (2), which provides that sections 206 and 207 “shall not apply with respect to * * * any employee engaged in any retail or service establishment the greater part of whose selling or servicing is In intrastate commerce.” The Fair Labor Standards Act constitutes humanitarian and remedial legislation, Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949, and any exemption from these provisions must be narrowly construed. A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 157 A.L.R. 876. Appellant’s intrastate sales for the six-month period preceding the trial constituted 69.52% of total sales. It urges that within the" }, { "docid": "11023166", "title": "", "text": "true, the Act does not define “retail establishment” but it is phrased in ordinary, nontechnical language for general application; and when Congress gives no clue to its intentions except familiar English words and no hint by the draftsmen of the words that they meant to use them in any but an ordinary sense, the words must be given their plain, ordinary and commonly understood meaning. Addison v. Holly Hill Fruit Products Co., 322 U.S. 607, 618, 64 S.Ct. 1215, 88 L.Ed. 1488. Giving this force to the words of the statute, it is fair to assume that by “retail establishment” was meant a business making retail sales. We know that retail sales are sales in individual quantities for personal or household consumption, Webster’s New International Dictionary, Unabridged (2d Ed. 1942), 13 Encyclopedia of Social Sciences, 346, 15 id. 411; Bracey v. Luray, 4 Cir., 138 F.2d 8, 10, and that a retail establishment sells what are usually and regularly regarded as consumers goods. There can be no question but what there is a clear distinction between retail merchants selling in small quantities to customers purchasing goods to satisfy their individual needs and enterprises which sell their goods in large lots to industrial and commercial users purchasing for a business motive. Congress intended to exempt employees in the former. To come within the exemption the employee must be engaged in a “retail establishment” as that phrase is understood by the common run of men and as it has been “construed in the light of its Congressional history,” cf. New Mexico Public Service Co. v. Engel, 10 Cir., 145 F.2d 636, 641. Congress regarded as falling within “retail establishment,” merchants selling to consumers to satisfy their individual needs, such as local grocerymen, druggists, clothing stores, meat dealers, and the like, Guess v. Montague, 4 Cir., 140 F.2d 500, and Walling v. American Stores Co., 3 Cir., 133 F. 2d 840. And the courts have said that a retail sale means a sale in small quantities to the ultimate consumer, Bracey v. Luray, supra; Walling v. Roland Electrical Co., 4 Cir., 146 F.2d" }, { "docid": "9949472", "title": "", "text": "Co. v. Walling, 6 Cir., 140 F.2d 445, 448, wherein we pointed out that public utilities or public service corporations are not exempted by section 13(a) (2) of the act. Cf. Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 138 F.2d 13; New Mexico Public Service Co. v. Engel, 10 Cir., 145 F.2d 636; Reynolds et al. v. Salt River Valley Water Users Ass’n, 9 Cir., 143 F.2d 863. In Wabash Radio Corp. v. Walling, 6 Cir., 162 F.2d 391, 393, 394, this court after setting forth the facts of the case, unnecessary to be reiterated, called attention to the holdings in Walling v. Connecticut Co., 2 Cir., 154 F.2d 552, and Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52, that when an exempt employer engages in activities different from those exempted, the employees in the non-exempt department of his business are subject to the act. Guess v. Montague, 4 Cir., 140 F.2d 500, was cited to the effect that where the exempt and non-exempt characteristics of a business are so intermingled as to be inseparable, the exemption is denied entirely. The assertion was made that a similar situation was presented when employees of a radio corporation wholly owned by a common carrier were “available every minute of the day to the public.” [162 F.2d 394.] In the course of the opinion, Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786 (to which much importance is attached by appellant), was discussed. Under the authority of that case, it was considered immaterial that work performed by the employees of the radio corporation was of very heavy proportionate benefit to the parent railroad company. It was pointed out that the Boutell case held that employees of the non-exempt service company fell within the coverage of the Fair Labor Standards Act. The Boutell case permits no logical deduction that persons who do the work of the telegraph company at local 9A agencies, in addition to performing unrelated duties for their employer, are exempt from the act. On June 16, 1947, the Supreme Court promulgated two opinions" }, { "docid": "9949471", "title": "", "text": "to his own methods, and without being subject to the control of his employer, except as to the result of his work.” On the facts of the case, there was found no reservation of control on the part of the oil company over the methods and means employed by the agents in carrying out the business of selling the company’s products. As has been shown, the evidence in the instant case proves that the Western Union Telegraph Company controlled the methods and means used by its 9A agents in the transaction of the company’s public service business. Certainly, workers in an agency office of the telegraph company are not withdrawn from coverage of the Fair Labor Standards Act for the reason that some of them are engaged in local retailing work in addition to telegraphic work, or because of the location of the telegraph office in a retail or service establishment. See discussion in Roland Electrical Co. v. Walling, 326 U.S. 657, 666, et seq., 66 S.Ct. 413, 90 L.Ed. 383; and in Sim Pub. Co. v. Walling, 6 Cir., 140 F.2d 445, 448, wherein we pointed out that public utilities or public service corporations are not exempted by section 13(a) (2) of the act. Cf. Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 138 F.2d 13; New Mexico Public Service Co. v. Engel, 10 Cir., 145 F.2d 636; Reynolds et al. v. Salt River Valley Water Users Ass’n, 9 Cir., 143 F.2d 863. In Wabash Radio Corp. v. Walling, 6 Cir., 162 F.2d 391, 393, 394, this court after setting forth the facts of the case, unnecessary to be reiterated, called attention to the holdings in Walling v. Connecticut Co., 2 Cir., 154 F.2d 552, and Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52, that when an exempt employer engages in activities different from those exempted, the employees in the non-exempt department of his business are subject to the act. Guess v. Montague, 4 Cir., 140 F.2d 500, was cited to the effect that where the exempt and non-exempt characteristics of a business are so" }, { "docid": "7993979", "title": "", "text": "trucks and cars. It further admitted that its transiently rented trucks and cars also were used in interstate commerce, but it had no means of knowing the extent of such use. We do not believe there can be any question that the owner of a fleet of automobile trucks who is engaged in the business of leasing them to others as instruments of interstate transportation and of maintaining them in condition for and during such use is engaged in interstate commerce. Cf. Walling v. John J. Casale, Inc., D.C.S.D.N.Y., 51 F.Supp. 520. Equally clearly, we think, does the owner’s servicing and repairing of motor vehicles, which he leases or rents to others for use by them in interstate transportation, constitute the production of goods for commerce within the meaning of the Fair Labor Standards Act. See section 3(i) and (j) of the Act, 29 U.S.C.A. § 203(i) and (j). Also compare Slover v. Wathen, 4 Cir., 140 F.2d 258, 259, 260, where the court said: “ ‘There can be no question, we think, but that the production of ships to operate in interstate and foreign commerce is a production for commerce, within the meaning of the statute.’ [Bracey v. Luray, 4 Cir., 138 F.2d 8, 11.] Nor can there be a valid distinction between building new ships and repairing old ships so far as the Act is concerned, since § 203 (j) [29 U.S.C.A.] provides that ‘produced’ includes ‘handled or in any manner worked on in any State.’ ” As corollaries of these propositions, any employee of the owner or operator of direct instrumentalities or necessary facilities of interstate transportation whose task is immediately connected with maintaining or keeping them in condition for and during such use must similarly be regarded as being engaged in commerce (Overstreet v. North Shore Corporation, 318 U.S. 125, 130, 63 S.Ct. 494, 497, 87 L.Ed. 656), and, further, any employee of an owner of automobile trucks or passenger cars, which are leased to others for interstate use, whose work has “a close and immediate tie” (Kirschbaum Co. v. Walling, 316 U.S. 517, 525, 62" } ]

[ { "docid": "18599178", "title": "", "text": "Davis. Davis then breached its contract with Diasonics; it refused to take delivery of the equipment or to pay the balance due under the agreement. Diasonics later resold the equipment to a third party for the same price at which it was to be sold to Davis. Davis sued Diasonics, asking for restitution of its $300,000 down payment under section 2-718(2) of the Uniform Commercial Code (the “UCC” or the “Code”). Ill.Rev.Stat. ch. 26, para. 2-718(2) (1985). Diasonics counterclaimed. Diasonics did not deny that Davis was entitled to recover its $300,000 deposit less $500 as provided in section 2-718(2)(b). However, Diasonics claimed that it was entitled to an offset under section 2-718(3). Diasonics alleged that it was a “lost volume seller,” and, as such, it lost the profit from one sale when Davis breached its contract. Diasonics’ position was that, in order to be put in as good a position as it would have been in had Davis performed, it was entitled to recover its lost profit on its contract with Davis under section 2-708(2) of the UCC. Ill.Rev.Stat. ch. 26, para. 2-708(2) (1985). Section 2-708 provides: § 2-708. Seller’s Damages for Non-acceptance or Repudiation (1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer’s breach. (2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale. Diasonics subsequently filed a third-party complaint against Dobbin" } ]

[ { "docid": "18599205", "title": "", "text": "Section 2-708(2) (One Profit for the Reseller), 24 Case W.Res. 697, 699 (1973). . UCC comment 2 to 2-708(2) also suggests that 2-708 has broader applicability than suggested by the district court. UCC comment 2 provides: This section permits the recovery of lost profits in all appropriate cases, which would include all standard priced goods. The normal measure there would be list price less cost to the dealer or list price less manufacturing cost to the manufacturer. The district court’s restrictive interpretation of 2-708(2) was based in part on UCC comment 1 to 2-704 which describes 2-706 as the aggrieved seller’s primary remedy. The district court concluded that, if a lost volume seller could recover its lost profit under 2-708(2), every seller would attempt to recover damages under 2-708(2) and 2-706 would become the aggrieved seller's residuary remedy. This argument ignores the fact that to recover under 2-708(2), a seller must first establish its status as a lost volume seller. See infra p. 684. The district court also concluded that a lost volume seller cannot recover its lost profit under 2-708(2) because such a result would negate a seller’s duty to mitigate damages. This position fails to recognize the fact that, by definition, a lost volume seller cannot mitigate damages through resale. Resale does not reduce a lost volume seller’s damages because the breach has still resulted in its losing one sale and a corresponding profit. See Autonumerics, 144 Ariz. at 192, 696 P.2d at 1341. . Supra p. 680. . There is some debate in the commentaries about whether a seller who has resold the goods may ignore the measure of damages provided in 2-706 and elect to proceed under 2-708(1). Under some circumstances the contract-market price differential will result in overcompensating such a seller. See J. White & R. Summers, Handbook of the Law under the Uniform Commercial Code § 7-7, at 271-73 (2d ed. 1980); Sebert, Remedies under Article Two of the Uniform Commercial Code: An Agenda for Review, 130 U.Pa.L.Rev. 360, 380-83 (1981). We need not struggle with this question here because Diasonics has not sought" }, { "docid": "18599181", "title": "", "text": "thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer’s breach. Davis was awarded $322,656, which represented Davis’ down payment plus prejudgment interest less Diasonics’ incidental damages. Diasonics appeals the district court’s decision respecting its measure of damages as well as the dismissal of its third-party complaint. H. We consider first Diasonics’ claim that the district court erred in holding that Diasonics was limited to the measure of damages provided in 2-706 and could not recover lost profits as a lost volume seller under 2-708(2). Surprisingly, given its importance, this issue has never been addressed by an Illinois court, nor, apparently, by any other court construing Illinois law. Thus, we must attempt to predict how the Illinois Supreme Court would resolve this issue if it were presented to it. Courts applying the laws of other states have unanimously adopted the position that a lost volume seller can recover its lost profits under 2-708(2). Contrary to the result reached by the district court, we conclude that the Illinois Supreme Court would follow these other cases and would allow a lost volume seller to recover its lost profit under 2-708(2). We begin our analysis with 2-718(2) and (3). Under 2-718(2)(b), Davis is entitled to the return of its down payment less $500. Davis’ right to restitution, however, is qualified under 2-718(3)(a) to the extent that Diasonics can establish a right to recover damages under any other provision of Article 2 of the UCC. Article 2 contains four provisions that concern the recovery of a seller’s general damages (as opposed to its incidental or consequential damages): 2-706 (contract price less resale price); 2-708(1) (contract price less market price); 2-708(2). (profit); and 2-709 (price). The problem we face here is determining whether Diasonics’ damages should be measured under 2-706 or 2-708(2). To answer this question, we need to engage in a detailed" }, { "docid": "18599179", "title": "", "text": "of the UCC. Ill.Rev.Stat. ch. 26, para. 2-708(2) (1985). Section 2-708 provides: § 2-708. Seller’s Damages for Non-acceptance or Repudiation (1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer’s breach. (2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale. Diasonics subsequently filed a third-party complaint against Dobbin and Valvassori, alleging that they tortiously interfered with its contract with Davis. Diasonics claimed that the doctors knew of the contract between Davis and Diasonics and also knew that, if they breached their contract with Davis, Davis would have no use for the equipment it had agreed to buy from Diasonics. The district court dismissed Diasonics’ third-party complaint for failure to state a claim upon which relief could be granted, finding that the complaint did not allege that the doctors intended to induce Davis to breach its contract with Diasonics. The court also entered summary judgment for Davis. The court held that lost volume sellers were not entitled to recover damages under 2-708(2) but rather were limited to recovering the difference between the resale price and the contract price along with incidental damages under section 2-706(1). Ill.Rev.Stat. ch. 26, para. 2-706(1) (1985). Section 2-706(1) provides: § 2-706. Seller’s Resale Including Contract for Resale (1) Under the conditions stated in Section 2-703 on seller’s remedies, the seller may resell the goods concerned or the undelivered balance" }, { "docid": "18599183", "title": "", "text": "look at the language and structure of these various damage provisions. The Code does not provide a great deal of guidance as to when a particular damage remedy is appropriate. The damage remedies provided under the Code are catalogued in section 2-703, but this section does not indicate that there is any hierarchy among the remedies. One method of approaching the damage sections is to conclude that 2-708 is relegated to a role inferior to that of 2-706 and 2-709 and that one can turn to 2-708 only after one has concluded that neither 2-706 nor 2-709 is applicable. Under this interpretation of the relationship between 2-706 and 2-708, if the goods have been resold, the seller can sue to recover damages measured by the difference between the contract price and the resale price under 2-706. The seller can turn to 2-708 only if it resells in a commercially unreasonable manner or if it cannot resell but an action for the price is inappropriate under 2-709. The district court adopted this reading of the Code’s damage remedies and, accordingly, limited Diasonics to the measure of damages provided in 2-706 because it resold the equipment in a commercially reasonable manner. The district court’s interpretation of 2-706 and 2-708, however, creates its own problems of statutory construction. There is some suggestion in the Code that the “fact that plaintiff resold the goods [in a commercially reasonable manner] does not compel him to use the resale remedy of § 2-706 rather than the damage remedy of § 2-708.” Harris, A Radical Restatement of the Law of Seller’s Damages: Sales Act and Commercial Code Results Compared, 18 Stan.L.Rev. 66, 101 n. 174 (1965) (emphasis in original). Official comment 1 to 2-703, which catalogues the remedies available to a seller, states that these “remedies are essentially cumulative in nature” and that “[w]hether the pursuit of one remedy bars another depends entirely on the facts of the individual case.” See also State of New York, Report of the Law Revision Comm'n for 1956, 396-97 (1956). Those courts that found that a lost volume seller can recover" }, { "docid": "18599202", "title": "", "text": "Md.App. 144, 153-54, 380 A.2d 618, 624-25 (1977); Teradyne, Inc. v. Teledyne Ind., Inc., 676 F.2d 865, 868 (1st Cir.1982) (applying Massachusetts law); Neri v. Retail Marine Corp., 30 N.Y.2d 393, 397-99, 334 N.Y.S.2d 165, 167-70, 285 N.E.2d 311, 313-14 (1972); Lake Erie Boat Sales, Inc. v. Johnson, 11 Ohio App.3d 55, 56, 463 N.E.2d 70, 71-72 (1983); Famous Knitwear Corp. v. Drug Fair, Inc., 493 F.2d 251, 253-54 (4th Cir.1974) (applying Virginia law); Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1289-90 (9th Cir.1985) (applying Washington law), cert. dismissed, - U.S. -, 107 S.Ct. 450, 93 L.Ed.2d 397 (1986). . Supra p. 680 n. 1. . An action for the price, provided for under 2-709, is not an option in this case because Diasonics resold the equipment that it had intended to sell to Davis. . Section 2-703 provides: § 2-703. Seller's Remedies in General Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (Section 2-612), then also with respect to the whole undelivered balance, the aggrieved seller may (a) withhold delivery of such goods; (b) stop delivery by any bailee as hereafter provided (Section 2-705); (c) proceed under the next section respecting goods still unidentified to the contract; (d) resell and recover damages as hereafter provided (Section 2-706); (e) recover damages for non-acceptance (Section 2-708) or in a proper case the price (Section 2-709); (f) cancel. Ill.Rev.Stat. ch. 26, para. 2-703 (1985). . Evidence to support this approach can be found in the language of the various damage sections and of the official comments to the UCC. See § 2-709(3) (\"a seller who is held not entitled to the price under this Section shall nevertheless be awarded damages for non-acceptance under the preceding section [§ 2-708]”); UCC comment 7 to § 2-709 (”[i]f the action for the price fails, the seller may nonetheless have proved a case" }, { "docid": "18599190", "title": "", "text": "of resale.” Ill.Rev.Stat. ch. 26, para. 2-708(2) (1985) (emphasis added). The literal language of 2-708(2) requires that the proceeds from resale be credited against the amount of damages awarded which, in most cases, would result in the seller recovering nominal damages. In those cases in which the lost volume seller was awarded its lost profit as damages, the courts have circumvented this problem by concluding that this language only applies to proceeds realized from the resale of uncompleted goods for scrap. See, e.g., Neri, 30 N.Y.2d at 399 & n. 2, 334 N.Y.S.2d at 169 & n. 2, 285 N.E.2d at 314 & n. 2; see also J. White & R. Summers, Handbook of the Law under the Uniform Commercial Code § 7-13, at 285 (“courts should simply ignore the ‘due credit’ language in lost volume cases”) (footnote omitted). Although neither the text of 2-708(2) nor the official comments limit its application to resale of goods for scrap, there is evidence that the drafters of 2-708 seemed to have had this more limited application in mind when they proposed amending 2-708 to include the phrase “due credit for payments or proceeds of resale.” We conclude that the Illinois Supreme Court would adopt this more restrictive interpretation of this phrase rendering it inapplicable to this case. We therefore reverse the grant of summary judgment in favor of Davis and remand with instructions that the district court calculate Diasonics’ damages under 2-708(2) if Diasonics can establish, not only that it had the capacity to make the sale to Davis as well as the sale to the resale buyer, but also that it would have been profitable for it to make both sales. Of course, Diasonics, in addition, must show that it probably would have made the second sale absent the breach. HI. A. Diasonics also appeals the district court’s dismissal of its third-party complaint against Dobbin and Valvassori. The complaint alleged that the doctors tortiously interfered with Diasonics’ contract with Davis and sought as damages Diasonics’ lost profit. The district court dismissed the third-party complaint for failure to state a claim upon" }, { "docid": "18599184", "title": "", "text": "damage remedies and, accordingly, limited Diasonics to the measure of damages provided in 2-706 because it resold the equipment in a commercially reasonable manner. The district court’s interpretation of 2-706 and 2-708, however, creates its own problems of statutory construction. There is some suggestion in the Code that the “fact that plaintiff resold the goods [in a commercially reasonable manner] does not compel him to use the resale remedy of § 2-706 rather than the damage remedy of § 2-708.” Harris, A Radical Restatement of the Law of Seller’s Damages: Sales Act and Commercial Code Results Compared, 18 Stan.L.Rev. 66, 101 n. 174 (1965) (emphasis in original). Official comment 1 to 2-703, which catalogues the remedies available to a seller, states that these “remedies are essentially cumulative in nature” and that “[w]hether the pursuit of one remedy bars another depends entirely on the facts of the individual case.” See also State of New York, Report of the Law Revision Comm'n for 1956, 396-97 (1956). Those courts that found that a lost volume seller can recover its lost profits under 2-708(2) implicitly rejected the position adopted by the district court; those courts started with the assumption that 2-708 applied to a lost volume seller without considering whether the seller was limited to the remedy provided under 2-706. None of those courts even suggested that a seller who resold goods in a commercially reasonable manner was limited to the damage formula provided under 2-706. We conclude that the Illinois Supreme Court, if presented with this question, would adopt the position of these other jurisdictions and would conclude that a reselling seller, such as Diasonics, is free to reject the damage formula prescribed in 2-706 and choose to proceed under 2-708. Concluding that Diasonics is entitled to seek damages under 2-708, however, does not automatically result in Diasonics being awarded its lost profit. Two different measures of damages are provided in 2-708. Subsection 2-708(1) provides for a measure of damages calculated by subtracting the market price at the time and place for tender from the contract price. The profit measure of damages, for" }, { "docid": "18599187", "title": "", "text": "good a position as it would have been in had the buyer performed. The breach effectively cost the seller a “profit,” and the seller can only be made whole by awarding it damages in the amount of its “lost profit” under 2-708(2). We agree with Diasonics’ position that, under some circumstances, the mea sure of damages provided under 2-708(1) will not put a reselling seller in as good a position as it would have been in had the buyer performed because the breach resulted in the seller losing sales volume. However, we disagree with the definition of “lost volume seller” adopted by other courts. Courts awarding lost profits to a lost volume seller have focused on whether the seller had the capacity to supply the breached units in addition to what it actually sold. In reality, however, the relevant questions include, not only whether the seller could have produced the breached units in addition to its actual volume, but also whether it would have been profitable for the seller to produce both units. Goetz & Scott, Measuring Sellers’ Damages: The Lost-Profits Puzzle, 31 Stan.L.Rev. 323, 332-33, 346-47 (1979). As one commentator has noted, under the economic law of diminishing returns or increasing marginal costs[,] ... as a seller’s volume increases, then a point will inevitably be reached where the cost of selling each additional item diminishes the incremental return to the seller and eventually makes it entirely unprofitable to conclude the next sale. Shanker, supra p. 7 n. 6, at 705. Thus, under some conditions, awarding a lost volume seller its presumed lost profit will result in overcompensating the seller, and 2-708(2) would not take effect because the damage formula provided in 2-708(1) does place the seller in as good a position as if the buyer had performed. Therefore, on remand, Diasonics must establish, not only that it had the capacity to produce the breached unit in addition to the unit resold, but also that it would have been profitable for it to have produced and sold both. Diasonics carries the burden of establishing these facts because the burden of" }, { "docid": "18599185", "title": "", "text": "its lost profits under 2-708(2) implicitly rejected the position adopted by the district court; those courts started with the assumption that 2-708 applied to a lost volume seller without considering whether the seller was limited to the remedy provided under 2-706. None of those courts even suggested that a seller who resold goods in a commercially reasonable manner was limited to the damage formula provided under 2-706. We conclude that the Illinois Supreme Court, if presented with this question, would adopt the position of these other jurisdictions and would conclude that a reselling seller, such as Diasonics, is free to reject the damage formula prescribed in 2-706 and choose to proceed under 2-708. Concluding that Diasonics is entitled to seek damages under 2-708, however, does not automatically result in Diasonics being awarded its lost profit. Two different measures of damages are provided in 2-708. Subsection 2-708(1) provides for a measure of damages calculated by subtracting the market price at the time and place for tender from the contract price. The profit measure of damages, for which Diasonics is asking, is contained in 2-708(2). However, one applies 2-708(2) only if “the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done____” Ill.Rev.Stat. ch. 26, para. 2-708(2) (1985). Diasonics claims that 2-708(1) does not provide an adequate measure of damages when the seller is a lost volume seller. To understand Diasonics’ argument, we need to define the concept of the lost volume seller. Those cases that have addressed this issue have defined a lost volume seller as one that has a predictable and finite number of customers and that has the capacity either to sell to all new buyers or to make the one additional sale represented by the resale after the breach. According to a number of courts and commentators, if the seller would have made the sale represented by the resale whether or not the breach occurred, damages measured by the difference between the contract price and market price cannot put the lost volume seller in as" }, { "docid": "18599180", "title": "", "text": "and Valvassori, alleging that they tortiously interfered with its contract with Davis. Diasonics claimed that the doctors knew of the contract between Davis and Diasonics and also knew that, if they breached their contract with Davis, Davis would have no use for the equipment it had agreed to buy from Diasonics. The district court dismissed Diasonics’ third-party complaint for failure to state a claim upon which relief could be granted, finding that the complaint did not allege that the doctors intended to induce Davis to breach its contract with Diasonics. The court also entered summary judgment for Davis. The court held that lost volume sellers were not entitled to recover damages under 2-708(2) but rather were limited to recovering the difference between the resale price and the contract price along with incidental damages under section 2-706(1). Ill.Rev.Stat. ch. 26, para. 2-706(1) (1985). Section 2-706(1) provides: § 2-706. Seller’s Resale Including Contract for Resale (1) Under the conditions stated in Section 2-703 on seller’s remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer’s breach. Davis was awarded $322,656, which represented Davis’ down payment plus prejudgment interest less Diasonics’ incidental damages. Diasonics appeals the district court’s decision respecting its measure of damages as well as the dismissal of its third-party complaint. H. We consider first Diasonics’ claim that the district court erred in holding that Diasonics was limited to the measure of damages provided in 2-706 and could not recover lost profits as a lost volume seller under 2-708(2). Surprisingly, given its importance, this issue has never been addressed by an Illinois court, nor, apparently, by any other court construing Illinois law. Thus, we must attempt to predict how the Illinois Supreme Court would resolve this issue if it were presented to it. Courts applying the laws" }, { "docid": "18599191", "title": "", "text": "mind when they proposed amending 2-708 to include the phrase “due credit for payments or proceeds of resale.” We conclude that the Illinois Supreme Court would adopt this more restrictive interpretation of this phrase rendering it inapplicable to this case. We therefore reverse the grant of summary judgment in favor of Davis and remand with instructions that the district court calculate Diasonics’ damages under 2-708(2) if Diasonics can establish, not only that it had the capacity to make the sale to Davis as well as the sale to the resale buyer, but also that it would have been profitable for it to make both sales. Of course, Diasonics, in addition, must show that it probably would have made the second sale absent the breach. HI. A. Diasonics also appeals the district court’s dismissal of its third-party complaint against Dobbin and Valvassori. The complaint alleged that the doctors tortiously interfered with Diasonics’ contract with Davis and sought as damages Diasonics’ lost profit. The district court dismissed the third-party complaint for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed under Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). The facts as alleged in Diasonics’ third-party complaint are as follows. Dobbin and Valvassori are physicians who had agreed to perform professional services at a medical facility to be established by Davis. The equipment ordered by Davis from Diasonics was to be used at this facility. “Dobben [sic] and Valvassori were aware that Davis had entered into the ... contract with Diasonics,” and they “were further aware that the equipment would be of essentially no value to Davis if they failed to provide their services in connection with operating the equipment____” Third-Party Complaint H118, 9. Dobbin and Valvassori breached their contract with Davis in order to establish their own facility, though they “knew that their conduct was" }, { "docid": "18599192", "title": "", "text": "which relief could be granted. Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed under Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). The facts as alleged in Diasonics’ third-party complaint are as follows. Dobbin and Valvassori are physicians who had agreed to perform professional services at a medical facility to be established by Davis. The equipment ordered by Davis from Diasonics was to be used at this facility. “Dobben [sic] and Valvassori were aware that Davis had entered into the ... contract with Diasonics,” and they “were further aware that the equipment would be of essentially no value to Davis if they failed to provide their services in connection with operating the equipment____” Third-Party Complaint H118, 9. Dobbin and Valvassori breached their contract with Davis in order to establish their own facility, though they “knew that their conduct was reasonably certain to cause a breach by Davis of its contract with Diasonics____” Id. fl 10. The elements of the tort of interference with contractual relations under Illinois law are: a valid contract, defendant’s knowledge of the existence of the contract, defendant’s intentional and malicious inducement of the breach of the contract, breach of the contract caused by defendant’s wrongful conduct and resultant damage to the plaintiff. Swager v. Couri, 60 Ill.App.3d 192, 196, 17 Ill.Dec. 457, 460, 376 N.E.2d 456, 459 (3d Dist.1978) (citation omitted), aff'd, 77 Ill.2d 173, 32 Ill.Dec. 540, 395 N.E.2d 921 (1979); see also Galinski v. Kessler, 134 Ill.App.3d 602, 610, 89 Ill.Dec. 433, 439, 480 N.E.2d 1176, 1182 (1st Dist.1985). The district court dismissed the complaint because it did not allege that the doctors intended to induce Davis to breach its contract with Diasonics. We agree. Diasonics claims on appeal that, to establish the tort of intentional interference with contractual relations, it need only show that the doctors knew of its contract with Davis and that they realized that" }, { "docid": "18599182", "title": "", "text": "of other states have unanimously adopted the position that a lost volume seller can recover its lost profits under 2-708(2). Contrary to the result reached by the district court, we conclude that the Illinois Supreme Court would follow these other cases and would allow a lost volume seller to recover its lost profit under 2-708(2). We begin our analysis with 2-718(2) and (3). Under 2-718(2)(b), Davis is entitled to the return of its down payment less $500. Davis’ right to restitution, however, is qualified under 2-718(3)(a) to the extent that Diasonics can establish a right to recover damages under any other provision of Article 2 of the UCC. Article 2 contains four provisions that concern the recovery of a seller’s general damages (as opposed to its incidental or consequential damages): 2-706 (contract price less resale price); 2-708(1) (contract price less market price); 2-708(2). (profit); and 2-709 (price). The problem we face here is determining whether Diasonics’ damages should be measured under 2-706 or 2-708(2). To answer this question, we need to engage in a detailed look at the language and structure of these various damage provisions. The Code does not provide a great deal of guidance as to when a particular damage remedy is appropriate. The damage remedies provided under the Code are catalogued in section 2-703, but this section does not indicate that there is any hierarchy among the remedies. One method of approaching the damage sections is to conclude that 2-708 is relegated to a role inferior to that of 2-706 and 2-709 and that one can turn to 2-708 only after one has concluded that neither 2-706 nor 2-709 is applicable. Under this interpretation of the relationship between 2-706 and 2-708, if the goods have been resold, the seller can sue to recover damages measured by the difference between the contract price and the resale price under 2-706. The seller can turn to 2-708 only if it resells in a commercially unreasonable manner or if it cannot resell but an action for the price is inappropriate under 2-709. The district court adopted this reading of the Code’s" }, { "docid": "18599206", "title": "", "text": "recover its lost profit under 2-708(2) because such a result would negate a seller’s duty to mitigate damages. This position fails to recognize the fact that, by definition, a lost volume seller cannot mitigate damages through resale. Resale does not reduce a lost volume seller’s damages because the breach has still resulted in its losing one sale and a corresponding profit. See Autonumerics, 144 Ariz. at 192, 696 P.2d at 1341. . Supra p. 680. . There is some debate in the commentaries about whether a seller who has resold the goods may ignore the measure of damages provided in 2-706 and elect to proceed under 2-708(1). Under some circumstances the contract-market price differential will result in overcompensating such a seller. See J. White & R. Summers, Handbook of the Law under the Uniform Commercial Code § 7-7, at 271-73 (2d ed. 1980); Sebert, Remedies under Article Two of the Uniform Commercial Code: An Agenda for Review, 130 U.Pa.L.Rev. 360, 380-83 (1981). We need not struggle with this question here because Diasonics has not sought to recover damages under 2-708(1). . This is also the position adopted by those courts that have held that a lost volume seller can recover its lost profits under 2-708(2). See, e.g., Snyder, 38 Md.App. at 153-54, 380 A.2d at 624-25. . See, e.g., Great Western Sugar Co. v. Mrs. Allison's Cookie Co., 563 F.Supp. 430, 433 n. 1 (E.D.Mo.1983); Distribu-Dor, Inc. v. Karadanis, 11 Cal.App.3d 463, 470, 90 Cal.Rptr. 231, 236 (3d Dist.1970); see also W. Hawkland, Sales and Bulk Sales 153 (2d ed. 1958). . See, e.g., Comeq, 456 So.2d at 268-69; National Controls, 163 Cal.App.3d at 697, 209 Cal.Rptr. at 642; see also Harris, supra p. 682, at 82-83. . According to one commentator, Resale results in loss of volume only if three conditions are met; (1) the person who bought the resold entity would have been solicited by plaintiff had there been no breach and resale; (2) the solicitation would have been successful; and (3) the plaintiff could have performed that additional contract. Harris, supra p. 682, at 82 (footnotes omitted)." }, { "docid": "18599186", "title": "", "text": "which Diasonics is asking, is contained in 2-708(2). However, one applies 2-708(2) only if “the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done____” Ill.Rev.Stat. ch. 26, para. 2-708(2) (1985). Diasonics claims that 2-708(1) does not provide an adequate measure of damages when the seller is a lost volume seller. To understand Diasonics’ argument, we need to define the concept of the lost volume seller. Those cases that have addressed this issue have defined a lost volume seller as one that has a predictable and finite number of customers and that has the capacity either to sell to all new buyers or to make the one additional sale represented by the resale after the breach. According to a number of courts and commentators, if the seller would have made the sale represented by the resale whether or not the breach occurred, damages measured by the difference between the contract price and market price cannot put the lost volume seller in as good a position as it would have been in had the buyer performed. The breach effectively cost the seller a “profit,” and the seller can only be made whole by awarding it damages in the amount of its “lost profit” under 2-708(2). We agree with Diasonics’ position that, under some circumstances, the mea sure of damages provided under 2-708(1) will not put a reselling seller in as good a position as it would have been in had the buyer performed because the breach resulted in the seller losing sales volume. However, we disagree with the definition of “lost volume seller” adopted by other courts. Courts awarding lost profits to a lost volume seller have focused on whether the seller had the capacity to supply the breached units in addition to what it actually sold. In reality, however, the relevant questions include, not only whether the seller could have produced the breached units in addition to its actual volume, but also whether it would have been profitable for the seller to produce both units. Goetz &" }, { "docid": "18599199", "title": "", "text": "203.18, at 3-80 (2d ed. 1987) (footnote omitted); see also Herron v. Rozelle, 480 F.2d 282, 285 (10th Cir.1973). Even if Diasonics erred by failing to indicate specifically that it was appealing from the dismissal of the third-party complaint, this mistake by itself does not support dismissing the notice of appeal as to the doctors. The rule is now well settled that a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. 9 Moore’s ¶ 203.18, at 3-76-3-77 (footnotes omitted); see also Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). The doctors knew that Diasonics was appealing from the September 19, 1986 order, and they specifically state in their brief that they were not prejudiced by the notice of appeal. Brief of Third Party Defendants-Appellees at 14. It is hard to see how the doctors could contend that they were surprised that Diasonics was appealing the dismissal of the third-party complaint in light of the fact that Diasonics filed an earlier notice of appeal on October 20, 1986 from the September 19, 1986 order; that appeal was dismissed voluntarily because no final judgment had been entered with respect to the claims pending between Davis and Diasonics. IV. Accordingly, we affirm the district court’s dismissal of the third-party complaint, reverse the grant of summary judg ment in favor of Davis and remand for further proceedings consistent with this opinion. Affirmed in Part, Reversed in Part and Remanded. . The pertinent portion of section 2-718 provides: § 2-718. Liquidation or Limitation of Damages; Deposits (2) Where the seller justifiably withholds delivery of goods because of the buyer’s breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds (a) the amount to which the seller is entitled by virtue of terms liquidating the seller’s" }, { "docid": "18599197", "title": "", "text": "York Trust Co. v. Island Oil & Trans. Corp., 34 F.2d 649, 652 (2d Cir.1929) (L. Hand, J.); In re Douglas Dunhill, Inc., 22 B.R. 953, 957 (Bankr.N.D.Ill.1982); Lamport v. 4175 Broadway, 6 F.Supp. 923, 924 (S.D.N.Y.1934). We conclude that the Illinois Supreme Court would find that the element of “inducement” in the context of a claim for intentional interference with contractual relations requires more than the knowledge that one’s conduct is substantially certain to result in one party breaking its contract with another. Because Diasonics’ third-party complaint alleged nothing more than this, the district court was correct in dismissing the complaint for failure to state a claim. B. Dobbin and Valvassori also claim that Diasonics’ notice of appeal is defective and, therefore, we should dismiss the appeal. The district court issued three separate orders in this case. In an order dated June 18, 1986, the court denied Davis’ and Diasonics’ motions for summary judgment. On September 19, 1986, the district court dismissed Diasonics’ third-party complaint against the doctors. In its final order, dated November 4, 1986, the court entered judgment for Davis and stated that its “judgment entered herein shall be deemed final and there is no just reason to delay the enforcement thereof or the appeal therefrom.” Diasonics’ notice of appeal indicated that it was appealing from the order of the district court entered on November 4, 1986. Dobbin and Valvassori claim that this notice of appeal is defective because it does not state that Diasonics is also appealing from the September 19,1986 order dismissing the third-party complaint. This argument is without merit. The September 19, 1986 order was not a final order for purposes of appeal because no final judgment had been entered with respect to the claims between Davis and Diasonics. The district court’s order of November 4, 1986, from which Diasonics clearly appealed, made the September 19, 1986 order final and appealable. “An appeal from the final judgment draws in question all prior non-final orders and all rulings which produced the judgment.” 9 J. Moore, B. Ward & J. Lucas, 9 Moore’s Federal Practice ¶" }, { "docid": "18599200", "title": "", "text": "Defendants-Appellees at 14. It is hard to see how the doctors could contend that they were surprised that Diasonics was appealing the dismissal of the third-party complaint in light of the fact that Diasonics filed an earlier notice of appeal on October 20, 1986 from the September 19, 1986 order; that appeal was dismissed voluntarily because no final judgment had been entered with respect to the claims pending between Davis and Diasonics. IV. Accordingly, we affirm the district court’s dismissal of the third-party complaint, reverse the grant of summary judg ment in favor of Davis and remand for further proceedings consistent with this opinion. Affirmed in Part, Reversed in Part and Remanded. . The pertinent portion of section 2-718 provides: § 2-718. Liquidation or Limitation of Damages; Deposits (2) Where the seller justifiably withholds delivery of goods because of the buyer’s breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds (a) the amount to which the seller is entitled by virtue of terms liquidating the seller’s damages in accordance with subsection (1), or (b) in the absence of such terms, 20% of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller. (3) The buyer's right to restitution under subsection (2) is subject to offset to the extent that the seller establishes (a) a right to recover damages under the provisions of this Article other than subsection (1), and (b) the amount or value of any benefits received by the buyer directly or indirectly by reason of the contract. Ill.Rev.Stat. ch. 26, para. 2-718(2) & (3) (1985). . See, e.g., Comeq, Inc. v. Mitternight Boiler Works, Inc., 456 So.2d 264, 267-69 (Ala.Sup.Ct. 1984); Autonumerics, Inc. v. Bayer Ind., Inc., 144 Ariz. 181, 191, 696 P.2d 1330, 1340 (Ariz.App.Ct.1984); Capital Steel Co. v. Foster & Creighton Co., 264 Ark. 683, 689, 574 S.W.2d 256, 259-60 (Sup.Ct.1978); National Controls, Inc. v. Commodore Business Machines, Inc., 163 Cal.App.3d 688, 696-99, 209 Cal.Rptr. 636, 641-43 (1st Dist.1985); Snyder v. Herbert Greenbaum & Assocs., Inc., 38" }, { "docid": "18599177", "title": "", "text": "CUDAHY, Circuit Judge. Diasonics, Inc. appeals from the orders of the district court denying its motion for summary judgment and granting R.E. Davis Chemical Corp.’s summary judgment motion. Diasonics also appeals from the order dismissing its third-party complaint against Dr. Glen D. Dobbin and Dr. Galdino Valvassori. We affirm the dismissal of the third-party complaint, reverse the grant of summary judgment in favor of Davis and remand for further proceedings. I. Diasonics is a California corporation engaged in the business of manufacturing and selling medical diagnostic equipment. Davis is an Illinois corporation that contracted to purchase a piece of medical diagnostic equipment from Diasonics. On or about February 23,1984, Davis and Diasonics entered into a written contract under which Davis agreed to purchase the equip ment. Pursuant to this agreement, Davis paid Diasonics a $300,000 deposit on February 29, 1984. Prior to entering into its agreement with Diasonics, Davis had contracted with Dobbin and Valvassori to establish a medical facility where the equipment was to be used. Dobbin and Valvassori subsequently breached their contract with Davis. Davis then breached its contract with Diasonics; it refused to take delivery of the equipment or to pay the balance due under the agreement. Diasonics later resold the equipment to a third party for the same price at which it was to be sold to Davis. Davis sued Diasonics, asking for restitution of its $300,000 down payment under section 2-718(2) of the Uniform Commercial Code (the “UCC” or the “Code”). Ill.Rev.Stat. ch. 26, para. 2-718(2) (1985). Diasonics counterclaimed. Diasonics did not deny that Davis was entitled to recover its $300,000 deposit less $500 as provided in section 2-718(2)(b). However, Diasonics claimed that it was entitled to an offset under section 2-718(3). Diasonics alleged that it was a “lost volume seller,” and, as such, it lost the profit from one sale when Davis breached its contract. Diasonics’ position was that, in order to be put in as good a position as it would have been in had Davis performed, it was entitled to recover its lost profit on its contract with Davis under section 2-708(2)" }, { "docid": "18599188", "title": "", "text": "Scott, Measuring Sellers’ Damages: The Lost-Profits Puzzle, 31 Stan.L.Rev. 323, 332-33, 346-47 (1979). As one commentator has noted, under the economic law of diminishing returns or increasing marginal costs[,] ... as a seller’s volume increases, then a point will inevitably be reached where the cost of selling each additional item diminishes the incremental return to the seller and eventually makes it entirely unprofitable to conclude the next sale. Shanker, supra p. 7 n. 6, at 705. Thus, under some conditions, awarding a lost volume seller its presumed lost profit will result in overcompensating the seller, and 2-708(2) would not take effect because the damage formula provided in 2-708(1) does place the seller in as good a position as if the buyer had performed. Therefore, on remand, Diasonics must establish, not only that it had the capacity to produce the breached unit in addition to the unit resold, but also that it would have been profitable for it to have produced and sold both. Diasonics carries the burden of establishing these facts because the burden of proof is generally on the party claiming injury to establish the amount of its damages; especially in a case such as this, the plaintiff has easiest access to the relevant data. Finance America Commercial Corp. v. Econo Coach, Inc., 118 Ill.App.3d 385, 390, 73 Ill.Dec. 878, 882, 454 N.E.2d 1127, 1131 (2d Dist.1983) (“A party seeking to recover has the burden not only to establish that he sustained damages but also to establish a reasonable basis for computation of those damages.”) (citation omitted); see also Snyder, 38 Md.App. at 158-59 & n. 7, 380 A.2d at 627 & n. 7. One final problem with awarding a lost volume seller its lost profits was raised by the district court. This problem stems from the formulation of the measure of damages provided under 2-708(2) which is “the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds" } ]

[ { "docid": "22543731", "title": "", "text": "effect of the adoption of the statute, as shown by the following: (a) The complete and undivided character of the war power óf the United States is not disputable. Selective Draft Law Cases, 245 U. S. 366; Ex parte Milligan, 4 Wall. 2; Legal. Tender Cases, 12 Wall. 457; Stewart v. Kahn, 11 Wall. 493. On the face of the statutes it is manifest that they were in terms based upon the war power, since the authority they gave arose only because of the existence of war, and the right to exert such authority was to cease upon the war’s termination. To interpret, therefore, the exercise of the power by .a presumption of the continuance of a state power limiting and controlling the national authority was but to deny its existence. It was akin to the contention that the supreme right to raise armies and. use them in case of war did not extend to directing where and when they should be used. Cox v. Wood, 247 U. S. 3. (b) The elementary principle that under the Constitution the authority of the Government of the Un|ted States is paramount when exerted as to subject^ 'concerning which it has the power to control, is indisputable. This being true, it results that although authority to regulate within a given sphere may exist in both the United States and in the States, when the former calls into play constitutional authority within such general sphere the necessary effect of doing s© is, that to the extent that any conflict arises the state power is limited, since in case of conflict that which is paramount necessarily controls that which is subordinate. Again, as the power which was exerted was supreme, -to interpret it upon the basis that its exercise must be presumed to be limited was to deny the power itself. Thus, once more it comes to pass that the application of the assumed presumption was in effect but a form of expression by which the power which Congress had exerted was denied. In fact, error arising from indulging in such erroneous presumption permeates every" } ]

[ { "docid": "15304315", "title": "", "text": "latter case would be for the courts to control the executive in the exercise of executive discretion, a thing which under our tripártate form of government they have no power to do. Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 57 S.Ct. 407, 410, 81 L.Ed. 562; Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 184, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Louisiana v. McAdoo, 234 U.S. 627, 633, 34 S.Ct. 938, 58 L.Ed. 1506; Philadelphia Co. v. Stimson, 223 U.S. 605, 620, 32 S.Ct. 340, 56 L.Ed. 570; Ferris v. Wilbur (CC.A.4th) 27 F.(2d) 262, 264; Appalachian Electric Power Company v. Smith (C.C.A.4th) 67 F.(2d) 451, 454. In the case last cited, there were allegations in the bill as to abuse of authority by the members of the Federal Power Commission, as well as allegation with respect to action without authority.. In refusing to consider the allegations as to abuse of authority, we said: “The allegations and prayers of the bill which relate to abuse of authority by the commission need not be considered; for it is clear that it is only on the allegations of want of statutory or constitutional authority that the suit against the commissioners as individuals could under any theory be sustained.” The question was squarely before the Supreme Court in Dakota Central Tel. Co. v. South Dakota, supra, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, which involved the taking over of the telephone companies by the President under a statute enacted under the war power. It was argued that the action of the President was an abuse of the discretion vested in him as the war had virtually ended and the action taken was not for the purpose of prosecuting the war but for regulating telephone rates. See argument 250 U.S. at page 177. In disposing of this contention the Court, speaking through Chief Justice White, said (250 U.S. 163, at page 184, 39 S.Ct. 507, 509, 63 L.Ed. 910, 4 A.L.R. 1623): “The proposition that the President in exercising the power exceeded the" }, { "docid": "176776", "title": "", "text": "Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Central Tel. Co. v. State of South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. The existence of an emergency warranting the legislation presently involved can not be denied. It has already been pointed out that the comprehensive National Defense Act in force during the last previous World War was enacted more than ten months prior to the actual onset of formal warfare. In that respect there is a similarity between the two measures. They were deliberately and prudently anticipatory of probably impending hostilities which actually eventuated. Confirmatory reenacting amendment of the present act has occurred since the declaration of the presently persisting state of war. At this point, for it touches upon the factor of military emergency, mention may be made, without amplification, of the impact upon this issue, of the modern technological revolution in warfare and communication. Defensive measures which, a century ago, might have awaited deliberation and the orderly course of judicial process, must now be taken resolutely and immediately. Science has changed not alone the methods of formal warfare, but also and especially the relationship to it of the civilian population. The right of government to exercise the power which the plaintiffs assail being allowed, it follows that, if the discretion preliminary to its exercise is reposed in the executive, that discretion is not a proper subject for judicial review. And this is particularly true when the relief sought is through the extraordinary and thwarting remedy of injunction. This thought was expressed very early in our history. In 1827, in Martin v. Mott, 25 U.S. 19, 29, 12 Wheat. 19, 6 L.Ed. 537, a question arose which rested upon the power of the President to call out the militia, in the decision of which Mr. Justice Story said: “The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally" }, { "docid": "2844940", "title": "", "text": "Wall. 2, 121, 18 L.Ed. 281; Hamilton v. Kentucky Distilleries [& Warehouse] Co., 251 U.S. 146, 155, 40 S.Ct. 106, 64 L.Ed. 194; United States v. L. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045), the Congress and the President exert the war power of the nation, and they have wide discretion as to the means to be employed successfully to carry on (Miller v. Robertson, 266 U.S. 243, 248, 45 S.Ct. 73, 69 L.Ed. 265; United States v. Chemical Foundation, 272 U.S. 1, 10, 47 S.Ct. 1, 71 L.Ed. 131). The measures here challenged are supported by a strong presumption of validity, and they may not be set aside tmless clearly shown to be arbitrary and repugnant to the Constitution. Adkins v. Children’s Hospital, supra, 261 U.S. [525], 544, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238.” Particularly appropriate is the statement of Judge Learned Hand, in Dryfoos v. Edwards, D.C.S.D.N.Y. 1919, 284 F. 596, at page 600, affirmed Ruppert v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260: “But most constitutional problems in the end resolve themselves into the question, How far? and there is no royal road to their solution by rhetorically conjuring up outrageous possibilities which may arise from their unflinching application. All I need do here is to say that until the declaration of peace Congress has power to deal with a matter directly arising from the prosecution of war, and so I hold.” It is obvious that the real objection of the City to the project lies in the fact that these buildings will remain after the emergency. In short, the contention is that granted the need, the means are more extended than the occasion requires. This objection is substantially answered above. There is no doubt that this matter arises directly from the prosecution of the war, but whether it is necessary to construct permanent buildings and whether the result is worth the sacrifice are matters not open for consideration by the court. Furthermore, it must be pointed out that the proposition is" }, { "docid": "80688", "title": "", "text": "SWEENEY, District Judge. To this indictment the defendants have filed a demurrer, motions to quash, and pleas in abatement. In these pleadings they attack the constitutionality of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix § 901 et seq., as being both an improper use of the war power by Congress, and an improper delegation by Congress of its legislative function to an administrative agency. They also insist that the defendants’ rights under the Fourth and Fifth Amendments to the Constitution have been invaded, and further allege that the Government is without authority to prosecute this indictment, because Maximum Price Regulation No. 169, Sections 1364.51 and 1364.52, were revoked prior to the return of this indictment. It is this last contention that gives the court the most concern. The constitutionality of this Act, as it relates to the ceiling on rents, has been sustained by a three-judge court in Henderson v. Kimmel, D.C., 47 F.Supp. 635, as a legitimate exercise of the war power of Congress which is broad and “well-nigh limitless.” United States v. Macintosh, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302. All the reasoning of that decision and the many others sustaining the war power of Congress apply with equal force to the price control features of the Act in question. See Helena Rubinstein, Inc., v. Charline’s Cut Rate, Inc., 132 N.J.Eq. 254, 28 A.2d 113. In the exercise of its very broad power to adopt measures which it deems essential to the war success Congress has intervened in many diverse fields. The Supreme Court has upheld such interferences with property as the taking over and operation of railroads (Northern Pacific Railway Co. v. North Dakota ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897), and the taking over and operation of telephone and telegraph lines (Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623), and has approved the invasion of the freedom of the individual by compulsory military service both at home and abroad. (Arver" }, { "docid": "16542373", "title": "", "text": "Price Control in War and Emergency, 90 U. of Pa.L.Rev. 675, and Marcus, The taking and Destruction of Property Under a Defense and War Program, 27 Corn.L.Q. 317, 515. The war power “is a power to wage'war successfully, and thus it permits the harnessing of the entire' energies of the people in a supreme- co-operative effort to .preserve the nation;” Home Building & Loan. Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. See also United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 75 L.Ed. 1302. In a time when even one’s freedom of person may be greatly restricted, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, there can be little doubt of -the Government’s power- to restrict one’s freedom to mine gold. In time of war or national emergency rent control can be imposed. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. Commodity prices can be controlled. Yakus v.. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. • Materials may be allocated among producers and distributors ; they may be taken away from a wasteful factory and routed to an efficient one; they may be withheld from retailers violating the rationing regulations. L. P. Steuart & Bro., Inc., v. Bowles, 322 U.S. 398, 64 S.Ct. 1097; 88 L.Ed. 1350. Prohibition may be ordered. Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. A purchaser’s rights under a contract may be frustrated by a taking from his contractor. Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773. All these things the Government may do without making compensation. And yet the Constitution is not suspended in time of war; where there is a taking, there must still be compensation. Hamilton v. Kentucky Distilleries & Warehouse Co., supra;" }, { "docid": "11206864", "title": "", "text": "v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); to ration and allocate the distribution of every commodity important to the war effort (Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350) ; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion (Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774); and, finally, to demand of every citizen that he serve in the armed forces of the nation (Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas. 856). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.” Hirabayashi v. United States, 1943, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774. During 1942, appellants manufactured and sold mechanical fittings and parts for airplanes, and the full capacity of appellants’ plant was directed to the production of materials which had a war end use. Appellants’ total sales for 1942 were approximately $405,000 and the profit on these sales, after payment of all expense except salaries to the partners, taxes and investments in the business, was $211,000, or a ratio of profit to sales of 52%. The Under Secretary reduced the profit to $100,000, making a ratio of profit to adjusted sales (total sales reduced by $110,000) of 33%. Certainly it was a matter of congressional concern in a total war, global in extent, with the" }, { "docid": "14051411", "title": "", "text": "and it can also, with constitutional limitations, regulate and draft the resources of the Nation. The Supreme Court has already spoken on this question. In Northern Pacific Railroad Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it has upheld the power to take over and operate the railroads; in Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, to take over and operate telegraph and telephone systems; in Moore & Tierney, Inc., v. Roxford Knitting Company, 2 Cir., 265 F. 177, 11 A.L.R. 1415, certiorari denied 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032, to place compulsory orders for materials required for national defense; in Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, to draft manpower for service in the armed forces; in Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260, to prohibit the manufacture or sale of alcoholic beverages; in Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688, to regulate the prices of certain commodities; in Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165, to control rents.” Nordbye, J., in United States v. C. Thomas Stores, Inc., D.C.Minn., February 26, 1943, 49 F. Supp. 111, 113. Additional instances of exercise of the war powers sustained by the courts include the present Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. See opinions of Judge Hincks in United States v. Friedman, D.C.Conn.March 25, 1943, 50 F.Supp. 584, and United States v. Sosnowitz & Lotstein, Inc., et al., D.C.Conn. March 25, 1943, 50 F.Supp. 586; and see United States v. Wright, D.C.Del.1943, 48 F.Supp. 687; Henderson v. Byran, D.C. Cal.1942, 46 F.Supp. 682; United States v. C. Thomas Stores, Inc., et al., supra, and the anti-prostitution statute of World War I, Act May 18, 1917, § 13, 40 Stat. 83, 50 U.S.C.A. § 226 note, McKinley v. United States," }, { "docid": "11005969", "title": "", "text": "were to deal with all of them it could not exercise the power to allocate at all. While the rule against the delegation of legislative power is fixed and unalterable, not depending upon the existence of emergency, the Congress, which is authorized to empower the executive to act in accordance with due legislative standards, may exercise a discretion in the fixing of those standards. In the emergency of war, the standards must be flexible enough to permit speed and efficiency of action for the national defense. Cf. Dakota Central Telephone Co. v. State of South Dakota, 250 U.S. 163, 183, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; United States v. Chemical Foundation, Inc., 272 U.S. 1, 12, 47 S.Ct. 1, 71 L.Ed. 131. It was pointed out in the latter case that it was not necessary for the Congress to deal with each case and that the Act went as far as was reasonably practical under the existing circumstances. That the desired result of speed and efficiency of action has been attained by the rationing of materials and facilities under the Second War Powers Act of 1942 is demonstrated by the triumphant record of the American war industry. Since the President cannot order the allocations except as he deems it necessary or appropriate in the public interest and for the common defense, which are drastic limitations, we think that no illegal delegation of legislative power exists, and the Act is valid. This conclusion is squarely supported by Sunshine Coal Co. v. Adkins, 310 U.S. 381, 397, 60 S.Ct. 907, 84 L.Ed. 1263. Nor does the wide discretion confided in the President in the Second War Powers Act of 1942 invalidate the statute. While he is authorized to make the allocations in such manner and to such extent as he shall “deem necessary or appropriate in the public interest and to promote the national defense,” similar broad delegations of power have long been held to be valid. In Field v. Clark, supra, the court discussed a number of federal statutes, including the act of June 4, 1794, 1 Stat." }, { "docid": "11005968", "title": "", "text": "(2) to promote the national defense. The President, for instance, is not authorized to exercise this power merely because he deems it necessary or appropriate in the public interest. It must also in his opinion be necessary or appropriate in promotion of the national defense. We do not consider the lack of further detailed standards as invalidating this legislation. The Congress, acting within its legislative powers, was entitled to consider the character of the emergency confronting the nation and the “inherent necessities of the governmental co-ordination.” J. W. Hampton, Jr., & Co. v. United States, supra. Munitions of war essential to our defense called for all the basic materials, metals, wood stuffs, cellulose, textiles, and the broadening categories of complex chemical products. They could not be manufactured if the raw materials were not conserved, and the very existence of the nation depended upon such conservation. The observation of Chief Justice Taft in J. W. Hampton, Jr., & Co. v. United States, became critically apposite here. The problems of allocation were myriad, and if the Congress were to deal with all of them it could not exercise the power to allocate at all. While the rule against the delegation of legislative power is fixed and unalterable, not depending upon the existence of emergency, the Congress, which is authorized to empower the executive to act in accordance with due legislative standards, may exercise a discretion in the fixing of those standards. In the emergency of war, the standards must be flexible enough to permit speed and efficiency of action for the national defense. Cf. Dakota Central Telephone Co. v. State of South Dakota, 250 U.S. 163, 183, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; United States v. Chemical Foundation, Inc., 272 U.S. 1, 12, 47 S.Ct. 1, 71 L.Ed. 131. It was pointed out in the latter case that it was not necessary for the Congress to deal with each case and that the Act went as far as was reasonably practical under the existing circumstances. That the desired result of speed and efficiency of action has been attained by" }, { "docid": "80689", "title": "", "text": "States v. Macintosh, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302. All the reasoning of that decision and the many others sustaining the war power of Congress apply with equal force to the price control features of the Act in question. See Helena Rubinstein, Inc., v. Charline’s Cut Rate, Inc., 132 N.J.Eq. 254, 28 A.2d 113. In the exercise of its very broad power to adopt measures which it deems essential to the war success Congress has intervened in many diverse fields. The Supreme Court has upheld such interferences with property as the taking over and operation of railroads (Northern Pacific Railway Co. v. North Dakota ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897), and the taking over and operation of telephone and telegraph lines (Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623), and has approved the invasion of the freedom of the individual by compulsory military service both at home and abroad. (Arver et al., v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.l918B, 856). The power to enact the Emergency Price Control Act of 1942 cannot be seriously questioned in the light of these decisions. Indeed, it would be a strange situation to grant that Congress has the power to take men from their homes and to send them to war, and to deny that Congress has the right to prevent profiteering by those supplying food to their dependents. Nor is the exercise of this broad power weakened constitutionally by the delegation of its power under proper standards to those charged with the administration of the Act. Congress has set forth the objectives in Section 1(a), 50 U.S.C.A. Appendix § 901(a). To attain these objectives maximum price regulations were authorized to be promulgated, the procedure for which is set out in Section 2(a), 50 U.S.C.A. Appendix § 902(a). There is no loose and general delegation of authority here as in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241," }, { "docid": "16542374", "title": "", "text": "88 L.Ed. 892. Commodity prices can be controlled. Yakus v.. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. • Materials may be allocated among producers and distributors ; they may be taken away from a wasteful factory and routed to an efficient one; they may be withheld from retailers violating the rationing regulations. L. P. Steuart & Bro., Inc., v. Bowles, 322 U.S. 398, 64 S.Ct. 1097; 88 L.Ed. 1350. Prohibition may be ordered. Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. A purchaser’s rights under a contract may be frustrated by a taking from his contractor. Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773. All these things the Government may do without making compensation. And yet the Constitution is not suspended in time of war; where there is a taking, there must still be compensation. Hamilton v. Kentucky Distilleries & Warehouse Co., supra; United States v. L. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045. Where compensation was. not required, it was because it was held that there had been no taking; the damage done to property was doné incidentally in the proper exercise of a legitimate governmental or sovereign power. The point was clearly made' in the Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287: “That próvision [Fifth Amendment] has-always been understood’as-referring only to-a direct appropriation, -and not to consequential injuries resulting from the-exercise of lawful power. .It has never been supposed to have any bearing upon, or to. inhibit laws that indirectly, work harm and loss to individuals. A new tariff, an em- • bargo, a draft, or a war may inevitably bring upon individuals great losses;, may,, indeed, render valuable property almost val-, ueless.. They may destroy the worth of contracts. But whoever supposed that, -because of this, a tariff could not be changed,, or a non-intercourse act, or an embargo be enacted, or a" }, { "docid": "23182776", "title": "", "text": "be upheld as a permanent change.” Block v. Hirsch, 1921, 256 U.S. 135, 157, 41 S.Ct. 458, 460, 65 L.Ed. 865, 16 A.L.R. 165. Furthermore, the Act does not require the landlord to continue his property in the market for housing accommodations. Section 4(d) of the Act provides: “Nothing in this Act shall be construed to require any person to sell any commodity or to offer any accommodations for rent.” In accordance with this statutory provision, the regulation now in question provides that a landlord may evict a tenant whose lease has expired if he “seeks in good faith not to offer the housing accommodations for rent.” The landlord is thus free to occupy the property himself, or devote it to some commercial enterprise, or utilize it in any other way. This serves to emphasize that there has been no “taking” of his property in the constitutional sense. The proper test of constitutionality, we think, is the more general one applicable where legislation is challenged under the due process clause as constituting an arbitrary and capricious exercise of a granted power. In Cafhoun v. Massie, 1920, 253 U.S. 170, 175, 40 S.Ct. 474, 476, 64 L.Ed. 843, it is stated: “An appropriate exercise by a state of its police power is consistent with the Fourteenth Amendment although it results in serious depreciation of property values; and the United ■ States may, consistently with the Fifth Amendment, impose for a permitted purpose restrictions upon property which produce like results.” Complainants do not question the power of Congress to control rents as part of a war-time anti-inflation program. The validity under the due process clause of the method of rent control which Congress has authorized cannot be judged apart from a consideration of the practical necessities of administration. Jacob Ruppert v. Caffey, 1920, 251 U.S. 264, 299, 301, 40 S.Ct. 141, 64 L.Ed. 260. “The Constitution as a continuously operating charter of government does not demand the impossible or the impractical.” Hirabayashi v. United States, June 21, 1943, 63 S.Ct. 1375, 1387, 87 L.Ed. —. In Nebbia v. New York, 1934, 291" }, { "docid": "14051412", "title": "", "text": "in Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688, to regulate the prices of certain commodities; in Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165, to control rents.” Nordbye, J., in United States v. C. Thomas Stores, Inc., D.C.Minn., February 26, 1943, 49 F. Supp. 111, 113. Additional instances of exercise of the war powers sustained by the courts include the present Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. See opinions of Judge Hincks in United States v. Friedman, D.C.Conn.March 25, 1943, 50 F.Supp. 584, and United States v. Sosnowitz & Lotstein, Inc., et al., D.C.Conn. March 25, 1943, 50 F.Supp. 586; and see United States v. Wright, D.C.Del.1943, 48 F.Supp. 687; Henderson v. Byran, D.C. Cal.1942, 46 F.Supp. 682; United States v. C. Thomas Stores, Inc., et al., supra, and the anti-prostitution statute of World War I, Act May 18, 1917, § 13, 40 Stat. 83, 50 U.S.C.A. § 226 note, McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668. Article I, Section 8, of the Constitution of the United States grants to the Congress the powers, in clause 1 — “To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States * * in clause 11,. “To declare War, * * in clause 12, “To raise and support Armies, * * * ” - in clause 13, “To provide and maintain a Navy * * in clause 18, “To make-all Laws which shall be necessary and' proper for carrying into Execution the foregoing Powers, and all other Powers-vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Whatever construction we place on-clause 1, plainly ample authority is granted' in the other clauses cited to sustain the-control over the allocation of materials for defense placed in the President by the Second War Powers Act of 1942. The power existing, are the means used" }, { "docid": "11206863", "title": "", "text": "It was made applicable to existing contracts and subcontracts upon which it is an exercise of that same power to wage war which permits the government to control the price of every commodity bought and sold within the national boundaries (Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834); to fix the amount or rent to be charged for every room, home, or building and this even though to an individual landlord there may be less than a fair return (Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892); to construct extensive systems of public works (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688); to operate railroads (Northern Pacific R. Co. v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897) ; to prohibit the sale of liquor (Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194) ; to restrict freedom of speech in a manner that would be unwarranted in time of peace (Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); to ration and allocate the distribution of every commodity important to the war effort (Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350) ; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion (Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774); and, finally, to demand of every citizen that he serve in the armed forces of the nation (Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas. 856). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of" }, { "docid": "4167107", "title": "", "text": "being the trustee of the chattel for the benefit of creditors of the bankrupt, he is trustee of the chose in action for its loss. Here, the statute authorizing the requisition provides an exclusive remedy which the bankrupt, if solvent, would have had to pursue, and which the trustee, in his stead, must follow. Is the Determination of Necessity Reviewable ? The statute authorizes the President to make requisitions whenever he determines that'the need is immediate and that “all other means of obtaining the use of such property * * * upon fair and reasonáble terms have been exhausted.” Such determination must also be made by the authorities to whom the President has delegated his power. The appellant challenges the truth of the statements to this effect in the petition to the court and in the requisition proposal. It is claimed that the property could have been acquired by the government by submitting bids at the sale of the estate’s assets which was to be held by the receiver and that, in fact, a bid of $132,300 had been submitted by Simmonds Aerocessories, Inc., financed by the government through the Defense Plant Corporation. The statute vested in the executive, in the exercise of his discretion, the power to make the determinations required. That determination has been made here and is not to be reviewed by us. The scope for the exercise of judgment and discretion by the President and Congress to meet the exigencies of war is a wide one and it is not for the courts to sit in review of the action taken in organizing war effort at home or the operation of armed forces in direct contact with the enemy. Hirabayashi v. United States of America, 1943, 63 S.Ct. 1375, 87 L.Ed.-. This principle was applied where a requisition made during the last war by the executive arm of the government pursuant to Congressional authorization was attacked as in excess or abuse of discretion. Dakota Central Telephone Company v. State of South Dakota, 1919, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623. Similar" }, { "docid": "2844939", "title": "", "text": "the local regulations. I am of the opinion that it does not. Section 1521(b) of the Act specifically provides for both “permanent” and “temporary” construction. The Constitution invests in Congress the power to prepare for and to wage war successfully, and it is within the power of Congress to determine that which must be done to accomplish this purpose. If Congress determines that permanent houses are necessary, that is a proper exercise of its powers, and it is not for the court to say that temporary buildings are more desirable or that permanent buildings will not aid in prosecuting the war to a successful conclusion. The limitations on the exercise of the war powers, and the extent of Congress’ discretion thereunder were carefully considered in Highland v. Russell Car & Snowplow Co., 1929, 279 U.S. 253, at page 261, 49 S.Ct. 314, at page 316, 73 L.Ed. 688, where the Supreme Court said: “Under the Constitution and subject to the safeguards there set for the protection of life, liberty, and property (Ex parte Milligan, 4 Wall. 2, 121, 18 L.Ed. 281; Hamilton v. Kentucky Distilleries [& Warehouse] Co., 251 U.S. 146, 155, 40 S.Ct. 106, 64 L.Ed. 194; United States v. L. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045), the Congress and the President exert the war power of the nation, and they have wide discretion as to the means to be employed successfully to carry on (Miller v. Robertson, 266 U.S. 243, 248, 45 S.Ct. 73, 69 L.Ed. 265; United States v. Chemical Foundation, 272 U.S. 1, 10, 47 S.Ct. 1, 71 L.Ed. 131). The measures here challenged are supported by a strong presumption of validity, and they may not be set aside tmless clearly shown to be arbitrary and repugnant to the Constitution. Adkins v. Children’s Hospital, supra, 261 U.S. [525], 544, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238.” Particularly appropriate is the statement of Judge Learned Hand, in Dryfoos v. Edwards, D.C.S.D.N.Y. 1919, 284 F. 596, at page 600, affirmed Ruppert v. Caffey, 251 U.S. 264," }, { "docid": "15304316", "title": "", "text": "commission need not be considered; for it is clear that it is only on the allegations of want of statutory or constitutional authority that the suit against the commissioners as individuals could under any theory be sustained.” The question was squarely before the Supreme Court in Dakota Central Tel. Co. v. South Dakota, supra, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, which involved the taking over of the telephone companies by the President under a statute enacted under the war power. It was argued that the action of the President was an abuse of the discretion vested in him as the war had virtually ended and the action taken was not for the purpose of prosecuting the war but for regulating telephone rates. See argument 250 U.S. at page 177. In disposing of this contention the Court, speaking through Chief Justice White, said (250 U.S. 163, at page 184, 39 S.Ct. 507, 509, 63 L.Ed. 910, 4 A.L.R. 1623): “The proposition that the President in exercising the power exceeded the authority given him is based upon two considerations : First, because there was nothing in the conditions at the time the power was exercised which justified the calling into play of the authority; indeed, the contention goes further and assails the motives which it is asserted induced the exercise of the power. But as the contention at best concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. This must be since, as this court has often pointed out, the judicial may not invade the legislative or executive department so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.” (Italics ours.) The fact that the competition which will result from the project may have some effect upon plaintiff’s rates cannot affect the validity of the action of the Administrator any more than his motives. It is true, of course, that neither Congress nor the Administrator may do" }, { "docid": "4167108", "title": "", "text": "of $132,300 had been submitted by Simmonds Aerocessories, Inc., financed by the government through the Defense Plant Corporation. The statute vested in the executive, in the exercise of his discretion, the power to make the determinations required. That determination has been made here and is not to be reviewed by us. The scope for the exercise of judgment and discretion by the President and Congress to meet the exigencies of war is a wide one and it is not for the courts to sit in review of the action taken in organizing war effort at home or the operation of armed forces in direct contact with the enemy. Hirabayashi v. United States of America, 1943, 63 S.Ct. 1375, 87 L.Ed.-. This principle was applied where a requisition made during the last war by the executive arm of the government pursuant to Congressional authorization was attacked as in excess or abuse of discretion. Dakota Central Telephone Company v. State of South Dakota, 1919, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623. Similar decisions already have been made in this war under the statute in question. In re Inland Waterways, Inc., D.C.Minn. 1943, 49 F.Supp. 675; Alpirn v. Huffman, D.C. Neb. 1943, 49 F.Supp. 337. But even if the action taken were reviewable, appellant has not shown that there was an abuse of discretion. The apparent purpose of the statute is to assure that urgently needed property shall be obtained by the government quickly and upon reasonable terms. Purchase by competitive bidding, which appellant suggests could have been made, is obviously hostile to the ends sought. There is not only a lack of certainty that the property will be purchased upon reasonable terms but absence of any assurance that it will be obtained at all. Payment of Compensation. There remains one point to which even appellant accords but a casual treatment. It is that under the statute and Fifth Amendment of the Constitution compensation for the property taken had to be determined and paid before the requisition was made. However, the Fifth Amendment does not require the ascertainment" }, { "docid": "176775", "title": "", "text": "to fulfill private contracts whose performance presumed their continued possession and employment of such property and facilities. United States v. McFarland, 4 Cir., 15 F.2d 823, 826, which declares the general rule that: “The President, as Commander-in-Chief of the Army and Navy, doubtless had the constitutional power in war time, in cases of immediate and pressing exigency, to appropriate private property to public uses; the government being bound to make just compensation therefor.” See also Manufacturers’ Land & Improvement Co. v. U. S. Shipping Board Emergency Fleet Corporation, 264 U.S. 250, 44 S.Ct. 314, 68 L.Ed. 664; Roxford Knitting Co. v. Moore & Tierney, 2 Cir., 265 F. 177, 11 A.L.R. 1415; United States v. Gordin, D.C., 287 F. 565; United States v. Stein, D.C., 48 F.2d 626; Mawhinney v. Millbrook Woolen Mills, 105 Misc. 99, 172 N.Y.S. 461; Id., 231 N.Y. 290, 132 N.E. 93, 15 A.L.R. 1506; Richmond Fairfield Ry. Co. v. Llewellyn, 156 Va. 258, 157 S.E. 809, 162 S.E. 601; Northern Pac. Ry. Co. v. State of North Dakota, ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Central Tel. Co. v. State of South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. The existence of an emergency warranting the legislation presently involved can not be denied. It has already been pointed out that the comprehensive National Defense Act in force during the last previous World War was enacted more than ten months prior to the actual onset of formal warfare. In that respect there is a similarity between the two measures. They were deliberately and prudently anticipatory of probably impending hostilities which actually eventuated. Confirmatory reenacting amendment of the present act has occurred since the declaration of the presently persisting state of war. At this point, for it touches upon the factor of military emergency, mention may be made, without amplification, of the impact upon this issue, of the modern technological revolution in warfare and communication. Defensive" }, { "docid": "14051410", "title": "", "text": "morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary, sense of that term; prices.of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” United States v. Macintosh, 1931, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302. Judge Nordbye in his opinion in a recent case has pointed out some instances of exercise of the war power of the Congress upheld by the courts in the past. “Congress drafts soldiers to fight the Nation’s battles, and it can also, with constitutional limitations, regulate and draft the resources of the Nation. The Supreme Court has already spoken on this question. In Northern Pacific Railroad Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it has upheld the power to take over and operate the railroads; in Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, to take over and operate telegraph and telephone systems; in Moore & Tierney, Inc., v. Roxford Knitting Company, 2 Cir., 265 F. 177, 11 A.L.R. 1415, certiorari denied 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032, to place compulsory orders for materials required for national defense; in Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, to draft manpower for service in the armed forces; in Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260, to prohibit the manufacture or sale of alcoholic beverages;" } ]

[ { "docid": "670739", "title": "", "text": "allow the massage of the private parts, as defined, for hire, or in other words, to operate a house of ill repute by hand. It is unquestionable that the basic motivation for such an ordinance is the desire to prohibit certain sexual practices performed for hire and deemed unacceptable in light of community standards of morality. Such legislation in the field of public morality and decency, for example, the laws prohibiting prostitution, has long been a part of every state’s criminal code. The exercise of the police power for the general welfare of the public is a right reserved to the states by the Tenth Amendment to the Constitution. The State of North Carolina has delegated general ordinance making power to its municipalities so that they may prohibit acts deemed to be detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the municipality. N.C.G.S. § 160A-174 (See appendix to order of July 18, 1975). Section 13-31 is a legitimate and proper exercise of the police power, and this Court will not sit as a superlegislature, attempting to decide what is in the general welfare of the public. To do otherwise, when a statutory enactment does not offend the Constitution, would be to judicially usurp the legislative function. The position was stated most appropriately in Ciándolo v. Members of City Coundl of Knoxville, Tenn., 376 F.Supp. 719, 724 (E.D.Tenn.1974): Additionally, there is nothing to prevent the City from regulating the particulars of massage establishments through more specific and less blanket-type prohibitions under examination here. For. example, the City could prohibit the establishment, subject to licensing, from employing persons convicted of certain crimes; revoke a license of a licensee convicted of a crime involving sexual misbehavior ; revoke a license of licensee whose employee was convicted of sexual misbehavior; regulate the hours during which a massage establishment could lawfully operate; prohibit the administering of massages in private areas, prohibit the massaging of restricted areas of the body; and subject massage parlors to inspection by the City. (Latter emphasis added). The plaintiffs next claim that the" } ]

[ { "docid": "11691498", "title": "", "text": "to relinquish those functions. Notably, Hodel confirms that Congress may forbid states from regulating certain major aspects of land use — there, surface mining' — unless they promulgate regulations consistent with federal standards. 452 U.S. at 288, 101 S.Ct. 2352. Judge Niemeyer simply ignores Hodel altogether and cites no Supreme Court — or any other — precedent for the proposition that, when exercising its powers under the Commerce Clause, Congress may not displace states’ power to carry out their “traditional” or “core” government functions. However, the Supreme Court did announce a rule nearly identical to this position in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In National League of Cities, the Court concluded that certain amendments to the Fair Labor Standards Act (FLSA) violated the Tenth Amendment to the extent that they subjected state employers to federal minimum wage and maximum hours restrictions. The Court held that the structure of our federal system of government prevented Congress from overriding state authority in this traditionally state-controlled field: We hold that insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional government functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3. Id. at 852, 96 S.Ct. 2465 (emphasis added). However, this rule of National League of Cities has been expressly overruled by the Supreme Court. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). In overruling National League of Cities, the Court disavowed the precise rule Judge Niemeyer would revive today: We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is “integral” or “traditional.” Garcia, 469 U.S. at 546-47, 105 S.Ct. 1005. Nevertheless, Judge Niemeyer invokes — in various formulations — the “traditional function” standard that Garcia rejected: “Because application of § 704(a) ... would require us to overrule the will of Nottoway County" }, { "docid": "4930607", "title": "", "text": "of the law. However, two recent Supreme Court cases are helpful in analyzing defendants’ Tenth Amendment argument. In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Supreme Court held unconstitutional amendments to the Fair Labor Standards Act which made the Act applicable to the wage and hour policies of state and local governments. The Court stated, “[I]nsofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Article I, § 8, cl. 3.” 426 U.S. at 851, 96 S.Ct. at 2474, 49 L.Ed.2d at 257-58. The broad language of Usery was narrowed substantially in Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The facts of Hodel are very different from the case at bar. Hodel dealt with provisions of the Surface Mining Act. However, Hodel is important because it laid down three requirements which must be met before a violation of the Tenth Amendment is shown: First, there must be a showing that the challenged statute regulates the “States as States.” (Cite omitted) Second, the federal regulation must address matters that are indisputably “attributes of state sovereignty.” (Cite omitted) And third, it must be apparent that the States’ compliance with federal law would directly impair their ability “to structure integral operations in areas of traditional functions.” Id. at 287, 101 S.Ct. at 2366, 69 L.Ed.2d at 23. The Court did not elaborate on these requirements, and gave little indication of what was needed to meet them. The Court did state, however, that a statute would not violate the Tenth Amendment if it regulated only “ ‘individuals and businesses necessarily subject to the dual sovereignty of the government of the Nation and the State in which they reside.’ ” Id. at 293, 101 S.Ct. at 2369, 69 L.Ed.2d at 26. Neither Usery nor Hodel was an antitrust case. However, the concept of Tenth Amendment restraint on federal regulation can have applicability" }, { "docid": "4753001", "title": "", "text": "eleventh amendments to the United States Constitution. The Commissioner relies on the United States Supreme Court decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) and its progeny in challenging the constitutionality of the automatic stay under the tenth amendment. In National League of Cities, the Supreme Court held that Congress had exceeded its congressional power under the commerce clause of the United States Constitution by extending the statutory minimum wage and maximum hours provisions of the Fair Labor Standards Act to state and local governments. The Supreme Court found that Congress’ attempt to impose minimum wage and maximum hour requirements on the States “operate[d] to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” National League of Cities v. Usery, 426 U.S. at 852, 96 S.Ct. at 2474. The Commissioner contends that this same analysis should apply with equal force to the exercise of Congressional power under the bankruptcy clause of the United States Constitution. However, the Supreme Court in National League of Cities held that the tenth amendment restricted Congress’ power to act under the commerce clause, not the bankruptcy clause. The Court specifically declined to address the issue of whether Congress could affect integral operations of state government by exercising authority granted it under other sections of the Constitution. National League of Cities v. Usery, 426 U.S. at 852 n. 17, 96 S.Ct. at 2474 n. 17. As the Supreme Court recently recognized, “there are situations in which the nature of the federal interest advanced may be such that it justifies State submission.” Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 288 n. 29, 101 S.Ct. 2352, 2366 n. 29, 69 L.Ed.2d 1, 23 n. 29 (1981). The exercise of the Congressional bankruptcy power in the instant case represents such an overriding federal interest. In upholding the constitutionality of the discharge provisions of 11 U.S.C. § 523(a)(5)(A) against a tenth amendment challenge, the Second Circuit Court of Appeals expressed grave doubts as to whether the tenth amendment limitations set" }, { "docid": "7726937", "title": "", "text": "cannot constitutionally be applied to state governmental entities because of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). National League of Cities held that insofar as the 1974 amendments to the Fair Labor Standards Act extending the Act’s minimum wage provision to state employees “operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3.” Id. at 852, 96 S.Ct. at 2474. Determination of minimum wages and maximum hours were held to be reserved to the states and their subdivisions as employers under the Tenth Amendment as “functions essential to [their] separate and independent existence.” Id. at 845, 96 S.Ct. at 2471. Thus, “employers” for purposes of the minimum wage law do not include states or their subdivisions. Appellant urges that National League of Cities be extended to bar the application of the Equal Pay Act amendments to state employers. In essence, appellant’s argument is that since the minimum wage provision and equal pay provision are both in the Fair Labor Standards Act, the coverage of the two provisions is co-extensive. Since states and their subdivisions are not “employers” for purposes of the minimum wage provision, the argument continues, neither should they be “employers” for purposes of the Equal Pay Act. Two federal district courts have adopted this position. Usery v. Owensboro-Daviess County Hospital, 423 F.Supp. 843, 846 (W.D.Ky.1976); Howard v. Ward County, 418 F.Supp. 494, 500 (D.N.D.1976). Appellant’s argument overlooks the severability clause in the Fair Labor Standards Act: If any provision of this chapter or the application of such provision to any person or circumstance is held invalid, the remainder of this chapter and the application of such provision to other persons or circumstances shall not be affected thereby. 29 U.S.C. _ § 219 (1976). In construing a similar provision in the Public Utility Act of 1935, the Supreme Court stated: This provision reverses the presumption of inseparability [and] establishes] the opposite presumption of divisibility. Congress has thus said" }, { "docid": "6284899", "title": "", "text": "may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal- system. Fry v. United States, 421 U.S. 542, 547 n.7, 95 S.Ct. 1792, 1795-96, 44 L.Ed.2d 363 (1975) (citation omitted). Appellants argue that the principles of federalism inherent in the tenth amendment as articulated in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), require us to invalidate the .extension of the reemployment provisions of the Act to state and local governments. In National League of Cities, the Court recognized that the tenth amendment prohibited an otherwise valid exercise of congressional power because Congress had attempted “to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Id. at 852, 96 S.Ct. at 2474. At issue was the validity of the 1974 amendments to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(d), (s)(5), (x) (1976), which extended the FLSA’s minimum wage and maximum hour provisions to almost all employees of states and their political subdivisions. While recognizing that the commerce power under article I is a grant of plenary authority to Congress, the Court distinguished the regulation of private activity from the regulation of states, finding the latter constrained by the constitutional considerations of federalism embodied in the tenth amendment. Because the 1974 amendments would “imper-missibly interfere with the integral governmental functions” of the states and their political subdivisions, 426 U.S. at 851, 96 S.Ct. at 2474, the attempted extension of the FLSA was not within the authority granted Congress by the commerce clause. We are faced with interpreting National League of Cities in the context of an otherwise valid exercise by Congress of its war power. This issue was specifically left unresolved in a footnote to the plurality opinion by Justice Rehnquist, although the footnote attempts to distinguish the war power: It also seems appropriate to note that Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552 (1946), has not been overruled as the dissent asserts. Indeed that decision . ." }, { "docid": "21907537", "title": "", "text": "case is whether the Authority’s activities constitute “traditional governmental functions.” In National League of Cities the Supreme Court held that Congress lacked the power under the Commerce Clause of the Federal Constitution, Art. I, § 8, cl. 3 — read in light of the Tenth Amendment (which reserves undele-gated powers “to the States respectively or to the people”) — to apply the FLSA to certain “public agencies.” Recently, in United Transportation Union v. Long Island R.R., -U.S.-,-, 102 S.Ct. 1349, 1353, 71 L.Ed.2d 547 (1982), a unanimous Supreme Court described its holding in National League of Cities as follows: [W]e held that Congress could not impose the requirements of the Fair Labor Standards Act on state and local governments. . . . Prior to 1974, the Act excluded most governmental employers. However, in that year Congress amended the law to extend its provisions in somewhat modified form to “public agencies,” including state governments and their political subdivisions. We held that the 1974 amendments were invalid “insofar as [they] operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions. ...” 426 U.S. at 852, 96 S.Ct. at 2474. (Emphasis supplied.) In National League of Cities itself, the Court explained the notion of “traditional governmental functions,” when it wrote of its concern about the impact of the FLSA on “the States’ abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation.” 426 U.S. at 851, 96 S.Ct. at'2474. The Court noted that “[tjhese activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services.” Id. And, it added that “[tjhese examples are obviously not an exhaustive catalogue of the numerous line and support activities which are well within the area of traditional operations of state and local governments.” 426 U.S. at 851 & n.16, 96 S.Ct. at 2474 & n.16. We are also helped by considering cases in lower courts. Instances in which a function has been considered “integral” or “traditional”" }, { "docid": "2580781", "title": "", "text": "833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Court found unconstitutional the 1974 amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., which had extended to almost all employees of state governments and their political subdivisions the minimum wage and maximum hours provision of the Act. Justice Rehnquist’s opinion for the Court recognized that although the 1974 amendments were within the scope of Congressional power under the Commerce Clause, 426 U.S. at 840-41, 96 S.Ct. at 2469, the Tenth Amendment and general principles of federalism operated to invalidate legislation under the Commerce Clause that would “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Id. at 852, 96 S.Ct. at 2474. Justice Blackmun, as the fifth member of the majority, made clear in his concurrence that federal power could still be exercised notwithstanding concerns over state sovereignty where the federal interests are “demonstrably greater” and state compliance is essential. Id. at 856, 96 S.Ct. at 2476 (Blackmun, J., concurring). Subsequently, in a decision upholding the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq., against a Tenth Amendment challenge, Ho-del v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), a majority on the Supreme Court made clear that sufficiently strong federal interests can override a Tenth Amendment claim under the National League of Cities doctrine. The Court first enumerated three conditions which are each necessary to a claim of Tenth Amendment invalidity, drawing upon National League of Cities: “First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute^] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’ ” Hodel, 452 U.S. at 287-88, 101 S.Ct. at 2365-66. Nonetheless, “Demonstrating that these three requirements are met does not ... guarantee that a Tenth Amendment challenge" }, { "docid": "6251967", "title": "", "text": "program is an integral and traditional state governmental function. The DPW bases that argument on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In National League of Cities, the United States Supreme Court held that the Fair Labor Standards Act, which regulates minimum wages and maximum hours, could not be constitutionally extended to state and local governments. The Supreme Court found that the Commerce Clause of the United States Constitution does not give Congress the power to enact legislation “directly displacing] the States’ freedom to structure integral operations in areas of traditional governmental functions” which the Court held included employer-employee relationships in programs traditionally conducted by the States. Id. at 851-52, 96 S.Ct. at 2474. The DPW asserts that the same rationale applies to the instant case. Therefore, it contends that, because the application of § 522(f)(1) to avoid its liens would unduly frustrate the Commonwealth’s welfare system, it would be unconstitutional to apply that section to those liens. We disagree with the DPW’s reliance on National League of Cities for several reasons. First, that case dealt only with the power of Con gress under the Commerce Clause and not with the power of Congress under any other part of the Constitution such as the Bankruptcy Clause. In several cases decided since National League of Cities, the Supreme Court has held that Congress’ power under other portions of the Constitution may not he limited by considerations of federalism. Even if the analysis of National League of Cities is applicable to limit the power of Congress under the Bankruptcy Clause, however, we must conclude that the Tenth Amendment does not bar the application of § 522(f)(1) to avoid the liens of the DPW. In applying the analysis of National League of Cities to the instant case, we must make a three-step inquiry. First, we must determine whether the administration of welfare is an integral state governmental function. If it is, we must then determine whether § 522(f)(1) directly displaces the state’s decision-making function in its welfare program. If there is a direct displacement," }, { "docid": "7726936", "title": "", "text": "(1976). Defendants filed a motion to dismiss the Equal Pay Act claim for failure to state a claim, urging that the Age Discrimination in Employment Act and the Equal Pay Act did not apply to state hospitals by virtue of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). The motion was denied and the case proceeded to trial. After the court denied defendants’ motion for directed verdict, the jury found no liability under the Age Discrimination in Employment Act but did find liability under the Equal Pay Act and awarded $7460 in damages. The court denied defendants’ motion for judgment notwithstanding the verdict. On December 7, 1976, the district court entered judgment against Wichita General Hospital on the jury verdict, awarding $7460 in actual damages, an equal amount in liquidated damages pursuant to 29 U.S.C. §§ 216(b), 260 (1976), and $4500 in attorney’s fees and costs. The action was dismissed as to the individual defendants. The ' appellant hospital’s threshold argument is that the Equal Pay Act cannot constitutionally be applied to state governmental entities because of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). National League of Cities held that insofar as the 1974 amendments to the Fair Labor Standards Act extending the Act’s minimum wage provision to state employees “operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3.” Id. at 852, 96 S.Ct. at 2474. Determination of minimum wages and maximum hours were held to be reserved to the states and their subdivisions as employers under the Tenth Amendment as “functions essential to [their] separate and independent existence.” Id. at 845, 96 S.Ct. at 2471. Thus, “employers” for purposes of the minimum wage law do not include states or their subdivisions. Appellant urges that National League of Cities be extended to bar the application of the Equal Pay Act amendments to state employers. In essence, appellant’s argument is that" }, { "docid": "5010797", "title": "", "text": "of action in the nature of a tort for the violation of a statutory duty. Accordingly, we find that the doctrine abrogating a city’s liability for torts fails to immunize the city from Section 12(2) liability. Even if the immunity doctrine were applicable, the city’s conduct here was arguably of a proprietary nature and dismissal would be inappropriate. See discussion of tort immunity for state claims, infra. The City of Pittsburg also contends that the Tenth Amendment to the Constitution protects it from the application of the federal securities laws. The Tenth Amendment provides: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Supreme Court held in National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976) that the Tenth Amendment acts as a limitation upon the federal government’s power under the commerce clause, Art. I, § 8 of the Constitution, insofar as federal regulations “operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions . . . .” Usery dealt with the validity of the 1974 amendments to the Fair Labor Standards Act that purported to extend the coverage of the act to employees of cities and states. The five member majority of the Court stressed that the propriety of federal regulation of state conduct is dependent upon whether the state conduct involves functions essential to the state’s separate and independent existence. Examples of these integral functions include fire prevention, police protection, sanitation, public health, and parks and recreation. While the listing is not exhaustive the Court stated, “it is functions such as these which governments are created to provide, services such as these which the States have traditionally afforded their citizens.” The Court considered the increased costs that would be incurred, whether a state would be forced to relinquish important governmental activities and whether the federal regulations interfered with policy choices of government officials. In his concurring opinion Justice Blackmun stated that he" }, { "docid": "15740870", "title": "", "text": "735 (1922). B. National League of Cities The PUCs argue that regulation of air carriers is such an integral and important aspect of state life that the federal government’s preemption of this state regulation interferes with the state’s sovereignty guaranteed by the tenth amendment. They cite National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) for this proposition. In National League of Cities, the Supreme Court invalidated an attempt by Congress to prescribe minimum wages and maximum hours to be paid by the states as employers. The Court held that Congress acted beyond its authority under the Commerce Clause, U.S.Const. Art. I, § 8, cl. 3, and violated the tenth amendment by “wield[ing] its power in a fashion that would impair the States’ ‘ability to function effectively in a federal system’ or displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Id. at 852, 96 S.Ct. at 2474. (citation omitted). The Court in National League of Cities cited as examples of basic. governmental services “fire prevention, police protection, sanitation, public health, and parks and recreation.” Id. at 851, 96 S.Ct. at 2474. Other governmental services have since been held to be integral governmental functions. Inclusion within this category has been evaluated on a case-by-case basis. The PUCs argue that state regulation of air transportation is an integral governmental function. We disagree. There is little difference between state regulation of air transportation and state regulation of railroad transportation. In United States v. California, 297 U.S. 175, 184, 56 S.Ct. 421, 424, 80 L.Ed. 567 (1936), the court stated, “[t]he power of a state to fix intrastate railroad rates must yield to the power of the national government when their regulation is appropriate to the regulation of interstate commerce.” This holding was expressly approved in the majority opinion of National League of Cities, the court stating “[tjhere, California’s activity to which the congressional command was directed, was not in an area that the states have regarded as integral parts of their governmental activities.” 426 U.S. at 854 n.18, 96 S.Ct." }, { "docid": "13812187", "title": "", "text": "public employees, also repealed the special overtime exemption for mass transit personnel. See 29 U.S.C. § 213(b)(7) (1970 ed. Supp. IV). The Supreme Court addressed the constitutionality of these amendments in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In National League, individual states, cities, and organizations brought suit against the Secretary of Labor to test the validity of the 1974 amendments extending the statutory minimum wage and maximum hours provisions to employees of states and their political subdivisions. Acknowledging that traditional governmental activities which affect interstate commerce would be within the reach of congressional power under the Commerce Clause if performed by private entities, the Court stressed, however, that the tenth amendment imposes an affirmative limitation on the exercise of the commerce power. The Court stated that Congress cannot, consistent with the tenth amendment, enact legislation which de prives the states of those attributes “ ‘essential to [their] separate and independent existence.’ ” National League, 426 U.S. at 847, 96 S.Ct. at 2472 (quoting Coyle v. Smith, 221 U.S. 559, 580, 31 S.Ct. 688, 695, 55 L.Ed. 853 (1911)). The Court held that “insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by art. I § 8, Cl. 3.” 426 U.S. at 852, 96 S.Ct. at 2474 (footnote omitted). As examples of integral governmental functions, the Court listed fire prevention, police protection, sanitation, public health, and parks and recreation. The Court noted that “[t]hese examples are obviously not an exhaustive catalogue of the numerous line and support activities which are well within the area of traditional operations of state and local governments.” 426 U.S. at 851 n. 16, 96 S.Ct. at 2474 n. 16. By specifically overruling Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), the National League Court implicitly included public schools and hospitals as examples of other traditional operations of state and local governments. The Supreme Court summarized its holding in National League" }, { "docid": "4930606", "title": "", "text": "overlap to a certain extent. A defendant who seeks to invoke the state action exemption must meet a heavy burden. Once “clear articulation and affirmative expression” and “active state supervision” have been shown, the defendant has established that its actions are essentially the actions of the state itself. A finding that the defendant has met the requirements of the state action exemption should at least alert the Court that there are also Tenth Amendment rights involved. The ambulance service regulations at issue here were enacted to protect the health of the citizens of the State of Missouri and the City of Kansas City. As such, these regulations fall within the broad concept of “police power.” Kleid v. Board of Education of Fulton, 406 F.Supp. 902 (W.D. Ky.1976). The exercise of the police power for the general public welfare is a right reserved to the states and their subdivisions by the Tenth Amendment. Brown v. Brannon, 399 F.Supp. 133, 147 (M.D.N.C.1975), aff’d per curiam, 535 F.2d 1249 (4th Cir. 1976). This is largely an uncharted area of the law. However, two recent Supreme Court cases are helpful in analyzing defendants’ Tenth Amendment argument. In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Supreme Court held unconstitutional amendments to the Fair Labor Standards Act which made the Act applicable to the wage and hour policies of state and local governments. The Court stated, “[I]nsofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Article I, § 8, cl. 3.” 426 U.S. at 851, 96 S.Ct. at 2474, 49 L.Ed.2d at 257-58. The broad language of Usery was narrowed substantially in Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The facts of Hodel are very different from the case at bar. Hodel dealt with provisions of the Surface Mining Act. However, Hodel is important because it laid down three requirements which must" }, { "docid": "3296634", "title": "", "text": "has the same source of congressional authority. Because the FLSA amendments were declared unconstitutional in National League of Cities, the Department argues that the ADEA amendment, as part of the legislation enacting the FLSA amendments, should likewise fail. Our analysis of the legislative history indicates that passage of the 1974 amendment to the ADEA was firmly within the ambit of congressional authority under § 5 of the Fourteenth Amendment, and that the connection of the ADEA amendment to the legislation enacting FLSA amendments was largely fortuitous. Even were we to accept the Department’s contention that the 1974 amendment was passed under the Commerce Clause, however, we would not find the amendment in conflict with the Tenth Amendment. The crux of this argument is the application of National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In that case the Court held unconstitutional the 1974 amendments to the FLSA extending coverage of the Act to state and local government employees. “[I]nsofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3.” Id. at 852, 96 S.Ct. at 2474 (emphasis added). In analyzing the 1974 FLSA amendments, the Court not only determined that setting the wages and hours of employment was an attribute of state sovereignty, but also found that the state’s determinations in this area are “functions essential to separate and independent existence.” Id. at 845, 96 S.Ct. at 2471. The crucial nature of state control in this area was tied to the impact of wage and hour determinations on the delivery of traditional, essential governmental services. The Court examined the potential effect of the FLSA, and particularly focused on increased costs, modifications of programs, and reduced delivery of services. Id. at 846-48, 96 S.Ct. at 2471-72. The Court found this dramatic impact would “impermissibly interfere with the integral governmental functions of these bodies” and would “significantly alter or displace the States’ abilities to structure employer-employee relationships.” Id." }, { "docid": "2580780", "title": "", "text": "its powers, is supreme within its sphere of action.” Thus, the Tenth Amendment has typically been understood as a rule of construction, simply reserving to the states any residual powers which the federal government cannot without pretext claim as either enumerated or implied, and which are not barred to government at any level by express constitutional proscriptions. See, e.g., McCulloch, 17 U.S. (4 Wheat.) at 406, 421, 423. See also 2 J. Story, Commentaries on the Constitution §§ 1907-08 (2d ed. 1851): “It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgement of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those which are granted.” Recently, the Supreme Court has articulated a new reading of the Tenth Amendment where Congress has legislated under the Commerce Clause. In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Court found unconstitutional the 1974 amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., which had extended to almost all employees of state governments and their political subdivisions the minimum wage and maximum hours provision of the Act. Justice Rehnquist’s opinion for the Court recognized that although the 1974 amendments were within the scope of Congressional power under the Commerce Clause, 426 U.S. at 840-41, 96 S.Ct. at 2469, the Tenth Amendment and general principles of federalism operated to invalidate legislation under the Commerce Clause that would “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Id. at 852, 96 S.Ct. at 2474. Justice Blackmun, as the fifth member of the majority, made clear in his concurrence that federal power could still be exercised notwithstanding concerns over state sovereignty where the federal interests are “demonstrably greater” and state compliance is essential. Id. at 856, 96 S.Ct. at 2476 (Blackmun, J., concurring). Subsequently, in a" }, { "docid": "22630281", "title": "", "text": "(1980). See also Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 743, 96 S.Ct. 1848, 1851, 48 L.Ed.2d 338 (1976). Similarly, the States do not dispute that the power of the Court under Section 4 of the Sherman Act, 15 U.S.C. § 4, to “prevent and restrain” violations of the statute is broad enough to encompass the decree proposed by the parties in this case. Their argument bypasses these general constitutional and antitrust principles to rely instead on certain specific aspects of the exercise of federal antitrust power, as follows. 1. Tenth Amendment Several States assert—citing National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976)—that the proposed decree would unconstitutionally invade powers reserved to them under the Tenth Amendment. In that case, the Supreme Court held that Congress was foreclosed from extending minimum wage and maximum hour employment standards to persons employed by the States themselves, ruling (426 U.S. at 851-52, 96 S.Ct. at 2474) that activities in areas such as fire prevention, police protection, sanitation, public health, and parks and recreation .... are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services. Indeed, it is functions such as these which governments are created to provide, services such as these which the States have traditionally afforded their citizens. If Congress may withdraw from the States the authority to make those fundamental employment decisions upon which their systems for performance of these functions must rest, we think there would be little left of the States’ ‘separate and independent existence.’ . .. [T]he dispositive factor is that Congress has attempted to exercise its Commerce Clause authority to prescribe minimum wages and maximum hours to be paid by the States in their capacities as sovereign governments.... We hold that insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3. (footnotes omitted). The" }, { "docid": "4930605", "title": "", "text": "and short response time to the scene of emergency. This is governmental action motivated by concern for public health and safety and is active supervision in interaction with state authorization. We thus conclude that the actions of Kansas City were authorized by clearly articulated and affirmatively expressed state policy and that there is active state supervision, both by the state itself and by the City, of the anticompetitive regulation. This satisfies the requirements of the state action exemption. For these reasons, summary judgment must be granted for defendants Kansas City and MAST on plaintiffs’ Sherma Act claims. III. Tenth Amendment Although we have determined that Kansas City’s actions are exempted by the Parker doctrine, we consider it important to discuss briefly Kansas City’s second major argument in favor of the validity of its ambulance service ordinance. Kansas City contends that the federal antitrust laws, as applied to it, impermissibly intrude on its regulation of its own affairs, thereby violating the Tenth Amendment to the United States Constitution. The state action exemption and the Tenth Amendment overlap to a certain extent. A defendant who seeks to invoke the state action exemption must meet a heavy burden. Once “clear articulation and affirmative expression” and “active state supervision” have been shown, the defendant has established that its actions are essentially the actions of the state itself. A finding that the defendant has met the requirements of the state action exemption should at least alert the Court that there are also Tenth Amendment rights involved. The ambulance service regulations at issue here were enacted to protect the health of the citizens of the State of Missouri and the City of Kansas City. As such, these regulations fall within the broad concept of “police power.” Kleid v. Board of Education of Fulton, 406 F.Supp. 902 (W.D. Ky.1976). The exercise of the police power for the general public welfare is a right reserved to the states and their subdivisions by the Tenth Amendment. Brown v. Brannon, 399 F.Supp. 133, 147 (M.D.N.C.1975), aff’d per curiam, 535 F.2d 1249 (4th Cir. 1976). This is largely an uncharted area" }, { "docid": "15752201", "title": "", "text": "the ideals of competition and free markets embodied in the Sherman Act and the principles of federalism contained in the Tenth and Eleventh Amendments. In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Supreme Court reviewed the limits imposed by the Tenth Amendment upon Congressional authority to regulate state governmental activities under its commerce clause power. The Court held that Congress could not “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions. .. . ” Id. at 852, 96 S.Ct. at 2474. Various courts have since used and refined the National League of Cities test to determine which of the multitude of local governmental activities are insulated from federal regulation. See, e. g. Amersbaeh v. City of Cleveland, 598 F.2d 1033 (6th Cir. 1979) (operation of metropolitan airport an integral governmental function; “terms ‘traditional’ or ‘integral’ are to be given a meaning permitting expansion to meet changing times”); United Transportation Union v. Long Island Ry. Co., 634 F.2d 19 (2d Cir. 1980) (provision of commuter rail service an integral governmental function; “not only is [rail service] essential to the public, but it is also essential that the government step in to furnish it”). Although the scope of Tenth Amendment limitations on affirmative congressional action is narrow, Tenth Amendment values should not be narrowly read when Congress has not expressly or by clear implication displaced a traditional exercise of local police power. Since solid waste, disposal including the regulation of garbage collection, incineration and “recycling” is a customary area of local concern long reserved to state and local governments by practice, tradition and legal precedent, the Sherman Act should not apply. Tenth and Eleventh Amendment values support the authority of local governments to act in this field. Their plenary, governmental power to deal with such local problems affecting the public interest should not be preempted or displaced by general statutory policies favoring an economic model of competition for businessmen and industrialists operating in private markets. Finally, there is a policy argument that even if defendants may" }, { "docid": "17522115", "title": "", "text": "of the involuntary retirements, there was a conflict in the case law about its meaning. I find this assertion unpersuasive. The Authority had a right to rely upon the statute and its construction of the statute was ultimately determined by the Supreme Court to be the correct one. What the Secretary is suggesting is that in any area subject to debate, one should resolve all doubts in favor of the construction least favorable to one’s own interests. I find no such requirement. Giving consideration to the nature of the rights involved and the substantial impact of retroactive application of the prohibition against pre-age 65 retirements, I consider it unlikely that Congress intended that retroactive effect be given to this portion of the 1978 amendments. Cf. Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975). III. THE MOTION TO DISMISS. The defendant argues that application of the ADEA to the defendant would violate the Tenth Amendment, relying on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) and Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Court held that the 1974 amendments to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., which extended the minimum wage law and overtime provisions of the Act to almost all State employees, was an unconstitutional exercise of Congress’ power under the commerce clause because it impinged on the States’ freedom to carry out their own traditional governmental functions, in violation of the Tenth Amendment. Each of the cases I have discovered discussing the application of the National League of Cities principle to the ADEA concluded that the Tenth Amendment does not preclude application of the Act to the States. See Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977); Remmick v. Barnes County, 435 F.Supp. 914 (D.N.D.1977); Usery v. Board of Education of Salt Lake City, 421 F.Supp. 718 (D.Utah 1976); Aaron v. Davis, 424 F.Supp. 1238 (E.D.Ark.1976)." }, { "docid": "21895119", "title": "", "text": "Johnson, 597 F.2d 174, 179 (9th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 450, 62 L.Ed.2d 376 (1979). See also Jones v. Rath Packing Co., 430 U.S. 519, 525-26, 97 S.Ct. 1305, 1309-10, 51 L.Ed.2d 604 (1977); United States v. Brown, 552 F.2d 817, 821 (8th Cir.), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977). The military reserve retirement pay program was enacted pursuant to Congress’s power to raise and maintain armies and a navy. U.S. Const, art. 1, § 8, els. 12 and 13. Because the state statute is in conflict with the federal statute implementing that purpose, we agree with the district court that the federal legislation must prevail. The County’s second argument, which relies on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), is that even if section 1336 is interpreted as conflicting with the California statutes, it is invalid as an infringement of the state’s rights under the tenth amendment to the United States Constitution. In Usery the Court considered the 1974 amendments to the Fair Labor Standards Act, which extended the Act’s minimum wage and maximum hour provisions to almost all employees of states and their political subdivisions. The Court held that the amendments directly displaced “the States’ freedom to structure integral operations in areas of traditional governmental functions,” (i. e., the State’s power to determine the wages it will pay to its employees, what hours the employees will work and how they will be compensated for overtime) and were, therefore, “not within the authority granted Congress by Art. I, § 8, cl. 3 [the Commerce Clause].” Id. at 852, 96 S.Ct. at 2474 (footnote omitted). The Court specifically limited its holding to the power of Congress under the Commerce Clause by stating: We express no view as to whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such as the spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth" } ]

[ { "docid": "12386840", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge. Plaintiffs, purchasers of the common stock of defendant Crazy-Eddie, Inc. (Crazy Eddie), brought this action against Crazy Eddie and various of its former officers, directors, accountants, and underwriters. The consolidated and amended complaint (the complaint) asserts claims under the Securities Act of 1933 (the Securities Act), 15 U.S.C. § 77a et seq. (1982 & Supp. Iv 1986), the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78a et seq. (1982 & Supp. IV 1986), the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986), and state law. The complaint alleges, inter alia, that the defendants made or aided and abetted the making of materially false and misleading statements and omissions in connection with three public offerings of Crazy Eddie securities and with the sale of Crazy Eddie securities in general, causing plaintiffs to purchase the securities at a higher price than they would have paid if the truth about Crazy Eddie had been known. Plaintiffs seek to represent themselves and purchasers (except defendants) of Crazy Eddie securities between March 20, 1985 and January 18, 1988 (the Class Period). Various defendants now move to dismiss the complaint for failure to state a claim or for failure to plead fraud with particularity. Crazy Eddie cross-claimed against defendants Eddie Antar, Sam Antar, Mitchell Antar, Eddy Antar, Sam E. Antar, Solomon E. Antar, David V. Panoff, Isaac Kairey, Steve Pasquariello, William H. Saltzman, James H. Scott, Jr., Edmond Levy, Carl G. Zimel, and David Pardo (the individual defendants), all former officers or directors of Crazy Eddie, for violations of RICO, breach of their fiduciary duties of loyalty and care, and indemnification. Crazy Eddie also cross-claimed against Peat Mar-wick Main & Co. (Peat Marwick), its former accountant, for breach of contract and of its duty of due care. The cross-claim defendants move to dismiss or stay the cross-claims. In addition, Crazy Eddie impleaded Allen Antar, Jean Cocchiara, Eddie H. Gindi, Abraham Grinberg, and Kathleen G. Morin, all former employees, for civil conspiracy under RICO and state law" } ]

[ { "docid": "14552465", "title": "", "text": "U.S.C. § 1961 et seq. (1982 & Supp. IV 1986), and state law. The First Complaint asserted, among other things, that the defendants made or aided and abetted the making of materially false and misleading statements and omissions in connection with three public offerings of Crazy Eddie securities and with the sale of Crazy Eddie securities in general, causing plaintiffs to purchase the securities at a price higher than they would have paid had the truth about Crazy Eddie been known. In substance the First Complaint asserted the following. Crazy Eddie, a New York corporation founded by Eddie Antar and controlled by the Antar family, first sold shares to the public in September 1984. Between that time and November 1987, although not in all cases throughout that period, the individual defendants were its directors or officers. During that period defendant Peat Marwick Main & Co. (Peat Marwick) and its predecessor certified the financial statements that Crazy Eddie filed with the Securities and Exchange Commission (SEC) and disseminated to the public. Crazy Eddie made three public offerings of securities underwritten by defendants Oppenheimer & Co., Inc. (Oppenheimer), Wertheim & Co., Inc. (Wertheim), Bear, Stearns & Co., Inc. (Bear Stearns) and Salo-mon Brothers, Inc. (Salomon). Crazy Eddie offered shares of common stock in March of 1985 and 1986, and convertible subordinated debentures in June of 1986. The First Complaint described the alleged participation of the defendants in (1) material misstatements and omissions in registration statements and prospectuses, (2) the employment of devices, schemes, and artifices to defraud and the making of material misstatements and omissions falsely assuring investors of Crazy Eddie’s strong financial condition, and (3) the commission of violations of RICO. The court will not repeat its earlier description of the detailed facts alleged. The Complaint, filed in October 1989, is in substantial part identical to the First Complaint, but also asserts (1) new claims under the Exchange Act, RICO, and state law regarding Crazy Eddie’s first public offering of stock in September 1984; (2) new claims under the Securities Act, the Exchange Act, RICO, and state law as to private" }, { "docid": "575847", "title": "", "text": "plaintiffs move to amend their complaint. Their proposed complaint, styled as the “Fourth Supplemental Amended and Consolidated Complaint,” newly alleges that defendants Peat Marwick Main & Co. and KMG Main Hurdman (now merged and referred to collectively as “Peat Marwick”) violated sections 1962(c) and 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq., and makes additional changes to reflect previous rulings of this court. Plaintiffs Entertainment Marketing, Inc. and Elias Zinn move to amend their complaint (the “EMI/Zinn Complaint”). The proposed complaint (i) adds a RICO claim against Peat Marwick and other individual defendants, (ii) broadens the previously asserted claim of common law fraud to encompass Peat Marwick and adds a demand for punitive damages, (iii) broadens the negligence claims to encompass certain individual defendants, (iv) eliminates one claim, and (v) drops certain defendants from other claims. Peat Marwick cross-moves for summary judgment on the negligence and negligent misrepresentation claim alleged in the EMI/Zinn Complaint. Numerous memoranda and orders of this court have recounted the facts of this litigation. The court assumes familiarity with its previous published memoranda and orders dated December 30, 1988, Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988); June 16, 1989, In re Crazy Eddie Sec. Litig., 714 F.Supp. 1285 (E.D.N.Y.1989); June 19, 1990, In re Crazy Eddie Sec. Litig., 740 F.Supp. 149 (E.D.N.Y.1990); September 19, 1990, In re Crazy Eddie Sec. Litig., 747 F.Supp. 850 (E.D.N.Y.1990); March 6, 1991, In re Crazy Eddie Sec. Litig., 135 F.R.D. 39 (E.D.N.Y.1991); May 1, 1992, In re Crazy Eddie Sec. Litig., 792 F.Supp. 197 (E.D.N.Y.1992) (the “May 1992 Order”); and September 4, 1992, In re Crazy Eddie Sec. Litig., 802 F.Supp. 804 (E.D.N.Y.1992) (the “September 1992 Order”). I RICO Claims Against Peat Marwick The court considers together the motions of the class plaintiffs and the EMI/Zinn plaintiffs to add RICO claims against Peat Marwick. A The substance of these claims is that Alphonse Ferrara, the former Peat Mar-wick partner who supervised or substantially participated in that firm’s audit of Crazy Eddie financial statements for the years ending 1985, 1986 and" }, { "docid": "4978267", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge: Numerous memoranda and orders have recounted the facts of this litigation. The court assumes familiarity with its previous published memoranda and orders dated December 30, 1988, Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988) (the 1988 Order); June 16, 1989, In re Crazy Eddie Sec. Litig., 714 F.Supp. 1285 (E.D.N.Y.1989) (the 1989 Order); June 19, 1990, In re Crazy Eddie Sec. Litig., 740 F.Supp. 149 (E.D.N.Y.1990) (the June 1990 Order); September 19, 1990, In re Crazy Eddie Sec. Litig., 747 F.Supp. 850 (E.D.N.Y.1990) (the September 1990 Order); March 6, 1991, In re Crazy Eddie Sec. Litig., 135 F.R.D. 39 (E.D.N.Y.1991) (the 1991 Order); and May 1, 1992, In re Crazy Eddie Sec. Litig., 792 F.Supp. 197 (E.D.N.Y.1992) (the May 1992 Order). The court has before it motions by various defendants for partial summary judgment of the claims brought against them under Section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, as well as common law claims for fraud and negligent misrepresentation. In its May 1992 Order the court reserved decision on these issues pending argument on the constitutionality of a relevant statute. Also before the court is a motion for summary judgment by defendant Peat Marwick Main & Co. (Peat Marwick) on its cross-claim against defendant Sam E. An-tar. There are also motions by Peat Mar-wick directed to claims in Crazy Eddie, Inc. v. Peat Marwick Main & Co., the Adversary Proceeding brought in the United States Bankruptcy. Court for the Southern District of New York. That proceeding has been transferred to this’ court and consolidated for pre-trial purposes with this litigation. I THE FRAUD CLAIMS Peat Marwick, Wertheim Schroder & Co., Inc. (Wertheim), Bear Stearns & Co. (Bear Stearns), Salomon Brothers, Inc. (Salomon), and Oppenheimer & Co., Inc. (Oppenheimer) seek dismissal of the claims against them under Section 10(b) of the Exchange Act, Rule 10b-5, and principles of common law fraud and negligent misrepresentation, to the extent those claims are based upon (a) a September 13, 1984 public offering of Crazy Eddie stock underwritten by Oppenheimer, (b)" }, { "docid": "4978301", "title": "", "text": "Marwick. Crazy Eddie urges as it did on its own negligence and fraud claims that the actions of Crazy Eddie agents should not be imputed to the corporation. The rule of imputation addresses the unfairness of a corporation suing a third party for injuries caused by the corporation's own agents on its behalf. But the adverse interest exception does not prevent Peat Marwick from making a claim against Crazy Eddie for any fraud perpetrated upon Peat Marwick or any breach of contractual rights it had. For those purposes, under general principles of agency law, Crazy Eddie is liable for its agents’ fraud “though the agent acts solely to benefit himself, if the agent acts with apparent authority.” American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 566, 102 S.Ct. 1935, 1942, 72 L.Ed.2d 330 (1982). Thus Crazy Eddie is liable on the counterclaims for any fraudulent conduct of its agents. There remain the issues of fact whether Peat Marwick reasonably relied on the representations of Crazy Eddie management and whether it should have engaged in further investigation of the company’s financial condition. The motion of Peat Marwick for summary judgment is denied. IV. SUMMARY The court decides the pending motions as follows: i) The Fraud Claims. The court finds that the 1991 amendment to Section 27 A of the Securities Exchange Act is constitutional. Defendants’ motion for partial summary judgment with respect to the Section 10(b) and Rule 10b-5 claim is denied. Defendants’ motion for summary judgment on the common law fraud and negligent misrepresentation claims is granted. ii) Peat Marwick’s Cross-Claim against Sam E. Antar. The motions of Peat Mar-wick and Antar for summary judgment on Peat Marwick’s cross-claims against Antar for fraud or contribution are denied. iii) The Adversary Proceeding. Crazy Eddie’s claim for fraudulent conveyance is dismissed with leave to replead. Peat Mar-wick’s motion for summary judgment on Crazy Eddie’s negligence and contract claims is denied. Peat Marwick’s motion for summary judgment on its counterclaim against Crazy Eddie is denied. So ordered." }, { "docid": "19710880", "title": "", "text": "as a defendant in the Exchange Act count but it is mentioned in the allegations under that count. Because Penn & Horowitz will be prejudiced by plaintiffs’ unreasonable and unjustifiable delay in repleading the Exchange Act claim, and because the Third Complaint does not fairly alert Penn & Horowitz as to whether plaintiffs intended to plead an Exchange Act claim against it, plaintiffs may not amend the Second Complaint to include Penn & Horowitz. Plaintiffs may use their New Complaint to raise any claims they have against this defendant. The court will allow plaintiffs to apply for leave to file a properly pleaded RICO claim against Peat Marwick under 18 U.S.C. § 1962(c), with sufficient and specific allegations of the requisite predicate acts of mail or wire fraud. A RICO claim against Peat Marwick would be insufficient if based on predicate acts of “fraud in the sale of securities,” 18. U.S.C. § 1961(1)(D), because Peat Marwick did not engage in the sale of securities. In re Par Pharmaceutical Inc., Sec. Litig., 733 F.Supp. 668, 684 (S.D.N.Y.1990). Plaintiffs say they recently discovered new information supporting the RICO claim against Peat Marwick. In their brief they say that depositions of defendants James Scott, Jr. and William Saltzman revealed for the first time that Peat Marwick partner A1 Ferrara made what plaintiffs believe are affirmative misrepresentations to the Crazy Eddie Audit Committee of the Board of Directors relating to a purported investigation of transactions by Crazy Eddie. Plaintiffs also say in their brief dated December 13, 1991 that further investigation “within the last month” revealed that Ferrara discovered the fabrication of the product sales by category figures included in the prospectus for the March 1986 offering, but represented to defendants Bear Stearns, Wertheim, and Salomon that those figures were reliable and accurate. Peat Marwick had notice of the facts that give rise to this alleged RICO claim because it relates to the fraud and other claims set forth in the Second Complaint. The only new fact is that Ferrara, a Peat Marwick partner, “actually knew” of the fraud committed by Eddie Antar and" }, { "docid": "14552464", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge. The court has before it motions to dismiss portions of the “second amended consolidated and supplemental complaint,” referred to hereafter as “the Complaint.” The court dismissed parts of an earlier pleading, the “consolidated and amended complaint” (hereafter called “the First Complaint), by Memoranda and Orders dated December 30, 1988, Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988) (“the December Order”), and June 16, 1989, In re Crazy Eddie Securities Litigation, 714 F.Supp. 1285 (E.D.N.Y.1989) (“the June Order”). The court assumes familiarity with those decisions. The First Complaint alleged claims by plaintiffs, as purchasers of the common stock of defendant Crazy Eddie, Inc. (Crazy Eddie), against Crazy Eddie and various of its former officers, directors, accountants, and underwriters. That pleading invoked the Securities Act of 1933 (the Securities Act), 15 U.S.C. § 77a et seq. (1982 & Supp. IY 1986), the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78a et seq. (1982 & Supp. IV 1986), the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986), and state law. The First Complaint asserted, among other things, that the defendants made or aided and abetted the making of materially false and misleading statements and omissions in connection with three public offerings of Crazy Eddie securities and with the sale of Crazy Eddie securities in general, causing plaintiffs to purchase the securities at a price higher than they would have paid had the truth about Crazy Eddie been known. In substance the First Complaint asserted the following. Crazy Eddie, a New York corporation founded by Eddie Antar and controlled by the Antar family, first sold shares to the public in September 1984. Between that time and November 1987, although not in all cases throughout that period, the individual defendants were its directors or officers. During that period defendant Peat Marwick Main & Co. (Peat Marwick) and its predecessor certified the financial statements that Crazy Eddie filed with the Securities and Exchange Commission (SEC) and disseminated to the public. Crazy Eddie made three public" }, { "docid": "19710862", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge: There have now been nine actions filed in this court by the various plaintiffs alleging violations of law concerning Crazy Eddie, Inc., a now bankrupt electronics retailer. The court has before it motions to dismiss all or some part of the complaints brought under the Securities Act of 1933 (the Securities Act), 15 U.S.C. § 77a et seq., the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78a et seq., the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and state law. Plaintiffs also appeal from a discovery order of Magistrate Judge Carter. The court assumes familiarity with its previous published memoranda and orders dated December 30, 1988, Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988) (the 1988 Order); June 16, 1989, In re Crazy Eddie Sec. Litig., 714 F.Supp. 1285 (E.D.N.Y.1989) (the 1989 Order); June 19, 1990, In re Crazy Eddie Sec. Litig., 740 F.Supp. 149 (E.D.N.Y.1990) (the June 1990 Order); September 19, 1990, In re Crazy Eddie Sec. Litig., 747 F.Supp. 850 (E.D.N.Y.1990) (the September 1990 Order); and March 6, 1991, In re Crazy Eddie Sec. Litig., 135 F.R.D. 39 (E.D.N.Y.1991) (the 1991 Order). I The first complaint with which the court dealt was styled “consolidated and amended complaint,” Bernstein v. Crazy Eddie, Inc., 87-CV-33, and will be called the First Complaint. It alleged claims by plaintiffs, as purchasers of the common stock of defendant Crazy Eddie, Inc. (Crazy Eddie), against Crazy Eddie and various of its former officers, directors, accountants, and underwriters. That pleading invoked the Securities Act of 1933 (the Securities Act), 15 U.S.C. § 77a et seq. (1982 & Supp. IV 1986), the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78a et seq. (1982 & Supp. IV 1986), the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986), and state law. The First Complaint asserted, among other things, that defendants made or aided and abetted the making of materially false and misleading statements and omissions in connection" }, { "docid": "575848", "title": "", "text": "litigation. The court assumes familiarity with its previous published memoranda and orders dated December 30, 1988, Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988); June 16, 1989, In re Crazy Eddie Sec. Litig., 714 F.Supp. 1285 (E.D.N.Y.1989); June 19, 1990, In re Crazy Eddie Sec. Litig., 740 F.Supp. 149 (E.D.N.Y.1990); September 19, 1990, In re Crazy Eddie Sec. Litig., 747 F.Supp. 850 (E.D.N.Y.1990); March 6, 1991, In re Crazy Eddie Sec. Litig., 135 F.R.D. 39 (E.D.N.Y.1991); May 1, 1992, In re Crazy Eddie Sec. Litig., 792 F.Supp. 197 (E.D.N.Y.1992) (the “May 1992 Order”); and September 4, 1992, In re Crazy Eddie Sec. Litig., 802 F.Supp. 804 (E.D.N.Y.1992) (the “September 1992 Order”). I RICO Claims Against Peat Marwick The court considers together the motions of the class plaintiffs and the EMI/Zinn plaintiffs to add RICO claims against Peat Marwick. A The substance of these claims is that Alphonse Ferrara, the former Peat Mar-wick partner who supervised or substantially participated in that firm’s audit of Crazy Eddie financial statements for the years ending 1985, 1986 and 1987, knew about or deliberately disregarded obvious evidence of material misrepresentations in Crazy Eddie financial statements and intentionally concealed fraud from its directors, underwriters, and investors. 1. Allegations common to both complaints The two complaints allege, in substance, the following. (a) Failure to investigate discovered inventory fraud in 1985. In the course of Ferrara’s first annual audit in 1985, he learned that Crazy Eddie inventory tickets and count sheets at three separate stores were physically altered, inflating the company’s inventory by more than $1 million. He spoke to Eddie Antar who explained that the alterations must have been made by a disgruntled employee and not by management. Ferrara accepted this explanation, adjusted the inventory to reverse the effect of the known alterations, and took no further steps to ascertain whether the fraud was wider than the known alterations. Ferrara failed to broaden the scope of Peat Marwick’s inventory audit in 1986, despite his discovery of attempted fraud the year before. As a result, according to the EMI/Zinn Complaint, Ferrara overlooked a scheme devised by Eddie" }, { "docid": "19710869", "title": "", "text": "of court, filed what they called a third amended and consolidated complaint (the Third Complaint). Five days thereafter plaintiffs filed a new action, Bernstein v. Antar, 91-CV-4450, making allegations in the complaint (the New Complaint) virtually identical to those in the Third Complaint. The most recent case, Crazy Eddie, Inc. v. Peat Marwick Main & Co., 92-CV-75, was transferred to this court from the United States Bankruptcy Court for the Southern District of New York, where the Crazy Eddie bankruptcy proceeding is pending. In that action Crazy Eddie as debtor and debtor in possession seeks to recover from its accountant Peat Marwick for fraudulent conveyance, breach of contract and negligence. The court has before it motions addressed to the Second Complaint and made before the filing of the Third Complaint and the New Complaint, as well as motions directed to the latter complaints. The court will discuss first the motions relating to the Second Complaint. II MOTIONS FOR SUMMARY JUDGMENT Peat Marwick, Wertheim, Bear Stearns, Salomon and Oppenheimer move for partial summary judgment dismissing the claims against them under (1) Sections 11 and 12(2) of the Securities Act, (2) Section 10(b) of the Exchange Act and Rule 10(b)-5 of the rules promulgated thereunder, and (3) principles of common law fraud and negligent misrepresentation. A. THE SECURITIES ACT CLAIMS Section 11 provides in pertinent part that if any part of a registration statement “contain[s] an untrue statement of a material fact or omit[s] to state a material fact required ... to make the statements therein not misleading,” any person acquiring such security may sue every person who was an accountant named as having certified any part of the statement as to which suit is brought, or who was an underwriter with respect to the security. 15 U.S.C. § 77k. Section 12(2) of the Securities Act provides, in part, that any person who offers or sells a security “by means of a prospectus” that “includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances" }, { "docid": "19710864", "title": "", "text": "with three public offerings of Crazy Eddie securities, two offerings of stock, one in March 1985 and one in March 1986, and one offering of debentures in 1986, and in connection with the sale of Crazy Eddie securities in general, causing plaintiffs to purchase the securities at a price higher than they would have paid had the truth about Crazy Eddie been known. In substance the allegations were that Crazy Eddie, a New York corporation founded by Eddie Antar and controlled by his family, first sold shares to the public in September 1984. Between that time and November 1987, although not in all cases throughout that period, the individual defendants were its directors or officers. During that period defendant Peat Marwick Main & Co. (Peat Marwick) and its predecessor certified the financial statements that Crazy Eddie filed with the Securities and Exchange Commission (SEC) and disseminated to the public. Crazy Eddie made three public offerings of securities underwritten by defendants Oppenheimer & Co. (Oppenheimer), Wer-theim Schroder & Co. (Wertheim), Bear, Stearns & Co. (Bear Stearns) and Salomon Brothers, Inc. (Salomon). Crazy Eddie offered shares of common stock in March of 1985 and 1986, and convertible subordinated debentures in June of 1986. The First Complaint described defendants’ alleged participation in (1) material misstatements and omissions in registration statements and prospectuses, in violation of Sections 11 and 12 of the Securities Act, (2) the employment of devices, schemes, and artifices to defraud and the making of material misstatements and omissions falsely assuring investors of Crazy Eddie’s financial condition, in violation of state law and Section 10(b) of the Exchange Act and Rule 10(b)-5 adopted under it, and (3) the commission of violations of RICO. In 1988 those who purchased Crazy Eddie in 1987 filed a separate complaint against Peat Marwick and various individuals associated with Crazy Eddie during the time of the alleged fraud. Oppenheimer-Palmieri Fund v. Peat Marwick, 88-CV-3481. That complaint made claims similar to those alleged in the First Complaint under the Securities and Exchange Acts and state law and joined as defendants Peat Marwick and various prior officers and" }, { "docid": "575908", "title": "", "text": "such as the 1987 Crazy Eddie financial statement, are subject to review under section 10(b) of the 1934 Act. In Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), the Supreme Court held that a private action against accountants would not lie under section 10(b) in the absence of an allegation of “ ‘scienter’ — intent to deceive, manipulate, or defraud.” Id. at 193, 96 S.Ct. at 1381. While most Courts of Appeal have decided that reckless conduct can satisfy the scienter requirement, see, e.g., Sirota v. Solitron Devices, Inc., 673 F.2d 566, 575 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80 (1982), none has held that negligence satisfies the requirement. The court concludes that the Texas Supreme Court would not disturb the balance struck by the federal securities regulatory scheme which conforms the level of liability to the degree of culpability. 3. The court holds that the Texas Supreme Court would find that under Texas law Peat Marwick owed no duty of care to major open-market purchasers of Crazy Eddie securities, even though Peat Mar-wick could foresee that such “players” would rely on its audits and opinions. Peat Marwick’s motion for partial summary judgment on the negligence and negligent misrepresentation claim is granted. IV Conclusion The court decides the pending motions as follows: (i)The EMI/Zinn Complaint. The EMI/Zinn plaintiffs’ motion to amend the complaint is granted. The court strikes the RICO and fraud claims against Sam M. Antar without prejudice. The EMI/Zinn plaintiffs shall have twenty days from the date of this order to apply for leave to amend the RICO, securities fraud, and common law fraud claims against the individual defendants. (ii) The Class Complaint. The motion to amend the Class Complaint to add a RICO claim against Peat Marwick is undecided, pending further briefing by the parties on whether class plaintiffs have standing under section 1964(c). (iii) The Negligence Claims. Peat Mar-wick’s motion for summary judgment with respect to the negligence and negligent misrepresentation claim in the EMI/Zinn Complaint is granted. So ordered." }, { "docid": "19710863", "title": "", "text": "Litig., 747 F.Supp. 850 (E.D.N.Y.1990) (the September 1990 Order); and March 6, 1991, In re Crazy Eddie Sec. Litig., 135 F.R.D. 39 (E.D.N.Y.1991) (the 1991 Order). I The first complaint with which the court dealt was styled “consolidated and amended complaint,” Bernstein v. Crazy Eddie, Inc., 87-CV-33, and will be called the First Complaint. It alleged claims by plaintiffs, as purchasers of the common stock of defendant Crazy Eddie, Inc. (Crazy Eddie), against Crazy Eddie and various of its former officers, directors, accountants, and underwriters. That pleading invoked the Securities Act of 1933 (the Securities Act), 15 U.S.C. § 77a et seq. (1982 & Supp. IV 1986), the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C. § 78a et seq. (1982 & Supp. IV 1986), the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986), and state law. The First Complaint asserted, among other things, that defendants made or aided and abetted the making of materially false and misleading statements and omissions in connection with three public offerings of Crazy Eddie securities, two offerings of stock, one in March 1985 and one in March 1986, and one offering of debentures in 1986, and in connection with the sale of Crazy Eddie securities in general, causing plaintiffs to purchase the securities at a price higher than they would have paid had the truth about Crazy Eddie been known. In substance the allegations were that Crazy Eddie, a New York corporation founded by Eddie Antar and controlled by his family, first sold shares to the public in September 1984. Between that time and November 1987, although not in all cases throughout that period, the individual defendants were its directors or officers. During that period defendant Peat Marwick Main & Co. (Peat Marwick) and its predecessor certified the financial statements that Crazy Eddie filed with the Securities and Exchange Commission (SEC) and disseminated to the public. Crazy Eddie made three public offerings of securities underwritten by defendants Oppenheimer & Co. (Oppenheimer), Wer-theim Schroder & Co. (Wertheim), Bear, Stearns & Co. (Bear Stearns)" }, { "docid": "575846", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge: This civil litigation arises from the allegedly fraudulent and negligent conduct of Eddie Antar and his relatives and the officers, directors, auditors, underwriters, employees, and vendors of the consumer electronics retailer Crazy Eddie, Inc. (“Crazy Eddie”) (now in bankruptcy). The various complaints in the case have alleged, in summary, that from 1980 through 1987, Eddie Antar, founder of Crazy Eddie, together with numerous relatives and associates, engaged in a series of spectacularly bold schemes designed falsely to portray Crazy Eddie as a thriving commercial enterprise so that investors would buy shares in it and those shares would sell at an inflated price. According to the proposed amendment to the class action eom-plaint in In re Crazy Eddie Sec. Litig. (the “Class Complaint”), Eddie Antar realized cash proceeds of $72,245,649, his father Sam M. Antar realized $16,857,332, and other family members and associates realized lesser amounts. In this opinion the court refers to this series of schemes collectively as the “Crazy Eddie Fraud.” The court addresses three motions. The class plaintiffs move to amend their complaint. Their proposed complaint, styled as the “Fourth Supplemental Amended and Consolidated Complaint,” newly alleges that defendants Peat Marwick Main & Co. and KMG Main Hurdman (now merged and referred to collectively as “Peat Marwick”) violated sections 1962(c) and 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq., and makes additional changes to reflect previous rulings of this court. Plaintiffs Entertainment Marketing, Inc. and Elias Zinn move to amend their complaint (the “EMI/Zinn Complaint”). The proposed complaint (i) adds a RICO claim against Peat Marwick and other individual defendants, (ii) broadens the previously asserted claim of common law fraud to encompass Peat Marwick and adds a demand for punitive damages, (iii) broadens the negligence claims to encompass certain individual defendants, (iv) eliminates one claim, and (v) drops certain defendants from other claims. Peat Marwick cross-moves for summary judgment on the negligence and negligent misrepresentation claim alleged in the EMI/Zinn Complaint. Numerous memoranda and orders of this court have recounted the facts of this" }, { "docid": "14552468", "title": "", "text": "of the Exchange Act, and state law against many of the defendants named in the First Complaint for misconduct relating to the sale of the debentures. The court treats Schwebel’s class action as consolidated with that of plaintiffs for purposes of discovery, but will address claims raised in that complaint here. Several individual defendants — Eddy An-tar, Solomon E. Antar, Edmond Levy, Steve Pasquariello, Carl G. Zimel, and Isaac Kairey — move to dismiss portions of the Schwebel Complaint and the Complaint. The underwriters Oppenheimer, Wertheim, Bear Stearns, and Salomon, and also Peat Marwick have, by letter, joined in the individual defendants’ motions. Penn & Horowitz moves to dismiss the Complaint. The default entered against Eddie Antar (Antar) has made his motion moot. I. Motions to Dismiss After Answer Plaintiffs argue that because a motion to dismiss a complaint for failure to state a claim “shall be made before pleading if a further pleading is permitted,” Fed.R. Civ.P. 12(b), the court should not consider the letters of the underwriters and Peat Marwick submitted after the filing of answers. The letters are sufficient to join in the motions. Defendants did not waive arguments by filing answers. The court treats their motions as made pursuant to Rule 12(h)(2) for judgment on the pleadings. See C.A. Wright & A.R. Miller, Federal Practice and Procedure, § 1361 at 444 (1990); Zebrowski v. Denckla, 630 F.Supp. 1307, 1308 n. 1 (E.D.N.Y.1986). II. The Securities Act Counts I through IV of the Complaint and Count I and II of the Schwebel Complaint allege violations of the Securities Act. Count I of the Complaint says that Eddy (distinguished from Eddie) Antar, Zimel, Oppenheimer, and Peat Marwick, and other individual defendants, violated Section 11 of the Securities Act, 15 U.S.C. § 77k, by making misleading statements in the registration statements for the March 13, 1985 offering of Crazy Eddie shares and for the offerings of stock by Oppenheimer under the December 1985 and March 1986 Oppenheimer Prospectuses (the Oppenheimer Sales). Count II claims Zimel and other individual defendants, and Peat Marwick, Wer-theim, Bear Stearns, and Salomon committed similar" }, { "docid": "575866", "title": "", "text": "the fraudulent fináncial statements mailed or communicated by wire by Crazy Eddie in the ordinary course of business, with the knowledge and consent of Peat Marwick. Specifically it states that on May 2, 1985, Peat Marwick issued a financial statement for a two year period ending May 31, 1984 and a nine month period ending March 3, 1985. This report was reproduced with Peat Marwick’s knowledge and consent in a March 1986 prospectus used in connection with the public offering of Crazy Eddie securities. Peat Marwick issued a report dated May 1, 1986 regarding Crazy Eddie’s financial status as of March 2, 1986 and March 3, 1985. This report was reproduced with Peat Mar-wick’s knowledge and consent in a June 1986 prospectus. On June 15, 1987, Crazy Eddie filed with the Securities and Exchange Commission (the “SEC”) its Form 10-K for the year ended March 1, 1987. The EMI/Zinn Complaint alleges somewhat less precisely that in furtherance of the Crazy Eddie Fraud, Crazy Eddie used the United States postal service in 1986 and 1987 to mail copies of (i) Form 10-Q and Form 10-K to the SEC, (ii) annual reports on Form 10-K to Company shareholders, (iii) Form S-l to all investors in various public offerings, and (iv) earnings releases and other press releases to a variety of news organizations and securities analysts. Peat Marwick has argued that the complaints are deficient because they fail, first, to allege specific mailing dates, receipt dates, and other details, and, second, to explain how Peat Marwick “caused” such mailings or wire communications. Peat Marwick seemingly concedes that annual filings and prospectuses of publicly-traded companies are broadly distributed through the United States mail and, even at the time of this fraud, through interstate computer and electronic wire communication. There is no point in requiring plaintiffs to plead in greater detail the particulars of such mailing and wire communications. Peat Marwick has been informed of what was sent, by whom, to whom, the approximate dates, and how such statements are said to be false. Peat Marwick needs no more in order to frame a defense;" }, { "docid": "19710865", "title": "", "text": "and Salomon Brothers, Inc. (Salomon). Crazy Eddie offered shares of common stock in March of 1985 and 1986, and convertible subordinated debentures in June of 1986. The First Complaint described defendants’ alleged participation in (1) material misstatements and omissions in registration statements and prospectuses, in violation of Sections 11 and 12 of the Securities Act, (2) the employment of devices, schemes, and artifices to defraud and the making of material misstatements and omissions falsely assuring investors of Crazy Eddie’s financial condition, in violation of state law and Section 10(b) of the Exchange Act and Rule 10(b)-5 adopted under it, and (3) the commission of violations of RICO. In 1988 those who purchased Crazy Eddie in 1987 filed a separate complaint against Peat Marwick and various individuals associated with Crazy Eddie during the time of the alleged fraud. Oppenheimer-Palmieri Fund v. Peat Marwick, 88-CV-3481. That complaint made claims similar to those alleged in the First Complaint under the Securities and Exchange Acts and state law and joined as defendants Peat Marwick and various prior officers and directors of Crazy Eddie. The complaint asserted that between May and October 1987 the Oppenheimer-Palmieri plaintiffs, in reliance on misleading statements and omissions of defendants made in 1986 and 1987, bought substantial amounts of Crazy Eddie stock and were damaged as a result. In May 1989 the Oppenheimer-Palmieri case was consolidated for pre-trial purposes with Bernstein v. Crazy Eddie, Inc., and the consolidated action bears the title In re Crazy Eddie Securities Litigation. In 1988 and 1989 three new complaints were filed by purchasers of Crazy Eddie common stock. Krim v. Crazy Eddie, 88-CV-1592; Stepak v. Crazy Eddie, 88-CV- 1593; Abrams v. Crazy Eddie, 89-CV-1640. Those complaints alleged claims similar to those stated in the First Complaint. In addition, on January 17, 1989 James R. Schwebel, an alleged purchaser of the June 1986 debentures during the class period, filed a separate class action, Schwebel v. Crazy Eddie, Inc., 89-CV-165 (the Schwebel Complaint). Schwebel alleged claims under Sections 11 and 12 of the Securities Act, Sections 10(b) and 20 of the Exchange Act, and state law" }, { "docid": "12386847", "title": "", "text": "Eddie’s inventory was to offset and conceal the “nehkdi” sales. Peat Marwick violated several generally accepted auditing standards and accounting principles described in the complaint in failing to look behind Crazy Eddie's irregular books and fabricated records and its patently false explanations for the “loss” of destroyed records. The Underwriters failed to conduct a reasonably diligent inquiry into the business and operations of Crazy Eddie and participated in and aided and abetted the unlawful acts and practices of Crazy Eddie and the individual defendants. The complaint brings claims under sections 11 and 15 of the Securities Act, 15 U.S.C. §§ 77k, 77o, alleging that the registration statements issued pursuant to the public offerings in 1985 and 1986 contained material misstatements and omissions; under sections 12(2) and 15 of the Securities Act, 15 U.S.C. §§ 77i (2), 77o, alleging that defendants are primarily and secondarily liable to plaintiffs for materially misleading misstatements and omissions in the prospectuses; under sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78j(b), 78t(a), and Rule 10b-5 of Rules of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5 (1987), alleging that defendants employed devices, schemes, and artifices to defraud and made material misstatements and omissions falsely assuring investors of Crazy Eddie’s strong financial condition and promising financial performance; under section 1962 of RICO, 18 U.S. C. § 1962, alleging that defendants (a) invested income derived from a pattern of racketeering activity in an enterprise engaged in interstate commerce, (b) acquired or maintained control of an enterprise through a pattern of racketeering activity, (c) participated in the conduct of an interstate enterprise’s affairs through a pattern of racketeering activity, and (d) conspired to violate subsections (a) — (c) of section 1962; and for common law fraud and negligent misrepresentation. II. THE MOTIONS TO DISMISS THE COMPLAINT Most of the individual defendants — Eddie Antar, Eddy Antar, Sam E. Antar, Solomon E. Antar, Isaac Kairey, Steve Pasquariello, Edmond Levy, and Carl G. Zimel — and Peat Marwick move to dismiss the complaint. A. The Securities Act Claims Defendants move to dismiss the claims brought under" }, { "docid": "5504793", "title": "", "text": "WESLEY E. BROWN, Senior District Judge. This appeal arises from plaintiff-appellants’ complaint against defendant-appellee accounting firm, Peat, Marwick, Mitchell & Company (hereafter Peat Marwick), and other defendants, based upon the offer and sale of interests in over fifty limited partnerships by Patrick Powers, and his related entities during a period of August, 1979 until March 4, 1986, the date on which plaintiffs’ original complaint was filed. Patrick Powers and his company, Pepeo, Inc., were never named as defendants in the action. As the case has progressed through the district court to this appeal, Peat Marwick became the sole defendant appellant before us, and all issues on appeal are limited to questions of the effectiveness of plaintiffs’ Second Amended Complaint, as it relates to Peat Marwick. In particular, our review is limited to the question of the sufficiency of that complaint in connection with the elements of a claim under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j(b) and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. 240-10b-5, and whether plaintiffs have pled a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. Sec. 1961 et seq. On December 10, 1986, Judge Russell of the district court found that plaintiffs’ Amended Complaint failed to plead Section 10b fraud with particularity since plaintiffs had failed to specify those plaintiffs who had dealt directly with Peat Marwick, and the names of those persons from whom plaintiffs had purchased interests, and had failed to specify the occasions on which alleged misrepresentations were made, and how they were directed to plaintiffs. Plaintiffs’ allegations of RICO violations were likewise found to be lacking in specifics, and all claims against Peat Marwick in the Amended Complaint were dismissed, without prejudice. Plaintiffs were granted leave to amend their complaint and to comply with an attached order specifying the allegations necessary to establish a RICO claim. On January 12, 1987, plaintiffs filed their Second Amended Complaint. Upon motion of Peat Marwick, Judge Phillips dismissed this Second Amended Complaint, with prejudice, upon a finding that plaintiffs had failed to state a claim" }, { "docid": "4978268", "title": "", "text": "May 1992 Order the court reserved decision on these issues pending argument on the constitutionality of a relevant statute. Also before the court is a motion for summary judgment by defendant Peat Marwick Main & Co. (Peat Marwick) on its cross-claim against defendant Sam E. An-tar. There are also motions by Peat Mar-wick directed to claims in Crazy Eddie, Inc. v. Peat Marwick Main & Co., the Adversary Proceeding brought in the United States Bankruptcy. Court for the Southern District of New York. That proceeding has been transferred to this’ court and consolidated for pre-trial purposes with this litigation. I THE FRAUD CLAIMS Peat Marwick, Wertheim Schroder & Co., Inc. (Wertheim), Bear Stearns & Co. (Bear Stearns), Salomon Brothers, Inc. (Salomon), and Oppenheimer & Co., Inc. (Oppenheimer) seek dismissal of the claims against them under Section 10(b) of the Exchange Act, Rule 10b-5, and principles of common law fraud and negligent misrepresentation, to the extent those claims are based upon (a) a September 13, 1984 public offering of Crazy Eddie stock underwritten by Oppenheimer, (b) the December 1985 and March 1986 so-called “Oppenheimer Prospectus” sales of Crazy Eddie stock by Oppenheimer, and (c) the June 1986 public offering of Crazy Eddie debentures by Wertheim, Bear Stearns and Salomon. . The motion does not affect claims based on the March 13, 1985 public offering of Crazy Eddie stock by Oppenheimer or the March 7, 1986 public offering of Crazy Eddie stock by Wertheim, Bear Stearns and Salomon. A. The Section 10(b) and Rule 10b-5 Defendants urge that plaintiffs’ Section 10(b) and Rule 10b-5 claims are barred by the statute of limitations. Because Section 10(b) contains no express statute of limitations the courts had typically applied analogous limitations periods of the forum state. In the 1988 Order this court suggested its agreement with In re Data Access Sys. Sec. Litig., 843 F.2d 1537 (3d Cir.) (en banc), cert. denied, 488 U.S. 849, 109 S.Ct. 131, 102 L.Ed.2d 103 (1988), that courts should apply to Section 10(b) claims statutes of limitations governing other sections of the Exchange Act rather than state limitations periods." }, { "docid": "6949075", "title": "", "text": "NICKERSON, District Judge. By Memorandum and Order dated December 30, 1988 (the December opinion), Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988), familiarity with which is assumed, the court granted in part motions by various defendants to dismiss the complaint. Plaintiffs and cross-claimant Crazy Eddie, Inc. (Crazy Eddie), move to reargue that part of the order dismissing with prejudice their respective claims under § 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1982 & Supp. IV 1986). Defendant Peat Marwick Main & Co. (Peat Marwick) moves to reargue that part of the order denying its motion to dismiss the claims brought under § 12(2) of the Securities Act of 1933 (the Securities Act), 15 U.S.C. § 77a et seq. (1982 & Supp. IV 1986). Defendant Crazy Eddie moves to enforce a Memorandum of Understanding purporting to settle its claims with some plaintiffs. Peat Marwick and eight other defendants, Eddie Antar, Isaac Kairey, Steven Pasquariello, Carl G. Zimel, Eddy Antar, Sam E. Antar, Solomon E. Antar, and Edmond Levy (the individual defendants), renew their motion to dismiss Crazy Eddie’s cross-claims. I. The RICO Claims In dismissing with prejudice plaintiffs’ and Crazy Eddie’s claims under § 1962(c) and (d) of RICO, the court relied on the Second Circuit’s opinion in Beauford v. Helmsley, 843 F.2d 103 (2d Cir.1988). This court held that the alleged “discrete” and “finite” scheme, like the scheme alleged in Beauford, lacked sufficient continuity to state a claim under RICO. (The court also dismissed on other grounds claims under § 1962(a) and (b). The parties do not seek to revive those claims on this motion.) In an en banc opinion the Court of Appeals later vacated the decision of the Beauford panel. 865 F.2d 1386 (2d Cir.1989). Plaintiffs and Crazy Eddie now seek to reinstate or replead their RICO claims. A. The Complaint Under the New Second Circuit Standard Together with its companion opinion, United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989) {en banc), the en banc decision in the Beauford case undermines the rationale stated in" } ]

[ { "docid": "20374060", "title": "", "text": "herein as necessary to explain our ruling. For the reasons set forth herein, we find no violation of the Speedy Trial Act. The Speedy Trial Act generally requires that a criminal trial must commence within 70 days of the latest of a defendant’s indictment, information, or appearance. 18 U.S.C. § 3161(c)(1). Certain periods of delay are excluded, however, in computing the time within which a trial, must commence. § 3161(h). Among the delays excluded are those resulting from certain continuances described in § 3161(h)(8)(A). Additionally, delays resulting from pretrial motions are generally excluded, as are reasonable periods of delay pertaining to co-defendants joined for trial. See id. at subsections (1)(F), (7). The speedy trial issue was raised in the district court by means of a motion filed June 3,1993, Vol. 2, Doc. 67, and was argued to the district judge on June 7, 1993. See Vol. 16. Although computation of the 70 day period generally begins with a defendant’s first .appearance, our review of the record makes clear that the specific issue raised by Ms. Young in the district court was whether more than 70 days of non-excludable delay elapsed during the period from November 2, 1992, to the date of trial, June 7, 1993. For purposes of her motion to dismiss, the defendant conceded below that the period prior to November 2, 1992, was excludable under the Act. On appeal, appellant’s argument does not appear to be similarly limited in scope. For example, appellant complains of the trial court’s failure to make any “ends of justice” findings at an April 9, 1992 conference and argues that “the speedy trial time should be counted from April 9, ’ 1992 until the first motions were filed.” Aplt.Repl.Br. at 17. We will not broaden the scope of the speedy trial inquiry at this point for two reasons. First, appellant conceded a point in the district court that she now attempts to argue on appeal — namely, whether, the time prior to November 2, 1992 counted against the speedy trial clock. As a result, the district court had no opportunity to rule on" } ]

[ { "docid": "20512554", "title": "", "text": "seen, his involvement was sufficient to implicate the purposes of § 3161(h)(6)’s exclusion. Mr. Margheim proffers several cases that he believes illustrate why the ten-month exclusion ought not apply to him. Yet, Mr. Margheim’s belief that these authorities shift the third Vogl factor in his favor is puzzling. Insofar as they are apposite at all, these cases actually tend to underscore legal principles that militate against Mr. Margheim’s cause: specifically, (1) when feasible, courts prefer joint conspiracy trials; (2) exclusions traceable to one defendant generally apply to his codefendants; (3) a defendant who does not move to sever risks having codefendants’ exclusions applied to him; and (4) without demonstrating actual prejudice from the delay, defendants will rarely prevail on the theory that such exclusions are unreasonable. In sum, we conclude that the ten-month period of delay between Mr. Margheim’s initial appearance and that of his final codefendant was not “unreasonable.” Accordingly, we hold that this time period was properly excludable under the Act and uphold the district court’s ruling to this effect. C By the time Mr. Margheim went to trial, 356 days had elapsed since his final codefendant’s initial appearance. Consequently, we must determine how many of those days can be excluded under the Act. The Act obliged the government to bring Mr. Margheim to trial within seventy days of the last codefendant’s appearance. There fore, dismissal is required unless at least 286 of the 356 days are excludable. See 18 U.S.C. § 3162(a)(2). We requested supplemental briefing on this issue at oral argument. While the parties agree that certain pretrial motions tolled the speedy-trial calendar under § 3161(h), they espouse different views on which motions had that effect. Mr. Margheim contends that ninety-eight days are not excludable under the Act — or, conversely, that 258 days (not the necessary 286) are excludable. He arrives at this total by adding “fifty days from November 22, 2011, to January 10, 2012” to “forty-eight days for the period from February 11, 2012, to March 29, 2012,” during which periods he insists “no motions were pending.” Aplt. Supp. Br. at 5. However," }, { "docid": "11127745", "title": "", "text": "allows “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” When the delay is reasonable, “[a]n exclusion for delay ‘attributable to one defendant is applicable to all co-defendants.’ ” United States v. Vogl, 374 F.3d 976, 983-84 (10th Cir.2004) (quoting United States v. Mobile Materials, Inc., 871 F.2d 902, 915 (10th Cir.1989)). The 70-day delay was reasonable here. We require courts applying the reasonableness standard to examine “all relevant circumstances.” Id. at 984. Three factors are pertinent: “(1) whether the defendant is free on bond, (2) whether the defendant zealously pursued a speedy trial, and (3) whether the circumstances further the purpose behind the exclusion to ‘accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial.’ ” Id. (quoting United States v. Olivo, 69 F.3d 1057, 1061— 62 (10th Cir.1995)). The district court examined all relevant circumstances and correctly applied the three factors. I R. at 87. The first factor weighed against tolling the speedy trial clock because Mr. Thomas was not free on bond, but the other two factors supported tolling. Id. Mr. Thomas did not zealously pursue a speedy trial and trying the defendants separately would have required the government to prove the same facts in different trials. Id. We agree with the district court that the delay was reasonable and conclude that this 70-day period was excludable from Mr. Thomas’s speedy trial calculation. Third, the 2-day period from October 30, 2012, to November 1, 2012, is excluda-ble under 18 U.S.C. § 3161(h)(1)(D) (2012). This provision excludes the period in which any pretrial motion is pending. 18 U.S.C. § 3161(h)(1)(D) (2012). The exclusion applies because Mr. Thomas filed a motion to dismiss that was pending on October 31 and November 1. I R. at 58-59, 85-90. Fourth, the 4-day period from November 1, 2012, to November 5, 2012, is excluded under 18 U.S.C. § 3161(h)(1)(D) (2012). This section excludes the days in which a pretrial motion is" }, { "docid": "1176696", "title": "", "text": "The first is Jones’s assault of Briscoe, and the second is Robert Crain’s assault of Allan Roller. Crain was Jones’s close associate and, at the time of the assault, threatened Roller that he would come back and beat him again if he did not pay the drug debt he owed Jones. Thus, both assaults were relevant to show that Jones acted in a supervisory position under 21 U.S.C. § 848. The trial court did not err in admitting evidence of the two assaults. XI. Pfeister argues that he was deprived of his right to a speedy trial, guaranteed by the Speedy Trial Act, 18 U.S.C. §§ 3161-74, due to the lengthy delay between his arraignment and trial. Pfeister was arraigned on March 14,1985, and tried September 6, 1985. The Speedy Trial Act provides that a defendant shall be brought to trial within seventy days of his indictment or arraignment, whichever last occurred. 18 U.S.C. § 3161(c)(1). The seventy-day period may be tolled, however, for a variety of reasons provided by the act, including a delay occasioned by the filing, consideration, hearing, and disposition of any pretrial motion or by competency proceedings. 18 U.S.C. §§ 3161(h)(1)(F) and 3161(h)(1)(A). Here, Pfeister filed numerous pretrial motions during the months of March and April, initially prompting the trial court to continue the trial from April 15, 1985, until May 13, 1985. Numerous other motions filed during the month of May by Pfeister and his codefendants occasioned a second continuance until June 10,1985. This nearly two-month delay is “excludable” under the act. On May 28, 1985, Jones requested a psychiatric examination. On June 12, 1985, the court granted the government’s motion to consolidate Jones’s and Pfeister’s trials. On August 15, 1985, Jones was found competent to stand trial. The time period from the government’s motion to consolidate through Jones’s competency hearing, August 15, 1985, is also excludable. This excludable period applies to both Jones and Pfeister because a time exclusion applicable to one defendant applies to all code-fendants. United States v. Zielie, 734 F.2d 1447, 1454 (11th Cir.1984), cert. denied, sub nom., Gustafson v. U.S.," }, { "docid": "22809005", "title": "", "text": "877 F.2d 734, 737 (9th Cir.1989). Factual findings relating to excusable delay under the Act are reviewed for clear error. United States v. Aviles-Alvarez, 868 F.2d 1108, 1111 (9th Cir.1989). The Speedy Trial Act is violated if a defendant is not tried within 70 days of the latest of either the filing of an indictment or the initial court appearance. See 18 U.S.C. § 3161(c)(1) (1988). When several defendants are joined for trial, the 70-day period begins to run on the date the last codefendant is indicted or arraigned. Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 1873 n. 2, 90 L.Ed.2d 299 (1986); United States v. Morales, 875 F.2d 775, 776 (9th Cir.1989). The issue is therefore whether the 81 days that elapsed between the last arraignment on October 30, 1987, and the first day of trial on January 19, 1988, included at least 11 days of excludable time. 18 U.S.C. § 3161(h)(1)(F) (1988) provides for exclusion of any “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” This exclusion is automatic and no specific findings are required. Aviles-Alvarez, 868 F.2d at 1112. Nor is the exclusion limited to delays that are “reasonably necessary.” Henderson, 476 U.S. at 329-30, 106 S.Ct. at 1876. In this case, numerous overlapping pretrial motions were pending from October 30, 1986, the date of the last arraignment under the initial indictment, until the first day of trial. Once time periods attributable to pending pretrial motions are excluded, the Speedy Trial Act was not violated. B. Sixth Amendment A Sixth Amendment speedy trial claim is reviewed de novo. United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir.1988). Factors to consider in determining whether the Sixth Amendment right to a speedy trial has been violated include: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192," }, { "docid": "5997492", "title": "", "text": "for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted,” id. § 3161(h)(7). These statutory exclusions must be applied to the events in this case, which are listed and discussed here in chronological order. The chart at the end of this case shows these events and whether they are excluded from the 70-day calculation. Date Event 11-9-81 ' Indictment. Contrary to defendants’ first contention, the date of the indictment is not counted as one of the 70 days allowed by the Act. The first day of the 70-day period was the day after November 9, 1981. See United States v. Campbell, 706 F.2d 1138, 1139 (11th Cir. 1983) (70-day period began the day after indictment). 11-24-81 Severdija’s Motion to Reduce Bond. Defendants claim that the Motion to Reduce Bond did not result in excludable time for speedy trial purposes. That motion, however, falls within the § 3161(h)(1)(F) exclusion of delay resulting from any pretrial motion, and therefore November 24 is excluded in the computation of the indictment-to-trial period. 11- 25-81 Arraignment. The date of arraignment is excluded under section 3161(h)(1) (excluding “delay resulting from other proceedings concerning the defendant’’). See United States v. Campbell, 706 F.2d at 1139 n.1 (date of arraignment excluded in computation); United States v. Mers, 701 F.2d 1321, 1332 n.6 (11th Cir. 1983) (dicta); United States v. Haiges, 688 F.2d 1273 (9th Cir. 1982) (court’s exclusion of arraignment date was necessary to its holding). 12- 1-81 Severdija’s Motion, to Produce Witnesses; Motion Not to Deport Witnesses. 12-2-81 Linares’ Motion to Reduce Bond. 12-3-81 Court’s Order That Witnesses in Custody be Deposed and Granting Linares’ Motion to Reduce Bond. December 1, 2, and 3 are excludable under the exclusion for pretrial motions, 18 U. S.C.A. § 3161(h)(1)(F), and the exclusion for motions of a codefendant, § 3161(h)(7). In this Circuit, the interpretation of the (h)(7) exclusion stops the clock for one defendant in the same manner and for the same amount of time as for all codefendants. United States v. Campbell, 706 F.2d 1138," }, { "docid": "22407453", "title": "", "text": "on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. Id. § 3161(h)(8)(A). As Whitfield does not claim that any non-excludable days occurred after he filed his motion to dismiss on June 1, 2006, we accordingly confine our consideration to the period between Whitfield’s arraignment and the filing of his motion to dismiss. The Government filed the Third Superseding Indictment on December 6, 2005, and Whitfield was arraigned on December 20, 2005. However, in response to a pretrial motion filed by the Government, the district court also entered an ends-of-justice finding under section 3161(h)(1)(F) to allow for a thirty-day discovery period, which stopped Whitfield’s speedy trial clock until January 19, 2006. Minor was not arraigned until January 6, 2006, and the district court entered a similar order excluding another thirty days, which ended on February 6, 2006. Section 3161(h)(7) excludes a “reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” Therefore, Whitfield’s speedy trial clock did not begin to run until February 6, 2006, when Minor’s commenced. See United States v. Bieganowski, 313 F.3d 264, 281 (5th Cir.2002); see also United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir.1994) (“[T]he excludable delay of one codefendant may be attributed to all defendants.”) On February 9, 2006, Minor" }, { "docid": "20736374", "title": "", "text": "the Superseding Indictment to a motion to dismiss the corresponding counts of the Second Superseding Indictment. I. DISCUSSION A. The Speedy Trial Act Claim The Speedy Trial Act, 18 U.S.C. § 3161 et seq. establishes time limits for the completion of various stages of a federal criminal prosecution. Under the terms of the Act, subject to specified exclusions of time, the indictment must be filed within thirty days of the accused’s arrest, and trial must begin within seventy days from the filing of the indictment. 18 U.S.C. §§ 3161(b), 3161(c)(1). “If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The “[defendant bears the burden of proof supporting such a motion.” United States v. Adams, 448 F.3d 492, 503 (2d Cir.2006); United States v. Montecalvo, 861 F.Supp.2d 110, 114 (E.D.N.Y.2012). In this case, the Defendant was arraigned on February 16, 2011. On March 22, 2011, an “Order of Excludable Delay” signed by the Defendant encompassing the time period from March 15, 2011 to April 18, 2011 was entered on the docket. At this point, 27 days of the Speedy Trial Act 30-day “indictment clock” had elapsed. On April 18, 2011, an “Order of Excludable Delay” signed by the Defendant for the time period from April 18, 2011 until May 19, 2011 was entered on the docket. With 3 days remaining on the 30 day “indictment clock,” the Section 3161 period expired at midnight on May 22, 2011. Almost eight months then elapsed between May 22, 2011 and the filing of the original Indictment on January 12, 2012. As detailed above, according to the Government, the Defendant signed an “Order of Excludable Delay” for the time period from May 18, 2011 to June 17, 2011. (Gov’s Exh. 4.) The Government then allegedly forwarded via interoffice mail the original of that “Order of Excludable Delay” to the duty magistrate. However, for some reason, this order was not entered on the docket. Regardless, even on the" }, { "docid": "9817090", "title": "", "text": "pretrial motion,” the period of excluded delay extends “from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion....” 18 U.S.C. § 3161(h)(1)(D). Otherwise, the excluded time includes the “delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.” 18 U.S.C. § 3161(h)(1)(H). “[T]hese subsections work in concert such that if a motion is one that does not require a hearing, the Act excludes time through the period of its prompt disposition, but only if that period does not exceed thirty days from the date the motion is taken under advisement.” Margheim, 770 F.3d at 1318 (internal quotation marks and citation omitted). A motion is “under advisement” once the district court has obtained all of the information necessary for it to rule on the motion. See id. at 1322. In the present case, our Speedy Trial Act analysis focuses on the 106-day period beginning August 1, 2012—when the parties agree the seventy-day speedy trial clock started after the district court ruled on the only remaining pretrial motions— and ending November 15, 2012, when Hicks moved to dismiss on speedy trial grounds. The parties agree that the government stopped the speedy trial clock on August 2, 2012, by filing a motion titled “Motion for Trial Setting Conference to Set Trial.” But they disagree on the number of excludable days resulting from that motion. Hicks contends that no more than thirty days should be excluded, and that the Act was violated on or about November 10, 2012. The government argues that no violation occurred. We conclude that the Speedy Trial Act was violated because at least seventy non-excludable days elapsed between August 1 and November 15, 2012. This conclusion rests upon two premises: first, that the August 2 motion did not require a hearing, and therefore only thirty days are excludable after it was under advisement; and second, that the motion was under advisement at the time it was filed because it did not require a response from" }, { "docid": "11127743", "title": "", "text": "conviction under the Speedy Trial Act. Appellant’s Opening Br. at 21-23. This statute ordinarily requires a defendant’s trial to begin within 70 days of the arraignment. 18 U.S.C. § 3161(c)(1) (2012). Though Mr. Thomas’s trial started 146 days after his arraignment, the district court denied his motion to dismiss. In reviewing this decision, we engage in: • de novo review regarding compliance with the Speedy Trial Act and • review for abuse of discretion over denial of the motion to dismiss. United States v. Vogl, 374 F.3d 976, 983-84 (10th Cir.2004). Without any exclusions, the 146-day period between Mr. Thomas’s arraignment and the beginning of trial would violate the Speedy Trial Act. But the Act excludes certain blocks of time from the 70-day period, and four time periods are excluda-ble here: • June 12, 2012, to June 21, 2012 (9 days); • August 21, 2012, to October 30, 2012 (70 days); • October 30, 2012, to November 1, 2012 (2 days); and • November 1, 2012, to November 5, 2012 (4 days). Thus, the Speedy Trial Act excludes 85 of the 146 days between Mr. Thomas’s arraignment and the beginning of his trial, leaving 61 days. Because the 61-day period did not exceed 70 days, the delay did not violate the Speedy Trial Act. First, the 9-day period of June 12, 2012, to June 21, 2012, was excludable. During this period, the last of Mr. Thomas’s codefendants had not yet been arraigned. Though Mr. Thomas had been arraigned on June 12, 2012, the Speedy Trial Act excludes reasonable periods of delay when defendants are joined for trial and does not start until the last defendant is arraigned. See id. § 3161(h)(6); United States v. Young, 45 F.3d 1405, 1410 n. 5 (10th Cir.1995). In Mr. Thomas’s case, the last codefendant (Ms. Janaya Stewart) was arraigned on June 21, 2012, so the 70-day period began on June 21 rather than June 12. Second, the statutory period does not include the 70 days from August 21, 2012, to October 30, 2012. This period is excluded under 18 U.S.C. § 3161(h)(6) (2012), which" }, { "docid": "801275", "title": "", "text": "toll the seventy-day clock. The first is for a “reasonable period of delay when the defendant is joined for trial with a codefendant as to whom time has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(7). Under this exclusion, “the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court.” United States v. Franklin, 148 F.3d 451, 455 (5th Cir.1998). Additionally, because an excludable delay of one code-fendant is attributable to all codefendants, one codefendant’s motion applies to the speedy trial computation of his codefen-dants. Id. This provision “tolls the speedy trial clock during all delays between the filing of a motion and the conclusion of the hearing on that motion, regardless of whether the delay in holding that hearing is ‘reasonably necessary.’” United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.1994) (quoting Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986)). On the other hand, the government may not toll the speedy trial clock merely by filling superseding indictments. Id. at 1567. Although 532 days passed between Parker’s arraignment on May 17, 2004, and the commencement of trial on October 31, 2005, excludable events occurred during that period. First, the period was tolled from Parker’s arraignment to the indictment of Marzett and Annie Mae Jordan on July 28, 2004. Parker disputes this, arguing that the superseding indictment should not be used in his computation because it alleged no new claims against him and that the new defendants were not charged under the same indictment but under a substantially different one. In his estimation, then, his speedy trial clock began with the original indictment His reasoning is incorrect. The first indictment alleged a conspiracy to distribute 50 grams of cocaine, but the superseding indictment alleged a conspiracy among Parker, Boler, and Jordan to distribute more than 500 grams but less than 1,500 grams. The superseding indictment does not allege a new crime: The penalty under 21 U.S.C. § 841(b) is the same for the distribution" }, { "docid": "22927407", "title": "", "text": "determine (1) whether the period between the filing of the indictment or the first appearance of the defendant, whichever came later, and the beginning of the trial exceeds the 70-day period under section 3161(c)(1); (2) if so, whether the period of delay excludable under section 3161(h) equals or exceeds the difference between the pretrial period and the 70-day period; and (3) if so, whether the period of delay excluded under section 3161(h)(7) is reasonable and otherwise qualifies for exclusion. Here 118 days elapsed between Yamanis’ arraignment on February 3,1982, which followed the filing of the indictment on January 7, 1982, and jury selection on June 1, 1982; thus the statutory limit of 70 days is exceeded by 48 days. At least five days are excludable under section 3161(h)(1)(F). On May 26, Yamanis filed a motion for continuance, which was denied on June 1. As this denial constituted a prompt disposition of the motion, the six-day period from May 27 to June 1, inclusive, falls within the second category defined in Stafford. Under section 3161(h)(7), 60 additional days, perhaps more, may be excluded. Codefendant Darby filed a motion for severance on February 24; on May 6, the motion was denied without a hearing. Applying the 30-day limitation under section 3161(h)(1)(J), governing pretrial motions not promptly disposed of, see Stafford, 697 F.2d at 1374, we may exclude the 30 days from February 25 to March 26, inclusive. Codefendant Chiari’s discovery motions, filed on March 11, were disposed of without a hearing on May 6. Having already excluded the period from March 12 through March 26, and again applying section 3161(h)(1)(J), we may exclude 30 of the remaining 41 days between March 27 and May 6. Since the number of excludable days — no less than 66 — easily exceeds 48, we must affirm if the period of delay attributed to Yamanis under section 3161(h)(7) is reasonable and otherwise qualifies for exclusion. It is undisputed that with respect to codefendants Darby and Chiari the statutory speedy trial periods had not been exhausted prior to trial. And, of course, the trial of neither codefendant" }, { "docid": "11127746", "title": "", "text": "R. at 87. The first factor weighed against tolling the speedy trial clock because Mr. Thomas was not free on bond, but the other two factors supported tolling. Id. Mr. Thomas did not zealously pursue a speedy trial and trying the defendants separately would have required the government to prove the same facts in different trials. Id. We agree with the district court that the delay was reasonable and conclude that this 70-day period was excludable from Mr. Thomas’s speedy trial calculation. Third, the 2-day period from October 30, 2012, to November 1, 2012, is excluda-ble under 18 U.S.C. § 3161(h)(1)(D) (2012). This provision excludes the period in which any pretrial motion is pending. 18 U.S.C. § 3161(h)(1)(D) (2012). The exclusion applies because Mr. Thomas filed a motion to dismiss that was pending on October 31 and November 1. I R. at 58-59, 85-90. Fourth, the 4-day period from November 1, 2012, to November 5, 2012, is excluded under 18 U.S.C. § 3161(h)(1)(D) (2012). This section excludes the days in which a pretrial motion is pending. 18 U.S.C. § 3161(h)(1)(D) (2012). Under this section, 4 days are excluded because Mr. Thomas filed a motion in limine and it remained pending on November 2, 3, 4, and 5.1 R. at 868-69. With exclusion of these four blocks of time, encompassing 85 days, the pretrial delay spanned only 61 days. Because this delay did not exceed 70 days, the district court did not abuse its discretion in denying Mr. Thomas’s motion to dismiss. II. Admissibility of L.H.’s Testimony Before serving as an informant against Mr. Thomas, L.H. obtained felony convictions for forgery, theft, obstruction of justice, and drug possession. Ill R. at 14, 145-46. Following these convictions, police arrested L.H. on an unrelated charge and she agreed to cooperate by purchasing drugs from Mr. Thomas under the supervision of law enforcement. Id. at 14-16. L.H. made three purchases of crack, which involved quantities of 1.03 grams, 0.28 grams, and 0.18 grams. Id. at 17-18, 22, 26, 31-32, 40, 47-51, 81, 134-35,138^40; see id. at 199. Mr. Thomas argues that the district court" }, { "docid": "10904835", "title": "", "text": "Appellant Dennis contends that his conviction must be reversed because his trial did not begin within the 70-day period provided under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The government offers two responses: (1) Dennis’ trial was timely if we exclude, under 18 U.S.C. § 3161(h)(7), the time necessary to bring McCoy to trial; and (2) Dennis’ trial was also timely if we exclude, under section 3161(h)(1)(F), the time devoted to pretrial motions. Both Dennis and McCoy were indicted by a grand jury on January 20, 1983 and joined for trial. Dennis’ 70-day limit began to run on January 26 when he was arraigned before the United States Magistrate, who scheduled his trial for March 7. McCoy could not be arraigned immediately because he had been transported out of the district on a preceding writ of habeas corpus ad prosequendum for prosecution on a different charge in federal court in Kansas. In the meantime, Dennis filed pretrial motions on February 15, and the court ruled on them at a pretrial conference on February 28. On March 3 the government moved to continue Dennis’ trial. The court granted the motion on March 29, 1983 and set a new trial date. McCoy was finally arraigned on April 15, and on May 4 Dennis-unsuccessfully moved to dismiss the indictment for failure to accord him a- speedy trial. McCoy then moved to continue the trial, and the court granted McCoy’s motion on May 11. Again Dennis moved to dismiss on speedy trial grounds on May 16. The court denied the motion on June 11, finding the delay was not unreasonable and was excludable under section 3161(h)(7) because Dennis had not moved to sever his case from that of his codefendant McCoy. Trial finally began on June 20. 18 U.S.C. § 3161(h)(7) excludes from the time within which trial must begin “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” It is well established under this section that the excludable" }, { "docid": "18593617", "title": "", "text": "days of his indictment or his first appearance before a judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). The Act provides for the exclusion of certain periods from computation of the seventy day limit. Id. § 3161(h)(1) — (8). In this case, Pena appeared before a judicial officer following his arrest in January, 1985. Viewing his argument in the best light, the February 28 indictment triggered the running of his speedy trial clock. The day after the triggering event is the first to be counted for purposes of the statute, United States v. Simmons, 763 F.2d 529, 530 n. 1 (2d Cir.1985), so a total of 137 days passed between February 28 and July 15, the first day of trial. Pena concedes that the period from June 3 to July 15, a total of forty-three days, is properly excludable since several motions were pending during this time. See 18 U.S.C. § 3161(h)(1)(F) (excluding delay resulting from any pretrial motion). This exclusion reduces the relevant figure to ninety-four days. Thus, if twenty-five more days were properly excluded from the speedy trial clock, Pena was brought to trial within the required seventy day limit. Judge Leisure denied defendants’ speedy trial motions to dismiss in a thorough opinion read into the record on July 15 before the start of trial. He found several periods of excludable time, and concluded that there was no speedy trial problem. The most important of these exclusions, and the only one relevant for purposes of this appeal, was the seventy-seven day period from February 28 to May 16, the date of the superseding indictment. This time was excluded pursuant to Section 3161(h)(7), which provides for “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(7). Since the Caba defendants were fugitives from the date of the original indictment and were never arraigned, the speedy trial clock never began to run as to them. Noting that any delay attributable to one" }, { "docid": "3695437", "title": "", "text": "with counsel in November 2003 and the commencement of his trial in April 2007. Harris concedes that this time period contains several periods of delay that are excludable from speedy trial calculations under § 3161(h). Nevertheless, he claims that, because more than seventy non-excludable days elapsed from his initial appearance until his trial, the Speedy Trial Act was violated. First, the parties disagree as to the appropriate starting point for the speedy trial clock. The government argues that the statutory exclusion for “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted” tolls the seventy-day period until January 9, 2004 — the date of the arraignment on the first superceding indictment joining Kubin as a co-defendant. 18 U.S.C. § 3161(h)(6). Indeed, under this exclusion, “the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court.” United States v. Franklin, 148 F.3d 451, 455 (5th Cir.1998). According to Harris, however, the speedy trial clock began ticking as early as November 20, 2003 — the day he first appeared in court with counsel. Harris relies on this court’s analysis of the effect of a superceding indictment in United States v. Bermea: The filing of a superseding indictment does not affect the speedy trial clock for offenses charged in the original indictment or any offense required to be joined under double jeopardy principles. The clock continues to run from the original indictment or arraignment, whichever was later, and all speedy trial exclusions apply as if no superseding indictment had been returned. 30 F.3d 1539, 1567 (5th Cir.1994) (internal quotations and citations omitted). “The fundamental fear we identified in Bermea was the government’s ‘circumventing the speedy trial guarantee through the simple expedient of obtaining superseding indictments with minor corrections.’ ” Parker, 505 F.3d at 327 (quoting Bermea, 30 F.3d at 1567). This court has recognized that the “case presents a different profile” when the government seeks.to “widen the scope" }, { "docid": "3695436", "title": "", "text": "objections and adopted the PSR. Harris eventually received a mandatory life sentence on the two narcotics charges, to be served concurrently with a 120-month sentence and followed by a consecutive 60-month sentence for the two firearm possession charges. DISCUSSION A. Speedy Trial Claims a. Statutory Claim Harris contends that the district court erred in denying his motion to dismiss the indictment under the Speedy Trial Act. ‘We review the factual findings supporting a Speedy Trial Act ruling for clear error and the legal conclusions de novo.” United States v. Parker, 505 F.3d 323, 326 (5th Cir.2007) (internal quotation omitted). “The Speedy Trial Act, which is designed to protect a criminal defendant’s constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that a defendant’s trial commence within seventy days from his indictment or initial appearance, whichever is later.” United States v. Stephens, 489 F.3d 647, 652 (5th Cir.2007); see also 18 U.S.C. § 3161(c)(1). In this case, over three years passed between Harris’s first appearance in court with counsel in November 2003 and the commencement of his trial in April 2007. Harris concedes that this time period contains several periods of delay that are excludable from speedy trial calculations under § 3161(h). Nevertheless, he claims that, because more than seventy non-excludable days elapsed from his initial appearance until his trial, the Speedy Trial Act was violated. First, the parties disagree as to the appropriate starting point for the speedy trial clock. The government argues that the statutory exclusion for “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted” tolls the seventy-day period until January 9, 2004 — the date of the arraignment on the first superceding indictment joining Kubin as a co-defendant. 18 U.S.C. § 3161(h)(6). Indeed, under this exclusion, “the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court.” United States v. Franklin, 148" }, { "docid": "11127744", "title": "", "text": "Trial Act excludes 85 of the 146 days between Mr. Thomas’s arraignment and the beginning of his trial, leaving 61 days. Because the 61-day period did not exceed 70 days, the delay did not violate the Speedy Trial Act. First, the 9-day period of June 12, 2012, to June 21, 2012, was excludable. During this period, the last of Mr. Thomas’s codefendants had not yet been arraigned. Though Mr. Thomas had been arraigned on June 12, 2012, the Speedy Trial Act excludes reasonable periods of delay when defendants are joined for trial and does not start until the last defendant is arraigned. See id. § 3161(h)(6); United States v. Young, 45 F.3d 1405, 1410 n. 5 (10th Cir.1995). In Mr. Thomas’s case, the last codefendant (Ms. Janaya Stewart) was arraigned on June 21, 2012, so the 70-day period began on June 21 rather than June 12. Second, the statutory period does not include the 70 days from August 21, 2012, to October 30, 2012. This period is excluded under 18 U.S.C. § 3161(h)(6) (2012), which allows “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” When the delay is reasonable, “[a]n exclusion for delay ‘attributable to one defendant is applicable to all co-defendants.’ ” United States v. Vogl, 374 F.3d 976, 983-84 (10th Cir.2004) (quoting United States v. Mobile Materials, Inc., 871 F.2d 902, 915 (10th Cir.1989)). The 70-day delay was reasonable here. We require courts applying the reasonableness standard to examine “all relevant circumstances.” Id. at 984. Three factors are pertinent: “(1) whether the defendant is free on bond, (2) whether the defendant zealously pursued a speedy trial, and (3) whether the circumstances further the purpose behind the exclusion to ‘accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial.’ ” Id. (quoting United States v. Olivo, 69 F.3d 1057, 1061— 62 (10th Cir.1995)). The district court examined all relevant circumstances and correctly applied the three factors. I" }, { "docid": "20512555", "title": "", "text": "time Mr. Margheim went to trial, 356 days had elapsed since his final codefendant’s initial appearance. Consequently, we must determine how many of those days can be excluded under the Act. The Act obliged the government to bring Mr. Margheim to trial within seventy days of the last codefendant’s appearance. There fore, dismissal is required unless at least 286 of the 356 days are excludable. See 18 U.S.C. § 3162(a)(2). We requested supplemental briefing on this issue at oral argument. While the parties agree that certain pretrial motions tolled the speedy-trial calendar under § 3161(h), they espouse different views on which motions had that effect. Mr. Margheim contends that ninety-eight days are not excludable under the Act — or, conversely, that 258 days (not the necessary 286) are excludable. He arrives at this total by adding “fifty days from November 22, 2011, to January 10, 2012” to “forty-eight days for the period from February 11, 2012, to March 29, 2012,” during which periods he insists “no motions were pending.” Aplt. Supp. Br. at 5. However, we reach a different result: that 288 days are excludable, placing the government in the clear (albeit just barely). First, Mr. Margheim’s attorney-filed motion to suppress permits us to exclude 181 days. The applicable time period for this motion spans from February 9, 2011 — the filing date — through November 21, 2011 — the day Mr. Margheim withdrew the motion. See Williams, 511 F.3d at 1051 n. 5 (“We ... assume in our calculations that the excludable period from the filing of the motion through the conclusion ... of such motion includes both the date of resolution of any pretrial motion and the date of filing.” (second omission in original) (internal quotation marks omitted)); Vogl, 374 F.3d at 983 n. 6 (operating under the premise that “the clock would be stopped from the date of filing that motion”). Mr. Margheim’s actions dictate how we must classify and ultimately address the legal implications of .this motion to suppress. Under § 3161(h)(1)(D), periods of “delay resulting from any pretrial motion, from the filing of the motion" }, { "docid": "11127742", "title": "", "text": "2004, 2005, 2010, and 2012. Only one of these convictions was addressed in the government’s evidence. Nonetheless, the district court applied a harsher guideline range based on six of the convictions. The government concedes error, and we agree that the district court erred by relying on convictions that had not been proven. • Sentencing Based on Conduct that Was Not Involved in the Conviction. The eighth issue is whether the district court erred in sentencing Mr. Thomas based on drug quantities and a firearm that did not factor into the conviction. In sentencing, however, the district court can rely on conduct that did not result in a conviction. Thus, the sentencing was not tainted. • Minor Participant. The ninth issue is whether the district court should have calculated a lower guideline range based on status as a minor participant. But, this issue was inadequately briefed. Thus, we decline to address the issue. Based on these conclusions, we uphold the conviction, but reverse and remand for resentencing. I. Speedy Trial In part, Mr. Thomas challenges his conviction under the Speedy Trial Act. Appellant’s Opening Br. at 21-23. This statute ordinarily requires a defendant’s trial to begin within 70 days of the arraignment. 18 U.S.C. § 3161(c)(1) (2012). Though Mr. Thomas’s trial started 146 days after his arraignment, the district court denied his motion to dismiss. In reviewing this decision, we engage in: • de novo review regarding compliance with the Speedy Trial Act and • review for abuse of discretion over denial of the motion to dismiss. United States v. Vogl, 374 F.3d 976, 983-84 (10th Cir.2004). Without any exclusions, the 146-day period between Mr. Thomas’s arraignment and the beginning of trial would violate the Speedy Trial Act. But the Act excludes certain blocks of time from the 70-day period, and four time periods are excluda-ble here: • June 12, 2012, to June 21, 2012 (9 days); • August 21, 2012, to October 30, 2012 (70 days); • October 30, 2012, to November 1, 2012 (2 days); and • November 1, 2012, to November 5, 2012 (4 days). Thus, the Speedy" }, { "docid": "53089", "title": "", "text": "31, 1995, must be added to Hardeman’s Speedy Trial Act clock. The Act’s 70-day limit was therefore ex ceeded, see 18 U.S.C. § 3161(c)(1), and the indictment against Hardeman must be dismissed. The district court on remand should determine whether a dismissal with or without prejudice is appropriate. See 18 U.S.C. § 3162(a)(2); United States v. Lloyd, 125 F.3d 1263, 1271 (9th Cir.1997). REVERSED AND REMANDED. NOONAN, Circuit Judge, dissenting: The Speedy Trial Act explicitly excludes from the time in which an offense must be tried the following: A reasonable period of delay when the defendant is joined for trial with a code-fendant as to whom the time for trial has not run and no motion for severance has been granted. 18 U.S.C. § 3161(h)(7). As the Supreme Court has expanded this provision, “All defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant. See 18 U.S.C. § 3161(h)(7).” Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). As we have put it, “If several defendants are joined, the 70-day limit is measured from the date the last codefendant is arraigned.” United States v. Butz, 982 F.2d 1378, 1382 n. 3 (9th Cir.1993). The government advanced this argument in its brief on appeal: [A] new Speedy Trial Act clock began to run on February 27, 1995, when co-defendant Mary Cross was arraigned.... “When several defendants are joined for trial, the 70-day period begins to run on the date the last codefendant is indicted or arraigned.” United States v. Baker, 10 F.3d 1374, 1400 (9th Cir.1993), citing Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), and United States v. Morales, 875 F.2d 775, 776 (9th Cir.1989). As the government’s brief makes clear, Mary Cross, Hardeman’s co-defendant, was arraigned on February 27, 1995. Hardeman’s speedy trial clock then began to run. The 57 days counted prior to February 27, 1995, which the court counts as consuming speedy trial time, are totally irrelevant. In fact, at the most, as" } ]

[ { "docid": "18625437", "title": "", "text": "plans from garnishment, its direct relationship to the federal ERISA statute mandated preemption. If any general preemption principle can be gleaned from Mackey, it is this: a state law relates to an employee benefit plan, and is thus preempted, if it has a connection with or reference to an ERISA plan. Mackey, supra. See also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983). The specific preemptive language of ERISA states that the statute supersedes “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in Section 1003(a) of ERISA.” In part, that subsection provides the following: [T]his subchapter shall apply to any employee benefit plan if it is established or maintained— (1) by an employer engaged in commerce or in any industry or activity affecting commerce; or (2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or (3) by both. The Trustee takes the position that the Kansas exemption provisions are preempted by ERISA. This Court is of the opinion, however, that the plain language of ERISA regulations exclude IRA’s from ERISA coverage: (d) Individual Retirement Accounts. For purposes of Title I of the Act [ERISA] and this Chapter, the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the Code [Internal Revenue Code of 1954], an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 (hereinafter “the Code”) and an individual retirement bond described in Section 409 of the Code. 29 C.F.R. 2510.3-2(d)(l). Accord In re Laxson, 102 B.R. 85 (Bankr.N.D.Tex.1989); In re Martin, 102 B.R. 639 (Bankr.E.D.Tenn.1989). Thus, the objection to the debtor’s I.R.A. exemption based on federal preemption is denied. In passing, this Court notes that the Trustee’s “Suggestions in Support of Trustee’s Objections to Debtor’s Exemptions” asserts that the I.R.A.’s are not exempt because the I.R.S. requires that they be distributed after Mr. Chadwick’s death. In addition to being vaguely" } ]

[ { "docid": "1158169", "title": "", "text": "U.S.C. § 541(c)(2). We first examine federal law. A. Section 408 of the Internal Revenue Code The applicable federal nonbankruptcy law is § 408 of the Internal Revenue Code, 26 U.S.C. § 408, which sets forth the requirements for creation of an IRA. IRAs are special forms of statutory trusts, established for purposes of tax deferral. IRAs are not spendthrift trusts, and the Internal Revenue Code acknowledges that they are not “trusts” as that term is commonly used. See 26 U.S.C. § 408(h). See also Estate of Davis, 171 Cal.App.3d 854, 217 Cal.Rptr. 734 (1985). Before Patterson v. Shumate, many courts limited the application of § 541(c)(2) to state spendthrift trusts in which the debtor’s ability to reach the corpus had been entirely negated. Patterson v. Shumate determined that “ERISA qualified” pension plans also met the § 541(c)(2) standard. Patterson v. Shumate did not specify what elements are essential for a plan to constitute an “ERISA-qualified plan”. Other courts have addressed the issue. In In re Hall, 151 B.R. 412, 417 (Bankr.W.D.Mich.1993), the bankruptcy court held that For a plan to be ERISA-qualified it must: (1) be a tax qualified plan under the Internal Revenue Code § 401(a); (2) be subject to ERISA; and (3) have an anti-alienation provision as required by ERISA 29 U.S.C. § 1056(d)(1). In re Hall, 151 B.R. at 419. See also In re Nolen, 175 B.R. 214, 217 (Bankr.N.D.Ohio, 1994) (“pension plans must be both ERISA qualified and tax qualified to fall within the scope of 11 U.S.C. § 541(c)(2)”). We agree and find that IRAs do not meet the standard set forth in Hall. IRAs are tax qualified, 26 U.S.C. § 408, but they are not subject to ERISA and are specifically excepted from ERISA’s anti-alienation requirement. See 29 U.S.C. § 1051(6). See also 29 C.F.R. § 2510.3-2(d) (“[f]or purposes of title 1 of the Act [ERISA] and this chapter, the terms ‘employee pension benefit plan’ and ‘pension plan’ shall not include an individual retirement account described in Section 408(a) of the [Internal Revenue] Code”). Nothing in the Code of Federal Regulations under the" }, { "docid": "4745825", "title": "", "text": "in this case demonstrates a lack of diligence in the performance of his duties that is, at best, inexcusable. C. Objection to Exemption of IRAs Blunt, Ellis & Loewi, as previously noted, did not receive notice of the amendment to debtors’ schedules filed May 18, 1990, at which time debtors added the IRAs to their claimed exemptions. The Court will therefore consider Blunt, Ellis & Loewi’s objection to exemptions only to the extent that those objections relate to the IRAs. In short, Blunt, Ellis & Loewi contends that because paragraph 12-1006(a) is preempted by ERISA, debtors have no statutory basis for claiming their IRAs as exempt. This argument is wholly without merit. Even assuming arguendo that ERISA preempts paragraph 12-1006(a), ERISA’s preemption provision does not apply to IRAs. ERISA defines “employee pension benefit plan” and “pension plan” to mean “any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization_” 29 U.S.C. § 1002(2)(A). In addition, the regulations covering ERISA provide, in part, as follows: (d) Individual Retirement Accounts. For purposes of Title I of the Act and this chapter, the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the [Internal Revenue] Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 ... and an individual retirement bond described in section 409 of the Code.... 29 C.F.R. § 2510.3-2(d)(l) (1990). Clearly, “[s]ince an IRA is self-settled and not maintained by an employer or an organization, IRAs are simply not the type of accounts that fall under the ERISA legislation.” In re Laxson, 102 B.R. 85, 89 (Bankr.N.D.Tex.1989). Therefore, ERISA does not preempt paragraph 12-1006(a) with respect to debtors' IRAs. See also In re Chadwick, 113 B.R. 540 (Bankr.W.D.Mo.1990) (trustee’s objection to debtor’s IRA exemption based on federal preemption denied); In re Martin, 102 B.R. 639 (Bankr.N.D.1989) (IRAs outside preemptive scope of ERISA). Accordingly, for the reasons stated, the objections to exemptions filed by the Trustee and Blunt, Ellis & Loewi are" }, { "docid": "4745827", "title": "", "text": "OVERRULED. Debtors’ motion to dismiss, construed as a motion for summary judgment, is GRANTED. . At the hearing on this matter, all parties agreed that debtors’ motion to dismiss involved matters outside the pleading and as such, should be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b) and Bankruptcy Rule 7012(b). . ERISA requires that \"[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1). The Internal Revenue Code likewise provides that pension plans and trusts, in order to be tax-qualified, must contain a provision prohibiting the assignment or alienation of benefits. 26 U.S.C. § 401(a)(13). Dr. Kazi’s plans include the required restriction in section 13, which provides that \"[t]he interest of any person in this Plan or in the Trust or in any distribution to be made under the Plan shall not be assignable either by voluntary or involuntary assignment_” See the Abdul Kazi, M.D., Ltd. Money Purchase Pension Plan and Trust and Profit Sharing Plan and Trust at section 13. The Internal Revenue Service has determined that both the pension plan and profit sharing plan are \"qualified plans\" under the Internal Revenue Code. See Exhibit B attached to debtors’ Memorandum in Support of Debtors’ Motion to Dismiss. . While the Fourth Circuit in Moore considered the statutory language of section 541(c)(2) unambiguous and the legislative history thus irrelevant, this Court finds that the reference to \"applicable nonbankruptcy law” in section 541(c)(2) \"is not so unequivocal as to preclude this court from considering its legislative history to determine if ERISA-qualified plans find an automatic safe harbor under § 541(c)(2).” In re Balay, 113 B.R. at 436. The Court in fact feels compelled to examine the legislative history since, as noted above, the inclusion of a federal exemption for pension benefits raises important questions about the \"plain meaning\" of section 541(c)(2). See Homer v. Merit Systems Protection Bd., 815 F.2d 668 (Fed.Cir.1987); Carlson v. C.I.R., 712 F.2d 1314 (9th Cir.1983) (legislative history must be consulted where statutory language ambiguous or rendered so by other inconsistent statutory language)." }, { "docid": "13920221", "title": "", "text": "IRA claimed exempt by Mrs. Martin “is qualified under § 408(a) of the federal Internal Revenue Code of 1986, as amended.” The trustee contends that Tenn.Code Ann. § 26-2-104(b) (Supp.1988) is preempted by ERISA. Alternatively, the trustee asserts that an IRA established by an individual is not a “retirement plan” within the meaning of the Tennessee statute. This is a core proceeding. 28 U.S.C.A. § 157(b)(2)(B) (West Supp.1989). I Preemption by ERISA The trustee argues that under the authority of the recent United States Supreme Court decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Tenn.Code Ann. § 26-2-104(b) (1980). Therefore, the trustee argues that the debtor’s claim of an exemption under this statute is invalid and must be disallowed. In Mackey, the Supreme Court held that a Georgia statute exempting an employee welfare benefit plan from garnishment was preempted by ERISA. The Court struck down the Georgia statute on the strength of ERISA § 514(a), which, as codified at 29 U.S.C.A. § 1144(a) (West 1985), provides in material part: (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this sub-chapter [ERISA title I] and subchapter III of this chapter [ERISA title IV] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this ti-tle_[ ] 1 In its discussion of the preemptive effect of ERISA § 514(a), the Supreme Court ■ stated: Where Congress intended in ERISA to preclude a particular method of state-law enforcement of judgments, or extend anti-alienation protection to a particular type of ERISA plan, it did so expressly in the statute. Specifically, ERISA § 206(d)(1) bars (with certain enumerated exceptions) the alienation or assignment of benefits provided for by ERISA pension benefit plans. 29 U.S.C. See. 1056(d)(l).i l Congress did not enact any similar provision applicable to ERISA welfare benefit plans.... Mackey v. Lanier Collections Agency & Service, Inc., 108 S.Ct." }, { "docid": "4745801", "title": "", "text": "No. 989, 95th Cong., 2d Sess. 83, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5869 (emphasis added). Therefore, it is clear that Congress intended to exclude from the bankruptcy estate only those trusts recognized by state law as true spendthrift trusts. Based on this legislative history and in view of the inclusion of a federal exemption for pension and profit sharing plans, the Court finds that ERISA does not constitute “applicable non-bankruptcy law” as that phrase is used in section 541(c)(2). Accordingly, Dr. Kazi’s plans constitute property of the estate unless they qualify as spendthrift trusts under Illinois law. B. Exclusion of Plans and IRAs under Illinois Statutory Law Debtors also contend that the pension and profit sharing plans, as well as the IRAs, are excluded from the bankruptcy estate by virtue of IlLRev.State. ch. 110, ¶ 12-1006(c). That section provides: A retirement plan that is (i) intended in good faith to qualify as a retirement plan under the applicable provisions of the Internal Revenue Code of 1986, as now or hereafter amended, or (ii) a public employee pension plan created under the Illinois Pension Code, as now or hereafter amended, is conclusively presumed to be a spendthrift trust under the law of Illinois. Ill.Rev.Stat. ch. 110, If 12-1006(c) (emphasis added). Retirement plans are defined to include pension and profit sharing plans, as well as individual retirement accounts. See Ill.Rev.Stat. ch. 110, 1112-1006(b)(l) & (3). Blunt, Ellis & Loewi and the Trustee argue that paragraph 12-1006(c) is preempted by ERISA and is thus void. The court, however, finds it unnecessary to reach the ERISA preemption issue and holds instead that to the extent paragraph 12-1006(c) excludes from property of the estate a retirement plan that is not a true spendthrift trust, it frustrates the intent underlying section 541(c)(2) of the Bankruptcy Code, and is therefore invalid under the Supremacy Clause of the United States Constitution. It is a fundamental principle that under the Supremacy Clause, “state laws will be invalidated to the extent they are inconsistent with or contrary to federal laws.” In re Summers, 108 B.R. 200, 204" }, { "docid": "22470936", "title": "", "text": "A. OVERVIEW Under the terms of Regulations § 2510.3-2, the Plan falls within the definition of “employee pension benefit plan” making it subject to Title I of ERISA. Under the terms of ERISA, the Plan is excluded from coverage of Parts 2 and 3 of Title I of ERISA if it is an “IRA” as defined by the Internal Revenue Code at 26 U.S.C. § 408. The Appellants have failed to raise a genuine issue of material fact with regard to the “IRA” status of the Plan. From the evidence in the record, the Court was permitted to infer that the Plan qualifies under I.R.C. § 408. Therefore, the Plan is excluded from the coverage of Parts 2 and 3 of Title I of ERISA. B. REGULATIONS § 2510.3-2 The Regulations provide that certain “individual retirement accounts” or “individual retirement annuities,” collectively “IRAs,” fall within the scope of ERISA and others do not. 29 C.F.R. § 2510.3-2. Under this regulation, certain IRAs which have little or no employer involvement, including no employer contributions, are excluded from the definition of “employee pension benefit plan” and thereby completely excluded from ERISA coverage. Other IRAs fall within the definition of “employee pension benefit plan” and thereby come within the ken of ERISA. See 29 C.F.R. § 2510.3-2(d). Here, the parties agree that “employer contributions” are made to the Plan. Although there is some disagreement over the application of other portions of § 2510.3 — 2(d)(1), that disagreement is irrelevant because any failure under § 2510.3 — 2(d)(1) establishes that the Plan is an “employee pension benefit plan” for the purposes of ERISA. Having determined that the Plan is an “employee pension benefit plan,” the analysis turns to the text of the statute to determine which parts of ERISA apply. C. APPLICABILITY OF THE VARIOUS PARTS OF ERISA Section 1003 provides for the general applicability of ERISA to “employee benefit plans,” a term which includes “employ ee pension benefit plans.” 29 U.S.C. §§ 1002(2)-(3) and 1003. ERISA §§ 201 and 301, 29 U.S.C. §§ 1051 and 1081, provide for the general applicability of Parts" }, { "docid": "13920228", "title": "", "text": "defined terms “employee pension benefit plan” and “pension plan” for purposes of title I of [ERISA] ... by identifying certain specific plans, funds and programs which do not constitute employee pension benefit plans for those purposes.... [ 1 (d) Individual Retirement Accounts. (1) For purposes of title I of [ERISA] ... the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the [IRC], an individual retirement annuity described in section 408(b) of the [IRC] and an individual retirement bond described in section 409 of the [IRC], provided that— (i) No contributions, are made by the employer or employee organization; (ii) Participation is completely voluntary for employees or members; (iii) The sole involvement of the employer or employee organization is without endorsement to permit the sponsor to publicize the program to employees or members, to collect contributions through payroll deductions or dues checkoffs and to remit them to the sponsor; and (iv) the employer or employee organization receives no consideration in the form of cash or otherwise, other than reasonable compensation for services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-2(a) and (d) (revised as of July 1, 1987). IRAs such as the one in dispute in the instant proceeding differ in key respects from ERISA qualified plans. IRAs are not plans; they are savings accounts. In re Talbert, 15 B.R. 536, 537 (Bankr.W.D.La. 1981). An IRA is contractual in nature, a contract between the depositor and a depository while a plan’s contract is between the employer and its employees. Id. at 538; see also Smith v. Winter Park Software, Inc., 504 So.2d 523, 524 (Ct.App.Fla.1987) (“An IRA is a savings account with tax benefits and gratuitous contributions by the [employee],” quoting In re Peeler, 37 B.R. 517, 518 (Bankr.M.D.Tenn.1984); Halliburton Co. v. Sam Mor, 231 N.J.Super. 197, 555 A.2d 55 (Super.Ct.N.J.1988)). IRAs are not required to contain the anti-alienation clause required under ERISA § 206(d)(1) (29 U.S.C.A. § 1056(d)(1) (West Supp.1989)). See n. 10, supra. See also, Smith v. Winter Park, 504 So.2d" }, { "docid": "4745826", "title": "", "text": "follows: (d) Individual Retirement Accounts. For purposes of Title I of the Act and this chapter, the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the [Internal Revenue] Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 ... and an individual retirement bond described in section 409 of the Code.... 29 C.F.R. § 2510.3-2(d)(l) (1990). Clearly, “[s]ince an IRA is self-settled and not maintained by an employer or an organization, IRAs are simply not the type of accounts that fall under the ERISA legislation.” In re Laxson, 102 B.R. 85, 89 (Bankr.N.D.Tex.1989). Therefore, ERISA does not preempt paragraph 12-1006(a) with respect to debtors' IRAs. See also In re Chadwick, 113 B.R. 540 (Bankr.W.D.Mo.1990) (trustee’s objection to debtor’s IRA exemption based on federal preemption denied); In re Martin, 102 B.R. 639 (Bankr.N.D.1989) (IRAs outside preemptive scope of ERISA). Accordingly, for the reasons stated, the objections to exemptions filed by the Trustee and Blunt, Ellis & Loewi are OVERRULED. Debtors’ motion to dismiss, construed as a motion for summary judgment, is GRANTED. . At the hearing on this matter, all parties agreed that debtors’ motion to dismiss involved matters outside the pleading and as such, should be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b) and Bankruptcy Rule 7012(b). . ERISA requires that \"[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1). The Internal Revenue Code likewise provides that pension plans and trusts, in order to be tax-qualified, must contain a provision prohibiting the assignment or alienation of benefits. 26 U.S.C. § 401(a)(13). Dr. Kazi’s plans include the required restriction in section 13, which provides that \"[t]he interest of any person in this Plan or in the Trust or in any distribution to be made under the Plan shall not be assignable either by voluntary or involuntary assignment_” See the Abdul Kazi, M.D., Ltd. Money Purchase Pension Plan and Trust and Profit Sharing Plan and Trust at section 13." }, { "docid": "10560404", "title": "", "text": "statute exempting ERISA qualified pension plans from execution preempted by ERISA); In re Brown, 95 B.R. 216 (Bankr.N.D.Okla.1989) (Oklahoma statute exempting ERISA qualified pension plans preempted by ERISA). Contra, In re Volpe, 100 B.R. 840 (Bankr.W.D.Tx.1989) (Texas statute exempting ERISA qualified benefit plans not preempted by ERISA). For the reasons set forth herein, the trustee’s objection to the debtor’s claim of an exemption in his pension and profit sharing plans under Tenn.Code Ann. § 26-2-111(1)(D) (1980) is sustained. The debtor’s exemption is disallowed. An appropriate order will be entered. . Employee Retirement Income Security Act of 1974, Pub.L. No. 93-406, 88 Stat. 829 (codified at 29 U.S.C.A. §§ 1001, et seq. (West 1985 & Supp.1989) and in various provisions of the Internal Revenue Code). . Pursuant to 11 U.S.C.A. § 522(b)(1) (West 1979), Tennessee opted out of the federal scheme of exemptions in 1980. See Tenn.Code Ann. § 26-2-112 (1980). . Written stipulations were filed July 10, 1989. The court is synopsizing rather than quoting verbatim those stipulations material to the issue in dispute. . Tenn.Code Ann. § 26-2-111(1)(D) (1980) can be said to be \"consistent with ERISA’s substantive requirements.” The statute creates an exemption from “execution, seizure or attachment” of a resident’s interest in an ERISA qualified plan. The Tennessee statute thus promotes a substantive requirement of ERISA barring assignment or alienation of benefits: “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” ERISA § 206(d)(1), codified at 29 U.S.C.A. § 1056(d)(1) (West Supp.1989). . In addition to referring to qualified plans under Internal Revenue Code §§ 401(a), 403(a) and 403(b), the Tennessee statute also refers to plans qualified under Internal Revenue Code §§ 408 (Individual Retirement Accounts) and 409 (Tax Credit Employee Stock Ownership Plans). This court recently found that an individual retirement account established under Internal Revenue Code § 408(a) (26 U.S.C.A. § 408(a) (West Supp.1989)) is not an ERISA qualified plan. In re Martin, 102 B.R. 639 (Bankr.E.D.Tenn.1989). Accordingly, the court held that an individual retirement account established under Internal Revenue Code § 408(a) is outside the preemptive" }, { "docid": "1158187", "title": "", "text": "401 of the Internal Revenue Code, not § 408. . The regulations dealing with IRAs fall under Title 26 of the Code of Federal Regulations dealing with the Internal Revenue Code. See, e.g., 29 C.F.R. § 2530.200a-l — Relationship of the Act [ERISA] and the Internal Revenue Code of 1954. This section covers plans under IRC §§ 401(a), 403(a), and 405(a), and not IRAs under § 408. See also 29 C.F.R. § 2510.3-3(b) (employee benefit plan excludes \"any plan, fund or program, other than an apprenticeship or training program, under which no employees are participants covered under the plan.”). .Other cases which have examined the effect of anti-alienation restrictions are inapposite on their facts. See, e.g., In re Pierce, 1994 WL 266381 (Bankr.W.D.Pa., June 9, 1994) (debtor’s pension funds were still part of an ERISA qualified plan on the bankruptcy filing date); In re Nudo, 147 B.R. 68 (Bankr.N.D.N.Y.1992) (state law provides that custodial accounts and rollovers from § 401 plans are conclusively presumed to be spendthrift trusts and debtor, although entitled to withdraw funds from his § 401 plan, had not done so); In re Dunham, 147 B.R. 13 (Bankr.E.D.N.C.1992) (on the date of the bankruptcy filing the funds were still in an ERISA qualified plan). .\"[T]he following money or other property of the judgment debtor shall be exempt from attachment or execution on a judgment: (ix) Any retirement or annuity fund provided for under section 401(a), 403(a) and (b), 408 or 409 of the Internal Revenue Code ..., the appreciation thereon, the income therefrom and the benefits or annuity payable thereunder. This subparagraph shall not apply to: (A) Amounts contributed by the debtor to the retirement or annuity fund within one year before the debtor filed for bankruptcy. (B) Amounts contributed by the debtor to the retirement or annuity fund in excess of $15,000 within a one-year period. (C) Amounts deemed to be fraudulent conveyances.” 42 Pa.Cons.Stat.Ann. § 8124(b)(l)(ix). . We also note that “exclusion” and \"exemption” do not mean the same thing. Property that is excluded from the bankruptcy estate never comes into the estate at all," }, { "docid": "22470937", "title": "", "text": "from the definition of “employee pension benefit plan” and thereby completely excluded from ERISA coverage. Other IRAs fall within the definition of “employee pension benefit plan” and thereby come within the ken of ERISA. See 29 C.F.R. § 2510.3-2(d). Here, the parties agree that “employer contributions” are made to the Plan. Although there is some disagreement over the application of other portions of § 2510.3 — 2(d)(1), that disagreement is irrelevant because any failure under § 2510.3 — 2(d)(1) establishes that the Plan is an “employee pension benefit plan” for the purposes of ERISA. Having determined that the Plan is an “employee pension benefit plan,” the analysis turns to the text of the statute to determine which parts of ERISA apply. C. APPLICABILITY OF THE VARIOUS PARTS OF ERISA Section 1003 provides for the general applicability of ERISA to “employee benefit plans,” a term which includes “employ ee pension benefit plans.” 29 U.S.C. §§ 1002(2)-(3) and 1003. ERISA §§ 201 and 301, 29 U.S.C. §§ 1051 and 1081, provide for the general applicability of Parts 2 and 3, 29 U.S.C. §§ 1051-86, subject to some limitations. In relevant part, these sections exclude “IRAs” which meet the definition set forth in Internal Revenue Code § 408. Therefore, it is necessary to determine whether the Plan qualifies as an “IRA” under I.R.C. § 408. D. INTERNAL REVENUE CODE § 408 Internal Revenue Code § 408 defines the terras “individual retirement account” and “individual retirement annuity.” The definitions contain various requirements which must be met in order to receive the IRA appellation. 26 U.S.C. § 408. Because Judge Armstrong had held that Appellants “cannot avoid dismissal by attempting to present inconsistent facts in their opposition brief’ (May 2, 1997 Order of Judge Armstrong, at 12), Judge Breyer held that Judge Armstrong’s decision was law of the case and agreed that Appellants could not contend that the Plan was not an IRA plan. See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990) (judicial estoppel bars a party from making a factual assertion in a legal proceeding “which directly contradicts an earlier assertion made" }, { "docid": "10560405", "title": "", "text": "Tenn.Code Ann. § 26-2-111(1)(D) (1980) can be said to be \"consistent with ERISA’s substantive requirements.” The statute creates an exemption from “execution, seizure or attachment” of a resident’s interest in an ERISA qualified plan. The Tennessee statute thus promotes a substantive requirement of ERISA barring assignment or alienation of benefits: “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” ERISA § 206(d)(1), codified at 29 U.S.C.A. § 1056(d)(1) (West Supp.1989). . In addition to referring to qualified plans under Internal Revenue Code §§ 401(a), 403(a) and 403(b), the Tennessee statute also refers to plans qualified under Internal Revenue Code §§ 408 (Individual Retirement Accounts) and 409 (Tax Credit Employee Stock Ownership Plans). This court recently found that an individual retirement account established under Internal Revenue Code § 408(a) (26 U.S.C.A. § 408(a) (West Supp.1989)) is not an ERISA qualified plan. In re Martin, 102 B.R. 639 (Bankr.E.D.Tenn.1989). Accordingly, the court held that an individual retirement account established under Internal Revenue Code § 408(a) is outside the preemptive scope of ERISA § 514(a). Id." }, { "docid": "2937982", "title": "", "text": "must also analyze both the ERISA statute and the savings plan in question to determine whether there is an enforceable restriction on the transfer of the funds in the plan. Patterson, 504 U.S. 753, 758-59, 112 S.Ct. 2242, 2246-47, 119 L.Ed.2d 519 527-28. The restriction on transfer of benefits of ERISA qualified plans is found in 29 U.S.C. § 1056(d)(1). This section provides that “[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1). This restraint on alienation provision, if applicable to IRAs, would constitute an enforceable transfer restriction pursuant to § 541(c)(2). Patterson, 504 U.S. at 759-60, 112 S.Ct. at 2247-48, 119 L.Ed.2d at 528. The ERISA restraint, however, is not applicable to an IRA. The Participation and Vesting section of ERISA, 29 U.S.C. § 1051, describes the types of employee benefit plans that are covered by ERISA. This section provides in relevant part that §§ 1051-1061 do not apply to “an individual retirement account or annuity described in section 408 of the Internal Revenue Code.” 29 U.S.C. § 1051(6). There is no dispute that the IRA in this case was created pursuant to § 408 of the Internal Revenue Code (“IRC”). ERISA, therefore, does not provide the restraint on alienation necessary to exclude an IRA from the estate pursuant to § 541(c)(2). See In re Heisey, 88 B.R. 47 (Bankr.D.N.J.1988). N.J.S.A § 25:2~l(b) The debtor, on the other hand, argues that N.J.S.A. § 25:2-l(b) provides the necessary restraint on alienation. This New Jersey statute provides in relevant part: Notwithstanding the provisions of any other law to the contrary, any property held in a qualifying trust and any distributions from a qualifying trust, regardless of the distribution plan elected for the qualifying trust, shall be exempt from all claims of creditors and shall be excluded from an estate in bankruptcy.... For purposes of this section, a “qualifying trust” means a trust created or qualified and maintained pursuant to federal law, including, but not limited to, section 401, 408, 408 or section 409 of the federal Internal Revenue Code" }, { "docid": "17279669", "title": "", "text": "OPINION AND ORDER LAWRENCE OLLASON, Bankruptcy Judge. The captioned case came before the court pursuant to the Trustee’s motion for turnover of funds and objection to exemption of Individual Retirement Accounts (“IRAs”) and an Arizona State Pension listed in the debtors' schedules. Debtors claim that their IRAs, totalling $35,005, and their pension, in the amount of $12,000, are exempt under A.R.S. sections 33-1126 and 1121, respectively. There are no material fact issues, and the matter has been submitted on the pleadings. The debtors’ claim of exemption for their IRAs is grounded upon A.R.S. section 33-1126(B), which states: Any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan which is qualified under sections 401(a), 403(a), 403(b), 408 or 409 of the United States internal revenue code of 1986, as amended, shall be exempt from any and all claims of creditors of the beneficiary or participant. This section shall not apply to any of the following: 1. An alternate payee under a qualified domestic relations order, as defined in section 414(p) of the United States internal revenue code of 1986, as amended. 2. Amounts contributed within 120 days before a debtor files for bankruptcy- 3. The assets of bankruptcy proceedings filed before July 1, 1987. The interest of any and all alternate payees shall be exempt from any and all claims of any creditor of the alternate payee. Although debtors’ IRAs qualify under section 408 of the Internal Revenue Code, the Trustee argues that the Arizona exemption is preempted by the Employee Retirement Income Security Act (“ERISA”) plans, 29 U.S.C. section 1001 et seq. The ERISA preemption provision, 29 U.S.C. section 1144(A), provides: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975." }, { "docid": "13920230", "title": "", "text": "523; Bartlett, 239 Kan. 628, 722 P.2d 551. ERISA qualified plans and IRAs under IRC § 408(a) also differ relative to the degree of control over the funds. With the former, the employee generally enjoys little or no control; with the latter, the individual’s discretion is significant. Unlike ERISA qualified pension plans, an individual can generally revoke an IRA, control the mode of distribution, or make early withdrawals, albeit accompanied by a penalty. See generally, Talbert, 15 B.R. 536. For the reasons enunciated herein, this court concludes that IRAs established under IRC § 408(a) are outside the preemptive scope of ERISA. Accordingly, Tenn. Code Ann. § 26-2-104(b) (Supp.1988), insofar as it relates to a “retirement plan” under IRC § 408(a), is not preempted by ERISA. This opinion does not in any manner purport to address the preemptive effect of ERISA § 514(a) (29 U.S.C.A. § 1144(a) (West 1985)) within the context of any other “retirement plan” declared exempt from execution under the Tennessee statute, i.e., “retirement plan[s]” qualified under IRC §§ 401(a), 403(a), 403(b), or 408(b) or (c). II Exemption of IRA as “Retirement Plan” The trustee further argues that the exemption provisions of Tenn.Code Ann. § 26-2-104(b) (Supp.1988) have application only to a “retirement plan”; that IRC § 408 addresses three types of IRAs — an “individual retirement account” (§ 408(a)), an “individual retirement annuity” (§ 408(b)), and “accounts established by employers and certain associations of employees” (§ 408(c)); that under provisions of ERISA § 3(2) (29 U.S.C.A. § 1002(2) (West Supp.1989)), “the terms ‘employee pension benefit plan’ and ‘pension plan’ mean any plan, fund or program ... established or maintained by an employer or by an employee organization ... that only IRA accounts established by employers and certain associates of employees under IRC § 408(c) meet the ERISA plan definition; and that the IRA at issue is, therefore, not a “retirement plan” but is rather an individual savings account which is not exempt from execution under the Tennessee statute. The trustee’s argument is untenable. The court has determined that the labor law provisions of ERISA (see n. 11," }, { "docid": "1158170", "title": "", "text": "held that For a plan to be ERISA-qualified it must: (1) be a tax qualified plan under the Internal Revenue Code § 401(a); (2) be subject to ERISA; and (3) have an anti-alienation provision as required by ERISA 29 U.S.C. § 1056(d)(1). In re Hall, 151 B.R. at 419. See also In re Nolen, 175 B.R. 214, 217 (Bankr.N.D.Ohio, 1994) (“pension plans must be both ERISA qualified and tax qualified to fall within the scope of 11 U.S.C. § 541(c)(2)”). We agree and find that IRAs do not meet the standard set forth in Hall. IRAs are tax qualified, 26 U.S.C. § 408, but they are not subject to ERISA and are specifically excepted from ERISA’s anti-alienation requirement. See 29 U.S.C. § 1051(6). See also 29 C.F.R. § 2510.3-2(d) (“[f]or purposes of title 1 of the Act [ERISA] and this chapter, the terms ‘employee pension benefit plan’ and ‘pension plan’ shall not include an individual retirement account described in Section 408(a) of the [Internal Revenue] Code”). Nothing in the Code of Federal Regulations under the ERISA provisions regulates IRAs. Nowhere in the law applicable to the establishment of a valid IRA is there a reference to a requirement that an anti-alienation clause must exist. See 11 U.S.C. § 408. See generally Investment Co. Institute v. Conover, 596 F.Supp. 1496, 1502 (D.D.C.1984), aff'd 790 F.2d 925 (D.C.Cir.1986), cert. denied sub nom. Investment Co. Institute v. Clarke, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 372 (1986); In re Damast, 136 B.R. 11 (Bankr.D.N.H.1991). Distribution from an IRA can occur at any time the depositor desires, subject only to tax consequences. Thus, under federal law, IRAs do not contain restrictions on transfers subject to 11 U.S.C. § 541(c)(2). B. A Contractual Restriction The question arises as to the effect of an anti-alienation clause when one is included in the agreement between the custodian and the depositor, even though the Internal Revenue Code does not require such a clause to validate the IRA. Federal courts have indicated that IRAs that have no anti-alienation clauses are property of the estate for purposes of §" }, { "docid": "13920229", "title": "", "text": "or otherwise, other than reasonable compensation for services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-2(a) and (d) (revised as of July 1, 1987). IRAs such as the one in dispute in the instant proceeding differ in key respects from ERISA qualified plans. IRAs are not plans; they are savings accounts. In re Talbert, 15 B.R. 536, 537 (Bankr.W.D.La. 1981). An IRA is contractual in nature, a contract between the depositor and a depository while a plan’s contract is between the employer and its employees. Id. at 538; see also Smith v. Winter Park Software, Inc., 504 So.2d 523, 524 (Ct.App.Fla.1987) (“An IRA is a savings account with tax benefits and gratuitous contributions by the [employee],” quoting In re Peeler, 37 B.R. 517, 518 (Bankr.M.D.Tenn.1984); Halliburton Co. v. Sam Mor, 231 N.J.Super. 197, 555 A.2d 55 (Super.Ct.N.J.1988)). IRAs are not required to contain the anti-alienation clause required under ERISA § 206(d)(1) (29 U.S.C.A. § 1056(d)(1) (West Supp.1989)). See n. 10, supra. See also, Smith v. Winter Park, 504 So.2d 523; Bartlett, 239 Kan. 628, 722 P.2d 551. ERISA qualified plans and IRAs under IRC § 408(a) also differ relative to the degree of control over the funds. With the former, the employee generally enjoys little or no control; with the latter, the individual’s discretion is significant. Unlike ERISA qualified pension plans, an individual can generally revoke an IRA, control the mode of distribution, or make early withdrawals, albeit accompanied by a penalty. See generally, Talbert, 15 B.R. 536. For the reasons enunciated herein, this court concludes that IRAs established under IRC § 408(a) are outside the preemptive scope of ERISA. Accordingly, Tenn. Code Ann. § 26-2-104(b) (Supp.1988), insofar as it relates to a “retirement plan” under IRC § 408(a), is not preempted by ERISA. This opinion does not in any manner purport to address the preemptive effect of ERISA § 514(a) (29 U.S.C.A. § 1144(a) (West 1985)) within the context of any other “retirement plan” declared exempt from execution under the Tennessee statute, i.e., “retirement plan[s]” qualified under IRC §§ 401(a), 403(a), 403(b), or" }, { "docid": "6570544", "title": "", "text": "person who is a bona fide citizen permanently residing in Tennessee: (1) The debtor’s right to receive: (D) To the same extent that earnings are exempt pursuant to § 26-2-106, a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of death, age or length of service, unless: (i)Such plan or contract was established by or under the auspices of an insider that employed the debtor at the time that the debtor's rights under such plan or contract arose; (ii) Such payment is on account of age or length of service; and (iii) Such plan or contract does not qualify under Section 401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code of 1954 (26 U.S.C. 401(a), 403(a), 403(b), 408 or 409). Provided, however, that the assets of the fund or plan from which any such payments are made, or are to be made, are exempt only to the extent that the debtor has no right or option to receive them except as monthly or other periodic payments beginning at or after age fifty-eight (58). Assets of such funds or plans are not exempt if the debtor may, at his option, accelerate payment so as to receive payment in a lump sum or in periodic payments over a period of sixty (60) months or less. . See infra note 10. . ERISA § 3(3) (29 U.S.C.A. § 1002(3) (West Supp.1990)) defines \"employee benefit plan” to mean \"an employee welfare benefit plan or an employee pension benefit plan....” . Three types of individual retirement accounts are defined under IRC § 408(a), (b), and (c). This court has held that individual retirement accounts under IRC § 408(a) do not originate under title I of ERISA and are, therefore, outside the preemptive scope of ERISA § 514(a). In re Martin, 102 B.R. 639 (Bankr.E.D.Tenn.1989). Whether or not individual retirement accounts established under IRC § 408(b) and/or (c) are also outside the preemptive scope of ERISA § 514(a) is not germane to the issues the court is called upon to address within the context of this Memorandum." }, { "docid": "10277096", "title": "", "text": "expectancies of the participants and/or his spouse are to be recalculated. 26 U.S.C. § 401(a)(9). The Tax Reform Act of 1986 (“TRA”) provides a delayed date by which qualified plans must be amended to conform to changes in the qualification requirements. Plans that are terminated must be amended no later than the date of termination to comply with those provisions of TRA that have become effective with respect to the plan as of the date of the termination. I.R.S. Notice 87-57, 1987-2 C.B. 117; 26 U.S.C. 408 § (d)(3)(A)(ii). This court has previously ruled that ERISA retirement plans may be claimed as exempt under the “other federal law” provision of Section 522(b)(2)(A). In re Komet, 104 B.R. 799, 816 (Bankr.W.D.Tex.1989). IRA’s do not fall under the protection of the federal statute, however. 29 U.S.C. §§ 1003(a), 1056(d)(1); 29 C.F.R. § 2510.3-2(d)(l); In re Laxson, 102 B.R. 85, 89 (Bankr.N.D.Tex.1989). Therefore, unless they are exempt under Texas’ exemption statute, they may not be claimed by the debtor under Section 522(b)(2)(A). Section 42.0021 of the Texas Property Code creates such an exemption for IRA’s “unless the ... account does not qualify under the applicable provisions of the Internal Revenue Code of 1986.” Tex.Prop.Code § 42.0021(a). The Internal Revenue Code, in turn, prohibits qualification to an IRA rolled over from a non-qualified plan. 26 U.S.C. § 408(d)(3)(A)(ii); I.R.S. Notice 87-57,1987-2 C.B. 117. Because the predecessor Keogh plan here in question was not qualified, neither is this IRA. Therefore, it is cannot be claimed as exempt under the Texas statute and so is not available for exemption in this bankruptcy case. Even were the IRA exempt under Section 42.0021, however, the debtor’s conduct with respect to that plan, viewed in the overall context of this case, would deprive him of the benefits of that IRA by virtue of Tex.Prop.Code § 42.004, because the debtor has used property not exempt to acquire eligible personal property with the intent to hinder or delay interested persons (i.e., creditors) from obtaining that to which they may be entitled. Tex.Prop.Code, § 42.004(a). A close analysis of the facts of" }, { "docid": "1158186", "title": "", "text": "Retirement Custodial Account. See also IRA Custodial Agreement and Disclosure Statement at 2. There is no trustee and there is no separation of title and beneficial interest: the depositor holds title to and is the beneficiaty of the account. To the extent that the IRA may be deemed to be a trust under state law, it is in the nature of a self-settled trust. Self-settled trusts historically have not been insulated from creditors. See discussion of Pennsylvania law, infra. . It appears that \"ERISA qualified” is not an appellation used by tax practitioners. Plans are said to be “tax qualified” and “subject to ERISA”. In re Hall, 151 B.R. 412, 417 (Bankr.W.D.Mich., 1993). . We note that ERISA was enacted to protect employee benefit plans, multiemployer pension plans, and single employer defined benefit pension plans. 29 U.S.C. §§ 1001, 1001a, 1001b. There is no express intent to protect individual savings plans, even if those plans are established by employers and \"certain associations of employees”. 26 U.S.C. § 408(c). . Title 1 of ERISA covers § 401 of the Internal Revenue Code, not § 408. . The regulations dealing with IRAs fall under Title 26 of the Code of Federal Regulations dealing with the Internal Revenue Code. See, e.g., 29 C.F.R. § 2530.200a-l — Relationship of the Act [ERISA] and the Internal Revenue Code of 1954. This section covers plans under IRC §§ 401(a), 403(a), and 405(a), and not IRAs under § 408. See also 29 C.F.R. § 2510.3-3(b) (employee benefit plan excludes \"any plan, fund or program, other than an apprenticeship or training program, under which no employees are participants covered under the plan.”). .Other cases which have examined the effect of anti-alienation restrictions are inapposite on their facts. See, e.g., In re Pierce, 1994 WL 266381 (Bankr.W.D.Pa., June 9, 1994) (debtor’s pension funds were still part of an ERISA qualified plan on the bankruptcy filing date); In re Nudo, 147 B.R. 68 (Bankr.N.D.N.Y.1992) (state law provides that custodial accounts and rollovers from § 401 plans are conclusively presumed to be spendthrift trusts and debtor, although entitled to withdraw funds" } ]

[ { "docid": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" } ]

[ { "docid": "23630580", "title": "", "text": "The district court weighed Vallar’s testimony against the government agents’ and concluded that Vallar lacked credibility. We find no clear error in this conclusion. See United States v. Ofcky, 237 F.3d 904, 910 (7th Cir.2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the testimony of the defendant against that of others and determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29 (7th Cir.1993). We affirm the district court’s application of the obstruction enhancement. G. Anders Brief in the Case of Tyrail Curry Curry pled guilty to Count One, the conspiracy charge, on September 6, 2006. He admitted to participating in Iniguez’s drug enterprise by assisting in the receipt and distribution of cocaine in Kentucky. The district court sentenced Curry to 210 months of imprisonment, the lowest within-guidelines sentence, and five years of supervised release. Curry’s counsel, a Federal Public Defender in the Central District of Illinois, concludes that Curry’s case is without merit and submits an Anders brief seeking permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g.," }, { "docid": "16249023", "title": "", "text": "agreement to conspiracy to possess with intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. § 846. Pineda-Lopez’s PSR determined that he had a base offense level under the sentencing guidelines of 21, after a 3-level downward adjustment based on acceptance of responsibility and a 2-level downward adjustment because he met the “safety valve” provision, 18 U.S.C. § 3553(f). Coupled with a criminal history category of I, Pineda-Lopez’s advisory guideline range was 37-46 months. At sentencing, the district court gave him the bottom of the range: 37 months. PinedaLopez’s trial counsel has filed an Anders brief seeking permission to withdraw on the basis that there are no non-frivolous arguments to be made on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pineda-Lopez did not respond to his counsel’s submission, and so we review the potential issues counsel has identified in his brief. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009). Counsel represents that Pineda-Lopez would challenge the reasonableness of his sentence by arguing that his 37-month term is unduly harsh in light of his limited involvement in the conspiracy and his lack of criminal history. Counsel claims that while Pineda-Lopez may view the sentence as harsh, it was well within the district court’s discretion to impose it, and points out that the sentence is at the bottom of the advisory guideline range. Therefore, counsel argues, Pineda-Lopez’s argument would be frivolous if raised on appeal. Having reviewed the record and counsel’s Anders brief, we agree. The court reviews the reasonableness of a sentence under an abuse of discretion standard. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009). We apply a presumption of reasonableness to a sentence that reflects proper application of the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Here, the sentence was reasonable. The district court properly calculated and considered the applicable Sentencing Guidelines range, did not clearly err in its factual findings, and imposed a sentence at the bottom of the range after considering the" }, { "docid": "19929168", "title": "", "text": "must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have applied the wrong burden of proof when ruling on the Sentencing Guidelines enhancements. As he did in his pro se submission, Pulyer could argue that all factors that lead to sentence enhancements must be proven beyond a reasonable doubt. However, this argument fails as a matter of law because sentencing facts need only be determined by a preponderance of the evidence. See United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006). A review of the record supports the District Court’s determination that all Guideline enhancements in computing the offense level were well supported by a preponderance of the evidence. Second, Pulyer has argued that his counsel was ineffective. However, this argument must be rejected now, because ineffective assistance of counsel claims are not considered by this Court on direct appeal. United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.2003). Such claims would be deferred to collateral attack. Id. Third, Pulyer might argue that the District Court erred in failing to grant one or more of the downward departures argued by him in his" }, { "docid": "7455098", "title": "", "text": "over decisions rendered by the Territorial Court pursuant to 48 U.S.C. §§ 1613a(a) and 1613a(d). Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c). B. Anders Procedures Simon contends that the Appellate Division erred by applying Anders procedures in the habeas context and by affirming the Territorial Court’s denial of his habeas petition. We review legal conclusions de novo and factual findings for clear error. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir.2011). Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel may seek to withdraw from representing an indigent criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). We exercise plenary review to determine whether there are any such issues. See Penson v. Ohio, 488 U.S. 75, 80-83 & n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We must determine: 1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an independent review of the record presents any nonfrivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). An appeal on a matter of law is frivolous where none of the legal points are arguable on their merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001). 1. The Appellate Division did not err by applying Anders procedures in the habeas context Simon argues that the Appellate Division erred by applying Anders procedures to allow court-appointed appellate counsel to withdraw from post-conviction representation. Simon urges this Court to impose a rule that would require such an attorney to fully brief the merits of an appeal of the denial of a habeas petition, even though there is no constitutional right to counsel in the habeas context. Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Because that right exists on direct appeal but not in" }, { "docid": "23630581", "title": "", "text": "See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g., United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and" }, { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" }, { "docid": "22660610", "title": "", "text": "supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing Tabb, 125 F.3d at 585, 586). Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders. Id. In his Anders brief before this Court, counsel’s analysis of the merits of the potential appealable issues constituted two pages. With regard to sentencing, counsel’s examination cites no case law, and is limited to the following: The sentence imposed upon the appellant also appears to have been without legal error. Based upon the calculation that the applicable base offense level was 18, with a criminal history category I, the imposition of a sentence of imprisonment of 33 months fell within the applicable guideline range. Thus, there is simply no basis for concluding that the District Court’s sentencing decision constituted an abuse of discretion. Appellant’s Br. Pursuant to Anders v. California at 4. Counsel fails to mention that the Presentence Investigation" }, { "docid": "8665026", "title": "", "text": "in support of his client’s appeal,” and “defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir.1993). In the two appeals before us, neither counsel has satisfactorily addressed the reasonableness of his or her client’s sentence. “We review sentences for reasonableness, which has both substantive and procedural dimensions.” United States v. Sindima, 488 F.3d 81, 84 (2d Cir.2007) (internal citations omitted); see also United States v. Williams, 475 F.3d 468, 474 (2d Cir.2007) (holding “that we review a sentence for reasonableness even after a District Court declines to resentence pursuant to Crosby”). The Anders brief submitted by Whitley’s counsel merely recites the legal standard for procedural reasonableness and describes the sentencing process. Counsel does not analyze the procedural reasonableness of Whitley’s sentence, and never mentions substantive reasonableness. Similarly, the brief submitted by Artis’s counsel identifies certain procedural errors that could render a sentence unreasonable, states conclusorily that “the record reveals that the district court did not commit any” such errors, and then describes certain determinations made by the district court without analyzing the reasonableness of these determinations or the sentence as a whole. A “brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a ‘conscientious examination’ of possible grounds for appeal.” United States v. Zuluaga, 981 F.2d 74, 75 (2d Cir.1992) (per curiam) (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). In addition, the failure to analyze reasonableness leaves us uncertain as to whether counsel diligently searched the record for any and all arguably meritorious claims in support of their clients’ appeals. “Counsel’s failure to submit a proper Anders brief works two harms. First, it fails to assist an appellate court ... in its review of a motion to affirm summarily a district court order or judgment.” Id. (internal quotation marks omitted). After all, “we may not independently determine the merits of an appeal, absent a properly prepared Anders brief.” Burnett, 989 F.2d at 104. “Second, and more importantly, [failure to submit a proper Anders brief] amounts to a" }, { "docid": "23465262", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. Kathy-Ann Tannis (Tannis) appeals a judgment of conviction and sentence the United States District Court for the District of New Jersey imposed on her after she pled guilty to a charge of possessing approximately 374 grams of a mixture containing cocaine base, with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). Tannis was sentenced pursuant to the Sentencing Reform Act. The applicable guideline prescribed a sentencing range of 121 to 151 months. The district court permitted a downward departure to the statutory minimum and imposed a sentence of 120 months followed by a five-year term of supervised release. Her motion for an extension of time to file a notice of appeal was allowed by the district court. Appellant’s Appendix (App.) at 2a. We have appellate jurisdiction over her appeal under 28 U.S.C.A. § 1291 (West Supp.1991). The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). Tannis’s counsel filed a brief pursuant to the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis’s appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process. After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date. In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "22660616", "title": "", "text": "credit card fraud in the following way: if the court determines that the defendant intended to use the stolen credit cards to their maximum limits but did not do so, the sum of those credit limits is plugged into § 2F1.1(b)(1) to determine the level that would apply if the crime had been completed, and then three is subtracted from this number per § 2X1.1. See United States v. Tobi, No. 91-3662, 1992 WL 78109 (6th Cir. Apr.17, 1992); United States v. Derryberry, Nos. 90-6563, 91-5005, 1991 WL 224061 (6th Cir. Oct.29, 1991). We believe that, in light of the Commentary’s reference to § 2X1.1, there is arguable merit to Youla’s sentencing claim. Where counsel’s brief is inadequate, the Seventh Circuit recommends denying the Anders motion and either directing counsel to file a new brief or discharging counsel and appointing a new lawyer for the defendant. See Wagner, 103 F.3d at 553. Our Local Appellate Rule 109.2(a) directs us to the second course — we discharge current counsel when we find arguable merit to the appeal. For the foregoing reasons, we reject the Anders brief filed by counsel in this case. The motion of counsel for leave to withdraw will be granted. See United States v. Orozco, 98 F.3d 105, 106, n. 2 (3d Cir.1996) (granting counsel’s Anders motion to withdraw where the brief was inadequate, and appointing new appellate counsel to examine the nonfrivolous issue). In accordance with our Local Appellate Rule 109.2(a), we shall order the Clerk to discharge current counsel, appoint substitute counsel, restore the case to the calendar, and fix a subsequent briefing schedule. . Mara had given the alias of \"Sidiky Mala” to obtain credit cards for two accounts. . With respect to the remaining arguments advanced by Youla, namely that the District Court erred in allowing Youla to plead guilty and in its finding that Youla's offense level should be increased four levels pursuant to § 3B1.1 of the Sentencing Guidelines for his being an organizer or leader of criminal activity involving five or more participants, we agree with counsel’s Anders brief that they" }, { "docid": "16002191", "title": "", "text": "and request permission to withdraw. Defense counsel also has the responsibility of filing a brief referring to anything in the record that may arguably support an appeal. 386 U.S. at 744, 87 S.Ct. 1396. We have stated that “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). In his Anders brief, Thomas’ counsel averred that upon a complete review of the record he concluded that there are no non-frivolous issues for appellate review. Further, in order to discharge the duty to cite to anything in the record that may arguably support an appeal, counsel’s Anders brief noted that Thomas applied for a downward departure but that the District Court, although recognizing that it had the authority to depart from the first-degree murder guideline where the defendant did not cause the death knowingly or intentionally, found that Thomas’ conduct was within the heartland of the guideline. Likewise, the District Court, acknowledging that it had authority to take into account various “discouraged sentencing factors” in considering a downward departure (here, Thomas’ asserted mental and emotional conditions and his limited education and vocational skills), held that it would not exercise this discretion to grant a downward departure in Thomas’ case. Finally, counsel’s Anders brief also referenced Thomas’ guilty-plea hearing — although counsel maintained that the Fed. R.Crim.P. 11 proceeding was sufficient in all respects. Appellate counsel then requested permission to withdraw. Further, as required by Anders, counsel gave Thomas notice of his brief and advised him that he had the opportunity to file a pro se brief. Thereafter, Thomas filed a pro se brief raising several issues. First, Thomas contends that Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precludes the application of U.S.S.G. § 2A1.1 to his case. Second, he complains that his Fed.R.Crim.P. 11 hearing was deficient in several respects. Finally, he raises an ineffective assistance of counsel claim." }, { "docid": "23465263", "title": "", "text": "Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis’s appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process. After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date. In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found none, we will affirm Tannis’s conviction and sentence. With respect to the plea proceeding, the Anders brief raises a question of whether the district court complied with Federal Rule of Criminal Procedure 11 before accepting Tannis’s guilty plea. As interpreted by McCarthy v. United States, 394 U.S. 459, 464-67, 89 S.Ct. 1166, 1169-71, 22 L.Ed.2d 418 (1969), a court must establish both that a defendant understands the charge to which she is pleading, which guarantees that the plea is voluntary and, that there is a factual basis for the plea. Here, the district court did make certain that Tannis had reviewed a copy of the indictment, that she understood it and that she had discussed it with counsel. App. at 7a. The district court then went on to review the rights that Tannis would be waiving by pleading guilty and the maximum penalties that could be imposed. App. at 21a-22a. The record concerning the Rule 11 plea colloquy demonstrates that Tannis had an adequate understanding of the charges to which she was pleading guilty. See" }, { "docid": "19929166", "title": "", "text": "April 12, 2005, the District Court for the Middle District of Pennsylvania (Kane, J.) held a sentencing hearing. Defendant’s counsel continued to argue that the offense level calculation was erroneous for the reasons cited in his earlier motion, but made no argument concerning his various theories of downward departure, other than indirectly by reference to his prior brief. He alluded to Booker, although not by name, and argued for a lower sentence than that called for by the Guidelines. (App. at pp. 38-40). The District Court implicitly denied the motion to downwardly depart and stated that “I don’t think there’s any question in my mind that the proper offense level is that of 24, with a criminal history category 3. That would be a guideline range of 63 to 78 months.” (App. at p. 60). At sentencing the District Court made no specific reference to Booker or § 3553(a) factors, although the District Judge did state that “I’m not bound by the guidelines.” (App. at p. 63). Moreover, the District Judge did briefly discuss the character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel" }, { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "22604665", "title": "", "text": "Court’s recent decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) rendered void any sentence imposed under the Federal Sentencing Guidelines. On July 27, 2005, this Court requested that the government either file a brief in this case or state its intention to not do so. On August 1, the government notified the Court via letter that it did not intend to submit a brief in this matter, on the ground that the issues raised are frivolous. The government did not mention or rely on Mr. Calderon’s appeal waiver in the plea agreement. Nor did the government file a motion to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004). DISCUSSION The Supreme Court’s decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Id. at 744, 87 S.Ct. 1396. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. Id. The client may then choose to submit arguments to the court. Id. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. Id. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. Id. After a full examination of the record and consideration of both Mr. Calderon’s response brief and the Anders brief filed by Attorney Breeze, we determine that there are no non-frivolous issues upon which Mr. Calderon has a basis for appeal. I. Appeal Waiver Attorney Breeze argues in his Anders brief that the appeal waiver in Mr. Calderon’s plea agreement bars this Court’s review of Mr. Calderon’s sentence, and therefore renders his appeal wholly frivolous. While the appeal waiver might well have provided a basis for dismissal of the appeal, had it been raised, this Court’s precedents preclude dismissal" }, { "docid": "22660614", "title": "", "text": "for the appellate court to be guided in reviewing the record by the An-ders brief itself.” Id. at 553. However, that is not the status of the brief here. Although the Anders brief does -not assist us, we note that Youla’s pro se brief does provide this Court with some guidance concerning the issues he wishes to raise on appeal. Although not the brief of counsel, we find that it “explains the nature of the case and ... discusses the issues that the type of case might be expected to involve.” In such a circumstance, we extrapolate from Wagner’s recommendation that we confine our scrutiny to those portions of the record identified by an adequate Anders brief, see id., so that our examination of the record is informed by those issues raised in Appellant’s pro se brief. An appeal on a matter of law is frivolous where “[none] of the legal points [are] arguable on their merits.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Anders, 386 U.S. at 744, 87 S.Ct. 1396). After examining the record, we find that Youla has raised a nonfrivolous issue with respect to his sentencing, particularly whether the District Court correctly determined the intended loss at $400,000 based the credit limit of eight credit cards. When applying § 2F1.1 of the Sentencing Guidelines, courts are bound by the Commentary thereto. See United States v. Geevers, 226 F.3d 186, 189 (3d Cir.2000) (citing Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). Application Note 8 of the corre sponding Commentary provides in relevant part: Consistent with the provisions of S 2X1.1 (Attempt, Solicitation, or Conspiracy), if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss. Sentencing Guidelines § 2F1.1, cmt. n. 8 (1998).. In § 2X1.1, judges are instructed to calculate the offense level for an attempted offense by taking the number for the completed offense and subtracting three. These sections might be applied to" }, { "docid": "16002190", "title": "", "text": "SLOVITER, Circuit Judge. Marshaun Thomas appeals from his conviction and sentence following a guilty plea. Finding no error, we will affirm. I. On September 26, 2002, Thomas pled guilty to participating in a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). The predicate racketeering acts committed by Thomas supporting his RICO conviction were the felony murder of Alex Irizarry on August 12, 1998 and a bank robbery on October 30, 2000. After accepting his guilty plea, the District Court sentenced Thomas to 360 months of incarceration, but acceded to Thomas’ request that he be credited for the thirty months that he had already served in State custody. Following entry by the District Court of its final order, Thomas’ counsel filed an appellate brief in this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which holds that if appointed counsel, after a conscientious examination of the case, finds an appeal to be wholly frivolous, s/he must advise the court and request permission to withdraw. Defense counsel also has the responsibility of filing a brief referring to anything in the record that may arguably support an appeal. 386 U.S. at 744, 87 S.Ct. 1396. We have stated that “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). In his Anders brief, Thomas’ counsel averred that upon a complete review of the record he concluded that there are no non-frivolous issues for appellate review. Further, in order to discharge the duty to cite to anything in the record that may arguably support an appeal, counsel’s Anders brief noted that Thomas applied for a downward departure but that the District Court, although recognizing that it had the authority to depart from the first-degree murder guideline where the defendant did not cause the death knowingly or intentionally, found that Thomas’ conduct" }, { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" }, { "docid": "22660608", "title": "", "text": "counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Id.; see also Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (stating that equal justice demands that destitute defendants be afforded adequate appellate review). This Court’s role is then to decide whether the case is wholly frivolous. If so, the Court can grant counsel’s motion to withdraw and dismiss the appeal under federal law, or proceed to a decision on the merits if state law so requires. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. The Supreme Court recently explained in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 753, 145 L.Ed.2d 756 (2000), that the Anders guidelines are only suggestive, not prescriptive. See also United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order" } ]

[ { "docid": "22616643", "title": "", "text": "record, but it was entitled to rely on it, so long as in doing so it did not overlook any contradictory evidence directly presented by the petitioner. See Tian-Yong Chen v. INS, 359 F.3d 121, 127-30 (2d Cir.2004) (remanding where IJ, in reliance on general conditions in a country report, had failed to consider direct, particular evidence of petitioner’s past persecution). The only relevant evidence that Huang adduced to support his claim was testimony about his sister-in-law’s experiences, the record of his daughter’s birth, and a letter indicating his wife’s pregnancy. Huang’s testimony that his sister-in-law had been forcibly sterilized was sparse and uncorroborated, and would not be probative even if believed because Huang omitted any evidence that might bear on whether Huang might be in similar circumstances (such as the locality in which this woman lived, when she was sterilized, her marital status and the number and sex of her children at that time, and so on). Moreover, Huang has two older sisters, one with two sons and one with three children, and he made no allegation that they had been penalized in any way for having children. In the absence of solid support in the record for Huang’s assertion that he will be subjected to forced sterilization, his fear is speculative at best. See INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (well-founded fear does not require high probability of persecution, but does require “an objective situation... established by the evidence”) (quoting INS v. Stevic, 467 U.S. 407, 424-25, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). “Because the withholding of removal analysis overlaps factually with the asylum analysis, but involves a higher burden of proof, an alien who fails to establish his entitlement to asylum necessarily fails to establish his entitlement to withholding of removal.” Ramsameachire, 357 F.3d at 178. For the foregoing reasons, we deny Huang’s petition. In so ruling, the BIA apparently assumed, without specifically deciding, that a Chinese national can support an asylum claim with evidence of children born to him after his illegal entry into the United States." } ]

[ { "docid": "23309377", "title": "", "text": "PER CURIAM: Petitioner Jin Xiu Chen, a citizen of the People’s Republic of China, seeks review of a January 20, 2006 order of the Board of Immigration Appeals (“BIA”) affirming the September 21, 2004 decision of Immigration Judge (“IJ”) Jeffrey S. Chase denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006), aff'g No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Sept. 21, 2004). In its order, the BIA also denied Chen’s motion to remand. In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006). Chen’s sole claim for relief is that she fears forced sterilization if she is returned to her home city of Changle City, Fujian Province, because she has three U.S.-born children. For the reasons to be discussed, because the documents identified in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and several documents submitted by Chen that the BIA did not address, suggest the existence an official policy of forced sterilization in Changle City, we remand this case to the BIA to determine the validity, scope, and import of these documents and to reconsider Chen’s claim of future persecution in light of them. In an accompanying summary order, we address the other arguments presented in Chen’s petition for review. The IJ found that Chen had failed to present evidence sufficient to establish that she would face forced sterilization if returned to her home city in China. Both this Court and the BIA have concluded that the evidence previously available to support Chinese asylum applicants’ claims of forced sterilization, including the oft-submitted “Aird Affidavit” prepared by retired demographer and immigration expert Dr. John S. Aird, was inadequate to establish the existence of an official policy of forced sterilization on the part of any Chinese province or locality, and thus insufficient to show that the applicants were likely to face forced sterilization if returned to China. See Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006)" }, { "docid": "23202829", "title": "", "text": "(3d Cir.2005), the record here does not compel a finding that Ms. Chen herself faces the prospect of fines that will rise to this level. Petitioners also argue that the BIA and the IJ erred in rejecting as unauthentieated the notice from Ms. Chen’s Village Committee. According to petitioners, the notice, which was purportedly obtained by Ms. Chen’s mother, establishes to a reasonable probability that Ms. Chen will be forcibly sterilized in her local community, and she suggests that her credible testimony alone sufficed to authenticate the document. The BIA, however, properly observed that the Village Committee document had not been authenticated by any means at all, such as an affidavit from Ms. Chen’s mother as to how the document was obtained. Thus, the IJ properly discounted the document. Further, the BIA properly applied the rule that, “even where an applicant is credible, corroboration may be required if the applicant is to meet her burden of proof.” Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir.2005). In short, we discern no reversible error in the denial of petitioners’ claims for asylum. Because withholding of removal carries a higher burden of proof than asylum, the request for withholding was properly denied, as well. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004). Finally, because petitioners do not challenge the denial of CAT relief in their brief before this Court, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). We have considered whether our recent decision in Huang v. Att’y Gen., 620 F.3d 372 (3d Cir.2010), warrants a remand of this matter to the BIA, but we conclude that it does not. In Huang, the BIA reversed an IJ’s decision to grant asylum based on a finding that the petitioner had an objectively well-founded fear that she would be forcibly sterilized upon returning to China with her two children born in the United States. This Court observed that, in reversing the IJ’s determination that Huang’s fear was well-founded, the BIA had “failed to address any evidence [of record]" }, { "docid": "10728824", "title": "", "text": "list Chen on the back of their hukou; though this did not legalize him, it did allow him to attend school as long as his parents continued to pay the ongoing fines. Their ability to do so ran out before he reached high school. When he was 17 years old, Chen left China for the United States and upon arrival was immediately detained by immigration officials. He applied for asylum, withholding of removal, and protection under the Convention Against Torture, arguing that he has been or will be persecuted because of his family’s resistance to China’s one-child policy and his membership in social groups that include his family and the hei haizi. See 8 U.S.C. § 1101(a)(42)(B) (persecution on account of political opinion includes persecution for resistance to a coercive population-control program). An Immigration Judge (“IJ”) denied relief, and the Board of Immigration Appeals (“BIA”) affirmed. Chen petitioned this court for review. We grant the petition and remand to the immigration agency for further proceedings. The agency’s analysis of Chen’s asylum claim was incomplete. The BIA failed to address Chen’s claim of past persecution based on imputed political opinion — • that is, the persecution that his mother and other family members suffered for their resistance to China’s coercive population-control policy. His mother’s forcible sterilization does not automatically entitle Chen to a finding of past persecution, but it may in combination with other evidence show that his family’s resistance to China’s population-control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon Chen and his family— and the future hardships he would face if returned — when evaluating Chen’s fear of future persecution. I. Background Chinese law significantly restricts the freedom of its citizens to bear children. No family is permitted to have more than two children, and Chinese law limits most families to one child. Bureau of Democracy, Human Rights & Labor, U.S. Department of State, China: Profile of Asylum Claims and Country Conditions 21 (Oct. 2005) (“2005 Country Report”). Married couples are required to use birth control and" }, { "docid": "23202818", "title": "", "text": "OPINION OF THE COURT SLOVITER, Circuit Judge. Ying Chen and her husband Qiang Chen (collectively, “petitioners”) seek review of a final removal order entered by the Board of Immigration Appeals (“BIA”). At issue is the frequently encountered issue of asylum for the Chinese parents of American born children whose birth exceeds the maximum under China’s population control rales. Mr. Chen, a native and citizen of China, Fujian Province, entered the United States in 1996 without inspection. Ms. Chen, also from China, Fujian Province, entered in 2003 without inspection. The couple married here in 2005 and have had two sons, born in 2005 and 2008, both United States citizens. In 2008, after the Department of Homeland Security served Notices to Appear, petitioners conceded their removability before an Immigration Judge (“IJ”). They applied for asylum, withholding of removal, Convention Against Torture (“CAT”) relief, and, alternatively, voluntary departure. Petitioners—principally Ms. Chen, the lead applicant and sole witness to testify before the IJ—claim that they fear persecution upon return to China for having violated the one-child policy in that Ms. Chen will be forcibly sterilized and/or face economic persecution. The IJ denied relief. Among other things, the IJ found that Ms. Chen’s stated desire to have a third child upon return to China is speculative, and that, under the holding in Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), she failed to show a well-founded fear that she would be forcibly sterilized upon returning with her two United States citizen children. The IJ also denied withholding of removal and found no evidence showing a likelihood that Ms. Chen will be subjected to torture upon return. Petitioners filed a motion with the IJ to reopen the record and for reconsideration. They submitted an affidavit from an aunt of Ms. Chen, who stated that she was forcibly sterilized upon returning to China with two children that she had while in Japan. The IJ denied petitioners’ motion, noting that they had ample opportunity to present all evidence at the merits hearing, and that the evidence from the aunt was available and could have been" }, { "docid": "2353116", "title": "", "text": "MANION, Circuit Judge. Yi Xian Chen illegally entered the United States in 2006. Shortly thereafter, his wife gave birth to the couple’s second child in China. Chinese authorities then forcibly sterilized her. In the United States, Chen filed for asylum, withholding of removal, and relief under the Convention Against Torture, arguing that he suffered persecution when he learned that his wife had been forcibly sterilized. The Department of Homeland Security sought to remove Chen to China. While his removal proceedings were pending, Chen began practicing Falun Gong, and then supplemented his requests for relief from removal arguing that he feared future persecution because of his Falun Gong activities. Concluding that Chen had not suffered past persecution and lacked a well-founded fear of future persecution, an Immigration Judge denied Chen’s requests for relief. The Board of Immigration Appeals affirmed, and Chen petitioned this court for review. Because the agency did not err, we deny Chen’s petition for review. I. Background Chen and his wife, nationals of the People’s Republic of China, had their first child in 2001. In 2003 and 2005, Chen unsuccessfully attempted to enter the United States to seek employment. In 2006, after his wife became pregnant again, Chen illegally entered the United States at the Mexican border. Some months later, Chen’s wife gave birth to the couple’s second child in China. Fearing persecution, Chen’s wife hid at her uncle’s home. Nevertheless, Chinese authorities discovered and forcibly sterilized her. Subsequently, Chen filed a timely application for asylum. Thereafter, the Department of Homeland Security (“DHS”) initiated removal proceedings against Chen. In 2009, while his removal proceedings were pending, Chen began practicing Fa-lun Gong. He then added his practice of Falun Gong as an additional basis for his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Chen testified that he practices Falun Gong primarily in his home, but that sometimes he practices outside. Chen also testified that he reads materials and has passed out fliers related to Falun Gong. Chen testified that if he were sent back to China he would continue to practice Falun Gong" }, { "docid": "10728829", "title": "", "text": "United States. Upon arrival in this country, he was detained by immigration officials and placed in removal proceedings. Chen conceded removability and applied for asylum, withholding of removal, and protection against removal under the Convention Against Torture (“CAT”). Citing his family’s history of persecution for violating China’s one-child policy, he claimed he would be targeted for forced sterilization and other persecution if returned to China. The IJ who heard Chen’s ease credited his testimony (it was corroborated by several affidavits — most notably, one from his father) but rejected his claims for relief, concluding that Chen had not established past persecution or a well-founded fear of future persecution. In the IJ’s view, the economic plight his family suffered on account of his birth was not severe enough to be considered past persecution, especially since Chen had never been detained by Chinese authorities and had been permitted to attend school. The IJ also rejected Chen’s argument that he had a well-founded fear of persecution based on his status as a member of the hei haizi. The BIA affirmed the IJ’s decision but conducted its own analysis. Acknowledging that economic harm can constitute persecution in appropriate circumstances, the BIA held that the economic hardship Chen’s family suffered was not significant enough to constitute persecution. The BIA also rejected Chen’s argument that he had a well-founded fear of future persecution; the agency based this conclusion on the fact that Chen had found employment after his family could no longer afford the fines necessary to permit him to attend school and had also obtained a Chinese passport before leaving the country. Finally, the BIA rejected Chen’s claim that he would be targeted for sterilization based on his family’s resistance to China’s population-control policy. The BIA noted that it had never before held that “the political opinion of a parent who has been forcibly sterilized can be imputed to that parent’s child,” and “current case-law [in the Seventh Circuit] does not allow the respondent’s mother’s political opinion to be imputed to him.” Chen petitioned this court for review. II. Discussion Where, as here, the BIA" }, { "docid": "23202826", "title": "", "text": "Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). “ ‘A person who has a well founded fear that he or she will be forced to abort a pregnancy or undergo involuntary sterili zation or is subject to persecution for failure, refusal, or resistance to undergo such a procedure shall be deemed to have a well founded fear of persecution on account of political opinion.’” Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.2008) (alterations omitted) (quoting 8 U.S.C. § 1101(a)(42)(B)). The BIA agreed with the IJ’s analysis and found that the birth of petitioners’ two children does not warrant asylum, citing both this Court’s decision in Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008) (holding that substantial evidence supported determination that petitioners failed to show that fear of sterilization was objectively reasonable), and its own decision in Matter of J-W-S- 24 I. & N. Dec. at 189-90 (rejecting evidence that petitioner had well-founded fear of forcible sterilization based on returning to China with U.S. born children). Contrary to petitioners’ suggestion, the BIA and the IJ did not ignore their evidence or fail to conduct a case-specific analysis of the evidence. Moreover, the record supports the finding that Ms. Chen does not have a well-founded fear of future persecution. The IJ cited evidence in the record from the State Department Reports and a Law Library of Congress Report indicating that petitioners’ children will not be considered Chinese nationals upon return. As we have explained, “State Department reports may constitute substantial evidence.” Yu, 513 F.3d at 349. The BIA expressly rejected petitioners’ efforts to distinguish the evidence in their case from Matter of J-W-S- and Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and was not persuaded that petitioners’ children will be considered Chinese citizens. Petitioners have not shown that the record compels a contrary finding. Nor do petitioners challenge the IJ’s finding that their stated desire to have a third child upon return to China is “speculative” and insufficient to warrant relief. Given the record, we cannot disturb the finding that Ms. Chen failed to establish" }, { "docid": "22804972", "title": "", "text": "category of people automatically eligible for asylum based on forced abortion or sterilization beyond the person subjected to the procedure and his or her spouse. We have concluded that “parents and in-laws of people persecuted under a coercive family planning policy are not per se eligible for political asylum,” id. at 197, and that “children of those directly victimized by coercive family planning polices [are precluded] from establishing that they are per se as eligible for relief as those directly victimized,” Shao Yan Chen v. U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir.2005) (per curiam) (emphasis omitted). Wang was neither married to his current wife at the time she underwent a forced abortion, nor was he the father of the aborted fetus. He therefore can show no relationship with his wife at the time of her abortion that was stronger than the relationship existing between a person persecuted under China’s coercive population polices and that person’s children, parents, or in-laws — all of whom bear relationships to the person subjected to forced abortion or sterilization that this Court has rejected as qualifying for per se eligibility for asylum. Wang also asserts that he has a well-founded fear of persecution because he has a child in China and because his wife recently gave birth in the United States to the couple’s first child. Wang has, however, presented no evidence to show the likelihood that a person in his situation would be subject to persecution if he returned to China with children born in the United States. His claim is therefore speculative and fails to meet the standard for a well-founded fear of persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (concluding that, “[i]n the absence of solid support in the record” for petitioner’s assertion that he will be subjected to persecution on account of his two United States born children, “his fear is speculative at best”). Because Wang does not raise his claim of withholding of removal in his petition to this Court, he has waived any challenge to the agency’s denial of that" }, { "docid": "23202819", "title": "", "text": "Ms. Chen will be forcibly sterilized and/or face economic persecution. The IJ denied relief. Among other things, the IJ found that Ms. Chen’s stated desire to have a third child upon return to China is speculative, and that, under the holding in Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), she failed to show a well-founded fear that she would be forcibly sterilized upon returning with her two United States citizen children. The IJ also denied withholding of removal and found no evidence showing a likelihood that Ms. Chen will be subjected to torture upon return. Petitioners filed a motion with the IJ to reopen the record and for reconsideration. They submitted an affidavit from an aunt of Ms. Chen, who stated that she was forcibly sterilized upon returning to China with two children that she had while in Japan. The IJ denied petitioners’ motion, noting that they had ample opportunity to present all evidence at the merits hearing, and that the evidence from the aunt was available and could have been presented previously. The BIA affirmed and dismissed petitioners’ appeal, finding that petitioners failed to show an objective, well-founded fear of persecution. The BIA agreed with the IJ that petitioners do not warrant asylum based on the birth of their two children, and it rejected petitioners’ efforts to distinguish their case from Matter ofJ-WS-. The BIA rejected, in particular, the argument that petitioners’ children will be considered Chinese citizens for purposes of enforcing population control policy. The BIA also affirmed the IJ’s decision to reject, for lack of authentication, a letter that Ms. Chen’s mother purportedly had obtained from the local Village Committee which indicated that Ms. Chen would be sterilized upon return. Further, the BIA found no evidence to support petitioners’ claim that they may suffer economic persecution, and it held that Ms. Chen had failed to show that she is likely to be tortured, either because she gave birth to two children or because she illegally emigrated. Finally, the BIA denied petitioners’ request for a remand so that the IJ could consider evidence regarding" }, { "docid": "23202820", "title": "", "text": "presented previously. The BIA affirmed and dismissed petitioners’ appeal, finding that petitioners failed to show an objective, well-founded fear of persecution. The BIA agreed with the IJ that petitioners do not warrant asylum based on the birth of their two children, and it rejected petitioners’ efforts to distinguish their case from Matter ofJ-WS-. The BIA rejected, in particular, the argument that petitioners’ children will be considered Chinese citizens for purposes of enforcing population control policy. The BIA also affirmed the IJ’s decision to reject, for lack of authentication, a letter that Ms. Chen’s mother purportedly had obtained from the local Village Committee which indicated that Ms. Chen would be sterilized upon return. Further, the BIA found no evidence to support petitioners’ claim that they may suffer economic persecution, and it held that Ms. Chen had failed to show that she is likely to be tortured, either because she gave birth to two children or because she illegally emigrated. Finally, the BIA denied petitioners’ request for a remand so that the IJ could consider evidence regarding the aunt’s sterilization, holding that the IJ properly refused to reopen the proceedings to consider evidence that was previously available. Petitioners timely filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our review is of the BIA’s decision, although we also review the IJ’s decision to the extent that the BIA adopted or deferred to the IJ’s analysis. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). “We review factual findings, including findings of persecution and fear of persecution, under the substantial evidence standard.” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009). “Under this deferential standard, findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quotation marks omitted). Petitioners argue that Ms. Chen established that her fear of future persecution is well-founded. They contend that the BIA and the IJ engaged in “generic reliance” on the holding in Matter of J-WS- and failed to consider evidence showing that petitioners’ children will be treated as Chinese citizens, which" }, { "docid": "10728825", "title": "", "text": "BIA failed to address Chen’s claim of past persecution based on imputed political opinion — • that is, the persecution that his mother and other family members suffered for their resistance to China’s coercive population-control policy. His mother’s forcible sterilization does not automatically entitle Chen to a finding of past persecution, but it may in combination with other evidence show that his family’s resistance to China’s population-control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon Chen and his family— and the future hardships he would face if returned — when evaluating Chen’s fear of future persecution. I. Background Chinese law significantly restricts the freedom of its citizens to bear children. No family is permitted to have more than two children, and Chinese law limits most families to one child. Bureau of Democracy, Human Rights & Labor, U.S. Department of State, China: Profile of Asylum Claims and Country Conditions 21 (Oct. 2005) (“2005 Country Report”). Married couples are required to use birth control and must obtain official permission — in the form of a “birth permit” — before having a second child; some provinces require a birth permit for a first child as well. Id. at 22. Violations carry heavy fines — “social maintenance and compensation” fees — as well as other consequences for the parents, including job loss or demotion, imprisonment in a “population school,” and forcible abortion or sterilization. Id. at 22-23. Lawfully born Chinese children are listed on the family hukou, a registration document that entitles family members to the rights of full citizenship. Children born unlawfully are known as the hei haizi (meaning “black children”) and are ineligible for registration on the hukou. Immigration & Naturalization Service, U.S. Department Of Justice, Perspective Series: Chinese State Birth Planning in the 1990s and Beyond 38 (Sept. 2001). These “un planned persons” are denied the right to state-provided elementary schooling, higher education, health care, and other governmental services and benefits. Id. As adults they are excluded from many jobs, may not purchase property, and may be denied the" }, { "docid": "2353126", "title": "", "text": "concluding that emotional distress based on a spouse’s forced sterilization and ectopic pregnancy does not amount to past persecution); Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 309 (2d Cir.2007) (holding that the “profound emotional loss” arising from a spouse’s forced abortion does not in itself qualify an applicant for “refugee” status). Emotional distress based on a spouse’s forced sterilization does not fit the definition of persecution used in this circuit—namely, “ ‘detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture, behavior that threatens the same, and non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe.’ ” Shan Zhu Qiu, 611 F.3d at 405 (quoting Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004)). And Chen has not offered any evidence that he was persecuted for resisting China’s population-control program. See Matter of J-S- 24 I. & N. Dec. at 537-38. In fact, Chen admitted that he did not actively protest his wife’s sterilization, which occurred after he left China, and that the Chinese government never targeted him while he was in China. Consequently, the record does not compel a finding that Chen suffered past persecution. Because Chen did not suffer past persecution, he carries the burden of proving that he has a well-founded fear of future persecution. Chen contends that he has a well-founded fear of persecution based upon his recently acquired practice of Fa-lun Gong. The DHS does not argue that a Falun Gong practitioner cannot qualify for asylum or that Chen is not a bona fide Falun Gong practitioner. Nor does the DHS dispute that Chen’s fear of persecution is subjectively genuine. Thus, the only question for us is whether the agency erred in finding that Chen failed to meet his burden of proving that his fear of persecution is objectively reasonable. The IJ and Board concluded that Chen did not establish a reasonable possibility that he would be persecuted because he failed to offer evidence that his practice of Falun Gong in China would attract the attention of the authorities. The record" }, { "docid": "10728836", "title": "", "text": "Dec. at 534-35 (“Some spouses may not have ‘resisted,’ and in fact may have affirmatively supported, the forced abortion or sterilization procedure that was performed on the spouse who remains in China.... [Applicant must present proof, of which their spouse’s treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in ‘other resistance’ to a coercive population control program, or of persecution on account of another ground for asylum enumerated in the Act.”). The Attorney General’s interpretation of § 1101(a)(42)(B) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the rationale of Matter of J-S applies with equal force to the claim of an asylum-seeker like Chen whose parent has been forced to have an abortion or undergo sterilization. See Chen v. U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir.2005) (per curiam) (“[C]hildren are not per se as eligible for relief ... as those directly victimized themselves.”); Zhang v. Gonzales, 408 F.3d 1239, 1245-46 (9th Cir.2005) (same); Wang v. Gonzales, 405 F.3d 134, 142-43 (3d Cir.2005) (same). So Chen does not fall into the first category of refugees created by § 1101(a)(42)(B). Under the rationale of Matter of J-S-, Chen is not automatically eligible for asylum because his mother was sterilized against her will. Nor does Chen fall into the second class of refugees; he has not “failed or refused” to be sterilized and has not otherwise “resisted” China’s one-child policy. He may, however, fall within the third and fourth classes of refugees under § 1101(a)(42)(B) — those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue here), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program. Chen has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one-child policy. Chen’s claim is thus based partly on a theory of imputed political opinion. He contends that Chinese population-control" }, { "docid": "10728830", "title": "", "text": "BIA affirmed the IJ’s decision but conducted its own analysis. Acknowledging that economic harm can constitute persecution in appropriate circumstances, the BIA held that the economic hardship Chen’s family suffered was not significant enough to constitute persecution. The BIA also rejected Chen’s argument that he had a well-founded fear of future persecution; the agency based this conclusion on the fact that Chen had found employment after his family could no longer afford the fines necessary to permit him to attend school and had also obtained a Chinese passport before leaving the country. Finally, the BIA rejected Chen’s claim that he would be targeted for sterilization based on his family’s resistance to China’s population-control policy. The BIA noted that it had never before held that “the political opinion of a parent who has been forcibly sterilized can be imputed to that parent’s child,” and “current case-law [in the Seventh Circuit] does not allow the respondent’s mother’s political opinion to be imputed to him.” Chen petitioned this court for review. II. Discussion Where, as here, the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, we review the BIA’s decision. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). The agency’s legal conclusions are reviewed de novo. See Mekhtiev v. Holder, 559 F.3d 725, 729 (7th Cir.2009). We will uphold the agency’s factual findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir.2008) (quotation marks omitted). Under this deferential standard of review, reversal is warranted only if “the evidence compels a different result”; we will not overturn the agency’s findings simply because we might have decided the case differently. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). On the other hand, remand may be warranted when the agency overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record. See Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir.2007); Chitay-Pirir v. INS, 169 F.3d 1079, 1081" }, { "docid": "6333924", "title": "", "text": "Ashcroft, 361 F.3d 553, 560-61 (9th Cir.2004). The BIA, therefore, was put on notice that Wu was challenging the IJ’s determination that he was statutorily ineligible for asylum based on Lin’s forced abortion. We thus reject the government’s argument that we are without jurisdiction to hear this appeal. Nevertheless, substantial evidence supports the IJ’s conclusion that Wu was statutorily ineligible for asylum based on Lin’s experiences. The IJ properly rejected Wu’s argument that asylum protection extends to unmarried partners of women who have been persecuted under China’s family planning laws. See Chen v. Ashcroft, 381 F.3d 221, 228-29 (3d Cir.2004). Further, we note that Wu would not meet the definition of a refugee even if his traditional marriage was recognized by the Chinese government, as we recently held that the Immigration and Nationality Act does not extend automatic refugee status to spouses or unmarried partners of individuals who have been forcibly subjected to family planning measures. See LinZheng, 557 F.3d at 156 (“[Tjhere is no room for us to conclude that Congress intended to extend refugee status to anyone other than the individual who has either been forced to submit to an involuntary abortion or sterilization, has been persecuted for failure or refusal to undergo such a procedure, or has a well-founded fear of that occurring in the future.”) (emphasis omitted). Therefore, as a matter of law, Lin’s experiences cannot establish Wu’s eligibility for asylum. Because Wu’s asylum claim is predicated on his relationship to Lin, and because he cannot establish eligibility for asylum on this basis, we need not determine whether the IJ’s adverse credibility finding was supported by substantial evidence. Additionally, to the extent that Wu did not waive review of his application for withholding of removal or CAT relief, the IJ properly rejected those claims. Accordingly, after a careful review of the record, we will deny the petition for review. . Wu’s brief to this Court mentions that when they could not locate him or Lin, the family planning officials destroyed his furniture and imposed a fine. He asserts that this economic loss, combined with Lin’s abortion," }, { "docid": "23344900", "title": "", "text": "PER CURIAM. Petitioner Zhou Yi Ni, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of an October 28, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a November 23, 1999 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and withholding of removal. Petitioner also appeals the BIA’s denial of a remand for consideration of his claims under the Convention Against Torture (“CAT”), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We begin by addressing petitioner’s application for asylum and withholding of removal. Where, as here, the BIA summarily affirmed the IJ’s decision to deny asylum, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Petitioner’s asylum claim rests on the persecution he allegedly suffered for violating China’s coercive family planning policy. In particular, petitioner testified that his wife was involuntarily sterilized by China’s authorities after the birth of the couple’s second child. Petitioner further claimed that, upon return to China, he would be persecuted for having fathered two children. The IJ found petitioner not credible, based in part on serious contradictions between petitioner’s account of his wife’s sterilization and his wife’s own asylum application. The IJ also found that petitioner had not established that he had himself suffered past persecution or that he had a well-founded fear of future persecution. Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude" }, { "docid": "23309378", "title": "", "text": "address, suggest the existence an official policy of forced sterilization in Changle City, we remand this case to the BIA to determine the validity, scope, and import of these documents and to reconsider Chen’s claim of future persecution in light of them. In an accompanying summary order, we address the other arguments presented in Chen’s petition for review. The IJ found that Chen had failed to present evidence sufficient to establish that she would face forced sterilization if returned to her home city in China. Both this Court and the BIA have concluded that the evidence previously available to support Chinese asylum applicants’ claims of forced sterilization, including the oft-submitted “Aird Affidavit” prepared by retired demographer and immigration expert Dr. John S. Aird, was inadequate to establish the existence of an official policy of forced sterilization on the part of any Chinese province or locality, and thus insufficient to show that the applicants were likely to face forced sterilization if returned to China. See Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006) (finding that the Aird Affidavit was insufficient to establish the existence of a policy of forced sterilization in China); Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.2005) (concluding that the petitioner’s claim that he faced forced sterilization in China was “speculative at best” because he offered as support for his claim only his own uncorroborated testimony that his sister-in-law had been forcibly sterilized); In re C-C-, 23 I. & N. Dec. 899, 903 (B.I.A.2006) (finding the Aird Affidavit insufficient to establish prima facie eligibility for relief on a claim of forced sterilization). With several exceptions that we discuss below, most of the evidence Chen submitted, including the Aird Affidavit and her uncorroborated testimony that her elder sister, paternal aunt, and sister-in-law had been forcibly sterilized, was too general or speculative under our precedent and the BIA’s to establish the existence of an official policy of forced sterilization in Changle City or Fujian Province generally to which she would be subject if returned. The documents recently addressed by this Court in Shou" }, { "docid": "23202821", "title": "", "text": "the aunt’s sterilization, holding that the IJ properly refused to reopen the proceedings to consider evidence that was previously available. Petitioners timely filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our review is of the BIA’s decision, although we also review the IJ’s decision to the extent that the BIA adopted or deferred to the IJ’s analysis. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). “We review factual findings, including findings of persecution and fear of persecution, under the substantial evidence standard.” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009). “Under this deferential standard, findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quotation marks omitted). Petitioners argue that Ms. Chen established that her fear of future persecution is well-founded. They contend that the BIA and the IJ engaged in “generic reliance” on the holding in Matter of J-WS- and failed to consider evidence showing that petitioners’ children will be treated as Chinese citizens, which gives rise to their fear that Ms. Chen will be sterilized or subjected to onerous fines for having had more than one child. Petitioners’ Br. at 24. The BIA’s recent opinion in Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010), contains a comprehensive discussion that persuasively addresses many of the issues before us. This court has not previously considered in a precedential opinion the BIA’s latest view of this issue. The respondents there, like the Chens here, were natives and citizens of China who hailed from the Fujian Province and had two United States citizen children. Id. at 210. They claimed that if they returned to China, and specifically the Fujian Province, the female respondent would be subject to forced sterilization as well as a significant fine. Id. The IJ agreed and granted the respondent’s application for asylum. Id. The BIA vacated the opinion of the IJ, concluding that the respondent had not shown that she possessed a well-founded fear of forcible sterilization or other sanctions rising to the level" }, { "docid": "10728828", "title": "", "text": "she broke both her ankles, and the baby was stillborn. Because Chen was born illegally, he could not be registered on the hukou and his family was denied the food and land allocation provided for lawfully born children. Payment of additional, ongoing fines allowed his family to list Chen’s name on the back of their hukou. This permitted him to attend school as long as his parents continued to pay; they were able to do so through the equivalent of middle-school but not beyond. (Chen’s father is a subsistence farmer and works odd jobs for extra income to support the family.) As a member of the hei haizi, Chen asserts that he is denied access to health care and other governmental services; is excluded from higher education and many types of employment; and will be denied the right to marry and have children, the right to own property, and the right to freely travel within and outside of China. In 2004, when he was 17, Chen obtained false travel documents and fled China for the United States. Upon arrival in this country, he was detained by immigration officials and placed in removal proceedings. Chen conceded removability and applied for asylum, withholding of removal, and protection against removal under the Convention Against Torture (“CAT”). Citing his family’s history of persecution for violating China’s one-child policy, he claimed he would be targeted for forced sterilization and other persecution if returned to China. The IJ who heard Chen’s ease credited his testimony (it was corroborated by several affidavits — most notably, one from his father) but rejected his claims for relief, concluding that Chen had not established past persecution or a well-founded fear of future persecution. In the IJ’s view, the economic plight his family suffered on account of his birth was not severe enough to be considered past persecution, especially since Chen had never been detained by Chinese authorities and had been permitted to attend school. The IJ also rejected Chen’s argument that he had a well-founded fear of persecution based on his status as a member of the hei haizi. The" }, { "docid": "22611219", "title": "", "text": "and therefore there seemed little risk of pregnancy. Chen responded that “[t]hey don’t care, as long as you gave birth to two, two children, and then they don’t care, either the male or the female must be sterilized.” AR at 173. According to Chen, his wife stayed at her mother’s home after he left China, but she had to return to their home because it was the anniversary of the death of Chen’s mother. Chen testified that the authorities found his wife at their home and brought her to Mawei Hospital for the sterilization. A letter submitted by Chen from his wife states, however, that the family planning officials found her at her parents’ home and took her for the sterilization from there. Chen testified that he was applying for political asylum because he violated China’s family planning policies and sold Fa-lun Gong books in his bookstore. He indicated that he feared returning to China because he might be sterilized. When the IJ asked why the authorities would sterilize him inasmuch as his wife already had been sterilized, he stated that he would not be sterilized and had “made a mistake.” AR at 185. At the conclusion of the hearing, the IJ issued an oral decision denying Chen relief. In particular, the IJ found that Chen failed to establish a well-founded fear of persecution, a necessary showing for him to be eligible for asylum. Therefore, the IJ found that it was not necessary to consider whether Chen was eligible for relief as a matter of discretion. The IJ also denied Chen’s application for withholding of removal and found that Chen had not shown that more likely than not he would be tortured if he returned to China, and, accordingly, he did not merit protection under the Convention Against Torture. In reaching his conclusions, the IJ found that Chen’s testimony lacked credibility in several respects. First, the IJ explained that he found Chen’s testimony that on two occasions his wife had an IUD inserted on the same day she had an abortion as “not only incredible but also implausible.” The IJ" } ]

[ { "docid": "11005616", "title": "", "text": "PHILLIPS, Circuit Judge. On May 3, 1941, the Central Construction Company entered into a contract with the United States to construct certain improvements at Municipal Airport No. 1 in Tulsa, Oklahoma. On the same day, Central, as principal, and the Continental Casualty Company, as surety, executed a payment bond pursuant to the requirements of the Miller Act, 40 U.S.C.A. §§ 270a and 270b, 49 Stat. 793, for the protection of all persons supplying labor and material in the prosecution of the work provided for in such contract. Tom W. Kelly brought a suit to recover on the payment bond. A number of claimants, including the Clarence L. Boyd Company, filed intervening petitions. Boyd asserted a claim for rental' of certain dirt-moving equipment furnished to, and used by, Central in the prosecution of the work provided for in the contract, and also a claim on open account for certain materials consumed in the prosecution of such work and certain repair parts, replacements, and appliances furnished to Central to replace appliances and parts of the rental equipment worn out in the performance of such work and to maintain such rental equipment in repair. The claims were referred to a Special Master. The Master found that there was due to Boyd for rental $11,369.42 and on the open account $2,562.40 and recommended judgment accordingly. The Casualty Company filed exceptions to the Master’s report. The trial court overruled the exceptions and entered judgment for the amount recommended by the Master, with interest from December 15, 1941, until paid. The Casualty Company has appealed. Boyd and Central entered into four leases on May 2, 1941, by which Boyd leased the equipment to Central for a stipulated rental with an option to purchase. The leases ran until August 15, 1941, hut gave Central an option to renew them for an additional period of two months. On August 15, 1941, new leases were entered into extending the lease period to November 25, 1941. Counsel for the Casualty Company contends that the renewal leases constituted a novation and discharged the rent that had accrued under the original leases." } ]

[ { "docid": "7031609", "title": "", "text": "contract, in respect of which a payment bond is furnished under section[ ] 270a ... and who has not been paid in full therefor ..., shall have the right to sue on such payment bond ...: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made.... 40 U.S.C. § 270b(a) (emphasis in original). The statute clearly requires timely notice as a condition precedent to the right to maintain suit on a payment bond. Our decision turns on the meaning of “giving written notice.” We can then determine if the properly given notice was timely. The issue presented here is one of first impression for our Court. We look to other Miller Act decisions for rules of general construction. Generally, “the Miller Act should receive a liberal construction to effectuate its protective purposes.” United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 796, 1 L.Ed.2d 776 (1957). The Act was intended to protect from non-payment those who furnish labor and materials in federal construction projects. Id. Yet, the authority to construe liberally the provisions of the Miller Act is not the authority to contravene the plain language of the statute. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944). Furthermore, we previously exempted from liberal construction the ninety-day limitation on notice provisions. See United States ex rel. Honeywell v. A & L Mechanical Contractors, 677 F.2d 383, 386 (4th Cir.1982); see also United States ex rel. John D. Ahern Co., Inc. v. J.F. White Contracting Co., 649 F.2d 29, 31 (1st Cir.1981) (the ninety-day period is a strict condition precedent); United States ex rel. General Dynamics Corp. v. Home Indemnity Co.," }, { "docid": "1778455", "title": "", "text": "affirm the entry of summary judgment on “any ground revealed by the record.” Id. Defendants argue that the district court erred in determining that there was a single agreement between G & C and GE Supply for materials, rather than a series of separate and independent contracts. Hence, they contend, the court incorrectly concluded that the entirety of GE Supply’s claim was timely filed under the Miller Act. Defendants also argue that the district court erred in awarding attorney’s fees against American. “The Miller Act requires a general contractor performing a contract valued at over $25,000 on any public construction project to obtain a performance bond for the protection of persons supplying labor and material in the prosecution of the work on the project.” United States ex rel. Water Works Supply Corp. v. George Hyman Constr. Co., 131 F.3d 28, 31 (1st Cir.1997); 40 U.S.C. § 270a(a)(2). Persons who have “furnished labor or material” to a public construction project may sue to recover from the payment bond any amount owed to them. 40 U.S.C. § 270b(a). The purpose of the Miller Act is “to protect persons supplying labor and material for the construction of federal public buildings in lieu of the protection they might receive under state statutes with respect to the construction of nonfederal buildings.” United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957); see also F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 122, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). The Act is “highly remedial” and entitled to a “liberal construction.” See J.W. Bateson Co. v. United States ex rel. Bd. of Trustees, 434 U.S. 586, 594, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978). Keeping in mind these principles, we turn to defendants’ arguments. A. Statute of Limitations The statute of limitations contained in the Miller Act provides that a suit must be commenced “after the expiration of one year after the day on which the last of labor was performed or material was supplied by [the supplier].” 40 U.S.C. § 270b(b)." }, { "docid": "12378708", "title": "", "text": "prior to April 8 was sufficient to satisfy the requirements of the Act. Alternatively, notice might have been timely if the effective date of the delivery of the red-wood timber was when Old World delivered it to the job site on January 8, 1986, rather than when Builders Supply delivered it to Old World on January 7, 1986. The Tape Measure This case turns upon the narrow legal question of whether the tape measure supplied was “material” as opposed to “capital equipment” under the Miller Act. The Act obligates the surety for the payment of persons furnishing “labor and material in the prosecution of the work provided for in [the] contract.” 40 U.S.C. § 270a(a)(2). The general concept behind this distinction is that the purpose of the Miller Act is to provide protection for suppliers who supply material for government jobs. The supplier can look to the Miller Act payment bond for material supplied to a subcontractor and used in a government job. The Act does not provide protection for capital equipment that the subcontractor purchases and can use for subsequent non-government jobs. The courts have refrained from an all-inclusive definition of “material furnished in the prosecution of the work.” See United States for Use of Byrne & Co. v. Fire Ass’n. of Philadelphia, 260 F.2d 541, 544 (2d Cir.1958), citing Massachusetts Bonding & Insurance C. v. United States, 88 F.2d 388 (5th Cir.1937). The inquiry begins with the principle that “the Miller Act is remedial and must be construed to effect Congress’s purpose to protect those whose labor and materials go into public projects.” Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944). While material provided for the work is recoverable, “the cost of tools may not be claimed under the Miller Act” because they are equipment which the subcontractor may continue to use and are not consumed in the public project. Ibex Industries, Inc. v. Coast Line Waterproofing, 563 F.Supp. 1142, 1146 (D.D.C.1983). The Ibex court held that hoses, axes, hammers, goggles, brushes," }, { "docid": "2045592", "title": "", "text": "BREYER, Chief Judge. The plaintiff, having supplied steel to a now bankrupt subcontractor, has sued the general contractor, seeking to recover payment for the steel from the bond that a federal statute, the Miller Act, requires certain general contractors to provide. 40 U.S.C. §§ 270a-270b. The general contractor says the steel was defective, and it wants to deduct from the promised purchase price the amount that it says it had to spend to cure the defects. The district court, relying upon a Ninth Circuit case, United States ex rel. Martin Steel Constructors v. Avanti Steel Constructors, 750 F.2d 759 (9th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 60, 88 L.Ed.2d 49 (1985), held that where the supplier has a contract with a subcontractor but not with the general contractor, the Miller Act forbids the general contractor from taking such “offsetting” deductions. We disagree with the Ninth Circuit. We therefore vacate the district court’s judgment. I Background The Miller Act requires general contractors working on federal government projects to furnish a payment bond “for the protection of all persons supplying labor and material” to the project. 40 U.S.C. § 270a(a)(2). It permits a supplier who has a “direct contractual relationship with a subcontractor but no contractual relationship ... with the contractor furnishing” the bond to sue on the bond for “the balance ... unpaid at the time of institution” of the suit, and to recover “judgment for the sum or sums justly due him,” as long as he complies with certain notice requirements. Id. § 270b(a). Puerto Rico’s “Little Miller Act” sets up a similar scheme for work on projects undertaken by the Puerto Rican government. 22 L.P.R.A. §§ 47, 51. The plaintiff, United Structures of America (“United”), supplied steel to a subcontractor on two projects, one for the United States government at Roosevelt Roads Naval Station, the other for the Puerto Rican government at Hato Rey Police Headquarters. Defendant G.R.G. Engineering (“GRG”) was the general contractor on both projects. The subcontractor did not pay United in full. When the subcontractor went bankrupt, United gave GRG proper notice, and then" }, { "docid": "14337594", "title": "", "text": "payment bonds in connection with “any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States.” 40 U.S.C. § 270a(a). The payment bond is intended “for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract.” Id. § 270a(a)(2). In furtherance of this objective, the Act affords these suppliers “the right to sue on [the] payment bond for the amount ... unpaid at the time of institution of such suit,” id. § 270b(a), and grants the federal district courts exclusive jurisdiction over such actions, id. § 270b(b). To establish jurisdiction under the Miller Act, plaintiff must convince us that (1) the letter of credit qualifies as the “payment bond” within the meaning of the Act, (2) the letter issued here expressly on behalf of NHA was “furnish[ed] to the United States,” and (3) a low-income housing project owned by a tribal housing authority is a “public work of the United States.” A further and more fundamental hurdle arises from statutory developments regarding the inapplicability of the Miller Act to tribal contracts generally and low-income Indian housing in particular. The parties cite only two cases, and we have found no others, on the status of letters of credit under the Miller Act. Midstates Excavating, Inc. v. Farmers & Merchants Bank & Trust, 410 N.W.2d 190 (S.D.1987), rejected a Miller Act claim for reasons pertinent here, but not because the letter of credit sued on failed to qualify as a “bond,” see id. at 194. United States ex rel. Anderson v. Challinor, 620 F.Supp. 78 (D.Mont.1985), recognized the viability of a Miller Act claim premised on a letter of credit, but in doing so relied heavily on the fact that “[t]he regulation (41 C.F.R. § 1-10.204-2 (1984)) under which the letter of credit was issued clearly indicates that the letter of credit is to be in lieu of the bond.” Id. at 79. The cited regulation provided that “[a]ny person required to furnish a bond has the option, in lieu" }, { "docid": "19698912", "title": "", "text": "time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him . 40 U.S.C. § 270b(a) (1970). The purpose of this statute has been explained by the Supreme Court: Section 270a(a)(2) of the Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project. Ordinarily, a supplier of labor or materials on a private construction project can secure a mechanic’s lien against the improved property under state law. But a lien cannot attach to government property ., so suppliers on government projects are deprived of their usual security interest. The Miller Act was intended to provide an alternative remedy to protect the rights of these suppliers. F. D. Rich Co. v. United States for the use of Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703 (1974). Although enacted as a replacement for state lien law, the Miller Act provides a federal cause of. action, and the scope and substance of recovery are governed by federal rather than state law. F. D, Rich, supra, 417 U.S. at 126-31, 94 S.Ct. 2157. “The Miller Act is ‘. . . highly remedial [and] entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects.’ MacEvoy, supra [Clifford F. MacEvoy Co. v. United States ex rel. Tomkins Co.], 322 U.S. [102] at 107, 64 S.Ct. [890] at 893 [88 L.Ed. 1163 (1944)].” F. D. Rich, supra, 417 U.S. at 124, 94 S.Ct. at 2162. Under the statute, use plaintiff is entitled to the “sum or sums justly due him.” By its terms, however, the Miller Act is limited to claims for “labor or material [furnished] in the prosecution of the work provided for in [the] contract ..” The issue thus becomes whether delay costs as alleged in this case are expenses for “labor or material” within the intendment of the statute. The Court holds that" }, { "docid": "14730995", "title": "", "text": "Constr. Co. v. United States, 311 U.S. 15, 18-19, 61 S.Ct. 81, 83, 85 L.Ed. 12 (1940); United States ex rel. General Elec. Co. v. H.I. Lewis Constr. Co., Inc., 375 F.2d 194, 198 (2d Cir.1967). In pertinent part, § 270b(a) reads: any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed.... 40 U.S.C. § 270b(a). Sections 270a and 270b(a) strike a balance. By allowing a person with a “direct contractual relationship” with a subcontractor to sue on the bond, the statute protects and benefits those who have “furnished or supplied” mate rials and/or labor on federal projects. See H.I. Lewis, 375 F.2d at 200. But § 270b(a) also protects the prime contractor by requiring those who have no direct contractual relationship with the prime contractor, but have “furnished or supplied” material and/or labor to the project, to provide timely notice of a subcontractor’s non-payment. Id. Absent such notice, the prime contractor would have no ready means to determine the extent of its ultimate obligations. See United States ex rel. SGB Universal Builders Supply, Inc. v. Fidelity & Deposit Co., 475 F.Supp. 672, 674 (E.D.N.Y.1979). B. Count I—The Miller Act Claim Balf maintains that it is entitled to recover under the Miller Act because it gave Casle and American timely notice. Specifically, Balf contends that its “notice was timely since the labor and materials provided ... in May, 1993 were supplied as a part of the contract between [it] and D.J. King for the Project....” Final Pretrial Order (“FPO”) at 13. The court agrees. 1. The" }, { "docid": "3952576", "title": "", "text": "find that the district court erred by concluding that TMS could not recover on the payment bond for the components of its Delay Claim. We reverse the district court’s judgment denying recovery on TMS’s Delay Claim and remand for further proceedings consistent with this decision. Many courts have confronted delay claims in cases brought on Miller Act payment bonds; some primarily consider the cause of the delay, e.g. United States ex rel. Superior Insulation Co. v. Robert E. McKee, Inc., 702 F.Supp. 1298 (N.D.Tex. 1988), while others focus on the terms of the contract, e.g. Continental Casualty Co. v. Schaefer, 173 F.2d 5 (9th Cir.), cert. denied, 337 U.S. 940, 69 S.Ct. 1517, 93 L.Ed. 1745 and, 338 U.S. 820, 70 S.Ct. 63, 94 L.Ed. 497 (1949). To qualify for a Miller Act lien, however, the claimant must come within the explicit nomenclature of the Miller Act. We thus believe that the language of the statute, interpreted in light of its protective purpose, provides the analytical key to determining whether the supplier can recover under the Miller Act. We are persuaded by the Court of Appeals for the Eleventh Circuit’s recent decision in United States ex rel. Pertun Construction Co. v. Harvesters Group, Inc., 918 F.2d 915, 918 (11th Cir.1990), that a subcontractor can recover increased out-of-pocket costs for labor and materials furnished in the course of performing its subcontract caused by contractor or government delay. The Pertun court focused, as we do, on the purpose and language of the Miller Act and found the surety liable for out-of-pocket costs of delay, a holding consistent with both facets of our emphasis. Id. The Eleventh Circuit reasoned that the “purpose of the statute — to afford the subcontractor the financial protection of an action against the surety — [can only] be achieved” by permitting a subcontractor to recover for all costs of labor and material supplied in performing its contractual obligations, “including those portions caused by delay.” Id. The inadequacy of the subcontractor’s other options, either bearing the costs of delay itself or pursuing a contract action against the contractor, motivated" }, { "docid": "15252918", "title": "", "text": "for work on government contracts. Section 270b(a) of the Act provides that [ejvery person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amodnt, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him .... 40 U.S.C. § 270b(a) (1976) (emphasis added). The purpose of these provisions of the Miller Act is to provide subcontractors on government projects a security interest similar to that which they would have on private projects. Ordinarily, the availability of a mechanic’s lien to a subcontractor provides security. Because a mechanic’s lien, however, cannot attach to government property, an alternative system of security had to be created. That is what Congress achieved in enacting the Miller Act. It placed subcontractors to government contractors on substantially equal footing with subcontractors to private contractors. See, eg., F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703, 709 (1974); United States ex rel. Mariana v. Piracci Construction Co., Inc., 405 F.Supp. 904, 906 (D.D.C.1975); United States ex rel. Otis Elevator Co. v. Piracci Construction Co., Inc., 405 F.Supp. 908, 909 (D.D.C.1975). In this case, SEB is seeking recovery for the value of services and materials that it provided. To that extent, its claim falls squarely within the terms of the Act. The possible complication lies in the fact that delay damages, which SEB seeks, represent the value of material and services provided at the particular time they were provided," }, { "docid": "3952572", "title": "", "text": "order work claim, plus pre- and post-judgment interest against Millers, but concluded that TMS could not recover either its delay or termination claim against the Miller Act surety. TMS now appeals from that judgment. Based upon our independent appellate review, United States ex rel. Gulf States Enterprises, Inc. v. R.R. Tway, Inc., 938 F.2d 583, 586 (5th Cir.1991) (per curiam), we reverse as to the delay claim and affirm as to the termination claim. II. THE MILLER ACT This is a Miller Act case, and, thus, this is a lien case. A mechanic’s lien under state law against improved property provides security for suppliers of labor and material to private construction projects, but a mechanic’s lien cannot attach to government property. F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 122, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703 (1974) (citation omitted). The Miller Act requires that a contractor on a federal construction project furnish “a payment bond ... for the protection of all persons supplying labor and material in the prosecution of the work provided for in [the] contract.” 40 U.S.C.A. § 270a(a)(2) (1986). The payment bond, “intended ... to protect the rights of these suppliers” who furnish labor or materials to government construction projects, thus provides an alternative to a mechanic’s lien, F.D. Rich, 417 U.S. at 122, 94 S.Ct. at 2161, because it permits the supplier to sue the Miller Act surety on the payment bond. Specifically, the Act provides that [e]very person who ... furnish[es] labor or material in the prosecution of the work provided for in [the] contract ... who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done ... or material was furnished ... for which such claim is made, shall have the right to sue on such payment bond for the amount ... unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him." }, { "docid": "8187473", "title": "", "text": "claim’s dismissal eliminated subject-matter jurisdiction over Arena’s lawsuit and the court’s assertion of supplemental jurisdiction over Arena’s remaining state-law claims was in error. 1. The Miller Act and Federal Question Jurisdiction Arena asserted a claim under the Miller Act as a basis for his federal question subject-matter jurisdiction. “Federal question jurisdiction arises when a plaintiff ] set[s] forth allegations ‘founded on a claim or right arising under the Constitution, treaties or laws of the United States.’ ” Hart v. Bayer Corp., 199 F.3d 239, 243 (5th Cir.2000) (citations omitted). “The purpose of the Miller Act is ‘to protect persons supplying labor and material for the construction of federal public buddings in lieu of the protection they might receive under state statutes with respect to the construction of nonfederal buildings.’ ” U.S. for Use and Benefit of Water Works Supply Corp., v. George Hyman Constr. Co., 131 F.3d 28, 31 (1st Cir.1997) (citing U.S. ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957)). The Act gives suppliers and subcontractors the right to sue a prime contractor in U.S. district court for the amount owed to them. See 40 U.S.C. § 3133(b)(1). The Act creates a right to sue when the plaintiff has “furnished labor or material in carrying out work provided in a contract for which a payment bond is furnished under § 3131 of this title ...” Id. This statutory scheme was created to protect parties such as subcontractors or suppliers who work on federal projects as state-law liens cannot be applied against federally-owned property and traditional state-law remedies are unavailable. See U.S. for Use of Gen. Elec. Supply Co. v. U.S. Fid. & Guar. Co., 11 F.3d 577, 580 (6th Cir.1993). The Miller Act itself does not explicitly mention that a bond is necessary to maintain jurisdiction under the statute. Federal case law, however, has established that a claim under the Miller Act cannot be maintained without it. “Absent the existence of a bond, there can be no claim under the [Miller] statute.” Faerber Elec. Co., Inc. v. Atlanta Tri-Com, Inc., 795" }, { "docid": "6787161", "title": "", "text": "the Act with respect to any contracts for the repair of vessels. 40 U.S.C. §§ 270e, 270f. It would make little sense to allow bonds to be waived for such contracts if defendant were correct that contracts to repair vessels do not require bonds in the first place. Therefore, defendant’s first contention fails; these contracts are within the scope of the Miller Act. II. Suing the Prime Contractor Defendant next asserts that it is not a proper party to this suit because it is not a surety, but merely a general or prime contractor. Defendant’s Motion to Dismiss and Supporting Brief at 5. This argument also fails. While it is true that the Miller Act gives a supplier or laborer the power to sue the surety, 40 U.S.C. § 270b(a), nothing in that section prevents the supplier from also suing the prime contractor. The additional liability given against the surety can have no effect as to the liability of the initial party to the contract. That initial party also may be sued in federal court under this Act. See United States ex rel. Hudson v. Peerless Ins. Co., 374 F.2d 942 (4th Cir.1967) (bringing suit against both surety and contractor was permissible under Miller Act). See also United States ex rel. Statham Instr., Inc. v. Western Casualty & Surety Co., 359 F.2d 521 (6th Cir.1966) (federal court had jurisdiction over prime contractor). In Statham, the plaintiff sued both the prime contractor and the company that it thought had provided the surety. The court dismissed the insurance company, finding that it had not in fact furnished such surety, but retained jurisdiction over the prime contractor. 359 F.2d at 522. This court has jurisdiction to entertain the suit against defendant in this case. III. Issuance of Bonds Defendant’s next basis for dismissal is that the contracts were not in fact bonded, citing portions of the Act that allow the Secretary of the Navy, § 270e, and the Secretary of Transportation, § 270f, to waive the bonding requirements of the statute for any contracts involving vessel repair. While the sections do permit waiver," }, { "docid": "19698911", "title": "", "text": "must be met solely by a separate contract action between use plaintiff and the general contractor, and the surety must be relieved of further obligation. Use plaintiff claims to the contrary, stating that the Miller Act by its terms entitles it to be reimbursed by the surety for these added costs. No claim is made for lost or expected profits, only labor and materials and related expenses incurred. The Miller Act provides: (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him . 40 U.S.C. § 270b(a) (1970). The purpose of this statute has been explained by the Supreme Court: Section 270a(a)(2) of the Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project. Ordinarily, a supplier of labor or materials on a private construction project can secure a mechanic’s lien against the improved property under state law. But a lien cannot attach to government property ., so suppliers on government projects are deprived of their usual security interest. The Miller Act was intended to provide an alternative remedy to protect the rights of these suppliers. F. D. Rich Co. v. United States for the use of Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703 (1974). Although enacted as a replacement for state lien law, the Miller Act provides a federal" }, { "docid": "3952586", "title": "", "text": "recovery on its contract work and change order claim because under the Miller Act, the liability of the contractor is to the subcontractor, despite non-payment by the government to the contractor. See Fanderlik-Locke Co. v. United. States ex rel. Morgan, 285 F.2d 939, 942 (10th Cir. 1960) (\"ordinarily the fact that a prime contractor has a claim for the same amounts pending under the ‘disputes clause’ of the prime contract, does not affect Miller Act cases\"), cert. denied, 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 823 (1961). The federal legislation conditions payment of the subcontractor not on payment by the government to the contractor, but rather on the passage of time from completion of the work or provision of materials. F.D. Rich Co., Inc. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 127, 94 S.Ct. 2157, 2164, 40 L.Ed.2d 703 (1974) (scope of remedy and substance of rights created under Miller Act are matters of federal, not state, law); see 40 U.S.C.A. § 270b(a) (1986). Second, Craftmen’s alleged failure to notify Millers of “material alterations” to the Contract fails to discharge Millers from its liability on the Bond because Millers waived notice of \"duly authorized modifications” of the Contract in the Bond. See infra note 8. Third, because we will reverse an award of costs \"only on a clear showing of abuse of discretion,” we affirm the district court’s award of costs to TMS. Fogleman v. Arabian Am. Oil Co., 920 F.2d 278, 285 (5th Cir.1991) (citation omitted). . 40 U.S.C.A. §§ 270a-270f (1986). The Miller Act replaced the Heard Act in 1935. United States ex rel. Texas Bitulithic Co. v. Fidelity and Deposit Co., 813 F.2d 697, 699 (5th Cir.1987). For a discussion of the legislative changes, not relevant to this case, see Bernard L. Balkin, Recovery of Damages for Delay Against Sureties on Public Works Bonds, 20 Forum 650, 644-45 (1987). . Under the Bond secured by Craftsmen, \"if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract and" }, { "docid": "12378709", "title": "", "text": "purchases and can use for subsequent non-government jobs. The courts have refrained from an all-inclusive definition of “material furnished in the prosecution of the work.” See United States for Use of Byrne & Co. v. Fire Ass’n. of Philadelphia, 260 F.2d 541, 544 (2d Cir.1958), citing Massachusetts Bonding & Insurance C. v. United States, 88 F.2d 388 (5th Cir.1937). The inquiry begins with the principle that “the Miller Act is remedial and must be construed to effect Congress’s purpose to protect those whose labor and materials go into public projects.” Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944). While material provided for the work is recoverable, “the cost of tools may not be claimed under the Miller Act” because they are equipment which the subcontractor may continue to use and are not consumed in the public project. Ibex Industries, Inc. v. Coast Line Waterproofing, 563 F.Supp. 1142, 1146 (D.D.C.1983). The Ibex court held that hoses, axes, hammers, goggles, brushes, and mop handles, among other things, were tools and not material for the purpose of the Act. Similarly, the Fourth Circuit has held that reusable dredging pipe was not material under the Act. United States for the Use of Sunbelt Pipe v. United States Fidelity, 785 F.2d 468 (4th Cir.1986). The Court reasoned that A thing which may reasonably be expected to be removed by the contractor and used in subsequent jobs is a part of the contractor’s capital equipment, but something which is reasonably expected to have no utility or economic value to the contractor after the completion of the work may be classified as material. Id. at 470. Thus, the classifying principle that the Court must use in the instant case is whether or not the tape measure was something “reasonably expected to be consumed, or substantially consumed, in the performance of the work.” See id. Moreover, in distinguishing between material and capital equipment, the Court must approach the problem from the perspective of the reasonable expectation of the supplier. See Boyd Callan," }, { "docid": "9998165", "title": "", "text": "district court ruled that the December 3, 2002 letter was insufficient notice because it failed to name the subcontractor to whom the supplies were provided. In order to bring suit under the payment bond, the Little Miller Act requires that written notice be given to the general contractor within ninety days, and that such notice “(i) shall state with substantial accuracy the amount claimed and the person to whom the labor or material is supplied.” Md. State Fin. & Proc.Code § 17 — 108 (b)(2) (i). In defining “substantial accuracy” as the term is used in the Federal Miller Act, courts find it sufficient that “there exists a writing from which, in connection with oral testimony, it plainly appears that the nature and state of the indebtedness has been brought home to the general contractor.” Houston Fire and Cas. Ins. Co. v. United States ex rel. Trane Co., 217 F.2d 727, 730 (5th Cir.1954); see also United. States v. A & L Mech. Contractors Inc., 677 F.2d 383, 386-87 (4th Cir.1982) (noting that the statute requires substantial accuracy, not precision). While the statute as a whole is designed to afford additional protection to subcontractors, the notice requirements aim to protect the general contractor. Interpreting the notice provisions of the Federal Miller Act, the First Circuit stated “[t]he notice provision serves an important purpose: it establishes, a firm date after which the general contractor may pay its subcontractors without fear of further liability to the materialmen or suppliers of those subcontractors.” United States ex rel. Water Works Supply Corp. v. George Hyman Constr. Co., 131 F.3d 28, 32 (1st Cir.1997). As such, ■ although courts lib erally interpret the Federal Miller Act’s requirements concerning the method by which such notice is given, the rules regarding'the contents of such notice are more rigidly applied. See Maccaferri Gabions, Inc. v. Dynateria Inc., 91 F.3d 1431, 1437 (11th Cir.1996). It is plain that .the December -3, 2002 letter, in and of itself,’fails to satisfy the explicit content requirements of the “Little Miller Act” because it fails to name the subcontractor to whom the materials" }, { "docid": "14730994", "title": "", "text": "in the Project’s parking lot in June, 1993. Id. ¶ 62. On August 3, 1993, Balf made a demand upon Casle and American for the payment of sums due it, the principal of which totalled $76,688.05. Id. ¶¶ 50, 65. They refused to pay. This lawsuit followed. III. FINDINGS OF FACT & CONCLUSIONS OF LAW A. The Miller Act The Miller Act provides that, with certain exceptions not relevant here, the prime contractor of construction work on any public building or work exceeding $25,000.00 shall furnish a performance bond for the protection of the United States and a payment bond “for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.” 40 U.S.C. § 270a(a). As a prerequisite to an action on a payment bond, § 270b(a) requires a written notice be given to the prime contractor. The timely giving of the required notice is a condition precedent to the successful maintenance of the suit. Fleisher Eng’g & Constr. Co. v. United States, 311 U.S. 15, 18-19, 61 S.Ct. 81, 83, 85 L.Ed. 12 (1940); United States ex rel. General Elec. Co. v. H.I. Lewis Constr. Co., Inc., 375 F.2d 194, 198 (2d Cir.1967). In pertinent part, § 270b(a) reads: any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed.... 40 U.S.C. § 270b(a). Sections 270a and 270b(a) strike a balance. By allowing a person with a “direct contractual relationship” with a subcontractor to sue on the bond, the" }, { "docid": "14337593", "title": "", "text": "of federal subject matter jurisdiction de novo. Redmon ex rel. Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir.1991). If the case does not clear that threshold, any issue as to whether the claims asserted should have been exhausted first in the tribal courts is academic. See Stock West Corp. v. Taylor, 964 F.2d 912, 917 (9th Cir.1992) (in banc) (holding court “must resolve this dispute [over diversity jurisdiction] before we can consider the [tribal exhaustion] issues raised in this appeal ... [, because] [i]f the district court did not have subject matter jurisdiction, it lacked the power to enter an abstention order”). Because, as explained below, we agree with the district court’s dismissal of this action on jurisdictional grounds, we affirm without reaching the issue of tribal court exhaustion. I Plaintiff contends that it properly brought suit in federal court to recover on the Zions letter of credit pursuant to the substantive and jurisdictional provisions of the Miller Act. The Miller Act directs that contractors “shall furnish to the United States” performance and payment bonds in connection with “any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States.” 40 U.S.C. § 270a(a). The payment bond is intended “for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract.” Id. § 270a(a)(2). In furtherance of this objective, the Act affords these suppliers “the right to sue on [the] payment bond for the amount ... unpaid at the time of institution of such suit,” id. § 270b(a), and grants the federal district courts exclusive jurisdiction over such actions, id. § 270b(b). To establish jurisdiction under the Miller Act, plaintiff must convince us that (1) the letter of credit qualifies as the “payment bond” within the meaning of the Act, (2) the letter issued here expressly on behalf of NHA was “furnish[ed] to the United States,” and (3) a low-income housing project owned by a tribal housing authority is a “public work of the United States.” A further" }, { "docid": "6787159", "title": "", "text": "meaning of the statute; second, that only a surety, and not a prime contractor, may be sued under the Miller Act; third, that the contracts were not in fact bonded; and fourth, that plaintiff has alleged the existence of a performance bond and not a payment bond. I. Public Works Defendant first asserts that this court lacks subject matter jurisdiction because the contracts in question are not covered by the Miller Act. The statute on its face applies to “the construction, alteration, or repair of any public building or public work of the United States_” 40 U.S.C. § 270a. According to defendant, the repair of a vessel is not included in this language. See Defendant’s Motion to Dismiss and Supporting Brief at 4. As many courts have recognized, the language of the Miller Act is to be broadly construed to provide protection to subcontractors who cannot obtain liens against government property. Thus, courts have found a variety of undertakings to be “public works” within the meaning of the statute. See, e.g., United States ex rel. Motta v. Able Bituminous Contractors, 640 F.Supp. 69, 71-72 (D.Mass.1986) (building a highway was a public work); United States ex rel. Shlager v. MacNeil Bros. Co., 27 F.Supp. 180, 181 (D.Mass.1939) (raising a sunken towboat from a canal was a public work). In general, “ ‘public work,’ as used in the Miller Act, includes projects carried on with public aid to serve the interests of the general public.” United States ex rel. Westinghouse Elec. Supply Co. v. Nat’l Surety Corp., 179 F.Supp. 698, 601 (E.D.Penn.1959). Such a definition is surely broad enough to cover the repair of ships owned by the United States. The public, in the form of the United States, is furnishing financial assistance to the repair, and the repair itself is being done, apparently, to allow the ships to remain in or return to public service. Finally, the statute itself supports a conclusion that such contracts are within its scope. Sections 270e and 270f allow the Secretary of the Navy and the Secretary of Transportation, respectively, to waive the bonding requirements of" }, { "docid": "22694924", "title": "", "text": "Industrial appealed. The Court of Appeals affirmed the judgment against Rich in large part. On Industrial’s cross-appeal, the court reversed, holding that attorneys’ fees should have been awarded to Industrial as a successful plaintiff under the Miller Act, and remanded to the District Court for consideration of the amount of attorneys’ fees to be awarded. 473 F. 2d 720 (CA9 1973). We granted certiorari. 414 U. S. 816 (1973). We affirm the judgment below to the extent it holds that Cerpac was a “subcontractor” for Miller Act purposes and that there was proper venue, but reverse as to the propriety of an award of attorneys’ fees. II Section 270a (a) (2) of the Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project. Ordinarily, a supplier of labor or materials on a private construction project can secure a mechanic’s lien against the improved property under state law. But a lien cannot attach to Government property, see Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 380 (1917), so suppliers on Government projects are deprived of their usual security interest. The Miller Act was intended to provide an alternative remedy to protect the rights of these suppliers. The rights afforded by the Act are limited, however, by the proviso of § 270b (a). In MacEvoy Co. v. United States ex rel. Tomkins Co., supra, this Court construed § 270b (a) to limit the protection of a Miller Act bond to those who had a contractual agreement with the prime contractor or with a “subcontractor.” Those in more remote relationships, including persons supplying labor or material to a mere materialman, were found not to be protected. 322 U. S., at 109-111. Industrial was a supplier of materials to Cerpac. Thus, if Cerpac were a subcontractor for purposes of the Act, Industrial, having given the required statutory notice, could assert a Miller Act claim against Rich, the prime contractor. But, if Cerpac were merely a materialman, Industrial could not assert its Miller Act claim since it" } ]

[ { "docid": "21640294", "title": "", "text": "further doubt on Justice Kagan’s vision of the statutory scheme as a unified structure of neatly progressing offenses with corresponding risk levels and punishments. See post, at 41-42. Justice Scalia, dissenting. As the Court’s opinion acknowledges, this case is “another in a series,” ante, at 4. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports. As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983). ACCA defines violent felony,” in relevant part, as “any crime punishable by imprisonment for a term exceeding one year ... that... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii). Many years of prison hinge on whether a crime falls within this definition. A felon convicted of possessing a firearm who has three prior violent-felony convictions faces a 15-year mandatory minimum sentence and the possibility of life imprisonment. See § 924(e)(1); see United States v. Harrison, 558 F. 3d 1280, 1282, n. 1 (CA11 2009). Without those prior convictions, he would face a much lesser sentence, which could not possibly exceed 10 years. See § 924(a)(2). Vehicular flight is a violent felony only if it falls within ACCA’s residual clause; that" } ]

[ { "docid": "2045168", "title": "", "text": "200.380. The government sought an increased penalty under the ACCA, arguing that Chandler’s Nevada state convictions qualified as violent felonies. See 18 U.S.C. § 924(e)(1). Chandler objected, arguing that neither his conspiracy conviction nor his kidnapping conviction was a violent felony as defined by the ACCA. He did not\" dispute that his conviction for coercion qualified as a violent felony. Over Chandler’s objection, the district court determined that Chandler’s three Nevada state convictions were all violent felonies under the ACCA and sentenced Chandler to 235-months’ imprisonment. Chandler timely appealed. “We review de novo whether a prior conviction is a predicate felony under the ACCA.” United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc). II. DISCUSSION Under 18 U.S.C. § 924(e)(1), any “person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, ... shall be imprisoned not less than fifteen years.” For purposes of this subsection of the ACCA, a violent felony is “any crime punishable by imprisonment for a term exceeding one year ... [that] is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Notably, a violent felony as defined in the ACCA is nearly identical to a “crime of violence” as defined in the Sentencing Guidelines’ Career Offender enhancement. Compare 18 U.S.C. § 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines .Manual § 4B1.2(a) (providing that a crime of violence is (1) “any offense ... punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). Because there is no meaningful distinction between the definitions, we have used our analysis of the definition of crime of violence in the Sentencing Guidelines to guide our interpretation of violent felony in the ACCA. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013); United States v. Crews, 621 F.3d" }, { "docid": "20904467", "title": "", "text": "as one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See id. § 4B1.2(a)(2). It is an open question, however, whether this residual clause remains valid in light of Johnson, which was decided while this appeal was pending. In Johnson, the Supreme Court considered the term “violent felony” in ACCA, 135 S.Ct. at 2551-55, which is defined as a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another; or ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B). The Court focused on the “or otherwise” clause (or “residual clause”), and concluded that this portion of the definition of “violent felony” was unconstitutionally vague. Johnson, 135 S.Ct. at 2555-58. According to the Court, increasing a defendant’s sentence under this residual clause denied defendants due process of law because “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557. The Court therefore invalidated it. Id. at 2563. Like “violent felony” in ACCA, “crime of violence” in § 4B1.2(a)(2) of the Sentencing Guidelines is defined as including an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” We make no distinction between “violent felony” in ACCA and “crime of violence” in § 4B1.2(a)(2) for purposes of interpreting the residual clauses. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013). But we have not yet considered whether the due process concerns that led Johnson to invalidate the ACCA residual clause as void for vagueness are equally applicable to the Sentencing Guidelines. We need not resolve this issue to dispose of this appeal. The district court did not undertake the divisibility analysis, and therefore did not state whether Willis’s uncharged conduct constituted the attempt offense, the possession offense, or both offenses under section 166.220(l)(a). Rather than attempt to divine the" }, { "docid": "23296580", "title": "", "text": "offenses that have as an element the use, attempted use, or threatened use of physical force against another person. Id. § 924(e)(2)(B)®. The government does not contend that Florida’s vehicle flight statute qualifies under this category. See Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011) (“Resisting law enforcement through felonious vehicle flight does not meet the requirements of clause (i).... ”). The second category offers a specific list of enumerated crimes: burglary, arson, extortion, and crimes involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii). Again, the crime at issue here is plainly not one of those. The third and more general category consists of those crimes that fit into what has come to be called the ACCA’s “residual clause,” see James v. United States, 550 U.S. 192, 201, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); and it consists of those crimes apart from the enumerated crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii). In just the last few years, the Supreme Court has had occasion to issue four decisions exploring whether a crime qualifies as a violent felony under the ACCA’s residual clause. Sykes, 131 S.Ct. 2267; Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); James, 550 U.S. 192, 127 S.Ct. 1586. And while each subsequent decision has created new interpretive wrinkles, one thing has remained constant — the Supreme Court’s insistence that we determine whether a crime is a violent felony for ACCA purposes by means of a “categorical approach.” James, 550 U.S. at 202, 127 S.Ct. 1586. “Under this approach, we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” Id. (internal quotation marks omitted). In other words, the Supreme Court has instructed us to “consider whether the elements of the offense are of the type that would" }, { "docid": "2045169", "title": "", "text": "for a term exceeding one year ... [that] is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Notably, a violent felony as defined in the ACCA is nearly identical to a “crime of violence” as defined in the Sentencing Guidelines’ Career Offender enhancement. Compare 18 U.S.C. § 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines .Manual § 4B1.2(a) (providing that a crime of violence is (1) “any offense ... punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). Because there is no meaningful distinction between the definitions, we have used our analysis of the definition of crime of violence in the Sentencing Guidelines to guide our interpretation of violent felony in the ACCA. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013); United States v. Crews, 621 F.3d 849, 852 n. 4 (9th Cir.2010); United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003). In United States v. Park, 649 F.3d 1175 (9th Cir.2011), we established a framework for analyzing whether a conviction under state law is a conviction for a crime of violence. “First, the ‘conduct encompassed by the elements of the offense, in the ordinary case,’ must ‘present[ ] a serious potential risk of physical injury to another.’ ” Id. at 1177-78 (alteration in original) (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). “Second, the state offense must be ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause — burglary of a dwelling, arson, extortion, and crimes involving explosives.” Id. at 1178 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). As we recently observed: The inquiry under Park’s first prong is straightforward. But the second requirement — whether the state offense" }, { "docid": "7689449", "title": "", "text": "approach to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), with its nearly identical residual clause for prior offenses, in James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007). Alternatively, we may follow this court’s holding that under the ACCA “for the purpose of § 4B1.2, a conviction is for a crime of violence when the defendant pleads guilty to an indictment count that alleges conduct that presents a serious potential risk of injury to another.” United States v. Lipscomb, 619 F.3d 474, 479 (5th Cir.2010). Each approach will be discussed. Supreme Court precedent establishes some parameters to classification of an offense as a “crime of violence” via the residual clause. Most relevant here is the Court’s decision to limit the ACCA enhancement for “violent felonies” to crimes “similar” to the there-enumerated offenses of burglary, arson, extortion, or the use of explosives. Begay v. United States, 553 U.S. 137, 143-44, 128 S.Ct. 1581, 1585-86, 170 L.Ed.2d 490 (2008). “Similarity,” in the Court’s view, entails crimes that are (1) “roughly similar, in kind as well as in degree of risk posed, to the examples themselves,” id. at 143, 128 S.Ct. at 1585, and (2) “typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 144-45, 128 S.Ct. at 1586. Begay concluded that a prior state conviction for felonious DUI did not fulfill these qualities of similitude and thus was not a crime of violence under ACCA. In so holding, the Court assumed that “DUI involves conduct that ‘presents a serious potential risk of physical injury to another,’ ” but nonetheless found the violation “outside the scope” of the residual clause. Id. at 141-42,128 S.Ct. at 1584. Under either Shepard or Be-gay as applied in this court, we are compelled to conclude that the retaliation statute under which Stoker was convicted does not necessarily entail “conduct that presents a serious potential risk of physical injury to another.” The statute, as previously noted, is broadly framed to include all conceivable harms inflicted by a retaliating defendant. From this standpoint alone, it appears to fail the" }, { "docid": "18029187", "title": "", "text": "the enumerated crimes of \"burglary of a dwelling, arson, or extortion” and those involving the \"use of explosives.” Id. § 4B 1.2(a)(2). The third category, sometimes referred to as \"residual clause” crimes, includes those crimes that \"otherwise involve!] conduct that presents a serious potential risk of physical injury to another.” Id. . A person commits battery on a law enforcement officer if he “[a]ctually and intentionally touches or strikes [a law enforcement officer] against the will of the [officer]; or [intentionally causes bodily harm to [the officer]” while the officer is engaged in the lawful performance of his or her duties. Fla. Stat. §§ 784.03(l)(a), 784.07(2). . In Sykes and James, the Supreme Court interpreted the definition of \"violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). “In determining whether a conviction is a crime of violence under U.S.S.G. § 4B1.2, we also rely on cases interpreting the residual clause of the [ACCA] because the § 4B1.2 definition of crime of violence’ and ACCA’s definition of 'violent felony’ are substantially the same.” Chitwood, 676 F.3d at 975 n. 2 (citation omitted); see also United States v. Archer, 531 F.3d 1347, 1350 n. 1 (11th Cir.2008). . In United States v. Williams, 609 F.3d 1168, 1169-70 (11th Cir.2010), we held that, based on the Court's decision in Johnson, “the fact of a conviction for felony battery on a law enforcement officer in Florida, standing alone, no longer satisfies the ‘crime of violence’ enhancement criteria as defined under the [elements clause] of section 4B 1.2(a)(1) of the sentencing guidelines.” . To the extent that Rozier contends that the decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), requires that he be given § 2255 relief from our decision affirming his sentence, that contention is unpersuasive. The Begay case did not involve a Florida battery conviction, an element of which is purposeful, violent, or aggressive conduct. Instead, it involved a DUI conviction, which does not require purposeful, violent, or aggressive conduct. Begay, 553 U.S. at 145, 128 S.Ct. at 1586. As the Supreme" }, { "docid": "22277261", "title": "", "text": "two—whether it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2). In Begay, James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and Chambers v. United States, —U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), the Supreme Court analyzed the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(2)(B)(i)-(ii). Considering whether a crime is a “violent felony” under the ACCA is similar to considering whether a conviction qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a) because “the definitions for both terms are virtually identical.” United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir.2007) (quotation and citation omitted). The definitions provide the same example offenses: burglary, arson, extortion, and crimes involving the use of explosives. And, the residual clauses are identical; they classify as violent any felony that “otherwise involves conduct that presents a potential risk of physical injury to another.” Compare 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”), with U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence”). Accordingly, we look to the Supreme Court’s opinions applying the ACCA, including Begay, James, and Chambers, for guidance in -considering whether an offense qualifies as a crime of violence under the Sentencing Guidelines. See United States v. Harris, 586 F.3d 1283, 1285 (11th Cir.2009). The first step of the “crime of violence” analysis is to identify the specific crime at issue. In James, the Supreme Court instructed that courts should apply a “categorical approach” to this step of the analysis. 550 U.S. at 202, 127 S.Ct. at 1593-94. Under this approach, we “look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particularized facts disclosed by the record of conviction.” Id. 550 U.S. at 202, 127 S.Ct. at 1594 (citation and quotation omitted). We “consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” Id. (emphasis omitted). In other words, we" }, { "docid": "11177876", "title": "", "text": "only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the [sentence-enhancing category], without inquiring into the specific conduct of this particular offender. James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (internal quotation marks and citation omitted). It is not “requir[ed] that every conceivable factual offense covered by a statute [of conviction] must necessarily” fit into the sentence-enhancing category; “[r]ather, the proper inquiry is whether the conduct encompassed by the elements of the offense [of conviction], in the ordinary case,” fit into the sentence-enhancing category. Id. at 208, 127 S.Ct. 1586 (emphasis added). Based solely on the language of § 708-820(l)(a) and the residual clause in § 4B1.2(a)(2), “intentionally damaging] property and thereby recklessly plac[ing] another person in danger of death or bodily injury,” Haw.Rev.Stat. § 708-820(l)(a) (1996), would seem, in the ordinary case, to “involve[ ] conduct- that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), regardless of Spencer’s specific conduct in violating § 708-820(l)(a). But the Supreme Court’s precedent dictates that the analysis is not so straightforward. The Court has interpreted the nearly identical residual clause of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), four times in recent years. See Sykes v. United States, — U.S.-, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (holding that knowing or intentional flight from law enforcement by vehicle under Indiana law is a violent felony under ACCA); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (holding that failure to report to prison under Illinois law is not a violent felony under ACCA); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (holding that driving under the influence of alcohol under New Mexico law is not a violent felony under ACCA); James, 550" }, { "docid": "7689448", "title": "", "text": "the ten-year maximum sentence for criminal retaliation. Had the criminal mailing of a threat been the sole basis for the enhancement, its maximum sentence of five years would have yielded a much lower sentencing range — 51 to 63 months. Consequently, we must consider whether the retaliation conviction may be a crime of violence under the residual clause on the theory that it involves conduct presenting a “serious potential risk of physical injury” to the victim. U.S.S.G. § 4B1.2(a)(2). Although given the unusual twist that the issue here is whether the crime actually tried to the jury is a crime of violence, we follow essentially the “modified categorical approach,” adapted from Shepard v. United States, 544 U.S. 13, 20-26, 125 S.Ct. 1254, 1259-63, 161 L.Ed.2d 205 (2005), under which this court analyzes the nature of the crime described by the statute rather than the underlying facts of the offense when considering the residual clause. See United States v. Mohr, 554 F.3d 604, 607 (5th Cir.2009); Montgomery, 402 F.3d at 487. The Supreme Court endorsed this approach to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), with its nearly identical residual clause for prior offenses, in James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007). Alternatively, we may follow this court’s holding that under the ACCA “for the purpose of § 4B1.2, a conviction is for a crime of violence when the defendant pleads guilty to an indictment count that alleges conduct that presents a serious potential risk of injury to another.” United States v. Lipscomb, 619 F.3d 474, 479 (5th Cir.2010). Each approach will be discussed. Supreme Court precedent establishes some parameters to classification of an offense as a “crime of violence” via the residual clause. Most relevant here is the Court’s decision to limit the ACCA enhancement for “violent felonies” to crimes “similar” to the there-enumerated offenses of burglary, arson, extortion, or the use of explosives. Begay v. United States, 553 U.S. 137, 143-44, 128 S.Ct. 1581, 1585-86, 170 L.Ed.2d 490 (2008). “Similarity,” in the Court’s view, entails crimes that" }, { "docid": "5750298", "title": "", "text": "cases interpreting the term “violent felony” to determine whether a particular offense constitutes a “crime of violence” under section 4B1.2(a) of the Guidelines. See Crews, 621 F.3d at 856 (explaining that “the terms ‘violent felony’ in the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and ‘crime of violence’ in Guidelines section 4B1.2[] are interpreted according to the same precedent”). The only question raised in this appeal is whether California first-degree burglary categorically falls within section 4B1.2(a)(2)’s “residual clause,” in that it “involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a). The government expressly concedes, for the purposes of this appeal, that section 4B1.2(a)’s other provisions are inapplicable in this case. To determine whether an offense is categorically a crime of violence under section 4B1.2(a)’s residual clause, we generally examine two criteria. Crews, 621 F.3d at 853; see also Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 2272-74, 180 L.Ed.2d 60 (2011) (reiterating the relevant standards for evaluating whether an offense is a crime of violence). First, the “conduct encompassed by the elements of the offense, in the ordinary case,” must “present! ] a serious potential risk of phys ical injury to another.” James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also United States v. Terrell, 593 F.3d 1084, 1093 (9th Cir.2010) (concluding that Arizona second-degree burglary constitutes a “violent felony” under the ACCA), cert. denied, — U.S. -, 131 S.Ct. 2094, 179 L.Ed.2d 895 (2011). Second, the state offense must be “roughly similar, in kind as well as in degree of risk posed” to those offenses enumerated at the beginning of the residual clause — burglary of a dwelling, arson, extortion, and crimes involving explosives. Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); see also Terrell, 593 F.3d at 1093. II. Applying the categorical test here, we hold that California first-degree burglary is a crime of violence pursuant to the residual clause of section 4B1.2(a). Under California law, a person commits burglary when he or she “enters any" }, { "docid": "22277260", "title": "", "text": "prior conviction for a crime of violence. Id. § 2K2.1(a)(4)(A). This increases the advisory sentencing range for a defendant with a category IV criminal history, like Alexander, from 27-33 months imprisonment to 51-63 months imprisonment. Id. Ch. 5, Pt. A. The Guidelines define “crime of violence” as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). The Government concedes that the crime in this case, discharging a firearm from a vehicle within 1,000 feet of another person, does not fall under subsection one of this definition, and we agree. And, the crime is not one of those enumerated in subsection two. At issue is whether this offense falls within the residual provision of subsection two—whether it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2). In Begay, James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and Chambers v. United States, —U.S.-, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), the Supreme Court analyzed the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(2)(B)(i)-(ii). Considering whether a crime is a “violent felony” under the ACCA is similar to considering whether a conviction qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a) because “the definitions for both terms are virtually identical.” United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir.2007) (quotation and citation omitted). The definitions provide the same example offenses: burglary, arson, extortion, and crimes involving the use of explosives. And, the residual clauses are identical; they classify as violent any felony that “otherwise involves conduct that presents a potential risk of physical injury to another.” Compare 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”), with U.S.S.G. § 4B1.2(a)(2) (defining" }, { "docid": "19642816", "title": "", "text": "statutory interpretation, the crime of unlawfully possessing a short-barreled shotgun does not constitute a \"violent felony\" under ACCA. In relevant part, that Act defines a \"violent felony\" as a \"crime punishable by imprisonment for a term exceeding one year\" that either \"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or \"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.\" 18 U.S.C. § 924(e)(2)(B). The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definition nor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it falls within ACCA's so-called \"residual clause\"-i.e.,if it \"involves conduct that presents a serious potential risk of physical injury to another.\" § 924(e)(2)(B)(ii). To determine whether an offense falls within the residual clause, we consider \"whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.\" James v. United States,550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The specific crimes listed in § 924(e)(2)(B)(ii)-arson, extortion, burglary, and an offense involving the use of explosives-offer a \"baseline against which to measure the degree of risk\" a crime must present to fall within that clause. Id.,at 208, 127 S.Ct. 1586.Those offenses do not provide a high threshold, see id.,at 203, 207-208, 127 S.Ct. 1586, but the crime in question must still present a \" 'serious' \"-a \" 'significant' or 'important' \"-risk of physical injury to be deemed a violent felony, Begay v. United States,553 U.S. 137, 156, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)(ALITO, J., dissenting); accord, Chambers v. United States,555 U.S. 122, 128, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). To qualify as serious, the risk of injury generally must be closely related to the offense itself. Our precedents provide useful examples of the close relationship that must exist between the conduct of the offense and the risk presented. In Sykes" }, { "docid": "11177877", "title": "", "text": "in the ordinary case, to “involve[ ] conduct- that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), regardless of Spencer’s specific conduct in violating § 708-820(l)(a). But the Supreme Court’s precedent dictates that the analysis is not so straightforward. The Court has interpreted the nearly identical residual clause of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), four times in recent years. See Sykes v. United States, — U.S.-, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (holding that knowing or intentional flight from law enforcement by vehicle under Indiana law is a violent felony under ACCA); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (holding that failure to report to prison under Illinois law is not a violent felony under ACCA); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (holding that driving under the influence of alcohol under New Mexico law is not a violent felony under ACCA); James, 550 U.S. at 209, 127 S.Ct. 1586 (holding that attempted burglary under Florida law is a violent felony under ACCA). These opinions make clear that interpretation of ACCA’s residual clause must be guided not only by the language of the residual clause itself, but also by the offenses enumerated in ACCA’s “violent felony” definition just before the residual clause. See Sykes, 131 S.Ct. at 2273; Chambers, 555 U.S. at. 127-29, 129 S.Ct. 687; Begay, 553 U.S. at. 142-44, 128 S.Ct. 1581; James, 550 U.S. at 203, 127 S.Ct. 1586. Since we make “no distinction between the terms ‘violent felony’ [as defined in the ACCA] and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clausefs],” Crews, 621 F.3d at 852 n. 4; see also id. at 855-56, the enumerated offenses that precede the residual clause in the “crime of violence” definition in the Guidelines must guide our interpretation of the residual clause in § 4B1.2(a)(2) as well. We set out the framework for analyzing whether a conviction" }, { "docid": "11177878", "title": "", "text": "U.S. at 209, 127 S.Ct. 1586 (holding that attempted burglary under Florida law is a violent felony under ACCA). These opinions make clear that interpretation of ACCA’s residual clause must be guided not only by the language of the residual clause itself, but also by the offenses enumerated in ACCA’s “violent felony” definition just before the residual clause. See Sykes, 131 S.Ct. at 2273; Chambers, 555 U.S. at. 127-29, 129 S.Ct. 687; Begay, 553 U.S. at. 142-44, 128 S.Ct. 1581; James, 550 U.S. at 203, 127 S.Ct. 1586. Since we make “no distinction between the terms ‘violent felony’ [as defined in the ACCA] and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clausefs],” Crews, 621 F.3d at 852 n. 4; see also id. at 855-56, the enumerated offenses that precede the residual clause in the “crime of violence” definition in the Guidelines must guide our interpretation of the residual clause in § 4B1.2(a)(2) as well. We set out the framework for analyzing whether a conviction under a state statute, such as § 708-820(l)(a), is a conviction for a “crime of violence” in United States v. Park, 649 F.3d 1175 (9th Cir.2011). For the conviction to constitute a conviction for a crime of violence, “[fjirst, the ‘conduct encompassed by the elements of the offense, in the ordinary case,’ must ‘present!] a serious potential risk of physical injury to another,’ ” id. at 1177-78 (quoting James, 550 U.S. at 208, 127 S.Ct. 1586), and “[s]econd, the state offense must be ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause — burglary of a dwelling, arson, extortion, and crimes involving explosives,’ ” id. at 1178 (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581). The inquiry under Park’s first prong is straightforward. But the second requirement — whether the state offense is “ ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause,” id. at 1178" }, { "docid": "13522913", "title": "", "text": "1280, 1285-89 (11th Cir.2009) (chronicling the Supreme Court’s “violent felony” analysis since 2007); United States v. Archer, 531 F.3d 1347, 1349-51 (11th Cir.2008) (describing the Supreme Court’s interpretation of “crimes of violence”). In Harrison, we explained the method for determining whether a defendant’s prior conviction qualifies as “violent” under the Armed Career Criminal Act. This case, like Archer, arises under the similar—but not identical—career offender enhancement of section 4B1.1-2. We accept Archer; our Court has extended Begay's way of construing the ACCA “violent felony” provision to U.S.S.G. section 4B1.1-2 “crimes of violence.” With that in mind, we apply the procedures set forth by the Supreme Court. A. The “Categorical Approach” When deciding if a crime is “violent” for purposes of the career offender enhancement, we take a “categorical approach.” James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1593-94, 167 L.Ed.2d 532 (2007). This approach “look[s] only to the fact of conviction and the statutory definition of the prior offense .... [without examining] particular facts disclosed by the record of conviction.” Id. (citations and internal quotation marks omitted); see also Chambers v. United States,—U.S.-, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009) (noting that courts should examine a crime as the statute defines it, and not consider extreme situations). Our inquiry is different for crimes listed in the ACCA or section 4B1.2 than it is for “residual” crimes. See Harrison, 558 F.3d at 1285, 1291 & n. 20 (describing the categorical approach for enumerated crimes and residual crimes, and observing the similarity between the ACCA and Sentencing Guidelines residual clauses). In residual cases like Hamson— and Whitson’s case, here—we look to the language of the statute itself to discern an offense’s elements and to determine how it is “generically” committed. Id. at 1291- 92; see also Chambers, 129 S.Ct. at 691 (performing such an analysis and concluding that failure to report to a penal institution is not typically a violent offense). Until recently, if this analysis convinced a court that the crime posed a “serious potential risk of physical injury,” it qualified as a “violent felony.” James, 127 S.Ct." }, { "docid": "7660089", "title": "", "text": "sentence of 15 years and a maximum of life — if he has three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The statute defines a “violent felony” as any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. § 924(e)(2)(B). The final clause of this definition has come to be known as the “residual clause.” Subsection (ii) of the statute lists four specific but disparate crimes followed by the catchall “residual clause” that sweeps in any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The residual clause has eluded stable construction. The Supreme Court has heard four ACCA residual-clause cases in fairly rapid succession in an effort to clarify the open-ended language of the clause and to establish a framework for how to distinguish crimes that qualify from crimes that do not. See Sykes, 131 S.Ct. at 2270 (“The instant case is another in a series in which the Court is called upon to interpret § 924(e).... ”); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes, the latest in the series, the Court held that to qualify as a violent felony under the residual clause, a crime must “involve[ ] a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving the use of explosives.” 131 S.Ct. at 2277. In other words, the defendant must have been convicted of an offense that carries a risk of injury similar in kind and degree as the crimes specifically mentioned in the statute. Id. at" }, { "docid": "17024816", "title": "", "text": "only in cases where the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation marks omitted); see also United States v. Stinson, 734 F.3d 180, 184 (3d Cir.2013). III. Calabretta argues that the District Court plainly erred in treating his conviction for eluding as a “crime of violence” under the Sentencing Guidelines, and that his case should be remanded for resen-tencing. The Guidelines define a “crime of violence” as: any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — 1. has as an element the use, attempted use, or threatened use of physical force against the person of another, or 2. is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a) (emphasis added). The Government has conceded that Calabret-ta’s eluding conviction qualifies as a “crime of violence” only under what is known as the “residual clause” of the Guideline — as “otherwise involving] conduct that presents a serious potential risk of physical injury to another.” See Gov’t Letter Pursuant to Fed. R. App. P. 28(j) (Aug. 12, 2015). A. While Calabretta’s appeal was pending, the United States Supreme Court decided Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) was unconstitutional. Under ACCA, defendants are subject to a more severe punishment if they have three or more previous convictions for a “violent felony” — which included, under the statute’s residual clause, “conduct that presents a serious potential risk of physical injury to • another.” 18 U.S.C. § 924(e)(2)(B)(ii). Supreme Court prece dent prior to Johnson had required courts to use a “categorical” approach to determine whether a crime fell within ACCA’s residual clause. See Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The categorical approach prescribed that" }, { "docid": "6580294", "title": "", "text": "sustaining at least two felony convictions of ... a crime of violence.” U.S.S.G. § 2K2.1(a)(2). A “crime of violence” for purposes of § 2K2.1(a) has the meaning given to that term under the career-offender guideline, U.S.S.G. § 4B1.2. See id. § 2K2.1 cmt. n. 1. Section § 4B1.2, in turn, defines a “crime of violence” as: (a) ... any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. This language is virtually identical to the definition of a “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and we have held that the definitions are interpreted in the same way. See Woods, 576 F.3d at 403-04. To determine whether a prior conviction qualifies as a violent felony under the ACCA, the Supreme Court has instructed us to apply a “categorical approach.” See Begay, 128 S.Ct. at 1584; James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This means that we may “ ‘look only to the fact of conviction and the statutory definition of the prior offense’ ” and do not generally consider the defendant’s actual conduct or the “particular facts disclosed by the record of conviction.” Shepard, 544 U.S. at 17, 125 S.Ct. 1254 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). A modified categorical approach applies when a statute is “divisible” — that is, when it creates more than one crime or one crime with multiple enumerated modes of commission, some of which may be crimes of violence and some not. Woods, 576 F.3d at 405-06 (citing Begay, James, Chambers v." }, { "docid": "20259976", "title": "", "text": "officer’s application of the ACCA enhancement, arguing that his indecent liberties convictions were not violent felonies under Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v. Thornton, 554 F.3d 443 (4th Cir.2009) (holding that Virginia’s statutory rape offense is not a violent felony under ACCA). The government, in contrast, argued that the matter was controlled by United States v. Pierce, 278 F.3d 282 (4th Cir.2002), which held that a violation of N.C. Gen.Stat. § 14-202.1 is a “crime of violence” for purposes of the Sentencing Guidelines’ career offender en hancement, U.S.S.G. §§ 4B1.1, 4B1.2(a). The district court overruled Vanris objection, held that Vann was an armed career criminal under ACCA, and sentenced him to 180 months’ imprisonment. This appeal followed. II A violation of 18 U.S.C. § 922(g) ordinarily carries a maximum sentence of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). But ACCA provides a sentencing enhancement based on the defendant’s criminal history, providing that a person who violates § 922(g) and has “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another” must be sentenced to at least 15 years’ imprisonment. Id. § 924(e)(1). The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another!;.] Id. § 924(e)(2)(B). The government contends that Vanris three indecent liberties convictions qualify as “violent felonies” under the final, or “residual” clause in subparagraph (ii) of § 924(e)(2)(B), which qualifies crimes that “present[ ] a serious potential risk of physical injury to another” as “violent felonies.” To reach this conclusion, it makes three points. First, the government asserts that N.C. Gen.Stat. § 14-202.1 contains two distinct offenses for ACCA purposes, one set forth in subsection (a)(1) and the other" }, { "docid": "7175147", "title": "", "text": "controlled substance offense. U.S.S.G. § 4Bl.l(a). The sentencing guidelines define a “crime of violence” as any offense “punishable by imprisonment for a term exceeding one year that — has an element of ... force” or, “is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a) (emphasis added). Mobley’s possession of a shank in prison was classified as a violent crime under the latter, emphasized clause (“residual clause”). It is this classification that Mobley challenges on appeal. II. Our interpretation of the career offender provision is informed by precedent construing the Armed Career Criminal Act (“A.C.C.A.”). See United States v. Jarmon, 596 F.3d 228, 231 n. * (4th Cir.2010) (“[Pjrecedents evaluating the A.C.C.A. apply with equal force to U.S.S.G. § 4B1.2.”). This is because the A.C.C.A. definition of “violent felony” is “nearly identical to the Career Offender Guidelines’ definition of a ‘crime of violence.’ ” United States v. Polk, 577 F.3d 515, 518 (3d Cir.2009)(citation omitted). See also United States v. King, 673 F.3d 274, 279 n. 3 (4th Cir.2012) (“We rely on precedents evaluating whether an offense constitutes a ‘crime of violence’ under the Guidelines interchangeably with precedents evaluating whether an offense constitutes a ‘violent felony’ under the ACCA, because the two terms have been defined in a manner that is ‘substantively identical.’ ” (citation omitted)). In the past four years, the Supreme Court has addressed whether particular convictions were properly classified as “violent felonies” under the A.C.C.A.’s residual clause on three separate occasions. See Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In considering whether particular offenses were “violent,” the Supreme Court “tailored [its opinion] to the crime at hand” and declined to use a monolithic, bright-line test. United States v. Herrick, 545 F.3d 53, 58 (1st Cir.2008). Nevertheless, not only did no case" } ]

[ { "docid": "22794990", "title": "", "text": "granted the petition for certiorari because the interpretation of the power of the federal courts under § 268 of the Judicial Code to punish con-tempts raised matters of grave importance. We are met at the threshold with a question as to the jurisdiction of the Circuit Court of Appeals over the appeal. The government concedes that if this was a case of civil contempt, the notice of appeal was effective under Rule 73 of the, Rules of Civil Procedure. It argues, however, that the contepipt was criminal — in which case the appeal was not timely if the Criminal Appeals Rules govern, and not made in the proper form if § 8(c) of the Act of February 13, 1925 (43 Stat. 936, 940, 45 Stat. 54,28 U. S. C. § 230) is applicable. We do not think this was a case of civil contempt. We recently stated in McCrone v. United States, 307 U. S. 61, 64, “While particular acts do not always readily lend themselves to classification as civil or criminal con-tempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.\" The facts of this case do not meet that standard. While the proceedings in the District Court were entitled in Elmore’s action and the United States was not a party until the appeal, those circumstances though relevant (Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 445-446) are not conclusive as.to the nature of the contempt. The fact that Nye was ordered to pay the costs of the proceeding, including $500 to Guthrie, is also not decisive. .As Mr. Justice Brandéis stated in Union Tool Co. v. Wilson, 259 U. S. 107, 110, “Where a fine is imposed partly as compensation to the complainant and partly as punishment, the criminal feature of the order is dominant and fixes its character for purposes of review.” The order imposes unconditional fines payable to the United States. It awards no relief to a private suitor. The prayer for" } ]

[ { "docid": "7316803", "title": "", "text": "that it is an order of criminal contempt and therefore immediately appealable as a final order. See Union Tool Co. v. Wilson, 259 U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922); International Business Machines Corp. v. United States, 493 F.2d at 114. The chief characteristic of civil contempt is that its purpose is to compel obedience to an order of the court to enforce the rights of the other party to the action. Nye v. United States, 313 U.S. 33, 42, 61 S.Ct. 810, 85 L.Ed. 1172 (1941); McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 83 L.Ed. 1108 (1939); International Business Machines Corp. v. United States, 493 F.2d at 115. Consistent with this remedial purpose, the sanction imposed is generally made contingent on compliance. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Penfield Co. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 91 L.Ed. 1117 (1947); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 55 L.Ed. 797 (1911). This is often accomplished by a purgation provision, whereby a civil contemnor may purge himself of contempt at any time by compliance. See generally C. Wright, A. Miller, J.E. Cooper, supra, § 2960. The purpose of an order of criminal contempt, on the other hand, is punitive. It is imposed to vindicate the court’s authority. Nye v. United States, 313 U.S. at 43, 61 S.Ct. 810; see generally Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 235-39 (1971). Accordingly, compliance with the court’s command will not lift the sanction. In responding to a single contemptuous act, a court may well impose both criminal and civil sanctions — wishing to vindicate its authority and to compel compliance. Id. at 236-37. This is what the district court intended here. . In his first order, imposing on Irving a flat fine of $10,000 for “wilful” contempt, Judge Bramwell captioned his order in a criminal contempt format, followed the language of Fed.R.Crim.P. 42(a), and made no provision for purgation. The fine was punitive, levied" }, { "docid": "22091615", "title": "", "text": "which the Commission sought was production of the documents; and the only sanction asked was a penalty designed to compel their production. Where a fine or imprisonment imposed on the contemnor is “intended to be remedial by coercing the defendant to do what he had refused to do,” Gompers v. Bucks Stove & Range Co., supra, p. 442, the remedy is one for civil contempt. United States v. United Mine Workers, 330 U. S. pp. 258, 303. Then “the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.” McCrone v. United States, 307 U. S. 61, 64. One who is fined, unless by a day certain he produces the books, has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, “carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 461. Fine and imprisonment are then employed not to vindicate the public interest but as coercive sanctions to compel the contemnor to do what the law made it his duty to do. See Doyle v. London Guarantee Co., 204 U. S. 599; Oriel v. Russell, 278 U. S. 358; Fox v. Capital Co., 299 U. S. 105; McCrone v. United States, supra. The Act gives the Commission authority to require the production of books and records in the course of its investi gations. And in absence of a basis for saying that its demand exceeds lawful limits (Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186), it is entitled to the aid of the court in obtaining them. A refusal of the court to enforce its prior order for the production of the documents denies the Commission that statutory relief. The issue thus raised poses a problem in civil, not criminal, contempt. Where a judgment of contempt is embodied in a single order which contains an admixture of criminal and civil elements, the criminal aspect of the order fixes its character for purposes of procedure on review. Union Tool Co." }, { "docid": "22953869", "title": "", "text": "contempt, the focus of the inquiry is often “not [upon] the fact of punishment but rather its character and purpose. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The test, as formulated by the Shillitani Court, is “what does the court primarily seek to accomplish by imposing [the sanction]?” 384 U.S. at 370, 86 S.Ct. at 1535. The primary purpose of criminal contempt is to punish past defiance of a court’s judicial authority, thereby vindicating the court. See Shillitani, 384 U.S. at 369, 86 S.Ct. at 1534; Gompers, 221 U.S. at 441, 31 S.Ct. at 498; Accord United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980). The principal beneficiaries of such an order are the courts and the public interest. Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 500 (10th Cir.1980). Civil contempt is characterized by the court’s desire to compel obedience to a court order, Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535, or to compensate the contemnor’s adversary for the injuries which result from the noncompliance. Gompers, 221 U.S. 418, 448-449, 31 S.Ct. 492, 500-501, 55 L.Ed. 797. Thus, there are two forms of civil contempt: compensatory and coercive. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). A contempt adjudication is plainly civil in nature when the sanction imposed is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939). A court’s power to impose coercive civil contempt depends upon the ability of the contemnor to comply with the court’s coercive order. See Shillitani v. United States, 384 U.S. at 371, 86 S.Ct. at 1536 (citing Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948). While civil contempt may have an incidental effect of vindicating the court’s" }, { "docid": "13836822", "title": "", "text": "and direction of the Attorney General. (10) That the facts in this case point to classification of the acts charged as criminal contempt and “carry the criminal hallmark.” There was no factual issue, and the main question is whether or not the proceeding here is for a civil contempt, as contended by the Administrator, or for a criminal contempt, as contended by the Appellees and as found by the lower Court. The distinctions between civil and criminal contempts have often been pointed out. See discussion and cases cited in Parker v. United States, 1 Cir., 153 F.2d 66, 163 A.L.R. 379. Broadly speaking, a civil contempt is a failure of a litigant to do something ordered to be done' by a court in a civil action for the benefit of the opposing party therein, but the courts also hold that a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended chiefly as a deterrent to offenses against the public. A criminal contempt is an act against the dignity or authority of the court, the majesty of the law, and, to use the language of Justice Cardozo, is for the “vindication of the public justice.” Civil contempt is coercive and looks to the future. Criminal contempt punishes a past act, and a contempt which punishes for a past affirmative act is punitive and criminal, although it is not the punishment that is inflicted, but its purposes, that often determines whether a proceeding in contempt is civil or criminal. Imprisonment may be had for a civil contempt where the defendant has refused to do an affirmative act required by the provisions of a mandatory order, but if the imprisonment is for an act already accomplished, it would be punitive in its nature and a criminal contempt. It is noted that the proceeding here is a continuation of the original cause. It is for the enforcement of rights which the Administrator claimed as having been granted to him in the injunction decree. The enforcement power of the Administrator is civil in" }, { "docid": "22814663", "title": "", "text": "3d Cir. 1945, 153 F.2d 212, aff’d, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 996 (1961). “Appellate review of the final judgment of contempt involves power to review the civil element as well as the criminal and to grant relief affecting both.” Hickman v. Taylor, supra, 153 F.2d at 214, n. 1. If the order of production was improper, the contemnor’s refusal to comply was justified and the contempt conviction must be reversed. Thus the dispute on appeal is between the private parties to the original suit. The character of the contempt as civil or criminal, however, is fixed by the nature and purpose of the punishment and is not affected by the nature of the parties to the appeal. Cf. McCrone v. United States, supra, 307 U.S. at 64, 59 S.Ct. at 686, 83 L.Ed. 1108. Moreover, the procedure adopted by the trial court was consistent with the penalty imposed. It has been held that a wholly punitive sanction can be properly imposed only in a proceeding instituted and conducted as a criminal contempt. Gompers v. Bucks Stove & R. Co., supra, 221 U.S. at 444, 31 S.Ct. at 499; see Cliett v. Hammonds, 5th Cir. 1962, 305 F.2d 565. Consequently, a criminal sanction is invalid if imposed in proceedings that are instituted and tried as a civil contempt. Penfield Co. of California v. S. E. C., supra, 380 U.S. at 595, 67 S.Ct. at 923. In that event, the contempt is not considered criminal for purposes of establishing appeal. The usual procedure is to reverse the citation for contempt and remand it to the trial court in order that a proper civil penalty can be imposed or in order that a criminal proceeding can be conducted. Duell v. Duell, supra, 178 F.2d at 689. Here, the court acted sua sponte to hold appellant in contempt. Despite the recital of the trial court that the contempt was “civil,” we view the proceeding below as one between the court, acting to vindicate its authority, on one side, and" }, { "docid": "15566557", "title": "", "text": "fine and imprisonment may not be imposed for a single act of contempt. Carter v. United States, 5 Cir., 1943, 135 F.2d 858. It is equally clear that both may be imposed where the same act constitutes civil and criminal contempt. So long as civil contempts are restricted to those initiated by the parties primarily in interest we see nothing objectionable in the double sentence — one remedial, the o.ther punitive. We believe, however, that such a double sentence is not proper where the parties primarily in interest have not complained and where the trial judge, in effect, seeks to turn the remedial sentence for civil contempt into additional punishment for an offense to the pub-lie interest. If the court may accomplish this by merely adding the word “civil” to his charge of criminal contempt then the provisions of § 401 become meaningless. Perhaps it should be noted that the language in United States v. United Mine Workers, 1947, 330 U.S. 258, 301, 302, 67 S.Ct. 677, 700, 91 L. Ed. 884, lends inferential support to our position: “Apart from their contentions concerning the formal aspects of the proceedings below, defendants insist upon the inability of the United States to secure relief by way of civil contempt in this ease, and would limit the right to proceed by civil contempt to situations in -which the United States is enforcing a statute expressly allowing resort to the courts for enforcement of statutory orders. McCrone v. United States, 1939, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108, however, rests upon no such narrow ground, for the Court there said that ‘Article 3, Section 2, of the Constitution, U.S.C.A. expressly contemplates the United States as a party to civil proceedings by extending the jurisdiction of the federal judiciary “to Controversies to which the United States shall be a Party.” ’ Id., 307 U.S. at page 63, 59 S.Ct. at page 686. The United States was fully entitled to bring the present suit and to benefit from orders entered in its behalf. We will not reduce the practical value of the relief granted" }, { "docid": "22309605", "title": "", "text": "Constitution, expressly contemplates the United States as a party to civil proceedings by extending the jurisdiction of the federal judiciary “to Controversies to which the United States shall be a Party.” An action by the Interstate Commerce Commission to compel a witness to testify is “a direct civil proceeding, expressly authorized by an act of Congress in the name of the Commission^ and under the direction of the Attorney General of the'United States, against the witness . . . refusing to testify, ...” So here, the mere presence of the United States as a party, acting through' its agents, does not impress upon the controversy the elements of a criminal proceeding. In accordance with its constitutional authority to do sp, Congress has expressly authorized such a proceeding by an agent of the United States in the federal courts “to compel -. . . attendance, testimony, or production of books, papers, or. other data.” 26 U. S. C. § 1523. While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. Here, the summons served on petitioner required only that he testify in a tax inquiry properly conducted by an agent of the Bureau of Internal Revenue. And the agent’s petition to the District Court, to which we may look in determining the nature of. the proceeding, invoked judicial assistance solely in obtaining petitioner’s testimony. Authority of the court was sought to buttress' the procedure for collection of taxes and not in “vindication of the public justice,” as in, criminal cases. The judgment of contempt was civil, and appeal from it was governed by the statutory rules of civil appeals. There remains the suggestion that the appeal in question can be considered a civil appeal properly taken under Rule 73 of the new Federal Rules of Civil Procedure which became effective September 16, 1938. However,- petitioner’s notice of appeal was filed May 2,1938. The controlling statute" }, { "docid": "15533868", "title": "", "text": "in contempt proceedings but expressly excludes any contempt committed in disobedience of an order “entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.” The statute has no application to civil contempt proceedings. Michaelson v. United States ex rel. Chicago & St. P. M. & O. R. Co., 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162. This proceeding is civil in nature. The punishment sought and meted out was wholly remedial. McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172. This proceeding was instituted by counsel for appellees and not by the United States Attorney and it did not charge a criminal contempt, and Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., has no application. It is to be observed that the order adjudging appellants in contempt awarded damages to appellees, dearly marking the proceeding as civil. Nye v. United States, supra. Neither is there any merit in the contention that the order violated the constitutional inhibition against imprisonment for debt. The power to impose a fine for civil contempt is well settled. United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797; Hurd v. Hurd, 63 Minn. 443, 65 N.W. 728. Nor does such imprisonment constitute cruel or unusual punishment. The appellants while imprisoned, were shortly released upon showing that confinement would cause undue hardship. It is finally urged that there is no evidence to support the order fining appellants $2500.00. There was testimony at the hearing of November 3, 1950, that one of the defendants had on deposit in the garnisheed baqks more than $425,000.00 on October 20, 1930, and that the garnishment of that date had interfered with the banking operations and injured the standing of defendants and had caused at least one large contractor to send his chief engineer to Minneapolis to inquire about" }, { "docid": "13836829", "title": "", "text": "the Court could, or should, mete out in the event the Appellees are later adjudged to be guilty of such alleged violations of the injunction. The decree of the lower Court is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded. 7 Words & Phrases, Perm.Ed., Civil Contempt, p. 305 et seq. Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Fenton v. Walling, 9 Cir., 139 F.2d 608; McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Gompers v. Buck’s Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. 10 Words and Phrases, Perm.Ed., Criminal Contempt, p. 499. Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 59, 81 L.Ed. 67 [quoted in McCrone v. United States, supra.] In re Eskay, 3 Cir., 122 F.2d 819; Reeder v. Morton-Gregson Co., 8 Cir., 296 F. 785; Gompers v. Buck’s Stove and Range Co., supra. Gompers v. Buck’s Stove and Range Co., supra; Donato v. United States, 3 Cir., 48 F.2d 142. Gompers v. Buck’s Stove and Range Co., supra. McCrone v. United States, supra; National Labor Relations Board v. Hopwood Retinning Co., 2 Cir., 104 F.2d 302; Gompers v. Buck’s Stove and Range Co., supra. The case of Porter, Administrator of the Office of Price Administration v. Warner Holding Company, 66 S.Ct. 1086, is urged upon us in support of the right of the Administrator to sue for wages due employees, but we do not consider it as having any bearing on the question here involved. The Porter case was a suit in equity, seeking to restrain the respondent from violating the Act. and also to require him to refund to the tenants all amounts illegally collected from them. That was not a contempt proceeding in which the power of the Court is vastly more restricted than the power of the Court in a suit in equity, for one cannot be decreed in contemptuous disobedience of that which the Court did not adjudge nor decree. McFarland v. United" }, { "docid": "22953870", "title": "", "text": "compel obedience to a court order, Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535, or to compensate the contemnor’s adversary for the injuries which result from the noncompliance. Gompers, 221 U.S. 418, 448-449, 31 S.Ct. 492, 500-501, 55 L.Ed. 797. Thus, there are two forms of civil contempt: compensatory and coercive. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). A contempt adjudication is plainly civil in nature when the sanction imposed is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939). A court’s power to impose coercive civil contempt depends upon the ability of the contemnor to comply with the court’s coercive order. See Shillitani v. United States, 384 U.S. at 371, 86 S.Ct. at 1536 (citing Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948). While civil contempt may have an incidental effect of vindicating the court’s authority and criminal contempt may permit an adversary to derive incidental benefit from the fact that the sanction tends to prevent a repetition of the disobedience, such incidental effects do not change the primary purpose of either type of contempt. Gompers, 221 U.S. at 443, 31 S.Ct. at 498. Where, however, a judgment of contempt contains an admixture of criminal and civil elements, “the criminal aspect of the order fixes its character for purposes of procedure on review.” Penfield Co. of California v. Securities & Exchange Commission, 330 U.S. 585, 591, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947). Similarly, where the fine imposed is part compensation and part punishment, the criminal feature dominates and fixes its character for purpose of review. Nye v. United States, 313 U.S. 33, 42-43, 61 S.Ct. 810, 812-813, 85 L.Ed. 1172 (1941) (quoting Union Tool Co. v. Wilson, 259 U.S. 107, 110, 42 S.Ct. 427, 428, 66 L.Ed. 848 (1922). A contempt judgment is criminal when it requires the contemnor to pay to the government an unconditional fine. See" }, { "docid": "22814659", "title": "", "text": "merits, see McCrone v. United States, 1939, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Bessette v. W. B. Conkey Co., 1904, 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997, a civil contempt order issued against a party lacks the requisite finality because its validity can be tested by an appeal from the final judgment. Fox v. Capital Co., supra; Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 996 (1961). On the other hand, an adjudication of criminal contempt is a final judgment and the contemnor, whether a party or non-party, may obtain immediate review by appeal. Union Tool Co. v. Wilson, 1922, 259 U.S. 107, 42 S.Ct. 427, 66 L.Ed. 848; Duell v. Duell, supra. The trial court recited in the contempt order that appellant was found to be in “civil contempt.” Under that characterization of the order it necessarily follows in these circumstances that this Court is without jurisdiction and that the appeal must be dismissed. The lower court’s characterization of the order, however, is not conclusive. Nye v. United States, 1941, 313 U.S. 33, 42, 61 S.Ct. 810, 85 L.Ed. 1172; Cyclopedia of Federal Procedure § 87.09 (3d ed. 1964). Although the entitling of the order or recitals contained in the order may be considered, see Fox v. Capital Co., supra, the appellate court on review must determine whether the contempt is civil or criminal in light of the nature and purpose of the punishment. Shillitani v. United States, 1966, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622; see Stewart v. Dunn, 5th Cir. 1966, 363 F.2d 591, 600, n. 5. The substance of the contempt rather than its form is our guide. Accordingly, this Court must determine whether the contempt order here is civil or criminal. The important tests in determining the character of a contempt are the nature and purpose of the punishment. Donato v. United States, 3d Cir. 1931, 48 F.2d 142, 143; 4 Barron, Federal Practice and Procedure § 2422 (1951); see Fox v. Capital Co., supra. Civil contempt is “wholly remedial” serves only the purpose of" }, { "docid": "8469919", "title": "", "text": "Court order. This is the hallmark of civil, as distinguished from criminal, contempt. “While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.” McCrone v. United States, 1938, 307 U.S. 61, 59 S.Ct. 685, 686, 83 L.Ed. 1108. Cf. Gompers v. Buck’s Stove & Range Co., 1911, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797; United States v. Montgomery, D.C.Mont., 1957, 155 F. Supp. 633. Although an Internal Revenue summons is, in the first instance an administrative process authorized by Congress (26 U.S.C. § 7602), which, standing alone, does not invoke the judicial power of the United States for its enforcement (as contrasted with a judicial subpoena), Congress has, in Section 7604, provided judicial remedies for enforcement which accord to the Internal Revenue summons like dignity to that of a subpoena issued by a Court. We are concerned with the public duty to respond to such process, and approach the problem in the light of the comment of Judge Learned Hand in Loubriel v. United States (2 CCA 1926), 9 F.2d 807: “The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were so, for there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance.” If this were a prosecution for criminal contempt, wilfulness would be an essential element of the offense. United States v. United Mine Workers, 1946, 380 U.S. 258 at 303, 67 S.Ct. 677, at 701, 91 L.Ed. 884: “One who defies the public authority and willfully refuses his obedience, does so at his peril. In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the" }, { "docid": "16890934", "title": "", "text": "were directed to be imprisoned until such time as they were ready to obey the orders. The commitments, however, were stayed by the trial court pending these appeals. The preliminary question we have to decide is whether the commitment orders are final, hence appealable under the applicable statute, 28 U.S.C.A. § 225(a). Concededly the contempts are civil. “While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public,” McCrone v. United States, 307 U.S. 61, 63, 59 S.Ct. 685, 686, 83 L.Ed. 1108. A civil contempt order directed against a party litigant is deemed interlocutory, and is reviewable only on appeal from the final decree in the main action, Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67. On the other hand it appears to be fairly well established that a civil contempt order directed toward a person not a party to the suit is final and appealable, Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Nelson v. United States, 201 U.S. 92, 98, 26 S.Ct. 358, 50 L.Ed. 673; Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Butler v. Fayerweather, 2 Cir., 91 F. 458. Two recent Supreme Court decisions, McCrone v. United States, supra, and Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, assume the appealability of such orders. In support of his motion to dismiss the appeals, appellee argues that appellants are not “strangers” to the main action, but that legally and in fact they represent the party defendant. It is claimed that as representatives of a corporate litigant, they stand in the position of a party regardless of the fact that they were not named as such. Accordingly, it is argued, the orders appealed from are as to them interlocutory in character. We do not find that the authorities cited" }, { "docid": "15533867", "title": "", "text": "404, 406, 50 L.Ed. 707: “The case, except for the hearing on the appeal from the interlocutory order, is to. proceed in the lower court as though no such appeal had been taken, unless otherwise specially ordered.” . See, also: Foote v. Parsons Non-Skid Co., 6 Cir., 196 F. 951. The trial court had jurisdiction to preserve the status quo of the subject matter pending the ap peal, “including power to take cognizance of a violation of its injunction.” Merrimack River Saving Bank v. City of Clay Center, 219 U.S. 527, 31 S.Ct. 295, 55 L.Ed. 320. It is urged that the order of November 8, 1950, deprived appellants of their constitutional right to a jury trial. Demand for jury trial was not made until three days after the hearing but we think there was no right to a jury trial on the issues presented. Simon v. United States, 9 Cir., 62 F.2d 13; Donato v. United States, 3 Cir., 48 F.2d 142. Section 3691, Title 18, United States Code, makes provision 'for jury trials in contempt proceedings but expressly excludes any contempt committed in disobedience of an order “entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.” The statute has no application to civil contempt proceedings. Michaelson v. United States ex rel. Chicago & St. P. M. & O. R. Co., 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162. This proceeding is civil in nature. The punishment sought and meted out was wholly remedial. McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172. This proceeding was instituted by counsel for appellees and not by the United States Attorney and it did not charge a criminal contempt, and Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., has no application. It is to be observed that the order adjudging appellants in contempt awarded damages to appellees, dearly marking the proceeding as civil. Nye v. United States, supra. Neither is" }, { "docid": "22814660", "title": "", "text": "States, 1941, 313 U.S. 33, 42, 61 S.Ct. 810, 85 L.Ed. 1172; Cyclopedia of Federal Procedure § 87.09 (3d ed. 1964). Although the entitling of the order or recitals contained in the order may be considered, see Fox v. Capital Co., supra, the appellate court on review must determine whether the contempt is civil or criminal in light of the nature and purpose of the punishment. Shillitani v. United States, 1966, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622; see Stewart v. Dunn, 5th Cir. 1966, 363 F.2d 591, 600, n. 5. The substance of the contempt rather than its form is our guide. Accordingly, this Court must determine whether the contempt order here is civil or criminal. The important tests in determining the character of a contempt are the nature and purpose of the punishment. Donato v. United States, 3d Cir. 1931, 48 F.2d 142, 143; 4 Barron, Federal Practice and Procedure § 2422 (1951); see Fox v. Capital Co., supra. Civil contempt is “wholly remedial” serves only the purpose of a party litigant, and is intended to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance. McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599; Penfield Co. of California v. S. E. C., 1947, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117; McCrone v. United States, supra; Scott v. Hunt Oil Co., 5th Cir. 1968, 398 F.2d 810 [July 24, 1968]; 6 Moore’s Federal Practice [f 54.17. Criminal contempt, on the other hand, is punitive, rather than remedial, serves to vindicate the authority of the court, and cannot be ended by any act of the contemnor. Nye v. United States, 1941, 313 U.S. 33, 43, 61 S.Ct. 810, 813, 85 L.Ed. 1172; Fox v. Capital Co., infra; Gompers v. Bucks Stove & R. Co., supra; Barron, Federal Practice and Procedure § 2422, at 374-75. On the basis of these well-established principles, we conclude that the order before us is criminal. The order imposes an unconditional" }, { "docid": "8469918", "title": "", "text": "to a warehouse; that no special instructions were given regarding safekeeping of the contested records; that at the time of the hearing on October 5, and 6, 1964, the exact location of the contested records was unknown but officials believed they could be found; and that since the order of October 8, 1964, a thorough and exhaustive search has been made for the contested records and they have not been found. It is represented that Respondents cannot be in contempt because they ¡ cannot comply with the summons and l Court order, and that some time during the years of litigation — perhaps during j reconstruction — no one knows when, the/ contested records were inadvertently, al-1 beit in good faith, lost or destroyed. It ) is suggested that contempt may be found only for wilful contumacious defiance and disobedience. First, it should be observed that this is a proceeding in civil contempt. It has not only been processed as such procedurally, but its objective is to compel compliance with the Internal Revenue summons and Court order. This is the hallmark of civil, as distinguished from criminal, contempt. “While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.” McCrone v. United States, 1938, 307 U.S. 61, 59 S.Ct. 685, 686, 83 L.Ed. 1108. Cf. Gompers v. Buck’s Stove & Range Co., 1911, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797; United States v. Montgomery, D.C.Mont., 1957, 155 F. Supp. 633. Although an Internal Revenue summons is, in the first instance an administrative process authorized by Congress (26 U.S.C. § 7602), which, standing alone, does not invoke the judicial power of the United States for its enforcement (as contrasted with a judicial subpoena), Congress has, in Section 7604, provided judicial remedies for enforcement which accord to the Internal Revenue summons like dignity to that of a subpoena issued by a Court. We are concerned" }, { "docid": "16890933", "title": "", "text": "the motion the court ordered the Bank, on a specified date at its main office, to produce and permit the inspection of the documents referred to. Appellant Smith, who was the executive vice president charged with the general administrative supervision and management of the Bank, and who had authority to comply with the court order, refused on appropriate request of counsel for appellee to arrange for the production of these records. Appellee then instituted contempt proceedings against Smith and Fenton under Rule 37(b). In their verified returns to the show cause orders, the main ground of defense (and the only one urged here) was that the court lacked jurisdiction of the subject matter in that the Bank, so it was alleged, had no employees engaged in interstate commerce, hence was not subject to the provisions of the Fair Labor Standards Act. There followed a hearing at the conclusion of which the court found that the failure of Smith and Fenton to obey the orders impaired and impeded the suit and constituted civil contempt. The two were directed to be imprisoned until such time as they were ready to obey the orders. The commitments, however, were stayed by the trial court pending these appeals. The preliminary question we have to decide is whether the commitment orders are final, hence appealable under the applicable statute, 28 U.S.C.A. § 225(a). Concededly the contempts are civil. “While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public,” McCrone v. United States, 307 U.S. 61, 63, 59 S.Ct. 685, 686, 83 L.Ed. 1108. A civil contempt order directed against a party litigant is deemed interlocutory, and is reviewable only on appeal from the final decree in the main action, Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67. On the other hand it appears to be fairly well established that a civil contempt order directed toward" }, { "docid": "13836821", "title": "", "text": "seeking by this contempt proceeding to compel the Defendants to pay employees wages which he claimed were due them, even though they were not sought, proven, nor decreed in the injunc-tive order now alleged to- have been violated. (9) That since there was no adjudication in the injunctive decree of any amount due to any employee, and since there was no power in the Administrator to sue for the wages and liquidated damages for any employees, there was, therefore, [64 F.Supp. 90] “no right to any benefit for himself individually or as Administrator or for the employees or anyone else” in the contempt proceeding; that the violation of the in-junctive decree was a public wrong and not a private injury to the Administrator or to his authority as Administrator, so as to entitle him to remedial process; that having procured an injunction, its enforcement became “a matter of the assertion of a public right and vindication of the authority of the court” which, under Section 204 (b), 29 U.S.C., must be brought under the authority' and direction of the Attorney General. (10) That the facts in this case point to classification of the acts charged as criminal contempt and “carry the criminal hallmark.” There was no factual issue, and the main question is whether or not the proceeding here is for a civil contempt, as contended by the Administrator, or for a criminal contempt, as contended by the Appellees and as found by the lower Court. The distinctions between civil and criminal contempts have often been pointed out. See discussion and cases cited in Parker v. United States, 1 Cir., 153 F.2d 66, 163 A.L.R. 379. Broadly speaking, a civil contempt is a failure of a litigant to do something ordered to be done' by a court in a civil action for the benefit of the opposing party therein, but the courts also hold that a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended chiefly as a deterrent to offenses against the public. A criminal contempt is" }, { "docid": "22863055", "title": "", "text": "the further benefit of such order, the civil contempt proceeding must be terminated. Worden v. Searls, 1887, 121 U.S. 14, 7 S.Ct. 814, 30 L.Ed. 853; Gompers v. Bucks Stove and Range Co., 1911, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874. Such proceeding not having been instituted to punish fot* a contumacious act in vindication of the court’s authority, the court has no such independent interest in maintaining in force its order imposing a compensatory fine as would justify it in transmuting the proceeding into one for criminal contempt, with the fine now regarded as punitive. But the required vacation of the remedial order, in the event supposed, does not trench upon the power of the court, in a proper case, to vindicate its own authority by punishment of an offender for a criminal contempt. Criminal and civil proceedings for contempt are not mutually exclusive. In both Worden v. Searls, supra, and Gompers v. Bucks Stove & Range Co., supra, the court made clear that the termination of the civil contempt proceedings was without prejudice to the power of the court to institute a separate and independent proceeding for criminal contempt. And see Parker v. United States, 1 Cir., 1942, 126 F.2d 370, 382. Such a proceeding would of course require a new citation and would have to be tried in accordance with the procedures and limitations applicable to criminal contempt. There is no doubt that the contempt proceeding in the case at bar was instituted and maintained throughout as one of civil contempt. This is true, despite the fact that the petition for attachment for contempt was filed by the United States. McCrone v. United States, 1939, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108. The United States was acting in its capacity as complainant in the original equity suit brought to compel Green Valley Creamery, Inc., to comply with the milk marketing order of the Secretary of Agriculture and to make the required payments into the equalization pool operated by the Market Administrator; and the purpose of the contempt petition was to" }, { "docid": "13836828", "title": "", "text": "and upon the sufficiency of the injunctive decree to serve as a predicate for an adjudication in contempt for the non-willful failure in this case to pay wages in a specific sum to certain employees, when the decree in no wise undertook to adjudge that any specific amount was due to any employee, and when no employee was before the Court when the decree was rendered, nor since. We do intend to hold that the contempt proceeding brought by the Administrator, cannot, in this case, serve the function of a plenary suit for the recovery of wages due employees. We do not, how ever, mean to hold that in a proper case the Court could not, in the exercise of its discretion, measure the contumacy in contempt by the delinquency of the contemnor’s duly adjudged obligation to the complainant. We do not pass upon the sufficiency, either in form or substance, of the other allegations of violations of the injunction set out in the petition for the rule nisi, nor the measure of punishment that the Court could, or should, mete out in the event the Appellees are later adjudged to be guilty of such alleged violations of the injunction. The decree of the lower Court is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded. 7 Words & Phrases, Perm.Ed., Civil Contempt, p. 305 et seq. Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Fenton v. Walling, 9 Cir., 139 F.2d 608; McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Gompers v. Buck’s Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. 10 Words and Phrases, Perm.Ed., Criminal Contempt, p. 499. Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 59, 81 L.Ed. 67 [quoted in McCrone v. United States, supra.] In re Eskay, 3 Cir., 122 F.2d 819; Reeder v. Morton-Gregson Co., 8 Cir., 296 F. 785; Gompers v. Buck’s Stove and Range Co., supra. Gompers v. Buck’s Stove and Range Co., supra; Donato" } ]

[ { "docid": "22604123", "title": "", "text": "conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” The two sorts of dispute are sharply distinguished, though there are points of common treatment. Nevertheless, it is clear from the Act itself, from the history of railway labor dis putes and from the legislative history of the various statutes which have dealt with them, that Congress has drawn major lines of difference between the two classes of controversy. The first relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past. The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e. g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future. In general the difference is between what are regarded traditionally as the major and the minor disputes of the railway labor world. The former present the large issues about which strikes ordinarily arise with the consequent interruptions of traffic the Act sought to avoid. Because they more often involve those consequences and because they seek to create rather than to enforce contractual rights, they have been left for settlement entirely" } ]

[ { "docid": "2085529", "title": "", "text": "93, 99 S.Ct. at 402; accord Andrews, 406 U.S. at 325, 92 S.Ct. at 1565; Crusos, 786 F.2d at 972; 45 U.S.C. § 153 First (q) (1982). Based on the RLA’s structure and legislative history, our court and others have ruled that the grievance and arbitral mechanisms the act establishes are essentially the exclusive means for railroad employees to assert “ ‘minor’ breaches of collective bargaining contracts ...of which the firing of an individual worker allegedly for cause is a classic illustration.” Graf, 790 F.2d at 1348 (emphasis added); accord Crusos, 786 F.2d at 972 (“The [RLA] gives no right of action to railroad employees to sue their employers in federal court for wrongful discharge ... [and] employees’ reinstatement actions are exclusively within the jurisdiction of the [NRAB].”); Gonzalez v. Southern Pacific Transportation Co., 773 F.2d 637, 642-43 (5th Cir.1985); Peterson v. Air Line Pilots Association, International, 759 F.2d 1161, 1169 (4th Cir.) (“Garden variety wrongful discharge actions, so-called ‘minor disputes’ involving rights under the collective bargaining agreement ... are routinely held to be within the exclusive jurisdiction of the arbitral authority created by the [RLA].”), cert. denied, — U.S. -, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985); Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1052 (7th Cir.1983) (“[T]he RLA has made any grievance arising out of the collective bargaining agreement subject to the exclusive arbitral remedies contained in that Act.”), cert. denied, 465 U.S. 1007, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984); see also Buell, 771 F.2d at 1323; see generally Tello v. Soo Line Railroad Co., 772 F.2d 458, 460 (8th Cir.1985). We have consistently held that the RLA preempts state tort claims by employees against railroads for wrongful discharge or for intentional infliction of emotional distress, where the alleged tortious activity is “ ‘arguably’ governed by the collective bargaining agreement or has a ‘not obviously insubstantial’ relationship to the labor contract,” and where “the gravamen of the complaint is wrongful discharge.” Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369-70 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978); see, e.g.," }, { "docid": "18787266", "title": "", "text": "The Supreme Court and this Circuit have repeatedly held the NRAB has primary and exclusive jurisdiction over minor disputes. Sheehan, 439 U.S. at 93-94, 99 S.Ct. at 402-03; Baker, 482 F.2d at 230; Kaschak, 707 F.2d at 905. Employees’ attempts to evade NRAB exclusive jurisdiction over minor disputes by recharacterizing their claims into state causes of action are scrutinized by the following test: If the “action is based on a matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the R.L.A.,” exclusive jurisdiction of the NRAB preempts the action. Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.1978), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). Pursuant to this standard, other Circuits dismiss for lack of subject matter jurisdiction state court claims of reckless or intentional infliction of emotional distress arising directly out of a labor dispute. See Beers v. Southern Pacific Transportation Co., 703 F.2d 425 (9th Cir.1983); Choate v. Louisville & Nashville Railroad Co., 715 F.2d 369 (7th Cir.1983). On appeal, Stephens contends N & W Railway’s employment qualification criteria utilized in his dismissal violates his civil rights as defined by the Michigan Handicapper’s Civil Rights Act, Mich.Comp.Laws § 37.1101 et seq. The Handicapper’s Act prohibits discrimination based on a handicap unrelated to the worker’s ability to perform the duties of a particular job or position. Mich.Comp.Laws § 37.1202. Stephens relies on medical evidence indicating his ability to perform his work despite the uncontested diagnosis of degenerative back disease. Stephens argues since his cause of action arises as a civil rights violation, and not a contractual violation, the district court should take jurisdiction. We reject Stephens’ jurisdictional claim premised on alleged violations of the Michigan Handicapper’s Civil Rights Act. The collective bargaining agreement covers aspects of the work relationship including N & W Railway’s prerogative for setting physical qualifications for employees. N & W Railway legitimately exercised rights granted by the collective bargaining agreement in disqualifying Stephens. Any disagreement with N & W Railway’s decision necessarily implies interpretation and application of the collective" }, { "docid": "2943586", "title": "", "text": "203 (1994); Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914 (1942). The RLA was enacted in 1926, during an era of protracted railway labor disputes that had adversely affected the national economy, to “provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions,” 45 U.S.C. § 151a(5), and to “avoid any interruption to commerce or to the operation of any carrier engaged therein,” id. § 151a(l). To achieve its purposes, the Act treats separately and differently two classes of labor disputes, which the courts have denominated “major disputes” and “minor disputes.” We have previously explained the distinction as follows: The RLA does not explicitly use the terms “major dispute” or “minor dispute.” Rather, these are terms adopted by the courts from the vocabulary of railroad management and labor as a shorthand method of describing two classes of controversies Congress had distinguished in the RLA.... “[Mjajor disputes” seek to create contractual rights, while “minor disputes” seek to enforce those rights. United Transp. Union, 130 F.3d at 631. In this case, Fairbairn characterizes his attempt to enforce his individual contract rights as a “minor dispute” for which the RLA provides compulsory and binding arbitration and over which the district court lacks subject matter jurisdiction. See 45 U.S.C. § 184. Looking solely at the language of the RLA, it might appear, at first blush, to authorize any employee to invoke compulsory arbitration because it appears to cover disputes arising out of any agreement “concerning rates of pay, rules, or working conditions,” without specifying whether the agreement is an individual employment contract or a collective bargaining agreement. 45 U.S.C. §§ 152 Sixth, 184. But because we are not interpreting this Act as a matter of first impression, we need not be concerned with our initial observations about the text. The Supreme Court has repeatedly addressed the RLA’s scope, concluding as early as 1942 that the RLA does not apply to all agreements involving rates of pay, rules," }, { "docid": "16816051", "title": "", "text": "Preemption The court held that the RLA preempted Croston’s state handicap discrimination claim. We review de novo this question of law. See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1099 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1047, 122 L.Ed.2d 355 (1993). The RLA generally preempts state law claims arising from disputes between railroad labor and management. In providing a comprehensive administrative framework to resolve grievances, “Congress made clear its interest in keeping railroad disputes simple and out of the reach of the often -lengthy court process.” Grote v. Trans World Airlines, 905 F.2d 1307, 1309 (9th Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 386, 112 L.Ed.2d 397 (1990). As we have said, a “minor” dispute that concerns the interpretation or application of collective bargaining agreements is subject to mandatory arbitration. Therefore, the RLA preempts %, state claim that involves a minor dispute because the complaint must be arbitrated according to the comprehensive railroad labor grievance procedures. Edelman v. West- em Airlines, 892 F.2d 839, 843 (9th Cir.1989). Yet state law actions' are not necessarily preempted even if they relate in some way to the collective bargaining agreement. A claim may survive preemption if based upon a state law that establishes rights independent of entitlements under a collective bargaining agreement. McCall v. Chesapeake & Ohio Ry., 844 F.2d 294, 300 (6th Cir.), cert. denied, 488 U.S. 879, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). The critical question is whether Croston’s state law handicap discrimination claim involves a minor dispute or whether it is sufficiently independent of the collective bargaining agreement. A state claim is a minor dispute if it involves facts “inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the RLA.” Edelman, 892 F.2d at 843 (quoting Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978)). This court will also examine the claim to determine whether it is “arguably governed” by the collective bargaining agreement or has a “not obviously insubstantial relationship” to the labor contract. Magnuson, 576" }, { "docid": "8718922", "title": "", "text": "issue in this suit is whether a major dispute or a minor dispute is involved. Plaintiffs insist the action of defendant in changing working conditions which had long been in existence, and creating new conditions of employment, created a major dispute; that it violated the status quo provisions of the Railway Labor Act and should have been enjoined by the District Court. Section 2 of the Railway Labor Act (45 U.S.C.A. § 151a) states as among the five general purposes of the Act: “(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievences or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” These two classes of disputes are clearly distinguished. In general, the difference is between what are regarded traditionally as major and minor disputes in the railway labor field. “Major disputes” encompass those differences arising out of proposals for new contracts or of changes in existing contractual or legal obligations and relations. They arise where there is no collective bargaining agreement or where it is sought to change the terms of one. In such a case, the issue cannot be resolved by reference to an existing agreement. “Minor disputes”, on the other hand, are grievances or other differences arising out of the application or interpretation of an existing collective bargaining agreement. The dispute relates ei ther to the meaning or proper application of a particular provision with reference to a specific situation. See Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 722, 65 S.Ct. 1282, 89 L.Ed. 1886. The Act marks out two distinct routes for settlement of the two classes of disputes. As to both, the Act requires the parties enter into negotiations as the first step towards settlement of the controversy (§ 2, Second, 45 U.S.C.A. § 152, Second). Beyond this initial stage the procedures diverge. Major disputes go first to mediation (§ 5, First, 45 U.S. C.A. § 155," }, { "docid": "2943584", "title": "", "text": "covered by a collective bargaining agreement or represented by a labor union. To express its agreement with United’s position, the International Association of Machinists and Aerospace Workers filed a brief as amicus cmiae. II Fairbairn contends that his dispute over the process through which his employment was terminated was a dispute “growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions,” 45 U.S.C. § 151a(5), and that therefore it must be arbitrated in accordance with the RLA as a “minor dispute,” even though he is not covered by a collective bargaining agreement nor represented by a union. Drawing on the broad purposes of the Act to “provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions,” id,., Fairbairn argues that the compulsory arbitration provision of 45 U.S.C. § 184 covers any “minor dispute” and that what constitutes a “minor dispute” is not limited to a dispute arising under a collective bargaining agreement, but includes also a dispute arising out of an individual employment contract. If Fairbairris position is correct, then the district court would not have had jurisdiction over this claim and its order compelling arbitration therefore would have been proper. See United Transp. Union v. S.C. Pub. Ry. Comm’n, 130 F.3d 627, 631-32 (4th Cir.1997). United argues that the entire RLA framework “presupposes, and depends on, the designation of a bargaining representative.” Once a representative has been properly designated, the RLA classifies labor disputes between the carrier and the union as the designated bargaining representative into “major disputes,” which relate to the formation or modification of collective bargaining agreements, and “minor disputes,” which relate to the interpretation or application of such agreements. As a more directly relevant argument, United asserts that the Supreme Court has “flatly foreclosed” any conclusion that the compulsory arbitration provisions of the RLA apply to individual employment agreements. See generally Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d" }, { "docid": "2085526", "title": "", "text": "basis for federal subject-matter jurisdiction over wrongful discharge claim against railroad). 2. Scope of the RLA’s Coverage Congress enacted the RLA in 1926 in order to promote stability in the railroad industry and to provide for prompt and efficient resolution of labor-management disputes arising out of railroad collective bargaining agreements. See Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978) (per curiam). Whereas the FELA is “a statutory mechanism designed [by Congress] to give railroad employees a federal right to sue [their employers],” Fox, 739 F.2d at 931, and therefore guarantees them access to the courts, Congress specifically intended in the RLA to keep railroad labor disputes out of the courts and instead requires the use of grievance procedures and arbitration: In enacting [the RLA], Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. The NRAB was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called “minor” disputes within the NRAB and out of the courts. Sheehan, 439 U.S. at 94, 99 S.Ct. at 402 (citations omitted and emphasis added). Thus, RLA section 3 First (i), 45 U.S.C. § 153 First (i), provides that all “disputes between [railroad] employees and ... carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” — so-called “minor disputes”— cannot be litigated in court, but must instead be referred to the NRAB for compulsory arbitration. 45 U.S.C. § 153 First (i); see Crasos, 786 F.2d at 972; Graf v. Elgin, Joliet and Eastern Railway Co., 790 F.2d 1341, 1348 (7th Cir.1986); Lancaster, 778 F.2d at 812. Moreover, Congress did not provide for automatic judicial review of the NRAB’s determinations: Andrews v. Louisville & Nashville Railroad Co.," }, { "docid": "17856857", "title": "", "text": "bargaining agreements, the Railway Labor Act, 45 U.S.C. § 151 et seq. and the Interstate Commerce Act, 49 U.S.C. § 10101 et seq. and therefore that this Court has federal question jurisdiction under 28 U.S.C. § 1337. Additionally diversity of citizenship, with an amount in controversy exceeding the jurisdictional amount is alleged therein with the defendants arguing aggregation of claims. The Court will first address the federal question argument as to whether federal law has preempted plaintiffs’ claims. In contrast to the National Labor Relations Act, 29 U.S.C. §§ 151-166 (1982), courts interpreting the Railway Labor Act have typically found much broader preemption than under the NLRA because of the different mechanisms established by the two acts. The NLRA sets out “unfair labor practices” to be adjudicated by the Board in administrative proceedings, leaving resolution of bargaining agreement disputes generally to arbitration. In contrast to the more limited scope of the NLRA, the RLA created mandatory arbitration “to provide for the prompt and orderly settlement of all disputes growing out of grievances, or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(5) (emphasis added). The breadth of the RLA procedures suggest that all grievances involving organized employees are preempted, Kent v. Fugere, 438 F.Supp. 560, 565 (D.Conn.1977) and the Supreme Court has implied as much. Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 323, 92 S.Ct. 1562, 1564-65, 32 L.Ed.2d 95 (1972). If a claim is founded on some incident of the employment relationship, it is immaterial, for purposes of coverage by the RLA, whether the claim is expressly covered by the collective bargain ing agreement, or is independent of that agreement. Majors v. U.S. Air., Inc., 525 F.Supp. 853 (D. Maryland, 1981); Elgin J. & E. Ry. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945). Unlike cases under the NLRA, the courts in RLA cases do not appear to go through a process of balancing state and federal interests. The cases, instead, rely upon strict statutory construction of the RLA’s broadly-worded" }, { "docid": "2497633", "title": "", "text": "the RLA’s coverage to the airline industry. 45 U.S.C. § 181. Congress specifically intended the RLA to keep airline labor disputes out of the courts. See Lewy, 799 F.2d at 1289. Consequently, the RLA provides for mandatory administrative grievance procedures as the exclusive remedy in claims arising from “minor disputes” under collective-bargaining agreements. See Andrews v. Louisville & N.R. Co., 406 U.S. 320, 322-23, 92 S.Ct. 1562, 1564, 32 L.Ed.2d 95 (1972). “Minor disputes” are the “grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions.” Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). We have also defined “minor disputes” as those which are “arguably” governed by the CBA or have a “not obviously insubstantial” relationship to the labor contract, Magnuson, 576 F.2d at 1369-70, “are ‘inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the RLA,’ ” Edelman v. Western Airlines, Inc., 892 F.2d 839, 843 (9th Cir.1989) (quoting Magnuson, 576 F.2d at 1369), or which involve the interpretation of a current collective-bargaining agreement. See International Association of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir.1985); Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 191 (9th Cir.1983). In resisting preemption, Melanson asks us to apply, by analogy, cases discussing preemption under § 301 of the Labor-Management Relations Act, 42 U.S.C. § 185. She cites Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) in support of her argument that state law remedies “independent” of the CBA are not preempted by § 301. Lingle held that claims are “independent” when “the state-law claim can be resolved without interpreting” the collective-bargaining agreement. Id. at 410, 108 S.Ct. at 1883. We have made clear, however, that the narrower test for § 301 preemption under Lingle is not necessarily determinative of preemption under the RLA, because “preemption under the RLA is broader than under § 301.” Grote v. Trans World Airlines, Inc., 905 F.2d 1307, 1310 (9th Cir.1990)." }, { "docid": "16044187", "title": "", "text": "a complaint in federal district court, claiming that American had violated section 204 of the RLA, 45 U.S.C. § 184, by refusing to convene the Board of Adjustment and seeking a preliminary injunction to force American to do so. American filed a motion to dismiss and for a stay of proceedings on Appellants’ motion for preliminary injunction. The district court granted the motion to dismiss for failure to state a claim, finding that the Agreement with regard to probationary pilots was not inconsistent with the RLA, and declined to issue the injunction. Whitaker and APA appeal. II. Discussion The Railway Labor Act, 45 U.S.C. § 151 et seq., originally enacted in 1926 to govern labor-employment relations in the rail industry, was designed to, among other things, “provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of collective bargaining agreements.” 45 U.S.C. § 151a (2001). Disputes of this kind generally are referred to as minor disputes. See e.g., Hawaiian Airlines v. Norris, 512 U.S. 246, 252-53, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (distinguishing between those disputes concerning “rates of pay, rules or working conditions,” deemed major, and those that “grow out of grievances, or out of the interpretation or application of agreements covering rates of pay, rules or working conditions,” denoted as minor). In 1936, Congress extended the RLA to the then-new airline industry. See 45 U.S.C. §§ 181-188 (2001). It adopted for air carriers all of the statutory provisions already in place for rail carriers, with the notable exception of 45 U.S.C. § 153, governing the settlement of minor disputes. See 45 U.S.C. § 181 (2001); 45 U.S.C. § 153 (2001). Instead, Congress enacted 45 U.S.C. § 184 to outline adjustment procedures for minor disputes in the airline industry. The primary difference between the schemes described in the two sections is that under 45 U.S.C. § 153, the National Railroad Adjustment Board (the “NRAB”) exists to settle minor disputes between rail workers and their employers, which alternatively can be submitted to an adjustment board that may be" }, { "docid": "15698159", "title": "", "text": "incidental application to conduct occurring in the course of a labor dispute, 430 U.S. at 300, 97 S.Ct. at 1063, and the state court action could be adjudicated in Farmer without resolution of the merits of the underlying labor disputes, 430 U.S. at 304, 97 S.Ct. at 1065, there was no real threat of interference with the regulatory scheme of the National Labor Relations Act. In contrast to the more limited scope of the N.L.R.A., the mandatory arbitration provisions of the Railway Labor Act were created “to provide for the prompt and orderly settlement of all disputes growing out of grievances, or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(5) (emphasis added). In Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir. 1978) cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1979), the plaintiff was discharged from his position as a train dispatcher after an investigation concluded that he was responsible for a fatal train crash. He brought an action against the railroad for intentional infliction of emotional distress, alleging that Burlington employees had abused the investigatory process and had presented false and misleading evidence at the hearing that led to his discharge. In deciding that the common law tort was preempted by the arbitration provisions of the Railway Labor Act, the Magnuson court noted that to hold otherwise would thwart the congressional purpose of providing a comprehensive federal scheme for the settlement of employer-employee disputes in the railroad industry without resort to the courts. 576 F.2d at 1369. All of the allegedly tortious acts of the defendants were arguably governed by the collective bargaining agreement or had a not insubstantial relationship to the labor contract. 576 F.2d at 1369-70. Consequently, the action was based on a “matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and the R.L.A.,” and the Farmer exception was held not to apply. 576 F.2d at 1369. The Magnuson analysis has been extended to hold actions for defamation preempted by the Railway" }, { "docid": "2943585", "title": "", "text": "to a dispute arising under a collective bargaining agreement, but includes also a dispute arising out of an individual employment contract. If Fairbairris position is correct, then the district court would not have had jurisdiction over this claim and its order compelling arbitration therefore would have been proper. See United Transp. Union v. S.C. Pub. Ry. Comm’n, 130 F.3d 627, 631-32 (4th Cir.1997). United argues that the entire RLA framework “presupposes, and depends on, the designation of a bargaining representative.” Once a representative has been properly designated, the RLA classifies labor disputes between the carrier and the union as the designated bargaining representative into “major disputes,” which relate to the formation or modification of collective bargaining agreements, and “minor disputes,” which relate to the interpretation or application of such agreements. As a more directly relevant argument, United asserts that the Supreme Court has “flatly foreclosed” any conclusion that the compulsory arbitration provisions of the RLA apply to individual employment agreements. See generally Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994); Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914 (1942). The RLA was enacted in 1926, during an era of protracted railway labor disputes that had adversely affected the national economy, to “provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions,” 45 U.S.C. § 151a(5), and to “avoid any interruption to commerce or to the operation of any carrier engaged therein,” id. § 151a(l). To achieve its purposes, the Act treats separately and differently two classes of labor disputes, which the courts have denominated “major disputes” and “minor disputes.” We have previously explained the distinction as follows: The RLA does not explicitly use the terms “major dispute” or “minor dispute.” Rather, these are terms adopted by the courts from the vocabulary of railroad management and labor as a shorthand method of describing two classes of controversies Congress had distinguished in the RLA.... “[Mjajor disputes” seek to" }, { "docid": "17317204", "title": "", "text": "mandatory arbitration provisions of the RLA. Hirras contends that her intentional infliction of emotional distress claim is not a “minor dispute” for the purposes of the RLA because it is grounded in rights and obligations that exist independent of the collective-bargaining agreement (“CBA”) that governed the terms of her employment. Generally, all disputes growing out of “grievances” or out of the interpretation or application of a CBA are preempted by the RLA’s mandatory arbitration provisions. See 45 U.S.C. § 151a. One of the goals of the RLA is to “provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” Id. Because such disputes concern an existing CBA, they “seldom produce, strikes” and are known as the “minor disputes of the railway labor world.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945), aff'd on reh’g, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946). Minor disputes are to be contrasted with “major disputes,” which “present the larger issues about which strikes ordinarily arise” because they “seek to create rather than to enforce contractual rights,” see id., and with those disputes that seek neither to create nor enforce the contractual rights created by a CBA. Under the RLA, only minor disputes “may be referred by petition of the parties or by either party to the appropriate division of the [National Railroad] Adjustment Board” (“NRAB”) for arbitration. Id. (quoting 45 U.S.C. § 151a). The language of § 151a thus limits the RLA’s preemption of claims, including state-law claims, to those involving the interpretation or application of a CBA. Hawaiian Airlines, — U.S.-, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). While § 151a governs “disputes growing out of grievances or out of the interpretation or application [of CBA’s],” 45 U.S.C. § 151a (emphasis added), the Supreme Court held in Hawaiian Airlines that “the most natural reading of the term ‘grievances’ in this context is as a synonym for disputes involving" }, { "docid": "2374481", "title": "", "text": "basic issue in an article 8307c claim, therefore, is whether retaliatory discrimination has occurred. B Congress enacted the RLA to promote stability in the relationship between labor and management in the railroad industry and “to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a. In Title II of the Act, Congress made the RLA applicable to the airline industry. 45 U.S.C. §§ 181-188. The RLA dispute resolution provisions that apply to the airline industry require that “disputes between an employee ... and a carrier ... growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” must be arbitrated. 45 U.S.C. § 184. These controversies have been termed “minor disputes”. See Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 321-22, 92 S.Ct. 1562, 1563-64, 32 L.Ed.2d 95 (1972); Morales v. Southern Pacific Transport Co., 894 F.2d 743, 745 (5th Cir.1990). The RLA’s arbitral remedy is mandatory and exclusive for minor disputes. Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n, 491 U.S. 299, 303-04, 109 S.Ct. 2477, 2480-81, 105 L.Ed.2d 250 (1989) (“Conrail ”). State law claims that involve these disputes are pre-empted. Id.; Davies v. American Airlines, Inc., 971 F.2d 463, 465 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2439, 124 L.Ed.2d 657 (1993). The distinguishing characteristic of a minor dispute is that it “may be conclusively resolved by interpreting the existing [collective bargaining] agreement.” Conrail, 491 U.S. at 305, 109 S.Ct. at 2481. We have explained that a state law claim can involve a minor dispute and hence be pre-empted by the RLA if the state law claim is “ ‘inextricably intertwined’ with the terms and conditions of employment under the collective bargaining agreement.” Morales, 894 F.2d at 745. Our definition of a minor dispute in Morales is consistent with the definition of a minor dispute articulated in Conrail. In Morales, we held that the state law claims asserted" }, { "docid": "18787265", "title": "", "text": "putes between employees and Carriers arising “out of the interpretation or application of the collective bargaining agreement ... [are] commonly referred to as ‘minor disputes.’ ” Kaschak v. Consolidated Rail Corp., 707 F.2d 902, 904 (6th Cir.1983). This court classifies a dispute as minor “if the disputed action of one of the parties can ‘arguably’ be justified by the existing agreement or, in somewhat different statement, if the contention that the labor contract sanctions the disputed action is not ‘obviously insubstantial’ ...” Local 1477 United Transportation Union v. Baker, 482 F.2d 228, 230 (6th Cir.1973); See also Brotherhood Railway Carmen of the United States & Canada v. Norfolk & Western Railway Co., 745 F.2d 370, 375 (6th Cir.1984). When a minor dispute arises, the RLA provides initially for settlement through the contractually agreed upon grievance procedures. 45 U.S.C. § 152 First. Failure to resolve minor disputes through contractual grievance procedures results in the parties submitting to compulsory and binding arbitration by the NRAB or a privately established arbitration panel. 45 U.S.C. § 153 First (i). The Supreme Court and this Circuit have repeatedly held the NRAB has primary and exclusive jurisdiction over minor disputes. Sheehan, 439 U.S. at 93-94, 99 S.Ct. at 402-03; Baker, 482 F.2d at 230; Kaschak, 707 F.2d at 905. Employees’ attempts to evade NRAB exclusive jurisdiction over minor disputes by recharacterizing their claims into state causes of action are scrutinized by the following test: If the “action is based on a matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the R.L.A.,” exclusive jurisdiction of the NRAB preempts the action. Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.1978), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). Pursuant to this standard, other Circuits dismiss for lack of subject matter jurisdiction state court claims of reckless or intentional infliction of emotional distress arising directly out of a labor dispute. See Beers v. Southern Pacific Transportation Co., 703 F.2d 425 (9th Cir.1983); Choate v. Louisville & Nashville Railroad Co., 715 F.2d 369 (7th" }, { "docid": "21543107", "title": "", "text": "Thus, the district court’s reliance in McCarthy upon the September 1987 Consent Order and August 1988 Memorandum and Order was improper, even though such orders had not been expressly vacated. ISSUE II: DID THE DISTRICT COURT HAVE JURISDICTION UNDER THE RAILWAY LABOR ACT? “Minor” v. “Major” Disputes under the RLA The distinction between “major” and “minor” disputes is central to an understanding of the dispute resolution procedures of the RLA. Congress enacted the RLA, 45 U.S.C. § 151 et seq., in order to prevent disruptions of interstate commerce caused by labor disputes. 45 U.S.C. § 151a. The Act facilitates that legislative purpose by imposing mandatory procedures for resolving disputes between railroads and their employees involving collective bargaining (“major disputes”) or grievances (“minor disputes”). In Elgin, Joliet & Eastern Railway Company v. Burley, 325 U.S. 711, 722-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886, 1893-95 (1945), the Supreme Court defined these two types of disputes. “Major disputes” encompassed by Section 2(4), 45 U.S.C. § 151a(4), [RJelate to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. 325 U.S. at 723, 65 S.Ct. at 1289, 89 L.Ed. at 1894. In contrast, “minor disputes,” included under section 2(5), 45 U.S.C. § 151a(5), [Contemplate the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or an omitted case. 325 U.S. at 723, 65 S.Ct. at 1289, 89 L.Ed. at 1894; see also, Consolidated Rail Corp. v. RLEA, (Conrail v. RLEA) 491 U.S. -, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989); Carbone v. Meserve, 645 F.2d 96, 98 (1st Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156 (1981); Maine Central R.R. v." }, { "docid": "3956052", "title": "", "text": "Court, on an appeal from a Summary Judgment Motion, must review the record in a light most favorable to the opponent of the motion in order to determine whether there is a genuine issue of material fact. If there is no issue of material fact, the appellate court must then determine whether the substantive law was correctly applied. 6 Moore’s Federal Practice, 156.27[1], p. 56-1555 (1982); Pacific Fruit Express Co. v. Akron, Canton & Youngstown Railroad Co., 524 F.2d 1025, 1029 (9th Cir.1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1107, 47 L.Ed.2d 315 (1976). See also Fristoe v. Reynolds Metals Co., supra. In this instance, there is no question of material fact as to the occurrences of the acts complained of. Rather, the issue is what substantive law is to be applied. This Court has previously held that: [t]he alleged misfeasance of the railroad employees is thus ‘arguably’ governed by the collective bargaining agreement or has a ‘not obviously insubstantial’ relationship to the labor contract. Under these circumstances, the controversy is a minor dispute within the exclusive province of the grievance mechanisms established by the RLA. Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369-70 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). As this Court further said in Magnuson: If the pleading of emotional injury permitted aggrieved employees to avoid the impact of the R.L.A., the congressional purpose of providing a comprehensive federal scheme for the settlement of employer-employee disputes in the railroad industry, without resort to the courts, would be thwarted. Id. at 1369. The Supreme Court has held that federal law preempts and protects activities prohibited or “arguably protected” by the National Labor Relations Act. San Diego Building Trades Council, et al. v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). (For an analogy, and to determine national labor policy, this Court can refer to the NLRA for assistance in construing the RLA. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383-84, 89 S.Ct. 1109, 1117-1118, 22 L.Ed.2d 344 (1969)). Beers contends," }, { "docid": "10909284", "title": "", "text": "arising under section 502(a) of the Employee Retirement Income Security Act (ERISA), which provides for exclusive federal resolution of employee benefit disputes involving a covered plan. The court stated that the remedies of the federal “scheme would be completely undermined if ERISA plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.” 107 S.Ct. at 1547 (citing Franchise Tax Board, 463 U.S. at 25-26, 103 S.Ct. at 2854-55)). Deford maintains that the complete preemption doctrine applies only to section 502(a) of ERISA and section 301 of LMRA and that the district court erred in finding that complete preemption applies to the RLA as well. We recognize the Supreme Court has expressed reluctance to find this extraordinary preemptive power. Id. We are satisfied, however, that the reasons underlying Caterpillar, Avco, and Metropolitan do not limit the doctrine to only the two statutes recognized by the Supreme Court. We believe that the fundamental question is whether the RLA or the ICA so pervasively occupy the field of railroad governance that a competing state law claim necessarily invokes federal law. III. In analyzing the statutory scheme of the RLA, we conclude that it “pervasively occupies” the field of railroad labor disputes, completely preempting state law claims arising out of collective bargaining agreements. The Railway Labor Act was enacted by Congress to promote stability in labor-management relations in the railroad industry. Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). To effectuate this pur pose the RLA provides for mandatory administrative grievance procedures and remedies for “minor disputes” arising from the employment relationship between a railroad employee and the carrier. A minor dispute is one involving the interpretation or application of an existing collective bargaining agreement. The RLA grants to the NRAB exclusive power to resolve all minor “disputes between an employee or group of employees and a carrier * * * growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * *.” 45 U.S.C." }, { "docid": "2497632", "title": "", "text": "company ha[d] violated the Collective Bargaining Agreement by imposing discipline, up to and including termination, on several of [the] former Pan Am flight attendants, through an unreasonable and arbitrary application of its weight program.... Decision of the System Board of Adjustment, Application of United Weight Program to Former Pan American Flight Attendants 1 (Jan. 16, 1988). The issue in this appeal, however, is different. Rather than alleging a misapplication of a work rule, as she did before the Board, Melanson argues here that United fraudulently induced her to transfer by misrepresenting that the weight requirements would be waived in her case. This issue was not fully litigated before the Board. Again, the real question is whether Melanson’s claims are preempted by the RLA. D. Preemption Congress enacted the RLA to promote stability in labor-management relations by providing a framework for resolving labor disputes in the railroad industry. See Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987). Title II of the RLA extends the RLA’s coverage to the airline industry. 45 U.S.C. § 181. Congress specifically intended the RLA to keep airline labor disputes out of the courts. See Lewy, 799 F.2d at 1289. Consequently, the RLA provides for mandatory administrative grievance procedures as the exclusive remedy in claims arising from “minor disputes” under collective-bargaining agreements. See Andrews v. Louisville & N.R. Co., 406 U.S. 320, 322-23, 92 S.Ct. 1562, 1564, 32 L.Ed.2d 95 (1972). “Minor disputes” are the “grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions.” Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). We have also defined “minor disputes” as those which are “arguably” governed by the CBA or have a “not obviously insubstantial” relationship to the labor contract, Magnuson, 576 F.2d at 1369-70, “are ‘inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the RLA,’ ” Edelman v. Western Airlines, Inc., 892 F.2d 839, 843 (9th Cir.1989) (quoting Magnuson, 576 F.2d at 1369)," }, { "docid": "8718921", "title": "", "text": "been a home terminal for them. In addition to the great inconvenience of finding new homes in Indianapolis and the loss of “constructive allowances” they claim their seniority rights would also be affected. One of the many regulations in effect for many years between the union and defendant reads: “5-P-l. Established terminals will not be changed nor new terminals created except by agreement between the interested local chairman and the Superintendent.” No attempt was made by plaintiffs to submit the present dispute under existing grievance procedures although the District Court found they had a right to do so. On November 2, 1959, prior to the present dispute, the defendant served on all the organizations representing its employees, a notice under section 6 of the Railway Labor Act, 45 U.S.C.A. § 156, proposing a general revision of the collective bargaining agreements covering the defendant’s employees. This notice was served as part of a national movement by substantially all the Class I carriers in the United States. These proposals are currently before a presidential commission. The big issue in this suit is whether a major dispute or a minor dispute is involved. Plaintiffs insist the action of defendant in changing working conditions which had long been in existence, and creating new conditions of employment, created a major dispute; that it violated the status quo provisions of the Railway Labor Act and should have been enjoined by the District Court. Section 2 of the Railway Labor Act (45 U.S.C.A. § 151a) states as among the five general purposes of the Act: “(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievences or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” These two classes of disputes are clearly distinguished. In general, the difference is between what are regarded traditionally as major and minor disputes in the railway labor field. “Major disputes” encompass those differences arising out of proposals for new" } ]

[ { "docid": "22106857", "title": "", "text": "or statutory right by a state actor. See Benn v. Universal Health Sys., 371 F.3d 165, 169-70 (3d Cir.2004). Although there is no “simple line” between state and private actors, Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), we have explained that “[t]he principal question at stake is whether there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Leshko, 423 F.3d at 339 (internal quotation marks and citation omitted). To answer that question, we have outlined three broad tests generated by Supreme Court jurisprudence to determine whether state action exists: (1) “whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state”; (2) “whether the private party has acted with the help of or in concert with state officials”; and (3) whether “the [s]tate has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Mark, 51 F.3d at 1142 (other alterations, internal quotation marks and citations omitted). Under any test, “[t]he inquiry is fact-specific.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995); see also Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231, 234 (3d Cir.2002) (en banc) (noting that “the facts are crucial”). Kach relies on only the first and third tests. We disagree that Hose qualifies as a state actor under the first test. In Rendell-Baker v. Kohn, several private school employees asserted § 1983 claims against their employer, a private school, as well as the school’s director, alleging First Amendment violations after they had been fired. The majority of the school’s operating budget was funded by the state and the school educated special-needs students referred to it by public schools. The Supreme Court held that the school and its director did not act under color of state law when they fired the plaintiffs because “[t]he school ... is not fundamentally different from many" } ]

[ { "docid": "22192318", "title": "", "text": "The second requirement of the Lugar analysis — that the private party could in all fairness be regarded as a federal actor — may be met under one of three interrelated theories of government action: (i) the “public function” test, (ii) the “close nexus” test and (iii) the “symbiotic relationship” test. In addition, Black Smokers discern in case law a fourth, more synthetic “totality of the circumstances” test, the existence of which is doubtful, as we explain infra. In order to determine which test should be applied to a given set of facts, courts must investigate carefully the circumstances of each case. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Community Med. Center v. Emergency Med. Services, 712 F.2d 878, 880 (3d. Cir.1983) (citations omitted). Regardless of what test is ultimately applied, the object of the inquiry is to determine whether a private entity has exercised powers traditionally reserved exclusively to the government, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), or whether “the defendant exercised power possessed by virtue of [federal] law and made possible only because the wrongdoer is clothed in the authority of [federal] law.” Groman v. Township of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir.1995) (citations omitted). The gravamen of the “public function” test is whether the government is effectively using the private entity in question to avoid a constitutional obligation or to engage in activities reserved to the government. See Goussis v. Kimball, 813 F.Supp. 352, 357 (E.D.Pa.1993). We cannot agree with Black Smokers’ assertion that defendants’ actions satisfy the “public function” test. The “public function” test is the most rigorous of the inquiries. In Blum v. Yaretsky, 457 U.S. at 1004-05, 102 S.Ct. 2777, the Supreme Court stressed that the traditionally public function must be the “exclusive prerogative of the [government],” id. (citation omitted). Courts generally emphasize this “exclusivity” requirement and thus seldom find that high standard to have been satisfied. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir.1995). Even in cases" }, { "docid": "18484315", "title": "", "text": "of Manalapan, 47 F.3d 628, 640 (3d Cir.1995). In Groman, the court held that a first aid squad was not a state actor under the exclusive government function test where the only evidence proffered by the plaintiff was the squad’s public funding and service to the public. See also Black by Black v. Indiana Area School Dish, 985 F.2d 707, 710-11 (3d Cir.1993) (school bus driver and officer of bus company did not perform exclusive government function even though paid by the state and performing a service for the public). This Court therefore has some doubts as to whether a private hypnotist hired by the police on an ad-hoc basis can properly be characterized as performing any exclusive public function. We recognize, however, that Plaintiff has asserted an additional factor— an alleged conspiracy among Vorsheck and the other Defendants to violate Plaintiff’s rights by, among other-things, bringing false criminal charges based on Adams’s false recollection of the fatal house fire. Plaintiff alleges that Vorsheck acted at the direction and with the assistance of the detectives, who were unquestionably themselves state actors. Assuming the truth of these allegations, a logical inference would be that Vorsheck did not exercise independent professional judgment in hypnotizing Adams but, rather, tainted the hypnotic process and Adams’s recollection pursuant to the officers’ direction. Whether such facts, if proved, would sufficiently convert Vorsheck into an agent of the police need not be decided now because, in any event, these allegations are sufficient to state a claim of state action under the joint participation/conspiracy theory. Under this scenario, “[s]tate action may be found if the private party has acted with the help of or in concert with state officials.” McKeesport Hospital, 24 F.3d at 524. Vorsheck cites Ersek v. Township of Springfield, Delaware County, 822 F.Supp. 218, 223 (E.D.Pa.1993), and Safeguard Mut. Ins. Co. v. Miller, 411 F.Supp. 299, 304 (E.D.Pa.1979), for the proposition that, in order to plead conspiracy under § 1983, a plaintiff must allege specific facts suggesting that there was a mutual understanding among the conspirators to take actions directed toward an unconstitutional end. Assuming" }, { "docid": "3714167", "title": "", "text": "Co., 808 F.2d 271 (3d Cir.1986); In re Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983). The Court of Appeals will not interfere with the discretion of the district court by overturning a discovery order absent a demonstration that the court’s action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible. In re Fine Paper Antitrust Litigation, 685 F.2d at 818. Hewlett argued in support of his motions for judgment, and now argues here, that he was severely prejudiced by the City’s failure to comply fully with the discovery order of February 20, 1987. He argues that the plaintiff’s noncompliance precluded him from discovering whether the City had a policy of condoning violations of civil rights by arresting officers or had adopted or ratified this particular violation. The plaintiff has not met his burden to show that he was deprived of critical evidence. The plaintiff does not argue that he was ever able to make even a colorable prima facie showing to support his asserted right to discovery on his claims against the City. See Mid-South Grizzlies v. National Football League, 720 F.2d 772, 780 (3d Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984). Nevertheless the district court granted further discovery in support of the plaintiff’s motion for sanctions, and the plaintiff deposed Officers Kelly and Gibson. Despite the depositions the plaintiff admits that he is still unable to prove precisely how he was prejudiced by the City’s partial failure to respond. In light of the conjectural nature of the plaintiff’s contentions as to the possibility of establishing these claims, we find little reason to suppose that the plaintiff’s failure to prove his case against the City was caused by the insufficiency of the City’s response to discovery requests. An additional consideration is the fact that the district court found neither willfulness nor bad faith in the City’s partial failure to comply with the discovery order. The district court," }, { "docid": "7978442", "title": "", "text": "any set of facts that could be proved,” Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990); see also H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). However, we are not required to accept the plaintiffs alleged or implied legal conclusions. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). III. State Action Analysis Dr. Klavan attempts to sue the defendants directly under the Fourteenth Amendment. See Compl. at ¶ 13. His claim is that he has a constitutionally protected liberty interest, under the Fourteenth Amendment’s due process clause, in refusing unwanted medical treatment. The Fourteenth Amendment, however, offers no shield against private conduct. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 849, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). For the Fourteenth Amendment to apply, “state action” is required. Liability will attach only if it can be said that the state is responsible for the specific conduct that Dr. Klavan complains about. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141-42 (3d Cir.1995). The Supreme Court has not developed one unitary test to determine whether there has been state action. It has instead employed at least three discrete tests. These are the “traditional exclusive governmental function” test, the “symbiotic relationship” test, and the “close nexus” test. Which test we apply in any given case depends on the particular facts and circumstances. The lines that separate these tests are far from bright, and our Court of Appeals has noted that we are not foreclosed from employing various approaches as may be warranted under the facts of the case before us. \"Whichever approach we use, however, the heart of the inquiry is “to discern if the defendant ‘exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” ’ ” Groman v. Township of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir.1995) (quoting West v. Atkins, 487 U.S. 42," }, { "docid": "2845346", "title": "", "text": "Court precedent makes clear that “the facts are crucial.” Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231, 233-34 (3d Cir.2002) (en banc). The approach used to conduct this inquiry should “be tailored to the facts of the case before it.” Croman v. Twp. of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir.1995) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Geisinger’s motion to dismiss Borrell’s § 1983 claim for lack of state action will be denied. Here, Borrell alleges that Geisinger partnered or entered into a joint venture with Bloomsburg to provide a Nurse Anesthesia Program with accompanying certifications and/or degrees. (Am. Compl, ¶¶4, 9, 85.) Moreover, Borrell was informed of her dismissal from the Nurse Anesthesia Program by a joint correspondence from Richer and Ficca. (Am. Compl., Ex. B.) Consistent with these allegations and considering the Amended Complaint in its entirety, Borrell pleads sufficient facts that Geisinger acted under color of state law. While Geisinger may ultimately prove to be correct that it was not a state actor for purposes of § 1983 in this case, based on the well-pleaded allegations, it would be premature to resolve the state actor question at this point in the proceedings. See, e.g., Stacey v. City of Hermitage, 178 Fed.Appx. 94, 101 (3d Cir.2006) (“Absent any evidence of the relationship between Sereday and the City, however, lack of state action does not provide a basis for dismissal. This argument is more appropriately raised in a motion for summary judgment.”). 2. Due Process In Count I of the Amended Complaint, Borrell asserts the deprivation of liberty and property rights without due process of law. Specifically, Borrell claims that she had a property interest in her continued participation in the Nurse Anesthesia Program, and that she was deprived of her right when she was expelled from the program. Additionally, Borrell argues that she was deprived a cognizable liberty interest. The Fourteenth Amendment to the United States Constitution provides that a state may not “deprive any person of life, liberty, or property, without due process" }, { "docid": "22876356", "title": "", "text": "precedent when there is sufficient evidence that the highest state court would be willing to entertain a change in its common law’, it ‘should proceed with great caution when the effect of its ruling would be to broaden the law beyond the point where any other court has yet ventured.’ ” Oliver v. Raymark Industries, Inc., 799 F.2d 95, 98 (3d Cir.1986) (quoting W.A. Wright, Inc. v. KDI Sylvan Pools, Inc., 746 F.2d 215, 218 (3d Cir.1984)). VI. Appellants contend that the district court improperly granted summary judgment without ruling on their motion to permit additional discovery. Because appellants complied with the requirements of Rule 56(f), F.R.Civ.P., this issue has been properly preserved for appeal. Mid-South Grizzlies v. National Football League, 720 F.2d 772, 780 n. 4 (3d Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984). The conduct of discovery is a matter for the discretion of the district court and its decisions will be disturbed only upon a showing of an abuse of this discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir.1983); Montecatini Edison S.p.A. v. E.I. du Pont de Nemours & Co., 434 F.2d 70, 72 (3d Cir.1970). Appellants must demonstrate that the district court’s action “made it impossible to obtain crucial evidence....” In re Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983) (citations omitted). On appeal, appellants have failed to persuade us that the district court’s decision not to allow additional production of documents and answers, to interrogatories deprived them of crucial evidence, or otherwise constituted a “ ‘gross abuse of discretion resulting in fundamental unfairness ....’” Marroquin-Manriquez, 699 F.2d at 134 (citations omitted). Appellants have not explained how additional discovery would have cured the fundamental shortcomings of their claims: the absence of evidence of defendants’ outrageous and reckless conduct or the lack of proof of appellants’ observation of sudden, traumatic injury to their husband and fathers. Consequently, we find no abuse of discretion. VII. For the reasons stated above, we will affirm the judgments of" }, { "docid": "19775791", "title": "", "text": "provide their social security number to their employer. See Compl. ¶ 46. Thus, Plaintiffs claim for retaliation fails as a matter of law. H. State Law Claims Including Breach of Contract In light of the fact that the court has dismissed all of Plaintiffs federal claims, the court will exercise its discretion to dismiss without prejudice all of Plaintiffs state claims, including breach of contract. See 28 U.S.C. § 1367(c) (stating that a federal district court may decline to exercise supplemental jurisdiction over state law claims when the district court has dismissed all claims over which it has original jurisdiction). An appropriate Order follows. ORDER AND NOW, this 25th day of April, 2006, upon consideration of the Defendants’ Motion to Dismiss Plaintiffs Complaints and the Response thereto, it is hereby ORDERED as follows: I. Plaintiffs causes of action based on federal law are dismissed with prejudice. 2. Plaintiffs causes of action based on state law are dismissed without prejudice. . \"Supreme Court jurisprudence outlines several approaches or discrete tests for detecting the presence of action under color of state law, including the exclusive government function approach, the joint participation or symbiotic relationship approach, and the nexus approach.” (internal citations omitted). Groman v. Township of Manalapan, 47 F.3d 628, 639 (3d Cir.1995). Here, none of these tests apply. . The court notes that if the federal government does not cause an employer to obtain an employees social security number then any alleged deprivation of rights was not caused the federal government, but rather the whims of a private company. Such whims would not qualify as federal action. . Plaintiff refers to Title VII on several occasions in both his Complaints and his Response to Defendants’ Motion to Dismiss." }, { "docid": "5398246", "title": "", "text": "party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has done so, however, the non-moving party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e). Rather, the non-movant must then “make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file.” Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact. To defeat “a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor.” Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.1995). III. DISCUSSION A. Plaintiffs Federal Claims. To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that a person acting under color of state law deprived him of a right secured by the Constitution or the laws of the United States. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.1995). The essence of plaintiffs poorly articulated § 1983 claim appears to be that by confronting plaintiff with the allegations of the female correction officer and asking for his resignation without offering to hold a hearing, the County defendants constructively discharged him in violation of his Fourteenth Amendment due process property interest. See Pl.’s Am. Compl. at ¶ 10; see also Pl.’s Resp. to County Defs.’ Mot, for Summ. J. at 1-3. In addition, plaintiff appears to be arguing that his due process liberty interest was also violated by statements made to the press and others by the County defendants concerning his resignation and the accusations of the female correction officer that plaintiff had sexually harassed her. See PL’s Dep." }, { "docid": "2845345", "title": "", "text": "Amendment. Leshko v. Servís, 423 F.3d 337, 339 (3d Cir.2005) While there is no simple line between state and private actors, the Third Circuit, in considering Supreme Court precedent, has articulated “three broad tests” to determine if a private defendant is a state actor: (1) whether the defendant exercised powers that are “traditionally the exclusive prerogative of the state;” (2) whether the defendant acted “with the help of or in concert with state officials;” or (3) whether the “state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity[.]” Kach v. Hose, 589 F.3d 626, 646 (3d Cir.2009) (citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir.1995)). The principal issue is “ ‘whether there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.’ ” Id. (quoting Leshko, 423 F.3d at 339). The inquiry is “fact-specific,” id., as Supreme Court precedent makes clear that “the facts are crucial.” Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231, 233-34 (3d Cir.2002) (en banc). The approach used to conduct this inquiry should “be tailored to the facts of the case before it.” Croman v. Twp. of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir.1995) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Geisinger’s motion to dismiss Borrell’s § 1983 claim for lack of state action will be denied. Here, Borrell alleges that Geisinger partnered or entered into a joint venture with Bloomsburg to provide a Nurse Anesthesia Program with accompanying certifications and/or degrees. (Am. Compl, ¶¶4, 9, 85.) Moreover, Borrell was informed of her dismissal from the Nurse Anesthesia Program by a joint correspondence from Richer and Ficca. (Am. Compl., Ex. B.) Consistent with these allegations and considering the Amended Complaint in its entirety, Borrell pleads sufficient facts that Geisinger acted under color of state law. While Geisinger may ultimately prove to be correct that it" }, { "docid": "14257310", "title": "", "text": "and entities may be deemed state actors, however, if they have “acted together with or [have] obtained significant aid from state officials, or [if their] conduct is otherwise chargeable to the state.” Lugar, 457 U.S. at 937, 102 S.Ct. 2744. In Gallagher v. “Neil Young Freedom Concert,” 49 F.3d 1442 (10th Cir.1995), we issued a comprehensive opinion that discussed in detail the tenets of what constitutes action under “color of law” by private parties. We discussed therein four tests delineated by the Court to determine whether private parties should be deemed state actors when conducting a state action analysis: (1) the public function test, (2) the nexus test, (3) the symbiotic relationship test and (4) the joint action test. The Court has taken a flexible approach to the state action doctrine, applying a variety of tests to the facts of each case. In some instances, the Court has considered “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” The Court has also inquired whether the state has “so far insinuated itself into a position of interdependence” with the private party that there is a “symbiotic relationship” between them. In addition, the Court has held that if a private party is a “willful participant in joint activity with the State or its agents,” then state action is present. Finally, the Court has ruled that a private entity that exercises “powers traditionally exclusively reserved to the State” is engaged in state action. Under each of these four tests, “the conduct allegedly causing the deprivation of a federal right” must be “fairly attributable to the State.” In order to establish state action, a plaintiff must demonstrate that the alleged deprivation of constitutional rights was “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” ... In order to resolve the state action question before" }, { "docid": "14162506", "title": "", "text": "nature of evidence at the summary judgment stage: It is settled law that a threshold requirement of every antitrust conspiracy claim, whether brought under section 1 or section 2 of the Sherman Act, is “an agreement to restrain trade. To prove that such an agreement exists between two or more persons, a plaintiff must demonstrate ‘a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.’ ” ... “We recognize that it is only in rare cases that a plaintiff can establish the existence of a conspiracy by showing an explicit agreement; most conspiracies are inferred from the behavior of the alleged conspirators ... and from other circumstantial evidence (economic and otherwise), such as barriers to entry and other market conditions.” Id. at 569 (quoting Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573 (11th Cir.1991)). The court then reiterated the instructions of Matsushita described above. While rejecting a reading of Helicopter Support Systems, Inc. v. Hughes Helicopter, Inc., 818 F.2d 1530, 1534 n. 4 (11th Cir.1987), that would require a plaintiff to “exclud[e] the possibility of independent action on the part of the defendants,” the court reaffirmed Matsushita’s requirement that the plaintiff must show “that an inference of conspiracy is reasonable.” Id. at 571 n. 35 (citations omitted). See also In re Baby Food Antitrust Litig., 166 F.3d 112, 124 (3d Cir.1999) (“in drawing favorable inferences from underlying facts, a court must remember that often a fine line separates unlawful concerted action from legitimate business practices”) (citation omitted). Thus, “conduct which is as equally consistent with permissible competition as it is with an illegal conspiracy does not, without more, support even an inference of conspiracy.” Harcros, 158 F.3d at 571 n. 35 (citation omitted). Applying these standards to the economic circumstances presented in Harcros, the court defined an oligopolistic market as “a market in which the dominant participants ... engag[e] in interdependent or parallel behavior and [have] the capacity effectively , to determine price and total output of goods or services.” Id. at 570 n. 32 (citation omitted). “Conscious parallelism”" }, { "docid": "22876357", "title": "", "text": "F.2d 129, 134 (3d Cir.1983); Montecatini Edison S.p.A. v. E.I. du Pont de Nemours & Co., 434 F.2d 70, 72 (3d Cir.1970). Appellants must demonstrate that the district court’s action “made it impossible to obtain crucial evidence....” In re Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983) (citations omitted). On appeal, appellants have failed to persuade us that the district court’s decision not to allow additional production of documents and answers, to interrogatories deprived them of crucial evidence, or otherwise constituted a “ ‘gross abuse of discretion resulting in fundamental unfairness ....’” Marroquin-Manriquez, 699 F.2d at 134 (citations omitted). Appellants have not explained how additional discovery would have cured the fundamental shortcomings of their claims: the absence of evidence of defendants’ outrageous and reckless conduct or the lack of proof of appellants’ observation of sudden, traumatic injury to their husband and fathers. Consequently, we find no abuse of discretion. VII. For the reasons stated above, we will affirm the judgments of the district court in all respects. . In reviewing orders dismissing an action pursuant to Rule 12(b), [t]he standard by which the orders must be tested is whether taking the allegations of the complaint as true, ... and viewing them liberally giving plaintiffs the benefit of all inferences which fairly may be drawn therefrom, ... \"it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Wisniewski I, 759 F.2d at 273 (quoting Bogosian v. Gulf Oil Corp., 561 F.2d 434, 444 (3d Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978)). . Writing in dissent, Justice Brennan agreed with the majority’s articulation of the appropriate legal standard, and further explained the burden of the moving party: [A] conclusory assertion that the nonmoving party has no evidence is insufficient____ Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of" }, { "docid": "7978443", "title": "", "text": "102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141-42 (3d Cir.1995). The Supreme Court has not developed one unitary test to determine whether there has been state action. It has instead employed at least three discrete tests. These are the “traditional exclusive governmental function” test, the “symbiotic relationship” test, and the “close nexus” test. Which test we apply in any given case depends on the particular facts and circumstances. The lines that separate these tests are far from bright, and our Court of Appeals has noted that we are not foreclosed from employing various approaches as may be warranted under the facts of the case before us. \"Whichever approach we use, however, the heart of the inquiry is “to discern if the defendant ‘exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” ’ ” Groman v. Township of Manalapan, 47 F.3d 628, 639 n. 17 (3d Cir.1995) (quoting West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941))). Dr. Klavan concedes that the defendants are not state actors under the “traditional exclusive governmental function” test. See Pl.’s Br. at 17. Rather, he argues that they are state actors under the “symbiotic relationship” and “close nexus” tests. We will therefore examine both of these tests. A. The “Symbiotic Relationship” Test The “symbiotic relationship” test examines the relationship between the state and the alleged wrongdoer to discern whether there is a great degree of interdependence between the two. Under this test, a private party will be deemed a state actor if “the State has so far insinuated itself into a position of interdependence [with the private party] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.” Burton v. Wilmington Parking Auth., 365 U.S. 715," }, { "docid": "22159167", "title": "", "text": "may not be reviewed on appeal as it was entered by a magistrate and Turner took no appeal to the district court. See United Steelworkers of Amer., AFL-CIO v. New Jersey Zinc, 828 F.2d 1001, 1004-08 (3d Cir.1987); Siers v. Morrash, 700 F.2d 113, 116 (3d Cir.1983). The second order complained of was also rendered by a magistrate. However, it was appealed to the district court, which concluded that the magistrate’s determination that the discovery period should not be reopened was not clearly erroneous or contrary to law. Putting aside the question of whether we may review Turner's argument that summary judgment was inappropriate because of this denial of discovery when Turner failed to file an affidavit under Rule 56(f) with the district court, see Dowling v. City of Philadelphia, 855 F.2d 136 (3d Cir.1988) (ordinarily the filing of an affidavit is necessary to preserve this argument for appeal), the record before us clearly demonstrates that no abuse of discretion has been committed. “[Wje will not upset a district court’s conduct of discovery procedures absent a demonstration that the court’s action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible.” In re Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983) (quotation omitted). Here, Turner has only shown that the counsel he retained after the discovery deadline expired desires to discover documents that could have been discovered by his prior counsel during the nearly year long period in which discovery in this case was open. This does not come close to a showing requisite to persuade us that an abuse of discretion was committed. Rule 16 \"scheduling orders are at the heart of case management,” and if they can be flouted every time counsel determines she made a tactical error in limiting discovery “their utility will be severely impaired.” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir.1986). . The record is somewhat opaque as to whether Turner is contending that his demotion," }, { "docid": "16091415", "title": "", "text": "of rights under section 1983 is required to demonstrate: (1) a person deprived him of a federal right; and (2) the person acted under color of state law. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.1995) (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980)). Defendants argue that plaintiffs have not demonstrated that the defendants were acting under color of state law when they allegedly violated plaintiffs’ civil rights. In Mark, the Third Circuit Court of Appeals reiterated the United States Supreme Court’s pronouncement that in cases brought under section 1983, “under color of’ state law is treated as equivalent to the “state action” requirement of the Fourteenth Amendment. Mark, 51 F.3d at 1141 (citing United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966)). The court of appeals further explained that there are three discrete tests to determine whether there has been state action. The first test determines whether the private entity exercises powers that are traditionally the exclusive prerogative of the state. Mark, 51 F.3d at 1142. The second test addresses whether the private entity has acted in concert or with the help of state officials. Id. Finally, the last inquiry involves situations in which “the State has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Id. (citations omitted). Plaintiffs have not addressed the “under color of’ state law requirement in their briefs nor in their complaints. On the state of the current record, the Court cannot but conclude that, for purposes of the civil rights violations alleged under 42 U.S.C. § 1983, defendants Cullen and W. Ihlenfeld acted solely as private parties and do not meet the “under color of’ state law requirement under any of the above tests. Undaunted, however, plaintiffs raise two alternative arguments against dismissal of Count III. First, plaintiffs argue that defendants’ conduct alleged in Count III constitutes a violation of 18 U.S.C. § 1001," }, { "docid": "22159168", "title": "", "text": "a demonstration that the court’s action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible.” In re Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983) (quotation omitted). Here, Turner has only shown that the counsel he retained after the discovery deadline expired desires to discover documents that could have been discovered by his prior counsel during the nearly year long period in which discovery in this case was open. This does not come close to a showing requisite to persuade us that an abuse of discretion was committed. Rule 16 \"scheduling orders are at the heart of case management,” and if they can be flouted every time counsel determines she made a tactical error in limiting discovery “their utility will be severely impaired.” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir.1986). . The record is somewhat opaque as to whether Turner is contending that his demotion, in and of itself, is a separate violation of the ADEA and NJLAD or rather that the circumstances surrounding his demotion are relevant to showing that the elimination of his job and subsequent termination in 1985 were acts cf age discrimination. At oral argument, Turner’s counsel appeared to concede that he was not pressing the demotion as a separate claim because no timely charges were filed with the EEOC. Furthermore, a reading of the pre-trial order filed by the parties below indicates that the relevant age discrimination issue for trial was whether age discrimination was a determinative factor in the elimination of Turner’s job and his subsequent firing, not whether his demotion was motivated by age discrimination. Nevertheless, the parties have devoted much of their efforts on appeal trying to convince us either that there exists or does not exist a material issue of fact with respect to whether Turner's demotion was motivated by age discrimination. Given this, and that the circumstances of his demotion are relevant to determining whether his termination was the result" }, { "docid": "22137441", "title": "", "text": "district court’s management of discovery is abuse of discretion. See Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1032 (3d Cir.1997). “[W]e will not upset a district court’s conduct of discovery procedures absent a demonstration that the court’s action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 818 (3d Cir.1982) (internal quotation marks omitted) (emphasis in original). The record indicates that Gallas had sufficient time to conduct discovery during the 25 months between the filing of his complaint and the entry of summary judgment on the interference with employment claim, despite the fact that relatively brief stays of discovery occupied some of that time. Accordingly, we find no abuse of discretion. See Massachusetts Sch. of Law, 107 F.3d at 1034 (“[T]he district court, by allowing fairly extensive discovery and then closing discovery and entertaining the summary judgment motion, did not abuse its discretion.”). IV. CONCLUSION For the foregoing reasons, the orders of the district court challenged by Gallas on this appeal will be affirmed. . Brady was elected to Congress after this action was instituted. See Appellee Zappala’s Br. at 2 n. 1. .In April 1993, the Supreme Court vacated its December 19, 1990 order and issued an order lessening its involvement in the day-today operations of the FJD. This order was the first step in the process of returning the FJD to local control. J.A. at 165, 417. That process culminated in the March 26, 1996 order. J.A. at 412. . Gallas later unsuccessfully applied for the position of Court Administrator. J.A. at 423. Gallas is no longer serving as Budget Administrator. See Appellant’s Br. at 13. . Gallas alleges that the Philadelphia Daily News reported the contents of the PFA in a September 27, 1995 article entitled “Court Official a Wife Beater?” J.A. at 94. . He did not name each of these defendants in all of the three counts. . The district court dismissed Gallas’ claims against several of" }, { "docid": "22137440", "title": "", "text": "requirements for relation-back under Rule 15(c)(3) have been met. See Nelson v. County of Allegheny, 60 F.3d 1010, 1014 n. 6 (3d Cir.1995) (replacing a John Doe with a party’s real name amounts to “changing a party” under Rule 15(c)(3)). Accordingly, we will not disturb the district court’s decision to quash the subpoenas. Second, Gallas contends that the district court erred in refusing to grant him additional time to conduct discovery with respect to his interference with employment claim. On November 10, 1998, more than two years after Gallas commenced this action and more than six months after the discovery deadline passed, the district court entered an order granting summary judgment in favor of Fumo, Brady, and the Democratic City Committee on the ground that Gallas had failed to come forward with any evidence that these defendants attempted to influence the members of the Pennsylvania Supreme Court to terminate him. In so ruling, the district court declined to extend the discovery deadline any further. J.A. at 1146. Our standard of review with regard to the district court’s management of discovery is abuse of discretion. See Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1032 (3d Cir.1997). “[W]e will not upset a district court’s conduct of discovery procedures absent a demonstration that the court’s action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 818 (3d Cir.1982) (internal quotation marks omitted) (emphasis in original). The record indicates that Gallas had sufficient time to conduct discovery during the 25 months between the filing of his complaint and the entry of summary judgment on the interference with employment claim, despite the fact that relatively brief stays of discovery occupied some of that time. Accordingly, we find no abuse of discretion. See Massachusetts Sch. of Law, 107 F.3d at 1034 (“[T]he district court, by allowing fairly extensive discovery and then closing discovery and entertaining the summary judgment motion, did not abuse its discretion.”). IV. CONCLUSION For the" }, { "docid": "3714166", "title": "", "text": "court would, as an original matter, have chosen a harsher sanction; it is whether the district court abused its discretion in not doing so. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). Sound judicial policy favors disposition of cases on their merits rather than on procedural defaults. We have consistently emphasized the extreme nature of a dismissal with prejudice or default judgment. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 867 (3d Cir.1984). These must be sanctions of last, not first, resort. Id. at 869. Therefore our review of the district court’s discretionary choice of a lesser sanction than default judgment will be very deferential. The same considerations bearing upon the other discovery orders which allegedly interfered with a party’s ability to obtain evidence are relevant to this situation. Even if a discovery order was arbitrary and unreasonable, an appellate court will not disturb the ruling absent a showing of actual and substantial prejudice. Rad Services, Inc. v. Aetna Casualty & Surety Co., 808 F.2d 271 (3d Cir.1986); In re Fine Paper Antitrust Litigation, 685 F.2d 810, 818 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983). The Court of Appeals will not interfere with the discretion of the district court by overturning a discovery order absent a demonstration that the court’s action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible. In re Fine Paper Antitrust Litigation, 685 F.2d at 818. Hewlett argued in support of his motions for judgment, and now argues here, that he was severely prejudiced by the City’s failure to comply fully with the discovery order of February 20, 1987. He argues that the plaintiff’s noncompliance precluded him from discovering whether the City had a policy of condoning violations of civil rights by arresting officers or had adopted or ratified this particular violation. The plaintiff has not met his burden to show that he was deprived of critical evidence. The plaintiff does not argue that" }, { "docid": "14257311", "title": "", "text": "be fairly treated as that of the State itself.” The Court has also inquired whether the state has “so far insinuated itself into a position of interdependence” with the private party that there is a “symbiotic relationship” between them. In addition, the Court has held that if a private party is a “willful participant in joint activity with the State or its agents,” then state action is present. Finally, the Court has ruled that a private entity that exercises “powers traditionally exclusively reserved to the State” is engaged in state action. Under each of these four tests, “the conduct allegedly causing the deprivation of a federal right” must be “fairly attributable to the State.” In order to establish state action, a plaintiff must demonstrate that the alleged deprivation of constitutional rights was “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” ... In order to resolve the state action question before us, we will apply these general principles and each of the tests articulated by the Supreme Court. 49 F.3d at 1447 (citations omitted). Appel-lees respond that the adoption center and the adoptive parents cannot be considered state actors under any test. We agree. A. The public function test consists of determining whether the state has delegated to a private party “a function traditionally exclusively reserved to the States.” Id. This is an arduous standard to satisfy. “While many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the State.’ ” Flagg Bros., 436 U.S. at 158, 98 S.Ct. 1729 (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 356, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). This often involves situations such as when private parties hold elections, perform necessary municipal functions, or run a nursing facility. In situations such as these, the actions taken were considered to be equivalent to state action, because the private parties performed a service which was traditionally the exclusive prerogative of the state. Johnson has" } ]

[ { "docid": "23372069", "title": "", "text": "rates and the rates that would have been approved but for Northwestern Bell’s wrongdoing. H.J., Inc., 734 F.Supp. at 882-84; H.J., Inc., 648 F.Supp. at 428-29. In so ruling, the court relied on a line of federal cases, Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Arkansas-Louisiana Gas Co., 453 U.S. 571, 101 S.Ct. 2925, 69 L.Ed.2d 856; Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986); and Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). These cases held that the filed rate doctrine barred the various claims when the measure of damages is determined by comparing the approved rate and the rate that allegedly would have been approved absent the wrongful conduct. 734 F.Supp. at 882-84. The court also relied on two district court decisions, Carr v. Southern Co., 731 F.Supp. 1067 (S.D.Ga.1990) and County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1387 (E.D.N.Y.1989) (LILCO), to support its dismissal of the H.J. class’s RICO claims. After the district court’s dismissal, however, the Eleventh Circuit reversed the district court’s decision in Carr, and the Second Circuit, although affirming on other grounds, rejected the lower court’s analysis in LILCO. See Taffet v. Southern Co., 930 F.2d 847 (11th Cir.1991); County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir.1990). A The H.J. class first argues that the filed rate doctrine does not apply because the “doctrine has never been extended to protect a defendant from its own wrongdo ing.” The H.J. class claims that the doctrine has not been applied when the fraud that has been committed is extrinsic fraud or a fraud committed upon the agency itself. The H.J. class points to a footnote in Arkansas Louisiana Gas Co., in which the Court stated: “We save for another day the question whether the filed rate doctrine applies in the face of fraudulent conduct.” 453 U.S. at 583 n. 13, 101 S.Ct. at 2933 n. 13. It" } ]

[ { "docid": "10295460", "title": "", "text": "seeking. Therefore, for the reasons stated below, we will grant the defendants’ motion to dismiss, but afford plaintiffs leave to amend their complaint to request injunctive relief that is consistent with the filed rate doctrine and to allege facts sufficient to state a conspiracy claim against the corporate parent defendants. 1. Applicability of the Filed Rate Doctrine to Delaware’s Title Insurance Regulation Regime As a preliminary matter, our Court of Appeals has applied the filed rate doctrine to bar claims when the rates involved have been filed with a federal agency, but has yet to specifically rule on whether the doctrine applies to rates that state administrative agencies authorize. Cf. Utilimax.com, Inc. v. PPL Energy Plus, LLC, 378 F.3d 303, 306 (3d Cir.2004). Other courts have applied the doctrine to preclude recovery of money damages based on allegations that the rates filed with either state or federal agencies were inflated or improper. See, e.g., Wegoland, Ltd. v. NYNEX Corp., 806 F.Supp. 1112, 1115-16 (S.D.N.Y.), aff'd 27 F.3d 17 (2d Cir.1994) (dismissing civil RICO claim involving rate information filed with different state and federal agencies); Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir.1992) (en banc) (dismissing civil RICO action involving rates filed with state utility regulators); H.J., Inc. v. Nw. Bell Telephone Co., 954 F.2d 485, 494 (8th Cir.1992) (dismissing claims by telephone users involving rates filed with state public utility commission). We have found no instance of a court holding that the filed rate doctrine does not apply because a state agency, rather than a federal one, authorized the rates. Given the weight of authority in favor of applying the doctrine to state agency authorized rates, we will preclude the recovery of treble damages for a Sherman Act claim predicated on the alleged excessiveness or otherwise unreasonableness of a rate filed with a state administrative agency. 2. Keogh as Antitrust Immunity Plaintiffs contend that Keogh and its progeny should only apply when “there is a clear repugnancy between the antitrust laws and the regulatory system.” PL’s Resp. at 11 (citing United States v. Philadelphia Nat’l Bank, 374 U.S." }, { "docid": "19869749", "title": "", "text": "barred by the filed rate doctrine. 27 F.3d at 20-22; accord: Taffet v. Southern Co., 967 F.2d 1483, 1494-95 (11th Cir.) (in banc), cert. denied, — U.S. -, 113 S.Ct. 657 (1992); H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 488-92 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992). The fundamental problem is that “only by determining what would be a reasonable rate absent the fraud could a court determine the extent of the damages. And it is this judicial determination of a reasonable rate that the filed rate doctrine forbids.” Wegoland, 27 F.3d at 21. Wegoland requires affirmance in this case. SCTA attempts to distinguish itself from the “casual plaintiff’ in Wegoland on the basis that SCTA is a consumer advocacy group whose sole purpose is “to monitor and enforce, through litigation if necessary, the rights of residents and property owners in Sun City to be burdened by no more than fair and appropriate utilities charges.” The effort is unavailing. Wegoland was not brought by a “casual plaintiff,” but rather, as a putative class action that purported to represent the interests of all injured ratepayers. In any event, the filed rate doctrine exists for reasons independent of the type of plaintiff maintaining the action: (1) legislatively appointed regulatory bodies have institutional competence to address rate-making issues; (2) courts lack the competence to set utility rates; and (3) the interference of courts in the rate-making process would subvert the authority of rate-setting bodies and undermine the regulatory regime. Wegoland, 27 F.3d at 21. SCTA’s goal of vindicating consumer rights simply does not implicate any of the considerations underlying the filed rate doctrine. See id. at 22 (“the class action nature of the proceeding in no way affects the important concerns of agency authority, justiciability, and institutional competence”). Thus, we recognized in Wegoland, as we do today, that the filed rate doctrine “applies whether or not the plaintiffs are suing for a class,” id., and regardless of the plaintiffs motivations in maintaining the litigation. Moreover, while SCTA purports to represent the rights of" }, { "docid": "22059560", "title": "", "text": "Armour Packing Co. v. United States, 209 U.S. 56, 72, 28 S.Ct. 428, 431-32, 52 L.Ed. 681 (1908) (shipper is required to pay carrier filed rate even though it had contracted with carrier to pay lower rate); Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d 58, 62 (2d Cir.1995) (damage action by consumer group against carrier is barred by filed rate doctrine despite carrier’s fraud during rate-making process); Wegoland, 27. F.3d at 22 (same); H.J. Inc., 954 F.2d at 494 (same). Nor does the doctrine’s application depend on the nature of the cause of action the plaintiff seeks to bring. See e.g., Square D, 476 U.S. at 412-13, 106 S.Ct. at 1924-25 (plaintiff seeking antitrust damages); Arkla, 453- U.S. at 573-75, 101 S.Ct. at 2928-29 (breach of contract); Keogh, 260 U.S. at 159-60, 43 S.Ct. at 48-49 (antitrust damages); Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 430, 27 S.Ct. 350, 351, 51 L.Ed. 553 (1907) (challenge to reasonableness of filed rate); Sun City, 45 F.3d at 60-61 (RICO); Wegoland Ltd. v. NYNEX Corp., 806 F.Supp. 1112, 1113 (S.D.N.Y.1992) (common law fraud, negligent misrepresentation, and RICO), aff'd 27 F.3d 17. (2d Cir.1994). Rather, the doctrine is applied strictly to prevent a plaintiff from bringing a cause of action even in the face of apparent inequities whenever either the nondiscrimination strand or the nonjusticiability strand underlying the doctrine is implicated by the cause of action the plaintiff seeks to pursue. See H.J. Inc., 954 F.2d at 489 (“[T]he underlying conduct [of the defendant] does not control whether the filed rate doctrine applies. Rather, the focus for determining whether the filed rate doctrine applies is the impact the court’s decision will have on agency procedures and rate determinations.”). Thus, “[i]gnorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent" }, { "docid": "2532555", "title": "", "text": "though carriers colluded to set artificially high filed rate). The Supreme Court established this doctrine in Keogh v. Chicago & Northwestern Railway, Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). In Keogh, the Supreme Court held that a shipper could not bring an antitrust action against carriers in connection with tariffs paid because those tariffs., had been filed and approved by the Interstate Commerce Commission. Id. at 163, 43 S.Ct. 47. The Court reasoned that even if the carriers had conspired to eliminate competition, the shipper could not recover under -antitrust law because it could receive a rebate that might give the shipper “preference over his trade competitors.” Id. Furthermore, the Court held that it was up to the respective governmental agency to determine whether the rates were discriminatory or unlawful, not the courts. Id. at 164, 43 S.Ct. 47. Since Keogh, courts have consistently applied the filed rate doctrine in a number of energy cases to preclude lawsuits against companies based on rates that were filed with a government agency. See, e.g., Ark. La. Gas Co. v. Hall, 453 U.S. 571, 578, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981) (filed rate doctrine prohibits seller of natural gas to collect a rate different than the one it filed with the Federal Power Commission.); Tex. E. Transmission Corp. v. Fed. Energy Regulatory Comm’n, 102 F.3d 174, 189 (5th Cir.1996) (natural gas pipeline precluded from retroactively assessing customer rates based on a new and different rate methodology because the prior rates had been filed with a federal agency). “Simply stated, the doctrine holds that any ‘filed rate’ — that is, one approved by the governing regulatory agency — is per se reasonable and unassailable in judicial proceedings brought by ratepayers.” Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994). Ill TCE argues that the district court was erroneous in applying the doctrine because: 1) the legislature clearly intended for aggrieved parties to bring private claims under PURA; 2) wholesale energy rates in the BES market are not filed with PUCT; 3) antitrust exemptions should be narrowly construed;" }, { "docid": "19869747", "title": "", "text": "SCTA fails the third prong of the Hunt test because recovery in this case would require individualized proof by Sun City’s residents. The complaint describes a ten-year period of RICO violations perpetrated through a complex accounting fraud scheme. Presumably, not all of SCTA’s members today were living in Sun City during 1968-1978, and each resident’s injuries during that period would differ depending upon the amount of utility services consumed and the uses to which those services were put. Consequently, the individual members would be required as parties if this lawsuit were allowed to proceed, and SCTA has no standing to proceed in their absence. B. The Filed Rate Doctrine. Chief Judge Cabranes also addressed the filed rate doctrine, which this court has more recently considered in Wego- land Ltd. v. NYNEX Corp., 27 F.3d 17 (2d Cir.1994). This doctrine provides an additional basis for dismissal in this case. As we said in Wegoland: The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable. Simply stated, the doctrine holds that any “filed rate” — that is, one approved by the governing regulatory agency — is per se reasonable and unassailable in judicial proceedings brought by ratepayers. Id. at 18. Wegoland, like the present case, involved RICO claims, but the filed rate doctrine has been applied in numerous other contexts. See, e.g., Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 417, 423-24, 106 S.Ct. 1922, 1927, 1930-31, 90 L.Ed.2d 413 (1986) (antitrust); Arkansas La. Gas Co. v. Hall, 453 U.S. 571, 584-85, 101 S.Ct. 2925, 2933-34, 69 L.Ed.2d 856 (1981) (breach of contract); Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251-53, 71 S.Ct. 692, 695-96, 95 L.Ed. 912 (1951) (fraud); Keogh v. Chicago & N.W. Ry., 260 U.S. 156, 162-65, 43 S.Ct. 47, 49-50, 67 L.Ed. 183 (1922) (antitrust). Wegoland was decided after the filing of briefs on this appeal, but prior- to oral argument. Wegoland ruled that RICO claims premised upon alleged fraud perpetrated by utilities upon a rate-setting agency are" }, { "docid": "4281972", "title": "", "text": "(applying \"filed rate” doctrine to bar claim alleging rate approved by agency was too high because applicant fraudulently manipulated the market, skewing the rate approval process); AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 535 (3d Cir.2006) (\"[T]here is no fraud exception to the filed rate doctrine.”); Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 932-33 (9th Cir.2002) (applying HJ. Inc. to conclude that, under the circumstances of that case, the \"filed rate” doctrine precluded claims alleging fraud before an administrative agency because !'[t]he impact of any award of damages ... would be to undermine [the regulatory agency’s] ability to regulate rates”); Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1311-13, 1315-17 (11th Cir.2004) (applying \"filed rate” doctrine to bar state-law fraud claims that implicate approved rate); Marcus v. AT&T Corp., 138 F.3d 46, 58-59 (2d Cir.1998) (\"Application of the filed rate doctrine in any particular case is not determined by the culpability of the defendant’s conduct or the possibility of inequitable results.”) (citing cases); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18, 20-22 (2d Cir. 1994) (holding there is no exception to the \"filed rate” doctrine for a claim alleging that the approved rate is the result of fraud perpetrated on the regulatory agency; noting \"every court that has considered the [question] has rejected the notion that there is a fraud exception to the filed rate doctrine”) (citing cases); Taffet v. S. Co., 967 F.2d 1483, 1485, 1487-90, 1494-95 (11th Cir.1992) (reh'g en banc) (relying on “filed rate” doctrine to preclude civil claim, asserted under the federal Racketeer Influenced and Corrupt Organizations Act (\"RICO”), alleging utilities obtained rate increase through fraud perpetrated on regulating agency; noting that \"[a] regulated entity's alleged fraud does not create a right to a reasonable rate that exists independently of agency action”); Centerpoint Energy, Inc. v. Miller Cnty. Circuit Ct., 370 Ark. 190, 258 S.W.3d 336, 342-43 (2007) (noting Arkansas law has adopted Eighth Circuit's reasoning in HJ. Inc. \"that the underlying alleged fraudulent conduct of the defendants did not control whether the fixed-rate doctrine" }, { "docid": "22059559", "title": "", "text": "for shipment at lower rate and agency found that allowing carrier to charge filed rate was an “unreasonable” practice); Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986) (filed rate doctrine bars damage action against motor carriers under antitrust laws even though carriers colluded to set artificially,high filed rate); Arkla, 453 U.S. at 579-80, 101 S.Ct. at 2931-32 (filed rate doctrine bars breach of contract action by natural gas producers even though defendant-buyer failed to disclose its arrangement to buy gas from a third-party in violation of contract); Keogh v. Chicago & Northwestern Ry. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 49-50, 67 L.Ed. 183 (1922) (filed rate doctrine bars recovery for antitrust damages against carriers who colluded to set artificially high shipment rate); Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94, 98, 35 S.Ct. 494, 495-96, 59 L.Ed. 853 (1915) (filed rate doctrine allows plaintiff-carrier to charge defendant-traveller filed rate even though carrier had agreed to transport traveller at a lower rate); Armour Packing Co. v. United States, 209 U.S. 56, 72, 28 S.Ct. 428, 431-32, 52 L.Ed. 681 (1908) (shipper is required to pay carrier filed rate even though it had contracted with carrier to pay lower rate); Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d 58, 62 (2d Cir.1995) (damage action by consumer group against carrier is barred by filed rate doctrine despite carrier’s fraud during rate-making process); Wegoland, 27. F.3d at 22 (same); H.J. Inc., 954 F.2d at 494 (same). Nor does the doctrine’s application depend on the nature of the cause of action the plaintiff seeks to bring. See e.g., Square D, 476 U.S. at 412-13, 106 S.Ct. at 1924-25 (plaintiff seeking antitrust damages); Arkla, 453- U.S. at 573-75, 101 S.Ct. at 2928-29 (breach of contract); Keogh, 260 U.S. at 159-60, 43 S.Ct. at 48-49 (antitrust damages); Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 430, 27 S.Ct. 350, 351, 51 L.Ed. 553 (1907) (challenge to reasonableness of filed rate); Sun City, 45 F.3d at 60-61" }, { "docid": "23561280", "title": "", "text": "for telecommunications services that are ‘reasonable’ by keeping courts out of the rate-making process (the ‘nonjusti-ciability strand’), a function that the federal regulatory agencies are more competent to perform.” Marcus, 138 F.3d at 58 (citing Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 19 (2d Cir.1994); H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 488 (8th Cir. 1992)). See also Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251, 71 S.Ct. 692, 695, 95 L.Ed. 912 (1951) (reasonableness of rates is question for regulatory agency). The nonjustieiability strand recognizes that “(1) legislatively appointed regulatory bodies have institutional competence to address rate-making issues; . (2) courts lack the competence to set ... rates; and (3) the interference of courts in the rate-making process would subvert the authority of rate-setting, bodies and undermine the regulatory regime.” Sun City Taxpayers’Ass’n v. Citizens Utils. Co., 45 F.3d 58, 62 (2d Cir.1995) (citation omitted). On appeal, Fax recognizes, as it must, that we can not directly enforce the rates in the January 14 letter. See Appellant’s Brief at 25 (“It cannot be said enough times that Fax does not seek to have the non-tariff rates enforced.”). Those rates are not consistent with the CustómNet tariff pursuant to which Fax received service. If this court were to enforce the promised rate and award damages on that basis, we would effectively be setting and applying a rate apart from that judged reasonable by the FCC, in violation of the nonjustieiability strand of the filed rate doctrine. See, e.g., Sun City, 45 F.3d at 62; Wegoland, 27 F.3d at 21; Taffet v. Southern Co., 967 F.2d 1483, 1494-95 (11th Cir.1992) (en bane); Marco Supply, 875 F.2d at 436. Moreover, an award of damages effectively would allow Fax to''pay a lower rate than other CustomNet customers, in violation of the nondiscrimination strand of the filed rate doctrine. See, e.g., Maislin, 497 U.S. at 127-28, 110 S.Ct. at 2766-67; Marcus, 138 F.3d at 59-61; Wegoland, 27 F.3d at 19. Fax attempts to recharacterize its argument in order to avoid the harsh inequities occasioned by application" }, { "docid": "608028", "title": "", "text": "rates they requested.’ ” Id. at 18 (quoting Wegoland, Ltd. v. NYNEX Corp., 806 F.Supp. 1112, 1113 (S.D.N.Y.1992)). Explaining-that the twin goals of the filed rate doctrine are non-discrimination among ratepayers and exclusion of the courts from the ratemaking process, the Second Circuit reasoned that the task of “ferreting out fraud in the rate-making process” would enmesh the court impermissibly in that process, would subvert the regulatory agency’s authority and “undermine the stability of the system.” Id. at 21. Accordingly, the Court refused to create a fraud exception to the filed rate doctrine. Id. at 22; see also Taffet v. Southern Co., 967 F.2d 1483, 1488-90 (11th Cir.) (en banc) (filed rate barred RICO action because customers had suffered no legally cognizable injury), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992); H.J. Inc. v. Northwestern Bell. Tel. Co., 954 F.2d 485, 494 (8th Cir.), (filed rate doctrine barred RICO claims for fraud on agency), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992); Marco Supply Co. v. AT & T Communications, Inc., 875 F.2d 434, 436 (4th Cir.1989) (filed rate doctrine barred claim of price misrepresentation); Transportation Data Interchange, Inc. v. AT & T, 920 F.Supp. 86, 89 (D.Md.1996) (relying on Marco, supra, in holding that filed rate doctrine bars claims for breach of contract and fraud); MCI Telecommunications Corp. v. Graphnet, Inc., 881 F.Supp. 126, 132 (D.N.J.1995) (holding that filed rate doctrine precludes claims for fraudulent inducement and breach of contract). That a common carrier may charge no more and no less than its filed rate necessarily means that a subscriber may pay no more and no less than the filed rate, regardless of equitable circumstances suggesting otherwise. It follows that any subscriber who pays the filed rate has suffered no legally cognizable injury. Here, AT & T filed its rates based on rounding up with the FCC, and plaintiffs paid the rates so filed. That plaintiffs may have been misled by AT & T’s bills, or its advertisements of “True Savings,” does not mitigate the effect of the filed rate doctrine." }, { "docid": "15725909", "title": "", "text": "contract consistent with the filed rate.” Richardson, 371 N.J.Super. at 470, 853 A.2d 955. “Although the filed rate doctrine produces harsh results ... such equitable concerns have been rejected by the Supreme Court.” JMC Telecom, 470 F.3d at 533 n. 11 (citing Central Office, 524 U.S. at 223, 118 S.Ct. 1956; Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 128, 110 S.Ct. 2759, 111 L.Ed.2d 94(1990)). As a preliminary matter, the Court will explore the development of the filed rate doctrine in New Jersey with respect to two issues; first, the application of the doctrine to state (as well as federal) rate-making, and second, the doctrine’s relevance in the context of insurance regulation. The Appellate Division of the Superior Court of New Jersey reasoned in a recent opinion that the filed rate doctrine should apply to state as well as federal rate-making. Richardson, 371 N.J.Super. at 462, 853 A.2d 955. The Appellate Division cited cases from various federal courts of appeals in support of this finding. See id. (citing Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 20 (2d Cir.1994); Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir.1992), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992); H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992)). Accordingly, the Court finds that the filed rate doctrine may be applied to rate-making by a New Jersey regulatory agency. Second, although the filed rate doctrine traditionally applied to public utilities and common carriers, the Appellate Division has held that it also applies to insurance regulation. Richardson, 371 N.J.Super. at 463, 853 A.2d 955. The plaintiff in Richardson alleged that the sales practices of three insurance companies and a credit card company fraudulently induced her to purchase various insurance policies, including credit interruption of income insurance, combined credit life and credit disability insurance, and credit family leave insurance. Id. at 458-59, 853 A.2d 955. In determining that the filed rate doctrine should apply to insurance rate-making, the Appellate Division found that (1)" }, { "docid": "21264831", "title": "", "text": "agree with the Second Circuit Court of Appeals that those actions are barred. See Sun City Taxpayers’ Ass'n v. Citizens Utils. Co., 45 F.3d 58, 61-62 (2d Cir.1995) (holding that the filed rate doctrine precludes a RICO action); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 22 (2d Cir.1994) (same); see also Taffet v. S. Co., 967 F.2d 1483, 1485-86, 1488 (11th Cir.1992) (en banc) (same); H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.1992) (same). . See Dynegy, 375 F.3d at 836-37, 852-53; TANC, 295 F.3d at 932-33. . See Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1056-59 (9th Cir.2001). . We note that Wah Chang is not attacking the contract it had with PacifiCorp; it seeks damages against the Energy Companies only. Cf. Grays Harbor, 379 F.3d at 652-53 (an attempt to reform a contract might be sustainable, but damages are not available). . See Cost Mgmt. Servs., Inc. v. Wash. Natural Gas Co., 99 F.3d 937, 945-48 (9th Cir.1996). . County of Stanislaus, 114 F.3d at 866; see also, Cost Mgmt., 99 F.3d at 945 (clarifying that it is speaking about competitors, not customers). . See Keogh, 260 U.S. at 163, 43 S.Ct. at 49-50; Verizon Del., Inc. v. Covad Comms. Co., 377 F.3d 1081, 1086 (9th Cir.2004). . Verizon Del., 377 F.3d at 1086. . See Keogh, 260 U.S. at 162, 43 S.Ct. at 49 (alluding to possible separate right). . See County of Stanislaus, 114 F.3d at 862-67; see also Montana-Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 254-55, 71 S.Ct. 692, 697, 95 L.Ed. 912 (1951); Lockyer, 383 F.3d at 1016. . Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250-51, 1254 (9th Cir.1982). . Id. at 1266-67. . We are well aware of E. & J. Gallo Winery v. Encana Corp., 503 F.3d 1027 (9th Cir.2007). However, that does not affect our analysis because, as Gallo acknowledges, FERC’s control over the natural gas market is quite different from its control over the electricity market. . Because we hold" }, { "docid": "15725904", "title": "", "text": "F.3d 1358, 1373 (3d Cir.1996). When a state’s highest court has not addressed the precise question before the court, a federal court must predict how the state’s highest court would resolve the issue. Borman v. Raymark Indus., Inc., 960 F.2d 327, 331 (3d Cir.1992). Although not dispositive, decisions of state intermediate appellate courts should be accorded significant weight in the absence of an indication that the highest state court would rule otherwise. Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir.1991), cert. denied, 507 U.S. 973, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993). The filed rate doctrine provides that a rate filed with and approved by a governing regulatory agency is unassailable in judicial proceedings brought by ratepayers. Alston v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir.2009) (citing Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994)). The doctrine is considered to have originated in Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 161-65, 43 S.Ct. 47, 67 L.Ed. 183 (1922), in which the Supreme Court of the United States determined that the Interstate Commerce Commission’s approval of freight rates submitted by the defendants precluded a private antitrust action seeking damages on the basis of those rates. The filed rate doctrine’s application is only necessary when one of its core purposes is implicated. Smith v. SBC Communications, Inc., 178 N.J. 265, 275, 839 A.2d 850 (2004) (citing AT & T v. Central Office Tel., Inc., 524 U.S. 214, 223, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998)). The two core policy goals of the doctrine are (1) the non-discrimination strand, or the prevention of price discrimination by carriers as among ratepayers; and (2) the non-justiciability strand, or the preservation of the role of regulatory agencies in approving reasonable rates and the exclusion of the courts from the rate-making process. Fax Telecomms., Inc. v. AT & T, 138 F.3d 479, 489 (2d Cir.1998); H.J., Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992). The non-discrimination strand is premised in part on the concept that awarding damages to plaintiffs while leaving less" }, { "docid": "8955479", "title": "", "text": "VI are dismissed on this ground. . Given the inapplicability of a cost-plus contract exception, the concerns over Con Ed’s ability to pass through costs is essentially dicta. . See, e.g., Complaint ¶¶ 67, 70, 73, 77, 82, 85, 91. . Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 21 (2d Cir.1994) (stating that \"any 'filed rate' — that is, one approved by the governing regulatory agency — is per se reasonable and unassailable in judicial proceedings brought by ratepayers”). . Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 929-30 (9th Cir.2002). . See Montana-Dakota Utils. Co. v. Northwest. Pub. Serv. Co., 341 U.S. 246, 251, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Wegoland, 27 F.3d at 18 (\"The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable.”). . California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 853 (9th Cir.2004) (quotation marks and citations omitted, brackets in original). . H.J. Inc. v. Northwest. Bell Tel. Co., 954 F.2d 485, 489 (8th Cir.1992). . Marcus v. AT & T Corp., 138 F.3d 46, 58 (2d Cir.1998). Accord Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 417, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986) (filed rate doctrine bars antitrust damages action even if defendants colluded to set an artificially high filed rate); Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d 58, 62 (2d Cir.1995) (holding that the filed rate doctrine bars consumer claims despite carrier's fraud during ratemaking process). . Nantahala Power & Light Co., 476 U.S. at 966, 106 S.Ct. 2349 (\"FERC clearly has exclusive jurisdiction over the rates to be charged ... [to] wholesale customers.”). Accord Fax Telecomms. v. AT & T, 138 F.3d 479, 488 (2d Cir.1998) (the filed rate doctrine bars any claim challenging the terms and conditions of the filed rate because \" '[u]nless and until suspended or set aside, this rate is made, for all purposes, the legal rate [and the] ... rights as defined by the tariff cannot be varied" }, { "docid": "4281971", "title": "", "text": "Insurance Act does incorporate a number of provisions of the Insurance Code, it does not incorporate Article 17 generally nor § 59A-17-3 specifically. See id. § 59A-30-14. . See also Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 410, 412-17, 424, 106 S.Ct. 1922, .90 L.Ed.2d 413 (1986) (applying “filed rate\" doctrine to preclude antitrust claims alleging motor carriers conspired to file excessive rates with the Interstate Commerce Commission, which, upon filing, became the legal rate; relying on Keogh v. Chi. & Nw. Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922)); Crumley v. Time Warner Cable, Inc., 556 F.3d 879, 880-81 (8th Cir.2009) (per curiam) (applying H.I. Inc. and holding \"filed rate\" doctrine barred claim alleging cable company fraudulently recovered double fees as part of rate filed with and approved by local regulating authority; noting that the \"filed rate” doctrine applies regardless of the fact that the “claim involves allegations of fraud”); Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222, 1224-27 (9th Cir.2007) (applying \"filed rate” doctrine to bar claim alleging rate approved by agency was too high because applicant fraudulently manipulated the market, skewing the rate approval process); AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 535 (3d Cir.2006) (\"[T]here is no fraud exception to the filed rate doctrine.”); Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 932-33 (9th Cir.2002) (applying HJ. Inc. to conclude that, under the circumstances of that case, the \"filed rate” doctrine precluded claims alleging fraud before an administrative agency because !'[t]he impact of any award of damages ... would be to undermine [the regulatory agency’s] ability to regulate rates”); Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1311-13, 1315-17 (11th Cir.2004) (applying \"filed rate” doctrine to bar state-law fraud claims that implicate approved rate); Marcus v. AT&T Corp., 138 F.3d 46, 58-59 (2d Cir.1998) (\"Application of the filed rate doctrine in any particular case is not determined by the culpability of the defendant’s conduct or the possibility of inequitable results.”) (citing cases); Wegoland Ltd." }, { "docid": "608027", "title": "", "text": "misquotation of rates is not an excuse for paying or charging either less or more than the rate filed.” Louisville & Nashville R.R. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915) (holding that a passenger who bought a train ticket at a misquoted rate had no defense to payment of the filed tariff). The filed rate doctrine trumps contract defenses: even a customer who has negotiated with the carrier for a lower rate must pay the filed rate. Armour Packing Co. v. United States, 209 U.S. 56, 81, 28 S.Ct. 428, 435, 52 L.Ed. 681 (1908). Permitting parties to contract for a reasonable rate would subvert the FCC’s ability to judge in every case the reasonableness of the rate. Arkla, 453 U.S. at 582, 101 S.Ct. at 2932-33. The filed rate doctrine prevails also over claims of fraud. In Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 19 (2d Cir.1994), plaintiffs alleged that defendants had provided the “ ‘regulatory agencies and consumers misleading financial information to support the inflated rates they requested.’ ” Id. at 18 (quoting Wegoland, Ltd. v. NYNEX Corp., 806 F.Supp. 1112, 1113 (S.D.N.Y.1992)). Explaining-that the twin goals of the filed rate doctrine are non-discrimination among ratepayers and exclusion of the courts from the ratemaking process, the Second Circuit reasoned that the task of “ferreting out fraud in the rate-making process” would enmesh the court impermissibly in that process, would subvert the regulatory agency’s authority and “undermine the stability of the system.” Id. at 21. Accordingly, the Court refused to create a fraud exception to the filed rate doctrine. Id. at 22; see also Taffet v. Southern Co., 967 F.2d 1483, 1488-90 (11th Cir.) (en banc) (filed rate barred RICO action because customers had suffered no legally cognizable injury), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992); H.J. Inc. v. Northwestern Bell. Tel. Co., 954 F.2d 485, 494 (8th Cir.), (filed rate doctrine barred RICO claims for fraud on agency), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992); Marco Supply Co. v. AT" }, { "docid": "19869748", "title": "", "text": "Simply stated, the doctrine holds that any “filed rate” — that is, one approved by the governing regulatory agency — is per se reasonable and unassailable in judicial proceedings brought by ratepayers. Id. at 18. Wegoland, like the present case, involved RICO claims, but the filed rate doctrine has been applied in numerous other contexts. See, e.g., Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 417, 423-24, 106 S.Ct. 1922, 1927, 1930-31, 90 L.Ed.2d 413 (1986) (antitrust); Arkansas La. Gas Co. v. Hall, 453 U.S. 571, 584-85, 101 S.Ct. 2925, 2933-34, 69 L.Ed.2d 856 (1981) (breach of contract); Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251-53, 71 S.Ct. 692, 695-96, 95 L.Ed. 912 (1951) (fraud); Keogh v. Chicago & N.W. Ry., 260 U.S. 156, 162-65, 43 S.Ct. 47, 49-50, 67 L.Ed. 183 (1922) (antitrust). Wegoland was decided after the filing of briefs on this appeal, but prior- to oral argument. Wegoland ruled that RICO claims premised upon alleged fraud perpetrated by utilities upon a rate-setting agency are barred by the filed rate doctrine. 27 F.3d at 20-22; accord: Taffet v. Southern Co., 967 F.2d 1483, 1494-95 (11th Cir.) (in banc), cert. denied, — U.S. -, 113 S.Ct. 657 (1992); H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 488-92 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992). The fundamental problem is that “only by determining what would be a reasonable rate absent the fraud could a court determine the extent of the damages. And it is this judicial determination of a reasonable rate that the filed rate doctrine forbids.” Wegoland, 27 F.3d at 21. Wegoland requires affirmance in this case. SCTA attempts to distinguish itself from the “casual plaintiff’ in Wegoland on the basis that SCTA is a consumer advocacy group whose sole purpose is “to monitor and enforce, through litigation if necessary, the rights of residents and property owners in Sun City to be burdened by no more than fair and appropriate utilities charges.” The effort is unavailing. Wegoland was not brought by a" }, { "docid": "4281970", "title": "", "text": "exclusive jurisdiction of the” Minnesota Department of Commerce precluded application of “filed rate” doctrine to the insurance industry), aff'd, 721 N.W.2d 307 (Minn.2006); Richardson v. Standard Guar. Ins. Co., 371 N.J.Super. 449, 853 A.2d 955, 963-65 (2004) (agreeing with \"considerable weight of authority from other jurisdictions that have applied the filed rate doctrine to ratemaking in the insurance industry,” citing cases). In light of this authority, we predict New Mexico courts would apply the “filed rate” doctrine to the pervasively regulated matter of title insurance. Plaintiffs have not shown any reason to reach a different conclusion. Plaintiffs’ reliance on the Insurance Code, and specifically N.M. Stat. § 59A-17-3, to argue that ”[t]he Insurance Code expressly preserves and promotes competition in insurance” is misplaced. (Aplt. Br. at 45-47.) The Insurance Code specifically provides that ”[n]o provision of the Insurance Code shall apply to ... title insurers and title insurance agents, as identified in Chapter 5 9A, Article 30 NMSA 1978, except as stated in that article.” N.M. Stat. Ann. § 59A-1-15(H) (2004). And, while the Title Insurance Act does incorporate a number of provisions of the Insurance Code, it does not incorporate Article 17 generally nor § 59A-17-3 specifically. See id. § 59A-30-14. . See also Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 410, 412-17, 424, 106 S.Ct. 1922, .90 L.Ed.2d 413 (1986) (applying “filed rate\" doctrine to preclude antitrust claims alleging motor carriers conspired to file excessive rates with the Interstate Commerce Commission, which, upon filing, became the legal rate; relying on Keogh v. Chi. & Nw. Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922)); Crumley v. Time Warner Cable, Inc., 556 F.3d 879, 880-81 (8th Cir.2009) (per curiam) (applying H.I. Inc. and holding \"filed rate\" doctrine barred claim alleging cable company fraudulently recovered double fees as part of rate filed with and approved by local regulating authority; noting that the \"filed rate” doctrine applies regardless of the fact that the “claim involves allegations of fraud”); Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222, 1224-27 (9th Cir.2007)" }, { "docid": "21264830", "title": "", "text": "Civil Procedure 12(b)(1), all material factual allegations in the complaint are taken as true. See Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir.2005); United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1130 n. 1 (9th Cir.1999) (per curiam). . We have outlined the nature of that crisis previously, and need not repeat the history here. See California ex rel. Lockyer v. FERC, 383 F.3d 1006, 1009-10 (9th Cir.2004), certs. denied, - U.S. -, 127 S.Ct. 2972, 168 L.Ed.2d 719 (2007), - U.S. -, 127 S.Ct. 2972, 168 L.Ed.2d 719 (2007); California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 836-37 (9th Cir.2004). . See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 422, 106 S.Ct. 1922, 1929-30, 90 L.Ed.2d 413 (1986); Keogh v. Chi. & Nw. Ry. Co., 260 U.S. 156, 162, 43 S.Ct. 47, 49, 67 L.Ed. 183 (1922); County of Stanislaus v. Pac. Gas & Elec. Co., 114 F.3d 858, 863 (9th Cir.1997). . We have not previously addressed RICO as such. However, we agree with the Second Circuit Court of Appeals that those actions are barred. See Sun City Taxpayers’ Ass'n v. Citizens Utils. Co., 45 F.3d 58, 61-62 (2d Cir.1995) (holding that the filed rate doctrine precludes a RICO action); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 22 (2d Cir.1994) (same); see also Taffet v. S. Co., 967 F.2d 1483, 1485-86, 1488 (11th Cir.1992) (en banc) (same); H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.1992) (same). . See Dynegy, 375 F.3d at 836-37, 852-53; TANC, 295 F.3d at 932-33. . See Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1056-59 (9th Cir.2001). . We note that Wah Chang is not attacking the contract it had with PacifiCorp; it seeks damages against the Energy Companies only. Cf. Grays Harbor, 379 F.3d at 652-53 (an attempt to reform a contract might be sustainable, but damages are not available). . See Cost Mgmt. Servs., Inc. v. Wash. Natural Gas Co., 99 F.3d 937, 945-48 (9th Cir.1996). . County of Stanislaus, 114" }, { "docid": "9474225", "title": "", "text": "not limit standing to only that class of purchasers with the most direct injury. We find that plaintiff has alleged a sufficiently direct injury to allow plaintiff to have standing to pursue this claim. In summary, we hold that plaintiff has sufficiently alleged both antitrust standing and antitrust injury to withstand defendants’ motion to dismiss on that basis. II. Filed Rate Doctrine Under the “filed rate doctrine,” the filing of rates with any appropriate regulatory body generally prevents the assertion of antitrust liability arising from- the charging of the filed rate. 54 Am.Jur.2d, Monopolies and Restraints of Trade § 299 (2002). “Stated simply, [the filed rate] doctrine holds that any ‘filed rate’—that is, one approved by the governing regulatory agency—is per se reasonable and unassailable in judicial proceed ings brought by ratepayers.” Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994); see also Keogh v. Chicago & Northwestern Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922) (rejecting a challenge to rates charged by common carriers that had been approved by the Interstate Commerce Commission); County of Stanislaus v. Pacific Gas & Elec. Co., 114 F.3d 858, 862 (9th Cir.1997) (holding that filed rate doctrine barred federal antitrust price-fixing claims of customers of natural gas distribution company against company and others, alleging that rates approved by FERC were product of antitrust violations), cert. denied, 522 U.S. 1076, 118 S.Ct. 854, 139 L.Ed.2d 754 (1998). The filed rate doctrine reflects the dual concerns that rates set by a regulatory agency should be stringently applied to prevent unjust discrimination and that the courts should avoid impermissible judicial rate-making. Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251-52, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Keogh, 260 U.S. at 163, 43 S.Ct. 47; see also Marcus v. AT&T Corp., 138 F.3d 46, 58-59 (2d Cir.1998) (describing the two purposes of the filed rate doctrine as the “nondiscrimination strand” and the “non-justiciability strand”). Application of the filed rate doctrine in any particular ease is not determined by the culpability of the defendant’s conduct or the possibility" }, { "docid": "15757322", "title": "", "text": "doctrine was not raised in LILCO. (Defs. Reply Mem. at 19). See Wegoland, 27 F.3d at 22 (stating that LILCO could \"by no means be construed as an implicit rejection of the filed rate doctrine”). The Court therefore held \"that LILCO erects no barrier in this Circuit to the application of the filed rate doctrine to RICO suits brought by ratepayers against utilities.” Id. That RICO actions may be barred by the filed rate doctrine, however, does, not dictate the conclusion that all RICO actions brought by ratepayers against utilities are so barred. In an action where the filed rate doctrine does not apply, as is the case here, for example, the utility remains subject to the RICO statute. . Most of the cases cited by defendants involve challenges to the reasonableness of a filed rate, including cases in which a plaintiff had already paid the filed rate as required. These cases are inapposite. See, e.g., Sun City Taxpayers' Ass'n v. Citizens Utils. Co., 45 F.3d 58 (2d Cir.) (plaintiffs claimed that the utility’s parent perpetrated a fraud on the regulatory agency thereby inducing the agency to approve unlawfully high rates), cert. denied, 514 U.S. 1064, 115 S.Ct. 1693, 131 L.Ed.2d 557 (1995); Taffet v. Southern Co., 967 F.2d 1483, 1485 (11th Cir.) (plaintiffs claimed that \"the utility’s fraudulent and material misrepresentations to a state rate-setting commission” resulted in the commission approving excessive rates), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992); H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 486 (8th Cir.) (plaintiffs asserted that the utility bribed members of the public utilities commission to influence the officials in setting telephone rates), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992); Feiner v. Orange & Rockland Utils., Inc., 862 F.Supp. 1084 (S.D.N.Y.1994) (plaintiffs paid rates approved by the PSC); Fersco v. Empire Blue Cross/Blue Shield, No. 93 Civ. 4226, 1994 WL 445730 (S.D.N.Y. Aug.17, 1994) (plaintiffs alleged that utility obtained excessive insurance rate increases through fraud on the insurance department). . PPI argues that they should not now be required" } ]

[ { "docid": "6980159", "title": "", "text": "are generally deemed by courts of equity to stand in pari jure and are. to be paid proportionally. In the case of stock unlawfully pledged and belonging to different owners, the equities are originally equal, and that equality is not disturbed by the fact that the stock of one is sold by the pledgee, while that of the other survives. So the principle of general average applied in maritime and commercial operations, and which required a general contribution to be made by all parties in interest towards a loss which is voluntarily incurred for the benefit of all, is indicative of the rule which should be applied in a case like this. The principle upon which contribution is founded does not rest upon contract but has its origin in natural law. Story’s Equity Jurisprudence, vol. 1, § 490. In Johnson v. Bixby, 252 Fed. 103, 64 C. C. A. 215, 1 A. L. R. 660, the Circuit Court of Appeals for the Eighth Circuit held that, where shares of stock deposited by customers with a brokerage partnership were before bankruptcy of the partnership wrongfully pledged by it to secure its indebtedness to an innocent pledgee, and after bankruptcy the pledgee sold enough of the stock of customers A and B to pay the indebtedness, and thereafter, in addition, sold the stock of customer C. and the proceeds of that sale were traced intact into the bankrupt's assets, C was entitled to reclaim the same without contribution as to customers A and B. In the opinion the court said: “As to contribution, the pledgee had a right to sell the Johnson and tne Schoellhorn stock and apply the proceeds, because such action was necessary to pay its debt. So far as this record shows, the other collateral sold that day belonged to the bankrupt. 'The balance of such proceeds after payment was, so far as the pledgee was concerned, due the pledgor. But as it sprang from stock wrongfully pledged, and can be traced by the owners of that stock, it may. be made subject to their superior rights. It is" } ]

[ { "docid": "15215892", "title": "", "text": "appellees contend, that bonds are unlike stock certificates; that the former are or are analogous to chattels, like automobiles of a given make, model, and year, each with its own identity and individuality, although for most purposes indistinguishable from one another, while the latter are but tokens of an incorporeal undivided interest in a corporation; that therefore the principles of identification, if not of tracing, are inapplicable; and that as the originally deposited bonds are not on hand, there can be no recovery. The right to trace, and, even without tracing, to obtain like stock certificates on hand is not, however, due to their character as tokens of a chose in action, but to their interchangeability — their fungible nature. In truth, the serial number of a stock certificate identifies it exactly as does the serial number of a bond; in the one as in the other this identification may for some purposes be vital. Oppenheimer, supra, page. 868. But in so far as such certificates are agreed or are deemed in law to be fungible, negotiable bonds, al; least those of the same issue and maturity must likewise be treated as fungible property; we find no basis for a differentiation between the two kinds of securities. In Re Farmers’ & Merchants’ Bank of Jones (C. C. A. 6) 286 F. 924, negotiable bonds were involved and the record in that ease, as in the instant case, does not show that the bonds on hand were the identical ones originally deposited. It follows therefore that as between appellant and the trustee in bankruptcy the former is entitled to the bonds. But inasmuch as at the time of the filing of the petition in bankruptcy they were in the hands of a bona fide pledgee as collateral, with other securities, for the bankrupts’ debt, and, being negotiable instruments, were subject to tbe pledgee’s lien, appellant’s right of reclamation, good as against general creditors, is subject to possible contribution. And a claimant of some of the securities ‘sold by the pledgee has answered the petition and set up his right to contribution" }, { "docid": "23705217", "title": "", "text": "that language must be construed in respect of the facts before the court. The court was not called upon to adjust equities between Pip-pey and others similarly situated who did not complain. In the record on appeal there is a brief on behalf of Mrs. Stone, who takes the role of appellee. Mrs. Stone not only did not appeal, but, on the contrary urged the affirmance of the order below as follows: “Tlie order should be affirmed to the extent of awarding contribution to this appellee.” No reference whatever is made in the opinion of Judge La-combe to the brief or the argument on belialf of Mrs. Stone, and from this it is obvious that the court did not feel called upon to award relief to those who did not ask it, but who, on the contrary, were satisfied with the disposition below. It is true that the court held that the admiralty principle of general average was not applicable, and that the pledge should not he treated as a common adventure; but it did not disturb the proposition that it is the character of the equity which determines how any particular claim shall be classified. The case is quite different from one where a pledgee rightly sells collateral prior to a bankruptcy. In the absence of fraud or collusive arrangements, the result of such a sale is one of the hazards which may befall persons in a business of this character. If, however, it be held that, after a petition in bankruptcy has been filed, the pledgee, by selecting for sale some stocks and not others, can thereby save some stocks intact for the owners without the burden of contribution, and not others, it can readily be seen that the door will be opened for the most indefensible kind of favoritism, and possibly for corrupt bargains between the owners of securities and the pledgee. Indeed, a pledgee of his own motion, without any agreement with owners of securities, could easily safeguard his friends to the detriment of others who were strangers to him. I am fully satisfied, therefore, that" }, { "docid": "5695017", "title": "", "text": "class A, where the master placed it, or should be transferred to class B. As, however, the bankrupts had no lien or charge against the claimant’s moneys which went to the ultimate increase of the fund turned over to the trustee, we think that its claim against such fund should stand upon the same basis as the claim of those whose securities went into such fund and against which the bankrupts had no claim. In other words, in weighing equities, we should not distinguish .between 'the contribution of moneys and securities to the fund. The order of the District Court in placing the claim of the appellant, in class B is reversed, with costs, and the matter remanded for further proceedings in accordance with this opinion. The order of the District Court with respect to the claim of the People’s Bank of Passaic is affirmed, with one-half the costs in such matter against the appellant Bamford. The principle involved may be stated in another way by saying that the claimants whose securities were hypothecated by the bankrupts without right may be subrogated to the rights of the bankrupts against other claimants. The contention of the trustee that the holding at the time of the failure of small lots of stocks, less in each instance — except in the case of ü. S. Steel — than the amounts ordered and reported as purchased for the appellant’s account, may be regarded as part performance of the bankrupts’ obligation tb purchase and hold, if well founded, does not materially change the situation, nor relieve the bankrupts from the substantial charge of conversion. In reaching the conclusion stated in the text, we fully adhere to our opinion expressed in Matter of McIntyre, 174 Fed. 627, 98 C. C. A. 381, that conversion of shares on a particular day is not established by entries in a stock record book showing that on such das'- the difference between deliveries and receipts of shares of a particular stock was less than the number of shares of such stock purchased for the claimant. As we pointed out, the" }, { "docid": "6980157", "title": "", "text": "stock, but the court thought that the mere accident that Rolph’s 300 shares survived, liquidation did not give him equities superior to others whose stock had been unlawfully hypothecated with Winthrop & Co. by Wilson & Co. and sold by Winthrop & Co. to discharge their debt against Wilson & Co. In the course of the opinion of the District-Judge, referring to the decision as to Pippey’s stock in the McIntyre Case, it was said: “It is true that the court held that the admiralty principle of general average was not applicable, and that the pledge should not bo treated as a common adventure; but it did not disturb the proposition that it is the character of the equity\" which determines how any particular claim shall be classified. The case Is quite different from one where a pledgee rightly sells collateral prior to a bankruptcy. In the absence of fraud or collusive arrangements, the result of such a sale is one of the hazards which may befall persons in a business of this character. If, however, it be held that, after a petition in bankruptcy lias been filed, the pledgee, by selecting for sale some stocks and not others, can thereby save some stocks intact for the owners without the ¡burden of contribution, and not others, it can readily be seen that the door will be opened for the most indefensible kind of favoritism, and possibly for corrupt bargains between the owners of securities and the pledgee. Indeed, a pledgee of his own motion, without any agreement with owners of securities, could easily safeguard his friends, to the detriment of others who were strangers to him. I am fully satisfied, therefore, that liolph is in the same position as other class A claimants.” We think the conclusion above reached was correct, and that the adoption of the contrary theory would lead many times to unfair practices and work gross injustice. The courts in the United States and England have long acted upon the principle that between different creditors equality is equity. Equality, according to Bracton, constitutes equity itself. All debts" }, { "docid": "6980161", "title": "", "text": "the only fund that can be so followed by them. This measures the maximum residue of their converted property which can be legally identified. The then unsold collateral (including the Bixby stock) was not in sequali jure with the proceeds of the prior sales. This collateral was burdened with no obligation of contribution. It was at that time freed from the pledge. No such obligation originated in the mere fact of a subsequent wrongful sale by the pledgee. No part of the proceeds of the Bixby stock was, or, under the circumstances, could properly be, applied to the debt. The entire proceeds -of that sale remain intact, and can be traced. The mere fact that such were transmitted to the trustee in a common sum or payment with the above balance does not lessen Bixby’s right therein. It does not create a right in Johnson or Schoellhorn to any part thereof.” In the above case the customers A, B, and C apparently stood in exactly the same relation to the hypothecating bankrupt. The lender who^ held the collateral paid himself by selling out the stock of A and B. He then sold out C’s stock and paid over the proceeds to the receiver of the bankrupt. If we are right in understanding that A, B, and C stood in the same relation, and that the stock of each had been wrongfully pledged, then in holding that C was entitled, without contribution, to recover in solido the entire proceeds realized from the sale of his stock the court did not apply the principle intended to be announced in the McIntyre Case, and which was more fully set forth and applied in the case of In re Wilson. The doctrine of the Johnson Case is inconsistent with that announced in the McIntyre Case and in that of In re Wilson, which wa prefer. We think that, when customers authorize their broker to pledge their securities for the payment of the broker’s debts, each becomes to the extent of his pledge a surety for the payment of such indebtedness. As between themselves they" }, { "docid": "6980171", "title": "", "text": "benefit, to which all interests are required to contribute. We do not think Bippey can be thus required to contribute. If he had been left undisturbed to prosecute the replevin suit, he would have recovered the specific piece of property, which he owned, had identified, and was entitled to. By not appealing from the original order, and by prosecuting his claim of his stock in the bankruptcy court, he did not abandon any of his legal rights, nor obligate himself to contribute to the reimbursement of any one whose stock had been sold.” Where shares of stock deposited by customers with a brokerage partnership were, before bankruptcy of the partnership, wrongfully pledged by it to secure its indebtedness to an innocent pledgee, and after bankruptcy, the pledgee sold enough, of the stock of other customers to pay the indebtedness, and thereafter, in addition, sold stock of the claimant, the latter, the proceeds of the sale of whose stock were traceable intact into bankrupt’s assets, was entitled thereto without contribution as to the other customers. C. C. A. Eighth Circuit, Johnson v. Bixby, 252 Fed. 103, 64 C. C. A. 215, 1 A. L. R. 660. Here the claimant’s stock was not sold to satisfy the debt of Levy Bros. . It had been wrongfully pledged when the claimant was a creditor of the bankrupt. There was no authority to pledge it under the circumstances. The agreement petitioner signed with the bankrupts did not authorize it. The bankrupts had no right or title to the stock and at no time were they holding it for any other reason than as collateral security to protect them against the failure of the claimant to answer any call for margins on his purchases. Under these circumstances, I think the claimant was entitled to an order directing delivery of the bonds to him." }, { "docid": "6980154", "title": "", "text": "title against the person who had parted with value on the faith of the transfer he had signed. But the pledgee has not found it necessary to sell the Pullman stock. It has repaid itself from other items of the pledged property. It no longer has any lien on such property. It can no longer avail of any doctrine of estoppel. Pip-pey’s title to his stock is absolute. He is entitled to the certificate which represents that title. The trustees, in the language of the United States Supreme Court, ‘have no better right in [it] than the bankrupt.’ Thomas v. Taggart, 209 U. S. 385, 28 Sup. Ct. 519, 52 L. Ed. 845.” In the same case this court determined the claim of Mrs. Hudson, which differed in an important particular from that of Pippey’s. Her stock had also been pledged with McIntyre & Co., and had been by it turned over to the Trust Company, and was not sold by that company, but was among the securities turned over to the estate in bankruptcy after the company had liquidated its claim of $200,000 against McIntyre & Co. by the sale of other securities. Mrs. Hudson had not deposited her stock with McIntyre & Co. as security for transactions on her account, bút had loáned it to the firm for use in its business; it being agreed, however, that the stock was to continue her property, and was to remain on the books in her name, and that the dividends were to be paid to her. This court held that as respects this stock it was not unlawfully pledged, and as it had not been sold it was bound to contribute to the payment of the loan for which it was pledged. In other words, equity will treat alike those similarly situated. As respects Pippey no one was similarly situated, and consequently there was no obligation of contribution. As respects Mrs. Hudson there were others who, like her, had consented that their stock might be similarly hypothecated, and as to them there was the obligation of contribution resting upon her." }, { "docid": "2187403", "title": "", "text": "Fed. 714, Circuit Court of Appeals for the Ninth Circuit, although in the latter the court noted that it had, perhaps, not the full facts before it. There is no question that the Circuit Court of Appeals for the Eighth Circuit has so ruled. Johnson v. Bixby, 252 Fed. 103, 164 C. C. A. 215, 1 A. L. R. 660. Nevertheless the reasoning of Judge Mayer in Re Wilson & Co. (D. C.) 252 Fed. 631, to the contrary, seems unanswerable. The Circuit Court of Appeals of the Second Circuit, in Re Toole, 274 Fed. 337, disclaimed the interpretation which had been put upon their earlier decision in Pippey’s Case, supra, and held that all the owners of securities in like class must be given equality of treatment, and that a pledgee, by satisfying its debts out of some of the pledged securities, could not alter the relative rights of those whose property it held. Those depend upon the law, and not upon the accidental or intentional favoritism of the pledgee. I am persuaded that the mere fact that Mrs. Ricker’s security survived liquidation after the bankruptcy should not give her any rights superior to those she would otherwise have had. There is about her case, however, one peculiarity. The last loap the Maryland Trust Company made to the bankrupts was' the $2,5QD advanced when her stock was deposited with the pledgee. She cannot be called on to do more than to pay off that loan. The other petitioners whose securities were pledged with the same lender have no equity to require that she shall be called on to relieve them from any of the burden which, rested on them before her stock was wrongfully hypothecated. The pledgee, it is true, under the terms of its agreement with the bankrupt, could have used any equity in that stock over and above $2,500 to make good to it any deficiency in the value of the collateral it already held; but, as it turned out, there was no such deficiency. Mrs. Ricker should not be called upon to contribute in excess of" }, { "docid": "2187404", "title": "", "text": "the mere fact that Mrs. Ricker’s security survived liquidation after the bankruptcy should not give her any rights superior to those she would otherwise have had. There is about her case, however, one peculiarity. The last loap the Maryland Trust Company made to the bankrupts was' the $2,5QD advanced when her stock was deposited with the pledgee. She cannot be called on to do more than to pay off that loan. The other petitioners whose securities were pledged with the same lender have no equity to require that she shall be called on to relieve them from any of the burden which, rested on them before her stock was wrongfully hypothecated. The pledgee, it is true, under the terms of its agreement with the bankrupt, could have used any equity in that stock over and above $2,500 to make good to it any deficiency in the value of the collateral it already held; but, as it turned out, there was no such deficiency. Mrs. Ricker should not be called upon to contribute in excess of the $2,500 for which her certificate was pledged. She may, at her' option, pay the $2,500 and receive the certificate, or she may permit the trustee to sell it and out of the proceeds return to her all above that sum. I am conscious of the unwisdom of introducing new distinctions into the equities in such cases, too complicated as they already are, and it is only when, as in this petition, the facts are clear and the results so manifestly just, that any attempt should be made to marshal the burden on the securities of different, owners with reference to the respective dates at which they were pledged. The Watson Joint Adventure Claim. The Messrs. Watson have two claims in this case. One is similar in all respects to the other petitions to which reference has been made and calls for no other discussion. The other is of a different character. A number of years before bankruptcy, the petitioners and the bankrupts engaged in a joint dealing in certain kinds of securities. These dealings" }, { "docid": "11006340", "title": "", "text": "not in dispute, all of the appellants contend that under the facts the doctrine of equitable subordination, upon which the District Court based its decision, is not applicable. On the other hand, appellees, in support of the order, contend that Inland mismanaged Michigan through its dividend and depreciation policies and by its failure to make provision for sound financing of Michigan’s expansion program and by creating an enormous debt and issuing preferred stock ahead of the pledged stock, committed a breach of its fiduciary duty to its pledgees, and, since the entire proceeds of the sale are necessary to make Inland bondholders whole, the notes, because of the superior equities of the bondholders, must be subordinated to the common stock of Michigan. It is true that Inland, by reason of its entire ownership and control of Michigan, occupied a fiduciary position requiring scrupulous observance of its obligations to safeguard and preserve the interest of Inland Bonds, and owed to its bondholders, a duty not to impair the value of the Michigan stock. And where there is a violation of those principles, equity will undo the wrong. Pepper v. Litton, 308 U.S. 295, 311, 60 S.Ct. 238, 84 L.Ed. 281. This brings us to the questions of law and fact which the District Court decided in entering the order challenged. As already indicated, the master found that Inland, having pledged Michigan stock as security for its bonds which were sold on the strength of such security, owed a fiduciary duty to its bondholders as pledgees, not to exercise its control of Michigan to serve its own interest at the expense of the bondholders as such pledgees; and that Inland so managed and controlled Michigan as best served its own interest, resulting in a dilution of the value of the Michigan stock to the injury of the bondholders as pledgees. In view of the contentions made, it is clear that the decisive questions are (1) did Inland so exercise its control of Michigan as to impair the security of the Inland Bonds in violation of its fiduciary duty to its bondholders; and" }, { "docid": "6980162", "title": "", "text": "held the collateral paid himself by selling out the stock of A and B. He then sold out C’s stock and paid over the proceeds to the receiver of the bankrupt. If we are right in understanding that A, B, and C stood in the same relation, and that the stock of each had been wrongfully pledged, then in holding that C was entitled, without contribution, to recover in solido the entire proceeds realized from the sale of his stock the court did not apply the principle intended to be announced in the McIntyre Case, and which was more fully set forth and applied in the case of In re Wilson. The doctrine of the Johnson Case is inconsistent with that announced in the McIntyre Case and in that of In re Wilson, which wa prefer. We think that, when customers authorize their broker to pledge their securities for the payment of the broker’s debts, each becomes to the extent of his pledge a surety for the payment of such indebtedness. As between themselves they become cosureties. All the collateral law-fully so pledged is subject to the same obligation and lien. The owners of the collateral, being in effect cosureties, must be entitled to contribution from each other for any loss sustained if the stock of one is sold to pay the debt for which the stock of the other was equally liable. This right of contribution does not arise from the contract, as already said, but rests upon principles of equity and natural justice. The principle is that where all are equally liable for the payment of a debt all are bound equally to contribute to that purpose. So that if the stock of A, B, and C is lawfully pledged for the payment of the debt of X, the stock of each is under the common burden, and if X sells the stock of A and B, and leaves unsold the stock of C, the latter must contribute to A and B the excess they have paid above their share. But if, on the other hand, the stock" }, { "docid": "11006339", "title": "", "text": "etc., v. City of Avon Park, 311 U.S. 138, 146, 61 S.Ct. 157, 85 L.Ed. 91, 136 A.L.R. 860. But Michigan was not a necessary party to the reorganization, Equitable Trust Co. v. Denney, 7 Cir., 24 F.2d 169, and the fact that Michigan was not in bankruptcy did not preclude the parties who were before the court from claiming property which was within the jurisdiction and custody of the court. The Inland bondholders were parties to the reorganization proceedings and were entitled to participate in the reorganization in order to obtain the full value of their security. The debenture-holders were also parties to the proceedings, asserting their claim to Inland’s assets. With these parties before it, the court considered the respective equities of the claimants in the proceeds of the sale of the Inland estate and determined that the equities were with the bondholders. Under this state of the record we see no lack of jurisdiction. On the facts found by the master, most of which came into the record by stipulation and are not in dispute, all of the appellants contend that under the facts the doctrine of equitable subordination, upon which the District Court based its decision, is not applicable. On the other hand, appellees, in support of the order, contend that Inland mismanaged Michigan through its dividend and depreciation policies and by its failure to make provision for sound financing of Michigan’s expansion program and by creating an enormous debt and issuing preferred stock ahead of the pledged stock, committed a breach of its fiduciary duty to its pledgees, and, since the entire proceeds of the sale are necessary to make Inland bondholders whole, the notes, because of the superior equities of the bondholders, must be subordinated to the common stock of Michigan. It is true that Inland, by reason of its entire ownership and control of Michigan, occupied a fiduciary position requiring scrupulous observance of its obligations to safeguard and preserve the interest of Inland Bonds, and owed to its bondholders, a duty not to impair the value of the Michigan stock. And where there" }, { "docid": "6980170", "title": "", "text": "right thereto than-the bankrupt, the customer is entitled to their possession, and this right is not affected by the fact that the broker has hypothecated the shares. In such a case, the customer is entitled to the shares or their proceeds when returned to the trustee, and the court further held that the customer is entitled to the shares or their proceeds when returned to the trustee if the loan had been paid by the proceeds of other securities pledged therefor. This court said in Re T. A. McIntyre & Co., 181 Fed. 955, 104 C. C. A. 419, in a similar transaction, where stock was improperly pledged by the brokers with a trust company to secure a loan and subsequently sold in satisfaction of that loan, and where the lower court made about the same disposition as it made in, the case at bar: “This is practically applying the principle of general average to the situation. The pledge is treated as a common adventure, the securities sold as a sacrifice for _ the common benefit, to which all interests are required to contribute. We do not think Bippey can be thus required to contribute. If he had been left undisturbed to prosecute the replevin suit, he would have recovered the specific piece of property, which he owned, had identified, and was entitled to. By not appealing from the original order, and by prosecuting his claim of his stock in the bankruptcy court, he did not abandon any of his legal rights, nor obligate himself to contribute to the reimbursement of any one whose stock had been sold.” Where shares of stock deposited by customers with a brokerage partnership were, before bankruptcy of the partnership, wrongfully pledged by it to secure its indebtedness to an innocent pledgee, and after bankruptcy, the pledgee sold enough, of the stock of other customers to pay the indebtedness, and thereafter, in addition, sold stock of the claimant, the latter, the proceeds of the sale of whose stock were traceable intact into bankrupt’s assets, was entitled thereto without contribution as to the other customers. C." }, { "docid": "12486316", "title": "", "text": "stock was unnecessary; that Finley, Barrell & Co. were not restricted to the debt of the bankrupt, but could collect the entire collateral; that even if there liad been full payment as the result of prior sales of collateral, yet Bixby must share in the ultimate fund with Johnson and Schoell-horn on equal terms, because of the doctrine of contribution. As above stated, the evidence shows the application of the proceeds of the prior sales before the Bixby sales, and it shows that such prior sales had left a credit far beyond what was necessary to absorb any possible loss upon the New England stock, which was the sole source of liability not then definitely determined. A considerable amount of stock, including all of that here involved, had been pledged for the sole purpose of collaterally securing this indebtedness. The pledgee could sell any or all of it for that purpose. But, if it elected to dispose of the collateral gradually by piecemeal, then \"it must stop when the proceeds thereof were unquestionably enough to satisfy all possible claim. The entire purpose of the pledge had then been served, and any collateral remaining must be returned to the pledgor. As to contribution, the pledgee had a right to sell the Johnson and the Schoellhorn stock and apply the proceeds, because such action was. necessary to pay its debt. So far as this record shows, the other collateral sold that day belonged to the bankrupt. The balance of such proceeds after payment was, so far as the pledgee was concerned, due the pledgor. But as it sprang from stock wrongfully pledged, and can be traced by the owners of that-stock, it may be made subject to their superior rights. It is the only fund that can be so followed by them. This measures the maximum residue of their converted property which can be legally identified. The then unsold collateral x(including the Bixby stock) was not in asquali jure with the proceeds of the prior sales. This collateral was burdened with no obligation of contribution. It was at that time freed from" }, { "docid": "6980160", "title": "", "text": "brokerage partnership were before bankruptcy of the partnership wrongfully pledged by it to secure its indebtedness to an innocent pledgee, and after bankruptcy the pledgee sold enough of the stock of customers A and B to pay the indebtedness, and thereafter, in addition, sold the stock of customer C. and the proceeds of that sale were traced intact into the bankrupt's assets, C was entitled to reclaim the same without contribution as to customers A and B. In the opinion the court said: “As to contribution, the pledgee had a right to sell the Johnson and tne Schoellhorn stock and apply the proceeds, because such action was necessary to pay its debt. So far as this record shows, the other collateral sold that day belonged to the bankrupt. 'The balance of such proceeds after payment was, so far as the pledgee was concerned, due the pledgor. But as it sprang from stock wrongfully pledged, and can be traced by the owners of that stock, it may. be made subject to their superior rights. It is the only fund that can be so followed by them. This measures the maximum residue of their converted property which can be legally identified. The then unsold collateral (including the Bixby stock) was not in sequali jure with the proceeds of the prior sales. This collateral was burdened with no obligation of contribution. It was at that time freed from the pledge. No such obligation originated in the mere fact of a subsequent wrongful sale by the pledgee. No part of the proceeds of the Bixby stock was, or, under the circumstances, could properly be, applied to the debt. The entire proceeds -of that sale remain intact, and can be traced. The mere fact that such were transmitted to the trustee in a common sum or payment with the above balance does not lessen Bixby’s right therein. It does not create a right in Johnson or Schoellhorn to any part thereof.” In the above case the customers A, B, and C apparently stood in exactly the same relation to the hypothecating bankrupt. The lender who^" }, { "docid": "20975680", "title": "", "text": "bankrupt was the registered or beneficial owner” at the date of adjudication herein “of the following obligations and/or shares in * * * ” Concentrates: “a. One share of common capital stock — par value $500.00. “b. Thirty-five shares class B preferred stock — par value $3,-500.00. “c. Thirty-seven shares capital certificates — par value $3,700.00. “d. Accumulations on b. and c. above —$650.59.” The Referee in his findings recites: “3. That item 2a is a common stock certificate in claimant corporation, a partially cooperative corporation, for which the bankrupt or its predecessor in interest paid the sum of $500.00 in cash. “4. That class B preferred stock and capital certificates both represent a refund of overcharges or a distribution of profit to members of the claimant cooperative corporation based on the profit realized from purchases by such members. Without this return of profit, claimant could not maintain its status as a partially nonprofit cooperative corporation. “6. That although the class B preferred stock and capital certificates might have a sale value, claimant corporation has restricted the right of transfer by providing in both issues that ‘transfer thereof may be withheld pending payment of indebtedness due the association from the holder.’ “9. (Concentrates) has refused to purchase or otherwise acquire the stock and certificates held by the trustee, and (Concentrates’) Secretary-Treasurer has testified that ‘under the (Concentrates’) by-laws’ —which are not in evidence, the corporation (Concentrates) could not voluntarily make such purchase since there was a prescribed order of redemption that would prohibit redemption of these issues until all or a substantial amount of class A preferred stock had first been redeemed.” The Referee concludes: “1. The Bankruptcy Court is a Court of equity and under its equitable powers may subordinate a particular claim to the claims of other creditors to reach a fair and just result.” And, further, that since Concentrates has a contractual right to defer or to set off its obligations under the mentioned “obligations and/or shares” to the extent of mutual indebtedness to it — “It is only equitable that a corresponding right of set off" }, { "docid": "12486317", "title": "", "text": "satisfy all possible claim. The entire purpose of the pledge had then been served, and any collateral remaining must be returned to the pledgor. As to contribution, the pledgee had a right to sell the Johnson and the Schoellhorn stock and apply the proceeds, because such action was. necessary to pay its debt. So far as this record shows, the other collateral sold that day belonged to the bankrupt. The balance of such proceeds after payment was, so far as the pledgee was concerned, due the pledgor. But as it sprang from stock wrongfully pledged, and can be traced by the owners of that-stock, it may be made subject to their superior rights. It is the only fund that can be so followed by them. This measures the maximum residue of their converted property which can be legally identified. The then unsold collateral x(including the Bixby stock) was not in asquali jure with the proceeds of the prior sales. This collateral was burdened with no obligation of contribution. It was at that time freed from the pledge. No such obligation originated in the mere fact of a subsequent wrongful sale by the pledgee. No part of the proceeds of the Bixby stock was or, under the circumstances, could properly be applied to the debt. The entire proceeds of that sale remain intact, and can be traced. The mere fact that such were transmitted to the trustee in a common sum or payment with the above balance does not lessen Bixby’s right therein. It does not create a right in Johnson or Schoellhorn to any part thereof. The judgment of the trial court was correct, and is affirmed. The petition to revise is dismissed. <§^>For other cases see same topic & KEY^NTJMBKit in all Key-Numbered Digests & Indexes" }, { "docid": "15215891", "title": "", "text": "but with a dismissal of the petition to revise, it suffices as a final and appealable decree. Motion to dismiss the appeal is denied. 3. The identical bonds delivered to the bankrupt are not on hand; an equivalent amount of exactly like character is now in the possession of the trustee, and they axe, moreover, directly traceable as the proceeds of those originally delivered. It is conceded that if stock certificates instead of bonds were involved, appellant, as against the trustee representing general creditors, would be entitled to them, whether on the ground of practical identification of fungible articles (Duel v. Hollins, 241 U. S. 523, 36 S. Ct. 615, 60 L. Ed. 1143), or on the analogy of following trust funds. On either basis, however, there would be an obligation of contribution in favor of such owners if any, of the securities sold out by Post & Elagg after bankruptcy as are in appellant’s class in relation to the bankrupt. See Oppenheimer Stockbrokerage Bankruptcies, 37 Harvard Law Review, 860. The referee, however, held, and appellees contend, that bonds are unlike stock certificates; that the former are or are analogous to chattels, like automobiles of a given make, model, and year, each with its own identity and individuality, although for most purposes indistinguishable from one another, while the latter are but tokens of an incorporeal undivided interest in a corporation; that therefore the principles of identification, if not of tracing, are inapplicable; and that as the originally deposited bonds are not on hand, there can be no recovery. The right to trace, and, even without tracing, to obtain like stock certificates on hand is not, however, due to their character as tokens of a chose in action, but to their interchangeability — their fungible nature. In truth, the serial number of a stock certificate identifies it exactly as does the serial number of a bond; in the one as in the other this identification may for some purposes be vital. Oppenheimer, supra, page. 868. But in so far as such certificates are agreed or are deemed in law to be" }, { "docid": "13500347", "title": "", "text": "and other cash and securities which survived the liquidation to the receiver in bankruptcy of Kardos So Burke. This claimant seeks to recover the proceeds of the stock in the omnibus proceeding. The master decided that she had the right to the proceeds, but was overruled by the • District Court, on the ground that the bankrupts never acquired control or dominion over the stock, never converted it, and hence the claimant stood in .no different position from other customers, whose stocks. were lawfully repledged, and must contribute her share of the burden of the loan. So the claimant, instead of recovering in accordance with the report of the master the sum of $4,024.47, which was the aggregate of the proceeds of the Steel & Tube stock and certain other securities held by the bankrupts for her account, had her claim, as finally allowed, reduced to $359.41, because she was compelled to share in the burden of the loan. The trustee relies on the decision of In re Green (C. C. A.) 11 F.(2d) 676. There the brokers had lawfully hypothecated their customer’s stock with his consent. The customer closed his account the day before a petition in bankruptcy was filed against his brokers, by directing the sale of enough of his securities to pay his debit balance. After this was done, he demanded the balance due him, together with the remaining collateral. The brokers paid him part of the balance, and delivered to him some of his securities, but failed to deliver the remainder,'because they were financially unable to take them out of the pledge. Their pledgee closed out the loan and delivered the surplus to the trustee. The customer was denied priority over other marginal customers, who had not closed out their accounts prior to the bankruptcy, on the ground that the original hypothecation was lawful, and the failure to return the collateral was not a conversion, since it was not an act of commission, and did not amount to an assertion of dominion over the stock, but was due solely to a financial inability to redeem the" }, { "docid": "5695014", "title": "", "text": "the conversion of the appellant’s “long” securities and failure to carry them, lost their right to the continued use of collateral deposited as margin on stocks to be actually carried. (4) That for some time prior to the failure the bankrupts owed the appellant the duty of withdrawing the securities in question from the pledge in the Mechanics’ Bank and of surrendering them to him. (5) That, consequently, the securities in question at the time of the failure, stood in the Mechanics’ Bank in the position of securities wrongfxxlly pledged. And, as a corollary to these conclusions, we fxxrther hold that the equities of the appellant entitle him to be placed in class A, instead of in class B. With respect to the claixn of the People’s Bank of Passaic, to which appellant objects: The master, after finding that the banknipts’ checks to the People’s Bank, given for the proceeds of its bonds which had been sold by the bankrupts, was susceptible of immediate certification, had it been presented to the Mechanics’ Bank on which it was drawn, and that the check received by the bankrupts from the purchaser of sxxch bonds was deposited in said Mechanics’ Bank, said: “Althoxxgh there was no conversion of the bonds or the Cohen check, it does not follow that claimant is remediless to impress a trust on the proceeds, upon the equitable principles of mistake. Both parties assumed that Ennis & Stoppani's check on the Mechanics’ National Bank woxxhl he certified and paid. It was susceptible of certification, xxxxd the bonds were delivered ixx reliance on that fact. The messenger coxxld not, by omitting to procxxre its certification, waive the x-ight thereto, and there is nothing in the fact that he deposited the check uxicertified which evinces an intention on the part of his employers to extend credit to Ennis & Stoppani. I am of the opinion that, by the well-settled doctrines of equity, a constructive trust arises in this case, where one party has received property which does not equitably belong to him, and which he cannot in good conscience retain or" } ]

[ { "docid": "19651186", "title": "", "text": "“extrajudicial source” factor, than of an “extrajudicial source” doctrine, in recusal jurisprudence. The facts of the present case do not require us to describe the consequences of that factor in complete. detail. It is enough for present purposes to say the following: First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U. S., at 583. In and of themselves (i. e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U. S. 22 (1921), a World War I espionage case against German-American defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.” Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoy anee, and even anger, that are within the bounds of what imperfect men and women," } ]

[ { "docid": "13583196", "title": "", "text": "district court denied both motions and subsequent motions to reconsider. Messina then filed this appeal. ANALYSIS A. Motion For Recusal and Vacatur of Contempt Order Messina first argues that the district court erred in failing to grant his motion for recusal pursuant to 28 U.S.C. § 455(b)(1). We review de novo. Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir.1989). A federal judge must recuse himself from a proceeding “where he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). Any bias must be proven by compelling evidence, and the issue is whether “a reasonable person would be convinced the judge was biased.” Lac du Flambeau Indians v. Stop Treaty Abuse-Wis., Inc., 991 F.2d 1249, 1255 (7th Cir.1993) (citations omitted). The bias or prejudice “must be grounded in some personal animus or malice that the judge harbors ... of a kind that a fair-minded person could not entirely set aside when judging certain persons or causes.” United States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir.1985). “Judicial rulings alone almost never constitute a valid basis” for a recusal motion. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Even “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to counsel, the parties or their cases, ordinarily do not support a bias or partiality challenge,” unless the remarks “reveal an opinion that derives from an extrajudicial source.” Id. The evidence must reflect a “deep-seated favoritism or antagonism as would make fair judgment impossible.” Id. Likewise, “a judge’s ordinary efforts at courtroom administration— even a stern and short tempered judge’s ordinary efforts at courtroom administration — remain immune.” Id. at 556, 114 S.Ct. 1147. We agree with the district court that Messina has failed to establish any basis for recusal. Messina asserts that Judge Zagel’s decisions against him repeatedly demonstrate an “unremitting bias.” However, Messina makes no attempt to establish any bias stemming from a personal relationship or prior litigation. Instead, he dwells on Judge Zagel’s rulings during the litigation, which absent extraordinary circumstances," }, { "docid": "8378516", "title": "", "text": "basis to reverse the district court. The denial of a new trial for after discovered evidence is affirmed. Carmichael also argues that the district judge did not hear the new trial motion with requisite impartiality. A motion for recusal was denied by the judge at the beginning of the hearing on the motion for a new trial. Every litigant is entitled to be heard by an impartial judge. 28 U.S.C. § 455; e.g. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The standard to be applied is an objective one, to foster not only actual impartiality but also the appearance of impartiality. E.g. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert, denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). On review, the question is whether or not the judge abused his discretion. Phillips v. Joint Legislative Committee, etc., 637 F.2d 1014, 1021 (5th Cir.1981), cert, denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982). The alleged bias must, however, be personal, as distinguished from judicial, in nature. Id. at 1020; Tug Valley Recovery Center v. Watt, 703 F.2d 796, 801 (4th Cir. 1983). A denial of recusal is thus not an abuse of discretion if the complaint is “merely based upon the judge’s rulings in the instant case or related cases ... or attitude derived from his experience on the bench.” Phillips, 637 F.2d at 1020. See e.g. United States v. Grinnell Corp., 384 U.S. 563, 581-83, 86 S.Ct. 1698, 1709-10, 16 L.Ed.2d 778 (1966). The remarks complained of in this case attributed to the trial judge reveal no personal bias. While their use in Carmichael’s brief may not be taken as remarks out of context in the worst sense that phrase is used, the picture they are used to paint comes close to fitting that description. For example, Carmichael objects to “You may get relief from the appellate court but you are not going to get it from me” and “[a hearing] would be an exercise in futility.” Those comments were made in the" }, { "docid": "4578586", "title": "", "text": "Mohorne similarly fails to provide any legal or factual basis to support his position that the bankruptcy court erred in denying his motion to reconsider its denial of Mohorne’s motion to reopen the 2002 bankruptcy case. Recusal in bankruptcy proceedings is governed by 28 U.S.C. § 455, which requires the recusal of a bankruptcy judge “in any proceeding in which his impartiality might reasonably be questioned.” Brown v. Brock, 169 Fed.Appx. 579, 583 (11th Cir.2006). A judge’s rulings will generally not justify recusal. “[A]dverse rulings alone do not provide a party with a basis for holding that the court’s impartiality is in doubt.” Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir.2001) (citation omitted). As the Supreme Court has explained, First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S., at 583, 86 S.Ct., at 1710. In and of themselves (ie., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (alterations added). The bankruptcy judge, whose recusal Mohorne sought, stated that “all of the matters about which the Debtor complains in the Reconsideration Motion relate to my Order Denying Debtor’s Motion for Rehearing and/or Reconsideration entered on December 13, 2007, in the Debtor’s subsequent chapter 13 case.” (Order Denying Debtor’s Emergency Motion for Reconsideration and Recusal [D.E. 1] at 3). Because Mohorne sought recusal purely on the basis of adverse rulings made by the bankruptcy judge, that judge correctly determined" }, { "docid": "19754468", "title": "", "text": "the claim to the Arizona Supreme Court through his petition for special action. The district court found that Cook relied exclusively on Arizona law when arguing that the trial judge should have recused himself. The district court found that the federal claim was technically exhausted, but that the state courts would find that the claim was precluded under Arizona Rule of Criminal Procedure 32.2(a)(3). In Cook’s recusal motion during the PCR proceedings, he only cited Arizona state cases and Arizona Rule of Criminal 1491 Procedure 10.1 and 32.4(e). After an independent judge denied the recusal motion, Cook sought special relief, citing the same rules and Rule 81, Canon 3(c) of the Arizona Rules of Judicial Conduct, which states that a judge should disqualify himself if his impartiality may be reasonably questioned or where the judge has a personal knowledge of disputed evidentia-ry facts concerning the proceeding. In his motion for rehearing, Cook once again relied exclusively on Arizona state law in arguing that the trial judge was biased and should be recused. Cook failed to “indicate a federal law basis for his claim in a state-court petition or brief’ as required by Baldwin, 541 U.S. at 32, 124 S.Ct. 1347. See Peterson, 319 F.3d at 1159. Mere invocations of due process do not meet the “minimal requirement that it must be clear that a federal claim was presented.” Adams, 520 U.S. at 89 n. 3, 117 S.Ct. 1028. Even if Arizona’s standards for determining judicial bias are “somewhat similar” to the federal standard requiring a direct, personal, substantial, pecuniary interest in Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749 (1927), that is insufficient to raise a federal claim. See Duncan, 513 U.S. at 366, 115 S.Ct. 887 (“[M]ere similarity of claims is insufficient to exhaust.”). Failure to exhaust the claim bars federal review. See Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir.2005) (discussing standards for fairly presenting a federal claim). Furthermore, the district court was correct in concluding that the state courts would find the federal claim precluded under Arizona Rule of Criminal Procedure" }, { "docid": "7009479", "title": "", "text": "353 (1993), or, in other words, were likely to have made the difference between conviction and, acquittal. The only error that the petitioners argue requires a new trial regardless of whether it was prejudicial is that the judge who presided at their trial was later convicted of having accepted bribes from criminal defendants in several other cases (including murder cases) around the time when Bracy and Collins were tried. United States v. Maloney, 71 F.3d 645, 650-52 (7th Cir.1995). There is no suggestion that Bracy and Collins bribed or offered to bribe him. The argument rather is that Judge Maloney came down hard on criminal defendants in cases in which he was not bribed, to avoid suspicion that he was on the take, to cancel any bad impression that his acquittals might make on the voters— maybe even to make defendants desperate to bribe him, fearing he would punish them with adverse rulings if they did not. There is no evidence, but only conjecture, that Maloney actually did lean over backwards in favor of the prosecution in this or any other case in which he was not bribed; did, that is, rule against the defense only because he was taking bribes in other cases. Collins argues that evidence is unnecessary, and Bracy that if it is necessary their request for discovery should have been granted.: A judge could be biased and yet the bias not affect the outcome of the case. But judicial bias is one of those “structural defects in the constitution of the trial mechanism,” as distinct from mere “trial errors,” that automatically entitle a petitioner for habeas corpus to a new trial. Brecht v. Abrahamson, supra, 507 U.S. at 629, 113 S.Ct. at 1717; see Sullivan v. Louisiana, supra, 508 U.S. at 278-79, 113 S.Ct. at 2081; Turney v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927); Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir.1995). What is bias? Defined broadly enough, it is a synonym for predisposition, and no one supposes that judges are blank slates. There are prosecution-minded judges, and" }, { "docid": "13749692", "title": "", "text": "Finally, under section 2254(d)(2), this court should review the “ultimate decision” of the Texas courts, not “every jot of [their] reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001). Thus, instead of focusing on the reasoning of state courts in denying Richardson relief, we will focus on the outcome of their decisions. B. Appearance of Bias Richardson argues that Judge Henry Wade, Jr. appeared to be biased, and that an appearance of bias in a trial judge is a “structural error,” a constitutional error subject to automatic reversal without the use of harmless error review. Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999). Structural errors occur only in a very small class of cases, such as when a trial judge is actually biased. Id. (citing Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)). Richardson contends that, under Supreme Court precedent, both actual bias and the appearance of bias in a trial judge constitute structural errors because they both violate a defendant’s due process rights. Thus, Richardson argues, the Texas court of appeals improperly applied harmless error review after finding that the trial court erred in refusing to recuse Judge Henry Wade, Jr. Under 28 U.S.C. § 2254(d)(1), we may-grant Richardson’s application for a writ of habeas corpus only if his incarceration was the product of a state court adjudication that violated his clearly established rights under the Due Process Clause as they are set forth in Supreme Court precedent. Buntion, 524 F.3d at 671 (holding that the district court erred by relying on sources outside of clearly established Supreme Court precedent and by evaluating the state judge’s behavior under the Texas Code of Judicial Conduct). Richardson has not alleged a violation of any other right, and we do not have jurisdiction to determine his rights under federal or state recusal statutes or ethical canons as such. Under the Due Process Clause, a criminal defendant is guaranteed the right to a fair and impartial tribunal. Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 1797, 138 L.Ed.2d 97" }, { "docid": "11442188", "title": "", "text": "petitioner’s right to the process of subpoena. Near the conclusion of the hearing, a colloquy took place between the Trial Examiner and counsel for petitioner, the material portion of which we set forth in a footnote. Counsel for petitioner insists this statement by the Examiner was tantamount to a confession of prejudice by him, while the Board argues that it merely indicates a purpose on his part to preserve the record for determination on the merits. While we have no way of knowing, of course, just what induced the Examiner to make such a statement, to us the natural inference is that he realized the record was subject to attack because of his biased conduct and sought to forestall such attack by threatening counsel with exposure or counter-attack. At any rate, his statement is consistent with and lends support to our conclusion that petitioner was deprived of the character of hearing to which by law it was entitled. The Act authorizes the Board to enter an order upon a complaint alleging unfair labor practices, only after a “hearing.” This must mean a trial by a tribunal free from bias and prejudice and imbued with the desire to accord to the parties equal consideration. There is perhaps no more important right to which litigants are entitled than that they be given such a trial. Its impairment, ipso facto, brings the court, and administrative bodies as well, into public disrepute, and destroys the esteem and confidence which they have enjoyed so generally. Time and experience have demonstrated that the public, as well as litigants, will tolerate the honest mistakes of those who pass judgment, but not the biased acts of those who would deprive litigants of a fair and impartial trial. Foremost among the responsibilities imposed upon a reviewing court, is to make sure that this foundation ‘of our Judicial system be not undermined. That a trial by a biased judge is not in conformity with due process is sustained by the authorities. In Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 50 A.L.R. 1243, the" }, { "docid": "8731444", "title": "", "text": "this appeal. I Plaintiff argues that the trial judge should have recused himself because Clyde Worthen, a former law clerk of the judge and one of defendant’s trial counsel, handled the probate of the estate of the judge’s deceased mother during discovery in this case. The judge brought the representation to plaintiff’s attention after the trial but denied plaintiff’s recusal motion. We may reverse that denial on appeal only if the judge abused his discretion. Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.1982), cert. denied, — U.S.-, 104 S.Ct. 69, 78 L.Ed.2d 83 (1984). We find no abuse of discretion in that denial. Under 28 U.S.C. § 144, a federal judge may be disqualified upon a showing of actual bias or prejudice. Plaintiff’s motion did not allege that the trial judge was biased against her. See United States v. Professional Air Traffic Controllers Organization, 527 F.Supp. 1344, 1357 (N.D.Ill.1981) (\"[Pjersonal bias or prejudice refers to some sort of antagonism or animosity toward a party arising from sources or events outside the scope of a particular proceeding.”). Plaintiff does not suggest that the trial judge made any adverse comments about her or her lawsuit, that the judge had personal knowledge of evidentiary facts, that any of his rulings were the product of bias, that he had any personal interest or financial stake in the litigation, or that he was partial toward defense counsel. See Code of Judicial Conduct for United States Judges Canon 3 C (Judicial Conference of the United States 1983). Our review of the record available to us reveals no evidence of less than even-handed treatment of the parties. In short, plaintiff does not make any allegations or present any proof that she lost the case because of the judge’s bias, or that bias influenced the judge’s rulings. Any claim for disqualification must be based, if at all, on 28 U.S.C. § 455(a). Under that section, “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” In United States v. Hines," }, { "docid": "2331098", "title": "", "text": "for habeas relief. We reject Brown’s claim that he was entitled to review the sealed security report in order to frame his arguments with respect to the security measures. Specifically, Brown argues that he has a right to know what security measures were employed in areas off limits to him and his counsel, but visible to jurors and therefore possibly prejudicial. However, Brown’s counsel attended hearings regarding the issue of security at which the trial court described generally all security measures and offered (and solicited) suggestions to neutralize their possible prejudicial effect. His counsel also participated in the voir dire of potential jurors designed to negate possible prejudice arising from the security measures. Nothing in the public record indicates that there were any security measures visible to jurors but concealed from Brown or his counsel. In any event, on habeas review, the district court examined the security report in camera and found that disclosure was not justified; this procedure is adequate to protect due process and the adversarial system. Nothing in the Constitution requires the state courts to share with defendants or their lawyers (revolutionary or otherwise) reports concerning courthouse security. V. Impartiality of the Presiding Judge The trial judge ran for reelection soon after Brown’s trial and, in his campaign literature, touted the conviction and tough sentence in this Brink’s case. Brown argues that the trial judge’s post-conviction conduct impugns the impartiality of the tribunal and violates due process. Brown claims that the conduct and rulings of the trial judge during the criminal proceedings, while not overtly biased, should be deemed biased retrospectively because of the possibility that his conduct and rulings were tainted by political motives. “[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948). See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927) (“matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion”). Mere allegations of judicial bias or prejudice" }, { "docid": "10869063", "title": "", "text": "clearly established, this standard is inherently vague. Murchison, 349 U.S. at 136, 75 S.Ct. 623, 99 L.Ed. 942 (noting that the impermissible interest that might cause an average person as a judge to stray from impartiality “cannot be defined with precision.”). ' Application of this vague standard, when viewed through the deferential lens of Williams v. Taylor and the AEDPA, necessarily leaves state courts considerable latitude to pronounce rulings that do not contradict, and are reasonable applications of, Murchison and [Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ]. This is especially true when the allegations of bias do not relate to pecuniary interests or procedural infirmities, but rather, relate to alleged personal animosity and instances of stern courtroom administration. In instances of “closed proceedings that evade outside review, the appearance of impartiality is great ... and due process may require disqualification.” Id. at 1013. The peculiar facts of this case, however, are different because the egregious nature of the evidence presented at trial minimized any possible effect of the ex parte meeting. The Nebraska state courts reasonably concluded that any possible appearance of impartiality, in this case, was de minimis. The “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). In this instance, the state courts could reasonably find that any disdain Judge Finn possessed for Ryan was motivated by evidence and testimony presented at trial. It is unlikely that any statements by the families could have altered Judge Finn’s sentencing. Thus, although we believe that Judge Finn’s ex parte meeting with the victims’ families was improper, we hold that under the highly deferential standard mandated by the AEDPA, we cannot find that Nebraska Supreme Court’s conclusions were an unreasonable application of controlling Supreme Court precedent, nor did" }, { "docid": "2331099", "title": "", "text": "state courts to share with defendants or their lawyers (revolutionary or otherwise) reports concerning courthouse security. V. Impartiality of the Presiding Judge The trial judge ran for reelection soon after Brown’s trial and, in his campaign literature, touted the conviction and tough sentence in this Brink’s case. Brown argues that the trial judge’s post-conviction conduct impugns the impartiality of the tribunal and violates due process. Brown claims that the conduct and rulings of the trial judge during the criminal proceedings, while not overtly biased, should be deemed biased retrospectively because of the possibility that his conduct and rulings were tainted by political motives. “[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948). See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927) (“matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion”). Mere allegations of judicial bias or prejudice do not state a due process violation. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 1584, 89 L.Ed.2d 823 (1986). The constitutional validity of a judge’s qualifications is not implicated unless the judge has a “direct, personal, substantial, pecuniary interest” in reaching a particular conclusion in a case. Tumey, 273 U.S. at 523, 47 S.Ct. at 441. In New York State, some judges are appointed and some are elected. Whatever the advantages may be of electing judges, no one can be surprised if campaign literature exploits community concern about crime. What the trial judge said during his reelection may well justify disapproval by the bar, the state legislature or a discerning electorate, but it is not fundamentally different from the kind of appeal that elected judges make when they urge that they are tough on crime, or compassionate, or strict with polluters. The campaign literature of the type at issue here did not create, post hoc, a disqualifying interest of constitutional dimension. Brown claims that a causal relationship between the" }, { "docid": "22841375", "title": "", "text": "and 32.4(e). After an independent judge denied the recusal motion, Cook sought special relief, citing the same rules and Rule 81, Canon 3(c) of the Arizona Rules of Judicial Conduct, which states that a judge should disqualify himself if his impartiality may be reasonably questioned or where the judge has a personal knowledge of disputed evidentiary facts concerning the proceeding. In his motion for rehearing, Cook once again relied exclusively on Arizona state law in arguing that the trial judge was biased and should be recused. Cook failed to “indicate a federal law basis for his claim in a state-court petition or brief’ as required by Baldwin, 541 U.S. at 32, 124 S.Ct. 1347. See Peterson, 319 F.3d at 1159. Mere invocations of due process do not meet the “minimal requirement that it must be clear that a federal claim was presented.” Adams, 520 U.S. at 89 n. 3, 117 S.Ct. 1028. Even if Arizona’s standards for determining judicial bias are “somewhat similar” to the federal standard requiring a direct, personal, substantial, pecuniary interest in Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749 (1927), that is insufficient to raise a federal claim. See Duncan, 513 U.S. at 366, 115 S.Ct. 887 (“[M]ere similarity of claims is insufficient to exhaust.”). Failure to exhaust the claim bars federal review. See Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir.2005) (discussing standards for fairly presenting a federal claim). Furthermore, the district court was correct in concluding that the state courts would find the federal claim precluded under Arizona Rule of Criminal Procedure 32.2. See Peterson, 319 F.3d at 1161 (noting failure to fairly present federal claim coupled with time limits for filing petition for review procedurally defaults the claim, requiring a showing of cause and prejudice). As with Cook’s other claims, he has not shown cause to excuse his procedural default. Nor has Cook established that the default results in any fundamental miscarriage of justice. Therefore, the district court properly found that Cook’s claim concerning the bias of the trial judge was procedurally defaulted. YI. Sentencing consideration claims." }, { "docid": "22797014", "title": "", "text": "facts, entertain significant doubt that justice would be done absent recusal?” United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992) (citing DeLuca v. Long Island Lighting Co., Inc., 862 F.2d 427, 428-29 (2d Cir.1988)). A federal judge shall also recuse himself “[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” § 455(b)(1). We review a district judge’s denial of a recusal motion only for abuse of discretion. See United States v. Morrison, 153 F.3d 34, 48 (2d Cir.1998). No abuse of discretion occurred here. In Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), the Supreme Court held that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Id. at 555, 114 S.Ct. 1147. The Court further stated that opinions formed by a judge on the basis of facts introduced or events occurring in the course of judicial proceedings do not constitute a basis for recusal unless they indicate that the judge has “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id.; In re Int’l Bus. Mach. Corp., 45 F.3d 641, 644 (2d Cir.1995). Roman’s motion for recusal relied on the judicial rulings on wiretap applications and a co-defendant’s motion to suppress that were issued by the district court in the exercise of its judicial duties. Since the court’s rulings were events that “occurred in the course of judicial proceedings, and neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible,” Liteky, 510 U.S. at 556, 114 S.Ct. 1147; see United States v. Conte, 99 F.3d 60, 65 (2d Cir.1996), Roman’s motion failed to show that there was an objectively reasonable basis for questioning the judge’s impartiality under § 455(a), see United States v. Colon, 961 F.2d 41, 44 (2d Cir.1992) (stating that “earlier adverse rulings, without more, do not provide a reasonable basis for questioning a judge’s impartiality.”). Moreover, Judge Nevas noted that since he did not have any “personal" }, { "docid": "22278344", "title": "", "text": "... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b)(1) further provides that the judge shall disqualify himself “[wjhere he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). The Supreme Court analyzed the evolution of these sections and the scope of their application in Liteky v. United States, 510 U.S. 540, 543-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Liteky addressed both courtroom bias and the extrajudicial source doctrine, the situation in which a judge is allegedly biased based on information acquired outside of judicial proceedings. Id. at 554-55,114 S.Ct. 1147. The Court held that judicial rulings or information acquired by the court in its judicial capacity will rarely support recusal. Id. at 555, 114 S.Ct. 1147. The Court explained that if information is acquired during court proceedings, only exceptionally inflammatory information will provide grounds for recusal based on bias or prejudice: [Ojpinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Id. The Court also held that extrajudicial sources are neither necessary nor sufficient alone to warrant recusal on bias or prejudice grounds. Id. at 554, 114 S.Ct. 1147. We have described the extrajudicial source factor as involving “something other than rulings, opinions formed or statements made by the judge during the course of trial.” United States v. Holland, 519 F.3d 909, 914 (9th Cir.2008). We have provided an objective test for determining whether recusal is required: “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Clemens v. U.S. Dist. Court for the Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir.2005). We have also noted several factors that are ordinarily insufficient to require recusal including the following: [T]he" }, { "docid": "21990373", "title": "", "text": "witness statements to the government under the Jencks Act, 18 U.S.C. § 3500; (2) denied defense motions to strike jurors for cause; (3) overruled defense objections to hearsay and opinion testimony of government witnesses and excluded as hearsay testimony of a defense witness; and (4) limited the scope of defense cross-examination. But “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147 (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)). “Almost invariably, they are proper grounds for appeal, not for recusal.” Id. “In and of themselves (ie., apart from surrounding comments or accompanying opinion), they ... can only in the rarest circumstances evidence the degree of favoritism or antagonism required when no extrajudicial source is involved.” Id. The isolated unfavorable rulings the appellants cite in the course of a trial proceeding lasting some nine months do not constitute such “rare circumstances.” Nor does the fact that the judge may have ruled in favor of the government more often than he did in favor of the defense, as the appellants contend, by itself show bias. See Edmond, 52 F.3d at 1100 (“Appellants do not claim that a greater percentage of government requests than defense requests were granted, but even if that were the case such a disproportion would be insufficient by itself to establish bias.” (citing United States v. Pisani, 773 F.2d 397, 402 (2d Cir.1985) (“[A] trial judge must rule on countless objections, and a simple numerical tally of those sustained and overruled, one which here favors the government, is not enough to establish that the scales of justice were tipped against a defendant.”))). The record here does not show that the judge did so disproportionately or unjustifiably. Second, the appellants cite allegedly biased procedural decisions by the trial judge during both voir dire and trial. Initially, we note that the appellants have not appealed any of the individual procedures as error by itself but instead assert that cumulatively (and in conjunction with rul ings and comments) they" }, { "docid": "22101260", "title": "", "text": "28 U.S.C. § 455(a) on the ground that the comments the judge had made in the summary judgment order demonstrated a lack of impartiality. Section 455 imposes an affirmative duty upon judges to recuse themselves when “ ‘a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.’ ” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir.1993) (quoting In re Yagman, 796 F.2d 1165, 1179 (9th Cir.1986)). We review for abuse of discretion a district court’s denial of a recusal motion. See id. The provisions of section 455 “require recusal only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir.1988). In Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474, (1994), the Supreme Court further explained the narrow bases for recusal: Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.... [Ojpinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. at 555, 114 S.Ct. 1147. Leslie’s allegations stem entirely from the district court judge’s adverse rulings. That is not an adequate basis for recusal. See, e.g., United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir.1997); Taylor v. Regents of the Univ. of Cal., 993 F.2d 710, 712-13 (9th Cir.1993); Toth, 862 F.2d at 1388. The district court did not abuse its discretion in denying Leslie’s recusal motion. In fact, the procedural history of this case reveals that the district court has been extremely indulgent of Leslie, repeatedly granting" }, { "docid": "8239071", "title": "", "text": "the judge’s comments in the jury’s presence did not deny Defendants a fair trial. See United States v. Harrison, 296 F.3d 994, 1007 (10th Cir.2002) (rejecting judicial-misconduct claim in part because judge instructed jury that it should not infer from his conduct that he had any opinion on the issues before the jury). We now turn to Defendants’ claim that the trial judge’s bias required recusal under 28 U.S.C. § 455. The issue before us is whether “sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge’s impartiality.” United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir.2000). The factual grounds relied upon by Defendants all concern the conduct of the trial itself. Such evidence ordinarily will not suffice to establish bias warranting recusal. As the Supreme Court has stated: “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.... [They] can only in the rarest circumstances evidence the degree of favoritism or antagonism required” for recusal. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). And “[a] judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration — remain immune.” Id. at 556, 114 S.Ct. 1147. “[Expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display” do not support a bias challenge “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. at 555-56, 114 S.Ct. 1147. Our examination of the matters raised in Defendants’ briefs (including statements by the judge outside the jury’s presence) reveals that the district judge’s conduct fell far short of the sort of impropriety that would support reversal for failure to recuse under § 455. The district court did not err in denying Defendants’ motion for a new trial on the ground of bias. D. Ms. Erickson s Ineffective-assistance Claim Finally, Ms. Erickson contends that her trial counsel rendered ineffective assistance by" }, { "docid": "18006142", "title": "", "text": "Czekalski retained her pay grade and her SES status and there is evidence that her new position — far from harming her current or future professional prospects — in fact proved vital, visible and prestigious. Although Czekalski put on evidence and argued that the new position lacked import when Do-nohue assigned her to it in 1997, the DOT countered with evidence that the position was regarded as critical even at that early date. We see no reason to disturb the jury’s verdict as to this dispute. Because the evidence is not “ ‘so one-sided that reasonable men and women could not disagree,’ ” Curry, 195 F.3d at 659 (D.C.Cir.1999) (quoting Smith, 135 F.3d at 782), on whether Czekalski “experienced materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities,” Forkkio, 306 F.3d at 1131, we agree with the magistrate judge that a new trial is not warranted on this ground. D. Bias Czekalski also argues that a new trial is required because the magistrate judge made several statements and evidentiary rulings that manifested bias against her and deprived her of “a fair and impartial trial.” Appellant’s Br. 40. Judicial comments during trial establish bias if “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see United States v. Carson, 455 F.3d 336, 355 (D.C.Cir.2006). “Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.” Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147. Having reviewed the trial transcript, including the portions Czekalski highlights, we see no indicia of “a high degree of favoritism or antagonism” requiring a new trial in this case. Id. at 555, 114 S.Ct. 1147. Moreover, “judicial rulings alone almost never constitute a valid basis” for an allegation of bias, id., and we see none here that would support reversal on that ground. For the" }, { "docid": "22700510", "title": "", "text": "might have viewed the evidence differently, we cannot say that no reasonable fact-finder could come to the same conclusion as the IJ. We conclude that the IJ’s adverse credibility finding is supported by substantial evidence as judged under the standards of the new Act. We thus deny petitioner’s requested relief that was predicated on the grounds of the IJ’s alleged improper determination of demeanor and identity. V. IJ’s Alleged Bias The final ground for relief urged by Wang is couched as a denial of due process based upon the alleged bias of the IJ. It is questionable whether this ground was properly raised before the BIA. Assuming without deciding that the question is properly before us, we .overrule this ground as well. Wang contends that the IJ was biased against her and impermissibly injected herself in the proceedings turning into a “prosecutor” rather than a neutral arbiter. We agree with Wang that a due process violation can be premised upon the absence of a neutral arbiter. We disagree that she has shown such a situation here. Wang relies upon the Supreme Court’s decision in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), a criminal case. In that case, the Court made clear that a finding of bias supporting recusal based upon conduct by the judge in a hearing or trial is very rare: “[Jjudicial rulings alone almost never constitute a valid basis for a bias or partiality motion .... [Ojpinions formed by the judge on the basis of facts introduced or events occurring in the course of the ... proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. at 555., 114 S.Ct. 1147 The Court explained further: “[Jjudicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. Of importance to the Court was the source and degree of such hostility: “[Remarks may" }, { "docid": "18088179", "title": "", "text": "prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1). “A district court judge must recuse himself where a reasonable person with knowledge of the all facts would conclude that the judge’s impartiality might reasonably be questioned.” Dandy, 998 F.2d at 1349 (quotation marks omitted). This is an objective standard. Id. As explained in Liteky v. United States: It is wrong in theory, though it may not be too far off the mark as a practical matter, to suggest, as many opinions have, that “extrajudicial source” is the only basis for establishing disqualifying bias or prejudice. It is the only common basis, but not the exclusive one, since it is not the exclusive reason a predisposition can be wrongful or inappropriate. A favorable or unfavorable predisposition can also deserve to be characterized as “bias” or “prejudice” because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. 510 U.S. 540, 551, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Defendants argue that the district court was biased because of: 1) comments made by the judge about the “culture of corruption” in Clay County at the sentencing hearing on a related case of Kenneth Day, who ultimately testified against Maride at trial; 2) that in the judge’s Memorandum Opinion and Order on Maricle’s bond conditions, the court “found Mr. Day’s testimony to be credible” based on his appearance before the judge in other cases; and 3) comments made by the court" } ]

[ { "docid": "22880263", "title": "", "text": "Mb, Justice Rehnquist delivered the opinion of the Court. This is another in the line of cases in which the Court has had occasion to consider the limits imposed by the Equal Protection Clause of the Fourteenth Amendment on legislation apportioning representation in state and local governing bodies and establishing qualifications for voters in the election of such representatives. Reynolds v. Sims, 377 U. S. 533 (1964), enunciated the constitutional standard for apportionment of state legislatures. Later cases such as Avery v. Midland County, 390 U. S. 474 (1968), and Hadley v. Junior College District, 397 U. S. 50 (1970), extended the Reynolds rule to the governing bodies of a county and of a junior college district, respectively. We are here presented with the issue expressly reserved in Avery, supra: “Were the [county’s governing body] a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the' organization’s functions.” 390 U. S., at 483-484. The particular type of local government unit whose organization is challenged on constitutional grounds in this case is a water storage district, organized pursuant to the California Water Storage District Act, Calif. Water Code § 39000 et seq. The peculiar problems of adequate water supplies faced by most of the western third of the Nation have been described by Mr. Justice Sutherland, who was himself intimately familiar with them, in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 156-157 (1935): “These states and territories comprised the western third of the United States — a vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico — an area greater than that of the original thirteen states — the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation. “In the" } ]

[ { "docid": "23217761", "title": "", "text": "uses. Id., at 183-184. The court therefore concluded that the Salt River District does not serve the sort of special, narrow purpose that proved decisive in Salyer. 613 F. 2d, at 183-184. Moreover, though it recognized that the District has $290 million of general obligation bonds outstanding that are secured by a lien on lands owned by the voting members, the Court of Appeals found it significant that all the general obligation bonds have so far been serviced out of the District’s electricity revenues, and that all capital improvements have been financed by revenue bonds, which have been issued in the amount of $600 million, and which are junior to the general obligation bonds. Id., at 184. The court thus concluded that the actual financial burden of running the District has not fallen primarily on the voting landowners, and therefore that the activities of this water district, unlike those of the district in Salyer, do not disproportionately affect landowners as such. 613 F. 2d, at 184-185. The Court of Appeals was correct in conceiving the question in this case to be whether the purpose of the District is sufficiently specialized and narrow and whether its activities bear on landowners so disproportionately as to distinguish the District from those public entities whose more general governmental functions demand application of the Reynolds principle. We conclude, however, that, in its efforts to distinguish Salyer the Court of Appeals did not apply these criteria correctly to the facts of this case. III Reynolds v. Sims, supra, held that the Equal Protection Clause requires adherence to the principle, of one-person, one-vote in elections of state legislators. Avery v. Midland County, 390 U. S. 474, extended the Reynolds rule to the election of officials of a county government, holding that the elected officials exercised “general governmental powers over the entire geographic area served by the body.” 390 U. S., at 485. The Court, however, reserved any decision on the application of Reynolds to “a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents.” 390 U. S., at" }, { "docid": "17666561", "title": "", "text": "A. Applicability of Salyer Test Appellants challenge the voter qualification requirements for election of District officials, claiming that these requirements violate the equal protection clause of the fourteenth amendment by invidiously discriminating against them and persons similarly situated who own less than one acre of real property. In Salyer Land Co. v. Tulare Water District,;410 U.S. 719, 98 S.Ct. 1224, 35 L.Ed.2d 659 (1973), plaintiff challenged the voting system for a water district that allowed only landowners to vote, with votes apportioned according to the assessed valuation of the land owned. Tracing the development of equal protection analysis of apportionment and voter qualifications in local elections, the Supreme Court observed that in cases invoking a rigid one person, one vote standard, the local entities involved exercised “general governmental power” or performed “important governmental functions.” Id. at 727, 93 S.Ct. 1224. By contrast, the water storage district in Salyer, “although vested with some typical governmental powers, ha[d] relatively limited authority.” Its primary purpose was simply to provide for the acquisition, storage, and distribution of water within the district. It provided “no other general public services” such as schools, fire or police protection, buses, or roads. Moreover, the Court noted, the district’s actions “disproportionately affect landowners,” thus supporting limitation of the franchise to them. Id. at 728-29, 93 S.Ct. 1224. By distinguishing the Tulare Water Storage District from the government bodies involved in previous representation decisions, the Court explicitly denied the applicability of strict one person, one vote equal protection analysis to such special districts. See Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 68, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978). The Court based this distinction largely upon its decisions in Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) and Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Avery involved an equal protection challenge to the method of selecting Midland County, Texas, officials that gave disproportionate influence to voters in thinly populated districts. The Court stated the general rule: When the State apportions its legislature, it must have" }, { "docid": "19875678", "title": "", "text": "Reynolds, “[t]he consistent theme ... is that the right to vote in an election is protected by the United States Constitution against dilution or debasement.” Id. 397 U.S. at 54, 90 S.Ct. at 794. The Court has fashioned a narrow exception to this rule. In Ball, 451 U.S. at 355, 101 S.Ct. at 1812-13, and Salyer Land Co., 410 U.S. at 719, 93 S.Ct. at 1225, the Court held the one person, one vote rule does not apply to units of government having a narrow and limited focus which disproportionately affects the few who are entitled to vote. In Salyer, the Court reasoned the defendant water district had relatively limited authority because it provided only for the acquisition, storage, and distribution of water for farming in a localized basin. The Court specifically noted the water district offered “no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.” 410 U.S. at 728-29, 93 S.Ct. at 1229-30. Nor did it exercise “what might be thought of as ‘normal govemmen- tal’ authority, but its actions disproportionately affect landowners” in the Tulare Lake Basin. Id. at 729, 93 S.Ct. at 1230. In Ball, the water district provided additional services, “more diverse and affect[ing] far more people,” 451 U.S. at 365, 101 S.Ct. at 1818, generating electricity and selling it to Phoenix and other cities to meet most of the district’s revenue needs. These added services, however, did not create distinctions which “amount to a constitutional difference.” Id. at 366, 101 S.Ct. at 1818. The Court summarized: [T]he District simply does not exercise the sort of governmental powers that invoke the strict demands of Reynolds. The District cannot impose ad valorem property taxes or sales taxes. It cannot enact any laws governing the conduct of citizens, nor does it administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services. Id. (emphasis added). Thus, while an entity’s “nominal public character,” id. at 368, 101 S.Ct. at 1819, may shield it from" }, { "docid": "2168644", "title": "", "text": "L.Ed.2d 45 (1968), and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) require strict adherence to the principle of one-person, one-vote in elections. Even in these cases, the Supreme Court has recognized that “there might be some ease in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportion ately affect different groups that a popular election in compliance with Reynolds ... might not be required____” Hadley, 397 U.S. at 56, 90 S.Ct. at 795. The Supreme Court found such a case in both Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) and Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). In Salyer, the Supreme Court upheld a voter qualification statute which restricted voting to landowners and apportioned voting power for directors of the water district upon the assessed valuation of the voting landowner’s property. Although the district did exercise some governmental powers, such as the power to hire and fire workers, condemn private property, issue general obligation bonds, and contract for the construction of projects, the Court also noted that this authority was limited because the district’s primary purpose was for the acquisition, storage and distribution of water. The Court further recognized that the financial burdens fell on the landowners in proportion to the benefits they received from the district, and that the district’s actions therefore disproportionately affected the voting landowners. Based upon these circumstances, the Court applied the rational basis test and concluded that the restrictions were constitutional. In Ball, the Court also upheld the constitutionality of an Arizona method of electing directors for an agricultural improvement and power district which limited voter eligibility to landowners and apportioned voting power based on acreage owned. The Court found that the district did not “exercise the sort of governmental powers that invoke the strict demands of Reynolds.” Id. at 366, 101 S.Ct. at 1818. The Court further described the district’s functions as “relatively narrow,” noting that the" }, { "docid": "19875676", "title": "", "text": "the Board “is not simply an agricultural promotion or marketing agency or an entity which deals with matters disproportionately affecting those who elect it. The Board has broad regulatory powers which affect all residents of Kansas daily.” Id. at 1513. The Board challenges these findings and the conclusions of law they propagate, arguing: (1) the district court should have permitted the Kansas legislature to remedy the voting procedures; (2) the legislature is an indispensable party; (3) the Secretary and Board members have been constitutionally appointed by operation of law; (4) the Board cannot independently exercise legislative powers; and (5) the voting procedures are subject only to rational review to uphold their constitutionality. That is, the Board maintains the voting procedure here is preserved by the explicit reservation for “a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other corn stituents.” Avery v. Midland County, Tex., 390 U.S. 474, 483-84, 88 S.Ct. 1114, 1119-20, 20 L.Ed.2d 45 (1968). The Court articulated this exception in Salyer Land Co. v. Tulare Lake Basin Water Stor. Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981); and the Board urges we apply it here. II. One Person, one vote Our review must begin with the principle announced in Reynolds and recited in its progeny that “in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack.” Hill v. Stone, 421 U.S. 289, 295, 95 S.Ct. 1637, 1642, 44 L.Ed.2d 172 (1975) (citing Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969)). The breadth of this mandate does not tolerate constitutional distinctions on the basis of the purpose of the election or the function— legislative or administrative — of the elected official. Hadley v. Junior College Dist., 397 U.S. 50, 54-56, 90 S.Ct. 791, 794-95, 25 L.Ed.2d 45 (1970). In the line of eases stemming from" }, { "docid": "3928612", "title": "", "text": "first impression because courts have not addressed whether an administrative agency with state-wide jurisdiction may qualify for the limited franchise selection process addressed in Supreme Court cases such as Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) and Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). As the court stated in its previous opinion, “there is no case to which the court was cited or which its own research has uncovered that shares the particular salient characteristics of this one.” Hellebust v. Brownback, 824 F.Supp. 1511 (D.Kan.1993). However, that does not mean that this court sees its decision, as the law presently stands, as anything but the necessary conclusion to be reached under all the circumstances here. Courts sometimes will find that an appeal has a strong likelihood of success “where the legal questions were substantial and matters of first impression.” Sweeney v. Bond, 519 F.Supp. 124, 132 (E.D.Mo.1981), affd, 669 F.2d 542 (8th Cir.), cert. denied sub nom., Schenberg v. Bond, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). Theoretically, a higher court could develop an exception or could broaden the application of the settled precedent in Salyer and Ball to result in an agency like the KSBA being allowed a limited franchise exception to the “one person, one vote” requirement of the Fourteenth Amendment. If such a court chooses to do so, so be it. However, this court does not think that the KSBA, which exercises general governmental powers, falls within the narrow exception for governmental entities which have a special limited purpose and the activities of which have a disproportionate effect on those who may vote for its officials under presently settled equal protection jurisprudence. Avery v. Midland County, 390 U.S. 474, 483-84, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45 (1968). Although predicting the future is hazardous, neither does the court see any real indication that this is the case on which higher courts may seize to change the thrust of the voting rights decisions. Therefore, although the" }, { "docid": "23217783", "title": "", "text": "scheme that the 40% of District acreage owned by corporations and municipalities is not voted at all. The lands owned by the corporations and cities are exclusively streets, alleys, canal rights of way, and the bed of the Salt River. Moreover, those lands are not subject to the District’s acreage-based taxing power. Finally, it can hardly be said that the legislature acted irrationally in limiting voting eligibility to landowners who were otherwise qualified electors under state law. Justice Powell, concurring. I concur fully in the Court’s opinion, and write separately only to emphasize the importance to my decision of the Arizona Legislature’s control over voting requirements for the Salt River District. The Court previously has held that when a governmental entity exercises functions that are removed from the core duties of government and disproportionately affect a particular group of citizens, that group may exercise more immediate control over the management of the entity than their numbers would dictate. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U. S. 719 (1973). See Hadley v. Junior College District, 397 U. S. 50, 56 (1970); Avery v. Midland County, 390 U. S. 474, 483-484 (1968). This rule is consistent with the principle of “one person, one vote” applicable to the elections of bodies that exercise general governmental powers. Reynolds v. Sims, 377 U. S. 533 (1964). The Salt River District is a governmental entity only in the limited sense that the State has empowered it to deal with particular problems of resource and service management. The District does not exercise the crucial powers of sovereignty typical of a general purpose unit of government, such as a State, county, or municipality. Our cases have recognized the necessity of permitting experimentation with political structures to meet the often novel problems confronting local communities. E. g., Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71-72 (1978). As this case illustrates, it may be difficult to decide when experimentation and political compromise have resulted in an impermissible delegation of those governmental powers that generally affect all of the people to a body with" }, { "docid": "8432000", "title": "", "text": "activities. It has adopted and amended a comprehensive water pollution abatement plan, and is planning future mass transit systems to accommodate population growth. It has established programs to combat drug-abuse problems related to its transit operations. The powers actually exercised by Metro are enough to place it clearly within the scope of the one person, one vote principle if its governing body is elected. However, the powers possessed but not exercised — or not yet exercised — must also be included in the analysis. Cf. Hadley, 397 U.S. at 53, 90 S.Ct. at 793. Metro’s reliance on Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 727-30, 93 S.Ct. 1224, 1229-31, 35 L.Ed.2d 659 (1973), is misplaced. The Court there carved out an exception to the one person, one vote prin ciple for official bodies that do not exercise “governmental” functions. 410 U.S. at 727-30, 93 S.Ct. at 1229-31. The statute in question permitted only landowners to vote in electing directors of a water district whose function was to provide water, chiefly used in farming by a few corporations, to a large area having a small number of individual residents. Id. at 723-25, 93 S.Ct. at 1227-28. The Court noted that the district provided “no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.” Id. at 728-29, 93 S.Ct. at 1229-30 (emphasis added). In Ball v. James, 451 U.S. 355, 364, 101 S.Ct. 1811, 1817, 68 L.Ed.2d 150 (1981), the Court described a two-part test for the Salyer exception: (1) the body’s purpose must be sufficiently narrow and limited, and (2) the effects of its activities must be borne disproportionately by a few. See also Associated Enters., Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743, 744-45, 93 S.Ct. 1237, 1237-38, 35 L.Ed.2d 675 (1973) (upholding constitutionality of Wyoming watershed improvement district under two-part test). Metro, with its broad governmental powers and important impact on the lives of all residents of King County, cannot qualify for the Salyer exception. The Supreme Court" }, { "docid": "12370452", "title": "", "text": "meeting the age and residency requirements may vote. As noted in the § 2 discussion, only attorneys may vote for the attorney members of the Commission, and the remaining members are appointed by the executive. Attorneys do not constitute a suspect class, and the process of selecting Commission members does not qualify as a popular election. Both selection methods appear to fall more in the category of executive appointments, which does not implicate the Equal Protection clause. Second, even if the election could be construed as popular, the Commission does not perform traditional governmental functions. When a special unit of government is assigned certain narrow functions, affecting a definable group of constituents more than other constituents, limiting the franchise to members of that definable group is proper. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 728, 93 S.Ct. 1224, 1229-30, 35 L.Ed.2d 659 (1973) (creating an exception to the one-man, one-vote rule enunciated in Reynolds, 377 U.S. at 562, 84 S.Ct. at 1381-82); Avery v. Midland County, 390 U.S. 474, 485-86, 88 S.Ct. 1114, 1120-21, 20 L.Ed.2d 45 (1969) (variations may constitutionally exist among local units of government so long as units with “general governmental powers over an entire geographic area” are elected according to the one-man, one-vote rule). Only when the elective body’s purpose is narrow and limited, and a special relationship exists between its functions and one class of citizens can there be an exception to the “one-man, one-vote” rule. Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). This Court agrees with the Intervenors that Commission members are not selected by popular election and about the nature of the Commission. The Commission is responsible for selecting from among eligible applicants for a judicial appointment the three most highly qualified candidates. This is a narrow and limited purpose and function. In fact, the attorney members of the Commission are elected to a special group that serves no traditional governmental functions at all. The Commission’s sole purpose and reason for existence is to screen candidates as part of the" }, { "docid": "19875675", "title": "", "text": "the narrow purposes of the state’s agricultural industries, the court found, for example, anyone who pumps gas in Kansas relies on a facility subject to the Board’s inspection. “Any commercial pump or scale used in Kansas, such as the ones used to fill cars with gasoline at the local filling station, is subject to inspection by the Board of Agriculture. Kan.Stat.Ann. § 83-206 (Supp.1992).” Hellebust I at 1514. All meat and dairy inspection is entrusted to the Board whose appointee, the State Dairy Commissioner, has the authority to enter any business premises, conduct inspections, issue subpoenas, and otherwise enforce state regulations on safe dairy and meat products. The Secretary regulates the use of pesticides whether applied to residential lawns or farmlands. The Board’s Chief Engineer of the Division of Water Resources controls not only farm and agricultural water uses but also “water rights held by cities, utilities and individuals not connected with agriculture.” Id. With its approximately 330 employees and a budget of about $15 million allocated from the general fund, the district court found the Board “is not simply an agricultural promotion or marketing agency or an entity which deals with matters disproportionately affecting those who elect it. The Board has broad regulatory powers which affect all residents of Kansas daily.” Id. at 1513. The Board challenges these findings and the conclusions of law they propagate, arguing: (1) the district court should have permitted the Kansas legislature to remedy the voting procedures; (2) the legislature is an indispensable party; (3) the Secretary and Board members have been constitutionally appointed by operation of law; (4) the Board cannot independently exercise legislative powers; and (5) the voting procedures are subject only to rational review to uphold their constitutionality. That is, the Board maintains the voting procedure here is preserved by the explicit reservation for “a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other corn stituents.” Avery v. Midland County, Tex., 390 U.S. 474, 483-84, 88 S.Ct. 1114, 1119-20, 20 L.Ed.2d 45 (1968). The Court articulated this exception in Salyer Land Co. v." }, { "docid": "8432001", "title": "", "text": "chiefly used in farming by a few corporations, to a large area having a small number of individual residents. Id. at 723-25, 93 S.Ct. at 1227-28. The Court noted that the district provided “no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.” Id. at 728-29, 93 S.Ct. at 1229-30 (emphasis added). In Ball v. James, 451 U.S. 355, 364, 101 S.Ct. 1811, 1817, 68 L.Ed.2d 150 (1981), the Court described a two-part test for the Salyer exception: (1) the body’s purpose must be sufficiently narrow and limited, and (2) the effects of its activities must be borne disproportionately by a few. See also Associated Enters., Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743, 744-45, 93 S.Ct. 1237, 1237-38, 35 L.Ed.2d 675 (1973) (upholding constitutionality of Wyoming watershed improvement district under two-part test). Metro, with its broad governmental powers and important impact on the lives of all residents of King County, cannot qualify for the Salyer exception. The Supreme Court has found governmental bodies with far more limited functions to be within the scope of the one person, one vote principle. See, e.g., Hadley, 397 U.S. at 53-54, 90 S.Ct. at 793-94 (junior college board had powers “general enough and [with] sufficient impact throughout the district to justify the conclusion that” one person, one vote doctrine should apply). Y. STATUS OF THE METRO COUNCIL AS AN ELECTED BODY Equal protection of the laws requires that the one person, one vote principle be honored if a governmental body is elected, not if it is appointed. Hadley, 397 U.S. at 54, 56, 58, 90 S.Ct. at 794, 795, 796. Plaintiffs contend that the Metro Council is elected. Defendants argue that it is appointed. The two sides agree that the question turns on whether a majority of the board members are deemed elected or appointed. Cf. Oliver v. Board of Educ., 306 F.Supp. 1286, 1289 (S.D.N.Y.1969) (applying one person-one vote doctrine to board with five elected and two appointed members). The Metro Council has forty-two members. They are" }, { "docid": "12370451", "title": "", "text": "it infringe a fundamental Constitutional right, such that the strict scrutiny standard would apply to the Equal Protection analysis. Instead, they argue that the Court should apply the ration al basis standard. In response to the Voters’ claim that voting is a fundamental right, thus triggering strict scrutiny, the Intervenors argue that the “election” at issue does not fall within the fundamental right category. As a general rule, whenever a state “decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election....” Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1969). According to the Interve-nors, two key differences operate to take the Commission out of the general rule. First, the state may choose how offices are filled, and the State of Indiana decided not to select members of the Commission by popular election. A popular election is one in which all registered voters meeting the age and residency requirements may vote. As noted in the § 2 discussion, only attorneys may vote for the attorney members of the Commission, and the remaining members are appointed by the executive. Attorneys do not constitute a suspect class, and the process of selecting Commission members does not qualify as a popular election. Both selection methods appear to fall more in the category of executive appointments, which does not implicate the Equal Protection clause. Second, even if the election could be construed as popular, the Commission does not perform traditional governmental functions. When a special unit of government is assigned certain narrow functions, affecting a definable group of constituents more than other constituents, limiting the franchise to members of that definable group is proper. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 728, 93 S.Ct. 1224, 1229-30, 35 L.Ed.2d 659 (1973) (creating an exception to the one-man, one-vote rule enunciated in Reynolds, 377 U.S. at 562, 84 S.Ct. at 1381-82); Avery v. Midland County, 390 U.S." }, { "docid": "23217762", "title": "", "text": "question in this case to be whether the purpose of the District is sufficiently specialized and narrow and whether its activities bear on landowners so disproportionately as to distinguish the District from those public entities whose more general governmental functions demand application of the Reynolds principle. We conclude, however, that, in its efforts to distinguish Salyer the Court of Appeals did not apply these criteria correctly to the facts of this case. III Reynolds v. Sims, supra, held that the Equal Protection Clause requires adherence to the principle, of one-person, one-vote in elections of state legislators. Avery v. Midland County, 390 U. S. 474, extended the Reynolds rule to the election of officials of a county government, holding that the elected officials exercised “general governmental powers over the entire geographic area served by the body.” 390 U. S., at 485. The Court, however, reserved any decision on the application of Reynolds to “a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents.” 390 U. S., at 483-484. In Hadley v. Junior College District, 397 U. S. 50, the Court extended Reynolds to the election of trustees of a community college district because those trustees “exercised general governmental powers” and “perform[ed] important governmental functions” that had significant effect on all citizens residing within the district. 397 U. S., at 53-54. But in that case the Court stated: “It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds . . . might not be required . . . .” Id., at 56. The Court found such a case in Salyer. The Tulare Lake Basin Water Storage District involved there encompassed 193,000 acres, 85% of which were farmed by one or another of four corporations. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U. S., at 723. Under California law, public water districts could acquire, store, conserve, and distribute" }, { "docid": "17666562", "title": "", "text": "the district. It provided “no other general public services” such as schools, fire or police protection, buses, or roads. Moreover, the Court noted, the district’s actions “disproportionately affect landowners,” thus supporting limitation of the franchise to them. Id. at 728-29, 93 S.Ct. 1224. By distinguishing the Tulare Water Storage District from the government bodies involved in previous representation decisions, the Court explicitly denied the applicability of strict one person, one vote equal protection analysis to such special districts. See Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 68, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978). The Court based this distinction largely upon its decisions in Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) and Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Avery involved an equal protection challenge to the method of selecting Midland County, Texas, officials that gave disproportionate influence to voters in thinly populated districts. The Court stated the general rule: When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials ... it must insure that those qualified to vote have the right to an equally effective voice in the election process. 390 U.S. at 480, 88 S.Ct. at 1118. The county argued that this rule should not extend to the county governing board because the board performed administrative rather than legislative functions. The Court noted, however, that the board possessed the “law-making power” “to make a large number of decisions having a broad range of impact on all the citizens of the county.” The board determined tax rates, equalized assessments, issued bonds, and allocated the county’s funds with broad statutory authority. The board also made “both long-term judgments about the way Midland County should develop — whether industry should be solicited, roads improved, recreation facilities built, and land set aside for schools — and immediate choices among competing needs.” Id. at 483, 88 S.Ct. at 1120. Given these broad powers," }, { "docid": "23217808", "title": "", "text": "affects the daily lives of thousands of citizens who because of the present voting scheme and the powers vested in the District by the State are unable to participate in any meaningful way in the conduct of the District’s operations. In my view, the Court of Appeals properly reasoned that the limited exception rec ognized in Salyer does not save this voting arrangement. I cannot agree with the Court’s extension of Salyer to the facts of the case, and its unwise suggestion that the provision of electrical and water services are somehow too private to warrant the Fourteenth Amendment’s safeguards. Accordingly, I dissent. States, of course, have substantial latitude in structuring local government, and nonlegislative positions need not be elected at all. Kramer v. Union Free School District No. 15, 395 U. S., at 629. But once a State provides for elections, the Fourteenth Amendment requires that any dis-criminations be scrutinized under the principles enunciated in Kramer and its progeny. The possibility of departing from the one-person, one-vote logic of Reynolds in the case of special-purpose districts was suggested in Avery v. Midland County, 390 U. S. 474 (1968). But the Court left open the question whether a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents “may be apportioned in ways which give greater influence to the citizens most affected by the organization’s functions.” Id., at 483-484. Thus, even assuming that the landowners are more directly affected, Avery suggests that there may be situations where total exclusion is unconstitutional, but where the exact one-person, one- vote rule does not apply. The Court’s decision today ignores the possibility of some alternative plan and instead sanctions an unjustifiable total exclusion. Arizona state-court decisions have described such agricultural improvement districts as primarily business-oriented. See ante, at 368. See also Local 266, International Brotherhood of Electrical Workers v. Salt River Project Agricultural Improvement & Power Dist., 78 Ariz. 30, 275 P. 2d 393 (1954); Mesa v. Salt River Project Agricultural Improvement & Power Dist., 92 Ariz. 91, 373 P. 2d 722 (1962), appeal dism’d," }, { "docid": "23217809", "title": "", "text": "special-purpose districts was suggested in Avery v. Midland County, 390 U. S. 474 (1968). But the Court left open the question whether a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents “may be apportioned in ways which give greater influence to the citizens most affected by the organization’s functions.” Id., at 483-484. Thus, even assuming that the landowners are more directly affected, Avery suggests that there may be situations where total exclusion is unconstitutional, but where the exact one-person, one- vote rule does not apply. The Court’s decision today ignores the possibility of some alternative plan and instead sanctions an unjustifiable total exclusion. Arizona state-court decisions have described such agricultural improvement districts as primarily business-oriented. See ante, at 368. See also Local 266, International Brotherhood of Electrical Workers v. Salt River Project Agricultural Improvement & Power Dist., 78 Ariz. 30, 275 P. 2d 393 (1954); Mesa v. Salt River Project Agricultural Improvement & Power Dist., 92 Ariz. 91, 373 P. 2d 722 (1962), appeal dism’d, 372 U. S. 704 (1963). Of course, these state-court descriptions do not control the question whether the municipal corporation possesses sufficient authority or function to require application of the voting procedures mandated by the Fourteenth Amendment. That inquiry is a constitutional question to be resolved by the courts. Arizona Rev. Stat. Ann. §45-935.B (Supp. 1980-1981) provides: \"For the purpose of acquiring or assuring a supply of electric power and energy to serve the district’s customers, the board, for the and in the name of the district may, without the boundaries of the state, acquire, develop, own, lease, purchase, construct, operate, equip, maintain, repair and replace, and contract for . . . any form of energy or energy resources including but not limited to coal, oil, gas, oil shale, uranium and other nuclear materials, hot water, steam, and other geothermal materials or minerals, solar energy, wind, water, and water power and compressed air . . . .” The parties did not stipulate that the electrical services were unimportant or legally insignificant. In the context of the" }, { "docid": "19875677", "title": "", "text": "Tulare Lake Basin Water Stor. Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981); and the Board urges we apply it here. II. One Person, one vote Our review must begin with the principle announced in Reynolds and recited in its progeny that “in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack.” Hill v. Stone, 421 U.S. 289, 295, 95 S.Ct. 1637, 1642, 44 L.Ed.2d 172 (1975) (citing Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969)). The breadth of this mandate does not tolerate constitutional distinctions on the basis of the purpose of the election or the function— legislative or administrative — of the elected official. Hadley v. Junior College Dist., 397 U.S. 50, 54-56, 90 S.Ct. 791, 794-95, 25 L.Ed.2d 45 (1970). In the line of eases stemming from Reynolds, “[t]he consistent theme ... is that the right to vote in an election is protected by the United States Constitution against dilution or debasement.” Id. 397 U.S. at 54, 90 S.Ct. at 794. The Court has fashioned a narrow exception to this rule. In Ball, 451 U.S. at 355, 101 S.Ct. at 1812-13, and Salyer Land Co., 410 U.S. at 719, 93 S.Ct. at 1225, the Court held the one person, one vote rule does not apply to units of government having a narrow and limited focus which disproportionately affects the few who are entitled to vote. In Salyer, the Court reasoned the defendant water district had relatively limited authority because it provided only for the acquisition, storage, and distribution of water for farming in a localized basin. The Court specifically noted the water district offered “no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.” 410 U.S. at 728-29, 93 S.Ct. at 1229-30. Nor did it exercise “what might" }, { "docid": "3928613", "title": "", "text": "nom., Schenberg v. Bond, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). Theoretically, a higher court could develop an exception or could broaden the application of the settled precedent in Salyer and Ball to result in an agency like the KSBA being allowed a limited franchise exception to the “one person, one vote” requirement of the Fourteenth Amendment. If such a court chooses to do so, so be it. However, this court does not think that the KSBA, which exercises general governmental powers, falls within the narrow exception for governmental entities which have a special limited purpose and the activities of which have a disproportionate effect on those who may vote for its officials under presently settled equal protection jurisprudence. Avery v. Midland County, 390 U.S. 474, 483-84, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45 (1968). Although predicting the future is hazardous, neither does the court see any real indication that this is the case on which higher courts may seize to change the thrust of the voting rights decisions. Therefore, although the defendants raise a colorable argument in that sense, the court finds that they have not made a strong showing of likelihood of success on the merits of the appeal. B. Irreparable Injury to the Defendants The court does believe that the defendants have shown that they will be irreparably injured by the lack of a stay in this case. The Sixth Circuit has addressed what is meant by irreparable injury in this instructive way: In evaluating the degree of injury, it is important to remember that [t]he key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. In addition, the harm alleged must be both certain and immediate, rather than speculative or theoretical. In order to substantiate a claim that irreparable injury is likely to occur," }, { "docid": "12370453", "title": "", "text": "474, 485-86, 88 S.Ct. 1114, 1120-21, 20 L.Ed.2d 45 (1969) (variations may constitutionally exist among local units of government so long as units with “general governmental powers over an entire geographic area” are elected according to the one-man, one-vote rule). Only when the elective body’s purpose is narrow and limited, and a special relationship exists between its functions and one class of citizens can there be an exception to the “one-man, one-vote” rule. Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). This Court agrees with the Intervenors that Commission members are not selected by popular election and about the nature of the Commission. The Commission is responsible for selecting from among eligible applicants for a judicial appointment the three most highly qualified candidates. This is a narrow and limited purpose and function. In fact, the attorney members of the Commission are elected to a special group that serves no traditional governmental functions at all. The Commission’s sole purpose and reason for existence is to screen candidates as part of the judicial appointment process. Consequently, the Commission satisfies the “special unit with narrow functions” prong of the exception to the one-man, one-vote rule. See Ball, 451 U.S. at 361-62, 101 S.Ct. at 1816-17 (holding that water district providing more diverse services affecting many more people than the district in Salyer still does not exercise the type of governmental functions that trigger Reynolds strict scrutiny). With respect to the second prong, a special relationship can easily be discerned between members of the Lake County bar and the Commission’s function of selecting the most highly qualified candidates for judicial appointments. Eligible candidates must be members of the bar, and to be considered one of the three most highly qualified candidates, a person must have distinguished her or himself in connection with legal activities. See Ind.Code § 38-5-29.5-36(b). The attorney-members of the Commission are selected to represent the interests and reflect the expertise of the local bar when evaluating candidates for a judicial appointment. Their divergent interests uniquely qualify attorneys to advise the governor, for their interests are different" }, { "docid": "2168643", "title": "", "text": "of the proceeds from the § 5(b) lands for the betterment of Native Hawaiians. This is clearly consistent with and pursuant to Congress’ mandate and intent. II. One Person/One Vote Defendant argues further that because OHA was created for a specialized purpose and is vested with very limited governmental authority, the election for the board of trustees of OHA is a “special interest” election within the meaning of Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973). Defendant concludes that restricting the franchise to those disproportionately affected by OHA’s actions is constitutional because it is rationally related to the State’s fulfillment of its unique obligations to Native Hawaiians and Hawaiians. As discussed above, the limitation on the electoral franchise is not based upon race. The demands of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), however, do not apply exclusively to restrictions allegedly based upon race. Rather, Reynolds, Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) require strict adherence to the principle of one-person, one-vote in elections. Even in these cases, the Supreme Court has recognized that “there might be some ease in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportion ately affect different groups that a popular election in compliance with Reynolds ... might not be required____” Hadley, 397 U.S. at 56, 90 S.Ct. at 795. The Supreme Court found such a case in both Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) and Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). In Salyer, the Supreme Court upheld a voter qualification statute which restricted voting to landowners and apportioned voting power for directors of the water district upon the assessed valuation of the voting landowner’s property. Although the district did exercise some governmental" } ]

[ { "docid": "22102812", "title": "", "text": "one transaction, and that the appeal taken was sufficient to authorize th¿ action, if the suit had been brought within six months after the decision of the commissioner: we are still of opinion that it cannot be maintained, because it was not brought within that time. All governments, in all times, have found it necessary to adopt stringent measures for the collection of taxes, and to be rigid in the enforcement of them. These measures are not judicial; nor does the government resort, except in extraordinary cases, to the courts for that purpose. The revenue measures of every civilized government constitute a system which provides for its enforcement by officers commissioned for that purpose. In this country, this system for each State, or for. the Federal government, provides safeguards of its own against mistake, injustice, or oppression, in the administration of its revenue laws. Such appeals are allowed to specified tribunals \"as the law-makers deem expedient. Such remedies, also, for recovering back taxes illegally exacted, as may seem wise, are provided. In these respects, the United States have, as was. said by this court in Nichols v. United States, 7 Wall. 122, enacted a system of corrective justice, as well as a system of taxation, in both its customs and internal-revenue branches. That system is intended to be complete. In the customs department it permits appeals from appraisers to other appraisers, and in proper cases to the Secretary of the Treasury; - and, if dissatisfied with this highest decision of the executive department of the government, the law permits the party, on paying the money required, with a protest embodying the grounds of his objection to the tax, to sue the government through its collector, and test in the courts the validity of the tax. So also, in the internal-revenue department, the statute which we have copied allows appeals from the, assessor to the commissioner of internal revenue; and,.if dissatisfied with his decision, on paying the tax the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which" } ]

[ { "docid": "22814125", "title": "", "text": "decision of the secretary. “ No suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until .the decision of the secretary of the treasury shall have been first had on such appeal, unless the decision of the secretary shall be delayed more than ninety days from the date of such ■ appeal, in case of an entry at any port east of the Rocky Mountains, or more than five months in ease of an entry west of those mountains.” The common-law right of action to recover back money illegally exacted by a collector of customs as' duties upon imported merchandise, rested upon the implied promise of the collector to refund money which he had received as the 'agent of. the government, but which the law had' not authorized him to exact; which had been; unwillingly paid, and which, before payment to his principal, he had been . notified he would be required to repay; and involved a corresponding right on his part to withhold from the government, as an indemnity, the fund in dispute. The manifest public inconveniences resulting from this situation induced Congress, by the act of March 3d; 1839, ch. 82, 5 Stat. 348, sec. 2, to alter the relation between these officers and the United States by requiring them peremptorily to pay into the treasury all moneys received by them officially, without regard’ to claims for erroneous and illegal exactions; It was provided, however, therein, that the secretary of the treasury himself, on being satisfied that, in any case of duties paid mlder protest, more money had been paid to the collector than the law required, should refund the excess out of the treasury. The legal effect of this enactment, as was held in Cary v. Curtis, 3 How. 236, was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26th, 1845, which, by legislative" }, { "docid": "19329804", "title": "", "text": "since if the appraisement remained unquestioned, the collector was bound to proceed thereon. It was decided by this court in Arnson v. Murphy, 109 U. S. 238, that the common law right of action against a collector to recover duties illegally collected was taken away by act of Congress, and a statutory remedy given, which was exclusive. Arnson v. Murphy, 115 U. S. 579; Cheatam v. Untied States, 92 U. S. 85. While the common law right was outstanding, the collector withheld, as an indemnity, the sum in dispute, but Congress provided that he must pay into the Treasury all moneys received officially, and that the Secretary of the Treasury should refund erroneous and illegal exactions. A suit to recover back an excess of duty necessarily could only be maintained as affirmatively specified in the statute. Rev. Stat. (2d ed.) §§ 2931, 3010, 3011, 3012, 30124, 3013; act of February 27, 1877, c. 69, 19 Stat. 210, 217; Hager v. Swayne, 149 U. S. 242, 244. Section 3011 of the Revised Statutes, which authorized an action against a collector to recover money paid as duties “ when such amount of duties was not, or was not wholly, authorized by law,” was repealed by section 29 of the act of June 10, 1S90, as were also sections 2931,' 3012, 30124, 3013; and the remedies substituted -which these importers did not see fit to pursue. Moreover, section 25 of that act provided: “ That from and after the taking effect of this act no collector, or other officer of the customs shall be in any way liable to any owner, importer, consignee, or agent of any merchandise, or any other person, for or on account of any rulings or decisionp as to the classification of said merchandise or the duties charged thereon, or the collection of any dues, charges, or duties on or on account of said merchandise, or any other matter or thing as to which said owner, importer, consignee, or agent of such merchandise might, under this act, be entitled to appeal from the decision of said collector or other" }, { "docid": "22334798", "title": "", "text": "Treasury or other proper officers of the Government. 12 Stat. 741, § 12. In that event, no execution was to issue against him, but the amount of recovery was to be paid out of the Treasury. These provisions, carried into Revised Statutes § 989, are continued as 28 U. S. C. § 842. By § 1014 of the Revenue Act of 1924, 43 Stat. 253, 343, amending Revised Statutes § 3226, the requirement for protest of the payment was abolished. While the effect of the certificate in indemnifying the collector has been said to convert the suit against him into a suit against the Government, at least so far as the ultimate incidence of the liability is concerned, United States v. Sherman, 98 U. S. 565, 567; Moore Ice Cream Co. v. Rose, supra, 289 U. S. at p. 381, the statutory provisions have not altered the nature and extent of the claims which the taxpayer is authorized to prosecute in suits against the collector. Originally it was the payment of the illegally exacted tax which gave rise to the cause of action. It was the payment which designated the person against whom the suit might be brought and which measured the right of recovery. Payments made to one collector could not be recovered from another, and, since the causes of action against the two collectors were different, recovery upon one could not bar recovery upon the other. After the enactment of legislation requiring collectors of customs to pay over to the Government duties collected under protest, 5 Stat. 348; R. S. § 3010, doubts arose whether suit could, in such circumstances, be maintained against them, since it was thought that the statutory command had relieved the collectors from personal liability. See Cary v. Curtis, 3 How. 235. But those doubts were put at rest by later acts of Congress establishing the continued right of the taxpayer to maintain a suit against such a collector notwithstanding payment over of his collections to the Treasury. 5 Stat. 727; R. S. § 3011; Curtis’s Administratrix v. Fiedler, 2 Black 461, 479; Arnson" }, { "docid": "22779989", "title": "", "text": "upon the questions at issue that the ■ state court would have had, if the cause had remained there. Defendant neither gains nor loses by the removal, and the case proceeds as if no such removal had taken place. Cowley v. Northern Pacific Railroad Co., 159 U. S. 569, 583; Mansfield Railway Co. v. Swan, 111 U. S. 379; Mexican Nat. Railroad v. Davidson, 157 U. S. 201. This, however, is more a matter of words than of substance, as the defendant unquestionably has the right to show that the state court had no jurisdiction, or that the complaint did not set forth facts sufficient to constitute a cause of action. This we understand to be the substance of the defence in this connection. By Rev. Stat. sec. 2931, it was enacted that the decision of the collector “ as to the rate and amount of duties ” to be paid upon imported merchandise should be final and conclusive, unless the owner or agent entered a protest, and within thirty-days appealed therefrom to the Secretary of the Treasury; and, further, that the decision of the Secretary should be final and conclusive, unless suit were brought within ninety days after the decision of the Secretary. By Rev. Stat. sec. 3011, any person having made payment under such protest was given the right to bring an action at law and recover back any excess of duties so paid. The law.stood in this condition until June 10,1890, when an act known as .the Customs Administrative Act was passed, 26 Stat. 131, c. 407, by which the above sections Rev. Stat. secs. 2931, 3011, were repealed and new regulations established, by which an appeal was given from the decision of the collector “as to the'rate and amount of the duties chargeable upon imported merchandise,” if such duties were paid under protest, to a Board of General Appraisers, whose decision should be final and conclusive (sec. 14) “ as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duties imposed thereon under such classification,” unless" }, { "docid": "9625221", "title": "", "text": "c. 82, 5 Stat. 339, requiring the collector of customs to place money collected to the credit of the treasury of the United States and authorizing application by the aggrieved taxpayer to the Secretary- of the Treasury, cut off the common-law right of action for money had and received against collectors of customs. From this construction of the statute Justices Story and McLean dissented, contending that the majority had misconstrued the act; also that, construed as the majority did construe it, it was uncpnstitutional. Apart from the statute, all the Justices were of the opinion that action for money had and received would clearly lie against the collector. That the minority of the court construed the act as Congress intended it to be construed appears from the facts stated by Mr. Justice Matthews in Arnson v. Murphy, Collector, 109 U. S. 238, 240, 3 Sup. Ct. 184, 186 (27 L. Ed. 920). It is there pointed out that after the Supreme Court held in Cary v. Curtis that the legal effect of the act of March 3, 1839, “was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the Secretary of the Treasury the authority to refund conferred by the act of 1839. * * *” It certainly is significant that Congress restored a right of action against federal officials acting ultra vires. These authorities make it clear that, unless and except as modified by statute, the common-law right of action for money had and received lies against a tax collector to recover taxes illegally collected, with notice that they are not paid voluntarily, but under protest; duress, express or implied, may" }, { "docid": "22930476", "title": "", "text": "to the Secretary of the Treasury; and, if dissatisfied with this highest decision of the executive department of the government, the law permits the party, on paying the money required, with a protest embodying the grounds of his objection to the tax, to sue the government through its collector, and test in the courts the validity of the tax.” It was said also in that case (p. 89) that the government “has the right to prescribe the conditions on which it will subject itself to tlie judgment of the courts in the collection of its revenues.” One of those conditions is and always has been, that the determination of. appraisers as. to the dutiable value of goods shall be conclusive and not réexamin able in a suit at law, provided the appraisers are selected in conformity with the statute, and, in appraising, act within the scope of the powers conferred upon them. See, also, State Railroad Tax Cases, 92 U. S. 575, 613; Snyder v. Marks, 109 U. S. 189, 193, 194; Hilton v. Merritt, 110 U. S. 97; Arnson v. Murphy, 115 U. S. 579, 585, 586: Oelbermann v. Merritt, 123 U. S. 356, 361. In Hilton v. Merritt, it was distinctly held that the valuation of merchandise made by the appraisers was, in the absence of fraud, conclusive on the importer; that the right of appeal to the Secretary of the Treasury, when duties were alleged to have been illegally or erroneously exacted, and the right to a trial by jury in case of an adverse decision by the Secretary of the Treasury, did not relate to alleged errors in the appraisement of goods, whether by a merchant appraiser or otherwise; and that it was not allowable', in a suit to recover back duties, for the plaintiff to- put in evidence the records of the proceedings before the merchant appraiser and the general appraiser, including the testimony and the various documents before the appraisers, or to try before the jury the question as to the actual value of the goods, and whether the appraisers followed the evidence before" }, { "docid": "23646948", "title": "", "text": "the tariff act of March 3, 1883,. 22 Stat. 509, c. 121, fixing duty on wearing apparel of every description not specially numerated or provided for, composed), wholly or in part of wool, worsted, the hair of the alpaca,.* goat, or other animals, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, at the rate of' forty cents per pound and in addition thereto thirty-five per centum ad valorem ; and exacted of the importers payment off the duties accordingly. The importers, as found by the court,, “ for the purpose of getting possession of their said merchandise, paid the amount so required of them, but within the time-required by law notified the collector of their dissatisfaction with and protest against his decision, and appealed to the-Secretary of the Treasury, who affirmed the decision of the-collector. The importers thereupon, for value, assigned their claims to the plaintiff, who, within the time required by law, commenced this action for the recovery of the said excess off-duties.” The Circuit Court held that the cotton shoes fell* under the paragraph of Schedule I, (22 Stat. 506,) imposingthirtyrfive per cent ad valorem on manufactures of cotton not-specially enumerated.or provided for, and the silk shoes under the last paragraph of Schedule L, imposing fifty per cent on goods not specially enumerated, made of silk or of which silk was the component material of chief value. 37 Fed. Rep.. 780. It was held by this court in Arnson v. Murphy, 109 U. S. 238, that the common-law right of action against a collector to recover duties illegally collected was taken away by act of Congress, and a statutory remedy given, which was exclusive. Rev. Stat. §§ 2931, 3011. Arnson v. Murphy, 115 U. S. 579 Cheatham v. United States, 92 U. S. 85. While the common-law right was outstanding, thé collector withheld as an indemnity the sum in dispute, but Congress provided that. he must- pay into the Treasury all moneys 'received officially, and that the Secretary of the Treasury should refund erroneous, and illegal exactions. Rev. Stat. §§ 30-10, 3012-J." }, { "docid": "23646949", "title": "", "text": "the cotton shoes fell* under the paragraph of Schedule I, (22 Stat. 506,) imposingthirtyrfive per cent ad valorem on manufactures of cotton not-specially enumerated.or provided for, and the silk shoes under the last paragraph of Schedule L, imposing fifty per cent on goods not specially enumerated, made of silk or of which silk was the component material of chief value. 37 Fed. Rep.. 780. It was held by this court in Arnson v. Murphy, 109 U. S. 238, that the common-law right of action against a collector to recover duties illegally collected was taken away by act of Congress, and a statutory remedy given, which was exclusive. Rev. Stat. §§ 2931, 3011. Arnson v. Murphy, 115 U. S. 579 Cheatham v. United States, 92 U. S. 85. While the common-law right was outstanding, thé collector withheld as an indemnity the sum in dispute, but Congress provided that. he must- pay into the Treasury all moneys 'received officially, and that the Secretary of the Treasury should refund erroneous, and illegal exactions. Rev. Stat. §§ 30-10, 3012-J. The suit to recover back an excess of duties necessarily could only be maintained as affirmatively specified in. the statute. Section 3011 of the Revised Statutes, as amended by the act of Congress of February 27, 1877, 19 Stat. 240, 247, c. 69, provides: “ Any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money-as duties, when such amount of duties was not, or. was not- wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, .and to recover back any excess so paid. But no recovery shall be allowed in such action unless aprotest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.” Section 2931 reads as follows: “On the entry of any vessel, or of any merchandise, the decision of the collector of customs" }, { "docid": "22779998", "title": "", "text": "restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the Secretary of the Treasury the authority to refund conferred by the act of 1839. 5 Stat. 349, 727. This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. S. 449, until repealed by implication by the act of June 30, 1864,” c. 171, 13 Stat. 202, 214, carried into the Kevised Statutes as sections 2931 and 3011. In the same case of Arnson v. Murphy, 109 U. S. 238, it was decided that the common-law right of action against the collector to recover back duties illegally collected was taken away by statute, and a remedy given, based upon these sections, which was exclusive. The decision in Elliott v. Swartwout was recognized, but so far as respected customs cases (i. e., classification cases) was held to be superseded by the statutes. So in Schoenfeld v. Hendricks, 152 U. S. 691, it was held that an action could not be maintained against the collector, either at common law or under the statutes, to recover duties alleged to have been exacted, in 1892,' upon an importation of merchandise, the remedy given through the Board of General Appraisers being exclusive. The- criticism to be made upon the applicability of these cases is, that they dealt only with imported merchandise and with the duties collected thereon, and have no reference whatever to exactions made by a collector, under color of the revenue laws, upon goods which have never been imported at all. With respect to these the collector stands as if, under color of his office, he had seized a ship or its equipment, or any other article not comprehended within the scope of the tariff laws. Had the sugars involved in this case been admittedly imported, that is, brought into New York from a confessedly foreign country, and the question had arisen whether they Were dutiable, or belonged to the" }, { "docid": "22779997", "title": "", "text": "could be made personally liable in case the money were paid under protest. This decision was made in 1836. Apparently in consequence of it an act was passed in 1839 requiring moneys collected for duties to be deposited to the credit of the Treasurer of the United States; and it was made the duty of the Secretary of the Treasury to draw his warrant upon the Treasurer in case he found more money had been paid to the collector than the law required. It was held by a majority of this court in Cary v. Curtis, 3 How. 236, that this act precluded an action of assumpsit for money had and -received against the collector for duties received by him, and that the act of 1839 furnished the sole remedy. It was said of that case in Arnson v. Murphy, 109 U. S. 238, 240 : “ Congress, being in session at the time that the decision was announced, passed the explanatory act of February 26, 1845, which,‘by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the Secretary of the Treasury the authority to refund conferred by the act of 1839. 5 Stat. 349, 727. This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. S. 449, until repealed by implication by the act of June 30, 1864,” c. 171, 13 Stat. 202, 214, carried into the Kevised Statutes as sections 2931 and 3011. In the same case of Arnson v. Murphy, 109 U. S. 238, it was decided that the common-law right of action against the collector to recover back duties illegally collected was taken away by statute, and a remedy given, based upon these sections, which was exclusive. The decision in Elliott v. Swartwout was recognized, but so far as respected customs cases (i. e., classification cases) was held to be superseded by the statutes. So" }, { "docid": "11977692", "title": "", "text": "collector, but to the Commissioner. It is insisted that every step on which appellant relies in the statutory ■ refunding process had been gone through to the point of suit. And in its brief appellant makes it more clear that the suit was in reality not against the appellee, but against the United States, .by pointing to the statute, 26 U.S.C.A. § 1670 (b), authorizing the Commissioner to repay the collector the full amount of moneys recovered against him in any court for any internal revenue taxes collected by him, as well as to 28 U.S.C.A. § 842, providing that, upon the giving of a cer tificate of probable cause, no execution shall issue against the collector on any judgment against him for moneys he had collected, but the amount so recovered shall be paid out of the Treasury. In view of the suits plaintiffs have actually brought, and of the state of the authorities as to such suits, the briefs are full of what seems little better than quibbling over whether their actions are common-law actions, with statutory limitations, or purely statutory ones. We think it may not be doubted that the whole current of authority is to the effect that the actions they have brought are given by statute, and may not, except in accordance with statutory consent, be maintained. Cary v. Curtis, 3 How. 236, 11 L.Ed. 576; Barney v. Watson, 92 U.S. 449, 23 L.Ed. 730; Arnson v. Murphy, 109 U.S. 238, 3 S.Ct. 184, 27 L.Ed. 920; Id., 115 U.S. 579, 580, 6 S.Ct. 185, 29 L.Ed. 491; Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561; Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265; Rose v. McEachern, supra. In Schoenfeld v. Hendricks, 152 U.S. 691, 693,14 S.Ct. 754,755,38 L.Ed. 601, it is said: “It was decided by this court in Arnson v. Murphy, 109 U.S. 238, 3 S.Ct. 184 [27 L.Ed. 920], that the common-law right of action against a collector to recover duties illegally collected was taken away by act of congress, and a statutory" }, { "docid": "19329803", "title": "", "text": "void.” Under section 13 of the act of Congress “to simplify the laws in relation to the collection of the revenues,” approved June 10, 1890, c. 407, 26 Stat. 131, it was provided that if the importer, owner, agent, or consignee of merchandise imported should be dissatisfied with the appraisement thereof, he might, by giving notice to the collector in writing of such dissatisfaction, obtain a reappraisement by one of the general appraisers, and that the decision of the general appraiser in such cases should govern as to the dutiable value, unless the importer, owner, consignee, or agent should still be dissatisfied and carry the matter, as provided, before the board of three general appraisers on duty at the port, the decision of which board should be final and conclusive. In the case at bar the importers did not avail themselves of the means pointed out for the correction of the alleged error, and it follows that the exaction by the collector on the value according to the appraisement cannot be held to be illegal, since if the appraisement remained unquestioned, the collector was bound to proceed thereon. It was decided by this court in Arnson v. Murphy, 109 U. S. 238, that the common law right of action against a collector to recover duties illegally collected was taken away by act of Congress, and a statutory remedy given, which was exclusive. Arnson v. Murphy, 115 U. S. 579; Cheatam v. Untied States, 92 U. S. 85. While the common law right was outstanding, the collector withheld, as an indemnity, the sum in dispute, but Congress provided that he must pay into the Treasury all moneys received officially, and that the Secretary of the Treasury should refund erroneous and illegal exactions. A suit to recover back an excess of duty necessarily could only be maintained as affirmatively specified in the statute. Rev. Stat. (2d ed.) §§ 2931, 3010, 3011, 3012, 30124, 3013; act of February 27, 1877, c. 69, 19 Stat. 210, 217; Hager v. Swayne, 149 U. S. 242, 244. Section 3011 of the Revised Statutes, which authorized an" }, { "docid": "19339108", "title": "", "text": "final ascertainment and liquidation of the duties upon these goods. That such was the opinion, of the Treasury Department appears from its having addressed its letter of instructions for the correction of the assessment, not to the defendant, but to the Eastport collector, as well as from the reasons which it gave for disallowing the appeal of the importers. And we have been referred to no act of Congress, Treasury regulation or judicial decision, which warranted a new assessment of the duties upon these goods by the defendant at Boston. See Spring v. Russell, 1 Lowell, 258. But this suit of the importers against him clearly comes within section 3011 of the Revised Statutes, as amended by the act of February 27, 1877, c. 69, which provides that “ any person who shall have made payment, under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law,” may maintain an action “ to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid; ” but that “ no recovery shall be allowed in such action, unless a protest and appeal shall have been taken as prescribed in section 2931.” 19 Stat. 217. By section 2931, here referred to, “ the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid” on merchandise and the dutiable costs and charges thereon, “shall be final and conclusive against all persons interested therein,” unless the importer “ shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall, within thirty days after the date" }, { "docid": "14959348", "title": "", "text": "for any duties which shall have been paid before the date of such decision on such vessel, or on such goods, wares, or merchandise, or costs or charges, or within ninety days after the payment of duties paid after the decision of the Secretary. And no suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the Secretary of the Treasury shall have been first had on such appeal, unless the decision of the Secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east of the Rocky Mountains, or more than five months in case of an entry west of those mountains.” Section 2931 was in force when this suit wife, brought. Section 3011 of the Revised Statutes, as amended by § 1 of the act of February 27, 1877, ch. 69, 19 Stat. 24-7,' was also in force when this suit was brought, reading as follows : “ Any person who shall have made payment under protest, and in order to obtain possession of merchandise imported for- him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable'by jury, to ascertain the validity of such demand, and payment of duties,- and to recover back any excess so paid. But no recovery shall be. allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.” In view of these provisions, it was held by this court, in this case, that a suit against the collector was barred unless brought within ninety days after an adverse decision by the Secretary of the Treasury on an appeal; and that; while a suit might be brought after the expiration. of ninety days from the appeal, in case there had not been a" }, { "docid": "23646950", "title": "", "text": "The suit to recover back an excess of duties necessarily could only be maintained as affirmatively specified in. the statute. Section 3011 of the Revised Statutes, as amended by the act of Congress of February 27, 1877, 19 Stat. 240, 247, c. 69, provides: “ Any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money-as duties, when such amount of duties was not, or. was not- wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, .and to recover back any excess so paid. But no recovery shall be allowed in such action unless aprotest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.” Section 2931 reads as follows: “On the entry of any vessel, or of any merchandise, the decision of the collector of customs at the port of importation .and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel or on such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander, or consignee of such vessel, in the case of duties levied on tonnage, or the owner, importer, consignee, or agent of the merchandise, in the case of duties levied on merchandise, or the costs and charges thereon, shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall within thirty days after the date ■of such ascertainment and liquidation, appeal therefrom to the Secretary of the Treasury. The decision of the Secretary on such appeal shall" }, { "docid": "22814127", "title": "", "text": "construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at'the time of payment of the duties alleged to have been illegally exacted, and took from the secretary of the treasury the authority to refund conferred by the act of 1839, 5 Stat. 349, 727. This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. S. 449, until repealed by implication by the act of June 30th, 1864,13 Stat. 214. The 14th section of the act last mentioned is, as already cited, in substance, the present sec. 2931 of the Revised Statutes, providing for the appeal to the secretary of the treasury, and the 16th section, being the present'sec. 3012Í,-, Rev. Stats., restores to the secretary of the treasury the authority to refund moneys paid under protest and appeal, which he shall be satisfied were illegally exacted, originally conferred upon him by the act of 1839. And the provision of the act of 1845, which construed the act of 1839 so as to restore to the claimant the right of action, judicially declared in Cary v. Curtis, supra, to have been taken away by the latter, now appears as sec. 3011 of the Revised Statutes. It was in force when the present action was brought, and is as follows: “ Any person who shall have made payment .under protest and in order to obtain possession of merchandise imported for him, to any collector or person acting as collector of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law,- which shall be triable by-jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.” By reference to the 14th section of the act" }, { "docid": "22334799", "title": "", "text": "which gave rise to the cause of action. It was the payment which designated the person against whom the suit might be brought and which measured the right of recovery. Payments made to one collector could not be recovered from another, and, since the causes of action against the two collectors were different, recovery upon one could not bar recovery upon the other. After the enactment of legislation requiring collectors of customs to pay over to the Government duties collected under protest, 5 Stat. 348; R. S. § 3010, doubts arose whether suit could, in such circumstances, be maintained against them, since it was thought that the statutory command had relieved the collectors from personal liability. See Cary v. Curtis, 3 How. 235. But those doubts were put at rest by later acts of Congress establishing the continued right of the taxpayer to maintain a suit against such a collector notwithstanding payment over of his collections to the Treasury. 5 Stat. 727; R. S. § 3011; Curtis’s Administratrix v. Fiedler, 2 Black 461, 479; Arnson v. Murphy, 109 U. S. 238, 241. A like uncertainty as to the effect of the statutes requiring internal revenue collectors to pay moneys collected to the Government was resolved by this Court’s decisions in Philadelphia v. Collector, 5 Wall. 720, 731; Collector v. Hubbard, 12 Wall. 1, 13. As Congress had enacted provisions for indemnification of the collector by the Government, the implication necessarily arose that the taxpayer could maintain an action against him. See 12 Stat. 434, 729, 741; 13 Stat. 239. The right of action thus continued is identical with that which existed before Congress had acted. Notwithstanding the provision for indemnifying the collector and protecting him from execution, the nature and extent of the right asserted and the measure of the recovery remain the same. It was payment to the collector which gave rise to the suit against him and limited the amount of the recovery. The judgment against the collector is a personal judgment, to which the United States is a stranger except as it has obligated itself to pay" }, { "docid": "15271666", "title": "", "text": "312, as sustaining the vieAV maintained by them. The first case cited Avas decided in April, 1871, before the enactment of the Revised Statutes, in June, 1871; the second case in July, 1878; and the third in November, 1879. But this court, in November, 1883, in Arnson v. Mur phy, 109 U. S. 238, a suit brought against a collector in 1879 .to recover back duties exacted in 1871, held that the only existing aúthority.for such a suit was to be found in the provisions of §§ 3011 and 2931 taken, together. In the opinion of this court at October term, 1875, in Barney v. Watson, 92 U S. 449, a suit brought to recover back duties paid in March,' 1864, on an importation made in December, 1863, it was suggested that the act of February 23, 1845, now § 3011, ivas supplied by § 14 of the act of June 30, 1864, now § 2931, and was thus repealed by implication. That case, however, aróse before the act of June 30, 1864, was passed, and not under it, though .adjudged here after it was enacted. But the decision in Arnson v. Murphy was based on the view that,§§ 3011 and 2931 ‘coexist, and must be construed together. So, what was held in United States v. Cousinery, under the idea that § 14 of the act of June 30, 1864, was the only statute to be considered, (and the act of February 26, 1845, is not alluded to in the decision,) is of no force when §§ 3011 and 2931 are both of them to be taken into consideration, as .coexisting. The saíne remarks apply to what was ruled, on the same basis, in United States v. Phelps. In Watt v. United States, the suit was by the United States to recover duties liquidated in 1876 on an importation made in 1872, and there was no appeal after liquidation; and it was held that for that reason the defendant could not attack the liquidation. Nor does anything in the decision in Westray v. United States, 18 Wall. 322, control the" }, { "docid": "22544821", "title": "", "text": "charges as he considers to be dutiable, but his decision in this respect is not in the nature of an appraisement, and may be attacked by protest. And while the general rule is mat the valuation is conclusive upon all parties, nevertheless the appraisement is subject to be impeached where the appraiser or collector has. proceeded on a wrong principle contrary to law or has transcended the powers conferred'by statute. Oberteuffer v. Robertson, 116 U. S. 499; Badger v. Cusimano, 130 U. S. 39; Robertson v. Frank Brothers Company, 132 U. S. 17; Erhardt v. Schroeder, 155 U. S. 124; Muser v. Magone, 155 U. S. 240. These decisions were made under prior similar legislation as to the finality of the appraisement, and when an action against the collector was provided by section 3011 of the Bevised Statutes as the remedy for an illegal exaction of duties. Section 3011 was repealed by the act of- June 10, 1890, and in Schoenfeld v. Hendricks, 152 U. S. 691, it was held that such an action could not be maintained, as it was not authorized by statute, and would not lie at common law because the money was required to be paid into the Treasury by section 3010 ; so that the importers were remitted to the remedies provided in the latter act. \"Whether the dutiable value in this case was erroneously increased by the unauthorized addition of an independent item to the market value, as asserted by the importers, was a question of law, and properly carried to the board of general appraisers by protest and appeal. \"We think that section 14 furnishes the means of redress for illegal action, and that the board of general appraisers has the same power under this section to inquire into the' legality of an assessment as it has under section 13 to see whether or-not the valuation is excessive or insufficient through an error of judgment. The first question must, therefore, be answered in the affirmative. By section 19 of the act it is providéd that whenever imported merchandise is subject to an ad" }, { "docid": "22814126", "title": "", "text": "withhold from the government, as an indemnity, the fund in dispute. The manifest public inconveniences resulting from this situation induced Congress, by the act of March 3d; 1839, ch. 82, 5 Stat. 348, sec. 2, to alter the relation between these officers and the United States by requiring them peremptorily to pay into the treasury all moneys received by them officially, without regard’ to claims for erroneous and illegal exactions; It was provided, however, therein, that the secretary of the treasury himself, on being satisfied that, in any case of duties paid mlder protest, more money had been paid to the collector than the law required, should refund the excess out of the treasury. The legal effect of this enactment, as was held in Cary v. Curtis, 3 How. 236, was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26th, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at'the time of payment of the duties alleged to have been illegally exacted, and took from the secretary of the treasury the authority to refund conferred by the act of 1839, 5 Stat. 349, 727. This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. S. 449, until repealed by implication by the act of June 30th, 1864,13 Stat. 214. The 14th section of the act last mentioned is, as already cited, in substance, the present sec. 2931 of the Revised Statutes, providing for the appeal to the secretary of the treasury, and the 16th section, being the present'sec. 3012Í,-, Rev. Stats., restores to the secretary of the treasury the authority to refund moneys paid under protest and appeal, which he shall be satisfied were illegally exacted, originally conferred upon him by the act of 1839. And the provision of the act of" } ]

[ { "docid": "8443566", "title": "", "text": "(2005). The question remains whether the district judge’s guideline calculations were correct. Godin had a number of brushes with the law before the motel robbery, but only two prior convictions qualified as crimes of violence or drug offenses. Each was a burglary of a different apartment in the same apartment building — one on July 26, 2002, and the other six days later on August 1, 2002. In both cases, Godin knew the victim, had some grievance, kicked in the apartment door and stole various items; in one of the cases, she also trashed the apartment. Burglary is classified under the pertinent guideline as a crime of violence, U.S.S.G. § 4B1.2(a)(2), so the two 2002 burglaries — together with the instant armed robbery of the motel — supplied the necessary predicates for career offender status, unless the two prior burglaries are counted as only one conviction. The career offender guidelines, by cross-reference, treat the two convictions as only one (if not separated by an intervening arrest) where the offenses (A)occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing. U.S.S.G. § 4A1.2, cmt. 3. Subsection (A) did not apply to Godin’s two burglaries. This leaves subsections (B)and (C) for consideration. Subsection (A)’s rationale is apparent — crimes committed on the same date are arguably less reflective of “career” behavior than those separated by an opportunity to reflect, see United States v. Elwell, 984 F.2d 1289, 1295 (1st Cir.), cert. denied, 508 U.S. 945, 113 S.Ct. 2429, 124 L.Ed.2d 650 (1993)— but the reasons for (B) and (C) have puzzled courts and led to some divergence in interpretation. Why, one might ask, should two separate crimes count for less because they were consolidated for trial or sentencing or, worse still, part of a common scheme or plan? Probably the best explanation is that sometimes such crimes may seem like one course of criminal conduct and that consolidation and the scheme or plan category were regarded as crude proxies for this characteristic, the (frequent) misfit being acknowledged by an" } ]

[ { "docid": "1993021", "title": "", "text": "drug habit). Finally, offenses are not necessarily related merely because they were committed within a short period of time. In United States v. Oldham, 13 Fed.Appx. 221, 226-27, 2001 WL 406424 (6th Cir.2001), we affirmed a district court’s sentencing a defendant as a career offender based upon the defendant’s two convictions for burglarizing — with the same accomplice— houses in two Kentucky counties within hours of each other. We held that the crimes “did not take place on the ‘same occasion’ because they occurred at different times, in different locations, and were committed against different victims.” Id. at 227. Similarly, we held in United States v. Gonzalez that six armed robberies of convenience stores within a two-week period — which were part of a “drug-induced crime spree” and involved the use of the same starter pistol — were not related. Gonzalez, 21 Fed.Appx. at 394-96. Other circuits that have considered this issue have reached similar conclusions. See United States v. Mapp, 170 F.3d 328, 339 (2d Cir.1999) (finding no error in district court’s conclusion that two robberies, committed on consecutive days and against different victims, were not related); United States v. Keller, 58 F.3d 884, 894-95 (2d Cir.1995) (affirming a district court’s finding that defendant’s attempts to commit robberies, four days apart, at different locations and involving different victims, were not related); Brown, 209 F.3d at 1024 (finding three armed robberies of stores within a two month period not related); United States v. Brown, 962 F.2d 560, 564-65 (7th Cir.1992) (finding two bank robberies committed eight days apart not related). The crimes at issue in the present case were committed weeks apart at different locations; the offenses involved different victims; and the defendant had an accomplice in the first offense but not the second. There is no evidence, nor does appellant even allege, that the two armed robberies were jointly planned or that the commission of the first robbery entailed the commission of the second. Accordingly, the district court did not err in finding that these two robberies were not part of a common scheme or plan. CONCLUSION Because the" }, { "docid": "8443570", "title": "", "text": "similar modus operandi” U.S.S.G. § 1B1.3, cmt. 9(A). Godin says that in her case the modus operandi of the two burglaries was similar; she also says that they involved the same apartment building and that each was motivated by a desire for revenge. The district court, siding with the majority of the circuits that have spoken, ruled that section 1B1.3 and its commentary does not control the meaning of section 4A1.2’s “single common scheme or plan”; but the district court said that its conclusion — that the two burglaries were not part of a single common scheme or plan— would be the same even if some weight were given the alleged similarity of modus operandi. There are legitimate arguments for ignoring section 1B1.3, but either way the underlying problem remains to give some sensible meaning to section 4A1.2. We said in Elwell that — for reasons there explained in detail — the “ordinary meaning” of the phrase “single common scheme or plan” should be used. 984 F.2d at 1295. Under that standard, it seems to us that to fall within section 4A1.2(a)(2), burglaries of two different apartments committed by one actor several days apart need something more than resemblance of mode or motive even if that were relevant. No one would say that a judge who tried two similar drug cases back to back did so pursuant to a common scheme or plan. A scheme or plan implies some kind of connective tissue like an initial plan encompassing multiple acts or a sequence of steps to a single end. See United States v. Joy, 192 F.3d 761, 771 (7th Cir.1999), cert. denied, 530 U.S. 1250, 120 S.Ct. 2704, 147 L.Ed.2d 974 (2000). Nothing like that was present in this case. Perversely, as in Elwell, a party to a conspiracy to rob banks may come out ahead under section 4A1.2(a)(2); but this is for the Sentencing Commission to fix, and we will not cure the discrepancy by extending the protection of subsection (B) to someone like Godin who is neither within its language, and whose circumstances do not implicate any obvious" }, { "docid": "22768567", "title": "", "text": "merely because they are committed to achieve a common goal, such as the support of a drug habit or lifestyle, see United States v. Chartier, 970 F.2d 1009, 1016 (2d Cir.1992). It is helpful to consider our decisions in Garcia and Ford in more detail to understand how we arrived at the conclusion that crimes of a similar nature are not necessarily related. In Garcia, the defendant had committed two distinct, separate deliveries of heroin within a nine-day period and within the same vicinity. This Court held that although temporally and geographically alike, the crimes were not part of a common scheme or plan. We stated that the defendant's argument \"`would lead to the illogical result that a defendant who is repeatedly convicted of the same offense on different occasions could never be considered a career offender under the guidelines.'\" Garcia, 962 F.2d at 482 (quoting United States v. Mau, 958 F.2d 234, 236 (8th Cir.1992)). Similarly, in Ford, this Court, relying on Garcia~, held that the defendant's four pri- or state metharnphetarnine delivery convictions were not part of a common scheme or plan. All four of the charges arose from sales to the same undercover officer during a six-day period; two of the sales occurring on the same date and at the same motel. The Court found that \"each sale was a separate transaction, separated by hours, if not days. The fact that the buyer was the same did not make the sales `related' any more than if Ford made four separate trips to the same H.E.B. in one week to buy groceries-there was no common scheme or plan, simply convenience and experience.\" Ford, 996 F.2d at 85. It is clear from Garcia and Ford that the term \"common scheme or plan\" must mean something more than repeated convictions for the same criminal offense. Indeed, we agree with the Seventh Circuit's statement in United States v. Ali, 951 F.2d 827 (7th Cir.1992), that the words \"scheme\" and \"plan\" are \"words of intention, implying that the [prior offenses] have been jointly planned, or at least that it have been evident" }, { "docid": "1993019", "title": "", "text": "a single common scheme or plan. He argues that both robberies were motivated by his addiction to drugs; that his modus operandi in both cases was almost identical; and that the robberies occurred less than three weeks apart. The defendant bears the burden of proving the two prior felony convictions were part of a single common plan or scheme. United States v. Irons, 196 F.3d 634, 638 (6th Cir.1999); United States v. Cowart, 90 F.3d 154, 159 (6th Cir.1996). Horn has failed to meet this burden. In Irons, we held that crimes are part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one offense necessarily requires the commission of the other. Irons, 196 F.3d at 638; see also Carter, 283 F.3d at 758; United States v. Ali, 951 F.2d 827, 828 (7th Cir.1992) (finding the words “scheme” and “plan” to be words of intention, “implying that [offenses] have been jointly planned, or at least that ... the commission of one would entail the commission of the other as well”). “It is beyond question that the simple sharing of a modus operandi cannot alone convert [separate offenses] into one offense by virtue of their being a single common scheme or plan.” Cowart, 90 F.3d at 160; see also United States v. Brown, 209 F.3d 1020, 1024 (7th Cir.2000) (“merely similar, seriatim robberies fall short of qualifying as a ‘single common scheme or plan’ ”). This Court has further held that merely because crimes are part of a crime spree does not mean that they are related. Irons, 196 F.3d at 638; Carter, 283 F.3d at 758. Nor are such offenses related because they were committed to achieve a similar objective, such as the support of a drug habit. See United States v. Gonzalez, 21 Fed.Appx. 393, 397, 2001 WL 1254913 (6th Cir.2001) (citing Brown, 209 F.3d at 1024) (holding that prior convictions are not “related” simply because the crimes used the same modus operandi, were part of a crime spree, or were motivated by the need to support a" }, { "docid": "2270196", "title": "", "text": "1998 conviction for possession and the 2001 conviction for conspiracy occurred in the Dubuque area, and both crimes were investigated by the same law enforcement officer. The conspiracy charge also involved the same types of drugs as found in Weiland’s residence in the 1997 search- — -methamphetamine, marijuana, and cocaine — and the criminal intent in both was similar. Contrary to the argument that the 1997 search of Wei-land’s apartment only involved personal use drugs, the search uncovered other in-dicia of drug dealing — a hand held scale, plastic vials, a large amount of cash, and firearms. This evidence was consistent with the statements of the confidential informant-statements used in support of the application for the search warrant— that Weiland had been involved in the distribution of methamphetamine, cocaine, marijuana and LSD in the Dubuque area for several years. The government admitted at the sentencing hearing that some of the evidence used to support probable cause for the 1997 search warrant was also used as evidence for the conspiracy. It also admitted at oral argument in this court that it could have introduced the possession conviction as substantive evidence of the conspiracy if there had been a trial on the charge. United States v. Kenyon, 7 F.3d 783, 787 (8th Cir.1993), supports the treatment of the 1997 offense as relevant conduct. In Kenyon, we held that a prior conviction for possession of cocaine was relevant conduct for a conspiracy to possess with intent to deliver cocaine. The conduct underlying the state possession conviction “comprise[d] part of the conduct alleged in the count to which [the defendant] pled guilty....” Id. Because the earlier offense was “part of the same criminal scheme” and was “committed within the same time period” it was relevant conduct. Id. Similarly, we conclude that Weiland’s 1998 conviction was for conduct that was part of the same criminal scheme as the conspiracy and was therefore properly calculated as relevant conduct. The government cites a number of cases that are factually different from this one. United States v. Thomas, 894 F.2d 996, 997 (8th Cir.1990), did not involve a" }, { "docid": "22203318", "title": "", "text": "(citing as an example the failure to file a tax return for three consecutive years because such returns are only required at yearly intervals). Section lB1.3(a)(2) applies only to “offenses of a character for which § 3D1.2(d) would require grouping of multiple counts.” Section 3D1.2(d) requires “grouping” of “counts involving substantially the same harm,” which includes drug offenses because the offense level for drug offenses is based largely on the quantity of the substance involved. See U.S.S.G. § 3D1.2(d) (explicitly including section 2D1.1, which covers drug trafficking, among the guideline sections to be grouped). By design, Section lB1.3(a)(2) takes account of offenses that “involve a pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing.” U.S.S.G. § 1B1.3, background. Implicit in this purpose is the limitation that “when illegal conduct does exist in ‘discrete, identifiable units’ apart from the offense of conviction, the Guidelines anticipate a separate charge for such conduct.” United States v. Hahn, 960 F.2d 903, 909 (9th Cir.1992), appeal after remand, 993 F.2d 885 (9th Cir.), cert. denied, - U.S. -, 114 S.Ct. 394, 126 L.Ed.2d 342 (1993). See also United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir.1993); United States v. Mullins, 971 F.2d 1138, 1143 (4th Cir.1992). The guideline only applies if “there are distinctive similarities between the offense of conviction and the remote conduct” and cannot be used to sentence a defendant based on “isolated, unrelated events that happen only to be similar in kind.” Sykes, 7 F.3d at 1336. Several circuit courts have distinguished between the terms “same course of conduct” and “common scheme or plan” by recognizing that a “common scheme or plan” requires that acts “be connected together by common participants or by an overall scheme” whereas the “same course of conduct” concept looks to “whether the defendant repeats the same type of criminal activity over time.” United States v. Silkowski, 32 F.3d 682, 687 (2d Cir.1994) (quoting United States v. Perdomo, 927 F.2d 111, 115 (2d Cir.1991) (internal citations omitted)); United States v. Sanders, 982 F.2d 4, 9 (1st Cir.1992)," }, { "docid": "22768566", "title": "", "text": "same vicinity, were investigated by a single agency, and because the commission of the second crime could not have occurred but for the commission of the first. Unfortunately, the guidelines do not define the term \"common scheme or plan.\" Nor does the commentary to § 4A1.2 make clear what type of scheme or plan is needed to make separate offenses related. United States v. Butler, 970 F.2d 1017, 1024 (2d Cir.1992). However, we start from the bedrock premise that crimes that are merely similar are not necessarily related crimes. See Ford, 996 F.2d at 86; Garcia, 962 F.2d at 482. See also Butler, 970 F.2d at 1024 (\"the term `single common scheme or plan' is not synonymous with `same course of conduct' \"); United States v. Brown, 962 F.2d 560, 564 (7th Cir.1992) (\"a relatedness finding requires more than mere similarity of crimes\"). Additionally, a common criminal motive or similar modus operandi will not cause separate crimes to be related, see United States v. Lowe, 930 F.2d 645 (8th Cir.1991), nor will crimes be related merely because they are committed to achieve a common goal, such as the support of a drug habit or lifestyle, see United States v. Chartier, 970 F.2d 1009, 1016 (2d Cir.1992). It is helpful to consider our decisions in Garcia and Ford in more detail to understand how we arrived at the conclusion that crimes of a similar nature are not necessarily related. In Garcia, the defendant had committed two distinct, separate deliveries of heroin within a nine-day period and within the same vicinity. This Court held that although temporally and geographically alike, the crimes were not part of a common scheme or plan. We stated that the defendant's argument \"`would lead to the illogical result that a defendant who is repeatedly convicted of the same offense on different occasions could never be considered a career offender under the guidelines.'\" Garcia, 962 F.2d at 482 (quoting United States v. Mau, 958 F.2d 234, 236 (8th Cir.1992)). Similarly, in Ford, this Court, relying on Garcia~, held that the defendant's four pri- or state metharnphetarnine delivery convictions" }, { "docid": "2270195", "title": "", "text": "§ lB1.3(a)(2).... When a defendant, who is a member of a conspiracy to distribute, purchases drugs for her personal use from a co-conspirator, the personal-use quantities “ ‘are relevant in determining the quantity of drugs the defendant knew were distributed by the conspiracy....’” What the buyer intends to do with the drugs, in this situation, is irrelevant. Id. (quoting United States v. Innamorati, 996 F.2d 456, 492 (1st Cir.1993)). Following the lead of Fraser, we conclude that drugs that are “part of the same course of conduct or common scheme or plan” of the conspiracy are to be counted as relevant conduct for purposes of determining the base offense level. USSG § lB1.3(a)(2). They are likewise to be considered “part of the instant offense” when computing criminal history under the guidelines. USSG § 4A1.2, comment. (n.l). The record here shows that the 1998 conviction was part of a common plan or scheme to distribute several types of drugs in the Dubuque area during the time period of the conspiracy. The underlying conduct for both the 1998 conviction for possession and the 2001 conviction for conspiracy occurred in the Dubuque area, and both crimes were investigated by the same law enforcement officer. The conspiracy charge also involved the same types of drugs as found in Weiland’s residence in the 1997 search- — -methamphetamine, marijuana, and cocaine — and the criminal intent in both was similar. Contrary to the argument that the 1997 search of Wei-land’s apartment only involved personal use drugs, the search uncovered other in-dicia of drug dealing — a hand held scale, plastic vials, a large amount of cash, and firearms. This evidence was consistent with the statements of the confidential informant-statements used in support of the application for the search warrant— that Weiland had been involved in the distribution of methamphetamine, cocaine, marijuana and LSD in the Dubuque area for several years. The government admitted at the sentencing hearing that some of the evidence used to support probable cause for the 1997 search warrant was also used as evidence for the conspiracy. It also admitted at oral argument" }, { "docid": "11809032", "title": "", "text": "and Order dated October 11, 1991 (“Decision on Remand”), the district court concluded that Chartier’s convictions were not “related” within the meaning of the Guidelines and that Chartier should therefore be considered a career offender. The court discussed United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991), in which this Court had stated that the prior convictions requirement of the career offender guideline should be construed strictly in favor of the defendant; it discussed Chartier I’s directions for the findings to be made on remand; and it discussed decisions from other circuits in which groups of robberies had been found not to be part of a single plan or scheme, including United States v. Rivers, 929 F.2d 136 (4th Cir.) (robberies of two gasoline stations in different states 12 days apart held not part of a single common scheme or plan), cert. denied, — U.S. -, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991); United States v. Jones, 899 F.2d 1097, 1101 (11th Cir.) (upholding ruling that robberies of two banks approximately 90 minutes apart were not part of a single common scheme or plan), cert. denied, — U.S. -, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990); and United States v. Kinney, 915 F.2d 1471, 1472 (10th Cir.1990) (same re robberies of three banks, two in one state, one in another, over a three-month period to support defendant’s drug addiction). Here, the district court stated that, ... accepting all of the defendant’s testimony as true, Chartier has not offered any proof that the four felonies were “related” or part of a “single common scheme or plan”. What has been established is that the four armed robberies involved the same defendant, who committed the same types of crimes, employed the same modus operandi, and claims they were all done to support his heroin addiction. The precedent from the Circuits is clear that the mere similarity of separate crimes committed within a short period of time does not create a “common plan or scheme” so as to avoid career offender status. This is the precise factual situation rejected by the Rivers and" }, { "docid": "1993020", "title": "", "text": "commission of the other as well”). “It is beyond question that the simple sharing of a modus operandi cannot alone convert [separate offenses] into one offense by virtue of their being a single common scheme or plan.” Cowart, 90 F.3d at 160; see also United States v. Brown, 209 F.3d 1020, 1024 (7th Cir.2000) (“merely similar, seriatim robberies fall short of qualifying as a ‘single common scheme or plan’ ”). This Court has further held that merely because crimes are part of a crime spree does not mean that they are related. Irons, 196 F.3d at 638; Carter, 283 F.3d at 758. Nor are such offenses related because they were committed to achieve a similar objective, such as the support of a drug habit. See United States v. Gonzalez, 21 Fed.Appx. 393, 397, 2001 WL 1254913 (6th Cir.2001) (citing Brown, 209 F.3d at 1024) (holding that prior convictions are not “related” simply because the crimes used the same modus operandi, were part of a crime spree, or were motivated by the need to support a drug habit). Finally, offenses are not necessarily related merely because they were committed within a short period of time. In United States v. Oldham, 13 Fed.Appx. 221, 226-27, 2001 WL 406424 (6th Cir.2001), we affirmed a district court’s sentencing a defendant as a career offender based upon the defendant’s two convictions for burglarizing — with the same accomplice— houses in two Kentucky counties within hours of each other. We held that the crimes “did not take place on the ‘same occasion’ because they occurred at different times, in different locations, and were committed against different victims.” Id. at 227. Similarly, we held in United States v. Gonzalez that six armed robberies of convenience stores within a two-week period — which were part of a “drug-induced crime spree” and involved the use of the same starter pistol — were not related. Gonzalez, 21 Fed.Appx. at 394-96. Other circuits that have considered this issue have reached similar conclusions. See United States v. Mapp, 170 F.3d 328, 339 (2d Cir.1999) (finding no error in district court’s conclusion that" }, { "docid": "11783852", "title": "", "text": "court’s ruling that two previous convictions are unrelated for clear error. United States v. Horn, 355 F.3d 610, 613 (6th Cir.2004). “[C]rimes are part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one of the offenses necessarily requires the commission of the other.” Id. at 614 (citing United States v. Irons, 196 F.3d 634, 638 (6th Cir.1999)). Offenses are not necessarily related merely because they were committed within a short period of time or are part of a crime spree. Id. at 614-15 (citations omitted). For example, in a case where a defendant burglarized two houses within hours of each other, “[w]e held that the crimes did not take place on the same occasion because they occurred at different times, in different locations, and were committed against different victims.” Id. at 615 (citing United States v. Oldham, 13 Fed.Appx. 221, 226-27 (6th Cir.2001)) (internal quotations omitted). The crimes at issue in this case, while committed by Alford on the same night, appear unrelated. As the district court noted, Alford began the night with the intention of robbing individuals entering a particular drug house and only when fleeing the scene came across his second victim. Far from having planned out the second robbery, Alford simply happened to stumble upon his victim. Furthermore, the victims were assaulted in different locations (one an alley, the other in front of a drug house) and there is no evidence that the commission of the first offense required commission of the second. Given these factors, the district court’s decision that the two offenses were not part of a common plan or scheme was not clearly erroneous. AFFIRMED." }, { "docid": "8443565", "title": "", "text": "she qualified as a career offender should have been determined by a jury. The Supreme Court has so far declined to extend the sixth amendment prohibition on judicial fact-finding that increases the penalty for a crime beyond the statutory maximum to situations where the question is whether the defendant has previously been convicted of a crime. Godin says that under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a jury is now required at least to determine whether her prior burglaries were related or not. The Supreme Court’s basic concern has been with fact-findings that increase the penalty for a crime beyond the statutory maximum sentence. Because in this case the sentence imposed is within the existing statutory maximum for each of the two crimes, whatever Shepard may entail has no effect here. See United States v. Ngo, 406 F.3d 839, 843 n. 1 (7th Cir.2005); see also United States v. Martins, 413 F.3d 139, 152 (1st Cir.), cert. denied, 546 U.S. 1011, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005). The question remains whether the district judge’s guideline calculations were correct. Godin had a number of brushes with the law before the motel robbery, but only two prior convictions qualified as crimes of violence or drug offenses. Each was a burglary of a different apartment in the same apartment building — one on July 26, 2002, and the other six days later on August 1, 2002. In both cases, Godin knew the victim, had some grievance, kicked in the apartment door and stole various items; in one of the cases, she also trashed the apartment. Burglary is classified under the pertinent guideline as a crime of violence, U.S.S.G. § 4B1.2(a)(2), so the two 2002 burglaries — together with the instant armed robbery of the motel — supplied the necessary predicates for career offender status, unless the two prior burglaries are counted as only one conviction. The career offender guidelines, by cross-reference, treat the two convictions as only one (if not separated by an intervening arrest) where the offenses (A)occurred on the same occasion, (B)" }, { "docid": "23055247", "title": "", "text": "so holding, we observe that the case at bar is distinguishable on its facts from United States v. Houser, No. 90-30043, slip op. 13005, 13015, 1990 WL 155600 (9th Cir. Oct. 18, 1990), wherein defendant Houser alleged that he was improperly sentenced as a career offender. To qualify for career offender status under section 4B1.1(3) of the Guidelines, a criminal must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(3). Houser’s two prior felony convictions, both for the criminal sale of dangerous drugs, occurred on June 7, 1984 and on July 19, 1984 in state courts in two different Montana coun ties. Houser, No. 90-30043, slip op. at 13015. This court held that the district court erred when it treated the two convictions as unrelated under U.S.S.G. § 4A1.2(a)(2). Id. at 13017. Houser’s two 1984 drug convictions were related because they were “part of a common scheme or plan” under U.S.S.G. § 4A1.2(a)(2), comment, (n. 3). Both resulted from a single criminal investigation. Moreover, both illegal drug sales took place between Houser and the same government agent within “a short period of time.” Id. at 13016. It was the nature of the offenses which was controlling, not mere geographical separation. Davis’s case is distinguishable from Houser on three factual grounds. First, Davis committed his crimes over thirteen months apart and not “within a short period of time.” Second, each crime involved a different victim, in one case a landlord and in the other the seller of a pickup truck. Third, Davis was arrested by two different law enforcement agencies. The arrests apparently took place two years apart, and Davis has presented no evidence that the arrests arose out of a single criminal investigation conducted by a single law enforcement agency, as was the case in Houser. D. Davis’s cases were not “consolidated” for trial or sentencing either as a matter of fact or as a matter of federal law. Application Note 3 contains no definition of the term “consolidated.” Although this court did not define the term “consolidated”" }, { "docid": "23643707", "title": "", "text": "scheme or plan” as the 1992 offense. Id. application note 9(A); see United States v. Hill, 79 F.3d 1477, 1482 (6th Cir.1996) (noting that several courts have found that a “ ‘common scheme or plan’ requires that acts ‘be connected together by common participants or by an overall scheme’ whereas the ‘same course of conduct’ concept looks to ‘whether the defendant repeats the same type of criminal activity over time’ ”) (quoting United States v. Silkowski, 32 F.3d 682, 687 (2d Cir.1994) (further citations omitted)). Although the offenses arguably shared the common general purpose of importing marijuana for distribution in the United States, because Friesen testified that she did not meet Wall until 1995, the offenses did not' share similar accomplices. Moreover, there is insufficient evidence of a distinctive modus operandi connecting the later offenses, which involved large quantities of marijuana concealed in pick-up trucks, to the 1992 offense, which involved a relatively small amount of marijuana secreted in Wall’s car. Thus, we must examine whether the 1996 and 1997 offenses can be considered part of the “same course of conduct” as the 1992 offense. U.S. Sentencing Guidelines Manual § 1B1.3 application note 9(B). As described above, this depends on “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.” Id. The time interval between the 1992 offense and the 1996 and 1997 offenses is considerable. No evidence in the record indicates that Wall continued his drug activities between his 1992 arrest and the offenses involving Friesen which began in early 1996. Cf. Moore, 927 F.2d at 828 (finding that intervening arrest for marijuana possession helped connect defendant’s earlier drug activity to his offense of conviction such that the earlier drug activity could be considered relevant conduct). Although “[tjhere is no separate statute of limitations beyond which relevant conduct suddenly becomes irrelevant,” id., we find that the incidents in the instant case are separated by an unprecedented lapse of time for a case involving drug distribution. Cf. United States v. Powell, 124 F.3d 655, 666 (5th Cir.1997) (finding that defendant’s" }, { "docid": "8443567", "title": "", "text": "were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing. U.S.S.G. § 4A1.2, cmt. 3. Subsection (A) did not apply to Godin’s two burglaries. This leaves subsections (B)and (C) for consideration. Subsection (A)’s rationale is apparent — crimes committed on the same date are arguably less reflective of “career” behavior than those separated by an opportunity to reflect, see United States v. Elwell, 984 F.2d 1289, 1295 (1st Cir.), cert. denied, 508 U.S. 945, 113 S.Ct. 2429, 124 L.Ed.2d 650 (1993)— but the reasons for (B) and (C) have puzzled courts and led to some divergence in interpretation. Why, one might ask, should two separate crimes count for less because they were consolidated for trial or sentencing or, worse still, part of a common scheme or plan? Probably the best explanation is that sometimes such crimes may seem like one course of criminal conduct and that consolidation and the scheme or plan category were regarded as crude proxies for this characteristic, the (frequent) misfit being acknowledged by an explicit warning in the commentary that their application could result in undue leniency, correctable by an upward departure. See U.S.S.G. § 4A1.2, cmt. 3. This “Rube Goldberg” gimmickry, Elwell, 984 F.2d at 1295, has not encouraged an especially generous reading of subsections (B) and (C). Our own cases insisting on an order of consolidation or some other indicia of formal consolidation for (C) are representative, see United States v. Bell, 485 F.3d 54, 58-59 (1st Cir.2007); Martins, 413 F.3d at 152; United States v. Correa, 114 F.3d 314, 317 (1st Cir.), cert. denied, 522 U.S. 927, 118 S.Ct. 326, 139 L.Ed.2d 253 (1997), and Godin conceded in the district court that her prior burglary convictions were not formally consolidated. Thus it does not matter that she pled and was sentenced for both crimes at the same time, nor whether Maine has a mechanism for formal consolidation. In the absence of an order of consolidation, relatedness under subsection (C)might nonetheless be established by sufficient indicia of formal consolidation. See Bell, 485 F.3d at 58-59. Here we" }, { "docid": "8443568", "title": "", "text": "explicit warning in the commentary that their application could result in undue leniency, correctable by an upward departure. See U.S.S.G. § 4A1.2, cmt. 3. This “Rube Goldberg” gimmickry, Elwell, 984 F.2d at 1295, has not encouraged an especially generous reading of subsections (B) and (C). Our own cases insisting on an order of consolidation or some other indicia of formal consolidation for (C) are representative, see United States v. Bell, 485 F.3d 54, 58-59 (1st Cir.2007); Martins, 413 F.3d at 152; United States v. Correa, 114 F.3d 314, 317 (1st Cir.), cert. denied, 522 U.S. 927, 118 S.Ct. 326, 139 L.Ed.2d 253 (1997), and Godin conceded in the district court that her prior burglary convictions were not formally consolidated. Thus it does not matter that she pled and was sentenced for both crimes at the same time, nor whether Maine has a mechanism for formal consolidation. In the absence of an order of consolidation, relatedness under subsection (C)might nonetheless be established by sufficient indicia of formal consolidation. See Bell, 485 F.3d at 58-59. Here we have separate docket numbers and separate Judgment and Commitment orders. The only indicia to the contrary are the probation documents — which are not enough on their own. Accord id. at 59. The “single common scheme or plan” rubric of subsection (B) raises a more difficult issue. The concept is vague and unlike subsection (C) there is no formal test, such as a single indictment or a formal order of consolidation. The circuit courts are divided as to whether the meaning of the phrase in subsection (B) is the same as the phrase “common scheme or plan” in section lB1.3(a)(2), which attributes to the defendant being sentenced “relevant conduct” including certain acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” This matters only because the relevant conduct provision has commentary that elaborates on the phrase, saying that a common scheme or plan must have at least one common factor connecting the two crimes, such as “common victims, common accomplices, common purpose, or" }, { "docid": "11783851", "title": "", "text": "to rob people who showed up at the drug house to purchase drugs, because the defendant expected that those people either had drugs in their possession or money on their person. That’s what happened with regard to the first incident. Those people showed up to purchase drugs, and they did have money. Instead of continuing, though, on this common scheme, that is, continuing to wait outside the house to rob additional people coming to buy drugs, the defendant left the vicinity and went approximately 300 feet away. And while he was 300 feet away, he actually encountered someone else. I don’t know the exact location there, but I don’t think it would be rational to assume that this person was on his way to that very same drug house. So I don’t believe that the second robbery was a part of the common scheme or plan to rob people coming into the drug house. Therefore the Court denies the defendant’s motion ... to treat[] these two prior robberies as one incident.... We review a district court’s ruling that two previous convictions are unrelated for clear error. United States v. Horn, 355 F.3d 610, 613 (6th Cir.2004). “[C]rimes are part of the same scheme or plan only if the offenses are jointly planned, or, at a minimum, the commission of one of the offenses necessarily requires the commission of the other.” Id. at 614 (citing United States v. Irons, 196 F.3d 634, 638 (6th Cir.1999)). Offenses are not necessarily related merely because they were committed within a short period of time or are part of a crime spree. Id. at 614-15 (citations omitted). For example, in a case where a defendant burglarized two houses within hours of each other, “[w]e held that the crimes did not take place on the same occasion because they occurred at different times, in different locations, and were committed against different victims.” Id. at 615 (citing United States v. Oldham, 13 Fed.Appx. 221, 226-27 (6th Cir.2001)) (internal quotations omitted). The crimes at issue in this case, while committed by Alford on the same night, appear unrelated." }, { "docid": "11809041", "title": "", "text": "premise remained that “substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers,” id. The Commission adopted the career offender guideline provisions discussed in Part I.A. above in response to the congressional mandate in § 994(h). It set a range of imprisonment near the maximum for repeat violent offenders and repeat drug traffickers, and attempted to clarify that what was meant by “two prior felony convictions” was not, inter alia, two convictions for acts that were related by reason of being part of a single common scheme or plan. The Guidelines do not offer explicit clarification of the meaning of the term “single common scheme or plan.” In other parts of the Guidelines, however, such as those dealing with relevant conduct for calculation of a defendant’s offense level, the term has been used in conjunction with the phrase “same course of conduct,” and we have been careful to note that “same course of conduct” and “common scheme or plan” are not synonymous. See, e.g., United States v. Perdomo, 927 F.2d 111, 114-15 (2d Cir.1991) (construing Guidelines § 1B1.3(a)(2)); United States v. Santiago, 906 F.2d 867, 871-73 (2d Cir.1990) (same). In the career offender context as well, we think it clear that the term “single common scheme or plan” must have been intended to mean something more than simply a repeated pattern of criminal conduct. A defendant may follow the same course of conduct by, e.g., engaging in criminal acts, performing certain roles in the crimes, and repeating those acts and reprising those roles. His pattern, however, even if repeated within a short period of time, see, e.g., United States v. Butler, 970 F.2d 1017, 1027 (2d Cir.1992) (two robberies 15 minutes apart), does not necessarily mean that he has acted pursuant to a single common scheme or plan. The concept of “scheme” or “plan” involves subjective as well as objective elements, though the subjective elements may of course be inferable from events that are objectively observable. Whether or not such an inference is to be drawn is a question for the finder of fact. The mere" }, { "docid": "5543354", "title": "", "text": "as well as his other unconvicted offenses, i.e., distribution of crack. When the district court discussed the inclusion of Moore’s September 1992 drug deal under Note 12 to § 2D1.1 (Nov. 1992) as part of the same course of conduct as his earlier sales, it equated the inclusion of drug quantities under that provision to the inclusion of drugs as relevant conduct. In that discussion, the court said, There is no reason to conclude that offense there [in Note 12 to § 2D1.1 (Nov. 1992) ] does not include relevant conduct, because that is precisely how offense is defined in that guideline at U.S.S.G. Section 1B1.1, Commentary Application Note 1-L. See U.S. v. Garcia, 69 F.3d at 810, Seventh Circuit case from 1995, which uses [the] relevant conduct and negotiated amounts provisions together, as well as U.S. v. Nichols, 986 F.2d 1199, Eighth Circuit, 1993. The September 1992 drug deal can clearly be included for sentencing purposes as relevant conduct under the 1991 version of the Sentencing Guidelines, which Moore agrees is the correct version to use. The legal standard for determining whether a defendant’s uncharged acts are part of the same course of conduct as his offense of conviction is quite generous. This circuit has adopted the view of the Second Circuit in distinguishing between a “common scheme or plan” and the “same course of conduct.” See Roederer, 11 F.3d at 979 (quoting United States v. Perdomo, 927 F.2d 111, 115 (2d Cir.1991)). In assessing a defendant’s course of conduct, the court is to consider such factors “ ‘as the nature of the defendant’s acts, his role, and the number and frequency of repetitions of those acts, in determining whether they indicate a behavior pattern.’ Similarity, regularity, and temporal proximity are the significant elements to be evaluated.” Id. (quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir.1990)). In Moore’s case, the record shows substantial similarity between his nine-ounce crack deal in September 1992 and the smaller deals that comprised the earlier conspiracy: The same undercover agents negotiated the deal, for the same kind of illegal substance, using" }, { "docid": "8443569", "title": "", "text": "have separate docket numbers and separate Judgment and Commitment orders. The only indicia to the contrary are the probation documents — which are not enough on their own. Accord id. at 59. The “single common scheme or plan” rubric of subsection (B) raises a more difficult issue. The concept is vague and unlike subsection (C) there is no formal test, such as a single indictment or a formal order of consolidation. The circuit courts are divided as to whether the meaning of the phrase in subsection (B) is the same as the phrase “common scheme or plan” in section lB1.3(a)(2), which attributes to the defendant being sentenced “relevant conduct” including certain acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” This matters only because the relevant conduct provision has commentary that elaborates on the phrase, saying that a common scheme or plan must have at least one common factor connecting the two crimes, such as “common victims, common accomplices, common purpose, or similar modus operandi” U.S.S.G. § 1B1.3, cmt. 9(A). Godin says that in her case the modus operandi of the two burglaries was similar; she also says that they involved the same apartment building and that each was motivated by a desire for revenge. The district court, siding with the majority of the circuits that have spoken, ruled that section 1B1.3 and its commentary does not control the meaning of section 4A1.2’s “single common scheme or plan”; but the district court said that its conclusion — that the two burglaries were not part of a single common scheme or plan— would be the same even if some weight were given the alleged similarity of modus operandi. There are legitimate arguments for ignoring section 1B1.3, but either way the underlying problem remains to give some sensible meaning to section 4A1.2. We said in Elwell that — for reasons there explained in detail — the “ordinary meaning” of the phrase “single common scheme or plan” should be used. 984 F.2d at 1295. Under that standard, it seems to" } ]

[ { "docid": "23170786", "title": "", "text": "Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1608(e), governs the requirements for obtaining a default judgment against a foreign sovereign. Section 1608(e) provides: No judgment of default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. 28 U.S.C. § 1608(e) (emphasis added). Congress intended § 1608(e) to provide foreign states protection from unfounded default judgments rendered solely upon a procedural default. H.R.Rep. No. 1487, 94th Cong., 2d Sess. 26 (1976), reprinted in 1976 U.S.C.C.AN. 6604, 6625. Section 1608(e) is modeled after Fed.R.Civ.P. 55(e), which similarly protects the federal government from default judgments based solely upon procedural defaults. Id. Rule 55(e) “rests on the rationale that the taxpayers at large should not be subjected to the cost of a judgment entered as a penalty against a government official which comes as a windfall to the individual litigant.” Campbell v. Eastland, 307 F.2d 478, 491 (5th Cir.1962); see also Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir.1994) (Rule 55(e) and § 1608(e) reflect congressional recognition that public fisc should be protected from unfounded claims which would be granted solely because of government’s delay in responding). IAL does not contest the necessity of “establishing [its] claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). IAL argues, rather, that it presented such evidence through affidavits and invoices detailing the amounts owed, as well as the underlying lease agreements and guaranties. In granting IAL default judgment, the district court “considered the motion and the pertinent portions of the record,” and cited IAL’s affidavit as to the amounts due from Dominicana. As noted, however, a default judgment governed by § 1608(e) must be treated differently than an ordinary default judgment. Under § 1608(e), in addition to damages, the claimant must “establish his claim or right to relief,” and must do so by “evidence satisfactory to the court.”" } ]

[ { "docid": "9659684", "title": "", "text": "granted Plaintiffs’ motion. ECF No. 51 at 11. The Court found that Plaintiffs had accomplished service and ordered the Clerk of the Court to enter a default as to each Defendant pursuant to Fed. R. Civ. P. 55(a). Id. The Clerk of the Court entered default on January 22, 2016. ECF No. 52. The Court held a liability hearing on November 16 and 17, 2016, at which Plaintiffs offered documentary, photographic and video evidence, and presented the testimony of fact and expert witnesses. This hearing was limited to Defendants’ liability—Plaintiffs were not required to present evidence of damages. At the close of the hearing Plaintiffs filed Proposed- Findings of Fact, and Conclusions of Law. ECF No. 71. II. LEGAL STANDARD The entry of default judgment is governed by Fed. R. Civ. P. 55. “The determination of whether a default judgment is appropriate is committed to the discretion of the trial court.” Hanley-Wood LLC v. Hanley Wood LLC, 783 F.Supp.2d 147, 150 (D.D.C. 2011) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). Before granting default judgment, the Court must satisfy itself of its jurisdiction, and “[t]he party seeking default judgment has the burden of establishing both subject matter jurisdiction over the claims and personal jurisdiction over the defendants.” Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016). Under the FSIA specifically, this Court cannot enter default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003) (“The court ... has an obligation to satisfy itself that plaintiffs have established a right to relief.”). “[T]he FSIA leaves it to the court to .determine precisely how much and what kinds of evidence the plaintiff must provide,” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014), and “[ujncontroverted factual allegations that are supported by admissible evidence are taken as true,” Thuneibat, 167 F.Supp.3d at 33. III. FINDINGS OF FACT The following Findings of Fact" }, { "docid": "368733", "title": "", "text": "joint pain and stiffness. Id. (4)Tzvi Rozenman 78. Tzvi Rozenman is, and was at the time of the bombing, an American citizen. Tr. at 2/78. 79. Mr. Rozenman is plaintiff Noam Rozenman’s father. Id. 80. Since the bombing, Mr. Rozenman has dedicated his time and effort to care for his son. Tr. at 2/81. 81. Mr. Rozenman suffers from grief and anguish caused by his son’s injuries. Ex. 13. III. CONCLUSIONS OF LAW A. Jurisdiction and Liability 1. Legal Standard for a Default Judgment A court shall not enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232-33 (D.C.Cir.2003). This “satisfactory to the court” standard is identical to the standard for entry of default judgments against the United States in Federal Rule of Civil Procedure 55(e). Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). In evaluating the plaintiffs’ proof, the court may “accept as true the plaintiffs’ uncontroverted evidence.” Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000). In FSIA default judgment proceedings, the plaintiffs may establish proof by affidavit. Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002). 2. Legal Standard for Subject-Matter Jurisdiction and Liability In order to establish subject-matter jurisdiction, the plaintiffs must establish an exception to the defendant foreign state’s sovereign immunity. 28 U.S.C. §§ 1604, 1605(a)(7). The Antiterrorism and Effective Death Penalty Act of 1996 amended the FSIA and waived the sovereign immunity of state sponsors of terrorism. 28 U.S.C. § 1605(a)(7); Elahi, 124 F.Supp.2d at 107. When an exception to sovereign immunity exists under 28 U.S.C. § 1605(a)(7), this court has original subject-matter jurisdiction pursuant to 28 U.S.C. § 1330(a). Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 435, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); Elahi, 124 F.Supp.2d at 106. Creating a cause of action for victims of terrorism, Congress amended the FSIA with the Civil Liability for Acts of State Sponsored Terrorism Act, commonly known as" }, { "docid": "11643234", "title": "", "text": "be applied inflexibly to deny a willing foreign state the opportunity to offer a full defense to an FSIA action: Foreign sovereigns unfamiliar with the United States judicial system may fail to comprehend accurately what the FSIA ■means and how it operates. Intolerant adherence to default judgments against foreign states could adversely affect this nation’s relations with other nations and undermine the State Department’s continuing efforts to encourage ... foreign sovereigns generally to resolve disputes within the United States’ legal framework. ... When a defendant foreign state has appeared and asserts legal defenses, albeit after a default judgment has been entered, it is important that those defenses be considered carefully and, if possible, that the dispute be resolved on the basis of all relevant legal arguments. Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1552 & n. 19 (D.C.Cir.1987) (quotation omitted). Third, section 1608(e) of the FSIA provides that a court cannot enter judgment by default against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). This provi sion requires the Court to satisfy itself that there exists an adequate legal and factual basis for plaintiffs’ claims. See, e.g., Boeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003); Regier v. Islamic Republic of Iran, 281 F.Supp.2d 87, 88-89 (D.D.C.2003). Even if it were true that the Sudan defendants committed procedural error in some respect upon appearing in the case, the Court is not,inclined to prevent the Sudan defendants from making arguments in their own defense that the Court would have a statutory obligation to fully consider even in their absence. See Int’l Road Fed’n v. Embassy of the Dem. Republic of the Congo, 131 F.Supp.2d 248, 250 (D.D.C.2001) (“Congress intended § 1608(e) to provide foreign states protection from unfounded default judgments rendered solely upon a procedural default.”). Finally, it is not evident to the Court that there is any procedural error here. Plaintiffs seize on the fact that Local Civil Rule 7(g) states that a “motion to vacate an entry of default" }, { "docid": "8253214", "title": "", "text": "For a plaintiff to prevail in a FSIA default proceeding, the plaintiff must present a legally sufficient prima fa-cie case, i.e., “a legally sufficient evidentia-ry basis for a reasonable jury to find for plaintiff.” Ungar v. Islamic Republic of Iran, 211 F.Supp.2d 91, 98 (D.D.C.2002). Although a court receives evidence from only the plaintiff when a foreign sovereign defendant has defaulted, 28 U.S.C. § 1608(e) does not require a court to demand more or different evidence than it would ordinarily receive in order to render a decision. Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir.1994). In evaluating the plaintiffs proofs, a court may “accept as true the plaintiffs’ uncontroverted evidence,” Estate of Botvin v. Islamic Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C.2007); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000), and a plaintiff may establish proof by affidavit. Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002). While a plaintiff needs to demonstrate a prima facie case to obtain a judgment of liability in a FSIA case, a plaintiff must show entitlement to punitive damages by clear and convincing evidence. Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 48 (D.D.C.2003). Thus, to prevail on their FSIA claims, Plaintiffs must demonstrate a prima facie case of liability. With regard to their claims for punitive damages, Plaintiffs must present clear and convincing evidence. By its failure to appear and defend itself, Syria put itself at risk that the Plaintiffs’ uncontroverted evidence would be satisfactory to prove its points. The Court finds that the Plaintiffs have presented satisfactory evidence to prove liability and damages, including punitive damages. B. Service Service under the FSIA is governed by 28 U.S.C. § 1608. Subsection (a) provides for service on a foreign state and subsection (b) provides for service on an agency or instrumentality of a foreign state. To determine whether a foreign entity should be treated as the state itself or as an agency or instrumentality, courts apply the core functions test: if the core functions of the entity are governmental, it is treated" }, { "docid": "9397722", "title": "", "text": "3, 1975 in Jerusalem, Israel, but was a citizen of the United States. Id., Ex. 1(h). At 18-years-old, Nach-shon began his three year commitment to the Israeli Defense Forces. He was assigned to the Golani Brigade and was a Corporal at the time of his death. III. CONCLUSIONS OF LAW A. Jurisdiction 1. Legal Standard for a Default Judgment A court shall not enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003). This “satisfactory to the court” standard is identical to the standard for entry of default judgments against the United States in Federal Rule of Civil Procedure 55(e). Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). In evaluating the plaintiffs’ proof, the court may “accept as true the plaintiffs’ uncontroverted evidence,” Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000), including proof by affidavit, Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002). 2. Legal Standard for Subject-Matter Jurisdiction For the court to have subject-matter jurisdiction, the plaintiffs must establish an exception to the defendant foreign state’s sovereign immunity. 28 U.S.C. §§ 1604, 1605(a)(7). The Antiterrorism and Effective Death Penalty Act of 1996 amended the FSIA and waived the sovereign immunity of state sponsors of terrorism when that state provides “material support” for “an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking” resulting in personal injury or death. 28 U.S.C. § 1605(a)(7); Elahi, 124 F.Supp.2d at 107. When an exception to sovereign immunity exists under 28 U.S.C. § 1605(a)(7), this court has original subject-matter jurisdiction pursuant to 28 U.S.C. § 1330(a). Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 435, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); Elahi, 124 F.Supp.2d at 106. To establish subject-matter jurisdiction pursuant to the FSIA and its amendments, the plaintiffs must prove with “evidence satisfactory to the court” the following elements: (1) that personal injury or death resulted from an act of torture, extrajudicial" }, { "docid": "17954964", "title": "", "text": "sponsors of terrorism — entities particularly unlikely to submit to this country’s laws — from escaping liability for their sins.” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047-48 (D.C.Cir.2014) (quoting 28 U.S.C. § 1608(e)). With this objective in mind, the D.C. Circuit has instructed that “courts have the authority — indeed, we think, the obligation — to ‘adjust [evidentiary requirements] to ... differing situations.’ ” Id. (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981)). Courts must draw their “ ‘findings of fact and conclusions of law from admissible testimony in accordance with the Federal Rules of Evidence.’ ” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 21 n. 1 (D.D.C.2001)). Uncontroverted factual allegations that are supported by admissible evidence are taken as true. Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 386 (D.D.C.2015) (citing Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C.2010)); Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C.2008) (quoting Estate of Botvin v. Islamic Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C.2007)), aff'd Gates v. Syrian Arab Republic, 646 F.3d 1 (D.C.Cir.2011). III. DISCUSSION A default judgment may be entered when (1) the Court has subject matter jurisdiction over the claims, (2) personal jurisdiction is properly exercised over the defendants, (3) the plaintiffs have presented satisfactory evidence to establish their claims against the defendants, and (4) the plaintiffs have satisfactorily proven that they are entitled to the monetary damages they seek. Each of these requirements is addressed seriatim below. A. SUBJECT MATTER JURISDICTION UNDER THE FSIA The Syrian Arab Republic is indisputably a foreign sovereign and the Syrian Military Intelligence, which is a “political subdivision” of Syria, is also considered a foreign sovereign for the purposes of this lawsuit under 28 U.S.C. § 1603(a). See Gates, 646 F.3d at 2 n. 1 (“The Syrian Military Intelligence and the individual defendants are considered part of the state itself under the FSIA.” (citing 28 U.S.C. § 1603(a),(b); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033-34 (D.C.Cir.2004), superseded by statute, 28 U.S.C. § 1605A;" }, { "docid": "11897073", "title": "", "text": "Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993)). Under FSIA the foreign sovereign has “immunity from trial and the attendant burdens of litigation ... not just a defense to liability on the merits.” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C.Cir.2000) (quoting Foremost-McKesson v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990)). “In order to preserve full scope of sovereign immunity, the district court must make critical preliminary determinations of its own jurisdiction as early in litigation against a foreign sovereign as possible.” Kilburn v. Socialist People’s Libyan Arab, 376 F.3d 1123, 1127 (D.C.Cir.2004) (citing Phoenix Consulting, 216 F.3d at 39). The special circumstances of a foreign sovereign require the court to engage in more than the usual pretrial factual and legal determinations. Foremost-McKesson, 905 F.2d at 449 (D.C.Cir.1990). The D.C. Circuit has noted that it is particularly important that the court “satisfy itself of its authority to hear the case” before trial. Id. (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179 (D.C.Cir.1984)). 1. Evidentiary Standard for a Default Judgment on an FSIA Claim The FSIA sets the same evidentiary standard for default judgments against foreign-state defendants as against the United States itself as a defendant, to wit: “No judgment by default shall be entered ... against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” Compare 28 U.S.C. § 1608(e) with Fed.R.CivP. 55(d); Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003). In evaluating the plaintiffs proof, a court contemplating the entry of a default judgment may accept as true the plaintiffs uncontroverted evidence, which may take the form of affidavits. Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 53 (D.D.C.2006). A flexible approach has been utilized in determining what procedures the court should employ in determining whether Rule 55(d)’s requirement of evidence satisfactory to the court is fulfilled. The court in Commercial Bank of Kuwait v. Rafidain Bank, 15" }, { "docid": "8253215", "title": "", "text": "a FSIA case, a plaintiff must show entitlement to punitive damages by clear and convincing evidence. Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 48 (D.D.C.2003). Thus, to prevail on their FSIA claims, Plaintiffs must demonstrate a prima facie case of liability. With regard to their claims for punitive damages, Plaintiffs must present clear and convincing evidence. By its failure to appear and defend itself, Syria put itself at risk that the Plaintiffs’ uncontroverted evidence would be satisfactory to prove its points. The Court finds that the Plaintiffs have presented satisfactory evidence to prove liability and damages, including punitive damages. B. Service Service under the FSIA is governed by 28 U.S.C. § 1608. Subsection (a) provides for service on a foreign state and subsection (b) provides for service on an agency or instrumentality of a foreign state. To determine whether a foreign entity should be treated as the state itself or as an agency or instrumentality, courts apply the core functions test: if the core functions of the entity are governmental, it is treated as the state itself; and if the core functions are commercial, it is treated as an agency or instrumentality. Roeder, 333 F.3d at 234. In this case, service upon all Defendants was perfected under 28 U.S.C. § 1608(a), which governs service on foreign states. Obviously, Syria is a foreign state. Further, the law treats each of the other Defendants as the foreign state. Syrian Military Intelligence is considered to be the foreign state itself because its core functions are governmental, not commercial. See Roeder, 333 F.3d at 234. Further, President Assad and General Shawkat are categorized as the foreign state itself because “an officer of an entity that is considered the foreign state itself under the core functions test should also be treated as the state itself for purposes of service of process under § 1608.” Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53, 65-66 (D.D.C.2007); see also Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1034 (D.C.Cir.2004) (an official-capacity claim against a government official is a claim against the government itself). While" }, { "docid": "4899948", "title": "", "text": "7. Finally, when default is sought under the FSIA, a claimant must “establish[ ] his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). “This provides foreign sovereigns- a special protection akin to that assured the federal government by Fed. R. Civ. P. 55(e),” which has been renumbered by the 2007 amendment to Rule 55(d). Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C. Cir. 2014); see also H.R. Rep, No. 94-1487, at 26 (1976) (stating that § 1608(e) establishes “the same requirement applicable to default judgments against the U.S. Government under rule 55(e), F.R. Civ. P”), While the “FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must' provide, requiring only that it be ‘satisfactory to the court,’” courts must be mindful that Congress enacted Section 1605A, FSIA’s terrorism exception, and Section 1608(e) with the “aim[ ] to prevent state sponsors of terrorism—entities particularly unlikely to submit to this country’s laws—from escaping liability for their sins.” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047-48 (D.C. Cir. 2014) (quoting 28 U.S.C. § 1608(e)). With this objective in mind, the D.C. Circuit has instructed that “courts have the authority—indeed, we think, the obligation—to ‘adjust [evidentiary requirements] to ... differing situations.’ ” Id. (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)). Courts must draw them “findings of fact and conclusions of law from admissible testimony in accordance with the Federal Rules of Evidence.” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 21 n.1 (D.D.C. 2001)). Uncontroverted factual allegations that are supported by admissible evidence are taken as true. Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 386 (D.D.C. 2015) (“Courts may rely on uncon-troverted factual allegations that are supported by affidavits.” (citing Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010))); Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C. 2008) (quoting Estate of Botvin v. Islamic Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C. 2007)), aff'd, 646 F.3d 1" }, { "docid": "17954963", "title": "", "text": "529 F.3d 1112, 1115 (D.C.Cir.2008) (“[T]he party claiming subject matter jurisdiction ... has the burden to demonstrate that it exists.”). Finally, when default is sought under the FSIA, a claimant must “establish! ] his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). “This provides foreign sovereigns a special protection akin to that assured the federal government by Fed. R. Civ. P. 55(e),” which has been renumbered by the 2007 amendment to Rule 55(d). Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C.Cir.2014); see also H.R. Rep. No. 94-1487, at 26 (1976) (stating that § 1608(e) establishes “the same requirement applicable to default judgments against the U.S. Government under rule 55(e), F.R. Civ. P.”). While the “FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, requiring only that it be ‘satisfactory to the court,’ ” courts must be mindful that Congress enacted Section 1605A, FSIA’s terrorism exception, and Section 1608(e) with the “aim[ ] to prevent state sponsors of terrorism — entities particularly unlikely to submit to this country’s laws — from escaping liability for their sins.” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047-48 (D.C.Cir.2014) (quoting 28 U.S.C. § 1608(e)). With this objective in mind, the D.C. Circuit has instructed that “courts have the authority — indeed, we think, the obligation — to ‘adjust [evidentiary requirements] to ... differing situations.’ ” Id. (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981)). Courts must draw their “ ‘findings of fact and conclusions of law from admissible testimony in accordance with the Federal Rules of Evidence.’ ” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 21 n. 1 (D.D.C.2001)). Uncontroverted factual allegations that are supported by admissible evidence are taken as true. Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 386 (D.D.C.2015) (citing Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C.2010)); Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C.2008) (quoting Estate of Botvin v. Islamic Republic of Iran, 510" }, { "docid": "23239716", "title": "", "text": "pound truck bomb outside of Khobar Towers, a United States military complex in Dhahran, Saudi Arabia.” Second Amended Complaint, at 3. Both the plaintiffs and the victims to which they are related were United States nationals at the time the bombing occurred. Finally, defendant Iran’s support of an entity that ' committed an extrajudicial killing squarely falls within the ambit of the statute. Defendants MOIS and the IRGC are considered to be a division of state of Iran, and thus the same determinations apply to their conduct. Roeder, 333 F.3d at 234; see also Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 116 (D.D.C.2005) (Bates, J.) (analogizing the IRGC to the MOIS for purposes of liability, and concluding that both must be treated as the state of Iran itself). Personal jurisdiction exists over a non-immune sovereign so long as service of process has been made under section 1608 of the FSIA. See Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 298 (D.D.C.2003) (Lamberth, J.). In this case, service of process has been made. Accordingly, this Court has in personam jurisdiction over defendants Iran, MOIS, and IRGC. II. Legal Standard for FSIA Default Judgment Under the Foreign Sovereign Immunities Act, “[n]o judgement by default shall be entered by a court of the United States or of a state against a foreign state ... unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232-33 (D.C.Cir.2003), cert. denied, 542 U.S. 915, 124 S.Ct. 2836, 159 L.Ed.2d 287 (2004). In default judgment cases, plaintiffs may present evidence in the form of affidavits. Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74, 82 (D.D.C. Mar.29, 2006) (quoting Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003)). Upon evaluation, the court may accept plaintiffs’ uncontroverted evidence as trae. Campuzano, 281 F.Supp.2d at 268. This Court accepts the uncontested evidence and testimony submitted by plaintiffs as true in light of the fact that the defendants in this action have not objected to it" }, { "docid": "8253213", "title": "", "text": "the regime[] in Syria....” Deeb T-l-66. 51. In 2003, Syria’s foreign minister stated publicly that it was in Syria’s interest to see the American invasion of Iraq fail. Schenker T-l-87. 52. In this environment, it is clear that support for Zarqawi and his network from Syrian territory or Syrian government actors could not have been accomplished without the authorization of the Syrian government and Syrian Military Intelligence through President Assad and General Shawkat. III. CONCLUSIONS OF LAW A. Burden of Proof The FSIA specifies that a court cannot enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003) (“The court still has an obligation to satisfy itself that plaintiffs have established a right to relief.”). Section 1608(e) provides protection to foreign States from unfounded default judgments rendered solely upon a procedural default. Compania Interamericana Export-Import, S.A. v. Compania Dominicana, 88 F.3d 948, 950-51 (11th Cir.1996). For a plaintiff to prevail in a FSIA default proceeding, the plaintiff must present a legally sufficient prima fa-cie case, i.e., “a legally sufficient evidentia-ry basis for a reasonable jury to find for plaintiff.” Ungar v. Islamic Republic of Iran, 211 F.Supp.2d 91, 98 (D.D.C.2002). Although a court receives evidence from only the plaintiff when a foreign sovereign defendant has defaulted, 28 U.S.C. § 1608(e) does not require a court to demand more or different evidence than it would ordinarily receive in order to render a decision. Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir.1994). In evaluating the plaintiffs proofs, a court may “accept as true the plaintiffs’ uncontroverted evidence,” Estate of Botvin v. Islamic Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C.2007); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000), and a plaintiff may establish proof by affidavit. Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002). While a plaintiff needs to demonstrate a prima facie case to obtain a judgment of liability in" }, { "docid": "11634561", "title": "", "text": "upset” when his father was not doing well and the plaintiff held chronic feelings of helplessness and anger toward his father’s situation. Id. at 10. B. Procedural Background The plaintiff filed a complaint against defendants Iran, MOIS, Ali Fallahian- Khuzestani, Ali Akbar Hashemi-Rafsanja-ni, the Iranian Revolutionary Guard Corp., and Mohammad Mohammadi Nik on December 30, 2003. Because the defendants failed to appear or respond to the plaintiffs complaint, the Clerk of the Court entered default on July 15, 2004. On June 13, 2005,' the plaintiff filed a notice of voluntarily dismissal as to defendants Mohammad Mohammadi Nik, Ali Fallahian-Khuzestani, Ali Akbar Hashe-mi-Rafjsani, and the Iranian Revolutionary Guard Corp. Additionally, following the D.C. Circuit’s ruling in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C.Cir.2004), the plaintiff abjured his claim for relief under the Flatow Amendment as an independent cause of action. Thus, as to the remaining defendants, Iran and MOIS, the plaintiffs remaining claims are hostage taking, torture, arbitrary and prolonged detention, intentional infliction of emotional distress and solatium. The plaintiff has filed a motion for default judgement. The court now turns to that motion. III. ANALYSIS A. Legal Standard for a Default Judgment A court shall not enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232-33 (D.C.Cir.2003). This standard is identical to the standard for entry of default judgments against the United States in Federal Rule of Civil Procedure 55(e). Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). In evaluating the plaintiff s-proof, the court may “accept as true the plaintiffs uncontroverted evidence.” Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000). In FSIA default judgment proceedings such as this, the plaintiff may establish proof by affidavit. Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002). In suits against international governments or citizens, the claimant needs to establish that (1) “there has been a waiver of sovereign immunity” and (2) “the source" }, { "docid": "11634562", "title": "", "text": "a motion for default judgement. The court now turns to that motion. III. ANALYSIS A. Legal Standard for a Default Judgment A court shall not enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232-33 (D.C.Cir.2003). This standard is identical to the standard for entry of default judgments against the United States in Federal Rule of Civil Procedure 55(e). Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). In evaluating the plaintiff s-proof, the court may “accept as true the plaintiffs uncontroverted evidence.” Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000). In FSIA default judgment proceedings such as this, the plaintiff may establish proof by affidavit. Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002). In suits against international governments or citizens, the claimant needs to establish that (1) “there has been a waiver of sovereign immunity” and (2) “the source of substantive law upon which the claimant relies provides an avenue for relief.” FDIC v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996,127 L.Ed.2d 308 (1994). B. Foreign Sovereign Immunities Act The Foreign Sovereign Immunities Act (“FSIA”) is “the sole basis for obtaining jurisdiction over a foreign state in our courts.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The basic premise of the FSIA is that foreign sovereigns are immune from suit in the United States unless the action falls under one of the specific exceptions enumerated in the statute. 28 U.S.C. § 1604; Price v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192, 196 (D.C.Cir.2004). If the foreign sovereign is not immune, the federal district courts have exclusive jurisdiction over the action. . 28 U.S.C. §§ 1330, 1604; Daliberti v. Republic of Iraq, 97 F.Supp.2d 38, 42 (D.D.C.2000) (citing Amerada Hess, 488 U.S. at 434-35, 109 S.Ct. 683). Under the FSIA, the foreign sovereign has “immunity 'from trial' and the attendant burdens of" }, { "docid": "3004310", "title": "", "text": "as 1983. Syria was designated by the State Department as a state sponsor of terrorism in December 1979, and has retained that designation to this day. As discussed in section C, supra, each of the three victims in this case were United States citizens at the time of the hijacking. Therefore, the remaining plaintiffs each maintain a valid cause of action under § 1605A, and this Court may properly exercise jurisdiction. 2. Personal Jurisdiction As noted above, the FSIA establishes requirements for proper service upon a foreign state in 28 U.S.C. § 1608; plaintiffs properly served Syria under § 1608(a)(3). Supra at V.B. Furthermore, having determined that Syria as a foreign state is the only defendant against whom an action may properly be maintained (id), there is no issue of due process under the Fifth Amendment, as “foreign states are not ‘persons’ protected by the Fifth Amendment.” Valore, 700 F.Supp.2d at 70 (quoting Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 96 (D.C.Cir.2002)). Finally, “customary international law,” which may call for a “minimum-contacts-like test” is inapplicable in these circumstances. Valore, 700 F.Supp.2d at 72. The Court has personal jurisdiction over Syria in this case. E. Legal Standard for FSIA Default Judgment Under the FSIA, a default judgment may only be entered if “the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). All uncontroverted evidence is accepted as true. Id. See also Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003) (the “satisfactory to the court” standard is identical to the standard for entry of default judgments against the United States in Federal Rule of Civil Procedure 55(e)). In evaluating plaintiffs’ proofs, a court may “accept as true plaintiffs’ uncontroverted evidence, which may take the form of sworn affidavits or prior transcripts.” Estate of Botvin v. Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C.2007). Such evidence may also include judicial notice of findings and conclusions of related proceedings. Id.; see also Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 49 n. 2 (D.D.C.2003) (“Peterson I”). In" }, { "docid": "8253212", "title": "", "text": "General Shawkat. Deeb T-l-71. As head of military intelligence, General Shawkat is privy to all intelligence of any importance. Id. 48. General Shawkat shares all important intelligence information with President Assad. Deeb T-l-72. Decisions of any political or security importance that may affect the regime’s survival cannot be made without the explicit authorization of both men. Id. at 72-73. 49. Syria has often supported terrorist groups, such as Hamas, Palestinian Islamic Jihad, and al-Qaeda, in order to destabilize the Middle East peace process, beginning as early as 1974 and continuing as it served the interests of the regime. Deeb T-l-65-66. 50. Syria supported Zarqawi and his terrorist organization because Syria wanted to destabilize Iraq and prevent the United States from succeeding there in its military efforts. Deeb T-l-65; Schenker, T-l-86. A failure of the U.S. in Iraq would extend Syria’s influence “because Syria would have influence [over] whoever would come to bargain.... But also failure in Iraq means that the U.S. hopefully from Syria’s point of view will not come back and try to change the regime[] in Syria....” Deeb T-l-66. 51. In 2003, Syria’s foreign minister stated publicly that it was in Syria’s interest to see the American invasion of Iraq fail. Schenker T-l-87. 52. In this environment, it is clear that support for Zarqawi and his network from Syrian territory or Syrian government actors could not have been accomplished without the authorization of the Syrian government and Syrian Military Intelligence through President Assad and General Shawkat. III. CONCLUSIONS OF LAW A. Burden of Proof The FSIA specifies that a court cannot enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003) (“The court still has an obligation to satisfy itself that plaintiffs have established a right to relief.”). Section 1608(e) provides protection to foreign States from unfounded default judgments rendered solely upon a procedural default. Compania Interamericana Export-Import, S.A. v. Compania Dominicana, 88 F.3d 948, 950-51 (11th Cir.1996)." }, { "docid": "14799464", "title": "", "text": "27, 2002, and again on March 1, 2005, because Iran and MOIS had not yet responded to the complaint or summons within 60 days, or at all. See Pis.’ 1st Mot. for Default; Pis.’ 2d Mot. for Default. The Clerk of the Court entered default on March 1, 2005. See Clerk’s Entry of Default (Mar. 2, 2005). On June 25, 2009, the court ordered that the plaintiffs “submit the necessary motion and supporting documentation to obtain a judgment against” Iran and MOIS pursuant to Federal Rule of Civil Procedure 55(b). See Minute Order (June 25, 2009). The plaintiffs have now done so. B. Burden of Proof. Under the FSIA, this court may enter a default judgment against Iran if the plaintiffs “establish!] [their] claim or right to relief by evidence satisfactory to the court.” See 28 U.S.C. § 1608(e); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003). To prevail in an FSIA default proceeding, the plaintiffs must present a legally sufficient prima facie case, in other words, “a legally sufficient evidentiary basis for a reasonable jury to find for the plaintiff.” Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C.2008) (quotation omitted). This standard is identical to that applicable to default judgments against the United States. See Wachsman v. Islamic Republic of Iran, 603 F.Supp.2d 148, 155 n. 3 (D.D.C.2009); Fed.R.Civ.P. 55(e). Section 1608(e) does not require' this court to demand additional or different evidence than it would ordinarily receive in rendering its decision. Gates, 580 F.Supp.2d at 63 (citation omitted). In assessing the plaintiffs’ evidence, this court may “accept as true the plaintiffs uncontroverted evidence.” Elahi v. The Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000). Further, a plaintiff may establish proof by affidavit. Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003). C. Jurisdiction Under the FSIA The FSIA provides the sole basis for obtaining jurisdiction over Iran and MOIS. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Thus, to establish that this court has jurisdiction over Iran" }, { "docid": "14799465", "title": "", "text": "evidentiary basis for a reasonable jury to find for the plaintiff.” Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C.2008) (quotation omitted). This standard is identical to that applicable to default judgments against the United States. See Wachsman v. Islamic Republic of Iran, 603 F.Supp.2d 148, 155 n. 3 (D.D.C.2009); Fed.R.Civ.P. 55(e). Section 1608(e) does not require' this court to demand additional or different evidence than it would ordinarily receive in rendering its decision. Gates, 580 F.Supp.2d at 63 (citation omitted). In assessing the plaintiffs’ evidence, this court may “accept as true the plaintiffs uncontroverted evidence.” Elahi v. The Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000). Further, a plaintiff may establish proof by affidavit. Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003). C. Jurisdiction Under the FSIA The FSIA provides the sole basis for obtaining jurisdiction over Iran and MOIS. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Thus, to establish that this court has jurisdiction over Iran and MOIS, the plaintiffs must demonstrate that one of the FSIA’s enumerated exceptions to Iran’s sovereign immunity applies. Kilbum, 376 F.3d at 1126. Importantly, the court has previously established that Libya and the Libyan External - Security Organization (“LESO”) were not immune from jurisdiction under 28 U.S.C. § 1605(a)(7), because Libya was a state sponsor of terrorism. See Mem. Op. (Aug. 8, 2003), abrogated on other grounds by Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004). That decision was affirmed on appeal. See Kilbum, 376 F.3d at 1127-36. On January 28, 2008, the FSIA was amended when the President signed into law the National Defense Authorization Act for Fiscal Year 2008 (“NDAA”). Section 1083 of the NDAA sets, forth a new provision amending § 1605(a)(7), 28 U.S.C. 1605A(a)(l), which states: A foreign state shall not be immune from the jurisdiction of U.S. courts in cases where plaintiffs seek money damages for personal injury or death caused by hostage taking, torture, or extrajudicial killing, if the damages were caused by an act of torture," }, { "docid": "11897074", "title": "", "text": "(D.C.Cir.1984)). 1. Evidentiary Standard for a Default Judgment on an FSIA Claim The FSIA sets the same evidentiary standard for default judgments against foreign-state defendants as against the United States itself as a defendant, to wit: “No judgment by default shall be entered ... against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” Compare 28 U.S.C. § 1608(e) with Fed.R.CivP. 55(d); Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003). In evaluating the plaintiffs proof, a court contemplating the entry of a default judgment may accept as true the plaintiffs uncontroverted evidence, which may take the form of affidavits. Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 53 (D.D.C.2006). A flexible approach has been utilized in determining what procedures the court should employ in determining whether Rule 55(d)’s requirement of evidence satisfactory to the court is fulfilled. The court in Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir.1994), held that: While in some cases [Rule 55(d)] will require a hearing, we have held that Rule 55[ (d) ] does not “require an evi-dentiary hearing if one would ordinarily not have been held, nor [does the Rule] require the court to demand more or different evidence than it would ordinarily receive in order to make its decision.” Rafidain Bank, 15 F.3d at 242 (quoting Marziliano v. Heckler, 728 F.2d 151, 158 (2d Cir.1984)). To ultimately succeed on a motion for default judgment on a FSIA claim, the plaintiff must present “a legally sufficient evidentiary basis for a reasonable jury to find for plaintiff.” Smith ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F.Supp.2d 217, 224 (S.D.N.Y.2003). 2. The Commercial Activity Exemption The exemption to immunity at issue in this case is the commercial activity exemption, codified at 28 U.S.C. § 1605(a)(2). The FSIA “commercial activity” exemption confers jurisdiction to U.S. courts over actions brought against foreign states and their agencies or instrumentalities when the action: Is based upon" }, { "docid": "17954965", "title": "", "text": "F.Supp.2d 101, 103 (D.D.C.2007)), aff'd Gates v. Syrian Arab Republic, 646 F.3d 1 (D.C.Cir.2011). III. DISCUSSION A default judgment may be entered when (1) the Court has subject matter jurisdiction over the claims, (2) personal jurisdiction is properly exercised over the defendants, (3) the plaintiffs have presented satisfactory evidence to establish their claims against the defendants, and (4) the plaintiffs have satisfactorily proven that they are entitled to the monetary damages they seek. Each of these requirements is addressed seriatim below. A. SUBJECT MATTER JURISDICTION UNDER THE FSIA The Syrian Arab Republic is indisputably a foreign sovereign and the Syrian Military Intelligence, which is a “political subdivision” of Syria, is also considered a foreign sovereign for the purposes of this lawsuit under 28 U.S.C. § 1603(a). See Gates, 646 F.3d at 2 n. 1 (“The Syrian Military Intelligence and the individual defendants are considered part of the state itself under the FSIA.” (citing 28 U.S.C. § 1603(a),(b); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033-34 (D.C.Cir.2004), superseded by statute, 28 U.S.C. § 1605A; and Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C.Cir.2003))). This Court may exercise “original jurisdiction” over a foreign state “without regard to amount in controversy” so long as the claim is a “nonjury civil action” seeking “relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” See 28 U.S.C. § 1330(a) (italics added). Here, the plaintiffs have not demanded a jury trial, see Civil Cover Sheet at 2, ECF No. 1-1, and bring civil federal and other tort claims against the defendants as a foreign sovereign for in personam relief. Thus, the key question is whether the defendants are entitled to immunity under the FSIA or other international agreement. Foreign governments are generally immunized from lawsuits brought against them in the United States unless an FSIA exception applies. See 28 U.S.C. § 1604; Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 13 (D.C.Cir.2015). The plaintiffs invoke jurisdiction under the FSIA’s “terrorism exception,” Compl." } ]

[ { "docid": "4261404", "title": "", "text": "issue like the one here, a general principle of Massachusetts insurance law settles the question: Ratner v. Canadian Universal Ins. Co., 359 Mass. 375, 269 N.E.2d 227, 230 (1971) (quoting Murray v. Continental Ins. Co., 313 Mass. 557, 48 N.E.2d 145, 147 (1943)). In this case, the coverage-limiting provision upon which Northbrook relies is not set forth as a distinct exclusion in the Policy; it is the first sentence of the coverage-providing clause (i.e., the discovery clause) upon which the insureds’ claims are anchored. It therefore was incumbent, upon the insureds to prove the non-applicability of the coverage-limiting provision found in the first sentence of the discovery clause. Put in concrete terms, it was the insureds’ burden to prove that they first became aware during the policy period of the circumstances subsequently giving rise to the SAMA’s claim that the HVAC systems were negligently designed. “[A] plaintiff seeking to recover for breach of a duty or obligation created by a general clause of a contract, which also contains an exception descriptively limiting such duty or obligation, must allege and prove that his cause of action is within the contract and outside the exception; but ... where the exception is in another separate and distinct clause of the contract defining the duty or obligation, then the burden is upon the party relying upon the exception.” As we have stated, the trial court found that the quoted portion of the July 19, 1981 letter was “insufficient to prove that BDA or BDASA had notice in 1979.” See Brown Daltas, 844 F.Supp. at 63 n. 3. Implicit in this statement was an erroneous view that Northbrook bore the burden of proving prior notice. Thus, the deference usually due a factual finding under Fed.R.Civ.P. 52(a) does not bind us in this instance. See Inwood Labs., 456 U.S. at 855 n. 15, 102 S.Ct. at 2189 n. 15. Mindful of our limited role as an appellate court, we ordinarily would remand this matter to the district court for a determination of the notice question under the proper legal standard. On this record, however, such a" } ]

[ { "docid": "18823775", "title": "", "text": "v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982); Nelson, 30 Mass.App.Ct. at 673, 572 N.E.2d at 596. But “where language in an insurance policy is found to be ambiguous, ‘doubts as to the intended meaning of the words must be resolved against the insurance company that employed them and in favor of the insured.’ ” Id. (quoting August A. Busch & Co. v. Liberty Mut. Ins. Co., 339 Mass. 239, 243, 158 N.E.2d 351, 353 (1959)). Coverage exclusions are to be strictly construed and any ambiguity is to be interpreted in favor of the insured. Andover Newton Theological School, Inc. v. Continental Cas. Co., 930 F.2d 89, 93 (1st Cir.1991) (applying Massachusetts law). The district court ruled that [c]ount XIV of the underlying complaint clearly alleges claims which are “directly or indirectly, based on, attributable to, arising out of, resulting from or in any manner related to [Press and Levy’s] ‘Wrongful Act(s)’ concerning the actual, alleged or threatened discharge, release or escape of ‘pollutants’ into or on real or personal property, water or the atmosphere.” ... The unfair and deceptive acts alleged in count XIV constitute Wrongful Acts under ¶ 9.1 of the Policy, which in context clearly relate to the pollution of the site. (Emphasis added.) The crux of the High Voltage claim on appeal is that count XIV of the ALP complaint alleges certain “wrongful acts” by Press and Levy that do not “concern” the release of pollutants, and therefore are not excluded from coverage by the pollution exclusion clause. High Voltage specifically cites, as examples, the allegations that Press and Levy stalled ALP’s pursuit of its claim against High Voltage in order to liquidate High Voltage assets for their personal gain, fraudulently conveyed High Voltage assets, frustrated ALP’s real estate development efforts, and sought to compel ALP to abandon its claim against High Voltage. As each is delineated a “separate and distinct cause of action,” High Voltage urges that the claims alleged in H 166 of the ALP complaint, see supra pp. 599-600, are independent of all pollution-related claims, hence" }, { "docid": "7799469", "title": "", "text": "to the insured must prevail (Hazen Paper Co. v. USF & G, 407 Mass.689, 555 N.E.2d 576, 583 (1990)). That contra proferentem principle applies with added rigor in determining the meaning of exclusionary provisions (id.). ■ The interpretation of an insurance contract is no different from the interpretation of any other contract, and we must construe the words of the policy in their usual and ordinary sense. Insurance Coverage: Duties To Defend and To Indemnify Any liability insurer has a duty to defend an underlying third-party action against its putative insured if the allegations in the complaint are “reasonably susceptible of an interpretation that they state[] or adumbrate[] a claim covered by the policy issued to its insured” (New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass.App.Ct.722, 667 N.E.2d 295, 297 (1996)(internal quotation omitted)). “This is true even if the claim is baseless, as it is the claim which determines the insurer’s duty to defend” (Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir.1997)(internal quotation marks omitted)). It is trae “that an insurance company’s duty to defend is broader than its duty to indemnify” (Boston Symphony, 545 N.E.2d at 1158). But USF&G’s rejection of any participation in the underlying defense (as tendered to it by Merchants) also carries with it USF & G’s liability for the cost of settlement in addition to the expenses of defending the lawsuit. As Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. Ct. 318, 568 N.E.2d 631, 636 (1991) (numerous citations omitted) has held: Our cases generally have recognized the peril implicit in unjustified disclaimer decisions, and held an insurer making such a decision liable for the reasonable costs of both defense and settlement. And more recently Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 610 N.E.2d 912, 921 (1993) has confirmed that proposition. We turn then to the Endorsement, which provides in its entirety: WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule [in this instance DAgostino], (sic) but only with" }, { "docid": "2622036", "title": "", "text": "policy coverage and its purpose, the insurer is relieved of the duty to investigate” or to defend the claimant. Terrio v. McDonough, 16 Mass.App.Ct. 163, 168, 450 N.E.2d 190 (1983); see also Metro. Prop. & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass.App.Ct. 818, 820, 793 N.E.2d 1252 (2003) (no duty to defend a claim specifically excluded from coverage). An insured bears the initial burden of proving coverage under a policy. Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir.1997) (applying Massachusetts law). If the insured demonstrates the existence of coverage, the burden shifts to the insurer to prove that an exclusion applies. Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 231, 676 N.E.2d 801 (1997) (“[W]here the exception is in another separate and distinct clause of the ... contract ... then the burden is upon the party relying on such exception”). Manganella claims that the allegations of Burgess’s MCAD charge, read liberally in his favor as the insured, are “reasonably susceptible” of an interpretation that they state a claim within the coverage of the policy. This is because a finder of fact could determine that Manganella’s conduct did not occur or did not constitute sexual harassment, or they could find that while his conduct was illegal, it occurred in its entirety after the Retroactive Date. Manganella adds that Evanston also had information extrinsic to the MCAD charge that militated in favor of a duty to defend, namely Burgess’s 1998 Affidavit in the Bawa case. Finally, Manganella contends that Evanston breached its express contractual obligation to investigate the basis of coverage. “Simply put, Evanston ignored all of the rules governing an insurer’s conduct when evaluating its defense obligations ... to avoid its duty to fund Manganella’s defense of complicated sexual harassment claims.” PI. Mem. at 3. Evanston relies on the statement in Burgess’s charge that the harassment occurred throughout her employment with Jasmine (which began in 1997), that is, that it commenced prior to the April 28, 1999 Retroactive Date. Evanston also points to the Intentional Acts Exclusion of the policy and argues that" }, { "docid": "7675172", "title": "", "text": "facts that bring its claim within the policy’s affirmative grant of coverage.” Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir.1996) (citation omitted). Where an insurer raises a defense based on a policy exclusion, the burden shifts and the insurer bears the burden of establishing the applicability of that exclusion. Madison Const., 735 A.2d at 106; see also Koppers, 98 F.3d at 1446 (“the insurer bears the burden of proving the applicability of any exclusions or limitations on coverage,” because “disclaiming coverage on the basis of an exclusion is an affirmative defense.”). B. The Parties’ Burdens 1. Plaintiffs Burden of Establishing Coverage In the Amended Complaint, Plaintiffs allege that, at the time of the incident, Buckeye was insured under a commercial general liability insurance policy issued by Defendant, policy number NSK 0887822 02. See Am. Compl. ¶ 15 (citing Ins. Poli cy). Plaintiffs claim that the policy covered bodily injury or property damage for which Buckeye becomes legally obligated to pay, specifically including injuries sustained during Donkey Ball Shows. See Am. Compl. ¶ 16 (citing Ins. Policy, Commercial General Liability Coverage Form, Section 1). Defendant admits that the insurance policy was in force. See Answer Am. Compl. ¶ 15-16. Defendant does not explicitly state that the insurance coverage, absent Exclusion CG2101, would cover the injuries sustained by Plaintiffs. Defendant’s Disclaimer of Duty to Defend or Indemnify (“Disclaimer Letter”) and Motion for Summary Judgment, however, rely on the presence of Exclusion CG2101 to deny coverage and do not argue that absent Exclusion CG2101 Defendant would otherwise not have a duty to defend and indemnify. See Def.’s Br. 8-10; Disclaimer Letter. In the Disclaimer Letter, Defendant stated that the Policy “issued to you by [Defendant] contains [the Disclaimer], which specifically excludes coverage for bodily injury to any person while practicing for or participating in Donkey Ball and similar or related activities.” See Disclaimer Letter 1. Defendant continued stating “[accordingly, we disclaim any duty to defend or indemnify [Buckeye] ... for any claim brought as a result of participation in the event.” Id. Given these statements, the" }, { "docid": "15307738", "title": "", "text": "(PL’s App., Attach 5, Sec.l) [hereinafter “Great Am. Policy”]. The Penn National policy similarly provides: We [the insurer] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies.... This insurance applies only to “bodily injury” and “property damage” which occurs during the policy period. The “bodily injury” or “property damage” must be caused by an “occurrence.” The “occurrence” must take place in the “coverage territory.” We will have the right and duty to defend any “suit” seeking those damages[ ].... (PL’s App., Attach 22, Sec. 1(A)(1)(a)) [hereinafter “Penn Nat’l. Policy”]. Both insurers’ policies contain a number of exclusions, several of which are at issue in this case and are discussed infra. Under North Carolina law, the insured “has the burden of bringing itself within the insuring language of the policy.” Hobson Const. Co., Inc. v. Great American Ins. Co., 71 N.C.App. 586, 590, 322 S.E.2d 632, 635 (1984), disc. review denied, 313 N.C. 329, 327 S.E.2d 890 (1985). Further, “[o]nce it has been determined that the insuring language embraces the particular claim or injury, the burden then shifts to the insuror [sic] to prove that a policy exclusion excepts the particular injury from coverage.” Id; see Nationwide Mut. Fire Ins. Co. v. Allen, 68 N.C.App. 184, 188, 314 S.E.2d 552, 554, disc. review denied, 311 N.C. 761, 321 S.E.2d 142 (1984). Plaintiff, therefore, has the burden of demonstrating that its particular claim or injury fell within the scope of the aforementioned insuring language contained in the Defendants’ policies. Accordingly, the court must determine whether the claims in the underlying arbitration action fell within the meaning of “property damage” caused by an “occurrence” within the meaning of those policies, and within the coverage periods. E. Was There “Property Damage” Within the Meaning of the Insurance Policies? Defendants contend that there has been no “property damage” within the meaning of the insurance policies. The Great American policy defines “property damage” as follows: “property damage” means (1) physical injury to or destruction of tangible property which occurs" }, { "docid": "6959921", "title": "", "text": "(1990)). Absent ambiguity, we give policy language its plain and ordinary meaning. E.g., Cody v. Connecticut General Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982). Ambiguities are resolved against the insurer, who drafted the policy, and in favor of the insured. Thus, if “there are two rational interpretations of policy language, the insured is entitled to the benefit of the one that is more favorable to it.” Hazen, 407 Mass, at 700, 555 N.E.2d at 583. The insured bears the initial burden of proving that a claim falls within the grant of coverage, which, once established, shifts the burden onto the insurer to show the applicability of any exclusion. Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. Ct. 318, 321, 568 N.E.2d 631, 633 (1991). To determine if a liability policy obligates a carrier to defend claims made against its insured, we simply compare the underlying complaint to the policy; “if the allegations of the complaint are ‘reasonably susceptible’ of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense.” Liberty Mut. Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 331-32, 588 N.E.2d 1346, 1347 (1992) (quoting Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146, 461 N.E.2d 209, 212 (1984)) (internal quotation omitted). At issue here are two combined comprehensive general liability and commercial property insurance policies. In the Insuring Agreement of the general liability coverage part, GRE promised to: pay those sums that [Metropolitan] becomes legally obligated to pay as damages because of ‘bodily injury’ ... to which this insurance applies.... The ‘bodily injury’ ... must be caused by an ‘occurrence.’ The ‘occurrence’ must take place in the ‘coverage territory.’ We will have the right and duty to defend any ‘suit’ seeking those damages. There is no question that the terms ‘occurrence’ and ‘bodily injury are defined in such a way as to cover personal injury due to lead paint exposure, and that the occurrences took place within the relevant coverage territory. Thus, unless a policy exclusion effectively" }, { "docid": "7675171", "title": "", "text": "end, “when the language of the policy is clear and unambiguous, a court is required to give effect to that language.” 401 Fourth St., 879 A.2d at 171. Where the language is ambiguous, however, giving effect to contractual language requires a different approach. Ambiguity exists in a contract if the “contractual terms ... are subject to more than one reasonable interpretation when applied to a particular set of facts.” Madison Const. v. Harleysville Mut. Ins., 557 Pa. 595, 735 A.2d 100, 106 (1999). Ambiguous insurance policy provisions are “construed in favor of the insured to further the contract’s prime purpose of indemnification and against the insurer, as the insurer drafts the policy, and controls coverage.” Id.; see also Mohn v. Am. Cas. Co. of Reading, 458 Pa. 576, 326 A.2d 346, 351 (1974) (stating that where a provision in an insurance agreement is ambiguous, “any ambiguity in the language of the document is to be read in a light most strongly supporting the insured”). Under Pennsylvania law, “the insured bears the [initial] burden of proving facts that bring its claim within the policy’s affirmative grant of coverage.” Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir.1996) (citation omitted). Where an insurer raises a defense based on a policy exclusion, the burden shifts and the insurer bears the burden of establishing the applicability of that exclusion. Madison Const., 735 A.2d at 106; see also Koppers, 98 F.3d at 1446 (“the insurer bears the burden of proving the applicability of any exclusions or limitations on coverage,” because “disclaiming coverage on the basis of an exclusion is an affirmative defense.”). B. The Parties’ Burdens 1. Plaintiffs Burden of Establishing Coverage In the Amended Complaint, Plaintiffs allege that, at the time of the incident, Buckeye was insured under a commercial general liability insurance policy issued by Defendant, policy number NSK 0887822 02. See Am. Compl. ¶ 15 (citing Ins. Poli cy). Plaintiffs claim that the policy covered bodily injury or property damage for which Buckeye becomes legally obligated to pay, specifically including injuries sustained during Donkey Ball Shows." }, { "docid": "5575268", "title": "", "text": "to defend Brazas if the allegations in the New York litigation are “reasonably susceptible” to an interpretation that they state a claim covered by Brazas’s policy. Merchants, 143 F.3d at 8 (quoting New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass.App.Ct. 722, 667 N.E.2d 295, 297 (1996) (internal quotations omitted)); see also Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 18 (1st Cir.1997) (quoting Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 458 N.E.2d 338 (1983)). Under Massachusetts law, the duty to defend is broader than, and independent of, the duty to indemnify. See Merchants, 143 F.3d at 8 (citing Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 545 N.E.2d 1156, 1158 (1989)); Millipore Corp. v. Travelers Indem. Co., 115 F.3d 21, 35 (1st Cir.1997) (citing same). That is, the obligation to defend turns on the facts alleged in the complaint rather than the facts proven at trial. See Millipore, 115 F.3d at 35; see also GRE Ins. Group, 61 F.3d at 81. A liability insurer has no duty to defend a claim that is specifically excluded from coverage, but the insurer bears the burden of establishing the applicability of any exclusion. See Mt. Airy, 127 F.3d at 19 (citing Great Southwest Fire Ins. Co. v. Hercules Bldg. & Wrecking Co., 35 Mass.App.Ct. 298, 619 N.E.2d 353 (1993)); GRE Ins. Group, 61 F.3d at 81 (citing Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App.Ct. 318, 568 N.E.2d 631, 633 (1991)). Consistent with the Massachusetts general rule favoring insureds in policy interpretation, any ambiguities in the exclusion provision are strictly construed against the insurer. See Mt. Airy, 127 F.3d at 19 (citing Sterilite, 17 Mass.App.Ct. 316, 458 N.E.2d 338); GRE Ins. Group, 61 F.3d at 81; see also Hakim, 675 N.E.2d at 1165 (holding that “[t]his rule of construction applies with particular force to exclusionary provisions”). Ambiguity exists when the policy language is susceptible to more than one rational interpretation. See Merchants, 143 F.3d at 8 (citing Boston Symphony Orchestra, 545 N.E.2d at 1159); Mt. Airy, 127 F.3d" }, { "docid": "5453786", "title": "", "text": "court should read the policy to avoid ambiguities and not torture the language so as to create them. See St. Paul Fire & Marine Ins. Co. v. United States Fire Ins. Co., 655 F.2d 521, 524 (3d Cir.1981). An insurer’s duty to defend arises “whenever the complaint filed by the injured party may potentially come within the policy’s coverage.” Pacific Indem. Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985). If the factual allegations of the complaint, taken as true, state a claim to which the policy potentially applies, “the insurer must defend the case until it [can] confine the claim to a recovery that the policy [does] not cover.” Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 590, 152 A.2d 484, 488 (1959). To determine whether a claim may be covered, the court must ascertain the scope of the insurance coverage, and then analyze the allegations in the complaint. See Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa.Super. 55, 59, 639 A.2d 1208, 1210 (1994). An insurer’s duty to defend is separate and distinct from its duty to indemnify. See Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 583, 533 A.2d 1363, 1368 (1987). The duty to defend is broader than a duty to indemnify. The duty to indemnify arises only when the insured is found to be liable for damages covered by the policy. The burden of proving that a particular claim falls within the coverage of a policy is on the insured. See id. at 580, 533 A.2d at 1366-67. The scope of National Union’s obligation to indemnify and defend its insureds is defined in the umbrella policy section entitled: “Insurance Agreements I. Coverage.” This section of the policy provides: We will pay on behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes legally obligated to pay by reason of liability imposed by law or assumed by the Insured under an Insured Contract because of Bodily Injury, Property Damage, Personal Injury or Advertising Injury that takes place during the Policy period and is caused by an Occurrence happening" }, { "docid": "5575269", "title": "", "text": "insurer has no duty to defend a claim that is specifically excluded from coverage, but the insurer bears the burden of establishing the applicability of any exclusion. See Mt. Airy, 127 F.3d at 19 (citing Great Southwest Fire Ins. Co. v. Hercules Bldg. & Wrecking Co., 35 Mass.App.Ct. 298, 619 N.E.2d 353 (1993)); GRE Ins. Group, 61 F.3d at 81 (citing Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App.Ct. 318, 568 N.E.2d 631, 633 (1991)). Consistent with the Massachusetts general rule favoring insureds in policy interpretation, any ambiguities in the exclusion provision are strictly construed against the insurer. See Mt. Airy, 127 F.3d at 19 (citing Sterilite, 17 Mass.App.Ct. 316, 458 N.E.2d 338); GRE Ins. Group, 61 F.3d at 81; see also Hakim, 675 N.E.2d at 1165 (holding that “[t]his rule of construction applies with particular force to exclusionary provisions”). Ambiguity exists when the policy language is susceptible to more than one rational interpretation. See Merchants, 143 F.3d at 8 (citing Boston Symphony Orchestra, 545 N.E.2d at 1159); Mt. Airy, 127 F.3d at 19 (citing Jefferson Ins. Co. of New York v. Holyoke, 23 Mass.App.Ct. 472, 503 N.E.2d 474 (1987)). But it does not follow that ambiguity exists solely because the parties disagree as to the provision’s meaning. See Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 374 (1st Cir.1991). Before the district court, and on appeal, American Empire’s position is that the products-completed operations hazard exclusion excludes coverage for all injuries arising from Brazas’s products, off premises, regardless of the circumstances. Bra-zas contends that such a reading of the exclusion provision would render the general liability policy meaningless. Brazas challenged summary judgment on two grounds: (1) the products-completed operations hazard exclusion was intended to apply to defective products only, and (2) the New York civil actions do not actually allege injuries from Brazas’s products, but rather injuries caused by the company’s business management and strategy, thereby rendering the exclusion provision inapplicable. The district court rejected the appellant’s arguments. The court held that the language of the exclusion provision did not support a reading" }, { "docid": "5337061", "title": "", "text": "at 3. Thus Aetna wishes to focus on Colonial’s allegedly “voluntary” payment into the Trust, while Colonial emphasizes that its payment, even if voluntary in the sense that Aetna did not give prior approval, nonetheless was made to extinguish a covered loss. Colonial bears the burden of proving that its $600,000 payment, given the purpose for which it was made, is among the risks covered by Aetna’s policy. Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140, 424 N.E.2d 464 (1981). If Colonial establishes its loss is covered, the burden of proof shifts to Aetna, to demonstrate that the loss falls within an exclusion or exception to its general liability coverage. Camp, Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. Ct. 318, 321, 568 N.E.2d 631 (1991). At the threshold I confront Aetna’s contention that Colonial’s Trust Fund payment was alternatively premature or voluntary before turning to the coverage/exclusion issue and then the problem of characterizing the “occurrence.” -A- On the issue of voluntariness and prematurity, Aetna relies chiefly on two cases, Marvel Heat Corp. v. Travelers Indemnity Co., 325 Mass. 682, 92 N.E.2d 233 (1950) and Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117, 571 N.E.2d 357 (1991). Marvel has little vitality in the context presented here and Augat involves a distinguishable fact pattern. In Marvel Heat, the policy holder notified its insurer of a claim, and the insurer disclaimed liability on the policy. The insured hired a lawyer, settled the claim, and sued the insurer to recover its costs. Because the customer had not yet brought an action against the insured, the SJC declined to “interpret the defendant’s action as a denial of liability in any event, or as the equivalent of a refusal to defend an action.” 325 Mass, at 685, 92 N.E.2d 233. Whether Marvel remains good law when a private lawsuit has not yet been commenced is open to question. As Judge Garrity observed in Keith Fulton & Sons, Inc. v. Continental Ins. Co. of City of N.Y., 273 F.Supp. 486 (D.Mass.1967), requiring an insured to go “through the motions" }, { "docid": "2622039", "title": "", "text": "and “at no time ha[d she] ever witnessed or heard from anyone associated with the company including Ms. Bawa that Mr. Manganella committed any acts of sexual harassment directed towards Ms. Bawa or others.” Barnett Aff. — Ex. 4 (Burgess Aff. ¶ 3) (emphasis added). At a minimum, Evanston had a duty to investigate the inconsistency between its own records and Burgess’s MCAD charge before choosing the version of facts that justified a denial of coverage, while ignoring another under which coverage attached. Given this material dispute of fact, Evanston’s denial of a defense and coverage on grounds that Manganella’s conduct could not have occurred entirely within the covered period was improper. In the alternative, Evanston relies on the International Acts Exclusion of the policy. “Interpretation of the language of [an] exclusion presents a question of law.... In this interpretation, we are guided by three fundamental principles: (1) an insurance contract, like other contracts, is to be construed according to the fair and reasonable meaning of its words .... (2) exclusionary clauses must be strictly construed against the insurer so as not to defeat any intended coverage or diminish the protection purchased by the insured, ... and (3) doubts created by any ambiguous words or provisions are to be resolved against the insurer.” Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App.Ct. 318, 323-324, 568 N.E.2d 631 (1991). On the issue of the application of a policy exclusion, the burden of showing the absence of coverage rests with the insurer. Great Sw. Fire Ins. Co. v. Hercules Building & Wrecking Co., 35 Mass.App.Ct. 298, 302, 619 N.E.2d 353 (1993); Noseworthy v. Allstate Life Ins. Co., 40 Mass.App.Ct. 924, 925, 664 N.E.2d 470 (1996). Evanston argues that in both the Superior Court case and the arbitration proceeding, the harassment charges were litigated and established as constituting intentional and deliberate conduct. In order for an adjudication to be binding on a party in a subsequent action, four ele ments must be met: (1) a valid and final judgment on the merits in the prior adjudication; (2) that the party against" }, { "docid": "7799468", "title": "", "text": "this dispute, and because there is at least a “reasonable relation” between the dispute and the forum whose law has been selected by the parties, we will forego an independent analysis of the choice-of-law issue and apply Massachusetts law. We do the same here. General Principles Under Massachusetts law the interpretation of an insurance policy and the determination of the policy-dictated rights and obligations are questions of law, appropriate grist for the summary judgment mill (see Assetta v. Safety Ins. Co., 43 Mass.App.Ct. 317, 682 N.E.2d 931, 932 (1997)). Hence we review de novo the district court’s determination that the Endorsement covers D’Agostino for its own negligence. Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 675 N.E.2d 1161, 1164 (1997) confirms the applicability of general rules of contract construction in construing an insurance policy: Where policy provisions are ambiguous — that is, “tw]here the language permits more than one rational interpretation” (Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass.7, 545 N.E.2d 1156, 1159 (1989)(internal quotation omitted)) — the reading most favorable to the insured must prevail (Hazen Paper Co. v. USF & G, 407 Mass.689, 555 N.E.2d 576, 583 (1990)). That contra proferentem principle applies with added rigor in determining the meaning of exclusionary provisions (id.). ■ The interpretation of an insurance contract is no different from the interpretation of any other contract, and we must construe the words of the policy in their usual and ordinary sense. Insurance Coverage: Duties To Defend and To Indemnify Any liability insurer has a duty to defend an underlying third-party action against its putative insured if the allegations in the complaint are “reasonably susceptible of an interpretation that they state[] or adumbrate[] a claim covered by the policy issued to its insured” (New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass.App.Ct.722, 667 N.E.2d 295, 297 (1996)(internal quotation omitted)). “This is true even if the claim is baseless, as it is the claim which determines the insurer’s duty to defend” (Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir.1997)(internal quotation marks omitted)). It" }, { "docid": "6959922", "title": "", "text": "claim covered by the policy terms, the insurer must undertake the defense.” Liberty Mut. Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 331-32, 588 N.E.2d 1346, 1347 (1992) (quoting Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146, 461 N.E.2d 209, 212 (1984)) (internal quotation omitted). At issue here are two combined comprehensive general liability and commercial property insurance policies. In the Insuring Agreement of the general liability coverage part, GRE promised to: pay those sums that [Metropolitan] becomes legally obligated to pay as damages because of ‘bodily injury’ ... to which this insurance applies.... The ‘bodily injury’ ... must be caused by an ‘occurrence.’ The ‘occurrence’ must take place in the ‘coverage territory.’ We will have the right and duty to defend any ‘suit’ seeking those damages. There is no question that the terms ‘occurrence’ and ‘bodily injury are defined in such a way as to cover personal injury due to lead paint exposure, and that the occurrences took place within the relevant coverage territory. Thus, unless a policy exclusion effectively defeats this grant of coverage, GRE is obligated to defend and indemnify the underlying lawsuits against Metropolitan. The district court relied upon two grounds, both of which GRE urges upon us, for holding that there is no coverage: first, that the policies are restricted to liability arising at Metropolitan’s home office; and second, that the underlying claims fall within a policy exclusion relating to inspection services. We examine these propositions in turn. A. Was Coverage Limited to Metropolitan’s Office? GRE argues that the policy does not apply to liability for claims arising from Metropolitan’s activities away from its home office, relying upon language in the policy’s Declarations form and two supplemental schedules, and upon the amount of the premium, which the district court found to be too low conceivably to reflect the parties’ intent to cover additional risks. As for the policy language, the “Common Policy Declarations Form” lists certain basic information about the policy, such as the types of coverage purchased, the premium for each coverage part, the coverage period, the name, address and" }, { "docid": "5337060", "title": "", "text": "Colonial wrote Aetna, asserting this was a covered liability under its insurance policies; Aetna disclaimed coverage. In December, 1987, after negotiations, Colonial paid $600,000 to the UFFI Trust. Under the rules establishing the Trust, that payment by Colonial ended its liability under the repurchase regulations. Further, any homeowner claiming benefits under the UFFI Trust, including formaldehyde testing, must forego all tort claims against contributing industry members, except for damages for bodily injury not reasonably discoverable at the time of the claim. Stat.1985, c. 728(5).. Ill Colonial maintains that “[t]he essential question presented is whether the Aetna policies covered claims against Colonial under the UFFI repurchase regulations, and must therefore[ ] be found to cover Colonial’s settlement payment to the UFFI Trust Fund.” Colonial’s Memorandum in Support of Summary Judgment at 7. Aetna answers that Colonial’s Trust Fund payment was voluntary, that it was not compensation for damages from bodily injury, and that “[tjhere simply is no rationale linking the donation to any type of physical harm during any policy period.” Aetna’s Opposition to Summary Judgment at 3. Thus Aetna wishes to focus on Colonial’s allegedly “voluntary” payment into the Trust, while Colonial emphasizes that its payment, even if voluntary in the sense that Aetna did not give prior approval, nonetheless was made to extinguish a covered loss. Colonial bears the burden of proving that its $600,000 payment, given the purpose for which it was made, is among the risks covered by Aetna’s policy. Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140, 424 N.E.2d 464 (1981). If Colonial establishes its loss is covered, the burden of proof shifts to Aetna, to demonstrate that the loss falls within an exclusion or exception to its general liability coverage. Camp, Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. Ct. 318, 321, 568 N.E.2d 631 (1991). At the threshold I confront Aetna’s contention that Colonial’s Trust Fund payment was alternatively premature or voluntary before turning to the coverage/exclusion issue and then the problem of characterizing the “occurrence.” -A- On the issue of voluntariness and prematurity, Aetna relies chiefly on two cases," }, { "docid": "5575267", "title": "", "text": "judgment on its duty to defend claim. DISCUSSION I. The Policy Coverage Claim We review de novo the district court’s interpretation of the insurance contracts. See Fed.R.Civ.P. 56; Merchants Ins. Co. of New Hampshire, Inc. v. United States Fidelity & Guar. Co., 143 F.3d 5, 6-8 (1st Cir.1998); GRE Ins. Group v. Metropolitan Boston Hous. Partnership, Inc., 61 F.3d 79, 81 (1st Cir.1995). Under Massachusetts law, we construe an insurance policy under the general rules of contract interpretation. See Merchants, 143 F.3d at 8 (citing Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 675 N.E.2d 1161, 1164 (1997)). We begin with the actual language of the policies, given its plain and ordinary meaning. See GRE Ins. Group, 61 F.3d at 81 (citing cases). In so doing, we “consider ‘what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.’ ” Id. (quoting Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 616 N.E.2d 68, 72 (1993)). As a liability insurer in Massachusetts, American Empire has a duty to defend Brazas if the allegations in the New York litigation are “reasonably susceptible” to an interpretation that they state a claim covered by Brazas’s policy. Merchants, 143 F.3d at 8 (quoting New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass.App.Ct. 722, 667 N.E.2d 295, 297 (1996) (internal quotations omitted)); see also Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 18 (1st Cir.1997) (quoting Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 458 N.E.2d 338 (1983)). Under Massachusetts law, the duty to defend is broader than, and independent of, the duty to indemnify. See Merchants, 143 F.3d at 8 (citing Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 545 N.E.2d 1156, 1158 (1989)); Millipore Corp. v. Travelers Indem. Co., 115 F.3d 21, 35 (1st Cir.1997) (citing same). That is, the obligation to defend turns on the facts alleged in the complaint rather than the facts proven at trial. See Millipore, 115 F.3d at 35; see also GRE Ins. Group, 61 F.3d at 81. A liability" }, { "docid": "4491109", "title": "", "text": "Club relies heavily on Gray v. Zurich Ins. Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168 (1966). The insurer in Gray had issued a comprehensive personal liability policy to the insured that included a “duty to defend.” The insured tendered an assault suit to the insurer pursuant to a provision in the policy requiring the insurer to “defend any suit against the insured alleging ... bodily injury or property damage_” Id., 54 Cal.Rptr. at 106, 419 P.2d at 170. The insurer refused to provide a defense, citing an exclusionary clause excepting from its duty to defend any “bodily injury or property damages caused intentionally by or at the direction of the insured.” Id. The California Supreme Court concluded that the contradictory coverage and exclusionary clauses created an ambiguity that had to be resolved in a manner that satisfied the insured’s objectively reasonable expectations. Id. at 110-11, 419 P.2d at 174-75. The court concluded that the insured could have reasonably expected coverage under the policy and, therefore, the insurer was obligated to defend the insured’s assault suit. This case differs from Gray. The Club’s policy does not impose a duty to defend on Lloyd’s. Rather, the policy requires only that Lloyd’s pay the costs of defending particular lawsuits brought against the Club’s directors and officers. See Gon v. First State Ins. Co., 871 F.2d 863, 867-68 (9th Cir.1989) (contrasting a duty to defend with a duty to pay defense costs). This distinction determines which party bears the burden of proof. The insurer bears the burden of proving that a potential claim covered by the duty to defend falls within an exclusionary clause. Royal Globe Ins. Co. v. Whitaker, 181 Cal.App.3d 532, 226 Cal.Rptr. 435, 437 (1986). Since the dispositive question in this case concerns the scope of the Club’s basic coverage under the policy, however, the Club bears the burden of establishing Lloyd’s’ obligation to pay the Club’s defense costs under the policy. Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1364 (9th Cir. 1991); see also Dyer v. Northbrook Property and Casualty Ins. Co., 210 Cal.App.3d 1540, 259" }, { "docid": "2622035", "title": "", "text": "v. Liberty Lobby, Inc., 477 U.S. 242, 248-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[T]he initial duty of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions: if the allegations of the complaint are ‘reasonably susceptible’ of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense.” Great Am. Ins. Co. v. Riso, Inc., 479 F.3d 158, 160 (1st Cir.2007), quoting Sterilite Corp. v. Cont’l Cas. Co., 17 Mass.App.Ct. 316, 318, 458 N.E.2d 338 (1983). See also Cont’l Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146, 461 N.E.2d 209 (1984). The scope of an insurer’s duty to defend is “based not only on the facts alleged in the complaint but also on the facts that are known or readily knowable by the insurer.” Desrosiers v. Royal Ins. Co. of Am., 393 Mass. 37, 40, 468 N.E.2d 625 (1984). Nonetheless, when the allegations in the underlying complaint “lie expressly outside the policy coverage and its purpose, the insurer is relieved of the duty to investigate” or to defend the claimant. Terrio v. McDonough, 16 Mass.App.Ct. 163, 168, 450 N.E.2d 190 (1983); see also Metro. Prop. & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass.App.Ct. 818, 820, 793 N.E.2d 1252 (2003) (no duty to defend a claim specifically excluded from coverage). An insured bears the initial burden of proving coverage under a policy. Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir.1997) (applying Massachusetts law). If the insured demonstrates the existence of coverage, the burden shifts to the insurer to prove that an exclusion applies. Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 231, 676 N.E.2d 801 (1997) (“[W]here the exception is in another separate and distinct clause of the ... contract ... then the burden is upon the party relying on such exception”). Manganella claims that the allegations of Burgess’s MCAD charge, read liberally in his favor as the insured, are “reasonably susceptible” of an interpretation that they state a" }, { "docid": "7439675", "title": "", "text": "refuse to defend an action against its insured unless it is clear from the face of the underlying complaints that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage” (citations omitted) (emphasis in original)). When an insurer relies upon an exclusionary provision to deny coverage to an insured, the applicability of the provision must be free and clear from doubt. See Santa’s Best Craft, LLC v. St. Paul Fire and Marine Ins. Co., 611 F.3d 339, 347 (7th Cir.2010) (citing Markogiannakis, 136 Ill.Dec. 307, 544 N.E.2d at 1094). If the exclusionary provision is at all ambiguous, a court should construe the provision most liberally in favor of the insured. See Lyons, 285 Ill.Dec. 231, 811 N.E.2d at 721-22; see also Markogiannakis, 136 Ill.Dec. 307, 544 N.E.2d at 1089 (holding that “[a]mbiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured”). The insurer bears the burden of proving that an exclusionary provision applies. See Santa’s Best Craft, 611 F.3d at 347. B. The TBIC Policy TBIC issued CGL policy number HGL0001965 to IBM Co., the named insured, for the policy period commencing on October 1, 2002, and ending on October 1, 2003. Reduced to its simplest terms, a CGL policy is a policy that is “usually obtained by a business, that covers damages that the insured becomes legally obligated to pay to a third party because of bodily injury or property damage.” Black’s Law Dictionary 809 (7th ed. 1999). A CGL policy generally covers liability for damages that are not covered by more specific types of liability insurance policies (e.g., business, automobile, and employer’s liability). See Bituminous Cas. Corp. v. Maxey, 110 S.W.3d 203, 207 (Tex.App. 1st Dist.2003). Here, the section of the policy entitled “commercial general liability coverage form” establishes that the policy covers liability for “bodily injury” caused by an “occurrence” in the “coverage territory” that first occurred during the policy period. [See 6-2, at 27.] The TBIC policy is modified by an" }, { "docid": "18823774", "title": "", "text": "Insured Person, individually or otherwise, in his Insured Capacity, or any matter claimed against him solely by reason of his serving in such Insured Capacity.” ? parties agree that Massachusetts law applies. See Mathewson Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 853 n. 3 (1st Cir.1987) (accepting parties’ “expressed preference” for the application of Massachusetts law). Under Massachusetts law, “[t]he first approach to the question of interpretation must be to read [the] policy as one would read any ordinary contract — to inquire what the simplified, conversational language of the policy would mean to a reader applying normal reasoning or analysis.” Commerce Ins. Co. v. Koch, 25 Mass.App.Ct. 383, 384, 522 N.E.2d 979, 980 (1988). See also Nelson v. Cambridge Mut. Fire Ins. Co., 30 Mass.App.Ct. 671, 673, 572 N.E.2d 594, 596 (1991). “A policy of insurance whose provisions are plainly and definitely expressed in appropriate language must be enforced in accordance with its terms.” Stankus v. New York Life Ins. Co., 312 Mass. 366, 369, 44 N.E.2d 687, 689 (1942); see Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982); Nelson, 30 Mass.App.Ct. at 673, 572 N.E.2d at 596. But “where language in an insurance policy is found to be ambiguous, ‘doubts as to the intended meaning of the words must be resolved against the insurance company that employed them and in favor of the insured.’ ” Id. (quoting August A. Busch & Co. v. Liberty Mut. Ins. Co., 339 Mass. 239, 243, 158 N.E.2d 351, 353 (1959)). Coverage exclusions are to be strictly construed and any ambiguity is to be interpreted in favor of the insured. Andover Newton Theological School, Inc. v. Continental Cas. Co., 930 F.2d 89, 93 (1st Cir.1991) (applying Massachusetts law). The district court ruled that [c]ount XIV of the underlying complaint clearly alleges claims which are “directly or indirectly, based on, attributable to, arising out of, resulting from or in any manner related to [Press and Levy’s] ‘Wrongful Act(s)’ concerning the actual, alleged or threatened discharge, release or escape of ‘pollutants’ into or on real" } ]

[ { "docid": "14721803", "title": "", "text": "ONDA is an environmental group whose members live adjacent to the John Day River and use it for recreation. There is no question that the river’s pollution has injured them. See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (Harm to a plaintiffs aesthetic and environmental well-being is a cognizable injury.); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir.1992) (An organization has standing by alleging injury to individual members.). The Intervenor/Appellants argue that by challenging the lack of certification, ONDA has alleged “only a procedural injury,” and thus has not demonstrated a concrete injury or the likelihood of redressability. The legal requirement ONDA seeks to impose is one that would affect the reality of the environment. This is a case, therefore, where plaintiffs seek “to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs.” Lujan, 504 U.S. at 572, 112 S.Ct. 2130. We have held threatened harm to “health, recreational use, and enjoyment” from the use of herbicides constitutes an impairment of a concrete interest. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.1994). Certainly, ONDA has demonstrated a concrete interest where its members reside and engage in recreational activities along polluted waterways. For similar reasons, the appellants’ argument that there is no redressable injury must fail. . Appellants suggest that ONDA must prove either that the state would deny certification or that certification would necessitate a change in the grazing operation. To establish redressa-bility, however, the plaintiffs need not demonstrate that the ultimate outcome following proper procedures will benefit them. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir.1992). The Supreme Court has recognized that the assertion of a procedural right is “special” and reduces the plaintiffs burden of proving immediacy and redressability. Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. ONDA stands in a similar position to the hypothetical plaintiff, discussed in Lujan, who lives adjacent to the construction site for a federally-licensed dam. The Court noted that such a plaintiff could" } ]

[ { "docid": "11291197", "title": "", "text": "licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. 504 U.S. at 572 n. 7, 112 S.Ct. 2130. The Ninth Circuit summed up the Lujan test: “(1) that he or she is a ‘person who has been accorded a procedural right to protect [his or her] concrete interests ... and (2) that the plaintiff has ‘some threatened concrete interest ... that is the ultimate basis of [his or her] standing.’ ” Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir.1995) (citations omitted). In Dubois v. United States Dep’t of Agric., the First Circuit addressed whether a plaintiff had standing to sue the Forest Service over its permit for the Loon Mountain Ski Area expansion, when his connection to the area was a period of residency some years before and annual visits to the area thereafter. 102 F.3d at 1282-83. Dubois concluded that the allegations were sufficient to survive a motion to dismiss. Relying on Lujan and Dubois and noting that they “are literally next door to the proposed LNG terminal site,” Plaintiffs argue they have standing. Pis.’ Opp’n at 10. No doubt Plaintiffs are as well-anchored to the situs of this action as the dam-dweller of Lujan or the annual visitor in Dubois. But, it is worth retreating a step and re-examining the relevant question, which, for the moment, is injury. Footnote seven came in the context of a discussion regarding the need to demonstrate personal concrete interests affected by ignoring a procedural requirement. Finding the procedural injury alleged too generalized, Lujan expressly distinguished the situation where “plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).” 504 U.S. at 572, 112 S.Ct. 2130." }, { "docid": "23169781", "title": "", "text": "allege that the USDA failed to comply with the procedural consultation and biological-assessment requirements of the ESA before promulgating the 2000 Plan Development Rule. This type of procedural injury is also cognizable for standing purposes. See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir.2001). 2. Concrete Interests “ ‘In NEPA cases, we have described [the] concrete interest test as requiring a geographic nexus between the individual asserting the claim and the location suffering an environmental impact.’ ” Public Citizen, 316 F.3d at 1015 (quoting Cantrell, 241 F.3d at 679). That is, environmental plaintiffs must allege that they will suffer harm by virtue of their geographic proximity to and use of areas that will be affected by the USDA’s policy. Citizens have done just that. They have properly alleged, and supported with numerous affidavits covering a vast range of national forests around the country, that their members use and enjoy national forests, where they observe nature and wildlife. The Supreme Court has held that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Laidlaw, 528 U.S. 167, 182, 120 S.Ct. at 705 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Citizens need not assert that any specific injury will occur in any specific national forest that their members visit. “The ‘asserted injury is that environmental consequences might be overlooked’ as a result of deficiencies in the government’s analysis under environmental statutes.” Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.1994). “Were we to agree with the district court that a NEPA plaintiffs standing depends on ‘proof that the challenged federal project will have particular environmental effects, we would in essence be requiring that the plaintiff conduct the same environmental investigation that he seeks in his suit to compel the agency to undertake.” City of Davis v. Coleman, 521 F.2d 661, 670-71 (9th Cir.1975). 3. Reasonable Probability Environmental" }, { "docid": "21391902", "title": "", "text": "and smaller diameter trees, among other strategies. In November 2009, FWS issued a BiOp concluding that the project was \"not likely to result in the destruction or adverse modification of lynx critical habitat.” . The Forest Service argues that this is not a procedural rights case. The Forest Service relies on a misreading of Lujan to support its argument. Although Lujan explained that there can be no standing for the assertion of procedural rights where plaintiffs raise \"only a generally available grievance” about the government's failure to comply with a statutory requirement, ' the Court recognized that procedural rights exist where the violation is connected to a concrete injury. Lujan, 504 U.S. at 573 & n. 8, 112 S.Ct. 2130. Here, Cottonwood does not allege the \"deprivation of a procedural right without some concrete interest that is affected by the deprivation ...,” Summers, 555 U.S. at 496, 129 S.Ct. 1142, but rather \"a procedural requirement the disregard of which could impair a separate concrete interest of theirs,” Lujan, 504 U.S. at 572, 112 S.Ct. 2130. Accordingly, along with other circuits, we have recognized a procedural rights theory of standing in the context of alleged Section 7 violations. See, e.g., Natural Res. Def. Council v. Jewell, 749 F.3d 776, 782-83 (9th Cir.2014) (en banc); Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir.2008); In re Endangered Species Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972, 977 (D.C.Cir.2013); Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir.1998). . The East Boulder Fuels Reduction Project area is located in the Gallatin National Forest in Montana. The purpose of this project is to reduce hazardous fuel loading in the Wildland Urban Interface along the East Boulder River drainage by thinning and clearing vegetation across 872 acres. In March 2009, FWS issued a BiOp concluding that this project was \"not likely to result in the destruction or adverse modification of lynx critical habitat.” . This is consistent with FWS's own explanation of how a programmatic Section 7 consultation will affect consultation on implementing projects: \"In issuing its biological" }, { "docid": "21391872", "title": "", "text": "consultation would reveal, or what standards would be set, if the Forest Service were to reinitiate consultation. Ideally, that is the objective and purpose of the consultation process. See Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir.2012) (en banc). Thus, where a procedural violation is at issue, a plaintiff need not “meet[ ] all the normal standards for redressability and immediacy.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In such a case, we have explained that “a litigant need only demonstrate that he has a procedural right that, if exercised, could protect his concrete interests and that those interests fall within the zone of interests protected by the statute at issue.” Jewell, 749 F.3d at 783 (internal alterations and quotations omitted). Cottonwood has properly alleged that the reinitiation of consultation could result in the protection of its members’ interests in specific National Forests and project areas where those members recreate. See id. Those interests are clearly within the “zone of interests protected by the [ESA].” See id. The standing analysis in this case is strikingly similar to our analysis in Salmon Spawning, 545 F.3d 1220. In Salmon Spawning, an alliance of environmental organizations filed suit against several agencies for failing to reinitiate Section 7 consultation after new information emerged about protected salmon. Id. at 1224. Citing Lujan, we determined that, because the plaintiffs had properly alleged a procedural harm, the standards for causation and redressability were relaxed. Id. at 1229 (citing Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130). We said that “uncertainly about] whether reinitiation will ultimately benefit the groups (for example, by resulting in a ‘jeopardy’ determination) does not undermine [the plaintiffs’] standing.” Salmon Spawning, 545 F.3d at 1229. Thus, we concluded that the alleged injury&emdash;“scientific, educational, aesthetic, recreational, spiritual, conservation, economic, and business interests” in the ongoing survival of the salmon, id. at 1225 (internal quotation marks omitted)&emdash;was “not too tenuously connected to the agencies’ failure to reinitiate consultation,” id. at 1229. Further, we determined that “a court" }, { "docid": "17736413", "title": "", "text": "persons who have no concrete interests affected—persons who live (and propose to live) at the other end of the country from the dam. Id., — U.S. at-n. 7, 112 S.Ct. at 2142-43 n. 7. Like the plaintiffs in Defenders of Wildlife, SRCC does not allege standing for persons who have no concrete interests affected; that is, for “persons who live (and propose to live) at the other end of the country from” Region 5. See id., — U.S. at-, 112 S.Ct. at 2148. Doubtless, unfettered use of herbicides in Region 5 in the absence of NEPA compliance will cause harm to 'visitors’ recreational use and enjoyment, if not to their health. Speculation that the application of herbicides might not occur is irrelevant. “The ‘asserted injury is that environmental consequences might be overlooked,’ as a result of deficiencies in the government’s analysis under environmental statutes.” Seattle Audubon Soc’y v. Espy, 998 F.2d 699, 708 (9th Cir.1993) (quoting Idaho Conservation League, 956 F.2d at 1518); see also Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 491 (9th Cir.1987); Overseas Shipholding Group, Inc. v. Skinner, 767 F.Supp. 287, 293-94 (D.D.C.1991); Sierra Club v. Robertson, 764 F.Supp. 546, 554 (W.D.Ark.1991). Here, the threatened harm to SRCC’s members’ health, recreational use, and enjoyment, in the absence of a vegetation management plan that complies with NEPA, “is concrete, specific, imminent, caused by agency conduct in question, and redressable by a favorable ruling.” Seattle Audubon Soc’y, 998 F.2d at 703. SRCC has standing. C. The Forest Service also contends, in essence, that a challenge to the Impact Statement will not be ripe until a district forester authorizes a specific herbicide application, because only a specific herbicide application would harm SRCC. We reject the Service’s position. In Idaho Conservation League, we held that plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan: [I]f the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review. To the extent that the plan pre-determined the future, it represents a concrete injury that plaintiffs must," }, { "docid": "19745106", "title": "", "text": "in which the Eleventh Circuit Court of Appeals held that a trade association did not have standing under the “procedural injury” doctrine merely because the Forest Service’s alleged procedural violations injured the plaintiffs rights to “information, participation, and informed decision making.” 993 F.2d at 810. But in Region 8, unlike in this case, the plaintiffs failed to identify an injury to a “separate concrete interest” as required by Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. Region 8, 993 F.2d at 810-11. In Region 8, it was not the case that “the failure to follow a mandated procedure caused a distinct injury.” Id. at 810 n. 16. In contrast to the appellate court in Region 8, this court is satisfied that the procedural violations do threaten a separate concrete interest: Wildlaw’s members’ aesthetic and recreational interests in the very forests and lands that stand to be affected by the challenged regulations. It is not necessary that Wildlaw point to a particular instance of environmental degradation. The procedural requirements of NEPA and the ARA are designed to protect Wildlaw’s concrete interests; it is reasonably probable that agency action by the Forest Service in violation of those requirements will injure said concrete interests. The injury-in-fact element of standing is therefore established. See Earth Island Institute v. Ruthenbeck, 459 F.3d 954, 960-61 (9th Cir.2006) (concluding that environmental plaintiffs have standing for their ARA challenge); Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 951-52 (7th Cir.2000) (same, where plaintiffs challenged CEs under NEPA). The causation and redressability elements are met as well. “Once ... a plaintiff has established injury in fact under NEPA, the causation and redressability requirements are generally more relaxed.” Ouachita Watch League, 463 F.3d at 1172. If the Forest Service violated NEPA and the ARA, then it is clear that the Forest Service caused Wildlaw’s alleged injury. And if the court finds for Wildlaw, it is empowered to order injunctive relief — the injury, then, is redressable. See id. at 1173. In sum, Wildlaw has standing to bring this suit. 2. Ripeness In addition to challenging" }, { "docid": "14721804", "title": "", "text": "herbicides constitutes an impairment of a concrete interest. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.1994). Certainly, ONDA has demonstrated a concrete interest where its members reside and engage in recreational activities along polluted waterways. For similar reasons, the appellants’ argument that there is no redressable injury must fail. . Appellants suggest that ONDA must prove either that the state would deny certification or that certification would necessitate a change in the grazing operation. To establish redressa-bility, however, the plaintiffs need not demonstrate that the ultimate outcome following proper procedures will benefit them. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir.1992). The Supreme Court has recognized that the assertion of a procedural right is “special” and reduces the plaintiffs burden of proving immediacy and redressability. Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. ONDA stands in a similar position to the hypothetical plaintiff, discussed in Lujan, who lives adjacent to the construction site for a federally-licensed dam. The Court noted that such a plaintiff could challenge a federal agency’s failure to prepare an Environmental Impact Statement, even though the plaintiff could not establish that the EIS would alter the construction plan for the dam or even that the dam would be completed in the near future. See id. Here, ONDA asserts a similar procedural right of certification under § 1341. Citizen Suit Provision Appellants argue that even if ONDA has standing to sue under Article III, its suit is not authorized under the Clean Water Act’s citizen suit provision. That statute provides that any citizen may bring a civil action against an agency alleged to be in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a). “Effluent standard or limitation” is defined to include “certification under section 1341 of this title.” 33 U.S.C. § 1365(f)(5). Appellants contend that the statute authorizes suits to enforce only the discharge limitations already contained within state certifications. The statute on its face is not so limited. Section 1365(f) cross-references the entirety of section 1341, which provides in relevant part that “No license" }, { "docid": "23169782", "title": "", "text": "fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Laidlaw, 528 U.S. 167, 182, 120 S.Ct. at 705 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Citizens need not assert that any specific injury will occur in any specific national forest that their members visit. “The ‘asserted injury is that environmental consequences might be overlooked’ as a result of deficiencies in the government’s analysis under environmental statutes.” Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.1994). “Were we to agree with the district court that a NEPA plaintiffs standing depends on ‘proof that the challenged federal project will have particular environmental effects, we would in essence be requiring that the plaintiff conduct the same environmental investigation that he seeks in his suit to compel the agency to undertake.” City of Davis v. Coleman, 521 F.2d 661, 670-71 (9th Cir.1975). 3. Reasonable Probability Environmental plaintiffs “ ‘seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs,’ ... can establish standing ‘without meeting all the normal standards for ... immediacy.’ ” Hall, 266 F.3d at 975 (quoting Defenders of Wildlife, 504 U.S. at 572 & n. 7, 112 S.Ct. 2130). Rather, they “need only establish ‘the reasonable probability of the challenged action’s threat to [their] concrete interest.’ ” Id. at 977 (quoting Churchill County, 150 F.3d at 1078). Citizens correctly assert that the 2000 Plan Development Rule decreases substantive environmental requirements (thus injuring their concrete interest in enjoying the national forests) as compared to the 1982 Plan Development Rule. The 2000 Rule decreased the species viability requirement from one in which the USDA must “insure” that forest conditions support the viability of existing species, to one in which the USDA must only guarantee a “high likelihood” of supporting their viability. Compare 65 Fed.Reg. at 67,575 (amending 36 C.F.R. § 219.20(b)(2)) (2000 Rule), with 47 Fed.Reg. at 43,048 (creating 36 C.F.R. § 219.19)" }, { "docid": "11291198", "title": "", "text": "the allegations were sufficient to survive a motion to dismiss. Relying on Lujan and Dubois and noting that they “are literally next door to the proposed LNG terminal site,” Plaintiffs argue they have standing. Pis.’ Opp’n at 10. No doubt Plaintiffs are as well-anchored to the situs of this action as the dam-dweller of Lujan or the annual visitor in Dubois. But, it is worth retreating a step and re-examining the relevant question, which, for the moment, is injury. Footnote seven came in the context of a discussion regarding the need to demonstrate personal concrete interests affected by ignoring a procedural requirement. Finding the procedural injury alleged too generalized, Lujan expressly distinguished the situation where “plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).” 504 U.S. at 572, 112 S.Ct. 2130. In footnote eight, Lujan specifically rejected the dissent’s contention that “the Government’s violation of a certain (undescribed) class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed).” Id. at 573 n. 8, 112 S.Ct. 2130. Rather, noted the Court, Plaintiffs only have standing to enforce their procedural rights “so long as the procedures in question are designed to protect some threatened concrete interest ... that is the ultimate basis of [their] standing.” Id. To fit this case within Lujan, then, Plaintiffs must show that the procedural requirement to evaluate environmental impact, if ignored, could impair a separate concrete interest of theirs. See Douglas County, 48 F.3d at 1500; see also Vermont Pub. Interest Research Group v. United States Fish & Wildlife Serv., 247 F.Supp.2d 495, 508 (D.Vt.2002) (concluding that a NEPA plaintiff must demonstrate two kinds of injury to meet the injury in fact requirement: injury of increased risk of environmental harm" }, { "docid": "22757444", "title": "", "text": "regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part. It is so ordered. After the District Court had entered judgment, and after the Government had filed its notice of appeal, respondents submitted additional affidavits to the District Court. We do not consider these. If respondents had not met the challenge to their standing at the time of judgment, they could not remedy the defect retroactively. Justice Kennedy, concurring. I join in full the opinion of the Court. As the opinion explains, “deprivation of a procedural right without some concrete interest that is affected by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing.” Ante, at 496. The procedural injury must “impair a separate concrete interest.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 572 (1992). This case would present different considerations if Congress had sought to provide redress for a concrete injury “giv[ing] rise to a case or controversy where none existed before.” Id., at 580 (Kennedy, J., concurring in part and concurring in judgment). Nothing in the statute at issue here, however, indicates Congress intended to identify or confer some interest separate and apart from a procedural right. Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting. The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any “ ‘concrete injury’ ” when the Forest Service sells timber for logging on many thousands of small (250-acre or less) woodland parcels without following legally required procedures — procedures which, if followed, could lead the Service to cancel or to modify the sales. Ante, at 497. Nothing in the record or the law justifies this counterintuitive conclusion. I A The plaintiffs, respondents in this case, are five environmental organizations. The Earth Island Institute, a California organization, has over 15,000 members in the United States, over 3,000 of whom “use and enjoy the National Forests of California for recreational, educational, aesthetic, spiritual and other purposes.” Corrected Complaint for Declaratory and" }, { "docid": "19745104", "title": "", "text": "a cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared when the plaintiff also alleges a ‘concrete’ interest — such as an aesthetic or recreational interest — that is threatened by the proposed actions.” (internal quotation marks and ellipses omitted)). Based on the foregoing principles, the court concludes that the Wildlaw plaintiffs have constitutional standing to bring this lawsuit. First, the “injury in fact” requirement of Article III standing is satisfied. Wildlaw’s complaint, coupled with declarations it submitted with its brief, demonstrate that the plaintiff organizations’ members have aesthetic and recreational interests in the wellbeing of our Nation’s forests. They frequently visit lands regulated by the Forest Service, and they have specific, concrete plans to continue doing so in the immediate future. Cf. Defenders of Wildlife, 504 U.S. at 564, 112 S.Ct. 2130 (finding that “ ‘some day’ intentions ... do not support a finding of ... ‘actual or imminent’ injury”). They fear that the challenged regulations, if not invalidated, will directly impact their ability to use and enjoy their favorite sites. The plaintiff organizations even participate in the public comment and administrative appeal processes for Forest Service actions. Thus, Wildlaw meets the “procedural injury” standard: it alleges that the Forest Service failed to comply with NEPA and that this noncompliance will harm the forests and lands in which its members take direct and personal interest. Wildlaw also meets the “procedural injury” standard for its ARA claims, because it alleges that the challenged Appeal Rule will reduce public participation in the Forest Service’s administrative decisionmak-ing and review processes, which will in turn harm the forests and lands in which its members take an interest. The Forest Service’s arguments to the contrary are unavailing. The Forest Service states that Wildlaw asserts only “generalized grievances” and cannot point to any concrete, particularized injury it suffered as a result of the CEs and Appeal Rule. Def. Br. at 3-5; Def. Reply Br. at 2-4. Specifically, the Forest Service refers the court to Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800 (11th Cir.1993)," }, { "docid": "15546814", "title": "", "text": "is less diversity of vegetation to observe.”); R., Chattooga Conservancy, 34:Ex. T, Decl. of David Reagan ¶ 9 (regarding the Ozark/Ouachita subre-gion, noting “The Forest Service’s failure to collect population inventory data on Proposed, Endangered, Threatened, and Sensitive Species (PETS) has deprived both the agency and interested members of the public of information needed to assess the impacts of the agency’s vegetation management on rare, sensitive, and declining wildlife and plants, and on wildlife generally.... This directly impacts my use and enjoyment of the forest, as these rare and sensitive species are a significant part of why I recreate there.”); R., Chattooga Conservancy, 34:Ex. 5, Decl. of Jerry Williams ¶¶ 12-14 (regarding the Ozark/Ouachita subregion, noting “I have used [the forests] for hunting ... fishing ... recreation, observation of wildlife, and checking of Forest Service activities due to concern for damage to the forest resources .... I intend to keep using [the forests at issue], all of which will be harmed if these projects proceed forward as planned.”).) In short, Ouachita’s exhaustive declarations establish far more than a general public interest in the forests. Constitutional standing also requires that Ouachita establish causation and redressability. Once, however, a plaintiff has established injury in fact under NEPA, the causation and redressability requirements are generally more relaxed. See Cantrell, 241 F.3d at 682. To establish causation, Ouachita must demonstrate only that it is reasonably probable that the challenged actions will threaten its concrete interests. See, e.g., Citizens for Better Forestry, 341 F.3d at 972. The Forest Service argues that none of the Ouachita plaintiffs can show that any alleged Forest Service activities will cause harm to any PETS species. The Forest Service argues instead that the revisions and amendments to the forest plans (for which Ouachita alleges that the EISs were insufficient) have no on-the-ground impact. Since, the Forest Service argues, Ouachita cannot demonstrate that the revisions and amendments demonstrably increase the risk of actual harm to at least one PETS species, Ouachita cannot establish causation. This formulation of the causation test, especially in the NEPA context, is far too rigid. The proper" }, { "docid": "7707338", "title": "", "text": "two thirds of slopes. The result of that harvesting will therefore likely be visible from great distances. Significant timber harvesting will also take place near streams, where recreational users of forests spend much of their time. The 2004 Framework authorizes the construction of 115 miles of new roads and the reconstruction of 1,520 miles of existing roads during the first decade. Grazing restrictions on commercial and recreational livestock will be reduced throughout the Sierras. There is a concrete connection between the interests of Pacific Rivers’ members in enjoying the forests of the Sierras and the effect of the 2004 Framework. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-64, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There is little doubt that members of Pacific Rivers will come into contact with affected areas, and that the implementation of the 2004 Framework will affect their continued use and enjoyment of the forests. By contrast, the regulation at issue in Summers affected only small and widely scattered parcels of land throughout the entire United States, and the plaintiffs had not shown any realistic likelihood that they would come into contact with those parcels. There are two relevant cases in this circuit, both controlling. In Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir.1994), we held that an environmental organization had standing to bring a challenge under NEPA to an LRMP that applied to 6 million acres of national forest land in the Sierras. Id. at 1349-55. The challenged LRMP allowed the “use of all methods to treat competing vegetation ... [in order] to meet the timber yield objectives,” and delegated the decision to use herbicides to the district foresters. Id. at 1351. The Forest Service’s standing argument in Salmon River was essentially the same as its standing argument here — that plaintiff lacked standing because it failed “to demonstrate that the members would be harmed by a specific project using herbicides.” Id. at 1352. Members of the organization lived next to or within the boundaries of the area where herbicides had previously been banned but would now be permitted, and" }, { "docid": "14721801", "title": "", "text": "SCHROEDER, Circuit Judge: The United States Forest Service appeals the district court’s ruling that pollution from cattle grazing is subject to the certification requirement of § 401 of the Clean Water Act, 33 U.S.C. § 1341. This appeal requires us to consider whether the term “discharge” in § 1341 includes re leases from nonpoint sources as well as releases from point sources. We conclude from the language and structure of the Act that the certification requirement of § 1341 was meant to apply only to point source releases. Accordingly, we reverse. The background of this case can be briefly described. In 1993 the Forest Service issued a permit allowing Robert and Diana Burril to graze 50 head of cattle in. Oregon’s Malheur National Forest. The cattle graze several months a year in and around Camp Creek and the Middle Fork of the John Day River, polluting these waterways with their waste, increased sedimentation, and increased temperature. In 1994 Oregon Natural Desert Association (ONDA) filed an action under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, as well as the Administrative Procedures Act, 5 U.S.C. § 702. ONDA alleged that the Forest Service had violated 33 U.S.C. § 1341 by issuing the grazing permit without first obtaining the State of Oregon’s certification that the grazing would not violate the state’s water quality standards. The Bur-rils, Grant County, and the Eastern Oregon Public Lands Coalition intervened as defendants and the Confederated Tribes of the Warm Springs Reservation intervened as plaintiffs. The district court granted the plaintiffs’ summary judgment motion, concluding that the Forest Service must obtain certification for activities that will potentially cause nonpoint source pollution. Standing We first address the Interve-nor/Appellants’ contention that ONDA lacks standing to bring this suit. To establish standing a plaintiff must demonstrate: (1) the invasion of a legally-protected interest; (2) a causal connection between the injury and the defendant’s conduct; and (3) a likelihood that the court can redress the injury by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)." }, { "docid": "19745103", "title": "", "text": "Furthermore, plaintiffs may demonstrate “injury in fact” by claiming a “procedural injury”-that they were injured by the defendant’s violation of a procedural rule. In order to succeed under the ‘procedural injury’ doctrine, a plaintiff must demonstrate that “the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing,” Defenders of Wildlife, 504 U.S. at 573 n. 8, 112 S.Ct. 2130, and that it is “reasonably probable” that the procedural violation will in fact threaten that interest, Ouachita Watch League, 463 F.3d at 1170. For example, if an agency fails to prepare an EIS prior to taking an action that concretely affects the plaintiffs interests, the plaintiff has standing “even though he cannot establish with any certainty” that the EIS, had it been issued, would have prevented the action from occurring. Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. See Johnson, 436 F.3d at 1277; Ouachita Watch League, 463 F.3d at 1171 (“It is well settled that, in a NEPA suit, a cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared when the plaintiff also alleges a ‘concrete’ interest — such as an aesthetic or recreational interest — that is threatened by the proposed actions.” (internal quotation marks and ellipses omitted)). Based on the foregoing principles, the court concludes that the Wildlaw plaintiffs have constitutional standing to bring this lawsuit. First, the “injury in fact” requirement of Article III standing is satisfied. Wildlaw’s complaint, coupled with declarations it submitted with its brief, demonstrate that the plaintiff organizations’ members have aesthetic and recreational interests in the wellbeing of our Nation’s forests. They frequently visit lands regulated by the Forest Service, and they have specific, concrete plans to continue doing so in the immediate future. Cf. Defenders of Wildlife, 504 U.S. at 564, 112 S.Ct. 2130 (finding that “ ‘some day’ intentions ... do not support a finding of ... ‘actual or imminent’ injury”). They fear that the challenged regulations, if not invalidated, will directly impact their ability to use and" }, { "docid": "7707339", "title": "", "text": "plaintiffs had not shown any realistic likelihood that they would come into contact with those parcels. There are two relevant cases in this circuit, both controlling. In Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir.1994), we held that an environmental organization had standing to bring a challenge under NEPA to an LRMP that applied to 6 million acres of national forest land in the Sierras. Id. at 1349-55. The challenged LRMP allowed the “use of all methods to treat competing vegetation ... [in order] to meet the timber yield objectives,” and delegated the decision to use herbicides to the district foresters. Id. at 1351. The Forest Service’s standing argument in Salmon River was essentially the same as its standing argument here — that plaintiff lacked standing because it failed “to demonstrate that the members would be harmed by a specific project using herbicides.” Id. at 1352. Members of the organization lived next to or within the boundaries of the area where herbicides had previously been banned but would now be permitted, and they frequently used the area for recreation. Id. at 1353. These members contended that their health and recreational interests were adversely affected by the Forest Service’s decision to permit herbicide use. Id. We characterized the members’ injury as the risk “that environmental consequences” of herbicide use “might be overlooked[ ] as a result of deficiencies in the government’s analysis under environmental statutes.” Id. at 1355 (internal quotation marks omitted). That risk constituted a concrete, specific and imminent injury sufficient to challenge an EIS because “unfettered use of herbicides ... in the absence of NEPA compliance will cause harm to visitors’ recreational use and enjoyment, if not to their health.” Id. We specifically held that the plaintiffs did not have to “wait to challenge a specific project when their grievance is with an overall plan.” Id. We explained why: [I]f the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review. To the extent that the plan pre-determined the future, it represents a concrete injury that plaintiffs" }, { "docid": "20571866", "title": "", "text": "that their interests are directly affected or threatened, they are in the same position as plaintiffs “raising only a generally available grievance about the government” and “seeking relief that no more directly and tangibly benefits [them] than it does the public at large” that Lujan indicates do not satisfy Article Ill’s case or controversy requirement. See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130. In short, NIRS fails to meet the constitutional minimum that a concrete interest — in its members’ health or freedom from increased exposure to radiation — is threatened by the exemption regulations. NIRS’s interest (even if sufficiently concrete) in the health of its members also appears to be served, not harmed, by the enactment of the new regulations. Average radiation doses under the new regulations are less than they were under the prior 70 Bq/g scheme. In contrast, in cases where we have found a “reasonable probability” of harm, the challenged rule has been less protective of the environment than the regime it replaced. See, e.g., Citizens for Better Forestry, 341 F.3d at 972 (holding that environmental plaintiffs had established reasonable probability where “the 2000 Plan Development Rule decreases substantive environmental requirements (thus injuring their concrete interest in enjoying the national forests) as compared to the 1982 Plan Development Rule”); Salmon River, 32 F.3d at 1349-51 (explaining that the challenged policy permitted use of herbicides in regional forests for the first time). NIRS’s argument that it need not show the rule causes more injury than the previous rule, because environmental impacts may be significant even when an action is on balance beneficial, is unavailing. Regardless whether NEPA defines “significant” as including actions with a beneficial impact, 40 C.F.R. §§ 1508.8(b), 1508.27(b)(1), the constitutional standing requirement mandates that a petitioner show at least reasonable probability of a threat to a concrete interest. NIRS points to no authority, and we have found none, holding that there was a reasonable probability that government, action would harm a concrete interest when the action led to a result that was beneficial to the petitioners. NIRS’s contention that some discrete radioactive isotopes" }, { "docid": "7922409", "title": "", "text": "a plaintiff must establish three elements to have standing. First, the plaintiff must point to a concrete injury which the plaintiff personally has suffered or with which it. is imminently threatened (an “injury in fact”). Lujan v. Defenders of Wildlife, -U.S.-,-, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Second, the plaintiff must show that the alleged injury is “fairly traceable” to the defendant’s action. Id. Third, the plaintiff must demonstrate that a favorable decision is likely to redress that injury. Id. When a plaintiff challenges an agency action under the APA, it also must show that the interests it seeks to protect are “arguably within the zone of interests to be protected” by the statute in question. Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). We conclude that Yesler satisfies all of these requirements. Yesler asserts that it was injured when HUD, without following notice and comment rulemaking procedures, determined that Washington PHAs can' dispense with grievance hearings in crime-related evictions. There is no question that a “procedural injury” can constitute an injury in fact for the purpose of establishing standing. See Defenders, — U.S. at-n. 7, 112 S.Ct. at 2142 n. 7;- Dellums v. Smith, 797 F.2d 817, 821 (9th Cir.1986). However, not every procedural injury will do. To have standing,, a plaintiff must be seeking “to enforce a procedural requirement the disregard of which could impair a separate concrete interest.” Defenders, — U.S. at -, 112 S.Ct. at 2142; see also Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, - (9th Cir.1994). Thus the Court opined in Defenders that someone living next door to the site of a proposed federally licensed dam would have standing to challenge the licensing agency’s failure to prepare an environmental impact statement, whereas someone living across the country from the proposed dam would not have standing. Id. at-, 112 S.Ct. at 2142 n. 7; see also Pacific Northwest Generating Coop v. Brown, 25 F.3d 1443, 1449 (9th Cir.1994) (plaintiffs whose way of conducting business may be affected by" }, { "docid": "20571865", "title": "", "text": "well as other members of the public, to adverse health consequences.” NIRS fails to show that its members’ concrete interest is threatened by the challenged regulation, rather than by “unregulated transportation of radioactive material” in the abstract. The declarations simply express undifferentiated “concerns” — the same concerns about nuclear hazards shared by the public at large— and speculate that unregulated transportation of radioactive material in general— not this regulation in particular — may present unspecified threats to their health. This is quite unlike the interest shown in cases such as Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1352-53 (9th Cir.1994), where the affidavits of Salmon River Concerned Citizens (SRCC) members stated in great detail how their health and ability to use national forests would be adversely affected by pesticide use, and Citizens for Better Forestry, 341 F.3d at 971, where Citizens had alleged that they would suffer harm and properly supported the allegation “with numerous affidavits covering a vast range of national forests around the country.” As the members here have not shown that their interests are directly affected or threatened, they are in the same position as plaintiffs “raising only a generally available grievance about the government” and “seeking relief that no more directly and tangibly benefits [them] than it does the public at large” that Lujan indicates do not satisfy Article Ill’s case or controversy requirement. See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130. In short, NIRS fails to meet the constitutional minimum that a concrete interest — in its members’ health or freedom from increased exposure to radiation — is threatened by the exemption regulations. NIRS’s interest (even if sufficiently concrete) in the health of its members also appears to be served, not harmed, by the enactment of the new regulations. Average radiation doses under the new regulations are less than they were under the prior 70 Bq/g scheme. In contrast, in cases where we have found a “reasonable probability” of harm, the challenged rule has been less protective of the environment than the regime it replaced. See, e.g., Citizens for Better Forestry, 341" }, { "docid": "17736414", "title": "", "text": "Cir.1987); Overseas Shipholding Group, Inc. v. Skinner, 767 F.Supp. 287, 293-94 (D.D.C.1991); Sierra Club v. Robertson, 764 F.Supp. 546, 554 (W.D.Ark.1991). Here, the threatened harm to SRCC’s members’ health, recreational use, and enjoyment, in the absence of a vegetation management plan that complies with NEPA, “is concrete, specific, imminent, caused by agency conduct in question, and redressable by a favorable ruling.” Seattle Audubon Soc’y, 998 F.2d at 703. SRCC has standing. C. The Forest Service also contends, in essence, that a challenge to the Impact Statement will not be ripe until a district forester authorizes a specific herbicide application, because only a specific herbicide application would harm SRCC. We reject the Service’s position. In Idaho Conservation League, we held that plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan: [I]f the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review. To the extent that the plan pre-determined the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge. That point is now, or it is never. 956 F.2d at 1516 (footnote omitted). To the extent the FEIS here sets guidelines that determine future herbicide applications, the Service’s failure to comply with NEPA represents a concrete injury. The challenge to the FEIS is ripe for review. II. NEPA Claims SRCC contends that the district court erred by concluding that the FEIS did not violate NEPA. A. NEPA imposes only procedural requirements, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), it does not dictate a substantive environmental result, Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989). The policy behind NEPA is to ensure that an agency has at its disposal all relevant information about environmental impacts of a project before the agency embarks on the project. Id. at 371-72, 109 S.Ct. at 1858-59; Vermont Yankee Nuclear Power Corp., 435 U.S. at 558, 98" } ]

[ { "docid": "23008195", "title": "", "text": "of the prohibition was added to a private bill makes it quite clear that the omission of a clause expressly repealing § 2a(c) was simply an inadvertence. Canons of statutory construction — such as the presumption against implied repeals or the presumption against pre-emption — are often less reliable guides in the search for congressional intent than a page or two of history. * * * The history of the 1967 statute, coupled with the plain language of its text, leads to only one conclusion — Congress impliedly repealed § 2a(e). It is far wiser to give effect to the manifest intent of Congress than, as the plurality attempts, to engage in tortured judicial legislation to preserve a remnant of an obsolete federal statute and an equally obsolete state statute. Accordingly, while I concur in the Court’s judgment and opinion, I do not join Parts III-B or IV of the plurality opinion. Compare Posadas, 296 U. S., at 503 (“There are two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act”), with Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995) (“[A] federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U. S. 72, 78-79 (1990), or when state law is in actual conflict with federal law”). The States of Hawaii and New Mexico were the only two States that met the statutory exception because they were “entitled to more than one Representative” and had “in all previous elections elected [their] Representatives at Large.” Pub. L. 90-196, 81 Stat. 581. In 1965, the House of Representatives passed a bill identical, in all relevant respects, to the bill Representative Celler introduced" } ]

[ { "docid": "20149739", "title": "", "text": "repeals by implication, (2) the Seventh Circuit’s acknowledgement that Title VII does not preclude equal protection claims for race and sex discrimination under § 1983, coupled with this circuit’s recognition of the parallels between Title VII and the ADEA, and (3) the language and legislative history of the ADEA. The Supreme Court generally disfavors repeals by implication and therefore requires “irreconcilable conflict” between two statutes in order to find that the later statute preempts the earlier one. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (internal citations and quotation marks omitted); Rogers v. Baxter Int’l, 521 F.3d 702, 705 (7th Cir.2008). Where “two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)) (internal quotation marks omitted). When analyzing statutes enacted to protect federal rights after § 1983, the Supreme Court has opined that a statute’s comprehensive enforcement mechanism may demonstrate Congress’ intent to foreclose a remedy under § 1983. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (citing Middlesex County Sewerage Authority v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)). However, in Golden State, the Court cautioned: The availability of administrative mechanisms to protect the plaintiffs interest is not necessarily sufficient to demonstrate that Congress intended to foreclose a § 1983 remedy. Rather, the statutory framework must be such that allowing a plaintiff to bring a § 1983 action would be inconsistent with Congress’ carefully tailored scheme. The burden to demonstrate that Congress has expressly withdrawn the remedy is on the defendant. Id. at 106-07, 110 S.Ct. 444. As further demonstrated by decisions following Golden Gate, the Supreme Court is loath to imply that a statute forecloses § 1983 remedies simply because it provides" }, { "docid": "18071778", "title": "", "text": "POSNER, Circuit Judge. Nicole Delgado, a former student at Western Illinois University, a state university, claims to have been harassed by a professor at the university named James Stegall. She filed this suit for damages against the university under Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688, and against Stegall under the Civil Rights Act of 1871, 42 U.S.C. § 1983. The district judge granted summary judgment for both defendants. He ruled that Delgado had failed to establish a violation of Title IX by the university and that Title IX provides the exclusive federal remedy for a teacher’s misconduct toward a student; the latter ruling let Stegall off the hook. Delgado, a music student at Western Illinois, was hired by her voice teacher, Stegall, to be his “office assistant” during her sophomore year. The record does not reveal the duties of the position except that they were somehow connected to Ste-gall’s job as choral director. Part-time work for professors is a common activity of college students, and although sexual harassment of university employees is not actionable under Title IX if the employee could obtain relief under Title VII, Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-62 (7th Cir.1996); Lakoski v. James, 66 F.3d 751, 753-58 (5th Cir.1996), there is no contention that the kind of part-time position that Delgado held (whatever exactly it involved), even though it made her an employee of the university, precludes her from complaining that she was harassed as a student and therefore can seek a remedy under Title IX. We cannot find any cases dealing with the question but it seems to us that harassment of a student interferes with her educational experience whether or not she is also a part-time employee; the harassment of a nonstudent employee could have no such effect. Stegall made advances to Delgado after she became his office assistant, repeatedly asking her “Do you love me?” and “Would you ever marry a man like me?” He would also ask her for hugs, rub her shoulders, and tickle her. Troubled by these attentions, she confided" }, { "docid": "17675467", "title": "", "text": "statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’ ” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). “Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, a court must give effect to both.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citation and internal quotation marks omitted). Nor is “a statute dealing with a narrow, precise, and specific subject ... submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). The Supreme Court has repeatedly held that “ ‘[r]epeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.’ ” Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175, 129 S.Ct. 1436, 173 L.Ed.2d 333 (2009) (quoting Nat’l Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)) (second alteration in original); see also Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003); Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936). Courts should “not infer a statutory repeal unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all.” Nat’l Ass’n of Home Builders, 551 U.S. at 662, 127 S.Ct. 2518 (alterations and internal quotations marks omitted); see also Branch, 538 U.S. at 273, 123 S.Ct. 1429 (“An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers" }, { "docid": "18071794", "title": "", "text": "Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582, 587 (2000); cf. 745 ILCS 10/9-102; Doe v. City of Chicago, 360 F.3d 667, 670 (7th Cir.2004); see generally Dan B. Dobbs, The Law of Torts § 273, p. 733 (2000). At common law the duty of indemnity actually runs the other way — the employee who commits a tort for which his employer is liable under the doctrine of respondeat superior has a duty to indemnify the employer if the latter is sued and loses. Id. § 333, p. 906; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 51, p. 341 (5th ed.1984); Restatement (Second) of Agency § 401 and comment d (1958). Conceivably a university will have to pay a higher wage to teachers if they are exposed to the possibility of suit, but that is not a plausible basis for imputing to the Congress that enacted Title IX an intent to repeal the section 1983 rights of students. The legislators who enacted Title IX would be startled to discover that by doing so they had killed all federal reme dies for sex discrimination by teachers of which the school lacked actual knowledge. Stegall is asking us in effect to rule that Congress in Title IX repealed by implication a swatch of section 1983, though there is no possible conflict between these two federal statutes in cases in which relief is sought against a teacher or other non-managerial employee and no hint of such a purpose in the background or history of Title IX. The Supreme Court has said that where two federal statutes can coexist, the later one is not to be deemed to have repealed the earlier one unless there is some indication of a congressional intent to do so, even though the result may be (though not in this case) to give the plaintiff a choice of federal remedies. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003); J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 141-44, 122 S.Ct. 593," }, { "docid": "18071786", "title": "", "text": "consequences if the risk materializes merges with intention to bring about the consequences (more precisely, to allow the consequences to occur though they could readily be prevented from occurring). And that ought to be enough for liability under Title IX. So if, for example, Stegall had been known to be a serial harasser, Butterworth might well be found to have had a sufficient approximation to actual knowledge that Delgado would be harassed to satisfy the Supreme Court’s standard. After all, in Davis the Court required knowledge only of “acts of sexual harassment” by the teacher, Davis v. Monroe County Board of Education, supra, 526 U.S. at 641, 119 S.Ct. 1661, not of previous acts directed against the particular plaintiff. See also id. at 653-54, 119 S.Ct. 1661 (attaching significance to the fact that there were “multiple victims who were sufficiently disturbed by G. F.’s misconduct to seek an audience with the school principal”); Baynard v. Malone, 268 F.3d 228, 238 (4th Cir.2001); P.H. v. School District of Kansas City, 265 F.3d 653, 661-63 (8th Cir.2001). But Stegall was not known by anyone in the university administration, such as Dean Butterworth, to be harassing other students. To repeat, Delgado attaches no weight to the ten-year-old episode, which would in any event be only weak evidence that Stegall’s current students were at so high a risk of being harassed by him that university officials’ knowledge of the earlier episode would make them reckless for having failed to take steps to prevent a recurrence. Delgado’s second claim is against Stegall and is based not on Title IX (which it could not be based on because only the educational institution itself—the grant recipient—can be a defendant in a suit under that statute, Boulahanis v. Board of Regents, 198 F.3d 633, 640 (7th Cir.1999); Smith v. Metropolitan School Dist., 128 F.3d 1014, 1018-21 (7th Cir.1997); Kinman v. Omaha Public School Dist., 171 F.3d 607, 609-11 (8th Cir.1999)), but on 42 U.S.C. § 1983, which creates a remedy for a person who is deprived of his ,or her federal rights under color of state law. Stegall" }, { "docid": "18071788", "title": "", "text": "is a state actor who, if the facts alleged by Delgado are correct, as we must assume in the posture of the case before us that they are, used his position to discriminate against her on the basis of her sex, in violation of her federally protected right to the equal protection of the laws. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The question is whether by enacting Title IX Congress intended to extinguish the right to sue under section 1983 that Delgado would otherwise have. The district judge felt constrained by this court’s decisions to answer yes, though he also expressed his disagreement with those decisions and with the result that they seemed to him to dictate in this case. We think his instincts were sound, but that the eases in question are distinguishable from the present one. The doctrine to which Stegall appeals originated in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20-21, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), and goes by the name of the “sea clammers” doctrine. The plaintiffs in that case sought relief from pollution against state officials under federal statutes that provided comprehensive and fully adequate remedies. The Supreme Court had recently held, however, that section 1983, though typically used to enforce federal constitutional rights, reaches infringements of federal statutory rights as well. Id. at 19, 101 S.Ct. 2615; Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). This ruling opened up the possibility that anyone who had a federal statutory remedy for a harm inflicted under color of state law could tack on a claim for relief under section 1983 as well. Worse, even if Congress hadn’t intended that a particular federal statute be enforceable by private damages suits, a person injured by a violation of the statute would be able to enforce it privately under section 1983. By doing so he would not only be bypassing the need to show that Congress in enacting the statute had intended that there be" }, { "docid": "21621737", "title": "", "text": "makes liability depend on the actor’s knowledge, § 1692e(2)(A) creates a strict-liability rule. Debt collectors may not make false claims, period. See Turner, 330 F.3d at 995, and its predecessors, such as Gearing v. Check Brokerage Corp., 233 F.3d 469, 472 (7th Cir.2000), and Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996). In lieu of a scienter requirement, the FDCPA provides a defense “if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). This is the basis of the district court’s conclusion that liability under § 1692e(2)(A) would interfere with the administration of bankruptcy law — -Congress specified a scienter rule for proceedings under § 362(h), yet the FDCPA allows liability without proof of a mental state. The district court wrote that § 362(h) “preempts” § 1692e(2)(A), but this cannot be right. One federal statute does not preempt another. See Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir.2004). When two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other — and repeal by implication is a rare bird indeed. See, e.g., Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003); J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 141-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (collecting authority). It takes either irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other. Preemption is more readily inferred, so decisions such as Coa; v. Zale — which held that bankruptcy principles come from federal rather than state law- — -are not informative about which federal laws apply to what transactions. The district court did not find any clearly expressed decision that the Bankruptcy Code displaces the FDCPA, and the debt collectors do not contend that Congress made such a decision. The argument, rather, is one based on the operational differences between the statutes. These" }, { "docid": "18071795", "title": "", "text": "startled to discover that by doing so they had killed all federal reme dies for sex discrimination by teachers of which the school lacked actual knowledge. Stegall is asking us in effect to rule that Congress in Title IX repealed by implication a swatch of section 1983, though there is no possible conflict between these two federal statutes in cases in which relief is sought against a teacher or other non-managerial employee and no hint of such a purpose in the background or history of Title IX. The Supreme Court has said that where two federal statutes can coexist, the later one is not to be deemed to have repealed the earlier one unless there is some indication of a congressional intent to do so, even though the result may be (though not in this case) to give the plaintiff a choice of federal remedies. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003); J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 141-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001). Even without a presumption against repeals by implication, Stegall’s argument would fail because there is no reason to suppose that holding that Title IX wiped out a big piece of section 1983 would serve any of the purposes that animated Congress in passing Title IX. Delgado’s suit against Stegall must therefore be reinstated. Affirmed in Paet, ReveRsed in Paht, AND Remanded." }, { "docid": "16428762", "title": "", "text": "from the fact that an agreement to arbitrate is at issue.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (quoting Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)). Epic argues that the NLRA contains no “contrary congressional command” against arbitration, and that the FAA therefore trumps the NLRA. But this argument puts the cart before the horse. Before we rush to decide whether one statute eclipses another, we must stop to see if the two statutes conflict at all. See Vimar Seguros y Reaseguros, S.A v. M/V Sky Reefer, 515 U.S. 528, 533, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995). In order for there to be a conflict between the NLRA as we have interpreted it and the FAA, the FAA would have to mandate the enforcement of Epic’s arbitration clause. As we now explain, it does not. A Epic must overcome a heavy presumption to show that the FAA clashes with the NLRA. “[W]hen two statutes are capable of co-existence ... it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Vimar Seguros, 515 U.S. at 533, 115 S.Ct. 2322 (applying canon to find FAA compatible with other statute) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Moreover, “[w]hen two statutes complement each other” — that is, “each has its own scope and purpose” and imposes “different requirements and protections” — finding that one precludes the other would flout the congressional design. POM Wonderful LLC v. Coca-Cola Co., — U.S. -, 134 S.Ct. 2228, 2238, 189 L.Ed.2d 141 (2014) (internal citations omitted). Courts will harmonize overlapping statutes “so long as each reaches some distinct cases.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001). Implied repeal should be found only when there is an “ ‘irreconcilable conflict’ between the two federal statutes at issue.” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381," }, { "docid": "8525933", "title": "", "text": "that the FDCPA claims relate to the same 3002.1(c) notice complained of in the Trevinos’ original pleading. Accordingly, the FDCPA claims were timely filed. c. The Bankruptcy Code Does Not Preempt Relief Under the FDCPA HSBC argues in the alternative that the filing of a 3002.1(c) notice cannot be considered a violation of the FDCPA because the Bankruptcy Code preempts any remedial scheme imposed under the FDCPA. Federal courts have held that specific provisions of the Bankruptcy Code may preclude a simultaneous claim under the FDCPA. Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir.2002); Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir.2010); In re Pariseau, 395 B.R. 492, 494 (Bankr.M.D.Fla.2008). In Middlebrooks v. Interstate Credit Control, Inc., the court reasoned that while typically the Bankruptcy Code and the FDCPA coexist peacefully, permitting an FDCPA action based on a false proof of claim could “could potentially undermine the Bankruptcy Code’s specific provisions for administration of the debtor’s estate.” 391 B.R. 434, 437 (D.Minn.2008). An FDCPA claim, however, can only be precluded by the Bankruptcy Code if the two statutes are in direct conflict. “When two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other — and repeal by implication is a rare bird indeed.” Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir.2004). See also J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (“[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”). The Randolph court found that because the automatic stay provisions of the Bankruptcy Code and the FDCPA did not explicitly conflict, a creditor’s action which violated the automatic stay could also yield liability under the FDCPA. Randolph, 368 F.3d at 728. Similarly, in Simon v. FIA Card Serv., N.A, the Third Circuit held that absent a specific conflict between the Code and the FDCPA, the FDCPA is not preempted. 732" }, { "docid": "20149738", "title": "", "text": "district courts remain fractured., in the wake of Zombro and Mummelthie, one district court has noted that “[a] recent trend favors Mummelthie’s interpretation.” Mustafa v. Nebraska Dep’t of Corr. Servs., 196 F.Supp.2d 945, 955 n. 11 (D.Neb.2002) (collecting cases). In Mummelthie, the court criticized the Fourth’s Circuit’s decision in Zombro for overlooking the instructive analogy between the ADEA and Title VII, which does not foreclose equal protection claims for race and sex discrimination brought under § 1983, and for considering neither “the statutory language of the ADEA itself nor its legislative history, before concluding that the ADEA provided the exclusive federal remedy for age discrimination in employment.” Mummelthie, 873 F.Supp. at 1319. Building from the Iowa district court’s decision in Mummelthie, which performed a significantly more searching analysis of the ADEA than any of the appellate courts to address this issue, the Court concludes that the ADEA does not foreclose Plaintiffs equal protection claim for age discrimination under § 1983. As discussed below, this decision is informed by (1) the Supreme Court’s well-settled distaste for repeals by implication, (2) the Seventh Circuit’s acknowledgement that Title VII does not preclude equal protection claims for race and sex discrimination under § 1983, coupled with this circuit’s recognition of the parallels between Title VII and the ADEA, and (3) the language and legislative history of the ADEA. The Supreme Court generally disfavors repeals by implication and therefore requires “irreconcilable conflict” between two statutes in order to find that the later statute preempts the earlier one. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (internal citations and quotation marks omitted); Rogers v. Baxter Int’l, 521 F.3d 702, 705 (7th Cir.2008). Where “two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)) (internal quotation marks omitted). When analyzing" }, { "docid": "21621745", "title": "", "text": "overrule earlier decisions). The Supreme Court has never discussed the most common overlap — Title VII and § 1983 when the employer is a state actor — but like other appellate courts we have held that employees may resort to both statutes despite the substantial differences in their terms. See, e.g., Trigg v. Ft. Wayne Community Schools, 766 F.2d 299 (7th Cir.1985) (collecting authority). See also Delgado v. Stegall, No. 03-2700, 367 F.3d 668 (7th Cir. May 4, 2004) (Title IX of Educational Amendments of 1972 does not preclude claim under § 1983 against teacher in a public school). The Bankruptcy Code of 1986 does not work an implied repeal of the FDCPA, any more than the latter Act implicitly repeals itself. Consider again Alexander’s two claims: the first, under § 1692c(a), depended on the debt collector’s “knowledge” of the bankruptcy; the second, under § 1692e(2)(A), invoked a strict-liability rule with a potential due-care defense. We have been able to address both of these independently, without saying that it would undercut the scienter requirement § 1692c(a) to permit no-fault liability under § 1692e(2)(A). They are simply different rules, with different requirements of proof and different remedies. Just so with § 1692e(2)(A) and § 362(h) of the Bankruptcy Code. To say that only the Code applies is to eliminate all control of negligent falsehoods. Permitting remedies for negligent falsehoods would not contradict any portion of the Bankruptcy Code, which therefore cannot be deemed to have re pealed or curtailed § 1692e(2)(A) by implication. To the extent that Walls holds otherwise, we do not follow it; instead we reaffirm the approach of Turner and Hy-man. Because the district court dismissed the complaints on the pleadings, it is premature to broach the question whether any of the debt collectors could establish a defense under § 1692k(c). To the extent that plaintiffs seek relief under § 1692f, which prohibits “unconscionable” collection tactics, there is no incompatibility with the Code (everything we have said about § 1692e(2)(A) applies equally to § 1692f) but also no serious claim: all three debt collectors desisted immediately on learning" }, { "docid": "10285299", "title": "", "text": "in the preemption context where a state restriction conflicts with a federal authorization or “right.” E.g., Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 31, 37, 116 S.Ct. 1103, 1108, 1111, 134 L.Ed.2d 237 (1996) (holding that a federal statute authorizing banks to sell insurance preempted a state law forbidding it); McCulloch v. Maryland, 17 U.S. 4 Wheat. 316, 360-62, 4 L.Ed. 579 (1819) (holding that a federal statute authorizing the operation of a federal bank preempts state taxation of that bank). However, preclusion is a different inquiry than preemption because a conflict between two federal statutes does not implicate federalism. There is no need to maintain the federal prerogative against a state restriction when there is no state restriction. The correct inquiry in determining whether one federal statute precludes another is the ability to comply with both. For example, in POM Wonderful LLC v. Coca-Cola Co., - U.S. -, 134 S.Ct. 2228, 189 L.Ed.2d 141 (2014), the Supreme Court held that a'Lanham Act claim alleging “unfair competition through misleading advertising or labeling” was not precluded by the Food, Drug, and Cosmetic Act even though the latter Act “authorized” the label at issue. POM Wonderful LLC, 134 S.Ct. at 2239. The Supreme Court noted in POM Wonderful that the two Acts “complement each other in major respects, for each has its own scope apd purpose.” Id. at 2238. The Lanham Act protects commercial interests against unfair competition, while the Food, Drug, and Cosmetic Act protects public health and safety. Id. Thus, it was possible for the defendant in POM Wonderful to comply with the Food, Drug, and Cosmetic Act while at the same time running afoul of the Lanham Act. The purposes of the Bankruptcy Code and the FDCPA are similarly complimentary of each other. The Supreme Court “has not hesitated to give effect to two statutes that overlap, so long as each reaches distinct cases.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144, 122 S.Ct. 593, 605, 151 L.Ed.2d 508 (2001). When one federal statute authorizes a certain action by a" }, { "docid": "18071793", "title": "", "text": "for which the school could be held liable under Title IX. In Bruneau, Crawford, and Lillard, teachers were named as section 1983 defendants along with school officials, but nothing was made of the distinction between the two types of defendant. The distinction is crucial. The only possible efféct of applying the sea-clammers doctrine to this case would be to immunize Stegall from liability for his federal constitutional tort. How this could be thought to have been intended by Congress when it enacted Title IX without providing any damages remedy, or to advance the policies of that statute, is beyond us. Stegall argues feebly that since states often indemnify their employees for tor-tious misconduct, the university may be harmed financially if he is held liable to Delgado under section 1983. If such liability pinches the university, then it can cease indemnifying such tortfeasors; no statutory change would be necessary, because Illinois law requires the state to indemnify its employees only for the torts they commit within the scope of their employment. 5 ILCS 350/2(d); Nichol v. Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582, 587 (2000); cf. 745 ILCS 10/9-102; Doe v. City of Chicago, 360 F.3d 667, 670 (7th Cir.2004); see generally Dan B. Dobbs, The Law of Torts § 273, p. 733 (2000). At common law the duty of indemnity actually runs the other way — the employee who commits a tort for which his employer is liable under the doctrine of respondeat superior has a duty to indemnify the employer if the latter is sued and loses. Id. § 333, p. 906; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 51, p. 341 (5th ed.1984); Restatement (Second) of Agency § 401 and comment d (1958). Conceivably a university will have to pay a higher wage to teachers if they are exposed to the possibility of suit, but that is not a plausible basis for imputing to the Congress that enacted Title IX an intent to repeal the section 1983 rights of students. The legislators who enacted Title IX would be" }, { "docid": "18071792", "title": "", "text": "suits against the school officials responsible for the policy or practice that violates Title IX, though not all courts agree. Compare Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir.1990), which we followed in Waid and Boulahanis, and also Bruneau ex rel. Schofield v. South Kortright Central School District, 163 F.3d 749, 756-59 (2d Cir.1998), with Crawford v. Davis, 109 F.3d 1281, 1283-84 (8th Cir.1997); Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996), and Lillard v. Shelby County Board of Education, 76 F.3d 716, 722-24 (6th Cir.1996), all rejecting the holding of Pfeiffer. The issue was expressly left open by the Supreme Court in Gebser. 524 U.S. at 292, 118 S.Ct. 1989. Title IX, especially having been interpreted in Cannon to provide a damages remedy, furnishes all the relief that is necessary to rectify the discriminatory policies or practices of the school itself. But it is quite otherwise in a case such as this, in which the malefactor is a teacher whose malefaction is not a policy or a practice for which the school could be held liable under Title IX. In Bruneau, Crawford, and Lillard, teachers were named as section 1983 defendants along with school officials, but nothing was made of the distinction between the two types of defendant. The distinction is crucial. The only possible efféct of applying the sea-clammers doctrine to this case would be to immunize Stegall from liability for his federal constitutional tort. How this could be thought to have been intended by Congress when it enacted Title IX without providing any damages remedy, or to advance the policies of that statute, is beyond us. Stegall argues feebly that since states often indemnify their employees for tor-tious misconduct, the university may be harmed financially if he is held liable to Delgado under section 1983. If such liability pinches the university, then it can cease indemnifying such tortfeasors; no statutory change would be necessary, because Illinois law requires the state to indemnify its employees only for the torts they commit within the scope of their employment. 5 ILCS 350/2(d); Nichol v." }, { "docid": "17675466", "title": "", "text": "at issue in Randolph overlapped, the court found that because “[i]t is easy to enforce both statutes, and any debt collector can comply with both simultaneously,” the FDCPA claim could proceed. Id. at 730. We will follow the Seventh Circuit’s approach. When, as here, FDCPA claims arise from communications a debt collector sends a bankruptcy debtor in a pending bankruptcy proceeding, and the communications are alleged to violate the Bankruptcy Code or Rules, there is no categorical preclusion of the FDCPA claims. When, as is also the case here, the FDCPA claim arises from communications sent in a pending bankruptcy proceeding and there is no allegation that the communications violate the Code or Rules, there is even less reason for categorical preclusion. The proper inquiry for both circumstances is whether the FDCPA claim raises a direct conflict between the Code or Rules and the FDCPA, or whether both can be enforced. This approach is consistent with Supreme Court precedents recognizing a presumption against the implied repeal of one federal statute by another. “ ‘[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’ ” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). “Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, a court must give effect to both.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citation and internal quotation marks omitted). Nor is “a statute dealing with a narrow, precise, and specific subject ... submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). The Supreme Court has repeatedly held that “ ‘[r]epeals by implication are not favored and will not be presumed unless the intention" }, { "docid": "21621744", "title": "", "text": "back pay) were available for violations of the 1964 Act, while compensatory and punitive damages were available for violations of the older laws. These differences — and there are many more — led to contentions that the 1964 Act superceded the older statutes to the extent they occupied the same ground. Arguments of that kind have never succeeded, however; the Supreme Court has held that both old and new remedial systems may be enforced according to their terms, despite the substantial differences, because the standards for implied repeal have not been satisfied. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (Title VII and § 1981); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (Title II and § 1981); Guardians Association v. Civil Service Commission, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (Title VI and § 1983); Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (Title VII and § 1981; declining to overrule earlier decisions). The Supreme Court has never discussed the most common overlap — Title VII and § 1983 when the employer is a state actor — but like other appellate courts we have held that employees may resort to both statutes despite the substantial differences in their terms. See, e.g., Trigg v. Ft. Wayne Community Schools, 766 F.2d 299 (7th Cir.1985) (collecting authority). See also Delgado v. Stegall, No. 03-2700, 367 F.3d 668 (7th Cir. May 4, 2004) (Title IX of Educational Amendments of 1972 does not preclude claim under § 1983 against teacher in a public school). The Bankruptcy Code of 1986 does not work an implied repeal of the FDCPA, any more than the latter Act implicitly repeals itself. Consider again Alexander’s two claims: the first, under § 1692c(a), depended on the debt collector’s “knowledge” of the bankruptcy; the second, under § 1692e(2)(A), invoked a strict-liability rule with a potential due-care defense. We have been able to address both of these independently, without saying that it would undercut the scienter requirement §" }, { "docid": "3728628", "title": "", "text": "Rico has stated: “The courts do not favor implied repeals. A general law does not repeal a special law unless such repeal is expressly stated or clearly arises from the legislative intent.” McCrillis v. Aut. Navieras de P.R., 23 P.R. Offic. Trans. 109 (P.R. 1989) (citation omitted). This authority is aligned with the predominant understanding. The Supreme Court has explained that “ ‘when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’ ” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Moreover, “absent a clearly expressed congressional intention, repeals by implication are not favored. An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.” Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003)(plurality opinion)(internal quotation marks and citations omitted); see also Morton, 417 U.S. at 550, 94 S.Ct. 2474 (“[T]he only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable”). Here, section 268(a) is not irreconcilable with the CCAA; rather, the statutes easily may be harmonized by interpreting the CCAA to leave untouched section 268(a)’s statement that section 259 does not support a private right of action. Similarly, the CCAA neither covers the same subject as section 268(a) nor is clearly intended as a substitute. The CCAA prescribes procedures for consumer class actions, while the latter prescribes substantive standards governing monopolies and restraint of trade. In the absence of any evidence of legislative intent to repeal section 268(a), we find that no such implied repeal took place here. In the alternative, Diaz asks that we certify the issue of whether a private right of action exists to the Puerto Rico Supreme Court. However, we have held that" }, { "docid": "3728627", "title": "", "text": "Act and offer no indication that the legislature intended to override section 268’s more specific statement that section 259 does not support a private right of action. In sum, the right to file a class action cannot exist where — as with section 259-the Antitrust Act does not already afford an individual right. Moreover, the legislative history of the CCAA offers no indication that its drafters intended to create a right of action for violations of section 259(a). No specific statement implies such an intent. Indeed, the Statement of Motives accompanying the CCAA explains that “[m]any persons acting together as consumers who have been defrauded may enforce their individual rights by means of a consumer class suit.” Act of June 25, 1971, No. 118 (Statement of Motives). Not surprisingly, this statement indicates that rights must already exist at an individual level in order to support a class action. Finally, Diaz’s contention that the CCAA effectively serves as an implied repeal of section 268 violates established principles of statutory construction. As the Supreme Court of Puerto Rico has stated: “The courts do not favor implied repeals. A general law does not repeal a special law unless such repeal is expressly stated or clearly arises from the legislative intent.” McCrillis v. Aut. Navieras de P.R., 23 P.R. Offic. Trans. 109 (P.R. 1989) (citation omitted). This authority is aligned with the predominant understanding. The Supreme Court has explained that “ ‘when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’ ” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Moreover, “absent a clearly expressed congressional intention, repeals by implication are not favored. An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.”" }, { "docid": "18071787", "title": "", "text": "But Stegall was not known by anyone in the university administration, such as Dean Butterworth, to be harassing other students. To repeat, Delgado attaches no weight to the ten-year-old episode, which would in any event be only weak evidence that Stegall’s current students were at so high a risk of being harassed by him that university officials’ knowledge of the earlier episode would make them reckless for having failed to take steps to prevent a recurrence. Delgado’s second claim is against Stegall and is based not on Title IX (which it could not be based on because only the educational institution itself—the grant recipient—can be a defendant in a suit under that statute, Boulahanis v. Board of Regents, 198 F.3d 633, 640 (7th Cir.1999); Smith v. Metropolitan School Dist., 128 F.3d 1014, 1018-21 (7th Cir.1997); Kinman v. Omaha Public School Dist., 171 F.3d 607, 609-11 (8th Cir.1999)), but on 42 U.S.C. § 1983, which creates a remedy for a person who is deprived of his ,or her federal rights under color of state law. Stegall is a state actor who, if the facts alleged by Delgado are correct, as we must assume in the posture of the case before us that they are, used his position to discriminate against her on the basis of her sex, in violation of her federally protected right to the equal protection of the laws. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The question is whether by enacting Title IX Congress intended to extinguish the right to sue under section 1983 that Delgado would otherwise have. The district judge felt constrained by this court’s decisions to answer yes, though he also expressed his disagreement with those decisions and with the result that they seemed to him to dictate in this case. We think his instincts were sound, but that the eases in question are distinguishable from the present one. The doctrine to which Stegall appeals originated in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20-21, 101 S.Ct. 2615, 69 L.Ed.2d" } ]

[ { "docid": "6140201", "title": "", "text": "Fed.R.Evid. 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” . As we stated in DiRodio’s appeal, we appropriately discuss the coconspirator exception to the hearsay rule even though conspiracy was not explicitly charged since the government’s case depended upon a showing of a common criminal plan or venture. 565 F.2d at 575 n.3. . In United States v. Dunn, 564 F.2d 348 (9th Cir. 1977), we recently reviewed the quantum of evidence necessary to support a conspiracy conviction. We there held that both the existence of the conspiracy and the defendant’s connection thereto must be proved beyond a reasonable doubt. Id. at 356-57. In the case before us, however, we are not concerned with the quantum of evidence necessary to support a conspiracy conviction, but rather the quanturn necessary to admit a coconspirator’s statements pursuant to Fed.R.Evid. 801(d)(2)(E). In our view, these situations require the application of differing rules. When considering the question of sufficiency of evidence, fundamental legal principles require that each element of the offense be proven beyond a reasonable doubt. When considering admissibility, however, sound judicial policy militates in favor of placing probative and reasonably credible evidence before the trier of fact. While some of the reasoning of United States v. Dixon, 562 F.2d 1138 (9th Cir. 1977), has been called into question by Dunn, the holding itself has not been affected. Accordingly, we reaffirm our position announced in Dixon that admission of a coconspirator’s statement under Rule 801(d)(2)(E) requires substantial evidence of the existence of the conspiracy and “slight” evidence of the defendant’s connection to the conspiracy. Id. at 1141. . Although Fried was not charged as a conspirator but as a principal, analysis under the co-conspirator exception to the hearsay rule was properly used to determine the admissibility of some of the evidence against Fried. United States v. DiRodio, supra, 565 F.2d at 575 n.3. We are satisfied, however, that the jury verdict against Fried as a principal was proper. As the" } ]

[ { "docid": "22929435", "title": "", "text": "take between Weiner, and later Block, and the Equity Funding officials in attempts to develop auditing methods that would show income in amounts the company felt was desirable. The responsibilities of defendants were also established by testimony regarding their own statements and actions. Extrajudicial declarations made by defendants themselves are not hearsay, but qualify as independent evidence. United States v. Calaway, 524 F.2d at 613; Klein v. United States, 472 F.2d 847 (9th Cir. 1973). Such evidence included (1) Block directing auditors working under him not to pursue certain areas that involved fraudulent or falsified information despite the auditors’ requests for further information, and (2) Weiner suggesting accounting procedures that obscured Equity Funding’s true financial situation. Independent evidence to connect defendants with the conspiracy for the purpose of admitting the hearsay declarations was abundant. Some of the evidence is circumstantial; but circumstantial evidence can provide the necessary quantum of proof. United States v. Calaway, 524 F.2d at 612. Once the judge determines that the hearsay evidence is admissible, the weight to be given that evidence becomes a question for the jury. United States v. Ragland, 375 F.2d 471 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968); Carbo v. United States, 314 F.2d at 737. We hold that the evidence heard under the coconspirator hearsay exception to the hearsay rule was properly admitted. A pri-ma facie case was made for the existence of a conspiracy and the involvement of the particular defendants in it. Defendants further contend that the testimony of Lowell, Sultan, John Templeton (who served as Controller of Equity Funding from 1968 to 1969), and others concerning extrajudicial declarations by Goldblum violated their right of confrontation because the prosecution never called Gold-blum as a witness. Goldblum was called by the defense but refused to testify after asserting his Fifth Amendment right against self-incrimination. Goldblum’s extrajudicial statements were admissible as discussed above under the coconspirator exception. The admissibility of evidence under the coconspirator exception, however, does not automatically demonstrate compliance with the confrontation clause. United States v. Snow, 521 F.2d 730, 734 (9th" }, { "docid": "16933184", "title": "", "text": "insufficient evidence of the conspiracy and his link to it, the district court erred in admitting oral statements made by Perez under the coconspirator exception of the federal rules of evidence. See generally Fed.R.Evid. 801(d)(2)(E). We affirm the district court’s ruling. The statements at issue were made by Perez in the presence of Cazares and Nunez on November 27 and 29, December 8, 10, 11 and 12. The statements directly implicated Ruvalcaba. Ruvalcaba also objected on the same basis to the admission of statements by Alvarez-Yanez. The admissibility of the statements was argued prior to the defendants’ trial. At that point, the court ruled that the statements could be admitted, subject to a mistrial should the prosecution fail to lay a proper foundation. Ruvalcaba argues that the trial court erred in admitting the testimony because the only evidence establishing the conspiracy and linking him to it consisted of Perez’ statements and his own. The government argues that ample evidence supports the lower court’s ruling. Federal Rule of Evidence 801(d)(2)(E) requires proof of three elements: (1) that the declaration be in furtherance of the conspiracy; (2) that the declaration be made during the course of the conspiracy; and (3) that there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant with it. See Carbo v. United Stales, 314 F.2d 718, 735 n.21 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Preliminary questions of fact determinative of the admissibility of evidence challenged under this hearsay exception are resolved by the judge, not the jury. Id. at 736-37; United States v. King, 552 F.2d 833, 848-49 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). In order to prove the existence of conspiracy under the third prong of the coconspirator exception, the prosecution must establish a prima facie case through the introduction of substantial independent evidence other than the contested hearsay. The evidence need not compel a finding of conspiracy beyond a reasonable doubt. United States v. Dixon, 562 F.2d" }, { "docid": "21559548", "title": "", "text": "that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that there was a conspiracy involving the declarant and the defendant against whom the statement is offered, and that the statement was made during the course of and in furtherance of the conspiracy. United States v. Allison, 908 F.2d 1531, 1534 (11th Cir.1990) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987)). The determination as to whether (1) a conspiracy existed, (2) that the declarant and the defendant against whom the statement is offered were members of the conspiracy, and (3) that the statement was made during the course of and in furtherance of the conspiracy are preliminary questions of fact which “shall be determined by the court.” Fed.R.Evid. 104(a); see also Allison, 908 F.2d at 1534. We will only overturn the district court’s findings of fact if they are clearly erroneous. United States v. Perez, 824 F.2d 1567, 1572 (11th Cir.1987). “[Evidentiary and other non-constitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant’s substantial rights; where an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990); Fed.R.Evid. 103. B. Confrontation Clause The sixth amendment provides that in “all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const, amend. VI. “Both the confrontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant’s interest in testing the accuracy of evidence through personal confrontation and cross-examination.” United States v. Lang, 904 F.2d 618, 625 (11th Cir.1990) (quoting United States v. Thevis, 665 F.2d 616, 632 (5th Cir.Unit B), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982)). “Despite the common root of the confrontation clause and the rules governing hearsay, not all hearsay will violate the confrontation clause.” Lang, 904 F.2d at 625. In United States v. Chapman," }, { "docid": "16933203", "title": "", "text": "however, that part of the district court’s sentence must be vacated. AFFIRMED IN PART; REVERSED IN PART. . Federal Rule of Evidence 801(d)(2)(E) provides in part: “[A] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” . Unlike the Fifth Circuit, this court has declined to express a “preference” for pretrial determination of admissibility of the coconspirator’s statements. Compare United States v. Zemek, 634 F.2d 1159, 1169-1170 (9th Cir. 1980), with United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified en banc, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). . See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 263 (5th Cir. 1980) (testimony that declarant received several phone calls a day probative of fact to be proved rather than any direct statement by declarant); United States v. Lobo, 516 F.2d 883, 884 n. 1 (2d Cir.), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975) (while flight may be viewed as an admission and therefore not hearsay “[p]referably it is to be viewed as conduct offered as circumstantial evidence rather than for its assertive, testimonial value”.); Falknor, Hearsay, 1969 Law & Soc. Order 591, 594 n. 15 (“we are concerned here with non-assertive conduct, thus, the problem has to do with an ‘implied’, not an ‘express assertion’. In other words, we assume that the declarant has not expressly asserted the fact that the evidence is offered to prove; its relevancy rests on a purely circumstantial basis.”). . Nonassertive conduct is admissible whether it is verbal or nonverbal: The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring" }, { "docid": "16933188", "title": "", "text": "Ruvalcaba contends that Cazares’ testimony regarding statements made during their telephone conversation on December 10 was improperly admitted. This argument misses the mark because the defendant’s own statements are admissions wholly apart from the coconspirator exception' and as such are admissible as nonhearsay. This court has previously recognized this principle and has validated the use of admissions as evidence of conspiracy. See United States v. Cawley, 630 F.2d 1345, 1350 (9th Cir. 1980); United States v. Weiner, 578 F.2d 757, 770-71 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); cf. Calaway, 524 F.2d at 612 (defendant’s statements admitted as verbal acts under rule 801(c)). Although the foregoing evidence would be sufficient to establish the conspiracy, other probative evidence was properly admitted. The prosecution presented evidence of meetings for the purpose of exchanging cocaine and evidence of the actual exchange of and payment for the cocaine. Such evidence is substantial. See United States v. Testa, 548 F.2d 847, 854 (9th Cir. 1977). Substantial independent evidence also supports the district court’s conclusion that Ruvalcaba was linked to the conspiracy. Ruvalcaba’s admissions of De cember 10 and 12, together with the nonassertive conduct of December 10, prove the critical nexus with the conspiracy. See United States v. Zemek, 634 F.2d 1159 (9th Cir. 1980); Weiner, 578 F.2d at 770-71; Testa, 548 F.2d at 854 (9th Cir. 1977); United States v. Calaway, 524 F.2d at 612. The fact that a phone call was placed by Perez to the defendant was also proper evidence of nonassertive conduct and is nonhearsay. Additionally, although mere presence near the scene of illicit activity is never enough to infer a nexus to the conspiracy, see Weaver, 594 F.2d at 1273, Ruvalcaba’s presence in Stockton is probative of the nexus when viewed in context with the other independent evidence just recounted. See e. g., United States v. Fried, 576 F.2d 787, 789 (9th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 255, 58 L.Ed.2d 241 (1978); Dixon, 562 F.2d 1142-43; Testa, 548 F.2d at 854. IV Ruvalcaba’s second contention is that the trial court" }, { "docid": "7875028", "title": "", "text": "allowed to go to the jury, the prosecution must show that (1) the declaration was in furtherance of the conspiracy, (2) it was made during the pendency of the conspiracy, and (3) there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant to it. Weiner, 578 F.2d at 768. The quantum of independent proof required for the third element of the foundation requirement is “sufficient, substantial evidence to establish a prima facie case.” Weiner, 578 F.2d at 768. We have recently emphasized the importance of the first element in United States v. Fielding, 645 F.2d 719 (9th Cir. 1981), holding that mere descriptions of the conspiracy to a nonconspi-rator are not “in furtherance of” the conspiracy. The trial judge may make a preliminary determination of admissibility or may admit the testimony conditionally,, subject to “connecting up” with the foundation to be eventually laid by the prosecution. United States v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981) and 450 U.S. 985, 101 S.Ct. 1525, 67 L.Ed.2d 821 (1981). When there has been sufficient evidence to sustain a finding of conspiracy, we have held that giving an instruction like that given here not reversible error. We have called such an instruction “unduly generous.” United States v. Miranda-Uriarte, 649 F.2d 1345, 1351 n.4, 1353 (9th Cir. 1981); United States v. Lutz, 621 F.2d 940, 946 n.2 (9th Cir.), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1980) and 449 U.S. 1093, 101 S.Ct. 890, 66 L.Ed.2d 822 (1980); United States v. Testa, 548 F.2d 847, 853 n.3 (9th Cir. 1977). It is generous when the judge finds sufficient evidence to take the conspiracy count to the jury. Though there is enough evidence to permit the admission of the cocon-spirator hearsay, the judge thereby imposes the further requirement that the jury find conspiracy beyond a reasonable doubt before considering the hearsay testimony. In this circumstance, whether the jury performs this mental gymnastic is of little consequence, since the" }, { "docid": "16933190", "title": "", "text": "erred in admitting the statements of Perez and Alvarez-Yanez through the testimony of Cazares and Nunez because the defendant was denied his constitutional right to confront and cross-examine his accusers — the absent coconspirator declarants. Examined under the appropriate standards, however, the defendant’s constitutional argument cannot be sustained. The Sixth Amendment to the United States Constitution provides, that “[¡]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him .... ” Although the hearsay rules and the confrontation clause promote similar values, admissibility under a hearsay exception does not a fortiori dissolve the court’s obligation to review the record for constitutional infirmity. Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). This principle has particular force when the admission of evidence is sought under the coconspirator exception: Admission under the coconspirator exception does not automatically guarantee compliance with the confrontation clause. See United States v. Snow, 521 F.2d 730, 735 (9th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 (1976); United States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). Although the right to cross-examine is not absolute, see United States v. Gay, 567 F.2d 916, 919 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.E.2d 90 (1978), the introduction of evidence under the coconspirator exception without more is insufficient to satisfy constitutional requirements. The Supreme Court has refused to provide an exhaustive standard that could be expected to resolve all possible fact situations or test the adequacy of every exception, see California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1970), but it has recently announced that confrontation clause analysis should proceed case-by-case under a two-track approach that tests the necessity and reliability of the contested testimony. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980): The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in" }, { "docid": "19792879", "title": "", "text": "established for declarations to be admissible under the coconspirator exception. Eubanks, supra. The order of proof is within the sound discretion of the trial judge, United States v. Zemek, 634 F.2d 1159, 1169 (CA9 1980), who may conditionally admit coconspirator statements subject to a later motion to strike. In ascertaining whether the foundation has been established, we can, therefore, consider all the evidence independent of the challenged statements, regardless of the order of proof. United States v. Batimana, 623 F.2d 1366, 1369 (CA9 1980), cert. denied, - U.S. -, 101 S.Ct. 617, 66 L.Ed.2d 500 (1981). In addition, the evidence is to be considered in a light most favorable to the government. United States v. Dixon, 562 F.2d 1138, 1141 (CA9 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978). The quantum of independent proof required in this circuit is “sufficient, substantial evidence to establish a prima facie case that the conspiracy existed and that the defendant was part of it.” United States v. Weiner, 578 F.2d 757, 768 (CA9 1978) [Emphasis supplied], cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651; Dixon, supra. Once the existence of the conspiracy has been clearly established, independent evidence is necessary to show prima facie the defendant’s connection with the conspiracy, even if the connection is slight. Weiner, supra, at 769. The evidence of the “slight” connection, however, must be of the quality which will reason ably support a conclusion that the defendant wilfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy. United States v. Testa, 548 F.2d 847, 858 (CA9 1977). 1. Uriarte. Uriarte urges that Nunez should not have been permitted to testify as to Parra’s statements on March 18, 1980, to the effect that Uriarte was the source of the first sample and the source of the heroin for the proposed transaction. He says that these statements were not admissible under FRE 801(d)(2)(E) because there was no independent evidence that a conspiracy existed as of March 18, 1980, or that Uriarte was a member of" }, { "docid": "12776602", "title": "", "text": "96 S.Ct. 883, 47 L.Ed.2d 101 (1976); United States v. Perna, 491 F.2d 253, 255 (6th Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974). The statements can be admitted only if there is sufficient evidence, apart from the statements, to establish that a conspiracy existed and that the speaker and the defendant were part of the conspiracy. United States v. Dixon, 562 F.2d 1138, 1141 (9th Cir. 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978); United States v. Testa, 548 F.2d 847, 852 (9th Cir. 1977); United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976). Cawley argues that there was insufficient evidence here to establish that Kathy Campbell was involved in a conspiracy with Cawley and Lopez-Diaz. He argues that no testimony by Lopez-Diaz should be considered in determining if there is a conspiracy. We reject the argument. Lopez-Diaz’s testimony about his own actions and statements and what he observed of Cawley’s actions and statements is admissible. His testimony about his conversations with Cawley was sufficient to make a prima facie case of a conspiracy to distribute heroin, which is all the rule requires. United States v. Calaway, supra at 612. Once a conspiracy is shown to exist, evidence establishing beyond a reasonable doubt a defendant’s connection — however slight — to that conspiracy is sufficient for his conviction for knowing participation in it. United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977). See United States v. Testa, supra at 853. The evidence may be circumstantial. United States v. Turner, 528 F.2d 143, 162 (9th Cir.), cert. denied, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1975). “An otherwise innocent act of ‘relatively slight moment,’ may, when viewed in the context of surrounding circumstances, justify an inference of complicity. . United States v. Calaway, supra at 612, quoting United States v. Ragland, 375 F.2d 471, 478 (2nd Cir. 1967). Here there was evidence that the van in which the heroin was found belonged" }, { "docid": "16933179", "title": "", "text": "TANG, Circuit Judge: I Appellant Ruvalcaba-Villalobos was convicted of conspiracy to distribute cocaine and distribution of cocaine. On appeal he contends: (1) there was insufficient evidence of conspiracy and his connection to it to justify the admission of certain statements under the coconspirator exception to the federal hearsay rules; (2) his Sixth Amendment right to confront witnesses was violated by the admission of the coconspirator’s statements; (3) the trial court erred in dismissing a juror; and (4) the trial court erred in sentencing him to a special parole term in connection with his conspiracy conviction under 21 U.S.C. § 846. Our review indicates that the district court must be affirmed on the first three issues. Because the Supreme Court recently ruled that a special parole term may not be imposed in connection with conspiracy conviction under 21 U.S.C. § 846, however, the district court’s sentence must be vacated to the extent that it contains such a term. II On November 26, 1979, a government informer, Catalino Nunez, met with Jose Perez for the purpose of negotiating a drug sale. Perez had told Nunez that he could sell him large quantities of drugs. In order to maintain contact, Nunez and Perez exchanged phone numbers. After this first meeting Nunez contacted Special Agent Cazares of the Drug Enforcement Administration. A second meeting was arranged and on November 27, 1979, Cazares and Nunez met with Perez at the Stockton Holiday Inn. At this meeting, Perez told Cazares and Nunez that he could get one or two kilograms of cocaine from his brother-in-law, Ruvalcaba-Villalobos (Ruvalcaba), to sell to Nunez and Cazares. Perez also stated that he had five ounces of heroin that he had received from Ruvalcaba. Cazares agreed to buy it. Perez left the hotel and returned shortly thereafter and gave the heroin to Cazares with the understanding that Cazares would pay for it at a later meeting. The three men met for a third time on November 29, 1979, when Cazares paid Perez $800.00 for the heroin he had previously obtained. At a fourth meeting between Nunez and Perez on December 8," }, { "docid": "16933202", "title": "", "text": "for conspiracy in violation of section 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1265, 21 U.C.S. § 846 (1976). Because the Supreme Court recently held that a special parole term may not be imposed for a con viction of conspiracy under section 406, Bifulco v. United States, 447 U.S. 381, 400, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980), the special parole term imposed for the conspiracy conviction must be vacated. VII Having reviewed the record under the appropriate standards, we conclude that substantial nonhearsay evidence of conspiracy and Ruvalcaba’s link to it supports the trial court’s admission of the coconspirator statements. Moreover, we find that there is no meritorious confrontation clause objection to the introduction of the statements. It is also apparent that the district court’s dismissal of juror Kim was proper implementation of its responsibility to identify and isolate potentially contaminating influences on juror deliberation. In view of the Supreme Court’s recent pronouncement against imposing special parole terms in connection with conspiracy convictions under section 406, however, that part of the district court’s sentence must be vacated. AFFIRMED IN PART; REVERSED IN PART. . Federal Rule of Evidence 801(d)(2)(E) provides in part: “[A] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” . Unlike the Fifth Circuit, this court has declined to express a “preference” for pretrial determination of admissibility of the coconspirator’s statements. Compare United States v. Zemek, 634 F.2d 1159, 1169-1170 (9th Cir. 1980), with United States v. James, 576 F.2d 1121 (5th Cir. 1978), modified en banc, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). . See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 263 (5th Cir. 1980) (testimony that declarant received several phone calls a day probative of fact to be proved rather than any direct statement by declarant); United States v. Lobo, 516 F.2d 883, 884 n. 1 (2d" }, { "docid": "14317395", "title": "", "text": "Fed.R.Evid. 801(d)(2)(E). United States v. Santiago, 582 F.2d 1128, 1134 (7th Cir.1978) established the standard in this circuit for admission of statements under rule 801(d)(2)(E). There, this court held that “ ‘if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible.’ ” Id. at 1134 (quoting United States v. Pe-trozziello, 548 F.2d 20, 23 (1st Cir.1977)). Defendants Andrus, Collett, and Lutson object to the trial court’s preliminary determination of their membership in the conspiracy. Prior to trial, the court held a hearing to determine whether to admit the statements under rule 801(d)(2)(E). The only witnesses to testify at the hearing were Agent Willis, an officer of the Illinois Division of Criminal Investigation, and Agent Till. The court also read a transcript of Mansuetti’s grand jury testimony. At the time of the pretrial hearing, both Mitchell and Mansuetti were in Danville, where the hearing took place, yet the government called neither to testify. Defendants Andrus, Collett, and Lutson argue that the use of Mansuetti’s grand jury testimony violated their sixth amendment right of confrontation and was an inadequate basis upon which to make a finding under rule 801(d)(2)(E). The sixth amendment to the United States Constitution provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him____” The confrontation right applies at trial. “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); see also Gerstein v. Pugh, 420 U.S. 103, 121-22, 95 S.Ct. 854, 866-67, 43 L.Ed.2d 54 (1975) (confrontation a formality and safeguard designed for trial). The right to confrontation applies when the ability to confront witnesses is most important — when the trier of fact determines the ultimate issue of fact. Consequently, the sixth" }, { "docid": "22588458", "title": "", "text": "400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), concluded that the statements were sufficiently reliable to preclude any confrontation problems under Dutton. R.T. at 99. We agree. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. ...” In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court was presented with a case requiring a discussion of the relationship between exceptions to the hearsay rules of evidence and the defendant’s rights to confront witnesses under the Sixth Amendment. The Court held that the Confrontation Clause contains both a necessity requirement (usually fulfilled by proof that the declarant is unavailable for cross-examination) and a reliability requirement. Despite the statement in Ohio v. Roberts that “ [reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception,” 448 U.S. at 67, 100 S.Ct. at 2540, this court has rejected the notion that “mere satisfaction of requirements for the coconspirator exception automatically meets all possible confrontation clause infirmities.” See United States v. Perez, 658 F.2d 654, 660 n.5 (9th Cir. 1981). Cf. United States v. Peacock, 654 F.2d 339, 349 (5th Cir. 1981); Ottomano v. United States, 468 F.2d 269, 271 (1st Cir. 1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973), reh. denied, 410 U.S. 948, 93 S.Ct. 1383, 35 L.Ed.2d 616 (1973). More specifically, this court has remarked: “Although the hearsay rules and the confrontation clause promote similar values, admissibility under a hearsay exception does not a fortiori dissolve the court’s obligation to review the record for constitutional infirmity.... This principle has particular force when the admission of evidence is sought under the coconspirator exception: Admission under the co-conspirator exception does not automatically guarantee compliance with the confrontation clause.” United States v. Perez, 658 F.2d at 660. Therefore, the relevant factors for testing the reliability of coconspirator’s statements suggested in Dutton v. Evans, 400 U.S. at 88-91, 91 S.Ct. at 219-220, are still to be considered in" }, { "docid": "16933195", "title": "", "text": "an ongoing or prospective activity, there was no risk that Perez was relying on faulty memory. See id. Finally, the circumstances under which the statements were made indicate that Perez had little to gain through misrepresenting the defendant’s involvement in the crime. See id. When made, the statements were clearly contrary to Perez’ penal interests and, under the circumstances, we find unpersuasive the defendant’s contentions that Perez misrepresented the defendant’s role merely to enhance the value of the drugs or to avoid a rip-off. Nor do the circumstances indicate that Perez was boasting about the availability of the drugs. Furthermore, the fact that Perez offered to testify on the defendant’s behalf is of little probative force because Perez had already pled guilty and his prospective testimony could not be used against him. Ruvalcaba cannot argue that Perez’ testimony would have been contrary to his penal interests. Although the precise function of the characterization of the contested testimony as either “crucial” or “devastating” is unclear, the testimony admitted here was neither crucial to the prosecution nor devastating to the defendant. Indeed, the testimony simply corroborated the other evidence offered at trial; the defendant’s own statements, proof of the meetings between Perez, Cazares and Nunez, the phone calls to the defendant, the fact that Perez gave Cazares the name, address, and phone number and the defendant’s presence in Stockton on the date of the arrests. We have previously found that such corroboration may properly support a determination that the testimony was reliable. See United States v. Rosales, 606 F.2d 888, 889 (9th Cir. 1979); Snow, 521 F.2d at 734. V Ruvalcaba also argues that the lower court erred in dismissing juror Dorothy Kim. Because the record establishes that the court did not abuse its discretion in dismissing the juror, we reject the contention and affirm the district court. Immediately after the government’s redirect examination of Nunez, the following exchange occurred: DOROTHY KIM (JUROR NO. 8): Your Honor, is it proper to ask the interpreter a question? I’m uncertain about the word La Vado. You say that is a bar. THE COURT: The" }, { "docid": "22588459", "title": "", "text": "the coconspirator exception automatically meets all possible confrontation clause infirmities.” See United States v. Perez, 658 F.2d 654, 660 n.5 (9th Cir. 1981). Cf. United States v. Peacock, 654 F.2d 339, 349 (5th Cir. 1981); Ottomano v. United States, 468 F.2d 269, 271 (1st Cir. 1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973), reh. denied, 410 U.S. 948, 93 S.Ct. 1383, 35 L.Ed.2d 616 (1973). More specifically, this court has remarked: “Although the hearsay rules and the confrontation clause promote similar values, admissibility under a hearsay exception does not a fortiori dissolve the court’s obligation to review the record for constitutional infirmity.... This principle has particular force when the admission of evidence is sought under the coconspirator exception: Admission under the co-conspirator exception does not automatically guarantee compliance with the confrontation clause.” United States v. Perez, 658 F.2d at 660. Therefore, the relevant factors for testing the reliability of coconspirator’s statements suggested in Dutton v. Evans, 400 U.S. at 88-91, 91 S.Ct. at 219-220, are still to be considered in this circuit for judging whether a defendant’s confrontation rights were violated by the admission of coconspirator statements against him. See Perez, 658 F.2d at 661. Prior to Perez, Dutton was interpreted by this court as follows: “Under Dutton an analysis must be made to determine whether there are sufficient indicia of reliability to permit the introduction of the hearsay declarations in spite of the lack of opportunity for the defendant to cross-examine the declar-ant.” United States v. Weiner, 578 F.2d 757, 771 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978), reh. denied, 439 U.S. 1135, 99 S.Ct. 1060, 59 L.Ed.2d 98 (1979). The court continued: “The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration.” Id. at 772 (quoting United States v. Adams, 446 F.2d 681, 683 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971)). The four reliability factors discussed in Dutton" }, { "docid": "16933189", "title": "", "text": "conclusion that Ruvalcaba was linked to the conspiracy. Ruvalcaba’s admissions of De cember 10 and 12, together with the nonassertive conduct of December 10, prove the critical nexus with the conspiracy. See United States v. Zemek, 634 F.2d 1159 (9th Cir. 1980); Weiner, 578 F.2d at 770-71; Testa, 548 F.2d at 854 (9th Cir. 1977); United States v. Calaway, 524 F.2d at 612. The fact that a phone call was placed by Perez to the defendant was also proper evidence of nonassertive conduct and is nonhearsay. Additionally, although mere presence near the scene of illicit activity is never enough to infer a nexus to the conspiracy, see Weaver, 594 F.2d at 1273, Ruvalcaba’s presence in Stockton is probative of the nexus when viewed in context with the other independent evidence just recounted. See e. g., United States v. Fried, 576 F.2d 787, 789 (9th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 255, 58 L.Ed.2d 241 (1978); Dixon, 562 F.2d 1142-43; Testa, 548 F.2d at 854. IV Ruvalcaba’s second contention is that the trial court erred in admitting the statements of Perez and Alvarez-Yanez through the testimony of Cazares and Nunez because the defendant was denied his constitutional right to confront and cross-examine his accusers — the absent coconspirator declarants. Examined under the appropriate standards, however, the defendant’s constitutional argument cannot be sustained. The Sixth Amendment to the United States Constitution provides, that “[¡]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him .... ” Although the hearsay rules and the confrontation clause promote similar values, admissibility under a hearsay exception does not a fortiori dissolve the court’s obligation to review the record for constitutional infirmity. Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). This principle has particular force when the admission of evidence is sought under the coconspirator exception: Admission under the coconspirator exception does not automatically guarantee compliance with the confrontation clause. See United States v. Snow, 521 F.2d 730, 735 (9th Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883," }, { "docid": "16933183", "title": "", "text": "On December 12th, Perez informed Cazares by telephone that Ruvalcaba had arrived with the cocaine. Ruvalcaba spoke with Cazares during the same call and confirmed the information. Later that afternoon Perez met with Cazares and Nunez to exchange the cocaine. After Cazares received the cocaine from Perez, he field tested it and determined that it was in fact cocaine. Perez indicated that Ruvalcaba and Alvarez-Yanez were at his apartment and that he would make the payment at the grocery store where he worked. Subsequently, Perez, Alvarez-Yanez and Ruvalcaba were arrested. Cazares recognized Ruvalcaba’s voice and identified him as the individual he had spoken with over the telephone. Ruvalcaba was tried before a jury and found guilty of conspiring to distribute co caine, 21 U.S.C. § 846 (1976), and of distributing cocaine, 21 U.S.C. § 841 (1976). He received two sentences of twelve years in prison for each count, the sentences to run concurrently. Additionally, a special parole term of five years was imposed for each count. Ill Defendant Ruvalcaba first argues that because there was insufficient evidence of the conspiracy and his link to it, the district court erred in admitting oral statements made by Perez under the coconspirator exception of the federal rules of evidence. See generally Fed.R.Evid. 801(d)(2)(E). We affirm the district court’s ruling. The statements at issue were made by Perez in the presence of Cazares and Nunez on November 27 and 29, December 8, 10, 11 and 12. The statements directly implicated Ruvalcaba. Ruvalcaba also objected on the same basis to the admission of statements by Alvarez-Yanez. The admissibility of the statements was argued prior to the defendants’ trial. At that point, the court ruled that the statements could be admitted, subject to a mistrial should the prosecution fail to lay a proper foundation. Ruvalcaba argues that the trial court erred in admitting the testimony because the only evidence establishing the conspiracy and linking him to it consisted of Perez’ statements and his own. The government argues that ample evidence supports the lower court’s ruling. Federal Rule of Evidence 801(d)(2)(E) requires proof of three elements: (1)" }, { "docid": "16933187", "title": "", "text": "(9th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). In this case there is abundant evidence other than the coconspirators’ statements independently establishing the existence of the conspiracy. The defendant’s telephone conversations with Cazares on December 10 and December 12 constitute admissions to the conspiracy under Federal Rule of Evidence 801(d)(2)(A). Ruvalcaba’s return call on December 10 and Perez’ verbal conduct indicating that he was speaking with Ruvalcaba were witnessed by Cazares and Nunez. Ruvalcaba’s call was admissible as either an admission under Federal Rule of Evidence 801(d)(2)(A) or as nonassertive conduct under Federal Rule of Evidence 801(a), (c). Perez’ verbal conduct acknowledging that the caller was Ruvalcaba, whether express or implied, was an implied assertion and admissible as nonassertive conduct under Federal Rule of Evidence 801(a), (c). Consequently, either Cazares or Nunez could properly testify to the call and Perez’ acknowledgment over a double-hearsay objection. Ruvalcaba also contends that the use of his own statements to infer the presence of a conspiracy is nothing more than judicial bootstrapping. Specifically, Ruvalcaba contends that Cazares’ testimony regarding statements made during their telephone conversation on December 10 was improperly admitted. This argument misses the mark because the defendant’s own statements are admissions wholly apart from the coconspirator exception' and as such are admissible as nonhearsay. This court has previously recognized this principle and has validated the use of admissions as evidence of conspiracy. See United States v. Cawley, 630 F.2d 1345, 1350 (9th Cir. 1980); United States v. Weiner, 578 F.2d 757, 770-71 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); cf. Calaway, 524 F.2d at 612 (defendant’s statements admitted as verbal acts under rule 801(c)). Although the foregoing evidence would be sufficient to establish the conspiracy, other probative evidence was properly admitted. The prosecution presented evidence of meetings for the purpose of exchanging cocaine and evidence of the actual exchange of and payment for the cocaine. Such evidence is substantial. See United States v. Testa, 548 F.2d 847, 854 (9th Cir. 1977). Substantial independent evidence also supports the district court’s" }, { "docid": "1799787", "title": "", "text": "Reynolds, charged with conspiracy, stated to an alleged co-conspirator, “I didn’t tell them anything about you.” Id. at 103. The Government sought to introduce this statement as non-hearsay, arguing that the “significance of the statement is that it was made.” Id. The court disagreed, because the “statement’s probative value depends on the truth of an assumed fact it implies.” Id. As introduced, the statement was used “to prove the truth ... of defendant’s guilt implied by its content.” Id. Additionally, there was “no evidence independent of [the defendant’s] statement to prove the existence of a conspiracy.” Id. at 103 n. 2. By contrast, the probative value of Davidson’s statements does not depend on the truth of the facts implied. Davidson’s statements are probative of Boyd’s knowledge regardless of whether the statements were truthful, and there is independent evidence to prove the fact that a carjacking occurred. ii. Confrontation Clause We review a defendant’s claim that the district court violated his Confrontation Clause rights de novo. United States v. Johnson, 430 F.3d 383, 393 (6th Cir.2005). “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Testimonial out-of-court statements offered to establish the truth of the matter asserted are admissible only when (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n. 9, 124 S.Ct. 1354; see United States v. Davis, 577 F.3d 660, 670 (6th Cir.2009) (“[T]o constitute a Confrontation Clause violation, the statement must be used as hearsay — in other words, it must be offered for the truth of the matter asserted.” (internal quotation marks and citation omitted)). A statement is testimonial if a reasonable person in the declarant’s position would have anticipated the use of the statement in a criminal proceeding. United States v. Cromer, 389 F.3d" }, { "docid": "16933186", "title": "", "text": "1138, 1141 (9th Cir. 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978); United States v. Calaway, 524 F.2d 609, 612 (9th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976). Circumstantial evidence is often sufficient to establish the existence of a conspiracy. United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir. 1979). Once the conspiracy has been proven under these standards, only “slight evidence” is necessary to connect a coconspirator to the conspiracy. Id. This requirement of “slight evidence”, however, does not eliminate the government’s burden of introducing the minimal quantum of proof necessary to prove the connection. See United States v. Peterson, 549 F.2d 654, 657 (9th Cir. 1977). There is no immutable order of proof. The contested statements may be admitted conditionally as long as the court in the proper exercise of its discretion determines that a motion to strike could cure defects resulting from insufficient proof of the necessary preliminary facts. See Unit ed States v. Watkins, 600 F.2d 201, 204 (9th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). In this case there is abundant evidence other than the coconspirators’ statements independently establishing the existence of the conspiracy. The defendant’s telephone conversations with Cazares on December 10 and December 12 constitute admissions to the conspiracy under Federal Rule of Evidence 801(d)(2)(A). Ruvalcaba’s return call on December 10 and Perez’ verbal conduct indicating that he was speaking with Ruvalcaba were witnessed by Cazares and Nunez. Ruvalcaba’s call was admissible as either an admission under Federal Rule of Evidence 801(d)(2)(A) or as nonassertive conduct under Federal Rule of Evidence 801(a), (c). Perez’ verbal conduct acknowledging that the caller was Ruvalcaba, whether express or implied, was an implied assertion and admissible as nonassertive conduct under Federal Rule of Evidence 801(a), (c). Consequently, either Cazares or Nunez could properly testify to the call and Perez’ acknowledgment over a double-hearsay objection. Ruvalcaba also contends that the use of his own statements to infer the presence of a conspiracy is nothing more than judicial bootstrapping. Specifically," } ]

[ { "docid": "22037143", "title": "", "text": "right to punish the party by summary proceeding and without trial by jury ; and that in that.sense it is due process' of law within the meaning of- the -Fourteenth Amendment of the Constitution. We do not suppose that that .provision of the Constitution was ever intended to interfere with or abolish the powers of the courts in proceedings for contempt, whether' this contempt occurred in the .course- of a criminal proceeding or of a civil suit. We might rest the case here; but the plaintiffs' in error fall back upon the proposition that the statute of the Iowa legislature concerning the sale of liquors, under which this injunction was issued, is itself void, as depriving- the parties of, their property and of their liberty without due process-of law.-. We are not prepared to shy that this question arises'. in the present case.- The principal suit in which the injunction was issued, for the contempt of which these parties have been sentenced to imprisonment and to pay a fine, has never been tried so far as this record shows. We' do not know whether the parties, demanded a trial' by jury on the question of their guilty violation of that statute'. Ve do not know that they would have been refused a trial by jury if they had demanded it. Until the trial of that case' has been had .they are not injured by a refusal to grant them a jury trial. ‘ It is . the well-settled doctrine of this court that a part of a statute may be void and thé remainder may be valid. That part of this, statute which declares that no person shall own or keep, or be in any way concerned, engaged or employed in owning or keeping any .intoxicating liquors with intent to sell the same within this State, and all the prohibitory clauses of the statute, have been held by this court to be within the constitutional powers of the state legislature, in the cases of Mugler v. Kansas, 123 U. S. 623, and Powell v. Pennsylvania, 127 U. S. 678. If" } ]

[ { "docid": "22538455", "title": "", "text": "public trial, by an impartial jury . . . .” The Fifth and Fourteenth Amendments forbid both the Federal Government and the States from depriving any person of “life, liberty, or property, without due process of law.” Notwithstanding these provisions, until United States v. Barnett, 376 U. S. 681, rehearing denied, 377 U. S. 973 (1964), the Court consistently upheld the constitutional power of the state and federal courts to punish any criminal contempt without a jury trial. Eileribecker v. District Court of Plymouth County, 134 U. S. 31, 36-39 (1890); I. C. C. v. Brimson, 154 U. S. 447, 488-489 (1894); In re Debs, 158 U. S. 564, 594-596 (1895); Gompers v. United States, 233 U. S. 604, 610-611 (1914) ; Green v. United States, 356 U. S. 165, 183-187 (1958). These cases construed the Due Process Clause and the otherwise inclusive language of Article III and the Sixth Amendment as permitting summary trials in contempt cases because at common law contempt was tried without a jury and because the power of courts to punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of justice. United States v. Barnett, supra, signaled a possible change of view. The Court of Appeals for the Fifth Circuit certified to this Court the question whether there was a right to jury trial in an impending contempt proceeding. Following prior cases, a five-man majority held that there was no constitutional right to jury trial in all contempt cases. Criminal contempt, intrinsically and aside from the particular penalty imposed, was not deemed a serious offense requiring the protection of the constitutional guarantees of the right to jury trial. However, the Court put aside as not raised in the certification or firmly settled by prior cases, the issue whether a severe punishment would itself trigger the right to jury trial and indicated, without explication, that some members of the Court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried" }, { "docid": "22538474", "title": "", "text": "between petty offenses and serious crimes” but that “a crime punishable by two years in prison is ... a serious crime and not a petty offense.” Supra, at 161, 162. Bloom was sentenced to imprisonment for two years. Our analysis of Barnett, supra, and Cheff v. Schnackenberg, 384 U. S. 373. makes it clear that criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved. Under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty Which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense. See Duncan, supra, at 162, n. 35. Under this rule it is clear that Bloom was entitled to the right to trial by jury, and it was constitutional error to deny him that right. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion. Reversed and remanded. Many more cases have supported the rule that courts may punish criminal contempt summarily, or accepted that rule without question. See cases collected in Green v. United States, 356 U. S. 165, 191, n. 2 (1958) (concurring opinion); United States v. Barnett, 376 U. S. 681, 694, n. 12 (1964). The list of the Justices of this Court who have apparently subscribed to this view is long. See Green v. United States, supra, at 192. The argument that the power to punish contempt was an inherent power of the courts not subject to regulation by Congress was rejected in Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 65-67 (1924), which upheld the maximum sentence and jury trial provisions of the Clayton Act. Cf. Lar-remore, Constitutional Regulation of Contempt of Court, 13 Harv. L. Rev. 615 (1900). Blackstone’s description of the common-law practice in contempt cases appears in 4 Commentaries on the Laws of England 286-287: “The process of attachment for these and the like contempts must necessarily" }, { "docid": "22334919", "title": "", "text": "common-law restriction on the power of federal courts to sentence for over one year. As stated by the Court of Appeals in the present case, 241 F. 2d, at 634, “. . . there is not in the books a syllable of recognition of any such supposed limitation.” Under English law contempt sentences were not subject to any statutory limit. See Fox, Eccentricities of the Law of Contempt of Court, 36 L. Q. Rev. 394, 398. See p. 182, injra. Hill v. United States ex rel. Weiner, 300 U. S. 105; United States v. Brown, 247 F. 2d 332 (2d Cir.); Lopiparo v. United States, 216 F. 2d 87 (8th Cir.); United States v. Thompson, 214 F. 2d 545 (2d Cir.); United States v. Hall, 198 F. 2d 726 (2d Cir.); United States ex rel. Brown v. Lederer, 140 F. 2d 136 (7th Cir.); Warring v. Huff, 74 U. S. App. D. C. 302, 122 F. 2d 641 (D. C. Cir.); Conley v. United States, 59 F. 2d 929 (8th Cir.); Creekmore v. United States, 237 F. 743 (8th Cir.). The following are the major opinions of this Court which have discussed the relationship between criminal contempts and jury trial and have concluded or assumed that criminal contempts are not subject to jury trial under Art. Ill, §2, or the Sixth Amendment: Savin, Petitioner, 131 U. S. 267, 278; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31, 36-39; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489; In re Debs, 158 U. S. 564, 594-596; Bessette v. W. B. Conkey Co., 194 U. S. 324, 336-337; Gompers v. United States, 233 U. S. 604, 610-611; Ex parte Hudgings, 249 U. S. 378, 383; Michaelson v. United States, 266 U. S. 42, 67; United States v. United Mine Workers, 330 U. S. 258, 298. Although the statements contained in these cases, with few exceptions, are broadly phrased and do not refer to particular categories of criminal contempts, several of the cases involved review of contempt convictions arising out of disobedience to court orders. See in particular In" }, { "docid": "22100975", "title": "", "text": "That Act was intended to shield the organized labor movement from the intervention of a federal judiciary perceived by some as hostile to labor. The Act severely constrained the power of a federal court to issue an injunction against any person “participating or interested in a labor dispute.” Section 11 provided for trial by jury in “all cases arising under this Act in which a person shall be charged with contempt.” In the context of the case now before us, I view this section as affording, at the very least, a jury trial in any criminal contempt proceeding involving an alleged violation of an injunction issued against a participant in a “labor dispute.” Any such injunction issued by a federal court was one “arising under” the Act, for it could have been issued only in accordance with the Act’s prescriptions. The evident congressional intent was to provide for the interposition of a jury when disobedience of such an injunction was alleged. For the reasons stated by Mr. Justice Stewart, post, at 485-486, I am persuaded that §§10 (h) and 10 (l) of the National Labor Relations Act made inapplicable only the anti-injunction provisions of the Norris-LaGuardia Act and did not disturb § 11. The broad mandate of § 11, to afford trial by jury in a contempt proceeding involving an injunction issued in a labor dispute, was thus continued in § 3692. See Green v. United States, 356 U. S. 165, 217 (1958) (Black, J., dissenting). II 1 would reverse the judgment against Local 70 on constitutional grounds. Article III, § 2, of the Constitution provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . And the Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . (Emphasis added.) The Court fails to give effect to this language when it declares that a $10,000 fine is not “of such magnitude" }, { "docid": "23109352", "title": "", "text": "of all crimes, except in cases of impeachment, shall be by jury.” The First Congress, however, in September, 1789, proposed to the Legislatures of the several states ten amendments, which were promptly ratified. The fifth amendment provides that: “No person shall be * * * deprived of life, liberty, or property, without due process of law.” The sixth amendment provides that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The seventh amendment provides that: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” All the above provisions operate simply as restraints and limitations .updr the powers of the government of the United States. But as the state Constitutions also secure to persons accused of crime a right to a trial by jury under provisions more or less similar, the decisions of the state courts, as well as those of the federal courts, may be consrdted in seeking to discover the meaning of the constitutional guaranty. The right to trial by jury has been placed in this country upon what Mr. Justice Story in his Commentaries calls “the high ground of constitutional right,” and he declares that the inestimable privilege of trial by jury is conceded by all “to lie essential to political and civil liberty.” The right is one justly dear to our people, and as a social, political, and judicial institution it is deserving of the solicitude with which it has been regarded by all Anglo-Saxon peoples. The defendant is accused of a crime for which he is entitled to trial by jury within the meaning of the third article of the Constitution of the United States. The Supreme Court in Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223 (1888), construed that article as embracing, not only felonies punishable by confinement in the penitentiary, but also some classes of misdemeanors, the punishment of which may involve the deprivation of the liberty of the citizen. Before going" }, { "docid": "23546138", "title": "", "text": "declared criminal by the Clayton Act. It recognizes that such disobedience may be contempt and, having prescribed limitations, leaves the court to deal with the offender. While it gives the right to trial by jury and restricts the punishment, it also clearly recognizes the distinction between “ proceeding for contempt” and “criminal prosecution.” “No proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts.” § 25. The Clayton Act says nothing about venue in contempt proceedings; leaves it as theretofore. The power of the court below to issue the enjoining order is not questioned. By disobeying the order, plaintiffs in error defied an authority which that tribunal was required to vindicate. It followed established practice, as modified by the statute; and we think the objections to its jurisdiction are unsubstantial. The following cases are in point: Eilenbecker v. District Court of Plymouth County, 134 U. S. 31, 35, et seq.; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489; In re Debs, 158 U. S. 564, 594, 596, 599; Bessette v. W. B. Conkey Co., supra, pp. 326, 327; Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441, 450; Binkley v. United States, 282 Fed. 244; McGibbony v. Lancaster, 286 Fed. 129; Dunham v. United States, 289 Fed. 376; McCourtney v. United States 291 Fed. 497. Gompers v. United States, 233 U. S. 604, does not support the claim that the challenged contempt proceedings amounted to prosecution for a criminal offense within the intendment of § 53, Judicial Code. While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not “ criminal prosecutions ” within the Sixth Amendment or common understanding. The judgment below must be affirmed. See. 21. That any person who shall willfully disobey any lawful writ, process," }, { "docid": "22792905", "title": "", "text": "Michaelson v. United States, 266 U. S. 42, 67 (1924) (Sutherland, J. ); Ex parte Grossman, 267 U. S. 87, 117-118 (1925) (Taft, C. J.); Fisher v. Pace, 336 U. S. 155, 159-160 (1949) (Reed, J.); Offutt v. United States, 348 U. S. 11, 14 (1954) (Frankfurter, J.). This question was never raised in Pappadio nor encompassed by the limited grant of certiorari in that case, see 382 U. S. 916; in Shillitani, where the issue is properly before the Court, petitioner filed a certiorari petition discussing the point but tendered no brief on the merits on any phase of the case. For example, in each case the Judgment and Commitment states that “the defendant is guilty of criminal contempt” and orders him committed “for a period of Two (2) Years, or until further order of this Court,” should the questions be answered within that period before the grand jury expires. The two-year sentences imposed on Shillitani and Pappadio do not call for the exercise of this Court’s corrective power over contempt sentences, see Green, 356 U. S., at 187-189; as has been noted, both sentences carried purge clauses. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. I. I adhere to the view expressed in the dissents in Green v. United States, 356 U. S. 165, 193, and United States v. Barnett, 376 U. S. 681, 724, 728, that criminal contempt is a “crime” within the meaning of Art. Ill, § 2, of the Constitution and a “criminal prosecution” within the meaning of the Sixth Amendment, both of which guarantee the right to trial by jury in such cases. Punishment for contempt was largely a minor affair at the time the Constitution was adopted, the lengthy penalties of the sort imposed today being a relatively recent inno vation. I do not see how we can any longer tolerate an “exception” to the historic guaranty of a trial by jury when men are sent to prison for contempt for periods of as long as four years. Nor do the consequences of a contempt conviction necessarily end with the completion" }, { "docid": "22792903", "title": "", "text": "leave the authority of that case unimpaired. The relevant portions of these provisions declare: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” Art. Ill, § 2. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Sixth Amendment. E. g., Ex parte Burr, 4 Fed. Cas. 791, 797 (No. 2,186) (C. C. D. C. 1823) (Cranch, C. J.): “[C]ases of contempt of court have never been considered as crimes within the meaning and intention of the second section of the third article of the constitution of the United States; nor have attachments for contempt ever been considered as criminal prosecutions within the sixth amendment. . . . Many members of the [constitutional] convention were members of the first congress, and it cannot be believed that they would have silently acquiesced in so palpable a violation of the then recent constitution, as would have been contained in the seventeenth section of the judiciary act of 1789 (1 Stat. 73), — which authorizes all the courts of the United States ‘to punish by fine and imprisonment, at the discretion of the said courts, all contempts of authority in any cause or hearing before the same,’ — if their construction of the constitution had been that which has, in this case, been contended for at the bar.” See Ex parte Terry, 128 U. S. 289, 313 (1888) (Harlan, J.); Savin, Petitioner, 131 U. S. 267, 278 (1889) (Harlan, J.); Eilenbecker v. Plymouth County, 134 U. S. 31, 36 (1890) (Miller, J.); Interstate Commerce Comm’n v. Brimson, 154 U. S. 447, 489 (1894) (Harlan, J.); Bessette v. W. B. Conkey Co., 194 U. S. 324, 336-337 (1904) (Brewer, J.); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450 (1911) (Lamar, J.); Gompers v. United States, 233 U. S. 604, 610-611 (1914) (Holmes, J.); Ex parte Hudgings, 249 U. S. 378, 383 (1919) (White, C. J.); Myers v. United States, 264 U. S. 95, 104-105 (1924) (McReynolds, J.);" }, { "docid": "22100953", "title": "", "text": "the union petitioner had no right to a jury trial under Art. Ill, § 2, and the Sixth Amendment. Green v. United States, 356 U. S. 165 (1958), reaffirmed the historic rule that state and federal courts have the constitutional power to punish any criminal contempt without a jury trial. United States v. Barnett, 376 U. S. 681 (1964), and Cheff v. Schnackenberg, 384 U. S. 373 (1966), presaged a change in this rule. The constitutional doctrine which emerged from later decisions such as Bloom v. Illinois, 391 U. S. 194 (1968) ; Frank v. United States, 395 U. S. 147 (1969); Baldwin v. New York, 399 U. S. 66 (1970); Taylor v. Hayes, 418 U. S. 488 (1974); and Codispoti v. Pennsylvania, 418 U. S. 506 (1974), may be capsuled as follows: (1) Like other minor crimes, “petty” contempts may be tried without a jury, but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to a jury trial; (2) criminal contempt, in and of itself and without regard to the punishment imposed, is not a serious offense absent legislative declaration to the contrary; (3) lacking legislative authorization of more serious punishment, a sentence of as much as six months in prison, plus normal periods of probation, may be imposed without a jury trial; (4) but imprisonment for longer than six months is constitutionally impermissible unless the contemnor has been given the opportunity for a jury trial. This Court has as yet not addressed the question whether and in what circumstances, if at all, the imposition of a fine for criminal contempt, unaccompanied by imprisonment, may require a jury trial if demanded by the defendant. This case presents the question whether a fine of $10,000 against an unincorporated labor union found guilty of criminal contempt may be imposed after denying the union’s claim that it was entitled to a jury trial under the Sixth Amendment. Local 70 insists that where a fine of this magnitude is imposed, a contempt cannot be considered a petty offense within the meaning of 18 U. S. C. §" }, { "docid": "22792906", "title": "", "text": "356 U. S., at 187-189; as has been noted, both sentences carried purge clauses. Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting. I. I adhere to the view expressed in the dissents in Green v. United States, 356 U. S. 165, 193, and United States v. Barnett, 376 U. S. 681, 724, 728, that criminal contempt is a “crime” within the meaning of Art. Ill, § 2, of the Constitution and a “criminal prosecution” within the meaning of the Sixth Amendment, both of which guarantee the right to trial by jury in such cases. Punishment for contempt was largely a minor affair at the time the Constitution was adopted, the lengthy penalties of the sort imposed today being a relatively recent inno vation. I do not see how we can any longer tolerate an “exception” to the historic guaranty of a trial by jury when men are sent to prison for contempt for periods of as long as four years. Nor do the consequences of a contempt conviction necessarily end with the completion of serving what may be a substantial sentence. Indeed the Government in other contexts regards a criminal contempt conviction as the equivalent of a conviction of other serious crimes. Thus the Attorney General, in an advisory letter dated January 26, 1966, to Deputy Secretary of Defense Cyrus R. Vance, concluded that a conviction for criminal contempt could properly be applied to exclude an Army veteran from burial in Arlington National Cemetery. Exclusion was based on a regulation (30 Fed. Reg. 8996) which denies burial in a national cemetery to a person “who is convicted in a Federal . . . court of a crime or crimes, the result of which is ... a sentence to imprisonment for 5 years or more . . . .” (Emphasis added.) The Attorney General stated: “Criminal contempt is regarded as a ‘crime’ for most purposes [citing cases], and no reason is apparent why, for purposes of the interment regulation, criminal contempt should be distinguished from any other infraction of law punishable by imprisonment.” There is in my view no" }, { "docid": "22539612", "title": "", "text": "jury in such a case, it seems to go beyond the requirements of justice; and the statutes which commit the trial of questions of fact in such process to a jury are not likely permanently to prove satisfactory. This statement, however, is to be limited to cases of merely preventive imprisonment. Where the court inflicts a definite term of imprisonment by way of punishment for the violation of its orders, the case does not differ, it would seem, from the case of criminal contempt out of court, and regular process and trial by jury should be required.” Id. 173-174. See also In re Debs, 158 U. S. 564; Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Gompers v. United States, 233 U. S. 604, 610, 611; Ex parte Grossman, 267 U. S. 87; Ex parte Hudgings, 249 U. S. 378, 383; Michaelson v. United States, 266 U. S. 42; Blackmer v. United States, 284 U. S. 421, 440; Nye v. United States, 313 U. S. 33; Bridges v. California, 314 U. S. 252, 264; Pendergast v. United States, 317 U. S. 412; In re Bradley, 318 U. S. 50. Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in “In ferior” Federal Courts, 37 Harv. L. Rev. 1010, 1043-1045 (1924) and authorities there collected; Nelles and King, Contempt by Publication in the United States, 28 Col. L. Rev. 401 (1928). Mr. Justice Murphy, dissenting. An objective reading of the Norris-LaGuardia Act removes any doubts as to its meaning and as to its applicability to the facts of this case. Section 4 provides in clear, unmistakable language that “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 . . . That language, which is repeated in other sections of the Act, is sufficient by itself to dispose of this case without further ado. But when proper recognition is given to the background and purpose of the Act, it becomes apparent that the implications of today’s" }, { "docid": "22538456", "title": "", "text": "punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of justice. United States v. Barnett, supra, signaled a possible change of view. The Court of Appeals for the Fifth Circuit certified to this Court the question whether there was a right to jury trial in an impending contempt proceeding. Following prior cases, a five-man majority held that there was no constitutional right to jury trial in all contempt cases. Criminal contempt, intrinsically and aside from the particular penalty imposed, was not deemed a serious offense requiring the protection of the constitutional guarantees of the right to jury trial. However, the Court put aside as not raised in the certification or firmly settled by prior cases, the issue whether a severe punishment would itself trigger the right to jury trial and indicated, without explication, that some members of the Court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried without a jury. 376 U. S., at 694^695 and n. 12. Two years later, in Cheff v. Schnackenberg, 384 U. S. 373 (1966), which involved a prison term of six months for contempt of a federal court, the Court rejected the claim that the Constitution guaranteed a right to jury trial in all criminal contempt cases. Contempt did not “of itself” warrant treatment as other than a petty offense; the six months’ punishment imposed permitted dealing with the case as a prosecution for “a petty offense, which under our decisions does not require a jury trial.” 384 U. S. 373, 379-380 (1966). See Callan v. Wilson, 127 U. S. 540 (1888); Schick v. United States, 195 U. S. 65 (1904); District of Columbia v. Clawans, 300 U. S. 617 (1937). It was not necessary in Chef to consider whether the constitutional guarantees of the right to jury trial applied to a prosecution for a serious contempt. Now, however, because of our holding in Duncan v. Louisiana, supra, that the right to jury trial extends to" }, { "docid": "22334921", "title": "", "text": "re Debs, Gompers v. United States, and United States v. United Mine Workers. For more general statements of the nature of the contempt power and its indispensability to federal courts, see United States v. Hudson, 7 Cranch 32, 34; Ex parte Robinson, 19 Wall. 505, 510; Ex parte Terry, 128 U. S. 289, 302-304; Bessette v. W. B. Conkey Co., supra, at 326; Myers v. United States, 264 U. S. 95, 103; Michaelson v. United States, supra, at 65-66. See, e. g., Cooke v. United States, 267 U. S. 517, 537 (compulsory process and assistance of counsel); Gompers v. United States, 233 U. S. 604, 611-612 (benefit of a statute of limitations generally governing crimes); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (proof of guilt beyond a reasonable doubt and freedom from compulsion to testify). “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” Petitioners derive their argument as to historical error from the writings of Sir John Charles Fox. However, Fox’s major effort was to show that a statement in an unpublished opinion by Wilmot, J., in The King v. Almon (1765), to the effect that summary punishment for contempts committed out of court stood upon “immemorial usage,” was based on an erroneous interpretation of earlier law as applied to the case before him, namely, contempt by libel on the court by a stranger to court proceedings. See Fox, The King v. Almon (Parts I and II), 24 L. Q. Rev. 184, 266; Fox, The History of Contempt of Court (1927), 5-43. That contempts committed in the view of the court were at an early date dealt with summarily is not disputed by Fox. The History of Contempt of Court, supra, at 50. Insofar as Fox discusses contempts out of court by disobedience to court orders, it is not clear" }, { "docid": "22538454", "title": "", "text": "Me. Justice White delivered the opinion of the Court. Petitioner was convicted in an Illinois state court of criminal contempt and sentenced to imprisonment for 24 months for willfully petitioning to admit to probate a will falsely prepared and executed after the death of the putative testator. Petitioner made a timely demand for jury trial which was refused. Since in Duncan v. Louisiana, ante, p. 145, the Constitution was held to guarantee the right to jury trial in serious criminal cases in state courts, we must now decide whether it also guarantees the right to jury trial for a criminal contempt punished by a two-year prison term. I. Whether federal and state courts may try criminal contempt cases without a jury has been a recurring question in this Court. Article III, § 2, of the Constitution provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” The Fifth and Fourteenth Amendments forbid both the Federal Government and the States from depriving any person of “life, liberty, or property, without due process of law.” Notwithstanding these provisions, until United States v. Barnett, 376 U. S. 681, rehearing denied, 377 U. S. 973 (1964), the Court consistently upheld the constitutional power of the state and federal courts to punish any criminal contempt without a jury trial. Eileribecker v. District Court of Plymouth County, 134 U. S. 31, 36-39 (1890); I. C. C. v. Brimson, 154 U. S. 447, 488-489 (1894); In re Debs, 158 U. S. 564, 594-596 (1895); Gompers v. United States, 233 U. S. 604, 610-611 (1914) ; Green v. United States, 356 U. S. 165, 183-187 (1958). These cases construed the Due Process Clause and the otherwise inclusive language of Article III and the Sixth Amendment as permitting summary trials in contempt cases because at common law contempt was tried without a jury and because the power of courts to" }, { "docid": "22080967", "title": "", "text": "the statute for the maximum penalty that could be imposed, rather than the sentence actually meted out, for its determination that a jury is or is not required. Mr. Justice Black, with whom Mr. Justice Douglas joins, dissenting. I cannot say what is and what is not a “petty crime.” I certainly believe, however, that where punishment of as much as six months can be imposed, I could not classify the offense as “petty” if that means that people tried for it are to be tried as if we had no Bill of Rights. Art. Ill, § 2, of the Constitution provides that: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” And in Amendment VI it is provided that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Neither of these provisions gives any support for holding that a defendant charged with a crime is not entitled to a jury trial merely because a court thinks the crime is a “petty” one. I do not deny that there might possibly be some offenses charged for which the punishment is so minuscule that it might be thought of as petty. But to my way of thinking, when a man is charged by a governmental unit with conduct for which the Government can impose a penalty of imprisonment for any amount of time, I doubt if I could ever hold it petty. (See my dissent in Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216, 223.) Nor do I take any stock in the idea that by naming an offense for which a man can be imprisoned a “contempt,” he is any the less charged with a crime. See Green v. United States, 356 U. S. 165, 193 (dissenting opinion), and United States v. Barnett, 376 U. S. 681, 724 (dissenting opinion). Those who commit offenses against courts should be no less entitled to the Bill of Rights than those who commit offenses against the public" }, { "docid": "22538467", "title": "", "text": "aside punishments for criminal contempt as either unauthorized by statute or too harsh. E. g., Ex parte Robinson, 19 Wall. 505 (1874); United States v. United Mine Workers, 330 U. S. 258 (1947); Yates v. United States, 355 U. S. 66 (1957). This course of events demonstrates the unwisdom of vesting the judiciary with completely untrammeled power to punish contempt, and makes clear the need for effective safeguards against that power’s abuse. Prosecutions for contempt play a significant role in the proper functioning of our judicial system; but despite the important values which the contempt power protects, courts and legislatures have gradually eroded the power of judges to try contempts of their own authority. In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases. Our experience teaches that convictions for criminal contempt, not infrequently resulting in extremely serious penalties, see United States v. Barnett, 376 U. S. 681, 751 (Goldberg, J., dissenting), are indistinguishable from those obtained under ordinary criminal laws. If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases. III. Nor are there compelling reasons for a contrary result. As we read the earlier cases in this Court upholding the power to try contempts without a jury, it was not doubted that the summary power was subject to abuse or that the right to jury trial would be an effective check. Rather, it seems to have been thought that summary power was necessary to preserve the dignity, independence, and effectiveness of the judicial process— “To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.” In re Debs, 158 U. S. 564, 595 (1895). It is at this point that we do not agree: in our judgment, when serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot be squared with the Constitution or justified by considerations of efficiency or the desirability of vindicating" }, { "docid": "22334920", "title": "", "text": "237 F. 743 (8th Cir.). The following are the major opinions of this Court which have discussed the relationship between criminal contempts and jury trial and have concluded or assumed that criminal contempts are not subject to jury trial under Art. Ill, §2, or the Sixth Amendment: Savin, Petitioner, 131 U. S. 267, 278; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31, 36-39; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489; In re Debs, 158 U. S. 564, 594-596; Bessette v. W. B. Conkey Co., 194 U. S. 324, 336-337; Gompers v. United States, 233 U. S. 604, 610-611; Ex parte Hudgings, 249 U. S. 378, 383; Michaelson v. United States, 266 U. S. 42, 67; United States v. United Mine Workers, 330 U. S. 258, 298. Although the statements contained in these cases, with few exceptions, are broadly phrased and do not refer to particular categories of criminal contempts, several of the cases involved review of contempt convictions arising out of disobedience to court orders. See in particular In re Debs, Gompers v. United States, and United States v. United Mine Workers. For more general statements of the nature of the contempt power and its indispensability to federal courts, see United States v. Hudson, 7 Cranch 32, 34; Ex parte Robinson, 19 Wall. 505, 510; Ex parte Terry, 128 U. S. 289, 302-304; Bessette v. W. B. Conkey Co., supra, at 326; Myers v. United States, 264 U. S. 95, 103; Michaelson v. United States, supra, at 65-66. See, e. g., Cooke v. United States, 267 U. S. 517, 537 (compulsory process and assistance of counsel); Gompers v. United States, 233 U. S. 604, 611-612 (benefit of a statute of limitations generally governing crimes); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (proof of guilt beyond a reasonable doubt and freedom from compulsion to testify). “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an" }, { "docid": "22414590", "title": "", "text": "not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right. The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, § 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. Callan v. Wilson, 127 U. S. 540, 549. Hence petty offenses triable at common law without a jury may be tried without a jury in the federal courts, notwithstanding Article III, § 2, and the Fifth and Sixth Amendments. Schick v. United States, 195 U. S. 65; District of Colum bia v. Clawans, 300 U. S. 617. Trial by jury of criminal contempts may constitutionally be dispensed with in the federal courts in those cases in which they could be tried without a jury at common law. Ex parte Terry, 128 U. S. 289, 302-04; Savin, Petitioner, 131 U. S. 267, 277; In re Debs, 158 U. S. 564, 594-96; United States v. Shipp, 203 U. S. 563, 572; Blackmer v. United States, 284 U. S. 421, 440; Nye v. United States, 313 U. S. 33, 48; see United States v. Hudson and Goodwin, 7 Cranch 32, 34. Similarly, an action for debt to enforce a penalty inflicted by Congress is not subject to the constitutional restrictions upon criminal prosecutions. United States v. Zucker, 161 U. S. 475; United States v. Regan, 232 U. S. 37, and cases cited. All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, § 2, or the provisions of the Fifth and Sixth Amendments relating to “crimes” and “criminal prosecutions.” In the light of this long-continued and consistent interpretation we must conclude that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against" }, { "docid": "22100952", "title": "", "text": "Reviser’s Notes and, in the Note to § 1292 (a)(1), found no affirmative indication of a substantive change. On this basis, the Court refused to give § 1292 (a)(1) as revised the “plausible” construction urged by respondents there. In this case, involving the 1948 revision of the Criminal Code, the House and Senate Reports caution repeatedly against reading substantive changes into the revision, and the Reviser’s Note to § 3692 gives absolutely no indication that a substantive change in the law was contemplated. In these circumstances, our cases and the canon of statutory construction which Congress expected would be applied to the revisions of both the Criminal and Judicial Codes, require us to conclude, along with all the lower federal courts having considered this question since 1948, save one, that § 3692 does not provide for trial by jury in contempt proceedings brought to enforce an injunction issued at the behest of the Board in a labor dispute arising under the Labor Management Relations Act. IY We also agree with the Court of Appeals that the union petitioner had no right to a jury trial under Art. Ill, § 2, and the Sixth Amendment. Green v. United States, 356 U. S. 165 (1958), reaffirmed the historic rule that state and federal courts have the constitutional power to punish any criminal contempt without a jury trial. United States v. Barnett, 376 U. S. 681 (1964), and Cheff v. Schnackenberg, 384 U. S. 373 (1966), presaged a change in this rule. The constitutional doctrine which emerged from later decisions such as Bloom v. Illinois, 391 U. S. 194 (1968) ; Frank v. United States, 395 U. S. 147 (1969); Baldwin v. New York, 399 U. S. 66 (1970); Taylor v. Hayes, 418 U. S. 488 (1974); and Codispoti v. Pennsylvania, 418 U. S. 506 (1974), may be capsuled as follows: (1) Like other minor crimes, “petty” contempts may be tried without a jury, but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to a jury trial; (2) criminal contempt, in and of itself and without regard" }, { "docid": "23546139", "title": "", "text": "S. 31, 35, et seq.; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489; In re Debs, 158 U. S. 564, 594, 596, 599; Bessette v. W. B. Conkey Co., supra, pp. 326, 327; Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441, 450; Binkley v. United States, 282 Fed. 244; McGibbony v. Lancaster, 286 Fed. 129; Dunham v. United States, 289 Fed. 376; McCourtney v. United States 291 Fed. 497. Gompers v. United States, 233 U. S. 604, does not support the claim that the challenged contempt proceedings amounted to prosecution for a criminal offense within the intendment of § 53, Judicial Code. While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not “ criminal prosecutions ” within the Sixth Amendment or common understanding. The judgment below must be affirmed. See. 21. That any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia by doing any act or thing therein, or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States, or under the laws of any State in which the act was committed, shall be proceeded against for his said contempt as hereinafter provided. Sec. 22. That whenever it shall be made to appear to any district court or judge thereof, or to any judge therein sitting, by the return of a proper officer on lawful process, or upon the affidavit of some credible person, or by information filed by any district attorney, that there is reasonable ground to believe that any person has been guilty of such contempt, the court or judge thereof, or any judge therein sitting, may issue a rule requiring the said person so charged to show cause" } ]

[ { "docid": "22663958", "title": "", "text": "1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee’s statutory representative. B. There are also some intensely practical considerations which foreclose pre-emption of judicial cognizance of fair representation duty suits, considerations which emerge from the intricate relationship between the duty of fair representation and the enforcement of collective bargaining contracts. For the fact is that the question of whether a union has breached its duty of fair representation will in many cases be a critical issue in a suit under L. M. R. A. § 301 charging an employer with a breach of contract. To illustrate, let us assume a collective bargaining agreement that limits discharges to those for good.cause and that contains no grievance, arbitration or other provisions purporting 'to restrict access to the courts. If an employee is discharged without cause, either the union or the employee may sue the employer under L. M. R. A. § 301. Under this section, courts have jurisdiction over suits to enforce collective bargaining agreements even though the conduct of the employer which is challenged as a breach of contract is also arguably an unfair labor practice within the jurisdiction of the NLRB. Garmon and like cases have no application to § 301 suits. Smith v. Evening News Assn., 371 U. S. 195. The rule is the same with regard to pre-emption where the bargaining agreement contains grievance and arbitration provisions which are intended to provide the exclusive remedy for breach of contract claims. If an employee is discharged without cause in violation of such an agreement, that the employer’s conduct may be an unfair labor practice does not preclude a suit by the union against the employer to compel arbitration of the employee’s grievance, the adjudication of the claim by the arbitrator, or a suit to enforce the-resulting arbitration award. See, e. g., Steelworkers v. American Mfg. Co., 363 U. S. 564. However, if the wrongfully discharged employee himself resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive" } ]

[ { "docid": "2476087", "title": "", "text": "1337(a) (1988) (covering “any civil action or proceeding arising under any Act of Congress regulating commerce”), see Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 83, 110 S.Ct. 424, 434, 107 L.Ed.2d 388 (1989), whereas an employee’s claim directly against the employer for breach of a collective bargaining agreement after the union failed to process the grievance is filed under section 301(a) of the LMRA, 29 U.S.C. § 185(a) (1988). Ordinarily, an employee files a claim against the union alleging breach of the duty of fair representation together with a claim against the employer alleging breach of the collective bargaining agreement in a “hybrid” section 301/duty of fair representation suit. In the “hybrid” suit, the plaintiff will have to prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union, and vice versa. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559, 1565-66, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring in the judgment). Thus, the claims are “inextricably interdependent.” Id.; see also DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983). Nonetheless, the claims are not inseparable. A plaintiff who has a viable “hybrid” claim against both the employer and the union may opt to bring only the section 301 claim against the employer or the breach of duty of fair representation claim against the union. See DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Either claim standing alone can be brought in federal court because each has an independent jurisdictional basis. Id. Defendants argue that because the County of Westmoreland is a “political subdivision” not subject to section 301, Felice cannot maintain his duty of fair representation claim against Local 30. We have previously held that the term “employer” in the NLRA excludes “any State or political subdivision thereof,” see 29 U.S.C. § 152(2), and therefore the federal courts lack subject matter jurisdiction over a duty of fair representation claim brought by an employee" }, { "docid": "22312105", "title": "", "text": "to ‘the private settlement of disputes under [the collective-bargaining agreement].’ ” Id. at 164-65, 103 S.Ct. at 2290-91 (citations omitted). The district court determined that the evidence did not support the employees’ claim that the Union breached its duty of fair representation and thus their hybrid § 301/fair representation claim failed as a matter of law. The district court granted the Union and the Company summary judgment concluding that the Company’s liability under this claim was conditioned on a finding that the Union breached its duty of fair representation. We agree with the district court’s analysis. The above quote from DelCostello makes it clear that the claims against the Union and the Company are interdependent and in order to prevail the employee must satisfy his burden of proving a breach of contract by the Company and a breach of the Union’s duty of fair representation. The employees claim that the Union breached its duty of fair representation in the negotiation of the two concession agreements. As we shall discuss further below, this claim fails because mere negligence in negotiations does not amount to a breach of the union’s duty. In International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979), the Supreme Court broadly characterized the duty of fair representation: “Under the doctrine, a union must represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collective-bargaining agreements.” Id. at 47, 99 S.Ct. at 2125 (emphasis added). See also Communications Workers v. Beck, — U.S. at -, 108 S.Ct. at 2646-48 (“This jurisdiction to adjudicate fair representation claims encompasses challenges leveled not only at a union’s contract administration and enforcement efforts, ... but at its negotiation activities as well.”) (citations omitted). The employees allege that the Union breached its duty of fair representation in the negotiation of the concession agreements, in processing their grievances, and in obtaining ratification of the concession agreements. The nature of the duty of fair representation which a Union owes its members is determined by considering the context in which the duty is asserted." }, { "docid": "22165337", "title": "", "text": "court erred in entering summary judgment against them on their “hybrid” claim against USX for breach of contract under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. As the Supreme Court explained in DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983), an individual employee may bring suit against his employer for breach of a collective-bargaining agreement. Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement.... [H]owever, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation .... The employee may, if he chooses, sue one defendant and not the other, but the case he must prove is the same whether he sues one, the other, or both. (internal citations and quotation omitted). The plaintiffs argue that, [b]ecause the [Fairfield Works] Agreement is void and unenforceable, USX breached its contractual obligations when USX did not pay members of plaintiff class the full compensation which they should have been paid (from 1984 to date) based on the 1983 Basic Labor Agreement, the 1987 Basic Labor Agreement, and prior practices, without regard to the [Fairfield Works] Agreement. (The Basic Labor Agreement, between USX and the Internationa], governs all of USX’s plants in Canada' and the United States, in the absence of local agreements.) The district court rejected the claim on the same ground on which it rejected the RICO claim — that “the court can find" }, { "docid": "23443442", "title": "", "text": "Hines, 424 U.S. at 568, 96 S.Ct. 1048 (“[Wjhere the union actually utilizes the grievance and arbitration procedures on behalf of the employee, the focus is ... on whether, contrary to the arbitrator’s decision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the contractual proceedings.”). The plaintiff in a hybrid § 301/DFR action need not sue both his union and former employer in the same case, and he may choose to seek damages against only one of the potential defendants, but in any event, “the case he must prove is the same whether he sues one, the other, or both.” See DelCostello, 462 U.S. at 165, 103 S.Ct. 2281. B. Local 17’s duty of fair representation In light of a union’s position as the sole and exclusive bargaining representative of an employee with his employer, every collective bargaining union has a duty to represent its members fairly in its dealings with management. See DelCostello, 462 U.S. at 164 & n. 14, 103 S.Ct. 2281. The scope of this duty in the context of a grievance arbitration proceeding requires that the union “may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.” See Vaca 386 U.S. at 191, 87 S.Ct. 903. The Supreme Court has consistently repeated this standard for a DFR claim: “A duty-of-fair-representation claim arises when a union that represents an employee in a grievance or arbitration procedure acts in a ‘discriminatory, dishonest, arbitrary, or perfunctory’ fashion.’” International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 864 n. 6, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) (quoting DelCostello, 462 U.S. at 164, 103 S.Ct. 2281); see also International Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979) (“In particular, a union breaches its duty when its conduct is ‘arbitrary, discriminatory or in bad faith,’ as, for example, when it ‘arbitrarily ignore[s] a meritorious grievance or processes] it in [a] perfunctory fashion.’ ”) (quoting Vaca, 386 U.S. at 190, 191, 87" }, { "docid": "12203659", "title": "", "text": "Lewis. The duty of fair representation was judicially created as a correlative to the union’s statutory right under section 9(a) of the Act to serve as the exclusive representa tive for the members of the collective, bargaining unit. Schneider Moving & Storage Co. v. Robbins, - U.S.-, 104 S.Ct. 1844, 1851 n. 22, 80 L.Ed.2d 366 (1984); International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 46 n. 8, 99 S.Ct. 2121, 2125 n. 8, 60 L.Ed.2d 698 (1979); Freeman v. Local Union No. 135, 746 F.2d 1316 at 1320 (7th Cir.1984); Ranieri v. United Transportation Co., 743 F.2d 598 at 600 (7th Cir.1984). It was created as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca, 386 U.S. at 182, 87 S.Ct. at 912. See also DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 at 165 n. 14, 103 S.Ct. 2281 at 2290 n. 14, 76 L.Ed.2d 476. The Supreme Court has held that under the fair representation doctrine “a union must fairly ... represent ... [its] members during the negotiations, administration, and enforcement of collective-bargaining agreements.” Foust, 442 U.S. at 47, 99 S.Ct. at 2125. In our view, this means that the union has a duty to represent fairly the interests of all of its members in any dealings with the employer resulting from its exclusive right to represent all bargaining-unit members. See also Farmer v. ARA Services, Inc., 660 F.2d 1096, 1102-03 (6th Cir.1981); In re Carter, 618 F.2d 1093, 1104 (5th Cir. 1980). In fact, this circuit has already found that a plaintiff states a claim for breach of the duty of fair representation when he alleges any “arbitrary, discriminatory or bad faith [conduct]” by the union in the pursuance of its exclusive bargaining-agent authority. Superczynski v. P.T.O. Services, Inc., 706 F.2d 200, 202-03 (7th Cir.1983). See also Farmer, 660 F.2d at 1102-03. Lewis’ complaint clearly meets these criteria. He alleges that the Union has arbitrarily and in bad faith discriminated against him in failing to refer him to employers" }, { "docid": "5554083", "title": "", "text": "followed. II.ISSUES (1) Whether the district court erred by finding that Coppage’s complaint was timely- (2) Whether the district court erred by finding that the Postal Service failed to comply with the arbitration award, and consequently, violated its collective bargaining agreement with the Union. (3) Whether the district court erred by finding that the Union breached its duty of fair representation to Coppage. III.STANDARD OF REVIEW This court reviews a district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the party opposing the motion. Transamerica Leasing, Inc. v. Institute of London Underwriters, 267 F.3d 1303, 1307 (11th Cir.2001). IV.DISCUSSION Coppage’s complaint alleges that the Postal Service breached its obligations under the employment agreement and that the Union violated its duty of fair representation. The Supreme Court of the United States describes such a lawsuit as a “hybrid § 301/ fair representation claim.” DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983). Cop-page’s claim is a hybrid claim because it “comprises two causes of action.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290. The first cause of action involved is against the employer for breach of the collective bargaining agreement. This claim rests on section 301 of the Labor Management Relations Act. See 29 U.S.C. § 185(a) (1994). The second claim is against the union for breach of the union’s duty of fair representation. DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290 (explaining that the union’s duty of fair representation is implied under the National Labor Relations Act). “Yet the two claims are inextricably interdependent.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2291 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559, 1565-1566, 67 L.Ed.2d 732 (1981)). In DelCostello, the Supreme Court adopted the six-month statute of limitations found in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), for all such hybrid cases. DelCostello, 462 U.S. at 169-171, 103 S.Ct. at 2293-2294. Thus, Coppage had six months to file her hybrid suit" }, { "docid": "15661221", "title": "", "text": "May 12, 1995, the plaintiffs brought their third amended complaint, which included an allegation that Local 138 breached its duty of fair representation by (1) entering into the Amendment to the Original Settlement Agreement and (2) refusing to take plaintiffs’ claim to arbitration. This last complaint also alleged that White Rose had violated the Original Settlement Agreement and various federal tax statutes. Defendants then moved for summary judgment again, which the district court granted. Plaintiffs appealed. On appeal, the union filed a motion stating that the plaintiffs’ appeal against it was patently frivolous, and seeking sanctions pursuant to 28 U.S.C. § 1912 and Federal Rule of Appellate Procedure 38. That motion was consolidated with this appeal. II. DISCUSSION A. Standard of Review and Applicable Law We review a grant of summary judgment de novo. See Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir.1997). Under federal labor law, an employee may bring a complaint against her union and/or her employer alleging (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation in redressing her grievance against the employer. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171, 184-86, 87 S.Ct. 903, 913-15, 17 L.Ed.2d 842 (1967). Section 301 of the Labor Management Relations Act, 1947 (the “LMRA”), 29 U.S.C. § 185, governs the employer’s duty to honor the collective bargaining agreement, and- the, duty of fair representation is implied under the scheme of the National Labor Relations Act (the “NLRA”). See DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290-91; see also Price v. International Union, United Auto. Aerospace & Agric. Implement Workers, 795 F.2d 1128, 1134 (2d Cir.1986) (union’s duty of fair representation is implied from § 9(a) of the NLRA, 29 U.S.C. § 159(a), specifically). The limitations period on this “hybrid' § 301/ DFR” action is six months, see DelCostello, 462 U.S. at 169, 103 S.Ct. at 2293, which begins to run when the employee knew" }, { "docid": "2437358", "title": "", "text": "903, 913, 17 L.Ed.2d 842 (1967). See Pltf. Exh. 1, at section A.1 (agreement between UTU and CGR). This claim rests on § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1990) (“LMRA”), governing suits by and against labor organizations. Reed, 488 U.S. at 328, 109 S.Ct. at 627; DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290. Next, the plaintiff must claim that the union breached its duty of fair representation by mishandling the ensuing grievance and arbitration proceedings: Unless the employee can establish that the integrity of the grievance or arbitration procedures was subverted by the union, a court will not displace the final decision reached by an arbitral body. See United Parcel Service v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1563, 67 L.Ed.2d 732 (1981); discussion, supra. Consequently, even though the claim against the employer precedes the claim against the union, the Court must dispose of the latter claim first. The two claims are “inextricably interdependent,” Id. at 66-67, 101 S.Ct. at 1565-66 (citation omitted); proving the union’s breach of duty clears the way for proof of the employer’s breach of contract. Thus there is a potential hybrid claim wherever the union does not adequately represent an employee during grievance procedures. The Supreme Court has held that lack of judicial review in such cases would work “an unacceptable injustice,” Del-Costello v. Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983), since the employee would be denied legal recourse despite not having received fair representation during arbitration of his case. Unions have a legal obligation to fairly represent employees in the course of grievance proceedings, and if a union breaches that duty of fair representation, the bar to federal court review is rightfully lifted. Hines v. Anchor Motor Freight, 424 U.S. 554, 571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976); Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (1982). Massey’s claims of breach of the duty of fair representation and breach of the collective bargaining agreement comprise exactly this brand of hybrid suit. Defendant CGR argues that" }, { "docid": "23443440", "title": "", "text": "sufficient. A Elements of a hybrid § S01/DFR claim Federal labor policy generally extends great deference and finality to the decision by a labor arbitrator that a company has not violated its collective bargaining agreement in firing an employee. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). However, this deference can result in “an unacceptable injustice” when the employee’s assertion of his rights under the collective bargaining agreement has been tainted by conduct from his union that breaches its duty of fair representation toward him. See id. at 164, 103 S.Ct. 2281 (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). As a result, the Court has explained that, [W]hen the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation ..., an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. DelCostello, 462 U.S. at 164, 103 S.Ct. 2281 (citations omitted). The kind of suit authorized in Vaco, Hines, and DelCostello is a “hybrid” action under § 301 because it combines two conceptually independent causes of action, the first against the company for breach of the contract (a standard § 301 claim) and the second against the union for breach of the duty of fair representation (a claim implied by operation of a union’s status under federal law as the sole bargaining representative of the employee). See DelCostello, 462 U.S. at 164, 103 S.Ct. 2281. To prevail against his former employer under this hybrid § 301/DFR cause of action, a discharged worker must prove three elements: (1) Some conduct by the worker’s union that breached the duty of fair representation; (2) A causal connection showing that the union’s breach affected the integrity of the arbitration process, and; (3) A violation of the collective bargaining agreement by the company. See" }, { "docid": "18752589", "title": "", "text": "take. The majority’s error becomes clear when one examines and compares the nature of a hybrid suit, and how and when its causes of action accrue for statute of limitations purposes, with the nature of a bill-of-rights suit, and how and when its cause of action accrues. I. A. The hybrid suit stems from an employee’s grievance against his employer that the union has failed to resolve to the employee’s satisfaction. In such a suit, the employee contends that he did not prevail against his employer because the union failed to prosecute his grievance in proper fashion through the dispute resolution mechanism provided in the collective-bargaining agreement. The union has an affirmative duty to represent its members fairly. See, e.g., International Bhd. of Electrical Workers v. Foust, 442 U.S. 42, 46 n. 8, 99 S.Ct. 2121, 2125 n. 8, 60 L.Ed.2d 698 (1979) (“The duty of fair representation is ... implicit in the National Labor Relations Act.”). In the context of a member’s grievance with the employer, “a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion.” Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1967). In policing union conduct that is “arbitrary and perfunctory,” courts have been willing to look beyond the question whether the union in fact pursues an employee’s grievance (contractual or statutory) and to determine whether the union has made a full investigation, has given the grievant notice and an opportunity to participate, has mustered colorable arguments and has refuted insubstantial arguments by the employer. R. Gorman, Labor Law 718 (1976). Unions occasionally fail to fulfill this duty of fair representation. The Supreme Court has thus recognized that when an employee has a dispute with the employer, the federal labor policy of requiring exhaustion of any grievance or arbitration remedies provided in the collective-bargaining agreement “works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” DelCostello v. International Bhd. of Teamsters, 462" }, { "docid": "16608862", "title": "", "text": "cause of action as a “hybrid suit,” encompassing two separate but interrelated claims. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983). The suit against the Postal Service is predicated on an alleged breach of the collective bargaining agreement, thereby falling under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See id. at 164,103 S.Ct. at 2290-91. The duty of fair representation claim against NALC arises implicitly under the National Labor Relations Act’s statutory scheme. See id. at 164 & n. 14, 103 S.Ct. at 2290 & n. 14 (citing Vaca v. Sipes, 386 U.S. 171,177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967)). Because the two claims in a hybrid suit are “inextricably interdependent,” a plaintiff may not prevail against either his employer or his union unless he establishes that his discharge contravened the collective bargaining agreement and that his union breached its duty of fair representation. Id. at 164-65, 103 S.Ct. at 2290-91; see also Edwards v. International Union, United Plant Guard Workers, 46 F.3d 1047, 1051-52 (10th Cir.) (discussing the nature of hybrid suits), cert, denied, — U.S. -, 116 S.Ct. 60, 133 L.Ed.2d 23 (1995). The court need only discuss the breach of duty of fair representation claim levelled against NALC. A union breaches its duty of fair representation only if its conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Vaca, 386 U.S. at 190, 87 S.Ct. at 916-17. The Supreme Court has explained that “a union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational.” Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 1130, 113 L.Ed.2d 51 (1991) (citation omitted). A union’s conduct is discriminatory if it engages in actions based on prejudice, animus, or “invidious” distinctions “such as race or other constitutionally protected categories.” Considine v. Newspaper Agency Corp., 43" }, { "docid": "15661222", "title": "", "text": "agreement and (2) that the union breached its duty of fair representation in redressing her grievance against the employer. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171, 184-86, 87 S.Ct. 903, 913-15, 17 L.Ed.2d 842 (1967). Section 301 of the Labor Management Relations Act, 1947 (the “LMRA”), 29 U.S.C. § 185, governs the employer’s duty to honor the collective bargaining agreement, and- the, duty of fair representation is implied under the scheme of the National Labor Relations Act (the “NLRA”). See DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290-91; see also Price v. International Union, United Auto. Aerospace & Agric. Implement Workers, 795 F.2d 1128, 1134 (2d Cir.1986) (union’s duty of fair representation is implied from § 9(a) of the NLRA, 29 U.S.C. § 159(a), specifically). The limitations period on this “hybrid' § 301/ DFR” action is six months, see DelCostello, 462 U.S. at 169, 103 S.Ct. at 2293, which begins to run when the employee knew or should have known of the breach of the duty of fair representation, see Cohen v. Flushing Hosp. & Med Ctr., 68 F.3d 64, 67 (2d Cir. 1995); King v. New York Tel. Co., 785 F.2d 31, 33 (2d Cir.1986). The plaintiff may sue the union or the employer, or both, but must allege violations on the part of both. See DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. B. The Plaintiffs’ Claims Against the Union In their third amended complaint, the plaintiffs joined Local 138 as a defendant and alleged that the union had breached its duty of fair representation in two ways: (1) by entering into the Amendment without ratification by the union membership, and (2) by refusing to pursue their claim to arbitration. 1. The Union’s Participation in the Amendment The union was joined in this action more than two years after it participated in the Amendment; thus, the plaintiffs’ claim against the union based.on that act would be time-barred by the six-month limit of Del-Costello. It is unclear whether the" }, { "docid": "9434199", "title": "", "text": "that his wrongful discharge claim is preempted by the LMRA, but argues (1) that his claim is not a “hybrid” claim, and therefore the six month statute of limitations does not apply, and (2) even if his claim is a “hybrid” claim, the complaint was timely filed. Ordinarily, an employee who brings a claim, such as plaintiff’s wrongful discharge claim, against an employer for breach of a collective bargaining agreement is first required to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281, 2289, 76 L.Ed.2d 476 (1983). However, an employee is not required to exhaust his remedies under the grievance procedures if the union breaches its duty of fair representation in connection with the grievance process (as, for example, where the union fails to process the employee’s claim). Id. at 164, 103 S.Ct. at 2290. In such a case, the employee may bring a so-called “hybrid” action against both the employer, for breach of the collective bargaining agreement, and the union, for breach of the duty of fair representation. Id. For such a “hybrid” claim, the Supreme Court has held, the applicable statute of limitations is six months, as provided under § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Id. at 169, 103 S.Ct. at 2293. Plaintiff argues, however, that his wrongful discharge claim is not a “hybrid” claim because he does not actually assert a claim for breach of duty of fair representation against the union. This argument is without merit. Although plaintiff does not assert a claim for breach of duty of fair representation against the union, the allegations in his complaint are precisely that the union breached its duty to plaintiff by failing to advise him of his rights under the collective bargaining agreement. See Complaint, Count I, ¶ 20. As the Supreme Court has held, the two claims in a “hybrid” action are “inextricably interdependent.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2291. Without a claim against the union, the employee’s claim against the" }, { "docid": "23443441", "title": "", "text": "both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. DelCostello, 462 U.S. at 164, 103 S.Ct. 2281 (citations omitted). The kind of suit authorized in Vaco, Hines, and DelCostello is a “hybrid” action under § 301 because it combines two conceptually independent causes of action, the first against the company for breach of the contract (a standard § 301 claim) and the second against the union for breach of the duty of fair representation (a claim implied by operation of a union’s status under federal law as the sole bargaining representative of the employee). See DelCostello, 462 U.S. at 164, 103 S.Ct. 2281. To prevail against his former employer under this hybrid § 301/DFR cause of action, a discharged worker must prove three elements: (1) Some conduct by the worker’s union that breached the duty of fair representation; (2) A causal connection showing that the union’s breach affected the integrity of the arbitration process, and; (3) A violation of the collective bargaining agreement by the company. See Hines, 424 U.S. at 568, 96 S.Ct. 1048 (“[Wjhere the union actually utilizes the grievance and arbitration procedures on behalf of the employee, the focus is ... on whether, contrary to the arbitrator’s decision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the contractual proceedings.”). The plaintiff in a hybrid § 301/DFR action need not sue both his union and former employer in the same case, and he may choose to seek damages against only one of the potential defendants, but in any event, “the case he must prove is the same whether he sues one, the other, or both.” See DelCostello, 462 U.S. at 165, 103 S.Ct. 2281. B. Local 17’s duty of fair representation In light of a union’s position as the sole and exclusive bargaining representative of an employee with his employer, every collective bargaining union has a duty to represent its members fairly in its dealings with management. See DelCostello, 462 U.S. at 164" }, { "docid": "16608861", "title": "", "text": "subsequent negative reviews might indicate a retaliatory motive. Plaintiffs poor work assessments, however, began as soon as he commenced employment. Under such circumstances, no retaliatory motive can be inferred. In sum, the nexus between Miller’s knowledge of plaintiffs EEO filing and plaintiffs employment difficulties is extremely attenuated. As the Supreme Court has articulated, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. No such competent evidence having been presented in the instant action, summary judgment in favor of the Postal Service is warranted. C. Breach of Contract/Duty of Fair Representation In Count III of his complaint, plaintiff alleges that the Postal Service breached its collective bargaining agreement by terminating him for discriminatory reasons. He also contends that NALC breached its duty of fair representation by failing to raise certain discrimination charges at his discharge hearing. The Supreme Court has denominated this type of joint cause of action as a “hybrid suit,” encompassing two separate but interrelated claims. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983). The suit against the Postal Service is predicated on an alleged breach of the collective bargaining agreement, thereby falling under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See id. at 164,103 S.Ct. at 2290-91. The duty of fair representation claim against NALC arises implicitly under the National Labor Relations Act’s statutory scheme. See id. at 164 & n. 14, 103 S.Ct. at 2290 & n. 14 (citing Vaca v. Sipes, 386 U.S. 171,177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967)). Because the two claims in a hybrid suit are “inextricably interdependent,” a plaintiff may not prevail against either his employer or his union unless he establishes that his discharge contravened the collective bargaining agreement and that his union breached its duty of fair representation. Id. at 164-65, 103 S.Ct. at 2290-91; see also Edwards v. International Union," }, { "docid": "14591811", "title": "", "text": "need not accept as true any legal conclusions disguised as factual allegations, “‘naked assertions’ devoid of ‘further factual development,’ ” or a “ ‘formulaic recitation of the elements of a cause of action.’ ” Id. (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955). The plaintiff, however, is entitled to “the benefit of all inferences that can be derived from the facts alleged.” See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011). III. DISCUSSION A. Breach of Collective Bargaining Agreement and Duty of Fair Representation Claims Malloy’s first two claims are closely related. The first count alleges that WMATA breached the collective bargaining agreement it had with the Union by suspending and eventually firing him “without cause,” and the second count alleges that the Union breached its duty of fair representation stemming from the arbitration process. Compl. at 75-76. The Supreme Court addressed claims of this type in DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). There, the Court ■ explained that in the ordinary course a union member who wants to sue his union or his employer must exhaust “any grievance or arbitration remedies provided in the collective bargaining agreement.” Id. at 163, 103 S.Ct. 2281. The employee is then typically “bound by the result according to the finality provisions of the agreement”- and entitled to only “very limited” judicial review.- Id. at 164, 103 S.Ct. 2281. Review is available, however, “when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” Id. In those circumstances, the employee “may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding.” Id. Claims of this type, which are known as a “hybrid § 301/ fair representation claims,” thus involve two distinct causes of action—one against the employer under § 301 of the Labor Management Relations Act, the other against the union for breach of the duty of fair representation, which is implied" }, { "docid": "18752591", "title": "", "text": "U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). In those instances, when a union breaches its duty to represent fairly one of its members who alleges that the employer wronged him, the “employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding.” Id. (citations omitted). Justice Stewart, concurring in the judgment, explained the practicalities of such a hybrid suit in United Parcel Serv. v. Mitchell, 451 U.S. 56, 66-69, 101 S.Ct. 1559, 1565-67, 67 L.Ed.2d 732 (1981). A hybrid suit consists of two distinct claims, each with its own jurisdictional basis. The cause of action against the employer rests on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982); the employee is alleging a breach of the collective-bargaining agreement. The cause of action against the union rests on the union’s duty of fair representation, implied from the National Labor Relations Act, 29 U.S.C. §§ 151-170 (1982 & Supp. III 1985); the employee is alleging that the union breached its duty to process properly his grievance with the employer. Mitchell, 451 U.S. at 67, 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment) (citation omitted); see also DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290. In short, the hybrid section 301/fair representation suit, or “claim,” amounts to “a direct challenge to ‘the private settlement of disputes under [the collective-bargaining agreement].’ ” Mitchell, 451 U.S. at 66, 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment) (citation omitted); see also DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Although a hybrid suit consists of two distinct claims, those claims are “inextricably interdependent.” Mitchell, 451 U.S. at 66-67, 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment); see also DelCostello, 462 U.S. at 164-65, 103 S.Ct. at 2291. A hybrid suit is an all or nothing proposition: either the union member prevails against both the employer and the union, or he loses against both. In other words, “[t]o prevail against either the company or the Union, [employee-plaintiffs] must not" }, { "docid": "11812590", "title": "", "text": "and UAW have contracted to resolve most of their disputes through a grievance and arbitration process. Union members must avail themselves of these dispute-resolution mechanisms before turning to the courts for relief. Id. “Otherwise, the judiciary may marshal its scare resources to resolve dis putes that the parties could have resolved privately.” Id. And had UAW taken the plaintiffs’ grievances to arbitration, the plaintiffs and the company both would have been bound by the result subject only to extremely narrow judicial review. See DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983); e.g., Dexter Axle Co. v. Int’l Ass’n of Machinists & Aerospace Workers, 418 F.3d 762, 768 (7th Cir.2005). In fact, however, UAW opted to drop the plaintiffs’ grievances rather than take them to arbitration. It was that decision that opened the door to this suit. For Vaca v. Sipes, 386 U.S. 171, 185-87, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967), and its progeny recognize that a union owes a fiduciary duty to represent its members fairly; and when the union fails in that obligation and mishandles a member’s grievance against his employer, the aggrieved union member is entitled to seek relief in federal court. See DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290. This is what gives rise to the hybrid nature of a section 301/fair representation lawsuit: the plaintiff is claiming that the employer has violated the collective bargaining agreement, but he is pursuing that claim in a judicial rather than a private forum because he is also claiming that the union has breached its duty of fair representation vis-á-vis that claimed violation. See ibid. These two claims “are inextricably interdependent.” Id. at 164-65, 103 S.Ct. at 2291 (internal quotation marks and citations omitted). Whether the plaintiff has sued his employer, his union, or both, in order to recover from either of them he must prove that his union breached its fiduciary obligation and that his employer breached the collective bargaining agreement. Id. at 165,103 S.Ct. at 2291. A claim that a union has breached its" }, { "docid": "18715731", "title": "", "text": "Those rights are secured through negotiations between a un ion and employer, resulting in a collective bargaining agreement. Such an agreement makes provision, through dealings between employer and union in grievance and arbitration procedures, for the private settlement of issues involving an employee’s economic loss. Ordinarily the result of the dispute settlement procedures will be final, but the union member may pursue his economic rights in court if the union has failed to represent the employee fairly. “In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. [Citations omitted.] Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 801 [of the Labor-Management Relations Act], since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. [Footnote omitted.] ‘Yet the two claims are inextricably interdependent. “To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.” ’ ” DelCostello, 462 U.S. at 164-65, 103 S.Ct. at 2290 (citations omitted). In DelCostello, the Supreme Court observed that this suit to vindicate an employee’s economic rights, a “hybrid § 301/fair representation” suit, amounts to “ ‘a direct challenge to “the private settlement of disputes under [the collective-bargaining agreement].” ’ ” DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. 2. Civil Rights. After twenty years of experience with the NLRA, Congress realized that vital non-economic interests of employees were not being adequately protected under existing legislation. The LMRDA was therefore enacted to regulate the internal affairs of labor unions and protect union members from autocratic abuses by union officials. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, 467 U.S. 526, 104 S.Ct. 2557," }, { "docid": "18752590", "title": "", "text": "grievance or process it in a perfunctory fashion.” Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1967). In policing union conduct that is “arbitrary and perfunctory,” courts have been willing to look beyond the question whether the union in fact pursues an employee’s grievance (contractual or statutory) and to determine whether the union has made a full investigation, has given the grievant notice and an opportunity to participate, has mustered colorable arguments and has refuted insubstantial arguments by the employer. R. Gorman, Labor Law 718 (1976). Unions occasionally fail to fulfill this duty of fair representation. The Supreme Court has thus recognized that when an employee has a dispute with the employer, the federal labor policy of requiring exhaustion of any grievance or arbitration remedies provided in the collective-bargaining agreement “works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). In those instances, when a union breaches its duty to represent fairly one of its members who alleges that the employer wronged him, the “employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding.” Id. (citations omitted). Justice Stewart, concurring in the judgment, explained the practicalities of such a hybrid suit in United Parcel Serv. v. Mitchell, 451 U.S. 56, 66-69, 101 S.Ct. 1559, 1565-67, 67 L.Ed.2d 732 (1981). A hybrid suit consists of two distinct claims, each with its own jurisdictional basis. The cause of action against the employer rests on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982); the employee is alleging a breach of the collective-bargaining agreement. The cause of action against the union rests on the union’s duty of fair representation, implied from the National Labor Relations Act, 29 U.S.C. §§ 151-170 (1982 & Supp. III 1985); the employee is alleging that the" } ]

[ { "docid": "22771812", "title": "", "text": "Mr. Justice FIELD delivered the opinion of the court. According to the view we take of this case, it is unnecessary to consider the force of any of the objections urged by the appellants to the decrees rendered. Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction before the preventive remedy of injunction can be invoked. It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public. No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised, or was waived. Such was the case of The Bank of Utica v. The City of Utica where the" } ]

[ { "docid": "22319761", "title": "", "text": "“chill” state tax collection, within the proscriptions of the Act. In my view, the legislative history of the Act, and the case law background against which it was written, directly refute the suggestion that Congress intended those words to have the encompassing meaning respondents suggest. B The federal courts have for most of their history been scrupulous in the exercise of their equitable powers to avoid unnecessary interference with the administration of state taxation. In Dows v. Chicago, 11 Wall. 108 (1871), Justice Field noted: “It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Id., at 110. Thus it was early held that the illegality or unconstitutionality of a state or municipal tax would not in itself provide the foundation for equitable relief in the federal courts. Id., at 109; see Boise Artesian Water Co. v. Boise City, 213 U. S. 276, 282-285 (1909). Consistent with equity practice, the federal courts would not enjoin the collection of state taxes, despite the possible unconstitutionality of the exaction, where there existed a “plain, adequate and complete remedy at law.” Singer Sewing Machine Co. v. Benedict, 229 U. S. 481, 488 (1913). Although this Court, in the many cases preceding passage of the Tax Injunction Act, affirmed the need for restraint in the exercise of the power of equity in state tax cases, it never intimated that the federal forum was inappropriate where the complaint sought only a remedy in damages, and the case was otherwise within federal jurisdiction. Indeed, the Court re peatedly stated the contrary. See id:, at 486; Henrietta Mills v. Rutherford County, 281 U. S. 121, 127 (1930); Chicago, B. & Q. R. Co. v. Osborne, 265 U." }, { "docid": "22319722", "title": "", "text": "Justice Rehnquist delivered the opinion of the Court. In this action we are required to reconcile two somewhat intermittent and conflicting lines of authority as to whether a damages action may be brought under 42 U. S. C. § 1988 to redress the allegedly unconstitutional administration of a state tax system. The United States District Court for the Eastern District of Missouri held that such suits were barred by both 28 U. S. C. § 1841 (Tax Injunction Act) and the prin ciple of comity, and the Court of Appeals for the Eighth Circuit affirmed by an equally divided court sitting en banc. We granted certiorari to resolve a conflict among the Courts of Appeals, 450 U. S. 1039, and we now affirm. Before setting forth the facts, we think that a description of the past and at times divergent decisions of this Court may shed light upon the proper disposition of this case. I This Court, even before the enactment of §1983, recognized the important and sensitive nature of state tax systems and the need for federal-court restraint when deciding cases that affect such systems. As Justice Field wrote for the Court shortly before the enactment of § 1983: “It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Dows v. Chicago, 11 Wall. 108, 110 (1871). After this Court conclusively decided that federal courts may enjoin state officers from enforcing an unconstitutional state law, Ex parte Young, 209 U. S. 123 (1908), Congress also recognized that the autonomy and fiscal stability of the States survive best when state tax systems are not subject to scrutiny in federal courts. Thus, in 1937 Congress provided: “The district courts shall not" }, { "docid": "16729473", "title": "", "text": "Act. Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 110, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). The Act is just a “partial codification of the federal reluctance to interfere with state taxation.” National Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 590, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995); see also Levin v. Commerce Energy, Inc., — U.S. -, 130 S.Ct. 2323, 2331-33, 176 L.Ed.2d 1131 (2010). The Supreme Court has told us to withhold decision even in situations to which the Act does not apply, though we won’t have to take that step in this case. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), had as a practical matter stripped away the states’ sovereign immunity from equitable suits. So were it not for the Tax Injunction Act and the related doctrine of comity, “ ‘state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency.’ ” Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 527, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981), quoting Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion); see also Hill v. Kemp, 478 F.3d 1236, 1246-47 (10th Cir.2007). The Act is “first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.” Rosewell v. LaSalle Nat’l Bank, supra, 450 U.S. at 522, 101 S.Ct. 1221. The reason for this drastic limitation is that “it is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible." }, { "docid": "16729474", "title": "", "text": "the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency.’ ” Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 527, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981), quoting Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion); see also Hill v. Kemp, 478 F.3d 1236, 1246-47 (10th Cir.2007). The Act is “first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.” Rosewell v. LaSalle Nat’l Bank, supra, 450 U.S. at 522, 101 S.Ct. 1221. The reason for this drastic limitation is that “it is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110, 20 L.Ed. 65 (1871). Not that enjoining a particular tax, depending on what it is, is certain to “derange the operations of government.” But a general lowering of standards under the Tax Injunction Act could result in state fiscal policy being nickeled and dimed to death by an avalanche of suits by disgruntled taxpayers. (When the suit is not by taxpayers, but by persons objecting just to how the money is being spent, as in Hibbs v. Winn, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004), the danger of interference with state tax administration is diminished; Hibbs holds that such suits are outside the Act’s scope.) The application of the Act should not turn on judges’ guesses about the importance of a particular tax to the legitimate operations of state" }, { "docid": "21378919", "title": "", "text": "challenge North Carolina’s taxation scheme because they lack an injury in fact and because the injury they claim cannot be redressed by the relief they seek. Third, the district court held that even if Plaintiffs did have standing, their amended complaint failed to state a claim upon which relief could be granted. In so holding, the district court concluded that the 2006 Amendments provide no subsidy to cable operators and therefore do not discriminate against interstate commerce. Plaintiffs now appeal. We review de novo the district court’s dismissal of Plaintiffs’ amended complaint. Palmer v. City Nat. Bank of W. Virginia, 498 F.3d 236, 244 (4th Cir.2007). Ill A. The Supreme Court long ago “recognized the important and sensitive nature of state tax systems and the need for federal-court restraint when deciding cases that affect such systems.” Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 102, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). As the Court has explained: It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public. Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110, 20 L.Ed. 65 (1871). Accordingly, the Court has articulated a principle of comity that reflects the “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,” requiring federal courts, when the comity principle applies, to deny relief in challenges to state tax laws “in every case where the asserted federal right may be preserved without it.” Fair Assessment, 454 U.S. at 108, 102 S.Ct. 177 (internal quotation and citation omitted). This comity principle found legislative voice in the enactment of the Tax Injunc tion Act, which provides that “[t]he district" }, { "docid": "22319729", "title": "", "text": "improvements in the County. Petitioners filed suit under § 1983 alleging that respondents, the County’s Tax Assessors, Supervisors, and Director of Revenue, and three members of the Missouri State Tax Commission, had deprived them of equal protection and due process of law by unequal taxation of real property. The complaint focuses on two specific practices by respondents. First, petitioners allege that County properties with new improvements are assessed at approximately 3354% of their current market value, while properties without new improvements are assessed at approximately 22% of their current market value. This disparity allegedly results from respondents’ failure to reassess old property on a regular basis, the last general reassessment having occurred in 1960. Second, petitioners allege that property owners who successfully appeal their property assessments, as did the Cassillys in 1977, are specifically targeted for reassessment the next year. Petitioners have previously sought some relief from respondents’ assessments in state proceedings. In 1975, petitioner David Cassilly and others brought an action in which the State Circuit Court ordered respondent Antonio to reassess all real property in the County. On direct appeal, however, the Missouri Supreme Court reversed on the ground that the State Tax Commission, not the Circuit Court, should supervise the reassessment process. State ex rel. Cassilly v. Riney, 576 S. W. 2d 325 (1979) (en banc). In 1977, the Cassillys appealed the tax assessed on their home to the County Board of Equalization and received a reduction in assessed value from 3314% to 29%. When their home was again assessed at 3314% in 1978, the Cassillys once more appealed to the Board of Equalization. That appeal was pending at the commencement of this litigation. The Cassillys brought this §1983 action in federal court seeking actual damages in the amount of overassessments from 1975 to 1979, and punitive damages of $75,000 from each respondent. Petitioner Fair Assessment sought actual damages in the amount of expenses incurred in efforts to obtain equitable property assessments for its members. As in all other § 1983 actions, the award of such damages would first require a federal-court declaration that respondents, in administering" }, { "docid": "22319751", "title": "", "text": "of state remedies, and it is to that body of law that federal courts should look in seeking to determine the occasions for the comity spoken of today. Justice Brennan, with whom Justice Marshall, Justice Stevens, and Justice O’Connor join, concurring in the judgment. I agree that the judgment of the District Court dismissing petitioners’ complaint should be affirmed. But I arrive at that conclusion by a different route for I cannot agree that this case, and the jurisdiction of the federal courts over an action for damages brought pursuant to express congressional authority, is to be governed by applying a “principle of comity” grounded solely on this Court’s notion of an appropriate division of responsibility between the federal and state judicial systems. Subject only to constitutional constraints, it is exclusively Congress’ responsibility to determine the jurisdiction of the federal courts. Federal courts have historically acted within their assigned jurisdiction in accordance with established principles respecting the prudent exercise of equitable power. But this practice lends no credence to the authority which the Court asserts today to renounce jurisdiction over an entire class of damages actions brought pursuant to 42 U. S. C. § 1983. I Petitioners J. David Cassilly and Lynn F. Cassilly are owners of real property in St. Louis County, Mo. Petitioner Fair Assessment in Real Estate Association, Inc. (FAIR), is a not-for-profit corporation formed by real estate taxpayers in St. Louis County to promote equitable enforcement of the real property tax laws of the State of Missouri. Respondents are public officials responsible for the execution of the real property tax laws in St. Louis County. On July 2,1979, petitioners filed this action in the United States District Court for the Eastern District of Missouri, pursuant to 42 U. S. C. § 1983, contending that respondents had willfully, intentionally, and systematically deprived them of their rights to due process and equal protection under the Fourteenth Amendment through inequitable property tax assessments. Petitioners alleged that respondents assessed properties with recent improvements at roughly 33!4% of current true market value, and older homes on the average of 2214% of" }, { "docid": "6578408", "title": "", "text": "The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341. The district court also relied on Fair Assessment in Real Estate Association, Inc. v. / McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), in granting summary judgment for the defendants. In McNary plaintiffs sought damages under section 1983 from state officials who had allegedly deprived them of equal protection and due process of law by unequal taxation of real property. Id. at 105-06, 102 S.Ct. at 180-SI. The Court held that the principle of comity bars taxpayers from asserting section 1983 actions against the validity of state tax systems in federal courts. Id. at 116, 102 S.Ct. at 186. Because of its reliance on the principle of comity, the Court did not decide whether the Tax Injunction Act, standing alone, would require such a result. Id. at 107, 102 S.Ct. at 181. We need not decide whether McNary’s comity principle applies to this case because we hold that the Tax Injunction Act itself prohibits plaintiffs’ suit. It is true that the Tax Injunction Act does not bar actions brought by the United States or its instrumentalities to enjoin the enforcement of state tax laws. See Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 466, 17 L.Ed.2d 414 (1966). Plaintiffs seek to open a break in the wall of the Tax Injunction Act by referring to Ninth Circuit decisions indicating that individual Indians can sue to enjoin state tax collection under this federal instrumentality exception. See Moses v. Kinnear, 490 F.2d 21, 24-25 (9th Cir.1973); Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184, 1185-86 (9th Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972). Plaintiffs also note that in Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), the Court held that" }, { "docid": "22319723", "title": "", "text": "need for federal-court restraint when deciding cases that affect such systems. As Justice Field wrote for the Court shortly before the enactment of § 1983: “It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Dows v. Chicago, 11 Wall. 108, 110 (1871). After this Court conclusively decided that federal courts may enjoin state officers from enforcing an unconstitutional state law, Ex parte Young, 209 U. S. 123 (1908), Congress also recognized that the autonomy and fiscal stability of the States survive best when state tax systems are not subject to scrutiny in federal courts. Thus, in 1937 Congress provided: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U. S. C. § 1341 (hereinafter § 1341 or Act). This legislation, and the decisions of this Court which preceded it, reflect the fundamental principle of comity between federal courts and state governments that is essential to “Our Federalism,” particularly in the area of state taxation. See, e. g., Matthews v. Rodgers, 284 U. S. 521 (1932); Singer Sewing Machine Co. v. Benedict, 229 U. S. 481 (1913); Boise Artesian Water Co. v. Boise City, 213 U. S. 276 (1909). Even after enactment of § 1341 it was upon this comity that we relied in holding that federal courts, in exercising the discretion that attends requests for equitable relief, may not even render declaratory judgments as to the constitutionality of state tax laws. Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943). Contrasted with this statute and line of" }, { "docid": "22390941", "title": "", "text": "a property interest”); Central of Georgia R. Co. v. Wright, 207 U. S. 127, 138-142 (1907); Davidson v. New Orleans, 96 U. S. 97, 104-105 (1878). See, e. g., Bob Jones University v. Simon, 416 U. S. 725, 746 (1974); Phillips v. Commissioner, 283 U. S. 589, 595-597 (1931); Dodge v. Osborn, 240 U. S. 118, 122 (1916). See, e. g., California v. Grace Brethren Church, 457 U. S. 393, 410 (1982) (“‘During [prepayment litigation] the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency’”), quoting Perez v. Ledesma, 401 U. S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part); Dows v. City of Chicago, 11 Wall. 108, 110 (1871) (“It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public”). If a distributor fails to pay the tax on time, the Division of Alcoholic Beverages and Tobacco may issue a warrant which, when filed in a local circuit court, directs the county sheriff to levy upon and sell the delinquent taxpayer’s goods and chattels to recover the amount of the unpaid tax plus a penalty of 50%, along with interest of 1% per month and the costs of executing the warrant. Fla. Stat. § 210.14(1) (1989). In addition, the Division may revoke, § 561.29(l)(a), or decline to renew, § 561.24(5), a distributor’s license for failure to abide by Florida law, including the statutory requirement that the Liquor Tax be timely paid. We have long held that, when a tax is paid in order to avoid financial sanctions or a seizure of real or" }, { "docid": "22096172", "title": "", "text": "the notion that Congress was concerned exclusively with this issue. Id. Cf. Comment, The Tax Injunction Act and Suits for Monetary Relief, 46 U.Chi.L.Rev. 736, 743 n. 37 (1979) (if federal courts are now required by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to apply state equity law, foreign corporations contesting state taxes will no longer be treated differently from in-state citizens, and the Tax Injunction Act, if promulgated only to rectify the former inequity, will have been substantially mooted just one year following its enactment). The Supreme Court has repeatedly stated that the principal purpose of the Tax Injunction Act was to curtail federal court interference with state revenue collection procedures. Grace Brethren Church, 457 U.S. at 408-09, 102 S.Ct. at 2507-08; Rose-well, 450 U.S. at 522, 101 S.Ct. at 1233; Tully v. Griffin, Inc., 429 U.S. at 73, 97 S.Ct. at 222. The Court has long recognized the dangers inherent in disrupting the administration of state tax systems, and the corresponding need for federal court restraint when deciding cases that will affect these delicate state operations. See, e.g., Fair Assessment in Real Estate Association, Inc. v. McNary, 454 U.S. 100, 102, 102 S.Ct. 177, 179, 70 L.Ed.2d 271 (1981); Perez v. Ledesma, 401 U.S. 82, 127 n. 17, 91 S.Ct. 674, 698 n. 17, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part). The Court’s reluctance to interfere with the assessment and collection of state taxes was evident long before the enactment of the Tax Injunction Act. See, e.g., Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110, 20 L.Ed. 65 (1871) (“It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government," }, { "docid": "22319752", "title": "", "text": "today to renounce jurisdiction over an entire class of damages actions brought pursuant to 42 U. S. C. § 1983. I Petitioners J. David Cassilly and Lynn F. Cassilly are owners of real property in St. Louis County, Mo. Petitioner Fair Assessment in Real Estate Association, Inc. (FAIR), is a not-for-profit corporation formed by real estate taxpayers in St. Louis County to promote equitable enforcement of the real property tax laws of the State of Missouri. Respondents are public officials responsible for the execution of the real property tax laws in St. Louis County. On July 2,1979, petitioners filed this action in the United States District Court for the Eastern District of Missouri, pursuant to 42 U. S. C. § 1983, contending that respondents had willfully, intentionally, and systematically deprived them of their rights to due process and equal protection under the Fourteenth Amendment through inequitable property tax assessments. Petitioners alleged that respondents assessed properties with recent improvements at roughly 33!4% of current true market value, and older homes on the average of 2214% of current market value. Further they alleged that respondents targeted for reassessment all real property upon which a successful appeal had been prosecuted in the prior year. The Cassillys sought compensatory damages measured by the difference between the taxes which they paid in several years prior to the action, and the amount they contended would have been owing had they been assessed at the average rate. They sought further compensation for expenses they had incurred in their sporadic attempts to remedy the alleged unlawful assessment by resort to the state administrative mechanisms, and substantial punitive damages against each respondent. FAIR sought money damages in the amount of expenses incurred in the course of its efforts to obtain equitable enforcement of the state real property tax law. The District Court dismissed the complaint, holding that the action was barred by the Tax Injunction Act and principles of comity. 478 F. Supp. 1231. The judgment of the District Court was affirmed by an equally divided vote of the Court of Appeals for the Eighth Circuit sitting en banc." }, { "docid": "20410516", "title": "", "text": "to the Supreme Court of Illinois, pursuant to 7th Cir. R. 52 and Ill. S.Ct. R. 20, the question whether the common law of official immunity in Illinois permits a suit to go forward against a governor when the suit is based on his performing a legislative act (not limited to a veto) for a criminal purpose. 2. The Tax Injunction Act forbids federal district courts to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law,” provided that an adequate remedy is available in the state courts. 28 U.S.C. § 1341. The Act has been described by the Supreme Court as “first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.” Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). The Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), had as a practical matter stripped away the states’ sovereign immunity from equitable suits; so were it not for the Tax Injunction Act “ ‘state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency.’ ” Rosewell v. LaSalle Nat’l Bank, supra, 450 U.S. at 527, 101 S.Ct. 1221, quoting Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion); see also Hill v. Kemp, 478 F.3d 1236, 1246-7 (10th Cir.2007). And “it is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the" }, { "docid": "22319728", "title": "", "text": "least federal injunctive challenges to state tax laws. Added to this authority is our decision in Great Lakes Dredge & Dock Co. v. Huffman, supra, holding that declaratory judgments are barred on the basis of comity. On the other hand is the doctrine originating in Monroe v. Pape, supra, that comity does not apply where § 1983 is involved, and that a litigant challenging the constitutionality of any state action may proceed directly to federal court. With this divergence of views in mind, we turn now to the facts of this case, a § 1983 challenge to the administration of state tax laws which implicates both lines of authority. We hold that at least as to such actions, which is all we need decide here, the principle of comity controls. I — » HH Petitioner Fair Assessment in Real Estate Association is a nonprofit corporation formed by taxpayers in St. Louis County (County) to promote equitable enforcement of property tax laws in Missouri. Petitioners J. David and Lynn F. Cassilly own real property with recent improvements in the County. Petitioners filed suit under § 1983 alleging that respondents, the County’s Tax Assessors, Supervisors, and Director of Revenue, and three members of the Missouri State Tax Commission, had deprived them of equal protection and due process of law by unequal taxation of real property. The complaint focuses on two specific practices by respondents. First, petitioners allege that County properties with new improvements are assessed at approximately 3354% of their current market value, while properties without new improvements are assessed at approximately 22% of their current market value. This disparity allegedly results from respondents’ failure to reassess old property on a regular basis, the last general reassessment having occurred in 1960. Second, petitioners allege that property owners who successfully appeal their property assessments, as did the Cassillys in 1977, are specifically targeted for reassessment the next year. Petitioners have previously sought some relief from respondents’ assessments in state proceedings. In 1975, petitioner David Cassilly and others brought an action in which the State Circuit Court ordered respondent Antonio to reassess all real" }, { "docid": "21378920", "title": "", "text": "to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public. Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110, 20 L.Ed. 65 (1871). Accordingly, the Court has articulated a principle of comity that reflects the “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,” requiring federal courts, when the comity principle applies, to deny relief in challenges to state tax laws “in every case where the asserted federal right may be preserved without it.” Fair Assessment, 454 U.S. at 108, 102 S.Ct. 177 (internal quotation and citation omitted). This comity principle found legislative voice in the enactment of the Tax Injunc tion Act, which provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. But while the TIA reflects the antecedent comity principle, the principle itself is broader than the Act and “was not restricted by its passage.” Fair Assessment, 454 U.S. at 110, 102 S.Ct. 177. Indeed, the Supreme Court has continued to apply it in tax cases, see, e.g., id. at 116, 102 S.Ct. 177; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), as well as in other contexts. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (holding that comity principles prohibit federal courts from enjoining pending state criminal prosecutions except in extraordinary circumstances). In Fair Assessment, the Supreme Court addressed the applicability of the comity principle to suits bringing constitutional challenges to state tax laws under 42 U.S.C. § 1983. The" }, { "docid": "22096173", "title": "", "text": "restraint when deciding cases that will affect these delicate state operations. See, e.g., Fair Assessment in Real Estate Association, Inc. v. McNary, 454 U.S. 100, 102, 102 S.Ct. 177, 179, 70 L.Ed.2d 271 (1981); Perez v. Ledesma, 401 U.S. 82, 127 n. 17, 91 S.Ct. 674, 698 n. 17, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part). The Court’s reluctance to interfere with the assessment and collection of state taxes was evident long before the enactment of the Tax Injunction Act. See, e.g., Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110, 20 L.Ed. 65 (1871) (“It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.”). Congress was aware of the historical reluctance of federal courts to meddle in state fiscal operations and was mindful of the need to shield state revenue collection from potentially disruptive federal court interference. See McNary, 454 U.S. at 102-03, 102 S.Ct. at 179; Rosewell, 450 U.S. at 522, 101 S.Ct. at 1233. See also S.Rep. No. 1035, 75th Cong., 1st Sess. 1-2 (1937); H.R.Rep. No. 1503, 75th Cong., 1st Sess. 2 (1937); 81 Cong.Rec. 1415-16 (1937) (remarks of Sen. Bone). The independent functioning of state tax systems, which the Tax Injunction Act sought to safeguard, would be undermined by allowing federal district courts to exercise jurisdiction over actions such as the one brought by CLVT. Given the congressional concern for state fiscal autonomy, we do not believe Congress intended such a result. We hold that CLVT’s opportunity to pursue its preemption challenge to Cal.Rev. & Tax.Code § 18817 as defendant in the proceedings now pending in Los Angeles Superior Court constitutes a plain, speedy, and efficient state" }, { "docid": "22319760", "title": "", "text": "U. S. C. § 1343, and perhaps of 28 U. S. C. § 1331 as well. The question, then, is whether Congress has anywhere contradicted that presumptive grant of judicial author ity. Only one possible source of that contradiction having been suggested, I begin my analysis of the jurisdictional question with the Tax Injunction Act itself. A Title 28 U. S. C. § 1341 provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” If a suit brought under § 1983 for damages is to come within the prohibition of the Act, it would seem necessary to demonstrate that such a suit is one to “enjoin, suspend or restrain the assessment, levy or collection” of a state tax. Respondents argue that the terms “suspend” and “restrain” are words of ordinary usage, and that they are sufficiently broad to bring the present suit for damages, which respondents assert will “chill” state tax collection, within the proscriptions of the Act. In my view, the legislative history of the Act, and the case law background against which it was written, directly refute the suggestion that Congress intended those words to have the encompassing meaning respondents suggest. B The federal courts have for most of their history been scrupulous in the exercise of their equitable powers to avoid unnecessary interference with the administration of state taxation. In Dows v. Chicago, 11 Wall. 108 (1871), Justice Field noted: “It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Id., at 110. Thus it was early held that the" }, { "docid": "13426130", "title": "", "text": "in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 110, 102 S.Ct. 177, 183, 70 L.Ed.2d 271 (1981) (legislative history of Act does not suggest congressional intent to limit federal court deference to actions enumerated in Act). This court has stated that “even if the facts of a state tax matter do not technically fit within the language of Section 1341, the federal courts should in their discretion restrain from interfering in the state proceedings.” Huber Pontiac, Inc. v. Whitler, 585 F.2d 817, 820 (7th Cir.1978). The purpose of the Act is to limit federal court jurisdiction over the collection of local taxes. Rosewell v. LaSalle National Bank, 450 U.S. at 522, 101 S.Ct. at 1233-1234. Federal courts long have been reluctant to interfere with a state’s system of raising revenues, for [i]t is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of the government, and thereby cause serious detriment to the public. Dows v. City of Chicago, 78 U.S. (11 Wall) 108, 110, 20 L.Ed. 65 (1870). Congress, in passing the Act, was motivated largely by concerns of comity. Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. at 110, 102 S.Ct. at 183. Similarly, federal courts have considered the principle of com ity in exercising their discretion in actions for declaratory relief regarding state taxes. See, e.g., Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). The principle of comity predated the Act and was not restricted by the Act’s passage. Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. at 100, 102 S.Ct. at 177. In light of these policies, federal courts have expressed a strong preference that issues of state taxation be" }, { "docid": "18060769", "title": "", "text": "Monell, drain that important decision of its meaning. 436 U.S. at 701, 98 S.Ct. 2018. The Board is not protected by quasi-judicial absolute immunity. C. Comity 1. The General Rule of Abstention There is, however, another narrower reason that these suits cannot proceed against -the Board itself. . In Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), the Supreme Court relied on principles of comity to erect a high barrier to section 1983 damages suits against state and local tax systems such as this. In Fair Assessment, taxpayers sued county and -state tax officials claiming that certain taxing practices deprived them of equal protection and due process. The Court considered whether such a suit could be entertained by a federal court at all, acknowledging the tension between section 1983, which provides broadly for suits under federal law against state and local governments and employees, and the Tax Injunction Act, 28 U.S.C. § 1341, which forbids federal courts from enjoining or interfering with the collection of state taxes. The Court ultimately concluded that the principles of comity and federalism underlying the Tax Injunction Act should apply, and the Court held that “taxpayers are barred by the principle of comity from asserting § 1983 actions against the validity of state tax systems in federal courts.” Fair Assessment, 454 U.S. at 116, 102 S.Ct. 177. Instead, taxpayers alleging that their federal rights have been violated by state or local tax practices must first seek relief through the available state remedies, as long as those remedies are “plain, adequate, and complete.” Id. Like the Tax Injunction Act, this comity doctrine “serves to minimize the frictions inherent in a federal system of government” and embodies longstanding “federal reluctance to interfere with state taxation.” Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 725 (7th Cir.2011) (en banc); see also National Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 589-90, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995) (extending Fair Assessment to hold that plaintiffs cannot seek declaratory or injunctive relief" }, { "docid": "20410517", "title": "", "text": "from equitable suits; so were it not for the Tax Injunction Act “ ‘state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency.’ ” Rosewell v. LaSalle Nat’l Bank, supra, 450 U.S. at 527, 101 S.Ct. 1221, quoting Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion); see also Hill v. Kemp, 478 F.3d 1236, 1246-7 (10th Cir.2007). And “it is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 109-10, 20 L.Ed. 65 (1871). Of course enjoining a particular tax is unlikely to “derange the operations of government.” That was a bit of 1871-style hyperbole. But the Tax Injunction Act is not limited to “deranging” taxes, and the majority opinion if it stands may make the application of the Act turn on judges’ guesses concerning the importance of a particular tax to the operations of state government. My colleagues may have difficulty taking the question of the effect of the Tax Injunction Act in this case seriously because of the corrupt origin of the casino tax and a certain risible element in the idea of taxing one gambling business to subsidize another (the “derangement” question). But the corrupt origin of the tax is irrelevant. The Act would be thwarted if a taxpayer could get a federal court to enjoin a tax case just" } ]

[ { "docid": "22067137", "title": "", "text": "entered into a Loan and Capital Grant Contract (“the Contract”) with the Housing and Home Finance Agency (now the Department of Housing and Urban Development, “HUD”) under the Housing Acts of 1949 and 1954 (“the Act”). 63 Stat. 413 (1949), as amended, 42 U.S. C. §§ 1441-1460 (Supp.1967); and 68 Stat. 590 (1954), as amended, 42 U.S.C. §§ 1446-1460 (Supp.1967). / Pursuant to section 105(c) of the Act, 42 U.S.C. § 1455(c), the Contract_ re-, quired that the Agency provide, in the urban renewal area or in other areas not generally less desirable in regard to public utilities and public and commercial facilities, decent, safe and sanitary dwellings within the financial .means of the families displaced by the project, equal in number to the number <?f displaced families, available to them, and reasonably accessible to their places of employment. The plaintiffs are the Norwalk, Connecticut chapter of the Congress of Racial Equality, two nonprofit tenants’ associations comprised of low-income Negroes and Puerto Ricans, and eight individuals representing four classes of low-income Negroes and Puerto Ricans who were allegedly subjected to discrimination in connection with the project. They brought this class action in June 1967 against the Norwalk Housing Authority, its Executive Director and its members; the Norwalk Redevelopment Agency, its Administrator and its members; the City of Norwalk, its mayor and city clerk; Towne House Gardens, Inc.; David Katz & Sons, Inc.; Charles J. Horan, Assistant Regional Administrator for Renewal Assistance of the United States Department of Housing and Urban Development; and Robert C. Weaver, Secretary of the United States Department of Housing and Urban Development. Since the action was dismissed, the allegations of the complaint, summarized in the following paragraphs, must be accepted as true. The Agency made its redevelopment plans without providing for the construction of low-rent housing on the ground that the existing low-rent public housing in the City, with its predicted turnover, would adequately meet the relocation needs of the low-income Negro and Puer-to Rican families living within the project area. Prior to the time when it entered into the Contract, however, the Agency knew: (1)" } ]

[ { "docid": "23479531", "title": "", "text": "Justice Rehnquist delivered the opinion of the Court. Respondent Chesapeake & Potomac Telephone Co. of Virginia (C&P) was required to relocate some of its telephone transmission facilities by reason of a street realignment. It sought compensation from petitioner Norfolk Redevelopment and Housing Authority (NRHA), the local government agency responsible for the urban renewal plan which caused the street realignment. C&P claimed that it was a “displaced person” as that term is defined in the Uniform Relocation Act, passed by Congress in 1970. We hold that C&P is not a “displaced person” within the meaning of the Act. The Relocation Act provides that any person “displaced” from his home or place of business by a federal or federally funded project is entitled to relocation benefits, including reimbursement for the “actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property.” 42 U. S. C. § 4622(a)(1). The Act by its terms binds only federal agencies; but a federal agency may not provide funds for state projects involving condemnation without first receiving “satisfactory assurances” that displaced persons will be given such relocation payments and assistance “as are required to be provided by a Federal agency” under the Act. 42 U. S. C. § 4630. In order to qualify for federal funds, therefore, many States, such as Virginia, see Va. Code §25-235 et seq. (1980 and Supp. 1983), have adopted legislation modeled on the Relocation Act. NRHA is a political subdivision of the State of Virginia, located in the city of Norfolk. During the 1960’s, NRHA began four redevelopment projects in Norfolk for which federal funds were provided under the urban renewal program contained in Title I of the Housing Act of 1949, 63 Stat. 414, 42 U. S. C. § 1450 et seq. (1976 ed. and Supp. V). The development plans approved by the city and carried out by NRHA required the reshaping of certain land parcels, which in turn required a realignment of street patterns. After acquiring the land on both sides of the streets in question, NRHA successfully petitioned the city to close off those streets" }, { "docid": "15448423", "title": "", "text": "by injury proximately caused by the defendant. Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1174 (5th Cir. 1976) (footnotes omitted). . Appellant cites City of Seattle v. Stirrat, 55 Wash. 560, 104 P. 834, 836-37 (1909), for the proposition that the city had standing to sue as a trustee or agent for its specially assessed property owners and that it has a proprietary interest because it acted in its proprietary capacity in carrying out the improvements paid for by the special assessments. in Stirrat, the city sued a contractor for money due in connection with work on local improvements. The contractor defended that it had paid the money to the city comptroller, who had absconded with it. The court held that the comptroller’s act was ultra vires, but that the city, as trustee of the assessment fund, was estopped from denying the comptroller’s authority. No one asserts that Rohnert Park may not similarly sue contractors with whom it does business on behalf of its specially assessed residents. Here, however, it attempts to sue a local redevelopment agency, a federal agency, and a contractor with whom it and its residents have no contractual relationship. Stirrat provides no support. . In Cedar-Riverside Associates, Inc. v. United States, 459 F.Supp. 1290, 1294 (D.Minn.1978), the district court held that there was no implied private right of action which would allow private developers to sue a local redevelopment agency, the city of Minneapolis, the Secretary of HUD, and others for violation of the Housing Act. The court followed M. B. Guran, in reasoning that plaintiffs, who did not reside within the urban renewal project and were not parties to contracts with the Agency, were not among those for whose “especial benefit the statute was enacted.” . In Gibson & Perin Co., plaintiff businesses who were not located within an urban renewal project sued the city and the local agency, alleging deficiencies in design of a parking garage within the project. They did not sue under the Housing Act, but instead charged the defendants with violation of their civil rights, conspiracy, fraud, violation of" }, { "docid": "17054493", "title": "", "text": "A suit is against the United States, the argument goes, only if recovery would come from general Treasury funds. This position finds some support in the case law, beginning with suits against the Department of Housing and Urban Development but now reaching the FDIC and other agencies. See, e.g., Licata v. United States Postal Service, 33 F.3d 259, 262 (3d Cir.1994) (claim against Postal Service in its own name is not a claim against the United States); Far West Federal Bank v. Director, Office of Thrift Supervision, 930 F.2d 883, 890 (Fed.Cir.1991) (same with respect to FDIC); Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55 (2d Cir.1985)(same with respect to HUD); Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644, 646 (5th Cir.1980) (same with respect to HUD). Cf., e.g., Portsmouth, 706 F.2d at 473 (suit against HUD is against United States because HUD monies are originally Treasury funds); Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1131 (9th Cir.1979) (same because no 'separate funds identified). If we followed the analysis of these decisions, the FDIC could make the argument that this suit seeks funds under FDIC control and hence is not against the United States, pointing perhaps to 12 U.S.C. § 1821a(d), which limits some judgments to the assets of the FSLIC Resolution Fund. See Far West, 930 F.2d at 889-90 (finding funds within FDIC’s control and rejecting Government argument of exclusive Claims Court jurisdiction). But making the argument would not even be necessary. Simply accepting the terms of the debate — the no'tion that suits against the United States and suits that may only generate judgments against specific agency funds are mutually exclusive categories — would spell victory for the FDIC. If the suit were against the United States (and not the FDIC), sovereign immunity would bar the district court from hearing it because the sue-or-be-sued clause does not waive the immunity of the United States and no other waiver allows district court jurisdiction; recast as a Tucker Act suit, this case would have to be brought in the Court" }, { "docid": "18845574", "title": "", "text": "under §§ 106(a) and (b) for Lomas’s proof of claim to constitute a consent by HUD to suit. Moreover, if the court were to read the adversary complaint as containing a claim for damages against HUD, that agency's sovereign immunity would be waived under 12 U.S.C. § 1702. Section 1702 of the NHA provides as follows: ... The Secretary [of Housing and Urban Development] shall, in carrying out the provisions of this subchapter and subchapters II, III, V, VI, VII, VIII, IX-A, IX-B, and X of this chapter, be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal. 12 U.S.C. § 1702 (emphasis added). The Supreme Court has held that § 1702 permits suits to be brought not only against HUD’s Secretary but also against the agency itself. Federal Hous. Admin. v. Burr, 309 U.S. 242, 249-50, 60 S.Ct. 488, 492, 84 L.Ed. 724, 731 (1940); see also Loeffler v. Frank, 486 U.S. 549, 562-63 n. 8, 108 S.Ct. 1965, 1973 n. 8, 100 L.Ed.2d 549, 562 n. 8 (1988). Such suits are confined to those in which HUD acts to \"carry out” the provisions of the enumerated subchapters and in which the plaintiff’s claim is of the type for which a private enterprise doing business in the commercial world would be liable. See Burr, 309 U.S. at 245, 60 S.Ct. at 489, 84 L.Ed. at 729; Armor Elevator Co. v. Phoenix Urban Corp., 655 F.2d 19, 21 (1st Cir.1981); United States v. Yonkers Bd. of Educ., 594 F.Supp. 466, 471-72 (S.D.N.Y.1984) (distinguishing civil rights actions against HUD, which arise out of the agency’s sovereign duties, from actions that involve HUD’s commercial relationships). Thus, HUD has waived its sovereign immunity under § 1702 in damage suits in which liability is grounded on HUD’s role as mortgagee under the Mortgage Assignment Program. See, e.g., Armor Elevator Co., 655 F.2d at 21 (HUD can be sued for damages where it assumes the role of mortgagee); Griffin v. Harris, 480 F.Supp. 1072, 1075-76 (E.D.Pa.1979) (mortgage assistance and mortgage assignment programs of the NHA" }, { "docid": "15448414", "title": "", "text": "action would lead to numerous suits against the local authority, the construction of urban projects would be delayed and the underlying purposes of the legislative scheme would be thwarted. Cf. Gibson & Perin Co. v. Cincinnati, 480 F.2d 936, 942 (6th Cir.), cert. denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973). Id. at 205. Finally, it found that challenges to the “alleged arbitrary action of a state government” were “traditionally relegated to state law.” Id. Much of the court’s reasoning applies here. Given the purpose of the Housing Act, it is difficult to conclude that an adjacent city which owns no land within the redevelopment project is among the class for whose especial benefit the statute was enacted. Although there is statutory language which requires that urban renewal land be sold at fair value, nothing in the statute or the regulations indicates legislative intent to allow private parties to sue if the land is sold at less than fair value. HUD must approve the appraisals when urban renewal property is sold. The regulatory scheme provides for HUD oversight, not private action, to enforce agency compliance with the fair price provisions. Cf. Berry v. Housing and Home Finance Agency, 340 F.2d 939, 940 (2d Cir. 1965); Johnson v. Redevelopment Agency of the City of Oakland, Cal., 317 F.2d 872, 874 (9th Cir. 1963). Here, as in M. B. Guran, the existence of a private cause of action would thwart the underlying purposes of the legislative scheme by encouraging litigation which would delay the construction of urban renewal projects. Finally, Rohnert Park’s claim against the Agency is one “relegated to state law.” California provides for a validating proceeding in which interested parties may assert challenges to actions of urban renewal agencies. Cal. Health & Safety Code § 33501 (West 1973). The precise question of the validity of the Agency’s determination of fair reuse value and its compliance with HUD regulations was decided adverse- ly to Rohnert Park’s position in the state validating proceedings prosecuted simultaneously with this action. Codding Enterprises v. Urban Renewal Agency of Santa Rosa, Nos. 79465," }, { "docid": "15448424", "title": "", "text": "a local redevelopment agency, a federal agency, and a contractor with whom it and its residents have no contractual relationship. Stirrat provides no support. . In Cedar-Riverside Associates, Inc. v. United States, 459 F.Supp. 1290, 1294 (D.Minn.1978), the district court held that there was no implied private right of action which would allow private developers to sue a local redevelopment agency, the city of Minneapolis, the Secretary of HUD, and others for violation of the Housing Act. The court followed M. B. Guran, in reasoning that plaintiffs, who did not reside within the urban renewal project and were not parties to contracts with the Agency, were not among those for whose “especial benefit the statute was enacted.” . In Gibson & Perin Co., plaintiff businesses who were not located within an urban renewal project sued the city and the local agency, alleging deficiencies in design of a parking garage within the project. They did not sue under the Housing Act, but instead charged the defendants with violation of their civil rights, conspiracy, fraud, violation of federal and state antitrust laws, and with everything else that they could think of including the charge of depriving them of due process of law and the equal protection of the laws. 480 F.2d at 939. Although this was not a Housing Act case, the policy considerations addressed by the court are relevant here: In our case no review was provided by statute of acts of agencies and private developers of Urban Renewal projects. We think it was because review would frustrate implementation of Urban Renewal plans and would discourage cities and redevelopers who might not want to become embroiled in protracted litigation, particularly after they had expended their money to participate in the project. Id. at 942. . The state court reached the following conclusions of law: 3. The Agency’s finding that the Hahn Contract was fair and equitable for the land according to its value for reuse, and that the consideration from Hahn was not less than its fair value for uses in accordance with the redevelopment plan, is supported by substantial evidence" }, { "docid": "22153317", "title": "", "text": "effect when “red line” approval for a change to a 221(d) (3) project was given in 1967 and when final approval of mortgage insurance and rent supplement assistance was given in 1968. The regulation marks a recognition by the agency charged with enforcement that the 1964 Act must be read in pari materia with the other statutes dealing with housing and urban development. In particular in adopting an “effects” test rather than an “intention” test for reviewing local actions respecting location of types of housing, the regulation recognizes that the 1964 Act gave refined meaning to the requirement in the Housing Act of 1949 of a “workable program for community improvement.” 42 U.S.C. § 1451(c). While no regulations have been issued under that part of the Civil Rights Act of 1968 applicable to the administration of HUD’s own programs, 42 U.S.C. § 3608(d) (5), that statute, too, must be read as a refinement of the “workable program for community improvement” requirement. The issue then, is whether, when HUD approved a change from an urban renewal plan- which contemplated substantial owner occupied dwellings to a plan which contemplated 221(d) (3) dwellings with rent supplement assistance, the procedures which it followed were in adequate compliance with the 1949 Housing Act and the 1964 and 1968 Civil Rights Acts. The defendants challenge the standing of these plaintiffs to raise that issue. The district court held that they had the requisite standing. We agree. The question of standing to challenge agency actions in the administration of the Federal Housing Act has arisen heretofore in the context of an agency’s duty to require adequate relocation housing for minority group residents removed by virtue of site acquisition. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Powelton Civic Home Owners Ass’n v. HUD, 284 F.Supp. 809 (E.D.Pa.1968); Western Addition Community Organization v. Weaver, 294 F.Supp. 433, 441 (N.D.Cal. 1968). Those cases recognized the standing to sue of members of the potentially displaced community. By virtue of the specific statutory provisions prohibiting grants or loans to a LPA in the absence of an adequate" }, { "docid": "8194964", "title": "", "text": "outset. First, inasmuch as matters outside of plaintiffs’ pleadings have been presented to and not excluded by the court, the motion to dismiss by defendant City of New York will be treated as one for summary judgment as prescribed by Rule 12(b) of the Federal Rules of Civil Procedure. Secondly, defendant City’s contention that plaintiffs have no standing to raise the issues presented herein must be summarily rejected. Plaintiffs do not challenge the propriety or legality of the project itself, or the condemnation of the land in the project site. They merely raise a statutory claim of inadequate relocation under the Act and challenge HUD’s continued funding of the project in the absence of compliance with the mandates of the federal statute. That displaced residents have standing to sue to obtain judicial review for the protection of interests specifically recognized in the Housing Act was decided beyond cavil by the Second Circuit in the leading case of Norwalk CORE v. Norwalk Redevelopment Agency, supra. There the court stated, 395 F.2d at 932-933: “Since the section [42 U.S.C. § 1455(c)] requires provision for the relocation of displaced families, it can hardly be thought that displaced families such as plaintiffs, do not have the required personal stake in the outcome of litigation where a violation of the section is claimed. If anybody can raise this claim, it is these plaintiffs. The question we must answer is whether actions taken by HUD and local public agencies under section 105(c) are ever subject to judicial review. “The proposition is now firmly established that ‘judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.’ (citations omitted). We have concluded that plaintiffs are aggrieved, and that there is no persuasive reason to believe that Congress intended to cut off judicial review.” See also Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968); Powelton Civic Home Owners Ass’n v. Department of Housing and Urban Development, 284 F.Supp. 809, 825 (E.D.Pa.1968) (“We have concluded that the relocation" }, { "docid": "15448415", "title": "", "text": "regulatory scheme provides for HUD oversight, not private action, to enforce agency compliance with the fair price provisions. Cf. Berry v. Housing and Home Finance Agency, 340 F.2d 939, 940 (2d Cir. 1965); Johnson v. Redevelopment Agency of the City of Oakland, Cal., 317 F.2d 872, 874 (9th Cir. 1963). Here, as in M. B. Guran, the existence of a private cause of action would thwart the underlying purposes of the legislative scheme by encouraging litigation which would delay the construction of urban renewal projects. Finally, Rohnert Park’s claim against the Agency is one “relegated to state law.” California provides for a validating proceeding in which interested parties may assert challenges to actions of urban renewal agencies. Cal. Health & Safety Code § 33501 (West 1973). The precise question of the validity of the Agency’s determination of fair reuse value and its compliance with HUD regulations was decided adverse- ly to Rohnert Park’s position in the state validating proceedings prosecuted simultaneously with this action. Codding Enterprises v. Urban Renewal Agency of Santa Rosa, Nos. 79465, 79762, 81799, 84237 (Sono-ma County Superior Court, unpublished opinion, filed Dec. 7, 1976), rev’d and remanded in part on other grounds, 1 Civil 41188 (Ct.App., unpublished opinion filed Apr. 26, 1978), hearing denied, (Sup.Ct., June 28, 1978). All four Cort criteria militate against implying a cause of action to sue the Agency for violating the Housing Act. Although the fourth criterion does not support a similar conclusion as to HUD, we hold nevertheless that Rohnert Park has no private right of action to sue HUD under the act. It has an adequate remedy against HUD under the Administrative Procedure Act, 5 U.S.C. § 702 (1976), if it can meet the standing requirements of that section. The Administrative Procedure Act. The Administrative Procedure Act provides: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702 (1976). We note at the outset that this provision does not create a right of action against" }, { "docid": "1476675", "title": "", "text": "(B) to provide * * * assistance to aid in relocation and otherwise minimize the hardships of displacement * * * and (C) to assure the necessary coordination of relocation activities with other project activities * * PRHA submitted and HUD approved a relocation plan providing in part that PRHA would “[ajdvise and assist commercial tenants in relocation matters and insure the maximum opportunity for their satisfactory relocation.” PRHA’s obligation was not discharged by writing this broad commitment into its plan. It must also satisfactorily perform its undertaking, for without proper execution of the plan, the statute will fail to achieve its purpose. HUD has a duty under § 1455(c) (3) and 1456(h) to see that PRHA properly executes its relocation plan. Crockin is entitled to judicial review of HUD’s action in initially approving PRHA’s plan and also HUD’s administrative review under § 1455(c) (3). Crockin also has a cause of action against PRHA, which, as a state-chartered corporation, is a separate entity with power to sue and be sued in its own right. Congress enacted § 1455(c) (1) so that local redevelopment authorities would be required to provide effective relocation assistance to those displaced by urban renewal. Crockin, therefore, should have an opportunity to establish that PRHA has failed to comply with both the regulations prescribed by this statute and the plan it devised to discharge its statutory obligation. The legality of the relocation program should be determined in the light of Crockin’s allegations that the only feasible assistance for relocation of the carpet department is to make parcel 9-A available; that PRHA recognized Crockin needed this assistance and had the ability to grant it; that the assistance was compatible with the use for which 9-A was designated in the urban renewal plan; and the use PRHA now proposes for it is incompatible. IV. Since PRHA is a public corporation chartered by the state, its transaction with Crockin constituted state action affording Crockin the protection of the 14th Amendment. Crockin advances a two-pronged constitutional attack. The first is a relatively simple charge that PRHA has denied it the equal" }, { "docid": "15448411", "title": "", "text": "(APA). We hold that the Housing Act does not create a private right of action to sue for violation of its provisions and that Rohnert Park lacks standing under the APA to challenge either HUD’s or the Agency’s actions. Private Right of Action. The Housing Act defines an “urban renewal project” as undertakings and activities of a local public agency in an urban renewal area for the elimination and for the prevention of the development or spread of slums and blight, 42 U.S.C. § 1460(c) (1976). Those undertakings include “disposition of any property acquired in the urban renewal area . at its fair value for uses in accordance with the urban renewal plan . . . .” Id. at § 1460(c)(4). HUD’s Urban Renewal Handbook 7214.1, ch. 3 (Rev.1974), outlines procedures for establishing “fair reuse value.” Because the Housing Act does not expressly provide that private persons may sue to enforce its terms, Rohnert Park may not sue under the act unless there is an implied right of action for such suits. [I]t is only if such a right of action exists that we need consider whether the [appellant] had standing to bring the action National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 456, 94 S.Ct. 690, 692, 38 L.Ed.2d 646 (1974). In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court set forth four factors to be considered in determining whether a private right of action should be implied. They are (1) whether the plaintiff is “one of the class for whose especial benefit the statute was enacted,” 422 U.S. at 78, 95 S.Ct. at 2088 (citations omitted); (2) whether there is any indication of legislative intent to create a federal right in favor of the plaintiff; (3) whether implication of such a remedy is consistent with the legislative scheme; and (4) whether the cause of action is one “traditionally relegated to state law.” Id. (citations omitted). Cf. Keaukaha-Panaewa Community v. Hawaiian Homes Com’n, 588 F.2d 1216, 1222 (9th Cir. 1978), petition for cert. filed, 47 U.S.L.W. 3684" }, { "docid": "23183754", "title": "", "text": "the Housing Authority, and that as guarantors of the Housing Authority’s performance are jointly liable with the Housing Authority for any breach. The district court found that under the Tucker Act, 28 U.S.C. §§ 1346(a) and 1491(a)(1), the exclusive forum for this action is the Claims Court and dismissed the action against the United States and HUD for lack of jurisdiction. We agree. In order for the district court to hear this action, there must be both a waiver of sovereign immunity and a grant of jurisdiction to the district court. Marcus Garvey Square, Inc. v. Winston Burnett Construction Co. of California, Inc., 595 F.2d 1126, 1131 (9th Cir.1979). The Tucker Act is a general waiver of the sovereign immunity of the United States and its agencies for non-tort actions or suits based upon an express or implied contract with the United States seeking money damages, but conditions that consent to suit by granting exclusive jurisdiction over actions claiming more than $10,000 in damages to the Claims Court. See 28 U.S.C. §§ 1346(a)(2) and 1491(a)(1); Falls Riverway Realty, Inc. v. City of Niagara Falls, N.Y., 754 F.2d 49, 54 (2d Cir.1985); A.L. Rowan & Son, General Contractors, Inc. v. Department of Housing and Urban Development, 611 F.2d 997, 999 (5th Cir.1980). Because the sole relief sought by Weeks from, the United States is money damages in excess of $10,000 on a contract action, exclusive jurisdiction is vested in the Claims Court. Polos v. United States, 556 F.2d 903, 905 (8th Cir.1977). See State of Minnesota by Noot v. Heckler, 718 F.2d 852, 857-58 (8th Cir.1983) (vacating district court’s award of money damages because jurisdiction vested exclusively in Claims Court); Sellers v. Brown, 633 F.2d 106, 107-08 (8th Cir.1980) (affirming district court’s dismissal for lack of jurisdiction because plaintiff’s claim in essence sought money judgment against government). Weeks contends that it does not rely on the waiver of sovereign immunity contained in the Tucker Act but looks instead to the waiver of HUD’s immunity to suit set out in 42 U.S.C. § 1404(a), and that it should therefore not be limited" }, { "docid": "22305871", "title": "", "text": "PIERCE, Circuit Judge: The City of Niagara Falls, New York (“City”), and the Niagara Falls Urban Renewal Agency (“URA”), third-party plaintiffs, appeal from an order entered June 6, 1983, in the United States District Court for the Western District of New York, John T. Curtin, Chief Judge. The district court dismissed the third-party complaint, which had pleaded four causes of action, on the grounds that there was no valid waiver of sovereign immunity with respect to the first cause of action, the court lacked subject matter jurisdiction over the second cause of action, and the third cause of action failed to state a claim upon which relief could be granted. The fourth cause of action was not addressed by the court; it is not raised on appeal and we will not address it here. We reverse and remand as to the three causes of action. Background Falls Riverway Realty, Inc. and Forest City Development Corp., the plaintiffs in the principal action, own real property located in the City of Niagara Falls. They sued the City and URA in the New York State Supreme Court, alleging that certain actions of the defendants taken pursuant to an Urban Renewal Plan (“Plan”) deprived the plaintiffs of reasonable and suitable access to this property and claiming damages therefor. The City and URA thereafter filed a third-party complaint in the New York State Supreme Court against the Secretary and other named officials of the United States Department of Housing and Urban Development (hereinafter collectively referred to as “HUD”), alleging that if the City and URA were found liable to the plaintiffs, HUD would be liable to the City and URA. HUD invoked title 28, section 1442 of the United States Code and removed the entire case to the United States District Court for the Western District of New York. The City and URA, in their third-party complaint, alleged as a first cause of action that the URA entered into several contracts with HUD, pursuant to a program of federal financial assistance for slum clearance and urban renewal. They further alleged that all actions complained of" }, { "docid": "21959787", "title": "", "text": "about to be displaced by a redevelopment agency and its further intent to impose upon the Secretary an added positive duty of requiring satisfactory assurance that the contractual obligations of the local agency concerning the availability of relocation housing, within the meaning of Section 1455(c) (1), are actually being complied with by the local agency. Further, since 1963 the Supreme Court has significantly broadened the concept of standing to sue. For example, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) the Supreme Court, modifying the long standing rule of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), has recognized the standing of persons, whose interest is only that of taxpayer, to sue when constitutionality of federal action is involved. In the present case the standing of plaintiffs is not dependent on mere taxpayer status. It arises out of a manifest intent of the Congress to protect the interests of a particular class — individuals and families about to be displaced by the urban renewal project. In the recent case of Hardin v. Kentucky Utilities Co., 390 U.S. 1, 5-7, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968) the Supreme Court, dealing with the Tennessee Valley Authority Act, has, made clear that, when a statute clearly reflects a Congressional purpose to protect the interests of a particular class, persons within that class have standing to require compliance with the statute. The Court rejected the holding of Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (1955), relied on by defendants in the present case. Recent amendments to the Act and the broadening trend of the Supreme Court are reflected in later federal eases dealing with standing to sue under the Housing Act. In Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), a class action brought by residents of an urban renewal area (about to be displaced by the renewal project) against both the local and the federal agencies to restrain demolition of residences until the residents could be relocated in safe, decent" }, { "docid": "17054492", "title": "", "text": "court of law or equity, State or Federal.” 12 U.S.C. § 1819(a) Fourth; see also United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992) (such clauses are broad waivers of immunity). And Auction Company finds subject matter jurisdiction in FIRREA’s “deemer” clause, 12 U.S.C. § 1819(b)(2)(A), which provides (with an exception not relevant here) that all actions to which the FDIC is a party “shall be deemed to arise under the laws of the United States.” District courts can thus hear these actions as part of the “arising under” jurisdiction granted by 28 U.S.C. § 1331. See Osborn v. Bank of the United States, 22 U.S. (9 Wheat) 738, 6 L.Ed. 204 (1824); Williams v. Federal Land Bank of Jackson, 954 F.2d 774, 776 (D.C.Cir.1992). The FDIC’s argument, given these propositions, would be that when an agency is sued in its own name pursuant to a sue-or-be-sued clause, recovery is limited to funds within the agency’s control, and the suit is not against the United States. A suit is against the United States, the argument goes, only if recovery would come from general Treasury funds. This position finds some support in the case law, beginning with suits against the Department of Housing and Urban Development but now reaching the FDIC and other agencies. See, e.g., Licata v. United States Postal Service, 33 F.3d 259, 262 (3d Cir.1994) (claim against Postal Service in its own name is not a claim against the United States); Far West Federal Bank v. Director, Office of Thrift Supervision, 930 F.2d 883, 890 (Fed.Cir.1991) (same with respect to FDIC); Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55 (2d Cir.1985)(same with respect to HUD); Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644, 646 (5th Cir.1980) (same with respect to HUD). Cf., e.g., Portsmouth, 706 F.2d at 473 (suit against HUD is against United States because HUD monies are originally Treasury funds); Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1131 (9th Cir.1979) (same because no 'separate funds identified). If" }, { "docid": "22067185", "title": "", "text": "provided, in the urban renewal area or in other areas not generally less desirable in regard to public utilties and public and commercial facilities and at rents or prices within the financial means of the individuals and families displaced from the urban renewal area, decent, safe, and sanitary dwellings equal in number to the number of and available to such displaced individuals and families and reasonably accessible to their places of employment. * * * ” The section’s coverage was extended to displaced individuals by the Housing and Urban Development Act of 1965, and that extension does not apply to this project. See section 305(c) of that Act, 79 Stat. 476 (1965). So far as now appears, the plaintiffs all represent displaced families. . See also Cappadora v. Celebrezze, 356 F.2d 1, 6 (2 Cir. 1966); 4 Davis, Administrative Law Treatise § 28.21 (1965 Supp.) ; Jaffe, Judicial Control of Administrative Action, 372-374 (1965). As the Supreme Court said in Abbott Laboratories v. Gardner, the Administrative Procedure Act, 5 U.S.C. §§ 701-706, under which plaintiffs here seek judicial review, reinforced the early cases in which judicial review of administrative action was entertained. See 387 U.S. at 140, 87 S.Ct. 1507. 5 U.S.C. § 701 provides that “This chapter applies * * * except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” There is no need for us to consider whether these exceptions apply only where Congress’ intent in the matter is explicit, for we discern no Congressional intent, implied or explicit, to preclude review or to commit determinations under section 105(c) to HUD’s absolute discretion. See Davis, “Judicial Control of Administrative Action”: A Review, 66 Colum.L.Rev. 635, 651-52 (1966). The Supreme Court, by framing the test as “persuasive reason to believe that such was the purpose of Congress,” appears to say that the intent may be implied. 387 U.S. at 140, 87 S.Ct. at 151. . The Administrative Procedure Act, 5 U.S.C. § 702, provides that “A person suffering legal wrong because of agency action, or adversely affected" }, { "docid": "15448410", "title": "", "text": "afford relief. Warth v. Seldin, 422 U.S. at 507, 95 S.Ct. at 2209-10. Given the trade area, as Rohnert Park defined it, and the limited demand for new retail shopping center space in the area, any competition, whether or not it violates the antitrust laws, might have similar adverse effects on the city’s commercial development. Furthermore, Rohnert Park has not made a sufficient showing that, absent the alleged antitrust violations by appellees, its commercial area would have been selected as a site for shopping center development. As in Warth, the question whether these appellants would have benefited but for appellees’ actions is entirely speculative. They have not demonstrated potential injury which confers standing to sue under § 16. THE HOUSING ACT Rohnert Park alleges that the Agency violated 42 U.S.C. § 1460(c)(4) (1976) and HUD regulations by selling the shopping center land to Hahn at less than fair market value, and that HUD violated the statute and regulations by approving the sale. The city asserts standing under the Housing Act and the Administrative Procedure Act (APA). We hold that the Housing Act does not create a private right of action to sue for violation of its provisions and that Rohnert Park lacks standing under the APA to challenge either HUD’s or the Agency’s actions. Private Right of Action. The Housing Act defines an “urban renewal project” as undertakings and activities of a local public agency in an urban renewal area for the elimination and for the prevention of the development or spread of slums and blight, 42 U.S.C. § 1460(c) (1976). Those undertakings include “disposition of any property acquired in the urban renewal area . at its fair value for uses in accordance with the urban renewal plan . . . .” Id. at § 1460(c)(4). HUD’s Urban Renewal Handbook 7214.1, ch. 3 (Rev.1974), outlines procedures for establishing “fair reuse value.” Because the Housing Act does not expressly provide that private persons may sue to enforce its terms, Rohnert Park may not sue under the act unless there is an implied right of action for such suits. [I]t is only" }, { "docid": "22067184", "title": "", "text": ". See, e. g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92, L.Ed. 1161 (1947); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). . Offerman v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Springfield School Committee v. Barksdale, 348 F.2d 261, 266 (1 Cir. 1965). . United States v. Jefferson County Board of Education, 380 F.2d 385, 386 (5 Cir., en banc, 1967), affirming 372 F.2d 836 (5 Cir. 1966), cert. denied Bd. of Education of the City of Bessemer v. United States, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104. . Section 105 provides, in relevant part: “Contracts for loans or capital grants shall be made only with a duly authorized local public agency and shall require that— * * * * Hi (c) (1) There shall be a feasible method for the temporary relocation of individuals and families displaced from the urban renewal area, and there are or are being provided, in the urban renewal area or in other areas not generally less desirable in regard to public utilties and public and commercial facilities and at rents or prices within the financial means of the individuals and families displaced from the urban renewal area, decent, safe, and sanitary dwellings equal in number to the number of and available to such displaced individuals and families and reasonably accessible to their places of employment. * * * ” The section’s coverage was extended to displaced individuals by the Housing and Urban Development Act of 1965, and that extension does not apply to this project. See section 305(c) of that Act, 79 Stat. 476 (1965). So far as now appears, the plaintiffs all represent displaced families. . See also Cappadora v. Celebrezze, 356 F.2d 1, 6 (2 Cir. 1966); 4 Davis, Administrative Law Treatise § 28.21 (1965 Supp.) ; Jaffe, Judicial Control of Administrative Action, 372-374 (1965). As the Supreme Court said in Abbott Laboratories v. Gardner, the Administrative Procedure Act, 5 U.S.C. §§ 701-706, under which plaintiffs" }, { "docid": "23183755", "title": "", "text": "Falls Riverway Realty, Inc. v. City of Niagara Falls, N.Y., 754 F.2d 49, 54 (2d Cir.1985); A.L. Rowan & Son, General Contractors, Inc. v. Department of Housing and Urban Development, 611 F.2d 997, 999 (5th Cir.1980). Because the sole relief sought by Weeks from, the United States is money damages in excess of $10,000 on a contract action, exclusive jurisdiction is vested in the Claims Court. Polos v. United States, 556 F.2d 903, 905 (8th Cir.1977). See State of Minnesota by Noot v. Heckler, 718 F.2d 852, 857-58 (8th Cir.1983) (vacating district court’s award of money damages because jurisdiction vested exclusively in Claims Court); Sellers v. Brown, 633 F.2d 106, 107-08 (8th Cir.1980) (affirming district court’s dismissal for lack of jurisdiction because plaintiff’s claim in essence sought money judgment against government). Weeks contends that it does not rely on the waiver of sovereign immunity contained in the Tucker Act but looks instead to the waiver of HUD’s immunity to suit set out in 42 U.S.C. § 1404(a), and that it should therefore not be limited to the Claims Court jurisdiction on which the Tucker Act’s waiver of sovereign immunity is conditioned. Questions of Claims Court jurisdiction are to be determined by the essential nature and effect of the action as it appears from the entire record. Reconstruction Financing Corp. v. MacArthur Mining Co., 184 F.2d 913, 917 (8th Cir. 1950), cert. denied, 340 U.S. 943, 71 S.Ct. 505, 95 L.Ed. 681 (1951). Weeks has elected to frame its action as one based purely on alleged contract breach, naming the United States and HUD as an agent of the United States as defendants. Implicit in Weeks’ pleadings is the theory that the United States is primarily liable for any breach and that it is from the United States that recovery of any damages will be sought. Where the United States is the real party in interest, courts have found that waivers of sovereign immunity other than the Tucker Act should not apply. See Marcus Garvey, 595 F.2d at 1132; DSI Corp. v. Secretary of Housing and Urban Development, 594 F.2d 177," }, { "docid": "1476680", "title": "", "text": "plaintiffs are the M. M. Crockin Company, Inc., and the executors and trustees under the will of Albert Sylvester Crockin, the company’s landlord. For the purposes of this appeal the interests of all the plaintiffs are similar, and collectively they will be called Crockin. . Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Plast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). . E. g., Green Street Ass’n v. Daley, 373 F.2d 1 (7th Cir.), cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1967); Johnson v. Redevelopment Agency, 317 F.2d 872 (9th Cir.), cert. denied, 375 U.S. 915, 84 S.Ct. 216, 11 L.Ed.2d 154 (1963); Harrison-Halsted Community Group v. Housing and Home Finance Agency, 310 F.2d 99 (7th Cir. 1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414 (1963). . 42 U.S.C. § 1455, as amended, (Supp. V, 1969) provides: “Contracts for loans or capital grants shall be made only with a duly authorized local public agency and shall require that— * * :1( * * “(c) (1) There shall be a feasible method for the temporary relocation of individuals and families displaced from the urban renewal area, and there are or are being provided, in the urban renewal area or in other ■ areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the individuals and families displaced from the urban renewal area, decent, safe, and sanitary dwellings equal in number to the number of and available to such displaced individuals and families and reasonably accessible to their places of employment. The Secretary shall issue rules and regulations to aid in implementing the requirements of this subsection and in otherwise achieving the objectives of this subchapter. Such rules and regulations shall require that there be established, at the earliest practicable time, for each urban renewal project involving the" } ]

[ { "docid": "19795952", "title": "", "text": "court included an attached information signed by a state’s attorney. 890 A.2d at 504. Pierre held that “it was not until the entire arrest warrant, with the attached signed information, was filed with the court at arraignment that the document became an information within [S]ixth [A]mendment jurisprudence, thus triggering the defendant’s constitutional right to counsel.” Id. (emphasis added). Like the sworn complaint in Duvall and the information in Pierre, the information in this case initially “function[ed] ... as a basis for an application for an arrest warrant,” Duvall, 537 F.2d at 22 (internal quotation marks omitted) — “a prelude to a criminal prosecution ... rather than the initiation of an adversarial judicial proceeding in its own right,” Pierre, 890 A.2d at 508. The precedents of this Court cited by Moore are not to the contrary. In United States v. Mills, 412 F.3d 325, 328 (2d Cir.2005), we assumed that the right to counsel attached before a defendant’s first appearance before a judicial officer because, “[f]or the purposes of th[at] appeal, the government d[id] not challenge the District Court’s determination that the police officers violated Mills’s right to counsel as to the state charges” by interrogating him after he was charged but prior to his arraignment. Accord id. at 326. In United States v. Worjloh, 546 F.3d 104, 108 (2d Cir.2008) (per curiam), the defendant also relied on Mills, and we made clear that such reliance was misplaced because Mills proceeded based on the government’s concession. Accordingly, Moore’s Sixth Amendment right to counsel had not attached before he was interrogated, and the district court correctly denied his motion to suppress on that basis. B. Independently, Moore’s argument fails because even if his right to counsel had attached to the state charges, it had not attached to the federal charge for which he pleaded guilty below. “[T]he Sixth Amendment right is ‘offense specific,’ ” meaning that even when the right to counsel attaches for one offense, that does not mean that the defendant has a right to counsel for all ongoing criminal investigations. Texas v. Cobb, 532 U.S. 162, 164, 121 S.Ct." } ]

[ { "docid": "17135757", "title": "", "text": "of Human Services (DHS) succeeded the Department of Human Resources (DHR) in September 1985. . The question whether persons such as Mrs. Moreno and S constituted \"witness[es] against\" appellant at the time of his court-martial, given their obvious switch of sides, may yet emerge as a pivotal question. Compare White v. Illinois, — U.S.-, 112 S.Ct. 736, 740-41, 116 L.Ed.2d 848 (1992), with — U.S. at--- — , 112 S.Ct. at 744-48 (sep. op. of Thomas, J.). Arguably, an accused’s refuge in a case such as this may be the Compulsory Process Clause of the Sixth Amendment, rather than the Confrontation Clause. See generally Westen, Confrontation and Compulsory Process: A United Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567 (1978); cf. United States v. Hines, 23 MJ 125, 132-33 (CMA 1986). Fort Bliss, the installation to which appellant was assigned, has an agreement with local civil authorities permitting the Texas Department of Human Services to investigate child abuse cases. [**] This evidence was presented by Ms. Cirk’s testimony in the DuBay hearing. It is also found in her notes which are attached to the DuBay hearing record. [***]Id. SULLIVAN, Chief Judge (dissenting): Substantial constitutional error occurred in this case. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Appellant’s incriminating admissions were made in response to direct questioning by Mrs. Cirks, “a Child Protective Services Specialist” for the State of Texas Department of Human Services. This deliberate elicitation of incriminating statements occurred after his Sixth Amendment right to counsel had attached and without a proper waiver of that right. See Michigan v. Harvey, 494 U.S. 344, 349, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) . See also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) . Accordingly, I must respectfully dissent. See Cates v. State, 776 S.W.2d 170 (Tex.Cr.App.1989); State v. Graves, 60 N.J. 441, 291 A.2d 2 (1972). Turning first" }, { "docid": "17135758", "title": "", "text": "also found in her notes which are attached to the DuBay hearing record. [***]Id. SULLIVAN, Chief Judge (dissenting): Substantial constitutional error occurred in this case. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Appellant’s incriminating admissions were made in response to direct questioning by Mrs. Cirks, “a Child Protective Services Specialist” for the State of Texas Department of Human Services. This deliberate elicitation of incriminating statements occurred after his Sixth Amendment right to counsel had attached and without a proper waiver of that right. See Michigan v. Harvey, 494 U.S. 344, 349, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) . See also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) . Accordingly, I must respectfully dissent. See Cates v. State, 776 S.W.2d 170 (Tex.Cr.App.1989); State v. Graves, 60 N.J. 441, 291 A.2d 2 (1972). Turning first to our prior decision in this case, I note that the majority opinion herein fails to fully note our earlier remand order. That order said: No. 58978/AR. U.S. v. Manuel R. Moreno. CMR 449190. Upon consideration of the granted issues (26 MJ 207), we hold that Mil.R.Evid. 103 is no bar to our consideration of the first granted issue in this case. Our review of the record establishes that [Mrs.] Cirks, a social worker for the Department of Human Services of the State of Texas, actively solicited appellant’s confession and subsequently reported it to trial counsel pursuant to an agreement between the State and the local command authorities. See generally Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 273, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115 (1980); cf. Kuhlmann v. Wilson, 477 U.S. 436, 455-60, 106 S.Ct. 2616, 2628-31, 91 L.Ed.2d 364 (1986). Her . interview of appellant occurred after he had been arrested by military police and asserted his right to counsel;" }, { "docid": "21292876", "title": "", "text": "counsel must be suppressed. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). But “[t]he Sixth Amendment right [to counsel] ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks omitted). “Once the Sixth Amendment right attaches, any governmental attempt to elicit information from the accused without the defendant’s lawyer present, even through means that may be permissible under the Fifth Amendment right to counsel prior to the point at which the Sixth Amendment right to counsel attaches (e.g., electronic monitoring of a suspect’s conversations with others), is prohibited.” Mitzel v. Tate, 267 F.3d 524, 532 (6th Cir.2001) (citing Michigan v. Jackson, 475 U.S. 625, 632, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). Here, the last recording occurred one month before defendant was indicted, at a time when the government’s investigation was still ongoing and he was a suspect, not yet an “accused.” Moreover, as noted above in Cope, the Sixth Amendment right to counsel is offense-specific. Defendant’s relationship with attorney Rogers was limited to his ongoing civil insurance-related dispute with Grange and was unrelated to the criminal charges that were eventually filed against him. Defendant’s argument is therefore without merit. VI. As his final issue, defendant asserts that the forfeiture ordered by the district court at the sentencing hearing is unenforceable and violates his Sixth Amendment rights because, although the forfeiture was an integral part of the indictment and was included as a separate count, the jury never made any factual findings in this regard and defendant did not waive his right to have the jury make this determination. Defendant argues that the enhancement of his sentence by imposing forfeiture, in the absence of jury findings and on the basis of judge-made findings, violates Booker, 543 U.S. 220," }, { "docid": "2365152", "title": "", "text": "451 U.S. 454, 469, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359 (1981). The Amendment serves to safeguard the adversarial process by ensuring that once the right to counsel has attached the accused “need not stand alone against the State” at any “critical stage” of the aggregate proceedings against him. Id. at 470, 101 S.Ct. at 1876-77; see also United States v. Henry, 447 U.S. 264, 269, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115 (1980). The purpose of the Sixth Amendment is to protect the “unaided layman,” who “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)). In a line of cases involving incriminating statements made to police informants, the Supreme Court has held that an individual who stands indicted of a crime is denied his right to counsel when agents of the state circumvent that right by “deliberately eliciting]” inculpatory statements from him in the absence of his counsel, absent a voluntary and knowing waiver. Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct. 1176, 1179-80, 108 L.Ed.2d 293 (1990); see also Kuhlmann v.. Wilson, 477 U.S. 436, 457, 106 S.Ct. 2616, 2628-29, 91 L.Ed.2d 364 (1986); Maine v. Moulton, 474 U.S. 159, 173, 106 S.Ct. 477, 485-86, 88 L.Ed.2d 481 (1985); Henry, 447 U.S. at 270,100 S.Ct. at 2186-87; Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). The deliberate elicitation doctrine was first recognized in Massiah, where the defendant, released on bail, made numerous incriminating statements to his codefendant, who had agreed to act as a government informant and had permitted the installation of a surveillance device in his automobile. Id. The Court concluded that the protections of the Sixth Amendment apply to “indirect and sur reptitious interrogations as well as those conducted in the jailhouse” and held that the defendant’s confession had been “deliberately-elicited” by the" }, { "docid": "10531752", "title": "", "text": "v. Asibor, 109 F.3d 1023, 1037 (5th Cir.1997); see also United States v. Hamilton, 128 F.3d 996, 999 (6th Cir.1997) (reviewing constitutional challenge to admission of evidence de novo). We need not address the question of whether admission of Quinn’s volunteered statement to Seaton or his answer to Sea-ton’s follow-up question was the product of a deliberate design to elicit incriminating information ; there was no violation of Quinn’s Sixth Amendment right to counsel because that right had not yet attached at the time of his statements. See Kuhlman v. Wilson, 477 U.S. 436, 456, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (right to counsel not violated where Sixth Amendment protections had not yet attached); United States v. Henry, 447 U.S. 264, 272, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (same); Massiah, 377 U.S. at 206, 84 S.Ct. 1199 (same). Sixth Amendment protections are offense-specific. Maine v. Moulton, 474 U.S. 159, 180 n. 16, 106 S.Ct. 477 n. 16, 88 L.Ed.2d 481 (1985); Hurst v. United States, 370 F.2d 161, 165 (5th Cir.1967). In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), a plurality of the Court concluded that the right to counsel for an offense attaches at the initiating point of the adversarial process. Id. at 689, 92 S.Ct. 1877; see also McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (right to counsel is offense-specific, not attaching until the commencement of adverse judicial criminal proceedings). Even without a clear, fact-based delineation marking when the Sixth Amendment right to counsel attaches, we can determine that adverse judicial criminal proceedings had not commenced at the point when Quinn made his remarks to Seaton. Quinn’s admissions to Seaton occurred on Thanksgiving-night in 1995. Under the facts of the present case, adverse criminal proceedings on Quinn’s subornation offense did not commence until months later. Quinn was indicted for subornation of perjury on July 24, 1996. His initial hearing- was not held until August 5, 1996, and counsel was not appointed until August 6, 1996. Under all theories, there was a delay of" }, { "docid": "23428940", "title": "", "text": "Beaty was in custody at the time of confession, and deny a COA on the Miranda claim. B Beaty further claims that the admission of O’Connor’s testimony violates his Sixth Amendment right to counsel. The Sixth Amendment right to counsel attaches at the initiation of adversary judicial criminal proceedings. See, e.g., United States v. Harrison, 213 F.3d 1206, 1209 (9th Cir.2000). Once the right to counsel has attached, the state may not take actions “designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). See also Cahill v. Rushen, 678 F.2d 791, 793 (9th Cir.1982). This inquiry is objective and does not focus on the subjective intentions of the state officer. See United States v. Harris, 738 F.2d 1068, 1071 (9th Cir.1984). The factual record clearly reveals that the group sessions were not deliberately designed to elicit incriminating remarks. The purpose of the group was to explore interaction between male and female inmates. The group was not organized to collect incriminating information to be used at trial. See Brooks v. Kincheloe, 848 F.2d 940, 945 (9th Cir.1988). The Sixth Amendment is violated only by deliberate action, not “whenever— by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” Kuhlmann, 477 U.S. at 459, 106 S.Ct. 2616. Alternatively, Beaty argues that his confession occurred during a “critical stage.” Once the right to counsel has attached, a defendant has the right to have counsel present for all “critical stages of the prosecution.” United States v. Akins, 276 F.3d 1141, 1146 (9th Cir.2002). A “critical stage” is a “trial-like confrontation,” United States v. Montgomery, 150 F.3d 983, 994 (9th Cir.1998), in which “potential substantial prejudice to [the] defendant’s rights inheres” and in which counsel may help avoid that prejudice, United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Examples of critical stages include post-indictment police lineups, id., arraignment, Hamilton v. Alabama, 368 U.S. 52, 53, 82 S.Ct. 157, 7 L.Ed.2d 114, (1961), and sentencing, Gardner v. Florida," }, { "docid": "22298685", "title": "", "text": "Moore argues that the district court erred in admitting into evidence testimony regarding Kopp's telephone conversation with him while he was incarcerated wherein he purportedly informed her where a number of postal money orders were hidden in their bedroom and advised her to deliver ten (10) money orders to an individual called Monkey Man in Jefferson-ville, Indiana. Moore claims further error occurred when the actual details regarding the exchange of the money orders were admitted. Moore argues that the admission of Ms. Kopp’s testimony about her alleged conversation with him was in violation of his Sixth Amendment rights. In Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964) the Supreme Court held that the government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant who was entitled to assistance of counsel. And, “[wjhatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments mean at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him ...” Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 485, 88 L.Ed.2d 481 (1985), (citing Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977)). As the Supreme Court made clear in Moulton, the primary concern of the Massiah line of decisions is the secret interrogation by investigatory techniques that are the equivalent of direct police interroga tion. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986). “Since the Sixth Amendment is not violated whenever — by luck or happenstance — the [Government] obtains incriminating statements from the accused after the right to counsel has attached, (citations omitted), a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating" }, { "docid": "22740372", "title": "", "text": "(2d Cir.2001); United States v. Peterson, 100 F.3d 7, 11 (2d Cir.1996). As for Yousefs unpreserved claims, we review them for plain error. See Fed.R.Crim.P. 52(b). 1. Attachment of Sixth Amendment Right to Counsel Upon Indictment for the World Trade Center Bombing The Sixth Amendment’s right to counsel attaches at the “initiation of adversary judicial proceedings,” such as the filing of an indictment. United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); United States v. Abdi, 142 F.3d 566, 569 (2d Cir.1998). Once the right has attached, the Sixth Amendment renders inadmissible in the Government’s case-in-chief statements elicited by the Government outside the presence of a defendant’s counsel that are not accompanied by a waiver of this right. See generally United States v. Henry, 447 U.S. 264, 273-74, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In addition, in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the Supreme Court adopted the prophylactic rule that once a defendant invokes his Sixth Amendment right to counsel in a government-initiated interrogation, any subsequent waiver of that right is presumed invalid, even if the waiver is knowing and voluntary. See id. at 635, 106 S.Ct. 1404. Statements elicited in violation of this rule are inadmissible in the government’s case-in-chief. Cf. Michigan v. Harvey, 494 U.S. 344, 345, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (limiting the applicability of the Jackson rule to statements proffered in the prosecution’s casein-chief). Yousef argues that because his Sixth Amendment right to counsel attached when he was indicted in 1993 for the World Trade Center bombing, the written Miranda waiver he gave to United States agents was void and, therefore, his post-arrest statements should have been suppressed. It is settled law, however, that the attachment of the Sixth Amendment right to counsel, by itself, does not preclude a defendant from validly waiving his right to counsel. See Patterson v. Illinois, 487 U.S. 285, 298, 300, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988) (holding admissible statements given after indictment, where defendant had been given Miranda warnings and had not" }, { "docid": "1260565", "title": "", "text": "clearly involved statements elicited by authorities. E.g., Michigan v. Jackson, 475 U.S. 625, 635, 106 S.Ct. 1404, 1410-11, 89 L.Ed.2d 631 (1986) (written waiver “insufficient to justify police-initiated interrogations after the request for counsel”); Massiah v. United States, 377 U.S. 201, 203, 84 S.Ct. 1199, 1201, 12 L.Ed.2d 246 (1964) (violation of sixth amendment to use statements “deliberately elicited from [defendant] after he had been indicted and in the absence of his counsel.”). Zeb does cite a case which describes the applicable law: “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. [Such accused] is not subject to further interrogation by the authorities until counsel has been made available to him, unless [he] himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981) (emphasis added); accord McFadden v. Garraghty, 820 F.2d 654 (4th Cir.1987); see also Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 1181, 108 L.Ed.2d 293 (1990) (“[Njothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney.”). As stated in Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 493, 83 L.Ed.2d 488 (1984): “[I]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” A court’s finding that defendant made such a voluntary waiver will be upheld unless clearly erroneous. See, e.g., United States v. Wilson, 895 F.2d 168, 171 (4th Cir.1990). There is no disputing that Zeb was in state custody in Robeson County pending state charges. He had exercised his right to remain silent, and was appointed counsel to represent him in those state" }, { "docid": "1831828", "title": "", "text": "Clara Pueblo v. Martinez, 436 U.S. 49, 56 n. 7, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); see also, Duro v. Reina, 495 U.S. 676, 692, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990) (“Indians like other citizens are embraced within our nation’s great solicitude that its citizens be protected ... from unwarranted intrusions on their personal liberty.” (citation and internal quotations omitted)). XI. Moreover, the Indian Civil Rights Act (ICRA), discussed at length in Doherty, see 126 F.3d at 778-81, has little, if any, relevancy to the instant case. The question of constitutional interpretation now before this Court is independent of any statutory construction. As the court in Doherty acknowledges, see id. at 783, when a defendant’s right to counsel has attached under the Sixth Amendment, no statute can change, much less eviscerate this fact. XII. The Doherty court’s citation to and reliance on extradition hearing cases, see id. at 782, is misplaced. These cases hold that such hearings are not adversarial proceedings that trigger the Sixth Amendment. Red Bird, however, was arraigned at an adversarial tribal proceeding before being questioned by Weir and Her Many Horses— which clearly activated the protections guaranteed by the Sixth Amendment. XIII. For all of these reasons, this Court finds that Red Bird was interviewed in violation of his Sixth Amendment right to counsel and any statements given by him in response to questioning from Weir and Her Many Horses must be suppressed. Nevertheless, the Court finds that Red Bird’s statements were not the product of coercion or otherwise involuntary, compare Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and therefore are admissible at trial for impeachment purposes under Oregon v. Hass, 420 U.S. 714, 720-24, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) and Harris v. New York, 401 U.S. 222, 223-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); see also, Michigan v. Harvey, 494 U.S. 344, 348-54, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (overturning a state court ruling that because the defendant’s statement after arraignment and appointment of counsel was taken “in violation of [his] Sixth Amendment" }, { "docid": "23428939", "title": "", "text": "prejudice. See, e.g., Navarro, 160 F.3d at 1256; Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). XVI We now take up Beaty’s claims concerning his confession that the district court considered on the merits. A First, Beaty argues that he was entitled to Miranda warnings prior to his confession. To be entitled to such warnings, two factors must be established: custody and interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The facts developed at the state admissibility hearing clearly support the Arizona Supreme Court’s finding that Beaty’s confession did not result from “interrogation,” but was, instead, spontaneous. See Beaty, 762 P.2d at 528. O’Connor testified that he was “not questioning Mr. Beaty particularly. It [was] casual.” Indeed, Beaty made the statement after the session had ended, and O’Connor testified that it came “more or less out of the blue” and was “somewhat shock[ing].” We are firmly convinced that O’Connor neither questioned Beaty nor engaged in the functional equivalent. We therefore do not reach the question of whether Beaty was in custody at the time of confession, and deny a COA on the Miranda claim. B Beaty further claims that the admission of O’Connor’s testimony violates his Sixth Amendment right to counsel. The Sixth Amendment right to counsel attaches at the initiation of adversary judicial criminal proceedings. See, e.g., United States v. Harrison, 213 F.3d 1206, 1209 (9th Cir.2000). Once the right to counsel has attached, the state may not take actions “designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). See also Cahill v. Rushen, 678 F.2d 791, 793 (9th Cir.1982). This inquiry is objective and does not focus on the subjective intentions of the state officer. See United States v. Harris, 738 F.2d 1068, 1071 (9th Cir.1984). The factual record clearly reveals that the group sessions were not deliberately designed to elicit incriminating remarks. The purpose of the group was to explore interaction between male and female inmates. The group was not organized to collect incriminating information to be used" }, { "docid": "9928693", "title": "", "text": "the assistance of counsel is shaped by the need for the assistance of counsel, we have found that the right attaches at earlier, critical stages in the criminal justice process where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. Id. at 170,106 S.Ct. 477 (internal quotation and citations omitted). Pursuant to the Sixth Amendment, “a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (internal quotation and citations omitted). Thus, the government does not, and cannot, dispute that León-Delfis’ Sixth Amendment right to counsel attached previous to the questioning at issue, because he was arraigned on May 7, 1997, prior to the polygraph test and post-test questioning on June 15, 1998. See id.; see also Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (“The arraignment signals the initiation of adversary judicial proceedings and thus the attachment of the Sixth Amendment ....”) (internal quotation and citation omitted). Additionally, the government does not, and cannot, challenge that León-Delfis’ Sixth Amendment right to counsel applied to the post-polygraph questioning. See id. at 630, 106 S.Ct. 1404 (stating that after arraignment, “government efforts to elicit information from the accused, including interrogation, represent critical stages at which the Sixth Amendment applies”) (internal quotation omitted). Thus, the issue is whether León-Delfis validly waived that right for purposes of questioning that occurred after the polygraph test. The government has the burden to “prove an intentional relinquishment or abandonment” of the Sixth Amendment right to counsel. Brewer, 430 U.S. at 404, 97 S.Ct. 1232, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also Jackson, 475 U.S. at 633, 106 S.Ct. 1404. The Court has stated" }, { "docid": "21292875", "title": "", "text": "was not notified. Rogers had been retained by defendant months before any secret tapes were made. Defendant asserts that the trial testimony reflected the widespread knowledge of the government’s witnesses that Rogers represented defendant in the arson-related matter with his insurer. No evidence was presented that Rogers consented to the secret taping which was done without defendant’s knowledge. Defendant argues, therefore, that all evidence garnered from these taped conversations must be suppressed. McAuliffe acknowledges, however, that no motion to suppress was made to the district court. Defendant’s claim is therefore subject to review for plain error. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). No such error has occurred under the present circumstances. As this court has explained in United States v. Cope, 312 F.3d 757, 772 (6th Cir.2002): The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” U.S. Const, amend. VI. Statements elicited in violation of one’s Sixth Amendment right to counsel must be suppressed. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). But “[t]he Sixth Amendment right [to counsel] ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks omitted). “Once the Sixth Amendment right attaches, any governmental attempt to elicit information from the accused without the defendant’s lawyer present, even through means that may be permissible under the Fifth Amendment right to counsel prior to the point at which the Sixth Amendment right to counsel attaches (e.g., electronic monitoring of a suspect’s conversations with others), is prohibited.” Mitzel v. Tate, 267 F.3d 524, 532 (6th Cir.2001) (citing Michigan v. Jackson, 475 U.S. 625, 632, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). Here," }, { "docid": "454950", "title": "", "text": "of his counsel.” Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); see also United States v. LaBare, 191 F.3d 60, 64 (1st Cir.1999). As Justice Black noted in Gideon v. Wainwright, “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court ... cannot be assured a fair trial unless counsel is provided for him.” Gideon v. Wainwright, 372 U.S. 336, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); see also United States v. Noceda, 849 F.2d 33, 35 (1st Cir.1988). And, as noted in Moulton, “what use is a defendant’s right to effective counsel at every stage of a criminal case if, while he is held awaiting trial, he can be questioned in the absence of counsel until he confesses?” Moulton, 474 U.S. at 171, 106 S.Ct. 477 (internal quotation marks and citation omitted). Thus, the accused is guaranteed, “at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” Id. at 176, 106 S.Ct. 477. It is irrelevant who initiates the conversation that is likely to induce the accused to make incriminating statements without the assistance of counsel. See id. at 174-75, 106 S.Ct. 477; United States v. Henry, 447 U.S. 264, 270-75, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Although “the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached,” the “knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” Moulton, 474 U.S. at 176, 106 S.Ct. 477; see also Bey v. Morton, 124 F.3d 524, 528-30 (3d Cir.1997). Further, “that the State ‘must have known’ that its agent was likely to obtain incriminating statements from the accused in the absence of counsel suffices to establish a" }, { "docid": "22799235", "title": "", "text": "together. He claims that the government intentionally placed Carr in the same cell block to induce Sheppard to make an incriminating statement concerning the conspiracy charge for which he had already been indicted. Relying on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Sheppard maintains that the admission at trial of his post-indictment jailhouse confessions violated his Sixth Amendment right to counsel. We disagree. A criminal defendant’s Sixth Amendment right to counsel is violated when incriminating statements “deliberately elicited” by the government, made after indictment and outside the presence of counsel, are admitted against the defendant at trial. Massiah, 377 U.S. at 206, 84 S.Ct. at 1203; see also United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186-87, 65 L.Ed.2d 115 (1980). The role of the government in the deliberate elicitation of such statements is of crucial importance, for “the Sixth Amendment is not violated whenever— by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985); see also Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2629-30, 91 L.Ed.2d 364 (1986). Because no evidence shows that Carr acted on behalf of the government when listening to Sheppard’s jailhouse confessions, the Sixth Amendment claim is meritless. Although Carr had previously cooperated with the government in a separate ease, no evidence showed that such cooperation extended in any manner to the investigation of Sheppard. Nor did any evidence support Sheppard’s allegation that the government intentionally placed Carr in his cell block. When Carr spoke with Sheppard in jail, he had not received any instructions from the government. Carr also was not paid for providing information concerning Sheppard. We have rejected past defendants’ Sixth Amendment claims when these crucial indicia of government cooperation are lacking. Harker v. Maryland, 800 F.2d 437, 445 (4th Cir.1986). The initiative here was that of Carr. The record indicates that Carr contacted federal agents himself after Sheppard made the relevant incriminating statements." }, { "docid": "2365153", "title": "", "text": "the state circumvent that right by “deliberately eliciting]” inculpatory statements from him in the absence of his counsel, absent a voluntary and knowing waiver. Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct. 1176, 1179-80, 108 L.Ed.2d 293 (1990); see also Kuhlmann v.. Wilson, 477 U.S. 436, 457, 106 S.Ct. 2616, 2628-29, 91 L.Ed.2d 364 (1986); Maine v. Moulton, 474 U.S. 159, 173, 106 S.Ct. 477, 485-86, 88 L.Ed.2d 481 (1985); Henry, 447 U.S. at 270,100 S.Ct. at 2186-87; Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). The deliberate elicitation doctrine was first recognized in Massiah, where the defendant, released on bail, made numerous incriminating statements to his codefendant, who had agreed to act as a government informant and had permitted the installation of a surveillance device in his automobile. Id. The Court concluded that the protections of the Sixth Amendment apply to “indirect and sur reptitious interrogations as well as those conducted in the jailhouse” and held that the defendant’s confession had been “deliberately-elicited” by the police in violation of both the Fifth and Sixth Amendments. Id. In Henry, the Court determined that the defendant’s pretrial confession to a government informant who had been placed in the defendant’s cell in order to listen to his comments should have been suppressed. 447 U.S. at 274,100 S.Ct. at 2188-89. The Court applied Massiah’s deliberate elicitation formulation, observing three relevant factors: (1) the paid informant was acting under the state’s instructions and had an incentive to produce useful information; (2) the informant was ostensibly no more than a fellow inmate; and (3) the defendant was in custody and under indictment. Id. at 270, 100 S.Ct. at 2186-87. Despite the government’s specific instructions to merely listen to the defendant, the informant had “stimulated” conversations with the defendant. Id. at 273, 100 S.Ct. at 2188. The Court held that “[b]y intentionally creating a situation likely to induce[the defendant] to make incriminating statements without the assistance of counsel, the Government violated [the defendant’s Sixth Amendment right to counsel.” Id. at 274,100 S.Ct. at 2189. The.case was not" }, { "docid": "23428941", "title": "", "text": "at trial. See Brooks v. Kincheloe, 848 F.2d 940, 945 (9th Cir.1988). The Sixth Amendment is violated only by deliberate action, not “whenever— by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” Kuhlmann, 477 U.S. at 459, 106 S.Ct. 2616. Alternatively, Beaty argues that his confession occurred during a “critical stage.” Once the right to counsel has attached, a defendant has the right to have counsel present for all “critical stages of the prosecution.” United States v. Akins, 276 F.3d 1141, 1146 (9th Cir.2002). A “critical stage” is a “trial-like confrontation,” United States v. Montgomery, 150 F.3d 983, 994 (9th Cir.1998), in which “potential substantial prejudice to [the] defendant’s rights inheres” and in which counsel may help avoid that prejudice, United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Examples of critical stages include post-indictment police lineups, id., arraignment, Hamilton v. Alabama, 368 U.S. 52, 53, 82 S.Ct. 157, 7 L.Ed.2d 114, (1961), and sentencing, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). We have little trouble concluding that Beaty’s confession did not occur during a “critical stage.” The group sessions were not court-ordered and were not designed to acquire information to be used at trial. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that Sixth 'Amendment was violated by admissions made to state psychiatrist because the court ordered the sessions to determine competency). In short, the sessions were not a “trial-like confrontation.” We therefore deny a COA on the claim that the admission of the confession violates the Sixth Amendment. C Finally, Beaty claims that his confession was involuntary under the Fifth Amendment. The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that ■no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. See also Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The Fifth Amendment protects against involuntary statements" }, { "docid": "23404757", "title": "", "text": "self-serving and related to getting police cooperation in his own case. After reviewing the record, we find insufficient evidence to rebut the presumption of correctness under 28 U.S.C. sec. 2254(d) applicable to the state court’s assessment of the facts and conclude that there is no basis upon which an agency can be established. Regarding the “deliberately elicited” inquiry, the Supreme Court has recently stated: the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since ‘the Sixth Amendment is not violated whenever — by luck or happenstance— the State obtains incriminating statements from the accused after the right to counsel has attached,’ [quoting Moulton, 106 S.Ct. at 487 (citation omitted) ] a defendant does not make out a violation of [the right to counsel] simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that he police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986) (emphasis added); see United States v. Hicks, 798 F.2d 446, 449 (11th Cir.1986), cert, denied, — U.S. -, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987). When a state trial court has made a factual determination regarding this issue after a hearing on the merits, the trial court’s findings are entitled to a presumption of correctness under 28 U.S.C. sec. 2254(d). Kuhlmann, 106 S.Ct. at 2630. In this case, the district court applied the presumption of correctness with respect to the state court’s findings that Chavers did not stimulate conversation with petitioner. After reviewing the record, the district court found “no basis for concluding that Chavers did anything but listen to Petitioner’s voluntary comments.” Lightbourne v. Wainwright, No. 85-136-Civ-OC-16, slip op. at 9 (M.D.Fla. Aug. 20, 1986). The Sixth and Fourteenth Amendments are not violated when law enforcement officers, either through “luck or happenstance,” obtain “spontaneous” and “unsolicited” incriminating statements. Kuhlmann, 106 S.Ct. at 2630; see" }, { "docid": "23440899", "title": "", "text": "in this case, the mere fact that questions about his competency were raised in the Pappan murder case does not automatically require an inquiry into his competency in this ease. Accordingly, no error resulted from the failure to conduct an evidentiary hearing on, or make further investigation into, his competency to stand trial. III. Whether Gregory Was an Agent of the State Mr. Castro claims that Steven Gregory, the cell mate to whom he made incriminating statements, was a government informant who deliberately elicited information from him, in violation of his Fifth, Eighth, and Fourteenth Amendment rights. Mr. Castro filed a motion to suppress Gregory’s statements. At a pre-trial hearing on that motion, the trial court found that Gregory was not an agent of the State. Mr. Castro raised this argument in his direct appeal, and the Court of Criminal Appeals held as follows: Although Gregory was looking for favorable treatment from the district attorney’s office when he provided the information on appellant, there was no evidence presented of any expressed or implied relationship between Gregory and the State as relates to appellant. Therefore, we hold that Gregory was not acting as an agent for the State, and therefore the trial court did not err in failing to suppress his testimony. Castro v. State, 844 P.2d 159, 170 (Okla.Crim. App.1992) (citations omitted). “[T]he Supreme Court has held that an individual who stands indicted of a crime is denied his right to counsel when agents of the state circumvent that right by ‘deliberately elicit[ing]’ inculpatory statements from him in the absence of his counsel, absent a voluntary and knowing waiver.” Bey v. Morton, 124 F.3d 524, 528 (3d Cir.1997) (quoting Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct. 1176, 1179-80, 108 L.Ed.2d 293 (1990)). Thus, the police must do more than merely listen: “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986). The Oklahoma state courts, both at trial and" }, { "docid": "23406858", "title": "", "text": "cell mates turned government informants violated his Sixth Amendment rights. He argues that his Sixth Amendment right to counsel attached as of January 26, 1999, the date of his arraignment hearing on the internet harassment and credit card fraud charges. Randall therefore contends that his incriminating conversations after that date should have been suppressed. The district court denied Randall’s motion to suppress. We apply the “clearly erroneous” standard to the district court’s factual findings and review its legal conclusions de novo. United States v. Van Shutters, 163 F.3d 331, 336 (6th Cir.1998). The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Statements elicited in violation of one’s Sixth Amendment right to counsel must be suppressed. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). But “[t]he Sixth Amendment right [to counsel] ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks omitted). The legal principle set' forth by the Supreme Court in McNeil was recently applied by this court in United States v. Ford, 176 F.3d 376 (6th Cir.1999), where the court noted that the fact that law enforcement officials arranged for an informant to converse with an indicted defendant about offenses other than those for which the defendant had been indicted is not unlawful. Thus, if an informant “deliberately elicits” incriminating statements relating to the charged offense, the defendant is entitled to suppression of those statements in the trial on the charged offense, but the Sixth Amendment raises no bar to the initiation of the interview itself or to the use of any statements that incriminate the defendant on uncharged offenses. Id. at 380 (internal citation omitted). Randall" } ]

[ { "docid": "19004417", "title": "", "text": "370, 378 (D.C.Cir.2007) (emphasis in original) (citation omitted). Newman’s declaration at most proves that “[a]ll of this kind of information has been revealed” under the JFK Act. Deck of John M. Newman ¶ 9 (Mar. 5, 2006). Unable to point to specific information that was previously released and is now withheld, Morley’s challenge to the CIA’s reliance on Exemption 1 fails. Exemption 2 protects from disclosure records that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). In Schwaner v. Department of Air Force, 898 F.2d 793 (D.C.Cir.1990), the court identified a two-step process for determining if records fall within Exemption 2: “ ‘First, the material withheld should fall within the terms of the statutory language.’ ” Id. at 794 (quoting Founding Church of Scientology of Wash., D. C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983)). Second, “[i]f so, the agency may defeat disclosure by proving that either ‘disclosure may risk circumvention of agency regulation,’ ” id. (quoting Rose, 425 U.S. at 369, 96 S.Ct. 1592), “or ‘the material relates to trivial administrative matters of no genuine public interest,’ ” id. at 794 (quoting Founding Church of Scientology, 721 F.2d at 830 n. 4). Notably, “[t]his exemption does not shield information on the sole basis that it is designed for internal agency use.” Fitzgibbon v. U.S. Secret Serv., 747 F.Supp. 51, 56 (D.D.C.1990) (citing Schwaner, 898 F.2d at 794, 796). The Dorn Declaration provides only a single sentence of explanation regarding the agency’s reason for withholding documents under this exemption: “There is no public interest in the disclosure of such internal procedures and clerical information that would justify the administrative burden that would be placed upon CIA.” Dorn Decl. ¶ 51. This statement seems to place the burden on Morley to assert a public interest before such information will be released. Indeed, the district court, after determining that the withheld information is “sufficiently related to the internal concerns of [the] agency,” concluded that Morley’s arguments were “unavailing” because he “failed to provide a scintilla of evidence to show how" } ]

[ { "docid": "6434784", "title": "", "text": "exempt from disclosure pursuant to 5 U.S.C. § 552a(j)(2), in conjunction with 28 C.F.R. § 16.96 (2003).” Def.’s Mem., Argali Decl. ¶ 25. However, both the EOUSA and the FBI processed “the documents responsive to the plaintiffs request ... under the access provisions of the FOIA to achieve maximum disclosure.” Id. D. FOIA Exemptions The DOJ bears the burden of justifying a decision to withhold records or portions of records that are responsive to a FOIA request. See 5 U.S.C. § 552(a)(4)(B). However, to establish justification for the withholding of responsive records the agency’s declarants must describe the records withheld, and show that the records fall within the claimed exemption or exemptions. See Canning v. U.S. Dep’t of Justice, 848 F.Supp. 1037, 1043 (D.D.C.1994). 1. Exemption 2 Exemption 2 shields from disclosure information that is “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules and practices” is interpreted to include not only “minor employment matters” but also “other rules and practices governing agency personnel.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc). The “information need not actually be ‘rules and practices’ to qualify under [Exemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990). Exemption 2 applies if the information that is sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crooker, 670 F.2d at 1073; see Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations are protected by the so-called ‘high 2’ exemption.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or" }, { "docid": "18124401", "title": "", "text": "the information sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d at 1074; see also Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.Cir.2009); Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898 F.2d at 794 (citations omitted); see also Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d at 869. “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992), and such “high 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C.Cir.1983). “Low 2” exempt materials include such items as “file numbers, initials, signature and mail routing stamps, references to interagency transfers, and data processing references,” Scherer v. Kelley, 584 F.2d 170, 175-76 (7th Cir.1978), and other “trivial administrative data such as ... data processing notations! ] and other administrative markings.” Coleman v. Fed. Bureau of Investigation, 13 F.Supp.2d 75, 78 (D.D.C.1998) (citation omitted). a. “Low 2” Exempt Information The BATFE withholds “file numbers and other internal administrative codes,” Graham Decl. ¶44, intended for administrative purposes only and of no genuine interest to the public. Id. This “low 2” exempt information includes laboratory case numbers, id. ¶45, and picture file numbers. See id., Vaughn Index (pages 101-102). The DEA withholds one “internal, operational telephone number” on the ground that it is of no public interest. Myrick Decl. ¶ 49. In the alternative, its" }, { "docid": "8869559", "title": "", "text": "the DEA has submitted a Vaughn Index “accounting for all 285 responsive pages.” Seidel Decl. ¶ 17 & Ex. G (“Vaughn Index”). 1. Exemption 2 Exemption 2 shields from disclosure information that is “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules and practices” is interpreted to include not only “minor employment matters” but also “other rules and practices governing agency personnel.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc). The “information need not actually be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990) (emphasis added). Exemption 2 applies if the information that is sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d at 1074; see Nat’l Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C.Cir.1983). a. G-DEP Codes and NADDIS Numbers The DEA withholds Geographical Drug Enforcement Program (“G-DEP”) codes and NADDIS numbers, part of the DEA’s internal system of identifying information and individuals, under Exemption 2. Seidel Decl. ¶ 34." }, { "docid": "20300402", "title": "", "text": "that the manual fell squarely within Exemption 2 because it was used “for predominantly internal purposes,” it was “designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques,” and its “disclosure would risk circumvention of agency regulations.” Id. at 1073. Crooker thus resolves the apparent conflict between the House and Senate Reports by explaining that Exemption 2 is actually two exemptions wrapped in one. The so-called low 2 exemption, tracking the Senate Report, covers predominantly internal documents that deal with “trivial administrative matters of no genuine public interest.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992) (internal quotation marks omitted). The “high 2” exemption, following the House Report, applies to “[predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations.” Id. Since Crooker, we have articulated the requirements of the high 2 exemption — the one at issue in this case — in terms of a two-step inquiry. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1124 (D.C.Cir.2007). First, the information withheld must fall within the exemption’s language. Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794 (D.C.Cir. 1990) (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983)). That is, the material must be “used for predominantly internal purposes,” and relate to “rules and practices for agency personnel.” Crooker, 670 F.2d at 1073. Second, if this threshold step is satisfied, the agency can defeat disclosure by demonstrating that release of the material would significantly risk circumvention of federal regulations or statutes. Schiller, 964 F.2d at 1207; see Crooker at 1074. “Notably, [t]his exemption does not shield information on the sole basis that it is designed for internal agency use.” Morley, 508 F.3d at 1125 (internal quotation marks omitted) (alteration in original). In Schwaner v. Department of the Air Force, 898 F.2d 793 (D.C.Cir.1990), for example, the plaintiff sought disclosure of a roster containing the names and duty addresses of military personnel stationed at Bolling Air Force Base. Recognizing that Exemption 2 was a poor fit because “data itself is not" }, { "docid": "20429265", "title": "", "text": "2 if it meets two criteria. First, the information must be “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc); see also Nat’l Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794 (D.C.Cir.1990) (citations omitted). Materials exempt under Exemption 2 fall into two categories: “high 2” and “low 2.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir. 1992). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Id. “Low 2” exempt materials include such items as “file numbers, initials, signature and mail routing stamps, references to interagency transfers, and data processing references,” Scherer v. Kelley, 584 F.2d 170,175-76 (7th Cir.1978), cert. denied sub nom. Scherer v. Webster, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979), and other “trivial administrative data such as ... data processing notations[ ] and other administrative markings,” Coleman v. FBI, 13 F.Supp.2d 75, 78 (D.D.C.1998) (citation omitted). d. The Defendant Properly Invoked Exemption 2 i. “High 2” Exemption The defendant contends that it properly invoked the “high 2” exemption to withhold internal security policies and procedures associated with CIA employees and foreign nationals. Def.’s Mot. at 22-23. Disclosure of such information, the defendant maintains, would significantly risk circumvention of federal statutes or regulations by “affect[ing] the behavior of the foreign nationals addressed in the regulations” and “providing] foreign intelligence services with keen insights on how to circumvent the CIA’s security regulations.” Id. at 22. Similarly, information related to CIA training procedures and information revealing security clearance procedures and policies would render the procedures vulnerable and weaken their effectiveness. Id. The defendant also notes that disclosure of the information withheld, even if harmless in isolation, could risk circumvention of federal statutes or regulations if foreign intelligence" }, { "docid": "22952001", "title": "", "text": "the exemptions and that it conducted an adequate search for responsive records. In addition, plaintiff argues that the BOP has not adequately justified withholding certain records in their entirety. The Court agrees with all of plaintiffs contentions, except with respect to one part of the BOP’s withholdings under exemption 2. Withheld Records “To justify summary judgment, a declaration must provide detailed and specific information demonstrating ‘that material withheld is logically within the domain of the exemption claimed.’ ” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C.Cir.1998) (quoting King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C.Cir.1987)). In King, the Court held that “affidavits cannot support summary judgment if they are ‘conclusory, merely reciting statutory standards, or if they are too vague or sweeping.’ ” 830 F.2d at 219 (internal footnote and citations omitted). As a general observation, this Court finds that the BOP’s declaration is too conclusory, vague and sweeping to support summary judgment. In most instances, the BOP relies on multiple exemptions to justify withholding the same information. However, it has not matched the withheld information with the claimed exemption and explained how the particular exemption applies. (i) Exemption 2 Exemption 2 of the FOIA exempts from mandatory disclosure records “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2); see Crooker v. ATF, 670 F.2d 1051, 1073 (D.C.Cir.1981) (exemption 2 applies to material “used for predominantly internal purposes”). To qualify for this exemption, the document must not only be internal, but must also relate to an existing agency rule or practice. See Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794-98 (D.C.Cir.1990). To properly claim exemption 2, the agency must show that the material withheld falls within the terms of the statutory language. If it does, the agency must then show that “disclosure [may] significantly risk[] circumvention of agency regulations or statutes,” Crooker, 670 F.2d at 1074, or that “the material relates to trivial administrative matters of no genuine public interest.” Founding Church of Scientology v. Smith, 721 F.2d 828, 830, n. 4 (D.C.Cir.1983). The BOP asserted" }, { "docid": "9728761", "title": "", "text": "be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990). Exemption 2 applies'if the information that is sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crook-er, 670 F.2d at. 1074; see Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed “low 2” exempt material. See Founding Church of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C.Cir.1983). a. “low 2” exempt information FBI The FBI withholds as “low 2” exempt material internal telephone numbers of a Special Agent and a support employee. Hardy II Decl. ¶ 20. Such telephone numbers are merely tools used by FBI personnel in performing their duties, and, accordingly, “are related solely to the FBI’s internal practices” the disclosure of which “would not serve any public interest.” Id. ¶ 21. Moreover, release of these numbers “would impede the FBI’s effectiveness by subjecting the FBI employees ... to the possibility of harassment,” id., an occurrence which “could disrupt official business (including impeding their ability to conduct and conclude law enforcement investigations in a timely manner).” Id. ¶ 20. In addition, the FBI withholds source symbol numbers and informant file numbers under Exemption 2. Hardy II Decl. ¶¶ 25-26; see id., Ex. F ('Vaughn Index) at 5, 18, 65, 162, 192-93. Source symbol numbers" }, { "docid": "6595449", "title": "", "text": "A. The Exemptions Under FOIA, “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). The district court held that the Board, with its Vaughn index and affidavit, met its burden of showing that each of the five documents contains information privileged under exemption 2 or exemption 5. We agree. 1. Exemption 2. Matters “related solely to the internal personnel rules and practices of an agency” are exempt from disclosure. 5 U.S.C. § 552(b)(2). Exemption 2, we have held, applies to material “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc). If the threshold test of predominant internality is met, an agency may withhold the material “by proving that either [1] ‘disclosure may risk circumvention of agency regulation,’ or [2] ‘the material relates to trivial administrative matters of no genuine public interest.’ ” Schwaner v. Department of Air Force, 898 F.2d 793, 794 (D.C.Cir.1990) (citations omitted). Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations are protected by the so-called “high 2” exemption. Predominantly internal documents that deal with trivial administrative matters fall under the “low 2” exemption. The district court committed no error in finding, based on the Vaughn index and affidavit, that each of the withheld documents contains information that is predominantly internal, satisfying the threshold test under exemption 2. Contrary to Mr. Schiller’s description, the Vaughn index does not contain only conclusory statements to justify predominant internality. Though terse, the index describes the content of each document in sufficient detail to justify a conclusion that each document contains predominantly internal information. To pick one example, the Vaughn index states that document 5 “includes internal time deadlines, instructions as to which agency division to contact for assistance, and recordkeeping directions.” That is enough to get the information the index describes over the hurdle of predominant internality. The Vaughn index reveals that several of the documents also contain information about litigation strategy. In Mr. Schiller’s view, that information is not predominantly internal because it involves the NLRB’s relations" }, { "docid": "20300403", "title": "", "text": "exemption’s language. Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794 (D.C.Cir. 1990) (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983)). That is, the material must be “used for predominantly internal purposes,” and relate to “rules and practices for agency personnel.” Crooker, 670 F.2d at 1073. Second, if this threshold step is satisfied, the agency can defeat disclosure by demonstrating that release of the material would significantly risk circumvention of federal regulations or statutes. Schiller, 964 F.2d at 1207; see Crooker at 1074. “Notably, [t]his exemption does not shield information on the sole basis that it is designed for internal agency use.” Morley, 508 F.3d at 1125 (internal quotation marks omitted) (alteration in original). In Schwaner v. Department of the Air Force, 898 F.2d 793 (D.C.Cir.1990), for example, the plaintiff sought disclosure of a roster containing the names and duty addresses of military personnel stationed at Bolling Air Force Base. Recognizing that Exemption 2 was a poor fit because “data itself is not a practice,” the district court nonetheless held that the list fell within the exemption because it was “purely internal.” Schwaner, 898 F.2d at 794 (internal quotation marks omitted). We reversed, holding that “the list does not bear an adequate relation to any rule or practice of the Air Force as those terms are used in exemption 2.” Id. Thus, although we have sometimes framed the first step of the test as one of “predominant internality,” see, e.g., Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986) (“NTEU”), at least where the dispositive issue concerns whether the requested information adequately relates to internal matters, Schwaner makes clear that predominant internality is necessary but insufficient to get past the threshold inquiry; the government must also show that the predominantly internal material bears a sufficient relationship to agency rules and practices. With this background in mind, we turn to the government’s argument that the requested blueprints are protected by the high 2 exemption. We review the district court’s grant of summary judgment de novo," }, { "docid": "20300401", "title": "", "text": "& Firearms (ATF) manual used to train new agents in surveillance techniques. Picking up where the Supreme Court left off in Rose, we held that Exemption 2 protects nontrivial matters “where disclosure might risk circumvention of the law.” Id. at 1066. Accordingly, “the words ‘personnel rules and practices’ encompass not merely minor employment matters,” as we held in Jordan, “but may cover other rules and practices governing agency personnel, including significant matters like job training for law enforcement personnel.” Id. at 1056. Despite Exemption 2’s reference to documents related “solely” to internal rules and practices, we further explained in Crooker that the exemption covers documents that are “predominantly” internal. Id. at 1056-57. This modification stemmed from our recognition that, if interpreted literally, the term “ ‘relating’ is potentially all-encompassing while ‘solely’ is potentially all-excluding.” Id. at 1056 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1150 (D.C.Cir.1975) (Leventhal, J., concurring)) (internal quotation marks omitted). Thus, despite the fact that the withheld portions of the ATF manual had some effect on the public at large, we held that the manual fell squarely within Exemption 2 because it was used “for predominantly internal purposes,” it was “designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques,” and its “disclosure would risk circumvention of agency regulations.” Id. at 1073. Crooker thus resolves the apparent conflict between the House and Senate Reports by explaining that Exemption 2 is actually two exemptions wrapped in one. The so-called low 2 exemption, tracking the Senate Report, covers predominantly internal documents that deal with “trivial administrative matters of no genuine public interest.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992) (internal quotation marks omitted). The “high 2” exemption, following the House Report, applies to “[predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations.” Id. Since Crooker, we have articulated the requirements of the high 2 exemption — the one at issue in this case — in terms of a two-step inquiry. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1124 (D.C.Cir.2007). First, the information withheld must fall within the" }, { "docid": "6434785", "title": "", "text": "Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc). The “information need not actually be ‘rules and practices’ to qualify under [Exemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990). Exemption 2 applies if the information that is sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crooker, 670 F.2d at 1073; see Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and regulations are protected by the so-called ‘high 2’ exemption.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C.Cir.1983). The FBI has redacted from 57 pages of records “the secure website address of the FBI’s Law Enforcement Online (“LEO”) computer system.” Def.’s Mem., Argali Decl. ¶ 29. The FBI declarant describes the LEO system as “a controlled-access communications and information-sharing data repository” which “provides an Internet-accessible focal point for certain electronic communications and information sharing for the international, federal, state, local and tribal law enforcement agencies.” Id. Further, the declarant states that the website addresses “relate to the internal practices of the FBI in that they are utilized by FBI personnel during the performance of their jobs.” Id. Lastly, the declarant states that disclosure of the secure website address “could impede the FBI’s effectiveness.” Id. Plaintiff raises no objection to the FBI’s decision to withhold" }, { "docid": "22952002", "title": "", "text": "not matched the withheld information with the claimed exemption and explained how the particular exemption applies. (i) Exemption 2 Exemption 2 of the FOIA exempts from mandatory disclosure records “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2); see Crooker v. ATF, 670 F.2d 1051, 1073 (D.C.Cir.1981) (exemption 2 applies to material “used for predominantly internal purposes”). To qualify for this exemption, the document must not only be internal, but must also relate to an existing agency rule or practice. See Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794-98 (D.C.Cir.1990). To properly claim exemption 2, the agency must show that the material withheld falls within the terms of the statutory language. If it does, the agency must then show that “disclosure [may] significantly risk[] circumvention of agency regulations or statutes,” Crooker, 670 F.2d at 1074, or that “the material relates to trivial administrative matters of no genuine public interest.” Founding Church of Scientology v. Smith, 721 F.2d 828, 830, n. 4 (D.C.Cir.1983). The BOP asserted exemption 2 to justify withholding “internal portions of staff manuals relating to security issues within BOP; [] SENTRY codes; and [] staff statements regarding internal matters.” BOP’s Memorandum of Points and Authorities in Support of Defendant Federal Bureau of Prisons’ Motion to Dismiss or in the Alternative for Summary Judgment at 21 (citing Exhibits B, Bl, B2, C and D). The BOP properly justified withholding the codes as “internal codes for electronic system, SENTRY, for obtaining information regarding inmates” and on the ground that inmates “could access information regarding other inmates” if they gained access to the codes. Exhibit C. The courts have also consistently found no significant public interest in the disclosure of identifying codes and similar information. See Lesar v. Dep’t of Justice, 636 F.2d 472, 485-86 (D.C.Cir.1980); Blanton v. Dep’t of Justice, 63 F.Supp.2d 35, 43 (D.D.C.1999); Albuquerque Publishing Company v. Dep’t of Justice, 726 F.Supp. 851, 854 (D.D.C.1989). As for the remaining information, the BOP has not provided sufficient descriptions in either the Sadowski declaration or the Vaughn indices for the" }, { "docid": "18124400", "title": "", "text": "the Court concludes that the searches were reasonably calculated to locate responsive records. D. Exemptions Generally, plaintiff opposes each component’s decision to withhold in part or in full any of the information he has requested. See Compl. at 8; Pl.’s Opp’n at 17-19. The Court therefore declines to treat defendant’s motion as conceded and proceeds to address each claimed exemption in turn. 1. Exemption 2 Exemption 2 shields from disclosure information that is “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules and practices” is interpreted to include not only “minor employment matters” but also “other rules and practices governing agency personnel.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc). The “information need not actually be ‘rules and practices’ to qualify under [Exemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990) (emphasis in original). Exemption 2 applies if the information sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d at 1074; see also Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.Cir.2009); Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898 F.2d at 794 (citations omitted); see also Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d at 869. “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992), and such “high 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates" }, { "docid": "12150777", "title": "", "text": "from disclosure under FOIA Exemption 1. See, e.g., Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 375-76 (D.C.Cir.2007). As such, the Court concludes that the DIA has established that it properly invoked FOIA Exemption 1 to withhold information from DIA Document Number One. b. FOIA Exemption % The DIA also withheld information from both DIA Document Number One and DIA Document Number Two pursuant to FOIA Exemption 2. Kinsey Decl. ¶ 21. According to Mr. Kinsey’s Declaration and the DIA’s Vaughn index, the withheld information includes “office symbols, internal document or messaging codes, routing directions and telephone identifiers of U.S. government agencies and offices engaged in the collection of foreign intelligence information,” as well as the “intelligence information report (IIR) number and administrative number assigned to the preparer of the IIR.” Id. ¶ 21 & Tab A. FOIA Exemption 2 protects information “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The D.C. Circuit has held that FOIA Exemption2 applies to material that is “used for predominantly internal purposes,” and that this constitutes a “threshold test” for the Exemption’s application. Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992) (quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981)). Once this test is met, “an agency may withhold the material ‘by proving that either [1] disclosure may risk circumvention of agency regulation, or [2] the material relates to trivial administrative matters of no genuine public interest.’ ” Id. (quoting Schwaner v. Air Force, 898 F.2d 793, 794 (D.C.Cir.1990)) (citations omitted). In the instant case, the DIA asserts that the material withheld from DIA Documents Numbers One and Two is of the latter variety, known as “low 2” material. Five Defs.’ MSJ at 24 (citing Kinsey Deck ¶¶ 20-21); see also Schiller, 964 F.2d at 1207 (describing “high 2” and “low 2” material). Plaintiffs Cross-Motion/Opposition argues that the DIA fails to meet the threshold “predominantly internal” test because the withheld information — message routing data, IIR report numbers, and administrative numbers assigned to the preparers of the IIRs — “all relate" }, { "docid": "20429264", "title": "", "text": "a single regulation or part of a regulation may appear harmless, such information may be very valuable as part of a ‘mosaic’ of information gleaned from various sources, including regulations or pieces of regulations, collected over time”). As a result, the court concludes, based on the Lambert declaration and the Vaughn index, that the defendant has satisfied its burden of offering a “plausible assertion” that the information withheld was properly classified. Morley, 508 F.3d at 1124. And the court in turn defers to the defendant’s “facially reasonable concerns” regarding the damage that disclosure of the withheld documents would cause to national security. See Lambert Deck ¶¶ 44-50, 55; Frugone v. CIA, 169 F.3d 772, 775 (D.C.Cir.1999); Military Audit Project, 656 F.2d at 738. Accordingly, the court holds that the defendant properly invoked Exemption 1 in withholding information that the plaintiff requested. c. Legal Standard for Exemption 2 Withholding Exemption 2 protects materials that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Information is exempt under Exemption 2 if it meets two criteria. First, the information must be “used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc); see also Nat’l Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794 (D.C.Cir.1990) (citations omitted). Materials exempt under Exemption 2 fall into two categories: “high 2” and “low 2.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir. 1992). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Id. “Low 2” exempt materials include such items as “file numbers, initials, signature and mail routing stamps, references to interagency transfers, and data processing references,” Scherer v. Kelley, 584 F.2d 170,175-76 (7th Cir.1978), cert. denied sub nom. Scherer v." }, { "docid": "12150778", "title": "", "text": "purposes,” and that this constitutes a “threshold test” for the Exemption’s application. Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992) (quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981)). Once this test is met, “an agency may withhold the material ‘by proving that either [1] disclosure may risk circumvention of agency regulation, or [2] the material relates to trivial administrative matters of no genuine public interest.’ ” Id. (quoting Schwaner v. Air Force, 898 F.2d 793, 794 (D.C.Cir.1990)) (citations omitted). In the instant case, the DIA asserts that the material withheld from DIA Documents Numbers One and Two is of the latter variety, known as “low 2” material. Five Defs.’ MSJ at 24 (citing Kinsey Deck ¶¶ 20-21); see also Schiller, 964 F.2d at 1207 (describing “high 2” and “low 2” material). Plaintiffs Cross-Motion/Opposition argues that the DIA fails to meet the threshold “predominantly internal” test because the withheld information — message routing data, IIR report numbers, and administrative numbers assigned to the preparers of the IIRs — “all relate to the collection of information,” and “enable[] researchers and scholars to track the dissemination of information.” PI.’s Cross-MSJ at 7. As the D.C. Circuit has explained, however, because “any ‘internal personnel rule and practices of an agency’ have some effect on the public-at-large,” material is considered predominantly internal where it “was designed to establish rules and practices for agency personnel and [] involve[s] no ‘secret law of the agency.” Schiller, 964 F.2d at 1207 (quoting Crooker, 670 F.2d at 1073). The information the DIA has withheld here relates to the “agency’s practices as to its internal routing and distribution,” Schwaner, 898 F.2d at 796, and does not constitute “secret law” of the DIA. Accordingly, it meets Exemption 2’s threshold “predominantly internal” test. Despite Plaintiffs protestations to the contrary, the DIA’s Vaughn Index and Mr. Kinsey’s Declaration also establish that the withheld material “relates to trivial administrative matters of no public interest.” Schiller, 964 F.2d at 1207. The withheld information identifies specific DIA personnel and operating locations. See Kinsey Deck Tab. A at 1. While it" }, { "docid": "1502360", "title": "", "text": "that identify the Department’s tolerance for mistakes, and dollar amounts of potential fines. The Department claims that Exemption 2 protects from disclosure these three categories of information. Def.s’ Mot. for Summ. J. at 10-11. Plaintiff has filed a cross-motion for summary judgment. Plaintiff claims that the Department’s responses fail to identify which documents are responsive to each of plaintiffs particular requests, fail to state that all relevant documents have been provided, and fail to state that any documents not provided fall under any of the FOIA exemptions. Mem. of P. & A. in Support of Pi’s Mot. for Summ. J. and Pi’s Opp. to Defs Mot. for Summ. J. at 4-5. Discussion 1. Exemption % of the FOIA Exemption 2 of the FOIA allows for the nondisclosure of material “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2) (1994). Courts have interpreted Exemption 2 to encompass two specific categories of information: (1) internal matters of a relatively trivial nature—referred to as “low 2” information; and (2) internal matters that are more substantial, the disclosure of which would risk circumvention of the law—referred to as “high 2” information. See Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992); see also Founding Church of Scientology v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983). It is evident that the Department and plaintiff both believe that the information at issue in this case does not qualify as “low 2” information. It is therefore necessary to examine whether the information at issue in this case qualifies as “high 2” information. Our Court of Appeals has developed a two-part test for determining when such information qualifies as “high 2” information and consequently is exempt from mandatory disclosure. The test requires (1) that a requested document be predominantly internal, and (2) that its disclosure “significantly risks circumvention of agency regulations or statutes.” Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1074 (D.C.Cir.1981) (en banc). A. Predominantly internal To qualify under the first prong of Crooker as “predominantly internal” information, the information at issue must not constitute “secret" }, { "docid": "16780718", "title": "", "text": "that are “related solely to the internal personnel rules and practices of an agency.” § 552(b)(2). Despite the statute’s reference to documents related “solely” to internal rules and practices, we have interpreted Exemption 2 to cover documents that are “predominantly internal” and that meet one of two additional requirements. Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1074 (D.C.Cir.1981) (en banc). The first, known as the “low 2” exemption and not at issue here, applies to predominantly internal materials that relate to “trivial administrative matters of no genuine public interest.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992) (internal quotation marks omitted). The second, known as the “high 2” exemption, id., and claimed by OMB in this case, applies to predominantly internal materials if their disclosure “significantly risks circumvention of agency regulations or statutes,” Stolt-Nielsen Transp. Group Ltd. v. United States, 534 F.3d 728, 732 (D.C.Cir.2008) (internal quotation marks omitted). We have confronted the “high 2” exemption in two key cases. In Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978), we ordered the release of prosecutorial guidelines used by United States Attorneys, finding that the guidelines fail to qualify as predominantly internal. We explained that the guidelines are not “personnel” rules and thus fall outside the statutory exemption for documents “related solely to the internal personnel rules and practices of an agency.” Id. at 763. We also emphasized that the guidelines have a “definite impact on the public.” Id. In Crooker v. Bureau of Alcohol, Tobacco & Firearms, which we heard en banc, we retreated from Jordan’s, rebanee on Exemption 2’s use of the term “person nel,” but nonetheless affirmed Jordan’s holding that the guidelines were not predominantly internal. 670 F.2d 1051, 1073-75 (D.C.Cir.1981). We reasoned: “The guidelines on prosecutorial discretion are instructions to agency personnel (e.g., prosecutors) on how to regulate members of the public. Knowledge of those regulations may be as significant to members of the public as is knowledge of statutory sentencing provisions.” Id. at 1075. As to the document at issue in Crooker itself — a Bureau of Alcohol, Tobacco" }, { "docid": "9728760", "title": "", "text": "possible, even those records previously deemed non-responsive. Specifically, the FBI released not only the 74 pages of lab reports deemed responsive by the DEA, but also the remaining 534 pages of lab reports of questionable relevance. See Hardy II Decl. ¶¶ 8-11; Hardy III Decl. ¶ 15. Similarly, the EOUSA released not only records deemed responsive to his original FOIA request, but also any other information that did not fall within a recognized FOIA exemption. See Rev. Stearns II Decl. ¶¶ 4-5. These components, then, voluntarily provided the plaintiff with records that they were not required to disclose under the FOIA. C. Exemptions 1. Exemption 2 Exemption 2 shields from disclosure information that is “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules and practices” is interpreted to include not only “minor employment matters” but also “other rules and practices governing agency person nel.” Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc). The “information need not actually be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990). Exemption 2 applies'if the information that is sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crook-er, 670 F.2d at. 1074; see Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C.Cir.1986). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public" }, { "docid": "21838260", "title": "", "text": "of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules and practices” is interpreted to include not only “minor employment matters” but also “other rules and practices governing agency person nel.” Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C.Cir.1981) (en banc). The “information need not actually be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 795 (D.C.Cir.1990). Exemption 2 applies if the information that is sought meets two criteria. First, such information must be “used for predominantly internal purposes.” Crooker, 670 F.2d at 1074; see Nat’l Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 528 (D.C.Cir. 1985). Second, the agency must show either that “disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial administrative matters of no genuine public interest.” Schwaner, 898 F.2d at 794 (citations omitted). “Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992). “High 2” exempt information is “not limited ... to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the material at issue merely relates to trivial administrative matters of no genuine public interest, it is deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C, Inc. v. Smith, 721 F.2d 828, 830-31 n. 4 (D.C.Cir.1983). “Low 2” exempt materials include such items as “file numbers, initials, signature and mail routing stamps, references to interagency transfers, and data processing references,” Scherer v. Kelley, 584 F.2d 170, 175-76 (7th Cir.1978), cert. denied sub nom. Scherer v. Webster, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979), and other “trivial administrative data such as ... data processing notations[ ] and other administrative markings.” Coleman v. Fed. Bureau of Investigation, 13 F.Supp.2d 75, 78 (D.D.C.1998) (citation omitted). a. FBIHQ i. Telephone and Fax Numbers From both main file 245-HQ-657" } ]

[ { "docid": "22803298", "title": "", "text": ";pro se, hence we have searched for a means of relieving him from this harsh result. We have struggled with three possible theories, all of which we ultimately found cannot salvage this untimely appeal. A. First, we have examined whether Smith’s motion for reconsideration can be construed as a motion for relief from judgment due to mistake, pursuant to Fed. R. Civ. P. 60(b)(1), which may be filed within a reasonable time, up to one year, after judgment. If it can be so construed, then its filing was timely. A Rule 60(b) motion is not one of the motions listed in Rule 4(a)(4), Fed. R. App. P., which tolls the time for filing a notice of appeal. Moreover, the grant or denial of a Rule 60(b) motion is an appealable order. Smith filed, within ten days, a motion to reconsider the July 24 order granting him $1.00 in damages, see Eleby v. American Medical Systems, 795 F.2d 411 (5th Cir.1986) (reconsideration of an order disposing of a Rule 60 motion is permitted), and he also filed a timely notice of appeal from the order denying the motion for reconsideration. Accordingly, if the May 13 motion can be construed as a Rule 60(b) motion, then the court has jurisdiction to hear this appeal. The May 13 motion, however, is clearly a motion to alter or amend the judgment, pursuant to Rule 59(e), rather than a Rule 60(b) motion. Smith cites Rule 59(e) in the motion and calls it a “motion to amend or alter judgment.” And in its order granting Smith twenty days to prove damages, the district court labeled Smith’s motion as a “motion of the plaintiff pursuant to Fed. R. Civ. P. 59(e) to amend our judgment,” treated it as a motion made pursuant to Rule 59(e) and referred to it as such in a later memorandum. Because the function of the motion, not the caption, dictates which Rule applies, see Turner v. Evers, 726 F.2d 112, 114 (3d Cir.1984), we do not rely solely on the fact that the appellant and the court both labeled the motion a" } ]

[ { "docid": "14884952", "title": "", "text": "the probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of litigation involved, and the expense, inconvenience and delay necessarily attending it; and (d) the paramount interest of creditors and a proper deference to their reasonable views in the premise. In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir.1990), cert. denied 498 U.S. 959, 111 S.Ct. 387, 112 L.Ed.2d 398 (1990). As previously noted, Boegner was present at the hearing on the Motion to approve the compromise and fully supported the compromise with the proviso that any distribution on the Darlings’ claim would be paid into Boegner’s counsel’s trust account. The Liquidating Trustee assessed the litigation risks, including the costs as sociated with the same and represented that it made no sense to spend additional dollars that would go to the unsecured creditors to fight the Darlings’ claim. In the situation, such as here, where the time for appeal has expired, a motion to reconsider should be treated as a motion for relief from judgment under Federal Rule of Bankruptcy Procedure 9024. See In re Cleanmaster Industries, Inc., 106 B.R. 628, 629 (9th Cir. BAP 1989). Fed.R.Bankr.Pro. 9024 adopts Federal Rule of Civil Procedure 60, which provides in pertinent part, (b) Mistakes; Inadvertence; Excusable neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (l)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b). Rule 60 of the Federal Rules of Civil Procedure sets forth the standards for reconsideration of claims and helps define “cause” under § 502(j). Id. In the instant Motion for Reconsideration, Boegner in essence has" }, { "docid": "9330186", "title": "", "text": "727 because, had the debtor responded and the § 362 motion been decided in plaintiff’s favor, the District Court would have been free to rule on the issue of dischargeability. See Plaintiff’s Brief, p. 9. Assuming, arguendo, that the stay had been lifted, the District Court would indeed have been able to issue a decision. However, such a decision on the District Court civil fraud complaint would not necessarily have been res judicata or have collaterally estopped us from reaching an independent decision on the issue of dis-chargeability. See e.g., Wilmington Trust Company v. Behr (In re Behr), 42 B.R. 922, 927 (Bankr.E.D.Pa.1984) (and cases cited therein). If the District Court could not have determined dischargeability, the only way that the issue might have come to our attention was through a complaint pursuant to 11 U.S.C. § 523 or § 727. No such filings are of record, which, of course, is why the case is pending in its present posture. Thus, even using plaintiffs own standard, debtor’s failure to respond was not “material.” Plaintiff has suggested that we might exercise our equitable powers to determine that the failure to cooperate in preparation of the stipulation constituted a failure to answer a material question. Rule 60(b) of the Federal Rules of Civil Procedure, made applicable to bankruptcy cases through B.Rule 9024, provides: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; ... (6) any other reason justifying relief from the operation of the judgment ... Fed.R.Civ.P. 60(b). Interpreting this provision, a bankruptcy court has required that a party seeking relief under Rule 60(b) must show “... ‘extraordinary’" }, { "docid": "4734844", "title": "", "text": "is now estopped from raising these argument. In addition, the Debtor invokes Federal Rule of Bankruptcy Procedure 9011. He maintains that the pleadings filed in this adversary proceeding are not well-grounded in fact, and thus violate Bankruptcy Rule 9011. The Debtor seeks undisclosed attorney’s fees and costs incurred during the course of this adversary proceeding. III. APPLICABLE STANDARDS The Seventh Circuit Court of Appeals has instructed courts to treat all sub stantive post-judgment motions, regardless of their captions, if filed within ten days of judgment, under Federal Rule of Civil Procedure 59. U.S. v. Deutsch, 981 F.2d 299, 301 (7th Cir.1992); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 957 F.2d 515, 517 (7th Cir.1992), cert. denied, 113 S.Ct. 91 (1992); Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986). Motions made thereafter are considered under the provisions of Rule 60 of the Federal Rules of Civil Procedure, as adopted by Bankruptcy Rule 9024. Because the motion to amend the judgment was served on November 8, 1993, within ten days of the entry of the judgment, the procedural standards and authorities construing Rules 59 and 9023 control rather than the authorities under Rules 60 and 9024. Motions made under Rule 59 serve to correct manifest errors of law or fact, or to consider the import of newly discovered evidence. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557 (7th Cir.1985); Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984); F/H Industries, Inc. v. National Union Fire Ins. Co., 116 F.R.D. 224, 226 (N.D.Ill.1987). The function of a motion made pursuant to Rule 59(e) is not to serve as a vehicle to relitigate old matters or present the ease under a new legal theory. Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986); Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D.Ill.1976); In re BNT Terminals, Inc., 125 B.R. 963, 976-977 (Bankr.N.D.Ill.1990). The purpose of a motion to alter or amend “is not to give the moving party another ‘bite at the apple’ by" }, { "docid": "5450450", "title": "", "text": "court held that a debtor could convert his chapter 7 case to a case under chapter 13 and revoke his discharge when the discharge was meaningless. Jones, 111 B.R. at 676. In Caldwell, the court viewed the discharge as “meaningless,” because the debt- or’s only unsecured debts had been held non-disehargeable. Caldwell, 67 B.R. at 301. Additionally, the court saw no harm to any creditor by granting the debtor’s motion to revoke the discharge. Id. At no point in its decision did the Caldwell court discuss the implications of § 727(d). The Jones court, however, distinguished its situation from Caldwell, finding that a reaffirmation creditor and other unsecured creditors would be harmed if the discharge were revoked. The court also recognized that “the Bankruptcy Code provides for revocation of discharges granted under chapter 7 only in accordance with Code § 727(d) and (e).” Jones, 111 B.R. at 679. Despite § 727(d), the court was willing to weigh equitable considerations. Id. The court discussed the Tuan Tan Dinh decision and concluded that, under the circumstances, a chapter 7 discharge may be revoked upon the motion of a debtor filed pursuant to Federal Rule of Civil Procedure (“FRCP”) 59(e) and/or 60(b), as incorporated into Federal Rules of Bankruptcy Procedure (“FRBP”) 9023 and 9024. Id. at 680. After weighing the factors, the court denied the debtor’s request to vacate the discharge. In Tuan Tan Dinh, the debtor sought to vacate his discharge when he learned that his educational loan was not dischargeable. The debtor cited two cases where the courts va cated discharges to allow for the approval of post-discharge reaffirmation agreements. See Long, 22 B.R. at 152; In re Solomon, 15 B.R. 105, 106 (Bankr.E.D.Pa.1981). The debtor also argued that FRCP 59(e) and 60(b) allow for reconsideration of any order, including a discharge order. Tuan Tan Dinh, 90 B.R. at 744-45. The court stated that “the finality of a discharge order must be accorded special consideration. In that sense, it is like a confirmation order in a Chapter 11, 12, or 13 case, which will not be vacated for even the clearest" }, { "docid": "18527708", "title": "", "text": "R.Bankr.P. 9023(e). Federal Rule of Civil Procedure 60(b) — made applicable to bankruptcy proceedings by Bankruptcy Rule 9024 — authorizes a court to relieve a party from a final judgment or order for, among other reasons, mistake, inadvertence, surprise, or excusable neglect. Fed.R.Civ.P. 60(b); Fed. R. Bankr.P. 9024(b). Final bankruptcy orders can be set aside under Rule 9024. In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988). Rule 9024 provides authority for a court to revoke a discharge. In re Cisneros, 994 F.2d 1462, 1466 (9th Cir.1993). However, a debtor seeking relief under this Rule must show “extraordinary” circumstances which prevented relief through usual channels. Ackermann v. U.S., 340 U.S. 193, 199-202, 71 S.Ct. 209, 212-13, 95 L.Ed. 207 (1950). In the cases now before this Court, there is no evidence — nor even a suggestion — that the extraordinary circumstances required for relief to be granted pursuant to Bankruptcy Rules 9023 and 9024 are present. The parties simply permitted their discharge dates to pass without entering into reaffirmation agreements or forestalling the entry of the discharge by seeking extensions of time pursuant to Rule 4004(c)(2). “When the bankruptcy rules specifically provide such a simple and efficient tool, there should be no reason to resort to extraordinary remedies.” In re Graham, 297 B.R. at 700, citing In re Brinkman, 123 B.R. at 613. “Debtors have § 521(2)(B) (sic) and Fed.R.Bankr.P. 4004(c)(2) at their disposal, the use of which should preclude the need for vacating discharge orders to allow enforceable reaffirmation agreements in all but the most exceptional cases.” Edwards, 236 B.R. at 128. The facts before this Court in these two cases are unexceptional and demonstrate no basis whatsoever to warrant extraordinary relief. The troubling practice of permitting the entry of discharge orders without moving for deferral under Rule 4004(c)(2) and then seeking to “set aside” or vacate those discharge orders to allow the filing of untimely reaffirmation agreements must end. This Court will continue to give full consideration to any motion seeking relief from a discharge order — or any other order — pursuant to Bankruptcy Rules 9023" }, { "docid": "18527015", "title": "", "text": "F.2d 1291, 1292-93 (9th Cir.1982); In re Martinelli, 96 B.R. 1011, 1012 (9th Cir. BAP 1988). DISCUSSION Federal Rule of Civil Procedure 60(b) is applicable in bankruptcy through Federal Rule of Bankruptcy Procedure 9024. FRCP 60(b) states in pertinent part: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. ... Fed.R.Civ.P. 60(b). To the extent that the motion to amend order was brought under subsections (1) or (3) of FRCP 60(b), a one year statute of limitations applies and debtors’ motion would be barred as untimely. However, to the extent that either 60(b)(4) or (6) are grounds for the debtors’ motion, the one year statute does not apply and the motion need only be brought within a reasonable time. The bankruptcy court found that the motion to amend was brought pursuant to subsections (1) [mistake, inadvertence, surprise, or excusable neglect], or (3) [fraud, misrepresentation, or other misconduct of an adverse party]. Because the motion was not brought until four years after the order was entered, it was barred by the one year statute of limitations. We agree. It is well established that a motion cannot be granted under FRCP 60(b)(6) if the motion can be" }, { "docid": "5450451", "title": "", "text": "chapter 7 discharge may be revoked upon the motion of a debtor filed pursuant to Federal Rule of Civil Procedure (“FRCP”) 59(e) and/or 60(b), as incorporated into Federal Rules of Bankruptcy Procedure (“FRBP”) 9023 and 9024. Id. at 680. After weighing the factors, the court denied the debtor’s request to vacate the discharge. In Tuan Tan Dinh, the debtor sought to vacate his discharge when he learned that his educational loan was not dischargeable. The debtor cited two cases where the courts va cated discharges to allow for the approval of post-discharge reaffirmation agreements. See Long, 22 B.R. at 152; In re Solomon, 15 B.R. 105, 106 (Bankr.E.D.Pa.1981). The debtor also argued that FRCP 59(e) and 60(b) allow for reconsideration of any order, including a discharge order. Tuan Tan Dinh, 90 B.R. at 744-45. The court stated that “the finality of a discharge order must be accorded special consideration. In that sense, it is like a confirmation order in a Chapter 11, 12, or 13 case, which will not be vacated for even the clearest of equitable grounds.” Id. at 745 (citations omitted). The Tuan Tan Dinh court then determined that the equitable considerations for vacating default judgments in the context of a FRCP 59(e) or 60(b) motion were applicable. Id. at 744-45. The court held that when prejudice to the parties and the debt- or’s lack of culpability in allowing the order to be entered tip sharply in favor of the debtor, the bankruptcy court has the power to vacate a discharge order. Id. at 746. Weighing these considerations, the court denied the debtor’s request. Id. at 747. In its November 17, 1995 order, the bankruptcy court considered the Jones and Tuan Tan Dinh eases and decided not to follow the minority view as expressed in these cases, because the United States Supreme Court in Ron Pair instructed the lower courts to enforce the plain language of a statute. Additionally, the bankruptcy court determined that it must exercise its equitable powers within the confines of the Code. See Order of Nov. 17, 1995 at 2 (“There are two cases" }, { "docid": "15274158", "title": "", "text": "previously the standards for vacating or reconsidering an order under Bankruptcy Rules 9023 and 9024. See In re Andrews, No. 14-36384, 2015 WL 4470069, at *4-5 (Bankr.E.D.Va. July 21, 2015) (denying a debtor’s motion to vacate a dismissal of his Chapter 7 case). Under Bankruptcy Rule 9023, the Objectors must demonstrate that this Court’s Termination Order constituted a manifest error of law. Bankruptcy Rule 9023 incorporates Federal Rule of Civil Procedure 59. Relief under Rule 59(e) is an extraordinary remedy. Exercise of this power must of necessity be used sparingly. When issues have been carefully considered and decisions rendered, the only reason which should commend reconsideration of that decision is a change in the factual or legal underpinning upon which the decision was based, (citations and internal quotations marks omitted). The purpose of such a motion “is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki 779 F.2d 906, 909 (3rd Cir.1985). Andrews, 2015 WL 4470069, at *4. To prevail under Rule 9024, which incorporates Rule 60 of the Federal Rules of Civil Procedure, a movant must meet four threshold requirements: (i) the motion must be timely; (ii) the movant must have a meritorious defense to the action; (iii) the opposing party must not be unfairly prejudiced by having the judgment set aside; and (iv) exceptional circumstances must warrant the requested relief. Andrews, 2015 WL 4470069, at *5 (citing Summit City Limits, LLC v. AMF Bowling Worldwide (In re AMF Bowling Worldwide), No. 12-36495, 2013 WL 5575470, at *3 (Bankr.E.D.Va. Oct. 9, 2013); see Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.1993). After satisfying these four threshold requirements, a movant must meet one of six grounds set forth in Rule 60(b): (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representa tive from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable" }, { "docid": "21181204", "title": "", "text": "discharge under certain circumstances. See e.g., Cisneros v. United States (In re Cisneros), 994 F.2d 1462, 1466 (9th Cir.1993) (holding within the context of Chapter 13 case that the bankruptcy court was not foreclosed from relying on Rule 60(b) to vacate a Chapter 13 discharge); Mosby, 244 B.R. at 90; Aden, 237 B.R. at 725; In re Tardiff, 137 B.R. 83, 85-89 (Bankr.D.Me.1992); In re Jones, 111 B.R. 674, 680 (Bankr.E.D.Tenn.1990); In re Tuan Tan Dinh, 90 B.R. 743, 745 (Bankr.E.D.Pa.1988); In re Long, 22 B.R. 152, 154 (Bankr.D.Me.1982). While some precedent holds otherwise, United States v. Trembath (In re Trembath), 205 B.R. 909, 914 (Bankr.N.D.Ill.1997) (court stated “that Rule 60(b) should not be generally applied to vacate discharge orders In re Fischer, 72 B.R. 111, 114 (Bankr.D.Minn.1987) (“A discharge in bankruptcy is not analogous to an entry of judgment, subject to vacation under Fed.R.Civ.P. 60(b).”). The Seventh Circuit opinion in Rasmussen in the year 2005 certainly recognized the possibility of a Chapter 7 debt- or using Rule 60(b) to obtain relief from a discharge order. Under Rule 60(b), a party may seek relief from a final judgment, order or proceeding based on: (1)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. Pro. 60(b). This court’s research has not uncovered any published decision that relied on or even discussed “newly discovered evidence” as the basis for revoking a discharge. See e.g., Mosby, 244 B.R. at 90 (the court omitted “newly discovered evidence” from its application of Rule 60(b) to the debtor’s request to vacate the" }, { "docid": "21511824", "title": "", "text": "the burden of proving that reconsideration of the nondis-chargeability order is appropriate. Matter of Homestead Partners, Ltd., 201 B.R. 1014, 1018 n. 4 (Bankr.N.D.Ga.1996). A motion for reconsideration may be brought pursuant to Fed.R.Civ.P. 59(e) or 60(b). Federal Rules 59(e) and 60(b) are incorporated into the Bankruptcy Rules and, with exceptions that do not apply in this case, they are identical to Bankruptcy Rules 9023(e) and 9024(b). Therefore, nonbank-ruptcy cases that interpret the rules are applicable. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689 (M.D.Fla.1994). “If the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b).” Id. at 694. Debtors filed their motion for reconsideration within ten days of the January 17, 2008 judgment; therefore, the Court will consider the motion under Rule 59(e). I. Standard for Reconsideration A motion for reconsideration “is an extraordinary remedy” that is to be used by the courts “sparingly.” Mathis v. United States of America (In re Mathis), 312 B.R. 912, 914 (Bankr.S.D.Fla.2004) (quoting Sussman, 153 F.R.D. at 694). A motion to alter or amend a judgment may be brought pursuant to the Federal Rule of Civil Procedure 59(e). Fed. R. Bankr.P. 9023. “Rule 59(e) does not set forth any grounds for relief and the district court has considerable discretion in reconsidering an issue;” Sussman, 153 F.R.D. at 694 (citing to American Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238-39 (11th Cir.1985)). The grounds for granting reconsideration of an order are limited to (1) an intervening change in the law, (2) consideration of newly discovered evidence, and/or (3) correcting clear error or preventing manifest injustice. In re Mathis, supra. The Debtors move for reconsideration based on their assertion that the debt of the Credit Union should be discharged given the facts of the case under the “prudent person” standard and section 726(a)(2)(C). It is clear from the case law that Debtors cannot move for reconsideration based on this new argument that was available at the time of" }, { "docid": "7637929", "title": "", "text": "either on motion of a party made within ten days of entry of a judgment, see Fed.R.Civ.P. 59(a), or on the court’s initiative within such ten day period, see Fed.R.Civ.P. 59(d). Additionally, and perhaps most frequently employed, Rule 59(e) permits the court to entertain motions to alter or amend a judgment if made within ten days of entry of the judgment. Bankruptcy Rule 9024, adopts Rule 60 from the Federal Rules of Civil Procedure. Rule 60(b), which is relevant to this appeal, authorizes the court to grant relief because of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation or misconduct of an adverse party; (4) entry of a void judgment; (5) release, satisfaction or discharge of the judgment; or (6) any other reason justifying relief from the judgment. A Rule 60(b) motion must be made within a reasonable time and does not affect the finality of the judgment or suspend its operation. See Fed. R.Civ.P. 60(b); see also Assoc. for Retarded Citizens v. Sinner, 942 F.2d 1235, 1239 (8th Cir.1991) (“Although the filing of a Rule 60(b) motion for relief from a final order does not extend a party’s time to appeal the underlying order, the denial of Rule 60(b) relief is appealable.”). We first address the Motion to Vacate.' Because Debtors neglected to identify under which rule they were proceeding in their Motion to Vacate, they left “the characterization of the motion to the court’s somewhat unenlightened\" guess.” Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988). When a moving party fails to specify the rule under which it makes a post-judgment motion, the characterization is left to the court with the risk that the moving party may lose the opportunity to present the merits underlying the motion to an appellate court. Sanders, 862 F.2d at 168 (8th Cir.1988). Typically, such motions have been characterized as motions under either Fed. R.Civ.P. 59 or 60, with the precise categorization depending to some extent" }, { "docid": "4759423", "title": "", "text": "(3d Cir.1988); and In re Campfire Shop, Inc., 71 B.R. 521, 523-24 (Bankr.E.D.Pa.1987). A Rule 59(e) motion is available to correct a broad range of alleged errors, including a “relitigatpon] [of] the original issue,” Smith, supra, at 158, or a correction of “judicial errors,” otherwise confined to appeals. Campfire Shop, 71 B.R. at 524. A Rule 60(b) motion, on the other hand, contemplates relief on the basis of a mistake, inadvertence, excusable neglect, or newly-discovered evidence by a party, or “any other reason.” However, such a motion does not, generally, empower the court to change its decision if it believes, after submission of the motion, that it has simply erred on legal grounds. See Smith, at 158-59; and 7 J. MOORE, FEDERAL PRACTICE, ¶ 60.22[2], at 60-175 to 60-185 (2d ed. 1988). We believe that the finality of a discharge order must be accorded special consideration. In that sense, it is like a confirmation order in a Chapter 11, 12, or 13 case, which will not be vacated for even the clearest of equitable grounds, see, e.g., In re Brown, 76 B.R. 1013 (Bankr.E.D.Pa.1987) (mortgagee not entitled to revoke confirmation order even though it filed its proof of claim in error due to confusion of the debtor with another debtor of the same name). A confirmation order may generally be vacated only if fraud is alleged to have been perpetrated in its procurement, and even then only if a motion to revoke it is filed within 180 days after its entry. See 11 U.S.C. §§ 1144, 1230, 1330. See also, In re Gronski, 86 B.R. 428, 431-32 (Bankr.E.D.Pa.1988); In re Bonanno, 78 B.R. 52, 55-56 (Bankr.E.D.Pa.1987); and In re Young, 76 B.R. 504, 506 (Bankr.E.D.Pa.1987). The same is true of a discharge order, in light of 11 U.S.C. §§ 727(d) and (e). This is not to say that, under no circumstances, does a court ever have the power to vacate a confirmation order — or a discharge order — entered in error. A good case in point is In re Rideout, 86 B.R. 523 (Bankr.N.D.Ohio 1988). There, the court set" }, { "docid": "21181203", "title": "", "text": "some reprehensible behavior. More to the point, Chapter 7 debtors are given a clear right to seek conversion to Chapter 13 “at any time” under § 706(a), and can try to save their homes or other property thereby. The Code should be viewed as encouraging and permitting debtors to pay their debts in Chapter 13 and thereby save property needed for their lives and families and should not be read to bar that possibility unless the statute clearly bars it. In short, the different nature of interests of parties named in § 727(d) and the interests of debtors require conclusion that the statutory listing does not under rules of construction bar debtors from seeking to vacate their discharge. 3. Rule 60(b) Fed.R.Civ.P. Provides Authority for Debtors ’ Motion While authorities have doubted the equitable power of a Bankruptcy Judge to revoke the Debtors’ discharge on court’s own volition, it has been held that Rule 60(b) Fed.R.Civ.P. (as adopted by Rule 9024 Fed. R. Bankr.P.) may permit courts to grant a debtor’s request to vacate a discharge under certain circumstances. See e.g., Cisneros v. United States (In re Cisneros), 994 F.2d 1462, 1466 (9th Cir.1993) (holding within the context of Chapter 13 case that the bankruptcy court was not foreclosed from relying on Rule 60(b) to vacate a Chapter 13 discharge); Mosby, 244 B.R. at 90; Aden, 237 B.R. at 725; In re Tardiff, 137 B.R. 83, 85-89 (Bankr.D.Me.1992); In re Jones, 111 B.R. 674, 680 (Bankr.E.D.Tenn.1990); In re Tuan Tan Dinh, 90 B.R. 743, 745 (Bankr.E.D.Pa.1988); In re Long, 22 B.R. 152, 154 (Bankr.D.Me.1982). While some precedent holds otherwise, United States v. Trembath (In re Trembath), 205 B.R. 909, 914 (Bankr.N.D.Ill.1997) (court stated “that Rule 60(b) should not be generally applied to vacate discharge orders In re Fischer, 72 B.R. 111, 114 (Bankr.D.Minn.1987) (“A discharge in bankruptcy is not analogous to an entry of judgment, subject to vacation under Fed.R.Civ.P. 60(b).”). The Seventh Circuit opinion in Rasmussen in the year 2005 certainly recognized the possibility of a Chapter 7 debt- or using Rule 60(b) to obtain relief from a discharge" }, { "docid": "18098324", "title": "", "text": "has passed and other debts have been discharged, the debtor should not be able to attack a reaffirmation agreement); In re Saunders, 169 B.R. 192, 195 (Bankr.W.D.Mo.1994) (citing Grabinski); In re Ripple, 242 B.R. 60, 64-65 (Bankr.M.D.Fla.1999); In re McCreless, 141 B.R. 223, 224 (Bankr.N.D.Fla.1992) (“Nowhere does the Code give the Court the authority to set aside a reaffirmation agreement after the time for rescission has passed.”). A contrary rule would compromise the rights of creditors, who likely have relied on the reaffirmation agreement in structuring their own finances. Grabinski, 150 B.R. at 431. Rule 9024 does preserve a party’s right to move for relief in accordance with Federal Rule of Civil Procedure 60, and even removes the one-year limitation period Rule 60 places upon such motions in ordinary civil actions. See Fed. R. Bankr.P. 9024. Nonetheless, it is unclear whether the facts of this case would meet the criteria under Rule 60, or even whether relief under Rule 60 is ever appropriate when Section 524 of the Bankruptcy Code has already provided explicit time limits. Compare In re Tuan Tan Dinh, 90 B.R. 743, 745-46 (Bankr.E.D.Pa.1988) (finding that Rule 60 could be invoked to enforce valid reaffirmation agreement where balance of prejudice favored the debtor and the original oversight was not the fault of the debtor, but the creditor) and In re Edwards, 236 B.R. 124, 127-28 (Bankr.D.N.H.1999) (adopting approach of Tuan Tan Dinh) with In re Markovich, 207 B.R. 909, 913 (9th Cir. BAP 1997) (characterizing such holdings as “the minority view” and holding that, under Supreme Court precedent, bankruptcy courts’ equitable powers are limited to the provisions of the Bankruptcy Code) and In re Rigal, 254 B.R. 145, 147-48 (Bankr.S.D.Tex.2000) (questioning whether Rule 60 “is applicable” to requests to vacate discharges due to desire to enter reaffirmation agreements, given the specific provisions of Section 524 and other Bankruptcy Code provisions with regard to time limits). None of these factors were considered by the bankruptcy court, although they were urged upon it by the debtor, perhaps with a lesser degree of specificity. The evaluation of the prejudice to" }, { "docid": "7637928", "title": "", "text": "for appeal so that the time for appeal will begin running from the entry of an order disposing of such motions. Specifically, Rule 8002(b) provides that the timely filing of one of the following motions will toll the time for appeal: (1) a motion to amend or make additional findings of fact under Rule 7052, whether or not granting the motion would alter the judgment; (2) a motion to alter or amend the judgment under Rule 9023; (3) a motion for a new trial under Rule 9023; and (4) a motion for relief from the operation of a judgment or order under Rule 9024 if the motion is filed no later than ten days after the entry of judgment. Bankruptcy Rule 7052 incorporates Rule 52 of the Federal Rules of Civil Procedure and permits the court to amend its findings of fact on motion of a party in interest made within ten days of entry of an order. Bankruptcy Rule 9023 incorporates Rule 59 of the Federal Rules of Civil Procedure which permits new trials either on motion of a party made within ten days of entry of a judgment, see Fed.R.Civ.P. 59(a), or on the court’s initiative within such ten day period, see Fed.R.Civ.P. 59(d). Additionally, and perhaps most frequently employed, Rule 59(e) permits the court to entertain motions to alter or amend a judgment if made within ten days of entry of the judgment. Bankruptcy Rule 9024, adopts Rule 60 from the Federal Rules of Civil Procedure. Rule 60(b), which is relevant to this appeal, authorizes the court to grant relief because of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation or misconduct of an adverse party; (4) entry of a void judgment; (5) release, satisfaction or discharge of the judgment; or (6) any other reason justifying relief from the judgment. A Rule 60(b) motion must be made within a reasonable time and does not affect the finality of the judgment or" }, { "docid": "14884953", "title": "", "text": "a motion for relief from judgment under Federal Rule of Bankruptcy Procedure 9024. See In re Cleanmaster Industries, Inc., 106 B.R. 628, 629 (9th Cir. BAP 1989). Fed.R.Bankr.Pro. 9024 adopts Federal Rule of Civil Procedure 60, which provides in pertinent part, (b) Mistakes; Inadvertence; Excusable neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (l)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b). Rule 60 of the Federal Rules of Civil Procedure sets forth the standards for reconsideration of claims and helps define “cause” under § 502(j). Id. In the instant Motion for Reconsideration, Boegner in essence has repeated his argument that the Orders approving the compromise should be reconsidered due to newly discovered evidence. In addition, Boegner argues that the Orders should be reconsidered because the Darlings breached that term of the compromise which required the Darlings to cooperate with the Liquidating Trustee in furnishing information relating to their claims or the claims of other claimants. Rather than cooperate, Boegner contends that Mr. Darling faked to answer scores of questions pertaining to the financial dealings of the Debtor. Boegner points to a motion to compel the testimony of William Darling with regard to matters relevant to the case. This Court is not persuaded by Boegner’s renewed argument based upon newly discovered evidence. The evidence is not new. In addition, Boegner’s justification for failing to have this information available at the hearing on the motion to compromise, is that the information was privileged and not subject to discovery. This Court is not convinced that the information was undiscoverable. Even if it were, Boegner could have timely objected to the compromise on that basis." }, { "docid": "208733", "title": "", "text": "and 9023) and Rule 59(e) of the Federal Rules of Civil Procedure. Rule 9023 (new trials and amendments of judgments) states that Rule 59 of the Federal Rules applies except as provided in Rule 3008 (Reconsideration of Claims). Federal Rule 59(e) states that a motion to alter or amend a judgment shall not be made later than 10 days after its entry. The 10 day limitation which applies to appeals and would stay the time in which to appeal does not apply to reconsideration of claims. The comments to Rule 9023 state that under Federal Rule 59, the motion must be made within 10 days but that no similar time limit is contained in Rule 3008. The comments to Rule 3008 state that whereas 11 U.S.C. § 502(j) permits reconsideration of allowed claims only before a case is closed, no such limitation exists under Rule 3008. Authorities disagree as to whether reconsideration may be had after a case is reopened. The IRS motion was first made here on May 9, 1983 and amended May 25, 1983. There is no extension of time for the United States to move for reconsideration as in the time in which to appeal under Federal Rules of Appellate Procedure (4). Therefore, the motion for reconsideration may come under Rule 3008 which permits it until the closing of the case. The Bankruptcy Rules contemplated the power of the Bankruptcy Court to reconsider its orders, notwithstanding any power of appeal, beyond the 10 day limit. Rule 9024 (Relief From Judgment or Order) adopts Federal Rule 60 in permitting relief from judgment on showing of (1) mistake, excusable neglect, (2) newly discovered evidence, (3) fraud, etc. Rule 60 permits such relief only within a year. Rule 9024 states that a motion to reconsider an order allowing or disallowing a claim made without contest is not subject to the one year limitation. Another Bankruptcy Rule which contemplates reconsideration by the Bankruptcy Court notwithstanding any right of appeal is B.R. 7055 which adopts Federal Rule 55. Federal Rule 55(c) states that for good cause, the Court may set aside the" }, { "docid": "18527707", "title": "", "text": "127 (Bankr.D.N.H.1999) (citing Fed. R.Bankr.P. 4004(c) Advisory Committee’s Note). Certainly, the debtor in each case before the Court could have filed a motion to defer the entry of the discharge in order to allow her time to enter into a reaffirmation agreement. Such motions are routinely granted. The failure to file such motions is inexplicable inasmuch as each debtor knew the date on or about which her discharge would be entered and clearly knew as those dates approached that the desired reaffirmation agreements had not been finalized. This Court acknowledges that relief from an order of discharge of the type sought in these cases can be granted under limited and proper circumstances. A court has the power to grant relief from its own judgments, and to open, correct, modify, or vacate judgments that it has entered. Federal Rule of Civil Procedure 59(e) — made applicable to bankruptcy proceedings by Bankruptcy Rule 9023 — permits a party to move to alter or amend a judgment within 10 days after entry of that judgment. Fed.R.Civ.P. 59(e); Fed. R.Bankr.P. 9023(e). Federal Rule of Civil Procedure 60(b) — made applicable to bankruptcy proceedings by Bankruptcy Rule 9024 — authorizes a court to relieve a party from a final judgment or order for, among other reasons, mistake, inadvertence, surprise, or excusable neglect. Fed.R.Civ.P. 60(b); Fed. R. Bankr.P. 9024(b). Final bankruptcy orders can be set aside under Rule 9024. In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988). Rule 9024 provides authority for a court to revoke a discharge. In re Cisneros, 994 F.2d 1462, 1466 (9th Cir.1993). However, a debtor seeking relief under this Rule must show “extraordinary” circumstances which prevented relief through usual channels. Ackermann v. U.S., 340 U.S. 193, 199-202, 71 S.Ct. 209, 212-13, 95 L.Ed. 207 (1950). In the cases now before this Court, there is no evidence — nor even a suggestion — that the extraordinary circumstances required for relief to be granted pursuant to Bankruptcy Rules 9023 and 9024 are present. The parties simply permitted their discharge dates to pass without entering into reaffirmation agreements or forestalling the entry" }, { "docid": "4759422", "title": "", "text": "agreements. In re Long, 22 B.R. 152 (Bankr.D.Me.1982); and In re Solomon, 15 B.R. 105 (Bankr.E.D.Pa.1981). Further, he argues that F.R.Civ.P. 59(e) and 60(b) allow reconsideration of any order, and that this should allow us to vacate the discharge order in issue here. See Long, supra, 22 B.R. at 154 (F.R.Civ.P. 60(b) allows vacation of discharge order). Cf. In re Moseley, 74 B.R. 791, 804 (Bankr.C.D.Cal.1987) (court states, in dictum, that a fnotion to alter or amend a confirmation order might be appropriate in certain circumstances). But see, Fischer, supra, 72 B.R. at 114; and Gruber, supra, 22 B.R. at 770 (discharge order is not analogous to a judgment, and is therefore not subject to relief under F.R.Civ. 59 or 60). There is a distinction between motions filed pursuant to F.R.Civ.P. 59(e), as opposed to those filed pursuant to F.R.Civ.P. 60(b). A Rule 59(e) motion must be served in timely fashion, which the Debtor here did accomplish, giving him the potential to invoke either procedural rule. See, e.g., Smith v. Evans, 853 F.2d 155, 157-62 (3d Cir.1988); and In re Campfire Shop, Inc., 71 B.R. 521, 523-24 (Bankr.E.D.Pa.1987). A Rule 59(e) motion is available to correct a broad range of alleged errors, including a “relitigatpon] [of] the original issue,” Smith, supra, at 158, or a correction of “judicial errors,” otherwise confined to appeals. Campfire Shop, 71 B.R. at 524. A Rule 60(b) motion, on the other hand, contemplates relief on the basis of a mistake, inadvertence, excusable neglect, or newly-discovered evidence by a party, or “any other reason.” However, such a motion does not, generally, empower the court to change its decision if it believes, after submission of the motion, that it has simply erred on legal grounds. See Smith, at 158-59; and 7 J. MOORE, FEDERAL PRACTICE, ¶ 60.22[2], at 60-175 to 60-185 (2d ed. 1988). We believe that the finality of a discharge order must be accorded special consideration. In that sense, it is like a confirmation order in a Chapter 11, 12, or 13 case, which will not be vacated for even the clearest of equitable grounds," }, { "docid": "14470673", "title": "", "text": "Rule 60(b) to support its argument that as a matter of law Rule 60(b) relief in the instant case constituted a request for injunctive relief under § 105. Indeed, the dissent fails to recognize the determinative distinction between a Rule 60(b) motion to vacate an order lifting the stay and a request to reimpose the automatic stay under 11 U.S.C. § 105(a). .See Metmor Fin., Inc. v. Bailey (In re Bailey), 111 B.R. 151, 152-53 (W.D.Tenn.1988) (affirming bankruptcy court's order granting debtor's Rule 9024 and Rule 60(b)(6) motion to vacate an order lifting the automatic stay); Ramirez v. Whelan (In re Ramirez), 188 B.R. 413, 416 (9th Cir. BAP 1995) (“Occasionally, it might suffice to revive the stay by way of motion for reconsideration under Federal Rules of Civil Procedure 59(e) or 60(b), which are applicable in bankruptcy by virtue of Federal Rules of Bankruptcy Procedure 9021 and 9023 [sic].\") (Klein, J., concurring); In re AL & LP Realty Co., 164 B.R. 231, 232-34 (Bankr.S.D.N.Y.1994) (recognizing that under Rules 9024 and 60(b)(6) debtor properly filed motion seeking relief from consent order modifying the automatic stay); In re Fuller, 111 B.R. 660, 661-63 (Bankr.S.D.Ohio 1989) (holding that a \"motion to reinstate automatic stay” was properly filed under Rules 9024 and 60(b) as a motion to vacate a default order lifting the automatic stay); In re Keul, 76 B.R. 79, 82 (Bankr.E.D.Pa.1987) (\"[A]n order granting relief from stay is subject to being altered or vacated pursuant to Fed.-R.Civ.P. 60(b)(6) and Bankr. Rule 9024.”); In re Kanuika, 76 B.R. 473, 477-78 (Bankr.E.D.Pa.1987) (allowing debtor to file a motion under Rules 9024 and 60(b) for relief from an order lifting the automatic stay); Commonwealth of Pennsylvania State Employes’ Retirement Fund v. Durkalec (In re Durkalec), 21 B.R. 618, 619-20 (Bankr.E.D.Pa.1982) (granting Chapter 7 debtor’s motion under Rule 60(b)(6) to vacate an order lifting the automatic stay due to changed circumstances). . Because we conclude that the Bankruptcy Rules permit a party to seek Rule 60(b) relief from an order lifting the automatic stay — thereby “reviving” the automatic stay- — we reject State Bank's" } ]

[ { "docid": "22069415", "title": "", "text": "93-1277, 93d Cong., 2d Sess. reprinted in 1974 U.S.C.C.A.N. 7051, 7056; 120 Cong.Ree. 37,085 (1974). The Advisory Committee and the Committee on Rules of Practice and Procedure then turned to the Conference Committee and again urged the adoption of the originally proposed version of Rule 301, arguing once more that “[bjasically the choice to be made in treating the effect to be given presumptions lies between giving them only the effect of a ‘bursting bubble’ and giving them the greater effect of imposing a burden of disproof once evidence has established the conditions that call the presumption into operation.” See 1 Weinstein’s Evidence at 301-7. However, the Conference Committee recommended adoption of the Senate version, Conf. Rep. No. 93-1597, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7098, 7099, and this recommendation was enacted. 120 Cong.Ree. 40,070, 40,897 (1974). Rule 301 states: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. Like the members of the McKenna panel and the other previously mentioned authorities, I think that the most reasonable interpretation of Rule 301 is that it incorporates the “bursting bubble” theory. The text of the rule supports this conclusion since it does not even hint that a presumption does anything but shift the burden of production. If Congress had intended for a presumption to have any further effect, such as guaranteeing that the presumed fact would not be rejected at the summary-judgment or judgment-as-a-matter-of-law stage, I think that Congress would have said so in the text of the rule. I do not think that Congress would have left it for the courts to divine, without any clue in the language of the rule, that a presumption should have such an important additional" } ]

[ { "docid": "21853413", "title": "", "text": "10 Moore’s Federal Practice § 301.04[2] (2d ed.). Testimony of non-receipt, standing alone, would be sufficient to support a finding of non-receipt; such testimony is therefore sufficient to rebut the presumption of receipt. The next question is whether the presumption, once rebutted, retains any effect. The Bankruptcy Court found that it was “entitled to presume that notice has been received once a proper mailing is made, even though the intended recipient testifies that the notice never really came.” The Bankruptcy Court reasoned as follows: According to the note of the Advisory Committee on Proposed Rules, Federal Rule 301 rejects the so-called “bursting bubble” theory, under which a presumption vanishes upon the introduction of evidence that negates the existence of the presumed fact. According to the Federal Rule, when evidence is put forth negating the fact that the presumption tends to support, the presumption still continues and is evidence to be weighed and considered with all of the other evidence in the case. Federal Rule of Evidence 301 provides in part: [A] presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. A brief review of the history of this rule will aid in evaluating the Bankruptcy Court’s reasoning. Before adoption of the Federal Rules of Evidence there were two major theories concerning the effect of a presumption once rebuttal evidence is admitted. Under the Thayer or “bursting bubble” theory a presumption vanishes entirely once rebutted, and the question must be decided as any ordinary question of fact. Under a later theory, proposed by Morgan, a presumption shifts the burden of proving the nonexistence of the presumed fact to the opposing party. The version of Rule 301 that was proposed by the Advisory Committee, accepted by the Supreme Court, and submitted to Congress adopted the Morgan view. That rule, however, was not enacted by Congress." }, { "docid": "4165981", "title": "", "text": "persuade the court of the nonexistence of the presumed fact, then the presumed fact is ignored. The party whose case depends on the existence of the presumed fact retains the risk of nonpersuasion on its existence and in his rebuttal may offer additional evidence to persuade the trier of fact to find the presumed fact just as it would any other fact in the case, (footnotes omitted) Mendez, Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases, supra at 1145 (emphasis added). This view of the shifting of the burden of production was articulated by Professor Thayer, and described as the “bursting bubble” because the presumption is supposed to have no effect once the opposing party produces sufficient evidence to warrant a finding of the' nonexistence of the presumed fact. The trier of fact could still draw a logical inference from the evidence in the prima facie case underlying a Thayer presumption, but no rule of law or special jury instruction would aid in drawing that inference. Id. at 1145-46 (emphasis added). The other view, that “a presumption should shift to the opposing party the risk of nonper-suasion on the nonexistence of the presumed fact, as well as the burden of producing evidence of its nonexistence”, id., was espoused by Professor Morgan and was rejected by the Supreme Court, at least insofar as a Title VII case is concerned, in Burdine, supra, although at least one commentator has suggested that the defendant, after Burdine, may continue to assume the burden of persuasion. See note 8, supra. Thayer’s approach to the effect of the presumption was adopted in Fed.R.Evid. 301: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. See also 10 Moore’s Federal" }, { "docid": "2351888", "title": "", "text": "error”). . The rule stales that: In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast. Colo. R. Evid. 301. . This interpretation of the effect of the presumption is in accord with \"[t]he most widely followed theory of presumptions,” often referred to as the \"bursting bubble” theory. Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1337 n. 13 (10th Cir.1989), ovemded on other grounds as recognized by Wagner v. Case Corp., 33 F.3d 1253, 1257 n. 4 (10th Cir.1994); see 2 Kenneth S. Broun, McCormick on Evidence § 344 at 508 (6th ed. 2006) (\"The most widely followed theory of presumptions in American law ... has become known as the Thayer or 'bursting bubble’ theory.... ”). .Chief Justice Rovira, joined by Justice Vollack, dissented. They would have held that § 13-21-403(3)’s presumption \"does constitute evidence.” Mile Hi, 842 P.2d at 207 (Rovira, C.J., concurring in part and dissenting in part) (emphasis added). \"So finding would enable this court to give some effect to the legislature’s action in passing this statute and thereby avoid a finding that the legislature passed a law which is utterly meaningless and ineffective....” Id. (citations omitted). . Appellants raised an additional objection to the presumption instruction before the district court — specifically, that the presumption did not apply because the particular steering cable at issue here was less than ten years old. The district court rejected this argument because it interpreted the phrase “[t]en years after a product is first sold for use or consumption,” Colo.Rev.Stat. § 13-21-403(3) (emphasis added), to mean “a type of product and not the particular product.” Aplt.App. at 960 (emphasis added). Appellants do not raise this argument on appeal. Accordingly, they have waived (that is, abandoned)" }, { "docid": "4165982", "title": "", "text": "view, that “a presumption should shift to the opposing party the risk of nonper-suasion on the nonexistence of the presumed fact, as well as the burden of producing evidence of its nonexistence”, id., was espoused by Professor Morgan and was rejected by the Supreme Court, at least insofar as a Title VII case is concerned, in Burdine, supra, although at least one commentator has suggested that the defendant, after Burdine, may continue to assume the burden of persuasion. See note 8, supra. Thayer’s approach to the effect of the presumption was adopted in Fed.R.Evid. 301: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. See also 10 Moore’s Federal Practice § 301.02 (2d ed. 1976). . Reeves claims that this court has held that the presumption occasioned by proof of the elements of the prima facie case, even if rebutted, is sufficient to create an “inference” raising an issue of fact if the jury disbelieves the defendant’s articulated reasons. Reeves relies on this court’s decision in Haring v. CPC Intern, Inc., 664 F.2d 1234 (5th Cir. 1981), for that proposition. In Haring we were examining the correctness of a jury instruction. The jury instruction at issue stated in relevant part: If a prima facie case is established by the plaintiff, the jury may infer that the employment decision to terminate was probably based upon the impermissible factor of age. I say that the jury may infer such, not that it must infer such, this being a matter solely for you to determine. Nothing said by counsel, the court, or any witness should be construed by you as requiring you to draw any such inference. The defendant in Haring, referring to note seven of Burdine" }, { "docid": "16950134", "title": "", "text": "one at issue here is not considered “evidence” by this court, because the presumption itself never was evidence. See AC. Aukerman, 960 F.2d at 1037; see also Michael H. Graham, 1 Handbook of Federal Evidence, § 301.10 at 156-57 & nn. 1-3 (4th ed. 1996) (“[I]t is now universally recognized that a presumption is a rule of law for the handling of evidence, not a species of evidence.”); Ronald J. Allen, Presumptions, Inferences and Burden of Proof in Federal Civil Actions — An Anatomy of Unnecessary Ambiguity and a Proposal for Reform, 72 Nw. U.L.Rev. 892, 903 (1982) (“Presumptions are not evidence — they are labels applied to decisions about evidentiary matters.”). The presumption affords a party, for whose benefit the presumption runs, the luxury of not having to produce specific evidence to establish the point at issue. When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption. See 1 Weinstein’s Federal Evidence § 301.02[1], at 301-7 (2d ed.1997); 2 McCormick on Evidence § 342, at 450 (John W. Strong ed., 4th ed.1992). However, when the opposing party puts in proof to the contrary of that provided by the presumption, and that proof meets the requisite level, the presumption disappears. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981); AC. Aukerman, 960 F.2d at 1037 (“[A] presumption ... completely vanishes upon the introduction of evidence sufficient to support a finding of the nonexistence of the presumed fact.”); see also Weinstein’s Federal Evidence § 301App.100, at 301.App.-13 (explaining that in the “bursting bubble” theory once the presumption is overcome, then it disappears from the case); 9 Wigmore on Evidence § 2487, at 295-96 (Chadbourn rev. 1981). See generally Charles V. Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich. L.Rev. 195 (1953). The party originally favored by the presumption is now put to his factually-supported proof. This is because the presumption does not shift the burden of persuasion, and the party on whom that burden falls must ultimately prove" }, { "docid": "21853423", "title": "", "text": "Fed.R.Evid. 302. . The facts giving rise to the presumption often give rise to an inference that remains and may still be considered by the factfinder. See IX Wigmore on Evidence § 2491 (Chadbourn rev. 1981) (\"[T]he legal consequence [of the presumption] being removed, the inference, as a matter of reasoning, may still remain____\"). . A discussion by the American Law Institute comparing the Thayer and Morgan theories as applied to the presumption of receipt arising from proof of mailing may be found at 1 Weinstein's Evidence f 300[01] at 300-5 to 300-7. . The text of the proposed rule was as follows: In all cases not otherwise provided for by Act of Congress or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. . The House version of the rule was as follows: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with the evidence, and, even though met with contradicting evidence, a presumption is sufficient evidence of the fact presumed, to be considered by the trier of the facts. . A more complete list of the commentary on this question may be found at 21 C. Wright & K. Graham, Federal Practice and Procedure § 5126 n. 6 (Supp.1983). . Professors Wright and Graham interpret Rule 301 as providing that a rebutted presumption still sufficies to carry the issue to the jury, which should be instructed that it may infer the presumed fact. 21 C. Wright & K. Graham, Federal Practice and Procedure § 5122 at p. 572. This interpretation differs from the bursting bubble theory only in the effect given an \"illogical” presumption, i.e., one where the facts giving rise to the presumption do not logically give rise to an inference that the presumed fact exists. See id. § 5126 at pp. 609-11, 609 n. 22. According to Wright and" }, { "docid": "13951058", "title": "", "text": "this is decisive only in the absence of contrary evidence [citations omitted]. . . When substantial evidence contrary to a presumption is introduced, the underlying facts that originally raised the presumption may or may not retain some degree of probative force as evidence but they no longer have any artificial or technical force; in other words, ‘the presumption falls out of the case . . . ’ ” [quoting Del Vecchio v. Bowers, supra note 34, 296 U.S. at 286, 56 S.Ct. at 193, 80 L.Ed. at 233]); Stone v. Stone, 78 U.S. App.D.C. 5, 7, 136 F.2d 761, 763 (1943) (“[i]n an action which challenges the conduct of a public officer, a presumption of law is indulged in his favor that his official duties were properly performed. Like other such presumptions, it disappears so soon as substantial countervailing evidence is introduced [footnote omitted].”); Rosenberg v. Murray, 73 App.D.C. 67, 68, 116 F.2d 552, 553 (1940) (statutory presumption that vehicle was driven with owner’s consent “continues until there is credible evidence to the contrary, and ceases when there is uncontradicted proof that the automobile was not at the time being used with the owner’s permission.”). . American Law Institute, Model Code of Evidence, Rule 704(2) (1942). . “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.” Fed. R. Evid. 301. The history of this provision portrays a fluctuating evolution. As originally proposed by the Supreme Court, the presumptions governed were given the effect of placing on the opposing party the burden of establishing the nonexistence of the presumed fact, and “[t]he so-called ‘bursting bubble’ theory, under which a presumption vanishes upon the introduction of evidence which would support a finding of the nonexistence of" }, { "docid": "22415363", "title": "", "text": "A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiffs initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. There is simply no way to reconcile the Supreme Court’s statement in Bur-dine that the four facts of a prima facie discrimination case are facts sufficient “to give rise to an inference of unlawful discrimination” and the majority’s assertion that “[t]he fact that a plaintiff is judged to have satisfied these minimal requirements [of a prima facie case] is no indication that, at the end of the case, plaintiff will have enough evidence of discrimination to support a verdict in his favor.” 114 F.3d at 1337 (emphasis added). The capacity of facts supporting a rebuttable presumption to permit the inference of the ultimate fact even after the opposing side has proffered an explanation was explicitly recognized by Congress in adopting Rule 301 of the Federal Rules of Evidence, a rule the Supreme Court cited in Burdine in explaining a Title VII rebuttable presumption. See Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. at 1094-95 n. 8. Rule 301 provides: In all civil actions ... a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally ease. Fed.R.Evid. 301. The Conference Report explaining this Rule states: Under the Senate amendment, a presumption is sufficient to get a party past an adverse party’s motion to dismiss made at the end of his case-in-ehief. If the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic facts, it may presume the existence of the presumed fact. If the" }, { "docid": "22406643", "title": "", "text": "relating to ineffective assistance of counsel claims. One such presumption is that counsel’s strategic choices are competent. In a post-conviction proceeding in which the petitioner is claiming that his lawyer rendered ineffective assistance, however, this “strategic choice” presumption has no legal effect. In other words, it does not operate as a presumption. Federal Rule of Evidence 301 explains how a presumption operates in a case such as the one before us: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. See also Fed.R.Evid. 301 advisory committee’s note (“[W]hile evidence of facts giving rise to a presumption shifts the burden of coming forward with evidence to rebut or meet the presumption, it does not shift the burden of persuasion on the existence of the presumed facts. The burden of persuasion remains on the party to whom it is allocated ... in the first instance.”). A Rule 301 presumption is the same as a presumption at common law. Like its common law antecedent, a Rule 301 presumption is a device that aids the party with the burden of proof in establishing the elements of its claim. (Or, on the defendant’s side of the case, a presumption may aid in establishing the elements of an affirmative defense.) A presumption is invoked when a party’s adversary possesses evidence that is essential to the claim (or affirmative defense) but is, as a practical matter, unavailable to all but the adversary. In giving petitioner’s adversary, the Government, the benefit of the “strategic choice” presumption, the majority apparently overlooks the fact that the Government needs no assistance in this case. The Government does not bear the burden of establishing Redden’s competence; to the contrary, it is petitioner’s burden to establish Redden’s" }, { "docid": "22415364", "title": "", "text": "Congress in adopting Rule 301 of the Federal Rules of Evidence, a rule the Supreme Court cited in Burdine in explaining a Title VII rebuttable presumption. See Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. at 1094-95 n. 8. Rule 301 provides: In all civil actions ... a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally ease. Fed.R.Evid. 301. The Conference Report explaining this Rule states: Under the Senate amendment, a presumption is sufficient to get a party past an adverse party’s motion to dismiss made at the end of his case-in-ehief. If the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic facts, it may presume the existence of the presumed fact. If the adverse party does offer evidence contradicting the presumed fact, the court cannot instruct the jury that it may presume the existence of the presumed fact from proof of the basic facts. The court may, however, instruct the jury that it may infer the existence of the presumed fact from proof of the basic facts. The conference adopts the Senate amendment. H.R. Conf. Rep. No. 93-1597, at 2 (1974), reprinted in 1974 U.S.C.C.A.N. 7098, 7099 (second emphasis added). Indeed, if the facts constituting a Title VII prima facie case could not permit an inference of discrimination (and in the majority’s view they sometimes do not), then it is very likely that these facts could not constitutionally have the presumptive effect that McDonnell Douglas and Burdine hold that they have in the absence of a defendant’s proffered explanation. The Supreme Court’s rebuttable presumption jurisprudence long ago established that a presumption of “one fact from evidence of another” will satisfy due process requirements only if “there shall be some rational connection between the fact proved and the ultimate" }, { "docid": "22328036", "title": "", "text": "necessarily. With the presumption, these facts must be inferred, absent rebuttal evidence. As explained in 10 Moore’s, supra, § 301.02, at III—13—14: [A] factual conclusion reached by inference is based on a process of reasoning and experience. A presumption, however, is a method of dealing with proof, normally to give it a greater effect than it would have if it were handled solely by the inferential process. Numerous decisions indicate or suggest that the defendant’s establishing a six-year delay shifts the burden of proof, that is, the ultimate burden of persuasion, from the defendant to the patentee. For example, the Leinoff decision could be read to take that position. 726 F.2d at 742. This view of the laches presumption is legally unsound. Prior to 1975, the effect of a presumption was debatable. Thereafter, such effect was prescribed by Federal Rule of Evidence 301, effective August 1, 1975. That rule reads: Rule 301. Presumptions in General Civil Actions and Proceedings. In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. This rule applies “even if the common law presumption had been accorded a greater weight in the past.” 10 Moore’s, supra, § 301.03, at III—18. As finally adopted after much scholarly debate, Rule 301 embodies what is known as the “bursting bubble” theory of presumptions. Under this theory, a presumption is not merely rebuttable but completely vanishes upon the introduction of evidence sufficient to support a finding of the nonexistence of the presumed fact. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1980); Del Vecchio v. Bowers, 296 U.S. 280, 286-87, 56 S.Ct. 190, 193-94, 80 L.Ed. 229 (1935). In other words, the evidence must" }, { "docid": "22328037", "title": "", "text": "these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. This rule applies “even if the common law presumption had been accorded a greater weight in the past.” 10 Moore’s, supra, § 301.03, at III—18. As finally adopted after much scholarly debate, Rule 301 embodies what is known as the “bursting bubble” theory of presumptions. Under this theory, a presumption is not merely rebuttable but completely vanishes upon the introduction of evidence sufficient to support a finding of the nonexistence of the presumed fact. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1980); Del Vecchio v. Bowers, 296 U.S. 280, 286-87, 56 S.Ct. 190, 193-94, 80 L.Ed. 229 (1935). In other words, the evidence must be sufficient to put the existence of a presumed fact into genuine dispute. The presumption compels the production of this minimum quantum of evidence from the party against whom it operates, nothing more. Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. at 1094 n. 8 (“The word ‘presumption’ properly used refers only to a device for allocating the production burden.”) (quoting Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure § 7.9, at 255 (2d ed.1977) (footnote omitted)). In sum, a presumption is not evidence. If the patentee presents a sufficiency of evidence which, if believed, would preclude a directed finding in favor of the infringer, the presumption evaporates and the accused infringer is left to its proof. That is, the accused infringer would then have to satisfy its burden of persuasion with actual evidence. See Del Vecchio, 296 U.S. at 286, 56 S.Ct. at 193 (presumption of accidental death “falls out of case” with proffer of testimony sufficient to justify a finding of suicide). 10 Moore’s, supra, § 301.04. As an initial" }, { "docid": "23631965", "title": "", "text": "sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. Fed.R.Evid. 301. The New Jersey rule on presumptions states: Except as otherwise provided in Rule 303 or by other law, a presumption discharges the burden of producing evidence as to a fact (the presumed fact) when another fact (the basic fact) has been established. If evidence is introduced tending to disprove the presumed fact, the issue shall be submitted to the trier of fact for determination unless the evidence is such that reasonable persons would not differ as to the existence or nonexistence of the presumed fact. If no evidence tending to disprove the presumed fact is presented, the presumed' fact shall be deemed established if the basic fact is found or otherwise established. The burden of persuasion as to the proof or disproof of the presumed fact does not shift to the party against whom the presumption is directed unless otherwise required by law. Nothing in this rule shall preclude the judge from commenting on inferences that may be drawn from the evidence. N.J.R.Evid. 301. A comparison of the two rules reveals that the federal rule “bursts the bubble” of the presumption, while the New Jersey rule creates an issue for the jury. Athough the New Jersey rule does not necessarily follow Morgan’s theory of presumptions, that the party resisting the presumption must introduce sufficient evidence to overcome the presumption, it is certainly not an enactment of Thayer’s “bursting bubble” —it falls somewhere along the continuum between the two. One commentator has placed the New Jersey rule closer to Morgan’s theory than Thayer’s because in New Jersey the evidence supporting the presumption or possibly even the presumption itself remains. Ralph N. Del Deo & John H. Klock, 2B New Jersey Practice Ch. 3 at 334 (1987). Although the author was commenting on the former New Jersey rule on presumptions, Rule 14, a comparison between Rule 14 and Rule 301 does not reveal any substantial change. The text of the first sentence of the second paragraph of Rule 301 is" }, { "docid": "22406642", "title": "", "text": "highlights the necessity of remanding the issue to the district court. The majority concludes that Redden provided effective assistance as a matter of law. Because the district court made no findings of historical fact on his performance in the sentencing phase of the case, the majority, in order to hold that petitioner failed to show that Redden’s performance was deficient, must view the evidence in the light most favorable to petitioner. In this dissent, I also consider the evidence in that light, and then lay out the facts that a reasonable fact finder could find by a preponderance of the evidence. Before doing so, however, I deem it necessary to comment on the majority’s strong reliance on the “presumption” that defense attorneys are acting competently, in the Sixth Amendment sense, when they make strategic choices, and to consider the time frame in which Redden prepared petitioner’s case for trial, a time frame the majority opinion fails to mention. A. According to the majority, the Supreme Court and this court have established certain “principles and presumptions” relating to ineffective assistance of counsel claims. One such presumption is that counsel’s strategic choices are competent. In a post-conviction proceeding in which the petitioner is claiming that his lawyer rendered ineffective assistance, however, this “strategic choice” presumption has no legal effect. In other words, it does not operate as a presumption. Federal Rule of Evidence 301 explains how a presumption operates in a case such as the one before us: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. See also Fed.R.Evid. 301 advisory committee’s note (“[W]hile evidence of facts giving rise to a presumption shifts the burden of coming forward with evidence to rebut or meet the" }, { "docid": "13969258", "title": "", "text": "prove that the alleged preference was “made while the debtor was insolvent.” In establishing this element a debtor is typically aided by § 547(f) which states that “the debtor is presumed insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” The legislative history of § 547(f) refers to Fed.R. Evid. 301 for the operative effect of the presumption. S.Rep. No. 95-989, 95th Cong., 2d Sess. 89 (1978), reprinted in, 1978 U.S.Code Cong. & Admin.News 5787, 5875. Rule 301 states as follows: Rule 301. Presumptions in General in Civil Actions and Proceedings In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. Fed.R.Evid. 301. The parties are in dispute on the meaning of the presumption of insolvency. Marsh subscribed to the “bursting bubble” theory of presumptions which states that the parties opposing the conception need only introduce a scintilla of credible proof to negate the supposition. The debtor contends that this theory accords too little weight to the assumption and argues that the presumption, in effect, has substantive evidentiary weight which is only rebutted on the admission of a quantum of credible evidence having at least the same weight as the presumption. While the majority of courts construing Rule 301 adhere to the “bursting bubble” theory, this adherence is largely sophistical with most courts giving some weight to a presumption even in the face of contradictory evidence. On the proper interpretation of Rule 301 the United States Court of Appeals and the commentators are split. United States v. Jessup, 757 F.2d 378 (1st Cir.1985); Bratton v. Yoder, 758 F.2d 1114 (6th Cir.1985); McCormick on Evidence § 345 (2d ed. 1972). We do not resolve the controversy here, since" }, { "docid": "22662376", "title": "", "text": "Louisell & C. Mueller, Federal Evidence §67, p. 536 (1977). Thus, the McDonnell Douglas presumption places upon the defendant the burden of producing an expla nation to rebut the prima facie case — i. e., the burden of “producing evidence” that the adverse employment actions were taken “for a legitimate, nondiscriminatory reason.” Bur-dine, 450 U. S., at 254. “[T]he defendant must clearly set forth, through the introduction of admissible evidence,” reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. Id., at 254-255, and n. 8. It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” 450 U. S., at 253. In this regard it operates like all presumptions, as described in Federal Rule of Evidence 301: “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.” Respondent does not challenge the District Court’s finding that petitioners sustained their burden of production by introducing evidence of two legitimate, nondiscriminatory reasons for their actions: the severity and the accumulation of rules violations committed by respondent. 756 F. Supp., at 1250. Our cases make clear that at that point the shifted burden of production became irrelevant: “If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,” Burdine, 450 U. S., at 255, and “drops from the case,” id., at 255, n. 10. The plaintiff then has “the full and fair opportunity to demonstrate,” through presentation of his own" }, { "docid": "23482346", "title": "", "text": "§ 1127. This court has explained that the term “prima facie evidence” in this context means “a rebuttable presumption of abandonment.” Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1044 (2d Cir.1980); accord Silverman v. CBS, Inc., 870 F.2d at 45. The role played by such a presumption is best understood by reference to Rule 301 of the Federal Rules of Evidence: In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or to meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast. Fed.R.Evid. 301. Although the term “presumption” is not specifically defined in the Rules of Evidence, it is generally understood to mean “an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.” 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5124 (2d ed.2005); accord Joseph M. McLaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 301.02[1] (2d ed.2006); see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 10, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (describing presumption as “legally mandatory inference”). The assumption ceases to operate, however, upon the proffer of contrary evidence. See generally A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed.Cir.1992) (observing that under Rule 301, a “presumption is not merely rebuttable but completely vanishes upon the introduction of evidence sufficient to support a finding of the nonexistence of the presumed fact”); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d at 1043 (suggesting that presumption of abandonment “disappears when rebutted by contrary evidence”). Thus, in this case, the statutory presumption of abandonment requires that one fact, i.e., abandonment, be inferred" }, { "docid": "21853414", "title": "", "text": "party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. A brief review of the history of this rule will aid in evaluating the Bankruptcy Court’s reasoning. Before adoption of the Federal Rules of Evidence there were two major theories concerning the effect of a presumption once rebuttal evidence is admitted. Under the Thayer or “bursting bubble” theory a presumption vanishes entirely once rebutted, and the question must be decided as any ordinary question of fact. Under a later theory, proposed by Morgan, a presumption shifts the burden of proving the nonexistence of the presumed fact to the opposing party. The version of Rule 301 that was proposed by the Advisory Committee, accepted by the Supreme Court, and submitted to Congress adopted the Morgan view. That rule, however, was not enacted by Congress. The Advisory Committee notes, on which the Bankruptcy Court relied, that reject the “bursting bubble” theory pertain to the proposed rule, which was not enacted, and are thus of little help in interpreting the final rule. The House of Representatives adopted a rule espousing an intermediate view, which would allow a rebutted presumption to be considered evidence of the fact presumed. See H.R.Report No. 93-650, House Committee on the Judiciary, U.S.Code Cong. & Admin.News 1974, p. 7051. The Senate criticized the House rule on the ground that it made no sense to call a presumption evidence, and adopted the present language of Rule 301, which was adopted by the Conference Committee and enacted into law. See S.Report No. 93-1277, Senate Committee on the Judiciary; H.R.Report No. 93-1597, Conference Committee, U.S. Code Cong. & Admin.News 1974, p. 7051. Most commentators have concluded that Rule 301 as enacted embodies the Thayer or “bursting bubble” approach. See, e.g., 10 Moore’s Federal Practice § 301.04[4.-1] (2d ed.); 1 Weinstein’s Evidence 301-12; IX Wigmore on Evidence § 2493h (Chadbourn rev." }, { "docid": "13951059", "title": "", "text": "ceases when there is uncontradicted proof that the automobile was not at the time being used with the owner’s permission.”). . American Law Institute, Model Code of Evidence, Rule 704(2) (1942). . “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.” Fed. R. Evid. 301. The history of this provision portrays a fluctuating evolution. As originally proposed by the Supreme Court, the presumptions governed were given the effect of placing on the opposing party the burden of establishing the nonexistence of the presumed fact, and “[t]he so-called ‘bursting bubble’ theory, under which a presumption vanishes upon the introduction of evidence which would support a finding of the nonexistence of the presumed fact, even though not believed, [was] rejected as according presumptions too ‘slight and evanescent’ an effect.” Advisory Committee’s Note to original Rule 301. The House Committee on the Judiciary agreed, but substituted a shift in the burden of going forward in place of a shift of the burden of proof, and conferred evidentiary value on the presumption. H.R. Rep. No. 93-650, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin. News 1974, p. 7075. The Senate Committee on the Judiciary felt, however, that “the House amendment is ill-advised. . . . ‘Presumptions are not evidence, but ways of dealing with evidence.’ [footnote omitted]. This treatment requires juries to perform the task of considering ‘as evidence’ facts upon which they have no direct evidence and which may confuse them in performance of their duties.” S. Rep. No. 93-1277, 93d Cong., 2d Sess. 9-10 (1974), first quoting Hearings on H.R. 2463 Before the Senate Committee on Judiciary, 93d Cong., 2d Sess. 96 (1974) U.S. Code Cong. & Admin. News 1974, pp. 7051, 7056. The" }, { "docid": "16950135", "title": "", "text": "450 (John W. Strong ed., 4th ed.1992). However, when the opposing party puts in proof to the contrary of that provided by the presumption, and that proof meets the requisite level, the presumption disappears. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981); AC. Aukerman, 960 F.2d at 1037 (“[A] presumption ... completely vanishes upon the introduction of evidence sufficient to support a finding of the nonexistence of the presumed fact.”); see also Weinstein’s Federal Evidence § 301App.100, at 301.App.-13 (explaining that in the “bursting bubble” theory once the presumption is overcome, then it disappears from the case); 9 Wigmore on Evidence § 2487, at 295-96 (Chadbourn rev. 1981). See generally Charles V. Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich. L.Rev. 195 (1953). The party originally favored by the presumption is now put to his factually-supported proof. This is because the presumption does not shift the burden of persuasion, and the party on whom that burden falls must ultimately prove the point at issue by the requisite standard of proof. See Fed. R.Evid. 301; AC. Aukerman, 960 F.2d at 1038-39. But see McCormick on Evidence § 344, at 470-72 (describing an alternative to the bursting bubble rule in which application of a presumption shifts the burden of persuasion); Edmund M. Morgan, Presumptions, 12 Wash. L.Rev. 225 (1937). Here, the question is what evidence constitutes “new and material evidence” entitling a petitioner to reopen a previously decided and closed case. By its terms, § 5108 requires “evidence,” which the regulations describe as “evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, [and] which is neither cumulative nor redundant.” 38 C.F.R. § 3.156(a) (1997). Once new and material factual evidence is presented that warrants reopening of the ease, the presumption may well result in a decision in favor of the veteran. But that is a matter that goes to the merits of the case, not one that goes to the question of whether the rules of finality are" } ]

[ { "docid": "3142927", "title": "", "text": "discretion. See James v. Newspaper Agency Corp., 591 F.2d 579, 583 (10th Cir. 1979) (pretrial order specifying the witnesses to be called may be used to bar the calling of unlisted witnesses). Proper pretrial orders are indeed powerful, but even at their best they should be “liberally construed to cover any of the legal or factual theories that might be embraced by their language.” Rodrigues v. Ripley Industries, Inc., 507 F.2d 782, 787 (1st Cir. 1974). This court has warned that the pretrial order “is a procedural tool to facilitate the trial of a lawsuit on its merits and not to defeat it on a technicality. We must not allow ourselves to construe the pretrial order in the spirit of a common law pleading.” Century Refining Co. v. Hall, 316 F.2d 15, 20 (10th Cir. 1963). The reasons for avoiding overly technical applications of pretrial orders are amplified when, as in this case, the pretrial order is not properly drawn, is not definitive, specific, complete or detailed. The order in this case may be somewhat more brief than the pleadings, but it is no more precise; consequently, we see no reason to construe it with more precision than pleadings generally, which may be liberally amended, particularly when the court is notified before trial of the intention of a party to pursue a certain issue. See Fed.R. Civ.P. 15. When an adverse party is content with a boilerplate pretrial order, it cannot later demand that the trial court enforce it as though it were a specific and meaningful narrowing of the issues. Indeed, had Uniroyal deemed it necessary to clarify the particular strict liability theory relied upon by Trujillo, it could have used the pretrial process for this intended purpose. Construing the pretrial order in this case with the generality evidenced by its wording, we see no basis for finding that “the rule of strict liability” as referred to in the order does not encompass all three “defects” developed in the comments to the Restatement (Second) of Torts § 402 A (1965) — i. e., manufacturing flaw, design defect, and failure" } ]

[ { "docid": "5980612", "title": "", "text": "v. Board of Trustees of Pratt Comm. College, 950 F.2d 665, 667 (10th Cir.1991); Fed.R.Civ.P. 16(e)). YKK argues that by raising the defenses of waiver and estoppel, it has adequately preserved the defense of notice under K.S.A. § 84-2-607(3). The waiver and es-toppel defenses asserted in the Pretrial Order, however, allege that LRUS’s inspection and acceptance of the straps constituted waiver and estoppel. They do not refer to the timeliness of LRUS’s notification to YKK regarding the defectiveness of the straps. The court recognizes that the Pretrial Order should “be liberally construed to cover any of the legal or factual theories that might be embraced by their language.” Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979). In this situation, however, the characterization of YKK’s waiver and estoppel defenses was insufficient to put LRUS on notice regarding any defense by YKK under K.S.A. § 84-2-607(3). Furthermore, at this late stage of the litigation, the court denies YKK’s alternative request to amend the Pretrial Order to include this defense. Accordingly, the court need not address YKK’s defense regarding notice. 2. Count I: Breach of Contract The Pretrial Order sets forth LRUS’s breach of contract claim as follows: “[t]he face straps sold by YKK to LRUS were not fit for use with LRUS’s braces and therefore did not conform to the agreement as contemplated by the parties.” YKK argues that this claim mirrors the allegations in LRUS’s breach of warranty claims and is therefore precluded because it is redundant. LRUS argues that it should be allowed to proceed with its breach of contract claim because it is allowed to assert alternative theories of recovery. The case LRUS cites in support of this argument, however,, dealt with a motion to dismiss an allegedly redundant claim, and the district court held that at that stage of the litigation it would not compel the plaintiff to elect one remedy over another. See Fink v. DeClassis, 745 F.Supp. 509, 515 (N.D.Ill.1990). On the other hand, another district court granted summary judgment on a plaintiffs breach of contract claim, where “the suit [was] close to trial," }, { "docid": "21513660", "title": "", "text": "No. 55. . Main Case No. 01-23896, Doc. Nos. 53 and 58. . Trial Tr. 161. . Plaintiffs’ Trial Ex. 32. . Customer Account Activity Statement (Plaintiffs’ Trial Ex. 32). Exhibit 32 is incomplete. Activity for September 2002 through December 2002 is missing, making a complete accounting of this loan impossible. .Plaintiffs’ Trial Ex. 33. . Trial Tr. 207 (emphasis added). . Trial Tr. 208 (emphasis added). .Trial Tr. 120. . Everhome’s Customer Account Activity Statement abruptly ends on November 16, 2004. . See, e.g., In re Jones, 366 B.R. 584, 600 (Bankr.E.D.La.2007). . See, e.g., In re Jones, slip copy, 2007 WL 2480494, at *2 (Bankr.E.D.La. Aug.29, 2007); In re Sanchez, 372 B.R. 289, 311 (Bankr.S.D.Tex.2007); In re Padilla, 379 B.R. 643 (Bankr.S.D.Tex.2007). . See, e.g., In re Laskowski, 384 B.R. 518, 530-31 (Bankr.N.D.Ind.2008). . In re Miner, 369 B.R. 655, 672 (Bankr.D.Kan.2007). . Id., citing Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F.Supp.2d 1147, 1151-52 (D.Kan.2007)(quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979)). . Sanchez, 372 B.R. at 302; Jones, 366 B.R. at 596. . Jones, 366 B.R. at 598. . In re Watson, 384 B.R. 697, 702-03 (Bankr.D.Del.2008). . Padilla, 379 B.R. at 658, citing Marrama v. Citizens Bank of Mass., - U.S. -, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007). . In re Andrews, 2007 WL 2793401, at *2 (Bankr.D.Kan. Sept.26, 2007) (citations omitted). . Id. . Padilla, 379 B.R. at 656. . Jones, 366 B.R. at 600, citing In re Campbell, 361 B.R. 831 (Bankr.S.D.Tex.2007). . Padilla, 379 B.R. at 657. . Sanchez, 372 B.R. at 314. . Padilla, 379 B.R. at 657. . Id. at 659. .11 U.S.C. § 1329(a) and § 1322(b)(5). . Rawlings v. Dovenmuehle Mortgage, Inc., 64 F.Supp.2d 1156, 1165 (M.D.Ala.1999). . 12 U.S.C. § 2601(a); In re Figard, 382 B.R. 695, 712 (Bankr.W.D.Pa.2008). . Id. . 12 U.S.C. § 2605(e)(1)(A). . 12 U.S.C. § 2605(e)(1)(B). . 24 C.F.R. § 3500.21(e)(1). . 12 U.S.C. § 2605(e)(2)(A), (B), and (C). . 12 U.S.C. § 2601 et seq.; 24 C.F.R. § 3500.1 et seq. . 12 U.S.C. §" }, { "docid": "17962884", "title": "", "text": "assigned the proper form of trial.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) (Kearse, J.) (quoting 2A Moore’s Federal Practice ¶ 8.13, at 8-58 (2d ed.1994)); see also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988). The requirements of Rule 8(a) are not satisfied merely by “a ‘bare bones statement’ of the legal claim without any supporting facts.” Haber v. Brown, 774 F.Supp. 877, 879 (S.D.N.Y. 1991). “Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin, 861 F.2d at 43. If a court dismisses a complaint for failure to comply with the requirements of Rule 8, it generally should give plaintiff leave to amend. See Simmons, 49 F.3d at 86-87. II. INDIVIDUAL LIABILITY UNDER TITLE VII In the Complaint, Ross alleges that defendants Mullarkey, Rubens, and Ray violated Title VII of the Civil Rights Act of 1964, § 703(a)(1), Title 42, United States Code (“U.S.C.”), Section 2000e-2(a)(1). However, the United States Court of Appeals for the Second Circuit has determined that “an employer’s agent may not be held individually liable under Title VII.” Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.1995). Faced with this clear statement by the Second Circuit, Ross argues that the Court should permit her the opportunity to conduct discovery to substantiate her assertion that Mullarkey and Rubens were her “employers” for purposes of Title VII. However, plaintiff does not allege in the Complaint that Mullarkey and Rubens were her “employers,” but that they were her “supervisors”. Accordingly, plaintiffs request for discovery on this issue must fail. In Jones v. Capital Cities/ABC Inc., 168 F.R.D. 477 (S.D.N.Y.1996), the plaintiff contended that the Court should permit discovery in order to produce facts sufficient to state a cognizable claim. Judge John E. Sprizzo of this Court rejected this tactic, stating: [T]he purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out whether such a claim exists, and a defendant has a right ... to challenge the" }, { "docid": "19915025", "title": "", "text": "the old sporting theory of justice with a policy of putting the cards on the table.” Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir.2002) (quotations omitted) (citing Clark v. Penn. R.R. Co., 328 F.2d 591, 594 (2d Cir.1964)). At the pretrial conference attorneys are expected to fully and fairly disclose “their views as to what the real issues of the trial will be.” Youren, 343 F.3d at 1304. Accordingly, we have held that issues not contained in the resulting pretrial order were not part of the case before the district court. Id.; Wilson, 303 F.3d at 1215 (“[Cjlaims, issues, defenses, or theories of damages not included in the pretrial order are waived.... ”). Since Sam’s Club failed to challenge the timeliness of Cortez’s complaint in the pretrial order, we hold that the issue has been waived and decline to reach the merits of this argument. The judgment of the district court is AFFIRMED. . Sam's Club is a wholly-owned division of Wal-Mart, Inc., the named defendant in this action. Since the plaintiff worked for Sam’s Club, and the parties referred to the defendant throughout their briefs as Sam's Club, we will continue to do so here. . Since we are reviewing a jury verdict, we must view the record on appeal in the light most favorable to Cortez, the prevailing party at trial, and give him the benefit of all reasonable inferences to be drawn from the evidence. See Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1164 (10th Cir.2003). . Cortez also brought a Title VII race discrimination claim, but that claim was dismissed on summary judgment. . Sam's Club calls its employees associates. . We note that in the pre-trial order Sam's Club did challenge the timeliness of Cortez’s EEOC complaint, but that was not sufficient to preserve the issue of whether his district court complaint was timely filed." }, { "docid": "13030544", "title": "", "text": "loans to SAS, plaintiff was damaged in an amount of not less than $115,000.00, the amount he paid for the return of his vehicles. II. Position of the Parties. A. Plaintiff. On March 13, 2000, plaintiff filed a complaint for determination of dischargeability of debt against debtor under 11 U.S.C. § 523(a)(4) and (a)(6). Nondischargeable damages are sought in the amount of $117,805.84 based upon debtor’s unauthorized transfer of automobile titles which were property of debtor. B. Defendant. Counsel for debtor argues that there are two principal issues: (1) the ownership of the disputed certificates of title; and (2) intent of debtor when plaintiffs vehicles were sold, bank financing was obtained or titles removed and transferred. (1) Debtor asserts that landlord-tenant law should be considered by the court because plaintiff owned the real estate, improvements, and car lots on which debt- or’s dealership SAS conducted its business; also when plaintiff purchased vehicles, he had possession of them until the point when he brought them to the premises, where possession was transferred to SAS. Plaintiff thereby surrendered whatever possessory lien he may have had. As to § 523(a)(6), willful and malicious injury, debtor maintains that a finding against him under subsection (a)(6) is possible only if there was a property interest held by plaintiff. At most, according to debtor, plaintiff holds an unsecured claim against vehicles because plaintiff did not otherwise have a legally enforceable property interest. (2) Regarding intent, debtor maintains that every time a vehicle was sold through SAS, plaintiff promptly received payment. Debtor maintains that there is no evidence in the record that SAS ever failed to pay SAB for repairs or plaintiff for payment of the vehicles and further asserts that there was a policy in place that ensured regular payment to plaintiffs for vehicles as a matter of business in the ordinary course. Finally, debtor points to the fact that over the history of business between debtor and plaintiff, hundreds of vehicles were sold, so that the present dispute of approximately thirty vehicles is not representative of the normal course of dealing, nor sufficient to establish" }, { "docid": "8877313", "title": "", "text": "that the $20,000 at issue was not obtained by false pretenses, a false representation, or actual fraud and is, therefore, dischargeable under 11 U.S.C. § 523(a)(2)(A). These findings of fact and conclusions of law are entered in accordance with Rule 7052, Fed.R.Bankr.P. The Court will enter a judgment consistent with this Memorandum Opinion. . The Complaint to Determine Dischargeability of Debt asserts causes of action under 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6), but the Amended Pre-Trial Order references only 11 U.S.C. § 523(a)(4) and (a)(6). See Docket Nos. 1 and 14. The pre-trial order controls the matters for trial. See Rule 16(d), Fed. R.Civ.P., made applicable to adversary proceedings by Rule 7016, Fed.R.Bankr.P. Because the Amended Pre-Trial Order includes a contested issue of law that the Defendant obtained monies by false pretenses, false representations, or actual fraud, the Court will consider Plaintiffs' claim under 11 U.S.C. § 523(a)(2)(A) even though the Amended PreTrial Order fails to specifically reference that subsection of 11 U.S.C. § 523. See In re Miner, 369 B.R. 655, 672 (Bankr.D.Kan. 2007)(“ '[T]he Pretrial Order should be 'liberally construed to cover any of the legal or factual theories that might be embraced by their language.’ ’ ’ \")(quoting Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F.Supp.2d 1147, 1151-52 (D.Kan.2007)) (quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979)). . Bellco First Fed. Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1361 (10th Cir.1997). . Id. (citing In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986)). . Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(holding that preponderance of the evidence standard applies to all exceptions from dischargeability of particular debts under 11 U.S.C. § 523). . An express trust requires an intent to create a trust, a clearly defined trust res, and specific trust duties. See, Tulsa Spine Hospital, LLC v. Tucker (In re Tucker), 346 B.R. 844, 850 (Bankr.E.D.Okla.2006)(“ 'The elements of an express trust are the intent to create a trust, a clearly defined trust res, and specific trust duties.’ \")(quoting In re Stefanoff," }, { "docid": "8877312", "title": "", "text": "submitted as a contractor’s permit is consistent with, and further supports this finding. It is troubling that Defendant has not offered any evidence, other than his testimony, to explain how he spent the majority of the $20,000 he received from Plaintiffs. He was only able to document approximately $4,500 from receipts he testified were for materials he purchased for the project. He did not keep time records or other documentation to support labor expenses incurred on the project. Neither Plaintiffs nor Defendant could recall exactly how long Defendant worked on the project, though it is undisputed that Defendant did not perform any work on the addition to the house. All of these factors lead the Court to conclude that there is insufficient circumstantial evidence from which the Court can infer that Defendant intended to defraud Plaintiffs when they entered into the oral agreement to remodel Plaintiffs’ home. The agreement to remodel Plaintiffs’ home was breached, but Plaintiffs have not shown that the agreement was obtained through Defendant’s fraud. Based on the foregoing, the Court concludes that the $20,000 at issue was not obtained by false pretenses, a false representation, or actual fraud and is, therefore, dischargeable under 11 U.S.C. § 523(a)(2)(A). These findings of fact and conclusions of law are entered in accordance with Rule 7052, Fed.R.Bankr.P. The Court will enter a judgment consistent with this Memorandum Opinion. . The Complaint to Determine Dischargeability of Debt asserts causes of action under 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6), but the Amended Pre-Trial Order references only 11 U.S.C. § 523(a)(4) and (a)(6). See Docket Nos. 1 and 14. The pre-trial order controls the matters for trial. See Rule 16(d), Fed. R.Civ.P., made applicable to adversary proceedings by Rule 7016, Fed.R.Bankr.P. Because the Amended Pre-Trial Order includes a contested issue of law that the Defendant obtained monies by false pretenses, false representations, or actual fraud, the Court will consider Plaintiffs' claim under 11 U.S.C. § 523(a)(2)(A) even though the Amended PreTrial Order fails to specifically reference that subsection of 11 U.S.C. § 523. See In re Miner, 369 B.R. 655, 672 (Bankr.D.Kan." }, { "docid": "17554320", "title": "", "text": "subserved and the opposing party is not thereby prejudiced. See, e.g., Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 457 (10th Cir.1982); Seybold v. Francis P. Dean, Inc., 628 F.Supp. 912, 914 (W.D.Pa.1986). As the Third Circuit Court of Appeals has instructed: The primary consideration in determining whether leave to amend under Fed. R.Civ.P. 15(b) should be granted is prejudice to the opposing party.... The principal test for prejudice in such situations is whether the opposing party was denied a fair opportunity to defend and to offer additional evidence on that different theory. Evans Products Co. v. West American Ins. Co., 736 F.2d 920, 924 (3d Cir.1984) (citations omitted); see, e.g., Still v. Regulus Group LLC, 2004 WL 32378, at *1 (E.D.Pa.2004); see generally Lundy v. Hochberg, 79 Fed.Appx. 503, 506 (3d Cir.2003). Ms. August did not expressly or implicitly consent to the plaintiffs attempt to assert a section 523(a)(6) claim at trial. I may, nevertheless, admit the evidence and treat the underlying complaint as amended if I find that doing so would be helpful to the presentation of the merits of the case and would not prejudice Ms. August. In this proceeding, Adamar’s evidence in support of its claim under section 523(a)(6), as will be discussed below, is in essence a variant of its false pretense claim: that Ms. August, in February 2009, intended to wrongfully borrow funds from casinos without any intention of repayment. See Plaintiffs Posttrial Memorandum, at 17. As the debtor was fully prepared to oppose this contention at trial, it would not be prejudicial to consider this alternative theory. See In re Gelhaar, 2010 WL 4780314, at *5 n. 3 (Bankr.N.D.Ill.2010); In re Ruderson, 2007 WL 4570581, at *5 (Bankr.N.D.Ohio 2007); 3 Moore’s Federal Practice 3d, § 15.18[2] (2010) (“[T]he opposing party is not prejudiced by evidence that only presents a new legal theory, but is based on the facts and circumstances constituting the claims already set out in the unamended pleadings”). B. Section 523(a)(6) of the Bankruptcy Code provides: A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge" }, { "docid": "15021768", "title": "", "text": "to look at the ‘plain meaning’ of the statute.” In re Wood, 167 B.R. at 88, (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). The plain meaning of the statute is that the debt must be both payable to a governmental unit and for the benefit of a governmental unit to be nondischargeable. In the instant case, even if the “for the benefit of a governmental unit” requirement is met by the abstract benefit of upholding “the dignity of the court,” the debt cannot be held nondischargeable under section 523(a)(7) because it is not payable to a governmental unit. In conclusion, the Court finds that Section 523(a)(7) does not except the $242,090.85 judgment from discharge. The Court believes that this holding comports with the general policy and plain meaning of the Bankruptcy Code. See In re St. Laurent, II, 991 F.2d 672, 680-81 (11th Cir.1993) (“general policy that exceptions to discharge are to be construed strictly against the creditor and liberally in favor of the debtor” and finding that private entities cannot obtain nondischarge-ability judgments through § 523(a)(7) but are not precluded from pursuing such judgments under other subsections of § 523). Accordingly, it is hereby ORDERED that— 1. Summary judgment is granted in favor of Defendant Martin Friedman on Count II of the complaint. 2. A Pretrial Conference with regard to Count I of the complaint, filed pursuant to § 523(a)(6) on the basis that the damages awarded in Plaintiffs favor were incurred as a result of Defendant’s willful and malicious conduct, shall be conducted on Tuesday, November 7, 2000, at 10:30 a.m., at the Paul G. Rogers Federal Building, 701 Clematis Street, Courtroom 6, West Palm Beach, Florida. . This ruling is limited to the 11 U.S.C. § 523(a)(7) count of Plaintiff’s complaint and has no effect on the 11 U.S.C § 523(a)(6) count. . At least two courts have found that the “payable to” language suggests that the \"benefit” the statute is referring to is economic in nature. See In the Matter of Towers, 162" }, { "docid": "8877314", "title": "", "text": "2007)(“ '[T]he Pretrial Order should be 'liberally construed to cover any of the legal or factual theories that might be embraced by their language.’ ’ ’ \")(quoting Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F.Supp.2d 1147, 1151-52 (D.Kan.2007)) (quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979)). . Bellco First Fed. Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1361 (10th Cir.1997). . Id. (citing In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986)). . Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)(holding that preponderance of the evidence standard applies to all exceptions from dischargeability of particular debts under 11 U.S.C. § 523). . An express trust requires an intent to create a trust, a clearly defined trust res, and specific trust duties. See, Tulsa Spine Hospital, LLC v. Tucker (In re Tucker), 346 B.R. 844, 850 (Bankr.E.D.Okla.2006)(“ 'The elements of an express trust are the intent to create a trust, a clearly defined trust res, and specific trust duties.’ \")(quoting In re Stefanoff, 97 B.R. 607 (Bankr.N.D.Okla.1989)). . A technical trust is a trust imposed by statute. In re Neal, 324 B.R. 365, 370 (Bankr.W.D.Okla.2005), aff'd, 342 B.R. 384 (10th Cir.2006). See also Cundy v. Woods (In re Woods), 284 B.R. 282, 288 (D.Colo.2001) (\"A technical trust may arise as a result of defined obligations imposed upon the debtor by state or federal statute.”)(citing In re Romero, 535 F.2d 618, 622 (10th Cir.1976)). . Neal, 324 B.R. at 370 (stating that \"a finding of nondischargeability under § 523(a)(4) requires a showing of (1) the existence of a fiduciary relationship between the debtor and the objecting party, and (2) a defalcation committed by the debtor in the course of that fiduciary relationship.”)(citing Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996)); Antlers Roof-Truss & Builders Supply v. Stone (In re Storie), 216 B.R. 283, 285 (10th Cir.BAP1997)(same). . See Neal, 324 B.R. at 370 (“The existence of a fiduciary relationship is a threshold issue to be determined under § 523(a)(4)”)(quoting Klenda v. Hogue (In re" }, { "docid": "19915024", "title": "", "text": "it is also entitled to judgment as a matter of law because Cortez failed to establish at trial that his complaint was filed within 90 days of receiving his right-to-sue letter from the EEOC. See 29 U.S.C. § 626(e). We conclude, however, that Sam’s Club’s statute of limitations defense has been waived. Sam’s Club raised this issue as an affirmative defense in its answer and again in its Rule 50(a) motion during trial, but nowhere in the pretrial order did Sam’s Club contest the timeliness of Cortez’s complaint. We were faced with a similar situation in Youren v. Tintic School District, 343 F.3d 1296, 1304 (10th Cir.2003). There, we held that the defendants’ assertion of the statute of limitations defense in its answer and Rule 50(a) motion did not “overeome[ ] the Pretrial Order Rule, embodied in Rule 16(e) of the Federal Rules of Civil Procedure.” Rule 16(e) provides that the pretrial order “shall control the subsequent course of the action unless modified by a subsequent order.” The purpose of the rule is to “replace the old sporting theory of justice with a policy of putting the cards on the table.” Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir.2002) (quotations omitted) (citing Clark v. Penn. R.R. Co., 328 F.2d 591, 594 (2d Cir.1964)). At the pretrial conference attorneys are expected to fully and fairly disclose “their views as to what the real issues of the trial will be.” Youren, 343 F.3d at 1304. Accordingly, we have held that issues not contained in the resulting pretrial order were not part of the case before the district court. Id.; Wilson, 303 F.3d at 1215 (“[Cjlaims, issues, defenses, or theories of damages not included in the pretrial order are waived.... ”). Since Sam’s Club failed to challenge the timeliness of Cortez’s complaint in the pretrial order, we hold that the issue has been waived and decline to reach the merits of this argument. The judgment of the district court is AFFIRMED. . Sam's Club is a wholly-owned division of Wal-Mart, Inc., the named defendant in this action. Since the plaintiff worked for" }, { "docid": "14526265", "title": "", "text": "defense is an affirmative defense and is subject to waiver. See Bentley, 41 F.3d at 604. 2. Was the Statute of Limitations Defense Waived? Having determined that the statute of limitations defense is a waivable affirmative defense, we must determine whether the defendants, in fact, waived it in this case. It is true that the defendants here initially pled the statute of limitations defense, at least in general terms. See Aplts’ App. at 12. The defendants also filed a motion during the course of the trial, again raising the statute of limitations issue. Aplts’ App. at 55 (Motion for Directed Verdict, filed Mar. 23, 2001) (“The undisputed facts developed at trial show that plaintiff failed to timely file her claims”). Neither of these facts, however, overcomes the Pretrial Order Rule, embodied in Rule 16(e) of the Federal Rules of Civil Procedure: After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice. An order entered pursuant to Rule 16(e) supersedes the pleadings and controls the subsequent course of litigation. The resulting pretrial order “measures the dimensions of the lawsuit, both in the trial court and on appeal.” Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir.1997) (internal quotation marks omitted). “Since the whole purpose of Rule 16 is to clarify the real nature of the dispute at issue, attorneys at a pre-trial conference must make a full and fair disclosure of their views as to what the real issues of the trial will be.” Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir.1995) (internal quotation marks omitted). In assessing whether an issue was preserved where it was omitted from a pretrial oi'der, we have held that because a party “did not include this issue in the pre-trial report, ... it was not part of the case before the district court.” Gowan v. United States Dep’t of Air Force, 148 F.3d 1182," }, { "docid": "4592615", "title": "", "text": "under the representation that he was only going to borrow enough to pay off the truck as required through his divorce. The Plaintiff also originally sought a determination under 11 U.S.C. § 523(a)(6) that the Defendant converted his property, but that request for relief was orally withdrawn prior to trial. The dischargeability of debts is governed by 11 U.S.C. § 523, which as material to this adversary proceeding, provides that: (a) A discharge under section 727, ... of this title does not discharge an individual debtor from any debt — ■... (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.] Section 523(a) is construed liberally in favor of debtors and strictly against the party seeking a determination of nondis-chargeability, who bears the burden of proving the necessary elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); Rembert v. AT & T Universal Card Services, Inc. (In re Rembert), 141 F.3d 277, 281 (6th Cir.1998). In order to satisfy the requirements of § 523(a)(2)(A), the Plaintiff must first prove that the Defendant obtained money, property, or sendees through material misrepresentations which he knew were false or were made with gross recklessness, that the Defendant intended to deceive the Plaintiff, that he justifiably relied upon the Defendant’s false representations, and that his reliance was the proximate cause of his loss. See Haney v. Copeland (In re Copeland), 291 B.R. 740, 760 (Bankr.E.D.Tenn.2003). The Plaintiff must prove that the Defendant made material misrepresentations or “substantial inaccuracies of the type which would generally affect a lender’s or guarantor’s decision” and that he engaged in conduct that was “somewhat blameworthy.” Copeland, 291 B.R. at 759, 761 (quoting Candland v. Insurance Company of North America (In re Candland), 90 F.3d 1466, 1470 (9th Cir.1996)). “[F]alse pretense” involves implied misrepresentation or conduct intended to create and foster a false impression, as distinguished from a “false" }, { "docid": "14526266", "title": "", "text": "order following a final pretrial conference shall be modified only to prevent manifest injustice. An order entered pursuant to Rule 16(e) supersedes the pleadings and controls the subsequent course of litigation. The resulting pretrial order “measures the dimensions of the lawsuit, both in the trial court and on appeal.” Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir.1997) (internal quotation marks omitted). “Since the whole purpose of Rule 16 is to clarify the real nature of the dispute at issue, attorneys at a pre-trial conference must make a full and fair disclosure of their views as to what the real issues of the trial will be.” Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir.1995) (internal quotation marks omitted). In assessing whether an issue was preserved where it was omitted from a pretrial oi'der, we have held that because a party “did not include this issue in the pre-trial report, ... it was not part of the case before the district court.” Gowan v. United States Dep’t of Air Force, 148 F.3d 1182, 1192 (10th Cir.1998). Although the defendants included the statute of limitations as\" an affirmative defense in their answer to the complaint, they did not identify the statute of limitations issue in the pretrial order. Notably, there is a section of the pretrial order with the heading “CONTESTED ISSUES OF LAW,” under which the defendants listed three purely legal questions — but the statute of limitations issue was conspicuously not among them. Aplts’ App. at 48 (capitalization in original). Even more notably, the pretrial order was evidently prepared exclusively by the defendants. See Aplts’ Reply Br. at 3 n. 1 (“No joint pretrial order was prepared in this matter.”); Aplts’ App. at 53 (pretrial order with the signatures of Tintic’s counsel and the judge, but not that of Ms. Youren’s counsel). In McGinnis v. Ingram Equipment Co., 918 F.2d 1491 (11th Cir.1990), the Eleventh Circuit considered facts similar to those present here, where a party raised an issue in its first responsive pleading but then omitted reference to the issue in the pretrial order. The court" }, { "docid": "21513659", "title": "", "text": "in accord with the foregoing. A supplemental order shall be entered awarding attorney’s fees and costs. . 12 U.S.C. § 2605 et seq. and Regulation X, 24 C.F.R. § 3500. . Debtors appear by their attorney, William D. Peters, Kansas City, Kansas. Defendant Mortgage Electronic Registration Systems, Inc., appears by its attorney, Linda S. Mock, Overland Park, Kansas. .The parties do not dispute the Court’s jurisdiction. The Court finds it has jurisdiction over this proceeding under 28 U.S.C. § 1334 and 28 U.S.C. § 157. . The February 16, 2000, Notice of Assignment, Sale or Transfer of Servicing Rights is in the Court’s file in the main case, No. 01-23896, Doc. No. 41 at 68-70. . Plaintiffs’Trial Ex. 1. . Main Case No. 01-23896, Doc. No. 33. . Plaintiffs’ Trial Ex. 32 informs when and how Everhome processed a payment. .A suspense account is a place to hold payments until enough funds are accumulated to satisfy one monthly payment in full. . Main Case No. 01-23896, Doc. No. 48. . Main Case No. 01-23896, Doc. No. 55. . Main Case No. 01-23896, Doc. Nos. 53 and 58. . Trial Tr. 161. . Plaintiffs’ Trial Ex. 32. . Customer Account Activity Statement (Plaintiffs’ Trial Ex. 32). Exhibit 32 is incomplete. Activity for September 2002 through December 2002 is missing, making a complete accounting of this loan impossible. .Plaintiffs’ Trial Ex. 33. . Trial Tr. 207 (emphasis added). . Trial Tr. 208 (emphasis added). .Trial Tr. 120. . Everhome’s Customer Account Activity Statement abruptly ends on November 16, 2004. . See, e.g., In re Jones, 366 B.R. 584, 600 (Bankr.E.D.La.2007). . See, e.g., In re Jones, slip copy, 2007 WL 2480494, at *2 (Bankr.E.D.La. Aug.29, 2007); In re Sanchez, 372 B.R. 289, 311 (Bankr.S.D.Tex.2007); In re Padilla, 379 B.R. 643 (Bankr.S.D.Tex.2007). . See, e.g., In re Laskowski, 384 B.R. 518, 530-31 (Bankr.N.D.Ind.2008). . In re Miner, 369 B.R. 655, 672 (Bankr.D.Kan.2007). . Id., citing Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F.Supp.2d 1147, 1151-52 (D.Kan.2007)(quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979)). . Sanchez, 372 B.R. at" }, { "docid": "22817265", "title": "", "text": "for abuse of discretion a district court’s exclusion of evidence or issues from trial on the basis of a properly-drawn, detailed pretrial order. See Grant v. Brandt, 796 F.2d 351, 355 (10th Cir.1986). It is first important to note that the failure to disclose “unusual and/or infrequently occurring losses” constitutes the sole factual basis pleaded by the Plaintiffs in the 1998 Pretrial Order to support their claims regarding the Defendants’ accounting treatment of KII expenses. Because a pretrial order defines the scope of an action for trial, the Plaintiffs were thus obligated to prove this one specific factual contention to prevail on their accounting claims. See Fed.R.Civ.P. 16(e) (providing that a pretrial order entered after a pretrial conference “shall control the subsequent course of the action unless modified by a subsequent order”); Trujillo v. Uniroyal Corp., 608 F.2d 815, 817 (10th Cir.1979) (“When issues are defined by the pretrial order, they ought to be adhered to in the absence of some good and sufficient reason.” (citation and internal quotation marks omitted)). The question then is whether the district court properly determined the Plaintiffs needed to prove the losses were unusual or infrequently occurring as defined by GAAP, or whether infrequent occurrence under some other standard would have sufficed. As the Plaintiffs point out,' this court has recognized that a pretrial order “should be ‘liberally construed to cover any of the legal or factual theories that might be embraced by [its] language.’ ” Trujillo, 608 F.2d at 818 (quoting Rodrigues v. Ripley Indus., Inc., 507 F.2d 782, 787 (1st Cir.1974)). A careful reading of this court’s cases reviewing trial courts’ construction of pretrial orders, however, reveals that a district court may more strictly construe a pretrial order when that order has been refined over time, properly drawn, and drafted with substantial specificity. See, e.g., Cleverock Energy Corp. v. Trepel, 609 F.2d 1358, 1861-62 (10th Cir.1979) (affirming trial court’s exclusion of breach of fiduciary duty issue as beyond the scope of the pretrial order when the objecting party “failed to take timely advantage of an opportunity to enlarge upon the general terms" }, { "docid": "5980611", "title": "", "text": "transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir.2002). Finally, the court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). C. Analysis 1. Notice The court will first address YKK’s argument that because LRUS failed to notify YKK of the defects in the straps within a reasonable time after the breach was discovered or should have been discovered as required by K.S.A. § 84-2-607(3), LRUS is precluded from recovering any damages. YKK first raised this defense in its summary judgment motion. LRUS argues, however, that YKK’s failure to preserve this defense in the Pretrial Order constitutes a waiver of this defense and the court agrees. See Kay-Cee Enterprises, Inc. v. Amoco Oil Co., 45 F.Supp.2d 840, 846-47 (D.Kan.1999)(“ ‘The pretrial order supersedes the pleadings and controls the subsequent course of litigation.’ ”)(quoting Hullman v. Board of Trustees of Pratt Comm. College, 950 F.2d 665, 667 (10th Cir.1991); Fed.R.Civ.P. 16(e)). YKK argues that by raising the defenses of waiver and estoppel, it has adequately preserved the defense of notice under K.S.A. § 84-2-607(3). The waiver and es-toppel defenses asserted in the Pretrial Order, however, allege that LRUS’s inspection and acceptance of the straps constituted waiver and estoppel. They do not refer to the timeliness of LRUS’s notification to YKK regarding the defectiveness of the straps. The court recognizes that the Pretrial Order should “be liberally construed to cover any of the legal or factual theories that might be embraced by their language.” Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979). In this situation, however, the characterization of YKK’s waiver and estoppel defenses was insufficient to put LRUS on notice regarding any defense by YKK under K.S.A. § 84-2-607(3). Furthermore, at this late stage of the litigation, the court denies YKK’s alternative request to amend the Pretrial Order to include this defense. Accordingly, the court need not address" }, { "docid": "10730273", "title": "", "text": "by subsection (c)(5) of K.S.A. 8-135[.] Id. § 84-9-311(a)(l) (emphasis added). And, § 84-9-311(b) provides that “[cjomplianee with the requirements of a statute ... described in subsection (a) for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under this article. Except as otherwise provided in [sections not relevant] for goods covered by a certificate of title, a security interest in property subject to a statute ... described in subsection (a) may be perfected only by compliance with those requirements.... ” Id. § 84-9-311(b) (emphasis added). Finally, Kansas Statute § 8-135(c)(5) provides in relevant part that a “dealer or secured party may complete a notice of secured interest,” and “the proper completion and timely [ie., within 30 days] mailing or delivery of a notice of security interest ... shall perfect a security interest in the vehicle, as referenced in K.S.A. 84-9-311[.].” Id. § 8 — 135(c)(5). Kansas case law almost uniformly bears out this analysis that a security interest in a vehicle may only be perfected by compliance with the certificate of title statute. Morris v. Hicks (In re Hicks), 491 F.3d 1136, 1140 (10th Cir.2007); Redmond v. MHC Fin. Servs., Inc. (In re Barker), 358 B.R. 399, 406-411 (Bankr.D.Kan.2007); Morris v. Intrust Bank, N.A. (In re Anderson), 351 B.R. 752 (Bankr.D.Kan. 2006); Mid Am. Credit Union v. Board of County Comm’rs of Sedgwick County, 15 Kan.App.2d 216, 806 P.2d 479 (1991); Beneficial Fin. Co. v. Schroeder, 12 Kan. App.2d 150, 737 P.2d 52 (1987); contra, Davis v. Charlies Cars, Inc. (In re Cruth), 332 B.R. 16, 18-19 (Bankr.D.Kan.2005) (an enabling loan [PMSI] provides perfection automatically for 20 days following the delivery of the collateral, referring to Kansas Statute § 84-9-317(e)). With respect to the Cruth court, the foregoing analysis of the Kansas version of Article 9 illustrates that PMSI by itself does not perfect an interest in vehicles, whereas § 84-9-317(e) says that happens when PMSI does apply. In any event, the Cruth court’s statement about PMSI is dicta because the creditor in Cruth did not meet any of the" }, { "docid": "5128860", "title": "", "text": "district court summarily disregarded these exhibits because “no authentication by any witness [wa]s offered.” Law Co., 523 F.Supp.2d at 1282. Because no authenticating affidavit is required, Anderson, 789 F.2d at 845, the district court committed an error of law by categorically discarding these exhibits and therefore abused its discretion, see Wyandotte Nation, 443 F.3d at 1252. Mohawk’s submitted exhibits might be sufficiently authenticated taking into consideration the “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances,” 901(b)(4), even if they do not appear on Law letterhead. On remand, the district court should consider authentication of each document individually. C In its summary judgment ruling, the district court refused to consider three alternative arguments advanced by Mohawk. Mohawk asserted that even if the “no damages for delay” provisions were valid and had not been waived or modified, the provisions did not apply to the conduct at issue because: (1) such an extreme delay was not contemplated by the parties; (2) the delay was “unreasonable”; and (3) Law’s alleged actions constituted a “fundamental breach.” The district court concluded that these arguments were not encompassed within the final pretrial order and thus did not consider them. We review a district court’s interpretation of a pretrial order for abuse of discretion. Perry v. Winspur, 782 F.2d 893, 894 (10th Cir.1986). Pretrial orders are to be “liberally construed to cover any of the legal or factual theories that might be embraced by their language. We have cautioned that a pretrial order is a procedural tool to facilitate the trial of a lawsuit on its merits and not to defeat it on a technicality.” Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979) (quotations omitted). The primary purpose of pretrial orders is to avoid surprise. See Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir.2002). Here, the final pretrial order listed the following under “Legal Issues”: “Does the Subcontract language prevent Mohawk from making any delay claims against Law or any other types of claims based on adjustment to the work schedule?” We conclude the district court abused its discretion" }, { "docid": "4755379", "title": "", "text": "vehicles which were the Bank’s collateral for which the Bank held the title certificates, Iaquin- ta, without the Bank’s consent, knowledge or authority, sold approximately seven of the remaining ten vehicles. The Bank further alleges that Iaquinta used the proceeds for his own benefit without remitting same to the Bank, thereby damaging the Bank and wrongfully converting its collateral. The Bank claims that Iaquinta acted willfully, intentionally, maliciously, and with a fraudulent intent. The Bank contends that his actions constituted defalcation of a trust relationship and fiduciary obligations he owed the Bank. The damages claimed by the Bank exceed $41,-000.00 plus costs and attorneys’ fees. Ia-quinta denied the substantive allegations of the complaint. III. DISCUSSION A. Dischargeability Standards in the Seventh Circuit The party seeking to establish an exception to the discharge of a debt bears the burden of proof. In re Martin, 698 F.2d 883, 887 (7th Cir.1983). The standard of proof under section 523(a)(2), (a)(4) and (a)(6) is one of “clear and convincing evidence.” In re Bogstad, 779 F.2d 370, 373 (7th Cir.1985). The discharge provisions of section 523 are construed strictly against a creditor and liberally in favor of a debtor. In re Pochel, 64 B.R. 82, 84 (Bankr.C.D.Ill. 1986). See generally 3 Collier on Bankruptcy, § 523.08[4] (15th ed. 1988). B. 11 U.S.C. § 523(a)(2)(A) Section 523(a)(2)(A) provides as follows: (a) A discharge under section 727, 1141, 1228(a), 1128(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; 11 U.S.C. § 523(a)(2)(A). In order to except Iaquinta’s debt from discharge under this section, the Bank must establish three elements: (1) Iaquinta obtained the money or credit through representations either knowingly false or made with such reckless disregard for the truth as to constitute willful misrepresentation; (2) Iaquinta possessed an actual intent to defraud; and (3) the Bank actually and reasonably relied upon" } ]

[ { "docid": "6811497", "title": "", "text": "to determine eligibility for parole. The very broad discretion vested in the Board of Parole by Congress carried with it authority to establish such guidelines as would best effectuate the purpose of Congress in establishing the Board and the parole system. See Act of Aug. 25, 1958, Pub.L. No. 85-752, § 3, 72 Stat. 845; Earnest v. Moseley, 426 F.2d 466, 469 (10th Cir. 1970). Congress expressly conferred this power to promulgate guidelines upon the newly created Parole Commission. Parole Commission and Reorganization Act, Pub.L. No. 94-233, § 4203, 90 Stat. 220 (March 15, 1976), codified in 18 U.S.C. § 4203. The Ninth Circuit held in Love v. Fitz-harris, supra, 460 F.2d 382, that a change in an agency interpretation of statutes, which absent a court pronouncement on the matter, had the force and effect of law, could violate the prohibition on ex post fac-to laws. Love is inapposite because what is involved in this case is not agency interpretation of law but an agency’s setting up guidelines for itself to assure the uniform execution of its business. These guidelines are not law, but guideposts which assist the Parole Commission (and which assisted the Board of Parole) in exercising its discretion. Nor do these guidelines have the characteristics of law. They are not fixed and rigid, but are flexible. The Commission remains free to make parole decisions outside of these guidelines. We, therefore, conclude that Love does not support the contention of appellant. In Warden v. Marrero, supra, 417 U.S. at 663, 94 S.Ct. at 2538, the Supreme Court warned that “a repealer of parole eligibility previously available to imprisoned offenders would clearly present [a] serious question under the ex post facto clause of . the Constitution. . . . ” The Court in Marrero was presented with the statutory effect of Congressional enactments affecting parole eligibility. Since the relevant provisions were statutes, there was no question that they were encompassed in the prohibition on ex post facto laws. The situation here is different. As emphasized above, the provisions here are merely administrative guidelines, adopted by the Parole Commission (and" } ]

[ { "docid": "19931134", "title": "", "text": "reading of the Marshall language, as well as the cases upon which the Marshall court relied, i.e., Wasman and Pearce, is unwarranted. The Parole Board’s decisions did not impose a harsher “re-sentencing;” it just did not allow Petitioner a more lenient one. Moreover, Petitioner’s previous habeas and Bivens claims were all dismissed on the merits, hence eliminating the “vindictiveness” aspect. Finally, since Petitioner asserts that the Parole Board’s decisions to deny him release were based on the BOP report, which is undisputably made part of Petitioner’s record, the holding of Marshall and the cases relied upon by the Marshall court are wholly inapposite to Petitioner’s situation. 4. Solomon, Misasi, Dye, Billiteri and Pérsico Cases In Solomon, an inmate alleged that his release on parole was denied without good cause, that it ensued from the parole board’s reliance on factually incorrect information and its failure to consider positive information about the inmate, and that the notice of the decision was a mere “pro forma recitation” verifying the inmate’s allegations. After the inmate appealed the district court denial of habeas relief, the Court of Appeals for the Seventh Circuit affirmed the district court’s decision, explaining: The accepted standard of review of parole determinations is whether the decision constitutes an abuse of discretion. The authority to review Parole Commission decisions is thus limited. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. [See ] Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); [see also] Pérsico v. United States Dept, of Justice, 426 F.Supp. 1013, 1019 (E.D.Ill. 1977), aff'd, 582 F.2d 1286 (7th Cir.1978). Courts have the authority to review decisions by the Commission which show an abuse of discretion.... Solomon v. Elsea, 676 F.2d at 290. The Solomon court further clarified that, while [the inmate] urges this Court to adopt a “sufficiency of the evidence” standard of review ..., this standard exceeds that envisaged by Congress. We choose to retain the traditional standard of review. A court of review need only determine whether the information relied on" }, { "docid": "19931135", "title": "", "text": "denial of habeas relief, the Court of Appeals for the Seventh Circuit affirmed the district court’s decision, explaining: The accepted standard of review of parole determinations is whether the decision constitutes an abuse of discretion. The authority to review Parole Commission decisions is thus limited. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. [See ] Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); [see also] Pérsico v. United States Dept, of Justice, 426 F.Supp. 1013, 1019 (E.D.Ill. 1977), aff'd, 582 F.2d 1286 (7th Cir.1978). Courts have the authority to review decisions by the Commission which show an abuse of discretion.... Solomon v. Elsea, 676 F.2d at 290. The Solomon court further clarified that, while [the inmate] urges this Court to adopt a “sufficiency of the evidence” standard of review ..., this standard exceeds that envisaged by Congress. We choose to retain the traditional standard of review. A court of review need only determine whether the information relied on by the Commission is sufficient to provide a factual basis for its reasons. The inquiry is not whether the Commission’s decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission’s conclusions .... [See ] McArthur v. United States Board of Parole, 434 F.Supp. 163, 166 (S.D.Ind. 1976), aff'd, 559 F.2d 1226 (7th Cir. 1977), quoting Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976). It is this standard of review which we must use to evaluate the [inmate’s] contentions .... Although it is true that certain factors exist which are favorable to [the inmate], they are only factors for the Commission to consider.... Because a rational basis exists in the record to support the Commission’s conclusions, the decision of the Parole Commission must not be disturbed. There has been no abuse of discretion by the Parole Commission. Id. at 290-91 (emphasis supplied). Here, Petitioner reads the first excerpt from the Solomon opinion but entirely ignores" }, { "docid": "5152737", "title": "", "text": "the Strike Force information.” This argument is without merit, since petitioner already has responded to the allegations contained in the Strike Force materials. The Court’s authority to review the Parole Commission’s decisions is limited, however. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). As applied to an adult offender, the Commission’s guidelines merely clarify the exercise of this administrative discretion. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977). The Commission is not bound to adhere inexorably to the guidelines, Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977), and its decisions may be either above or below them. Grasso v. Norton, [520 F.2d 27, 34 (2d Cir. 1975)]. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir. 1978). Nevertheless, the Parole Commission’s discretion is limited by the constitutional concept of due process, United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970); and to enforce this limitation, the Court “has authority to review a decision by the [Commission] . which shows an abuse of discretion . . ..” Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). The Parole Commission must consider relevant favorable as well as unfavorable information in making its decisions. 18 U.S.C. §§ 4206, 4207; 28 C.F.R. §§ 2.18, 2.19. It must also provide a prisoner with an adequate statement of the reasons for its decision, including reference to the evidence and sources relied upon, if it denies parole. 18 U.S.C. § 4206; 28 C.F.R. § 2.13. And if the Commission wishes to continue an inmate’s incarceration beyond the guidelines established for him, it must have and state specific reasons beyond those which brought the prisoner within the guidelines to begin with. Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979); United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144 (M.D.Pa.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); Lupo v. Norton, 371 F.Supp. 156, 163 (D.Conn.1974). In this case petitioner" }, { "docid": "18817355", "title": "", "text": "in reevaluating his parole prospects, see Notice of Action November 2, 1981, supra, he is being punished more harshly than the Commission guidelines, 28 C.F.R. § 2.20, would indicate. Even with the moderate severity rating given to his offense and affirmed by the National Commissioners, were his salient factor score zero, claims petitioner, the guidelines would indicate a period of incarceration of only 24 to 32 months, not six years. The Connecticut authorities’ persistent, forceful and ultimately successful eleventh hour campaign to keep Iuteri incarcerated is clearly regrettable. These unfortunate circumstances should not, however, sway the court in its review of the Commission’s actions unless it appears that the Commission tacitly and improperly permitted the vociferousness of these authorities’ desires to influence its calculation of a period of incarceration. Here, the court looks not to the propriety of the submissions, but rather to whether the Commission acted arbitrarily and capriciously in translating the information considered into a period of incarceration on the fifteen year sentence. This court notes its limited role in reviewing a decision of the Commission. The appropriate standard of review, set forth in Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir.1976), and followed in this district, provides that the district court “insure that the [Commission] has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, not based on impermissible considerations.” See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); Wiggins v. Nelson, 510 F.Supp. 666, 667 (D.Conn.1981); Brach v. Nelson, 472 F.Supp. 569, 575 (D.Conn. 1979). “[T]he inquiry is only whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its statement of reasons.” Zannino, supra, at 691. The Commission is not bound to adhere inexorably to its guidelines; it may reach decisions either above or below them. The Commission’s guidelines merely clarify the exercise of its administrative discretion. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir.1978); Grasso v. Norton, 520 F.2d 27, 34 (2d Cir.1975); Myrick v. Gunnell, 563 F.Supp. 51, 54 (D.Conn.1983). When" }, { "docid": "5922085", "title": "", "text": "writ will issue discharging petitioner unless the Board grants him a new hearing at the next regularly scheduled visit of the Parole Examiners at the F.C.I., Danbury and, in any event, no later than 60 days from the date hereof. It is so Ordered. . At the time of the hearing, the prison officials at the Federal Correctional Institution recommended that petitioner be paroled through the Federal Treatment Center in New York City. . Petitioner contended as well that the Commission acted improperly by basing its decision on the very same factors which the sentencing judge considered and by failing to consider both his conduct on parole prior to the instant offense and “his fine institutional records.” This Court finds no need now to address these claims since relief is granted on other grounds. . Congress has vested the authority to grant or deny parole in the Parole Commission. 18 U.S.C. § 4203. This authority has been judicially interpreted to be exclusively within the discretion of the Commission. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). Nevertheless, this Court does have the authority to review a decision by the Commission. The standard of review is limited to whether the decision is arbitrary and capricious or is an abuse of discretion. Billiteri, supra. . The highest and most favorable salient factor score obtainable is eleven points based upon seven categories of “offender characteristics”. These seven categories encompass prior convictions, prior incarcerations, age at first commitment, nature of offense, parole violation or revocation, drug dependence, and employment prior to incarceration. Petitioner had a salient factor score of four and a high severity offense rating. Thus, the applicable guideline period would have been during the 26-34 month period in his sentence. . Notice of Action dated February 23, 1978 states: Your offense behavior has been rated as high severity because the stolen items were valued at $100,000. You have a salient factor score of 4. You have been in custody a total of 18 months. Guidelines established by the Commission for adult cases which consider the above" }, { "docid": "8099171", "title": "", "text": "an indictment. Holding that the Commission possesses broad discretion to review materi al that would assist its determination whether to release a prisoner on parole, Judge Weis observed: In the parole context, Congress has authorized the Commission to view presentence reports, 18 U.S.C. § 4207(3) (1976), despite the knowledge that ‘there are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatsoever to the crime with which the defendant is charged.’ Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969). Thus, in Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2nd Cir. 1976), a pre-PRCA case, the court reasoned that if the sentencing judge may take into account offenses other than the ones for which defendant was convicted, the Parole Board may use a presentence report to arrive at a severity rating. Similarly, in Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976), another prePRCA case, we held that reports linking a prisoner to large-scale organized criminal activity provided a sufficient basis for a Board determination to deny parole. Nothing in the new Act or its legislative history, curtails what could have been considered by the old Parole Board. Id. at 64. (footnote omitted). Appellant contends that Goldberg is distinguishable because in that case the Commission considered different counts of the same indictment leading to the defendant’s guilty plea whereas, in the instant case, appellant pleaded guilty to a separate accusation. We decline to read Goldberg so narrowly; the clear holding of the case is that the Commission has broad power to consider things other than the conviction when making its parole decision. Goldberg recognized that the Commission, like a sentencing judge, “is not limited to a consideration of only that criminal conduct of the defendant which related to the offense for which he was convicted.” Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2nd Cir. 1976). See also Christopher v. United States Board of Parole, 589 F.2d 924, 932 (7th Cir. 1978) (“Paroling authorities are not limited" }, { "docid": "15397988", "title": "", "text": "habeas corpus and ordered Bialkin released from custody. II. Congress vested in the sound discretion of the commission the sole power to grant or deny parole, Billiteri v. U.S. Board of Parole, 541 F.2d 938, 944 (2d Cir.1976), and directed the commission to establish guidelines for exercising its powers, including the granting, denying and modifying of parole, 18 U.S.C. §§ 4203(a)(1), (b)(1), and (b)(3) (1976). Under its guidelines, the commission determines for each prisoner, the severity of his offense behavior (offense characteristics) and classifies it in any of six categories ranging from “low” to “Greatest II”. The commission also determines a prisoner’s parole prognosis (offender characteristics) and calculates his “salient factor score” on a scale from 0 to 10. For various combinations of offense severities and salient factor scores the guidelines indicate a range of “customary range of time to be served before release” on parole. 28 C.F.R. § 2.20(b) (1982). The regulations specifically provide that the time ranges are “merely guidelines” and that “[wjhere the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.” 28 C.F.R. § 2.20(c) (1982). After revoking parole based on “new criminal conduct”, as in the case at bar, the commission must calculate “the appropriate severity rating for the new criminal behavior”. 28 C.F.R. § 2.21(b)(1) (1982). Because violations of parole may be based on non-federal offenses, the regulations permit the appropriate severity level to “be determined by analogy with listed federal offense behaviors”. Id. As with the original parole, decisions on reparole may, when circumstances warrant, fall outside the guidelines. 28 C.F.R. § 2.21(c) (1982). Federal court review of parole commission decisions is extremely limited, because the commission has been granted broad discretion to determine parole eligibility. 18 U.S.C. § 4218(d); Garcia v. Neagle, 660 F.2d 983 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982). Deference to the commission’s interpretation of its own regulations is required unless that interpretation is shown to be unreasonable. Staege v. U.S. Parole Commission, 671 F.2d 266, 268 (8th Cir. 1982); see Udall v. Tallman, 380 U.S. 1," }, { "docid": "900884", "title": "", "text": "granted is made by the Parole Commission after the prosecution has terminated. This court has not yet passed upon the question presented in the instant case. However, the distinction between eligibility for parole consideration and parole release was recognized implicitly in Grasso v. Norton, supra, 520 F.2d 27. We there held that prisoners sentenced under 18 U.S.C. § 4208(a)(2) (now 18 U.S.C. § 4205(b)(2)) are entitled to receive effective and meaningful parole consideration at or before the one-third point of their sentence. At the same time, we stated that whether or not the prisoner is released is within the discretion of the parole board. Id. at 37. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976) . As applied to an adult offender, the Commission’s guidelines merely clarify the exercise of this administrative discretion. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977) . The Commission is not bound to adhere inexorably to the guidelines, Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977), and its decisions may be either above or below them. Grasso v. Norton, supra, 520 F.2d at 34; see note 3 supra. Moreover, the Commission is required to review the guidelines periodically and may revise or modify them at any time. 18 U.S.C. § 4203(a)(1); 28 C.F.R. § 2.20(g). Future revisions might well frustrate the present intentions of those sentencing judges who feel that they can predict the length of incarceration with some degree of certainty under the existing guidelines. On the other hand, the intentions of Congress, as expressed in former section 4203 and its successor, section 4206, would be thwarted if the promulgation of the guidelines and every future change therein warranted a section 2255 proceeding for resentencing. See United States v. McBride, supra, 560 F.2d at 11. We believe that our adoption of the Supreme Court’s reasoning in Warden v. Marrero, supra, will best effectuate the congressional intent. The order appealed from is affirmed. . The guidelines" }, { "docid": "9954499", "title": "", "text": "exercise of the Commission’s discretion to establish presumptive parole dates for convicted offenders. Central to the Commission’s case is 18 U.S.C. § 4206(c) (1976), which states: The Commission may grant or deny release on parole notwithstanding the guidelines ... if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon. The Commission asserts that it does in fact engage in individualized analysis of the parole prospects of each and every offender, using the discretion it retains to render decisions “above” and “below” the guidelines. Thus, argues the Commission, the guidelines cannot have the binding effect of “laws” because' the Commission can and does set periods of incarceration “above” or “below” the ranges suggested in the guidelines — as it did in Forman’s case, see supra —and, therefore, no person can formulate any protectible expectations with respect to presumptive release dates because too many unquantifiable and discretionary variables enter into the Commission’s ultimate deci-sionmaking. The Commission also claims that Forman was on notice of possible changes in the guidelines because the Commission always has expressly reserved the right to “review the guidelines periodically and [to] revise or modify them at any time as deemed appropriate.” 28 C.F.R. § 2.20(f) (1974); accord id. § 2.20(g) (1979); id. § 2.20(g) (1982). Finally, the Commission relies on decisions of other courts that have found the guidelines “not [to] constitute impermissible ex post facto laws [because] they merely clarify the exercise of administrative discretion without altering any existing considerations for parole release,” Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir.1977). See Stroud v. United States Parole Commission, 668 F.2d 843, 847 (5th Cir.1982); Warren v. United States Parole Commission, supra note 5, 659 F.2d at 192-97; Priore v. Nelson, supra note 5, 626 F.2d at 217; Portley v. Grossman, 605 F.2d 563 (9th Cir.1979), vacated and remanded, 450 U.S. 962, 101 S.Ct. 1476, 67 L.Ed.2d 611 (1981); Zeidman v. United States Parole Commission, supra note 11, 593 F.2d at 808; Leaphart" }, { "docid": "18637829", "title": "", "text": "Parole Commission and not, as petitioner suggests, upon institutional case workers’ recommendations or those of third parties. The decision by the' Commission is a “mix” of many factors and no single consideration is conclusive. In any event, the discretion is that of the Commission. It has the sole power to grant or deny parole, and as previously noted, PCRA guidelines are applicable to petitioner. Petitioner’s further claim that the Commission’s determination fails to carry out the intent of the sentencing court is without substance since there is no enforceable right of a sentencing judge to effect a particular parole date. Finally, apart from the foregoing which requires dismissal of petitioner’s application upon the merits, it appears that to date, although he has appealed to the Regional Commission pursuant to 18 U.S.C., section 4215(a) which affirmed the previous decision but modified the reasons, petitioner has not filed an appeal to the National Appeals Board as permitted by 18 U.S.C., section 4215(b) and, accordingly, he has failed to exhaust available administrative remedies. Finally, petitioner’s application for bail is denied. Under the facts alleged there is neither constitutional nor statutory right to bail. So ordered. . The additional documents are (1) Petitioner’s Answer to Respondents’ Response (to his December 1978 petition); (2) Motion to Expedite Procedure; (3) Motion to File Supplemental (habeas) Petition or Original Petition; (4) Motion for Expansion of Record; and (5) Motion for Grant of Bail. . Petitioner was sentenced on July 7, 1977, but was given a 21-day stay and surrendered to serve his sentence on July 28, 1977. . [1976] U.S.Code Cong. & Admin.News, pp. 335, 369. . Cf. Leftwich v. Jett, 453 F.Supp. 879 (C.D.Cal. 1978). . Dorszynski v. United States, 418 U.S. 424, 434, 94 S.Ct. 3042, 3048, 41 L.Ed.2d 855 (1974). . 18 U.S.C. § 4207(3). . Cf. Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944-45 (2d Cir. 1976). . Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967). . Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). . 18 U.S.C. § 4207. . 28 C.F.R." }, { "docid": "18637830", "title": "", "text": "is denied. Under the facts alleged there is neither constitutional nor statutory right to bail. So ordered. . The additional documents are (1) Petitioner’s Answer to Respondents’ Response (to his December 1978 petition); (2) Motion to Expedite Procedure; (3) Motion to File Supplemental (habeas) Petition or Original Petition; (4) Motion for Expansion of Record; and (5) Motion for Grant of Bail. . Petitioner was sentenced on July 7, 1977, but was given a 21-day stay and surrendered to serve his sentence on July 28, 1977. . [1976] U.S.Code Cong. & Admin.News, pp. 335, 369. . Cf. Leftwich v. Jett, 453 F.Supp. 879 (C.D.Cal. 1978). . Dorszynski v. United States, 418 U.S. 424, 434, 94 S.Ct. 3042, 3048, 41 L.Ed.2d 855 (1974). . 18 U.S.C. § 4207(3). . Cf. Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944-45 (2d Cir. 1976). . Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967). . Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). . 18 U.S.C. § 4207. . 28 C.F.R. § 2.20. . 18 U.S.C. §§ 4201-4218 (1976). . Shahid v. Crawford, 599 F.2d 666, 670 (5th Cir. 1979). Cf. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977); Grasso v. Norton, 520 F.2d 27, 32-33 (2d Cir. 1975). . Moore v. Nelson, 611 F.2d 434 (2d Cir. 1979); United States v. Jackson, 550 F.2d 830, 832 (2d Cir. 1977); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977). . Shahid v. Crawford, 599 F.2d 666, 670 (5th Cir. 1979). See also [1976] U.S.Code Cong. & Admin.News, p. 360. . Cf. Burton v. Ciccone, 484 F.2d 1322 (8th Cir. 1973); Smith v. United States, 577 F.2d 1025 (5th Cir. 1978). . 18 U.S.C. § 4203(b)(1); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). . See footnote 14, supra. . United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979). . Petitioner also sought the appointment of counsel. That motion was denied. His further motion to amend the original petition was granted by" }, { "docid": "17016499", "title": "", "text": "raises the following claims in his application for habeas relief: 1. The Parole Commission’s finding that Petitioner was the “ringleader” is based on conjecture and not on facts established at trial. 2. The Parole Commission abused its discretion in assigning Petitioner an offense severity rating of Greatest II where the panel of hearing examiners originally assigned him a rating of Greatest I. 3. The Parole Commission unlawfully relied upon false information in the presentence report indicating that Petitioner had attempted to kill a Yugoslavian consul. 4. The Parole Commission’s application of the parole guidelines in Petitioner’s case was unlawful since he was sentenced under 18 U.S.C. § 4205(b)(2). 5. Persons sentenced under 18 U.S.C. § 4205(b)(2) must be paroled at or before the one-third point of their sentences unless they fail to positively adjust to prison life. 6. The Parole Commission .unlawfully based its parole decision on media coverage. In their answer to the petition, Respondents argue that the Parole Commission did not abuse its discretion in denying parole to Petitioner and request that the petition be denied. Petitioner has filed a reply to Respondents’ answer and a “motion to include new information as addendum to habeas corpus action,” both of which have been considered by this Court. The scope of this Court’s review of a Parole Commission decision is narrow. Dye v. United States Parole Commission, 558 F.2d 1376, 1378 (10th Cir.1977). The standard of review is whether the Commission’s decision is arbitrary and capricious or an abuse of discretion. Id.; Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976). The scope of information the Parole Commission may consider in rendering parole decisions is broad. 18 U.S.C. § 4207 provides: In making a determination under this chapter (relating to release on parole) the Commission shall consider, if available and relevant: (1) reports and recommendations which the staff of the facility in which such prisoner is confined may make; (2) official reports of the prisoner’s prior criminal record, including a report or record of earlier probation and parole experiences; (3) presentence investigation reports; (4) recommendations regarding" }, { "docid": "211403", "title": "", "text": "no jurisdic tion over a habeas corpus action in this case. Even if the appellees’ complaint could be viewed as a form of action other than a petition for habeas corpus, an issue we do not reach, cf. In re Chatman-Bey, 718 F.2d 484, 487-88 & nn. 7-8 (D.C.Cir.1983) (per curiam), the District Court still could not release them. If the Parole Commission’s general rule were invalidated, a decision to release the prisoners would still remain within the sole discretion of the Commission. Iuteri v. Nardoza, 732 F.2d 32, 36 (2d Cir.1984); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir.1976). While the District Court does have power to review the Commission’s guidelines, “[t]he 'only remedy which the court can give is to order the [Commission] to correct the abuses or wrongful conduct within a fixed period of time.” Id. If the Commission’s actions in this case are invalidated, release would not inexorably follow. The Commission could conceivably promulgate a new policy for determining severity factors for unlisted crimes, promulgate a valid guideline for criminal contempt, or completely disregard its guidelines in deciding the appellees’ cases. 18 U.S.C. § 4206(c) (1982). The District Court would still be limited to ordering the Parole Commission to follow the court’s interpretation of the law. The court would have no power to hold its own parole hearing. Billiteri, 541 F.2d at 943-44. Since the power to release remains in the Commission’s hands, the District Court could not release the appellees even if they were successful on the merits. Thus, it certainly cannot release them in the interim. Baker v. Sard, 420 F.2d 1342 (D.C.Cir.1969). * * sic The government urges this court to rule that an attack on actions of the Parole Commission is necessarily an attack challenging the fact or duration of confinement and thus only maintainable by habeas corpus under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Appellant’s Brief at 8, 11. Moreover, the government argues that the District Court has misapplied the criteria set forth in Starnes v. McGuire, 512 F.2d" }, { "docid": "22821597", "title": "", "text": "Solomon was the acknowledged “head.” While the appellant has denied certain facts concerning the smuggling operation, the facts remain that a smuggling conspiracy did exist and that the appellant’s offense was a part of this conspiracy. Because these significant factors in the Parole Commission’s determination have not been disputed on appeal, our review need not go any further. Whether certain statements in the presentence report or a hearing summary are correct we need not decide. Only the facts which constitute significant factors in the Commission’s decision are subject to our review. V. Finally, Solomon claims that the Parole Commission overlooked a copious supply of positive information which, if it had been properly considered, would have made him a much more favorable parole candidate. In order to properly review this alleged failure to consider positive information, Solomon urges this Court to create an exception to the limited standard of review which a reviewing court typically has over parole determinations. Solomon argues that when an “abundance” of favorable information exists, and when the information is coupled with a significant disparity between the prison time recommended by the Commission guidelines and the actual time served, a strong inference should be created that the Commission violated 18 U.S.C. § 4207 by failing to consider the positive information. In such instances, he argues, a reviewing court should apply a sufficiency of the evidence standard. As precedent for this broad scope of review, appellant cites Hearn v. Nelson, 496 F.Supp. 1111 (D.Conn. 1980), where a district court implicitly adopted such a standard. We respectfully decline the appellant’s invitation to adopt this broad standard of review. The accepted standard of review of parole determinations is whether the decision constitutes an abuse of discretion. The authority to review Parole Commission decisions is thus limited. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). See Persico v. United States Dept. of Justice, 426 F.Supp. 1013, 1019 (E.D.Ill.1977), aff’d 582 F.2d 1286 (7th Cir. 1978)." }, { "docid": "18817356", "title": "", "text": "of the Commission. The appropriate standard of review, set forth in Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir.1976), and followed in this district, provides that the district court “insure that the [Commission] has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, not based on impermissible considerations.” See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); Wiggins v. Nelson, 510 F.Supp. 666, 667 (D.Conn.1981); Brach v. Nelson, 472 F.Supp. 569, 575 (D.Conn. 1979). “[T]he inquiry is only whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its statement of reasons.” Zannino, supra, at 691. The Commission is not bound to adhere inexorably to its guidelines; it may reach decisions either above or below them. The Commission’s guidelines merely clarify the exercise of its administrative discretion. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir.1978); Grasso v. Norton, 520 F.2d 27, 34 (2d Cir.1975); Myrick v. Gunnell, 563 F.Supp. 51, 54 (D.Conn.1983). When the Commission decides, with “good cause,\" 18 U.S.C. § 4206(c) (1980), to go outside its guidelines, it must give the prisoner specific reasons different from those already relied on in determining the prisoner’s offense severity rating. Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn. 1980). The Commission has wide latitude in considering information relevant to its inquiry. See 28 C.F.R. § 2.19. Judgment on credibility of the evidence is vested solely in the Commission, and the Commission shall resolve disputes on accuracy of information by the preponderance of the evidence standard, that explanation which best accords with reason and probability. 28 C.F.R. § 2.19(c); Myrick v. Gunnell, supra, at 7; Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977). The Commission is entitled to reject petitioner’s testimony and consider information in the presentence report, in the sentencing hearing and in the Form 792. 18 U.S.C. § 4207; 28 C.F.R. § 2.19. Petitioner alleges that the Commission was in no position to judge the credibility of witnesses against him because it did not hear any testimony. Although" }, { "docid": "900883", "title": "", "text": "it has, nonetheless, made it quite clear that it does not consider the Commission’s decision to grant or deny parole to be part of the sentencing process. In Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), the Court said that “[pjarole arises after the end of the criminal prosecution, including imposition of sentence.” In Bradley v. United States, 410 U.S. 605, 611 n. 6, 93 S.Ct. 1151, 1156 n. 6, 35 L.Ed.2d 528 n. 6 (1973), the Court added that “[t]he decision to grant parole under § 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated.” In Warden v. Marrero, 417 U.S. 653, 658-59, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), the Court clarified the footnote in Bradley by holding that the district judge, as part of his sentencing function, may determine when the defendant will become eligible for parole consideration but that the decision whether release on parole should be granted is made by the Parole Commission after the prosecution has terminated. This court has not yet passed upon the question presented in the instant case. However, the distinction between eligibility for parole consideration and parole release was recognized implicitly in Grasso v. Norton, supra, 520 F.2d 27. We there held that prisoners sentenced under 18 U.S.C. § 4208(a)(2) (now 18 U.S.C. § 4205(b)(2)) are entitled to receive effective and meaningful parole consideration at or before the one-third point of their sentence. At the same time, we stated that whether or not the prisoner is released is within the discretion of the parole board. Id. at 37. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976) . As applied to an adult offender, the Commission’s guidelines merely clarify the exercise of this administrative discretion. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977) . The Commission is not bound to adhere" }, { "docid": "22821598", "title": "", "text": "a significant disparity between the prison time recommended by the Commission guidelines and the actual time served, a strong inference should be created that the Commission violated 18 U.S.C. § 4207 by failing to consider the positive information. In such instances, he argues, a reviewing court should apply a sufficiency of the evidence standard. As precedent for this broad scope of review, appellant cites Hearn v. Nelson, 496 F.Supp. 1111 (D.Conn. 1980), where a district court implicitly adopted such a standard. We respectfully decline the appellant’s invitation to adopt this broad standard of review. The accepted standard of review of parole determinations is whether the decision constitutes an abuse of discretion. The authority to review Parole Commission decisions is thus limited. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). See Persico v. United States Dept. of Justice, 426 F.Supp. 1013, 1019 (E.D.Ill.1977), aff’d 582 F.2d 1286 (7th Cir. 1978). Courts have the authority to review decisions by the Commission which show an abuse of discretion. This review cannot be made without some inquiry into the evidence relied on by the Commission to support its expressed reasons for denying parole. In order to determine whether there has been an abuse of discretion, the appellant urges this Court to adopt a “sufficiency of the evidence” standard of review for factual situations such as presented in this case. However, this standard exceeds that envisaged by Congress. We choose to retain the traditional standard of review. A court of review need only determine whether the information relied on by the Commission is sufficient to provide a factual basis for its reasons. The inquiry is not whether the Commission’s decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission’s conclusions embodied in its statement of reasons. McArthur v. United States Board of Parole, 434 F.Supp. 163, 166 (S.D.Ind.1976), aff’d" }, { "docid": "5152738", "title": "", "text": "and to enforce this limitation, the Court “has authority to review a decision by the [Commission] . which shows an abuse of discretion . . ..” Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). The Parole Commission must consider relevant favorable as well as unfavorable information in making its decisions. 18 U.S.C. §§ 4206, 4207; 28 C.F.R. §§ 2.18, 2.19. It must also provide a prisoner with an adequate statement of the reasons for its decision, including reference to the evidence and sources relied upon, if it denies parole. 18 U.S.C. § 4206; 28 C.F.R. § 2.13. And if the Commission wishes to continue an inmate’s incarceration beyond the guidelines established for him, it must have and state specific reasons beyond those which brought the prisoner within the guidelines to begin with. Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979); United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144 (M.D.Pa.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); Lupo v. Norton, 371 F.Supp. 156, 163 (D.Conn.1974). In this case petitioner claims that the Commission has failed to consider the favorable information available to it in reaching its decision to continue him 76 months beyond his guidelines. The Commission’s position apparently is that it has considered such information: its notices of action all have stated that it considered “all relevant factors and information presented.” It is not this Court’s place to reweigh the evidence the Commission considered, Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977), or to substitute the Court’s judgment for that of the Commission, Billiteri, supra. But the abundance of information favorable to petitioner and the magnitude of the difference between the period of incarceration the guidelines suggest and the period the Commission has chosen raise a strong inference that the Commission has failed to consider or give any weight at all to favorable information, in violation of 18 U.S.C. § 4207. The boilerplate language in the notices of action, quoted above, does nothing to dispel this inference. Petitioner next argues that the Commission’s statements of its reasons for continuing him beyond his guidelines" }, { "docid": "23702768", "title": "", "text": "did not constitute “new” information — since we reject them substantially for the reasons stated in Judge Eginton’s opinion. Iuteri v. Nardoza, 560 F.Supp. at 748-54. We also affirm the district court on the third ground — that the Commission did not act irrationally in going above the guidelines in setting Iuteri’s release date — but we write briefly on the issue to emphasize that the Commission operates with considerable discretion in this area. II. DISCUSSION As we have noted previously, see, e.g., Bialkin v. Baer, 719 F.2d 590, 592 (2d Cir.1983), Congress has vested the sole power to grant or deny parole in the sound discretion of the Commission. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976). Congress has directed the [CJommission to establish guidelines for exercising its powers____ Under its guidelines, the [CJommission determines for each prisoner, the severity of his offense behavior (offense characteristics) and classifies it in any of six categories ranging from “low” to “Greatest II.” The [CJommission also determines a prisoner’s parole prognosis (offender characteristics) and calculates his “salient factor score” on a scale from 0 to 10. For various combinations of offense severities and salient factor scores the guidelines indicate a range of “customary range of time to be served before release” on parole. 28 C.F.R. § 2.20(b)(1982). Bialkin v. Baer, 719 F.2d at 592. Although the Commission generally relies on the guidelines in determining the release date of a prisoner, see 18 U.S.C. § 4206(a) (1982), it is not limited exclusively by them. Campbell v. United States Parole Commission, 704 F.2d 106, 111 (3d Cir.1983). Congress expressly provided in section 4206(c) that the Commission can go beyond the guidelines if it determines there is good cause for doing so. 18 U.S.C. § 4206(c) (1982); Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir.1984). The legislative history suggests that the definition of good cause “can not be a precise one, be cause it must be broad enough to cover many circumstances.” H.R.Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Ad.News 335," }, { "docid": "5152736", "title": "", "text": "1980, hearing before the National Commission on petitioner’s national appeal. The Commissioners questioned petitioner’s representative only about the allegations contained in the DEA materials, and not about petitioner’s pre-sentence report or any other information or recommendations supplied by petitioner’s family or prospective employer, the staff at F.C.I. Danbury or the panel of hearing examiners. In a Notice of Action dated May 14, 1980, the National Commission affirmed the decision of January 14, 1980. The new Notice was identical to the Notice of August, 1978. It contained no new information. Petitioner filed the instant petition on June 11, 1980. The Parole Commission has since reopened his case pursuant to 28 C.F.R. § 2.28(a) .(1979), ostensibly to afford him an opportunity to “review and respond to the Strike Force information.” The government argues that the Commission’s failure to make any earlier disclosure of these materials is purely a procedural defect, which will be cured by the new hearing, and that the Court therefore should reserve decision on the petition “until the Commission has evaluated Hearn’s response to the Strike Force information.” This argument is without merit, since petitioner already has responded to the allegations contained in the Strike Force materials. The Court’s authority to review the Parole Commission’s decisions is limited, however. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). As applied to an adult offender, the Commission’s guidelines merely clarify the exercise of this administrative discretion. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977). The Commission is not bound to adhere inexorably to the guidelines, Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977), and its decisions may be either above or below them. Grasso v. Norton, [520 F.2d 27, 34 (2d Cir. 1975)]. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir. 1978). Nevertheless, the Parole Commission’s discretion is limited by the constitutional concept of due process, United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970);" } ]

[ { "docid": "18374244", "title": "", "text": "superfluous employees were hired or personal pay-offs made to defendant.” Despite all this appellant argues that, while the allegations of the indictment follow the language of 18 U.S.C. § 1951, the vital thrust of the indictment lies in the particular kind of “wrongful use of actual or threatened force, violence, or fear” relied upon, and that the omission to state this in specific rather than general terms is in effect the omission of the “essence” of the charge and a fatal defect. We do not find this argument persuasive. Under modern conditions, as we have already repeatedly held, “an indictment which charges a statutory crime by following substantially the language of the statute is amply sufficient, provided that its generality neither prejudices defendant in the preparation of his defense nor endangers his constitutional guarantee against double jeopardy.” United States v. Achtner, 2 Cir., 144 F.2d 49, 51; United States v. Varlack, 2 Cir., 225 F.2d 665, 670. Applying this test here it is clear to us that by the dates and amounts stated in the indictment appellant is protected against any possible double jeopardy, and the trial record viewed as a whole convinces us that, with or without the details given in the Bill of Particulars, appellant could not have been prejudiced in the preparation of his? defense by the generality of the allegations contained in the indictment. As to the sufficiency of the evidence, appellant’s argument is merely a variant of contentions we hear so often in extortion cases to the effect that, unless the threat which induces fear in the victim is spelled out in words of one syllable and in plain terms of a threat, there is no case for the jury. But common sense must be used in this class of cases as well as others. If the jury believed Smykla’s testimony of what appellant said to him, it was certainly within their province to infer that appellant intended to give Smykla the impression that he was faced with the practical certainty that appellant would picket the job site and cause a work stoppage if Smykla" } ]

[ { "docid": "23116142", "title": "", "text": "did not adequately notify him of the charges against him nor fully protect him against the possibility of double jeopardy. The court apparently found fair notice problems in the fact that the first and second Specifications of the Original Charge against Calley (the killings at the trial in the southern part of the hamlet and at the ditch in the eastern portion) covered multiple unnamed victims in a single specification. The double jeopardy problem discerned by the court was two-fold. First, quoting a hypothetical situation posed by Calley’s counsel, the district court found that there was a risk that Calley might have been twice convicted for killing the same individual within the same trial. See 382 F.Supp. at 710. Second, the district court speculated that Calley might again be charged for other killings in Vietnam and might not be able accurately to plead former conviction. We find no merit in these conclusions. Fair notice and double jeopardy issues involve requirements of both the Fifth and Sixth Amendments. See United States v. Sanchez, 5 Cir., 1975, 508 F.2d 388, 395. The Constitution requires that criminal charges be sufficiently specific (1) to apprise the defendant of what he must be prepared to meet at trial, and (2) to enable the defendant to show with accuracy the extent to which he may plead former acquittal or conviction in other proceedings brought against him for a similar offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) and cases cited. We are satisfied that the charges against Calley, as amplified in the Bill of Particulars, met these requirements. The charges set forth the time and place of the alleged offense. Under the Bill of Particulars, the prosecution set forth the chronological sequence of the separate charges: the killings at the trail occurred first, followed by the killings at the ditch, and next followed by the murder of the monk and then the child. The Bill of Particulars specified the actual physical location: the killings at the trail were in the southern portion of the village, those at" }, { "docid": "12441410", "title": "", "text": "Cir. 1963). An indictment in the language of the statute may also be defective if the statute is in general terms and the indictment fails to specify the offense of which the defendant is accused. Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Simmons, 96 U.S. (6 Otto) 360, 24 L.Ed. 819 (1877). . The phrase to which Haldeman objects is in the last paragraph of the trial court’s charge to the jury on Count 2: Similarly, if you find beyond a reasonable doubt that a defendant knowingly and willfully approved or participated in some other corrupt activity, such as making offers of leniency, clemency or other benefits, making false statements to the FBI, making false statements under oath to the grand jury, misusing the FBI or CIA, or other such activity, you may find that defendant guilty on Count Two if you also find beyond a reasonable doubt that his purpose was to influence, obstruct or impede the due administration of justice. (Emphasis added.) . As the Second Circuit recently stated in United States v. Tramunti, 513 F.2d 1087, 1113, cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975): An indictment need only provide sufficient detail to assure against double jeopardy and state the elements of the offense charged, thereby apprising the defendant of what he must be prepared to meet. Under this test, an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crimes * * *. (Citation omitted.) On the sufficiency of indictments alleging obstruction of justice in the language of 18 U.S.C. § 1503, see Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951); and United States v. Bell, 351 F.2d 868, 874 (5th Cir. 1965) (dicta), cert. denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966). . In United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953), the Supreme Court reversed the lower court’s dismissal of" }, { "docid": "17485689", "title": "", "text": "for lack of specificity. See United States v. Palmiotti, 254 F.2d 491 (2d Cir. 1958); United States v. Fortunato, 402 F.2d 79, 81 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969). Here there is no evidence of prejudice; furthermore, it appears that prior to trial particulars regarding the wiretaps were provided by the government to appellants. Thus the requirements designed to protect against double jeopardy and to enable defendants to prepare for trial were fully met. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), relied upon by appellants, is clearly distinguishable. In that case the indictment tracked the statutory language of 2 U.S.C. § 192, making it a crime for an individual summoned to testify before a congressional hearing to refuse to answer “any question pertinent to [the] question under inquiry.” The Court made clear that it was not holding as a general rule that a conviction will be reversed where it is based on an indictment that has failed to list all of the technical requirements of an offense. “Convictions are no longer reversed because of minor and technical deficiencies [in the charging papers] which did not prejudice the accused. This has been a salutary development in the criminal law.” Id. at 763, 82 S.Ct. at 1046, citing Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959). But the Court concluded that the Russell indictment, by failing to specify the “question under [congressional] inquiry,” omitted a key matter “central to every prosecution under the statute.” Id. 369 U.S. at 764, 82 S.Ct. at 1047. Moreover the Court recalled the history of prosecutions under § 192 and repeatedly noted that where previous indictments had neglected to identify the topic under congressional inquiry, the criminal proceedings have been “infected” with “unfairness and uncertainty,” id. at 766, 82 S.Ct. 1038, and both defendant and courts have often “found it difficult or impossible to ascertain what the subject was,” id. 369 U.S. at 759, 82 S.Ct. at 1044; see also id. at 768-69, 82" }, { "docid": "2058574", "title": "", "text": "used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication. Thus, these six counts charged appellant with knowingly and intentionally using a telephone, on six different days, to facilitate the manufacture, distribution, dispensation or possession with intent to manufacture, distribute or dispense some controlled substances. These counts did not specify which of the over one hundred and forty-two controlled substances specified in 21 U.S.C. § 812 appellant may have discussed over the telephone on any given day, nor did they specify which type of acts, constituting a felony, were facilitated. Prior to trial, appellant filed a motion to dismiss these charges for failure to state a cause of action. The court denied the motion. The government did not provide a bill of particulars, which in any event would not have cured this deficient indictment. The Fifth Amendment’s guarantee of the right to indictment by a grand jury and its double jeopardy bar, and the Sixth Amendment’s guarantee that a defendant be informed of the charges against him establish two minimum requirements for an indictment. The indictment must adequately apprise a defendant of the charge against him so that he can prepare his defense. Furthermore, it must establish a record that shows when the defense of double jeopardy may be available to the defendant in the event future proceedings are brought against him. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-1047, 8 L.Ed.2d 240 (1962); United States v. Ray, 514 F.2d 418, 422 (7th Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 189, 46 L.Ed.2d 123 (1975). Generally, an indictment is sufficient when it sets forth the offense in the words of the statute itself, as long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). The six telephone counts of the indictment at issue here fail to meet these minimal constitutional standards. The" }, { "docid": "9449843", "title": "", "text": "appellants argue that the entire United States Attorney’s Office for the District of Vermont should have been disqualified for its failure to recognize or prosecute Chamandy’s alleged bribery of that office. Appellants contend that the government compromised itself and created an expectation that Chamandy would receive more than standard witness fees when it entered into an agreement with Chamandy providing for compensation to him “at a level to be determined by the BATF.” Appellants insisted in the district court that Chamandy be prosecuted for violating 18 U.S.C. § 201(i) (1976), which prohibits the exchange of testimony under oath for anything other than standard fees set by law plus incidental expenses. See 18 U.S.C. § 201(j) (1976). The agreement between the government and Chamandy did not require compensation to Chamandy in excess of that provided for by law. D. Defective Indictment Count 13 of the indictment alleged that Mayo and McGarghan unlawfully transferred a British Sten machine gun in violation of 26 U.S.C. § 5861(e) (1976). Count 11 alleged that Mayo unlawfully transferred a German Sehmeisser machine gun in violation of the same statute. Mayo and McGarghan contend that the district court erroneously denied their pre- and post-trial motions to dismiss count 13 on the ground that the allegations therein failed to adequately apprise them of the conduct alleged to be unlawful. In addition, Mayo now claims for the first time that the allegations in count 11 were similarly deficient. “An indictment need only provide sufficient detail to assure against double jeopardy and state the elements of the offense charged, thereby apprising the defendant of what he must be prepared to meet.” United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Under this standard, the allegations in counts 11 and 13 were sufficient to apprise appellants of the conduct alleged to have violated 26 U.S.C. § 5861(e) (1976). Russell v. United States, 369 U.S. 749, 759-60, 82 S.Ct. 1038, 1044, 8 L.Ed.2d 240 (1962). Under that statute, it is unlawful “to transfer a firearm in violation of the" }, { "docid": "9449844", "title": "", "text": "machine gun in violation of the same statute. Mayo and McGarghan contend that the district court erroneously denied their pre- and post-trial motions to dismiss count 13 on the ground that the allegations therein failed to adequately apprise them of the conduct alleged to be unlawful. In addition, Mayo now claims for the first time that the allegations in count 11 were similarly deficient. “An indictment need only provide sufficient detail to assure against double jeopardy and state the elements of the offense charged, thereby apprising the defendant of what he must be prepared to meet.” United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Under this standard, the allegations in counts 11 and 13 were sufficient to apprise appellants of the conduct alleged to have violated 26 U.S.C. § 5861(e) (1976). Russell v. United States, 369 U.S. 749, 759-60, 82 S.Ct. 1038, 1044, 8 L.Ed.2d 240 (1962). Under that statute, it is unlawful “to transfer a firearm in violation of the provisions of [Chapter 53 of Title 26, U.S.C.].” The indictment tracked the language of the statute and, moreover, specified the time and place of the allegedly illegal transfer. This information adequately identifies the illegal transaction and is sufficient to withstand constitutional scrutiny. United States v. Tramunti, 513 F.2d at 1113 (“an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime”). It might have been preferable to have identified the provisions of Chapter 53 that were violated by the allegedly unlawful transfer, see 26 U.S.C. § 5812 (1976), but it was certainly not necessary. E. Guilty Knowledge Finally, we reject McGarghan’s argument that the district court erroneously refused to give the requested jury charge that: [I]f you find that Defendant McGarghan transferred the so-called Sten gun, but believed that it was an unserviceable firearm as just defined for you, then the Government would have failed to establish the essential element of guilty knowledge, and your verdict as to" }, { "docid": "17485687", "title": "", "text": "(2d Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Sperling, 506 F.2d 1323, 1340-43 (2d Cir. 1974). Here the evidence established a closely-knit group in which the participants knew each other and had one common aim, the use of their official positions to take property from victims without due process. Statements made by members of this joint criminal venture were properly admitted by the trial judge. See United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir. 1968); United States v. Annunziato, 293 F.2d 373 (2d Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961). The Sufficiency of the Illegal Wiretapping Counts Appellants next argue that the counts of the indictment charging illegal wiretapping in violation of 18 U.S.C. § 2511(l)(a) (Counts 5 — 7) should have been dismissed for lack of specificity, Rule 7(c), F.R.Cr.P., because they failed to furnish sufficient information as to “the nature of the illegality.” The contention is that where a statute such as § 2511(l)(a) describes various different methods by which it may be violated, the indictment must state the specific means alleged to have been used in the particular case. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Here the challenged counts tracked the language of the statute, alleging that over a specified period of time and with respect to a telephone located at a specific address appellants “wilfully, knowingly and unlawfully did intercept and endeavor to intercept by means and use of an electronic device, that is a telephone wiretap, wire communications.” This charge was plainly sufficient “to assure against double jeopardy and state the elements of the offense,” United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975); United States v. Cohen, 518 F.2d 727, 732 (2d Cir. 1975). Recognizing that “particular facts needed in particular cases are obtainable by bills of particulars or discovery,” Wright, Federal Practice and Procedure (Criminal) § 126 at 252, we have repeatedly refused, in the absence of any showing of prejudice, to dismiss similarly-couched charges" }, { "docid": "22953926", "title": "", "text": "the Southern District of New York, Nick Stavrou-lakis, the defendant, and others known and unknown to the grand jury, unlawfully, wilfully and knowingly attempted to execute a scheme and artifice to defraud a federally chartered and insured financial institution, to wit, the defendant and others negotiated to sell and sold to an undercover agent of the F.B.I. approximately 500 stolen Republic National Bank checks from the account of ESM General Merchandise, Ltd. Count Three: From on or about November 3, 1989, up to and including November 9, 1989, in the Southern District of New York, Nick Stavroulakis, the defendant, unlawfully, wilfully and knowingly attempted to execute a scheme and artifice to defraud a federally chartered and insured financial institution, to wit, the defendant negotiated to sell and sold to an undercover agent of the F.B.I. three stolen Bank Leumi checks from the account of Nature’s Gift’s II Produce, Inc. An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962); United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). We have often stated that “an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” Tramunti, 513 F.2d at 1113; see United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); see also United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980). We note the Supreme Court’s caveat that when the definition of an offense includes “ ‘generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state" }, { "docid": "10576486", "title": "", "text": "Stringer committed the offense. It specified that he committed the fraud by “creating] counterfeit checks drawn on an kccount at JP Morgan Chase in Manhattan, which he deposited into fraudulently created accounts at SunTrust Bank in Florida.” App. 21. Notwithstanding its failure to specify the names of persons whose identifying documents were used, this charge, compared to many commonplace indictments, contained substantially more limiting detail. When the charges in an indictment have stated the elements of the offense and provided even minimal protection against double jeopardy, this court has “ ‘repeatedly refused, in the absence of any showing of prejudice, to dismiss ... charges for lack of specificity.’ ” United States v. Walsh, 194 F.3d 37, 45 (2d Gir.1999) (quoting United States v. McClean, 528 F.2d 1250, 1257 (2d Cir.1976)). Here, Stringer does not even attempt to argue that he suffered any prejudice. The government had provided him with the criminal complaint, which outlined his crimes in detail, as well as disclosures that included the victims’ names, well in advance of trial. Taking these disclosures into account, it is beyond question that Stringer was sufficiently informed to defend against the charges and to be protected against the risk of double jeopardy (for which the trial record provides further protection). See Walsh, 194 F.3d at 45 (discovery cannot save a defective indictment but, “where the indictment has been found even minimally sufficient, a court may look to the record as a whole in determining whether” the constitutional requirements have been met); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992) (“When an indictment delineates the elements of a charged offense, however concisely, the underlying concerns of proper pleading— notice of the charge to be met and protection against double jeopardy — may be further promoted by a bill of particulars or pre-trial discovery.”). We conclude that Count Two was not constitutionally deficient. In support of his argument, Stringer cites Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), a 50 year-old precedent, which is one of the very rare cases in which an indictment that" }, { "docid": "2411106", "title": "", "text": "(2d Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). Moreover, “ ‘an indictment need do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.’” Id. (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.1975)). The Court of Appeals for the Second Circuit has also noted that “ ‘[a]n indictment must be read to include facts which are necessarily implied by the specific allegations made.’ ” Id. (quoting United States v. Silverman, 430 F.2d 106, 111 (2d Cir.1970)). Count Three tracks the language of 18 U.S.C. § 373 which makes it unlawful to: with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicit[ ], command!], induce[], or otherwise endeavor! ] to persuade such other person to engage in such conduct.... 18 U.S.C. § 373(a). Count Three satisfies the well-established pleading requirements in this Circuit. It lists the specific crimes of violence allegedly solicited, namely violations of 18 U.S.C. § 956 (conspiring to kill a person in a foreign country), 18 U.S.C. § 2332 (killing a national of the United States while the national is outside the United States), and 18 U.S.C. § 2332b (committing acts of terrorism transcending national boundaries). It is pleaded in the language of the statute and provides sufficient particulars to give notice to the defendants of the charges against them and to permit the defendants to plead double jeopardy if necessary. Sattar argues that the Indictment fails to allege conduct sufficient to establish a basis for the charge in Count Three. In particular he argues that the Indictment fails to specify the circumstances strongly corroborative of the required intent. However, the overt acts in Count One that the Government intends to incorporate are sufficient. The Indictment charges that Sattar, among" }, { "docid": "23048340", "title": "", "text": "(the purpose of a bill of particulars is to inform the defendant of the charge against him in sufficient detail that he may prepare a defense and to minimize surprise at trial); See also United States v. Evans, 572 F.2d 455, 483 (5th Cir.1978); United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953). Therefore, the defendant in the case at bar was sufficiently apprised of what he must be prepared to meet and was not hampered in his defense preparation. The third standard by which the sufficiency of the indictment is determined is whether its charge is specific enough to protect the defendant against a subsequent prosecution for the same offense. United States v. Giles, 756 F.2d at 1087; United States v. Stanley, 765 F.2d at 1239; United States v. Chavis, 772 F.2d 100, 110 (5th Cir.1985). The factual details already enumerated and described with specificity serve to protect fully the defendant from being tried again for the same offense. Gordon can rely upon other parts of the present record in the event that future proceedings should be taken against him. Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). Moreover, the indictment enables Gordon to raise a double jeopardy defense in any subsequent prosecution for the same offense. See United States v. Giles, 756 F.2d at 1087. Thus, the defendant is fully protected from again being put in jeopardy for the same offense. In light of applicable case law, the indictment in the case at bar sub judice is more than adequate to conform to minimal constitutional standards, because it contains the essential elements of the offenses, it apprises the defendant of what he must be prepared to meet, and it protects him from subsequent prosecution for the same offense. Therefore, the district court’s denial of defendant’s motion to dismiss was proper. OTHER ALLEGATIONS A. Admissibility of Extrinsic Evidence Under Indictment Gordon asserts that extrinsic evidence was improperly admitted in that the indictment was couched in terms of a conclusion rather than charging acts and" }, { "docid": "22054976", "title": "", "text": "particulars the proof it would present to link him to the conspiracy, thereby denying his sixth amendment rights. Specifically he complains that he was not informed that the Government would offer evidence at trial relating (1) to the alleged assistance he provided to Barnaba with respect to problems with the latter’s customer, Burke; (2) to the comments by Dilacio to Barnaba identifying Mamone as Joseph DiNapoli’s business partner; and (3) to Mamone’s willingness to vouch for Forbrick in connection with narcotics purchases made through Inglese. He argues that he had no opportunity to investigate the reliability of the Government’s case. While neither the indictment nor the bill of particulars in the present case developed in great detail the nature of Mamone’s participation in the conspiracy, that is not required. An indictment need only provide sufficient detail to assure against double jeopardy and state the elements of the offense charged, thereby apprising the defendant of what he must be prepared to meet. United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974). Under this test, an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime, United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969); United States v. Palmiotti, 254 F.2d 491, 495 (2d Cir. 1958), although in the case of a conspiracy it has been held that at least one overt act must be set forth. Cf. United States v. Grunewald, 353 U.S. 391, 396-97, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); United States v. Luros, 243 F.Supp. 160, 168 (D.Iowa 1965). Here the indictment followed the language of the conspiracy statute, stated in broad terms the time and place of the crime, and specified some 17 overt acts in furtherance of the crime. The Government was not required to provide in the indictment a detailed statement of all the parties with whom Mamone was alleged" }, { "docid": "11818448", "title": "", "text": "find that the conspiracy count of the indictment sufficiently informed the defendants of the nature of the charge against them and that it stated in plain, concise, and definite terms the essential facts constituting an offense under 18 U.S.C. § 371, as required by Rule 7, F.R. Crim.P. It is perfectly clear that the indictment alleges a conspiracy to defraud the United States, the making of false claims for money against the United States, and the concealment of material facts within the jurisdiction of a federal agency. Certainly a conspiracy may have more than one objective and these are clear from a fair reading of the indictment. The allegations in the second object of the conspiracy track the language of the substantive false claims statute, 18 U.S.C. § 287, and are therefore permissible providing the indictment sets forth fully, directly, and expressly all essential elements of the crime. United States v. Lester, 541 F.2d 499 (5th Cir. 1976); Downing v. United States, 348 F.2d 594, 599 (5th Cir. 1965), cert. denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155; Wright, 1 Fed. Prac. and Proc. 236 (1969). This is especially true where, as here, the charge is made specific as to time and place. See United States v. McPhatter, 473 F.2d 1356, 1358 (5th Cir. 1973). We do not find the phrases “actual operating costs” or “no legitimate authorized expenditure” under the contract vague or ambiguous. The indictment contained the elements of the charged offense, apprised the defendants of what they must meet, and specified the extent of the charges in the present indictment to avoid double jeopardy. See Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Thus, the indictment was sufficient and the district court did not err when refusing to dismiss it. In response to appellants’ contention that willfulness is an essential element to a false claim violation under 18 U.S.C. § 287, making the substantive offenses charged in Count II and III fatally defective due to the lack of a willfulness allegation, we simply hold that the concurrent sentence" }, { "docid": "17407671", "title": "", "text": "has violated its commands. The statute lays out with sufficient definiteness what is prohibited, and the specific intent that is required, so that enforcement of the statute is not left to the arbitrary and discriminatory choices of law enforcement officials. Stewart’s motion to dismiss Counts Four and Five as unconstitutionally vague is therefore denied. C Stewart also contends that § 2339A is vague as applied because Count Two, which charges a conspiracy to violate 18 U.S.C. § 956, does not satisfy the pleading requirements of Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Stewart contends that Count Two is defective because it alleges that Sattar, Sheikh Abdel Rahman, Taha, and others known and unknown “conspired ... to murder and kidnap persons in a foreign country,” without identifying the “persons” or “foreign country” with any specificity. (SI Ind. ¶ 32.) Stewart argues that Counts Four and Five should therefore be dismissed because they depend on providing Sheikh Abdel Rahman as a co-conspirator in the conspiracy charged in Count Two. Federal Rule of Criminal Procedure 7(c)(1) provides that an Indictment “shall be a plain, concise and definite statement of the essential facts constituting the offense charged.” “An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of facts.” United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992) (citing Russell, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). Moreover, “ ‘an indictment need do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.’ ” Id. (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.1975)). The Court of Appeals for the Second Circuit has also noted that “ ‘[a]n indictment must be read to include facts which are necessarily implied by the specific allegations made.’ ” Id. (quoting United States v. Silverman, 430 F.2d 106, 111 (2d" }, { "docid": "23519246", "title": "", "text": "Court stated, first, that to ensure the defendant’s Sixth Amendment right to know what he is charged with, the indictment must contain the elements of the offense intended to be charged and “sufficiently apprise[] the defendant of what he must be prepared to meet.” Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). Second, to guarantee a defendant’s Fifth Amendment protection against double jeopardy “the record [must] show[ ] with accuracy to what extent he may plead a former acquittal or conviction.” 369 U.S. at 764, 82 S.Ct. at 1047. Double jeopardy protection is not at issue here because, as mentioned above, when the bill of particulars was included and evidence was taken, the record sufficiently identified the specific transactions for which he was convicted to protect him against any subsequent prosecution. Russell, 369 U.S. at 764, 82 S.Ct. at 1047; see Wright, 1 Federal Practice and Procedure § 125 n.6 (citing Russell). And Loayza also knew from the indictment he was being charged with mail fraud, but the indictment is far too vague in describing the acts with whieh Loayza was charged to pass either procedural or constitutional muster. Central to the deficiency of the instant indictment, is the Fifth Amendment’s requirement that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of Grand Jury....” This provides another standard for the sufficiency of an indictment. See 8 Moore, Federal Practice ¶ 7.02 (1996). The Court in Russell explained that “The very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Russell, 369 U.S. at 771, 82 S.Ct. at 1051 (quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960)). This fundamental protection “is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of" }, { "docid": "2411105", "title": "", "text": "fails to allege the essential element of a crime of violence in violation of 18 U.S.C. § 373 with sufficient factual detail. The Government argues that Count Three satisfies the pleading requirements of Federal Rule of Criminal Procedure 7(c)(1) and that the details alleged in the overt acts charged in Count One provide sufficient details of the crime charged in Count Three. Should the Grand Jury return a superseding indictment incorporating the allegations in Paragraph 21 of the Indictment into Paragraph 24, as the Government represents it will seek, the motion is denied for the reasons explained below. Federal Rule of Criminal Procedure 7(c)(1) provides that an Indictment “shall be a plain, concise and definite statement of the essential facts constituting the offense charged.” “An indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of facts.” United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). Moreover, “ ‘an indictment need do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.’” Id. (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.1975)). The Court of Appeals for the Second Circuit has also noted that “ ‘[a]n indictment must be read to include facts which are necessarily implied by the specific allegations made.’ ” Id. (quoting United States v. Silverman, 430 F.2d 106, 111 (2d Cir.1970)). Count Three tracks the language of 18 U.S.C. § 373 which makes it unlawful to: with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicit[ ], command!], induce[], or otherwise endeavor!" }, { "docid": "12892267", "title": "", "text": "privacy in his conversation with Dozier. For that reason, the warrantless interception and recording of that conversation did not contravene the fourth amendment. III. The appellant, Hugo Sanes-Saavedra, first attacks the sufficiency of the indictment, contending that Count II, the count under which he was convicted, was too vague to satisfy his sixth amendment guarantee to be informed of the government’s accusation against him. See Russell v. United States, 369 U.S. 749, 761, 82 S.Ct. 1038, 1045, 8 L.Ed.2d 240, 249 (1962). To pass constitutional muster, an indictment must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974). Those requirements are satisfied by an indictment that tracks the wording of the statute, as long as the language sets forth the essential elements of the crime. 418 U.S. at 117, 94 S.Ct. at 2907, 41 L.Ed.2d at 620-21; see also United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978). In addition, “an indictment for conspiracy to commit a criminal offense need not be as specific as a substantive count.” United States v. Ramos, 666 F.2d 469, 475 (11th Cir.1982). Against this background, the indictment here meets the test of specificity. Count II recites the essential elements of the offense charged against Sanes-Saavedra — knowingly conspiring to import a schedule I controlled substance into the United States, in violation of 21 U.S.C. §§ 952(a) and 963. It identified his alleged co-conspirators as well as the particular controlled substance. See Ramos, 666 F.2d at 474. The indictment also correctly set forth the time span of the conspiracy: from June 1, 1981 until the date of the indictment (November 24, 1981). See Marable, 578 F.2d at 154; c.f. United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir.1979) (“open-ended” time frame considered insufficient). It further described the locale of the alleged conspiracy, at least partially, with the allegation that the criminal activity took place “in the Northern" }, { "docid": "10576487", "title": "", "text": "into account, it is beyond question that Stringer was sufficiently informed to defend against the charges and to be protected against the risk of double jeopardy (for which the trial record provides further protection). See Walsh, 194 F.3d at 45 (discovery cannot save a defective indictment but, “where the indictment has been found even minimally sufficient, a court may look to the record as a whole in determining whether” the constitutional requirements have been met); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992) (“When an indictment delineates the elements of a charged offense, however concisely, the underlying concerns of proper pleading— notice of the charge to be met and protection against double jeopardy — may be further promoted by a bill of particulars or pre-trial discovery.”). We conclude that Count Two was not constitutionally deficient. In support of his argument, Stringer cites Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), a 50 year-old precedent, which is one of the very rare cases in which an indictment that tracked the statutory language and furnished the pertinent dates was held insufficient. In Russell, the defendants were charged under a federal statute that made it a crime for a witness before a congressional committee to refuse to answer questions pertinent to the committee’s inquiry, 2 U.S.C. § 192. Id. at 752, 82 S.Ct. 1038. The case arose out of the controversial McCarthy-era hearings of the Committee on Un-American Activities of the House of Representatives and the Internal Security Subcommittee of the Senate Judiciary Committee. Id. at 752, n. 3, 82 S.Ct. 1038. The Supreme Court ruled that the indictments were insufficient because they failed to specify the subject matter of the congressional inquiry. The Court stressed that: [wjhere ... the indictment has not identified the topic under inquiry, the Court has often found it difficult or impossible to ascertain what the subject was. The difficulty of such a determination in the absence of an allegation in the indictment is illustrated by [a recent case in which] the members of this Court were in sharp disagreement" }, { "docid": "22953927", "title": "", "text": "that he may plead double jeopardy in a future prosecution based on the same set of events. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962); United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). We have often stated that “an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” Tramunti, 513 F.2d at 1113; see United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); see also United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980). We note the Supreme Court’s caveat that when the definition of an offense includes “ ‘generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars.’ ” Russell, 369 U.S. at 765, 82 S.Ct. at 1047 (quoting United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1876)); see also Rosenblatt, 554 F.2d at 41. The Federal Rules of Criminal Procedure encourage succinct criminal pleadings. See Fed.R.Crim.P. 7(c)(1); 1 Wright, Federal Practice and Procedure: Criminal 2d § 123 at 346-47 (1982). Certainly, precision and proper notice to the defendant cannot be sacrificed for the sake of brevity, but we have noted that common sense must control, and that “[a]n indictment must be read to include facts which are necessarily implied by the specific allegations made.” United States v. Silverman, 430 F.2d 106, 111 (2d Cir.), modified, 439 F.2d 1198 (2d Cir.1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971); see United States v. Barbato, 471 F.2d 918, 921 (1st Cir.1973). When an indictment delineates the elements of a charged offense, however concisely, the underlying concerns of proper pleading — notice of the charge to be met and protection" }, { "docid": "17485688", "title": "", "text": "different methods by which it may be violated, the indictment must state the specific means alleged to have been used in the particular case. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Here the challenged counts tracked the language of the statute, alleging that over a specified period of time and with respect to a telephone located at a specific address appellants “wilfully, knowingly and unlawfully did intercept and endeavor to intercept by means and use of an electronic device, that is a telephone wiretap, wire communications.” This charge was plainly sufficient “to assure against double jeopardy and state the elements of the offense,” United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975); United States v. Cohen, 518 F.2d 727, 732 (2d Cir. 1975). Recognizing that “particular facts needed in particular cases are obtainable by bills of particulars or discovery,” Wright, Federal Practice and Procedure (Criminal) § 126 at 252, we have repeatedly refused, in the absence of any showing of prejudice, to dismiss similarly-couched charges for lack of specificity. See United States v. Palmiotti, 254 F.2d 491 (2d Cir. 1958); United States v. Fortunato, 402 F.2d 79, 81 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969). Here there is no evidence of prejudice; furthermore, it appears that prior to trial particulars regarding the wiretaps were provided by the government to appellants. Thus the requirements designed to protect against double jeopardy and to enable defendants to prepare for trial were fully met. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), relied upon by appellants, is clearly distinguishable. In that case the indictment tracked the statutory language of 2 U.S.C. § 192, making it a crime for an individual summoned to testify before a congressional hearing to refuse to answer “any question pertinent to [the] question under inquiry.” The Court made clear that it was not holding as a general rule that a conviction will be reversed where it is based on an indictment that has failed to list" } ]

[ { "docid": "22918738", "title": "", "text": "congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them.” Congress clearly has the power under the Commerce Clause to regulate the use of Landholders’ submerged riparian property for conservation purposes and has not given up this power in the Submerged Lands Act. IV Prohibiting Obstructions to Navigation The action of the Chief of Engineers and the Secretary of the Army under attack rests immediately on the Rivers and Harbors Act, 33 U.S.C.A. § 403, which declares that “the creation of any obstruction * * * to the navigable capacity of any of the waters of the United States is prohibited.” The Act covers both building of structures and the excavating and filling in navigable waters. It is structured as a flat prohibition unless — the unless being the issuance of approval by the Secretary after recommendation of the Chief of Engineers. The Act itself does not put any restrictions on denial of a permit or the reasons why the Secretary may refuse to grant a permit to one seeking to build structures on or dredge and fill his own property. Although the Act has always been read as tempering the outright prohibition by the rule of reason against arbitrary action, the Act does flatly forbid the obstruction. The administrator may grant permission on conditions and conversely deny permission when the situation does not allow for those conditions. But the statute does not prescribe either generally or specifically what those conditions may be. The question for us is whether under the Act the Secretary may include conservation considerations as conditions to be met to make the proposed project acceptable. Until now there has been no absolute answer to this question. In fact, in most cases under the Rivers and Harbors Act the Courts have been faced only with navigation problems.” See, e. g., Sanitary Dist. v. United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352; Wisconsin v. Illinois, 1929, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426; United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80" } ]

[ { "docid": "123095", "title": "", "text": "permanent injunction of further operations below the mean high water mark and for relief in the form of a mandatory injunction forcing Moretti to undo the fruits of his labors, all as authorized by § 406. After a short hearing the trial court issued a preliminary injunction and proceeded to hear the case on the merits three weeks later. The court found, as is evident from the record, that Moretti had done substantial dredging and filling without a Corps of Engineers per mit. The Court found the waters navigable, and determined that some of the work was done in the navigable water. The District Court ordered that the government should have all the relief it sought — -namely to have Moretti undo what he had done. Moretti challenged in the District Court and challenges on appeal the proof of a number of necessary elements of the government’s case under 33 U.S.C.A. § 403 and § 406. They are (i) whether the water in question is “navigable water of the United States,” (ii) whether the Mean High Water Mark was adequately proven, (iii) whether any obstruction to navigation had been created, and (iv) whether § 406 of the Act authorized the District Court to order the removal of a land fill as a “structure.” Navigability Florida Bay is located at the southern tip of the Florida peninsula and merges with the Gulf of Mexico on its western boundary. On the east, Florida Bay is adjacent to Biscayne Bay which leads to the Port of Miami. The length of Florida Bay is traversed by the Intra-coastal Waterway which runs from the Gulf and enters Biscayne Bay through Florida Bay. Although the record did not reveal the precise distance of appellant’s property from the Intracoastal Waterway, it is clear that it is in close proximity to this Waterway. The Coast and Geodetic Survey Chart shows that at its nearest point, the Intracoastal Waterway is less than one-half mile from Hammer Point. Navigability, even at a time when its requirements were more stringent, was simply a question of whether the waterway “in its natural" }, { "docid": "123097", "title": "", "text": "and ordinary condition affords a channel for useful commerce.” The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871). Accessible as it is to both the Gulf of Mexico and -Biscayne Bay, and traversed lengthwise by the Intracoastal Waterway, Florida Bay is a natural passage for commerce and easily meets even -the historical-literal test of navigability. Of course, as with most bodies of water, there comes a point where the depth of water is minimal as the bottom slopes up to the bank. But one would hardly contend that the Mississippi is any less navigable simply because a pirogue would go aground at the water’s edge. Questioned directly as to the navigability of Florida Bay the Resident Engineer for the Corps testified unequivocally that Florida Bay is a navigable water. Indeed, if Florida Bay were unnavigable Moretti’s development of his property including finger slips and canals so that his mobile home park would be a “live-in marina” would be incomprehensible and obviously wasteful and a deception to purchasers who expected waterborne access to the sea, not the restricted movement in a short landlocked pond. Obstruction To Navigation Moretti’s argument that there was no showing of an obstruction to navigation, and hence that one element prerequisite to relief was missing from the government’s case, is unavailing. In light of Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 207 and United States v. Perma Paving Co., 2 Cir., 1964, 332 F.2d 754, any argument that the filling of navigable waters does not reduce navigable capacity of the filled waterway and thereby constitute an obstruction within the meaning of § 403 borders on the frivolous. Structures Moretti next contends that § 406 grants to the. District Court only the authority to cause the removal of “structures” from navigable water and that a land fill is not a structure. The meaning of “structures” in this provision has often enough been the subject of litigation that we have no doubt that it encompasses the land fills here in question. As the Supreme Court said in United States v. Republic Steel Corp., 1960, 362 U.S." }, { "docid": "123081", "title": "", "text": "Moretti, unlike his counterpart in Zabel, decided to forego the prerequisite imprimatur of the Corps of Engineers before making his proposed project a reality. Having purchased his land in 1969, Moretti had completed substantial work on his project when paid a fateful visit by two employees of the Environmental Protection Agency in December of 1970. Lee Purkerson and John Hagen, the EPA employees, were not on official business at the time that they noticed the extensive work on the Moretti project. They took some pictures of the drag-line as it was removing soil from the underwater portion of the Bay bottom and adding it to the shoreline thereby moving the shoreline and Moretti’s property bayward. They could also see where channels had been cut or deepened between the fingers. Moretti asked them what they were doing there, a question which they turned back at him. They asked him if he had a Corps of Engineering permit and he said he did not. These facts were reported to the Jacksonville office of the Corps of Engineers. On December 30, 1970, the Corps ordered Moretti to cease from further work below the mean high water mark because this was a violation of Federal law unless properly authorized by the Secretary of the Army. After one or two exchanges with the Corps Moretti stopped working, a cessation which was to last for at least a few months. As authorized under Corps regulations the Moretti Company applied for an after-the-fact permit to dredge part of and fill part of Florida Bay. That is, he sought a permit which would legitimize the work done and to be done. Structure of the Act and Regulations In addition to construction and maintenance of flood-control and other improvements on the navigable waters of the United States, the Secretary of the Army acting through the Corps of Engineers has been charged by Congress with administering the Rivers and Harbors Act of 1899 as well as the other principal laws enacted for the protection of navigation and the integrity of the navigable waters of the United States. The Corps of" }, { "docid": "123079", "title": "", "text": "JOHN R. BROWN, Chief Judge: Proving again that legislative intent frequently comes to exceed even the wildest imagination of those responsible for enactment, it is ironic that as a product of a laissez-faire society, a 19th Century act is now once again the effective tool in this decade’s awakening awareness of the importance of man’s environment. The Rivers and Harbors Act of 1899 — itself the product of congressional dissatisfaction with the consequences of the Supreme Court’s Willamette Iron Bridge Co. v. Hatch, 1888, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629, holding that there was no federal common law prohibiting an obstruction to a navigable stream — was at once the source of jurisdiction and the substantive basis for the action of the District Court. Applying § 10 of the Act which forbids the creation of obstructions in, or alteration of the features of the navigable waters of the United States without permission of the Secretary of the Army the Court ordered Joseph G. Moretti, Jr. to undo dredge and fill operations involving 400,000 cubic yards of earth, because of his failure to obtain the required permit, 331 F.Supp. 151. Despite the fact that Moretti violated the Act flagrantly and our settled conviction that mandatory affirmative relief requiring a burdensome performance is statutorily and equitably appropriate on these facts, we modify and remand for completion of administrative action which conceivably could have the effect of validating the work done, thus rendering the issues litigated moot. Moretti owns lands at Hammer Point on Key Largo, one of the Florida Keys curving fingerlike for 120 miles into the Gulf of Mexico off the southern tip of Florida. His property was located about 1 Ys miles from Tavernier on the Florida Bay side of the Key. Tavernier lies to the south of Hammer Point. Hammer Point is in turn about 4% miles southwest of Rock Harbor. Like the developers in our far-reaching opinion of Zabel v. Tabb, he pro posed to dredge and fill the land into a network of land fingers and canals for use as a mobile home park." }, { "docid": "123098", "title": "", "text": "not the restricted movement in a short landlocked pond. Obstruction To Navigation Moretti’s argument that there was no showing of an obstruction to navigation, and hence that one element prerequisite to relief was missing from the government’s case, is unavailing. In light of Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 207 and United States v. Perma Paving Co., 2 Cir., 1964, 332 F.2d 754, any argument that the filling of navigable waters does not reduce navigable capacity of the filled waterway and thereby constitute an obstruction within the meaning of § 403 borders on the frivolous. Structures Moretti next contends that § 406 grants to the. District Court only the authority to cause the removal of “structures” from navigable water and that a land fill is not a structure. The meaning of “structures” in this provision has often enough been the subject of litigation that we have no doubt that it encompasses the land fills here in question. As the Supreme Court said in United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, its decision in Sanitary District v. United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352, is enough. In Republic Steel the Supreme Court held that accidental sedimentation which caused the filling of a navigable water constituted a structure within the meaning of § 406. This double-bottomed answer is enough for us. Mean High Tide Line A good deal is urged about Mean High Tide Line (MHTL). Just what bearing it has at this, not the enforcement, stage is not easy to say. Everyone apparently concedes that the mean high tide line is not a precise measurement. And all concede for this case that relief sought depends on the government proving that Moretti dredged or filled bayward of MHTL. For the Corps has no power landward of it to regulate his conduct or force reconstruction of the topography as it existed before he began work. The District Court agreed that that which was landward of MHTL would not, could not, and should not be affected by" }, { "docid": "6703954", "title": "", "text": "the Army. In short, the first clause is aimed at protecting “navigable capacity,” though it is adversely affected in ways other than those specified in the other clauses. Clearly the structures and activities set forth in the second and third clauses need not be shown to obstruct navigable capacity before .federal authorization is required by the terms of the statute. Finally, recent Fifth Circuit authority has established beyond cavil that an alteration or modification of navigable waters is sufficient to trigger the permit requirement of Section 10 of the Rivers and Harbors Act. In United States v. Joseph G. Moretti, Inc., (Moretti I) 478 F.2d 418, 429 n.37 (5th Cir. 1973), the Fifth Circuit held that “any filling of navigable waters creates an obstruction to navigation.” When the same party came before the Fifth Circuit again, the court held that to trigger the permit requirements of the third party clause of Section 10, a party need only prove: factual circumstances showing some effect upon navigable waters, some alteration or modification of either course, location, condition or capacity of those waters. These statutory terms are broad and undefined. So long as activities fall within this generous scope, those activities are subject to the jurisdiction of the Corps. United States v. Joseph G. Moretti, Inc., (Moretti II), 526 F.2d 1306, 1309 (5th Cir. 1976); accord, Weiszmann v. District Engineer, United States Army Corps of Engineers, 526 F.2d 1302, 1305 (5th Cir. 1976); United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1296-99 (5th Cir. 1976). Sierra Club v. Andrus, 610 F.2d 581, 596-7 (9th Cir. 1979), U.S. appeal pending No. 79-1625. We are persuaded of the correctness of the Ninth Circuit’s analysis, and in light of such analysis, we are compelled to reverse the district court’s conclusion that the collapsed dock did not obstruct the navigation of the river. We hold that the collapsed dock, extending 35 feet into the river, constituted an obstruction to the navigable capacity of the navigable water, and therefore constituted an obstruction in violation of Section 10 of the Rivers and Harbors Act. See also United" }, { "docid": "20542137", "title": "", "text": "of the benefit of that rule. The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U.S. 138, 87 S.Ct. 350, 17 L.Ed.2d 249 (1966).” The relief to which the government is entitled is the “remedy that ensures the full effectiveness of the Act”, Wyandotte, 389 U.S. at p. 204, 88 S.Ct. at p. 387. That relief includes injunction for removal of obstructions and restoration of the area surrounding a navigable water to its original condition. United States v. Baker, supra, and United States v. Joseph G. Moretti, Inc., 331 F.Supp. 151 (D.C.S.D.Fla.1971). In construing Section 406, the Honorable William O. Merhtens held: “Although Section 406 authorizes the removal of ‘structures’ created in violation of Section 403, the language in Section 403 of Title 33, United States Code, specifically the use of the word ‘obstruction’ is broad enough to justify the removal of any obstruction or any diminution of the navigable capacity of a watenuay. Consequently, a district court has authority under the Rivers and Harbors Act of 1899 to order the navigable capacity of a waterway restored. United States v. Joseph G. Moretti, Inc., supra, p. 158.” The power of the district court to grant injunctive relief is far greater in situations where the public interest is involved. Virginian Railway Company v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); United States v. First National Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1964). The public interest in protection of the navigability and the ecological aspects of the waters of the United States is clearly spelled out in" }, { "docid": "6703953", "title": "", "text": "the Calumet River, which reduced its depth by four to nine feet in some places, constituted an obstruction to navigable capacity and thus a violation of Section 10. The Court carefully distinguished between the three clauses of the section: The reach of § 10 seems plain. Certain types of structures enumerated in the second clause, may not be erected “in” any navigable river without approval by the Secretary of the Army. Nor may excavations or fills,, described in the third clause, that alter or modify “the course, location, condition, or capacity of” a navigable river be made unless “the work” has been approved by the Secretary of the Army. There is, apart from these particularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits “the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity” of such rivers. We can only conclude that Congress planned to ban any type of “obstruction,” not merely those specifically made subject to approval by the Secretary of the Army. In short, the first clause is aimed at protecting “navigable capacity,” though it is adversely affected in ways other than those specified in the other clauses. Clearly the structures and activities set forth in the second and third clauses need not be shown to obstruct navigable capacity before .federal authorization is required by the terms of the statute. Finally, recent Fifth Circuit authority has established beyond cavil that an alteration or modification of navigable waters is sufficient to trigger the permit requirement of Section 10 of the Rivers and Harbors Act. In United States v. Joseph G. Moretti, Inc., (Moretti I) 478 F.2d 418, 429 n.37 (5th Cir. 1973), the Fifth Circuit held that “any filling of navigable waters creates an obstruction to navigation.” When the same party came before the Fifth Circuit again, the court held that to trigger the permit requirements of the third party clause of Section 10, a party need only prove: factual circumstances showing some effect upon navigable waters, some alteration or modification of either course, location, condition" }, { "docid": "6342253", "title": "", "text": "any domestic purposes, diminish the volume of waters which flowing into the Hudson, make it a navigable stream, to such an extent as to destroy its navigability, undoubtedly the jurisdiction of the national government would arise and its power to restrain such appropriation [would] be unquestioned.” Id. at 709, 19 S.Ct. at 777. (emphasis added.) The Congressional grant under the Rivers and Harbors Act-, of regulatory power to the Corps over navigable waters is the beneficiary of the same broadly reaching analysis. The local origin of the activity or the source of its operation is thus not wholly determinative; of at least equal significance is the “effect.” Zabel v. Tabb, 5 Cir. 1970, 430 F.2d 199, 203, cert. denied, 1971, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808; United States v. Underwood, M.D.Fla.1972, 344 F.Supp. 486, 492. See Kramon, Section 10 of the Rivers and Harbors Act: The Emergence of a New Protection for Tidal Marshes, 33 Md.L.Rev. 229, 242, n. 72; Power, Federal Environmental Law, supra, at 794-796. There has been no case resolving the question of the Corps’ jurisdiction shoreward of the MHTL. In this Circuit, Tatum v. Blackstock, 5 Cir. 1963, 319 F.2d 397, and United States v. Joseph G. Moretti, Inc., 5 Cir. 1973, 478 F.2d 418 (Moretti I) are cited to us but neither is dispositive. In Tatum, we held that a Corps permit was necessary before submerged land may lawfully be filled or excavated “if the area is navigable, or if the proposed work would affect nearby navigable waters.” Tatum v. Blackstock, supra, at 399. However, the challenged activities occurred below MHTL there. In Moretti I, although we stated that the Corps had no power landward of MHTL to regulate Moretti’s conduct or force reconstruction of the topography, the challenged activities had occurred below MHTL. In neither Tatum nor Moretti I was the Corps’ jurisdiction shoreward of MHTL in issue. The Second Circuit has held that a Section 403 obstruction may be caused directly in navigable waters or indirectly by activity upland which creates the obstruction. United States v. Perma Paving Co., 2" }, { "docid": "18310737", "title": "", "text": "cases remanded for trial of the factual issues of negligence and causation. Cargill represents an abrupt departure from the theretofore uniform interpretation of the Wreck Act. It had been consistently held that § 403 had no applieation to the obstruction of navigable waters by a wrecked vessel, at least, if the sinking was unintentional. Some of the cases are not flat decisions that under no condition may § 403 be applied to the wreck of a vessel. They recognize the Hall exception, which we have considered earlier, where the owner intentionally scuttled his burning vessel to save the rigging from the fire. They limit the exception to that kind of deliberate scuttling, however, and permit the abandonment of the vessel despite the existence of a claim that the sinking was the result of negligence attributable to the owner. The decision in Cargill is presaged only by Judge Browning’s dissent in The Texmar. There are two other cases on the periphery of the problem which the United States contends points to the Cargill conclusion. United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, sanctioned an injunction against a deliberate and continuing deposit of industrial wastes in navigable waters with a resulting silting of the channel. This was plainly a violation of the § 403 prohibition against filling or altering a navigable channel. There was no question of § 403’s applicability. The difficulty arose from the fact that § 406, which authorized an injunction to enforce § 403, is limited to the removal of unauthorized structures. The Supreme Court found in § 403 an implied authorization of an injunction to prohibit a deliberate and continuing violation of that section. Its holding intimates no extension of § 403 to shipwrecks beyond the Hall exception of a deliberate scuttling. In United States v. Perma Paving Co., 2 Cir., 332 F.2d 754, the government sought reimbursement for its expense in dredging a channel into which Perma Paving had forced silt by overloading its property. This was held to have been a violation of § 403 in its prohibition against" }, { "docid": "5891947", "title": "", "text": "KUNZIG, Judge, delivered the opinion of the court: In this case, plaintiff contends that it has suffered an uncompensated taking as the consequence of federal regulation affecting its development of a planned subdivision along the Gulf coast of Florida. The statutes in question — § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344 — and implementing regulations thereunder, prohibit, inter alia, dredging and filling in navigable waters without the authorization of the Department of the Army. The latter, stressing environmental factors, has thus far steadfastly refused to grant plaintiff the permits it needs to finish its project. We hold that while plaintiff may indeed have sustained an economic loss, the loss is not such as to constitute a Fifth Amendment taking under the circumstances herein. I. BACKGROUND A. Applicable Statutes and Regulations: A Pattern of Stiffening Requirements. 1. Section 10 of the Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1121, 1151, 33 U.S.C. § 403 (1976) (Rivers and Harbors Act), provides in part: That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited . . . . The section goes on to outlaw various structures in any navigable water of the United States except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that it shall not be lawful to excavate or fill, or in any manner to alter or modify the . . . capacity of. . . the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War [now the Army] prior to beginning the same. See United States v. Republic Steel Corp., 362 U.S. 482, 484-485 (1960). The Secretary of the Army has delegated to the Corps of Engineers the authority to issue or deny" }, { "docid": "123082", "title": "", "text": "On December 30, 1970, the Corps ordered Moretti to cease from further work below the mean high water mark because this was a violation of Federal law unless properly authorized by the Secretary of the Army. After one or two exchanges with the Corps Moretti stopped working, a cessation which was to last for at least a few months. As authorized under Corps regulations the Moretti Company applied for an after-the-fact permit to dredge part of and fill part of Florida Bay. That is, he sought a permit which would legitimize the work done and to be done. Structure of the Act and Regulations In addition to construction and maintenance of flood-control and other improvements on the navigable waters of the United States, the Secretary of the Army acting through the Corps of Engineers has been charged by Congress with administering the Rivers and Harbors Act of 1899 as well as the other principal laws enacted for the protection of navigation and the integrity of the navigable waters of the United States. The Corps of Engineers — the eyes and ears, and sometimes hand of the Secretary — is headed by the Chief of Engineers who is charged by law with advising the Secretary of the Army of the propriety of issuing permits. The Corps itself is divided into 11 “divisions” which are in turn subdivided into 37 “districts.” As will be seen later, authority to grant permits is in some cases delegated down to the level of the District Engineers. The duties of the Secretary of the Army and the Corps of Engineers under the Act together with the administrative procedures which include the delegation of authority through the Corps are set out at 33 C.F.R. § 209.120 (1972). The Secretary has authorized the Chief of the Corps, at the latter’s option, to delegate authority to issue permits to District Offices of the Corps in any ease in which the application for construction in navigable waters is “entirely routine and * * * involve [s] no difference of opinion * * * nor any opposition or other considerations which" }, { "docid": "20542138", "title": "", "text": "F.Supp. 151 (D.C.S.D.Fla.1971). In construing Section 406, the Honorable William O. Merhtens held: “Although Section 406 authorizes the removal of ‘structures’ created in violation of Section 403, the language in Section 403 of Title 33, United States Code, specifically the use of the word ‘obstruction’ is broad enough to justify the removal of any obstruction or any diminution of the navigable capacity of a watenuay. Consequently, a district court has authority under the Rivers and Harbors Act of 1899 to order the navigable capacity of a waterway restored. United States v. Joseph G. Moretti, Inc., supra, p. 158.” The power of the district court to grant injunctive relief is far greater in situations where the public interest is involved. Virginian Railway Company v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); United States v. First National Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1964). The public interest in protection of the navigability and the ecological aspects of the waters of the United States is clearly spelled out in the National Environmental Policy Act of 1969, Title 42, United States Code, sec. 4331 et seq. and the Fish and Wildlife Coordination Act of 1958, Title 16, United States Code, sec. 661 et seq. Zabel v. Tabb, supra. Where the party causing the injury to navigable waters refuses to remedy the situation or for some other reason the United States is compelled to perform the remedy, the government is entitled to the equivalent cost in damages. Wyandotte, supra; United States v. Perma Paving Co., 332 F.2d 754 (2nd Cir. 1964). It is not necessary that the government prove that it lacks an adequate remedy at law where injunctive relief is sought in this type of case. In Shafer v. United States, 229 F.2d 124 (5th Cir. 1956), the Court said: “It is contended that the Government has not shown irreparable injury and that it has an adequate remedy at law .... The United States, however, is not bound to conform with the requirements of private litigation when it seeks the aid of the courts to" }, { "docid": "18310738", "title": "", "text": "v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, sanctioned an injunction against a deliberate and continuing deposit of industrial wastes in navigable waters with a resulting silting of the channel. This was plainly a violation of the § 403 prohibition against filling or altering a navigable channel. There was no question of § 403’s applicability. The difficulty arose from the fact that § 406, which authorized an injunction to enforce § 403, is limited to the removal of unauthorized structures. The Supreme Court found in § 403 an implied authorization of an injunction to prohibit a deliberate and continuing violation of that section. Its holding intimates no extension of § 403 to shipwrecks beyond the Hall exception of a deliberate scuttling. In United States v. Perma Paving Co., 2 Cir., 332 F.2d 754, the government sought reimbursement for its expense in dredging a channel into which Perma Paving had forced silt by overloading its property. This was held to have been a violation of § 403 in its prohibition against filling channels. It was also held that, since the government might have compelled Perma Paving to remove the silt, it could recover its reasonable expenses in doing so. In discussing the question of in personam liability, reference was made to the cases holding a negligent owner of an abandoned shipwreck immune from personal liability for its removal, and the Court said, at page 758: “We need not determine whether if that precise issue should arise in this circuit, we would follow those decisions or Judge Browning’s dissent in the Bethlehem case. It is enough here that the detailed provisions with respect to wrecked vessels contained in 33 U.S.C. §§ 409, 411, 412, 414 and 415, afford a far stronger basis for immunizing the owners of wrecked vessels from in personam liability for the costs of removal than any of the statutes relevant to this case. Indeed, the author of the principal opinion in the Bethlehem case seemingly assumed that the Government could have recovered the costs of dredging the channel on the facts in Republic" }, { "docid": "1435252", "title": "", "text": "which were promulgated prior to the time of defendant’s activity. See Leslie Salt Co. v. Froehlke, supra. . The United States Fish and Wildlife Service, requested to comment by the Corps, reported that the fill had obliterated a shallow water zone and destroyed habitat suitable for the feeding and resting of the migratory anadromous fish in the Hudson River. The United States Environmental Protection Agency and the National Marine Fisheries Service also reported adverse ecological effects. DEC reported that the fill has restricted the normal flow of water in the area, increasing siltation, causing unnecessary and unreasonable damage to the fisheries and aquatic resources of the river. . Defendant’s Memorandum of Law in Opposition to the Defendant’s [sic] Motion for Summary Judgment, filed June 28, 1977, Point III at pp. 4-5. . United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 429 (5th Cir. 1973) “In light of Zabel v. Tabb, 5 Cir. 1970, 430 F.2d 199, 207 and United States v. Perma Paving Co., 2 Cir. 1964, 332 F.2d 754, any argument that the filling of navigable waters does not reduce navigable capacity of the filled waterway and thereby constitute an obstruction within the meaning of § 403 borders on the frivolous.” . Transcript of Hearing, State of New York, Department of Environmental Conservation, In the Matter of the Determination of Whether to order removal ... of fill placed in waters of this State by Jerry Alleyne. March 10, 1976, pp. 5-6. . Rule 56(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in" }, { "docid": "948106", "title": "", "text": "Act theory involves a judicially created maritime remedy. The Refuse Act, which is § 13 of the Rivers and Harbors Act of 1899, makes it unlawful to discharge any refuse matter into navigable water of the United States, and “refuse matter” has been construed to include oil accidentally discharged. United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966). While the Rivers and Harbors Act does not provide explicit remedies enabling the United States to recover costs incurred in removing anything placed in navigable water in violation of the various prohibitions of the Act, the authority of federal courts to fashion cost recovery remedies for the United States has been recognized. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) (costs of removing vessel negligently sunk in violation of § 15, 33 U.S.C. § 409 (1976)); United States v. Perma Paving Co., 332 F.2d 754 (2d Cir. 1964) (costs of removing fill deposited or permitted to be washed into water in violation of § 13); see United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960) (injunction to remove solid wastes creating obstruction in violation of § 10, 33 U.S.C. § 403 (1976), despite statutory injunction provision specifying removal only of “structures,” § 12, 33 U.S.C. § 406 (1976)). In this case, the remedy sought by the Government to recover cleanup costs for an oil spill in violation of § 13 is a judge-made remedy, and, since the source of the spill is a vessel operating on navigable waters, the judge-made remedy to enforce § 13 must be grounded in non-statutory maritime law. Criteria for Gauging Statutory Preemption of Judge-Made Law In order to determine whether the liabilities and remedies grounded in judge-made maritime law have been preempted by the FWPCA, we next consider the criteria for assessing when federal statutes displace judicial law-making authority. In particular we examine whether the Supreme Court’s approach to statutory preemption of judge-made law applies to maritime law as rigorously as it now appears to" }, { "docid": "6342254", "title": "", "text": "resolving the question of the Corps’ jurisdiction shoreward of the MHTL. In this Circuit, Tatum v. Blackstock, 5 Cir. 1963, 319 F.2d 397, and United States v. Joseph G. Moretti, Inc., 5 Cir. 1973, 478 F.2d 418 (Moretti I) are cited to us but neither is dispositive. In Tatum, we held that a Corps permit was necessary before submerged land may lawfully be filled or excavated “if the area is navigable, or if the proposed work would affect nearby navigable waters.” Tatum v. Blackstock, supra, at 399. However, the challenged activities occurred below MHTL there. In Moretti I, although we stated that the Corps had no power landward of MHTL to regulate Moretti’s conduct or force reconstruction of the topography, the challenged activities had occurred below MHTL. In neither Tatum nor Moretti I was the Corps’ jurisdiction shoreward of MHTL in issue. The Second Circuit has held that a Section 403 obstruction may be caused directly in navigable waters or indirectly by activity upland which creates the obstruction. United States v. Perma Paving Co., 2 Cir. 1964, 332 F.2d 754. There was no dispute over jurisdiction: “[Pjlainly there is not one rule when a riparian owner discharges solids from his property into the stream and a different one when he places such excessive weight on the property as to cause the soil itself to move into the bed of the stream.” 332 F.2d at 757. See also United States v. Banister Realty Co., Cir.Ct.E.D.N.Y., 1907, 155 F. 583, 597. With this background we examine Section 403. We find no locality assigned to its prohibitions. It prohibits any obstruction to navigable capacity. There is no suggestion that an obstruction whose source is above MHTL escapes prosecution. United States v. Per-ma Paving Co., supra. It prohibits the alteration or modification of the course, condition, location or capacity of a navigable water. There is not the slightest intimation that an alteration or modification whose source is above MHTL is any less an alteration or modification. There is nothing in the language of the statute nor the logic of its implementation which creates this" }, { "docid": "123122", "title": "", "text": "The expansion of the concept of “navigability” was to include the capacity for reasonable improvements as an indicia of the ability of the waterway to support commerce — whether presently or potentially. . We hold — disclaiming any novelty for this conclusion — that any filling of navigable waters creates an obstruction to navigation. . See note 2, supra. . See Note, 24 U.Fla.L.Rev. 795 (1971). . Perhaps we should call that which was under water before excavation the “bot-tomography.” . The findings of fact and conclusions of law of the District Court appear at 331 F.Supp. 151 (1971). . Although referred to in testimony these photographs are not part of the record in this case. They apparently were not admitted as exhibits in the District Court. These photographs were also the basis for the restoration plan map. See note 45, infra. Some other photographs, taken in 1947, which one witness testified represented the shoreline in 1969 as well as 1947 were not made a part of the record on appeal, although they were admitted in the District Court. . The negative feature of the order stated that Moretti and his company “are permanently restrained from further violations of Title 33, United States Code, Section 403 and that they are permanently enjoined from conducting any further excavation and alteration of the condition and capacity of Florida Bay at Hammer Point, Key Largo.” . Moretti has been “permanently enjoined and directed to remove all fill, sand, rock, gravel, rip-rap, and material of any other description the defendants caused to be placed at their trailer park development property located at Hammer Point, Key Largo, bayward of the mean high water mark that existed prior to the defendants’ operations in this area, and to restore the navigable capacity of Florida Bay to its original condition as that bay existed at Hammer Point prior to the defendants’ development operations.” . As the Court pointed out, and the order provided, special care had to be exercised during the restoration work to avoid further ecological damage. The order commanded: “And further, the defendants are directed to" }, { "docid": "123096", "title": "", "text": "High Water Mark was adequately proven, (iii) whether any obstruction to navigation had been created, and (iv) whether § 406 of the Act authorized the District Court to order the removal of a land fill as a “structure.” Navigability Florida Bay is located at the southern tip of the Florida peninsula and merges with the Gulf of Mexico on its western boundary. On the east, Florida Bay is adjacent to Biscayne Bay which leads to the Port of Miami. The length of Florida Bay is traversed by the Intra-coastal Waterway which runs from the Gulf and enters Biscayne Bay through Florida Bay. Although the record did not reveal the precise distance of appellant’s property from the Intracoastal Waterway, it is clear that it is in close proximity to this Waterway. The Coast and Geodetic Survey Chart shows that at its nearest point, the Intracoastal Waterway is less than one-half mile from Hammer Point. Navigability, even at a time when its requirements were more stringent, was simply a question of whether the waterway “in its natural and ordinary condition affords a channel for useful commerce.” The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871). Accessible as it is to both the Gulf of Mexico and -Biscayne Bay, and traversed lengthwise by the Intracoastal Waterway, Florida Bay is a natural passage for commerce and easily meets even -the historical-literal test of navigability. Of course, as with most bodies of water, there comes a point where the depth of water is minimal as the bottom slopes up to the bank. But one would hardly contend that the Mississippi is any less navigable simply because a pirogue would go aground at the water’s edge. Questioned directly as to the navigability of Florida Bay the Resident Engineer for the Corps testified unequivocally that Florida Bay is a navigable water. Indeed, if Florida Bay were unnavigable Moretti’s development of his property including finger slips and canals so that his mobile home park would be a “live-in marina” would be incomprehensible and obviously wasteful and a deception to purchasers who expected waterborne access to the sea," }, { "docid": "123123", "title": "", "text": "in the District Court. . The negative feature of the order stated that Moretti and his company “are permanently restrained from further violations of Title 33, United States Code, Section 403 and that they are permanently enjoined from conducting any further excavation and alteration of the condition and capacity of Florida Bay at Hammer Point, Key Largo.” . Moretti has been “permanently enjoined and directed to remove all fill, sand, rock, gravel, rip-rap, and material of any other description the defendants caused to be placed at their trailer park development property located at Hammer Point, Key Largo, bayward of the mean high water mark that existed prior to the defendants’ operations in this area, and to restore the navigable capacity of Florida Bay to its original condition as that bay existed at Hammer Point prior to the defendants’ development operations.” . As the Court pointed out, and the order provided, special care had to be exercised during the restoration work to avoid further ecological damage. The order commanded: “And further, the defendants are directed to present to the Court within twenty (20) days of the issuance of this order, adequate plans for the safe removal of this material so as not to interfere with marine or plant life in Florida Bay by the causing of excessive siltation or turbidity. The defendants are directed to outline in this plan the following: (a) The equipment to be used in the removal of said material; (b) The procedures to be taken to safeguard Florida Bay; and (c) The estimated time requested for compliance with this order. Upon approval of this plan by the Court, defendants are directed to immediately begin removal of said fill.” . Moretti filed a plan calling for extensive removal and refilling but then sought supersedeas to the injunction while perfecting his appeal from the outcome below. The Court required supersedeas in the amount of $1,000,000 which Moretti was unable to meet. However, the enforcement of the injunction was stayed by the granting of a temporary emergency stay by this Court, which has remained and is still in effect. ." } ]

[ { "docid": "5687405", "title": "", "text": "dangerous product is not preempted. Such claim, however, suggests that a manufacture would have to not produce Dursban at all to avoid liability (or at least not sell it in Florida), since extra warnings to people such as Plaintiff with chemical sensitivity are not allowed under state law. The Eleventh Circuit statement that “Decisions of the Florida courts demonstrate that a maker or seller of a product need not go to extreme lengths to protect foreseeable users of its products” precludes just such a claim. 181 F.3d at 1257. D. Manufacturing Defect Claims Florida law recognizes a strict liability action for a manufacturing defect, in addition to a negligence cause of action. See McCorvey v. Baxter Healthcare Corp., 2002 WL 1669832 (11th Cir. July 24, 2002); Warren v. K-Mart Corp., 765 So.2d 235, 237 (Fla. 1st DCA 2000) (quoting Restatement (Third) of Torts that “a product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”) Such claims are not preempted by FIFRA. Nat’l Bank of Commerce, 165 F.3d at 609; Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir.1993). Defendants argue that the evidence they have submitted regarding quality control in the Dursban manufacturing process irrefutably rebuts any claim of negligence or strict liability by Plaintiff. See Declaration of Michael Meath, Exhibit B to Dow Defendants’ Motion for Summary Judgment [DE 65]. This Court agrees. There is no evidence that the Dow product has departed from its intended design. Though Plaintiff argues in response that he has not had an opportunity to discover facts to support more than an inference of the manufacturing defect claims, Plaintiff has had over nine months to discover such facts. Other than the above one-sentence argument in the conclusion section of his opposition to the Dow Defendants’ motion for summary judgment, Plaintiff has not provided sufficient reasons to met the standard of Rule 56(f) of the Federal Rules of Civil Procedure to- obtain a continuance of the summary judgment motion. See Nat’l Bank of Commerce," } ]

[ { "docid": "15292928", "title": "", "text": "and slate courts that have interpreted the extent of FIFRA preemption in light of Medtronic.\" Lewis, 715 A.2d at 973 (citing Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.1997), and Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 563-64 (1st Cir.1996)); see, e.g., Taylor AG Indus., 54 F.3d at 561; Welchert v. American Cyanamid, Inc., 59 F.3d 69, 73 (8th Cir.1995); Lowe v. Sporicidin Int'l, 47 F.3d 124, 129 (4th Cir.1995); MacDonald v. Monsanto Co., 27 F.3d 1021, 1025 (5th Cir.1994); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir. 1993); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1179 (10tffh Cir. 1993). . The General Requirements mandate: (i) Adequacy and clarity of directions. Directions for use must be stated in terms which can be easily read and understood by the average person likely to use or to supervise the use of the pesticide. When followed, directions must be adequate to protect the public from fraud and from personal injury and to prevent unreasonable adverse effects on the environment, (ii) Placement of directions for use. Directions may appear on any portion of the label provided that the are conspicuous enough to be easily read by the user of the pesticide product (2) Contents of Directions for Use. The directions for use shall include the following, under the headings \"Directions for Use\" (i) The statement of use classification ... (ii) Immediately below the statement of use classification, the statement \"It is a violation of Federal law to use this product in a manner inconsistent with its labeling” (ix) specific directions concerning the storage and disposal of the pesticide and its container.... These instructions shall be grouped and appear under the heading \"Storage and disposal.” This heading must be set in type of the same minimum sizes as required for the child hazard warning (x)(F) Other pertinent information which the Administrator determines to be necessary for the protection of man and the environment. 40 CFR § 156.10. . FIFRA section 25(a)(1) can be found at 7 U.S.C. § 136w(a)(l). . FIFRA section" }, { "docid": "50098", "title": "", "text": "from the rotational crop restriction on the label. Because Spangenberg’s statement essentially repeats the restrictions on the label, the Kui-pers’ claims challenging his statement necessarily challenge the label itself and are therefore preempted. D. Furthermore, even if we were to agree with the Kuipers that EPA exceeded its authority in approving SCEPTER’s label, and therefore agree that SCEPTER is misbranded, FIFRA would still preempt the Kuipers’ claim. A state tort claim premised on misbranding arguably might appear to be protected from preemption under the Fourth Circuit’s rule authorizing state common law actions to enforce FIFRA’s own requirements: “[I]f ‘a state elects to recognize [that] a breach of a FIFRA-created duty forms the basis for a state remedy ... it is permitted to do so by T U.S:C. § 136v(b).’ ” Lowe v. Sporicidin Int’l, 47 F.3d 124, 128 (4th Cir.1995) (quoting Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993)). However, the Fourth Circuit expressly limits this rule to common-law actions that do not challenge an EPA-approved label. As the court stated in Worm: The Worms’ argument that their state law claims are based on duties not inconsistent with those imposed by FIFRA has no merit. Because the language on the label was determined by the EPA to comply with the federal standards, to argue that the warnings on the label are inadequate is to seek to hold the label to a standard different from the federal one.... If a state elects to recognize that a breach of a FIFRA-created duty forms the basis for a state remedy, we have held that' it is permitted to do so by 7 U.S.C. § 136v(b). Allowing such actions, however, is substantially distinguishable from accepting the argument that the state com mon law duty to warn is not “in addition to or different from” the federally defined duty. 5 F.3d at 748 (footnote and citations omitted). Although this statement is directed at common-law failure to warn claims, the same principle holds true for misbranding claims, which challenge the label even more directly. See Welchert v. American Cyanamid Inc., 59 F.3d 69," }, { "docid": "17913464", "title": "", "text": "F.R.D. at 75; Thompson v. American Tobacco Co., Inc., 189 F.R.D. 544, 557 (D.Minn.1999); In re St. Jude Medical, Inc. Silzone Heart Valves Products Liability Litigation, 2003 WL 1589527, at *14 (D.Minn. March 27, 2003); In re Baycol Products, 218 F.R.D. at 211. . Barnes v. American Tobacco Co., 176 F.R.D. at 500. See also Santiago v. City of Philadelphia, 72 F.R.D. 619, 628 (D.C.Pa.1976) (holding that a \"court should be more hesitant in accepting a(b)(2) suit which contains significant individual issues than it would under subsection 23(b)(3)”). . In re Baycol, 218 F.R.D. at 211 (citing Barnes v. American Tobacco Co., 161 F.3d at 143). . See Burns v. Jaquays Min. Corp., 156 Ariz. 375, 752 P.2d 28, 33-34 (1987); Patton v. General Signal Corp., 984 F.Supp. 666, 674 (W.D.N.Y. 1997). . See Henry v. Dow Chemical Co., 473 Mich. 63, 71-73, 701 N.W.2d 684, 688-89 (2005); Thomas v. FAG Bearings Corp. Inc., 846 F.Supp. 1400, 1410 (W.D.Mo.1994); Badillo v. American Brands, Inc., 117 Nev. 34, 16 P.3d 435 (2001). . See Baker v. Wyeth-Ayerst Labs. Division, 338 Ark. 242, 992 S.W.2d 797, 799 (1999). . See Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 823 (1993); Stead v. F.E. Myers, 785 F.Supp. 56, 57 (D.Vt990). . Zehel-Miller v. Astrazenaca Pharmaceuticals, LP, 223 F.R.D. 659, 663 (M.D.Fla.2004). . In re Baycol, 218 F.R.D. at 212. . Id. at 211. . Id. at 208 (‘‘[N]egligence claims depend on individual facts — whether there is a breach of duty or the foreseeability of harm will depend on what Defendants knew or should have known at the time Baycol was prescribed and whether Defendants acted reasonably based on the knowledge it had at that time.”). . June 24, 2005 Tr. at 12, lines 33-39. . Barnes v. American Tobacco Co., 161 F.3d at 145. . See Kurczi v. Eli Lilly & Co., 160 F.R.D. 667, 677 (N.D.Ohio 1995) (”[T]he resolution of the general causation question accomplishes nothing for any individual plaintiff.\"); See also Harding v. Tambrands, 165 F.R.D. 623, 630 (D.Kan.1996) (\"Certification would not" }, { "docid": "7694469", "title": "", "text": "(4th Cir.2001); Kalamazoo River Study Group v. Rockwell Int’l Corp., 274 F.3d 1043 (6th Cir.2001); Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.1998); PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir.1998); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930 (8th Cir.1995); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir.1989)). . E.g., Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 299 F.3d 1019, 1024 (9th Cir.2002); Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 872 (9th Cir.2001) (en banc); Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 691 (9th Cir.1992). . Aviall Servs., Inc. v. Cooper Indus., Inc., 312 F.3d 677 (5th Cir.2002) (en banc), cert. granted, — U.S. -, 124 S.Ct. 981, 157 L.Ed.2d 811 (Jan. 9, 2004). . See, e.g., In re Reading Co., 115 F.3d 1111, 1119 (3d Cir.1997); E.I. Dupont De Nemours & Co. v. United States, 297 F.Supp.2d 740 (D.N.J.2003). . 42 U.S.C. § 9613(f)(1). . See Aviall, 312 F.3d at 681, 686-87. . See 42 U.S.C. §§ 9613(f)(2)-(3), 9622. . See, e.g., Restatement (Third) of Torts § 23(a). . See Uniform Apportionment of Tort Responsibility Act § 7(d); Restatement (Third) of Torts § 23 cmt. b (''[A] person seeking contribution may assert a claim for contribution and obtain a contingent judgment in an action in which the person seeking contribution is sued by the plaintiff, even though the liability of the person against whom contribution is sought has not yet been extinguished.”). . Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235 (7th Cir.1997). . Id. at 1241. . 42 U.S.C. § 9601(35). . Id..; AM Int’l, Inc. v. Datacard Corp., 106 F.3d 1342, 1347 (7th Cir.1997); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994); see Union Station Assocs. v. Puget Sound Energy, Inc., 238 F.Supp.2d 1218, 1222 (W.D.Wash.2002) (\"Only the Seventh Circuit appears to have officially adopted such an exception.... It is undisputed that this is an unresolved legal issue in the Ninth Circuit.”). . Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1306" }, { "docid": "21402627", "title": "", "text": "Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) (holding FIFRA does not preempt town’s ordinance regulating the use of pesticides). Courts have interpreted FIFRA’s provisions to reveal Congress’ intent and objective to expressly preempt state statutory or common law which requires labeling or packaging different from the federal law. See Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998); Grenier v. Vermont Log Bldgs. Inc., 96 F.3d 559, 562-63 (1st Cir.1996); Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 560 (9th Cir.1995); MacDonald v. Monsanto Co., 27 F.3d 1021, 1024-25 (5th Cir.1994); Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4th Cir.1993); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.), cert. denied sub. nom, Papas v. Zoecon Corp., 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993); King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346, 1349 (1st Cir.), cert. dismissed, 510 U.S. 985, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993). While it is easy to say that FIFRA preempts any state claim that would impose labeling requirements “in addition to or different from” federal law, it is not as easily applied. Thus, the Fourth Circuit developed a test to assist in determining if FIFRA preempts a state law claim. This test requires an examination of “whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label.” Worm, 5 F.3d at 747-48; Burt v. Fumigation Serv. & Supply, Inc., 926 F.Supp. 624, 630 (W.D.Mich.1996). In other words, if the manufacture could avoid liability by altering the label, then FIFRA preempts the claim giving rise to that liability. The federal circuit courts unanimously hold that FIFRA preempts claims brought by an individual for injuries suffered as a result of the pesticide manufacturers’ negligent failure to warn or inadequate labeling. Grenier, 96 F.3d at 563-64; Taylor, 54 F.3d at 561; MacDonald, 27 F.3d at 1024; Worm, 5 F.3d at 748; Papas," }, { "docid": "18932819", "title": "", "text": "that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label. Id. at 747-48. The court ultimately affirmed the district court’s grant of summary judgment in favor of the herbicide manufacturer, noting that “[t]o the extent that the Worms’ claims challenge, by whatever state cause of action, the adequacy of information provided by American Cyan-amid on its labeling, the claims are preempted by FIFRA.” Id. at 749; see also Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 564 (1st Cir.1996) (holding express warranty claim preempted because “[t]o premise liability on the inaccuracy of the statement [on the label] is in substance to determine that a different statement should have been made in the labeling”); Welchert v. American Cyanamid, Inc., 59 F.3d 69, 72 (8th Cir.1995) (stating that express warranty claim “based entirely on the label’s statement with regard to the herbicide’s ... effect” is preempted); Taylor AG Indus, v. Pure-Gro, 54 F.3d 555, 563 (9th Cir.1995) (“ ‘[T]o the extent the implied warranty claim depends upon inadequacies in labelling or packaging, FIFRA section 136v pre-empts the claim.’ ”) (quoting Papas v. Upjohn Co., 985 F.2d 516, 520 (11th Cir.1993)) (alteration in original). The magistrate judge found that FIFRA preempts Andrus’s performance and detrimental reliance claims because “[i]n every instance the defects alleged [in Andrus’s complaint] are linked to the specifications set forth in the label.” We agree with the magistrate judge’s analysis, but we conclude that Andrus’s claim that AgrEvo breached its implied warranty of fitness for a particular purpose is similarly preempted. See Taylor AG Indus., 54 F.3d at 563 (stating that “an implied warranty of fitness for a particular purpose also constitutes a state law requirement and is preempted by FIFRA” to the extent it depends on inadequacies in labeling or packaging). Andrus claims in his complaint that WHIP 360 “failed, to perform as specified pursuant to the label” and that Andrus “relied to his detriment on the specifications pursuant to the Whip 360 product label.” Furthermore, Andrus argues on appeal that his claims are based “on the" }, { "docid": "22086894", "title": "", "text": "284 F. 3d 895 (CA8 2002). See, e. g., Etcheverry v. Tri-Ag Serv., Inc., 22 Cal. 4th 316, 993 P. 2d 366 (2000). See, e.g., Ferebee v. Chevron Chemical Co., 736 F. 2d 1529 (CADC 1984); American Cyanamid Co. v. Geye, 79 S. W. 3d 21 (Tex. 2002). See Brief for United States as Amicus Curiae in Etcheverry v. Tri-Ag Serv., Inc., No. S072524 (Cal. Sup. Ct.) (hereinafter Brief Amicus Curiae for United States in Etcheverry). The Acting Solicitor General has since adopted a contrary position. See Brief for United States as Amicus Curiae 20. If the Secretary declined registration, and the manufacturer refused to mate changes, the Secretary was required to register the pesticide “under protest.” In 1964, however, Congress eliminated this procedure, and required disappointed manufacturers to challenge a denial of registration through administrative review. 78 Stat. 190. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973. A pesticide label must also conspicuously display any statement or information specifically required by the statute or its implementing regulations. 7 U. S. C. § 136(q)(1)(E). To mention only a few examples, the label must contain the name and address of the producer, the product registration number, and an ingredient statement. 40 CFR §§ 156.10(a)(1)(ii), (iv), (vi) (2004). EPA may issue “stop sale, use, or removal” orders and may seize offending products. 7 U. S. C. §§ 136k(a), (b). Further, manufacturers may be subjected to civil and criminal penalties for violating FIFRA’s requirements. § 1361. See, e.g., Mossrud v. Lee, 163 Wis. 229, 157 N. W. 758 (1916); West Disinfecting Co. v. Plummer, 44 App. D. C. 345 (1916); McCrossin v. Noyes Bros. & Cutler, Inc., 143 Minn. 181, 173 N. W. 566 (1919); White v. National Bank of Commerce, 99 Cal. App. 519, 278 P. 915 (1929). See Hursh, Annotation, Liability of Manufacturer or Seller for Injury Caused by Animal Feed or Medicines, Crop Sprays, Fertilizers, Insecticides, Rodenticides, and Similar Products, 81 A. L. R. 2d 138, 144 (1962) (“A duty of due, reasonable care binds manufacturers and sellers of products of this kind. This duty of care includes" }, { "docid": "18932818", "title": "", "text": "additional labeling requirements.” Id. at 1024-25 (internal quotation marks omitted). Because the “undeniable practical effect” of MacDonald’s recovering a large damage award on his claims that the manufacturer failed to meet state labeling requirements and failed to warn MacDonald of potential adverse effects would be the imposition of additional labeling standards not mandated by FIFRA, we concluded that such claims are preempted. Id. at 1025. Our sister circuits have applied a similar test to claims that affect the labeling of a product regulated under FIFRA. For example, the Fourth Circuit considered in Worm whether a plaintiffs claims that a herbicide manufacturer negligently manufactured a herbicide, failed to warn of adverse consequences, and breached express and implied warranties were preempted under FIFRA. See 5 F.3d at 746. The court determined that although [t]he line between a claim for mislabeling [that is preempted] and a claim for a defective product [that is not preempted] may not always be clear .... The issue may nevertheless be resolved by looking to, as one factor, whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label. Id. at 747-48. The court ultimately affirmed the district court’s grant of summary judgment in favor of the herbicide manufacturer, noting that “[t]o the extent that the Worms’ claims challenge, by whatever state cause of action, the adequacy of information provided by American Cyan-amid on its labeling, the claims are preempted by FIFRA.” Id. at 749; see also Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 564 (1st Cir.1996) (holding express warranty claim preempted because “[t]o premise liability on the inaccuracy of the statement [on the label] is in substance to determine that a different statement should have been made in the labeling”); Welchert v. American Cyanamid, Inc., 59 F.3d 69, 72 (8th Cir.1995) (stating that express warranty claim “based entirely on the label’s statement with regard to the herbicide’s ... effect” is preempted); Taylor AG Indus, v. Pure-Gro, 54 F.3d 555, 563 (9th Cir.1995) (“ ‘[T]o the extent the implied warranty claim depends" }, { "docid": "2440049", "title": "", "text": "Inc., 22 Cal.4th 316, 93 Cal.Rptr.2d 36, 993 P.2d 366 (2000), in which the EPA argued that the FIFRA does not preempt claims related to pesticide efficacy, and the recent decision of the Texas Supreme Court in American Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex.2002), which held that the FIFRA does not preempt common law claims arising from crop damage because the EPA does not regulate pesticide efficacy- Dahlman’s position that claims premised on the inadequacy of voluntary statements related to pesticide efficacy are not preempted is not supported by the language or purpose of the FIFRA’s preemption clause. Again, section 136v(b) prohibits states from imposing or continuing in effect “any requirements for labeling or packaging in addition to or different from those required under [the FIFRA].” (Emphasis added.) As the italicized language demonstrates, the scope of the provision is not limited to state requirements that overlap federal requirements. The Texas Supreme Court in Geye adopted a different interpretation of section 136v(b), stating that “Congress has dictated that state actions regarding product labeling are preempted to the extent that the content of the product label is regulated.” Geye, 79 S.W.3d at 22 (emphasis added); see also id. at 29 (stating “without EPA regulation, there can be no preemption”); id. (stating “the scope of FIFRA’s preemption is dependent on what the EPA regulates”). The Court respectfully disagrees with Geye on this point. If the federal government’s labeling requirements are limited to pesticide characteristics A, B, and C, and a state imposes a labeling requirement related to pesticide characteristic D, the conclusion that the state requirement is both “in addition to” and “different from” the federal requirements seems inescapable. Furthermore, allowing states to impose such requirements could result in 50 different sets of requirements, each one potentially conflicting with some or all of the others, thereby frustrating the FI-FRA’s objective of establishing a uniform system of pesticide labeling requirements. Dahlman’s reading of section 136v(b) is also not supported by FIFRA preemption decisions from this circuit. With the exception of Welchert, the Eighth Circuit has never indicated that FIFRA preemption analysis depends" }, { "docid": "50087", "title": "", "text": "to warn claim). Our sister circuits agree that FIFRA preempts state law claims that directly challenge the product label itself. Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559, 563-65 (1st Cir.1996) (failure to warn claim; affirmative misstatement/breach of express warranty claim; misdesign or manufacture claim based solely on failure to warn); Welchert v. American Cyanamid Inc., 59 F.3d 69, 71-73 (8th Cir.1995) (express warranty claim); Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 560 (9th Cir.1995) (failure to warn claim; negligent testing claim where only evidence produced is allegedly inadequate product labels); Bice v. Leslie’s Poolmart, 39 F.3d 887, 888 (8th Cir.1994) (failure to warn); MacDonald v. Monsanto Co., 27 F.3d 1021, 1025 (5th Cir.1994) (failure to label properly; failure to warn); Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993) (failure to warn; breach of express and implied warranties; negligent testing claim where only evidence produced is allegedly inadequate product labels); King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346, 1349 (1st Cir.) (failure to warn), cert. dismissed, 510 U.S. 985, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.) (negligence, strict liability, and implied warranty claims, all of which relied on allegedly inadequate labeling), cert. denied sub nom. Papas v. Zoecon Corp., 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993); Arkansas-Platte & Gulf v. Van Waters & Rogers, Inc., 959 F.2d 158, 162 (10th Cir.) (strict liability and negligence claims alleging failure to warn), vacated sub nom. Arkansas-Platte & Gulf v. Dow Chemical Co., 506 U.S. 910, 113 S.Ct. 314, 121 L.Ed.2d 235 (1992), and aff'd. on remand sub nom. Arkansas-Platte & Gulf v. Van Waters & Rogers, Inc., 981 F.2d 1177 ,(10th Cir.), and cert. denied sub nom. Arkansas-Platte & Gulf v. Dow Chemical Co., 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993). However, the Kuipers maintain that none of this authority applies, for their suit does not allege a labeling or packaging defect. Instead, they claim that when they purchased SCEPTER they relied on various representations — quite apart" }, { "docid": "21402622", "title": "", "text": "focus on the fact that'a farmer lacks any bargaining power with the manufacturer, that herbicides cannot be purchased without similar exclusions because most manufacturers include similar disclaimers, and that the farmer cannot test the herbicide prior to purchase. Therefore, these courts hold that these clauses are procedurally and/or substantively unconscionable. Walker v. American Cyanamid Co., 130 Idaho 824, 948 P.2d 1123 (1997) (holding limitation of consequential damage clause unconscionable because it was ambiguous constituting an unfair surprise); Adams v. American Cyanamid Co., 1 Neb.App. 337, 498 N.W.2d 577 (1992); Latimer v. William Mueller & Son, Inc., 149 Mich.App. 620, 386 N.W.2d 618 (1986); Majors v. Kalo Laboratories, Inc., 407 F.Supp. 20 (M.D.Ala.1975). The courts holding such limitation of consequential damages conscionable do so on the ground that it is appropriate to shift the risk of loss to the farmer who understands such unknown or undeterminable risks are a natural part of the uncertainties inherent in the farming business; that the agreement arose out of a Commercial transaction between sophisticated parties which is not unduly one-sided; the farmer used the product for an extended period of time which proved the limitation of consequential damages did not deter the use of the product; that the plaintiff is not left without a remedy because he or she may still recover direct damages; and, that the farmer faded to satisfy its burden to show the clause resulted from the parties unfair bargaining positions and that the inclusion of such a clause constituted unfair surprise. Bailey Farms Inc. v. NOR-AM Chem. Co., 27 F.3d 188 (6th Cir.1994); Lindemann v. Eli Lilly & Co., 816 F.2d 199 (5th Cir.1987); Jim Dan, Inc. v. O.M. Scott & Sons Co., 785 F.Supp. 1196 (W.D.Pa.1992); Eugene Jetvig, Inc. v. Monsanto Co., 19 U.C.C.Rep.Serv.2d 797 (D.Minn.1992); Earl Brace & Sons v. Ciba-Geigy Corp., 708 F.Supp. 708 (W.D.Pa.1989); Southland Farms, Inc. v. CIBA-Geigy Corp., 16 U.C.C.RepServ.2d 53 (S.D.Ala.1989); Fleming Farms v. Dixie Ag Supply, Inc., 631 So.2d 922 (Ala.1994); American Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wash.2d 217, 797 P.2d 477 (1990); Muzzy v. E.I. du Pont de Nemours" }, { "docid": "2440048", "title": "", "text": "based on alleged misstatements by manufacturers in cigarette advertisements. A plurality of the Court stated: A manufacturer’s liability for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the “requirement[s]” imposed by an express warranty claim are not “imposed under State law,” but rather imposed by the warrantor. ... In short, a common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a “requirement ... imposed under State law [.]” Cipollone, 505 U.S. at 525-26, 112 S.Ct. 2608. In Welchert, the Eighth Circuit, relying in part on Cipollone, held that the FIFRA preempts breach of express warranty claims to the extent that they challenge “language specifically required and approved by the EPA.” 59 F.3d at 73 (emphasis added). In contrast, the court stated that claims for breach of an express warranty that is “voluntarily undertaken” are not preempted. Id. Dahlman also relies on an amicus curiae brief submitted to the California Supreme Court by the EPA in the case of Etcheverry v. Tri-Ag Service, Inc., 22 Cal.4th 316, 93 Cal.Rptr.2d 36, 993 P.2d 366 (2000), in which the EPA argued that the FIFRA does not preempt claims related to pesticide efficacy, and the recent decision of the Texas Supreme Court in American Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex.2002), which held that the FIFRA does not preempt common law claims arising from crop damage because the EPA does not regulate pesticide efficacy- Dahlman’s position that claims premised on the inadequacy of voluntary statements related to pesticide efficacy are not preempted is not supported by the language or purpose of the FIFRA’s preemption clause. Again, section 136v(b) prohibits states from imposing or continuing in effect “any requirements for labeling or packaging in addition to or different from those required under [the FIFRA].” (Emphasis added.) As the italicized language demonstrates, the scope of the provision is not limited to state requirements that overlap federal requirements. The Texas Supreme Court in Geye adopted a different interpretation of section 136v(b), stating that “Congress has dictated that state actions regarding product labeling are" }, { "docid": "15292927", "title": "", "text": "not acted in that particular area. Therefore, we will not construe the preemption provision of FIFRA so broadly as to preclude Hawkins’s packaging based claims. Accordingly, we affirm that portion of the District Court’s order that the labeling claims are preempted by FIFRA and reverse as to the packaging claims. . The preemptive provision of the Medical Device Amendments Act states in pertinent part: (a) General rule Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement— (1) which is different form, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. 21 U.S.C. § 360k(a). Subchapter (b) then lists the exempted requirements. See id. § 360k(b). . This conclusion \"comports with the decisions of an overwhelming majority of federal and slate courts that have interpreted the extent of FIFRA preemption in light of Medtronic.\" Lewis, 715 A.2d at 973 (citing Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.1997), and Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 563-64 (1st Cir.1996)); see, e.g., Taylor AG Indus., 54 F.3d at 561; Welchert v. American Cyanamid, Inc., 59 F.3d 69, 73 (8th Cir.1995); Lowe v. Sporicidin Int'l, 47 F.3d 124, 129 (4th Cir.1995); MacDonald v. Monsanto Co., 27 F.3d 1021, 1025 (5th Cir.1994); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir. 1993); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1179 (10tffh Cir. 1993). . The General Requirements mandate: (i) Adequacy and clarity of directions. Directions for use must be stated in terms which can be easily read and understood by the average person likely to use or to supervise the use of the pesticide. When followed, directions must be adequate to protect the public from fraud and from personal injury and to prevent unreasonable adverse" }, { "docid": "7883148", "title": "", "text": "‘significantly probative’ as to any [material] fact claimed to be disputed.” Branson v. Price River Coal Company, 853 F.2d 768, 771-72 (10th Cir.1988). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Such principles insure that summary judgment is utilized “when it can be shown that a trial would serve no useful purpose.” Windham v. Wyeth Laboratories, Inc., 786 F.Supp. 607, 610 (S.D.Miss.1992). II. APPLICATION A. Preemption The principle issue in this ease is whether the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y, preempts the Kuipers’ state law causes of action. FIFRA provides comprehensive regulation of the sale and use of pesticides and other chemicals and includes, among other things, certain licensing and labeling requirements. There is a substantial body of ease law dealing with preemption issues arising under FIFRA. The Court will not undertake a full exposition of that ease law. For purposes of this motion, it suffices to say that FIFRA contains an express preemption clause which several circuit courts of appeals, including the 7th Circuit, have interpreted as preempting state common law causes of action, including “failure to warn” claims, premised upon or relating to defects in the labeling or packaging of a product regulated under FIFRA. The preemption provision, and the pertinent cases interpreting it, are as follows: Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. 7 U.S.C. § 136v(b). See, Shaw v. Dow Brands, Inc., 994 F.2d 364, 369-71 (7th Cir.1993); see also, MacDonald v. Monsanto Co., 27 F.3d 1021, 1023-26 (5th Cir.1994); Worm v. American Cyanamid Co., 5 F.3d 744, 746-49 (4th Cir.1993) (“Worm II”); King v. E.I. DuPont De Nemours & Co., 996 F.2d 1346, 1347-51 (1st Cir.1993); Papas v. Upjohn Co., 985 F.2d 516, 517-20 (11th Cir.1993) (“Papas II ”); Arkansas-Platte & Gulf v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1178-80 (10th Cir.1993); Bice v. Leslie’s Poolmart, Inc., 39 F.3d 887, 888" }, { "docid": "22086893", "title": "", "text": "labeling requirements are genuinely equivalent. If a defendant so requests, a court should instruct the jury on the relevant • FIFRA misbranding standards, as well as any regulations that add content to those standards. For a manufacturer should not be held liable under a state labeling requirement subject to § 136v(b) unless the manufacturer is also liable for misbranding as defined by FIFRA. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Strongarm would more commonly be called a herbicide, but it is classified as a pesticide for'purposes of FIFRA. See 7 U. S. C. §§136(t), (u). The term “pH,” which stands for pondus hydrogenii, or “potential hydrogen,” refers to the acidity of the soil. Tex. Bus. & Com. Code Ann. § 17.01 et seq. (West 2002). See, e. g., Grenier v. Vermont Log Buildings, Inc., 96 F. 3d 559 (CA1 1996); Kuiper v. American Cyanamid Co., 131 F. 3d 656 (CA7 1997); Netland v. Hess & Clark, Inc., 284 F. 3d 895 (CA8 2002). See, e. g., Etcheverry v. Tri-Ag Serv., Inc., 22 Cal. 4th 316, 993 P. 2d 366 (2000). See, e.g., Ferebee v. Chevron Chemical Co., 736 F. 2d 1529 (CADC 1984); American Cyanamid Co. v. Geye, 79 S. W. 3d 21 (Tex. 2002). See Brief for United States as Amicus Curiae in Etcheverry v. Tri-Ag Serv., Inc., No. S072524 (Cal. Sup. Ct.) (hereinafter Brief Amicus Curiae for United States in Etcheverry). The Acting Solicitor General has since adopted a contrary position. See Brief for United States as Amicus Curiae 20. If the Secretary declined registration, and the manufacturer refused to mate changes, the Secretary was required to register the pesticide “under protest.” In 1964, however, Congress eliminated this procedure, and required disappointed manufacturers to challenge a denial of registration through administrative review. 78 Stat. 190. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973. A pesticide label must also conspicuously display any statement or information specifically required by the statute or its implementing regulations. 7 U. S. C. §" }, { "docid": "21402628", "title": "", "text": "L.Ed.2d 440 (1993). While it is easy to say that FIFRA preempts any state claim that would impose labeling requirements “in addition to or different from” federal law, it is not as easily applied. Thus, the Fourth Circuit developed a test to assist in determining if FIFRA preempts a state law claim. This test requires an examination of “whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label.” Worm, 5 F.3d at 747-48; Burt v. Fumigation Serv. & Supply, Inc., 926 F.Supp. 624, 630 (W.D.Mich.1996). In other words, if the manufacture could avoid liability by altering the label, then FIFRA preempts the claim giving rise to that liability. The federal circuit courts unanimously hold that FIFRA preempts claims brought by an individual for injuries suffered as a result of the pesticide manufacturers’ negligent failure to warn or inadequate labeling. Grenier, 96 F.3d at 563-64; Taylor, 54 F.3d at 561; MacDonald, 27 F.3d at 1024; Worm, 5 F.3d at 748; Papas, 985 F.2d at 518; King, 996 F.2d at 1349; Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 (7th Cir.1993); see also Lyall v. Leslie’s Poolmart, 984 F.Supp. 587, 592-93 (E.D.Mich.1997); Burt, 926 F.Supp. at 631; Kinser v. Ciba-Geigy Corp., 837 F.Supp. 217, 220 (W.D.Ky.1993); Wright v. Dow Chem. U .S.A., 845 F.Supp. 503, 509 (M.D.Tenn.1993); Gibson v. Dow Chem. Co., 842 F.Supp. 938, 940 (E.D.Ky.1992). FIFRA, however, does not preempt claims grounded in legal theories such as negligent design, manufacturing, testing and unreasonably dangerous defective products. Grenier, 96 F.3d at 565; Worm, 5 F.3d at 749; Lyall, 984 F.Supp. at 595-97; Burt, 926 F.Supp. at 631. Gooch contends that his claims are not preempted by FIFRA because they do not assert any label based claims. The Court finds this argument unpersuasive. Gooch’s breach of warranty claim, that the Accent was not reasonably fit for the purposes stated in the directions for use, is based on statements found in the Limitation of Liability section of the label and assertions made in the Directions for Use." }, { "docid": "21402626", "title": "", "text": "the authority left to the states under the statute. 7 U.S.C. § 136v(a) & (b). These provisions read: (a) In general A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this sub-chapter. (b) Uniformity Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchap-ter. Id. While addressing the preemption issue, the United States Supreme Court admonished the lower courts to narrowly construe the preemptive effect of a legislative enactment by adhering to the notion that the “historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). FIFRA does not entirely preclude state regulation of pesticides and their use. See generally Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) (holding FIFRA does not preempt town’s ordinance regulating the use of pesticides). Courts have interpreted FIFRA’s provisions to reveal Congress’ intent and objective to expressly preempt state statutory or common law which requires labeling or packaging different from the federal law. See Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998); Grenier v. Vermont Log Bldgs. Inc., 96 F.3d 559, 562-63 (1st Cir.1996); Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 560 (9th Cir.1995); MacDonald v. Monsanto Co., 27 F.3d 1021, 1024-25 (5th Cir.1994); Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4th Cir.1993); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.), cert. denied sub. nom, Papas v. Zoecon Corp., 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993); King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346, 1349 (1st Cir.), cert. dismissed, 510 U.S. 985, 114 S.Ct. 490, 126" }, { "docid": "2440043", "title": "", "text": "requires the nonmoving party to respond by submitting evidentiary materials that designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). FMC argues that Dahlman’s claims are preempted by the FIFRA because they are premised on the inadequacy of the EPA-approved AIM label, which stated that AIM could be used on seed corn and that such use would not result in a loss of yield. The “FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging.” Welchert v. Am. Cyanamid, Inc., 59 F.3d 69, 71 (8th Cir.1995). Under the FIFRA, pesticides dis tributed or sold in the United States must be registered with the EPA. 7 U.S.C. § 136a(a); see Netland v. Hess & Clark, Inc., 284 F.3d 895, 898 (8th Cir.), cert. denied, — U.S. -, 123 S.Ct. 415, 154 L.Ed.2d 294 (2002); Welchert, 59 F.3d at 71. The FIFRA’s definition of the term “pesticide” includes herbicides such as AIM. See 7 U.S.C. § 136(u); Welchert, 59 F.3d at 71 n. 1. A pesticide manufacturer applying for registration must supply the EPA with a statement containing certain information about the pesticide, including a copy of the pesticide label. 7 U.S.C. § 136a(c)(1)(C); see Netland, 284 F.3d at 898; Welchert, 59 F.3d at 71. Before registering a pesticide, the EPA must make a determination that the pesticide label complies with the FIFRA. 7 U.S.C. § 136a(c)(5)(B); see Netland, 284 F.3d at 898; Welchert, 59 F.3d at 71 n. 2. Once a pesticide label is approved and the pesticide is registered, the “FIFRA expressly provides for a defense, arising from preemption, against certain state law claims.” Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 608 (8th Cir.1999). The basis of the defense is the FIFRA’s express preemption clause, which provides that a state “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from" }, { "docid": "7883149", "title": "", "text": "express preemption clause which several circuit courts of appeals, including the 7th Circuit, have interpreted as preempting state common law causes of action, including “failure to warn” claims, premised upon or relating to defects in the labeling or packaging of a product regulated under FIFRA. The preemption provision, and the pertinent cases interpreting it, are as follows: Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. 7 U.S.C. § 136v(b). See, Shaw v. Dow Brands, Inc., 994 F.2d 364, 369-71 (7th Cir.1993); see also, MacDonald v. Monsanto Co., 27 F.3d 1021, 1023-26 (5th Cir.1994); Worm v. American Cyanamid Co., 5 F.3d 744, 746-49 (4th Cir.1993) (“Worm II”); King v. E.I. DuPont De Nemours & Co., 996 F.2d 1346, 1347-51 (1st Cir.1993); Papas v. Upjohn Co., 985 F.2d 516, 517-20 (11th Cir.1993) (“Papas II ”); Arkansas-Platte & Gulf v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1178-80 (10th Cir.1993); Bice v. Leslie’s Poolmart, Inc., 39 F.3d 887, 888 (8th Cir.1994); Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 559-61 (9th Cir.1995). Thus, insofar as the Kuipers’ claims are premised upon inaccuracies or falsehoods contained in SCEPTER’s labeling or packaging, such claims are clearly preempted by FIFRA. This case, however, is not resolved so easily. The Kuipers argue that they are not relying upon any deficiencies in SCEPTER’s labeling and packaging and are not asserting any “failure to warn” claims based on that labeling and packaging. Rather, the Kuipers are asserting misrepresentation claims based on false statements contained in ACC’s advertising and promotional materials; specifically, representations regarding SCEPTER’s safety vis-a-vis follow crops. Because the FIFRA provision at issue only discusses “requirements for labeling or packaging in addition to or different from those required” under FIFRA, the Kuipers argue that any claims based on misrepresentations in SCEPTER’s advertising are not preempted. The 7th Circuit has yet to address this issue in the context of FIFRA. Other state and federal courts have, however, and there appears to be a split developing. The Kuipers rely primarily on" }, { "docid": "50086", "title": "", "text": "is to “identify the domain expressly pre-empted” by the statutory language, Medtronic, at -, 116 S.Ct. at 2250 (quoting Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618), by determining whether the legal duty that is the predicate of the plaintiffs’ state law damages actions constitutes a “requirement for labeling or packaging in addition to or different from those required under [FIFRA].” See Cipollone, 505 U.S. at 524, 112 S.Ct. at 2621-22 (1992) (opinion of Stevens, J., joined by Rehnquist, C.J, and White and O’Connor, JJ.); 505 U.S. at 531-32, 112 S.Ct. at 2625-26 (opinion of Black-mun, J., joined by Kennedy and Souter, JJ.) (holding that the preemptive scope of the Federal Cigarette Labeling and Advertising Act and the Public Health Cigarette Smoking Act is governed entirely by the language of their express preemption provisions). We have previously held that FIFRA preempts state common-law actions for labeling and packaging defects regarding products, like SCEPTER, that are regulated by FIFRA. See Shaw v. Dow Brands, 994 F.2d 364, 371 (7th Cir.1993) (FIFRA preempts state law failure to warn claim). Our sister circuits agree that FIFRA preempts state law claims that directly challenge the product label itself. Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559, 563-65 (1st Cir.1996) (failure to warn claim; affirmative misstatement/breach of express warranty claim; misdesign or manufacture claim based solely on failure to warn); Welchert v. American Cyanamid Inc., 59 F.3d 69, 71-73 (8th Cir.1995) (express warranty claim); Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 560 (9th Cir.1995) (failure to warn claim; negligent testing claim where only evidence produced is allegedly inadequate product labels); Bice v. Leslie’s Poolmart, 39 F.3d 887, 888 (8th Cir.1994) (failure to warn); MacDonald v. Monsanto Co., 27 F.3d 1021, 1025 (5th Cir.1994) (failure to label properly; failure to warn); Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993) (failure to warn; breach of express and implied warranties; negligent testing claim where only evidence produced is allegedly inadequate product labels); King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346, 1349 (1st Cir.) (failure to warn), cert. dismissed, 510" } ]

[ { "docid": "16979546", "title": "", "text": "detailed and extensive factual findings. The court recognized (as we had held) that RJR’s decision to remove the Nabisco Funds from the Plan was a fiduciary act subject to the duty of prudence imposed by ERISA. Tatum, 926 F.Supp.2d at 673. The court then held that (1) RJR breached its fiduciary duties when it “decided to remove and sell Nabisco stock from the Plan without undertaking a proper investigation into the prudence of doing so,” id. at 651, and (2) as a breaching fiduciary, RJR bore the burden of proving that its breach did not cause the alleged losses to the Plan.' But the court further held that (3) RJR met its burden of proof because its decision to eliminate the Nabisco Funds was “one which a reasonable and prudent fiduciary could have made after performing such an investigation.” Id. (emphasis added). Tatum noted a timely appeal. II. Congress enacted ERISA to protect “the interests of participants in employee benefit plans and their beneficiaries ... by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U.S.C. § 1001(b). Consistent with this purpose, ERISA imposes high standards of fiduciary duty on those responsible for the administration of employee benefit plans and the investment and disposal of plan assets. As the Second Circuit has explained, “[t]he fiduciary obligations of the trustees to the participants and beneficiaries of [an ERISA] plan are ... the highest known to the law.” Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.1982). Pursuant to the duty of loyalty, an ERISA fiduciary must “discharge his duties ... solely in the interest of the participants and beneficiaries.” 29 U.S.C. § 1104(a)(1). The duty of prudence requires ERISA fiduciaries to act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” Id. § 1104(a)(1)(B). The statute also" } ]

[ { "docid": "19580511", "title": "", "text": "circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.\" 29 U.S.C. § 1104(a)(1)(B). Although these fiduciary duties \"draw much of their content from the common law of trusts ... ERISA's standards and procedural protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection.\" Tatum v. RJR Pension Inv. Comm. , 761 F.3d 346, 357 (4th Cir. 2014) (internal quotation marks omitted). Courts apply the \"prudent man rule ... bearing in mind the special nature and purpose of employee benefit plans.\" Id. (internal quotation marks and alterations omitted). For this reason, \"[t]he fiduciary obligations of the trustees to the participants and beneficiaries [of an ERISA] plan are ... the highest known to the law.\" Id . at 356 (alterations in original) (quoting Donovan v. Bierwirth , 680 F.2d 263, 272 n.8 (2d Cir. 1982) ). Because an ESOP fiduciary that raises an affirmative defense under the § 1108(e) exception seeks to avoid ERISA liability for an otherwise prohibited transaction, the fiduciary bears the burden of proving by a preponderance of the evidence that the sale was for adequate consideration. See Elmore v. Cone Mills Corp. , 23 F.3d 855, 864 (4th Cir. 1994) (en banc). \"This burden is a heavy one.\" Shay , 100 F.3d at 1488. B. With these principles in mind, we turn to the facts of this case. Since its inception, Constellis Group, Inc., the closely held parent company of a group of private security subsidiaries, has offered some form of deferred compensation to its employees, who are primarily retired members of the U.S. Armed Forces. Brundle I , 241 F.Supp.3d at 614. After initially offering a stock option program, Constellis replaced that program with a profit-sharing plan in 2010. Id. In mid-2013, looking for an \"exit strategy\" after having twice tried and failed to effectuate a sale of the company, the owners of Constellis (hereinafter \"the Sellers\") began exploring the possibility of creating an ESOP" }, { "docid": "629178", "title": "", "text": "the case of assets for which there is no generally recognized market as “the fair market value of the asset as determined in good faith by the trustee or named fiduciary.” 29 U.S.C. § 1002(18). The Fifth Circuit in Donovan v. Cunningham examined § 408’s conditional exemption and how to determine whether fiduciaries purchased securities for “adequate consideration.” The Donovan court explained that although ESOP fiduciaries are “freed by Section 408 from the prohibited transaction rules, ESOP fiduciaries remain subject to the general requirements of Section 404.” Donovan, 716 F.2d at 1467; see also Kuper, 66 F.3d at 1458 (holding that § 408 exemption for ESOPs do not relieve fiduciaries from the general fiduciary responsibility provisions of § 404). Section 404 imposes three distinct but overlapping duties. ERISA fiduciaries must act “solely in the interest of plan participants and beneficiaries,” for the “exclusive purpose” of providing benefits to them, and as a prudent persons would act under the circumstances. Kuper, 66 F.3d at 1458. These fiduciary duties have been characterized as “the highest known to law.” Kuper, 66 F.3d at 1453 (quoting Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1468 (5th Cir.1986)). “[Fiduciaries’] principal responsibility in selecting investments is to act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.’” Donovan, 716 F.2d at 1467 (quoting 29 U.S.C. § 1104(a)(1)(B)). The Donovan court held that “the ESOP fiduciaries will carry their burden to prove that adequate consideration was paid by showing that they arrived at their determination of fair market value by way of a prudent investigation in the circumstances then prevailing.” Id. at 1467-1468. The fiduciary’s burden of proof is by a preponderance of the evidence. Valley Nat’l Bank, 837 F.Supp. at 1272. Therefore, the question before this Court for purposes of deciding the Secretary’s motion for partial summary judgment is whether the defendants, in their capacities as" }, { "docid": "22864855", "title": "", "text": "first to do so, unaided by the views of others, for we must satisfy the demands of Congressional policies that seem destined to collide. On the one hand, Congress has repeatedly expressed its intent to encourage the formation of ESOPs by passing legislation granting such plans favorable treatment, and has warned against judicial and administrative action that would thwart that goal. Competing with Congress’ expressed policy to foster the formation of ESOPs is the-policy expressed in equally forceful terms in ERISA: that of safeguarding the interests of participants in employee benefit plans by vigorously enforcing standards of fiduciary responsibility. See note 13, supra. Our task in interpreting the statute is to balance these concerns so that competent fiduciaries will not be afraid to serve, but without giving unscrupulous ones a license to steal. More, though we are guided by principles of trust law, we must bear in mind that in ERISA Congress departed from the absolute common law rule against fiduciaries' dual loyalties. ERISA clearly provides that a fiduciary may be an officer or employee of the company whose securities he purchases on behalf of a plan. 29 U.S.C. § 1108(c)(3); see generally Donovan v. Bierwirth, 538 F.Supp. 463, 468 (E.D.N.Y. 1981), modified, 680 F.2d 263 (2d Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 488, 74 L.Ed.2d 631 (1983). Thus, the stringent prophylactic rules of the common law cannot be incorporated reflexively under the statute. An examination of the structure of ERI-SA’s fiduciary responsibility provisions shows that Congress was aware of, and has struck a balance between, the competing policies we have identified. Though freed by Section 408 from the prohibited transaction rules, ESOP fiduciaries remain subject to the general requirements of Section 404. Eaves v. Penn, 587 F.2d 453 (10th Cir.1978); cf. Donovan v. Bierwirth, 680 F.2d at 271. Their principal responsibility in selecting investments is to act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29" }, { "docid": "20230510", "title": "", "text": "the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter. 29 U.S.C. § 1104(a)(1). These fiduciary duties have been broken down into three components. See Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833, 840 (6th Cir.2003). First, a fiduciary owes a duty of loyalty “pursuant to which all decisions regarding an ERISA plan must be made with an eye single to the interests of the participants and beneficiaries.” Id. (quoting Kuper v. Iovenko, 66 F.3d 1447, 1458 (6th Cir.1995) (internal quotations marks omitted)). Second, ERISA imposes “an unwavering duty to act both as a prudent person would act in a similar situation and with single-minded devotion to [the] plan participants and beneficiaries.” Id. (same). Third, ERISA fiduciaries must act for the exclusive purpose of providing benefits to plan beneficiaries. Id. “The duties charged to an ERISA fiduciary are the highest known to the law.” Pfeil v. State Street Bank & Trust Co., 671 F.3d 585, 591 (6th Cir.2012) (citation and alteration omitted). Section 409(a) of ERISA holds a fiduciary who breaches any of these duties personally liable for any losses to the plan that result from its breach of duty. 29 U.S.C. § 1109(a). Congress made certain exceptions to these fiduciary duties for investments by employee stock ownership plans (“ESOPs”), defined under 29 U.S.C. § 1107(d)(6). See Kuper, 66 F.3d at 1458. Specifically," }, { "docid": "22304299", "title": "", "text": "“[factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The court must turn to the substantive law in determining which facts are material. Id. B. We begin our analysis with a review of the fiduciary duties imposed under ERISA. We also are mindful of the admonition that “courts must always bear in mind the ultimate consideration whether allowance or disallowance of particular relief would best effectuate the underlying purposes of ERISA — enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and promotion of the best interests of participants and beneficiaries.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 158, 105 S.Ct. 3085, 3098, 87 L.Ed.2d 96 (1985) (Brennan, J., concurring). See also H.R. Conf.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 5038, 5083 (Congress expects courts will interpret the fiduciary standards “bearing in mind the special nature and purpose of employee benefit plans.”). ERISA provides that plan fiduciaries have certain obligations to participants in the plan. Specifically, 29 U.S.C. § 1104(a)(1), which governs fiduciary duties, provides in relevant part: [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.... The above fiduciary requirements imposed under ERISA have been delineated as having three components. See Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). The first is referred to as the “duty of loyalty,” and is codified in the requirement that “each fiduciary of a plan must act solely in the interests of the" }, { "docid": "18036685", "title": "", "text": "of Conduct ERISA was designed to ensure “the continued well-being and security of millions of employees and their dependents” through the regulation of employee benefit plans. See 29 U.S.C. § 1001(a). See also Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). The statute thus imposes stringent standards of conduct upon fiduciaries who oversee such plans. See 29 U.S.C. § 1001(b). Indeed, we have said that ERISA’s fiduciary standards of conduct are “ ‘the highest known to the law.’ ” LaScala v. Scrufari, 479 F.3d 213, 219 (2d Cir.2007) (quoting Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982)). Of particular relevance here is the ERISA fiduciary’s duty to act in accordance with the “prudent man” standard of conduct — that is, “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). Although this standard is rooted in the common law of trusts, ERISA’s standard is “more exacting.” Donovan v. Mazzola, 716 F.2d 1226, 1231 (9th Cir.1983). ERISA allows for the creation of ESOPs, which are “designed to invest primarily in qualifying employer securities.” 29 U.S.C. § 1107(d)(6)(A). To fulfill this purpose, ESOP fiduciaries are exempt from certain standards of conduct that apply to other kinds of ERISA plans. For example, although fiduciaries of pension benefit plans generally must diversify investments so as to minimize risk, see id. § 1104(a)(1)(C), ESOP fiduciaries need not do so. Specifically, section 404(a)(2) of ERISA provides that “the diversification requirement ... and the prudence requirement (only to the extent that it requires diversification) ... is not violated by acquisition or holding of ... qualifying employer securities.” Id. § 1104(a)(2). ESOP fiduciaries are also exempted from ERISA’s prohibition against dealing with a party in interest. Id. § 1106(b)(1). But they are not otherwise excused from the stringent “prudent man”" }, { "docid": "2477634", "title": "", "text": "and it did not compare Pacific with other companies that had 50% liquidity discounts. III. The District Court Opinion After a six week bench trial, the district court ruled in favor of the ESOP fiduciaries. The district court found that Arthur Young had received from the fiduciaries “all relevant, material information,” and that Cal. Corp.Code § 1800 was preempted by ERISA. The district court remarked that “utilizing the business judgment rule this Court cannot find that the [Pacific] ESOP committee breached any fiduciary duty in relying on the Arthur Young- & Company independent valuation and fairness opinion....” It concluded that the fiduciaries had acted with the “care, skill ... and diligence of a prudent fiduciary” and that $14.40 per share was “full, fair, and adequate consideration.” DISCUSSION “ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). An ERISA fiduciary must act for the exclusive benefit of plan beneficiaries, 29 U.S.C. § 1104(a)(1), and must act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). These duties are the “highest known to the law.” Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). To enforce them, the court focuses not only on the merits of the transaction, but also on the thoroughness of the investigation into the merits of the transaction. Donovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir.1983); Donovan v. Maz propriate methods to investigate the merits of the investment and to structure the investment”). In addition to imposing duties of loyalty and care, ERISA explicitly prohibits a fiduciary from engaging in self-dealing transactions: “A fiduciary with respect to a plan shall not ... (2) in his individual or in any" }, { "docid": "2384907", "title": "", "text": "the parties or by operation of law. As such, it is a legal issue to be determined by the court. Having concluded that there was a duty on the part of HMW to inform the participants of the impending termination, I must address the issue of when the duty arose. To do so, it is necessary to scrutinize the purpose behind the obligations which ERISA imposes on the plan administrator. The statutory fiduciary obligations imposed by ERISA have three basic components. Berlin v. Michigan Bell Telephone Co., 858 F.2d 1154, 1162 (6th Cir.1988) (citing Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982)). The first is a duty of loyalty requiring each fiduciary to “act solely in the interests of the plan’s participants and beneficiaries.” Berlin, 858 F.2d at 1162, citing H.R. Conf. Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin. News 4639, 5083. The second component is known as the prudent man standard of care which requires the fiduciary to act “with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C.A. § 1104(a)(1)(B). Thus, the prudent man standard, “combined with the duty of loyalty” ‘imposes an unwavering duty on an ERISA trustee to make decisions with single-minded devotion to a plan’s participants and beneficiaries and, in so doing, to act as a prudent person would act in a similar situation. These familiar principles evolved from the common law of trusts that Congress codified and made applicable to ERISA trustees.’ Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir. 1984). Berlin, 858 F.2d at 1162. The final component is the requirement that the fiduciary act “for the exclusive purpose” of providing benefits to plan beneficiaries. Id. Applying these components of the fiduciary’s obligations to the case before us, I conclude that the duty to act for the exclusive benefit" }, { "docid": "19580510", "title": "", "text": "more than adequate consideration and \"the ESOP and its participants suffered a loss under ERISA.\" See Reich , 990 F.Supp. at 961. ERISA does not define what constitutes \"adequate consideration\" under the § 1108(e) exception; the Department of Labor (DOL) has proposed, but never enacted, regulations doing so. Although courts look to these regulations for guidance, the focus of the adequate-consideration inquiry rests on the conduct of a fiduciary, as judged by ERISA's \"prudent man\" standard of care. See Perez v. Bruister , 823 F.3d 250, 263 (5th Cir. 2016) ; Henry III , 445 F.3d at 619 ; Chao , 285 F.3d at 437 ; Howard v. Shay , 100 F.3d 1484, 1489 (9th Cir. 1996). Under this standard, \"ESOP fiduciaries are subject to the duty of prudence just as other ERISA fiduciaries are.\" Fifth Third Bancorp v. Dudenhoeffer , 573 U.S. 409, 134 S.Ct. 2459, 2467, 189 L.Ed.2d 457 (2014). Thus an ESOP fiduciary, like any other ERISA fiduciary, must \"discharge his duties ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.\" 29 U.S.C. § 1104(a)(1)(B). Although these fiduciary duties \"draw much of their content from the common law of trusts ... ERISA's standards and procedural protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection.\" Tatum v. RJR Pension Inv. Comm. , 761 F.3d 346, 357 (4th Cir. 2014) (internal quotation marks omitted). Courts apply the \"prudent man rule ... bearing in mind the special nature and purpose of employee benefit plans.\" Id. (internal quotation marks and alterations omitted). For this reason, \"[t]he fiduciary obligations of the trustees to the participants and beneficiaries [of an ERISA] plan are ... the highest known to the law.\" Id . at 356 (alterations in original) (quoting Donovan v. Bierwirth , 680 F.2d 263, 272 n.8 (2d Cir. 1982) ). Because an ESOP fiduciary that raises an affirmative defense" }, { "docid": "22851814", "title": "", "text": "set forth in ERISA § 404(a)(1), which states: ... [A] fiduciary shah discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and- (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and instruments governing the plan.... 29 U.S.C. § 1104(a)(1). In Kuper, another panel of this court explained that the fiduciary duties enumerated under § 404(a)(1) had “three components”: The first is a “duty of loyalty” pursuant to which “all decisions regarding an ERISA plan ‘must be made with an eye single to the interests of the participants and beneficiaries.’ ” Berlin v. Michigan Bell Tele. Co., 858 F.2d 1154, 1162 (6th Cir.1988) (quoting Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982)). The second obligation imposed under ERISA, the “prudent man” obligation, imposes “an unwavering duty” to act both “as a prudent person would act in a similar situation” and “with single-minded devotion” to those same plan participants and beneficiaries. Id. Finally, an ERISA fiduciary must “ ‘act for the exclusive purpose’ ” of providing benefits to plan beneficiaries. Id. (quoting [Bierwirth ], 680 F.2d at 271). Kuper, 66 F.3d at 1458. Clearly, the duties charged to an ERISA fiduciary are “the highest known to the law.” Howard, 100 F.3d at 1488 (quoting Bierwirth, 680 F.2d at 272 n. 8); see also Moench, 62 F.3d at 560 (describing a fiduciary’s obligations as “strict” and “detailed”). When enforcing these duties, “the court focuses not only on the" }, { "docid": "19896281", "title": "", "text": "251, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (internal quotation marks omitted). It is intended to “promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Under ERISA, plan fiduciaries “are assigned a number of detailed duties and responsibilities, which include the proper management, administration and investment of plan assets, the maintenance of proper records, the disclosure of specific information, and the avoidance of conflicts of interest.” Mertens, 508 U.S. at 251, 113 S.Ct. 2063 (internal quotation marks and alterations omitted). These duties and responsibilities “draw much of their content from the common law of trusts, the law that governed most benefit plans before ERISA’s enactment.” Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). The common law of trusts, therefore, “will inform, but will not necessarily determine the outcome of, an effort to interpret ERISA’s fiduciary duties.” Id. at 497, 116 S.Ct. 1065. The parties agree that during the class period the Plan authorized U.S. Airways to act as Plan fiduciary with discretion to select investment options and a duty to monitor their continued suitability. They also agree that U.S. Airways permissibly exercised that discretion to provide Plan participants the option of investing in a Company Fund. ERISA requires that a fiduciary shall act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B) (2000). It also requires that a fiduciary “shall dis charge his duties ... solely in the interest of the participants and beneficiaries.” Id. § 1104(a)(1). Thus, in common parlance, ERISA fiduciaries owe participants duties of prudence and loyalty. Moench v. Robertson, 62 F.3d 553, 561 (3d Cir.1995). To enforce these duties, “the court focuses not only on the merits of [a] transaction, but also on the thoroughness of the investigation into the merits of" }, { "docid": "13972472", "title": "", "text": "(Count XI), and co-fiduciary liability (Count XII). Plaintiffs also assert a claim for disgorgement of profits against the Ivy and BONY Defendants (Count XIII). ERISA’s primary purpose is to “protect beneficiaries of employee benefit plans.” Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 47 (2d Cir.2009) (citing 29 U.S.C. § 1001(b)). ERISA holds plan fiduciaries to the “[p]rudent man standard of care” in exercise of their duties. 29 U.S.C. § 1104(a). ERISA measures prudence “according to the objective ‘prudent person’ standard developed in the common law of trusts.” Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir.), cert, denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Trustees’ fiduciary obligations to the participants and beneficiaries of an ERISA plan have been described as “the highest known to the law.” Chao v. Merino, 452 F.3d 174, 182 (2d Cir.2006) (quoting Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.), cert, denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982)). Specifically, ERISA lists four duties required of fiduciaries. Fiduciaries are to (1) act “solely in the interest of the participants and beneficiaries,” and for the purpose of benefiting participants and defraying reasonable administration expenses; (2) discharge their duties “with the care, skill, prudence, and diligence under the circumstances then prevailing”; (3) diversify investments “so as to minimize the risk of large losses”; and (4) act “in accordance with the documents and instruments governing the plan” so long as they are consistent with ERISA itself. 29 U.S.C. § 1104(a)(l)(A)-(D). i. The Jeanneret & Beacon Defendants Plaintiffs assert four claims against the Jeanneret and Beacon Defendants: breach of the duty of prudence and loyalty (Count VIII), failure to comply with documents and instruments governing the plan (Counts IX and X), prohibited transaction (Count X), and co-fiduciary liability (Count XII). 1. Duty of Prudence ERISA requires fiduciaries to discharge their duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a" }, { "docid": "5245192", "title": "", "text": "under ERISA when he gave himself and his son salary increases without trustee approval. ERISA § 404(a)(1) states that a fiduciary must discharge his duties “solely in the interest of the [ERISA plan] participants and beneficiaries and” (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; ... and (D) in accordance with the documents and instruments governing the plan 29 U.S.C. § 1104(a)(1). In this context, prudence “is measured according to the objective prudent person standard developed in the common law of trusts.” Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir.) (internal quotation marks omitted), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Thus, “[t]he fiduciary obligations of the trustees to the participants and beneficiaries of [an ERISA] plan are those of trustees of an express trust— the highest known to the law.” Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). ERISA § 406(b)(1) further provides that “[a] fiduciary with respect to a plan shall not — (1) deal with the assets of the plan in his own interest or for his own account.” 29 U.S.C. § 1106(b)(1). In the instant case, as noted, the district court found that Scrufari did not breach his fiduciary duties under ERISA §§ 404(a)(1) or 406(b)(1) by “taking regular salary increases without express Trustee approval” because “the Trustees knew, or in the exercise of their fiduciary duties should have known, that ... Scrufari was being compensated at the same rate as Sanoian.” LaScala I, 330 F.Supp.2d. at 251-52 (finding no breach of ERISA § 404(a)(1)); see also id. at 254 (finding no breach of ERISA § 406(b)(1)). But the fact that the trustees knew, or should have" }, { "docid": "8739577", "title": "", "text": "and returned the form entitled Initial Application for Disability Benefits. A, The Duty to Inform ERISA imposes high standards of fiduciary duty upon administrators of an ERISA plan. See 29 U.S.C. § 1104(a)(1); Kuper v. Iovenko, 66 F.3d 1447, 1458 (6th Cir.1995). As we have previously explained, ERISA’s fiduciary duty encompasses three components. See Berlin v. Michigan Bell Telephone Co., 858 F.2d 1154, 1162 (6th Cir.1988). The first is a “duty of loyalty” which requires that “all decisions regarding an ERISA plan ‘must be made with an eye single to the interests of the participants and beneficiaries.’ ” Id. (quoting Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.1982)); accord 29 U.S.C. § 1104(a)(1) (requiring a plan fiduciary to “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries”). Second, ERISA imposes a “prudent person” fiduciary obligation, which is codified in the requirement that a plan fiduciary exercise his duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man [sic] acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B); accord Berlin, 858 F.2d at 1162. The prudent person standard, in combination with the duty of loyalty, “imposes an unwavering duty on an ERISA trustee to make decisions with single-minded devotion to a plan’s participants and beneficiaries and, in so doing, to act as a prudent person would act in a similar situation.” Berlin, 858 F.2d at 1162 (quoting Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir.1984)). Finally, ERISA requires that a fiduciary “act ‘for the exclusive purpose’ of providing benefits to plan beneficiaries.” Id. (quoting Donovan, 680 F.2d at 271). Although the United States Supreme Court has expressly declined to reach the question of whether ERISA imposes a duty on fiduciaries to disclose truthful information on their own initiative, or in response to employee inquiries, see Varity Corp. v. Howe, 516 U.S. 489, 506, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), we have previously held" }, { "docid": "19580509", "title": "", "text": "that employees will not be left empty-handed once employers have guaranteed them certain benefits.\" Lockheed Corp. v. Spink , 517 U.S. 882, 887, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). One such provision prohibits the fiduciary of any ERISA plan from causing a \"sale or exchange ... of any property between the plan and a party in interest.\" 29 U.S.C. § 1106(a)(1)(A). Absent a statutory exception, this provision would ban ESOPs because their creation necessarily requires the ESOP to purchase stock from its sponsoring employer, which is a party in interest. Congress, however, has carved out an exception to this prohibition to permit the creation of an ESOP if the stock purchase meets certain conditions. See 29 U.S.C. § 1108(e). To protect employees from losing the value of their earned retirement savings, the exception to the ERISA ban on party-in-interest transactions requires that an ESOP pay no more than \"adequate consideration\" for the employer's stock. Id. § 1108(e)(1). If an employer's \"stock was not worth what the ESOP paid for it,\" then the ESOP paid more than adequate consideration and \"the ESOP and its participants suffered a loss under ERISA.\" See Reich , 990 F.Supp. at 961. ERISA does not define what constitutes \"adequate consideration\" under the § 1108(e) exception; the Department of Labor (DOL) has proposed, but never enacted, regulations doing so. Although courts look to these regulations for guidance, the focus of the adequate-consideration inquiry rests on the conduct of a fiduciary, as judged by ERISA's \"prudent man\" standard of care. See Perez v. Bruister , 823 F.3d 250, 263 (5th Cir. 2016) ; Henry III , 445 F.3d at 619 ; Chao , 285 F.3d at 437 ; Howard v. Shay , 100 F.3d 1484, 1489 (9th Cir. 1996). Under this standard, \"ESOP fiduciaries are subject to the duty of prudence just as other ERISA fiduciaries are.\" Fifth Third Bancorp v. Dudenhoeffer , 573 U.S. 409, 134 S.Ct. 2459, 2467, 189 L.Ed.2d 457 (2014). Thus an ESOP fiduciary, like any other ERISA fiduciary, must \"discharge his duties ... with the care, skill, prudence, and diligence under the" }, { "docid": "16139554", "title": "", "text": "exchange ... of any property between the plan and a party in interest.” ERISA § 406(a)(1)(A), 29 U.S.C. § 1106(a)(1)(A). The sale of BAI stock from BFLLC to the ESOP was such a transaction, but the prohibited transaction rule does not apply if the sale “is for adequate consideration.” ERISA § 408(e)(1), 29 U.S.C. § 1108(e)(1). This means that “[a]n ESOP may acquire employer securities in circumstances that would otherwise violate Section 406 if the purchase is made for ‘adequate consideration.’ ” Donovan, 716 F.2d at 1465. The fiduciaries have the burden to prove this affirmative defense. Id. at 1467-68; id. at 1467 n. 27. Where, as here, the subject security has no generally recognized market, ERISA defines “adequate consideration” as “the fair market value of the asset as determined in good faith by the trustee or named fiduciary pursuant to the terms of the plan and in accordance with regulations promulgated by the Secretary.” ERISA § 3(18), 29 U.S.C. § 1002(18). This court holds that “ESOP fiduciaries will carry their burden to prove that adequate consideration was paid by showing that they arrived at their determi nation of fair market value by way of a prudent investigation in the circumstances then prevailing.” Donovan, 716 F.2d at 1467-68 (footnotes omitted). This requirement must be interpreted, “so as to give effect to the Section 404 duties” applicable to fiduciaries, in particular the duty of care embodied by the statutory “prudent man rule.” Id. at 1467; see ERISA § 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B) (“[A] fiduciary shall discharge his duties with respect to a plan .... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.”). Thus, in this circuit, the ERISA § 408(e) adequate consideration exemption “is expressly focused upon the conduct of the fiduciaries” and is “read in light of the overriding duties” in ERISA § 404, particularly the duty of care. Donovan, 716 F.2d at 1467 (emphasis" }, { "docid": "16979550", "title": "", "text": "acting in [a] like capacity.’ ” Id. (quoting 29 U.S.C. § 1104(a)(1)(B)). When the fiduciary’s conduct fails to meet this standard, and the plaintiff has made a prima facie case of loss, we next inquire whether the fiduciary’s imprudent conduct caused the loss. For “[e]ven if a trustee failed to conduct an investigation before making a decision,” and a loss occurred, the trustee “is insulated from liability ... if a hypothetical prudent fiduciary would have made the same decision anyway.” Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.3d 210, 218 (4th Cir.2011) (quoting Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir.1994)). ERISA’s fiduciary duties “draw much of their content from the common law of trusts, the law that governed most benefit plans before ERISA’s enactment.” DiFelice, 497 F.3d at 417 (quoting Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). Thus, in interpreting ERISA, the common law of trusts informs a court’s analysis. Id. “[TJrust law does not tell the entire story,” however, because “ERISA’s standards and procedural protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection.” Varity Corp., 516 U.S. at 497, 116 S.Ct. 1065. Therefore, courts must be mindful that, in “developing] a federal common law of rights and obligations under ERISA,” Congress “ex-pedís] that” courts “will interpret th[e] prudent man rule (and the other fiduciary duties) bearing in mind the special nature and purpose of employee benefit plans.” Id. (internal citations and quotation marks omitted). On appeal, Tatum argues that, although the district court correctly determined that RJR breached its duty of procedural prudence and so bore the burden of proving that its breach did not cause the Plan’s loss, the court applied the wrong standard for determining loss causation. He contends that the court incorrectly considered whether a reasonable fiduciary, after conducting a proper investigation, could have sold the Nabisco Funds at the same time and in the same manner, as opposed to whether a reasonable fiduciary would have done so. In response, RJR contends" }, { "docid": "2477635", "title": "", "text": "beneficiaries, 29 U.S.C. § 1104(a)(1), and must act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). These duties are the “highest known to the law.” Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). To enforce them, the court focuses not only on the merits of the transaction, but also on the thoroughness of the investigation into the merits of the transaction. Donovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir.1983); Donovan v. Maz propriate methods to investigate the merits of the investment and to structure the investment”). In addition to imposing duties of loyalty and care, ERISA explicitly prohibits a fiduciary from engaging in self-dealing transactions: “A fiduciary with respect to a plan shall not ... (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.” 29 U.S.C. § 1106(b). ERISA creates an exception to this prohibition, however, by permitting “the acquisition or sale by a plan of qualifying employer securities ... (1) if such acquisition [or] sale ... is for adequate consideration.” 29 U.S.C. § 1108(e). Like the inquiry into whether a fiduciary acted with loyalty and care, the inquiry into whether the ESOP received adequate consideration focuses on the thoroughness of the fiduciary’s investigation. Cunningham, 716 F.2d at 1467-68. A fiduciary who engages in a self-dealing transaction' pursuant to 29 U.S.C. § 1108(e) has the burden of proving that he fulfilled his duties of care and loyalty and that the ESOP received adequate consider- - ation. Id. at 1467-68; see also Marshall v. Snyder, 572 F.2d 894, 900 (2d Cir.1978). This burden is a heavy one. When it is “possible to question the" }, { "docid": "22304300", "title": "", "text": "fiduciaries have certain obligations to participants in the plan. Specifically, 29 U.S.C. § 1104(a)(1), which governs fiduciary duties, provides in relevant part: [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.... The above fiduciary requirements imposed under ERISA have been delineated as having three components. See Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). The first is referred to as the “duty of loyalty,” and is codified in the requirement that “each fiduciary of a plan must act solely in the interests of the plan’s participants and benefi-ciaries_” H.R.Conf.Rep. No. 1280, supra, at 5083. Pursuant to a fiduciary’s duty of loyalty, all decisions regarding an ERISA plan “must be made with an eye single to the interests of the participants and beneficiaries.” Bierwirth, 680 F.2d at 271. The second obligation imposed under ERISA is known as the “prudent man” fiduciary obligation. This stems from the language quoted above requiring a plan fiduciary to act with the care, skill, prudence, and diligence that a prudent man acting in a like capacity would use in conducting an enterprise of like character. The prudent man standard, combined with the duty of loyalty imposes an unwavering duty on an ERISA trustee to make decisions with single-minded devotion to a plan’s participants and beneficiaries and, in so doing, to act as a prudent person would act in a similar situation. These familiar principles evolved from the common law of trusts that Congress codified and made applicable to ERISA trustees. Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir.1984). Finally, an ERISA fiduciary must act" }, { "docid": "22864849", "title": "", "text": "includes a comprehensive scheme of both general and specific provisions regulating the conduct of fiduciaries. The Secretary has charged the appellees with violating the general fiduciary responsibility standards of ERISA Section 404 as well as the specific prohibited transaction rules of Section 406 in consummating the two ESOP transactions. The general duties of fiduciaries are set out in Section 404 of ERISA: [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries an(j_ (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; sjt % H* * Hs sjs (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter. 29 U.S.C. § 1104(a) (1976). As we have observed before, Section 404 imposes upon fiduciaries a duty of loyalty and a duty of care. Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255,1260 (5th Cir.1980). The legislative history of ERISA indicates that Congress intended to incorporate in Section 404 the “core principles of fiduciary conduct” that were developed in the common law of trusts, but with modifications appropriate for employee benefit plans. Also, Congress has exhorted those who must interpret and apply ERI-SA’s fiduciary standards to do so “bearing in mind the special nature and purpose of employee benefit plans.” H.R.Rep. No. 1280, supra, 1974 U.S.Code Cong. & Ad. News at 5083. See Marshall v. Glass/Metal Ass'n. & Glaziers & Glassworkers Pension Plan, 507 F.Supp. 378, 383 (D.Ha.1980). (“[Section 1104] establishes] uniform federal requirements to be interpreted both in the light of the common law of trusts, as well as with a view toward the special nature, purpose, and importance of modern employee benefit plans.”). As a supplement to" } ]

[ { "docid": "23625546", "title": "", "text": "a hearing, the district court granted the motion to discharge counsel, appointed the Federal Public Defender’s Office to represent Henderson, and denied his motion to withdraw the guilty plea. The district court sentenced Henderson to a prison term of fifteen years, the statutory minimum. Henderson timely filed a notice of appeal. Henderson’s appointed counsel filed an An-ders brief, and Henderson filed his own brief pro se. The Government moved to dismiss the appeal for want of jurisdiction on the ground that Henderson had waived his right to appeal. Henderson argues that the district court erred when it denied his motion to withdraw the guilty plea. The motion, Henderson asserts, should have been granted because he was denied adequate assistance of counsel. We must first determine whether Henderson has waived the right to raise such a claim on direct appeal. The right to appeal a criminal conviction is a statutory right, not a constitutional right. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). A defendant may waive statutory rights, including the right to appeal, as part of a plea bargaining agreement. United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). However, we have previously noted, without deciding the issue, that waivers of rights to appeal may not apply to ineffective assistance of counsel claims. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (noting that waiver of postconviction relief in plea agreement may not apply to collateral attacks based on ineffective assistance of counsel). Without deciding the issue, the Ninth Circuit has expressed similar sentiments. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) (“We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel’s erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain.”). On facts similar to Henderson’s case, the Fourth Circuit held that a defendant’s waiver of appeal in a plea agreement does not preclude an appeal from the denial of a motion to withdraw the plea, where the motion to withdraw is" } ]

[ { "docid": "23617006", "title": "", "text": "“the constitutional provisions as to the place of trial relate to venue” and could be waived. Id. The Government’s argument that Rule 20 is jurisdictional simply cannot be squared with Hilderbrand. See also Wachovia Bank v. Schmidt, 546 U.S. 303, 316, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006) (“[V]enue and subject-matter jurisdiction are not concepts of the same order.”); Jackson v. United States, 489 F.2d 695, 696 (1st Cir. 1974) (rejecting an argument “that Rule 20 is a jurisdictional rule” and holding “Rule 20 is a venue-waiving provision”). So the Government’s challenge to our jurisdiction over appeals 11-1225 and 11-1226 fails. B. We now turn to the effect of Defendant’s guilty plea on our jurisdiction. The parties have not raised the issue, but “we have an independent duty to examine our own jurisdiction.” Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001). Thus, we raise the issue sua sponte. We have frequently said that “a voluntary and unconditional guilty plea waives all non-jurisdictional defenses.” United States v. Salazar, 323 F.3d 852, 856 (10th Cir.2003); see also United States v. Nooner, 565 F.2d 633, 634 (10th Cir.1977) (“This Court has itself on many occasions held that a voluntary plea of guilty is a waiver of all non-jurisdictional defenses.”). This statement is technically incorrect because a guilty plea does not waive all non-jurisdictional claims. A narrow exception exists for two constitutional claims — due process claims for vindictive prosecution and double jeopardy claims that are evident from the face of the indictment. Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam), as limited by United States v. Broce, 488 U.S. 563, 575-76,109 S.Ct. 757,102 L.Ed.2d 927 (1989). This caveat will gain more importance below. For now, the salient point is that Defendant pleaded guilty unconditionally, and he does not challenge his plea’s voluntariness. So if the arguments Defendant now raises are non-jurisdictional and do not fit the narrow exception for certain constitutional claims, he" }, { "docid": "2330789", "title": "", "text": "U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). The Court best stated the principle behind this rule in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973): [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608. More recently, the Court acknowledged the vitality of the principle set forth by the Brady trilogy: “[Wjhen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989); see Borre v. United States, 940 F.2d 215, 217 (7th Cir.1991) (“ ‘Once a plea of guilty has been entered, non-jurisdictional challenges to the constitutionality of the conviction are waived and only the knowing and voluntary nature of the plea may be attacked.’ ” (quoting United States v. Brown, 870 F.2d 1354, 1358 (7th Cir.1989))). The Court has recognized a narrow exception to the Brady rule where a court has no power to enter the conviction. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge, Mr. Perry, who had been convicted by a state court sitting without a jury, pursuant to state procedural law, asserted his right to de novo review of the conviction. In response, the state’s attorney indicted him on a felony count for the same offense. Mr. Perry pleaded guilty to the felony, but later" }, { "docid": "16660573", "title": "", "text": "cartel, participated in the murders of Walker and Radelat for the purpose of maintaining and increasing his position in the drug trafficking activities of the cartel. Vasquez-Velasco was tried with three co-defendants: Juan Ramon Matta-Ballesteros, Ruben Zuno-Arce, and Juan Jose Bernabe-Ramirez. His codefendants were charged in Counts Three through Eight of the Indictment with violent acts related to the kidnapping and murder of Camarena and Zavala, but not with the murders of Walker or Rade-lat. Vasquez-Velasco was not charged with participating in the murders of Camarena and Zavala. Vasquez-Velasco was convicted under both counts on August 6, 1990. On May 23, 1991 he was sentenced to two consecutive terms of life imprisonment. He timely appealed to this court. The district court exercised its jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. DISCUSSION I. Extraterritorial application of 18 U.S.C. § 1959 Vasquez-Velasco raises four issues on appeal. First, he argues that the district court erred in ruling that § 1959 applies extraterritorially. We review de novo a dis trict court’s assumption of jurisdiction. United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992); United States v. Layton, 865 F.2d 1388, 1394 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989). A. Extraterritoriality “Generally there is no constitutional bar to the extraterritorial application of United States penal laws.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993); Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 106 S.Ct. 1403, 84 L.Ed.2d 790 (1986). To determine whether a given statute should have extraterritorial application in a specific case, courts look to congressional intent. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 40, 67 L.Ed. 149 (1922); Felix-Gutierrez, 940 F.2d at 1204; Chua Han Mow, 730 F.2d at 1311. When faced with a criminal statute such as § 1959, we may infer that extraterritorial application is" }, { "docid": "13303705", "title": "", "text": "his underlying constitutional claim does not challenge his guilty plea. See id. at 624, 118 S.Ct. 1604 (if Bousley shows on remand he did not use a firearm as defined in Bailey, he will be entitled to consideration of defaulted unintelligent plea claim considered on merits); Hohn v. United States, 193 F.3d 921, 922 (8th Cir.1999). Once the judgment of conviction on a guilty plea becomes final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. See United States v. Broce, 488 U.S. 563, 574-75, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); see also Dejan v. United States, 208 F.3d 682, 685 (8th Cir.2000) (defendant who pleaded guilty was required to show guilty plea was constitutionally infirm to obtain habeas relief). To be voluntary, the plea must be knowingly and intelligently made. A plea is not “intelligent” unless the defendant first receives “real notice of the true nature of the charge against him,” and the defendant, his attorney, and the court correctly understood the essential elements of the crime. See Bousley, 523 U.S. at 618, 118 S.Ct. 1604. But Morgan does not assert his guilty plea was unintelligent, or constitutionally infirm in any other way. Moreover, [a]s a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred before the entry of the guilty plea.’ ” United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir. 1994) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and that “the" }, { "docid": "22219794", "title": "", "text": "of law because the district court issued several pre-plea rulings that violated his Fifth and Sixth Amendment rights to obtain counsel of his choice; to have personal, pretrial access to classified, exculpatory evidence; to communicate with his counsel about this evidence; to effectively proceed pro se; to be present during critical stages of the proceedings; and to have compulsory process to present the ECWs at trial. These claims, all of which preceded his guilty plea, are not cognizable on appeal. ‘When a defendant pleads guilty, he waives all nonjurisdietional defects in the proceedings conducted prior to entry of the plea.” United States v. Bundy, 392 F.3d 641, 644 (4th Cir.2004). The “guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Thus, the defendant who has pled guilty “has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea,” Bundy, 392 F.3d at 644-45, or the government’s “power to bring any indictment at all,” Broce, 488 U.S. at 575, 109 S.Ct. 757; see United States v. Bluso, 519 F.2d 473, 474 (4th Cir.1975) (“A guilty plea is normally understood as a lid on the box, whatever is in it, not a platform from which to explore, further possibilities.”); see also Blackledge v. Perry, 417 U.S. 21, 29-30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (“[WJhen a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Rather, a person complaining of such antecedent constitutional violations is limited ... to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases.” (internal quotation marks and citations omitted)). Relying on United States v. Hernandez, 203 F.3d 614 (9th Cir.2000), Moussaoui maintains that his alleged constitutional violations rendered his guilty plea involuntary. In Hernandez, the" }, { "docid": "16660574", "title": "", "text": "court’s assumption of jurisdiction. United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992); United States v. Layton, 865 F.2d 1388, 1394 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989). A. Extraterritoriality “Generally there is no constitutional bar to the extraterritorial application of United States penal laws.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993); Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 106 S.Ct. 1403, 84 L.Ed.2d 790 (1986). To determine whether a given statute should have extraterritorial application in a specific case, courts look to congressional intent. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 40, 67 L.Ed. 149 (1922); Felix-Gutierrez, 940 F.2d at 1204; Chua Han Mow, 730 F.2d at 1311. When faced with a criminal statute such as § 1959, we may infer that extraterritorial application is appropriate from ‘“the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.’” Felix-Gutierrez, 940 F.2d at 1204 (quoting United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990) (quotations omitted)). Where “[t]he locus of the conduct is not relevant to the end sought by the enactment” of the statute, and the statute prohibits conduct that obstructs the functioning of the United States government, it is reasonable to infer congressional intent to reach crimes committed abroad. United States v. Cotten, 471 F.2d 744, 751 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973) (statute that proscribes theft of government property is not logically dependent on the locality of violation for jurisdiction) (emphasis in original); see also Felix-Gutierrez, 940 F.2d at 1204. In determining whether a statute applies extraterritorially, we also presume that Congress does not intend to violate principles of international law. Thus, in the absence of an explicit Congressional directive, courts" }, { "docid": "2589376", "title": "", "text": "by the record. Asserting that Boykin should be applied retroactively, Hendron contends that his guilty plea was invalid because the record does not affirmatively show the plea was given intelligently and voluntarily. This court has held that Boykin should not be applied retroactively. See, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970). In Scranton, we said: Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir., 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). The Fourth, Fifth and Tenth Circuits have likewise held (in post-Boykin cases) that Boykin does not require the specific judicial colloquy mandated by Rule 11 of the Federal Rules of Criminal Procedure. Wade v. Coiner, 468 F.2d 1059 (4th Cir. 1972); McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974); Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973). 514 F.2d at 101. Accordingly, we agree with the District Court that Hendron’s plea was given intelligently and voluntarily under pre-Boykin standards; consequently, it is unnecessary to consider the other allegations of constitutional deprecations. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Tollet v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The judgment of the District Court is affirmed." }, { "docid": "11198452", "title": "", "text": "United States v. Hersh, 297 F.3d 1233, 1245-46 (11th Cir.2002)). Accordingly “the prohibited conduct [in § 2423(b) ] occurred in the United States[.]” Id. Similarly, in the instant case, Defendant is charged in Count Two of the Indictment with travelling from the United States to Mexico with the intent to commit an illicit sexual act. Indictment 2. Accordingly, no discussion of extraterritorial jurisdiction is necessary for this Count. The reasoning in Bredimus regarding § 2423(b) also appears to apply a fortiori to Defendant’s charge under § 2423(a), given that Defendant is charged with travelling from the United States to Mexico with a similar criminal intent. Compare Bredimus, 352 F.3d at 210 with Indictment 1. The criminal act in Count One also took place in the United States, and there is no need to consider the application extra-territorial jurisdiction. The foregoing analysis therefore applies primarily to Count Three, namely Defendant’s alleged violation of § 2423(c), because the criminal act — illicit sexual conduct with a minor — allegedly took place extraterritorially. The Court notes, however, that the analysis can apply similarly to any extraterritorial elements remaining in Counts One and Two. 1. Section 2423 and Congressional intent “Generally, there is no constitutional bar to the extraterritorial application of the United States penal laws.” United, States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991) (citing Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); United States v. King, 552 F.2d 833, 850 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977)). It is further undisputed that “the legislative authority of the United States over its citizens extends to conduct by Americans ... even within the territory of other sovereigns.” United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir.1977) (citing Steele v. Bulova Watch Co., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952); Foley Bros. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949); Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76" }, { "docid": "16455376", "title": "", "text": "willing to surrender these benefits by seeking to withdraw his plea and “taking his chances” on the outcome of his IAD motion. By pleading guilty in this way, defendant waived his right to have the Article IV(e) claim considered. Defendant contends the court lacked subject matter jurisdiction because the IAD provides the indictment “shall not be of any further force or effect” and entitles a de fendant to dismissal “with prejudice” when Article IV(e) is violated. The defendant is correct that errors and defenses which go to the jurisdiction of the court to accept a guilty plea may be raised even after the plea has been entered. See e. g., Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed,2d 628 (1974); United States v. Hawthorne, 532 F.2d 318, 321-2 (3d Cir. 1976), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); United States v. Loschiavo, 531 F.2d 659, 662-3 (2d Cir. 1976). However, the nature of defendant’s rights under the IAD disposes of this contention. The Supreme Court has consistently held that even deprivation of constitutional rights occurring prior to the entry of a guilty plea may not be asserted in subsequent proceedings. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). The IAD, on the other hand, constitutes nothing more than a set of procedural rules. The statutory right to dismissal due to an administrative violation of these rules is therefore not “fundamental”, even though its impact on a defendant may be great. Cf. Blackledge v. Perry, supra, at 30, 94 S.Ct. 2098. In our view, whether a claim is “jurisdictional” or not depends on the source and importance of the right asserted as well as its impact. We therefore hold that the violation of a statutory provision such as Article IV(e) is not sufficiently important to deny a court jurisdiction to entertain a" }, { "docid": "1644996", "title": "", "text": "Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Barnes v. Lynaugh, 817 F.2d 336, 338 (5th Cir.1987). Among claims not barred are those that challenge “the very power of the State to bring the defendant into court to answer the charge against him,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and those that challenge the validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Haring v. Prosise, 462 U.S. 306, 320, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Tollett, 411 U.S. at 267, 93 S.Ct. 1602; Barnes, 817 F.2d at 338. A plea not voluntarily and intelligently made has been obtained in violation of due process and is void. See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Matthew’s claim does not challenge the power of the State to bring him into court. Thus, the only means available for challenging his conviction is to claim that his plea is invalid, i.e., it was not knowingly and voluntarily entered into. See Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) (“It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.”). We must therefore determine whether a state court in October 1994 would have felt compelled to rule that Matthew’s due process rights were violated because of the failure to disclose the CPS documents, whether or not that failure amounts to a Brady violation. We again find that, given the legal landscape in existence at the time of Matthew’s conviction, a state court would not have felt compelled to hold in Matthew’s favor, and thus that a new rule would be required. The test for determining a guilty plea’s validity is “ ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” Hill, 474 U.S. at 56, 106 S.Ct." }, { "docid": "13303706", "title": "", "text": "correctly understood the essential elements of the crime. See Bousley, 523 U.S. at 618, 118 S.Ct. 1604. But Morgan does not assert his guilty plea was unintelligent, or constitutionally infirm in any other way. Moreover, [a]s a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred before the entry of the guilty plea.’ ” United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir. 1994) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v. New York, 423 U.S. 61, 62-63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). We have often interpreted these Supreme Court cases to foreclose claims that raise “nonjurisdictional” issues and to permit only claims that question the trial court’s “jurisdiction.” Weisberg v. State of Minnesota, 29 F.3d 1271, 1279-80 (8th Cir.1994). A claim that a statute is facially unconstitutional falls within the exception. See Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir.1982) (holding guilty plea does not foreclose attack on constitutionality of criminal statute under which defendant was charged — defendant claimed statute was vague on its face); United States v. Johnston, 199 F.3d 1015, 1019 n. 3 (9th Cir.1999). No court has applied the exception to a claim, like Morgan’s, that a statute is unconstitutional as applied. See Johnston, 199 F.3d at 1019 n. 3. Nor does Morgan contend his case falls within the exception. We conclude the district court properly rejected Morgan’s § 2255 motion as procedurally" }, { "docid": "16237041", "title": "", "text": "United States v. Lucia, 416 F.2d 920 (5th Cir.1969)), cert. denied, 402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971). Similarly, courts have permitted guilty pleas to be withdrawn where the defendant pleaded guilty to something that is not a crime. In United States v. Barboa, 777 F.2d 1420 (10th Cir.1985), a defendant brought a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging inter alia that his guilty plea to a conspiracy charge was invalid because his alleged co-conspirator was actually a government informant. The court held that no indictable conspiracy existed where the only parties were the defendant and government agents or informants, and that the district court had abused its discretion in denying an evidentiary hearing to determine whether the person with whom the defendant purportedly conspired was actually a government agent. The court, moreover, observed that “[i]f Barboa pled guilty to something which was not a crime, he is not now precluded from raising this jurisdictional defect, which goes ‘to the very power of the State to bring the defendant into court to answer the charge brought against him.’ ” Id. at 1423 n. 3 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974). See also United States v. Ruizdel Valle, 8 F.3d 98 (1st Cir.1993) (holding that defendant should have been allowed to withdraw guilty plea post-sentence in part on basis that the same district judge ruled that similar facts in co-defendant’s case did not constitute crime). We note, moreover, that every circuit court to have considered whether a defendant may withdraw his plea to a violation of 18 U.S.C. § 924(c)(1) in light of Bailey’s change in the law has addressed this issue on the merits. See United States v. Garcia, 1996 WL 128123 (8th Cir. March 25,1996) (unpublished disposition) (summarily vacating guilty plea on direct appeal on basis of Bailey); United States v. Keebler, 78 F.3d 598 (10th Cir.1996) (table), 1996 WL 84104 (10th Cir. Feb. 27, 1996) (remanding to trial court for reconsideration of plea in light of Bailey); United States" }, { "docid": "6270201", "title": "", "text": "wherein jurisdiction is based on the place where the offense is committed; National, wherein jurisdiction is based on the nationality of the offender; Protective, wherein jurisdiction is based on whether the national interest is injured; Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity. Passive personal, wherein jurisdiction is based on the nationality of the victim. These general principles were developed in 1935 by a Harvard Research Project in an effort to codify principles of jurisdiction under international law. See Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am.J.Int’l L. 435, 445 (Supp.1935). Most courts, including our Court of Appeals, have adopted the Harvard Research designations on jurisdiction. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781, n. 7 (D.C.Cir.1984) cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); Chua Han Mow. v. United States, 730 F.2d 1308, 1311 (9th Cir.1984) cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); Rivard v. United States, 375 F.2d 882, 885 (5th Cir.) cert. denied, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181 (1967). Several reputable treatises have also recognized the principles: L. Henkin, International Law Cases and Materials 447 (1980); A. D’Amato, International Law and World Order 564 (1980). The Universal and the Passive Personal principle appear to offer potential bases for asserting jurisdiction over the hostage-taking and aircraft piracy charges against Yunis. However, his counsel argues that the Universal principle is not applicable because neither hostage-taking nor aircraft piracy are heinous crimes encompassed by the doctrine. He urges further, that the United States does not recognize Passive Personal as a legitimate source of jurisdiction. The government flatly disagrees and maintains that jurisdiction is appropriate under both. 1. Universal Principle The Universal principle recognizes that certain offenses are so heinous and so widely condemned that “any state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or" }, { "docid": "17147207", "title": "", "text": "and conscious choice; and provided his client with an understanding of the law in relation to the facts. See Pollinzi v. Estelle, 628 F.2d 417, 419 (5th Cir.1980). In short, Smith failed to show that the advice he received from Johnson during the course of the representation and concerning the guilty plea was not “ ‘within the range of competence demanded of attorneys in criminal cases.’ ” Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Finally, because (as we have already determined) Smith’s guilty plea was voluntarily and knowingly made, he cannot now attack the ineffectiveness of his counsel in any respects other than as the alleged ineffectiveness bears upon counsel’s faulty advice that coerced a guilty plea. In other words, once a guilty plea has been entered, all nonjurisdictional defects in the proceedings against a defendant are waived. Barrientos v. United States, 668 F.2d 838, 842 (5th Cir.1982). This includes all claims of ineffective assistance of counsel, see McMillin v. Beto, 447 F.2d 453, 454 (5th Cir.1971) and Chambers v. Beto, 428 F.2d 791, 792 (5th Cir.1970), except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea, see Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir.1981), cert, denied, 456 U.S. 992,102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982). Thus, because we have already held Smith’s plea to be voluntary, it follows that his claims of ineffectiveness unrelated to the guilty plea are waived — e.g., Johnson’s alleged failure to review the prosecutor’s file to verify laboratory test results that the substances Smith delivered were in fact heroin and cocaine; Johnson’s alleged failure to investigate witnesses and the legality of Smith’s arrest; or any other alleged failure of Johnson to find “holes” in the government’s case against Smith. AFFIRMED." }, { "docid": "23433874", "title": "", "text": "due process principles would absolutely bar the government from involving judicial pro cesses to obtain a conviction....\" United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 368 (1973). Because we recognize that \"government agents may lawfully use methods that are neither appealing nor moral if judged by abstract norms of decency,\" we have interpreted Russell extremely narrowly. Bogart, 783 F.2d at 1436, 1438. Our test is whether the conduct \"shock[s] the conscience.\" Id. (citing, e.g., Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)). The defense is limited to police conduct involving \"unwarranted physical, or perhaps mental, coercion\" or \"those hopefully few cases where the crime is fabricated entirely by the police. . . Bogart, 783 F.2d at 1438; see also United States v. Simpson, 813 F.2d 1462, 1468 (9th Cir.) (government's use of informant who entered into sexual relationship with defendant did not violate due process), cert. denied, - U.S. -, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987). Before we need apply this narrow defense to the facts before us, however, we must address the threshold question of whether Montilla's plea of guilty waived the defense. IH As a general rule, a guilty plea erases claims of constitutional violation arising before the plea. E.g., Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). Montilla relies upon an exception to this general rule. In Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974), the Court held that a meritorious claim of prosecutorial vindictiveness amounting to a due process violation survived a guilty plea, because the claim \"went to the very power of the State to bring the defendant into court. .. .\" The following year, the Court extended Blackledge to a double jeopardy claim. Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975) (per curiam). The dividing line between the majority of constitutional claims waived by a voluntary plea of guilty, and those that challenge the right of the state" }, { "docid": "23388585", "title": "", "text": "(Appellant’s Add. 9.) At sentencing, the district court determined Seay’s offense level to be 23, with a criminal history category III, resulting in a Guidelines sentencing range of 57 to 71 months imprisonment. The district court varied downward significantly and imposed a nine-month sentence. Following the imposition of sentence, Seay filed a notice of appeal. The government moved to dismiss the appeal based on the appeal waiver in Seay’s plea agreement. After considering briefs from both parties, we elected to decide the waiver issue along with the merits of Seay’s appeal, which is now before us. II. Before addressing the merits of Seay’s appeal, we must first decide whether he has waived the right to bring this appeal at all. As a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.’ ” United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir.1994) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed'.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). We have often interpreted these Supreme Court cases to foreclose claims that raise “nonjurisdictional” issues and to permit only claims that question the trial court’s “jurisdiction.” Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir.1994) (alterations in original); see also United States v. Smith, 422 F.3d 715, 724 (8th Cir.2005) (“It is a well-established legal principle that a valid plea of" }, { "docid": "18778732", "title": "", "text": "490 (Tex.Crim.App. 1982) (discussion of Texas enhancement procedure); McGee v. Estelle, 111 F.2d at 451 (Rule 9(a) of Section 2254). . See, e.g., Dinn v. State, 570 S.W.2d 910 (Tex. Crim.App.1978). . Zales, 433 F.2d at 24; Pnce, 436 F.2d at 1071. . 474 F.2d at 1138. . Martinez v. Estelle, 612 F.2d 173, 175 (5th Cir.1980). . 650 F.2d 70 (5th Cir.), modified, 655 F.2d 613 (5th Cir.1981). . Id. at 71. . Id. at 74 (discussing Ex parte Harp, 561 S.W.2d 180 (Tex.Cr.App. 1978)). . Id. n. 10; see also Carter v. Procunier, 755 F.2d 1126 (5th Cir.1985). . Id. at 74. . 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). . 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam). . See supra note 5 and accompanying text. . See supra p. 6892. . Menna, 423 U.S. at 62 n. 2, 96 S.Ct. at 242 n. 2 (emphasis added). . Id., 96 S.Ct. at 242 n. 2 (emphasis added). . Id., 96 S.Ct. at 242 n. 2. . Haring, 462 U.S. 306, 317, 103 S.Ct. at 2368, 2375 (1983). . Id. at 322, 103 S.Ct. at 2377. . 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). . Id. at 320, 103 S.Ct. at 2376. . Id., 103 S.Ct. at 2376 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974)). . Id. at 321, 103 S.Ct. at 2377. . See, e.g., Ex parte Sanders, 588 S.W.2d 383 (Tex.Crim.App.1979); Dinn v. State, 570 S.W.2d 910 (Tex.Crim.App.1978). . Rule 15(b) provides, in pertinent part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” . Vardas v. Estelle, 715 F.2d 206, 208 (5th Cir. 1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); Lowery v. Estelle, 696 F.2d 333, 336 & n. 5 (5th Cir.1983). . See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49" }, { "docid": "1644995", "title": "", "text": "Article 2.01 sets forth the duties of district attorneys. The last sentence of the article, added in 1965, states that “[t]hey shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” The absence in Lewis of any materiality-based limitation on the duty to disclose suggests that the U.S. Constitution was not the basis for the opinion. On the basis of our review of the legal landscape existing in October 1994, we cannot conclude that a state court would have felt compelled to decide that a prosecutor’s failure to disclose exculpatory information prior to entry of a guilty or nolo contendere plea was a Brady violation, or otherwise a violation of the Due Process Clause. We turn next to a consideration of whether a state court would have seen the nondisclosure of which Matthew complains as rendering his plea invalid. 2. An Invalid Plea? It has long been the case that a valid guilty plea bars habeas review of most non-jurisdictional claims alleging antecedent violations of constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Barnes v. Lynaugh, 817 F.2d 336, 338 (5th Cir.1987). Among claims not barred are those that challenge “the very power of the State to bring the defendant into court to answer the charge against him,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and those that challenge the validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Haring v. Prosise, 462 U.S. 306, 320, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Tollett, 411 U.S. at 267, 93 S.Ct. 1602; Barnes, 817 F.2d at 338. A plea not voluntarily and intelligently made has been obtained in violation of due process and is void. See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Matthew’s claim does not challenge the power of the State to bring him into court. Thus, the only means available for challenging his conviction is to claim" }, { "docid": "18778733", "title": "", "text": ". Haring, 462 U.S. 306, 317, 103 S.Ct. at 2368, 2375 (1983). . Id. at 322, 103 S.Ct. at 2377. . 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). . Id. at 320, 103 S.Ct. at 2376. . Id., 103 S.Ct. at 2376 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974)). . Id. at 321, 103 S.Ct. at 2377. . See, e.g., Ex parte Sanders, 588 S.W.2d 383 (Tex.Crim.App.1979); Dinn v. State, 570 S.W.2d 910 (Tex.Crim.App.1978). . Rule 15(b) provides, in pertinent part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” . Vardas v. Estelle, 715 F.2d 206, 208 (5th Cir. 1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); Lowery v. Estelle, 696 F.2d 333, 336 & n. 5 (5th Cir.1983). . See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Volkswagen of America, Inc. v. Robertson, 713 F.2d 1151, 1166 (5th Cir.1983). . 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). . Id. at 242, 89 S.Ct. at 1712. . See Walker v. Maggio, 738 F.2d 714, 715-16 (5th Cir.1984). . 785 F.2d 1283 (5th Cir.1986). . Id. at 1290-91 (discussing Wright v. Craven, 461 F.2d 1109 (9th Cir.1972); Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979); Government of the Virgin Islands v. George, 741 F.2d 643 (3d Cir. 1984)). . Id. at 1291. . Id., cf. Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446 (1962). . See Sylvester v. State, 615 S.W.2d 734 (Tex. Crim.App.1981); Harvey v. State, 611 S.W.2d 108 (Tex.Crim.App.), cert. denied, 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981). . Walker v. Maggio, 738 F.2d at 716 (quoting LeBlanc v. Henderson, 478 F.2d 481, 483-84 (5th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974))." }, { "docid": "23433875", "title": "", "text": "narrow defense to the facts before us, however, we must address the threshold question of whether Montilla's plea of guilty waived the defense. IH As a general rule, a guilty plea erases claims of constitutional violation arising before the plea. E.g., Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). Montilla relies upon an exception to this general rule. In Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974), the Court held that a meritorious claim of prosecutorial vindictiveness amounting to a due process violation survived a guilty plea, because the claim \"went to the very power of the State to bring the defendant into court. .. .\" The following year, the Court extended Blackledge to a double jeopardy claim. Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975) (per curiam). The dividing line between the majority of constitutional claims waived by a voluntary plea of guilty, and those that challenge the right of the state to hale the defendant into court, and thus survive the plea under Blackledge, has not been crystal-clear. See generally W. LaFave & J. Israel, Criminal Procedure § 20.6 (1984). We have called successful Black-ledge challenges \"jurisdictional\" claims. United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed,2d 80 (1979). Claims that \"the applicable statute is unconstitutional or that the indictment fails to state an offense\" are jurisdictional claims not waived by the guilty plea. Id. We have not extended Blackledge and Menna beyond the specific claims alleged in those cases. See Marrow v. United States, 772 F.2d 525, 529 (9th Cir.1985). The Supreme Court recently clarified the Blackledge-Menna doctrine in a way that forecloses Montilla's reliance upon it. Emphasizing Menna `s holding that \"a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the State may not constitutionally prosecute,\" the Court limited the doctrine to cases in which the judge could determine at" } ]

[ { "docid": "16201049", "title": "", "text": "public necessity”, in the Court’s words in Cramp & Sons v. Curtis Turbine Co., 246 U.S. 28, 41, 38 S.Ct. 271, 274, 62 L.Ed. 560 (1917), is raised by Shat-R-Shield. The original legislative premise was to assure a remedy to patentees. Act of June 25, 1910, ch. 423, 36 Stat. 851 (amended 1918); H.R.Rep. No. 1288, 61st Cong., 2d Sess., at 1 (1910); Cramp, supra, at 37, 41, 38 S.Ct. at 272, 274. Congress did not discuss the possible additional cost to the government, as would flow, for example, from the government’s purchase of the lamps from Trojan while paying “reasonable and entire compensation” to Shat-R-Shield. It is clear from the legislative history that Section 1498(a) was not enacted to enable cheaper procurement. See the statement of the sponsor that the 1918 amendment was “necessary and urgent” as it would “expedite the manufacture of war materials.” Leesona, 599 F.2d at 967 (quoting 56 Cong.Rec. 7961 (1918) (remarks of Rep. Padgett)). Further, even in 1910 Congress was concerned about the effect on inventors and innovation of such takings. Thus, until the issue is presented for adjudication it is inappropriate to imply, even in dictum, that Section 1498(a) is of unlimited scope. The question before this panel is simply answered in the 1918 amendment, enacted for the express purpose of insulating from suit those who supply such infringing goods to the government, by providing that “entire” compensation shall come from the government. Naval Appropriations Act of July 1, 1918, ch. 114, 40 Stat. 705. This legislative purpose has been upheld in, e.g., Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 345, 48 S.Ct. 194, 197-98, 72 L.Ed. 303 (1928); W.L. Gore & Associates, Inc. v. Garlock, Inc., 842 F.2d 1275, 1282, 6 USPQ2d 1277, 1283 (Fed.Cir.1988). Applying Section 1498(a) in accordance with its terms, I would affirm the district court’s refusal to enjoin Trojan from offering the infringing lamps to the Department of Defense." } ]

[ { "docid": "22126603", "title": "", "text": "decisions even addressed whether section 1498(a) was a jurisdictional statute. Accordingly, those cases cannot control here. Because Appellants have failed to provide any persuasive authority contrary to Sperry, we conclude that the district court properly considered section 1498(a) as providing an affirmative defense that Paramount failed to timely raise. We therefore affirm the district court’s denial of the Motion to Alter or Amend the Judgment. Y. Damages We review trial court’s determinations of damages under an abuse of discretion standard. TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 898, 229 USPQ 525, 526 (Fed.Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 183, 93 L.Ed.2d 117 (1986). “ ‘Abuse of discretion may be established by showing that the district court either made an error of law, or a clear error of judgment, or made findings which were clearly erroneous.’ ” Id. (quoting Seattle Box Co. v. Industrial Crating and Packing, Inc., 756 F.2d 1574, 1581, 225 USPQ 357, 363 (Fed.Cir.1985)). A. Lost Profits Manville presented evidence that it lost profits of $2,414,159.37 due to Paramount’s infringing sales. This figure was derived from calculations by John Wieder, Manville’s sales negotiator. Wieder estimated the prices that Manville would have offered on several contract solicitations that Paramount was awarded, and for which Paramount used its infringing device. These prices, however, were estimates on what prices Manville would have offered had Paramount not been in the market with its infringing device. Wieder testified that these prices were based on his experiences with the same type of jobs prior to Paramount entering the market, as well as input from the salesmen involved on those contract negotiations. However, no supporting documentation was provided to explain the method or basis of estimating the prices for each of the contracts in such a hypothetical market. From these price estimates, Wieder deducted the direct costs that would have been incurred to derive the lost profits from each contract. The sum of these lost profits made up the $2,414,159.37 Manville sought. The district court reduced that figure by five percent to cover sales commissions Manville would have had to pay," }, { "docid": "1400359", "title": "", "text": "section 1498(a) does not deprive a district court of jurisdiction. Sperry, 271 U.S. at 235-36, 46 S.Ct. 505; Manville, 917 F.2d at 554, 16 USPQ2d at 1595-96. Although the Defendants invite us to follow obsolete rules adopted by other circuits, see, e.g., Croll-Reynolds, Co. v. Perini-Leavell-Jones-Vinell, 399 F.2d 913, 915, 159 USPQ 518, 519-20 (5th Cir.1968) (finding that section 1498(a) creates a jurisdictional bar), we are bound by the holdings of the Supreme Court and by our own precedent in substantive matters, such as patent law, committed to our exclusive jurisdiction. See Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 855-56, 20 USPQ2d 1252, 1257-58 (Fed.Cir.1991). We therefore hold that the district court has jurisdiction over this matter. Since section 1498(a) is an affirmative defense rather than a jurisdictional bar, the district court cannot dismiss this action under Federal Rule of Civil Procedure 12(b)(1). If appropriate, a defense arising under section 1498(a) should be resolved by summary judgment under Rule 56 rather than a motion to dismiss under Rule 12. See Crater, 255 F.3d at 1364, 59 USPQ2d at 1046 (explaining that “dismissal of a lawsuit against a private party pursuant to § 1498(a) is a dismissal because of the successful assertion of an affirmative defense rather than a dismissal because of the district court’s lack of subject matter jurisdiction over the patent infringement claim”) (citations omitted). Consequently, we vacate the order dismissing the complaint for lack of jurisdiction. B Although the dismissal was legally incorrect, BNFL and Duratek argue that the district court’s ruling may nonetheless be harmless error if there is sufficient evidence in the record to grant summary judgment in their favor on a section 1498(a) affirmative defense. To support this argument, they cite Crater, 255 F.3d at 1369, 59 USPQ2d at 1049 (affirming dismissal of infringement claim because, although the district court improperly dismissed the case, summary judgment on such affirmative defense was proper under the facts of that case). The procedural posture in Crater, however, differs from the present case. Crater involved a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to" }, { "docid": "22126610", "title": "", "text": "defendant’s motion for summary judgment where the infringing use clearly had been solely for the government. We noted that \"[t]he effect of the [district] court’s action was to dismiss the complaint for lack of jurisdiction.” Id. at 1058 n. 1, 1 USPQ2d at 1071 n. 1. Despite this statement, we affirmed. This statement is merely dictum, and in any event does not mean that the district court actually lacked jurisdiction, but only that the outcome of the case is the same as if it had lacked jurisdiction. (If the district court had lacked jurisdiction, we would not have affirmed its grant of summary judgment, but would have vacated the judgment of the district court and remanded with instructions to dismiss for lack of jurisdiction.) Moreover, read in context, TVI Energy’s dictum cannot be said to indicate that the statute is jurisdictional. Although the alleged infringer argued that the statute both afforded it immunity and deprived the district court of jurisdiction, we treated only the former contention: \"The sole issue before us is whether a private party which infringes another's patent during Government bidding activities such as those present here is immune under 28 U.S.C. § 1498 from a District Court infringement action for that test demonstration.” Id. at 1059, 1 USPQ2d at 1072 (emphasis added). In any event, the dictum in TVI Energy cannot control here since it is inconsistent with the Supreme Court’s holding in Sperry. . Even if the section 1498 defense had been raised at the appropriate time, the district court need not necessarily have dismissed the lawsuit: It could properly have entertained a timely motion to add the government as a party and transfer the case to the Claims Court." }, { "docid": "22126609", "title": "", "text": "Court’” (quoting Garlock, 842 F.2d at 1283, 6 USPQ2d at 1284)). Although Appellants argue that these statements imply that under section 1498(a) the Claims Court is the only court with jurisdiction to hear infringement claims when the infringing goods were for the government, in neither decision did this court so hold. Moreover, there is no conflict between these decisions and Sperry. Neither Sperry, Trojan, nor Garlock dealt with whether section 1498(a) is a jurisdictional statute with respect to suits against the United States. Without deciding, we see no inconsistency between interpreting section 1498(a) as a jurisdictional statute (waiving sovereign immunity) in suits against the United States and as merely codifying a defense that private parties who are alleged infringers may raise on the merits. That two different effects occur depending on the party raising section 1498(a) is the clear implication of Sperry and the other cases, read together. . Our decision in TVI Energy Corp. v. Blane, 806 F.2d 1057, 1 USPQ2d 1071 (Fed.Cir.1986), is not to the contrary. There, the district court had granted defendant’s motion for summary judgment where the infringing use clearly had been solely for the government. We noted that \"[t]he effect of the [district] court’s action was to dismiss the complaint for lack of jurisdiction.” Id. at 1058 n. 1, 1 USPQ2d at 1071 n. 1. Despite this statement, we affirmed. This statement is merely dictum, and in any event does not mean that the district court actually lacked jurisdiction, but only that the outcome of the case is the same as if it had lacked jurisdiction. (If the district court had lacked jurisdiction, we would not have affirmed its grant of summary judgment, but would have vacated the judgment of the district court and remanded with instructions to dismiss for lack of jurisdiction.) Moreover, read in context, TVI Energy’s dictum cannot be said to indicate that the statute is jurisdictional. Although the alleged infringer argued that the statute both afforded it immunity and deprived the district court of jurisdiction, we treated only the former contention: \"The sole issue before us is whether a private" }, { "docid": "1400356", "title": "", "text": "whether the district court properly concluded that section 1498(a) deprived it of jurisdiction over this action. Section 1498(a) provides in relevant part: Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United- States Court of Federal Claims for the recovery of his reasonable and entire compensation for ■ such use and manufacture .... For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States. 28 U.S.C. § 1498(a) (2000). In addition to restricting suit against the United States to monetary compensation for infringing uses, section 1498 relieves a federal contractor of liability where the contractor uses or manufactures an infringing invention for the United States. Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 343, 48 S.Ct. 194, 72 L.Ed. 303 (1928) (explaining that “[t]he purpose of the. amendment was to relieve the contractor entirely from liability of every kind for the infringement of patents in manufacturing anything for the Government”). This suit involves a patentee’s infringement allegations brought against a federal contractor rather than against the United States. In such litigation between private parties, this court has long complied with Supreme Court precedent holding that section 1498(a) acts “as a codification of a defense and not as a jurisdictional statute.” Manville, 917 F.2d at 554, 16 USPQ2d at 1595 (citing and explaining Sperry Gyroscope Co. v. Arma Eng’g Co., 271 U.S. 232, 235-36, 46 S.Ct. 505, 70 L.Ed. 922 (1926)). In other words, section 1498(a) is an affirmative defense rather than a jurisdictional bar. Crater Corp. v. Lucent Techs. Inc., 255 F.3d 1361, 1364, 59 USPQ2d 1044, 1045" }, { "docid": "22126599", "title": "", "text": "to section 271(b), that Butterworth and DiSimone were liable for inducing infringement. The court did so, however, after finding that like Paramount, Butterworth and DiSimone were not aware of Manville’s patent until suit was filed and that Paramount’s subsequent infringing acts continued upon Butterworth’s and DiSimone’s “good faith belief,” based on advice of counsel, that Paramount’s product did not infringe. Manville, 14 USPQ2d at 1298. Based on the district court’s own findings and the record presented to us, we conclude that the district court’s decision to hold Butterworth and DiSimone liable under section 271(b) was contrary to law. There is simply neither compelling evidence nor any findings that the officers had specific intent to cause another to infringe. We therefore reverse as to the liability of the officers in their individual capacities with respect to infringement under section 271(b). . IV. Appellants’ Motion to Alter or Amend Appellants assert that because ninety percent of the sales for which the district court assessed damages were products made for or sold to the United States, under 28 U.S.C. § 1498(a) (1988), the district court lacked jurisdiction to award infringement damages for those sales. They argue that jurisdiction would lie only in the United States Claims Court. Accordingly, Appellants argue that the district court erred as a matter of law in concluding that section 1498(a) is not jurisdictional, but merely provides an affirmative defense that Appellants failed to timely raise. We review questions concerning subject matter jurisdiction de novo. Kunkel v. Topmaster Int’l Inc., 906 F.2d 693, 695, 15 USPQ2d 1367, 1368 (Fed.Cir.1990). Section 1498(a) of title 28 of the United States Code states: Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United States Claims Court for the recovery of his reasonable and entire compensation for such use and manufacture. 28 U.S.C. § 1498(a) (1988) (emphasis added). The Supreme" }, { "docid": "1400357", "title": "", "text": "1498 relieves a federal contractor of liability where the contractor uses or manufactures an infringing invention for the United States. Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 343, 48 S.Ct. 194, 72 L.Ed. 303 (1928) (explaining that “[t]he purpose of the. amendment was to relieve the contractor entirely from liability of every kind for the infringement of patents in manufacturing anything for the Government”). This suit involves a patentee’s infringement allegations brought against a federal contractor rather than against the United States. In such litigation between private parties, this court has long complied with Supreme Court precedent holding that section 1498(a) acts “as a codification of a defense and not as a jurisdictional statute.” Manville, 917 F.2d at 554, 16 USPQ2d at 1595 (citing and explaining Sperry Gyroscope Co. v. Arma Eng’g Co., 271 U.S. 232, 235-36, 46 S.Ct. 505, 70 L.Ed. 922 (1926)). In other words, section 1498(a) is an affirmative defense rather than a jurisdictional bar. Crater Corp. v. Lucent Techs. Inc., 255 F.3d 1361, 1364, 59 USPQ2d 1044, 1045 (Fed.Cir.2001) (“In addition to giving the United States Court of Federal Claims exclusive jurisdiction- over patent infringement suits against the government, § 1498(a) also provides ‘an affirmative defense for applicable government contractors.’ ” (quoting Va. Panel Corp. v. MAC Panel Co., 133 F.3d 860, 869, 45 USPQ2d 1225, 1232 (Fed.Cir.1997))). We have reemphasized and applied that settled rule in two recent cases. See Madey, 307 F.3d at 1359-60 (reversing district court’s dismissal for lack of subject matter jurisdiction because it erroneously believed that section 1498(a) was jurisdictional); Crater, 255 F.3d at 1369, 59 USPQ2d at 1049 (determining that the district court had jurisdiction over a patent infringement suit despite dismissal under section 1498(a)). Like the trial courts in Madey and Crater, the district court in this case erroneously concluded that it lacked subject matter jurisdiction and improperly dismissed the action under section 1498(a). As we did in those two cases, we must correct the district court’s mistaken application of settled precedent. Indeed, as the Supreme Court held in Sperry and as we underscored in Man-mile," }, { "docid": "16201038", "title": "", "text": "NIES, Circuit Judge.. Shat-R-Shield, Inc. (SRS) moved for additional injunctive relief against Trojan, Inc., invoking 28 U.S.C. § 1491(a)(3) (1982), to preclude Trojan specifically from bidding on government contracts under which Trojan would supply lamps which have been held to infringe SRS’s United States Patent No. 4,506,189 (’189). See Trojan, Inc. v. Shat-R-Shield, Inc., 703 F.Supp. 609, 8 USPQ2d 1391 (E.D.Ky.1988). The district court denied SRS’s motion. Trojan, Inc. v. Shat-R-Shield, Inc., No. 85-143, slip op. (E.D.Ky. Sept. 2, 1988) (Suhrheinrich, J.). We affirm. I The entirety of the district court’s analysis refusing to enjoin Trojan from bidding on government contracts is as follows: The motion for injunctive relief under 28 U.S.C. § 1491(a)(3) be and is hereby denied; however, the Court finds that Shat-R-Shield is entitled to the relief requested, but the Court is constrained to deny Shat-R-Shield’s motion for an injunction against Trojan’s bidding in view of the decision in W.L. Gore & Associates, Inc. v. Garlock, Inc., 842 F.2d 1275 (Fed.Cir.1988). Slip op. at 2. SRS urges that the district court correctly found that 28 U.S.C. § 1491(a)(3) entitled SRS to the relief requested but erred in holding that the decision of this court in W.L. Gore & Associates, Inc. v. Garlock, Inc., 842 F.2d 1275, 6 USPQ2d 1277 (Fed.Cir.1988), precluded such relief. We disagree on both points raised by SRS. II A. Section 1491(a)(3) Is Inapplicable Section 1491(a) provides, in pertinent part: § 1491. Claims against the United States generally; ... (a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded ... upon any express or implied contract with the United States.... (3) To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief. In exercising this jurisdiction, the court shall give due regard to the interests of national defense and national security. SRS argues that section 1491(a)(3) permits a district court to grant “complete relief,”" }, { "docid": "22126601", "title": "", "text": "Court has established that section 1498(a) is to be applied, at least with respect to suits to which the United States is not a party, as a codification of a defense and not as a jurisdictional statute. See Sperry Gyroscope Co. v. Arma Eng’g Co., 271 U.S. 232, 235-36, 46 S.Ct. 505, 506, 70 L.Ed. 922 (1926). In Sperry, an infringement suit between private parties, a district court dismissed a complaint for lack of jurisdiction under the predecessor of the current section 1498(a). On appeal, the Supreme Court stated that the issue concerning this provision was not one of jurisdiction, but rather went to the merits of the case: The argument is that the Act of 1918 [section 1498(a)] deprived the District Court of jurisdiction over the controversy between the present parties because it limited the patent owner’s remedy, under circumstances like those here disclosed, to a suit against the United States in the Court of Claims. But we think this contention goes to the merits of the matter, and not merely to the question of jurisdiction. The true intent and meaning of the statute is not free from doubt; but certainly there is nothing therein which shows any clear purpose to take away the power to decide. It became the duty of the court below to consider and determine whether, in the circumstances stated, appellee was relieved of liability and permitted by the statute to do what otherwise would have constituted a violation of appellant’s rights. There was jurisdiction. 271 U.S. at 235-36, 46 S.Ct. at 506. Accordingly, the Court reversed the dismissal for lack of jurisdiction and remanded for further proceedings. Appellants argue that to interpret Sperry to mean that section 1498(a) is only a codification of an affirmative defense would be contrary to this court’s later decisions in Trojan, Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 12 USPQ2d 1132 (Fed. Cir.1989), and W.L. Gore & Associates v. Garlock, Inc., 842 F.2d 1275, 6 USPQ2d 1277 (Fed.Cir.1988). In Trojan and Gar-lock, however, this court faced significantly different issues than those presented in the instant case. Neither of those" }, { "docid": "6948135", "title": "", "text": "based on the use or manufacture by or for the United States of any article heretofore owned, leased, used by, or m the possession of the United States: Provided further, That in any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement, as set forth in Title Sixty of the Revised Statutes, or otherwise; And provided, further, That the benefits of this Act shall not inure to any patentee who, when he makes such claim} is in the employment or service of the Government of the United .States, or the assignee of any such patentee; nor shall this Act apply to any device discovered or invented by such employee during the time of his employment or service.” • The argument is that the Act of 1918 deprived the District Court of jurisdiction over the controversy between the present parties because it limited the patent owner’s remedy, under circumstances like those here disclosed, to a suit against the United States in the Court of .Claims. But we think this contention goes to the merits of the matter, and not merely to the question of jurisdiction. The true intent and meaning of the statute is not free from doubt; but certainly there is nothing therein which shows any clear purpose to take away the power to decide. It became the duty of the court below to consider and determine whether, in the circumstances stated, appellee, was relieved of liability and permitted by the statute to do what otherwise would have constituted a violation of appellant’s rights. There was jurisdiction. The judgment below must be reversed and the cause remanded for further proceedings in conformity with this opinion. See The Pesaro, 255 U. S. 216; Smith v. Apple, 264 U. S. 274; Smyth v. Asphalt Belt Ry., 267 U. S. 326. Reversed." }, { "docid": "22126607", "title": "", "text": "An additional policy enumerated in King, \"giving the inventor a reasonable amount of time following the sales activity to determine the value of a patent,\" id., 767 F.2d at 860, 226 USPQ at 406, is not implicated here because Manville concedes that the period of experimental testing ended when sales activity began in March 1972 when it published new owners' manuals and authorized promotion by its sales force concerning the new iris arm device. . Appellants argue that most of the infringing sales were under subcontracts for the U.S. government or were sales to state governments for highway contracts substantially \"controlled” and funded by the U.S. government through the interstate and federal highway construction funding programs. Because of our decision, infra, we need not decide whether these sales should be construed as sales \"for” the United States under section 1498(a). . In Sperry, the Court interpreted the Act of 1918, c.114, 40 Stat. 704, 705, the pertinent portion of which has remained essentially unchanged through its present codification at 28 U.S.C. § 1498(a). . Although one district court has interpreted the Supreme Court’s terse decision as merely ruling that the district court had jurisdiction to decide jurisdiction, see Fulmer v. United States, 83 F.Supp. 137, 143, 80 USPQ 545, 551 (S.D.Ala.1949), we conclude that the Court’s holding is not thus limited. The decisions which the Supreme Court cited for support in Sperry reveal that such \"threshold jurisdiction” was not at issue in those cases. See Sperry, 271 U.S. at 236, 46 S.Ct. at 506 (citing Smyth v. Asphalt Belt Ry., 267 U.S. 326, 45 S.Ct. 242, 69 L.Ed. 629 (1925)); Smith v. Apple, 264 U.S. 274, 44 S.Ct. 311, 68 L.Ed. 678 (1924); The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592 (1921). . Some statements were made in these cases about the effects of section 1498(a) with respect to fora. See, e.g., Trojan, 885 F.2d at 856, 12 USPQ2d at 1134 (stating that \"a patent owner’s ‘only recourse’ when an infringer is dealing with the government is to ‘sue the United States in the United States Claims" }, { "docid": "22126608", "title": "", "text": "one district court has interpreted the Supreme Court’s terse decision as merely ruling that the district court had jurisdiction to decide jurisdiction, see Fulmer v. United States, 83 F.Supp. 137, 143, 80 USPQ 545, 551 (S.D.Ala.1949), we conclude that the Court’s holding is not thus limited. The decisions which the Supreme Court cited for support in Sperry reveal that such \"threshold jurisdiction” was not at issue in those cases. See Sperry, 271 U.S. at 236, 46 S.Ct. at 506 (citing Smyth v. Asphalt Belt Ry., 267 U.S. 326, 45 S.Ct. 242, 69 L.Ed. 629 (1925)); Smith v. Apple, 264 U.S. 274, 44 S.Ct. 311, 68 L.Ed. 678 (1924); The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592 (1921). . Some statements were made in these cases about the effects of section 1498(a) with respect to fora. See, e.g., Trojan, 885 F.2d at 856, 12 USPQ2d at 1134 (stating that \"a patent owner’s ‘only recourse’ when an infringer is dealing with the government is to ‘sue the United States in the United States Claims Court’” (quoting Garlock, 842 F.2d at 1283, 6 USPQ2d at 1284)). Although Appellants argue that these statements imply that under section 1498(a) the Claims Court is the only court with jurisdiction to hear infringement claims when the infringing goods were for the government, in neither decision did this court so hold. Moreover, there is no conflict between these decisions and Sperry. Neither Sperry, Trojan, nor Garlock dealt with whether section 1498(a) is a jurisdictional statute with respect to suits against the United States. Without deciding, we see no inconsistency between interpreting section 1498(a) as a jurisdictional statute (waiving sovereign immunity) in suits against the United States and as merely codifying a defense that private parties who are alleged infringers may raise on the merits. That two different effects occur depending on the party raising section 1498(a) is the clear implication of Sperry and the other cases, read together. . Our decision in TVI Energy Corp. v. Blane, 806 F.2d 1057, 1 USPQ2d 1071 (Fed.Cir.1986), is not to the contrary. There, the district court had granted" }, { "docid": "6067658", "title": "", "text": "this juncture, we wish deep doubts about the existence of any error at all with regard to the discovery request. Appellant represented throughout his briefs and in oral argument to this Court that he “clearly requested discovery” on the contract modification. Reply Brief of Appellant at 4. See also Initial Brief of Appellant at 39-40; USCA Tr. at 33-34. However, the record reveals that he in fact made no attempt — let alone anything approaching a “clear” one — to seek additional discovery. That the District Court might not offer appellant discovery without some remotely intelligible request is not, we think, plainly erroneous in these circumstances. to note our CONCLUSION We refuse to entertain appellant’s late-coming argument that § 1498(b) is only the codification of an affirmative defense. Treating § 1498(b) as jurisdictional, then, we conclude that the District Court did not clearly err in finding that the government authorized the Academy’s alleged infringement. Moreover, we ascertain no procedural error affecting appellant’s substantive rights. The judgment of the District Court dismissing Herbert’s case for lack of subject matter jurisdiction, therefore is Affirmed. . Though its charter was granted by Congress in 1863, signed by President Lincoln, and appears at 36 U.S.C. §§ 251-254 (1982), the Academy is not a governmental agency. See Lombardo v. Handler, 397 F.Supp. 792, 796 (D.D.C.), aff’d mem., 546 F.2d 1043 (D.C.Cir.1976), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977). . Of course, the \"plain error” doctrine is at home in the criminal context. See Fed. R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed [by an appellate court] although they were not brought to the attention of the [trial] court.”) The applicability of, and potential standards for, the plain error doctrine in the civil context remain points of some significant debate. See Hobson v. Wilson, 737 F.2d 1, 32 n. 96 (D.C.Cir.1984). . While the Federal Circuit in Manville interpreted the Supreme Court's 1926 Sperry holding to mean that § 1498(b) only provides an affirmative defense, we note that a pair of post-Sperry decisions suggest a different view." }, { "docid": "6952623", "title": "", "text": "court’s dismissal of Crater’s state claims for lack of supplemental jurisdiction and remand for further proceedings on those claims. BACKGROUND I. Section 1498(a) provides, in relevant part: Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.... For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.... 28 U.S.C. § 1498(a). In addition to giving the United States Court of Federal Claims exclusive jurisdiction over patent infringement suits against the government, § 1498(a) also provides “an affirmative defense for applicable government contractors.” Va. Panel Corp., 133 F.3d at 869, 45 USPQ2d at 1232. If a patented invention is used or manufactured for the government by a private party, that private party cannot be held liable for patent infringement. Trojan, Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 856, 12 USPQ2d 1132, 1134-35 (Fed.Cir.1989); W.L. Gore & Assocs., Inc. v. Garlock, Inc., 842 F.2d 1275, 1282-83, 6 USPQ2d 1277, 1283-84 (Fed.Cir.1988). In Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 16 USPQ2d 1587 (Fed.Cir.1990), we noted that pursuant to the United States Supreme Court’s decision in Sperry Gyroscope Co. v. Arma Engineering Co., 271 U.S. 232, 235-36, 46 S.Ct. 505, 70 L.Ed. 922 (1926), § 1498(a) “is to be applied, at least with respect to suits to which the United States is not a party, as a codification of a defense and not as a jurisdictional statute.” Manville, 917 F.2d at 554, 16 USPQ2d at 1595. Therefore, dismissal of a" }, { "docid": "6952624", "title": "", "text": "patent infringement suits against the government, § 1498(a) also provides “an affirmative defense for applicable government contractors.” Va. Panel Corp., 133 F.3d at 869, 45 USPQ2d at 1232. If a patented invention is used or manufactured for the government by a private party, that private party cannot be held liable for patent infringement. Trojan, Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 856, 12 USPQ2d 1132, 1134-35 (Fed.Cir.1989); W.L. Gore & Assocs., Inc. v. Garlock, Inc., 842 F.2d 1275, 1282-83, 6 USPQ2d 1277, 1283-84 (Fed.Cir.1988). In Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 16 USPQ2d 1587 (Fed.Cir.1990), we noted that pursuant to the United States Supreme Court’s decision in Sperry Gyroscope Co. v. Arma Engineering Co., 271 U.S. 232, 235-36, 46 S.Ct. 505, 70 L.Ed. 922 (1926), § 1498(a) “is to be applied, at least with respect to suits to which the United States is not a party, as a codification of a defense and not as a jurisdictional statute.” Manville, 917 F.2d at 554, 16 USPQ2d at 1595. Therefore, dismissal of a lawsuit against a private party pursuant to § 1498(a) is a dismissal because of the successful assertion of an affirmative defense rather than a dismissal because of the district court’s lack of subject matter jurisdiction over the patent infringement claim. Id. at 554-55, 16 USPQ2d at 1595-96. II. As noted above, after Crater filed suit, Lucent moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Lucent claimed that, under 28 U.S.C. § 1498(a), Crater could not properly assert its claims for patent infringement against Lucent because the accused devices were manufactured by or for the government with its authorization and consent. Lucent asserted that Crater’s only remedy was against the United States in the Court of Federal Claims. Lucent also claimed that the district court did not have original jurisdiction over Crater’s state claims because there was no diversity of citizenship between Crater and Lucent, both corporations residing in Delaware. It further claimed that, since the district court lacked jurisdiction over the infringement claims, the court could not exercise supplemental jurisdiction over the state law" }, { "docid": "22126600", "title": "", "text": "U.S.C. § 1498(a) (1988), the district court lacked jurisdiction to award infringement damages for those sales. They argue that jurisdiction would lie only in the United States Claims Court. Accordingly, Appellants argue that the district court erred as a matter of law in concluding that section 1498(a) is not jurisdictional, but merely provides an affirmative defense that Appellants failed to timely raise. We review questions concerning subject matter jurisdiction de novo. Kunkel v. Topmaster Int’l Inc., 906 F.2d 693, 695, 15 USPQ2d 1367, 1368 (Fed.Cir.1990). Section 1498(a) of title 28 of the United States Code states: Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United States Claims Court for the recovery of his reasonable and entire compensation for such use and manufacture. 28 U.S.C. § 1498(a) (1988) (emphasis added). The Supreme Court has established that section 1498(a) is to be applied, at least with respect to suits to which the United States is not a party, as a codification of a defense and not as a jurisdictional statute. See Sperry Gyroscope Co. v. Arma Eng’g Co., 271 U.S. 232, 235-36, 46 S.Ct. 505, 506, 70 L.Ed. 922 (1926). In Sperry, an infringement suit between private parties, a district court dismissed a complaint for lack of jurisdiction under the predecessor of the current section 1498(a). On appeal, the Supreme Court stated that the issue concerning this provision was not one of jurisdiction, but rather went to the merits of the case: The argument is that the Act of 1918 [section 1498(a)] deprived the District Court of jurisdiction over the controversy between the present parties because it limited the patent owner’s remedy, under circumstances like those here disclosed, to a suit against the United States in the Court of Claims. But we think this contention goes to the merits of the matter, and not merely to the question" }, { "docid": "1400358", "title": "", "text": "(Fed.Cir.2001) (“In addition to giving the United States Court of Federal Claims exclusive jurisdiction- over patent infringement suits against the government, § 1498(a) also provides ‘an affirmative defense for applicable government contractors.’ ” (quoting Va. Panel Corp. v. MAC Panel Co., 133 F.3d 860, 869, 45 USPQ2d 1225, 1232 (Fed.Cir.1997))). We have reemphasized and applied that settled rule in two recent cases. See Madey, 307 F.3d at 1359-60 (reversing district court’s dismissal for lack of subject matter jurisdiction because it erroneously believed that section 1498(a) was jurisdictional); Crater, 255 F.3d at 1369, 59 USPQ2d at 1049 (determining that the district court had jurisdiction over a patent infringement suit despite dismissal under section 1498(a)). Like the trial courts in Madey and Crater, the district court in this case erroneously concluded that it lacked subject matter jurisdiction and improperly dismissed the action under section 1498(a). As we did in those two cases, we must correct the district court’s mistaken application of settled precedent. Indeed, as the Supreme Court held in Sperry and as we underscored in Man-mile, section 1498(a) does not deprive a district court of jurisdiction. Sperry, 271 U.S. at 235-36, 46 S.Ct. 505; Manville, 917 F.2d at 554, 16 USPQ2d at 1595-96. Although the Defendants invite us to follow obsolete rules adopted by other circuits, see, e.g., Croll-Reynolds, Co. v. Perini-Leavell-Jones-Vinell, 399 F.2d 913, 915, 159 USPQ 518, 519-20 (5th Cir.1968) (finding that section 1498(a) creates a jurisdictional bar), we are bound by the holdings of the Supreme Court and by our own precedent in substantive matters, such as patent law, committed to our exclusive jurisdiction. See Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 855-56, 20 USPQ2d 1252, 1257-58 (Fed.Cir.1991). We therefore hold that the district court has jurisdiction over this matter. Since section 1498(a) is an affirmative defense rather than a jurisdictional bar, the district court cannot dismiss this action under Federal Rule of Civil Procedure 12(b)(1). If appropriate, a defense arising under section 1498(a) should be resolved by summary judgment under Rule 56 rather than a motion to dismiss under Rule 12. See Crater, 255 F.3d" }, { "docid": "6067640", "title": "", "text": "its own terms is inapplicable and a dismissal based upon its provisions would be improper. In addition to these two substantive attacks on the District Court’s decision, Herbert contends a reversal is warranted to remedy violations of his procedural rights: he claims he received inadequate notice of the amended motion to dismiss; he also argues he was not permitted any opportunity to conduct discovery on the modification to the second contract. We explore each of these arguments in turn. II. A. The Nature of § 1498(b) and the Prohibition Against Tardy Arguments Throughout argument before the District Court and in the initial round of appellate briefs, both parties conceded that, if triggered, § 1498(b) would mandate a dismissal for lack of subject matter jurisdiction. Their disagreement, thus, focused solely on the question of whether in fact § 1498(b) was triggered — viz. whether governmental authorization for the use of Herbert’s materials was ever given. In his reply brief on appeal, however, appellant contends for the first time that, even if applicable, § 1498(b) does not deny District Court jurisdiction over his claim. It is his new-found faith that § 1498(b) merely provides the Academy with an affirmative defense to press before the trier of fact within District Court. By way of support, appellant’s reply brief points us to a terse 1926 Supreme Court decision which states that 28 U.S.C. § 1498(a)—§ 1498(b)’s sibling provision— “goes to the merits of the matter, and not merely to the question of jurisdiction.” Sperry Gyroscope Co. v. Arma Engineering Co., 271 U.S. 232, 235, 46 S.Ct. 505, 506, 70 L.Ed. 922 (1926). Appellant also notes in his reply brief that the Federal Circuit has indeed read § 1498(a) as simply codifying an affirmative defense. Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 554-55 (Fed.Cir.1990). This Court, of course, generally refuses to entertain arguments raised for the first time in an appellant's reply brief. See, e.g., United States v. Caicedo-Llanos, 960 F.2d 158, 164 (D.C.Cir.1992); Golden Pacific Bancorp v. Clarke, 837 F.2d 509, 513 (D.C.Cir.1988); McBride v. Merrell Dow and Pharmaceuticals, Inc., 800" }, { "docid": "22126602", "title": "", "text": "of jurisdiction. The true intent and meaning of the statute is not free from doubt; but certainly there is nothing therein which shows any clear purpose to take away the power to decide. It became the duty of the court below to consider and determine whether, in the circumstances stated, appellee was relieved of liability and permitted by the statute to do what otherwise would have constituted a violation of appellant’s rights. There was jurisdiction. 271 U.S. at 235-36, 46 S.Ct. at 506. Accordingly, the Court reversed the dismissal for lack of jurisdiction and remanded for further proceedings. Appellants argue that to interpret Sperry to mean that section 1498(a) is only a codification of an affirmative defense would be contrary to this court’s later decisions in Trojan, Inc. v. Shat-R-Shield, Inc., 885 F.2d 854, 12 USPQ2d 1132 (Fed. Cir.1989), and W.L. Gore & Associates v. Garlock, Inc., 842 F.2d 1275, 6 USPQ2d 1277 (Fed.Cir.1988). In Trojan and Gar-lock, however, this court faced significantly different issues than those presented in the instant case. Neither of those decisions even addressed whether section 1498(a) was a jurisdictional statute. Accordingly, those cases cannot control here. Because Appellants have failed to provide any persuasive authority contrary to Sperry, we conclude that the district court properly considered section 1498(a) as providing an affirmative defense that Paramount failed to timely raise. We therefore affirm the district court’s denial of the Motion to Alter or Amend the Judgment. Y. Damages We review trial court’s determinations of damages under an abuse of discretion standard. TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 898, 229 USPQ 525, 526 (Fed.Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 183, 93 L.Ed.2d 117 (1986). “ ‘Abuse of discretion may be established by showing that the district court either made an error of law, or a clear error of judgment, or made findings which were clearly erroneous.’ ” Id. (quoting Seattle Box Co. v. Industrial Crating and Packing, Inc., 756 F.2d 1574, 1581, 225 USPQ 357, 363 (Fed.Cir.1985)). A. Lost Profits Manville presented evidence that it lost profits of $2,414,159.37 due to Paramount’s" }, { "docid": "6067641", "title": "", "text": "deny District Court jurisdiction over his claim. It is his new-found faith that § 1498(b) merely provides the Academy with an affirmative defense to press before the trier of fact within District Court. By way of support, appellant’s reply brief points us to a terse 1926 Supreme Court decision which states that 28 U.S.C. § 1498(a)—§ 1498(b)’s sibling provision— “goes to the merits of the matter, and not merely to the question of jurisdiction.” Sperry Gyroscope Co. v. Arma Engineering Co., 271 U.S. 232, 235, 46 S.Ct. 505, 506, 70 L.Ed. 922 (1926). Appellant also notes in his reply brief that the Federal Circuit has indeed read § 1498(a) as simply codifying an affirmative defense. Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 554-55 (Fed.Cir.1990). This Court, of course, generally refuses to entertain arguments raised for the first time in an appellant's reply brief. See, e.g., United States v. Caicedo-Llanos, 960 F.2d 158, 164 (D.C.Cir.1992); Golden Pacific Bancorp v. Clarke, 837 F.2d 509, 513 (D.C.Cir.1988); McBride v. Merrell Dow and Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 n. 32 (D.C.Cir.1981); United States v. Haldeman, 559 F.2d 31, 78 n. 113 (D.C.Cir.1976) (en banc) (per curiam), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); see also Fed.R.App.P. 28(a)(4). The reasons for our rule on this score are pragmatic and plain. To consider an argument discussed for the first time in reply would be manifestly unfair to the appellee who, under our rules, has no opportunity for a written response. Moreover, it would risk the possibility “of an improvident or ill-advised opinion,” given our dependence as an Article III court on the adversarial process for sharpening the issues for decision. McBride, 800 F.2d at 1211. After all, “[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Admittedly, there do exist circumstances" } ]

[ { "docid": "22300059", "title": "", "text": "... observed [the defendant] in the premises.” Id. at 337. In contrast to the majority’s reading of Van Shutters, I do not believe that we applied the Leon exception based only upon an extremely minimal connection to the illegal activity, namely the defendant’s access to the residence; we explained in Van Shutters that the affidavit presented a detailed connection such that “only a police officer with extraordinary legal training -would have detected any deficiencies in [the] document.” Id. Generally, when an affidavit provides detailed facts and eschews vague descriptions of the location or person to be searched, it is much more likely that a law enforcement official could form an objectively reasonable belief that a warrant was valid. See United States v. Watkins, 179 F.3d 489, 493, 499 (6th Cir.1999) (applying Leon when a six-page affidavit detailed several instances of the defendant’s drug-related activity both at and away from a different residence that the police did not search, even though the affidavit did not mention a second house that was the object of the search); United States v. Williams, 3 F.3d 69, 70-71, 74 (3d Cir.1993) (applying Leon because affidavit of housekeeper detailed specifics of illegal drug activity in motel room, such as “coded” knocks, overheard conversations, and observations of paraphernalia made while cleaning); cf. United States v. Helton, 314 F.3d 812, 816, 824 (6th Cir.2003) (rejecting application of Leon exception even though a twenty-seven-page affidavit supported the warrant, because the affidavit relied too heavily on an anonymous tipster’s recollections). Additionally, the proximity of illegal marijuana cultivation to the property that is searched is a significant factor in assessing the objective reasonableness of an officer’s belief that probable cause existed. In United States v. Malin, 908 F.2d 163 (7th Cir.1990), the Seventh Circuit found that probable cause existed to search a residence, but questioned in the alternative whether Leon would apply. The court answered affirmatively because the officer’s affidavit described his observation of marijuana growing directly next to a house in a fenced-in yard, even though the officer did not observe any individual near the marijuana. Id. at 165-67. See" } ]

[ { "docid": "8809790", "title": "", "text": "more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. See id. at 923, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. * * * The showing required to establish that reliance was “objectively reasonable” is less than the “substantial basis” showing required to establish probable cause. See United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004) (en banc). “[I]t is entirely possible that an affidavit could be insufficient for probable cause but sufficient for good-faith reliance.” United States v. Washington, 380 F.3d 236, 241 (6th Cir.2004). This court reviews de novo the district court’s determination whether to apply the Leon good-faith exception. United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005). The district court concluded the exception does not apply here: because probable cause was not established and because Lt. Rhoades’ affidavit did not include enough facts with respect to the nexus between the alleged criminal activity and the place to be searched, the affidavit is so lacking an “indica [sic] of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Washington, 380 F.3d [236,] 241 [6th Cir.2004], This was error. Here, there is no indication that the affiant provided false information to the magistrate. Further, although much of the information was stale, the search warrant provided specifics and was not “bare bones.” Nor, in light of paragraph 9, was it so deficient on its face as to render unreasonable the officers’ belief in its authority." }, { "docid": "10761310", "title": "", "text": "reliance on a subsequently invalidated search warrant.” United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The good-faith exception does not apply in the following four situations: (1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. United States v. Hython, 443 F.3d 480, 484 (6th Cir.2006) (citing Leon, 468 U.S. at 923, 104 S.Ct. 3405). Soto challenges the applicability of the good-faith exception on the third ground. The district court concluded that both affidavits were lacking in indicia of probable cause. R. 515 at 31-32 (Dist. Ct. Op. & Order) (Page ID # 3474-75). Nevertheless, the district court concluded that the affidavits were not so lacking as to render the officers’ reliance on those warrants objectively unreasonable. Id. at 34-35 (Page ID # 3477-78). “The conclusion that the officers’ reliance on the warrant was objectively reasonable requires a ‘less demanding showing than the “substantial basis” threshold required to prove the existence of probable cause.’ ” United States v. Higgins, 557 F.3d 381, 391 (6th Cir.2009) (quoting United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004) (en banc)) (internal quotation marks omitted). Neither affidavit in question here is “bare bones” or “boilerplate.” See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996). Moreover, both warrants provide “a sufficient link between” 77th Place and Mozart Street" }, { "docid": "16557642", "title": "", "text": "a legal conclusion reviewed de novo). United States v. Leon modified the exclusionary rule so as not to bar from admission evidence “seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Where an officer’s reliance on a warrant is objectively reasonable, the Supreme Court held, no additional deterrent effect will be achieved through the exclusion from evidence of the fruits of that search. See id. at 922, 104 S.Ct. 3405. However, the good-faith exception is inapposite in four situations: (1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. See id. at 923, 104 S.Ct. 3405. The record contains no indication that Detective Hanlin presented false or reckless statements to the magistrate; nor is there any indication that the magistrate acted merely as a rubber stamp or that the warrant was facially deficient. The question, therefore, is whether the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The showing required to establish that reliance was “objectively reasonable” is less than the “substantial basis” showing required to establish probable cause. See United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004) (en banc). “[I]t is entirely possible that an affidavit could be" }, { "docid": "11179956", "title": "", "text": "that follow, I dissent from the majority’s holding. When police seize evidence during the course of an unconstitutional search, as in this case, a trial court generally must exclude the evidence. United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005). However, “[t]he exclusionary rule does 'not bar the government’s introduction of evidence obtained by police officers acting in objectively reasonable reliance on a search warrant that is subsequently invalidated.’ ” United States v. McPhearson, 469 F.3d 518, 525 (6th Cir.2006) (quoting United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005)). In determining whether police acted in good faith, the “inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405. Although the Supreme Court in Leon concluded that suppression of evidence is not always an appropriate remedy for unconstitutional searches, the Supreme Court also established four circumstances under which an officer’s reliance on the issued warrant cannot be reasonable and where suppression thus remains appropriate: (1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and faded to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. United States v. Hython, 443 F.3d 480, 484 (6th Cir.2006). While there is no evidence that Officer Carneal included false information in the affidavit or that the magistrate failed “to act" }, { "docid": "19780005", "title": "", "text": "issued the search warrant wholly abandoned his or her judicial role; (3) when the affidavit is so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable; or (4) when the warrant is so facially deficient that it cannot reasonably be presumed valid. Laughton, 409 F.3d at 748 (citing Leon, 468 U.S. at 914-23, 104 S.Ct. 3405). The third limitation on the good-faith exception, which the district court applied in this case, prevents introduction of evidence seized under a warrant that issued on the basis of a “bare bones” affidavit. Id. at 748. A bare bones affidavit is one that merely “states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” Weaver, 99 F.3d at 1378. Determining whether the affidavit is so bare bones as to preclude application of the good-faith exception is a less demanding inquiry than the one involved in determining whether the affidavit provided a “substantial basis” for the magistrate’s conclusion of probable cause. Laughton, 409 F.3d at 748-49 (quoting Carpenter, 360 F.3d at 595). If the inquiries were identical, the probable cause determination would subsume the good-faith exception. Id. at 749. The good-faith inquiry requires examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions. Id. at 748-49. The affidavit in this case was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported. As noted above, the affidavit failed to establish a nexus between McPhearson’s residence and evidence of wrongdoing that would support a finding of probable cause. However, the failure to establish probable cause is not dispositive of whether the affidavit could support a reasonable belief in the validity of the search warrant for purposes of the exclusionary rule. “We previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good faith belief in the warrant’s validity, even if the information" }, { "docid": "16557644", "title": "", "text": "insufficient for probable cause but sufficient for good-faith reliance.” United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004). The parameters of “objective reasonableness” in the good-faith context have been explored primarily in relation to whether an affidavit established a sufficient nexus between illegal activity and a place to be searched. See Carpenter, 360 F.3d at 594 (affidavit describing marijuana field near residence “fall[s] short of establishing required nexus” between criminal activity and residence); United States v. Laughton, 409 F.3d 744, 751 (6th Cir.2005) (no modicum of evidence connected defen dant, criminal activity, and address to be searched); United States v. Helton, 314 F.3d 812, 821-23 (6th Cir.2003) (outgoing calls from house to known drug dealer did not create substantial basis to believe evidence could be found in house); United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir.1998) (affidavit did not establish any connection between target of investigation and home to be searched); United States v. Weaver, 99 F.3d 1372, 1378-79 (6th Cir.1998) (boilerplate language in affidavit failed to provide particularized facts regarding alleged crime occurring on premises to be searched); United States v. Leake, 998 F.2d 1359, 1365 (6th Cir.1993) (minimal surveillance did not corroborate anonymous tip that narcotics could be found in basement of specific house); see also United States v. Washington, 380 F.3d at 248 (Moore, J., dissenting) (affidavit created only sparse and speculative connection between drug supplier and place to be searched). Although no bright-line rule dictates its outer limit, the zone in which the good-faith exception may be applied is bound on one end by the requirements of probable cause — once that standard is met, application of the exception is unnecessary. Therefore, the relationship between staleness and probable cause is a reasonable place to begin this analysis. A. Staleness and Probable Cause The probable cause inquiry gauges the likelihood that evidence of a crime may presently be found at a certain location. A warrant must be supported by “facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that" }, { "docid": "23500800", "title": "", "text": "to state a “nexus between the place to be searched and the evidence sought.” United States v. Alix, 86 F.3d 429, 435 (5th Cir.1996); United States v. Savoca, 761 F.2d 292, 297 & n. 8 (6th Cir.1985) (affidavit to warrant must “describe the relationship of the persons to the premises”). In the alternative, Shutters argues that, because of the same deficiency, the warrant was nothing more than a “bare bones” affidavit so facially lacking of probable cause that not even the so-called “good faith” exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) could validate the search. The government does not spend much effort countering Shutters’s charges that the warrant failed to state a nexus between the premises and the criminal activity. Indeed, the government conceded in its brief and at oral argument that “it would have been preferable to specify how the affiant linked the residence to [Shutters.]” Gov’t Br. at 10. Instead, the government urges this court to proceed directly to the Leon “good faith” analysis. We have articulated that Leon stands for the proposition that “the exclusionary rule ‘should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’ ” United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir.1996)(quoting Leon, 468 U.S. at 905, 104 S.Ct. 3405). We have also noted that the “good faith” exception of Leon is not boundless and is inappropriate in at least four circumstances: [F]irst, if the issuing magistrate “was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth,” [Leon, 468 U.S.] at 914, 104 S.Ct. at 3416; second, if “the issuing magistrate wholly abandoned his judicial role,” id; third, if the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” id. at 915, 104 S.Ct. at 3416-17 (citations omitted), or in other words, where “the warrant application was supported" }, { "docid": "15723919", "title": "", "text": "searching the basement of the duplex, and that the 443 grams of cocaine recovered as a result of the illegal search should have been suppressed as poisonous fruits. See Wong Sun, 371 U.S. at 484-87, 83 S.Ct. 407. C. Good Faith Exception The district court held that even if the officer’s search of the basement was found to be beyond the scope of the warrant, the illegal search would be saved nonetheless under the good faith exception to the exclusionary rule as espoused by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). A district court’s determination as to whether the good faith exception of Leon applies to a search is reviewed by this Court de novo. United States v. Durk, 149 F.3d 464, 465 (6th Cir.1998). Under the facts of this case, the district court erred in finding that the good faith exception applied. In Leon, the Supreme Court held that the Fourth Amendment exclusionary rule should not be applied to suppress evidence where the officer involved had an objective reasonable reliance on a search warrant issued by a neutral and detached magistrate or judge, even if the warrant is ultimately found to be invalid. 468 U.S. at 905, 104 S.Ct. 3405. However, the Court found four specific scenarios where the good faith exception was inappropriate: (1) if the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) if the issuing magistrate failed to act in a neutral and detached fashion and merely served as a rubber stamp for the police; (3) if the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or where the warrant application was supported by nothing more than a bare bones affidavit; and (4) if the warrant was facially deficient in that it failed to particularize the place to be searched or the things to be seized. Id. at 914-15, 923, 104 S.Ct." }, { "docid": "12033370", "title": "", "text": "months prior to the search, the record is silent regarding how long it was for or whether it had indeed expired at the time of the search. Cf. Wagers, 452 F.3d at 538-39 (upholding probable cause despite all three of the defendant’s website subscriptions having lapsed prior to the government investigation). In light of the nature of the crime, these allegations are sufficient to establish a fair probability of on-going criminal activity. In any case, even if the affidavit did not support probable cause, it fits comfortably within the Leon good-faith exception, which allows admission of evidence “seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984). Pauli argues that the affidavit’s generalities make it “bare bones” and therefore ineligible for this exception, but our eases on point hold that even where an officer’s experience provides too little evidence to establish probable cause, it suffices to make the affidavit not bare bones by providing a reasonable connection between the defendant and the alleged crime. See United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir.1994) (“[AJlthough we have held [an affiant’s] training and experience were not sufficient to establish a nexus of probable cause ... the connection was not so remote as to trip on the ‘so lacking’ hurdle.”). To the extent that one is persuaded that there are gaps in the evidence caused by the delay between the investigation and the search, they were filled in by Agent Hagan’s experience, whose familiarity with consumers of child pornographers gave her adequate reason to suspect that Pauli continued to possess illegal images. That is sufficient for a seizing officer to have relied on the warrant in good faith. Next, Pauli argues that the search warrant was “overbroad” because it permitted the search of his garage in addition to the residence. This argument fails because it assumes, without authority, that a garage is presumptively excluded from a valid warrant to search a house. Our law presumes the opposite, that “a warrant for" }, { "docid": "8809789", "title": "", "text": "in United States v. Hython, 443 F.3d 480, 484-85 (6th Cir.2006): United States v. Leon modified the exclusionary rule so as not to bar from admission evidence “seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Where an officer’s reliance on a warrant is objectively reasonable, the Supreme Court held, no additional deterrent effect will be achieved through the exclusion from evidence of the fruits of that search. See id. at 922, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. However, the good-faith exception is inapposite in four situations: (1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. See id. at 923, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. * * * The showing required to establish that reliance was “objectively reasonable” is less than the “substantial basis” showing required to establish probable cause. See United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004) (en banc). “[I]t is entirely possible that an affidavit could be insufficient for probable cause but sufficient for good-faith reliance.” United States v. Washington, 380 F.3d 236, 241 (6th Cir.2004). This court reviews de novo the district court’s determination whether to apply the Leon good-faith exception. United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005)." }, { "docid": "19780006", "title": "", "text": "(quoting Carpenter, 360 F.3d at 595). If the inquiries were identical, the probable cause determination would subsume the good-faith exception. Id. at 749. The good-faith inquiry requires examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions. Id. at 748-49. The affidavit in this case was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported. As noted above, the affidavit failed to establish a nexus between McPhearson’s residence and evidence of wrongdoing that would support a finding of probable cause. However, the failure to establish probable cause is not dispositive of whether the affidavit could support a reasonable belief in the validity of the search warrant for purposes of the exclusionary rule. “We previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good faith belief in the warrant’s validity, even if the information provided was not enough to establish probable cause.” Carpenter, 360 F.3d at 596. The minimal nexus required to support an officer’s good faith belief was not present in this ease. The only connection in the affidavit between 228 Shelby Street and drug trafficking was that Jackson police arrested McPhearson at his residence and found crack cocaine in his pocket in a search incident to the arrest. This connection cannot establish the minimal nexus that has justified application of the good-faith exception in cases where the nexus between the place to be searched and the evidence to be sought was too weak to establish probable cause. See Frazier, 423 F.3d at 536-37; Carpenter, 360 F.3d at 595-96; United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir.1998); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir.1994); Savoca, 761 F.2d at 298-99. The application of the good-faith exception in Frazier, Savoca, and Van Shutters depended on the fact that each of the defendants were known to have participated previously in the type of criminal activity" }, { "docid": "7287643", "title": "", "text": "DAUGHTREY, J., delivered the opinion of the court, in which RICE, D.J., joined. GILMAN, J. (pp. 752-53), delivered a separate dissenting opinion. OPINION DAUGHTREY, Circuit Judge. In this appeal, we are asked to review the district court’s determination that the search of a house pursuant to a warrant issued without probable cause was nevertheless valid under the “good faith” exception to the exclusionary rule announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In doing so, we are faced with two issues: whether the affidavit submitted to the issuing magistrate was sufficient to support a finding of good faith simply because it was something more than “bare bones,” and whether information known to the officer but not conveyed to the magistrate has any relevance to the validity of the search, a question that was left unanswered in our recent en banc decision in United States v. Carpenter, 360 F.3d 591 (6th Cir.2004) (en banc). Because we conclude that the warrant failed to establish any nexus whatsoever between the residence to be searched and the criminal activity attributed to the defendant in the affidavit, we conclude that the district court’s reliance on Leon cannot be sustained. FACTUAL AND PROCEDURAL BACKGROUND Following a tip from confidential informant Thomas Pell that he was able to purchase methamphetamine from the defendant, James Laughton, the Isabella County Sheriffs Department arranged for Pell to make a controlled buy under surveillance. On November 1, 2001, Deputy Sheriff Scott Clarke and two other officers met with Pell to conduct the purchase. They provided him with $100.00 in marked money and patted him down to make sure that he was not carrying any of his own money or any other narcotics. They also searched his vehicle. Pell then drove to a residence to meet the defendant, and the police followed. The police observed Pell enter the house and re-emerge 10 to 20 minutes later. After Pell left the house, he drove to an arranged location, followed by the police, where he turned over methamphetamine that he reportedly had" }, { "docid": "19780004", "title": "", "text": "in this case cannot support the inference that evidence of wrongdoing would be found in McPhearson’s home because drugs were found on his person. Without this inference and any supporting facts suggesting that McPhearson’s home would contain evidence of crime, Judge Little lacked a substantial basis for concluding that probable cause existed for issuing the warrant. C. The exclusionary rule does “not bar the government’s introduction of evidence obtained by police officers acting in objectively reasonable reliance on a search warrant that is subsequently invalidated.” United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005). The “good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances ... may be considered.” Leon, 468 U.S. at 922-23, n. 23, 104 S.Ct. 3405. The good-faith exception, however, does not apply in four situations: (1) when the affidavit supporting the search warrant contains a knowing or reckless falsity; (2) when the magistrate who issued the search warrant wholly abandoned his or her judicial role; (3) when the affidavit is so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable; or (4) when the warrant is so facially deficient that it cannot reasonably be presumed valid. Laughton, 409 F.3d at 748 (citing Leon, 468 U.S. at 914-23, 104 S.Ct. 3405). The third limitation on the good-faith exception, which the district court applied in this case, prevents introduction of evidence seized under a warrant that issued on the basis of a “bare bones” affidavit. Id. at 748. A bare bones affidavit is one that merely “states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” Weaver, 99 F.3d at 1378. Determining whether the affidavit is so bare bones as to preclude application of the good-faith exception is a less demanding inquiry than the one involved in determining whether the affidavit provided a “substantial basis” for the magistrate’s conclusion of probable cause. Laughton, 409 F.3d at 748-49" }, { "docid": "16557643", "title": "", "text": "magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. See id. at 923, 104 S.Ct. 3405. The record contains no indication that Detective Hanlin presented false or reckless statements to the magistrate; nor is there any indication that the magistrate acted merely as a rubber stamp or that the warrant was facially deficient. The question, therefore, is whether the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The showing required to establish that reliance was “objectively reasonable” is less than the “substantial basis” showing required to establish probable cause. See United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004) (en banc). “[I]t is entirely possible that an affidavit could be insufficient for probable cause but sufficient for good-faith reliance.” United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004). The parameters of “objective reasonableness” in the good-faith context have been explored primarily in relation to whether an affidavit established a sufficient nexus between illegal activity and a place to be searched. See Carpenter, 360 F.3d at 594 (affidavit describing marijuana field near residence “fall[s] short of establishing required nexus” between criminal activity and residence); United States v. Laughton, 409 F.3d 744, 751 (6th Cir.2005) (no modicum of evidence connected defen dant, criminal activity, and address to be searched); United States v. Helton, 314 F.3d 812, 821-23 (6th Cir.2003) (outgoing calls from house to known drug dealer did not create substantial basis to believe evidence could be found in house); United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir.1998) (affidavit did not establish any connection between target of investigation and home to be searched); United States v. Weaver, 99 F.3d 1372, 1378-79 (6th Cir.1998) (boilerplate language in affidavit failed to provide particularized facts" }, { "docid": "20706423", "title": "", "text": "Moore was asked whether Brown was “on [his] radar” prior to his arrest on March 8. (R. 53, PagelD 447.) Agent Moore answered, “[n]ot at all.” (R. 53, PagelD 447.) DEA agents did not identify Brown during their surveillance of Middleton’s residence, and Brown was not mentioned in any of the recorded phone conversations between DEA1 and Middleton. Agent Fitch’s affidavit failed to establish the required nexus between the alleged drug trafficking and Brown’s residence. Because we conclude that the police lacked probable cause to search Brown’s residence on this ground, we need not also decide whether the information supporting the warrant was stale. 2. Good-Faith Exception “When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.” Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). If the evidence was “obtained in objectively reasonable reliance” on the “subsequently invalidated search warrant,” however, it should not be suppressed. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For this exception to apply, the affidavit must contain “a minimally sufficient nexus between the illegal activity and the place to be searched.” Carpenter, 360 F.3d at 596; see also McPhearson, 469 F.3d at 526-27 (although police discovered cocaine in defendant’s pocket during search incident to arrest at residence, nexus was not minimally sufficient because these facts did not directly tie the residence to drug trafficking). A police officer does not “manifest objective good faith in relying on a warrant” if the affidavit is “so lacking in indi-cia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 595 (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). Here, police arrested Brown on March 8 and seized his car — registered to his residence on Moross Road — on March 9. Although the police obtained a warrant to search Middleton’s residence the day after the arrest (in fact, just six hours later, at 3:10 a.m.), they" }, { "docid": "19142328", "title": "", "text": "a neutral arbiter and therefore provided an insufficient basis for finding probable cause to support the search warrant. C. Good Faith Exception The good faith exception prevents operation of the exclusionary rule if the police officer’s reliance on a search warrant was objectively reasonable. United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). When an officer acts within the scope of a search warrant, “[p]enalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 921, 104 S.Ct. 3405. Leon identified four situations in which the good faith exception does not apply: when the affiant misleads the magistrate with a reckless or knowing disregard for the truth, when the magistrate wholly abandons the judicial role, when the affidavit is “bare bones” or “so lacking in indicia of probable cause” that reliance is unreasonable, and when the warrant is facially deficient in that it fails to specify the place to search or the items to seize. Id. at 923, 104 S.Ct. 3405. Glover argues that the good faith exception should not apply because (1) the affidavit was so “bare bones” that reliance on the warrant was unreasonable, and (2) the officer acted with reckless disregard for the truth by omitting from the affidavit important information about the informant’s credibility. We disagree with the first point but find that Glover is entitled to a hearing on the second. 1. Facial Sufficiency First, the probable cause determination in this case was undermined by the withholding of credibility information, but the affidavit was not otherwise lacking in factual detail to the point that reliance was unreasonable. A defendant establishes unreasonable reliance if “courts have clearly held that a materially similar affidavit previously failed to establish probable cause” or the affidavit is “plainly deficient.” United States v. Woolsey, 535 F.3d 540, 548 (7th Cir.2008) (applying good faith exception), quoting Koerth, 312 F.3d at 869. In Owens v. United States, 387 F.3d 607 (7th Cir.2004), we examined a residential search warrant supported by an affidavit that alleged only" }, { "docid": "19780012", "title": "", "text": "to establish probable cause. See, e.g., United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir.2002). Whether probable cause can be established by an allegation of drug dealing is irrelevant to our resolution of this case, however. The allegation of drug dealing was absent from the affidavit supporting the warrant in this case, which presents a probable cause determination based on an even looser connection between the residence and the suspected criminal activity. ROGERS, Circuit Judge, dissenting. When officials read an affidavit describing how a man emerged from his single-family residence with over six grams of crack cocaine and how agents on the scene believed that there were more drugs inside the dwelling, the officials could reasonably believe that the search-warrant affidavit adequately described probable cause to justify a search of the dwelling. See United States v. Carpenter, 360 F.3d 591, 594-97 (6th Cir.2004). If there was, in hindsight, no probable cause for the search, the officials executing a warrant based on that affidavit are still entitled to the good-faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For this reason, the district court should not have suppressed the evidence that authorities obtained in executing the warrant based on the affidavit. In this case, police arrested McPhearson at his residence and found a white chalky substance, which turned out to be crack cocaine, in his pocket. Having found illegal drugs on McPhearson, officers believed that they could find additional drugs in McPhearson’s home. Indeed, it is a reasonable inference that at least some people who carry crack cocaine around with them in their homes would leave some of the contraband, which they could divide into smaller amounts, elséwhere in their homes. See United States v. Laughton, 409 F.3d 744, 749-50 (6th Cir.2005) (acknowledging that officials may make at least a single inference to fill a gap in an affidavit). Acting on this suspicion, authorities obtained a search warrant based on an affidavit that described how officers discovered crack cocaine on McPhearson’s body and believed that additional drugs were in the home. Decisions" }, { "docid": "2973335", "title": "", "text": "was a substantial basis to believe criminal aetivi ty or evidence of a crime would be found at the property. II. Leon Exception In its opinion and order denying Thomas’ motion to suppress, the district court also ruled that the Leon good-faith exception was applicable even if the search warrant were deficient. In his brief to this Court, Thomas’ counsel recites verbatim the elements of the Leon doctrine but fails to explain how they entitle him to any relief. Nor does he actually argue that the district court’s Leon ruling was error. However, since Thomas would also need a reversal of this decision in order to gain relief, and because his brief does refer to the Leon doctrine, we will review this decision as well. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court established that the Fourth Amendment exclusionary rule does not apply in cases where law enforcement officers acted in good faith and reasonably relied on a search warrant that is ultimately found invalid. The inquiry on review is “whether a reasonably trained police officer would have known that the search was illegal despite the [issuing judge’s] authorization.” Id. at 923 n. 23, 104 S.Ct. 3405. To help reviewing courts properly answer this question, the Court identified four specific situations in which an officer’s reliance on a subsequently invalidated warrant cannot be considered objectively reasonable: 1) when the warrant is issued on the basis of an affidavit that the affiant knows (or is reckless in not knowing) contains false information; 2) when the issuing magistrate abandons his neutral and detached role and serves as a rubber stamp for police activities; 3) when the affidavit is so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable; and 4) when the warrant is so facially deficient that it cannot be reasonably presumed to be valid. United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005) (citing Leon, 468 U.S. at 914-23, 104 S.Ct. 3405). In this case, Thomas has failed to satisfy any of these" }, { "docid": "16379545", "title": "", "text": "the supporting affidavit provided no nexus between the alleged criminal activity and his home; and (2) probable cause for the second warrant was developed during the first, invalid search, therefore requiring suppression of any evidence seized as fruit of the poisonous tree. When the district court denies a motion to suppress, we review factual findings for clear error and conclusions of law de novo. United States v. Cherna, 184 F.3d 403, 406-07 (6th Cir.1999). For purposes of the good-faith exception, we review the district court’s evaluation of officers’ objective reasonableness de novo. U.S. v. Pena-Rodriguez, 110 F.3d 1120, 1130 n. 10 (5th Cir.1997) (internal quotations omitted). We consider probable cause questions in two stages. First we determine whether the good-faith exception to the exclusionary rule, announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies. See Id. at 1129-30. If it does, we need not reach the question of probable cause for the warrant unless it presents a “novel question of law,” resolution of which is “necessary to guide future action by law enforcement officers and magistrates,” Id. (citations omitted). We conclude that this case presents no such novel question. Under the good-faith exception, evidence obtained during the execution of a warrant later determined to be deficient is admissible nonetheless, so long as the executing officers’ reliance on the warrant was objectively reasonable and in good faith. Leon, 468 U.S. at 921-25, 104 S.Ct. 3405. “[T]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23, 104 S.Ct. 3405 (citations omitted). The good faith exception cannot apply if one of four circumstances is present: “(1) If the issuing magistrate/judge was misled by information in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth; (2) where the issuing magistrate/judge wholly abandoned his or her judicial role; (3)" }, { "docid": "23411247", "title": "", "text": "(1989). Whether the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies to a search is also reviewed de novo. United States v. Durk, 149 F.3d 464, 465 (6th Cir.1998). “The test for determining whether the description in the warrant is sufficient to satisfy the particularity requirement [of the Fourth Amendment] is whether ‘the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended.’ ” Gahagan, 865 F.2d at 1496 (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925) and United States v. Votteller, 544 F.2d 1355, 1362 (6th Cir.1976)). If a warrant fails to describe with sufficient particularity a place to be searched, a supporting affidavit incorporated into the warrant can cure the insufficiency if the affidavit describes the place with sufficient particularity. Gahagan, 865 F.2d at 1497. If the affidavit does not cure the warrant’s insufficiency, the search may still be upheld under the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Id. at 1496. If probable cause is found to be lacking in a search warrant, the good-faith exception will apply to uphold the search unless the evidence is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Brown, 147 F.3d 477, 485 (6th Cir.), cert. denied, — U.S. —, 119 S.Ct. 270, 142 L.Ed.2d 223 (1998) (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). The warrant in this case failed to describe the second house at all. The affidavit, however, which included a statement that evidence of illegal drug activity was expected to be found in “the Louis residence, his private vehicles, garages, structures, barns, sheds, and any and all out buildings and appurtenances located on the property, being under the care and control of Keith Louis,” did describe the second house with sufficient particularity so that “the officers with [the] search warrant [could] with reasonable effort ascertain and" } ]

[ { "docid": "11342058", "title": "", "text": "requested that a copy of appellant’s right to sue letter be sent to him. Hollingsworth denied confirming his representation or requesting a copy of the right to sue letter. On July 14, 1981, the EEOC sent appellant a right to sue letter. The letter was addressed to appellant at her correct address and was sent by certified mail, return receipt requested. A copy of the letter was also sent to Hollingsworth. On July 16, an employee of Hollingsworth signed a certified mail receipt for the letter. Hollingsworth testified that he did not actually see the copy of appellant’s right to sue letter until July 20. On that day Hollingsworth wrote to appellant to inform her that he received a copy of her right to sue letter and that she would have to file suit within ninety days of her receipt of the letter. Appellant did not receive the right to sue letter until July 27. Hollingsworth filed appellant’s complaint on October 23,1981, eighty-eight days after appellant received her right to sue letter. KATV moved to dismiss, alleging that the complaint was untimely because it was filed ninety-nine days after Hollingsworth’s receipt of the copy of appellant’s right to sue letter. KATV argued that Hollingsworth was appellant’s counsel and that notice to counsel constituted notice to appellant. After a hearing on appellee’s motion to dismiss, the district court found an attorney-client relationship existed and dismissed the case, relying on Decker v. Anheuser Busch, 632 F.2d 1221 (5th Cir.1980). In Decker, a divided panel of the Fifth Circuit held that delivery of a right to sue letter to the office of the attorney representing an aggrieved party triggered the running of the statutory ninety-day filing period of 42 U.S.C. § 2000e-5(f)(l). The section provides that within ninety days after the EEOC provides notice to “the person aggrieved” suit may be filed in federal district court. Subse quent to the district court’s dismissal of appellant’s complaint, the Fifth Circuit granted rehearing en banc in Decker, vacated the panel decision and remanded the case for a further evidentiary hearing as to the scope and" } ]

[ { "docid": "15579839", "title": "", "text": "Petersen to represent her in the forthcoming suit against the defendant. Consequently, Petersen gave Decker the names of several attorneys who could represent her. Ultimately, the plaintiff decided to retain Petersen as her counsel and Decker and Petersen entered into a written fee agreement on March 1, 1976. ANALYSIS The center of the dispute concerning the defendant’s motion to dismiss is whether Petersen was representing Decker on February 12,1976 and whether that representation was broad enough to allow Petersen to open Decker’s mail. As the Court concluded previously, the earliest that the plaintiff actually learned of the EEOC’s issuance of a right to sue letter was February 16th or 17th. Thus, in order for the defendant to prevail on its motion to dismiss, it must establish that the plaintiff constructively knew of the right to sue letter on February 12th. The defendant’s main argument in favor of constructive receipt is that Decker received the letter when Petersen’s office received it. In order to prevail on this argument, the defendant must establish that Petersen, or a member of her office staff, received the notice on February 12th and that receipt by Petersen was constructive receipt by Decker. With regard to the first issue, the Court notes that the receipt on the certified letter is clearly dated February 12, 1976. Thus, although the Court has some doubts, it will accept that Petersen’s office received the letter on February 12th. See footnote 3 supra. The defendant avers that an attorney’s receipt of a notice of right to sue operates as a constructive receipt by the plaintiff. Citing Gonzalez v. Stanford Applied Engineering, 597 F.2d 1298 (9th Cir.1979). The exact statement by the Gonzalez Court supporting this proposition is: “We hold that when the request for issuance of a right to sue letter comes from a claimant’s attorney, notice to the attorney that the right to sue has been granted starts the time running.” Id. at 1299. Thus, in Gonzalez, not only did the attorney request a right to sue letter but the letter was specifically addressed to the attorney and the plaintiff was" }, { "docid": "23591372", "title": "", "text": "on the date that the EEOC right-to-sue notice is actually received either by the claimant or by the attorney representing him in the Title VII action. III. Since the experience of other courts has shown that a general statement of this nature is not totally sufficient, we need to consider further when and under what circumstances receipt of the right-to-sue letter by an attorney will be deemed receipt by the claimant. Toward this end, we will review the cases on which the district court relied and leading cases from other circuits. In Gonzalez v. Stanford Applied Engineering, 597 F.2d 1298 (7th Cir.1979), EEOC sent a copy of the letter to the attorney by registered mail and accompanied by a letter to the attorney stating that suit could be commenced “within ninety days of the receipt of this letter.” (Emphasis added). The suit was commenced 91 days after the attorney’s receipt and it was dismissed as being untimely brought. That dismissal was affirmed by the Ninth Circuit, and the court noted that the attorney had requested the letter be sent to him on his client’s behalf. In Minor v. Lakeview Hospital, 421 F.Supp. 485 (D.C.Wis.1976), the attorney notified the EEOC that he had been retained and requested “all future correspondence to my client be served upon me directly at my office or that copies of each be mailed to me.” Copies of the right-to-sue letter were sent to both the plaintiff and her attorney. The complaint stated that the plaintiff had received a letter on a certain date; that date was 91 days before suit was filed and the action was dismissed as untimely. The claimant argued that, despite the statement in the complaint, only the attorney had received the letter and that therefore the 90-day period had never begun to run. The court held that once the attorney requested the notice be sent to him, the claimant became bound by that notice. 421 F.Supp. at 486. In Thomas v. KATV Channel 7, 692 F.2d 548 (8th Cir.1982), the claimant re quested the right-to-sue letter in writing, and by phone she" }, { "docid": "2151323", "title": "", "text": "which would justify tolling. See Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4th Cir.1993) (filing period triggered by delivery of notice to plaintiff that she could pick up her right to sue letter at post office, rather than by her picking up the letter five days later); Scholar v. Pacific Bell, 963 F.2d 264, 266-68 (9th Cir.) (ninety-day period for filing discrimination action ran from date right to sue letter was received and signed by plaintiffs daughter at plaintiffs residence rather than when plaintiff read the letter a few days later), cert. denied, — U.S.-, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992); Harvey v. City of New Bern Police Dep’t, 813 F.2d 652, 654 (4th Cir.1987) (court held ninety-day period began when EEOC’s right to sue letter was received by plaintiffs wife even though claimant did not learn of the letter until six days later); Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1248-50 (5th Cir.1985) (court held ninety-day period began when EEOC’s right to sue letter was received by plaintiffs wife even though plaintiff did not see the letter until he returned from out of town eight days later) ; Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983) (court held ninety-day period began- when claimant’s seventeen year-old son signed receipt for EEOC’s right to sue letter in spite of plaintiffs contention he did not see the letter until one or two days later); Bell v. Eagle Motor Lines, Inc., 693 F.2d 1086, 1087 (11th Cir.1982) (receipt by wife started running of the time period). We agree with the approach adopted by the Fourth, Fifth, Ninth and Eleventh Circuits. In the absence of equitable considerations demanding a different result, receipt at a plaintiffs address of the right to sue letter constitutes receipt sufficient to start the running of the time period for filing a discrimination action. If the rule were otherwise, a plaintiff would be permitted to “enjoy a manipulable, open-ended time extension which could render the statutory limitation meaningless.... ” Lewis v. Connors Steel Co., 673 F.2d 1240, 1242 (11th Cir.1982). There" }, { "docid": "23591373", "title": "", "text": "the letter be sent to him on his client’s behalf. In Minor v. Lakeview Hospital, 421 F.Supp. 485 (D.C.Wis.1976), the attorney notified the EEOC that he had been retained and requested “all future correspondence to my client be served upon me directly at my office or that copies of each be mailed to me.” Copies of the right-to-sue letter were sent to both the plaintiff and her attorney. The complaint stated that the plaintiff had received a letter on a certain date; that date was 91 days before suit was filed and the action was dismissed as untimely. The claimant argued that, despite the statement in the complaint, only the attorney had received the letter and that therefore the 90-day period had never begun to run. The court held that once the attorney requested the notice be sent to him, the claimant became bound by that notice. 421 F.Supp. at 486. In Thomas v. KATV Channel 7, 692 F.2d 548 (8th Cir.1982), the claimant re quested the right-to-sue letter in writing, and by phone she notified the EEOC of her change of address and that she was represented by counsel. The EEOC supervisor confirmed that representation by calling the attorney, and the attorney requested that a copy of the letter be sent to him. The right-to-sue letter was received by the attorney’s office on July 16, 1981 and by the attorney himself on July 20. He wrote to the claimant, in much the same manner as Olsen wrote to plaintiffs here. The claimant received her right-to-sue letter by certified mail on July 27. Suit was filed 88 days after claimant received her letter but 99 days after the attorney’s receipt. The district court dismissed on the authority of Decker v. Anheuser Busch, 632 F.2d 1221 (5th Cir.1980). In Decker, the Fifth Circuit had held that notice to an attorney who is “formally representing” a Title VII complainant constitutes notice to the complainant. Id. at 1223. However, Decker was later vacated and remanded, 670 F.2d 506 (5th Cir.1982) (en banc), for an evidentiary hearing as to the scope and character of" }, { "docid": "11342064", "title": "", "text": "provides that “within thirty days of receipt of notice” an aggrieved federal employee may file suit. 42 U.S.C. § 2000e-16. At the time of the Craig decision, the Civil Service Commission was vested with certain enforcement functions in discrimination suits by federal employees. Subsequent to Craig, the EEOC assumed the enforcement functions of federal employee discrimination claims pursuant to § 3 of the Reorganization Plan No. 1 of 1978, 43 Fed.Reg. 19,807 (1978) (effective Jan. 1, 1979). Exec.Order No. 12,106, 44 Fed. Reg. 1053 (1978). . As additional support for the holding in Craig, we noted that Civil Service regulations required direct notice to an aggrieved federal employee. 581 F.2d at 192-93. . The Ninth Circuit has held that “when the request for issuance of a right to sue letter comes from a claimant’s attorney, notice to the attorney that right to sue has been granted starts the time running.” Gonzalez v. Stanford Applied Eng’g, Inc., 597 F.2d 1298, 1299 (9th Cir. 1979) (per curiam). In the instant case, the evidence is that appellant, not Hollingsworth, requested issuance of the right to sue letter; at most, all Hollingsworth requested was a copy of appellant’s right to sue letter. We express no opinion as to the validity of the Gonzalez holding. . The disposition of this case makes it unnecessary for this court to decide whether the district court erred \"in finding that an attorney-client relationship existed between Hollingsworth and appellant." }, { "docid": "11342059", "title": "", "text": "dismiss, alleging that the complaint was untimely because it was filed ninety-nine days after Hollingsworth’s receipt of the copy of appellant’s right to sue letter. KATV argued that Hollingsworth was appellant’s counsel and that notice to counsel constituted notice to appellant. After a hearing on appellee’s motion to dismiss, the district court found an attorney-client relationship existed and dismissed the case, relying on Decker v. Anheuser Busch, 632 F.2d 1221 (5th Cir.1980). In Decker, a divided panel of the Fifth Circuit held that delivery of a right to sue letter to the office of the attorney representing an aggrieved party triggered the running of the statutory ninety-day filing period of 42 U.S.C. § 2000e-5(f)(l). The section provides that within ninety days after the EEOC provides notice to “the person aggrieved” suit may be filed in federal district court. Subse quent to the district court’s dismissal of appellant’s complaint, the Fifth Circuit granted rehearing en banc in Decker, vacated the panel decision and remanded the case for a further evidentiary hearing as to the scope and duration of the alleged attorney-client relationship. 670 F.2d 506 (5th Cir. 1982) (banc). Appellee KATY asks this court to adopt the holding of the majority of the panel in Decker. We decline to do so. In Craig v. Department of HEW, 581 F.2d 189 (8th Cir.1978), this court rejected the argument that receipt of notice of a right to sue letter by an employee of the attorney of an aggrieved federal employee constituted receipt of notice by the aggrieved party as contemplated by the relevant statutory provision. The court stated: We have heretofore recognized “that Title VII is remedial in character and should be liberally construed to achieve its purposes”; “for this reason,” we have observed, “courts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party.” “That approach,” we have added, “reflects not only the manifest importance of Title VII rights to complaining parties, but also the broad national commitment to eliminating such discrimination and the importance of private suits in fulfilling that commitment.”" }, { "docid": "11342063", "title": "", "text": "also 29 C.F.R. § 1601.28 (1980). Appellee’s motion to dismiss alleged the district court lacked jurisdiction because of appellant’s failure to file her complaint within the ninety-day statutory filing period of § 2000e-5(f)(1). At oral argument, appellee conceded that in light of the recent Supreme Court case of Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the statutory filing period of § 2000e-5(f)(l) was more akin to a statute of limitations than a jurisdictional prerequisite. In Zipes, the Court held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in a federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” 102 S.Ct. at 1132. Recent circuit courts cases have extended the rationale of Zipes to the ninety-day filing period of § 2000e-5(f)(l). E.g., Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215-16 (5th Cir. 1982); Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982). . The statute provides that “within thirty days of receipt of notice” an aggrieved federal employee may file suit. 42 U.S.C. § 2000e-16. At the time of the Craig decision, the Civil Service Commission was vested with certain enforcement functions in discrimination suits by federal employees. Subsequent to Craig, the EEOC assumed the enforcement functions of federal employee discrimination claims pursuant to § 3 of the Reorganization Plan No. 1 of 1978, 43 Fed.Reg. 19,807 (1978) (effective Jan. 1, 1979). Exec.Order No. 12,106, 44 Fed. Reg. 1053 (1978). . As additional support for the holding in Craig, we noted that Civil Service regulations required direct notice to an aggrieved federal employee. 581 F.2d at 192-93. . The Ninth Circuit has held that “when the request for issuance of a right to sue letter comes from a claimant’s attorney, notice to the attorney that right to sue has been granted starts the time running.” Gonzalez v. Stanford Applied Eng’g, Inc., 597 F.2d 1298, 1299 (9th Cir. 1979) (per curiam). In the instant case, the evidence is that appellant, not" }, { "docid": "23591374", "title": "", "text": "notified the EEOC of her change of address and that she was represented by counsel. The EEOC supervisor confirmed that representation by calling the attorney, and the attorney requested that a copy of the letter be sent to him. The right-to-sue letter was received by the attorney’s office on July 16, 1981 and by the attorney himself on July 20. He wrote to the claimant, in much the same manner as Olsen wrote to plaintiffs here. The claimant received her right-to-sue letter by certified mail on July 27. Suit was filed 88 days after claimant received her letter but 99 days after the attorney’s receipt. The district court dismissed on the authority of Decker v. Anheuser Busch, 632 F.2d 1221 (5th Cir.1980). In Decker, the Fifth Circuit had held that notice to an attorney who is “formally representing” a Title VII complainant constitutes notice to the complainant. Id. at 1223. However, Decker was later vacated and remanded, 670 F.2d 506 (5th Cir.1982) (en banc), for an evidentiary hearing as to the scope and character of the alleged attorney-client relationship. On review, the Eighth Circuit declined to follow Decker and adopted for private employees the rationale of Craig v. Department of HEW, 581 F.2d 189 (8th Cir.1978), a case dealing with the Title VII provisions for federal employees. Under that rationale, receipt of the letter by an attorney can satisfy the statutory requirements when certain conditions are met. The Thomas decision noted two of those conditions: whether the letter is addressed in accordance with the specific directions of the claimant and whether the receipt is personally acknowledged by the designated representative. Thomas v. KATV Channel 7, 692 F.2d at 550. Two additional approaches have been developed in other circuits to deal with this type of situation. One, mentioned above, is the Fifth Circuit’s general rule stated in Decker v. Anheuser Busch, 632 F.2d at 1223, that a request by an attorney (or, presumably, the claimant) that the notice be sent to the attorney is binding on the claimant. The need for greater specificity is demonstrated by the subsequent remand in that" }, { "docid": "18589603", "title": "", "text": "two occasions deposited Form 3849 in Hornsby’s mailbox, it will have failed, as a matter of law, to establish that the thirty-day time limit in section 2000e-16(c) bars Hornsby’s complaint. V. The judgment dismissing the complaint as time-barred will be reversed and the case remanded for further proceedings consistent with this opinion. . The present codification of the Civil Rights Act of 1972 provides that \"[a]ll personnel actions affecting employees or applicants for employment ... in the United States Postal Service ... shall be made free of any discrimination based on race.” 42 U.S.C. § 2000e-16(a) (1982). . The district court referred to Gaballah v. Johnson, 629 F.2d 1191 (7th Cir.1980); Hofer v. Campbell, 581 F.2d 975 (D.C.Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); and Roth v. Naval Aviation Supply Office, 443 F.Supp. 413 (E.D.Pa.1978). In none of these cases did a court resolve on conflicting affidavits a factual dispute concerning the time of filing. . The provision governing the filing of Title VII complaints by individuals who are not federal employees differs slightly. It provides that the EEOC “shall ... notify the person aggrieved [of final adverse agency action] and within ninety days after the giving of such notice a civil action may be brought.” 42 U.S.C. § 2000e-5(f)(l) (1982). However, both provisions refer to notice not to service or filing. Compare Fed.R. Civ.P. 5(c); Fed.R.App.P. 3(a). . See, e.g., Jones v. Madison Service Corp., 744 F.2d 1309, 1311-14 (7th Cir.1984); Harper v. Burgess, 701 F.2d 29, 30 (4th Cir. 1983); Thomas v. KATV Channel 7, 692 F.2d 548, 549-51 (8th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983); Decker v. Anheuser-Busch, 632 F.2d 1221, 1223-24 (5th Cir. 1980), vacated and remanded, 670 F.2d 506 (5th Cir.1982) (en banc); Gonzales v. Stanford Applied Engineering, Inc., 597 F.2d 1298, 1299 (9th Cir.1979). . See, e.g., St. Louis v. Alverno College, 744 F.2d 1314, 1316-17 (7th Cir.1984); Lewis v. Conners Steel Co., 673 F.2d 1240, 1242-43 (11th Cir. 1982). . See Espinoza v. Missouri Pacific R.R., 754 F.2d 1247, 1248-50" }, { "docid": "23074192", "title": "", "text": "here, however, because the court considered only the allegations of the pleadings and affidavits sufficient under Rule 56 for summary judgment. Moreover, as we discuss later, the ninety-day requirement was neither waived nor tolled in this case. . We said in Cooper that \"[sjubsequent litigation has made clear that Franks did not unconditionally reject the constructive notice doctrine for all circumstances in Title VII litigation,” citing Decker. Since the opinion in Decker was vacated subsequent to Cooper by en banc consideration, it obviously is not binding upon us. In Decker, suit was filed eighty-eight days after the plaintiff received notice of her right to sue, but ninety-one days after notice was delivered to her attorney. The panel characterized Franks’ discussion of the constructive receipt doctrine as dicta and distinguished Franks because, as in our case, notice was actually received by the claimant with plenty of time in which to act within the ninety-day period. The panel went on to hold that notice to the claimant’s attorney commenced the running of the ninety-day period. The en banc court remanded the case for an evidentiary hearing on the existence of the attorney-client relationship between the claimant and her lawyer. 670 F.2d at 507. On remand, the district court, applying the Eleventh Circuit’s flexible case-by-case approach to the commencement of the ninety-day period, determined that, because of questions about the scope of the relationship between claimant and her attorney, receipt by the attorney did not commence the ninety-day period. 558 F.Supp. 445, 449 (M.D.Fla.1983). As noted, we of course are not bound by the panel opinion in Decker. We think, however, that it correctly characterizes the nature of Franks’ discussion of constructive receipt. Cooper itself concerned Civil Service Commission regulations under which a federal employee has only fifteen days after receipt of notice of an adverse agency determination on a discrimination charge to appeal that determination to the agency review board. The court in Cooper construed those regulations to require actual receipt by the employee of the notice. In so doing, however, the court suggested that a distinction could be drawn between the" }, { "docid": "8656104", "title": "", "text": "a second right to sue letter from the EEOC. The EEOC sent a photocopy of the original right to sue letter to Harper and her attorney in March 1981. Plaintiff did receive this letter. With new counsel, Mrs. Harper then filed this suit. The district court granted defendant’s motion for summary judgment, finding the suit time barred, after concluding that notice to Harper’s counsel was notice to her for purposes of the 90-day filing period. We agree and rely upon the reasoning of the district court. Accord: Decker v. Anheuser-Busch, 632 F.2d 1221 (5th Cir. 1980); Gonzalez v. Stanford Applied Engineering, 597 F.2d 1298 (9th Cir.1979). Additionally, we note that Mrs. Harper did not notify the EEOC of her change of address as she had agreed to. Had she done so, we must assume that she would have personally received the original of the right to sue letter from the EEOC in 1980. Under these circumstances, we find no “recognized equitable grounds” to toll the running of the 90-day limitation. Stebbins v. Nationwide Mutual Ins. Co., 469 F.2d 268 (4th Cir.1972), cert. den. 410 U.S. 939, 93 S.Ct. 1403, 35 L.Ed.2d 606 (1973). Accordingly, the judgment of the district court is AFFIRMED." }, { "docid": "18589604", "title": "", "text": "not federal employees differs slightly. It provides that the EEOC “shall ... notify the person aggrieved [of final adverse agency action] and within ninety days after the giving of such notice a civil action may be brought.” 42 U.S.C. § 2000e-5(f)(l) (1982). However, both provisions refer to notice not to service or filing. Compare Fed.R. Civ.P. 5(c); Fed.R.App.P. 3(a). . See, e.g., Jones v. Madison Service Corp., 744 F.2d 1309, 1311-14 (7th Cir.1984); Harper v. Burgess, 701 F.2d 29, 30 (4th Cir. 1983); Thomas v. KATV Channel 7, 692 F.2d 548, 549-51 (8th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983); Decker v. Anheuser-Busch, 632 F.2d 1221, 1223-24 (5th Cir. 1980), vacated and remanded, 670 F.2d 506 (5th Cir.1982) (en banc); Gonzales v. Stanford Applied Engineering, Inc., 597 F.2d 1298, 1299 (9th Cir.1979). . See, e.g., St. Louis v. Alverno College, 744 F.2d 1314, 1316-17 (7th Cir.1984); Lewis v. Conners Steel Co., 673 F.2d 1240, 1242-43 (11th Cir. 1982). . See Espinoza v. Missouri Pacific R.R., 754 F.2d 1247, 1248-50 (5th Cir.1985); Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983); Bell v. Eagle Motor Lines, Inc., 693 F.2d 1086, 1086-87 (11th Cir.1982); Archie v. Chicago Truck Drivers Helpers & Warehouse Workers Union, 585 F.2d 210, 213-16 (7th Cir.1978). . If a certified letter, a registered letter, insured mail, or other mail requiring a receipt is undelivered for a specific period, it is under Postal Service regulations returned to the sender. That was done in this case, for the envelope is attached to the affidavit of Dolores L. Rozzi, Director of the EEOC Office of Review and Appeals. Thus the return of the letter put the EEOC on notice that Hornsby in fact did not receive notice of its final action. So far as the record discloses, the EEOC made no effort to convey to Hornsby actual notice by some other means such as regular mail." }, { "docid": "8656103", "title": "", "text": "PER CURIAM: Robin Harper appeals the grant of summary judgment for the defendant in the sexual employment discrimination suit she filed against her former employer pursuant to 42 U.S.C. § 2000e. The district court granted defendant’s motion for summary judgment because Harper’s civil suit was not timely filed within 90 days as required by 42 U.S.C. § 2000e-5(f)(l). While Mrs. Harper had been issued a right to sue letter by the Equal Employment Opportunity Commission (EEOC) on April 30, 1980, she did not file suit in district court until June 8, 1981. We affirm. Mrs. Harper was represented by an attorney when she negotiated her claim with the EEOC, who sought a right to sue letter from the EEOC in April 1980. It is not disputed that he received a copy of the right to sue letter when it was issued in 1980. Mrs. Harper did not herself receive the original of that letter, assumedly because she had moved and failed to notify the EEOC of her change of address. Mrs. Harper’s counsel then sought a second right to sue letter from the EEOC. The EEOC sent a photocopy of the original right to sue letter to Harper and her attorney in March 1981. Plaintiff did receive this letter. With new counsel, Mrs. Harper then filed this suit. The district court granted defendant’s motion for summary judgment, finding the suit time barred, after concluding that notice to Harper’s counsel was notice to her for purposes of the 90-day filing period. We agree and rely upon the reasoning of the district court. Accord: Decker v. Anheuser-Busch, 632 F.2d 1221 (5th Cir. 1980); Gonzalez v. Stanford Applied Engineering, 597 F.2d 1298 (9th Cir.1979). Additionally, we note that Mrs. Harper did not notify the EEOC of her change of address as she had agreed to. Had she done so, we must assume that she would have personally received the original of the right to sue letter from the EEOC in 1980. Under these circumstances, we find no “recognized equitable grounds” to toll the running of the 90-day limitation. Stebbins v. Nationwide Mutual Ins." }, { "docid": "15579840", "title": "", "text": "member of her office staff, received the notice on February 12th and that receipt by Petersen was constructive receipt by Decker. With regard to the first issue, the Court notes that the receipt on the certified letter is clearly dated February 12, 1976. Thus, although the Court has some doubts, it will accept that Petersen’s office received the letter on February 12th. See footnote 3 supra. The defendant avers that an attorney’s receipt of a notice of right to sue operates as a constructive receipt by the plaintiff. Citing Gonzalez v. Stanford Applied Engineering, 597 F.2d 1298 (9th Cir.1979). The exact statement by the Gonzalez Court supporting this proposition is: “We hold that when the request for issuance of a right to sue letter comes from a claimant’s attorney, notice to the attorney that the right to sue has been granted starts the time running.” Id. at 1299. Thus, in Gonzalez, not only did the attorney request a right to sue letter but the letter was specifically addressed to the attorney and the plaintiff was also simultaneously mailed his own letter. The facts of Gonzalez are consequently unlike the present case. Neither Petersen nor Decker requested a right to sue letter. The letter was not addressed to Petersen but to Decker in care of Petersen. Petersen had no actual or apparent authority to open Decker’s mail. Finally, unlike Gonzalez, Decker herself was never mailed a notice of right to sue. The Gonzalez Court stressed the importance of the attorney’s request for a notice of right to sue. The Court stated: “Communication with the attorney respecting a right to sue letter that he himself requested on behalf of his client was communication with the client in the proper and appropriate way.” Id. In view of the Gonzalez Court’s emphasis on the attorney’s request for the right to sue letter and the other facts in Gonzalez which are dissimilar to the present case, this Court does not find Gonzalez persuasive precedent. While not yet having specifically addressed the question of constructive receipt by an attorney, the Eleventh Circuit has adopted a flexible" }, { "docid": "6995841", "title": "", "text": "however, as noted above, was sent and did receive notice well within the presumptive 65 days. Penner is also distinguishable from the present case in that Penner’s mental incapacity arguably prevented him from timely pursuing his remedies himself or notifying his attorney. Nothing in the record here suggests that Flores was prejudiced in any way. As relevant by analogy, we look to cases interpreting the judicial review provision of Title VII, 42 U.S.C. § 2000e-5(f)(l). See Noe v. Ward, 754 F.2d 890 (10th Cir.1985); Hernandez v. Hill Country Telephone Co., 849 F.2d 139 (5th Cir.1988). Section 2000e — 5(f)(1) provides that if the Equal Employment Opportunity Commission (EEOC) dismisses a charge, it “shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought.” Title VII, like the Act, allows a claimant only a limited time from the receipt of notice in which to bring suit. In Noe, the Tenth Circuit was presented with the same issue we now face: whether receipt of notice by the individual or the attorney started the ninety-day period. The plaintiff received a right to sue letter from the EEOC on April 4, 1983, while her attorney received the letter on April 11, 1983. Plaintiff’s lawsuit was filed on July 7, 1983, 94 days after the plaintiff received notice, but only 87 days after her attorney’s receipt of notice. The Tenth Circuit held that: “In the instant case the plaintiff herself received notice more than 90 days before suit was filed. She may not now complain that the 90 days did not begin to run until the receipt of the “Right to Sue” letter by her attorney seven days later.” Noe, 754 F.2d at 892. We have reached a similar result on slightly different facts. See Hernandez, 849 F.2d at 141. In Hernandez, the attorney received notice of the right-to-sue letter on November 25, 1983, while the claimant did not receive notice until December 7, 1983. Suit was filed on February 27, 1984. The defendants filed a motion to dismiss, contending that the ninety-day period" }, { "docid": "15579835", "title": "", "text": "ORDER GEORGE C. CARR, District Judge. This is a sex discrimination action filed under 42 U.S.C. § 2000e et seq. (Title VII). The action was first brought in May, 1976 and the defendant moved to dismiss the complaint for the plaintiff’s failure to file the action within ninety (90) days of her receipt of the “Notice of Right to Sue” from the Equal Employment Opportunity Commission (EEOC). In May, 1978, this Court denied the defendant’s original motion to dismiss. The Court then granted the defendant’s request for certification of an interlocutory appeal of the Court’s decision pursuant to 28 U.S.C. § 1292(b). A panel of the Fifth Circuit, 632 F.2d 506, rendered a decision on the plaintiff’s appeal but that decision was vacated by the Fifth Circuit’s en banc decision in Decker v. Anheuser-Busch, 656 F.2d 965 (5th Cir.1982). The Fifth Circuit, 670 F.2d 506, reversed and remanded this Court’s Order denying the defendant’s motion to dismiss. The Fifth Circuit Ordered the Court to make specific evidentiary findings concerning: the scope and extent of the attorney client relationship between Judith Petersen and Katherine Decker; authorization, if any, for Petersen to receive mail on Decker’s behalf; the date Petersen personally received the envelope containing the right to sue notice; the date Petersen notified Decker of her receipt of the notice; and when, if ever, Decker received a copy of the notice separate from the notice addressed to her in care of Petersen. While ordering these specific evidentiary findings the Fifth Circuit ultimately desired this Court to determine whether Decker’s Title VII action was timely filed. Pursuant to the Fifth Circuit’s remand, this Court conducted an evidentiary hearing in the case on December 6, 1982. From the testimony elicited at the hearing and the exhibits offered, the Court makes the following evidentiary findings: 1. On June 30, 1975, Decker filed a charge against the defendant with the EEOC. 2. Petersen and Decker had some form of attorney-client relationship which officially began on or before September 8,1976, the date on which Decker filled out one of Petersen’s client cards. The extent and duration" }, { "docid": "6995842", "title": "", "text": "the individual or the attorney started the ninety-day period. The plaintiff received a right to sue letter from the EEOC on April 4, 1983, while her attorney received the letter on April 11, 1983. Plaintiff’s lawsuit was filed on July 7, 1983, 94 days after the plaintiff received notice, but only 87 days after her attorney’s receipt of notice. The Tenth Circuit held that: “In the instant case the plaintiff herself received notice more than 90 days before suit was filed. She may not now complain that the 90 days did not begin to run until the receipt of the “Right to Sue” letter by her attorney seven days later.” Noe, 754 F.2d at 892. We have reached a similar result on slightly different facts. See Hernandez, 849 F.2d at 141. In Hernandez, the attorney received notice of the right-to-sue letter on November 25, 1983, while the claimant did not receive notice until December 7, 1983. Suit was filed on February 27, 1984. The defendants filed a motion to dismiss, contending that the ninety-day period began when Hernandez’s attorney received notice. We rejected that argument, stating: “We have held repeatedly that when the right-to-sue letter is addressed to the claimant, the 90-day period begins to accrue when the claimant receives the notice.” Hernandez, 849 F.2d at 141. While these cases interpreting Title VII are not controlling, we do find them persuasive. The judicial review provisions under both Title VII and the Act condition review on the bringing of suit within a set number of days of notice to the “individual” or the “aggrieved party.” While both statutory schemes allow for notice to a claimant’s attorney, notice to the attorney is not a factor in determining the period in which judicial review can be sought. Thus we hold that here the claimant Flores must be presumed to have received the December 20, 1988 notice by December 26, 1988, and that the sixty day limitations period hence began to run on December 26, 1988, and not on January 4, 1989, when Flores’ attorney allegedly first received his copy of the notiee. Thus," }, { "docid": "4912354", "title": "", "text": "Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th Cir.1983) (en banc); see also Campbell v. Jackson Business Forms Co., 841 F.Supp. 772, 773 (S.D.Miss.1994). When a defendant contends that a plaintiff has failed to file suit timely under Title VII, the burden rests with the plaintiff to prove this condition precedent by showing either that the suit, in fact, was filed timely or that the deadline should be subject to the equitable doctrines of estoppel, tolling, or waiver. Blumberg v. HCA Management Co., 848 F.2d 642, 644 (5th Cir.1988); Stambaugh v. Kansas Dep’t of Corrections, 844 F.Supp. 1431, 1433 (D.Kan.1994). Plaintiff in the instant case contends that her right-to-sue period, which expired on September 4, 1990, should be tolled until April 6, 1993, the date she filed her complaint. As grounds for the tolling request, plaintiff contends that she never received the right-to-sue letter and that mental incapacity during this period also precluded her from filing suit timely. These contentions will be discussed separately. RECEIPT OF THE RIGHT-TO-SUE LETTER The United States Supreme Court has stated that the 90-day filing period in Title VII begins to run on the date the complainant receives the right-to-sue notice, and not when the EEOC issues the notice. In Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1250 (5th Cir.1985), the Fifth Circuit held that “giving notice to the claimant at the address designated by him suffices to start the ninety day period unless claimant, through no fault of his own, failed to receive the right to sue letter,-” Contending that neither she nor her daughter received the EEOC’s right-to-sue letter, allegedly mailed on or about May 23, 1990, plaintiff seeks to fit her circumstance under the cloak of the above-enunciated jurisprudence. Alas, she cannot; the reasons are multiple. Plaintiff avers that she never saw the right-to-sue letter. She testified that no one showed it to her. Yet, what impacts as a blow to plaintiffs credibility, plaintiffs husband testified that he had seen the letter and that plaintiff was the one who showed it to him. He does not remember" }, { "docid": "23591375", "title": "", "text": "the alleged attorney-client relationship. On review, the Eighth Circuit declined to follow Decker and adopted for private employees the rationale of Craig v. Department of HEW, 581 F.2d 189 (8th Cir.1978), a case dealing with the Title VII provisions for federal employees. Under that rationale, receipt of the letter by an attorney can satisfy the statutory requirements when certain conditions are met. The Thomas decision noted two of those conditions: whether the letter is addressed in accordance with the specific directions of the claimant and whether the receipt is personally acknowledged by the designated representative. Thomas v. KATV Channel 7, 692 F.2d at 550. Two additional approaches have been developed in other circuits to deal with this type of situation. One, mentioned above, is the Fifth Circuit’s general rule stated in Decker v. Anheuser Busch, 632 F.2d at 1223, that a request by an attorney (or, presumably, the claimant) that the notice be sent to the attorney is binding on the claimant. The need for greater specificity is demonstrated by the subsequent remand in that case for an evidentiary hearing on the nature of the attorney-client relationship. 670 F.2d 506. Another approach, which covers all instances of third-party receipt, is that taken by the Eleventh Circuit and discussed most fully in Lewis v. Conners Steel Company, 673 F.2d 1240 (11th Cir.1982) (per curiam). This approach essentially involves looking at whether the delay in bringing suit was the “fault” of the claimant. As noted later, this approach requires determining the issue on a case-by-case basis. Bell v. Eagle Motor Lines, Inc,, 693 F.2d 1086 (11th Cir.1982). We believe that the most crucial concept in this matter, and a concept that determined many of these decisions, including Archie, is the actual knowledge that the time period in which a suit can be filed has commenced. Such knowledge is conveyed equally well through personal receipt of the right-to-sue letter by the claimant and through receipt of that letter by the attorney representing him in the action. The problems which have been encountered elsewhere revolve around questions as to whether, and when, the letter" }, { "docid": "15579845", "title": "", "text": "simply too many oddities in the Decker-Petersen relationship and deviations from what is presumably standard EEOC procedures to hold Decker to the severe result of constructive receipt. As only the date of Decker’s actual receipt of the EEOC’s notice of right to sue will count for purposes of the statute of limitations, the plaintiff’s suit was timely filed. Accordingly, the defendant’s motion to dismiss is DENIED. . See 42 U.S.C. § 2000e-5(f)(l). Section 706(f)(1) provides in pertinent part: If a charge filed with the Commission ... is dismissed by the Commission, .. . the Commission ... shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . In order to express her feelings towards the EEOC, Petersen wrote a letter on February 12, 1976 to Duke Beasley, the Acting Regional Director of the EEOC, which in essence complains that the EEOC was disregarding her rights as Decker’s attorney and was bypassing her and dealing directly with Decker. The letter evidences Petersen’s ignorance of the EEOC’s decision to issue the right to sue letter. . Although the receipt on the certified letter states that the letter was received on February 12, 1976, there is a real question in the Court’s mind whether the date on that receipt is accurate. The EEOC mailed Decker’s notice in care of Petersen on February 11, 1976 but it bore the wrong address and had the wrong zip code for that address. See Transcript of Evidentiary Hearing at 146-47. Thus, it is debatable whether the letter arrived in Petersen’s office the next day after the mailing. . The defendant also cites several Fifth Circuit cases which in dicta state that receipt by an attorney of the plaintiffs notice of a right to sue could trigger the time period for Title VII. Franks v. Bowman Trans. Co., 495 F.2d 398 (5th Cir.1974), rev’d and remanded on other grounds, 424 U.S. 747, 749, 96 S.Ct. 1251, 1257, 47 L.Ed.2d 444 (1976); Huckeby v. Frozen Food Express, 555 F.2d 542 (5th" } ]

[ { "docid": "22788850", "title": "", "text": "date he was adjudged a bankrupt, . . . to all . . . (5) property which prior to the filing of the petition he could by any means have transferred or which-might have been levied upon and sold under judicial process against him.” The District Court, Hazel, J., held that the reasonable construction of this provision was that. the.trustee was vested with the title which the bankrupt had to property situated as described, and not otherwise, and quoted from the opinion of the Circuit Court of Appeals for the Second Circuit in the case of In re New York Economical Printing Company, 110 Fed. Rep. 514, upholding that view, as follows: “The bankrupt act does not vest the trustee with any better right or title to the bankrupt’s property than belongs to the bankrupt or to his creditors at the time when the trustee’s title accrues. The present act, like all preceding bankrupt acts,-\"contemplates that a lien good at that time as against the debtor and as against all of his creditors shall remain undisturbed. If it is one which has befen obtained in contravention of some provision of the act, which is fraudulent as to creditors, or invalid as to creditors for want of record, it is invalid as to the .trustee.” And the Circuit Court of Appeals, adhering to that decision, •held in this case that, inasmuch as by the New York statute .'a conditional sale such as that in question was void only as against subsequent purchasers or pledgees or mortgagees in good faith, the District Court was right, and affirmed the judgment. 118 Fed. Rep. 1017. We concur in this view which is sústained by decisions under previous bankruptcy laws, Winsor v. McLellan, 2 Story, 492; Donaldson v. Farwell, 93 U. S. 631; Yeatman v. Savings Institution, 95 U. S. 764; and is not shaken by a different result in cases arising in States by whose laws conditional sales are void as against creditors. In our opinion, these machines were not, prior to the filing .of the petition, property which, under the law of New" } ]

[ { "docid": "8169536", "title": "", "text": "or both. . In re Chase, 59 C. C. A. 629, 124 Fed. 753. The last, cited case well expresses the broad and liberal spirit which pervades the bankruptcy act. It is there said by Circuit Judge Putnam, in delivering the unanimous opinion of the Circuit Court of Appeals of the First Circuit, as follows: “It is settled that a trustee in bankruptcy has no equities greater than those-of the bankrupt, and that he will be ordered to do full justice, even in some cases where the circumstances would give rise to no legal right, and, perhaps, not even to a right which could be enforced in a court of equity as against an ordinary litigant. Williams’ Law of Bankruptcy (7th Ed.) 191. Indeed, bankruptcy proceeds on equitable principles so broad that it will order a repayment when such principles require it, notwithstanding the court or the trustee may have received the fund without such compulsion or protest as is ordinarily required for recovery in the courts either of common law or chancery.” . See to the same effect the following cases: Hutchinson v. Le Roy, 51 C. C. A. 159, 113 Fed. 202, 205; Hutchinson v. Otis, 53 C. C. A. 419, 115 Fed. 937, 940: Batchelder & Lincoln Co. v. Whitmore, 122 Fed. 355, 58 C. C. A. 517. The trustees stand in the shoes of the bankrupt. Whatever rights a third party had against the property of a bankrupt before adjudication, that party, in the absence of fraud or fixed liens created Instate statutes in favor of others, has against his estate in bankruptcy. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577; Humphrey v. Tatman, 198 U. S. 91, 25 Sup. Ct. 567, 49 L. Ed. 956; York Mfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782. In Thompson v. Fairbanks, the Supreme Court said: “Under the present bankrupt act, the trustee takes the property of" }, { "docid": "9543038", "title": "", "text": "mortgage given by Pampel directly to Kimpton. Motion is made to dismiss the proceedings upon the grounds, first, that this court has no jurisdiction, because the review sought cannot be had under section 24b of the act; and, second, because the case was decided on questions of fact, which cannot be reviewed in this proceeding. Were we to entertain jurisdiction under section 24b, it is clear we could not review the determination of the lower court upon the questions of fact involved in the decree sought to be reviewed. Mueller v. Nugent, 184 U. S. 1, 9, 22 Sup. Ct. 269, 46 L. Ed. 405; First National Bank v. Title & Trust Co., 198 U. S. 280, 291, 292, 25 Sup. Ct. 693, 49 L. Ed. 1051; Courier-Journal Job Printing Co. v. Brewing Co. (C. C. A. 6) 101 Fed. 699, 703, 41 C. C. A. 614; In re Taft (C. C. A. 6) 133 Fed. 511, 513, 66 C. C. A. 385; In re Throckmorton (C. C. A. 6) 149 Fed. 145, 146, 79 C. C. A. 15; In re Stewart (C. C. A. 6) 179 Fed. 222, 228, 102 C. C. A. 348. But, in our opinion, the proceedings must be dismissed for lack of jurisdiction. The distinction between “proceedings in bankruptcy,” reviewable under section 24b and the “controversies arising in bankruptcy proceedings,” appealable under section 24a, is clearly defined; the former including “administrative orders and decrees in the ordinary course of bankruptcy between the filing of the petition and the final settlement of the estate,” and the latter including “those independent or plenary suits which concern the bankrupt’s estate and arise by intervention or otherwise between the trustees representing the bankrupt’s estate and claimants representing some right or interest adverse to the bankrupt or his general creditors.” The remedies afforded by the two subsections referred to are mutually exclusive. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Coder v. Arts, 213 U. S. 223, 233, 235, 29 Sup. Ct. 436, 53 L. Ed. 772; Tefft, Weller & Co." }, { "docid": "11067857", "title": "", "text": "exceed one year's rent:” While the statute allows the landlord one year’s rent where the goods liable to distress are taken in execution, it was decided in Longstreth v. Pennock, 87 U. S. 575, 22 L. Ed. 451, that where the goods are taken by an assignee in bankruptcy the claim of the landlord to a year’s rent is within the equity of the statute which gives a preference' in case of execution. It would appear, then, that the bankrupt act having given a priority to any person who under the laws of the state would be entitled to a priority, and the statute of Pennsylvania having entitled the landlord to one year’s rent out of the proceeds of the sale of goods on the premises liable to distress, the landlord is such person as is provided by the section of the bankrupt act referred to, and the debt such an one as is entitled to priority. It was argued that the case of York Manufacturing Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782, 15 Am. Bankr. Rep. 633, which decided that the trustee in bankruptcy was vested with no better right or'title to the bankrupt’s property than belonged to the bankrupt, following Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 574, 13 Am. Bankr. Rep. 437, where the court said: “Under the present bankrupt act the trustee takes the property of the bankrupt, in eases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt, except in cases where there has been a conveyance or incumbrance of the property which is void as against 'the trustee by some positive provision of the act” —qualified the doctrine of Longstreth v. Pennock, supra. We are of opinion that those decisions do not qualify the doctrine of that case, but rather emphasize the right of the landlord to claim his rent; all the goods on the premises being under" }, { "docid": "3061928", "title": "", "text": "while the application was made within 10 days after the denial of motion for rehearing, such motion was not made until more than 10 days after the entry of the order complained of, and the right to appeal, once lost, was not revived by the petition for rehearing. Conboy v. First Nat. Bank, 203 U. S. 141, 27 Sup. Ct. 50, 51 L. Ed. 128. We have no power to allow an appeal not taken within the statutory period. The application was, however, presented in time for appeal under section 24a. As to the right of review under section 24a: It is clear that if Rode & Horn had intervened merely for the assertion of their right to the lumber in question, and so to secure its possession, or merely for the purpose of establishing a claimed lien thereon, a “controversy” within section 24a would have arisen. Hewit v. Berlin Machine Works, 194 U. S. 296, 300, 24 Sup. Ct. 690, 48 L. Ed. 986;. York Mfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782; Security Warehousing Co. v. Hand, 206 U. S. 415, 27 Sup. Ct. 720, 51 L. Ed. 1117, 11 Ann. Cas. 789; Coder v. Arts, 213 U. S. 223, 234, 29 Sup. Ct. 436, 53 L. Ed. 772, 16 Ann. Cas. 1008; Knapp v. Milwaukee Trust Co., 216 U. S. 545, 553, 30 Sup. Ct. 412, 54 L. Ed. 610; In re Doran (C. C. A. 6) 154 Fed. 467, 468, 83 C. C. A. 265. Aside from the claim for advances made on the lumber discarded on inspection, and the claim for return of money as obtained by fraud, the only difference is that they presented their claim of ownership to the lumber in connection with their claim as creditors (as dependent upon the determination of the question of ownership), and including questions of priority between themselves and King and Vaughan. Do these facts distinguish the present case from those last cited; there being upon this review no controversy over the claim of plaintiffs in error as general" }, { "docid": "3065893", "title": "", "text": "will that his debts be paid serves to charge such debts on his realty. Shreve v. Shreve, 17 N. J. Eq. 487. By reason of such charge the creditor obtains an equitable estate or interest in such realty enforceable within 20 years from the testator’s death. McKinley v. Coe, 66 N. J. Eq. 77, 57 Atl. 1030. The laws of the state where the assets are control as to the nature and effect of the lien. Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577; Humphrey v. Tatman, 198 U. S. 91, 25 Sup. Ct. 567, 49 L. Ed. 956; Hiscock v. Varick Bank of New York, 206 U. S. 28, 27 Sup. Ct. 681, 51 L. Ed. 945. That the personal estate is the primary fund from which the debts of a decedent are to be paid is of no moment on the general question here considered. These equitable liens in favor of the creditors of decedent were not lost by the passing of the legal title of the lands affected to the trustee, for such property passed in the same plight and condition as that in which the bankrupt herself held it, and subject to all the equities impressed upon it in the hands of the bankrupt. York Manufacturing Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782; Bryant v. Swofford Bros., 214 U. S. 279, 29 Sup. Ct. 614, 53 L. Ed. 997. The trustee does not deny that such an equitable lien or charge upon the realty of the decedent inured to his creditors, but contends that, in this case, by their conduct with relation to the bankrupt’s continuing the business of the decedent, they waived their liens, or that they are estopped from claiming any priority over the debts incurred by the bankrupt;' The bankrupt mingled $5,000 insurance, payable to her on a policy on her husband’s life, with the moneys derived from her husband’s business continued by her and. the income from his real ; estate, and applied them indiscriminately to the" }, { "docid": "12975959", "title": "", "text": "E. 618; Bank v. Jagode, 186 Pa. 556, 40 Atl. 1018, 65 Am. St. Rep. 876. 5. The appellant lenders finally assert that, if they have neither the negotiable receipts of a public warehouseman nor a pledge through an unequivocal possession by their agent, the security company, nevertheless they have “equitable liens” which entitle them to the possession of the property as against the trustees. The trustee succeeds, as of the date of the adjudication, not only to the bankrupt’s title and possessory right to the property, but also to the right of the bankrupt’s creditors to assert that the title and possessory right, as to them, is in the bankrupt. Section 70'a (4) and (5) ; section 70e (30 Stat. 565, 566' [U. S. Comp. St. 1901, pp. 3451, 3452]). Liens that remain undisturbed are those that were good against both the bankrupt and his creditors immediately preneeding the adjudication. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577; Chesapeake Shoe Co. v. Seldner, 122 Fed. 593, 58 C. C. A. 261. The conclusion results not merely from a consideration of the nature of the trustee’s-succession, but as well from the inhibitions of the act. Section 67a (30 Stat. 564 [U. S. Comp. St. 1901, p. 3449] vitiates as liens all “claims which\" for want of record or for other reasons” the bankrupt’s creditors might have avoided as liens; that is, no secret liens or equities shall prevail against the trustee that were not good against the general unsecured creditors represented by the trustee. Section 67d protects “liens given or accepted in good faith * * * and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice.” The liens thus saved are liens, not promises to give liens, not equitable claims that what ought to have been done shall be considered done, but liens perfected according to law. “Notice” as well as “a present" }, { "docid": "8879850", "title": "", "text": "creditors, and also under the bankrupt law, as having been given, when insolvent, for the purpose of preferring one W. A. McCrea, a creditor—the bank being aware of the bankrupt’s insolvency, and of his purpose to prefer said McCrea—and that the mortgage was therefore not a lien given or accepted in good faith, but in fraud of the bankrupt act. 1. This may be properly regarded as a controversy arising out of the settlement of the bankrupt’s estate, and the appeal to this court as one admissible under section 24a of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431]). In Hewit v. Berlin Machine Works, 194 U. S. 296, 300, 24 Sup. Ct. 690, 691, 48 L. Ed. 986, the Berlin Machine Works asserted title to certain chattels, which had been conditionally sold to the bankrupt, by an intervention. Of the issue thus raised, the court said: “The controversy may be treated as one of those controversies arising in bankruptcy proceedings over which the Circuit Court of Appeals could, under section 24a, exercise appellate jurisdiction, as in other cases. Section 25a (30 Stat. 553 [U. S. Comp. St. 1901, p. 3432] relates to appeals from judgments in certain enumerated steps in bankruptcy proceedings, in respect of which special provision therefor was required (Holden v. Stratton, 191 U. S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116), while section 24a relates to controversies arising in bankruptcy proceedings in the exercise by the bankruptcy courts of the jurisdiction vested in them at law and in equity by section 2, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420] to settle the estates of bankrupts, and to determine controversies in relation thereto. Hutchinson v. Otis, 190 U. S. 552, 23 Sup. Ct. 778, 47 L. Ed. 1179; Burleigh v. Foreman, 125 Fed; 217, 60 C. C. A. 109.” In re Soudan Mfg. Co., 113 Fed. 804, 806, 51 C. C. A. 476. In Cunningham v. German Ins. Co., 103 Fed. 932, 43 C. C. A. 377, and 101 Fed. 977," }, { "docid": "8879849", "title": "", "text": "in case the mortgagor shall commit “any waste or nuisance, or attempt to secrete or remove the above-described goods or chattels or any part thereof; or if the said grantee * * * shall before said money becomes due deem it necessary for his or their more complete and perfect security,” etc., “and expose the mortgaged property to public sale.” The mortgage concludes as follows: “And until default shall be made In the payment of said Indebtedness or breach shall have been made in the performance of any of said covenants on the part of said grantor, the said grantor to remain and continue in the quiet peaceable possession of said goods or chattels and in the full and free enjoyment of the same.” This stock was suffered to remain in the possession of the mortgagor until dispossessed by the receiver and trustee in bankruptcy. The referee, upon the law and facts of the case, held that the mortgage was invalid and unenforceable against the trustee, because void under the law of Ohio, as against creditors, and also under the bankrupt law, as having been given, when insolvent, for the purpose of preferring one W. A. McCrea, a creditor—the bank being aware of the bankrupt’s insolvency, and of his purpose to prefer said McCrea—and that the mortgage was therefore not a lien given or accepted in good faith, but in fraud of the bankrupt act. 1. This may be properly regarded as a controversy arising out of the settlement of the bankrupt’s estate, and the appeal to this court as one admissible under section 24a of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431]). In Hewit v. Berlin Machine Works, 194 U. S. 296, 300, 24 Sup. Ct. 690, 691, 48 L. Ed. 986, the Berlin Machine Works asserted title to certain chattels, which had been conditionally sold to the bankrupt, by an intervention. Of the issue thus raised, the court said: “The controversy may be treated as one of those controversies arising in bankruptcy proceedings over which the" }, { "docid": "8879856", "title": "", "text": "the rule of the Ohio court, is the effectual decision and ruling of the court) of the case of Francisco v. Ryan, cited above, is as follows: “(1) A mortgage on a stock of merchandise, though made In good faith to secure a bona fide debt of the mortgagor, when it allows him to retain possession with a power of sale in the course of his business, is ineffectual to create a lien as against creditors of the mortgagor who assert their rights against the property while it remains under his control; but it is valid as between parties, and when the mortgagee takes possession.” But it is said that such a mortgage is good between the parties and good against creditors who do not obtain some lien upon it before the mortgagee takes possession, actual fraud out of the way, and that no creditor had seized upon this property prior to the adjudication in bankruptcy, and that the trustee’s title is no better than that of the mortgagor. For this Hewit v. Berlin Machine Co., 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986, is cited. But in that case the unrecorded conditional sale, with agreement that title should remain in the vendor of the machinery until the purchase price was. paid, was good, under the law of New York, as against everybody except subsequent purchasers or pledgees or mortgagees in good faith. Being good against the bankrupt and his creditors under the law of the state where the property was situated, it was held good against the bankrupt and his trustee. But such is not the law of Ohio. In the cases already cited it is de cided that the retention of possession by the mortgagor, with a power of disposition by sale, makes the mortgage ineffectual as against creditors who assert a claim before the mortgagee takes actual possession. Section 67a of the bankrupt law (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449]) provides that “claims which for want of record or for other reasons would" }, { "docid": "8169537", "title": "", "text": "to the same effect the following cases: Hutchinson v. Le Roy, 51 C. C. A. 159, 113 Fed. 202, 205; Hutchinson v. Otis, 53 C. C. A. 419, 115 Fed. 937, 940: Batchelder & Lincoln Co. v. Whitmore, 122 Fed. 355, 58 C. C. A. 517. The trustees stand in the shoes of the bankrupt. Whatever rights a third party had against the property of a bankrupt before adjudication, that party, in the absence of fraud or fixed liens created Instate statutes in favor of others, has against his estate in bankruptcy. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577; Humphrey v. Tatman, 198 U. S. 91, 25 Sup. Ct. 567, 49 L. Ed. 956; York Mfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782. In Thompson v. Fairbanks, the Supreme Court said: “Under the present bankrupt act, the trustee takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt, except in cases where there lias been a conveyance or incumbrance of the property which is void as against the trustee by some positive provision of the act.” In the light of these authorities we have no hesitation in holding that the equitable charge created by the parties before the bankruptcy of the coal company should be enforced against the estate in the hands of its trustees. Counsel for the trustees contend that no lien, equitable or otherwise, was created by the subsequent agreement, because it ivas not in writing- and signed by the parties to be charged as required Insertion 3173, Gen. St. Kan. 1901, commonly known as the “statute of frauds.” We find it unnecessary to consider the interesting question debated at the bar whether the oral agreement was such a substantive modification of the original one as distinguished" }, { "docid": "16868552", "title": "", "text": "the present act to exercise those powers, I do not think the general principle that he is bound by the bankrupt’s representations and estoppels can be invoked to prevent their exercise. As between him and a creditor relying on the want of record and the mortgagee, the creditor would not be estopped merely by a representation which the bankrupt had made to the mortgagee. The creditor’s rights depend, not upon recitals or representations of the mortgagor as to his residence, but upon the fact of such residence. Stewart v. Platt, 101 U. S. 731, 737, 25 L. Ed. 816. If a creditor would not be -so estopped, neither is the trustee, in view of the language used in section 70e. The trustee is not a “party” to the mortgage, by the law of Massachusetts. Haskell v. Merrill, 179 Mass. 120, 125, 60 N. E. 485. Nor, where his powers under section 70e are concerned, can he be so regarded under the present bankruptcy act. See In re Shaw (D. C.) 146 Fed. 273, 278. Section 70e, it is true, vests the trustee with “the title of the bankrupt” ; and it is true, also, under the present act, for many purposes, that he “takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it,- and subject to the equities impressed upon it in the hands of the bankrupt.” Thompson v. Fairbanks, 196 U. S. 516, 526, 25 Sup. Ct. 306, 49 L. Ed. 577; York, etc., Co. v. Cassell, 201 U. S. 344, 352, 26 Sup. Ct. 481, 50 L. Ed. 782. But all this is always subject to the qualification expressly stated in Thompson v. Fairbanks, 196 U. S. 526, 25 Sup. Ct. 310, 49 L. Ed. 577, “except in cases where there has been a conveyance or incumbrance of the property which is void as against the trustee by some positive provision of the act.” See, also, First National Bank v. Staake, 202 U. S. 141, 149, 26 Sup. Ct. 580, 50 L. Ed. 967. It" }, { "docid": "3600889", "title": "", "text": "or taken by either the surety company, the city, or the commission, prior to the filing of the petition and adjudication in bankruptcy. Security Warehousing Co. v. Hand, 206 U. s. 415, 426, 27 Sup. Ct. 720, 51 L. Ed. 1117, 11 Ann. Cas. 789; Marquam v. Sengfelder, 24 Or. 2, 32 Pac. 676; Williams v. Gillespie, 30 W. Va. 586, 5 S. E. 210. As already stated, neither the surety company, the city, nor the commission took or gained anything as against the receiver or trustee in bankruptcy by taking and using the materials and incorporating them into' the building after the filing of the petition in bankruptcy and adjudication. Even if this taking and using would have perfected a pledge, had the taking been done before the petition was filed, such agreement of pledge could not be given life or effect as against the trustee in bankruptcy by taking or obtaining possession of the property thereafter. Fairbanks Shovel Co. v. Wills, 240 U. S. 642, 649, 36 Sup. Ct. 466, 60 L. Ed. 841. In that case (240 U. S. page 649, 36 Sup. Ct. 466, 60 L. Ed. 841), the court holds: “Appellant’s title was not perfected, as against the trustee in bankruptcy, by taking possession of the dredge under the mortgage after the filing of the petition in bankruptcy and before the adjudication. Since the amendment of section 47a2 of the Bankruptcy Act by Act June 25, 1910, c. 412, § 8, 36 Stat. 838, 840, trustees have the rights and remedies of a lien creditor or a judgment creditor as against an unrecorded transfer. The estaté was in custodia legis from the filing of the petition, and the title of the trustee related back to that date. Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 307 [32 Sup. Ct. 96, 56 L. Ed. 208]; Everett v. Judson, 228 U. S. 474, 478 [33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154].” In that case the chattel mortgage was valid as between the parties, the mortgagor (bankrupt)," }, { "docid": "10030596", "title": "", "text": "United States courts, left the title to the car in the vendor. This being true, the title never passed to the' Pittsburgh Industrial Iron Works, the vendee. It necessarily follows that the trustee in bankruptcy could only take such title as the bankrupt had. He has no greater rights than the bankrupt. York v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782; Security Warehousing Co. v. Hand, 206 U. S. 415, 27 Sup. Ct. 720, 51 L. Ed. 1117; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986. While, therefore, the title to this property remains in the car company, $o far as the bankrupt or. his trustee is concerned, tlie question arises whether or not the First National Bank of Huntingdon, standing in the relation‘of an innocent third party, is entitled to have the car by virtue of its alleged assignment or pledge contained in Exhibit B attached to the petition. As the title to the car never passed from the vendor, we are of opinion, under the law of Michigan, that the First National Bank of Huntingdon acquired no right superior to the vendor, and any rights he may have must be subject to the claims of the vendor. Pettyplace v. Mfg. Co., 103 Mich. 153, 61 N. W. 266, and cases there cited. The First National Bank of Huntingdon, not only claims the car, but also its equipment by virtue of an alleged assignment or pledge of the car and its equipment to it, and we must now decide whether the First National Bank of Huntingdon may claim the car and equipment after satisfying the claim of the American Car & Foundry Company. The contract of pledge, having been made by the parties in Pennsylvania, must be decided by the law of that state. Security Warehousing Co. v. Hand, 206 U. S. 415, 27 Sup. Ct. 720, 51 L. Ed. 1117; Hartford Ins. Co. v. Railway, 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84. It appears'from the agreement of facts" }, { "docid": "12975958", "title": "", "text": "of keys, unlock the warehouse, show the raw materials, and broken stock outside of the slatted inclosure, point out the quantity of goods within the inclosure, •explain the necessity of the inclosure to prevent pilfering of the hosiery, etc., when the warehouse was open; and nothing would warn the creditor of the deception. And the evidence satisfies us that at least one creditor was so deceived. So far from the security company’s maintaining an open, exclusive, unequivocal possession during the two years this arrangement was •carried on, it seems to us that the security company might as well have been eliminated, and the knitting company have employed its own stockkeepers and shipping clerks as custodians for intending, lenders, directly, instead of indirectly through the security company. In that view this becomes one of the cases “in which the exclusive power of the so-called bailee” (Union Trust Co. v. Wilson, 198 U. S. 530, 537, 25 Sup. Ct. 766, 768, 49 L. Ed. 1154) tapers away to nothingness. Drury v. Moors, 171 Mass. 252, 50 N. E. 618; Bank v. Jagode, 186 Pa. 556, 40 Atl. 1018, 65 Am. St. Rep. 876. 5. The appellant lenders finally assert that, if they have neither the negotiable receipts of a public warehouseman nor a pledge through an unequivocal possession by their agent, the security company, nevertheless they have “equitable liens” which entitle them to the possession of the property as against the trustees. The trustee succeeds, as of the date of the adjudication, not only to the bankrupt’s title and possessory right to the property, but also to the right of the bankrupt’s creditors to assert that the title and possessory right, as to them, is in the bankrupt. Section 70'a (4) and (5) ; section 70e (30 Stat. 565, 566' [U. S. Comp. St. 1901, pp. 3451, 3452]). Liens that remain undisturbed are those that were good against both the bankrupt and his creditors immediately preneeding the adjudication. Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516," }, { "docid": "12949936", "title": "", "text": "him for that purpose the bankrupt court has exclusive control, and in this sense, also, may it be said that the “seat” or “membership” was in custodia legis when the trustee sought the aid of the court to adjudicate the claims and liens asserted by O’Dell. The “hearing” from which this appeal comes was a “hearing” under “a proceeding in bankruptcy” within the meaning of section 24b, as distinguished from “a controversy arising in bankruptcy proceedings,” under section 24a. The distinction between the remedy by review in the one class of cases and by appeal in the other is pointed out in Holden v. Stratton, 191 U. S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116, First National Bank of Chicago v. Chicago Title & Trust Company, 198 U. S. 280, 25 Sup. Ct. 693, 49 L. Ed. 1051, and by this court in the case styled In re McMahon (C. C. A., decided October 2, 1906) 147 Fed. 684, wherein we distinguished Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986. In the case at bar the proceeding was instituted by the trustee’s petitioner to bring in O’Dell to adjudicate his claim or lien against property alleged to be in custodia legis. That was the ground of the jurisdiction in the case of First Nat. Bank of Chicago. v. Chicago Title & Trust Co., and in In re McMahon. In both cases the facts made a “proceeding in bankruptcy” reviewable only in matter of law under section 24b. These cases govern this. So, too, the case is distinguishable in this respect from Loeser, Trustee, v. Savings Deposit Bank & Trust Company (decided with the present case) 148 Fed. 975. In the case last mentioned the res was voluntarily surrendered to the bankrupt trustee by a mortgagee in possession who came in and prosecuted his claim to a lien under a mortgage covering the property thus brought in.by him. The appeal must be dismissed as no appeal will lie under section 7 of the Court of Appeals act of 1891 from" }, { "docid": "8166536", "title": "", "text": "it was withdrawn as a homestead, it was exempted from the levy of the execution.” It is not material that such a judgment is by statute made a general lien upon the realty of the debtor, for that does *iiot wrest from him the title, or bring the property into custodia legis, or dispense with an execution as the means of subjecting it to the satisfaction of the judgment. But under tlie bankruptcy act, when a debtor is adjudged a bankrupt, his entire estate, in so far as it is not exempt, is in legal contemplation as effectually brought into custodia legis and appropriated to the payment of his debts as if it were taken in execution or at tachment, subject only to the qualification that, where the act does not specially provide otherwise, as it does in respect of cases affected by fraud, the estate is brought into custodia legis and appropriated in the same plight and condition that the bankrupt himself held it, and subject to all the equities imposed upon it in his hands (In re Pekin Plow Co., 50 C. C. A. 257, 259, 112 Fed. 308, 310; In re Rodgers, 60 C. C. A. 567, 578, 125 Fed. 169, 180; In re Granite City Bank, 70 C. C. A. 316, 137 Fed. 818; State Bank of Chicago v. Cox, 74 C. C. A. 285, 143 Fed. 91; In re Schermerhorn, 76 C. C. A. 215, 145 Fed. 341; In re Blake [C. C. A.] 150 Fed. 279; Mueller v. Nugent, 184 U. S. 1, 14, 22 Sup. Ct. 269, 46 L. Ed. 405; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516, 526, 25 Sup. Ct. 306, 49 L. Ed. 577; York Mfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782) ; and upon the appointment and qualification of the trustee the title is vested in him, as of the date of such adjudication, quite as effectually as if the debtor had conveyed" }, { "docid": "3138828", "title": "", "text": "494, wherein the court held that partnership creditors are entitled to the principal of partnership real estate, although the legal title was in the name of one of the partners without disclosing the right of the partnership, there being no liens of. record against the individual. Nor is the law of Pennsylvania changed or modified in the provisions of the National Bankruptcy Act. It has been conclusively settled that under that act the trustee takes no better right or title to the bankrupt’s property than belonged to the bankrupt at the time the trustee title accrued, and is subject to all the equities imposed upon it in the hands of the bankrupt. The trustee’s title cannot rise higher than that of the bankrupt, so g,s to impinge upon or destroy the interest in or title to the property, good as against the bankrupt himself. Davis v. Crompton, 158 F. 735, 85 C. C. A. 633; York Manufacturing Co. v. Cassell, 201 U. S. 344, 26 S. Ct. 481, 50 L. Ed. 782; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 S. Ct.. 690, 48 L. Ed. 986. Nor is the principle here involved in any manner affected by the supplement to the act of 1910, known as section 47a of the Bankruptcy Act (Comp. St. § 9631). The rights, and remedies of the trustee in bankruptcy are determined by the conditions at the time the petition is filed. While it is provided under section 47a that, as to all property coming into the bankruptcy court, the trustee “shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon” this does not entitle him to claim any higher rights than those which existed against the bankrupt when the petition was filed. All the equities against the bankrupt and all the liens and rights which existed against him at that time can be asserted against his trustee. Keeble v. Deere Plow Co., 190 F. 1910, 111 C. C. A. 668; In re Brown Wagon Co. (D. C.) 224" }, { "docid": "8166537", "title": "", "text": "his hands (In re Pekin Plow Co., 50 C. C. A. 257, 259, 112 Fed. 308, 310; In re Rodgers, 60 C. C. A. 567, 578, 125 Fed. 169, 180; In re Granite City Bank, 70 C. C. A. 316, 137 Fed. 818; State Bank of Chicago v. Cox, 74 C. C. A. 285, 143 Fed. 91; In re Schermerhorn, 76 C. C. A. 215, 145 Fed. 341; In re Blake [C. C. A.] 150 Fed. 279; Mueller v. Nugent, 184 U. S. 1, 14, 22 Sup. Ct. 269, 46 L. Ed. 405; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986; Thompson v. Fairbanks, 196 U. S. 516, 526, 25 Sup. Ct. 306, 49 L. Ed. 577; York Mfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782) ; and upon the appointment and qualification of the trustee the title is vested in him, as of the date of such adjudication, quite as effectually as if the debtor had conveyed it to him on that date. Indeed, the bankruptcy proceedings have a further effect, for as was said in respect of the act of 1867 in Bank v. Sherman, 101 U. S. 403, 406, 25 L. Ed. 866: “The filing of the petition was a caveat to all the world. It was in effect an attachment and injunction. Thereafter all the property rights of the debtor were ipso facto in abeyance until the final adjudication. If that were in his favor, they revived and were again in full force. If it were against him, they were extinguished as to him, and vested in the assignee for the purposes of the trust with which he was charged. The bankrupt became, as it were, for many purposes, civiliter mortuus. Those who dealt with his property in the interval between the filing of the petition and the final adjudication did so at their peril. They could limit neither the power of the court nor the effect of the final exercise of its jurisdiction. With the intermediate steps they" }, { "docid": "10030595", "title": "", "text": "to the carrier at Detroit. This is strengthened by the conduct of the vendor when the car was delivered to the carrier at Detroit, for at that time, March 13, 1907, they made the invoice in triplicate, one of which was mailed to the vendee, which invoice contains the words, as we have seen, “terms cash,” and “title to the property in this invoice reserved in car company until full payment made.” So we have not only the price stated payable at Detroit, the point of shipment, but that price stated to be cash at the time of delivery to the carrier, and title reserved until full payment is made. This, we think, shows conclusively that the sale was for cash, that the car was delivered with the express condition that the terms were cash, and that title would remain in the car company until the price was paid. In our opinion the cases above referred to make the sale a conditional one, which under the law of Michigan, and under the decisions in the United States courts, left the title to the car in the vendor. This being true, the title never passed to the' Pittsburgh Industrial Iron Works, the vendee. It necessarily follows that the trustee in bankruptcy could only take such title as the bankrupt had. He has no greater rights than the bankrupt. York v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782; Security Warehousing Co. v. Hand, 206 U. S. 415, 27 Sup. Ct. 720, 51 L. Ed. 1117; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986. While, therefore, the title to this property remains in the car company, $o far as the bankrupt or. his trustee is concerned, tlie question arises whether or not the First National Bank of Huntingdon, standing in the relation‘of an innocent third party, is entitled to have the car by virtue of its alleged assignment or pledge contained in Exhibit B attached to the petition. As the title to the car never passed from the" }, { "docid": "22865049", "title": "", "text": "believe that it was intended thereby to give a preference, it shall be voidable by the trustee and he may recover the property or its value from such person.” “See. 67. Liens. — d. Liens given or accepted in good faith and not in contemplation of, or in fraud upon this act and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this act. “e. That all conveyances, transfers, assignments or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act, and within four months of the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor.” The following, and many other authorities cited by counsel to sustain their contention, have been examined by the court: City National Bank v. Bruce, 109 Fed. 69, 48 C. C. A. 236; In re Sanderlin (D. C.) 109 Fed. 857; In re Jones (D. C.) 118 Fed. 673; In re Belding (D. C.) 116 Fed. 1016; In re Wolf (D. C.) 98 Fed. 84; In re Pease (D. C.) 129 Fed. 447, 448; In re Gutwillig, 92 Fed. 337, 34 C. C. A. 377; Keppel v. Tiffin Savings Bank, 197 U. S. 356, 25 Sup. Ct. 443, 49 L. Ed. 790; Pollock v. Jones, 124 Fed. 163, 61 C. C. A. 557. But the word “transfer” in section 60a both by the express terms of the bankruptcy law and by authoritative decision includes “the sale and every other and different mode of disposing of, or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift or security.” Section 1, par. 25; Pirie v. Chicago Title & Trust Co., 182 U. S. 438, 444, 21 Sup. Ct. 906, 45 L. Ed. 1171; In re Ed." } ]

[ { "docid": "22330575", "title": "", "text": "Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommenda-tions_ The district judge ... shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions. Fed.R.Civ.P. 72(b). See also 28 U.S.C. § 636(b)(1)(B) (similar); Rules for United States Magistrates (D.Mass.), Rule 3(b) (similar). Appellant tells us that Rule 72(b)’s requirement of a “de novo determination” by the district judge means that an entirely new hand is dealt when objection is lodged to a recommendation. That is not so. At most, the party aggrieved is entitled to a review of the bidding rather than to a fresh deal. The rule does not permit a litigant to present new initiatives to the district judge. We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate. Accord Borden v. Secretary of HHS, 836 F.2d 4, 6 (1st Cir.1987). The role played by magistrates within the federal judicial framework is an important one. They exist “to assume some of the burden imposed [on the district courts] by a burgeoning caseload.” Chamblee v. Schweiker, 518 F.Supp. 519, 520 (N.D.Ga.1981). The system is premised on the notion that magistrates will “relieve courts of unnecessary work.” Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Systemic efficiencies would be frustrated and the magistrate’s role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round. In addition, it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind" } ]

[ { "docid": "12474295", "title": "", "text": "Hill has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2). Therefore, the Court recommends that no Certificate of Appealability should issue with respect to any of petitioner’s claims. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a) (3). The District Court ordinarily will refuse to consider on de novo review arguments, case law and evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to petitioner and respondent. IT IS SO ORDERED. . The prosecutor is referring to the fact that Hill's cousin, Shawn Person, had entered a guilty plea earlier that day to the same charge. . Citations" }, { "docid": "6144383", "title": "", "text": "to the tribe’s interests as a party to the franchise agreement if this action proceeds in its absence, the district court should dismiss the action pursuant to Rule 19 for failure to join an indispensable party. 4. Intervention. Since it is recommended that the action be dismissed for lack of federal question jurisdiction or, in the alternative, for lack of subject matter jurisdiction based on sovereign immunity and failure to join an indispensable party, and in the absence of an independent jurisdictional basis for the proposed intervenor’s claim, it is recommended that Neville Spring’s motion to intervene likewise be denied. Aeronautical Radio, Inc. v. F.C.C., 983 F.2d 275, 283 (D.C.Cir.1993); New York State Energy & Research Development Authority v. Nuclear Fuel Services, Inc., 102 F.R.D. 18, 26-27 (W.D.N.Y.1983). CONCLUSION For the above reasons, it is recommended that this action be dismissed in its entirety. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the" }, { "docid": "12474296", "title": "", "text": "appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to petitioner and respondent. IT IS SO ORDERED. . The prosecutor is referring to the fact that Hill's cousin, Shawn Person, had entered a guilty plea earlier that day to the same charge. . Citations to \"P_” refer to the transcript of the plea hearing. . It is well established that “a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Lefltowitz v. Newsome, 420 U.S. 283, 295, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). Thus, some “[fjederal district courts have held that a valid guilty plea waives any subsequent Brady claim brought in a federal habeas petition.” Dunn v. Senkowski, No. 9:03CV0364(NPM), 2007 WL 2287879, at *13 (N.D.N.Y. Aug. 7, 2007) (citing, inter alia, Gayle v. Lacy, No. 95-CV-633, 1997 WL 610654, at *8 (N.D.N.Y. Oct. 1, 1997) (Pooler, D.J.) (\"By entering a guilty plea and admitting to each and every factual element of the charge, petitioner waived his right to assert" }, { "docid": "6144384", "title": "", "text": "be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendants. So Ordered. DATED: Buffalo, New York November 18, 1993 . In its objection to the Report and Recommendation, plaintiff requests that this Court consoli date the instant action with the following actions: Goeman v. Tonawanda Bank of Seneca Indians, et al., 92-CV-742A; LaFromboise v. Tonawanda Band of Seneca Indians, et al., 92-CV-740A; Peters v. Tonawanda Band of Seneca Indians, et al., 92-CV-739A; Poodry v. Tonawanda Band of Seneca Indians, et al., 92-CV-738A; and Redeye v. Tonawanda Band of Seneca Indians, et al., 92-CV-741A (\"Indian Civil Rights Actions”). Because this Court is adopting the proposed findings of the Report and Recommendation, the Court denies plaintiff's request to consolidate. . Dismissing this action pursuant to Fed.R.Civ.P. 19 results in the dismissal of the counterclaims asserted by the non-moving defendants. . Named Defendant Roy Poodry has not answered, moved or otherwise appeared in this action except by way of an affidavit attached to Plaintiff’s" }, { "docid": "5976197", "title": "", "text": "losses sustained by the Hearys as a result of their ERISA liability. Count One should therefore be dismissed on the pleadings. Y. Rule 11. Finally, ÑECA has moved for sanctions against the Hearys under Fed.R.Civ.P. 11. This motion is denied. ÑECA has failed to demonstrate that Rule 11 has been violated. CONCLUSION Based on the foregoing, it is ORDERED that the Hearys’ motion for leave to amend the third-party complaint is granted, and NECA’s motion for Rule 11 sanctions is denied. The court also recommends the following: • NEBF’s motion for partial summary judgment should be granted, and judgment entered in favor of NEBF and the other plaintiffs. on their ERISA delinquency liability claim. NEBF’s motion strike or sever the third-party action should be granted. Third-party defendants IBEW’s and NECA’s motions to dismiss should be granted in their entirety, and those parties should be dismissed from the case. The remaining third-party defendants’ motions to dismiss should be granted to the extent that they request dismissal of Counts One, Two, Three, Thirteen, Fourteen and Fifteen of the amended third-party complaint, and those motions should be denied in all other respects. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.CivJP. 72(b) and Local Rule 30(a)(3). The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al.," }, { "docid": "5272804", "title": "", "text": "after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3). The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant. SO ORDERED. . Defendants also argue that plaintiffs' complaint does not set forth allegations sufficient to state a claim for negligent hiring under New York com mon law. Plaintiffs have alleged facts sufficient to state such a cause of action. . The monetary limitation of the Small Claims Part was raised from $2000.00 to $3000.00 in August of 1994. See N.Y.U.C.C.A. § 1801 (Supp. 1995). . This information was provided in the space asking for the details of her claim. The actual amount asked for in damages was lowered to $2,000.00 in order to conform to the jurisdictional limitation of the court." }, { "docid": "20843928", "title": "", "text": "copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c). FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir.1995); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c). Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evi-dentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Paterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). SO ORDERED. . Citations to \"T” refer to the Administrative Transcript. (Docket No. 7). . General Order No. 18 provides, in pertinent part, that \"[t]he Magistrate Judge will treat the proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings.” . This five-step process is detailed as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a \"severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a \"listed” impairment is unable to perform substantial gainful" }, { "docid": "504149", "title": "", "text": "permanent disability retirement” under the provisions set forth in the Plan, and the questionable procedure by which it was determined that Plaintiff was ineligible for benefits cannot stand as a substitute for those requirements and provisions. Upon proper application and determination, if Plaintiff is found not to be disabled, he can at that time pursue what ever appeal remedies he may have under the terms of the Plan or under ERISA. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of this Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Fed. R.Civ.P. 72(b) and Local Rule 30(a)(3). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). Let the Clerk send a copy of this order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendants. So ordered. . Defendant’s motions were pursuant to Rules 12 and 19 and/or 56 of the Federal Rules of Civil Procedure. . It is noted that defendant’s original brief in support of the summary judgment and dismissal motions was 44 pages. The brief in support of the objections to the Report and Recommendation is 59 pages." }, { "docid": "5272803", "title": "", "text": "res judicata effect where the party who was adversely effected by the prior judgment seeks to relitigate the exact same claim in subsequent proceedings. Supreme Burglar Alarm Corp. v. Mason, 204 Misc. 185, 122 N.Y.S.2d 398 (N.Y.Sup. 1953); Czora v. Ahrens, 74 Misc.2d 601, 344 N.Y.S.2d 621 (N.Y.Co.Ct.1973). Here,, plaintiff Dominiak’s application to the Small Claims Court states that she is claiming “back pay due to the amount of $2,238.35, because of unfair payment as stated under Fair Labor Standards Act [sic]” (Item 10, exhibit A). The complaint in the present lawsuit alleges an identical cause of action (Item 1, ¶¶70, 71). Accordingly, defendants’ motion to dismiss this claim must be granted. CONCLUSION For the foregoing reasons, it is recommended that defendants motion to dismiss under Rule 12(b)(6) be granted (Item 10). Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this- Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must' be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3). The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure" }, { "docid": "20843927", "title": "", "text": "After carefully reviewing the administrative record, this Court finds substantial evidence supports the Commissioner’s decision, including the objective medical evidence and supported medical opinions. It is clear that the ALJ thoroughly examined the record, afforded appropriate weight to the medical evidence, including the assessments of Plaintiffs treating providers and the consultative examiner, and afforded the subjective claims of symptoms and limitations an appropriate weight when rendering his decision that Plaintiff is not disabled. This Court finds no reversible error and because substantial evidence supports the Commissioner’s decision, this Court recommends that the Commissioner be GRANTED judgment on the pleadings and that Plaintiffs motion for judgment on the pleadings be DENIED. Y. ORDERS Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties. ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c). FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir.1995); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c). Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evi-dentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Paterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840" }, { "docid": "14573337", "title": "", "text": "than operation of contract — i.e., pending expiration of the 99-year leases, or how Defendants’ conduct (as opposed to the Nation’s) caused such duress. Furthermore, even if Plaintiffs had signed under “duress” as that term is defined in the law, it would at most provide a defense in a suit by the Nation to enforce the lease. As already stated, the Nation is not a party and the enforceability of the 40/40 lease is not before the court. CONCLUSION For the reasons discussed above, it is recommended that the District Court grant Defendants’ motion for summary judgment dismissing the second, third, fifth, seventh, ninth, eleventh and twelfth causes of action, and enter judgment on the complaint in favor of Defendants as a matter of law. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for" }, { "docid": "5976198", "title": "", "text": "the amended third-party complaint, and those motions should be denied in all other respects. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.CivJP. 72(b) and Local Rule 30(a)(3). The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(8) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the parties. SO ORDERED. DATED: Buffalo, New York March 29,1994 . Only NEBF filed a motion for partial summary judgment. Item No. 58. . A Stipulated Notice of Dismissal dismissing NECA was filed on November 1, 1994. Item No. 138. . Although defendant/third-party plaintiffs, Pil-lard and Adams characterized their appeals as objections to the Report and Recommendation, the Court's review is" }, { "docid": "5926845", "title": "", "text": "a future motion to suppress in the event defendant is indicted. CONCLUSION Based upon the foregoing reasons, it is my Report and Recommendation that defendant’s motion for the return of seized property under Federal Rule of Criminal Procedure 41(g) (Docket # 10) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute and Rule 58.2(a)(3) of the Local Rules of Criminal Procedure for the Western District of New York. The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 58.2(a)(3) of the Local Rules of Criminal Procedure for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 58.2(a)(3) may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the parties. IT IS SO ORDERED. Dated July 3, 2003. . Both parties and the relevant caselaw refer to Rule 41(e). However, in 2003 the Federal Rules of Criminal Procedure were amended and the relevant language is now" }, { "docid": "5075581", "title": "", "text": "of personal jurisdiction should be DENIED as Dr. Thie-de is a New York resident. Defendants’ motions to dismiss all Plaintiff’s causes of action for lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted should be DENIED. Pursuant to 28 U.S.C. 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir.1988). Let the Clerk send a copy of this Report and Recommendation to the counsel for Plaintiff and Defendants. Following Judge Arcara’s decision on this motion, counsel is directed to contact the office of the undersigned to schedule any further proceedings in this matter: SO ORDERED. . Defendants made a motion, opposed by plaintiff, to have this Court, in its de novo determination, consider an amicus brief by the American Board of Emergency Medicine (\"ABEM\"). At this stage of the proceeding, however, an amicus brief laying out the effects of this lawsuit on the practice of medicine would be premature. All that is before this Court is a motion to dismiss and therefore its analysis and review are limited to the allegations of plaintiffs complaint. Defendants’ motion is therefore denied. . Defendants assert that the statement in the Report and Recommendation that in order for plaintiff to be successful on his Human Rights Law cause of action, he must also succeed on his antitrust claims, is now \"the law of the case” due to plaintiffs" }, { "docid": "11636952", "title": "", "text": "However, this Court notes that Plaintiff does not appear to be eligible for disability insurance benefits because he was incarcerated pursuant to a felony conviction during the period between the alleged onset of disability (July 4, 2002) and the date last insured (September 30, 2006). See 20 CFR § 404.468(a) (“No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony.”). As such, it would appear the calculation should be limited to SSI benefits. IV. CONCLUSION For the foregoing reasons, it is respectfully recommended that Plaintiffs Motion for Judgment on the Pleadings be GRANTED, that the Commissioner’s Motion for Judgment on the Pleadings be DENIED, that the decision of the Commissioner be reversed, and that the case be remanded to the Commissioner for calculation of benefits. V. ORDERS Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report & Recom mendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties. ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c). FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir.1995); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c). Please also note that the District Court," }, { "docid": "14573338", "title": "", "text": "Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to consider the objection. Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiffs and the Defendants. So Ordered. DATED: Buffalo, New York July 27, 1993 . Defendants have submitted a Statement of Material Facts Not in Issue, in accordance with Rule 25 of the Local Rules for the Western District of New York. Plaintiffs have not complied with this rule. However, the briefs, affidavits and exhibits on file, along with matters presented during oral argument, have provided the court with sufficient information regarding the material facts as to which it is contended that there exists a genuine issue to be tried so as to enable the court to proceed with this motion for summary judgment. . The legislative history of H.R. 5367, which Congress enacted as the Seneca Nation Settlement Act of 1990, Pub.L. 101-503, 104 Stat. 1292, states as follows: [Tjhe rental terms of the current leases are grossly unfair. Some tenants pay as little as $1.00 per year for their land lease. The average annual fee has been reported at $10.00 per lease. For most of the leases, the rental fees have been in" }, { "docid": "20412026", "title": "", "text": "and Order, before an Immigration Judge with the power to grant him bail unless the government establishes that petitioner is a flight risk or a danger to the community. Accordingly, pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report, Recommendation and Order be filed with the Clerk of the Court. ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3). The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge’s Report, Recommendation and Order), may result in the District Judge’s refusal to consider the objection. The Clerk is hereby directed to send a copy of this Order and a copy of the Report and Recommendation to petitioner and to counsel for the amici curiae and for the Respondent. SO ORDERED. . The parties have agreed with each other that the Court retains jurisdiction over petitioner’s motion even though petitioner currently is in the custody of the Bergen County Sheriff in Hackensack, New Jersey. The" }, { "docid": "11636953", "title": "", "text": "the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties. ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c). FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir.1995); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c). Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evi-dentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Patersoiu-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). SO ORDERED. Dated: June 29, 2012. . Citations to \"T” refer to the Administrative Transcript. (Docket No. 9). . General Order No. 18 provides, in pertinent part, that \"[t]he Magistrate Judge will treat the proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings.” . This five-step process is detailed as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a \"severe impairment\" which significantly limits his physical or mental ability to do basic work activities. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1" }, { "docid": "15713608", "title": "", "text": "Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and rec ommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge’s Report, Recommendation and Order), may result in the District Judge’s refusal to consider the objection. The Clerk is hereby directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties. SO ORDERED. July 31, 2007. . The Court notes that under New York law, plaintiffs have up to six months from the date of this Order to file their New York Labor Law claim in state court. See N.Y.C.P.L.R. § 205(a); see also 28 U.S.C. § 1367(d) (30-day tolling period unless state law provides for longer tolling period). . The adverse effect wage rate is the minimum wage rate that the United States Department of Labor determines is necessary to ensure that wages of similarly situated domestic workers will not be adversely affected by the employment of H-2A workers. 20 C.F.R. § 655.100(b); 20 C.F.R. § 655.107. . Although the Court received a courtesy copy of this document, it does not appear to have been electronically filed. . The Clearance Order for 1997 is NY0704064; the Clearance Order for 1998 is NY0708831; the Clearance Order for 1999 is NY0701326; the Clearance Order for 2000 is IT5365477; and the Clearance Order for 2001 is NY0142495. Dkt. #71, Exh. D. Although the Clearance Orders are not exactly the same from year to year, the substance of the quoted passages remains the same. . This exemption also applies to the AW PA. See 29 U.S.C. § 1803(a)(2)." }, { "docid": "15713607", "title": "", "text": "70), be GRANTED insofar as it seeks dismissal of the plaintiffs’ AWPA cause of action and claim for overtime compensation pursuant to the New York Labor Law, but DENIED with respect to the remaining causes of action. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED, that this Report, Recommendation and Order be filed with the Clerk of the Court. ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3). The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988). The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, “written objections shall specifically identify the portions of the proposed findings and rec ommendations to which objection is made and the basis for such objection and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge’s Report, Recommendation and Order), may result in the District Judge’s refusal to consider the objection. The Clerk is hereby directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties. SO ORDERED. July 31, 2007. . The Court notes that under New York law, plaintiffs have up to six months from the date of this Order to file their New York Labor Law claim in state court. See N.Y.C.P.L.R. §" } ]

[ { "docid": "22611095", "title": "", "text": "and probable effect of the combination and'price cutting would be to destroy normal prices; and there was evidence of the prices received by petitioner before the cut prices were put into operation, and thoSe. received after, showing actual and substantial reductions, and evidence from which the probable amount of the loss could be approximated. The trial court fairly instructed the jury in substance that if they were satisfied that the old prices were reasonable and that they would not have changed by reason of any economic condition, but would have been maintained except for the unlawful acts of the respondents, the jury might consider as an element of damages the difference between the prices actually received and what would have been received but for the unlawful conspiracy. Upon a consideration of the evidence we.are. of opinion that it was open to the jury to find that the price cutting and the resulting lower prices were directly attributable to the unlawful combination; and that the assumption indulged by the court below,.that respondents’, acts would have been the same if they had been acting independently of one another, with the same resulting curtailment of prices, must be rejected as unsound- Nor can we accept the view of that court that the verdict of the jury, in so far as it included damages for the first item, cannot stand because it was based upon mere speculation and conjecture. This characterization of the basis for the verdict is unwarranted. It. is true that there was uncertainty as to the extent of the damage, but there was none as to the fact of damage; and'there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had, sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery, of uncertain damages applies to;'such as are not the certain result of the wrong, not to those damages which are definitely attributable'to the wrong and only uncertain in respect of their amount. Taylor v. Bradley, 4 Abb. Ct. App. (N." } ]

[ { "docid": "19066618", "title": "", "text": "films were not exhibited in any other theatre in Denver. In some instances, the producer or distributor to whom the request was made had a surplus of films available for exhibition in Denver. And in a few instances, the representative to whom the request was made recommended that the desired films be made available to plaintiff, but when the request accompanied by the recommendation reached a higher level, it was rejected. During the negotiations between Fox Theatres and plaintiff in respect to the former selling to the latter the fixtures and furnishings in the Broadway theatre, inquiry was made as to whether plaintiff would be interested in selling its lease. And on another occasion when plaintiff was endeavoring to obtain films from a distributor not joined as a defendant herein, it was suggested that plaintiff join the Fox Circuit. Evidence was adduced tending to establish other facts and circumstances but space will not be consumed in detailing it. The evidence together with its inferences was sufficient to warrant the jury in finding that by combination and concert, the defendants and other producers and distributors maintained in Denver a discriminatory system in the distribution of motion picture films for exhibition there; that the combination and conspiracy was intended in part to injure plaintiff or to eliminate it from the field of competition in the motion picture industry; and that it did proximately injure the business of plaintiff. Cf. Bigelow v. RKO Radio Pictures, supra. Finally, it is urged that the verdict was grossly excessive and that the trial court abused its discretion in failing to set it aside. The verdict was for $100,000, and the judgment was for $300,000, exclusive of attorneys fees. The measure of damages to which plaintiff is entitled in a case of this kind is the pecuniary loss to its business or property resulting proximately from the combination or conspiracy of the defendants. Damages must be actual, not speculative or conjectural. But they are not rendered speculative or conjectural merely because they cannot be calculated with mathematical exactness. It is sufficient if a reasonable basis of computation" }, { "docid": "18359599", "title": "", "text": "to preclude any recovery, by rendering the measure of damages uncertain. [This result] * * * would mean that the more grievous the wrong done, the less likelihood there would he of a recovery.” Bigelow v. RKO Radio Pictures, Inc., 1946, 327 U.S. 251, 264-265, 66 S.Ct. 574, 579-580, 90 L.Ed. 652, 660. For these reasons, the rule which demands proof of damages (see Restatement, Torts, § 912 (1939)), is relaxed somewhat in cases where exact loss is unascertainable because of the tort. “Although in such cases, the burden is on the injured person to prove with a fair degree of certainty that the business or transaction was or could have been profitable, it is not fatal to the recovery of substantial damages that he is unable to prove with definiteness the amount of profits he would have made or the amount of harm which the defendant has caused. It is only essential that he present such evidence as might reasonably be expected to be available under the circumstances * * Restatement, Torts § 912, Comment d (1939) [emphasis added]. The Supreme Court, in Bigelow, supra, 327 U.S. at 264, 66 S.Ct. at 580, 90 L.Ed. at 660, recognized this rule. “But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances ‘juries are allowed to act on probable and inferential as well as [upon] direct and positive proof.’ [citing Story Parchment Co. v. Paterson Parchment Paper Co., supra, 282 U.S. 555 at 564, 51 S.Ct. 248 at 250, 251, 75 L.Ed. 544 at 549, and Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684].” We have followed that result in Robey v. Sun Record Co., 5 Cir. 1957, 242 F.2d 684. See Hartley & Parker, Inc. v. Florida Beverage Corp., 5 Cir. 1962, 307 F.2d 916; Kelite Products v. Binzel, 5 Cir. 1955, 224 F.2d 131. The “relevant data” in evidence in the present case included the contract setting royalty payments to Topps and the Curran-Elias agreement." }, { "docid": "959735", "title": "", "text": "be “imaginary or illusive”. We cannot say that the trial court erroneously used the phrase “reasonable possibility” instead of “reasonable probability”. The appellant also complains of the refusal of the trial court to give its requested instructions on proximate cause. But the jury was told clearly and unmistakably that even though it should find that the appellant’s pricing policies amounted to actionable price discrimination, the burden was on the appellee to establish by a preponderance of the evidence that the losses, if any, were proximately caused by such price discriminations; that loss of business occasioned by inability to achieve or maintain an adequate inventory, inability to deliver its products to purchasers, by shut downs in its plant, failure of material and supplies, or failure to bid on business or solicit purchases, could not be attributable to the appellant’s pricing pol icies; and if, therefore, the jury found that the loss of business was caused by any of these factors or by legitimate competition, their verdict should be for the defendant. The jury was instructed in language too clear for doubt that there must be a causal connection between the losses sustained, if any, and the unlawful acts of the appellant. Under these instructions we think the question of proximate cause was properly submitted to the jury. And see Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 51 S.Ct. 248, 251, 75 L.Ed. 544. The ascertainment of requisite damages to the appellee’s business and property was submitted to the jury on the theory that it was incumbent on the appellee to prove such damages with reasonable certainty, not by guess and conjecture. But, “If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.” Story Parchment Co. v. Paterson Parchment Co., supra. See also Kobe, Inc. v. Dempsey Pump Co., 10 Cir., 198 F.2d 416; Leader Clothing Co. v. Fidelity & Casualty Co. of N. Y., 10 Cir., 237 F.2d 7; Wells Truckways v. Burch, 10 Cir., 247 F.2d 194; Bigelow v. R. K. O. Radio Pictures, 327 U.S. 251, 66 S.Ct. 574," }, { "docid": "19066619", "title": "", "text": "and concert, the defendants and other producers and distributors maintained in Denver a discriminatory system in the distribution of motion picture films for exhibition there; that the combination and conspiracy was intended in part to injure plaintiff or to eliminate it from the field of competition in the motion picture industry; and that it did proximately injure the business of plaintiff. Cf. Bigelow v. RKO Radio Pictures, supra. Finally, it is urged that the verdict was grossly excessive and that the trial court abused its discretion in failing to set it aside. The verdict was for $100,000, and the judgment was for $300,000, exclusive of attorneys fees. The measure of damages to which plaintiff is entitled in a case of this kind is the pecuniary loss to its business or property resulting proximately from the combination or conspiracy of the defendants. Damages must be actual, not speculative or conjectural. But they are not rendered speculative or conjectural merely because they cannot be calculated with mathematical exactness. It is sufficient if a reasonable basis of computation is afforded, even though the result be only an approximation. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Kobe, Inc., v. Dempsey Pump Co., 10 Cir., 198 F.2d 416, certiorari denied, 344 U.S. 837, 73 S.Ct. 46; Mountain States Tel. & Tel. Co. v. Hinchcliffe, 10 Cir., 204 F.2d 381. Ordinarily, it is the exclusive function of the jury to fix the amount of damages. Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., supra. In doing that, it is the prerogative of the jury to make a just and reasonable estimate of the damages based upon relevant data, and render its verdict accordingly. And in doing so, the jury may act upon probable and inferential proof as well as that which is direct and positive. Bigelow v. RKO Radio Pictures, supra. While the verdict was large, viewing the record in its entirety we are unable to say that it was grossly excessive or that the trial court abused its discretion in refusing to set it aside" }, { "docid": "23004262", "title": "", "text": "was not an expert in theatre quality, and lacking the specific knowledge and information necessary, relied upon the Blanks’ conclusion that this hypothetical theatre would be “comparable” to the Admiral. The Blanks’ opinion, in turn, was “apparently based primarily upon the geographical proximity of the three theatres, and the fact that the seating capacity of the Astro plus that of the Dundee divided by two is roughly equivalent to that of the Admiral.” Admiral Theatre Corp. v. Douglas Theatre Co., supra, 437 F.Supp. at 1297. Additional foundational infirmities were listed at length by the district court, id. at 1298, all of which indicate the testimony was inadmissible in the first place; at the very least, if admissible, it was inadequate to provide anything more than a speculation as to the causation of plaintiffs’ alleged injury. Plaintiffs failed to show this necessary element, thus the district court correctly directed the verdict for the defendants with respect to the Admiral. We discuss damages briefly with respect to the Admiral, Skyview and Chief. The issue of damages is not essential to support the directed verdict. The complete lack of proof, however, reflects the general stature of plaintiffs’ case. There was no evidence in regard to damages concerning the Sky-view and Chief. Thus plaintiffs failed with respect to these theatres to make a submis-sible case. The only evidence of damages offered in regard to the Admiral was the resulting $151,085 figure derived by the comparative theatre method. The total lack of foundation concerning this method of proof, the infirmities in the expert’s qualifications and the infirmities in the expert’s use of the comparative theatre method did not provide the reasonable basis for damages the Supreme Court required in Bigelow: [T]he jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential, as well as direct and positive proof.” Bigelow v. RKO Radio Pictures, Inc., supra, 327 U.S. at 264, 66" }, { "docid": "11961098", "title": "", "text": "have earned under the contract during the time intermediate the giving of a reasonable notice of termination and termination itself. And in the absence of a showing to the contrary, it must be assumed that the jury understood and applied the instruction in reaching its verdict. Loew’s v. Cinema Amusements, 10 Cir., 210 F.2d 86. Complaint is made that the evidence was insufficient to support the verdict and judgment in respect to amount. It is said that there was no substantial evidence tending to show that plaintiff could have earned profits under the contract in the amount of $2,-500 between the giving of a reasonable notice in advance of termination of the contract and termination itself. Ordinarily, it is the exclusive function of the jury to fix the amount of damages; and in doing so, it is the prerogative of the jury to make a just and reasonable estimate of the damages based upon relevant data, and render its verdict accordingly. Too, the jury may act upon probable and inferential proof as well as that which is direct and positive. And, while damages must be actual, not speculative or conjectural, it is sufficient if the evidence as a whole affords a reasonable basis of computation, even though the result be only an approximation. Loew’s v. Cinema Amusements, supra. While the evidence is not altogether satisfactory in respect to the amount of the damages awarded plaintiff, it cannot be said that there is no rational basis in the record for the verdict in respect to amount. Finally, the right of plaintiff to recover damages in any sum for the alleged breach of the contract is challenged on the ground that it was not alleged in the complaint and proved on the trial that plaintiff had obtained a contractor’s license. Section 51-1903, N.M.S.A.1941, as amended by section 2, chapter 108, Laws of 1945, and section 1, chapter 158, Laws of 1947, defines a contractor as one who alone or in combination with others “for either a fixed sum, price, fee, percentage, or other compensation other than wages, undertakes or offers to undertake," }, { "docid": "16922597", "title": "", "text": "its Sherman Act section 2 claim. Although Murphy was not entirely consistent on the legal theory underlying its damages computation pursuant to section 2, the final theory contains two damage components. The first is lost profits attributable to Red Stack’s boycott of jobs on which a Murphy tug was used, up to the time that Murphy ceased operation. The second component was lost future profits for the five years following its demise. We may affirm the district judge’s granting of judgment n. o. v. on these damages issues only if the district judge’s conclusion is the only reasonable one “[viewing] the evidence in the light most favorable to the party in whose favor the jury verdict was rendered and [giving] that party the benefit of all inferences that might fairly have been drawn by the jury.” Fount-Wip, Inc. v. Reddi-Wip, Inc., 568 F.2d 1296, 1300 (9th Cir. 1978). Moreover, in a case in which the defendant has prevented the plaintiff’s entry into a market, we must adopt a special solicitude towards the proof of damages. [E]ven where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential, as well as direct and positive proof.” Story Parchment Co. v. Patterson Co., [282 U.S. 555], 561-4, [51 S.Ct. 248, 250-51, 75 L.Ed. 544]; Eastman Kodak Co. v. Southern Photo Co., [273 U.S. 359], 377-9, [47 S.Ct. 400, 404-405, 71 L.Ed. 684]. Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 579, 90 L.Ed. 652 (1946). A. Past Profits. Murphy attempted to establish that prior to its going out of business it lost profits due to the Red Stack boycott. The district judge ruled its evidence was insufficient. Murphy’s theory was that the" }, { "docid": "1709319", "title": "", "text": "conclusion that at least some of Metrix’s claimed losses were attributable to lawful conduct. Although Metrix was not obligated to prove its damages with great particularity, we conclude that the trial court did not abuse its discretion in granting MBNA a new trial on damages. As Metrix correctly notes, plaintiffs generally enjoy a lenient burden of proof in establishing the amount of damages caused by an antitrust violation. The Supreme Court observed in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969), that a reasonable amount of uncertainty and lack of precision is tolerable because “damage issues in [antitrust] cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts.” Id. at 123, 89 S.Ct. at 1576. Moreover, a wrongdoing defendant should not profit at the expense of his victim where it is his own anticompetitive conduct that precludes direct and specific proof of damage. See Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946); see also Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931). Therefore, when the violation has been proven, “the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances ‘juries are allowed to act on probable and inferential, as well as upon direct and positive proof.’ ” Bigelow, 327 U.S. at 264, 66 S.Ct. at 580 (quoting Story Parchment, 282 U.S. at 564, 51 S.Ct. at 251); see also Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573 (4th Cir.1976). In contrast with the “leniency” principle, our decisions also recognize that the antitrust plaintiff must demonstrate a causal connection between the defendant’s violation and the damages claimed. See Burlington Industries, Inc. v. Milliken & Co., 690 F.2d 380, 385 (4th Cir.1982); Lee-Moore Oil Co. v. Union Oil Co. of California, 599 F.2d 1299, 1306 (4th Cir.1979). As stated in Allegheny Pepsi-Cola Bottling Co. v. Mid-Atlantic" }, { "docid": "19066620", "title": "", "text": "is afforded, even though the result be only an approximation. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Kobe, Inc., v. Dempsey Pump Co., 10 Cir., 198 F.2d 416, certiorari denied, 344 U.S. 837, 73 S.Ct. 46; Mountain States Tel. & Tel. Co. v. Hinchcliffe, 10 Cir., 204 F.2d 381. Ordinarily, it is the exclusive function of the jury to fix the amount of damages. Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., supra. In doing that, it is the prerogative of the jury to make a just and reasonable estimate of the damages based upon relevant data, and render its verdict accordingly. And in doing so, the jury may act upon probable and inferential proof as well as that which is direct and positive. Bigelow v. RKO Radio Pictures, supra. While the verdict was large, viewing the record in its entirety we are unable to say that it was grossly excessive or that the trial court abused its discretion in refusing to set it aside on that ground. The judgment is affirmed." }, { "docid": "362656", "title": "", "text": "Defendants, therefore, are not entitled to judgment as a matter of law on the Section 1 claim. Inasmuch as the same conduct has heretofore been held to be sufficient to permit the jury to find a violation of Section 2, defendants are not entitled to judgment as a matter of law on the conspiracy to monopolize issue. VI. Damages We come then to the question whether the jury’s award of damages aggregating $600,000 for violations of Section 2 can stand. • The Court has heretofore determined that, on the record before it, the jury was entitled to find that defendants’ policy of refusing to work with competitors was unlawful and had an adverse impact on plaintiff. (See Part III. A. 1, supra.) Plaintiff correctly points out that once it established “with reasonable probability the existence of some causal connection between defendant’s wrongful act and some loss of anticipated revenue . . . the jury will be permitted to ‘make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly.’ Bigelow v. RKO Radio Pictures, Inc., [327 U.S. 251, 264, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946)].” Flintkote Co. v. Lysfjord, 246 F.2d 368, 392 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957). Accord, Kapp v. National Football League, 586 F.2d 644 (9th Cir. 1978); Greyhound Computer Corp. v. International Business Machines, supra, 559 F.2d at 506; Knutson v. Daily Review, Inc., supra, 548 F.2d at 811-12. Defendants’ argument that any resulting injury suffered by plaintiff was not cognizable under the antitrust laws must therefore be rejected. The issue before the Court is whether plaintiff offered evidence sufficient to enable the jury to make such a just and reasonable estimate. That mathematical certainty is not required for proof of damages is of course well settled, Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563-66, 51 S.Ct. 248, 75 L.Ed. 544 (1931), but that is not the issue here. As the Court observed, in Story Parchment: “The rule which precludes the recovery of uncertain damages" }, { "docid": "8646843", "title": "", "text": "of the exclusive brands and then reached a conclusion as to the loss of profits and the damage. This theory appears to us to be questionable absent evidence, which we assume should be available, of the effect of sales of such merchandise by stores which had, during the period in question, taken on such lines of merchandise in place of or in addition to alternative brands previously carried. We recognize that the Supreme Court has pointed out on more than one occasion that although proof of the amount of damage in a ease such as this may be somewhat uncertain, plaintiff is not precluded from recovery unless the amount of damage is totally speculative. Story Parchment Company v. Paterson Parchment Paper Company, 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931) ; Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946). As pointed out by the Supreme Court in Bigelow at pages 264, 265, 66 S.Ct. at page 580: “In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances ‘juries are allowed to act upon probable and inferential, as well as direct and positive proof.’ Story Parchment Co. v. Paterson Parchment Paper Co., supra, [282 U.S.] 561-564, 51 S.Ct. 248; Eastman Kodak Co. v. Southern Photo Material Co., supra, [273 U.S. 359] 377-379, 47 S.Ct. 400, 71 L.Ed. 684. Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. “The most elementary conceptions of justice and public policy require that" }, { "docid": "17551915", "title": "", "text": "Roofing. . For the guidance of the district court on remand, we note that the Rockhill Report satisfies the relaxed Bigelow standard of proof for estimating the amount of damages under which; the jury [may] conclude as a matter of just and reasonable inference from the proof of defendants’ wrongful acts and their tendency to injure plaintiffs’ business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.... [When] [ ] tortious acts ... preclude[ ] ascertainment of the amount of damages more precisely, by comparison of profits, prices and values as affected by the conspiracy, with what they would have been in its absence under freely competitive conditions ... we [have] held that the jury could return a verdict for the plaintiffs, even though damages could not be measured with the exactness which would otherwise have been possible. In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances 'juries are allowed to act on probable and inferential as well as [upon] direct and positive proof.’ Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Bigelow, 327 U.S. at 264, 66 S.Ct. 574 (internal citations omitted). In Bigelow, the Supreme Court upheld a jury’s damage award based upon a comparison of the plaintiff’s actual profits with the contemporaneous profits of a competing theater with access to first-run films, which were illegally denied to plaintiff theater by a group of conspiring film distributors. See J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557, 566, 101 S.Ct. 1923," }, { "docid": "14354460", "title": "", "text": "accorded a relevant document is a matter for the jury. See, e.g., Smith v. Lightning Bolt Productions, 861 F.2d 363, 367 (2d Cir.1988). In light of Blatte’s testimony that the Sir Speedy representative gave him Exhibits V and W and told him they were representative of what he could expect to earn as a Sir Speedy franchisee, the documents were relevant. The ruling that they could not be used to support the calculation of lost profits because they predated the statute-of-limitations period was erroneous. 2. The Sufficiency Ruling Two sets of principles inform our review of the district court’s ruling that, as proof of Blatte’s lost profits, Exhibits V and W were insufficient. One set establishes the degree of certainty with which a claimant must prove damages; the other establishes the standard for ruling on a motion for directed verdict or judgment n.o.v. In order to recover damages, a claimant must present evidence that provides the finder of fact with a reasonable basis upon which to calculate the amount of damages. He need not prove the amount of loss with mathematical precision; but the jury is not allowed to base its award on speculation or guesswork. Lost profits, though typically “difficult to prove with exactitude,” may be recovered “to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty.” Gargano v. Heyman, 203 Conn. 616, 621, 525 A.2d 1343, 1346 (1987); see also Conaway v. Prestia, 191 Conn. 484, 493-95, 464 A.2d 847, 852-53 (1983); Burr v. Lichtenheim, 190 Conn. 351, 460 A.2d 1290, 1295-96 (1983). Where a defendant’s own misconduct has prevented a more precise computation of damages, the jury may make a just and reasonable estimate of the damage based on relevant data,, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential, as well as direct and positive proof.” ... Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 580, 90 L.Ed." }, { "docid": "17692936", "title": "", "text": "which a jury may reasonably estimate, though not exactly, the amount thereof.” There must be some evidentiary basis to support an inference as to loss of net profits. A damage verdict may not be based upon speculation and guesswork alone. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652; Eastman Kodak Co v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684; Central Coal & Coke Co. v. Hartman, 8 Cir., 111 F. 96; Clapper v. Original Tractor Cab Co., 7 Cir., 270 F.2d 616, cert. denied, 361 U.S. 967, 80 S.Ct. 592, 4 L.Ed.2d 547; Flintkote Co. v. Lysfjord, 9 Cir., 246 F.2d 368, 393, cert. denied 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46; Fireside Marshmallow Co. v. Frank Quinlan Const. Co., 8 Cir., 213 F.2d 16, 18. While the damage instructions given the jury do contain statements that damages must be proved with reasonable certainty and cannot be based solely upon speculation or guesswork, the instructions as a whole reflect that the plaintiff was not required to prove its damages to a certainty but that damages could be allowed on the basis of proof of facts from which the amount of loss of net profits may reasonably be inferred. For example, the court stated: “Now, the law does not require that the plaintiffs make exact proof, in dollars and cents, of the exact amount of loss of anticipated net profits claimed in an antitrust case, but it does require that a claim for loss of anticipated net profits made as a result of such a claim be sustained by proof of facts that pass the realm of conjecture, speculation, or opinion not founded on facts; and must consist of actual facts from which a reasonably accurate conclusion regarding the cause and amount of such a claimed loss can be logically and rationally drawn. In such a case, even where the defendant, by its own wrong has prevented a more precise computation of the amount of damages claimed, the jury may not render a verdict" }, { "docid": "5437744", "title": "", "text": "Thus, the Special Master was correct in finding a section 2 violation. The effects of the section 2 violation are addressed with the effects of the section 1 violation in Part VII, infra. VII. Causation of Fact of Injury and Damages In a private antitrust suit, the plaintiffs must show the violation and additionally must show “to a reasonable certainty that there has been injury to them by reason of” the violation. Admiral Theatre Corp. v. Douglas Theatre Co., supra 585 F.2d at 893. Additionally, “the damages accruing from the injury must be capable of reasonable ascertainment and must not be speculative or conjectural.” Id. Yet, even with this caution in regard to ascertainment of damages — “the jury may not render a verdict based on speculation or guesswork,” Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 579-580, 90 L.Ed. 652 (1946) — the Supreme Court has also stated in the absence of more precise proof, the jury could conclude as a matter of just and reasonable inference from the proof of defendants’ wrongful acts and their tendency to injury plaintiffs’ business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants’ wrongful acts had caused damage to the plaintiffs. ****** * * * [T]he jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential, as well as direct and positive proof.” Id., quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 564, 51 S.Ct. 248, 251, 75 L.Ed. 544 (1931). See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). More recently, the Supreme Court has stated in regard to the causal injury requirement: [The plaintiffs] burden of proving the fact of damage under § 4 of the Clayton Act is satisfied by its proof of some damage flowing from the unlawful conspiracy; inquiry beyond this minimum" }, { "docid": "23253741", "title": "", "text": "expert’s] assumptions may be open to question. Instead, the issue is whether the probative value of the expert’s testimony was so slight that it should not have been submitted to the jury. Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 999 (5th Cir. 1976). We have reviewed lies’ testimony and conclude that it cannot be characterized as so insubstantial as to justify removing the damage question from jury consideration. Moreover, we conclude that the testimony provided a sufficient basis for the jury’s award. Damages must be actual, not speculative or conjectural. But they are not rendered speculative or conjectural merely because they cannot be calculated with mathematical exactness. It is sufficient if a reasonable basis of computation is afforded, even though the result may be only an approximation. . . . Ordinarily, it is the exclusive function of the jury to fix the amount of damages. Loew’s, Inc. v. Cinema Amusements, 210 F.2d 86, 95 (10th Cir. 1954) (citations omitted). See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 376-79, 47 S.Ct. 400, 71 L.Ed. 684 (1927). The plaintiff here presented “data from which the amount of probable loss could be ascertained as a matter of reasonable inference.” Cecil Corley Motor Co. v. General Motors Corp., 380 F.Supp. 819, 854 (M.D. Tenn.1974) (quoting Eastman Kodak Co., supra). See also Hannigan v. Sears, Roebuck and Co., 410 F.2d 285, 293 (7th Cir. 1969). lies’ assumptions and estimates were not demonstrably false or unreasonable. Certainly some facets of his testimony were weak, but his opinion as a whole was well grounded in his investigation, inquiries, knowledge and non-frivolous assumptions. This method of computation was sufficient to present a jury question. See Autowest, 434 F.2d at 566. We note further that the expert testimony here did not concern complex or sophisticated computations generating “an array of figures conveying a delusive impression of exactness in an area where a jury’s common sense is less available than usual to protect it.” Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 87 (9th" }, { "docid": "362658", "title": "", "text": "applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.” Id. at 562, 51 S.Ct. at 250 (emphasis added). And in Bigelow v. RKO Radio Pictures, Inc., supra, 327 U.S. at 264, 66 S.Ct. at 579-80, the Court said that: “[I]n the absence of more precise proof, the jury could conclude as a matter of just and reasonable inference from the proof of defendants’ wrongful acts and their tendency to injure plaintiffs’ business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants’ wrongful acts had caused damage to the plaintiffs. . . [T]he jury could return a verdict for the plaintiffs, even though damages could not be measured with the exactness which would otherwise have been possible. In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data . . . .” (Emphasis added) See also Zenith Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). While a “plaintiff need not negative all possible alternative explanations for his decline in profits,” Knutson v. Daily Review, Inc., supra, 548 F.2d at 811, there must be proof of some damage “flowing from the unlawful conspiracy.” Zenith Radio Corp. v. Hazeltine Research, Inc., supra, 395 U.S. at 114 n. 9, 89 S.Ct. 1562. Causation, while relevant in the first instance to proof of the fact of damages, has a bearing as well on the sufficiency of the proof of the amount of damage. Unless the amount sought to be recovered is shown to be “definitely attributable” to defendant’s wrongful conduct, there is no basis for making a “just and reasonable estimate.” To meet the minimum requirement of proof in a market exclusion case in which lost" }, { "docid": "23620204", "title": "", "text": "associated with the individual set-ups. The government introduced the inflated invoices into evidence, as well as testimony from other contractors who were willing to do the work for less money and expert testimony on the fair market value for mobile home set-ups under these conditions. Taken together, this was more than sufficient evidence from which the jury could have determined damages attributable to the defendants. Although “speculation and guesswork” should not be the basis for ascertaining damages, United States v. Collver Insulated Wire Co., 94 F.Supp. 493, 498-99 (D.R.I.1950), damages need not be calculated by mathematical precision. In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential as well as [upon] direct and positive proof.” [Citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 561-64, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 377-79, 47 S.Ct. 400, 404-05, 71 L.Ed. 684 (1927).] Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264-65, 66 S.Ct. 574, 579-80, 90 L.Ed. 652 (1946). D. Verdicts. In a related argument, defendants insist that because the jury awarded the government inconsistent monetary damages for each defendant, that the jury failed to apply the facts to" }, { "docid": "362657", "title": "", "text": "accordingly.’ Bigelow v. RKO Radio Pictures, Inc., [327 U.S. 251, 264, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946)].” Flintkote Co. v. Lysfjord, 246 F.2d 368, 392 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957). Accord, Kapp v. National Football League, 586 F.2d 644 (9th Cir. 1978); Greyhound Computer Corp. v. International Business Machines, supra, 559 F.2d at 506; Knutson v. Daily Review, Inc., supra, 548 F.2d at 811-12. Defendants’ argument that any resulting injury suffered by plaintiff was not cognizable under the antitrust laws must therefore be rejected. The issue before the Court is whether plaintiff offered evidence sufficient to enable the jury to make such a just and reasonable estimate. That mathematical certainty is not required for proof of damages is of course well settled, Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563-66, 51 S.Ct. 248, 75 L.Ed. 544 (1931), but that is not the issue here. As the Court observed, in Story Parchment: “The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.” Id. at 562, 51 S.Ct. at 250 (emphasis added). And in Bigelow v. RKO Radio Pictures, Inc., supra, 327 U.S. at 264, 66 S.Ct. at 579-80, the Court said that: “[I]n the absence of more precise proof, the jury could conclude as a matter of just and reasonable inference from the proof of defendants’ wrongful acts and their tendency to injure plaintiffs’ business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants’ wrongful acts had caused damage to the plaintiffs. . . [T]he jury could return a verdict for the plaintiffs, even though damages could not be measured with the exactness which would otherwise have been possible. In such a case, even where the defendant by his own wrong has prevented a more precise computation, the jury may not render a" }, { "docid": "23004263", "title": "", "text": "not essential to support the directed verdict. The complete lack of proof, however, reflects the general stature of plaintiffs’ case. There was no evidence in regard to damages concerning the Sky-view and Chief. Thus plaintiffs failed with respect to these theatres to make a submis-sible case. The only evidence of damages offered in regard to the Admiral was the resulting $151,085 figure derived by the comparative theatre method. The total lack of foundation concerning this method of proof, the infirmities in the expert’s qualifications and the infirmities in the expert’s use of the comparative theatre method did not provide the reasonable basis for damages the Supreme Court required in Bigelow: [T]he jury may not render a verdict based on speculation or guesswork. But the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances “juries are allowed to act upon probable and inferential, as well as direct and positive proof.” Bigelow v. RKO Radio Pictures, Inc., supra, 327 U.S. at 264, 66 S.Ct. at 579 (citations omitted). “[T]he ‘tendency of the courts is to find some way in which damages can be awarded where a wrong has been done.’ Nevertheless, a plaintiff in such actions may not recover compensatory damages for loss of prospective profits based on mere speculation, surmise and conjecture.” National Wrestling Alliance v. Myers, 325 F.2d 768, 777 (8th Cir. 1963) (citations omitted). A jury could have relied on nothing but speculation, surmise and conjecture in awarding damages here. It would have been, as Judge Hanson said, “but idle ceremony” for this case to have been submitted to the jury. Finally, we examine plaintiffs’ claim of being placed in a relatively inferior bidding position in that if plaintiffs did not bid for a split film, the designated split member had no competition; in comparison plaintiffs always had competition because the split member was obligated to bid. Assuming arguendo injury and causation were adequately shown by Felton’s testimony, plaintiffs failed to take this theory any further. No evidence of damages was ever offered; there was" } ]

[ { "docid": "23273654", "title": "", "text": "witnesses should appear in the administrative record; without such a record judicial review would be meaningless. Id.; see also Hayes II, 637 F.2d at 486. The Adjustment Committee Summaries for Plaintiffs Redding and Armstrong do not enable us to determine whether the broad discretion of prison officials was exercised arbitrarily. See generally Langton v. Berman, 667 F.2d at 234 (allowing four of fifteen witnesses was not abuse of discretion). Accordingly, we must sustain the jury’s determination that the denials of the requests for witnesses abridged those plaintiffs’ due process rights. C. Committee Summaries The principal issue in this appeal concerns the adequacy of the Adjustment Committee Summaries. Administrative Regulation 804 requires that these summaries enunciate the basis for the Committee’s decision and specify the evidence underlying the ruling. See Aikens v. Lash, 514 F.2d at 60-61. This requirement is not to be taken lightly. The Supreme Court has written: [T]he actions taken at such proceedings may involve review by other bodies. They might furnish the basis of a decision by the Director of Corrections to transfer an inmate to another institution because he is considered “to be incorrigible by reason of frequent intentional breaches of discipline,” ... and are certainly likely to be considered by the state parole authorities in making parole decisions. Written records of proceedings will thus protect the inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly. Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others. It may be that there will be occasions when personal or institutional safety is so implicated that the statement may properly exclude certain items of evidence, but in that event the statement should indicate the fact of the omission. Otherwise, we perceive no conceivable rehabilitative objective or prospect" } ]

[ { "docid": "3679395", "title": "", "text": "L.Ed. 590 (1924); Willis v Ciccone, 506 F.2d 1011, 1018 (8th Cir.1974). We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. See Wolff, 418 U.S., at 562-563, 567-569, 94 S.Ct. 2963 [2977-2978, 2980-2981], 41 L.Ed.2d 935, 71 Ohio Op.2d 336. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, id., at 556 [94 S.Ct., at 2974], and neither the amount of evidence necessary to support such a conviction, see Jackson v Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), nor any other standard greater than some evidence applies in this context. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). We have no difficulty concluding that this standard permits written committee finding which do not explain why or to what extent each witness was believed or disbelieved. The absence of such an explanation does not mean, of itself, that there is no “basis in fact” for the committee’s action. Thus, the committee’s failure to explain, for example, why Payne’s alibi was not believed did not deny due process. The disciplinary committee’s obligation to make a reviewable record of informant reliability and informant evidence in support of the charge is a more complex issue. Wolff mandated a posture of “reasonable accommodation between the interests of the inmates and the needs of the institution.” 418 U.S. at 572, 94 S.Ct. at 2982. The public record provided to the plaintiffs in this case contains only conclusory assertions of informant reliability, and then only the investigating officer’s, not the committee’s, and the most skeletal of descriptions of the offenses charged. In the district court’s view, “The committee provide[d] no evidence in the record to support its decision.” However one characterizes the quantum" }, { "docid": "16029933", "title": "", "text": "the violation of a right secured by the Constitution and laws of the United States....” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255-56, 101 L.Ed.2d 40 (1988). While a violation of a state-created liberty interest can amount to a violation of the Constitution, not every violation of state law or state-mandated procedures is a violation of the Constitution. See, e.g., Meis v. Gunter, 906 F.2d 364, 369 (8th Cir.1990), cert. denied, 498 U.S. 1028, 111 S.Ct. 682, 112 L.Ed.2d 673 (1991). “‘The simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension.’” Vruno v. Schwarzwalder, 600 F.2d 124, 130-31 (8th Cir.1979) (quoting Slotnick v. Staviskey, 560 F.2d 31, 34 (1st Cir.1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978)). We conclude Buckley’s first complaint failed to state a claim because no constitutional right was violated by the defendants’ failure, if any, to process all of the grievances he submitted for consideration. Cf. Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991) (per curiam) (federal grievance regulations providing for administrative remedy procedure do not create liberty interest in access to that procedure) (citing with approval Azeez v. DeRobertis, 568 F.Supp. 8 (N.D.Ill.1982)). “[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.” Azeez, 568 F.Supp. at 10. Thus, defendants’ failure to process any of Buckley’s grievances, without more, is not actionable under section 1983. Contrary to Buckley’s assertion in his second complaint, he had no Seventh Amendment right to a jury trial in a prison disciplinary setting. See Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-83, 41 L.Ed.2d 935 (1974). Buckley did not assert that he had state-created liberty interest in a jury trial in that context. We also conclude that Buckley’s allegations that he was denied certain personal hygiene items were insufficient to state a claim for cruel and unusual punishment." }, { "docid": "4049820", "title": "", "text": "Fourteenth Amendment due-process rights when it accepted only the written statement of a fellow inmate. In a court of law, of course, such a statement would have little chance of being admitted into evidence, or of being persuasive.. But as the Wolff Court recognized, disciplinary proceedings are of a special character, and allowing inmates to present witnesses “as a matter of course” would make such proceedings “tend towards unmanageability.” 418 U.S. at 567, 94 S.Ct. at 2980. Here, Malek testified on his own behalf and introduced the statement of another inmate supporting his claim that on the day in question he was, in fact, too ill to attend gym. In his complaint, Malek stated only that the proffered live testimony would similarly have supported his contention. Under those circumstances, we agree that the Committee did not violate Malek’s due-process rights when it determined that the offered testimony was not reasonably necessary to resolve the conflict and would cause undue delay. Thus, the District Court correctly determined that, as a matter of law, Malek could prove no set of facts entitling him to relief on this claim. III. We do not agree, however, with the District Court’s determination that Malek’s allegations of bias against Chairman Ferguson failed to state a claim for relief under § 1983. Though a prisoner’s rights “may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff 418 U.S. at 555, 94 S.Ct. at 2974. “[A]n impartial decision-maker is a fundamental requirement of due process ... fully applicable” in the prison context. Id. at 592, 94 S.Ct. at 2992 (Marshall, J., concurring). The requirement of a neutral and detached decision-maker must not be impaired, but disqualification is not necessary in every case of claimed bias. Redding v. Fairmen, 717 F.2d 1105, 1112 (7th Cir. 1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984). “[D]ue process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the" }, { "docid": "3679394", "title": "", "text": "committee determined for itself, on some reasoned basis, that the informants and their information were reliable. The Supreme Court has recently set forth the standard for the quantum of evidence that must appear in the written statement explaining a disciplinary action: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v Commissioner of Immigration, 273 U.S. [103] at 106, 47 S.Ct. 302, 71 L.Ed. 560 [1927]. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260 [260-261], 68 L.Ed. 590 (1924); Willis v Ciccone, 506 F.2d 1011, 1018 (8th Cir.1974). We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. See Wolff, 418 U.S., at 562-563, 567-569, 94 S.Ct. 2963 [2977-2978, 2980-2981], 41 L.Ed.2d 935, 71 Ohio Op.2d 336. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, id., at 556 [94 S.Ct., at 2974], and neither the amount of evidence necessary to support such a conviction, see Jackson v Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), nor any other standard greater than some evidence applies in this context. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). We have no" }, { "docid": "16029934", "title": "", "text": "729 (8th Cir.1991) (per curiam) (federal grievance regulations providing for administrative remedy procedure do not create liberty interest in access to that procedure) (citing with approval Azeez v. DeRobertis, 568 F.Supp. 8 (N.D.Ill.1982)). “[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.” Azeez, 568 F.Supp. at 10. Thus, defendants’ failure to process any of Buckley’s grievances, without more, is not actionable under section 1983. Contrary to Buckley’s assertion in his second complaint, he had no Seventh Amendment right to a jury trial in a prison disciplinary setting. See Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-83, 41 L.Ed.2d 935 (1974). Buckley did not assert that he had state-created liberty interest in a jury trial in that context. We also conclude that Buckley’s allegations that he was denied certain personal hygiene items were insufficient to state a claim for cruel and unusual punishment. Cf. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (Eighth Amendment prohibits depriving inmates of “minimal civilized measure of life’s necessities”); Porth v. Farrier, 934 F.2d 154, 157 (8th Cir.1991) (discomfort does not amount to cruel and unusual punishment; conduct must be so inhumane, base or barbaric as to shock sensibilities); Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.1989) (inmates are entitled to reasonably adequate sanitation and personal hygiene). Accordingly, we affirm. . The Honorable Celeste F. Bremer, United States Magistrate Judge for the Southern District of Iowa, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). . Buckley was ordered to pay $297 for a mattress and thermostat he damaged while at Oak-dale Medical Security Facility." }, { "docid": "19708973", "title": "", "text": "and unusual. In Chapman v. Kleindienst, 507 F.2d 1246, 1252 (7th Cir.1974), the court stated that courts reviewing the proportionality of prison disciplinary measures must consider the circumstances surrounding the offense, the prisoner’s disciplinary record and the offense for which he was originally incarcerated. In the case at bar, we have before us no allegations concerning the latter two factors. But even if Woodall had never before been charged with a violation of prison rules and the offense for which he was originally imprisoned was of a minor nature, we find that the circumstances surrounding his multiple offenses support the conclusion that the punishment imposed was not excessive. Woodall instigated the confrontation with Partilla and defied her order to leave her alone. Such challenges to authority interfere with prison operations and may threaten prison security. Accordingly, the Court holds that Woodall’s punishment does not give rise to an Eighth Amendment violation. See generally Madyun v. Franzen, 704 F.2d 954 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983); Chapman v. Pickett, 586 F.2d 22 (7th Cir.1978). V. IDOC Review of Adjustment Committee Decision Woodall alleges that disciplinary-sanctions were imposed upon him and upheld without affording him an appeal hearing at the institutional level and further upheld at the department level at a hearing held in his absence. Thus, Woodall claims that defendants denied him minimum requirements of due process. This claim is without merit. “[T]he Fourteenth Amendment does not mandate administrative review of prison disciplinary actions.” Greer v. DeRobertis, 568 F.Supp. 1370, 1375 (N.D.Ill.1983). See also Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill.1982). Accordingly, this claim is dismissed. VI. Labor Claims Woodall claims that defendants violated the Constitution and state and federal laws by contracting out his labor to Servomation for an excessive number of working hours per day at a wage level below the minimum required by law. Once again, we are confronted with the threshold task of determining whether the complaint sufficiently alleges that Servomation, a private corporation, acted under color of state law so as to be amenable to Woodall’s labor" }, { "docid": "22367362", "title": "", "text": "preserving the disciplinary process as a means of rehabilitation. Requiring a modicum of evidence to support a decision to revoke good time credits will help to prevent arbitrary dep rivations without threatening institutional interests imposing undue administrative burdens. Because the written statement mandated by Wolff requires a disciplinary board to explain the evidence relied upon, recognizing that due process requires some evidentiary basis for a decision to revoke good time credits will not impose significant new burdens on proceedings within the prison. Nor does it imply that a disciplinary board’s factual findings or decisions with respect to appropriate punishment are subject to second-guessing upon review. We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Id. at 2774 (quotations and citations omitted, emphasis added). The Court’s decisions in Hewitt and Hill lead to two conclusions: First, the exigencies of prison administration allow prison administrators to make segregation decisions on the basis of “some evidence,” including the administrator’s experience and awareness of general prison conditions; second, a reviewing court may not reverse the administration’s decision if “some evidence” supports the administration’s decision. Plaintiffs seek to distinguish Hill on the basis that “the issue before this Court is" }, { "docid": "19708967", "title": "", "text": "prison officials to investigate disciplinary charges prior to a hearing.” United States ex rel. Wilson v. DeRobertis, 508 F.Supp. 360, 362 (N.D.Ill.1981). While an investigation may at times be necessary to ensure fundamental fairness, id., the Court does not find any constitutional error in defendants’ failure to conduct an investigation in the instant case. Woodall does not allege, for example, that an investigation would have yielded witnesses whose testimony would have controverted Partilla’s charges. Indeed, Woodall did not even request witnesses at his hearing, although he alleges that another inmate could corroborate his story. Thus, the Court finds that the complaint states no cause of action with respect to the failure to investigate. Next, Woodall states that the Adjustment Committee rejected evidence helpful to him and reached its decision without independent corroboration of Partilla’s charges. The Court construes these assertions as a general attack upon the sufficiency of the evidence to support the finding of guilt. The findings of a prison disciplinary committee are not subject to attack as a violation of due process unless no reasonable adjudicator could have found the prisoner guilty of the offense charged on the basis of the evidence presented. Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983). Woodall was given an opportunity to respond to the charges at the hearing before the Adjustment Committee. He apparently was provided with an opportunity to call witnesses in his defense, but he did not request the Committee to interview the inmate whom he now contends can corroborate his story. After hearing Woodall’s testimony, the Committee chose to rely upon Partilla’s written eyewitness account. The Committee found that Woodall was positively identified by Partilla, and that Woodall was in the area of the reported infraction. While it is true that Partilla did not appear at the hearing in person, Woodall did not request her attendance. Moreover, confrontation and cross-examination of witnesses in the context of a prison disciplinary proceeding are not absolutely required; they are matters left to the sound discretion of prison officials. Wolff," }, { "docid": "22915624", "title": "", "text": "relief from convictions by the Institution Disciplinary Committee (IDC) for fighting with another prisoner and refusing to obey an order from a member of the staff. Appellant contends that he was denied due process because the evidence was insufficient to support the conviction. The district court dismissed his petition on the grounds that his allegations did not state a claim upon which the court could grant relief and that the disciplinary decision was supported by sufficient evidence. We affirm. The Supreme Court has held that although “a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime,” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), his interest in due process “must be accommodated in the distinctive setting” and “legitimate institutional needs” of a prison, Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356 (1984). The Court has held that there need only be “some evidence” supporting the findings by a prison disciplinary committee in order to satisfy due process. Id. at 454, 105 S.Ct. at 2773; Zimmerlee, 831 F.2d at 186. “[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56, 105 S.Ct. at 2773-75. The IDC relied on an eyewitness account by the reporting officer and a statement by an inmate witness that he had heard Bostic challenge another inmate to fight. This is sufficient evidence to support the judgment. 88-1805; 88-1806: These habeas petitions are identical. Appellant seeks habeas relief from a disciplinary action for possession of contraband. In a routine search, a guard discovered thirty-four stolen sandwiches in a laundry bag underneath the Appellant’s bed. A hearing was held in which Bostic testified that he did not own the laundry bag and did not know who had placed the sandwiches there. The guard stated that the Appellant earlier had admitted having stolen the sandwiches to supplement his income. Bostic summoned a witness, who was unable to offer any pertinent information. The IDC found appellant" }, { "docid": "19708966", "title": "", "text": "doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Woodall has failed, however, to identify the individuals responsible for placing him in segregation without a prior hearing. To recover damages under 42 U.S.C. § 1983, a plaintiff must establish a defendant’s personal responsibility for the claimed deprivation of a constitutional right. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982). Accordingly, Woodall’s claim that he was placed in segregation without a prior hearing is dismissed with leave to amend to name the individuals responsible. III. Adjustment Committee Decision [12] Woodall challenges the decision of the Adjustment Committee on several grounds. First, he asserts that defendants failed to investigate the charges made by Partilla. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court defined what process is due an inmate in the context of prison disciplinary proceedings. “Nothing in Wolff absolutely requires prison officials to investigate disciplinary charges prior to a hearing.” United States ex rel. Wilson v. DeRobertis, 508 F.Supp. 360, 362 (N.D.Ill.1981). While an investigation may at times be necessary to ensure fundamental fairness, id., the Court does not find any constitutional error in defendants’ failure to conduct an investigation in the instant case. Woodall does not allege, for example, that an investigation would have yielded witnesses whose testimony would have controverted Partilla’s charges. Indeed, Woodall did not even request witnesses at his hearing, although he alleges that another inmate could corroborate his story. Thus, the Court finds that the complaint states no cause of action with respect to the failure to investigate. Next, Woodall states that the Adjustment Committee rejected evidence helpful to him and reached its decision without independent corroboration of Partilla’s charges. The Court construes these assertions as a general attack upon the sufficiency of the evidence to support the finding of guilt. The findings of a prison disciplinary committee are not subject to attack as a violation of due process unless" }, { "docid": "2194150", "title": "", "text": "28, 1981, Cato’s disciplinary rehearing was held before Program Administrator O’Shaughnessy, Correctional Counselor Kernan, and Correctional Counselor Feh-renkamp. The plaintiff was once again found guilty. The tide turned after Cato filed a petition for a writ of habeas corpus in state court. At that point it was stipulated that the disciplinary action would be vacated and that correctional officers could refile the charges if Cato were permitted to take a polygraph examination. Pursuant to the stipulation Cato submitted to a polygraph test, which supported his claim that he was not involved in the plot to take hostages. On the basis of the test results, Cato was released into the general population on February 23, 1982. Cato brought this 42 U.S.C. § 1983 action, alleging a deprivation of liberty without procedural due process. On November 17, 1985, the defendants filed a motion for summary judgment, which was granted on February 4, 1986. The court ruled, inter alia, that the disciplinary committee’s finding that the plaintiff had violated a disciplinary rule was supported by a sufficient quantum of evidence. Excerpt of Record at 356. The plaintiff timely filed a notice of appeal. II. DISCUSSION In Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), the Supreme Court held that the findings of a prison disciplinary board that result in the loss of a protected liberty interest must be supported by “some evidence in the record.” Id. at 454, 105 S.Ct. at 2773. The defendants concede that the State of California has created a liberty interest, in not being subject to administrative segrega tion, of which Cato was deprived. See Tomsaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The State, in depriving the plaintiff of that liberty interest, must do so on the basis of “some evidence in the record.” Otherwise procedural due process under the circumstances of this case is not satisfied. Hill, 472 U.S. at 455, 105 S.Ct. at 2774. Cato argues that the “some evidence” standard requires evidence possessing some indication of reliability," }, { "docid": "3679393", "title": "", "text": "the district court correctly found, no such “independent assessment” was made in any of the cases before us. B. The district court also faulted the committee for failing to produce written findings that “adequately explain the facts relied upon or adequately show that the confidential evidence relied upon was reliable.” It held, in addition, that “the committee must make findings as to credibility and explain its reasons for relying on a particular witness’s testimony.” As we have indicated earlier, the principal reason the Supreme Court commanded in Wolff that prison disciplinary authorities prepare a written statement by the fact finder as to the evidence relied on and the reasons for the disciplinary action” is to enable reviewing courts to obtain a reviewable record that demonstrates that the prison disciplinary hearing was conducted fairly. Such a record must demonstrate, at a minimum, that the committee members received information which provides some evidence that the charged misconduct occurred and, when the evidence is only the hearsay repetition of information supplied by otherwise unidentified confidential informants, that the committee determined for itself, on some reasoned basis, that the informants and their information were reliable. The Supreme Court has recently set forth the standard for the quantum of evidence that must appear in the written statement explaining a disciplinary action: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v Commissioner of Immigration, 273 U.S. [103] at 106, 47 S.Ct. 302, 71 L.Ed. 560 [1927]. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260 [260-261], 68" }, { "docid": "23516045", "title": "", "text": "Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). The plaintiff's most promising argument is that he should be granted a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c). If he can show that his due process rights were violated in the subject disciplinary proceedings, then § 2241 would be the appropriate remedy to use to restore his good time credits. See Jackson, 707 F.2d at 946. In Superintendent, Mass. Corr. Institution v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985), the Court held that “the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits.” The Court decided that the relevant question was “whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” In the instant case, the information relied on to support the disciplinary conviction consisted of information provided by a confidential informant, the results of two polygraph tests and purported inconsistencies in the statements of some of the plaintiffs witnesses at his disciplinary hearing. Our review of the record discloses that the above information did not constitute any evidence that supported the conclusion reached by the prison officials. The statements elicited from the confidential informant should never have been given any weight by the institutional disciplinary committee (IDC) as there was no determination made by the prison staff that indicated that the informant was reliable. See 28 C.F.R. § 541.17(f) and Bureau of Prisons Program Statement No. 5270.5, Chapter 7, pp. 4-5. See also McCollum v. Williford, 793 F.2d 903, 906 (7th Cir.1986); Sanchez v. Miller, 792 F.2d 694, 700 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987); Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986) (In order for a prison inmate to have a fair hearing, some indication of the reliability of confidential informants is required when confidential information is the basis for a" }, { "docid": "9591321", "title": "", "text": "sanctioned, such as the plaintiff in this case was sanctioned, the prison officials must provide those procedural requirements outlined in Wolff v. McDonnell: advance written notice of violation, written statement of fact-finding, the right to present witnesses and present evidence where it would not be unduly hazardous to institutional safety. In addition, an impartial decisionmaking body protects the integrity of the procedure. Redding v. Fairman, 717 F.2d 1105 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984). All of these procedural ■ due process requirements protect prisoners from “arbitrary actions extinguishing their privileges.” Id. at 1116. The disciplinary procedures allow a prisoner a chance to defend against improper or erroneous charges. The procedural protections were established to insure fair, impartial decisionmaking on the part of prison officials prior to the imposition of sanctions against a prisoner. The procedures allow an inmate the opportunity to tell his own version of the events at issue to the disciplinary committee. Although plaintiff in the instant case presents very serious allegations against the defendant prison guards, he was given a disciplinary hearing prior to the imposition of sanctions. He was provided an opportunity to explain his version of the events. There was an impartial committee who listened to his and his cellmate’s testimony. The procedural due process requirements were instituted to protect prisoners from the actions complained of here. The Adjustment Committee weighs credibility in this setting and determines whose testimony is worthy of belief. A written statement of facts would provide a record for a reviewing court to exercise its minimal review of that record to determine whether the actions of the disciplinary committee were arbitrary, capricious or an abuse of discretion. Smith v. Rabalais, 659 F.2d 539 (5th Cir.1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982). Federal courts generally will not entertain requests for a de novo review of the disciplinary committee’s factual findings, but will merely consider whether the decision of the committee is supported by “some facts.” Id. at 545; Willis v. Ciccone, 506 F.2d 1011 (8th Cir.1974). In Willis" }, { "docid": "23516044", "title": "", "text": "plaintiff’s right to due process under the Fifth Amendment and his right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment. The plaintiff suffered the forfeiture of 1,009 days of good time credits and the consequent rescission of his presumptive parole date. 18 U.S.C. § 4161 creates a right to good time credits and a deprivation of that right is a deprivation of liberty. Dawson v. Smith, 719 F.2d 896, 898 (7th Cir.1983); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983). “[A]ny procedure depriving a federal prison inmate of earned statutory good time credits must comport with the due process requirements of the Constitution.” Dawson, 719 F.2d at 898. As a practical matter, the plaintiff does not have a viable Eighth Amendment Bivens claim for which he may recover damages. The plaintiff’s allegations that procedural irregularities occurred during his disciplinary proceeding do not involve the Eighth Amendment’s protection against “the unnecessary and wanton infliction of pain.” See Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). The plaintiff's most promising argument is that he should be granted a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c). If he can show that his due process rights were violated in the subject disciplinary proceedings, then § 2241 would be the appropriate remedy to use to restore his good time credits. See Jackson, 707 F.2d at 946. In Superintendent, Mass. Corr. Institution v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985), the Court held that “the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits.” The Court decided that the relevant question was “whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” In the instant case, the information relied on to support the disciplinary conviction consisted of information provided by a confidential informant, the results of two polygraph tests and" }, { "docid": "22890129", "title": "", "text": "related to preventing undue hazards to ‘institutional safety or correctional goals.’ ” Ponte v. Real, 105 S.Ct. at 2196. In the present case, the district court improperly rejected the explanation provided by the administrator. Therefore, Jeffrey Price was properly excluded from the disciplinary hearing on October 6, 1981, and the procedural safeguards enunciated,in Wolff v. McDonnell were satisfied. Once a court has decided that the procedural due process requirements have been met, its function is to determine whether there is some evidence which supports the decision of the prison disciplinary board. See Superintendent, Mass. Correctional Inst. v. Hill, 105 S.Ct. at 2774; Hanrahan v. Lane, 747 F.2d at 1141; see also Willis v. Ciccone, 506 F.2d 1011, 1018 (8th Cir.1974). The Supreme Court has indicated the process to be used in making this determination: Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. Superintendent, Mass. Correctional Inst. v. Hill, 105 S.Ct. at 2774 (emphasis added). In this case, the prison disciplinary committee relied on three documents. In addition to the report submitted by the defendant, Rideout, it also relied upon the report submitted by Officer Honymar, and the statement of inmate Douglas Pratt. The committee also heard the rebuttal testimony of plaintiff, Freeman, and inmate Jeffrey Maynard. On this record, the court holds that there existed sufficient evidence to support the disciplinary committee’s finding of guilty, and the imposition of punitive sanctions deemed appropriate by the committee. Conclusion In view of the foregoing, it is the holding of this Court that Rideout’s filing of unfounded charges did not constitute a violation of plaintiff’s rights under 42 U.S.C. § 1983 (1982). The Court also holds that the prison disciplinary hearing provided Freeman with the due process to which he was entitled. The judgment of the district court is, therefore, reversed." }, { "docid": "12049570", "title": "", "text": "it has not explicitly said so. Therefore, we hold that § HSS 303.68' establishes a procedural guideline to channel official discretion but does not limit the exercise of that discretion to the listed criteria. B. Disciplinary Committee’s Finding of Guilt and Imposition of Punishment The plaintiff’s second argument is that the defendant failed to provide him with an adequate statement of the evidentiary basis for the disciplinary action taken against him in violation of his due process rights under the standard enunciated in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Citing several opinions of this court, the plaintiff contends that the mere recital that an inmate’s guilt is based upon a written violation report is inadequate. Rather, he submits that the record must indicate why an officer’s report rather than exculpatory evidence was credited, and that summary evidentiary statements such as “based on all available evidence” may not be relied upon. See Redding v. Fairman, 717 F.2d 1105, 1114-16 (7th Cir. 1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984); Chavis v. Rowe, 643 F.2d 1281, 1286-87 (7th Cir.), cert. denied, 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981); Hayes v. Walker, 555 F.2d 625, 631-32 (7th Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977). The defendant does not dispute that the plaintiff was entitled to due process at the hearing stage under Wolff and under state regulations, see §§ HSS 303.76, 303.82. However, he maintains that the disciplinary committee’s statement of reasons for its decision under each of the charges satisfies the requirements of due process. The defendant contends that this court’s opinion in Saenz v. Young, 811 F.2d 1172 (7th Cir.1987), establishes an interdependence between the particularity of reasons given by the committee and the relative complexity of the charges, the facts, and the inmate’s defense. In this case, according to the defendant, the issues were so simple that a lengthy statement of the evidentiary basis for the findings of guilt was unnecessary. We begin our analysis with the Supreme Court’s" }, { "docid": "22367363", "title": "", "text": "the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Id. at 2774 (quotations and citations omitted, emphasis added). The Court’s decisions in Hewitt and Hill lead to two conclusions: First, the exigencies of prison administration allow prison administrators to make segregation decisions on the basis of “some evidence,” including the administrator’s experience and awareness of general prison conditions; second, a reviewing court may not reverse the administration’s decision if “some evidence” supports the administration’s decision. Plaintiffs seek to distinguish Hill on the basis that “the issue before this Court is not what due process requires, but rather, whether the district court abused its discretion in formulating a remedy for proven violations of the Constitution (including Eighth Amendment Rights).” We reject this argument for reasons similar to those we gave in holding that eighth amendment violations do not create a liberty interest. See supra pages 1093-94. A prisoner who presents a clear security risk enjoys exactly the same eighth amendment protection as does the most placid prisoner. The fact that justification exists for segregating a particular prisoner will not assuage his sufferings. Therefore, close scrutiny of prison officials’ segregation decisions will do little to protect plaintiffs’ eighth amendment rights. We also do not consider the defendants’ history of noncompliance with prior orders to constitute a valid reason for this court to arrogate to itself the discretion imposed on the defendants. The earlier orders demanded much more of the defendants than the law now requires. Our purpose is not to punish defendants for their past failures, but to enforce compliance with current constitutional standards. We perceive no" }, { "docid": "12049571", "title": "", "text": "1282, 79 L.Ed.2d 685 (1984); Chavis v. Rowe, 643 F.2d 1281, 1286-87 (7th Cir.), cert. denied, 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981); Hayes v. Walker, 555 F.2d 625, 631-32 (7th Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977). The defendant does not dispute that the plaintiff was entitled to due process at the hearing stage under Wolff and under state regulations, see §§ HSS 303.76, 303.82. However, he maintains that the disciplinary committee’s statement of reasons for its decision under each of the charges satisfies the requirements of due process. The defendant contends that this court’s opinion in Saenz v. Young, 811 F.2d 1172 (7th Cir.1987), establishes an interdependence between the particularity of reasons given by the committee and the relative complexity of the charges, the facts, and the inmate’s defense. In this case, according to the defendant, the issues were so simple that a lengthy statement of the evidentiary basis for the findings of guilt was unnecessary. We begin our analysis with the Supreme Court’s opinion in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Wolff, the Court held that due process sets limits on prison disciplinary hearings when a state has provided by statute or regulation certain substantive rights regarding that hearing. One of these due process protections is “a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.” Id. at 563, 94 S.Ct. at 2978. The considerations underlying this requirement, according to the Court, included protection for a prisoner from collateral consequences of disciplinary action and encouragement of fair administrative decision making: Written records of proceedings will ... protect the inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly. Without written records," }, { "docid": "19708974", "title": "", "text": "Pickett, 586 F.2d 22 (7th Cir.1978). V. IDOC Review of Adjustment Committee Decision Woodall alleges that disciplinary-sanctions were imposed upon him and upheld without affording him an appeal hearing at the institutional level and further upheld at the department level at a hearing held in his absence. Thus, Woodall claims that defendants denied him minimum requirements of due process. This claim is without merit. “[T]he Fourteenth Amendment does not mandate administrative review of prison disciplinary actions.” Greer v. DeRobertis, 568 F.Supp. 1370, 1375 (N.D.Ill.1983). See also Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill.1982). Accordingly, this claim is dismissed. VI. Labor Claims Woodall claims that defendants violated the Constitution and state and federal laws by contracting out his labor to Servomation for an excessive number of working hours per day at a wage level below the minimum required by law. Once again, we are confronted with the threshold task of determining whether the complaint sufficiently alleges that Servomation, a private corporation, acted under color of state law so as to be amenable to Woodall’s labor claims under § 1983. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). The focus of our analysis must be whether the state involvement in the challenged action is “significant.” Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1634, 18 L.Ed.2d 830 (1967). Stated otherwise, “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action ... so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). With these principles in mind, we consider the case at bar. Servomation, Inc., is a private corporation contracted by the IDOC to prepare and serve food to all inmates and staff at Joliet Correctional Center. According to Woodall, Servomation employs civilian food supervisors and utilizes" } ]

[ { "docid": "13497909", "title": "", "text": "apply. Instead, it looked to the analogous federal limitations period and concluded that the express limitations provisions of the Securities and Exchange Act of 1934 should apply. A straightforward application of the Data Access rule to this case would require plaintiffs to have filed suit within one year from the time of discovery and in any event within three years from the time the violation occurred. Since the violation allegedly occurred in connection with the offering and sale of securities between June and August, 1984, and the complaint was not filed until September 7, 1989, plaintiffs are clearly time-barred. They must persuade the court, therefore, that the rule of Data Access should not be applied retroactively. The question of retroactive application of the new one year/three year rule established by Data Access was not answered by the court on that occasion. The Third Circuit resolved that question in 1988 in the case of Hill v. Equitable Trust Co., 851 F.2d 691, cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782, (1989), and has considered it since in McCarter v. Mitcham, 883 F.2d 196 (1989), Gatto v. Meridian Medical Associates, Inc., 882 F.2d 840 (1989), cert. denied, — U.S. -, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990), and most recently in Gruber v. Price Waterhouse, 911 F.2d 960 (1990). The limitations period should be applied retroactively unless the party attempting to avoid retroactive application persuades the court that the rule should be applied prospectively only. Hill, 851 F.2d at 696-97. The method for applying the “uncommon exception” of prospective application of the Data Access rule requires a ease-by-case analysis of the three-part test enunciated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Id., at 697; Gruber, 911 F.2d at 964-65. These factors are premised on a general assumption that judicial decisions should be applied retroactively. In re National Smeltinq of New Jersey, Inc., 722 F.Supp. 152, 157 (D.N.J.1989). The three-part test of Chevron Oil states: First, the decision to be applied non-retroactively must establish a new principle" } ]

[ { "docid": "14928656", "title": "", "text": "10b-5 must be commenced one year after the plaintiff discovers the facts constituting the violation, and in no event more than three years after such violation. Because in this case the conduct of which Plaintiffs complain occurred in 1980, and Plaintiffs did not commence this action until 1986, a straightforward application of the Data Access rule would have required the dismissal of Plaintiffs’ claims. But Plaintiffs argued against a straightforward application, contending that the Data Access rule should operate only prospectively — a question the Data Access court expressly declined to decide. Consequently, the Court considered whether the limitation period established in Data Access should be applied retroactively in this case to bar Plaintiffs’ 10b-5 claims. See Gilmore v. Berg, 761 F.Supp. 358, 364-67 (D.N.J.1991). Under the law in this Circuit as it existed at that time, the question whether Data Access should be given retroactive effect required a case-by-case analysis under the three-part test set forth by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In its decisions applying the Chevron Oil test to determine whether Data Access should be applied retroactively, the Third Circuit considered three factors: (1) whether Data Access overruled established precedent upon which the plaintiff may have relied, see, e.g., Gruber v. Price Waterhouse, 911 F.2d 960, 965 (3d Cir.1990); (2) whether retroactive application of the new rule would further or retard the rule; and (3) whether retroactive application would be inequitable. Plaintiffs failed to satisfy the first factor: No clear precedent on the applicable limitation period for 10b-5 actions existed in this Circuit at the time Data Access was decided or at the time Plaintiffs’ cause of action arose in 1980. See McCarter v. Mitcham, 883 F.2d 196, 203 (3d Cir.1989). Moreover, because Plaintiffs conceded they were unaware of the operative facts underlying their cause of action until 1986 — at least twenty-eight months after the three-year absolute bar of Data Access had passed — they could not possibly have relied on a longer limitation period. The second factor was neutral. See id." }, { "docid": "13497912", "title": "", "text": "court in Hill, McCarter and Gatto found that Data Access did not overrule clear past precedent which was sufficient to warrant justifiable reliance by plaintiff, the inquiry is “fact sensitive,” requiring us to examine whether the facts of this case have been clearly decided in prior cases. Gruber, 911 F.2d at 965 (citations omitted). Therefore, we must examine the law as it existed at the time plaintiffs’ cause of action arose and any changes which may have occurred prior to the time the complaint was filed. Id. at 965. First, we must recognize the Third Circuit’s “legal conclusion” that no clear precedent on the applicable New Jersey limitations period for Rule 10b-5 actions existed at the time Data Access was decided in 1988. McCarter, 883 F.2d at 203; Gatto, 882 F.2d at 843. In Gatto, plaintiffs were investors who purchased limited partnership interests in real estate as a tax shelter. They filed suit in 1987, alleging fraudulent inducement to purchase their limited partnership interests six years earlier in violation of § 10(b) and Rule 10b-5. They invoked Third Circuit precedent regarding limitations period under New Jersey law for § 10(b) and Rule 10b-5 claims as ground for prospective application of Data Access. The Gatto court rejected their argument on the basis that the Hill court found that no clear precedent existed at the time their cause of action arose as to the appropriate limitations period in New Jersey for § 10(b) and Rule 10b-5 claims. Gatto, 882 F.2d at 843. Furthermore, Data Access did not resolve an issue of first impression. These conclusions were made as a matter of law. Id. Plaintiffs in this case stand in an almost identical position to those in Gatto. At the time they purchased limited partnership interests in Oceanaire as a tax shelter in 1984, Third Circuit precedent regarding the New Jersey limitations period for 10b-5 violations brought by buyers against sellers of securities was no clearer than in 1981, when the claim in Gatto accrued. We must accept this as a matter of law and need not repeat the Data Access, Hill and" }, { "docid": "3997899", "title": "", "text": "therefore refused to apply the shorter one year/three year statute of limitations to the section 10(b) and rule 10b-5 claims. Instead, applying the two year common law statute of limitations, the district court denied PW’s motion for summary judgment on the federal securities claims. Thus, we must now address the three factors of Chevron in turn to determine whether Data Access should be given retroactive application here. A. Addressing the first Chevron factor, whether the decision established a new principle of law, we must examine the law as it existed at the time Gruber’s cause of action arose and any changes which may have occurred prior to the time the complaint was filed. We must determine whether our decision in Data Access overruled past precedent upon which Gruber may have relied in deciding when to bring suit against Price Waterhouse. We have previously stated that “[pjrior precedent ... must be ‘sufficiently clear that a plaintiff could have reasonably relied upon it in delaying suit, a criterion] that was not met where the law was erratic and inconsistent.’ ” Hill, 851 F.2d at 696 (quoting Fitzgerald v. Larson, 769 F.2d 160, 163 (3d Cir.1985). Therefore, we must determine if Gruber had “sufficiently clear” precedent to have relied upon the common law statute of limitations for the section 10(b) and rule 10b-5 claims. The basic inquiry we must address here is what a claimant, or his reasonably prudent attorney, would do in 1984 in light of the law at the time the violation occurred. Because this retroactive analysis is fact sensitive, the ruling in Hill that Data Access did not overrule clear past precedent' which was sufficient to warrant justifiable reliance, is not controlling here. Additionally, in Gatto we explained that although Hill had upheld retroactive application of Data Access, “it does not follow that this is necessarily the result in all cases.” Gatto, 882 F.2d at 843. Similarly, in McCarter we recognized that, regardless of Hill, the court “must decide more particularly whether the facts of [the case at issue] have been clearly decided in prior cases.” McCarter, 883 F.2d at" }, { "docid": "9962377", "title": "", "text": "than two years beyond the expiration of the three-year period otherwise applicable. Ill.Rev.Stat. ch. 121‘/2 ¶ 137.13(D). . The Second Circuit followed suit on November 8, 1990, holding in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990), that the proper statute of limitations for § 10(b) actions is one year, with a three-year period of repose, as provided in 15 U.S.C. §§ 78i(e), 78r(c). . See also Radiology Center v. Stifel, Nicolaus & Co., 919 F.2d 1216 (7th Cir.1990) (not reaching issue); Robin v. Arthur Young & Co., 915 F.2d 1120, 1123 (7th Cir.1990); Astor Chauffered Limousine Co. v. Runnfeldt Investment Co., 910 F.2d 1540, 1544 (7th Cir.1990) (same). In this respect as well, the Seventh Circuit followed the lead of the Third Circuit in Data Access, 843 F.2d at 1550-51. The retroactivity issue has itself spawned a cottage industry of litigation, particularly in the Third Circuit itself. See, e.g., Gruber v. Price Waterhouse, 911 F.2d 960 (3d Cir.1990) (not retroactively applied); McCarter v. Mitcham, 883 F.2d 196 (3d Cir.1989) (retroactively applied); Gatto v. Meridian Medical Associates, Inc., 882 F.2d 840 (3d Cir.1989) (retroactively applied), cert. denied, — U.S. -, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); Hill v. Equitable Trust Co., 851 F.2d 691, 697 (3d Cir.1988) (retroactively applied), cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989); Panna v. Firstrust Savings Bank, 749 F.Supp. 1372 (D.N.J.1990) (retroactively applied); Capital Care Corp. v. Lifetime Corp., No. 88-2682, 1990 WL 158604 (E.D.Pa. Oct. 16, 1990) (retroactively applied); In re National Smelting of New Jersey, 722 F.Supp. 152, 160 (D.N.J.1989) (not retroactively applied). . In the majority of cases considering retroactive application of Data Access, the Third Circuit has found that Data Access did not depart from clear past precedent. See McCarter, 883 F.2d at 203-04 (law had been unsettled with respect to which state statute would apply); Gatto, 882 F.2d at 843 (same); Hill, 851 F.2d at 697 (same). But see Gruber, 911 F.2d at 965-67 (law was settled with respect to state statute to be applied to particular type of § 10(b) claim). The" }, { "docid": "1303415", "title": "", "text": "of the 1933 Act is derivative of Section 12(2) and the limitations period is therefore the same. Herm v. Stafford, 663 F.2d 669, 679 (6th Cir.1981); Insurance Consultants of America v. Southeastern Ins. Group, 746 F.Supp. 390, 404-05 (D.N.J.1990); Hill v. Equitable Trust Co., 562 F.Supp. 1324, 1341 (D.Del.1983). The one year limitations period is also applicable to claims under Section 10(b) and Rule 10b-5 of the 1934 Act. McCarter v. Mitcham, 883 F.2d 196, 202 (3d Cir.1989); Gatto v. Meridan Medical Assoc., 882 F.2d 840 (3d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); In re Data Access Systems Securities Litigation, 843 F.2d 1537, 1550 (3d Cir.) (in banc), cert. denied, 488 U.S. 849,109 S.Ct. 131, 102 L.Ed.2d 103 (1988); Elysian Fed. Sav., 713 F.Supp. at 741. Counts One and Two must be dismissed if the Plaintiffs, in exercising reasonable diligence, knew or should have known of the existence of the alleged fraud of the Roberts Defendants more than one year prior to 19 July 1988, the date the Complaint was originally filed. The Plaintiffs argue the Complaint is timely because it was filed within one \\ year after 20 July 1987, the date the SEC issued the Stop Order which suspended the effectiveness of the Hughes Registration Statement. The Plaintiffs argue it was the Stop Order which triggered the statute of limitations and Plaintiffs, using reasonable diligence, had no way of knowing of the fraud involved in the sale of Hughes Capital securities prior to its disclosure in the Stop Order. The Roberts Defendants argue the statute of limitations runs not from “ ‘the time at which a plaintiff becomes aware of all of the various aspects of the alleged fraud, but rather [from] the time at which plaintiff should have discovered the general fraudulent scheme.' ” Arneil v. Ramsey, 550 F.2d 774, 780 (2d Cir.1977) (quoting Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2d Cir.1975)) (emphasis added); see Elysian Fed. Sav., 713 F.Supp. at 745; Bradford-White Corp. v. Ernst & Whinney, 699 F.Supp. 1085, 1091 (E.D.Pa.1988), rev’d on other" }, { "docid": "3997896", "title": "", "text": "“decided that the proper period of limitations for a complaint charging violation of section 10(b) and rule 10b-5 is one year after the plaintiff discovers the facts constituting the violation, and in no event more than three years after such violation.” Id. at 1550. The source from which this limitations period was borrowed was the Securities Exchange Act of 1934. Because the application of our ruling was not requested in the question certified to us in Data Access, we did not decide whether the decision should be applied retroactively. We reserved this determination for the district court. Id. at 1550-51. IV. We have considered, on three separate occasions, whether Data Access should be applied retroactively or prospectively. McCarter v. Mitcham, 883 F.2d 196 (3d Cir.1989); Gatto v. Meridan Medical Associates, Inc., 882 F.2d 840 (3d Cir.1989); Hill v. Equitable Trust Co., 851 F.2d 691 (3d Cir.1988). In each of those cases, we concluded that the Data Access limitation period should be given retroactive application. In Hill v. Equitable Trust Co., 851 F.2d 691 (3d Cir.1988), we explained the three qualifications necessary for applying a decision prospectively. This three-part test was enunciated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), as follows: First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Chevron Oil Co. v. Huson, 404 U.S. at 106-07, 92 S.Ct. at" }, { "docid": "3997895", "title": "", "text": "an accounting firm, were non-sellers. As we noted in Data Access, “the Supreme Court has yet to rule on the applicable limitations period for a section 10(b) and rule 10b-5 action.” Data Access, 843 F.2d at 1539. We examined existing Third Circuit precedent and concluded that it was based on the Supreme Court’s “normal rule of looking to state statutes” as opposed to adopting a universal federal statute of limitations. Id. at 1540 (quoting Roberts v. Magnetic Metals Co., 611 F.2d 450, 454 (3d Cir.1979) (Seitz, J., dissenting)). We concluded that three recent Supreme Court decisions dictated deviation from that rule and compelled the court to apply “the most analogous federal statute of limitations.” Data Access, 843 F.2d at 1540 (citing Agency Holding Corp. v. Malley-Duff Assocs., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)). Bound by these Supreme Court pronouncements, we “decided that the proper period of limitations for a complaint charging violation of section 10(b) and rule 10b-5 is one year after the plaintiff discovers the facts constituting the violation, and in no event more than three years after such violation.” Id. at 1550. The source from which this limitations period was borrowed was the Securities Exchange Act of 1934. Because the application of our ruling was not requested in the question certified to us in Data Access, we did not decide whether the decision should be applied retroactively. We reserved this determination for the district court. Id. at 1550-51. IV. We have considered, on three separate occasions, whether Data Access should be applied retroactively or prospectively. McCarter v. Mitcham, 883 F.2d 196 (3d Cir.1989); Gatto v. Meridan Medical Associates, Inc., 882 F.2d 840 (3d Cir.1989); Hill v. Equitable Trust Co., 851 F.2d 691 (3d Cir.1988). In each of those cases, we concluded that the Data Access limitation period should be given retroactive application. In Hill v. Equitable Trust Co., 851 F.2d 691 (3d Cir.1988)," }, { "docid": "3997910", "title": "", "text": "court concluded that retroactivity would be clearly inequitable to Gruber. 697 F.Supp. at 863. As we noted in Gatto, “the third Chevron factor in practice overlaps with that of the first factor, ‘in that it would be inequitable to give retrospective application to a shortening of the limitations period that altered established law upon which plaintiff could have reasonably relied.’ ” 882 F.2d at 844, quoting Fitzgerald v. Larson, 769 F.2d at 164. Hence, a conclusion favoring prospective operation under the first factor appears to strongly advise a similar conclusion for the third factor. An absence of clear precedent in Gatto thereby distinguishes it from the case at bar. Our decisions in Hill and McCarter also may be distinguished from the facts here since, not only did we decide that there was no clear precedent relied upon by the plaintiffs under the first component of Chevron, but we found that regardless of whether or not Data Access was applied, the limitation periods would have been identical. Hill, 851 F.2d at 698; McCarter, 883 F.2d at 205. Conversely, retroactive application of Data Access would bar Gruber’s claims when they would not otherwise be barred by the two-year limitations period under Pennsylvania law, 42 Pa.Con.Stat.Ann. § 5524(7) (Purdon Supp.1989). Indeed the district court recognized that “[i]t would be inequitable to conclude that plaintiffs ‘slept on their rights’ and thus are deprived of their day in court when, during the relevant time period, they could reasonably rely on a two-year period_” Gruber, 697 F.Supp. at 863. We, therefore, conclude that the third criterion of Chevron favors prospective operation of Data Access here. Because the statute of limitations established by Data Access will not be applied to the section 10(b) and rule 10b-5 claims, the most analogous state statute of limitations must be used. We agree with the district court’s adoption of the two year common law limitations period used for the fraud and deceit claims for this purpose and the denial of summary judgment as to the section 10(b) and rule 10b-5 claims because of the presence of genuine issues of material fact" }, { "docid": "1303414", "title": "", "text": "may be granted.\" 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986): “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Id. at 323-24, 106 S.Ct. at 2553 (footnote omitted). Thus, once a case has been made in support of summary judgment, the party opposing the motion has the affirmative burden of coming forward with specific facts evidencing a need for trial. See Fed.R.Civ.P. 56(e). A. Statute of Limitations Under Federal Securities Laws An action based on Section 12(2) of the 1933 Act must be brought “within one year after discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence.\" 15 U.S.C. § 77m. Liability of a controlling person under Section 15 of the 1933 Act is derivative of Section 12(2) and the limitations period is therefore the same. Herm v. Stafford, 663 F.2d 669, 679 (6th Cir.1981); Insurance Consultants of America v. Southeastern Ins. Group, 746 F.Supp. 390, 404-05 (D.N.J.1990); Hill v. Equitable Trust Co., 562 F.Supp. 1324, 1341 (D.Del.1983). The one year limitations period is also applicable to claims under Section 10(b) and Rule 10b-5 of the 1934 Act. McCarter v. Mitcham, 883 F.2d 196, 202 (3d Cir.1989); Gatto v. Meridan Medical Assoc., 882 F.2d 840 (3d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); In re Data Access Systems Securities Litigation, 843 F.2d 1537, 1550 (3d Cir.) (in banc), cert. denied, 488 U.S. 849,109 S.Ct. 131, 102 L.Ed.2d 103 (1988); Elysian Fed. Sav., 713 F.Supp. at 741. Counts One and Two must be dismissed if the Plaintiffs, in exercising reasonable diligence, knew or should have known of the existence of the alleged fraud of the Roberts Defendants more than one year prior to 19 July 1988, the date the Complaint" }, { "docid": "14928668", "title": "", "text": "that Plaintiffs may pursue their RICO claims, Defendants’ motion to dismiss Plaintiffs’ state law claims will be denied. ORDER This matter having come before the Court on the motion of Defendants for summary judgment; and For the reasons set forth in the Court’s opinion of this date; IT IS on this 14th day of December hereby ORDERED that Count I of Plaintiffs’ Amended Complaint, which alleges claims under section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5, promulgated thereunder, is DISMISSED; and IT IS FURTHER ORDERED that Defendants’ motion for summary judgment on Counts II, III, IV, and V of Plaintiffs’ Amended Complaint, which allege claims under the Racketeer Influenced and Corrupt Organizations Act, is DENIED; and IT IS FURTHER ORDERED that Defendants’ motion for summary judgment on Counts VI, VIII, IX, X, XI, XII, and XIII of Plaintiffs’ Amended Complaint, which as sert claims under statutes and common law of the State of New Jersey, is DENIED. . The Court of Appeals had addressed the question whether the limitations period established in Data Access ought to be given retroactive effect in four cases: Hill v. Equitable Trust Co., 851 F.2d 691 (3d Cir.1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989); McCarter v. Mitcham, 883 F.2d 196 (3d Cir.1989); Gatto v. Meridian Medical Assocs., Inc., 882 F.2d 840 (3d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); and Gruber v. Price Waterhouse, 911 F.2d 960 (3d Cir.1990). . See footnote 1. . See footnote 1." }, { "docid": "3997908", "title": "", "text": "concur with the district court’s conclusion that the first factor of Chevron, as utilized here, favors prospective application of Data Access. B. The second component of the Chevron analysis requires a weighing of the “merits and demerits of each case” to determine the scope of the rule and to ascertain whether the retroactive operation would further or retard the rule. The district court summarily noted that the second Chevron factor is neutral with regard to the Data Access rule relying upon Hill as well as recognizing the absence of any challenge to this conclusion by either party. See 697 F.Supp. at 862 n. 4. In fact, in every instance in which we utilized the Chevron test where a party has sought to have Data Access applied retroactively, we have invariably resolved the second factor in a similar fashion. See McCarter, 883 F.2d at 204; Gatto, 882 F.2d at 843; Hill, 851 F.2d at 698. We have described the rule of Data Access as having the purpose of furthering certainty and uniformity for statutes of limitation for section 10(b) and rule 10b-5 claims. E.g., McCarter, 883 F.2d at 204. By allowing as few exceptions as possible to the rule of retroactivity, greater uniformity and . certainty result, thus the second criterion appears to favor retroactivity. Nevertheless, in the instance of Data Access, “this reasoning swallows the rule.” Components one and three mandate prospective application in cases where a new period of limitations replaces a well-settled statute since it would be inequitable to change the rules in midstream when clear precedent had been relied upon. Thus, we are compelled to conclude that the second factor “does not ‘militate clearly either in favor of or against retroactive application’ and is therefore neutral.” McCarter, 883 F.2d at 204 quoting Al-Khazraji v. Saint Francis College, 784 F.2d 505, 513 (3d Cir.1986), aff'd, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1986). C. The third and final criterion of Chevron requires us to discern the risk of substantial inequity which would ensue if retroactive application were given to Data Access in this case. The district" }, { "docid": "14928657", "title": "", "text": "296 (1971). In its decisions applying the Chevron Oil test to determine whether Data Access should be applied retroactively, the Third Circuit considered three factors: (1) whether Data Access overruled established precedent upon which the plaintiff may have relied, see, e.g., Gruber v. Price Waterhouse, 911 F.2d 960, 965 (3d Cir.1990); (2) whether retroactive application of the new rule would further or retard the rule; and (3) whether retroactive application would be inequitable. Plaintiffs failed to satisfy the first factor: No clear precedent on the applicable limitation period for 10b-5 actions existed in this Circuit at the time Data Access was decided or at the time Plaintiffs’ cause of action arose in 1980. See McCarter v. Mitcham, 883 F.2d 196, 203 (3d Cir.1989). Moreover, because Plaintiffs conceded they were unaware of the operative facts underlying their cause of action until 1986 — at least twenty-eight months after the three-year absolute bar of Data Access had passed — they could not possibly have relied on a longer limitation period. The second factor was neutral. See id. at 204. However, Plaintiffs satisfied the third factor. Because Plaintiffs had moved forward through over four years of litigation on the joint understanding of the parties that New Jersey’s two-year discovery rule applied, the Court reasoned that it would have been unfair to apply Data Access retroactively to dismiss their claims. As a result, Defendants’ motion for summary judgment on Plaintiffs’ 10b-5 claims was denied. The issue whether Plaintiffs’ 10b-5 claims are untimely arose once again in July of 1991, when Defendants filed a motion for reconsideration of the Court’s April 6, 1991 decision refusing to apply Data Access retroactively. Defendants argued that the Supreme Court’s decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), rendered on June 20, 1991, required that a one-year/ three-year limitation period be applied in this case to bar Plaintiffs’ 10b-5 claims. Like the Court of Appeals for the Third Circuit in Data Access, the Supreme Court in Lampf held that the limitation period applicable to claims under Rule" }, { "docid": "9962378", "title": "", "text": "v. Meridian Medical Associates, Inc., 882 F.2d 840 (3d Cir.1989) (retroactively applied), cert. denied, — U.S. -, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); Hill v. Equitable Trust Co., 851 F.2d 691, 697 (3d Cir.1988) (retroactively applied), cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989); Panna v. Firstrust Savings Bank, 749 F.Supp. 1372 (D.N.J.1990) (retroactively applied); Capital Care Corp. v. Lifetime Corp., No. 88-2682, 1990 WL 158604 (E.D.Pa. Oct. 16, 1990) (retroactively applied); In re National Smelting of New Jersey, 722 F.Supp. 152, 160 (D.N.J.1989) (not retroactively applied). . In the majority of cases considering retroactive application of Data Access, the Third Circuit has found that Data Access did not depart from clear past precedent. See McCarter, 883 F.2d at 203-04 (law had been unsettled with respect to which state statute would apply); Gatto, 882 F.2d at 843 (same); Hill, 851 F.2d at 697 (same). But see Gruber, 911 F.2d at 965-67 (law was settled with respect to state statute to be applied to particular type of § 10(b) claim). The Third Circuit's decisions are not applicable here because the law in the Seventh Circuit was much more settled prior to Short than was the law in the Third Circuit prior to Data Access. . The Short decision’s arrival during the briefing of the motion to dismiss occasioned a number of additional submissions by the parties. The Court granted leave to file those submissions. One of the submissions was an affidavit by plaintiffs’ lead counsel attesting to his reliance on the state of the law prior to Short and stating that during the year before he filed the complaint he pursued settlement negotiations and conducted a factual investigation. The Court granted leave to file the affidavit but stated that defendants’ objections to the affidavit would be considered along with the merits. Defendants assert that because this is a motion to dismiss, plaintiffs may not submit factual evidence. Because the issue of retroactivity, to which reliance is relevant, is collateral to the merits of the complaint, the Court rejects defendants’ argument and finds that submission of the" }, { "docid": "23346660", "title": "", "text": "Mitcham, 883 F.2d 196, 201-05 (3d Cir.1989); Gatto v. Meridian Medical Assoc., Inc., 882 F.2d 840, 842-44 (3d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); Hill v. Equitable Trust Co., 851 F.2d 691, 695-99 (3d Cir.1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989). Only one Third Circuit opinion determined, after applying Chevron, that Data Access should not apply retroactively to that particular plaintiff. Gruber v. Price Waterhouse, 911 F.2d 960, 964-69 (3d Cir.1990). Mr. Oleott relies upon Gruber and two district court cases which refused to apply Data Access retroactively after applying Chevron. In re National Smelting of New Jersey, Inc. Bondholders’ Litig., 722 F.Supp. 152 (D.N.J.1989); Newfield v. Shearson Lehman Bros., 699 F.Supp. 1124 (E.D.Pa.1988). These cases decided under Chevron are inapposite to our analysis under Beam. We believe Beam requires the retroactive application of Data Access in this case because the Third Circuit has applied its new rule retroactively on four occasions. C. We now apply Data Access’ one-year/ three-year limitations period to the facts of Mr. Olcott’s case. Initially, the timeliness of Mr. Olcott’s claims is judged against the three-year statute of repose. In Lampf, the Supreme Court described this three-year time period as an outside limit and declined to apply equitable tolling principles to extend it. 501 U.S. at 364, 111 S.Ct. at 2782. The Court wrote: The 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary. The 3-year limit is a period of repose inconsistent with tolling. One commentator explains: “[T]he inclusion of the three-year period can have no significance in this context other than to impose an outside limit.” ... Because the purpose of the 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period. Id. (citations omitted). See generally United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979) (describing the nature of statutes of limitations and statutes of repose.) Accordingly, Mr. Oleott’s claims based on his 1976," }, { "docid": "3997900", "title": "", "text": "and inconsistent.’ ” Hill, 851 F.2d at 696 (quoting Fitzgerald v. Larson, 769 F.2d 160, 163 (3d Cir.1985). Therefore, we must determine if Gruber had “sufficiently clear” precedent to have relied upon the common law statute of limitations for the section 10(b) and rule 10b-5 claims. The basic inquiry we must address here is what a claimant, or his reasonably prudent attorney, would do in 1984 in light of the law at the time the violation occurred. Because this retroactive analysis is fact sensitive, the ruling in Hill that Data Access did not overrule clear past precedent' which was sufficient to warrant justifiable reliance, is not controlling here. Additionally, in Gatto we explained that although Hill had upheld retroactive application of Data Access, “it does not follow that this is necessarily the result in all cases.” Gatto, 882 F.2d at 843. Similarly, in McCarter we recognized that, regardless of Hill, the court “must decide more particularly whether the facts of [the case at issue] have been clearly decided in prior cases.” McCarter, 883 F.2d at 203. The relevant authority available to Gru-ber and upon which he could have relied is contained within Roberts v. Magnetic Metals Co., 611 F.2d 450 (3d Cir.1979), Biggans v. Bache Halsey Stuart Shields, Inc., 638 F.2d 605 (3d Cir.1980), and Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981). In Roberts and Biggans, we held that the statute of limitations period in securities fraud eases was determined by looking to the state statute of limitations that “best comported with the federal policies underlying rule 10b-5.” In re Data Access Sys. Sec. Litig., 843 F.2d 1537 (3d Cir.1988) (Seitz, J., dissenting). The limitations period was either the state Blue Sky limitations period or the common law fraud period, depending on whether the plaintiff “color matched” the asserted claim to a claim cognizable under the state Blue Sky law. Notwithstanding the fact that the “color match” method was reversed by Malley-Duff & Associates v. Crown Life Insurance Co., 792 F.2d 341 (3d Cir.1986), aff'd sub nom. Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143," }, { "docid": "23346659", "title": "", "text": "must also be applied retroactively here. The Third Circuit first addressed whether its new rule should apply retroactively in Data Access itself. The court explicitly declined to address whether the new limitations period should apply retroactively to the Data Access plaintiffs. The court relied on the fact “[i]n certifying the questions for our consideration [pursuant to 28 U.S.C. § 1292(b) ], the district court did not request that we address the issue of whether our rulings should have prospective effect only and not apply to the present case.” Data Access, 843 F.2d at 1550. The court left the resolution of this issue to the district court. Id. at 1551. The court’s refusal to address the retroactivity issue prompted three members of the court to dissent. The dissent applied Chevron and concluded, “the rule announced today [should] not be applied to this case.” Id. at 1553 (Seitz, J. dissenting). However, four ensuing Third Circuit cases have had no difficulty applying Data Access retroactively. Westinghouse Elec. Corp. v. Franklin, 993 F.2d 349, 354-56 (3d Cir.1993); McCarter v. Mitcham, 883 F.2d 196, 201-05 (3d Cir.1989); Gatto v. Meridian Medical Assoc., Inc., 882 F.2d 840, 842-44 (3d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); Hill v. Equitable Trust Co., 851 F.2d 691, 695-99 (3d Cir.1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989). Only one Third Circuit opinion determined, after applying Chevron, that Data Access should not apply retroactively to that particular plaintiff. Gruber v. Price Waterhouse, 911 F.2d 960, 964-69 (3d Cir.1990). Mr. Oleott relies upon Gruber and two district court cases which refused to apply Data Access retroactively after applying Chevron. In re National Smelting of New Jersey, Inc. Bondholders’ Litig., 722 F.Supp. 152 (D.N.J.1989); Newfield v. Shearson Lehman Bros., 699 F.Supp. 1124 (E.D.Pa.1988). These cases decided under Chevron are inapposite to our analysis under Beam. We believe Beam requires the retroactive application of Data Access in this case because the Third Circuit has applied its new rule retroactively on four occasions. C. We now apply Data Access’ one-year/ three-year limitations period" }, { "docid": "3997909", "title": "", "text": "for section 10(b) and rule 10b-5 claims. E.g., McCarter, 883 F.2d at 204. By allowing as few exceptions as possible to the rule of retroactivity, greater uniformity and . certainty result, thus the second criterion appears to favor retroactivity. Nevertheless, in the instance of Data Access, “this reasoning swallows the rule.” Components one and three mandate prospective application in cases where a new period of limitations replaces a well-settled statute since it would be inequitable to change the rules in midstream when clear precedent had been relied upon. Thus, we are compelled to conclude that the second factor “does not ‘militate clearly either in favor of or against retroactive application’ and is therefore neutral.” McCarter, 883 F.2d at 204 quoting Al-Khazraji v. Saint Francis College, 784 F.2d 505, 513 (3d Cir.1986), aff'd, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1986). C. The third and final criterion of Chevron requires us to discern the risk of substantial inequity which would ensue if retroactive application were given to Data Access in this case. The district court concluded that retroactivity would be clearly inequitable to Gruber. 697 F.Supp. at 863. As we noted in Gatto, “the third Chevron factor in practice overlaps with that of the first factor, ‘in that it would be inequitable to give retrospective application to a shortening of the limitations period that altered established law upon which plaintiff could have reasonably relied.’ ” 882 F.2d at 844, quoting Fitzgerald v. Larson, 769 F.2d at 164. Hence, a conclusion favoring prospective operation under the first factor appears to strongly advise a similar conclusion for the third factor. An absence of clear precedent in Gatto thereby distinguishes it from the case at bar. Our decisions in Hill and McCarter also may be distinguished from the facts here since, not only did we decide that there was no clear precedent relied upon by the plaintiffs under the first component of Chevron, but we found that regardless of whether or not Data Access was applied, the limitation periods would have been identical. Hill, 851 F.2d at 698; McCarter, 883 F.2d at" }, { "docid": "13497911", "title": "", "text": "of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits-and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). In applying the first part, “[pjrior precedent must be ‘sufficiently clear that a plaintiff could have reasonably relied upon it in delaying suit, a criteria that was not met where the law was erratic and inconsistent.’ ” Hill, 851 F.2d at 696, quoting Fitzgerald v. Larson, 769 F.2d 160, 163 (3rd Cir.1985). Although the court in Hill, McCarter and Gatto found that Data Access did not overrule clear past precedent which was sufficient to warrant justifiable reliance by plaintiff, the inquiry is “fact sensitive,” requiring us to examine whether the facts of this case have been clearly decided in prior cases. Gruber, 911 F.2d at 965 (citations omitted). Therefore, we must examine the law as it existed at the time plaintiffs’ cause of action arose and any changes which may have occurred prior to the time the complaint was filed. Id. at 965. First, we must recognize the Third Circuit’s “legal conclusion” that no clear precedent on the applicable New Jersey limitations period for Rule 10b-5 actions existed at the time Data Access was decided in 1988. McCarter, 883 F.2d at 203; Gatto, 882 F.2d at 843. In Gatto, plaintiffs were investors who purchased limited partnership interests in real estate as a tax shelter. They filed suit in 1987, alleging fraudulent inducement to purchase their limited partnership interests six years earlier in violation of § 10(b) and Rule 10b-5." }, { "docid": "23346706", "title": "", "text": "Scope of the Van Dusen Rule in Federal-Question Transfers, 1992/1993 Ann.Surv. Am.L. 49; Richard L. Marcus, Conflicts Among Circuits and Transfers Within the Federal System, 93 Yale L.J. 677 (1984). . Section 27A refers to the Securities Act of 1934 which Congress amended in response to Lampf. This section has been codified at 15 U.S.C. § 78aa-l. We refer to this provision by its code section throughout this opinion. . Beam spawned two different broad viewpoints on the prospective application of new federal rules. One group of three justices concluded new civil rules should always be applied retroactively (Blackmun, Marshall, and Scalia, JJ.). Another group of three justices concluded selective prospectivity was wrong, but pure prospectivity might be appropriate with some new civil rules (Souter, Stevens, and White, JJ.). . The Court's decisions mirror its earlier holding that selective prospectivity would no longer occur in criminal cases. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). . But compare Gatto v. Meridian Medical Assoc., Inc., 882 F.2d 840, 843 n. 4 (3d Cir.1989) (\"Often overlooked is the fact that the majority in Data Access in effect applied the result retroactively, which is evident because it was disagreement with that silent portion of the holding which prompted the dissent.\"), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990) with Gruber v. Price Waterhouse, 911 F.2d 960, 964 (3d Cir.1990) (\"Because the application of our ruling was not requested in the question certified to us in Data Access, we did not decide whether the decision should be applied retroactively. We reserved this determination for the district court.”). It appears a disagreement exists among the judges of the Third Circuit on the proper interpretation of Data Access on this issue. . While we are applying Third Circuit law in addressing this issue, our discussion in Anixter I is directly on point. See Anixter I, 939 F.2d at 1434—36 (discussing the unavailability of employing equitable tolling principles to extend a statute of repose). See also Waller v. Pittsburgh Corning Corp., 946 F.2d 1514, 1515 n." }, { "docid": "13497910", "title": "", "text": "considered it since in McCarter v. Mitcham, 883 F.2d 196 (1989), Gatto v. Meridian Medical Associates, Inc., 882 F.2d 840 (1989), cert. denied, — U.S. -, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990), and most recently in Gruber v. Price Waterhouse, 911 F.2d 960 (1990). The limitations period should be applied retroactively unless the party attempting to avoid retroactive application persuades the court that the rule should be applied prospectively only. Hill, 851 F.2d at 696-97. The method for applying the “uncommon exception” of prospective application of the Data Access rule requires a ease-by-case analysis of the three-part test enunciated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Id., at 697; Gruber, 911 F.2d at 964-65. These factors are premised on a general assumption that judicial decisions should be applied retroactively. In re National Smeltinq of New Jersey, Inc., 722 F.Supp. 152, 157 (D.N.J.1989). The three-part test of Chevron Oil states: First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits-and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). In applying the first part, “[pjrior precedent must be ‘sufficiently clear that a plaintiff could have reasonably relied upon it in delaying suit, a criteria that was not met where the law was erratic and inconsistent.’ ” Hill, 851 F.2d at 696, quoting Fitzgerald v. Larson, 769 F.2d 160, 163 (3rd Cir.1985). Although the" } ]